Flores vs Drilon Date: June 22, 1993 Petitioner: Roberto Flores, Daniel Figueroa, Rogelio Palo, Domingo Jadloc,

Carlito Cruz and Manuel Reyes Respondents: Hon. Franklin Drilon and Richard Gordon Ponente: Bellosillo Facts: The constitutionality of Sec. 13, par. (d), of R.A. 7227, otherwise known as the "Bases Conversion and Development Act of 1992," under which Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is challenged in this original petition with prayer for prohibition, preliminary injunction and temporary restraining order. Under said provision, for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority. Petitioners, as taxpayers, contend that said provision is unconstitutional as under the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that "[n]o elective official shall be eligible for appointment or designation in any capacity to any public officer or position during his tenure," because the City Mayor of Olongapo City is an elective official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President shall appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint", since it was Congress through the questioned proviso and not the President who appointed the Mayor to the subject posts; and, (c) Sec. 261, par. (g), of the Omnibus Election Code. Issue: WON the proviso in Sec. 13, par. (d), of R.A. 7227 violates the constitutional proscription against appointment or designation of elective officials to other government posts Held: Yes

Ratio: The rule expresses the policy against the concentration of several public positions in one person, so that a public officer or employee may serve full-time with dedication and thus be efficient in the delivery of public services. It is an affirmation that a public office is a full-time job. Hence, a public officer or employee, like the head of an executive department described in Civil Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. No. 83815, should be allowed to attend to his duties and responsibilities without the distraction of other governmental duties or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency. In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. Here, the fact that the

expertise of an elective official may be most beneficial to the higher interest of the body politic is of no moment. It is argued that Sec. 94 of the LGC permits the appointment of a local elective official to another post if so allowed by law or by the primary functions of his office. But, the contention is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared unconstitutional, we need not rule on its validity. Neither can we invoke a practice otherwise unconstitutional as authority for its validity. In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art. IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an elective official to the government post, except as are particularly recognized in the Constitution itself, e.g., the President as head of the economic and planning agency; the Vice-President, who may be appointed Member of the Cabinet; and, a member of Congress who may be designated ex officio member of the Judicial and Bar Council. It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive Secretary, where we stated that the prohibition against the holding of any other office or employment by the President, Vice-President, Members of the Cabinet, and their deputies or assistants during their tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and functions required by the primary functions of the officials concerned, who are to perform them in an ex officio capacity as provided by law, without receiving any additional compensation therefor. This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo City without need of appointment. The phrase "shall be appointed" unquestionably shows the intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it been the legislative intent to make the subject positions ex officio, Congress would have, at least, avoided the word "appointed" and, instead, "ex officio" would have been used. Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy resolved by the courts. Indeed, the Senators would not have been concerned with the effects of Sec. 7, first par., had they considered the SBMA posts as ex officio. Cognizant of the complication that may arise from the way the subject proviso was stated, Senator Rene Saguisag remarked that "if the Conference Committee just said "the Mayor shall be the Chairman" then that should foreclose the issue. It is a legislative choice."The Senator took a view that the constitutional proscription against appointment of elective officials may have been sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City instead of directing the President to appoint him to the post. Without passing upon this view of Senator Saguisag, it suffices to state that Congress intended the posts to be appointive, thus nibbling in the bud the argument that they are ex officio. Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d), itself vests in the President the power to appoint the

Chairman of the Board and the Chief Executive Officer of SBMA, although he really has no choice under the law but to appoint the Mayor of Olongapo City. As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust," or "[t]he selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function and discharge the duties of the same. In his treatise, Philippine Political Law, Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office." Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words, the choice of the appointee is a fundamental component of the appointing power. Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the choice of the President to only one candidate. Once the power of appointment is conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress can only be met by one individual, such enactment effectively eliminates the discretion of the appointing power to choose and constitutes an irregular restriction on the power of appointment. In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature itself of appointment. While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of congressional authority to prescribe qualifications where only one, and no other, can qualify. Where, as in the case of Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to other government posts, he does not automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective official is not eligible to the appointive position, his appointment or designation thereto cannot be valid in view of his disqualification or lack of eligibility. As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third persons, where the duties of the office were exercised . . . . under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some

defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such. Flores vs. Drilon G.R. No. 104732, June 22, 1993 FACTS: The constitutionality of Sec. 13, par. (d), of R.A. 7227, otherwise known as the "Bases Conversion and Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is challenged in this case. Paragraph (d) reads (d) Chairman administrator The President shall appoint a professional manager as administrator of the Subic Authority with a compensation to be determined by the Board subject to the approval of the Secretary of Budget, who shall be the ex oficio chairman of the Board and who shall serve as the chief executive officer of the Subic Authority: Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority. ISSUE: Whether or not the proviso in Sec. 13, par. (d), of R.A. 7227 is constitutional. RULING: The proviso violates the constitutional proscription against appointment or designation of elective officials to other government posts. In full, Sec. 7 of Art. IX-B of the Constitution provides: No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. In the case at bar, the subject proviso directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, there is not doubt to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art. IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law

