147982682-Philippine-Political-Law-Review

POLITICAL LAW REVIEW VOLUME I

Based on the outline of Justice Vicente V. Mendoza April 1996 Revised Edition _______________ Compiled by Jose Salvador Y. Mirasol

Updated by UP Law Batch 1995

Updated and Enlarged by Rodell A. Molina UP Law Batch 1996 This revised edition is intended to further improve a previous edition of this work. Important points taken from Justice Isagani Cruz's book in Political Law have been summarized in this work. Special thanks to Lianne Tan for lending me her diskette in Political Law Review as updated by UP Law Batch 1995, Ma. Rosario Bernardo for digesting some of the cases in volume I, Shirley Alinea for lending me her notes in Political Law, Non Lerrer, Buddy Carale and TJ Matta for patiently printing this work. This work is dedicated to UP Law Batch 1996, to which I belong, most specially to Section A. May this work help us in passing Political Law this coming bar exams in September 1996. Let us all pray for a one hundred per cent passing rate.

"To Him be the glory and honor forever."

-- RAM

_______________ GENERAL INTRODUCTION I. DEFINITIONS AND CONCEPTS IN PUBLIC LAW A. Political Law defined That branch of public law which deals with the organization and operation of the government organs of the state and defines the relations of the state with the inhabitants of its territory. (Sinco, Philippine Political Law 1, 11th ed., 1962)

POLITICAL LAW REVIEW Updated and Enlarged by RAM April 1996 Revised Edition

Scope of Political Law.-- The entire field of political law may be subdivided into (a) the law of public administration, (b) constitutional law, (c) administrative law, and (d) the law of public corporations. These four subdivisions may be briefly described for the time being, as follows: The first deals with the organization and management of the different branches of the government; the second, with the guaranties of the constitution to individual rights and the limitations on governmental action; the third, with the exercise of executive power in the making of rules and the decision of questions affecting private rights; and the last, with governmental agencies for local government or for other special purposes. (Sinco 1) Macariola v Asuncion, 114 SCRA 77 (1982) Spanish Code of Commerce Provision Disqualifying Judges from Engaging in Commerce is Part of Spanish Political Law Abrogated by Change of Sovereignty F:

The complainant alleged that respondent judge of the CFI violated paragraphs 1 and 5, Art. 14 of the Code of Commerce (w/c prohibited judges, among others, from engaging in commerce, either in person or in proxy or in the financial intervention in commercial or industrial companies w/in the limits of the districts) when he associated himself w/ the Traders Mftg. & Fishing Industries, Inc. as a stockholder and pres., said corp. having been organized to engage in business.

HELD: Although this provision is incorporated in the Code of Commerce w/c is part of the commercial laws of the Phils, it partakes of the nature of a political law as it regulates the relationship between the government and certain public officers and employees, like justices and judges. Political law has been defined as that branch of public law w/c deals w/ the organization and operation of the governmental organs of the State and defines the relations of the state w/ the inhabitants of its territory. Specifically, Art. 14 of the Code of Commerce partakes more of the nature of an administrative law bec. it regulates the conduct of certain public officers and employees w/ respect to engaging in business; hence, political in essence. xxx Upon the transfer of sovereignty from Spain to US, and later on from US to the Republic of the Phils., Art. 14 of the said Code must be deemed to have been abrogated bec. where there is change of sovereignty, the political laws of the former sovereign, whether compatible or not w/ those of the new sovereign, are automatically abrogated, unless they are expressly re-enacted by affirmative act of the new sovereign. There appears to be no enabling or affirmative act. Consequently, Art. 14 of the Code of Commerce has no legal and binding effect and cannot apply to respondent Judge. VV. B. Constitutional Law Defined A constitution is both a legal document and a political plan. It, therefore, embodies legal rules as well as political principles. And so when we speak of constitutional law in the strict sense of the tern, we refer to the legal rules of the constitution. xxx xxx In the sense in w/c the concept is understood in American and Philippine Jurisprudence, constitutional law is a term used to designate the law embodied in the constitution and the legal principles growing out of the interpretation and application made by courts of the provisions of the constitution in specific cases. xxx

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Constitutional law forms a distinct branch of jurisprudence dealing w/ the legal principles affecting the nature, adoption, amendment, and operation of the constitution. (Sinco 67.) Types of Constitutional Law.-- In general, there are three (3) different types of constitutional law, namely, (1) the English type, characterized by the absence of a written constitution (Sinco 67) An unwritten constitution, and the power of judicial review by the courts. Thus, the courts cannot invalidate the acts of the parliament as being unconstitutional because of "parliamentary supremacy." (Mirasol notes.) (2) the European continental type, where there is a written constitution w/c gives the courts no power to declare ineffective statutes contrary to it (Sinco 67.) A written constitution but no power of judicial review by the courts. The so-called Constitutional Courts of France do not exercise real judicial review but only render advisory opinions on constitutional questions upon the request of the government, not of parties in actual litigation. (Mirasol notes.) (3) the American type where the legal provisions of the written constitution are given effect through the power of the courts to declare ineffective or void ordinary statutes repugnant to it. (Sinco 67.) A written constitution and the exercise of judicial review by the courts, which is the power of the courts to determine the constitutional validity of the acts of legislature and other branches of government. (Mirasol notes.) C. Constitution Defined It is "a law for the government, safeguarding individual rights, set down in writing." (Hamilton.) Such a view found acceptance in the work of Tanada and Fernando: "It may be more specifically defined as a written instrument organizing the government, distributing its powers and safeguarding the rights of the People." From Malcolm and Laurel: "It is the written instrument by which the fundamental powers of government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic." According to Schwartz, "a constitution is seen as an organic instrument, under which governmental powers are both conferred and circumscribed. Such stress upon both grant and limitation of authority is fundamental in American theory. 'The office and purpose of the constitution is to shape and fix the limits of governmental activity.'" (Fernando, The Constitution of the Philippines, 20-21, 2nd ed., 1977.)

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Types of Constitutions Classification of Constitutions: Constitutions are classified as follows: (1) written and unwritten, and (2) rigid and flexible. Written and Unwritten (Classification as to when it is adopted.) (a) A written constitution is one the provisions of w/c have been reduced to writing and embodied in one or more instruments at a particular time. The US Constitution is a classical example of a written constitution. Written constitutions have been also called conventional or enacted, bec. they are given definite form by a steadily constituted body, the constitutional convention, at a particular time. Written constitutions are either democratic or monarchical. Democratic constitutions essentially spring from the authority of the people. Monarchical constitutions are those granted by a monarch as an act of grace to his subjects. This class of constitutions are also called octroyed constitutions. They belong to the past age. (b) An unwritten constitution is one w/c has not been committed to writing at any specific time but is the accumulated product of gradual political and legal development. The English Constitution is the modern example of this class. Unwritten constitutions have been known also as cumulative or evolved, bec. they are not formulated at any definite time but are rather the outcome of a political evolutionary process. Flexible and Rigid Constitutions. (Classification according to amendment process.) The classification of constitutions into written and unwritten has been considered unscientific and inaccurate bec. no written constitution, after having been applied for a considerable period, can remain substantially unchanged in its original condition other than by formal amendments. xxx. To classify constitutions into rigid and flexible is to use a basis that has to do more w/ their nature rather than their mere form. Rigid.-- A constitution is classified as rigid when it may not be amended except through a special process distinct from and more involved than the method of changing ordinary laws. It is supposed that by such a special procedure, the constitution is rendered difficult to change and thereby acquires a greater degree of stability. Flexible.-- A constitution is classified as flexible when it may be changed in the same manner and through the same body that enacts ordinary legislation. The British Constitution is flexible. A constitution's stability depends upon other factors than the mere rigidity or flexibility of the amending process, such as (1) the general temperament of the people and their leaders and (2) the degree of a nation's political maturity and social homogenity. (Sinco 68-70.) The Philippine Constitution is both written and rigid (See Art. XVII on the Amendment process).

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II. THE BACKGROUND OF THE PRESENT CONSTITUTION Historical Background of the 1987 Constitution The history of the 1987 Constitution began on 11 April 1899, the date when the Treaty of Paris between the United and Spain of 10 December 1898 became effective upon the exchange of instruments of ratification of both countries. But the sources of the 1987 Constitution are (i) McKinley's Instructions to the Second Philippine Commission; (ii) Spooner Amendment; (iii) Philippine Bill of 1902; (iv) Jones Law of 1916, otherwise known as the Philippine Autonomy Act; (v) 1935 Constitution; (vi) 1973 Constitution and (vi) Freedom Constitution of 1986 and its implementing orders. Treaty of Paris Under the Treaty of Paris, the Philippines was ceded by Spain to the United States. Spain relinquished its sovereignty over the Philippine Islands, and with this, all laws of a political nature were automatically abrogated. The Treaty provided that the civil and political status of all inhabitants of the islands was to be determined by the US Congress. The Philippines in turn, was not given the status of an "incorporated territory" (as to make it a candidate for statehood) and so ex proprio vigore, the US Constitution did not apply to the Philippines unless the US Congress expressly enacted its provisions. McKinley's Instructions President McKinley, legislating as Commander-in-Chief, issued on 7 April 1900 his "Letter of Instruction to the Second Philippine Commission " under Taft. It set up a "divided civil and military government" with the existing Military governor as the Executive, and a Philippine Commission, created on 1 September 1900, as the Legislative, both representing the US President as Commander-in-Chief. It also extended to the Philippines all the rights in the Bill of Rights of the US Federal Constitution, except the right to bear arms (because the country was in rebellion) and the right to a trial by jury (because the Americans distrusted the Filipinos capacity to be a just judge of his peers). The right to jury trial of an American charged with a crime in the Philippines was denied by the courts in US v Dorr, 2 Phil 332 (1903) by virtue of the Letter of Instruction. This was the first Organic Act (a law which establishes the structure and limitations of the government) of the Philippines. What it lacked, as a constitution, were the ratification by the people, and the right of amendment (which was reserved solely to the US President). The judiciary was subsequently established on 11 June 1901, with a Supreme Court, Courts of First Instance, and Justice of Peace Courts. Spooner Amendment PAGE 5


On 4 July 1901, the Spooner Amendment, which was actually a rider to the "Army and Navy Appropriations Act," changed the then "divided, military and civil government" into a fully civil government, under the US Congress. All acts of the Philippine Commission would now begin: "Be it enacted by the authority of the US government," and no longer by authority of the US President. Philippine Bill of 1902 The US Congress now in control of the Philippines, ratified all the organic acts of the President, in order to prevent disruption of government, and on 1 July 1900, passed the Philippine Bill of 1902, which was to be organic act of the Philippines from 1902 to 1906. The organic act introduced significant provisions to constitutional history. The Philippine Commission was the upper house. It was under the Governor-General who retained all the executive power, including the power to suspend the writ of habeas corpus upon recommendation of the Philippine Commission. It established an elective lower house called the Philippine Assembly, composed entirely of Filipinos. It called for the first election in the Philippines to fill up, the membership in the lower house, as soon as the Philippine insurrection stopped and there was a condition of general peace, except in the Moro and Non-Christian provinces. A census was taken and completed on 28 March 1903 and with a certification of peace and of Filipino acceptance of the US government made by the Philippine Commission on 29 March 1907, the election for the Philippine Assembly was conducted on 10 July 1907, with Osmena as speaker. The Bill also defined for the first time who the citizens of the Philippines were. They were all the inhabitants of the Philippine islands who were subjects of Spain as of 11 April 1899, who continued to reside therein, and all the children born subsequent thereto. This definition is still good law today. Jones Law On 29 August 1916, the US Congress passed the Jones Law, otherwise known as the Philippine Autonomy Act. It established a tripartite government with real separation of powers; this was the prototype of our present set-up. The executive power was in the hands of an American Governor-General, who was independent of the Legislature, and who was given the power to suspend the writ of habeas corpus and impose martial law without the recommendation of the Legislature. The Legislature was composed of the Senate and the House of Representatives, all composed of Filipinos. The judiciary continued to be made up of the Supreme Court, the CFIs and Justice of Peace Courts. Under this set-up, while the Filipinos has all the legislative power, the Americans had all the executive power and thus, also the control of the government. Thus, in the Board of Control PAGE 6


(National Coal Corporation) cases, the US Supreme Court ruled, despite the dissent of Holmes and Brandeis, that the President of the Senate and the Speaker of the House could not vote the stocks of the NCC and elect its directors because this was a political function. Only the Governor-General could vote the government shares, said the court. The definition of who were citizens of the Philippines first enunciated in the Philippine Bill of 1902, was carried over by the Jones Law. Tydings-McDuffie Law Although this was not an organic act, it is important in the constitutional history of the Philippines because it was to be the enabling statute, providing the mechanism whereby the constitution of an independent Philippines could be adopted. The law, upon its acceptance by the Senate and House of Representatives of the Philippines, provided for (i) the calling of a Constitutional Convention to draft a Constitution for the Philippines, (ii) the adoption of a Constitution that established a republican government, with a Bill of Rights, and a separation of church and state, (iii) the submission of the draft to the US President for certification that the Constitution was in conformity with the conditions set by the Tydings-McDuffie Law, and (iv) its ratification by the people in a plebiscite. Complete independence was to take place ten (10) years after its effectivity. 1935 Constitution Accordingly, on 30 July 1934, an election was held to choose the delegates to the Constitutional Convention. Claro M. Recto was elected President of the Convention. On 8 February 1935, the Concon approved the draft. On 23 March 1935, the draft was certified by the President, Franklin Delano Roosevelt as conforming to the Tydings-McDuffie Law. On 14 May 1935, it was ratified by the people in a plebiscite, with the provisions on the qualifications of the President, Vice-President and members of Congress taking effect upon ratification. In September 1935, the first election under the 1935 Constitution was conducted with Manuel Luis Quezon as President and Sergio Osmena as Vice- President. On 15 November 1935, upon the inauguration of the Commonwealth, the 1935 Constitution took effect. This Constitution was to serve as the charter of the Commonwealth, and upon withdrawal of US sovereignty, of the Republic. The Constitution provides for a tripartite government, with the executive lodged in the President who had a six-year term, the legislative in a unicameral National Assembly, and the judiciary in a Supreme Court, CFIs and Justice of Peace Courts as before. In 1940, it was amended to provide for (a) a bicameral Congress with a Senate and a House of Representatives; (b) a term of four years for the President, but with re-election and (c) the establishment of an independent constitutional body known as the Commission on Elections. War ensued, and the Philippines was so devastated that the declaration of its independence, due 15 November 1945 had to be postponed. At any rate, on 23 April 1946, the

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election of the first officials of the Philippine Republic was held, and on 4 July 1946, the Republic was inaugurated and the Philippines became "politically" independent of the US. Theoretically, to an extent that sovereignty is never granted to a people but is earned by them as they assert their political will, then it is a misnomer to say that 4 July 1946 was the day US granted independence to the Philippines. More appropriately, it was the day when the US withdrew its sovereignty over the Philippines, thus giving the Filipino people an occasion to assert their own independence. But not "economically". On 30 April 1946, one week after the election, the US Congress passed the Bell Trade Act which would grant Philippine prime exports entry to the US free of customs duties from 1946 to 1954, and a gradual increase in duties from 1954 to 1974 (LaurelLangley agreement), provided that the Philippines would grant US citizens and corporations the same privileges, and in addition, the right to explore natural resources of the Philippines in parity with the Filipinos, and to operate public utilities. This must be accepted by Congress, embodied in an Executive Agreement, and reflected as an amendment in the Constitution. The Senate approval of this bill gave rise to the case of Vera v Avelino, 77 Phil 192 (1946). The Senate then had 11 Nacionalistas and 13 Liberals. Three Nacionalista Senatorselect (Vera, Diokno and Romero), known to be against the Bell Trade Act, were prevented by the rest of the Senate, in what is known as "exclusion proceedings," on grounds that their elections were marred with fraud. The political motivation was clear but the SC was conned into lifting the injunction it issued for the withholding of the suspension, because of the unfulfilled promise that the Senate would not carry out the suspension. With the balance of power offset, the Bell Trade Act was passed. Subsequently, the SC had to dismiss the petition on the ground that the principle of separation of powers, it could not order a co-equal branch to reinstate a member. The Senate authorized President Roxas to enter into an Executive Agreement, which he did on 3 July 1946, the eve of the declaration of Philippine Independence. Then came the amendment of the Constitution in order to include the Parity Rights Agreement, which gave rise to the case of Mabanag v Lopez Vito, 78 Phil 1 (1947). Under the Amendatory Provisions of the 1935 Constitution, Congress, acting as constituent body, needed 3/4 vote to propose an amendment to the Constitution. But with the three Senators still suspended, only the 21 remaining were used as the basis for computing the 3/4 requirement. When this was raised in court, it begged off from ruling on the ground that it was a political question. It also used the Enrolled Bill Theory. So with the amendment proposed, it was subsequently ratified on 5 March 1947. The third time the Constitution was amended (1940, 1947) was in 1967. A Resolution of both houses provided for (a) the amendment of the Constitution by a Convention, (b) the increase of seats in the House of Representatives to make the Concon sufficiently representative, and (c) allowing members of the House as delegates without forfeiting their seats. The first was approved, the second and third were rejected. This became the subject matter of Gonzales v COMELEC.

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Election of delegates to the Concon took place on 10 November 1970. Then the ConCon met on 1 June 1971. Before it finished its work, it came up with a resolution calling for an amendment to the 1935 Constitution reducing the voting age from 21 to 18, so that a wider base could vote in the ratification of the Constitution then being drafted. A plebiscite was set by the COMELEC for 8 November 1971 but this was enjoined by the SC in the case of Tolentino v COMELEC, the court ruling that a piece-meal amendment was not allowed by the 1935 Constitution since it provided that the amendments were to be ratified at "an election" which meant only one election. The Court upheld its jurisdiction over the ConCon by arguing that since the Concon derived its power from the Constitution, it was thus limited by the Constitution. But it was subsequently overtaken by Martial Law. On 30 November 1972, the Convention submitted its "draft" to the President, who called on a plebiscite to ratify the Constitution. This was questioned in the case of Planas v COMELEC, 49 SCRA 105 (1973) on the ground that there can be no freedom of expression under Martial Law. But the case was rendered moot and academic when the President cancelled the plebiscite and instead held a citizens' assembly on 10 to 15 January, 1973. On 17 January 1973, the President came up with a proclamation that the Constitution had come to full force and effect after its overwhelming ratification by the people in a viva voce vote.

1973 Constitution The validity of the ratification process was questioned in the case of Javellana v Executive Secretary, 50 SCRA 30 (1973) but the failure of the SC to come up with the necessary votes to declare the act as unconstitutional forced it into the conclusion that "there are no further obstacles to considering the constitution in force and effect." The 1973 Constitution was amended four times. The first, in 1976, gave the President, legislative powers even if the Interim Batasang Pambansa was already operating. The second, in 1980 was not significant. It merely raised the retirement of justices of the SC from 65 to 70 as to keep Fernando for five more years. The third, in 1980 changed the form of government from Parliamentary to Presidential. The fourth, in 1984, responded to the succession problem by providing for a VicePresident. The start of the end of the Marcos years, of course, could be treated as early as 21 August 1983. But its immediate precursor was the Snap Election which the President was forced to call and set on 7 February 1986 to respond to the clamor for popular mandate. The validity of the "Snap Election Law" called by the Batasang Pambansa was raised in the case of Philippine Bar Association v COMELEC, 140 SCRA 455 (1985). The issue was raised because of the conditional letter of resignation sent by Mr. Marcos to the Batasan, making PAGE 9


his resignation effective only upon (i) the holding of a Presidential election, (ii) the proclamation of a winner, (iii) the assumption into office by the winning candidate. It was contended that a conditional resignation was not allowed under the 1973 Constitution, for it did not create a vacancy, and without a vacancy, there was no reason to call for an election. But the SC failed to issue a preliminary injunction to enjoin the COMELEC from preparing for the election, thus making "the initially legal question into a political one." In the meantime, the political parties have started campaigning and the people were so involved in the election that to stop it on legal grounds would frustrate their very will. And so, failing to come up with the majority to hold the Snap Election Law unconstitutional, the SC could not issue the injunction prayed for. The election went ahead. The rest is history. The results of the election were proclaimed by the Batasan, naming Marcos and Tolentino as the winners. But the February 2 to 25, 1986, EDSA revolution took place. On 25 February, Marcos was proclaimed in Malacanang by Makasiar, while Aquino was proclaimed in Club Filipino by Teehankee. Later that evening, Marcos fled to Hawaii.

A. The February 1986 Revolution and the Proclamation of Provisional Constitution. Freedom Constitution What was the basis of the Aquino government? Did it assume power pursuant to the 1973 Constitution, or was it a revolutionary government? Proclamation No. 1, 25 February 1986 (Provisional government).-- But Proclamation No. 3 which announced the Provisional Constitution, seemed to suggest that it was a revolutionary government, since in one of its whereases it announced that the "new government was installed, through a direct exercise of the power of the Filipino people assisted by units of the New Armed Forces," referring to the EDSA revolution. The better view is the latter view. The Aquino government was not an offshoot of the 1973 Constitution for under that Constitution, a procedure was given for the election of the President --- proclamation by the Batasan --- and the candidate Batasan proclaimed was Marcos. Lawyers League v Aquino (GR Nos. 73748, 73972 & 73990, May 22, 1986).-- This view was affirmed in Lawyers League v Aquino where the legitimacy of the Aquino government is questioned on the ground that it was not established pursuant to the 1973 Constitution. The SC ruled that petitioners had no personality to sue and their petition states no cause of action. "For the legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made the judgment; they have accepted the government of President Aquino which is in effective control of the entire country so that it is not merely a de facto government but in fact and law a de jure government. Moreover, the community of nations has recognized the legitimacy of the present government. All the eleven members of this Court as reorganized, have sworn to uphold the fundamental law of the Republic under her government."

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The Aquino government was a result of a "direct state action." It was not as if a small group revolted and succeeded in wresting power in the end. Rather, the entire state revolted and overthrew the government, so that right from the beginning, the installation was already lawful and the government was at all times de jure. In this regard, it must be noted that there is no such thing as a constitutional right of revolution. A revolution, from the point of view of a State, is always lawful since a State can never go wrong; it can change its government in whatever way the sovereign sees fit. But this right of revolution, inherent in sovereignty, cannot be recognized in a Constitution, for this would be self-destructive. The nature of a Constitution is to set-up a government and provide for an orderly way to change this government. A revolution contradicts this nature. Proclamation No. 3, March 25, 1986 (Provisional Constitution).-- At any rate, the Provisional Constitution or Freedom Constitution was adopted on 25 March 1986 through Proclamation No. 3. It abrogated the legislative provisions of the 1973 Constitution, modified the provisions regarding the executive department, and totally reorganized the government. (Its use of the 1973 Constitution, however, is not be to construed that it was a continuation thereof.) Then it provided for the calling of a Constitutional Commission, composed of 30 to 50 members appointed by the President within 60 days. (In our history, all major constitutions --- Malolos, 1935, 1971 --- were drafted by elected delegates.) The President appointed 48 Commissioners, who worked on the Constitution from 1 June to 15 October 1986. The draft was submitted to the people in a referendum on 2 February 1987. On 11 February 1987, the President, through Proclamation No. 58, announced its overwhelming ratification by the people and that, therefore, it had come into force and effect. In Re: Saturnino Bermudez (145 SCRA 160)(1960).-- In the case of In Re: Saturnino Bermudez , the SC held, quoting the previous case of Lawyers League v Aquino, that: [T]he legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made the judgment; they have accepted the government of President Aquino which is in effective control of the entire country so that it is not merely a de facto government but in fact and law a de jure government. Moreover, the community of nations has recognized the legitimacy of the present government. All the eleven members of this Court as reorganized, have sworn to uphold the fundamental law of the Republic under her government.

B. Adoption and Effectivity of the present Constitution Provisional Constitution, Art. V. ARTICLE V ADOPTION OF A NEW CONSTITUTION Section 1. Within sixty days from the date of this Proclamation, a Commission shall be appointed by the President to draft a New Constitution. The Commission shall be composed of not

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less than thirty nor more than fifty natural born citizens of the Philippines, of recognized probity, known for their independence, nationalism and patriotism. They shall be chosen by the President after consultation with various sectors of society. Section 2. The Commission shall complete its work within as short a period as may be consistent with the need both to hasten the return of normal constitutional government and to drat a document truly reflective of the ideals and aspirations of the Filipino people. Section 3. The Commission shall conduct public hearings to insure that the people will have adequate participation in the formulation of the New Constitution. Section 4. The plenary sessions of the Commission shall be public and recorded. Section 5. The New Constitution shall be presented by the Commission to the President who shall fix the date for the holding of a plebiscite. It shall become valid and effective upon ratification by a majority of the votes cast in such plebiscite which shall be held within a period of 60 days following its submission to the President.

1987 Constitution, Art. XVIII, sec. 27. Art. XVIII, Sec. 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede the all previous Constitutions. The foregoing proposed Constitution of the Republic of the Philippines was approved by the Constitutional Commission of 1986 on the twelfth day of October 1986, and accordingly signed on the fifteenth day of October 1986 at the Plenary Hall, National Government Center, Quezon City, by the Commissioners whose signatures are hereunder affixed. Proclamation No. 58 (Proclaiming the Ratification of the 1987 Constitution), February 11, 1987 De Leon v Esguerra, 153 SCRA 602 (1987.) The 1987 Constitution took effect on 2 February 1987. F:

The case arose due to Art. III, Sec. 2 of Proclamation No. 3, which provided that: "All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within a period of one year from 25 February 1986." De Leon was a barrio captain in Taytay, Rizal. On 9 February 1987, he was replaced by the MLG (DLG). So the question arose as to when the 1987 Constitution took effect. If it took effect on 2 February, the replacement was no longer valid, since Proclamation No. 3 would have been superseded. But if it took effect on 11 February (the date of proclamation), the replacement would have been valid.

The SC, consulting the proceedings of the Concom, ruled that the intent of the framers of the Constitution was to make it effective on the date of its ratification. Art. XVIII, Sec. 27 clearly provided that "this Constitution shall take effect immediately upon

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its ratification by a majority of the votes cast in the plebiscite." The 1987 Constitution was ratified in a plebiscite on Feb. 2, 1987, superseding the Provisional Constitution. Consequently, after that date, respondent OIC Governor could not designate respondents to the elective positions occupied by petitioners. Petitioners must now be held to have acquired security of tenure. The dissenting opinion pointed out that by contemporaneous construction, the 1973 Constitution had a similar provision as the present one in issue (Art. XVII, Sec. 16, This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite), and yet it took effect on the day of the proclamation. The 1981 and 1984 amendments contained similar provisions (valid when approved), and yet the practice has always been to make the date of proclamation, the date of effectivity. Furthermore, if the effectivity was 2 February, then the appointments made by the President to CA posts after that date would be invalid for they were not submitted to the Judicial and Bar Council. On this point, however, Teehankee noted that the President issued the appointments in the end of January. A concurring opinion noted the debate between Davide (date of proclamation) and Bernas (date of ratification), and Davide's comment that he was giving up due to tyranny of numbers. VV: The SC was correct for that was the clear intent of the framers. The ones to be blamed are the framers themselves. Effectivity should really be the date of proclamation. One, how can one can be expected to comply with the provisions of the Constitution when, prior to its proclamation, there is no way to determine if it has been ratified or not? Should the Director of Prison continue the scheduled electrocution of a death row convict on 3 February in view of the abolition of capital punishment in the 1987 Constitution; if he does, he would technically be violating the constitution under the above holding. If he does not, he would be in dereliction of duty, in case the constitution is not ratified. Two, no analogy can be made between the election to office of a public officer who is deemed elected on the day of election), and the effectivity of the constitution, because a public officer, though deemed elected, does not assume office on the day of his election, not even on the day of his proclamation. III. THE SUPREMACY OF THE CONSTITUTION AND THE ROLE OF THE COURTS A. Theory of Judicial Review Angara v Electoral Commission, 63 Phil 139 (1936). In 1935, the National Assembly

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adopted a resolution that "all members- elect, with no election protest filed on or before 3 December 1935 are deemed elected." The Electoral Commission, a constitutional body, on the other hand set the 9 December 1935 as the deadline for the filing of election protest. Ynsua, who lost to Angara, filed a motion of protest (complaint) on 8 December 1935. This was entertained by the Electoral Commission. Angara contended that the deadline set by the National Assembly was controlling. Who prevailed? The SC, through J. Laurel, ruled for Ynsua, thereby upholding the authority of the Electoral Commission, in view of the constitutional provision granting the Electoral Commission jurisdiction over election protests. In justifying the power of judicial review, J. Laurel pointed out that when the court allocated constitutional boundaries, it neither asserts supremacy, nor annuls the acts of the legislature. It simply carries out the obligations imposed upon it by the constitution to determine conflicting claims and to establish for the parties the rights which the constitution grants to them. Conditions for the Exercise of Judicial Review In People v Vera, 66 Phil 56 (1937), J. Laurel laid down the doctrine that judicial review can only be exercised in an actual case and controversy. This means (1) a party with a personal and substantial interest, (2) an appropriate case, (3) a constitutional question raised at the earliest possible time, and (4) a constitutional question that is the very lis mota of the case, i.e. an unavoidable question. Seven (7) rules of avoidance of constitutional questions (J. Brandeis) : In the following cases, the court must refrain from passing on the issue of constitutionality or from exercising judicial review: 1. Friendly, non-adversary proceedings. (no vital conflict) 2. Anticipation of a question of constitutional law in advance of the necessity of deciding it. (premature case) 3. Formulation of a rule broader than is required by the precise facts to which it is applied. 4. Existence of other grounds upon which the case may be disposed of (not the very lis mota) 5. A complaint made by one who fails to show injury as to its operation. (no standing) 6. Instance of one who has availed himself of its benefit. 7. Possibility of a construction of the statute which can avoid the resolution of the constitutional question. Policy of strict necessity (Rescue Army case)

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The court must, as much possible, refrain from exercising judicial review unless all the requirements for its exercise are fulfilled because of : 1. The danger of exercising the function, in view of possible consequences for others stemming also from constitutional roots. 2. Comparative finality of those consequences. 3. Consideration due to the judgment of the other repositories of constitutional power concerning the scope of their authorities. 4. Necessity for each to keep within its own power. 5. Inherent limitations of the judicial process - its largely negative character, and its limited resources for enforcement. 6. Withal in paramount importance of constitutional adjudication. Thus, the following must be avoided: (i) political questions, (ii) advisory opinions, (iii) moot and academic issues, and (iv) no standing. Political Question An issue is a political question when it does not deal with the interpretation of a law and its application to a case, but with the very wisdom of the law itself. When a judge attempts to resolve a political question, he is not exercising a judicial function, but is rather supplanting his conscience to that of the political branch of the government. Baker v. Carr, 369 US 186 (1962) has attempted to formulate some guidelines for determining whether a question is political or not. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unequestioning adherence to a political decision already made, or the potentiality of embarrassment from multafarious pronouncements by various departments on one question.

Advisory Opinion A case becomes an advisory opinion when there is no actual case and controversy that demands constitutional construction for its resolution. This may take the form of declaratory relief. It is not wise for the court to engage in an advisory opinion because: a) This only leads to dialectics, to abstract legal arguments and sterile conclusions (Laurel quoting Frankfurter) b) The judicial function is impoverished since it thrives on facts that draw out the meaning of the law.

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Mootness A case becomes moot when there are facts, injuries and heated arguments but for some reason the legal problem has become stale. When a case is moot and academic, it ceases to be a case and controversy. Any decision reached by the court would not be conclusive on the parties.

act.

Exceptions to mootness: 1) If the question is capable of repetition and evasive of review. 2) If there exits a mere possibility of collateral legal consequences if the court does not

3) Voluntary cessation from the wrongful act by the defendant, if he is free to return to his old ways.

Ripeness A constitutional question may come to the court either too early or prematurely, so that it is still abstract (advisory opinion), or too late, so that the court's decision would no longer affect the parties (mootness). The court must resolve constitutional issues only when they come to it at the right time (ripeness). No Standing A party has a standing in a case if his interest is such that he stands to be benefited if the case is resolved in his favor, and he stand to be really injured if it is decided against him. Standing is established by two nexuses: the party's status and the type of legislative act being questioned, or his status and the precise nature of the constitutional infringement. The test of standing is whether the party has alleged such a personal stake in the outcome of the controversy as to assure such concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions (Baker v Carr, supra.) A person has standing to challenge the governmental act only if he has a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result ot its enforcement. (People v. Vera, infra.) Philippine Practice In re Saturnina Bermudez (145 SCRA 160, 1986) The action was for declaratory relief to interpret Section 5 of Art. XVIII, which provides that: The six year term of the incumbent President and Vice-President elected in the 7 February 1986 election, is for purposes of synchronization of election, hereby extended to noon of 30 June 1991. The question was who the "incumbent President" referred to in said provision was --whether Aquino (the one in office) or Marcos (the one proclaimed by the Batasan). The confusion arose because in Proclamation No. 3, Pres. Aquino referred to the "direct exercise of the power of the Filipino people assisted by the units of the new AFP" as the cause for the PAGE 16


installation of the new government. If President Aquino was not elected but came into office as a result of the EDSA Revolution, the she would not be the "incumbent" who was elected in the February 7 election, referred to in the provision. The SC ruled that (a) the petitioner had no standing, (b) the SC had no jurisdiction over petitions for declaratory relief, c) the suit was against the President who cannot be sued, d) the petitioner had no cause of action because, reiterating the decision in Lawyer's League for a Better Philippines v Aquino, the legitimacy of the Aquino government is not a justiciable matter but is a political question. And yet, the SC ruled that the "incumbent" referred to was President Aquino who was in effective control of the country and had been recognized by the rest of the world. (The Court, disregarding the limits of judicial review, felt compelled to render a decision on the legitimacy of the Aquino government so as to avoid any doubt as to its very own legitimacy. It must be noted, though that his case is the entitlement of an actual case and controversy.) Dumlao v COMELEC (95 SCRA 392) Section 4 of BP 52 provided that any retired elective local official who had received retirement pay to which he was entitled under the law and who have been 65 years old at the commencement of the term of office to which he sought to be elected, was not qualified to run for the same elective local office from which he had retired. Dumlao filed for prohibition to enjoin the enforcement of the law, claiming that this was directed at him as former governor of Nueva Vizcaya. The SC held that (a) he had no standing, since he had not been injured by the operation of the law, no petition for his disqualification having been filed and (b) the action was a request for advisory opinion. And yet, the SC upheld the validity "because of paramount public interest", declaring that the legislative purpose of infusing younger blood in local government was valid. Adapted. Igot v COMELEC (95 SCRA 392) Sec. 4 of BP 52 also provided in part that any person convicted of subversion, insurrection or rebellion, or similar offenses was disqualified from running for any local position, and the filing of charges for such crimes before a civil or military court after preliminary investigation was prima facie evidence of such fact. Igot sought to question the validity of this provision. The SC held that he had no standing because (a) he had never been convicted nor charged of any these crimes, (b) he had not been disqualified from being a candidate, (c) he had no personal nor substantial interest at stake, and (d) he could not sue as taxpayer since the statute did not directly involve the disbursement of public funds. And yet, although abstaining from ruling on the first part of the provision, the SC held that the second part regarding the presumption of guilt was unconstitutional for violating the presumption of innocence. PAGE 17


Political Questions In PBA v COMELEC, 140 SCRA 455, we see a reversal of judicial review. The case was clearly a justiciable controversy. Is the resignation submitted by Marcos, which was conditioned on the election, proclamation and assumption into office by the elected President, a valid resignation as to authorize the Batasan to pass a Snap Election Law? The Court could have validly issued an injunction to stop the COMELEC from proceeding with the preparations for the election. But it did not, citing its delay in deciding the case and the sentiments of the people that developed in the meantime as reason for its inaction. According to the court, what at first was a legal question became a political question because it was overtaken by events. VV: A Court which does not issue an injunction to enjoin an official act when it could have issued one is actually deciding the case in favor of the validity of the act. Failure to issue an injunction is as much an exercise of judicial review. In Romulo v Yniguez, infra, we see another trend of judicial review. What seems like a legal question when viewed in isolation (namely, whether the rules of the Batasan enabling it to shelf a complaint for impeachment against the President is constitutional.) is really a political question when viewed in a broader context (i.e., that the case was filed against the Speaker of a co-equal branch to compel him by mandamus to recall the complaint from the archive, and that the ultimate result of the case was to question the decision of the Batasan to shelve the case, a matter, that is solely committed to that department.) Yet, despite the really political nature of the question, the SC passed on the validity of the rules to erase doubts that may still be entertained. C. Functions of Judicial Review 1. Checking - invalidating a law or an executive act that is found to be contrary to the Constitution. 2. Legitimating (legitimizing) - upholding the validity of the law which results from a mere dismissal of a case challenging the validity of that law. When the Court exercises this function, it uses the double negative by declaring that the law is "not unconstitutional". This is no mere semantics. The Court cannot declare the law constitutional for it enjoys the presumption of constitutionality, so that a declaration to that effect by the court would not make it more constitutional. On the other hand, anyone who challenges the validity of a law has the burden of proof to show its invalidity. Declaring that the law is not unconstitutional is tantamount to saying that the challenger has not met the burden required.

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Legitimating and Checking Aspects of Judicial Review. Dismissal of Challenge to a Law's Validity Legitimizes it. In Occena v COMELEC, 104 SCRA 1 (1981), which sought an injunction to prohibit the COMELEC from proceeding with the plebiscite for the proposed 1981 amendments, and in Mitra v COMELEC, 104 SCRA 59 (1981), which sought a mandamus to compel the COMELEC to hold a plebiscite to ratify the 1973 Constitution, both prayers based on the premise that the 1973 Constitution had not been ratified, the SC held that the failure of the Court in the Javellana v Executive Secretary case to muster the votes required to declare the 1973 Constitution as being invalidly ratified, which resulted in the dismissal of the suit questioning the validity of the ratification of the Constitution, in effect legitimated the ratification. In Occena, the Court ruled that: "The Supreme Court can check as well as legitimate. In the latter case, there is an affirmation that what was done cannot be stigmatized as constitutionally deficient. The mere dismissal of a suit of this character suffices. That is the meaning of the concluding statement in the Javellana resolution. Since then, the Court has invariably applied the present Constitution."

3. Symbolic - to educate the bench and bar as to the controlling principles and concepts on matters of great public importance. Symbolic Function of Supreme Court to Give Guidelines to Bench and Bar in Cases which are Moot and Academic. In Salonga v Cruz-Pano, 134 SCRA 438 (1985), the case against petitioner for subversion which was filed by the fiscal on the basis of flimsy testimony given by Victor Lovely was already dismissed without prejudice by the fiscal (upon anticipation of adverse ruling). And yet, the SC noting that as the fiscal said the dismissal of the charges was without prejudice to the filing of new ones for the same acts because the petitioner has not been arraigned and double jeopardy does not apply, the case is not entirely moot, decided to perform its duty to "formulate guiding and controlling constitutional principles, precepts and doctrines or rules" for the guidance of the bar and bench. It thus, went on to lecture about its antiquated understanding of the inciting test, and how it could not be proved by a mere photograph. In Javier v COMELEC, 144 SCRA 194 (1986), the case was already mooted not only by the death of Evelio Javier, but also by the abolition of Batasan, the Antique seat which he and Pacificador were contesting for. And yet the SC, claiming to be "not only the highest arbiter of legal questions but also the conscience of the government," decided the case anyway "for the guidance of and as a restraint upon the future. The citizen comes to us in quest of law but we must also give him justice. The 2 are not always the same. There are times when we cannot grant the latter bec. the issue has been settled and the decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future." In Demeteria v Alba, 148 SCRA 208, the SC struck down Sec. 44 of PD 1177, authorizing the President to transfer funds from one department to another, on the ground that it

PAGE 19


overextended the privilege granted under Art. VIII, sec. 16(5) of the 1973 Constitution, even if such provision was already abrogated by the Freedom Constitution. Then, citing the Javier case on the need "not only for the vindication of an outraged right, though gone, but also for the guidance of and as a restraint upon the future," it lectured on how this law would open the floodgates for the enactment of unfunded appropriations, uncontrolled executive expenditures, diffusion of accountability for budgetary performance, and entrenchment of the pork barrel system, and on how this would create temptations for misappropriation and embezzlement. All courts can exercise judicial review Art. VIII, Sec. 5(2). The Supreme Court shall have the following powers: xxx (2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in : (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved. The review power of the SC implies that it has appellate jurisdiction over final judgments of lower courts on cases with constitutional issues. If so, inferior courts have original jurisdiction over constitutional cases although they decide the case only at first instance, their decision being always reviewable by the SC. Thus, for instance an RTC can rule on the constitutionality of the Anti-Subversion Law. In J.M. Tuason & Co. v CA, 3 SCRA 696 (1961), RA 2616, which provided for the expropriation of the Tatalon Estate, was claimed to be unconstitutional. This issue said the SC, could be resolved by the CFI in the ejectment case filed before it by the evictees of the estate, since the 1935 Constitution contemplated that inferior courts should have jurisdiction in cases involving constitutionality issues, that it spoke of appellate review of "final judgment of inferior courts" in cases where such constitutionality happens to be in issue. The 2/3 vote of the SC required by Sec. 10 of Art. VII restricted the decisions of that Court only in the exercise of its appellate jurisdiction. In Ynot v IAC, 148 SCRA 659, the SC reversed the RTC's holding that it had no authority to rule on the validity of EO 626-A, banning the transporting of carabaos from one province to another. The Court pointed out, that since it has jurisdiction to review, revise, reverse, modify or affirm final judgments of lower courts in constitutional cases, then the lower courts can pass upon the validity of a statute in the first instance. power.

The SC then struck down the law for being arbitrary and for unduly delegating legislative

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C. Effect of a Declaration of Unconstitutionality Civil Code, Art. 7. Article 7. xxx When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. xxx The effect of a declaration that a law is unconstitutional is to make the law either void or voidable. It is void if on its face, it does not enjoy any presumption of validity. As such, it produces no effect whatsoever, creates no right or office, it imposes no duty. Whatever penalty was paid during the period of its operation must be remitted. An example is BP 52 in Igot v COMELEC case, supra, providing that anyone who has been charged of rebellion, etc. is prima facie presumed to be disqualified from running for a local post. On its face, it blatantly goes against the constitutional presumption of innocence. Another example is a law imposing prior restraint which is, according to Sullivan v Bantam Books, and US v New York Times, presumptively unconstitutional. But a law declared unconstitutional is only voidable if, on its face, it enjoys the presumption of validity. In this case, it becomes inoperative only upon the judicial declaration of its invalidity. And even so, the invalidation produces no retroactive effect, since it would be unjust to hold that the law did not produce any effect at all prior to its nullification. From the time the law was promulgated to the time it was declared invalid, people would have entered into various transactions and relations, expecting and in fact compelled to presume that the law is valid. Thus, to now hold that the law never produced any effect would penalize those who in faith believed the laws passed by their representatives to be in accordance with their solemn duty under the Constitution. As the court put it in Chicot County District v Baxter State Bank, the past cannot always be erased, so that statements of principle of absolute retroactivity is not acceptable in all cases. Said the court, "[T]he actual existence of a statute, prior to such determination, is an operative fact, and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects with respect to particular relations, individual and corporate, and particular conduct, private and official. xxx "

The case of Serrano de Agbayani v PNB, 38 SCRA 429 (1971) is in point.

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In 1939, Agbayani borrowed P450 from PNB secured by a realty mortgage. In 1944, the loan matured but PNB could not collect because it was at this time of the war. In 1945, Pres. Osmena issued the Debt Moratorium Law (EO #32), suspending the payment of loans for four years due to the ravages of war. In 1948, RA 342 extended the Debt Moratorium Law for another eight years (up to 1956). In 1953, however, the SC declared RA 342 as unconstitutional in the case of Rutter v Esteban. In 1959, PNB filed a suit for payment of the loan. Has the action prescribed? If we take the orthodox view, the action has prescribed, since the declaration of RA 342 as unconstitutional retroacted to 1945 when EO 32 was first issued. Between 1944 when the loan matured and 1959, when PNB collected the loan, 15 years had elapsed. [The orthodox view was announced by Mr. J. Field, in the case of Norton vs. Shelby County where the court held that: "xxx. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, inoperative, as if it had not been passed.]

But if we take the unorthodox view, as the SC did, the action could still prosper. The period from 1945 when the law was promulgated, to 1953 when it was declared unconstitutional should not be counted for the purpose of prescription since the Debt Moratorium Law was operative during this time. In effect, only 7 years had elapsed (1944-45, 1953-59). Indeed, it would be unjust to punish the creditor who could not collect prior to 1953 because the Debt Moratorium Law was effective, only to be told later that his respect for an apparently valid law made him lose his right to collect. Art. 7 of the Civil Code which provides that, "When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern." seems to be the orthodox view on the matter.

CONSTITUTIONAL LAW ________________ PART ONE THE PHILIPPINES AS A STATE I. State defined. PAGE 22


CIR v Campos Rueda, 42 SCRA 23 (1971). A State is a politically organized sovereign community, independent of outside control, bound by ties of nationhood, legally supreme within its territory, and acting through government functioning under a regime of law. A state is a community of persons, more or less numerous, permanently occupying a fixed territory and possessed of an independent government organized for political ends to which the great body of inhabitants render habitual obedience. (Prof. Samilo Barlongay quoting Garner, Introduction to Political Law, 41.) The elements of a state are : territory, people, sovereignty, government. People refers simply to the inhabitants of the State. State.

Territory is the fixed portion of the surface of the earth inhabited by the people of the

Government is the agency or instrumentality through which the will of the State is formulated, expressed and realized. Sovereignty is the supreme and uncontrollable power inherent in a State by which that State is governed. II. Components of the Philippine State A. Territory-- The Archipelago Concept Art. I. 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, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. In short, the Philippine territory consists of: (1) the Philippine archipelago, and (2) all territories over which the Philippines has sovereignty or jurisdiction. Of all the constitutions in the world, probably only the Philippines has a definition of its territory. At first glance, this is useless since one's territory under International Law is defined not by one's self-serving claims as to what it covers, but by international treaties and customs. Historically, however, this definition had a valid purpose. The 1935 Constitution needed to define Philippine territory in order to prevent its dismemberment by the US. Since, pursuant to the Tydings-McDuffie Act, the draft of the Constitution was to be submitted to the US President for approval, defining the national territory was a way of making the US acknowledge its extent and (to) respect its integrity. PAGE 23


The 1973 Constitution needed a definition of national territory in order to lay claim to Sabah. The claim was originally made by President Macapagal. Sabah was one of the territories belonging to the Philippines by historic right and legal title. President Marcos, in 1977 on the occasion of an ASEAN Ministerial Meeting in Singapore announced that the Philippines was willing to drop its claims over Sabah; nothing was done, however to amend the Constitution. The 1987 Constitution changed the phraseology into: "all other territories over which the Philippines has sovereignty or jurisdiction." In so changing, the rationale was to remove any irritant to our relations with the Malaysia brought about by the 1973 formulation but without renouncing the claim at the same time. Anyway, if the Philippines has the right over Sabah under International Law, it possesses that right with or without a Constitution, the Constitution being merely a municipal law which does not bind other states. The 1987 Constitution, therefore, contains a definition of national territory so as not to give an impression that the Philippines is abandoning its claim over Sabah. Removing such a definition would amount to dropping the claim altogether, a fact not for the Commissioners to decide. 1. The Philippine Archipelago a. Treaty limits 1. Treaty of Paris of 10 December 1898. Article 3 defines the metes and bounds of the archipelago by longitude and latitude, degrees and seconds. Technical descriptions are made of the scope of the archipelago as this may be found on the surface of the earth.

Spain.

2. Treaty of Washington of 7 November 1900 between the United States and Ceding Cagayan, Sibuto and Sulu. 3. Treaty of 2 January 1930 between the United States and Great Britain. Ceding the Turtle and Mangsee Islands. b. Method of determining the baselines 1. RA 3046 (17 June 1961)

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Determine appropriate points of the outermost Islands of the archipelago, then connect them by means of a straight line until all islands are surrounded or enclosed by the imaginary straight lines. "The baselines from which the territorial sea of the Philippines is determined consist of straight lines joining appropriate points of the outermost islands of the archipelago." (fifth whereas clause.) 2. RA 5446 (8 September 1968).-- Sec. 2 of the Act provides that the definition of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty. Uses of the baseline: a. Determine what is internal water (all waters inside the baseline, whether or not more than 12 miles from the shore). b. Determine the 200 mile EEZ. c. Archipelagic Doctrine The basic concept of an archipelago is that body of water studded with islands, or the islands surrounded with water, is viewed as a unity of islands and waters together forming one unit. This is in contrast to a continent which is a single mass of land. The main purpose of the archipelagic doctrine is to protect the territorial interests of an archipelago. If we follow the old rule of international law, it is possible that between islands, e.g. Bohol and Siquijor, due to the more than 24 mile distance between the 2 islands, there may be high seas. Thus, foreign vessels may just enter anytime at will, posing danger to the security of the State. According to the doctrine, even these bodies of water within the baseline, regardless of breadth, form part of the archipelago and are thus considered as internal waters. The archipelagic doctine has a two-fold purpose: (1) economic reasons; (2) national security. (Barlongay.) The archipelagic doctrine is the principle that it is an integrated unit; everything within it comprises the archipelago. (ibid.) The Constitutional provisions embodying this doctrine are : 1. "archipelago, with all the island and waters embraced therein" An archipelago is a body of water, studded with islands.

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2. "the waters around, between, and connecting the islands of the archipelago, regardless of the breadth and dimensions, form part of internal water" The following provisions are really superfluous: 1. "terrestrial, fluvial and aerial domains" (because land, water and air space already form part of an archipelago) 2. "territorial sea, seabed, subsoil, insular shelves, other submarine areas" "Territorial sea" means water outside the baseline extending up to 12 miles. "Internal water" refers to water within the baseline. "Insular shelf" means the land which is submerged under water which may extend beyond 12 miles as long as it is not more than 300 ft. deep. It is also known as intercontinental shelf. (Barlongay.) 2. Other territories over which the Philippines has sovereignty or jurisdiction PD 1596 (11 June 1978) Claims the Kalayaan Group of Islands as part of Philippine territory on the basis of historic rights and legal title. The claim was made "by reason of history, indispensable need, and effective occupation and control established in accordance with international law. xxx" 3. The territorial sea, the sea bed, the subsoil, the insular shelves and other submarine areas

4. Exclusive Economic Zone PD 1599 (11 June 1978). There is established an exclusive economic zone extending "to a distance of two hundred nautical miles beyond and from the baselines from which the territorial sea is measured. Provided, That, where the outer limits of the zone as thus determined overlap the exclusive economic zone of an adjacent or neighboring state, the common boundaries shall be determined by agreement with the state concerned or in accordance with pertinent generally recognized principles or international law on delimitation." (Sec. 1 thereof.) Other states shall enjoy in the exclusive economic zone freedoms with respect to navigations and overflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea relating to navigation and communications. (Sec. 4 thereof.)

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Purposes: 1. Sovereign rights to explore, exploit, conserve and manage the natural resources, living or non-living, renewable or non-renewable of the seabed, subsoil, and superadjacent waters. Economic exploitation and exploration of the resources of the zone such as the production of energy from the water, currents and winds. 2. Exclusive rights and jurisdiction with repect to the establishment and utilization of artificial islands, off-shore terminals, installations and structures; the preservation of the marine environment, including the prevention and control of pollution and scientific research. 3. Such other rights as are recognized by international law. Other states are prohibited from using the zone to: 1. Explore or exploit any resources; 2. Carry out any search, excavation or drilling operations; 3. Conduct any research; 4. Construct or operate any artificial island, off-shore terminal, installation, or other structure; 5. Perform any activity which is contrary to, or in derogation of, the sovereign rights and jurisdiction herein provided. Other states are allowed to use the zone for: 1. Navigation and overflight; 2. Laying of submarine cable and pipelines; 3. Other lawful uses related to navigation and communication. In case of overlapping of EEZs, the common boundaries are to be detemined by (i) agreement and (ii) international rules on delimitations. UN Convention on the Law of the Sea (30 April 1982.) The exclusive economic zone which shall not extend beyond 200 nautical miles from baselines from which the breadth of the territorial sea is measured, is recognized in the UNCLOS, of which the Philippines is a signatory. Its concept is that although it is not part of the territory, exclusive economic benefit is reserved for the country.

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B. People 1. Three meanings of the word "People" The word "people" is used in at least three senses in the Constitution: a. "People" as Inhabitants Art. XIII, Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. Art. II, Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. Art. III, Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, xxx Qua Chee Gan v Deportation Board, 9 SCRA 27 (1963), infra. The right of the an individual to be secure in his person is guaranteed by the Constitution. Under our Constitution, the same is declared a popular right of the people and, of course, indisputably applies to both citizens and foreigners in this country. b. People as Citizens Preamble. We, the sovereign Filipino people imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality and peace, do ordain and promulgate this Constitution. Art. II, Sec. 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. Art. II, Sec. 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all "citizens" may be required to render personal military or civil service.