or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an elective official to the government post, except as are particularly recognized in the Constitution itself. The appointment of Gordon as Chairman of the SBMA is null. However, despite his appointment to the said office, Gordon did not automatically forfeit his seat as Mayor of Olongapo City. Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to other government posts, he does not automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective official is not eligible to the appointive position, his appointment or designation thereto cannot be valid in view of his disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . . during his term without forfeiting his seat . . . ." The difference between the two provisions is significant in the sense that incumbent national legislators lose their elective posts only after they have been appointed to another government office, while other incumbent elective officials must first resign their posts before they can be appointed, thus running the risk of losing the elective post as well as not being appointed to the other post. As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a de facto officer who may retain the benefits he may received from the position he may have assumed. Pimentel vs. Executive Secretary G.R. No. 158088, July 6, 2005

President to transmit the signed copy of the Rome Statute to the Senate for its concurrence. ISSUE: y Whether or not the Executive Secretary and the DFA have a ministerial duty to transmit to the Senate the copy of the Rome Statute

HELD: We rule in the negative. In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the countrys sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the countrys mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that no treaty or international agreementshall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations. By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nations pursuit of political maturity and growth. Signing vs. Ratification of Treaty It should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the states authorized representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an executive act, undertaken by the head of the state or of the government. Purpose of Ratification

y y y y

ROME STATUTE Signing of Treaty vs. Ratification Significance of Ratification Who has power to ratify

FACTS: The Rome Statute established the ICC which shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary to the national criminal jurisdictions. The Philippines, through Charge d Affairs Enrique A. Manalo of the Philippine Mission to the UN, signed the Rome Statute on Dec. 28, 2000. Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states. Petitioners now file this petition to compel the Office of the

Petitioners submission that the Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis. The signature does not signify the final consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the states representative, the President, being accountable to the people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries. There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in taking offense. President has the Power to Ratify Treaties It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties. The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to the Senate. Gudani vs. Senga G.R. No. 170165, Aug. 15, 2006

On Sept. 22, 2005, Sen. Biazon invited several senior officers of the AFP, including Gen. Gudani, to appear at a public hearing before the Senate Committee on National Defense and Security concerning the conduct of the 2004 elections wherein allegations of massive cheating and the Hello Garci tapes emerged. AFP Chief of Staff Gen. Senga issued a Memorandum, prohibiting Gen. Gudani, Col. Balutan and company from appearing before the Senate Committee without Presidential approval. Nevertheless, Gen. Gudani and Col. Balutan testified before said Committee, prompting Gen. Senga to order them subjected to General Court Martial proceedings for willfully violating an order of a superior officer. In the meantime, President Arroyo issued EO 464, which was subsequently declared unconstitutional. ISSUE: y Whether or not the President can prevent military officers from testifying at a legislative inquiry

RULING: We hold that the President has constitutional authority to do so, by virtue of her power as commander-in-chief, and that as a consequence a military officer who defies such injunction is liable under military justice. At the same time, we also hold that any chamber of Congress which seeks the appearance before it of a military officer against the consent of the President has adequate remedies under law to compel such attendance. Any military official whom Congress summons to testify before it may be compelled to do so by the President. If the President is not so inclined, the President may be commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of the law of the land which the President has the duty to faithfully execute. Ability of President to prevent military officers from testifying before Congress is based on Commander-in-chief powers As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior consent on executive officials summoned by the legislature to attend a congressional hearing. In doing so, the Court recognized the considerable limitations on executive privilege, and affirmed that the privilege must be formally invoked on specified grounds. However, the ability of the President to prevent military officers from testifying before Congress does not turn on executive privilege, but on the Chief Executives power as commander-in-chief to control the actions and speech of members of the armed forces. The Presidents prerogatives as commander-in-chief are not hampered by the same limitations as in executive privilege. RATIONALE: Our ruling that the President could, as a general rule, require military officers to seek presidential approval before appearing before Congress is based foremost on the notion that a contrary rule unduly diminishes the prerogatives of the President as commander-in-

The ability of the President to prevent military officers from testifying before Congress does not turn on executive privilege, but on the Chief Executives power as commander-in-chief to control the actions and speech of members of the armed forces. The Presidents prerogatives as commander-in-chief are not hampered by the same limitations as in executive privilege.