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Art. III, Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertinent to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizens subject to limitations provided by law. c. People as Electors Art. VII, Sec. 4. The President and Vice-President shall be elected by direct vote of the people xxx. Art. XVI, Sec. 2. The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum. Art. XVIII, Sec. 25. After the expiration in 1991 of the Agreement between Republic of the Philippines and United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when Congress requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting party. 2. Citizenship a. Who are citizens Art. IV, Sec. 1. The following are citizens of the Philippines: 1) Those who are citizen of the Philippines at the time of the adoption of the Constitution; 2) Those whose fathers or mothers are citizens of the Philippines; 3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and 4) Those who are naturalized in accordance with law. These citizens are classifiable into (i) natural-born citizens (covering #'s 1, 2, and 3) and (ii) naturalized citizens (covering #4). b. Election of Philippine citizenship Com. Act No. 625 (June 7, 1941.) AN ACT PROVIDING THE MANNER IN WHICH THE OPTION TO ELECT PHILIPPINE CITIZENSHIP SHALL BE DECLARED BY A PERSON WHOSE MOTHER IS A FILIPINO CITIZEN

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Section 1. The option to elect Philippine citizenship in accordance with subsection (4), section 1, Article IV [1935 Constitution: Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship] shall be expressed in a statement to be signed and sworn to by the party concerned before any officer authorized to administer oaths, and shall be filed with the nearest civil registry. The said party shall accompany the aforesaid statement with the oath of allegiance to the Constitution and the Government of the Philippines. Section 2. If the party concerned is absent from the Philippines, he may make the statement herein authorized before any officer of the Government of the United States (now officials of Philippine Embassy or Consulate) authorized to administer oaths, and he shall forward such statement together with his oath of allegiance, to the Civil Registry of Manila.

Note : The right of election permitted under the 1987 Constitution is available only to those born to Filipino mothers under the 1935 Constitution who, had that charter not been changed, would have been able to elect Philippine citizenship upon attaining majority age. That right is retained for them under Article IV, Section 1 (3). Obviously, election is not necessary in the case of the child to a Filipino mother under the present constitution as she would be considered a Filipino citizen at birth.

Co v. Electoral Tribunal of the House of Representatives, 199 SCRA 692 (1991) F:

Petitioners Balingit and Co and private respondent Ong were among the candidates who vied for the position of representative in the 2nd legislative district of Northern Samar in the May 1987 election. Ong was proclaimed the winner. Petitioners filed election protest with the House of Representatives Electoral Tribunal against Ong on the ground that Ong is not a natural born citizen of the Philippines and not a resident of the 2nd district of Samar. HRET ruled in favor of Ong.

ISSUE: W/N Ong is a natural born citizen as to entitle him to run as congressman. RULING: YES, Ong is a natural born citizen. Under the 1987 Constitution: "Sec. 1. The ff. are citizens of the Phil.: xxx 3) Those born before 17 January 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and 4) Those who are naturalized in accordance with law. Sec. 2. Natural born citizens are those who are citizens of the Phil. from birth without having to perform any act to acquire or perfect their citizenship. Those who elect Phil. citizenship in accordance with par. 3, Sec. 1 hereof shall be deemed natural born citizens."

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The Court interprets Sec. 1 par. 3 as applying not only to those who elect Phil. citizenship after 2 February 1987 but also those who, having been born of Filipino mothers, elected citizenship before that date, as in the case of Ong. This ruling finds support in the deliberations of the Constitutional Commission. The provision was framed to correct the anomalous situation where one born of a Filipino father and an alien mother was automatically granted the status of a natural born citizen while one born of a Filipino mother and an alien father would still have to elect Phil. citizenship. If one so elected, under earlier laws, he was not conferred the status of a natural born citizen. There is no question that Ong's mother was a natural born Filipina at the time of her marriage with Jose Ong Chuan, a Chinese who filed an application for naturalization and was granted one. Crucial to this case is whether or not Ong elected or chose to be a Filipino citizen in order to come within the purview of the above quoted constitutional provision. To expect Ong to have formally or in writing elected citizenship when he came of age is to ask for the unnatural and unnecessary for the court is of the opinion that Ong was already a citizen. Not only was his mother a natural born citizen but his father had been naturalized when the respondent was only nine years old. He could not have divined when he came of age that in 1973 and 1987, the Constitution would be amended to require him to have filed a sworn statement in 1969 electing citizenship inspite of his already having been a citizen since 1957. An election of Philippine citizenship presupposes that the person electing is an alien or his status is doubtful because he is a national of two countries. There is no doubt in this case about Ong's Filipino nationality when he turned 21. There are cases which define "election" as both a formal and an informal process. In the case of In Re Mallare, the Court held that the exercise of the right of suffrage and the participation in election exercises constitute a positive act of election of Phil. citizenship. In this case, Ong did not merely exercise his right of suffrage. He has established his life here in the Phil. Ong was born in the rural town of Samar where there are no alien enclaves and no racial distinctions. The resp. has lived the life of a Filipino since birth. His father applied for naturalization when the child was still a small boy. Ong has worked in a sensitive position in a government agency. His profession (CPA) requires citizenship for taking the examinations and getting a license. He has participated in political exercises as a Filipino and has always considered himself a Filipino. There is nothing to indicate any tinge of alien-ness. The mass of voters of N. Samar are fully aware of Ong's parentage. They voted by overwhelming numbers to have him represent them in Congress. Because of his acts since childhood, they have considered him a Filipino. The HRET had an interesting view as to how Ong elected citizenship. It observed that "when Ong was only nine years old, his father became a naturalized Filipino. Sec. 15 of the Revised Naturalization Act squarely applies its benefit to him for he was then a minor residing in the country. Concededly, it was the law itself that had already elected Phil. citizenship for Ong by declaring him as such. The petitioners contend that Ong's father was not validly naturalized because of his premature taking of the oath of citizenship. The petitioners question the citizenship of Ong's PAGE 31


father through a collateral approach. This cannot be done. In our jurisdiction, an attack on a person's citizenship may only be done through a direct action for its nullity. MRM. xxx The filing of a sworn statement or formal declaration is a requirement for those who still have to elect citizenship. FOR THOSE ALREADY FILIPINOS when the time to elect came up, there are acts of deliberate choice which cannot be less binding. Any election of Philippine citizenship on the part of private respondent Ong would not only have been superfluous but would also have resulted in absurdity considering that it was the law itself that had already elected Philippine citizenship for him. Dissenting: Ong is not a natural-born Filipino citizen, he having been born a Chinese citizen by virtue of the Chinese citizenship of his father at the time of his birth. Under the 1935 Constitution which was in force at the time of Ong's birth, only those whose fathers were citizens of the Philippines were considered Filipino citizens. Those whose mothers were citizens of the Philippines had to elect Philippine citizenship upon reaching the age of majority, in order to be considered Filipino citizens. c. Natural-born citizens Art. IV, Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. The provision granting natural-born status even to those who were born of Filipino mothers before 17 January 1973 but elected Philippine citizenship after that date is meant to correct the anomalous situation where one born under similar circumstances but made the election before 17 January 1973 is granted the status of natural-born citizen by the 1973 Constitution. Simply because there was no definition of a natural-born citizen under the 1935 Constitution, that one who made the election after the effectivity of the 1973 Constitution was not conferred such status. The definition of a natural-born citizen under the 1973 Constitution, therefore made a child of Filipino mother and alien father's right depends on the fleeting accident of time, and resulted in two kinds of citizens made up of essentially the same members. At the same time, however, those who elected prior to 17 January 1973 could not be placed in the same footing as those who made the election after that date, because the former already had a "vested right" to their citizenship which could not be diminished by the 1973 Constitution. The remedy is to place the latter in the same footing as the former. Thus, under the 1987 Constitution, this accidental anomaly no longer exists. To illustrate: If X was born and elected before 17 January 1973, his status under the 1973 and 1987 Constitutions is that of a natural-born citizen, because although he had to perform an act to perfect his citizenship, he could not otherwise be classified since there was no definition of natural-born citizens in the 1935 Constitution.

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If X was born before and elected after 17 January 1973, whether before or after 2 February 1987, he was not a natural-born citizen under the 1973 Constitution. If not for the proviso in the 1987 Constitution, he would not have been deemed natural-born citizen either. In turn the definition of "natural-born citizen" as one who is such from (not at) birth (continuously up to the time his citizenship is questioned), was raised about the citizenship of Quezon, et. al., under the 1935 Constitution. Having the status of a natural-born citizen is important for the purpose of certain political and economic rights open only to such citizens. a) Political: Qualification to run for the following posts:

Who must be natural born citizens: (1) President Art. VII, Sec. 2 (2) Vice-President Art. VII, Sec. 3 (3) Members of Congress Art. VI, Secs. 3 and 6 (4) Justices of the SC and lower collegiate courts Art. VIII, Sec. 7(1) (5) Ombudsman and his deputies Art. XI, Sec. 8 (6) Constitutional Commissions Art. IX, B, Sec. 1 (1) Art. IX, C, Sec. 1(1) Art. IX, D, Sec. 1(1) (7) Members of the Central Monetary Authority Art, XII, Sec. 20 (8) Members of the CHR Art. XIII, Sec. 17(2) (Commission on Human Rights) Former natural-born citizens as transferees of private lands. b) Economic Art. XII, Sec. 8 xxx [A]natural-born citizen of the Philippines who has lost his Philippine citizenship may still be a transferee of private lands, subject to limitations provided by law. The following are natural-born citizens: 1) Those who are citizens of the Philippines at the time of the adoption of this Constitution (as of 2 February 1987). a) Those who are citizens under the Treaty of Paris Under Art. 9 of the Treaty of Paris, the civil and political status of the inhabitants of the Philippines was to be determined by the US Congress. PAGE 33


Pursuant to this provision in the treaty, the US Congress passed the Philippine Bill of 1 July 1902, Section 4 of which defined who the citizens of the Philippines were: "The inhabitants of the Philippines residing therein who were subjects of Spain on 11 April 1899, and continuing to reside therein, as well as their children born subsequent thereto." The cut-off date of 11 April 1899 was the date of "exchange of instruments of ratification" between the US Senate and Spain, or the date of ratification of the Treaty of Paris. The peninsulares were given a period of 18 months to indicate if they choose Filipino or Spanish citizenship, by filing their election with the CFI. This same provision was re-embodied in the Jones Law of 29 August 1916. b) Those declared citizens by judicial declaration applying the jus soli principle, before the 1957 case of Tio Tiam v Republic. In Roa v Commissioner of Customs (1912), during the regime of the Philippine Bill of 1902, Roa, who was born in the Philippines in 1889 by a Chinese father and Filipino mother, was declared by the court to be a citizen by jus soli. In Paz Chua v Secretary of Labor (1939), during the regime of the 1935 Constitution, Paz Chua who was born in Tarlac in 1914 of Chinese father and Filipino mother, was not declared a citizen. The SC held, without alluding to the Roa case, that the jus soli was never adopted in the Philippines. In Torres v Tan Chim (1940), Tan, who was in the Philippines in 1893 of Chinese father and Filipino mother, was declared a citizen. According to J. Laurel, the principle of jus soli still applied. The 1934 Concon was aware of the Roa ruling and did not intend to overrule it. In Tan Chong v Secretary of Labor and Lam Swee Sang v Secretary of Labor (1947), a case decided during the regime of the Republic upon a motion for reconsideration of a pre-war decision, Tan, who was born in 1915, and Lam, who was born in 1900, both in the Philippines, of Chinese father and Filipino mother, were not declared citizens. According to J. Padilla, the 1935 Constitution never adopted the jus soli principle; the mere fact of birth in the Philippines does not confer citizenship on a person. In Talaroc v Uy (1950), considering his service during the war and his having been elected mayor in Misamis, was declared by the SC a citizen "simply due to birth", without mention of jus soli or jus sanguinis. Finally, in Tio Tam v Republic (1957), the SC tried to resolve the flip-flop rulings by stating that we follow only jus sanguinis but that those who were judicially declared citizens on the basis of jus soli prior to this case would be considered citizens. This is the final word on the matter.

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It would be worthy to note that the flip-flop in decision can be explained by the date of birth of the applicant in each case. Those born before 11 April 1899 were the ones to whom jus soli was applied, for they very well were citizens under the Treaty of Paris. c) Those who were naturalized in accordance with law. (Act. No. 2927 of the Philippine Commission). d) Those who were citizens under the 1935 Constitution. 1) Those who were citizens at the time of adoption of the Constitution (15 November 1935, the date of the inauguration of the Commonwealth government). 2) Those born in the Philippines of foreign parent, who before the adoption of the Constitution had been elected to public office in the Philippines. This is the so-called "Caram rule in honor of Caram, a Syrian, elected to the 1934 Constitutional Convention. The rule was adopted to avoid the absurdity of the situation. The rule only applies to elective positions, not appointive ones. In Chiongbian v de Leon, the SC held that if one is considered a citizen under the Caram rule, his children would also be considered citizens, but under the third category (those whose fathers are citizens) 3) Those whose fathers are citizens of the Philippines. 4) Those whose mothers are citizens of the Philippines and, upon, reaching the age of majority, elected Philippine citizenship. It was only beginning 17 January 1973 when children of Filipino mothers became citizens without need of election. Children born before this date of Filipino mother and alien fathers had an "inchoate citizenship" until they elected upon reaching 21 years. 5) Those naturalized in accordance with law. e) Those who are citizens under the 1973 Constitution. 1) Those who are citizens as of 17 January 1973, the date of effectivity of the 1973 Constitution. 2) Those whose fathers or mothers are citizens of the Philippines. That is, those born on or after 17 January 1973 of Filipino father or Filipino mother. 3) Those who elected Philippine citizenship pursuant to the 1935 Constitution

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That is, those born before 17 January 1973 of Filipino mothers but reached the age of majority and elected Philippine citizenship on or after 17 January 1973. Note that if one was born, reached the age of majority and elected Philippine citizenship before 17 January 1973, then he would be a citizen under e-1 (those who are citizens at the adoption of the 1973 Constitution). On the other hand, if one was born, reached 21 years, but did not or failed to elect before 17 January 1973, then he lost his citizenship then. 4) Those who are naturalized in accordance with law. 2.) Those born of Filipino fathers or Filipino mothers (after 17 January 1973). 3.) Those born before 17 January 1973 of Filipino mothers who elect Philippine citizenship upon reaching the age of majority. This case arose under the 1935 Constitution, children of Filipino mothers did not automatically become citizens. They had an "inchoate citizenship" during their minority, and became full-pledged citizens only upon election at the age of majority. Beginning with the 1973 Constitution, however, children of Filipino mothers automatically became citizens. This provision then covers those children born, before the effectivity of the 1973 Constitution. By January 17, 1994, this provision would have no application anymore, since the last of those born before 17 January 1973 would have reached the age of majority by then. Case A: A Filipino woman married B, an American in 1961. The marriage made A an American citizen (which under CA 63, stripped her of her Philippine citizenship, the marriage having been celebrated before 17 January 1973). A and B lived in the US since then and in 1962, begot C, who was automatically an American citizen by jus soli and jus sanguinis. In 1983, when C turns 21, can he elect Philippine citizenship? Yes, according to obiters in Cu v Republic and Villahermosa v CID, in order to elect Philippine citizenship, at least for election purposes, it is enough that (1) the person's mother was a Filipino at the time of her marriage to the alien father, even if she subsequently lose her citizenship by virtue of the marriage and (2) the person be a child of that marriage, for him to elect Philippine citizenship. If C wants to run for Congress, is he considered a natural born Filipino? Under the 1973 Constitution, no. But under the 1987 Constitution, yes. Note that if he were born after 17 January 1973, the child would not even be a Filipino.

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d. Naturalized Citizens, Revised Naturalization Law (Com. Act No. 473, effective June 17, 1939.) 4.) Those who are naturalized in accordance with law. (namely CA 473, Revised Naturalization Law) (Art. IV, Sec.1 (4)) Who are qualified to be naturalized Qualifications (Sec. 2, CA 473) A. Age 1) He must not be less than 21 years old at the date of hearing. Barlongay: When the law uses the phase "age of majority," use 18 years old, but not when it uses the phrase "not less than 21 years old. B. Residence years.

2) He must have resided in the Philippines for a continuous period of not less than ten

C. Character 3.) He must be of good moral character and believes in the principles underlying the Philippine Constitution, and must have conducted himself in an irreproachable conduct during the entire period of his residence in the Philippines in his relation with the constituted government as well as with the community in which he is living. D. Property 4.) He must own real estate in the Philippines worth not less than P5,000 or must have some known lucrative trade, profession or lawful occupation. (Test: Can he support himself and his family?) E. Education 5.) Must be able to speak and write (not read and write) Filipino or English, and a principal dialect (as pro tanto modified by the 1987 Constitution, since the law itself spoke of English or Spanish, and a principal dialect). Thus, a deaf and mute is disqualified, Orestoff v Republic. Art. XIV, Sec. 7. For purposes of communication and instruction, the official languages of the Philippines are Filipino and, until otherwise provided by law, English. The regional languages are the auxiliary official languages in the regions and shall serve as auxiliary media of instruction therein. xxx PAGE 37


6.) He must have enrolled his minor children of school age in any of the public schools or private schools recognized by the Bureau of Private Schools of the Philippines, where Philippine history, government and civics are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him prior to the hearing of his petition for naturalization as Philippine citizen. When is the ten-year residence requirement reduced to five (5) years? Com. Act No. 473, sec. 3. Sec. 3. Special qualifications. The Ten years of continuous residence required under the second condition of the last preceding section shall be understood as reduced to five years for any petitioner having any of the following qualifications: (1) Having honorably held office under the Government of the Philippines or under that of any of the provinces, cities, municipalities, or political subdivisions. (which was allowed before by the 1935 Constitution, no distinction whether appointive or elective posts.) (2) Having established a new industry or introduced a useful invention in the Philippines. . (3) Being married to a Filipino woman

If it were an alien woman who married a Filipino man, she would only need an administrative proceeding for the cancellation of her Alien Certificate of Registration, upon proof of marriage and according to the holding in Moy Yam Lim, proof of non-disqualification. These are the only requirements because ipso facto, she became a Filipino herself by marriage. (4) Having been engaged as a teacher in the Philippines in a public or recognized private school not established for the exclusive instruction of children of persons of a particular nationality or race, in any of the branches of education or industry for a period of not less than two years. (5) Having been born in the Philippines.

Who are disqualified to be naturalized? CA 473, Sec. 4 The applicant must not only possess the qualifications, he must not have any of the disqualifications set by law. Section 4. Who are disqualified. The following cannot be naturalized as Philippine citizens: (a) Persons opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments; (b) Persons defending or teaching the necessity or propriety of violence, personal assault, or assassination for the success and predominance of their ideas; (c) Polygamists, or believers in the practice of polygamy; (d) Persons convicted of a crime involving moral turpitude.

(Moral turpitude involves dishonesty, depravity. A propensity to break the law, even just traffic laws, constitute moral depravity. While murder being a crime of passion does not involve moral turpitude, theft and estafa do.) (e) Persons suffering from mental alienation or incurable contagious disease;

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(f) Persons who, during the period of their residence in the Philippines, have not mingled socially with Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the Filipinos; (g) Citizens or subjects of nations with whom the Philippines is at war, during the period of such war; (h) Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof.

Declaration of Intention Com. Act No. 473, sec. 5. Sec. 5. Declaration of intention.-- One year prior to the filing of his petition for admission to Philippine citizenship, the applicant for Philippine citizenship shall file with the Office of the Solicitor-General, a declaration under oath that it is bona fide his intention to become a citizen of the Philippines. Such declaration shall set forth the name, age, occupation, personal description, place of birth, last foreign residence and allegiance, the date of arrival, the name of the vessel or aircraft, if any, in which he came to the Philippines, and the place of residence in the Philippines at the time of making the declaration. No declaration shall be valid until lawful entry for permanent residence has been established and a certificate showing the date, place, and manner of his arrival has been issued. The declarant must also state that he has enrolled his minor children, if any, in any of the public schools or private schools recognized by the Bureau of Private Schools of the Philippines, where Philippine history, government and civics are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him prior to the hearing of his petition for naturalization as Philippine citizen. Each declarant must furnish two photographs for himself. Section 6. Persons exempt from requirement to make a declaration of intention.-- Persons born in the Philippines and have received their primary and secondary education in public schools or those recognized by the Government and not limited to any race or nationality, and those who have resided continuously in the Philippines for a period of thirty years or more before filing their application, may be naturalized without having to make a declaration of intention upon complying with the other requirements of this Act. To such requirements shall be added that which establishes that the applicant has given primary and secondary education to all his children in the public schools or in private schools recognized by the Government and not limited to any race or nationality. The same shall be understood applicable with respect to the widow and minor children of an alien who has declared his intention to become a citizen of the Philippines, and dies before he is actually naturalized.

If one who is not exempted, fails to file, or files an invalid declaration of intention, he can be denaturalized anytime through denaturalization proceedings. Procedure Com. Act. No. 473, Secs. 7-12 Section 7. Petition for citizenship.-- Any person desiring to acquire Philippine citizenship shall file with the competent court, a petition in triplicate, accompanied by two photographs of the petitioner, setting forth his name and surname; his present and former places of residence; his occupation; the place and date of his birth; whether single or married and the father of children, the name, age, birthplace and residence of the wife and of each of the children; the approximate date of PAGE 39


his or her arrival in the Philippines, the name of the port of debarkation, and, if he remembers it, the name of the ship on which he came; a declaration that he has the qualifications required by this Act, specifying the same, and that he is not disqualified for naturalization under the provisions of this Act; that he has complied with the requirements of section five of this Act; and that he will reside continuously in the Philippines from the date of the filing of the petition up to the time of his admission to Philippine citizenship. The petition must be signed by the applicant in his own handwriting and be supported by the affidavit of at least two credible persons, stating that they are citizens of the Philippines and personally know the petitioner to be a resident of the Philippines for the period of time required by this Act and a person of good repute and morally irreproachable, and that said petitioner has in their opinion all the qualifications necessary to become citizen of the Philippines and is not in any way disqualified under the provisions of this Act. The petition shall also set forth the names and post-office addresses of such witnesses as the petitioner may desire to introduce at the hearing of the case. The certificate of arrival, and the declaration of intention must be made part of the petition. Section. 8. Competent court.-- The Court of First Instance of the province in which the petitioner has resided at least one year immediately preceding the filing of the petition shall have exclusive original jurisdiction to hear the petition. Section 9. Notification and appearance.-- Immediately upon the filing of a petition, it shall be the duty of the clerk of the court to publish the same at petitioner's expense, once a week for three consecutive weeks, in the Official Gazette, and in one of the newspapers of general circulation in the province where the petitioner resides, and to have copies of said petition and a general notice of the hearing posted in a public and conspicuous place in his office or in the building where said office is located, setting forth in such notice the name, birthplace and residence of the petitioner, the date and place of his arrival in the Philippines, the names of the witnesses whom the petitioner proposes to introduce in support of his petition, and the date of the hearing of the petition, which hearing shall not be held within ninety days from the date of the last publication of the notice. The clerk shall, as soon as possible, forward copies of the petition, the sentence, the naturalization certificate, and other pertinent data to the Office of the President, the Office of the Solicitor-General, the Provincial Commander of the Philippine National Police of the province and the municipal judge of the municipality wherein the petitioner resides. Section. 10. Hearing of the petition.-- No petition shall be heard within the thirty (30) days preceding any election. The hearing shall be public, and the Solicitor-General, either himself or through his delegate or the provincial fiscal concerned, shall appear on behalf of the Republic of the Philippines at all the proceedings and at the hearing. If, after the hearing, the court believes, in view of the evidence taken, that the petitioner has all the qualifications required by, and none of the disqualifications specified in this Act and has complied with all requisites herein established, it shall order the proper naturalization certificate to be issued and the registration of the said naturalization certificate in the proper civil registry as required in section ten of Act Numbered Theree thousand seven hundred fifty-three. Section 11. Appeal.-- The final sentence may, at the instance of either of the parties, be appealed to the Supreme Court. Section 12. Issuance of the Certificate of Naturalization.-- If, after the lapse of thirty days from and after the date on which the parties were notified of the decision of the Court, no appeal has been filed, or if, upon appeal, the decision of the court has been confirmed by the Supreme Court, and the said decision has become final, the clerk of the court which heard the petition shall issue to the petitioner a naturalization certificate which shall, among other things, state the following: The file number of the petition, the number of the naturalization certificate, the signature of the person naturalized affixed in the presence of the clerk of the court, the personal circumstances of the person

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naturalized, the dates on which his declaration of intention and petition were filed, the date of the decision granting the petition, and the name of the judge who rendered the decision. A photograph of the petitioner with the dry seal affixed thereto of the court which granted the petition, must be affixed to the certificate. Before the naturalization certificate is issued, the petitioner shall, in open court, take the following oath: "I_________________________________, solemnly swear that I renounce absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty and particularly to the ___________________________ of which at this time I am a subject or citizen; that I will support and defend the Constitution of the Philippines and that I will obey the laws, legal orders and decrees promulgated by the duly constituted authorities of the Republic of the Philippines and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion. So help me God."

a. Declaration of intention filed with the OSG one year before actual application. b. Filing of petition for naturalization with the RTC of the province in which the applicant is a resident for at least one year. c. Hearing, except within 30 days before an election. The State is represented by the Solicitor General or by the fiscal in his behalf. Two witnesses to testify on the character of the applicant are presented. d. Decision. Appeal of the decision of the RTC may be made to SC, pursuant to RA 530, amending Sec. 17 of the Judiciary Act of 1948. (Under BP 129, appeal is to the CA). e. Decision becomes final but not executory, thirty (30) days after notice of the decision is received by the parties. The notice of the decision must be received by the OSG; copy furnished to the fiscal is not sufficient to start the running of the 30-day period. A favorable decision becomes executory only after 2 years from the finality of the decision. It shall become executory only after the period of 2 years during which the petitioner shall continue to be under probation, as it were, so the government can be doubly sure he is entitled to be naturalized as a citizen of the Philippines. (Republic Act 530, Section 1) f. Summary hearing after two years, which is really a continuation of the previous proceedings, to prove that: i) He did not leave RP during the 2-year period of probation; ii) He devoted himself to lawful calling; iii) He was not convicted of any offense of violation of government rules. iv) He did not commit an act prejudicial to national interest or inimical to a government announced policy. g. Oath before the RTC.

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h. Issuance of a Certificate of Naturalization issued by the Court. (Only a certification is given because the decision two years before has granted him his citizenship.) i. Cancellation of ACR before the Commissioner of Immigration and Deportation. "Derivative Naturalization" (Sec. 15) " xxx Any woman who is now or may hereafter be married to a citizen of the Philippines, and who might herself be lawfully naturalized, shall be deemed a citizen of the Philippines."

Note : In its latest pronouncement on this question, the SC held that the clause "who might herself be lawfully naturalized" should be interpreted to mean only that the alien woman must not be laboring under any of the disqualifications prescribed by law. Moreover, she can establish her claim to Philippine citizenship in administrative proceedings before the immigration authorities only and will not have to file a judicial action for this purpose. She is no longer required to prove that she possesses the qualifications for naturalization. When decision executory Republic Act No. 530, sec. 1 Sec. 1. The provisions of existing laws notwithstanding, no petition for Philippine citizenship shall be heard by the courts until after six months from the publication of the application required by law, nor shall any decision granting the application become executory until after two years from its promulgation and after the court, on proper hearing, with the attendance of the Solicitor General or his representative, is satisfied, and so finds, that during the intervening time the applicant has (1) not left the Philippines, (2) has dedicated himself continuously to a lawful calling or profession, (3) has not been convicted of any offense or violation of Government promulgated rules, (4) or committed any act prejudicial to the interest of the nation or contrary to any Government announced policies.

Effect on wife and minor children Com. Act No. 473, sec. 15. Section 15. Any woman who is now or may hereafter be married to a citizen of the Philippines, and who might herself be lawfully naturalized shall be deemed a citizen of the Philippines. Minor children of persons naturalized under this law who have been born in the Philippines shall be considered citizens thereof. A foreign born minor child, if dwelling in the Philippines at the time of the naturalization of the parent, shall automatically become a Philippine citizen and a foreign-born minor child, who is not in the Philippines at the time the parent is naturalized, shall be deemed a Philippine citizen only during his minority, unless he begins to reside permanently in the Philippines when still a minor, in which case, he will continue to be a Philippine citizen even after becoming of age. A child born outside of the Philippines after the naturalization of his parents, shall be considered a Philippine citizen, unless within one year after reaching the age of majority, he fails to register himself as a Philippine citizen at the Philippine Consulate of the country where he resides, and to take the necessary oath of allegiance.

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Effect of Naturalization on the Wife If the wife is (i) legally married to the naturalized husband, and (ii) she does not suffer from any of the disqualifications in Sec. 4, she is entitled to be declared a citizen as well. What is required is only an administrative proceeding before the CID for the cancellation of her ACR on the ground that her husband has been recently naturalized. According to Moya Lim Yao (41 SCRA 292) ruling, she need not prove the qualifications, but only that she is not disqualified. The proceedings may even be with the Department of Natural Resources in relation to a grant of concession requiring citizenship, where the wife proves that her husband has become a Filipino. Effect of Naturalization on the Children I. If the child is of age, no effect. II. If the child is a minor: father.

A. If born in RP - automatically becomes a citizen upon the

naturalization of the

B. If born abroad 1. If before the naturalization of the father. citizen.

a. If residing in RP at the time of naturalization --- automatically becomes a

b. If not residing in RP at the time of naturalization --- considered citizen only during his minority, unless he takes permanent residence in RP before reaching majority age. In other words, he continues to be a Filipino after reaching 18 years old only if he decides to reside here permanently before reaching that age. 2. If after the naturalization of the father --- Considered citizen on the condition that upon reaching the age of majority, he takes an oath of allegiance in the Philippine consulate of the place where he may be. If he fails to register his intent to continue as Filipino within one (1) year upon reaching 21 years, he ceases to be a Filipino citizen. Denaturalization Com. Act No. 473, Sec. 18 Section 18. Cancellation of naturalization certificate issued.-- Upon motion made in the proper proceedings by the Solicitor General or his representative, or by the proper provincial fiscal, the competent judge may cancel the naturalization certificate issued and its registration in the Civil Registry: (a) If it is shown that said naturalization certificate was obtained fraudulently or illegally; (b) If the person naturalized shall, within the five years next following the issuance of said naturalization certificate, return to his native country or to some foreign country and establish his

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permanent residence there: Provided, that the fact of the person naturalized remaining for more than one year in his native country or the country of his former nationality, or two years in any other foreign country, shall be considered as prima facie evidence of his intention of taking up permanent residence in the same; (c) If the petition was made on an invalid declaration of intention; (d) If it is shown that the minor children of the person naturalized failed to graduate from a public or private high schools recognized by the Bureau of Private Schools of the Philippines, where Philippine history, government and civics are taught as part of the school curriculum through the fault of their parents either by neglecting to support them or by transferring them to another school or schools. A certified copy of the decree cancelling the naturalization certificate shall be forwarded by the clerk of the Court to the Office of the President and the Solicitor-General;

Not when they dropped out because of scholastic performance (e) If it is shown that the naturalized citizen has allowed himself to be used as a dummy in violation of the Constitutional or legal provision requiring Philippine citizenship, as a requisite for the exercise, use or enjoyment of a right, franchise or privilege.

Procedure: Filed by the Solicitor General before the same RTC that granted his naturalization, regardless of where he may be residing at that time. BARLONGAY CASE: Republic vs. Li Yao (214 SCRA 748) F:

Fifteen (15) years after Li Yao was conferred with Filipino citizenship by naturalization, the Republic sought the cancellation thereof on the grounds of: 1) not being of good moral character by having amorous relations with women; 2) not having conducted himself in an irreproachable manner in dealing with the duly constituted authorities by using names other than that authorized, by resorting to tax evasion and violating the Anti-Dummy Law. The trial court relying solely on the ground of evasion of the payment of lawful taxes by underdeclaration of income as reflected in his income tax return for 1946-51, cancelled his naturalization. Hence this appeal.

ISSUE: W/n the cancellation of Li Yao's naturalization was valid. RULING: Yes. A certificate of naturalization may be cancelled if it is subsequently discovered that the applicant obtained it by misleading the court upon any material fact. Law and jurisprudence even authorize the cancellation of a certificate of naturalization upon grounds or conditions which arise subsequent to the granting of the certificate of naturalization. Moreover, a naturalization proceeding is not a judicial adversary proceeding, the decision rendered therein not constituting res judicata as to any matter that would support a judgement cancelling a certificate of naturalization on the ground of illegal or fraudulent procurement thereof. The concealment of applicant's income to evade payment of lawful taxes shows that his moral character is not irreproachable, thus disqualifying him for naturalization.

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A tax amnesty only relieves him from any civil, criminal or administrative liability insofar as his tax case is concerned. It does not have the effect of obliterating his lack of good moral character and irreproachable conduct which are grounds for denaturalization. MRM. 3. Loss and Reacquisition of Citizenship Article IV, Sec. 3. Philippine citizenship may be lost or reacquired in the manner provided by law. (referring to CA 63.) Article IV, Sec. 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law (CA 63) to have renounced it. Commmonwealth Act 63 Section 1. How citizenship may be lost.-- A Filipino citizen may lose his citizenship in any of the following ways and/or events: (1) By naturalization in a foreign country; (2) By express renunciation of citizenship or expatriation; (3) By subscribing to an oath of allegiance to support the Constitution or laws of a foreign country upon reaching the age of majority; Provided, however, That a Filipino may not divest himself of Philippine citizenship in any manner while the Philippines is at war with any country; (4) By rendering service to or accepting commission in the armed forces of a foreign country: Provided, That the rendering of service to, or the acceptance of such commission in, the armed forces of a foreign country, and the taking of an oath of allegiance incident thereto, with the consent of the Philippines, shall not divest a Filipino of his Philippine citizenship if either of the ff. circumstances is present: (a) The Philippines has a defensive and/or offensive pact of alliance with the said foreign country; or (b) The said foreign country maintains armed forces in the Philippine territory with the consent of the Philippines; Provided that the Filipino citizen concerned, at the time of rendering said service or acceptance of said commission, and taking the oath of allegiance incident thereto, states that he does so only in connection with his service to said foreign country: And provided finally, That any Filipino citizen who is rendering service to, or is commissioned in, the armed forces of a foreign country under any of the circumstances mentioned in paragraph (a) or (b) shall not be permitted to participate nor vote in any election of the Philippines during the period of his service to, or commission in, the armed forces of said foreign country. Upon his discharge from the service of the said foreign country, he shall be automatically entitled to the full enjoyment of his civil and political rights as a Filipino citizen; (5) By cancellation of the certificate of naturalization; (6) By having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted ; (7) In case of a woman, upon her marriage, to a foreigner if, by virtue of the laws in force in her husband's country, she acquires his nationality. [This is now qualified by Art. IV, Sec. 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it.] The provisions of this section notwithstanding, the acquisition of citizenship by a natural born Filipino citizen from one of the Iberian and any friendly democratic Ibero-American countries PAGE 45


or from the United Kingdom shall not produce loss or forfeiture of his Philippine citizenship if the law of that country grants the same privilege to its citizens and such had been agreed upon by treaty between the Philippines and the foreign country from which citizenship is acquired.

a. Loss of Citizenship Grounds: (1) Naturalization in a foreign country [CA 63, Sec. 1(1)] Frivaldo v COMELEC (174 SCRA 245) (1989) F:

Frivaldo was elected as governor of Sorsogon. The League of Municipalities filed a petition for the annulment of Frivaldo's election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the US in 1983. He admitted such but raised as a defense that he did so to protect himself from Marcos and that his naturalization as an American citizen was not impressed with voluntariness but was obtained only for reasons of convenience. The League argued that since Frivaldo was a naturalized American citizen and had not reacquired Philippine citizenship on the day of the election, he was not qualified to run for governor. Frivaldo countered that his oath in his certificate of candidacy that he was a natural born citizen should be a sufficient act of repatriation. Additionally, his active participation in the 1987 elections had divested him of his US citizenship under the laws of the US.

HELD: Frivaldo claims he has reacquired Philippine citizenship by virtue of a valid repatriation. He claims that by actively participating in the elections, he automatically forfeited American citizenship under US laws. Such laws do not concern us. Such forfeiture is between him and the US as his adopted country. It should be obvious that even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his naturalized citizenship was that he became a stateless individual. Mere filing of certificate of candidacy is not a sufficient act of repatriation. Repatriation requires an express and equivocal act. Frivaldo's claim that he could not have repatriated himself under LOI 270 bec. the Special Committee provided for therein had not yet been constituted seems to suggest that the lack of that body rendered his repatriation unnecessary. That is far-fetched if not specious. Such a conclusion would open the floodgates, as it were. It would allow all Filipinos who have renounced this country to claim back their abandoned citizenship w/o formally rejecting their adopted state and reaffirming their allegiance to the Phils. It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of candidacy he had, w/o more, already effectively recovered Phil. citizenship. But that is hardly the formal declaration the law envisions--surely, Phil. citizenship previously disowned is not that cheaply recovered. If the Special Committee had not yet been convened, what it meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial proceedings. Adapted. Labo vs COMELEC (176 SCRA 1)

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F:

Ramon Labo, Jr. married an Australian citizen in the Phils. He was granted Australian citizenship . He took an oath of allegiance renouncing all other allegiance, etc. Though the marriage was declared void for being bigamous, Labo was, according to the records still an Australian citizen. In the 1988 local elections, Labo ran for mayor of Baguio. His Filipino citizenship was questioned on the ground that he had acquired Australian citizenship through his marriage to an Australian citizen and his taking an oath of allegiance to Australia where he renounced all other allegiance to other countries. Labo claimed that (1) his marriage did not automatically divest him of his Filipino citizenship and that (2) his naturalization in Australia made him at worst only a dual national and did not divest him of his Philippine citizenship.

HELD: Labo's first contention is irrelevant. He became an Australian citizen by virtue of naturalization and not by marriage. The second argument is specious w/c cannot stand against the clear provisions of CA No. 63, w/c enumerates the modes by w/c Phil. citizenship may be lost, and among them are (1) naturalization in a foreign country; (2) express renunciation of citizenship; and (3) subscribing to an oath of allegiance to support the Consti. or laws of a foreign country, all of w/c are applicable to petitioner. Under Article IV, Section 5, "dual allegiance of citizen is inimical to the national interest and shall be dealt with by law." xxx Even if it be assumed that, as petitioner asserts, his naturalization was annulled after it was found that his marriage was bigamous, that circumstance alone did not automatically restore his Phil. citizenship. His divestiture of Australian citizenship does not concern us here. That is a matter between him and his adopted country. What we must consider is the fact that he voluntarily and freely rejected Phil. citizenship and willingly and knowingly embraced the citizenship of another country. The possibility that he may have been subsequently rejected by Australia does not mean that he has been automatically reinstated as a Phil. citizen Phil. citizenship may be reacquired by direct act of congress, by naturalization or by repatriation. It does not appear that petitioner has reacquired Phil. citizenship by any of these methods. Adapted.

Labo v. COMELEC (211 SCRA 297, July 1992) F:

Labo ran for mayor of Baguio in the May 11, 1992 elections. His opponent, Ortega, questioned his citizenship before the Comelec, relying on Labo v. Comelec (179 SCRA 1, 1989) which declared Labo not a citizen of the Philippines.

HELD: 1. Labo, not being a Filipino citizen, lacks the fundamental qualification for the contested office. Philippine citizenship is an indispensable requirement for holding an elective office. The fact that he was elected by the majority of the electorate is of no moment. As held in Fivaldo vs. COMELEC, "xxx The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. xxx "

xxx Petitioner claims that he has reacquired his Filipino citizenship by citing his application for reacquisition of Phil. citizenship filed before the Office of the Sol-Gen. pursuant to PD 725 and LOI 270. To date, however, the Special Committee on Naturalization had not yet PAGE 47


acted upon said application. In the absence of any official action or approval by proper authorities, a mere application for repatriation does not, and cannot, amount to an automatic reacquistion of the applicant's Phil. citizenship. 2. The disqualification of Labo does not necessarily entitle Ortega as the candidate with the next highest number of votes to proclamation as mayor. The ineligibility of a candidate receiving majority vote does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. 3. The rule would have been different if the electorate fully aware in fact & in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected.

Adapted.

(2) Express renunciation or Expatriation [CA 63, Sec 1(2)] This overrules Haw v Government, where the SC held that renunciation could be implied. Expatriation is a constitutional right (Go Gullian v Government). compelled to remain a Filipino if he does not want to.

No one can be

Yu v Defensor-Santiago (169 SCRA 364) F:

Yu was issued a Portuguese passport in 1971, valid for five years and renewed for the same period upon presentment before the proper Portuguese consular officer. Despite his naturalization as a Philippine citizen in 1978, he applied for and was issued a Portuguese passport in 1981. While still a citizen of the Philippines who had renounced, upon his naturalization, "absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty" and pledged to "maintain true faith and allegiance to the Philippines," he declared his nationality as Portuguese in commercial documents he signed.

HELD: The foregoing acts considered together constitute an express renunciation of petitioner's Philippine citizenship acquired through naturalization. In Board of Immigration Commissioner vs Go Gallano, express renunciation was held to mean a renunciation that is made known distinctly and explicitly and not left to inference or implication. Yu, with full knowledge and legal capacity, after having renounced Portuguese citizenship upon naturalization as a Philippine citizen resumed or reacquired his prior status as a Portuguese citizen, applied for a renewal of his Portuguese passport and represented himself as such in official documents even after he had become a naturalized Philippine citizen. Such resumption or reacquisition of Portuguese citizenship is grossly inconsistent with his maintenance of Philippine citizenship. Dissenting: The mere use of a foreign passport is not ipso facto express renunciation of Filipino citizenship. Whatever may be the reasons for doing so, it must be ascertained in a court of law where a full trial is conducted instead of an administrative determination of a most summary nature (as in this case). Adapted.

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Aznar v Osmena, COMELEC, 185 SCRA 703 (May 1990) F: Emelito Osmena ran for Governor of Cebu in the Jan. 18, 1988 elections. Aznar as Cebu Chairman of LDP-Laban filed with COMELEC a petition for the disqualification of Osmena on the ground that he is allegedly not a Filipino citizen, being a US citizen, as evidenced by Osmena's application for alien, his alien certificate of registration, permit to re-enter the Phils, immigration certificate of clearance etc. Osmena on the other hand maintained that he is a Fil citizen, alleging that he is the legitimate child of Dr. Emilio Osmena, that he is a holder of a valid Phil passport, that he has been continuously residing in the Phils since birth & has not gone out of the country for more than 6 months and that he has been a registered voter in the Phils since 1965. The Comelec decided for Osmena. HELD: 1. In the proceedings before the COMELEC, the pet failed to present direct proof that private resp had lost his Filipino citizenship by any of the modes provided for under CA #63. Among others, these are: (1) by naturalization in a foreign country; (2) by express renunciation of citizenship; (3) by subscribing to an oath of allegiance to support the Constitution or laws of a foreign country. From the evidence, it is clear that private respondent Osmena did not lose his Phil citizenship by any of the 3 mentioned hereinabove or by any other mode of losing Phil citizenship. 2. By virtue of his being the son of a Filipino father, the presumption that private resp is a Filipino remains. It was incumbent upon the petitioner to prove that priv resp had lost his Phil citizenship. Pet Aznar failed to positively establish this fact. Osmena remains a Filipino & the loss of his Phil citizenship cannot be presumed. 3. Considering the fact that admittedly Osmena was both a Filipino & an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. In the case of Osmena, the Certification that he is an American does not mean that he is not STILL a Filipino, possessed as he is, of both nationalities or citizenship. There is no express renunciation here of Phil citizenship. There is even no implied renunciation of said citizenship. When we consider that the renunciation needed to lose Phil citizenship must be EXPRESS, it stands to reason that there can be no such loss of Phil citizenship WHEN THERE IS NO RENUNCIATION, EITHER EXPRESS OR IMPLIED. 4. The statement in the 1987 constitution that "dual allegiance of citizens is inimical to the national interest & shall be dealt with by law" has no retroactive effect. Adapted. (3) Taking an oath of allegiance to another country upon reaching the age of majority. (4) Accepting a commission and serving in the armed forces of another country, unless there is an offensive or defensive pact with the country, or its maintains armed forces in RP with RP's consent. (5) Denaturalization. (6) Being found by final judgment to be a deserter of the AFP.

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(7) Marriage by a Filipino woman to an alien, if by the laws of her husband's country, she becomes a citizen thereof. This is deemed repealed by the 1973 and 1987 Constitutions, which mandate that Filipino citizens who marry aliens shall retain their citizenship, unless by their "act" or "omission", they are deemed under the law to have renounced it. At present, the law (CA 63, Sec. 1 par. 7) only provides for express renunciation (i.e., act), and so there is no law at the moment on "renunciation by omission." But Congress may provide for such later. But Sec. 2 of the 1973 Consti. (carried over as Sec. 4 of the 1987 Consti.) only has a prospective application. Thus, CA 63 continues for marriages celebrated before 17 January 1973. If a Filipino married a Greek in 1972 and became a Greek citizen herself thereby, then she lost her Filipino citizenship. As to her children, however, it is enough that she was a Filipina at the time of marriage to qualify them to elect Philippine citizenship when they reached the age of majority (Villahermosa ruling). But if the children were born after 1973, then under the 1987 Constitution, those children are now even natural-born. But if, in 1961, a Filipino woman married an alien whose country did not make her an automatic citizen, and so in order to acquire his citizenship, she applied for naturalization, and after her naturalization she begot C, C could no longer elect Philippine citizenship. The ruling in Cu and Villahermosa applies only to mothers who lost their citizenship by operation of law and not by their own voluntary acts. If C was born after the application but before the approval of the naturalization of his mother, he could still elect Philippine citizenship. But for similar marriages celebrated after 17 January 1973, the mere fact of marriage alone does not strip the Filipino woman of her Philippine citizenship. Thus, if a Filipina marries an alien in 1974, even if she gains her husband's citizenship, lives abroad, does not pay her taxes, never returns to RP, she is still a Filipina under the 1973 and 1987 Constitutions, so long as she does not categorically renounce her citizenship. It follows that her children are natural-born citizens, being the children of Filipino mothers, and this time without the need of election. Expatriation is a constitutional right (Go Gullian v Government). No one can be compelled to remain a Filipino if he does not want to. Exception: Com. Act. No. 63, Sec. 1(3). xxx [A] Filipino may not divest himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with any country.

People vs. Manayao, 74 Phil. 721 (1947)

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F:

Manayao was one of the Makapilis who took part in the killing of the residents in barrio Banaban, municipality of Angat, Bulacan. After the liberation, he, among others, was charged w/ treason and w/ multiple murder in the People's court. In his defense, he argues, among others, he has lost his Philippine citizenship and was therefore not amenable to the Phil. law on treason.

HELD: Appellant's contention is repugnant to the most fundamental and elementary principles governing the duties of a citizen toward his country under the Consti. The defense of the State is a prime duty of government and in the fulfillment of this duty all citizens may be required by law to render personal, military or civil service. During a period of stress, under a Consti enshrining such tenets, the citizen cannot be considered free to cast off his loyalty and obligations toward his Fatherland. It would shock the conscience of any enlightened citizenry to say that this appellant, by the very fact of committing the treasonous acts charged against him, divested himself of his Phil. citizenship and thereby placed himself beyond the arm of our treason law. For if this were so, his very crime would be the shield that would protect him from punishment. VV. Art. XI, Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. BARLONGAY CASE: Caasi vs. Court of Appeals (191 SCRA 229) F:

These 2 cases were consolidated bec. they have the same objective: the disqualification under Sec. 68 of the Omnibus Election Code of the private resp., Merito Miguel, for the position of municipal mayor of Bolinao, Pangasinan, to w/c he was elected in the local elections of 1/18/88, on the ground that he is a green card holder, hence, a permanent resident of the US, not of Bolinao.

HELD: Despite his vigorous disclaimer, Miguel's immigration to the US in 1984 constituted an abandonment of his domicile and residence in the Phils. For he did not go to the US merely to visit his children or his doctor there; he entered the US w/ the intention to live there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on his application, he was issued by the US Govt the requisite green card or authority to reside there permanently. xxx To be "qualified to run for elective office" in the Phils., the law (Sec. 68 of the Omnibus Election Code) requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Phils., did not of itself constitute a waiver of his status as a permanent resident or immigrant of the US. The waiver of his green card should be manifested by some act of acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office." Residence in the municipality where he intends to run for elective office for at least 1 year at the time of the filing of his cert. of candidacy, is one of the qualifications that a candidate

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for elective public office must possess. Miguel did no possess that qualification bec. he was a permanent resident of the US and he resided in Bolinao for a period of only 3 mos. after his return to the Phils. in Nov. 1987. RAM. b. Reacquisition of Citizenship Secs. 2- 5, Commonwealth Act 63 Sec. 2. How citizenship may be reacquired.-- Citizenship may be reacquired: (1) By naturalization: Provided, That the applicant possess none of the disqualifications prescribed in section two of Act Numbered Twenty-nine hundred twenty-seven (now Sec. 4 of CA 473.) (2) By repatriation of deserters of the Army, Navy or Air Corp: Provided, That a woman who lost her citizenship by reason of her marriage to an alien may be repatriated in accordance with the provisions of this Act after the termination of the marital status; and (3) By direct act of the National Assembly (now Congress.) Sec. 3. Procedure incident to reacquisition of Philippine citizenship.-- The procedure prescribed for naturalization under Act Numbered Twenty-nine hundred twenty-seven (now CA 473) shall apply to the reacquisition of Philippine citizenship by naturalization provided for in the next preceding section: Provided, That the qualifications and special qualifications prescribed in sections 3 and 4 of said Act shall not be required: And Provided, further, (1) That the applicant be at least twenty-one years of age and shall have resided in the Philippines at least six months before he applies for naturalization; (2) That he shall have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines, in his relations with the constituted government as well as with the community in which he is living; and (3) That he subscribes to an oath declaring his intention to renounce absolutely and perpetually all faith and allegiance to the foreign authority, state or sovereignty of which he was a citizen or subject. Sec. 4. Repatriation shall be effected by merely taking the necessary oath of allegiance to the Republic of the Philippines and registration in the proper civil registry. Sec. 5. The Secretary of Justice shall issue the necessary regulations for the proper enforcement of this Act. Naturalization blanks and other blanks required for carrying out the provisions of this Act shall be prepared and furnished by the Solicitor General, subject to approval of the Secretary of Justice. xxx

(1) Naturalization (CA 63 and CA 473) But this is now an abbreviated process, with no need to wait for three years (one year for declaration of intent, and two years for the judgment to become executory). An applicant must only possess the following: a. 21 years of age; b. Resident for 6 months;

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c. Good moral character; d. No disqualification. (2) Repatriation (i) Woman who by her marriage lost her citizenship. (This is no longer true under the 1973 and 1987 Constitutions, if the loss was due only to marriage.) In People v Avengoza, 119 SCRA 119 (1982), it was held that a woman who lost her citizenship by reason of her marriage to a Chinese husband and her gaining his citizenship, must first judicially, prove that she was Filipino citizen prior to the marriage, before she can be repatriated by virtue of the death of her husband. In Jao v Republic, 121 SCRA 358 (1983), it was held that although her citizenship prior to her marriage to a Chinese husband needed judicial confirmation, the process of repatriation itself (i.e., of reacquiring that citizenship) involves a purely administrative proceeding. Thus: Filipino citizenship prior to its loss by virtue of marriage to an alien and gaining his citizenship needs judicial declaration. But reacquisition of such citizenship by repatriation is a purely administrative procedure. People v. Avengoza, 119 SCRA 119 (1982) F:

Go Cham, a Chinese, his wife Anselma Avengoza, and the latter's mother, Gavina A., were accused of violation of CA 108. It was charged that Go Gam and Anselma A. used Gavina A. as dummy in order to acquire lands in Camarines Sur w/c the couple were not qualified to acquire under the 1935 Consti. Pending trial, Gavina A. and Go Cham died. On her motion the trial court allowed Anselma A. to withdraw her previous plea of not guilty and to file a motion to quash w/c the court later granted. The trial court ruled that Anselma had reacquired her Filipino citizenship upon the death of her husband, Go Cham, and upon complying w/ CA 63, sec. 4 by taking an oath of allegiance to the Republic and filing the oath w/ the Civil Registrar. The prosecution appealed.

HELD: Def. Avengoza's sole evidence on record to support her repatriation is her oath of allegiance to the Republic. Def. Avengoza became an alien by reason of her lawful marriage to a Chinese citizen; however this does not necessarily mean that she was a Filipino citizen previous to such marriage. Thus, she should first prove her citizenship previous to her marriage and as there is no conclusive proof of this matter on record, this question must be judicially determined before she can be legally repatriated. VV. Jao v. Republic, 121 SCRA 358 (1983) F:

Petitioner filed in the CFI-Davao a petition for repatriation. She claimed that while her father was a Chinese and her mother a Filipinio, her parents were not legally married, and that although she lost her Phil. citizenship when she married a Chinese national, her husband died on 9/6/62. After trial, the court declared the petitioner judicially repatriated. The govt appealed.

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HELD: The proceedings taken in the trial court are a complete nullity. There is no law requiring or authorizing that repatriation should be effected by a judicial proceeding. All that is required for a female citizen of the Phils. who lost her citizenship to an alien to reacquire her Phil. citizenship upon the termination of her marital status "is for her to take the necessary oath of allegiance to the Republic of the Phils. and to register the said oath in the proper civil registry." Moreover, the petitioner's claim of Phil. citizenship prior to her marriage for being allegedly an illegitimate child of a Chinese father and a Filipino mother may not be established in an action where the other or her heirs are not parties. It is consistent rule that Phil. citizenship may not be declared in a non-adversary suit where the persons whose rights are affected by such declaration are not parties, such as an action for declaratory relief or a petition for judicial repatriation as an alien. VV. (ii) Those declared by authorities to be deserters of the Armed Forces. (Only this is applicable to the present.) (3) Legislative Act Which is both a mode of acquiring and reacquiring citizenship. BARLONGAY CASE: Republic vs. Dela Rosa, 232 SCRA 785 F:

Three (3) petitions involving the same issues and parties were consolidated. Said cases questioned the readmission of Juan Frivaldo as a Filipino citizen under CA 63 or the Revised Naturalization Law as amended by CA 473. Frivaldo became a US citizen allegedly due to the pressure from the Marcos regime. He came back here, ran for Governor of Sorsogon and won.