FACTS:

chief. Congress holds significant control over the armed forces in matters such as budget appropriations and the approval of higher-rank promotions, yet it is on the President that the Constitution vests the title as commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the exigencies of military discipline and the chain of command mandate that the Presidents ability to control the individual members of the armed forces be accorded the utmost respect. Where a military officer is torn between obeying the President and obeying the Senate, the Court will without hesitation affirm that the officer has to choose the President. After all, the Constitution prescribes that it is the President, and not the Senate, who is the commander-in-chief of the armed forces. Remedy is judicial relief At the same time, the refusal of the President to allow members of the military to appear before Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislatures functions is the conduct of inquiries in aid of legislation. Inasmuch as it is illadvised for Congress to interfere with the Presidents power as commander-in-chief, it is similarly detrimental for the President to unduly interfere with Congresss right to conduct legislative inquiries. The impasse did not come to pass in this petition, since petitioners testified anyway despite the presidential prohibition. Yet the Court is aware that with its pronouncement today that the President has the right to require prior consent from members of the armed forces, the clash may soon loom or actualize. We believe and hold that our constitutional and legal order sanctions a modality by which members of the military may be compelled to attend legislative inquiries even if the President desires otherwise, a modality which does not offend the Chief Executives prerogatives as commander-in-chief. The remedy lies with the courts. The fact that the executive branch is an equal, coordinate branch of government to the legislative creates a wrinkle to any basic rule that persons summoned to testify before Congress must do so. There is considerable interplay between the legislative and executive branches, informed by due deference and respect as to their various constitutional functions. Reciprocal courtesy idealizes this relationship; hence, it is only as a last resort that one branch seeks to compel the other to a particular mode of behavior. The judiciary, the third coordinate branch of government, does not enjoy a similar dynamic with either the legislative or executive branches. Whatever weakness inheres on judicial power due to its inability to originate national policies and legislation, such is balanced by the fact that it is the branch empowered by theConstitution to compel obeisance to its rulings by the other branches of government. Neri vs. Senate G.R. No. 180643, March 25, 2008

FACTS: This is regarding the contract entered into by DOTC with ZTE for the supply of equipment and services for the NBN Project. In connection with this NBN Project, Senate passed various Resolutions and pending bills, which it then used as basis for initiating an investigation. One of the cabinet officials invited to appear before the Senate during the investigation was Petitioner, who was Director General of NEDA at the time. During the 11-hour questioning, Petitioner invoked executive privilege and refused to answer the questions on (a) whether or not President Arroyo followed up the NBN Project, (b) whether or not she directed him to prioritize it, and (c) whether or not she directed him to approve. In view of his refusal, the Senate Blue Ribbon Committee issued a subpoena ad testificandum, to which Petitioner replied that he was willing to testify to other matters besides those three questions covered by executive privilege and that he wanted to be furnished beforehand matters to be taken up during the inquiry so that he may adequately prepare therefor. Executive Secretary Ermita also sent a letter to the Blue Ribbon, affirming that indeed those three questions mentioned were covered by executive privilege because such information if disclosed might impair diplomatic as well as economic relations with the Peoples Republic of China. As such, the Office of the President has ordered Petitioner not to answer those questions. Nevertheless, the Blue Ribbon issued a show cause Letter and a contempt Order against Petitioner. Thus, this case. ISSUE: y Are the communications elicited by the subject three (3) questions covered by executive privilege?

RULING: IN AID OF LEGISLATION: Scope and Limitations -The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the proposition that a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. Inevitably, adjunct thereto is the compulsory process to enforce it. But, the power, broad as it is, has limitations. To be valid, it is imperative that it is done in accordance with the Senate or House duly published rules of procedure and that the rights of the persons appearing in or affected by such inquiries be respected.

y y y

Legislative Inquiry in Aid of Legislation vs. Legislative Inquiry during Question Hour Elements of Presidential Communications Privilege Exception to Executive Privilege

The power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive privilege. Is there recognized claim of executive privilege despite revocation of E.O. 464? At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings. ELEMENTS OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE: 1) The protected communication must relate to a quintessential and non-delegable presidential power. 2) The communication must be authored or solicited and received by a close advisor of the President or the President himself. The judicial test is that an advisor must be in operational proximity with the President. 3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought likely contains important evidence and by the unavailability of the information elsewhere by an appropriate investigating authority. Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a quintessential and non-delegable power of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. Second, the communications are received by a close advisor of the President. Under the operational proximity test, petitioner can be considered a close advisor, being a member of President Arroyos cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. Respondent Committees failed to show a compelling or critical need: xxx presidential communications are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations xxxx Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or critical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner of inquiry is conducted. EXCEPTION TO EXECUTIVE PRIVILEGE: Demonstrated, specific need for evidence in