RULING: DISQUALIFIED. Frivaldo must vacate his office and surrender the same to the ViceGovernor. A former citizen who opts to reacquire Phil. citizenship through naturalization under CA 63 is duty bound to follow the procedure prescribed by said law, and it is not for him to decide and select the requirements which he believes are inconvenient. The law does not distinguish between an applicant who was formerly a Filipino citizen and one who was never a citizen. (Barlongay: This statement is inaccurate because there are indeed differences.) Failure to comply with the publication and posting requirements under the law rendered null and void the proceedings conducted, the decision rendered and the oath of allegiance taken. The TC never acquired jurisdiction to hear the petition for naturalization of Frivaldo. Under the law, both the petition for naturalization and the order setting it for hearing must be published once a week for three consecutive weeks in the OG or in a newspaper of general circulation. Moreover, the publication and the posting must be in its full text for the Court to acquire jurisdiction. The petition for naturalization lacks several allegations under Secs. 2 and 6 of the law: (1) that petitioner is of good moral character; (2) he resided continuously in the Phil. for at least ten years; (3) that he is able to speak and write English and any one of the principal dialects; (4)

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he will reside continuously in the Phil. from date of filing of petition until his admission to Phil citizenship; (5) that he has filed a declaration of intention or if he is excused from said filing, the justification therefor. The absence of such allegations is fatal to the petition. A decision in a petition for naturalization becomes final only after 30 days from promulgation, counted from the date of receipt by the Sol. Gen. of his copy of the decision. Sec. 1 of RA 530 provides that no decision granting citizenship in naturalization proceedings shall be executory until after 2 years from its promulgation in order to be able to observe if the applicant has: (1) not left the country; (2) dedicated himself continuously to lawful calling; (3) not been convicted of any offense or for violation of government promulgated rules; (4) not committed any act prejudicial to the interest of the country or contrary to government announced policies. The proceedings in the TC were marred by irregularities. The hearing was set ahead of the scheduled date upon request of Frivaldo so he could catch up with the last day for filing his certificate of candidacy, without publication; the petition was heard within 6 months from last publication; Frivaldo was allowed to take his oath of allegiance even before the finality of judgment and without waiting for the 2 year waiting period. MRM. 4. Dual Allegiance Art. IV, Sec. 5 Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. Art. XI, Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law. Dual allegiance is not contradictory to the double nationality of a Filipina who married an alien. It is not the business of Philippine law to determine if its citizen is also a citizen of another country by virtue of marriage. What Sec. 5 contemplates is the case of aliens who are naturalized as Filipinos but remain loyal to their country of origin (specifically former Chinese nationals who even ran in the legislative Yuan of China), as well a public officers who, while serving the government, seek citizenship in another country. Note : Under Sec 40(d) of the Local Government Code, those with dual citizenship are disqualified from running for any elective local position. 5. Mixed Marriages Cruz, Constitutional Law, 1991 ed. (hereinafter Cruz):

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1. It was provided under the old rule that a Filipino woman who married an alien forfeited her Phil. citizenship if under the laws of her husband's State she was required to follow his citizenship. This rule has been reversed by Art. IV, Sec. 4 of the Consti. w/c provides that: "Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it."

2. But what of the reverse of the situation? Suppose it is the alien woman who marries a Filipino? Sec. 15 of CA 473 provides that "any woman who is now or may hereafter be married to a citizen of the Phils., and who might herself be naturalized, shall be deemed a citizen of the Phils." In its latest pronouncement on this question, the clause "who might herself be lawfully naturalized" was interpreted to mean only that the alien woman must not be laboring under any of the disqualifications prescribed by law for naturalization in her own right as a Filipino citizen. Moreover, she can establish her claim to Phil. citizenship in administrative proceedings before the immigration authorities only and will not have to file a judicial action for this purpose. Recapitulating, J. Barredo declared in Moya Lim Yao v. Comm. of Immigration, 41 SCRA 292: xxx We now hold xxx that under Sec. 15 of CA 473, an alien woman marrying a Filipino, native-born or naturalized, becomes ipso facto a Filipina provided she is not disqualified to be a citizen of the Phils. under Sec. 4 of the same law. Likewise, an alien woman married to an alien who is subsequently naturalized here follows the Phil. citizenship of her husband the moment he takes his oath as Filipino citizen, provided that she does not suffer from any of the disqualifications under said Sec. 4.

UPDATED 11/24/95 RAM

C. Sovereignty Sovereignty "Sovereignty is the supreme and uncontrollable power inherent in a State by which the State is governed. There are two kinds of sovereignty, to wit, legal and political. Legal sovereignty is the authority w/c has the power to issue final commands whereas political sovereignty is the power behind the legal sovereign, or the sum total of the influences that operate upon it. Sovereignty may also be internal or external. Internal sovereignty refers to the power of the State to control its domestic affairs. External sovereignty, w/c is the power of the State to direct its relations w/ other States, is also known as independence. xxx" (Cruz.) "The supreme power of the State to govern persons and things within its territory.

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'Theory of Auto-Limitation' is the property of the State-force due to which a State has exclusive legal competence of self-limitation and self-restriction (Jellinek). In Reagan v CIR, it was held that the provision in the military bases agreement giving the US criminal jurisdiction over crimes committed even by Filipinos inside the bases is not a derogation of Philippine sovereignty. The Philippines has the power to limit the exercise of its sovereignty. When it allows a foreign State to use part of its territory and waives jurisdiction over crimes committed therein, it does not give up part of its sovereignty but only limits the exercise of its sovereignty." (Mirasol notes.) 1. Dominium and Imperium "Imperium refers to the State's authority to govern. It covers such activities as passing laws governing a territory, maintaining peace and order over it, and defending it against foreign invasion. When the State act in this capacity jure imperii, it generally enjoys sovereign immunity. Dominium refers to the capacity of the State to own property. It covers such rights as title to land, exploitation and use of it, and disposition or sale of the same. The Regalian doctrine whereby all lands of the public domain belong to the State, and anyone claiming title has the burden to show ownership, comes within this concept. In this capacity jure gestium, the State descends to the status of ordinary persons and thus becomes liable as such." (Mirasol notes.) A state as a juridical person may act in the capacity of sovereign as well as owner. xxx "As there are overtones indicative of skepticism, if not of outright rejection, of the well-known distinction in public law bet. the governmental authority possessed by the state w/c is appropriately embraced in the concept of sovereignty, and its capacity to own or acquire prop., it is not inappropriate to pursue the matter further. The former comes under the heading of imperium and the latter of dominium. The use of this term is appropriate w/ reference to lands held by the state in its proprietary character. In such capacity, it may provide for the exploitation and use of lands and other natural resources, including their disposition, except as limited by the Consti. Dean Pound did speak of the confusion that existed during the medieval era bet. two such concepts, but did note the existence of res publicae as a corallary to dominium. xxx [T]here was a recognition by J. Homes in Carino v. Insular Gov't, that 'Spain in its earlier decrees embodied the universal theory that all lands were held from the Crown***.' That was a concept of jus regalia, w/c was adopted by the 1973 Consti., ownership however being vested in the state as such rather than the head thereof. (Fernando 56.) 2. Territorial, Personal, and Extraterritoral Jurisdiction Jurisdiction is the manifestation of sovereignty. (Mirasol notes.) The jurisdiction of the state is understood as both its authority and the sphere of the exercise of that authority. (Sinco 26.) a. Territorial jurisdiction is the authority of the State to have all persons and things within its territorial limits to be completely subject to its control and protection. (Mirasol notes.) PAGE 57


When exercised in reference to persons or things found w/in the territory of the state, it is known as territorial jurisdiction. All persons w/in that area, regardless of nationality, are subject to the territorial jurisdiction of the state. The territorial jurisdiction of a state is sovereignty operating or applied w/in its territory. Its scope and effect are expressed in this classic statement of Chief Justice Marshall on the subject: "The jurisdiction of the nation w/in its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power w/c would impose such restriction. All exceptions, therefore, to the full and complete power of a nation w/in its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied." (Sinco 26-27.)

b. Personal jurisdiction is the authority of the state over its nationals, their persons, property, and acts, whether within or outside its territory. The Civil Code provision that prohibitory and mandatory laws follow citizens wherever they go is an example. (Mirasol notes.) When jurisdiction is exercised on the basis of the status of the persons affected, independent of their presence or absence in the territory of the state, it is known as personal jurisdiction. (Sinco 26.) The personal jurisdiction of the state is exercised over all its citizens w/in or w/o its territory. It affects their person, prop., and even some of their acts performed abroad. The authority of the state to w/c they owe permanent allegiance follows them at all times wherever they might reside and as long as their membership of the state subsists. (Sinco 28.) c. Extraterritorial jurisdiction is the authority of the State over persons, things or acts, outside its territorial limits by reason of their effects to its territory. Art. 2 of the RPC is a classic example of this. (Mirasol notes.) By agreement w/ other states, a state may establish its legal institutions outside its territorial limits. Thus if a state does not have sufficient confidence in the administration of justice and the system of law obtaining in a particular country, it may enter into a treaty for the establishment of its own courts in the latter country where its citizens or nationals may be tried. xxx Regardless of treaty or agreement, however, a state has full authority to adopt rules intended to apply to persons, whether citizens or aliens, and things found in the territory of other states or on the high seas under certain conditions. Of course, the actual enforcement of rules intended to have extraterritorial effect may be accomplished only when the persons concerned are found w/in the territorial jurisdiction of the state. To enforce them in the territorial limits of another state would be to violate the sovereignty of the latter, unless this state gives its consent thereto. Thus, we have Art. 2 of the Revised Penal Code: "Art. 2. Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the

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Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: 1. Should commit an offense while on a Philippine ship or airship. 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippines. 3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the preceding number. 4. While being public officers or employees, should commit an offense in the exercise of their functions; or 5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code."

xxx. (Sinco 28-29.) 3. Sovereign Immunity (a) Basis i. Constitutional Art. XVI, Sec. 3. The State may not be sued without its consent. ii. Jurisprudence Positivist theory: There can be no legal right as against the authority that makes the laws on which the right depends. (Holmes in Kawananakoa v Polyblank) Sociological theory: If the State is amenable to suits, all its time would be spent defending itself from suits and this would prevent it from performing its other functions. (Republic v Villasor, 54 SCRA 83) (Mirasol notes.) The doctrine is also available to foreign States insofar as they are sought to be sued in the courts of the local State. The added basis in this case is the principle of the sovereign equality of States, under w/c one State cannot assert jurisdiction over another in violation of the maxim par in parem non habet imperium. To do so would "unduly vex the peace of nations." (Cruz.) Republic v. Villasor, 54 SCRA 83 (1973.) F: On 7/3/61, a decision was rendered in SP in favor of resps. P.J. Kiener Co., Ltd, et. al. and against petitioner herein, confirming the arbitration award in the amount of 1.7 M, subject of SP. On 6/24/69, resp. Judge issued an Order declaring the aforestated decision final and executory, directing the Sheriffs of Rizal Province, QC as well as Manila to execute the said decision. A corresponding alias writ of execution was then issued. On the strength of said writ, the sheriff served notices of garnishment w/ several banks, specially on the 'monies due the AFP in the form of deposits, sufficient to cover the amount mentioned in the writ;' the Phil. Veterans Bank received the same notice of garnishment. Hence, this original action for certiorari and prohibition w/ the SC.

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HELD: It is a fundamental postulate of constitutionalism flowing from the juristic concept of sovereignty that the state as well as its govt is immune from suit unless it gives its consent. It is readily understandable why it must be so. A sovereign is exempt from suit, not bec. of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on w/c the right depends. (J. Holmes, Kawananakoa v. Polyblank, 205 US 349.) Sociological jurisprudence supplies an answer not dissimilar. [A] continued adherence to the doctrine of non-suability is not to be deplored for as against the inconvenience that may be caused private parties, the loss of governmental efficiency and the obstacle to the performance of its multifarious functions are far greater if such a fundamental principle were abandoned and the availability of judicial remedy were not thus restricted. The State may not be sued without its consent. A corollary, both dictated by logic and sound sense from such a basic concept is that public funds cannot be the object of a garnishment proceeding even if the consent to be sued had been previously granted and the state liability adjudged. This is based on considerations of public policy. Disbursements of public funds must be covered by the corresponding appropriation as required by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law. RAM. (b) When a suit is against the State and when it is not. A suit is against the State, regardless of who is named as the defendant, if it produces adverse consequences to the public treasury in terms of disbursement of public funds and loss of government property. When a suit is against the State, it cannot prosper unless the State has given its consent. In the following cases, however, the suit is not really against the State. 1. When the purpose of the suit is to compel an officer charged with the duty of making payments pursuant to an appropriation made by law in favor of the plaintiff to make such payment. For in this case, the suit is not really against the State, the State having acknowledged its liability to the plaintiff through the enactment of an appropriation law. Rather, the suit is intended to compel performance of a ministerial duty. (Begoso v PVA, 32 SCRA 466 and Del Mar v PVA, 51 SCRA 340 both involving the War Widow Benefits Law due the veterans.) 2. When from the allegations in the complaint, it is clear that the respondent is a public officer sued in a private capacity. 3. When the action is not in personam with the government as the named defendant, but an action in rem that does not name the government in particular. In Republic v Feliciano (148 SCRA 424), a suit against the government for the recovery of possession and ownership of land based on a possessory information was disallowed by the SC on the ground that a suit for the recovery of property is an action "in personam" which seeks to bring the State to court just like any private person who is claimed to usurp a piece of property. PAGE 60


What the plaintiff should have done, the Court continued, was to apply for a judicial confirmation of imperfect title under Sec. 48(b) of CA 141, which is an "action in rem", i.e., one directed against the whole world, and not the government in particular. Republic v. Feliciano, 148 SCRA 424 F:

Respondent Pablo Feliciano filed a complaint in the CFI of Camarines Sur against the Republic of the Philippines, represented by the land authority, for the recovery of ownership and possession of a parcel of land in Tinambac, Camarines Sur. He alleged that the lot in question should be excluded from the NARRA settlement reservation program of the government under Proc. No. 90, since it's his private property being covered by a possessory information title in the name of his predecessor-in- interest. (Proc. No. 90 reserves for settlement purposes, under the administration of the NARRA, now the Land Authority, a tract of land situated in the Municipalities of Tinambac and Siruma, Camarines Sur.) Feliciano prayed that he be declared the rightful owner of the property in question. A motion to dismiss, principally on the ground that the RP cannot be sued without its consent and hence the action cannot prosper, was filed by 86 settlers (as intervenors) of the land in question. The CFI granted the motion to dismiss, which was then reversed by the IAC on appeal. Hence this petition by the RP.

ISSUES: 1. WON the doctrine of non-suability of the state can be invoked in this case. (YES) The doctrine of non-suability of the State has proper application in this case. The plaintiff has impleaded the RP as defendant in an action for recovery of ownership and possession of a parcel of land, bringing the State to court just like any private person who is claimed to be usurping a piece of property. A suit for the recovery of property is not an action in rem, but an action in personam. By its caption and its allegation and prayer, the complaint is clearly a suit against the State, which under settled jurisprudence is not permitted, except upon a showing that the State has consented to be sued, either expressly or by implication through the use of statutory language too plain to be misinterpreted. There is no such showing of consent in the instant case. Worse, the complaint itself fails to allege the existence of such consent. This is a fatal defect, and on this basis alone, the complaint should have been dismissed. The failure of the petitioner to assert the defense of immunity from suit when the case was tried before the court a quo, as alleged by private respondent, is not fatal. It is now settled that such defense "may be invoked by the courts sua sponte at any stage of the proceedings." 2. WON the consent of the RP may be read from Proc. No. 90 itself. (NO) The exclusion of existing private rights from the reservation established by Proc. no. 90 cannot be construed as a waiver of the immunity of the State from suit. Waiver of immunity, being in derogation of sovereignty, will not be inferred lightly, but must be construed in strictissimi juris. Moreover, the Proclamation is not a legislative act. The consent of the State to be sued must emanate from statutory authority. Waiver of State Immunity can only be made by an act of the legislative body. Adapted. Begosa v. Chairman, Philippine Veterans Adm., 32 SCRA 466 (1970)

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F:

Gaudencio Begosa, plaintiff-appellee, was an "enlisted men of the Phil. Commonwealth Army, inducted in the service of the USAFFE" having taken "active participation in the battle of Bataan" as well as the "liberation drive against the enemy" thereafter became "permanently incapacitated from work due to injuries he sustained in line of duty xxx." Pltff. filed his claim for disability pension as far back as 3/4/55; but it was erroneously disapproved on 6/21/55, bec. his dishonorable discharge from the Army was not a good or proper ground for the said disapproval, and that on reconsideration asked for by him on 11/1/57, w/c he continued to follow up, the Board of Administrators, Phil. Veterans Admin., finally approved his claim on 9/2/64, at the rate of P30/mo. Judge Soriano noted that: "had it not been for the said error, it appears that there was no good ground to deny the said claim, so the latter was valid and meritorious even as of the date of its filing on 3/4/55, hence to make the same effective only as of the date of its approval on 9/2/64-- according to def's stand-- would be greatly unfair and prejudicial to pltff. The appeal assigns as one error what it considers to be the failing of the LC in not holding that the complaint in this case is in effect a suit against the State w/c has not given its consent thereto.

HELD: It does not admit of doubt that if the suit were in fact against the State, the LC should have dismissed the complaint. Nor is it to be doubted that while ostensibly an action may be against a public official, the def. may in reality be the govt. As a result, it is equally well-settled that where a litigation may have adverse consequences on the public treasury, whether in the disbursement of funds or loss of prop., the public official proceeded against not being liable in his personal capacity, then the doctrine of non-suability may appropriately be invoked. It has no application, however, where the suit against such a functionary had to be instituted bec. of his failure to comply w/ the duty imposed by statute appropriating public funds for the benefit of pltff. or petitioner. Such is the present case. xxx However, where the judgement in such a case would result not only in the recovery of possession of the prop. in favor of said citizen but also in a charge against or financial liab. of the Govt, then the suit should be regarded as one against the govt itself, and consequently, it cannot prosper or be validly entertained by the courts except w/ the consent of said Govt. RAM. Del Mar v. Philippine Veterans Adm (PVA), 51 SCRA 340 (1973) F:

Del Mar averred that he served during WW II as chief judge advocate of the Cebu Area Command (a duly recognized guerrilla org.) w/ the rank of major; that he subsequently obtained an honorable discharge from the service on 10/20/46 on a cert. of permanent total physical disability; that upon proper claim presented and after hearing and adjudication, the Phil. Veterans Bd granted him a monthly life pension of P50 effective 1/28/47; that in 3/50, the said Bd. discontinued payment of monthly life pension on the ground that his receipt of similar pension from the US Govt, thru the US Veterans Admin. by reason of military service rendered in the US in the Far East during the war, precluded him from receiving any further monthly life pension from the Phil. Govt; that he wrote the said Bd. twice, demanding the continued payment of his monthly pension but his demands went unheeded. And petition for mandamus was filed w/ CFI-Cebu w/c rendered judgment upholding Del Mar's claim. The PVA argues that the court a quo was w/o jurisdiction to try the civil case bec. it involves a money claim against PVA- a mere agency of the Govt performing governmental functions w/ no juridical personality of its own- and, in reality, partakes of an action against the Phil. Govt w/c is immune from suit w/o its consent.

HELD: As a general proposition, the rule on the immunity of the Govt from suit w/o its consent holds true in all actions resulting in "adverse consequences on the public treasury, whether in the disbursements of funds or loss of prop. Needless to say, in such actions, w/c, in effect, constitute

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suits against the Govt, the court has no option but to dismiss them. Nonetheless, the rule admits of an exception. It finds no application where a claimant institutes an action against a functionary who fails to comply w/ his statutory duty to release the amount claimed from the public funds already appropriated by statute for the benefit of the said claimant. As clearly discernible from the circumstances, the case at bar falls under the exception. RAM. Shauf v CA, 191 SCRA 713 (1990) 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. F: By reason of her non-selection to a position at Clark Air Base, Shauf filed an equal opportunity complaint against officers of Clark Air Base, for alleged discrimination against the former by reason of her nationality and sex. She then filed a complaint for damages with the RTC. Respondents filed a MTD on the ground that as officers of the US Armed Forces performing official functions in accordance with the powers vested in them, they are immune from suit. Shauf contends that the officers are being sued in their private capacity for discriminatory acts performed beyond their authority, hence the instant action is not a suit against the US Govt. which would require its consent. According to respondents, the complaint is barred by the immunity of the US since the acts sued upon are governmental activities of the US. HELD: 1. The general rule is that a state may not be sued without its consent. 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. 2. It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of plaintiff. Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of govt. 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 within the rule of immunity of the State from suit. The doctrine of state immunity cannot be used as an instrument for perpetrating an injustice. 3. The cloak of immunity is removed from the moment the public official is sued in his individual capacity such as where he acts without authority or in excess of the powers vested in him. A public official may be liable in his personal 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. In this case, the officers are liable for damages. Adapted. Republic v Sandoval, 220 SCRA 124 (1993)

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Herein public officials, having been found to have acted beyond the scope of their authority, may be held liable for damages. F: The heirs of the 12 rallyists who perished during the Mendiola massacre filed an action for damages. Such action was filed against the government. This was by virtue of a recommendation made by the Citizen's Mendiola Commission (created for the purpose of conducting an investigation of the disorder, deaths and casualties that took place during the Mendiola incident.) that the heirs and wounded victims of the incident be compensated by the Govt. Notwithstanding such recommendation, no concrete form of compensation was received by the victims. The Caylo Group (the group of marchers in the said incident) filed a formal letter of demand from the govt. Still unheeded for almost a year, the group filed an action against the govt, together w/ the military officers and personnel involved in the incident before the trial court. Resp. Judge dismissed the complaint as against the RP on the ground that there was no waiver by the Sate. HELD: 1. The principle of immunity from suit is based on the very essence of sovereignty, and on the practical ground that there can be no legal right as against the authority that makes the law on which the right depends. It also rests on reasons of public policy -- that public service would be hindered, and the public endangered, if the sovereign authority could be subjected to law suits at the instance of every citizen and consequently controlled in the uses and dispositions of the means required for the proper administration of the government. 2. This is not a suit against the State with its consent. Firstly, the recommendation made by the Mendiola Commission regarding indemnification of the heirs and the victims of the incident by the government does not in any way mean that liability automatically attaches to the State. The Commission was merely a fact-finding body and its recommendation was not final and executory. Secondly, whatever acts or utterances that President Aquino may have done or said, the same are not tantamount to the State having waived its immunity from suit. Although consent to be sued may be given impliedly, such consent was not given in this case. 3. Some instances when a suit against the State is proper are: (1) when the Republic is sued by name; (2) when the suit is against an unincorporated govt. agency; (3) when the suit is on its face against a govt. officer but the case is such that the ultimate liability will belong not to the officer but to the govt. In this case, while the Republic is sued by name, the ultimate liability does not pertain to the govt. Although the military officers were discharging their official functions when the incident occurred, their functions ceased to be official the moment they exceeded their authority. Immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic. The principle of state immunity from suit does not apply, as in this case, when the relief demanded by the suit requires no affirmative official action on the part of the State nor the affirmative discharge of any obligation w/c belongs to the State in its political capacity, even though the officers or agents who are made defendants claim to hold or act only by virtue of a title of the state and as its agents and servants. They are therefore liable for damages. Adapted.

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(c) Consent to be sued How consent is given The consent to be sued, in order to be effective, must come from the State, acting through a duly enacted statute. Waiver of state immunity can only be made by an act of legislative body. In Republic v Purissima, 78 SCRA 470 (1977), the SC held that a contract entered into by the Rice and Corn Administration stipulating that in the event of breach, action may be filed by the parties, cannot be the basis of a money claim against the RCA, a government entity under the Office of the President, since the RCA had no authority to bind the government to be sued. Only a statute could. Republic v. Purissima, 78 SCRA 470 (1977) Suability of the State. The Need for a Statute Giving Consent F:

The Rice & Corn Administration (RCA) entered into a contract w/ the Yellow Ball Freight Lines in w/c they agreed that in the event of breach, action may be filed w/ the courts of Mla. In 1972, Yellow filed a money claim against RCA. The case was assigned to resp. Judge., who denied a motion to dismiss filed by RCA relying on the stipulation in the contract of the parties.

HELD: The RCA is part of the govt, being in fact an office under the Office of the Pres. and therefore cannot be sued w/o the consent of the State. The consent to be effective.... must come from the State, acting thru a duly enacted statute. Thus, whatever counsel for def. RCA agreed to had no binding force in the govt. That was clearly beyond the scope of his authority. In Republic v Feliciano, 148 SCRa 424, the SC held that the Proclamation of the President of the Philippines (recognizing private rights to the land) cannot be the source of consent, since the Proclamation is not a legislative act. VV. Republic v Feliciano, supra. Express consent: (1) Money claims arising from contracts, express or implied. Act No. 3083. An Act Defining the Conditions under which the Government of the Philippines may be Sued. Sec. 1. Subject to the provisions of this Act, the Government of the Philippines hereby consents and submits to be sued upon any moneyed claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties.

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Sec. 2. A person desiring to avail himself of the privilege herein conferred must show that he has presented his claim to the Commission on Audit and that the latter did not decide the same within two months from the date of its presentation. Sec. 3. Original actions brought pursuant to the authority conferred in this Act shall be instituted in the Regional Trial Court of the City of Manila or of the province where the claimant resides, at the option of the latter, upon which court exclusive original jurisdiction is hereby conferred to hear and determine such actions. Sec. 4. Actions instituted as aforesaid shall be governed by the same rules of procedure, both original and appellate, as if the litigants were private parties. Sec. 5. When the Government of the Philippines is plaintiff in an action instituted in any court of original jurisdiction, the defendant shall have the right to assert therein, by way of set-off or counterclaim in a similar action between private parties. Sec. 6. Process in actions brought against the Government of the Philippines pursuant to the authority granted in this Act shall be served upon the Solicitor-General whose duty it shall be to appear and make defense, either himself or through delegates. Sec. 7. No execution shall issue upon any judgment rendered by any court against the Government of the Philippines under the provisions of this Act; but a copy thereof duly certified by the clerk of the Court in which judgment is rendered shall be transmitted by such clerk to the President of the Philippines, within five days after the same becomes final. Sec. 8. The President of the Philippines, at the commencement of each regular session of the Legislature, shall transmit to that body for appropriate action all decisions so received by him, and if said body determine that payment should be made, it shall appropriate the sum which the Government has been sentenced to pay, including the same in the appropriations for the ensuing year. Sec. 9. This Act shall take effect on its approval. Approved, March 16, 1923.