pending criminal trial (US v. Nixon) does not apply -In Nixon, there is a pending criminal proceeding where the information is requested and it is the demands of due process of law and the fair administration of criminal justice that the information be disclosed. This is the reason why the US Court was quick to limit the scope of its decision. It stressed that it is not concerned here with the balance between the Presidents generalized interest in confidentiality xxx and congressional demands for information. Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, on the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets. Executive Privilege vis-a-vis Right of the People to Information on Matters of Public Concern The right to public information, like any other right, is subject to limitation. The provision (Section 7, Article III) itself provides the limitations, i.e. as may be provided by law. Some of these laws are Sec. 7, RA 6713, Art. 229, RPC, Sec. 3(k), RA 3019, and Sec. 24(e), Rule 130, ROC. These are in addition to what our body of jurisprudence clarifies as confidential and what our Constitution considers as belonging to the larger concept of executive privilege. Clearly, there is a recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind. Legislative Inquiry in Aid of Legislation vis-a-vis Right of the People to Information on Matters of Public Concern: More than anything else, though, the right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the peoples right to public information. The former cannot claim that every legislative inquiry is an exercise of the peoples right to information. xxx The members of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to the people in general. This is because when they discharge their power, they do so as public officials and members of Congress. Be that as it may, the right to information must be balanced with and should give way, in appropriate cases, to constitutional precepts particularly those pertaining to delicate interplay of executivelegislative powers and privileges which is the subject of careful review by numerous decided cases. AKBAYAN vs. Aquino G.R. No. 170516, July 16, 2008

JPEPA

y y y y

Diplomatic Negotiations are Privileged Executive Privilege, an Exception to Congress' Power of Inquiry Treaty-making Power Executive Privilege vs. People's Right to Information

requirement that it be a matter of public concern xxx From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to information and the policy of full public disclosure. Privileged Character of Diplomatic Negotiations Recognized The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest. Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential since there should be ample opportunity for discussion before [a treaty] is approved the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that historic confidentiality would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. A ruling that Philippine offers in treaty negotiations should not be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations. While, on first impression, it appears wise to deter Philippine representatives from entering into compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest. Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status. Does the exception apply even though JPEPA is primarily economic and does not involve national security? While there are certainly privileges grounded on the necessity of safeguarding national security such as those involving military secrets, not all are founded thereon. One example is the informers privilege, or the privilege of the Government not to disclose the identity of a person or persons who furnish information of violations of law to officers charged with the

FACTS: This is regarding the JPEPA, the bilateral free trade agreement ratified by the President with Japan, concerning trade in goods, rules of origin, customs procedures, paperless trading, trade in services, investment, etc. Prior to Presidents signing of JPEPA in Sept. 2006, petitioners non-government organizations, Congresspersons, citizens and taxpayers sought via petition for mandamus and prohibition to obtain from respondents the full text of the JPEPA, including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto. Particularly, Congress through the House Committee are calling for an inquiry into the JPEPA, but at the same time, the Executive is refusing to give them the said copies until the negotiation is completed. ISSUES: y y y Whether or not petitioners have legal standing Whether or not the Philippine and Japanese offers during the negotiation process are privileged Whether or not the President can validly exclude Congress, exercising its power of inquiry and power to concur in treaties, from the negotiation process

RULING: Standing In a petition anchored upon the right of the people to information on matters of public concern, which is a public right by its very nature, petitioners need not show that they have any legal or special interest in the result, it being sufficient to show that they are citizens and, therefore, part of the general public which possesses the right. As the present petition is anchored on the right to information and petitioners are all suing in their capacity as citizens and groups of citizens including petitioners-members of the House of Representatives who additionally are suing in their capacity as such, the standing of petitioners to file the present suit is grounded in jurisprudence. JPEPA, A Matter of Public Concern To be covered by the right to information, the information sought must meet the threshold

enforcement of that law. The suspect involved need not be so notorious as to be a threat to national security for this privilege to apply in any given instance. Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in which case not only would this be contrary to long-standing practice. It would also be highly prejudicial to law enforcement efforts in general. Also illustrative is the privileged accorded to presidential communications, which are presumed privileged without distinguishing between those which involve matters of national security and those which do not, the rationale for the privilege being that a frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. In the same way that the privilege for judicial deliberations does not depend on the nature of the case deliberated upon, so presidential communications are privileged whether they involve matters of national security. It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one significant qualification being that the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing. This qualification applies whether the privilege is being invoked in the context of a judicial trial or a congressional investigation conducted in aid of legislation. Closely related to the presidential communications privilege is the deliberative process privilege recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co, deliberative process covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Notably, the privileged status of such documents rests, not on the need to protect national security but, on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, the objective of the privilege being to enhance the quality of agency decisions. The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic negotiations, deliberative process, and presidential communications is similar, if not identical. The earlier discussion on PMPF v. Manglapus shows that the privilege for diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege seeks, through the same means, to protect the independence in decision-making of the President, particularly in its capacity as the sole organ of the nation in its external relations, and its sole representative with foreign nations. And, as with the deliberative process privilege, the privilege accorded to diplomatic negotiations arises, not on account of the content of the information per se, but

because the information is part of a process of deliberation which, in pursuit of the public interest, must be presumed confidential. Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process. Does diplomatic privilege only apply to certain stages of the negotiation process? In Chavez v. PEA and Chavez v. PCGG, the Court held that with regard to the duty to disclose definite propositions of the government, such duty does not include recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order. Treaty-making power of the President xxx they (petitioners) argue that the President cannot exclude Congress from the JPEPA negotiations since whatever power and authority the President has to negotiate international trade agreements is derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential Decree No. 1464. The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and international agreements, but the power to fix tariff rates, import and export quotas, and other taxes xxx. As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII the article on the Executive Department. xxx While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the President only be delegation of that body, it has long been recognized that the power to enter into treaties is vested directly and exclusively in the President, subject only to the concurrence of at least two-thirds of all the Members of the Senate for the validity of the treaty. In this light, the authority of the President to enter into trade agreements with foreign nations provided under P.D. 1464 may be interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis to hold the President or its representatives accountable to Congress for the conduct of treaty negotiations. This is not to say, of course, that the Presidents power to enter into treaties is unlimited but for the requirement of Senate concurrence, since the President must still enure that all treaties will substantively conform to all the relevant provisions of the Constitution. It follows from the above discussion that Congress, while possessing vast legislative powers, may not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to the validity of the treaty under consideration, not to the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress as a while that has been given the authority to concur as a means of checking the treaty-making

power of the President, but only the Senate. Thus, as in the case of petitioners suing in their capacity as private citizens, petitionersmembers of the House of Representatives fail to present a sufficient showing of need that the information sought is critical to the performance of the functions of Congress, functions that do not include treaty-negotiation. Did the respondents alleged failure to timely claim executive privilege constitute waiver of such privilege? That respondent invoked the privilege for the first time only in their Comment to the present petition does not mean that the claim of privilege should not be credited. Petitioners position presupposes that an assertion of the privilege should have been made during the House Committee investigations, failing which respondents are deemed to have waived it. xxx (but) Respondents failure to claim the privilege during the House Committee hearings may not, however, be construed as a waiver thereof by the Executive branch. xxx what respondents received from the House Committee and petitioner-Congressman Aguja were mere requests for information. And as priorly stated, the House Committee itself refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de Venecias alleged request to Committee Chairperson Congressman Teves to hold the same in abeyance. The privilege is an exemption to Congress power of inquiry. So long as Congress itself finds no cause to enforce such power, there is no strict necessity to assert the privilege. In this light, respondents failure to invoke the privilege during the House Committee investigations did not amount to waiver thereof. Showing of Need Test In executive privilege controversies, the requirement that parties present a sufficient showing of need only means, in substance, that they should show a public interest in favor of disclosure sufficient in degree to overcome the claim of privilege. Verily, the Court in such cases engages in a balancing of interests. Such a balancing of interests is certainly not new in constitutional adjudication involving fundamental rights. xxx However, when the Executive has as in this case invoked the privilege, and it has been established that the subject information is indeed covered by the privilege being claimed, can a party overcome the same by merely asserting that the information being demanded is a matter of public concern, without any further showing required? Certainly not, for that would render the doctrine of executive privilege of no force and effect whatsoever as a limitation on the right to information, because then the sole test in such controversies would be whether an information is a matter of public concern. Right to information vis-a-vis Executive Privilege xxx the Court holds that, in determining whether an information is covered by the right to

information, a specific showing of need for such information is not a relevant consideration, but only whether the same is a matter of public concern. When, however, the government has claimed executive privilege, and it has established that the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that that information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political, and economic decision-making. Lambino vs. COMELEC G.R. No. 174153, Oct. 25, 2006

y y y

Requirements for Initiative Petition Constitutional Amendment vs. Constitutional Revision Tests to determine whether amendment or revision

FACTS: The Lambino Group commenced gathering signatures for an initiative petition to change the 1987 Constitution and then filed a petition with COMELEC to hold a plebiscite for ratification under Sec. 5(b) and (c) and Sec. 7 of RA 6735. The proposed changes under the petition will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of government. COMELEC did not give it due course for lack of an enabling law governing initiative petitions to amend the Constitution, pursuant to Santiago v. Comelec ruling. ISSUES: y y Whether or not the proposed changes constitute an amendment or revision Whether or not the initiative petition is sufficient compliance with the constitutional requirement on direct proposal by the people