Com. Act 327. An Act Fixing the Time within which the Auditor General shall Render His Decisions and Prescribing the Manner of Appeal Therefrom. Sec. 1. In all cases involving the settlement of accounts or claims, other than those of accountable officers, the Auditor General shall act and decide the same within sixty days, exclusive of Sundays and holidays, after their presentation. If said accounts or claims need reference to other persons, office or offices, or to a party interested, the period aforesaid shall be counted from the time the last comment necessary to a proper decision is received by him. With respect to the accounts of accountable officers, the Auditor General shall act on the same within one hundred days after their submission, Sundays and holidays excepted. In case of accounts or claims already submitted to but still pending decision by the Auditor General on or before the approval of this Act, the periods provided in this section shall commence from the date of such approval. Sec. 2. The party aggrieved by the final decision of the Auditor General in the settlement of an account or claim may, within thirty days from receipt of the decision, take an appeal in writing: (a) xxx

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(b) To the President of the Philippines, or (c) To the Supreme Court of the Philippines, if the appellant is a private person or entity. If there are more than one appellant, all appeals shall be taken to the same authority resorted to by the first appellant. From a decision adversely affecting the interests of the Government, the appeal may be taken by the proper head of the department or in case of local governments by the head of the office or branch of the Government immediately concerned. The appeal shall specifically set forth the particular action of the Auditor General to which exception is taken with the reasons and authorities relied on for reversing such decision. Sec. 3. This Act shall take effect upon its approval. Approved, June 18, 1938.

Sec. 2 of CA 327 has been amended by Sec. 50 of PD 1445 and by Sec. 35, Chapter 5, Subtitle B, Title I, Book V, Administrative Code of the Philippines, as follows: Sec. 50. Appeal from decisions of the Commission.-- The party aggrieved by any decision, order, or ruling of the Commission may within thirty days from his receipt of a copy thereof appeal on certiorari to the Supreme Court in the manner provided by law and the Rules of Court. When the decision, order, or ruling adversely affects the interests of any government agency, the appeal may be taken by the proper head of that agency. (PD 1445.) Sec. 35. Appeal from Decision of the Commission.-- Any decision, order or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof in the manner provided by law and the Rules of Court. When the decision, order or ruling adversely affects the interest of any government agency, the appeal may be taken by the proper head of that agency. (Subtitle B, Title I, Book V, Administrative Code of the Philippines.)

Before the 1987 Constitution, the law in force was Act 3038 and CA 327 which, according to Sayson v Singson (a suit to compel payment of electrical supplies delivered to CAA), allowed suit only for money claims arising from contract, and providing a special procedure. Under this procedure, the claim must be filed with the Auditor General (now, COA). If the Auditor did not act within 60 days, then the claimant could file his claim with the RTC. But if the Auditor rendered a decision, then the appeal could be made to the SC, unless the claimant was a public official in which case appeal was to the President. Art. IX of the 1987 Constitution now gives a different procedure. All money claims are to be filed with COA, which has 60 days within which to act. If it fails to so act, the claimant must wait anyway. Once a decision has been made, he has, within 30 days to appeal by certiorari to the SC. Sayson v. Singson, 54 SCRA 282 (1973)

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F:

In 1/67, the Office of the District Engr. requisitioned various spare parts for the repair of a D-8 Bulldozer. A public bidding for the said items was conducted wherein the awards committee accepted the winning bid of P43,530 given by Singkier Motor Service owned by resp. Singson. Said award was approved by the Sec. of Public Works and Comm. who then directed the immediate delivery of the parts. In due course, the voucher w/c covered the transaction reached the hands of petitioner Highway Auditor Sayson who then made inquiries about the reasonableness of the price. After finding the price reasonable (as was evidenced by the indorsements of the Div. Engr. and the Comm. of Public Highways, the approval of the Sec. of PW & C, and the verification of the representative of the Bureau of Supply Coordination), petitioner approved and effected payment of the voucher and withheld the 20% equivalent of P8,706 in order to submit the documents covering the transaction to the Supervising Auditor for review. After making a canvass, the General Auditing Office determined the transaction to be overpriced by at least P40,000. Malversation charges were failed against the district engr. and civil engr. involved. A mandamus suit was filed by the resp. w/c sought to compel petitioner government auditors to approve the payment of the voucher covering the balance. The LC decided in favor of resp. Singson. Hence this appeal by certiorari.

HELD: It is apparent that resp. Singson's cause of action is a money claim against the Govt, for the payment of the alleged balance of the cost of spare parts supplied by him to the Bureau of Public Highways. Assuming momentarily the validity of such claim, mandamus is not the remedy to enforce the collection of such claim against the State ***, but an ordinary action for specific performance***. Actually, the suit disguised as one for mandamus to compel the Auditors to approve the vouchers for payment, is a suit against the State, w/c cannot prosper or be entertained by the Court except w/ the consent of the State***. In other words, the resp. should have filed his claim w/ the General Auditing Office, under the provisions of CA 327*** w/c prescribe the conditions under w/c money claim against the government may be filed. xxx It is true that once consent is secured, an action may be filed. There is nothing to prevent the State, however, in such statutory grant, to require that certain administrative proceedings be had and be exhausted. Also, in the proper forum in the judicial hierarchy can be specified if thereafter an appeal would be taken by the party aggrieved. Here, there was no ruling of the Auditor Gen. Even had there been such , the court to w/c the matter should have been elevated is this Tribunal; the LC could not legally act on the matter. Adapted. (2) Quasi-delicts committed by special agents Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx The State is responsible in like manner when it acts through a special agent, but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Art. 2176 shall be applicable. xxx (Civil Code.) Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (ibid.)

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Art. 2180 of the Civil Code allows a suit against the government for quasi-delicts committed by the government when acting through special agents (those performing non-regular functions) But if the tortious act was committed by a regular employee, the injured party could only bring a suit for damages against the employee in his personal capacity. It should be noted in this connection, that in Merritt vs Govt. of the Philippine Islands, 34 Phil 311, the SC said that it is therefore evident that the State is only liable for acts of its agents, officers and EEs when they act as special agents within the meaning of Art. 1903 (now Art. 2180) and that the chauffeur of the ambulance of the General Hospital was not such agent. In this case, the Philippine General Hospital (PGH), the agency involved, did not yet have separate legal personality from the Philippine Govt. It should further be noted that the plaintiff was allowed to sue by virtue of a special law but was unable to hold the defendant govt. liable since the injuries were caused by a regular driver of the govt. and not a special agent. Merritt v Government of the Philippine Islands, 34 Phil 311 F: Merritt, while riding his motorcycle was hit by an ambulance owned by the Philippine General Hospital. It was driven by a driver employed by the hospital. In order for Merritt to sue the Philippine government, Act No. 2457 was enacted by the Philippine Legislature authorizing E. Merritt to bring suit against the Government of the Philippine Islands and authorizing the Attorney-General of said Islands to appear in said suit. A suit was then filed before the CFI of Manila which fixed the responsibility for the collision solely on the ambulance driver and determined the amount of damages to be awarded to Merritt. Both parties appealed from the decision, plaintiff Merritt as to the amount of damages and defendant in rendering the amount against the government. ISSUE: Did the defendant in enacting Act No. 2457 simply waive its immunity from suit or did it also concede its liability to the plaintiff? HELD: By consenting to be sued, a state simply waives its immunity from suit. It does not thereby concede its liability to the plaintiff, or create any cause of action in his favor, or extend its liability to any cause not previously recognized. It merely gives a remedy to enforce a preexisting liability and submit itself to the jurisdiction of the court, subject to its right to interpose any lawful defense. Act No. 2457 authorizes E. Merritt to bring suit for the purpose of fixing the responsibility for the collision and determining the amount of damages, if any, to which E. Merritt is entitled on account of said collision. The government did not assume any liability under the Act. The Government of the Philippine Islands is only liable, for the acts of its agents, officers and employees when they act as special agents within the meaning of paragraph 5 of A1903, OCC (par. 6, Art. 2180, NCC). A special agent is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official. The special agent acts in representation of the state and executes the trust confided to him. This concept does not apply to any executive agent who is an employee of the active administration

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and who on his own responsibility performs the functions w/c are inherent in and naturally pertain to his office and w/c are regulated by law and the regulations. The responsibility of the State is limited to that w/c it contracts through a special agent, duly empowered by a definite order or commission to perform some act or charged w/ some definite purpose w/c gives rise to the claim, and not were the claim is based on acts or omissions imputable to a public official charged w/ some administrative or technical office who can be held to the proper responsibility in the manner laid down by the law of civil responsibility. The chauffeur of the ambulance of the General Hospital was not such an agent. Adapted. US v. Ceballos, 182 SCRA 644 F:

Resp. was employed as barracks boy in Camp O'Donnel, and was arrested following a buy-bust operation conducted by petitioners, who are officers of the US Air Force and special agents of the Air Force Office of Special Investigators. Petitioners filed charges against resp. for violation of RA 6425 and testified against him at the trial. Resp was dismissed from employment as a result of the filing of the charge. Resp. filed a complaint for damages against petitioners for his removal. Defendants (petitioners herein) filed the affirmative defense that they had only done their duty in the enforcement of Phil. laws inside the American bases pursuant to the RP-US MBA. Later, their counsel filed a motion to withdraw answer and moved for the dismissal of the complaint on the ground that defendants were acting in their official capacity and that the complaint against t hem was in effect a suit against the US w/o its consent.

HELD: Petitioners cannot be directly impleaded for acts imputable to their principal w/c has not given its consent to be sued. Petitioners were acting in the exercise of their official functions when they conducted the buy-bust operation. Pvt resp. invoke Art. 2180, NCC w/c holds the govt liable if it acts through a special agent. The argument, it would seem, is premised on the ground that since the officers are designated as "special agents," the US govt should be liable for their torts. Suability v. Liability. There seems to be a failure to distinguish bet. suability and liability. Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the pltff the chance to prove, it can, that the def. is liable. The said art. establishes a rule of liability, not suability. The govt may be held liable under this art. only if it first allows itself to be sued through any of the accepted forms of consent. Moreover, the agent performing his regular functions is not a special agent even if he is so denominated, as in the case at bar. No less important, the said provision appears to regulate only the relations of the local state w/ its inhabitants and, hence, applies only to the Phil. govt and not to foreign govts impleaded in our courts. We reject the conclusion of the trial court that the answer filed by the special counsel of the Office of the Sheriff Judge Advocate of Clark Air Base was a submission by the US govt to its jurisdiction. Express waiver of immunity cannot be made by a mere counsel of the govt but must be effected through a duly-enacted statute. Neither does such answer come under the implied forms of consent.

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NOTES on the consolidated cases US v. Guinto, et al.: 1. The doctrine of state immunity is sometimes derisively called the "royal prerogative of dishonesty" because of the privilege it grants the state to defeat any legitimate claim against it by simply invoking its non-suability. This implies however that the State may be sued with its consent. 2. The consent of the state to be sued may be manifested expressly or impliedly. Express consent may be embodied in a general law or a special law. Express consent is effected only by the will of the legislature through the medium of a duly enacted statute. Consent is implied when the state enters into a contract or it itself commences litigation. When the govt. enters into a contract, it is deemed to have descended to the level of the other contracting party and divested of its sovereign immunity from suit with its implied consent. However, distinctions must be made between sovereign and proprietary acts. The state may only be liable for proprietary acts. As for the filing of a complaint by the govt., suability will result only where the govt. is claiming afffirmative relief from the defendant. 3. There is no question that the US will be deemed to have impliedly waived its nonsuability if it has entered into a contract in its proprietary or private capacity. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied. 4. In this case, by entering into an employment contract [a proprietary function] with the respondents, the US impliedly divested itself of its sovereign immunity. The state could therefore be sued since such contracts are commercial in nature. Adapted. (3) Incorporation of government-owned or controlled corps. When the government creates a corporation, it invariably provides this corporation a separate entity and with the capacity to sue and be sued. If the government entity is given the capacity to be sued, the suit encompasses any kind of action, including one from tort. In SSS v CA, 120 SCRA 707 (1983), the property of one Socorro Cruz was foreclosed due to the negligence of the regular employees of SSS in mistaking her account, which was updated, with that of another Socorro Cruz, which was in arrears. The SC, in granting nominal damages to the claimant, seemed to be saying that SSS could have invoked the defense of Art. 2180, which it did not. The separate opinion of Makasiar enunciated this. [Note: Consent to be sued includes actions based on quasi-delict even though committed by regular agents and not by special agents.] So the rule, it seems, is that a government entity can be sued for tort, but if it is, it can invoke the defense that it acted through its regular employees, not special agents. PNB vs CIR, 81 SCRA 314 (1978) Since the PHHC had the capacity to be sued, any judgment against it could be enforced by a writ of execution, and its funds could even be garnished. F: The United Homesite Employees and Laborers Association of the People's Homesite and Housing Corporation (PHHC) in a case filed before the Court of Industrial Relations prevailed over PHHC. The final PAGE 71


and executory judgment was sought to be enforced via a writ of garnishment against PHHC's funds deposited with PNB. PNB sought to quash the writ alleging that the funds were "public in character." The motion was denied, hence this petition for certiorari alleging grave abuse of discretion in denying the motion.

HELD: PHHC was a government-owned entity. It has personality distinct and separate from the government. It has all the powers of a corporation under the Corporation Law, accordingly it may sue and be sued and may be subjected to court processes just like any other corporation. By engaging in business through the instrumentality of a corp., the govt divests itself of its sovereign character, so as to render the corp. subject to the rules governing private corporations. Garnishment is a proper remedy for a prevailing party to proceed against the funds of a corporate entity even if owned or controlled by the government. It is well-settled that when the government enters into commercial business, it abandons its sovereign capacity and is to be treated just like any other corporation. (The case was based primarily on NASSCO v CIR, 118 Phil 782.) VV. Rayo vs CFI of Bulacan, 110 SCRA 456 F:

Petitioners are among the many victims of the flooding caused by the simultaneous opening of the three floodgates of Angat Dam during the height of typhoon "Kading". The complaints they filed before the CFI of Bulacan were dismissed for the reason that the NPC in the operation of the Angat Dam is `performing a purely governmental function,' thus it `can not be sued without the express consent of the State.' Respondent CFI denied MRecon, hence, this petition.

HELD: The government has organized a private corporation, put money in it and has allowed it to sue and be sued in any court under its charter [RA 6395, Sec. 3(d)]. As a government owned and controlled corporation, it has a personality of its own, distinct and separate from that of the Government (NASSCO v CIR). Moreover, the charter provision that the NPC can "sue and be sued in any court" is without qualification on the cause of action and accordingly it can include a tort claim such as the one instituted by petitioners. Adapted. SSS V. CA, 120 SCRA 707 (1983) F: The Spouses David and Socorro Cruz obtained a loan from SSS on the security of a lot located in Sto. Rosario, Pateros, Rizal. Claiming that the couple had defaulted in the payment of the monthly amortizations, the SSS applied for the foreclosure of the mortgage. As a result the sheriff scheduled the sale of the prop. mortgaged and notice of the sale was published. It turned out that while the couple failed to pay some of the amortizations on time, at the time of the application for foreclosure, their account was up to date. The SSS mistook the couple's account for that of another one bearing the same name Socorro Cruz, although w/ different middle name. The spouses sued SSS for damages. HELD: (1) Having accepted the late payments of the monthly installments, the SSS could not suddenly and w/o prior notice to the couple apply for the extrajudicial foreclosure of their mortgage. There was negligence on the part of the SSS when it mistook the loan account of Socorro J. Cruz for that of Socorro C. Cruz. Its attention was called to the error but it refused to acknowledge its mistake. SSS should, thus, be held liable for nominal damages.

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(2) Under its charter [RA 1161, sec. 4(k)] the SSS can sue and be sued. So, even assuming that the SSS enjoys immunity from suit as an entity performing governmental functions by virtue of the explicit provision of the enabling law, it can be sued. The government must be deemed to have waived immunity in respect of the SSS, although it does not thereby concede its liability. Makasiar, dissenting: xxx. The provision that it can be sued and be sued merely allows a private citizen a remedy for the enforcement of his rights but always subject to the defense of the govt. Since under Art. 2180, NCC the State is liable for tort only when it acts through special agents but not when it acts through officials to whom the task done properly pertains and who alone are liable for their torts, the SSS cannot be held liable for damages in this case. VV. Implied consent: (1) When the government enters into business contracts When the government is in the performance of governmental function (jure imperii), even if it enters into a contract with private persons, it cannot be sued without its consent. Thus in United States v Ruiz, 136 SCRA 487 (1985). a contract for the repair of wharves and piers at the naval base in Subic was held to be in line with the governmental function of the US Government and so the immunity existed. But when the government enters into commercial contracts and descends to the status of ordinary persons (jure gestioni), it can be sued like any other person. In Malong v PNR, 138 SCRA 63 (1985), it was held that when the state organized the Philippine National Railway, it divested itself of its sovereign capacity, and so became liable for damages that arose from the death of one who fell from an overloaded train. United States of America v. Ruiz, 136 SCRA 487 (1985) State Immunity from Suits Extends to contracts Relating to Sovereign Functions. F:

In 5/72, the US advertised for bid projects involving the repair of wharves and certain works on the shorelines at its naval base in Subic, Zambales. Eligio de Guzman & Co., Inc. (EG & Co.) submitted proposals in connection w/ w/c it received 2 telegrams from the US govt asking it to confirm its price proposals and the name of its bonding co. However, in 6/82, EG & Co. was informed that its proposals had been rejected and the projects had been awarded to 3rd parties. EG & Co. brought suit in the CFI to compel the US govt to allow it to perform the work on the projects. It also asked for a writ of prel. inj. to restrain the US govt from entering into contract w/ 3rd parties for work on the projects. The US govt moved to dismiss the complaint, but its motion was denied. Hence the petition for review.

HELD: It has been necessary to distinguish bet. sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis.) The result is that State immunity now extends only to acts jure imperii. However, the resp. Judge held that by entering into a contract for the repair of wharves or shorelines the State did not act in its governmental capacity.

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A state may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. The rule does not apply where the contract relates to the exercise of its sovereign functions. In this case the projects are an integral part of the naval base w/c is devoted to the defense of both the US and the Phils., indisputably a function of the govt of the highest order; they are not utilized for, nor dedicated to, commercial or business purpose. VV.

Malong v PNR, 138 SCRA 63 (1985) PNR not Immune from Suit F:

The petitioners sued the Philippine National Railway (PNR) for damages for the death of their son who fell from an overloaded PNR train on 10/30/77. However, the trial court dismissed the suit on the ground that, under its charter as amended by PD 741, the PNR had been made a government instrumentality, and that as such it is immune from suit.

HELD: The correct rule is that "not all government entities, whether corporate or noncorporate, are immune from suits. Immunity from suit is determined by the character of the objects for w/c the entity is organized." When the govt enters into a commercial transaction it abandons its sovereign capacity and is to be treated like any other corp. In this case, the state divested itself of its sovereign capacity when it organized the PNR, w/c is no different from its predecessor, the Manila Railroad Co. VV. (2) When it would be inequitable for the state to invoke its immunity, or when it takes private property for public use or purpose. In Amigable v Cuenca, (43 SCRA 360), Alfonso v Pasay and Ministerio v CFI, 40 SCRA 464, the SC allowed suit for the recovery of possession of titled lands previously (decades) taken over by the government for expansion of roads without just compensation and the proper expropriation proceedings. In so holding, it said that it would be unjust for the government to invoke immunity after it has itself violated the rights of the parties-claimant by taking over the possession of the lands. In Santiago v Republic, 87 SCRA 294 (1978), the SC allowed the revocation of a deed of donation made to the Bureau of Plant Industry for its failure to comply with the condition that it should install a lightning and water system on the property and build an office building with parking lot before a certain date. It would be unfair, said the court, for the government to invoke its immunity after gratuitously receiving property and not fulfilling its conditions. The case of Commissioner of Public Highways vs Burgos, 96 SCRA 831, simply implemented the ruling in Amigable vs Cuenca, 43 SCRA 360. In the earlier case, the question

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raised was the right of the plaintiff to sue the govt. for recovery of the value of her property which had been converted into public streets without payment to her of just compensation. Although it was shown that she had not previously filed her claim with the Auditor General as normally required, the SC decided in her favor. The SC held that the doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen. In this instant case, the SC fixed just compensation based on the market value of the land at the time of the taking.

Santiago v. Republic, 87 SCRA 284 (1978) Consent to be Sued Presumed where Allowance of Immunity Would be Inequitable F:

Petitioner filed an action in the CFI of Zamboanga City for the revocation of a deed of donation w/c he and his wife had made to the Bureau of Plant Industry. He claimed that the donee failed to comply w/ the condition of the donation that the donee should install a lighting and water system on the prop. and build an office building w/ parking lot thereon not later than 12/7/74. The trial court dismissed the action on the ground of sovereign immunity.

HELD: Ordinarily, a suit of this nature cannot prosper. It would, however, be manifestly unfair for the govt, as donee, w/c is alleged to have violated the condition under w/c it received gratuitously certain prop., to invoke its immunity. Since it would be against equity and justice to allow such a defense in this case, consent to be sued could be presumed. VV. Commissioner of Public Highways v Burgos, 96 SCRA 831 (1980) F:

Priv. respondent Victoria Amigable was the owner of a parcel of land in Cebu City; sometime in 1924 the Government took this land for road-right-of-way purpose. In 1959, she filed in the CFI of Cebu a complaint for recovery of ownership and possession plus damages. This complaint was dismissed on the grounds of estoppel and the statute of limitations and also on the ground of non-suability of the Government. The SC on appeal reversed the CFI and remanded the case for the purpose of determining the compensation to be paid Amigable, directing that to determine just compensation for the land, the basis should be the price or value thereof at the time of the taking. Respondent judge, however did not heed the directive but instead took into account supervening inflation of the currency and adjusted the value in accordance with the prevailing peso-dollar exchange rate. His basis was Article 1250 of the Civil Code. The Sol-Gen appealed the decision.

HELD: Art. 1250 applies only to cases where a contract or agreement is involved. It does not apply where the obligation to pay arises from law, independent of contract. The taking of private property by the Government in the exercise of its power of eminent domain does not give rise to a contractual obligation. The value of the property at the time the govt took possession of the land in question, not the increased value resulting from the passage of time, w/c invariably brings unearned increment to real estate, represents the value to be paid as just compensation for the prop. taken. Adapted.

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(3) If the Govt. files a complaint, defendant may file a counterclaim against it In Froilan vs Oriental Pan Shipping, GR L-6060 (Sept. 30, 1950), the SC held that when the State itself files a complaint, the defendant is entitled to file a counterclaim against it. This is based on equitable grounds. The SC ruled that the govt. impliedly allowed itself to be sued when it filed a complaint in intervention for the purpose of asserting a claim for affirmative relief against the plaintiff, to wit, recovery of a vessel. Froilan vs Oriental Pan Shipping, 12 SCRA 276, GR L-6060 (Sept. 30, 1950) F: Froilan purchased from Shipping Commission a vessel for P200,000 paying P50 T downpayment. A

CM was executed to secure the payment of the balance. For various reasons including non-payment of installments, the Commission took possession of the vessel and considered the contract of sale cancelled. The Commission chartered and delivered said vessel to Pan Oriental. Froilan appealed from the action of the Commission and he was restored to all the rights under the original contract. However, Pan Oriental retained the possession of the vessel. Froilan filed a complaint to recover possession of the vessel. A writ of replevin was issued. The Govt intervened alleging that Froilan failed to pay the balance to the Commission; that the intervenor was entitled to the possession of said vessel under the terms of the original contract or in order for it to effect the extrajudicial foreclosure of the mortgage. Pan Oriental answered the complaint in intervention praying that if RP succeeded in obtaining the possession of the vessel, to comply w/ its obligation of delivering it to Pan Oriental pursuant to their contract of bareboat charter w/ option to purchase. Complaint in intervention was dismissed upon Froilan's payment of his account to the RP. RP filed a motion to dismiss the counterclaim w/c Pan Oriental had filed against it in view of the court's order dismissing the complaint in intervention. Counterclaim of Pan O. against RP was dismissed. Hence, this appeal. RP raised, among others, as ground for the dismissal of Pan O's counterclaim, the State's immunity from suit.

HELD: By filing its complaint in intervention, the govt in effect waived its right of nonsuability. Stated otherwise, by taking the initiative in an action against a private party, the State surrendered its privileged position and came down to the level of the def. The latter automatically acquires, w/in certain limits, the right to set up whatever claims and other defenses he might have against the State. Adapted. (d) Scope of consent (1) Under Act No.3083 Sec. 1. Subject to the provisions of this Act, the Government of the Philippines hereby consents and submits to be sued upon any moneyed claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties. xxx

When a money judgment is given against the government, the ordinary rule for execution would not apply, for the consent of the government to be sued is only up to the point of judgment. If it does not pay, it cannot be compelled to pay by attachment or otherwise (how does one attach the Quezon bridge?)

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The procedure is for one to furnish the Office of the President with the decision so it could include the amount in the budget for the next year as the basis for appropriation (since there can be no disbursement of public funds except in pursuance of law). If the judge nonetheless issues a writ of execution against government funds or property, no ordinary civil action can be filed against the judge, unless there is a showing of malice. But, a reinstatement of the funds to government accounts and refund by the private party can be ordered. (Commissioner of Public Highways v San Diego, 31 SCRA 616 (1970), reiterating the case of Alsua v Johnson.) Commissioner of Public Highways v San Diego, 31 SCRA 616 (1970) F:

On 11/20/40, the Govt filed a complaint for eminent domain (ED) in the CFI for the expropriation of land belonging to N.T. Hashim needed to construct EDSA. On 11/25/40, the Govt took possession of the prop. upon deposit w/ the city treasurer of the sum fixed by the court as the provisional value of all the lots needed to construct the road. In 1958, the estate of Hashim, through its Judicial Administrator, Tomas Hashim, filed a money claim w/ the QC Engr's Office, w/c was alleged to be the FMV of the prop. in question. Nothing having come out of the claim, the estate filed a complaint for the recovery of the FMV against the Bureau of Public Highways (BPH.) The parties entered into a compromise agreement w/c was approved by the CFI. The estate filed a motion for the issuance of a writ of execution, w/c the court granted. A notice of garnishment, together w/ a writ of execution was served on PNB, notifying it that levy was thereby made upon the funds of petitioner Bureau and the Auditor General on deposit. Resp. Coruna, in his capacity as Chief, Documentation Staff of PNB's Legal Dept., authorized the issuance of a cashier's check of the bank in the amount of the judgment/ compromise agreement. Petitioners contend that PNB acted precipitately in having delivered the amount w/o affording petitioner Bureau a reasonable time to contest the validity of the garnishment. It demands that the bank credit the petitioner's account w/ the amount garnished.