RULING: Initiative petition does not comply with Sec. 2, Art. XVII on direct proposal by people Sec. 2, Art. XVII...is the governing provision that allows a peoples initiative to propose amendments to the Constitution. While this provision does not expressly state that the petition must set forth the full text of the proposed amendments, the deliberations of the framers of our Constitution clearly show that: (a) the framers intended to adopt relevant American jurisprudence on peoples initiative; and (b) in particular, the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a

petition containing such full text. The essence of amendments directly proposed by the people through initiative upon a petition is that the entire proposal on its face is a petition by the people. This means two essential elements must be present. 2 elements of initiative 1. 2. First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition.

mode is through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is through a peoples initiative. Section 1 of Article XVII, referring to the first and second modes, applies to any amendment to, or revision of, this Constitution. In contrast, Section 2 of Article XVII, referring to the third mode, applies only to amendments to this Constitution. This distinction was intentional as shown by the deliberations of the Constitutional Commission. A peoples initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution. Does the Lambino Groups initiative constitute a revision of the Constitution? Yes. By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. Amendment vs. Revision Courts have long recognized the distinction between an amendment and a revision of a constitution. Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checksand-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended. Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18 years to 15 years is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100% to 60% is an amendment and not a revision. Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision. The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific provision being amended. These changes do not also affect the structure of government or the system of checks-and-balances among or within the three branches. However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word republican with monarchic or theocratic in Section 1, Article II of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions,

These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing such complete proposal in a petition. The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so attached, the petition must stated the fact of such attachment. This is an assurance that everyone of the several millions of signatories to the petition had seen the full textof the proposed amendments before not after signing. Moreover, an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed and failure to do so is deceptive and misleading which renders the initiative void. In the case of the Lambino Groups petition, theres not a single word, phrase, or sentence of text of the proposed changes in the signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it. The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the Unicameral- Parliamentary system of government. The signature sheet does not show to the people the draft of the proposed changes before they are asked to sign the signature sheet. This omission is fatal. An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people. Thats why the Constitution requires that an initiative must be directly proposed by the people x x x in a petition - meaning that the people must sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nations fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a general or special power of attorney to unnamed, faceless, and unelected individuals. The initiative violates Section 2, Article XVII of the Constitution disallowing revision through initiatives Article XVII of the Constitution speaks of three modes of amending the Constitution. The first

as well as how it affects the structure of government, the carefully crafted system of checksand-balances, and the underlying ideological basis of the existing Constitution. Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow peoples initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions. Tests to determine whether amendment or revision

within the legislature and constitutes a revision of the Constitution. The Lambino Group theorizes that the difference between amendment and revision is only one of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are called revisions because members of the deliberative body work full-time on the changes. The same substantive changes, when proposed through an initiative, are called amendments because the changes are made by ordinary people who do not make an occupation, profession, or vocation out of such endeavor. The SC, however, ruled that the express intent of the framers and the plain language of the Constitution contradict the Lambino Groups theory. Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent and language. Santiago vs. Comelec G.R. No. 127325, March 19, 1997

In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The 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. The court examines only the number of provisions affected and does not consider the degree of the change. The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision. Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, a change in the nature of [the] basic governmental plan includes change in its fundamental framework or the fundamental powers of its Branches. A change in the nature of the basic governmental plan also includes changes that jeopardize the traditional form of government and the system of check and balances. Under both the quantitative and qualitative tests, the Lambino Groups initiative is a revision and not merely an amendment. Quantitatively, the Lambino Groups proposed changes overhaul two articles - Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in the entire Constitution. Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature. A change in the structure of government is a revision A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present BicameralPresidential system to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of government. The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances

y y

Constitutional provision on People's Initiative is not self-executory Principle of Non-delegation of Powers, Exceptions

FACTS: Petitioners in this case sought to amend certain provisions of the Constitution, specifically lifting the limit of terms of elective officials, through peoples initiative. Santiago et al. opposed on the ground that the constitutional provision on peoples initiative to amend the Constitution can only be implemented by law to be passed by Congress. There is no law passed yet and RA 6735, which provides for initiative on statues and local legislation but not initiative on the Constitution. ISSUE: y Whether or not RA 6735 adequately provided for peoples initiative on Constitution

RULING: Constitutional provision on peoples initiative is not self-executory Sec. 2 of Art. XVII of the Constitution...is not self-executory. xxx Bluntly stated, the right of the people to directly propose amendments to the Constitution through the system of initiative would remain entombed in the cold niche of the

Constitution until Congress provides for its implementation. Stated otherwise, while the Constitution has recognized or granted that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its implementation. Has Congress provided for the implementation of the exercise of this right? There is, of course, no other better way for Congress to implement the exercise of the right than through the passage of a statute or legislative act. xxx We agree that RA 6735 was, as its history reveals, intended to cover initiative to propose amendments to the Constitution. But is RA 6735 a full compliance with the power and duty of Congress to provide for the implementation of the exercise of the right? A careful scrutiny of the Act yields a negative answer. First. Contrary to the assertion of public respondents COMELEC, Sec. 2 of the Act does not suggest an initiative on amendments to the Constitution. The said section reads: SECTION 2. Statement and Policy. The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. The inclusion of the word Constitution therein was a delayed afterthought. That word is neither germane nor relevant to said section, which exclusively relates to initiative and referendum on national laws and local laws, ordinances, and resolutions. That section is silent as to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is confined only to proposals to AMEND. 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. xxx Second. It is true that Sec. 3 (Definition of Terms) of the Act defines initiative on amendments to the Constitution and mentions it as one of the three systems of initiative, and that Sec. 5 (Requirements) restates the constitutional requirements as to the percentage of the registered voters who must submit the proposal. But unlike in the case of the other systems of initiative, the Act does not provide for the contents of a petition for initiative on the Constitution. Sec. 5, paragraph (c) requires, among other things, statement of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be. It does not include, as among the contents of the petition, the provisions ofthe Constitution sought to be amended, in the case of initiative on the Constitution. xxx

Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and referendum on national and local laws. If Congress intended RA 6735 to fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far more important than the initiative on national and local laws. xxx The foregoing brings us to the conclusion that RA 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by empowering the COMELEC to promulgate such rules and regulations as may be necessary to carry out the purposes of the Act. Principle of non-delegation of power The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non delegari potest. The recognized exceptions to the rule are as follows: 1. 2. 3. 4. 5. Delegation of tariff powers to the President under Sec. 28(2), Art. VI; Delegation of emergency powers to the President under Sec. 23(2), Art. VI; Delegation to the people at large; Delegation to local governments; and Delegation to administrative bodies.

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is a form of delegation of legislative authority under no. 5 above. However, in every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently determinate and determinable to which the delegate must conform in the performance of his functions. A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. Insofar as initiative to propose amendments to the Constitution is concerned, RA 6735 miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC is then invalid.

Angara vs. Electoral Commission 63 PHIL 143 FACTS: In the elections of Sept. 17, 1935, petitioner Jose A. Angara and the respondents Pedro Ynsua, Miguel Castillo, and Dionisio Mayor were candidates voted for the position of members of the National Assembly for the first district of Tayabas. On Oct. 7, 1935, the provincial board of canvassers proclaimed Angara as member-elect of the National Assembly and on Nov. 15, 1935, he took his oath of office. On Dec. 3, 1935, the National Assembly passed Resolution No. 8, which in effect, fixed the last date to file election protests. On Dec. 8, 1935, Ynsua filed before the Electoral Commission a "Motion of Protest" against Angara and praying, among other things, that Ynsua be named/declared elected Member of the National Assembly or that the election of said position be nullified. On Dec. 9, 1935, the Electoral Commission adopted a resolution (No. 6) stating that last day for filing of protests is on Dec. 9. Angara contended that the Constitution confers exclusive jurisdiction upon the Electoral Commission solely as regards the merits of contested elections to the National Assembly and the Supreme Court therefore has no jurisdiction to hear the case. ISSUES: (1) Whether or not the Supreme Court has jurisdiction over the Electoral Commision and the subject matter of the controversy upon the foregoing related facts, and in the affirmative, (2) Whether or not the said Electoral Commission acted without or in excess of its jurisdiction in assuming to take cognizance of the protest filed against the election of the herein petitioner notwithstanding the previous confirmation of such election by resolution of the National Assembly RULING: On the issue of jurisdiction of the Supreme Court The separation of powers is a fundamental principle of a system of government. It obtains not through a single provision but by actual division in our Constitution that each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from that fact that the three powers are to be kept separate and that the Constitution intended them to be absolutely restrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. In case of conflict, the judicial department is the only constitutional organ which can be called

upon to determine the proper allocation of powers between the several departments and among the integral and constituent units thereof. As any human production, our Constitution is of course lacking perfection and perfectability, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances and subject to the specific limitations and restrictions provided in the said instrument. The Constitution itself has provided for the instrumentality of the judiciary as the rational way. 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 bythe Constitution to determine 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. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties and limited further to the constitutional question raised or the very lis mota presented. Courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution, but also because the judiciary in the determination of actual cases and controversies must respect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of government. In the case at bar, here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the National Assembly on the one hand, and the Electoral Commission on the other. Although the Electoral Commission may not be interfered with, when and while acting wihtin the limits of its authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to constitutional restrictions. The Electoral Commission is not a separate department of the government, and even if it were, conflicting claims of authority under the fundamental law between departmental powers and agencies of the government are necessarily determined by the judiciary in justiciable and appropriate cases. The court has jurisdiction over the Electoral Commission and the subject matter of the present controversy for the purpose of determining the character, scope, and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests relating to the election, returns, and qualifications of the members of the National Assembly." On the issue of jurisdiction of the Electoral Commission The creation of the Electoral Commission was designed to remedy certain errors of which the framers of our Constitutionwere cognizant. The purpose was to transfer in its totality all the