HELD: Although the govt, as pltff. in expropriation proceedings, submits itself to the jurisdiction of the Court and thereby waives its immunity from suit, the judgement that is thus rendered requiring its payment of the award determined as just compensation for the condemned prop. as a condition precedent to the transfer to the title thereto in its favor, cannot be realized upon execution. xxx [It] is incumbent upon the legislature to appropriate any additional amount, over and above the provisional deposit, that may be necessary to pay the award determined in the judgment, since the Govt cannot keep the land and dishonor the judgment. xxx The universal rule that where the State gives its consent to be sued by private parties either by general or special law, it may limit claimant's claim "only up to the completion of proceedings anterior to the stage of execution" and that the power of the Courts end when the judgment is rendered, since govt funds and properties may not be seized under writs of execution or garnishment to satisfy such judgments, is based on obvious considerations of public policy. Disbursements of public funds must be covered by the corresponding appropriations as required by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law. RAM. (2) Under a charter

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When consent to be sued is provided by the charter, the consent does not stop with the rendition, but goes up to the satisfaction of the judgment. In PNB v CIR, 81 SCRA 314 (1978), the SC held that since the PHHC had the capacity to be sued, any judgment against it could be enforced by a writ of execution, and its funds could even be garnished. PNB v CIR, 81 SCRA 314 (1978), supra. (not in V. V. Mendoza's revised outline). (e) Measure of recovery When property has been unlawfully taken by the government so that it is now compelled to make payment, the measure of recovery is the fair market value of the property at the time of taking (Ministerio v CFI, 40 SCRA 464). The value of the peso in relation to the dollar at the time of taking cannot be considered. For Art 1250 of the Civil Code concerning supervening inflation has no application in eminent domain cases, being applicable only to contractual obligations [Commissioner of Public Highways v Burgos, 96 SCRA 831 (1980)]. Ultimately, the face value of the peso then is the amount to be paid now. D. Government 1. Government is that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them. Government is the aggregate of authorities which rule a society. (US v Dorr, 2 Phil 332, 339). U.S. vs. Dorr (2 Phil 332) F:

The defendants were convicted upon a complaint charging them with the offense of writing, publishing, and circulating a scurrilous libel against the Government of the United States and the Insular Government of the Philippine Islands. The complaint is based upon Sec. 8 of Act No. 292 of the Commission which punishes any person who shall "utter seditious words or speeches, write, publish, or circulate scurrilous libels against the U.S. Government or the Insular Goverment of the Phil. Islands, or which tend to disturb or obstruct any lawful officer in executing his office, or which tend to instigate others to cabal or meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which tend to stir up the people against the unlawful authorities x x x". The alleged libel was published as an editorial in the issue of the "Manila Freedom". The article mentioned about the "foolish work that the Civil Commission is doing all over the Islands" referring to the appointment by the latter of natives which were referred to as "insurgents" and "rogues" to important Government positions.

ISSUE: Whether the publication constitutes an offense under Sec. 8 of ACT. No. 292

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HELD: NO. The term "government" as employed in ACT No. 292 of the U.S. Philippine Commission is used in the abstract sense of the existing political system as distinguished from the concrete organism of the Government. The article in question contains no attack upon the governmental system of the U.S., and it is quite apparent that, though grossly abusive as respects both the Commission as a body and some of its individual members, it contains no attack upon the governmental system by which the authority of the U.S. is enforced in these islands. The form of Goverment by a Civil Commission and a Civil Governor is not assailed. It is the character of the men who are instructed with the administration of the government that the writer is seeking to bring into disrepute. Adapted. Note on the case: Administration means the aggregate of those persons in whose hands the reins of the govt are for the time being (entrusted.) (not in VV's outline) a. Functions Cruz: The govt performs two kinds of functions, to wit, the constituent and the ministrant. Constituent functions constitute the very bonds of society and are therefore compulsory. xxx Ministrant functions are those undertaken to advance the general interests of society, such as public works, public charity, and regulation of trade and industry. These functions are merely optional. xxx To our SC, however, the distinction bet. constituent and ministrant functions is not relevant in our jurisdiction. In PVTA v. CIR, 65 SCRA 416, it reiterated the ruling in ACCFA v. Federation of Labor Unions, 30 SCRA 649, that such distinction has been blurred bec. of the repudiation of the laissez faire policy in the Consti. xxx b. Doctrine of Parens Patriae Cruz: One of the important tasks of the govt is to act for the State as parens patriae, or guardian of the rights of the people. xxx This prerogative of parens patriae is inherent in the supreme power every State, whether that power is lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are sometimes exerted by irresponsible monarchs to the great detriment of the people and the destruction of their liberties.

c. De Jure and De Facto Governments Cruz: PAGE 79


A de jure govt has rightful title but no power or control, either bec. this has been withdrawn from it or bec. it has not yet actually entered into the exercise thereof. A de facto govt, on the other hand, is a govt of fact, that is, it actually exercises power or control but w/o legal title. The three kinds of de facto govt are as follows: (1) The govt that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal govt and maintans itself against the will of the latter. (2) That established as an independent govt by the inhabitants of a country who rise in insurrection against the parent state. (3) That which is established and maintained by military forces who invade and occupy a territory of the enemey in the course of war, and w/c is denominated as a govt of paramount force, like the Second Republic of the Phils. established by the Japanese belligerent. The characteristics of this kind of de facto govt are: (a) Its existence is maintained by active military power w/in the territories, and against the rightful authority of an established and lawful govt. (b) During its existence, it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, as wrongdoers, for those acts, though not warranted by the laws of the rightful govt. 2. "Government of the Philippines" defined Government of the Republic of the Philippines is defined as "the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other form of local government." [Adinistrative Code of 1987, Sec. 2(1).] Case: NACOCO is a government entity organized to promote the coconut industry. In a litigation concerning NACOCO, the government counsel appeared for it and obtained a transcript of stenographic notes. Under the Rules of Court, the government is exempted from payment of the transcript. Is NACOCO part of the government? The SC held that it is not because NACOCO was organized to perform ministrant functions. But according to Confederation of Government Employees v Agrarian Reform, the distinction between the two functions of the government - constituent and ministrant - no longer holds under the 1935 Constitution, which imposed a greater role on the government. III. PRINCIPLES AND POLICIES OF THE PHILIPPINE GOVERNMENT (not in V.V. Mendoza's revised outline) Preamble

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We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution. While the 1935 Constitution started with "The Filipino people ..." , the 1973 and 1987 Constitutions begin the preamble with "We, the sovereign Filipino people ..." The change from third person point of view to a first person point of view emphasizes that the Filipinos themselves are the ones establishing the Constitution. The third person presupposes someone talking about the Filipino people, and yet that someone is himself a Filipino. While the 1935 and 1973 Constitutions referred to the Divine Providence, the 1987 Constitution refers Almighty God, which is more personal. A preamble has two functions: (1) identify the authors of the Constitution, and (2) state the general principles upon which the Constitution is founded. (Sets the tone for the succeeding provisions.) A. Principles It is a standard to be observed because it is required by justice or fairness or other dimensions of morality 1. Sovereignty of its People and Republicanism Art. II, Sec. 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. Art. V. SUFFRAGE. Sec. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage. Sec. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad. The Congress shall also design a procedure for the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecy of the ballot. (not in VV's outline)

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Art. VI, Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by provision on initiative and referendum. Under this principle, the Philippines is a democratic state that is, a government for, of, and by the people. But it is not a pure democracy. Thus, while it is true that the people are the possessors of sovereign power, it is equally the case that they cannot exercise the powers of government directly, but only through the medium of their duly elected representatives. Their participation in government consists of : 1) Suffrage - electing the officials to whom they delegate the right of government. 2) Plebiscite a) ratifying the Constitution b) approving any amendment thereto c) with respect to local matters, approving any changes in boundaries, mergers, divisions, and even abolition of local offices d) creating metropolitan authorities, and e) creating autonomous regions 3) Initiative and referendum - enacting or proposing laws, local or national, in a referendum. 4) Recall (Under the Local Government Code.) [as added by Prof. Barlongay.] Barlongay: Features of Republicanism: 1. 2. 3. 4.

It is a govt of laws and not of men; There is periodic holding of elections; There is observance of principle of separation of powers and of checks and balances; There is observance of the role that the legislature cannot pass or enact irrepealable laws.

2. Adherence to International Law Preamble We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and

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secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution. Art. II, Sec. 2. The Philippines renounces war as an instrument of national policy, adopt 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. "Adopts the generally accepted principles of international law" means the Philippines uses the incorporation theory. Without need of statute, these principles of international law become part of the Philippine body of laws from the municipal point of view. "Adherence to the principles of international law" was adopted from the Kellogg Brian Pact. Art. II, Sec. 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self- determination. Art. II, Sec. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory. "Consistent with national interest" admits of two interpretations. One view holds that the Constitution itself has decided to have no nuclear interest as the policy of the State. The other view holds that, as shown by the deliberations of the Constitutional Commission, the phrase should be read as "subject to national interest" which means that the issue of whether to allow the stock-piling of nuclear weapons depends on Congressional policy . It is the intent and sense of the Constitutional Commission that the phrase "consistent with national interest" xxx also means "subject to the national interest." (Joaquin Bernas, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A Commentary, vol. II, 1988 ed.)

Art. XVIII, Sec. 4. All existing treaties or international agreements which have not been ratified shall not be renewed or extended without the concurrence of at least 2/3 of all the members of the Senate. Art. XVIII, Sec. 25. After the expiration in 1991 of the Agreement between Republic of the Philippines and United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress requires, ratified by a majority of votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting parties.

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The reason why the agreement must be recognized as a treaty by the other contracting state is so it is approved by its own Senate, and not just by its President (executive agreement), thus, committing its legislature to honor the agreement and preventing it from refusing appropriations therefore. 3. Supremacy of Civilian Authority Art. II, Sec. 3. Civilian authority is at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of that national territory. Art. VII, Sec. 18. The President shall be the Commander-in- Chief of all armed forces of the Philippines, and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorise the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. Art. XVI, Sec. 4. The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and service, as may be provided by law. It shall keep a regular force necessary for the security of the State. Art. XVI, Sec. 5. (1) All members of the Armed Forces of the Philippines shall take an oath or affirmation to uphold and defend the Constitution. (2) The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty. PAGE 84


(3) Professionalism in the Armed Forces of the Philippines and adequate remuneration and benefits of its members shall be a prime concern of the State. The Armed Forces of the Philippines shall be insulated from partisan politics. No member of the military shall engage directly or indirectly in any partisan political activity. (4) No members of the Armed Forces of the Philippines in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries. (5) Laws on retirement of military officers shall not allow extension of their service. (6) The officers and men of the regular force of the Armed Forces of the Philippines shall be recruited proportionately from all provinces and cities as far as practicable. (7) The tour of duty of the Chief of Staff of the Armed Forces of the Philippines shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty. (not in VV's outline) Sec. 6. The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law. The supremacy of civilian rule over the military is ensured by, (i) the installation of the President, the highest civilian authority, as the commander-in-chief of the military, (ii) the requirement that members of the AFP swear to uphold and defend the Constitution, which is the fundamental law of the civil government, (iii) the professionalization of the service and the strengthening of the patriotism and nationalism, and respect for human rights, of the military, (iv) insulation of the AFP from partisan politics, (v) prohibition against the appointment to a civil position, (vi) compulsory retirement of officers (no over- staying of officers), so as to avoid propagation of power), (vii) a 3-year limitation on the tour of duty of the Chief of Staff, which although extendible in case of emergency by the President, depends on Congressional declaration of emergency, (viii) requirement of professional recruitment, so as to avoid any regional clique from forming within the AFP, as well as (ix) the establishment of a police force that is not only civilian character but also under the local executives. 4. Government as Protector of the People and People as Defenders of the State Art. II Sec. 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required under conditions provided by law, to render personal, military or civil service. Art. II, Sec. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare, are essential for the enjoyment by all the people of the blessing of democracy.

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Note the emphasis on the government as servant of the people, rather than vice-versa. Note also that the people may by law are required to render "personal" (not proxy) military or civil service. 5. Separation of Church and State Art. II, Sec. 6. The separation of the Church and State shall be inviolable. Art. III, Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. Art. IX, C, Sec. 2(5) xxx Religious denominations and sects shall not be registered (as a political party, organization, or coalition by the COMELEC). Art. VI, Sec. 5(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to the party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. Exceptions: Art. VI, Sec. 28(3). Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. Sec. 29(2). No public money or property shall be appropriated, applied, paid or employed directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the Armed Forces of the Philippines, or any penal institution, or government orphanage or leprosarium. Art. XIV, Sec. 3(3). At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government. Sec. 4(2). Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or PAGE 86


associations at least 60% of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions. The control and administration of educational institutions shall be vested in citizens of the Philippines. No educational institutions shall be established exclusively for aliens and no group of aliens shall comprise more than 1/3 of the enrollment in any school. The provisions of this subsection shall not apply to schools established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other foreign temporary residents. The classic case in separation of church and state is Pamil v Teleron, which invalidated the selection to a local post of Fr. Gonzaga, (note however, that ecclesiastics are not prohibited from running for Congress). It is difficult to draw the line between separation of Church and State. In Elizalde v Victoriano, for instance, a law exempting members of Iglesia ni Kristo from the requirement that all employees must join a union as condition for continued employment, pursuant to a closedshop agreement in the CBA, on the ground that it is prohibited by their religion, was held valid. For although the law amounted to an establishment of religion, it was likewise promoting the free exercise thereof. The non-establishment clause is not violated, however, if the benefit derived by a religion from the expenditure of public funds is merely incidental to public purpose. Thus, in Aglipay v Ruiz, the SC held that the stamps printed by the government to commemorate the 33rd International Eucharistic Congress in Manila did not violate the separation of church and state, because its main purpose was to promote Manila as seat of the congress and thus to attract tourists to its (the stamp showed the map of the Philippines, not a chalice). Not having been inspired by any sectarian feeling to favor a denomination nor to benefit the Roman Catholic Church, whatever religious character the stamp had was only incidental and uncontemplated. While the Constitution mandates separation of Church and State through (1) NonEstablishment, Free Exercise and No Religious Test clauses in the Bill of Rights, (ii) the disallowance of the religious sector from being registered as a political party and from being appointed as sectoral representatives of Congress, yet it allows exceptions to the rule. (1) The exemption of religious institutions from taxation is a recognition that the Church is not all separate from State, for if they were really so, the Church should be taxed by State like any other entity. (2) Public funds, while generally prohibited from being spent for religious purposes as an aspect of the Non- Establishment clause, may be applied to priest rendering religious service to the AFP, a penal institution, or a government orphanage or leprosarium. The reason is the exigency of the service. If members of the AFP had to go out of the barracks to attend to their spiritual needs, national security might be endangered; if inmates were allowed to go out of jail to hear mass, they might never return; and if lepers were allowed out of the leprosarium, they might contaminate others.

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The general prohibition, however, does not apply to a priest who, for instance, teaches Mathematics at UP, for payment in this case is not for religious activities but for teaching of a secular subject. (3) The permission to have optimal religious instruction during regular class hours upon written request of the parent or guardian, to be taught by a teacher approved by the authorities of the religion of which the child is a member, provided it is without cost to the government is a new provision in the Constitution. Under the old Administrative Code, the instruction could not be within regular class hours. Under A359 of the Civil Code, religious instruction would even be made part of the curriculum (with grades and failing marks), so long as the parents ask for it. (4) With the exception of sectarian schools, all schools must be owned by citizens or 60% Filipino corporations. The control and administration of all schools, including sectarian schools, must be in the hands of Filipinos. Furthermore, they cannot be established exclusively for aliens, and the alien population in the school should not exceed 1/3. B. Policies A policy is a standard which sets out a goal to be reached, generally an improvement in economic, political or social feature of the community

1. Independent foreign policy and a nuclear free Philippines Art. II, Sec. 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self- determination. Art. II, Sec. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory. Art. XVIII, Sec. 4. All existing treaties or international agreements which have not been ratified shall not be renewed or extended without the concurrence of at least 2/3 of all the members of the Senate. Art. XVIII, Sec. 25. After the expiration in 1991 of the Agreement between Republic of the Philippines and United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress requires, ratified by a majority of votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting parties. 2. A Just and Dynamic Social Order

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Preamble ... in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, preserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy... Art. II, Sec. 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. Art. XII, Sec. 1. The goals of the national economy are a more equitable distribution of opportunities, income, wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. a. Promotion of social justice Barlongay: The 1987 Constitution, compared to the 1935 and the 1973 Constitution, contains the most expanded concept of Social Justice. The classic definition of Social Justice is found in Calalang vs. Williams, 70 P 726, where Justice Laurel declared as follows: "Social Justice is 'neither communism, nor despotism, nor atomism, nor anarchy,' but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the component elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex."

Art. II, Sec. 10. The State shall promote social justice in all phases of national development. Art. XIII, Sec. 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.

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Art. XIII, Sec. 2. The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. Art. II, Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. Art. VII, Sec. 13, par. 2. The spouse and relatives by consanguinity or affinity within the 4th civil degree of the President shall not during his tenure be appointed as Member of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations. (not in VV's outline) Art. IX, B, Sec. 7. 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 employment in the Government or any subdivision, agency or instrumentality thereof, including government owned or controlled corporations or subsidiaries. The President cannot hold any other post except those allowed by the Constitution, viz., (1) Chairman of NEDA, and (2) Department Secretary (VV). The Vice-President can hold a cabinet seat without need of confirmation. Members of the cabinet (Secretaries and Undersecretaries): Some are of the view that the clause "unless otherwise provided by law" implies that when there is a law allowing so, he may be appointed to any other government post, even if not affiliated to his cabinet position. EO 284 limits the number of government posts of cabinet members to not more than 2. However, EO 284 has been declared unconstitutional by the SC in the case of Civil Liberties Union vs Executive Secretary (194 S 317). The prohibition however does not include positions held without additional compensation in ex officio capacities as provided by law and as required by the primary functions of the concerned official's office. [For further discussion, see Executive Dept.: Prohibitions.] b. Respect for human dignity and human rights Art. II, Sec. 11. The State values the dignity of every human person and guarantees full respect for human rights. (not in VV's revised outline) Art. XVI, Sec. 5(2). The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty. Art. XIII, Sec. 17

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Rights.

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

(2) The Commission shall be composed of a Chairman and four Members who must be natural-born citizens of the Philippines, and a majority of whom shall be members of the Bar. The term of office and other qualifications and disabilities of the Members shall be provided by law. (3) Until this Commission is constituted, the existing Presidential Commission on Human Rights shall continue to exercise its present functions and powers. (4) The approved annual appropriations of the Commission shall be automatically and regularly released. Sec. 18. The Commission on Human Rights shall have the following powers and functions: (1) Investigate on its own or on complaint by any party all forms of human rights violations involving civil or political rights; (2) Adopt its operational guidelines and rules of procedure and cite for contempt for violations thereof in accordance with the Rules of Court; (3) Provide appropriate legal measures for the protection of human rights of all person within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection; (4) Exercise visitorial powers over jails, prisons, or detention facilities; (5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights; (6) Recommend to Congress effective measures to promote human rights and provide for, compensation to victims of violations of human rights, or their families; (7) Monitor the Government's compliance with international treaty obligations on human rights; (8) Grant immunity from prosecution to any person whose testimony or whose possession of document or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; (9) Request the assistance of any department, bureau, office, or agency in the performance of its functions; (10) Appoint its officers and employees in accordance with law; and (11) Perform such other duties and functions as may be provided by law. Sec. 19. The Congress may provide for other cases of violations of human rights that should fall within the authority of the Commission taking into account its recommendation. c. Fundamental equality of women and men Art. II, Sec. 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality of men and women before the law. (the following 2 provisions are not in VV's revised outline)

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Art. IV, Sec. 1(2) in relation with Sec. 4. The following are citizens of the Philippines: xxx (2) Those whose fathers or mothers are citizens of the Philippines. Sec. 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed under the law, to have renounced it. Art. XIII, Sec. 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. (not in VV's revised outline) Art. XIII, Sec. 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the underprivileged sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers. (See also CA No. 1, the National Defense Act) One significant move to equalize men and women is in the area of citizenship. Under the 1935 Constitution, a child born of a Filipino mother became a Filipino only upon election when he reached the age of majority. The 1973 Constitution removed this stigma and made such born after 17 January 1973 a Filipino without the need of election. The 1987 Constitution improved the situation even more by granting to those children born before 17 January 1973 who elected citizenship, whether born before or after 17 January 1973, the status of natural-born citizens. At the same time, Filipino women who by virtue of marriage to an alien husband, became citizens of their husband's country no longer lost her Philippine citizenship by that fact alone, beginning 17 January 1973. In the area of labor it has been consistently held, beginning in the US with Sandy v Oregon ( the court requiring the company to provide stools for women workers in the factories), that statutes (Book 3, Title III, Chapter I of the Labor Code) granting women better treatment by virtue of their maternal function were valid. d. Promotion of health Art. II, Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

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Art. XIII, Sec. 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly, disabled, women and children. The State shall endeavor to provide free medical care to paupers. Sec. 12. The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health manpower development and research, responsive to the country's health needs and problems. Sec. 13. The State shall establish a special agency for disabled persons for their rehabilitation, self-development and self-reliance, and their integration to the mainstream of society.

e. Priority of education, science, technology, arts, culture and sports (ESTACS) Art. II, Sec. 17. The State shall give priority to education, science,e technology, arts, culture and sports to foster patriotism and nationalism, accelerate social programs, and promote total human liberation and development. Art. XIV, Sec. 1. The State shall protect and promote the right of all citizens to quality education at all levels and shall take appropriate steps to make such education accessible to all. Students have the constitutional right not only to education but to a quality education, up to the secondary level, for free. But this is subject to the right of the school to impose reasonable academic standards, and to make education available only on the basis of merit. In Villar v Technological Institute of the Philippines, 135 SCRA 706 (1985), a case involving the denial of enrollment of student activists who took part in demonstrations and mass actions, and who, at the same time incurred scholastic deficiencies. The Court held that participation in mass actions per se is not a valid ground for dismissal, but that failure in academic subjects pursuant to school regulations was a valid ground. For while the right to education is a social, economic and cultural right, it is available only "on the basis of merit." In Tagonan v Cruz Pano, 137 SCRA 245 (1985), a case of a nursing student who was denied readmission after she failed a subject during her previous provisional admission (and her inability to take this subject in another school after she tried to bribe the Dean of that school), the SC again upheld the right of schools of higher learning to choose the students which it thinks could best achieve their goal of excellence and truth, while affirming the right of students to quality education. BARLONGAY CASE: PAGE 93


Department of Education, Culture and Sports v. San Diego, 180 SCRA 533 (1989) F: The private resp. is a graduate of UE w/ a degree of BS Zoology. The petitioner claims that he took the

NMAT 3 times and flunked it as many times. When he applied to take it again, the petitioner rejected his application on the basis of the rule allowing only 3 chances for a student to take the NMAT. He then went to the RTC-Valenzuela to compel his admission to the test. xxx By agreement of the parties, pvt. resp. was allowed to take the NMAT on 4/16/89 subject to the outcome of his petition. xxx After the hearing, the resp. judge rendered a decision declaring the challenged order invalid and granting the petition on the ground that the petitioner had been deprived of her right to pursue a medical education through an arbitrary exercise of the police power.

HELD: We cannot sustain the resp. judge. Her decision must be reversed. In Tablarin v. Gutierrez, 152 SCRA 730, this Court upheld the constitutionality of the NMAT as a measure intended to limit the admission to medical schools only to those who have initially proved their competence and preparation for a medical education. xxx We see no reason why the rationale in the Tablarin case cannot apply to the case at bar. The issue raised in both cases is the academic preparation of the applicant. This may be gauged at least initially by the admission test and, indeed w/ more reliability, by the 3-flunk rule. Exercise of Police Power.-- The power is validly exercised if (a) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (b) the means employed are reasonably necessary to the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. In other words, the proper exercise of the police power requires the concurrence of a lawful subject and a lawful method. The subject of the challenged regulation is w/in the ambit of the police power. It is the right and indeed the responsibility of the State to insure that the medical profession is not infiltrated by incompetents. xxx The method employed by the regulation is not irrelevant to the purpose of the law nor is it arbitrary or oppressive. The 3-flunk rule is intended to insulate the medical schools and ultimately the medical profession from the intrusion of those not qualified to be doctors. The right to quality education is not absolute. The Constitution also provides that "every citizen has the right to choose a profession or course of study, subject to fair, reasonable and equitable admission and academic requirements. The challenged regulation does not violate the equal protection clause. A law does not have to operate w/ equal force on all persons or things to be conformable to the equal protection clause. There can be no question that a substantial distinction exists bet. medical students and other students who are not subjected to the NMAT and the 3-flunk rule. The medical profession directly affects the very lives of the people, unlike other careers w/c, for this reason, do not require more vigilant regulation.

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There would be unequal protection if some applicants who have passed the tests are admitted and others who have also qualified are denied entrance. In other words, what the equal protection requires is equality among equals. RAM. f. Urban land reform and housing Art. XIII, Sec. 9. The State shall by law, and for the common good, undertake in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program, the State shall respect the rights of small property owners. Sec. 10. Urban or rural poor dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated. The limitations to the power of the State in this regard: 1. Respect for the rights of property owners. 2. In the case of resettlement, said program must be with the permission of the persons to be resettled, and the community to which they would be resettled. g. Reform in agriculture and other natural resources Art. II, Sec. 21. The State shall promote comprehensive rural development and agrarian reform. Art. XIII, Sec. 4. The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of agricultural lands, subject to such priorities and reasonable retention limits as Congress may presecribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary land-sharing. Sec. 5. The State shall recognize the right of farmers, farmworkers, and landowners, as well as cooperatives, and other independent farmers' organizations to participate in the planning, organization, and management of the program, and shall provide support to agriculuture thourgh approrpriate technology and research, and adequate financial, production, marketing, and other support services.

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Sec. 6. The State shall apply the principles of agragian reform or stewarship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the p ublic domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law. Sec. 7. The State shall protect the rights of subsistence fishermen, expecially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources. Sec. 8. The State shall provde incentives to landowners to invest the proceeds of the agrarian reform program to promote industrialization, employment creation, and privatization of public sector enterprises. Financial instruments used as payment for their lands shall be honored as equity in enterprises of their choice. The basic philosophy behind agrarian reform is "land to the tiller" if one is a regular farm worker and "profit sharing" in other cases. But "just compensation" and a "reasonable retention limit" are guaranteed the land owner. Common limitations to land reform (urban or agrarian): It must not impair the rights of small agricultural land owners, small homestead settlers, and small property owners; The idea of reform is to benefit the poor and other peasants and the landless. It would therefore, be self-defeating for the Constitution to make no reservation in favor of small property owners and homestead settlers. The basic philosophy behind other natural resources is the principle of "stewardship" --anyone who is given the chance to cultivate public land must use in trust for the succeeding generations, and so must exercise prudence in its use. h. Protection of labor Art. II. Sec. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Art. XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

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It shall guarantee the rights of all workers to self- organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitle to security of tenure, humane conditions of work, and living wage. They shall also participate in policy and decision-making process affecting the rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth. The basic philosophy behind labor is shared responsibility and the preferential use of voluntary and peaceful for the settlement of disputes. The right of government workers to form unions Art. III, Sec. 8. The right of people, including those employed in the public and private sectors, to form unions, associations or societies for purposes not contrary to law shall not be abridged. Art. IX, B, Sec. 2(5). government employees.