powers previously exercised by the legislature in matters pertaining to contested elections of its members, to an independent and impartial tribunal. The Electoral Commission is a constitutional creation, invested with the necessary authority in the performance and exercise of the limited and specific function assigned to it by the Constitution. Although it is not a power in our tripartite scheme of government, it is, to all intents and purposes, when acting within the limits of its authority, an independent organ. The grant of power to the Electoral Commission to judge all contests relating to the election, returns, and qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had remained originally in the legislature. The express lodging of that power in the Electoral Commission is an implied denial in the exercise of that power by the National Assembly. And thus, it is as effective a restriction upon the legislative power as an express prohibition in the Constitution. The creation of the Electoral Commission carried with it ex necessitate rei the power regulative in character to limit the time within which protests instructed to its cognizance should be filed. Therefore, the incidental power to promulgate such rules necessary for the proper exercise of its exclusive power to judge all contests relating to the election, returns, and qualifications of members of the National Assembly, must be deemed by necessary implication to have been lodged also in the Electoral Commission. It appears that on Dec. 9, 1935, the Electoral Commission met for the first time and approved a resolution fixing said date as the last day for the filing of election protests. When, therefore, the National Assembly passed its resolution of Dec. 3, 1935, confirming the election of the petitioner to the National Assembly, the Electoral Commission had not yet met; neither does it appear that said body had actually been organized. While there might have been good reason for the legislative practice of confirmation of the election of members of the legislature at the time the power to decide election contests was still lodged in the legislature, confirmation alone by the legislature cannot be construed as depriving the Electoral Commission of the authority incidental to its constitutional power to be "the sole judge of all contests...", to fix the time for the filing of said election protests. HELD: The Electoral Commission is acting within the legitimate exercise of its constitutional prerogative in assuming to take cognizance of the protest filed by the respondent, Pedro Ynsua against he election of the herein petitioner, Jose A. Angara, and that the resolution of the National Assembly on Dec. 3, 1935, cannot in any manner toll the time for filing protest against the election, returns, and qualifications of the members of the National Assembly, nor prevent the filing of protests within such time as the rules of the Electoral Commission might prescribe.

Aquilino Pimentel vs Exec Secretary Ermita G.R. No. 164978

FACTS:While Congress was in session, GMA appointed Arthur Yap et al as secretaries of their respective departments. They were appointed in acting capacities only. Pimentel together w/ 7 other senators filed a complaint against the appointment of Yap et al. During pendency, Congress adjourned and GMA re-issued ad interim appointments re-appointing those previously appointed in acting capacity. Pimentel argues that GMA should not have appointed Yap et al as acting secretaries because in case of a vacancy in the Office of a Secretary, it is only an Undersecretary who can be designated as Acting Secretary. Pimentel further asserts that while Congress is in session, there can be no appointments, whether regular or acting, to a vacant position of an office needing confirmation by the CoA, without first having obtained its consent; GMA cannot issue appointments in an acting capacity to department secretaries while Congress is in session because the law does not give the President such power.

ISSUE: Whether or not the appointments made by GMA is valid.

HELD: Ermita, in behalf of the other respondents, argued that GMA is allowed under Sec. 16, Art 7 of the Constitution to make such appointments. Pursuant to the Constitution, the President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the CoA or until the next adjournment of the Congress. Ermita also pointed out EO 292 which allows such an appointment with the exception that such temporary designation shall not exceed one year. Sec 17, Chap 5, Title I, Book III of EO 292 states that [t]he President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch. Thus, the President may even appoint in an acting capacity a person not yet in the government service, as long as the President deems that person competent. Also, Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who her alter ego should be. What Bernas Says

Ad-interim appointments must be distinguished from appointments in an acting capacity. Both of them are effective upon acceptance. But ad-interim appointments are extended only during a recess of Congress, whereas acting appointments may be extended any time there is a vacancy. Moreover ad-interim appointments are submitted to the Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the Commission on Appointments. Acting appointments are a way of temporarily filling important offices but, if abused, they can also be a way of circumventing the need for confirmation by the Commission on Appointments. ** The SC finds no abuse in what GMA did. The absence of abuse is readily apparent from GMA s issuance of ad interim appointments to respondents immediately upon the recess of Congress, way before the lapse of one year.