The right of self-organization shall not be denied to

(not in VV's revised outline) Sec. 2(1). The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. The right of government workers to form unions is undisputed under Art III(8) of the Constitution. (This provision is even misplaced since the Bill of Rights only covers civil and political rights.) The problem is whether they have the right to strike. Those who hold the negative view say that the right to self- organization is mentioned in Art III(8) separately from the right to strike in Art XIII(3). If it is included, there would be no need to explicate the two anymore. But those who hold the affirmative view say that although the Constitution does not explicitly grant it, Congress can always grant the right to government workers. The Constitution does not prohibit it in Art III(8) in the phrase "for purposes not contrary to law". Besides the right to self-organization is rendered nugatory without the coercive tool of strike (which is true because the strike at issue is only the economic strike, not the ULP strike). It must be noted that the SC ruled in Alliance of Government Workers v Minister of Labor, 124 SCRA 1, under the 1973 Constitution, that government workers cannot negotiate for

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terms and condition of employment, for these are a matter of law. Their remedy is to report to their own heads and to convince Congress to enact the desired law. Said the Court: Civil servants are entitled to form societies for purposes not contrary to law. But to form an association is one thing, and to use such association for the coercive measure of going on strike and bargaining with the government so as to pressure it into complying with their demands, is another. In NHA v Juco (134 SCRA 172), the SC held that those in the government service cannot bargain collectively as private workers because they are governed by the Civil Service Law. It also held that all govt-owned or controlled corporations regardless of their manner of creation, were covered by the Civil Service. In interpreting the ruling in the above cases, we have to distinguish between two kinds of government corporations in accordance with Art. IX, B, Sec. 2(1): a) those which were organized with special charters, in case the employees are governed by the Civil Service Law and arguably by the SC ruling in Alliance, and b) those which were organized pursuant to the general law (Corporation Code), in which case their employees can without doubt bargain collectively and go on strike. The grant of the right to form unions is a social economic right included for the first time in the Constitution. Previously, only political and civil rights were guaranteed government employees. Question : Does the right to self-organization given to govt. employees include the right to strike? SSS Employees Assn vs CA, 175 SCRA 686 (1989) F: SSS filed w/ the RTC-QC a complaint for damages w/ a prayer for a writ of prel inj. against petitioners

SSSEA, alleging that the officers and members of the latter staged an illegal strike and barricaded the entrances to the SSS building preventing non-striking employees from reporting to work and SSS members from transacting business w/ SSS. The Public Sector Labor-Management Council ordered the strikers to return to work but the strikers refused to do so. The SSSEA went on strike bec. SSS failed to act on the union's demands. Petitioners filed a motion to dismiss the complaint for lack of jurisdiction, w/c motion was denied. The restraining order w/c was previously issued was converted into an injunction after finding the strike illegal. Petitioners appealed the case to the CA. The latter held that since the employees of SSS are govt employees, they are not allowed to strike.

HELD: Employees in the Civil Service may not resort to strikes, walkouts and other temporary work stoppages, like workers in the private sector, in order to pressure the Govt. to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Govt. EEs to Self-Organization which took effect after the initial dispute arose, the terms and conditions of employment in the Govt, including any political subdivision or instrumentality thereof and govt. owned and controlled corporations with original charters, are governed by law and employees therein shall not strike for the purpose of securing changes thereof.

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The statement of the court in Alliance of Govt Workers v. Minister of Labor and Employment (124 SCRA 1) is relevant as it furnishes the rationale for distinguishing bet. workers in the private sector and govt employees w/ regard to the right to strike? Since the terms and conditions of govt. employment are fixed by law, govt. workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion of law. Relations bet. private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In govt employment, however, it is the legislature and, where properly given delegated power, the administrative heads of govt w/c fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through CBA's

EO 180, w/c provides guidelines for the exercise of the right to organize of govt employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among those fixed by law. Govt employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are w/in the ambit of legislation or negotiate w/ the appropriate govt agencies for the improvement of those w/ are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor-Management Council for appropriate action. RAM. BARLONGAY CASE: Manila Public School Teachers Association v. Laguio, 200 SCRA 323 F:

On September 17, 1990, Monday, at least 800 public school teachers proceeded to the national office of the DECS and aired their grievances. The mass action continued into the week despite the DECS Secretary's RETURN TO WORK order. The Secretary filed administrative charges against the protesting teachers. The Secretary rendered the questioned decisions in the administrative proceeding. He dismissed some teachers and placed others in under suspension. Two separate petitions were filed to assail the validity of the return to work order and his decisions in the administrative proceeding.

ISSUE: WHETHER OR NOT THE MASS ACTIONS ARE CONSIDERED AS STRIKES? HELD: Yes. The mass actions constituted a concerted and unauthorized stoppage of, or absence from work, which it was the teachers' duty to perform, undertaken for essentially economic reasons. ISSUE: WHETHER OR NOT PUBLIC SCHOOL TEACHERS CAN STRIKE?

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HELD: No. Employees of the public service do not have the right to strike although they have the right to self organization and negotiate with appropriate government agencies for the improvement of working conditions. ISSUE: WHETHER OR NOT DUE PROCESS WAS OBSERVED DURING THE ADMINISTRATIVE PROCEEDINGS? HELD: This court is a court of last resort. It resolves questions of law where there is no dispute of the facts or that the facts have been already determined by the lower tribunals. It is not a trier of facts. It can not resolve the issue which requires the establishment of some facts. The remedy is for the petitioners to participate in the administrative proceedings. If they lost, they may appeal to the Civil Service Commission. If pending said administrative proceedings, immediate recourse to judicial authority was believed necessary, recourse is with the RTC where there would be opportunity to prove relevant facts. Adapted. i. Independent People's Organizations Art. II, Sec. 23. The State shall encourage non- governmental, community-based, or sectoral organizations that promote the welfare of the nation. Art. XIII, Sec. 15. The State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means. People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and with identifiable leadership, membership and structure. Sec. 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State, shall by law, facilitate the establishment of adequate consultation mechanisms. This is in recognition of people's power, aside from the provision on initiative and referendum. 3. Family as a Basic Autonomous Social Institution Art. II, Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. This provision seems to be the basis of an argument that abortion is prohibited by the Constitution. It might also be the basis of a stand against family planning. The root of the problem, of course, is the determination of when life begins. PAGE 100


The right of parents to rear their children is the only natural right recognized by the Constitution. This is a declaration that the State does not espouse fascism which holds that the State owns the life of everyone. Art. XV, Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its development. Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. Some cite this provision as the basis of a stand against divorce. And yet not really. The phrase " inviolable social institution," was lifted from Art. 52 of the Civil code, and under that Code, divorce was part of the proposed draft submitted to Congress by the Code Commission and was almost approved if not for reasons other than compatibility with Art. 52. Sec. 3. The State shall defend: (1) The right of spouses to found a family according to their religious convictions and the demands of responsible parenthood; (2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development; (3) The right of the family to a family living wage and income; and (4) The right of families or family associations to participate in the planning and implementation of policies and programs that affect them. Sec. 4. The family has the duty to care for its elderly members but the State may also do so through just programs of social security. Art. II, Sec. 13. The State recognizes the vital role of youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civil affairs. Art. 52. Marriage is not a mere contract but an inviolable social institution. Its nature, consequence and incidents are governed by law and not subject to stipulation, except that the marriage settlements may be to a certain extent fix the property relations during the marriage. (Civil Code.) Art. 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (Family Code.) 4. Self-Reliant and Independent Economic Order

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Art. II, Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. Sec. 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments. Art. XII, Sec. 6. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives and similar collective organizations, shall have the right to own, establish and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. These provisions reveal that the economic policy of the Philippines is one closer to socialism than capitalism. The State adopts a policy of balancing the private sector's pursuit for profit and the concern of the State to promote distributive justice. The use of "distributive justice" is based on the Aristotelian notion of giving each one what is due him on the basis of personal worth and value, and not merely what he has contracted for. Garcia vs BOI (191 SCRA 288) FACTS: The BOI approved the transfer of the site of the petrochemical plant from Bataan to Batangas

and shift of feedstock for that plant from naphtha only to naphtha and/or LPG. The petrochemical plant was to be a joint venture between the PNOC and the BPC which is a Taiwanese group. According to the BOI, it is the investor which has the final say as to the site and the feedstock to be used.

HELD: Every provision of the Constitution on the national economy and patrimony is infused with the spirit of national interest. The non-alienation of natural resources, the State's full control over the devt. and utilization of scarce resources, agreements with foreigners being based on real contributions to the economic growth and general welfare of the country and the regulation of foreign investments in accordance with national goals and priorities are too explicit not to be noticed and understood. A petrochemical industry is not an ordinary investment opportunity. The petrochemical industry is essential to the national interst. The BOI committed a grave abuse of discretion when it approved the transfer of the petrochemical plant from Bataan to Batangas and authorized the change of feedstock from naphtha only to naphtha and/or LPG. No cogent advantage to the govt. has been shown by this transfer. This is a repudiation of the independent policy of the govt. expressed in numerous laws and the Constitution to run its own affairs the way it deems best for the national interest.

5. Communication and Information in Nation-Building

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Art. II, Sec. 24. The State recognizes the vital role of communication and information in nation-building. Art. XVI, Sec. 10. The State shall the provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respect the freedom of speech and of the press. Sec. 11(1). The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly owned and managed by such citizens. The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. (2) The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of general welfare. Only Filipino citizens or corporations or associations at least seventy per cent of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines. Art. XVIII, Sec. 23. Advertising entities affected by paragraph 2, Section 11 of Article XVI of this Constitution shall have five years from its ratification to comply on a graduated and proportionate basis with the minimum Filipino ownership requirement therein.

100%.

Both ownership and management of mass media must be in the hands of Filipinos,

While monopolies in mass media may be regulated or prohibited, combinations in restraint of and unfair competition in information matters are absolutely prohibited. Commercial advertising is now defined as being vested with public interest, and can thus be owned and managed only by 70% Filipino corporations. 6. Autonomy of Local Governments Art. II, Sec. 25. The State shall ensure the autonomy of local governments. Art. X. Local Government. GENERAL PROVISIONS

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Sec. 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. Sec. 2. The territorial and political subdivisions shall enjoy local autonomy. Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, elections, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. Sec. 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. Sec. 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. Sec. 7. Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits. Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected. Sec. 9. Legislative bodies of local governments shall have sectoral representation as may be prescribed by law. Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. Sec. 11. The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities PAGE 104


and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination. Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. Sec. 13. Local government units may group themselves, consolidate or coordinate their efforts, services, and resources for purposes commonly beneficial to them in accordance with law. Sec. 14. The President shall provide for regional development councils or other similar bodies composed of local government officials, regional heads of departments and other government offices, and representatives from non-governmental organizations with the regions for purposes of administrative decentralization to strengthen the autonomy of the units therein and to accelerate the economic and social growth and development of the units in the region. AUTONOMOUS REGIONS Sec. 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics which the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. Sec. 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. Sec. 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. PAGE 105


Sec. 19. The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras. Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organizations; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. Sec. 21. The preservation of peace and order within the region shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the region shall be the responsibility of the National Government. 7. Recognition of the Rights of Indigenous Cultural Communities Art. II, Sec. 22. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. Art. VI, Sec. 5(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of the Constitution, one-half of the seats allocated to the party list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. Art. XII, Sec. 5. The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural wellbeing. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain. Art. XIII, Sec. 6. The State shall apply the principles of agrarian reform or stewardship whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession PAGE 106


suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. Art. XIV, Sec. 17. The State shall recognize, respect and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions and institutions. It shall consider these rights in the formulation of national plans and policies. Art. XVI, Sec. 12. The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, the majority of the members of which shall come from such communities. 8. Honest Public Service and Full Public Disclosure Art. II, Sec. 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. Art. III, Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Honesty of Public Officials Art. XI, Sec. 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, Vice- President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. Art. VI, Sec. 12. All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of potential conflict of interest that may arise from the filing of proposed legislation of which they are authors. Sec. 20. The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member. Art. IX, D, Sec. 4. The Commission (on Audit) shall submit to the President and the Congress, within the time fixed by law, an annual report covering the financial condition and operation of the Government, its subdivisions, agencies, and instrumentalities, PAGE 107


including government-owned or controlled corporations, and non-governmental entities subject to its audit and recommend measures necessary to improve their effectiveness and efficiency. Art. XI, Sec. 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. Sec. 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as the Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas and Mindanao. A separate Deputy for the military establishment may likewise be appointed. Sec. 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman according to the Civil Service Law. Sec. 7. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution. Sec. 8. The Ombudsman and his Deputies shall be natural-born citizens of the Philippines, and at the time of their appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar, and must not have been candidates for any elective office in the immediately preceding election. The Ombudsman must have for ten years or more been a judge or engaged in the practice of law in the Philippines. During their tenure, they shall be subject to the same disqualifications and prohibitions as provided for in Section 2 of Article IX-A of this Constitution. Sec. 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointment shall require no confirmation. All vacancies shall be filled within three months after they occur. Sec. 10. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same salary, which shall not be decreased during their term of office. Sec. 11. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office. Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the govt., or any subdivision, agency or instrumentality thereof, including govt. owned or controlled corporations and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.

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Art. XI, Sec. 13. The Office of the Ombudsman shall have the following powers, functions, duties: (1) Investigate on its own or on complaint any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter; to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (4) Direct the officer concerned in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. Sec. 14. The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly release. Sec. 15. The right of the State to recover properties unlawfully acquired by public officials or employees, from them or their nominees, or transferees, shall not be barred by prescription, laches, or estoppel. Sec. 16. No loan, guaranty, or other form of financial accommodation for any business purpose may be granted, directly or indirectly by any govt. owned or controlled bank or financial institution to the President, Vice President, the Members of the Cabinet, the Congress, the Supreme Court, and the Constitutional Commissions, the Ombudsman, or to any firm or entity in which they have controlling interest, during their tenure. Foreign Loans Art. VII, Sec. 20. The President may contract or guarantee foreign loans on behalf of the Republic with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days form PAGE 109


the end of every quarter of the calendar year, submit to Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the government or government-owned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law. Art. XII, Sec. 21. Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public. Executive Agreements on Natural Resources Art. XII, Sec. 2. xxx The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. (pars. 4 and 5 thereof.) Art. VI, Sec. 12. All members of the Senate and the House of Representatives shall upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of potential conflict of interest that may arise form the filing of proposed legislation of which they are authors. Health of the President Art. VII, Sec. 12. In case of serious illness of the President, the public shall be informed of the state of his health. The Members of the Cabinet in charge of national security and foreign relations and the Chief of the Armed Forces of the Philippines, shall not be denied access to the President during such illness. Valmonte v. Belmonte, 170 SCRA 256 (1989) F:

Petitioners were media practitioners. They requested information from respondent General Manager of the GSIS regarding clean loans granted by the GSIS certain members of the defunct BP on the guaranty of Mrs. Imelda Marcos shortly before the Feb. 7, 1986 election. Their request was refused on the ground of confidentiality. They brought this suit for mandamus.

HELD: (1) The cornerstone of the republican system of govt is the delegation of power by the people. In this system, governmental agencies and institutions operate w/in the limits of the authority conferred by the people. Denied access to information on the inner workings of govt,

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the citizenry can become prey to the whims and caprices of those to whom the power had been delegated. The postulate of public office as a public trust, institutionalized in the Constitution to protect the people from abuse of governmental power, would certainly be merely empty words if access to such information of public concern is denied, except under limitations prescribed by implementing legislation adopted pursuant to the Constitution. The right to information is not merely an adjunct of and therefore restricted in application by the exercise of the freedom of speech and of the press. Far from it. The right to information goes hand in hand w/ the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in govt. (2) The right to information is not absolute. It is limited to "matters of public concern," and is further "subject to such limitations as may be provided by law." (Legaspi v. CSC, 150 SCRA 530.) Similarly, the State's policy of full disclosure is limited to "transactions involving public interest," and is "subject to reasonable conditions prescribed by law." The GSIS is a trustee of contributions from the govt and its employees and the administrator of various insurance programs for the benefit of the latter. Undeniably, its funds assume a public character. xxx. Considering the nature of its funds, the GSIS is expected to manage its resources w/ utmost prudence and in strict compliance w/ the pertinent laws or rules and regulations. In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers make the information sought clearly a matter of public interest and concern. (3) The right to privacy cannot be invoked by a juridical entity like GSIS bec. a corp. has no right or privacy in its name since the entire basis of the right to privacy is an injury to the feelings and sensibilities of the party and a corp. would have no such ground for relief. Neither can the GSIS invoke the right to privacy of its borrowers. The right is purely personal in nature. The concerned borrowers themselves may not succeed if they choose to invoke their right to privacy, considering the public offices they were holding at the time the loans were alleged to have been granted. (4) That GSIS, in granting loans, was exercising a proprietary function would not justify the exclusion of the transactions from the coverage and scope of the right to information. (5) But, although citizens are afforded the right to information, and, pursuant thereto, are entitled to "access to official records," the Constitution does not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of public concern. VV.

UPDATED 12/1/95 RAM

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PART TWO STRUCTURE AND POWERS OF THE NATIONAL GOVERNMENT I. THE SEPARATION OF POWERS Cruz: Purpose.-- The doctrine of separation of powers is intended to prevent a concentration of authority in one person or group of persons that might lead to an irreversible error or abuse in its exercise to the detriment of our republican institutions. More specifically, according to J. Laurel, the doctrine is intended to secure action, to forestall overaction, to prevent depotism and to obtain efficiency. xxx Blending of Powers.-- There are instances under the Consti. when powers are not confined exclusively w/in one dept but are in fact assigned to or shared by several departments. As a result of this blending of powers, there is some difficulty now in classifying some of them as definitely legislative, executive or judicial. As J. Homes put it vividly when he remarked that "the great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to another." The powers of govt may not at all times be contained w/ mathematical precision in water-tight compartments bec. of their ambiguous nature, e.g., the power of appointment, w/c can rightfully be exercised by each dept over its own administrative personnel. xxx PAGE 112


A. Congress 1. Composition, Qualifications, and Term of Office a. Senate Art. VI, Secs. 2-4 Art. VI. Sec. 2. The Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law. Sec. 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. Sec. 4. The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected. COMPOSITION 24 Senators elected at large by qualified voters QUALIFICATIONS Citizenship: Age on the day of election: Education: Registered voter: Residence:

Natural-born citizen 35 Able to read and write In the Philippines 2 years (immediately preceding the election)

TERM OF OFFICE Six (6) years To commence unless otherwise provided by law, at noon on June 30 next following the election. (Art. VI, Sec. 4)

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But under Sec. 2 of the Transitory provisions, the senators elected on the 2nd Monday of May, 1987 shall serve until noon of June 30, 1992. (Art. XVIII, Sec. 2) Of the senators elected in the election of 1992, the first 12 obtaining the highest number of votes shall serve for 6 years and the remaining 12 for 3 years. Thereafter, 12 senators will be elected every 3 years, to serve a term of 6 years. (Art. XVIII, Sec. 2) No Senator shall serve for more than 2 consecutive terms, and for this purpose, no voluntary renunciation of the office for any length of time shall be considered for the purpose of interrupting the continuity of his service for the full term for which he was elected. (Art. VI, Sec. 4) A) Regular case: If X runs in 1992, gets the #12 slot, and is re-elected in 1998, he can no longer run in the senatorial election of 2004, even if in the year 2000 he resigns from office. In general, the limit for regular senators (those elected after the transition, or after 1992) is 12 consecutive years. But if X runs in 1992, gets the #13 slot, does not rerun in 1995, but reruns in 1998, he can still rerun in 2004. B) Transition: If Maceda reruns in 1992 and ends up in #15, when his term expires at noon of 30 June 1995, he can no longer run for re-election as senator, even if he will have served for only 8 years, since the Constitution talks of 2 consecutive terms. If X runs in 1992, ends up #13, then reruns in 1995, he can no longer run for senator in the year 2001, even if he will have served for only 9 years. If Maceda does not re-run in 1992, then runs again in 1995, he can still rerun in 2001. b. House of Representatives Art. VI, Secs. 5-8 Art. VI. Sec. 5 (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (2) The party-list representatives shall constitute twenty per centum of the total number or representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

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(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. (4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standard provided in this Section. Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less then one year immediately preceding the day of the election. Sec. 7. The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Sec. 8. Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May. Art. IX-C, Secs. 6-8 Art IX-C. Sec. 6. A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article. Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution. Sec. 8. Political parties, or organizations or coalitions registered under the partylist system, shall not be represented in the voters' registration boards, boards of election inspectors, board of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law. Art. XVIII, Sec. 7. Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors the seats reserved for sectoral representatives in paragraph (2), Section 5 of Article VI of this Constitution. Republic Act 7941

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AN ACT PROVIDING FOR THE ELECTION OF PARTY-LIST REPRESENTATIVES THROUGH THE PARTY-LIST SYSTEM, AND APPROPRIATING FUNDS THEREFOR. Be it enacted by the Senate and House of Representatives of the Philippines in congress assembled. Sec. 1. Title.-- This Act shall be known as the "Party-List System Act." Sec. 2. Declaration of Policy.-- The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack welldefined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interest in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. Sec. 3. Definition of Terms.-- (a) The party list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections (COMELEC). component parties or organizations of coalition may participate independently provided the coalition of which they form part does not participate in the party-list system. (b) A party means either a political party or a sectoral party or a coalition of parties. (c) A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office. It is a national party when its constituency is spread over the geographical territory of at least a majority of the regions. It is a regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region. (d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and concerns of their sector. (e) A sectoral organization refers to a group of citizens or a coalition of group of citizens who share similar physical attributes or characteristics, employment, interests or concerns. (f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes. Sec. 4. Manifestation to Participate in the Party-List System.-- Any party, organization, or coalition already registered with the Commission need not register anew. However, such party, organization, or coalition shall file with the Commission, not later than ninety (90) days before the election, a manifestation of its desire to participate in the party-list system. Sec. 5. Registration.-- Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require: Provided, That the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals. The COMELEC shall publish the petition in at least two (2) national newspapers of general circulation. PAGE 116


The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15) days from the date it was submitted for decision but in no case not later than sixty (60) days before the election. Sec. 6. Refusal and/or Cancellation of Registration.-- The COMELEC may, motu proprio, or upon verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: (1) It is a religious sect or denomination, organization or association organized for religious purposes; (2) It advocates violence or unlawful means to seek its goal; (3) It is a foreign party or organization; (4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or though any of its officers or member or indirectly though third parties for partisan election purposes. (5) It violates or fails to comply with laws, rules or regulations relating to elections; (6) It declares untruthful statements in its petition; (7) It has ceased to exist for at least one (1) year; or (8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two percentum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered. Sec. 7. Certified List of Registered Parties.-- The COMELEC shall, not later than sixty (60) days before election, prepare a certified list of national, regional, or sectoral parties, organizations or coalitions which have applied or who have manifested their desire to participate under the party-list system and distribute copies thereof to all precints for posting in the polling places on election day. The names of the party-list nominees shall not be shown on the certified list. Sec. 8. Nomination of Party-List Representatives.-- Each registered party, organization, or coalition shall submit to the COMELEC not later than forty-five (45) days before the election a list of names, not less than five (5), from which party-list representatives shall be chosen in case it obtains the required number of votes. A person may be nominated in one (1) list only. Only persons who have given their consent in writing may be named in the list. The list shall not include any candidate for any elective office or a person who has lost his bid for an elective office in the immediately preceding election. No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC except in cases where the nominee dies, or withdraws in writing his nomination, becomes incapacitated in which case the name of the substitute nominee shall be placed in the list. Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned. Sec. 9. Qualifications of Party-List Nominees.-- No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election. In case of a nominee of the youth sector, he must be at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term. Sec. 10. Manner of Voting.-- Every voter shall be entitled to two (2) votes: the first is a vote for candidate for member of the House of Representatives in his legislative district; and the second, a vote for the party, organization, or coalition he wants represented in the House of Representatives: Provided, That a PAGE 117


vote cast for a party, sectoral organization, or coalition not entitled to be voted for shall not be counted: Provided finally, That the first election under the party-list system shall be held in May 1998. The COMELEC shall undertake the necessary information campaign for purposes of educating the electorate on the matter of the party-list system. Sec. 11. Number of Party-List Representatives.-- The party-list representatives shall constitute twenty percentum (20%) of the total number of the members of the House of Representatives including those under the party-list. For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party list system. In determining the allocation of seats for the second vote, the following procedure shall be observed: (a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. (b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That each party , organization, or coalition shall be entitled to not more than three (3) seats. Sec. 12. Procedure in Allocating Seats for Party-List Representatives.-- The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the total nationwide votes cast for the party-list system. Sec. 13. How Party-List Representatives Are Chosen.-- Party-list representatives shall be proclaimed by the COMELEC based on the list of names submitted by the respective parties, organizations, or coalitions to the COMELEC according to their ranking in said list. Sec. 14. Term of Office.-- Party-list representatives shall be elected for a term of three (3) years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No party-list representatives shall serve for more than three (3) consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Sec. 15. Change of Affiliation; Effect.-- Any elected party-list representative who changes his political party or sectoral affiliation during his term of office shall forfeit his seat: Provided, That if he changes his political party or sectoral affiliation within six (6) months before an election, he shall not be eligible for nomination as party-list representative under his new party or organization. Sec. 16. Vacancy.-- In case of vacancy in the seats reserved for party-list representatives, the vacancy shall be automatically filled by the next representative from the list of nominees in the order submitted to the COMELEC by the same party, organization, or coalition, who shall serve for the unexpired term. If the list is exhausted, the party, organization, or coalition concerned shall submit additional nominees. Sec. 17. Rights of Party-List Representatives.-- Party-list representatives shall be entitled to the same salaries and emoluments as regular members of the House of Representatives. Sec. 18. Rules and Regulations.-- The COMELEC shall promulgate the necessary rules and regulations as may be necessary to carry out the purposes of this Act. PAGE 118


Sec. 19. Appropriations.-- The amount necessary for the implementation of this Act shall be provided in the regular appropriations for the Commission on Elections starting fiscal year 1996 under the General Appropriations Act. Starting 1995, the COMELEC is hereby authorized to utilize savings and other available funds for purposes of its information campaign on the party-list system. Sec. 20. Separability Clause.-- If any part of this Act is held invalid or unconstitutional, the other parts or provisions thereof shall remain valid and effective. Sec. 21. Repealing Clause.-- All laws, decrees, executive orders, rules and regulations, or parts thereof, inconsistent with the provisions of this Act are hereby repealed. Sec. 22. Effectivity.-- This Act shall take effect fifteen (15) days after its publication in a newspaper of general circulation. Approved, March 3, 1995.

COMPOSITION Not more than 250 Members (*unless otherwise fixed by law) elected from: a) Legislative districts (80% of the seats shall be allotted to district representatives.) The districts are to be determined according to the following rules: [200 districts or 80%] 1. The districts are to be apportioned among the provinces, cities, and Metro Manila. [Sec. 5(1)] 2. The apportionment must be based on the number of inhabitants, using a uniform and progressive ratio. Within 3 years following the return of every census, Congress shall make a reapportionment of legislative districts, based on the standards herein provided (to make it representative and more responsive to the people). [Sec. 5 (4)] 3. Each legislative district must comprise as far as practicable, contiguous, compact, and adjacent territory (to avoid gerrymandering, or putting together of areas where a candidate is strong, even if these are not contiguous). [Sec. 5 (3)] 4. Each city with a population of at least 250,000 must have at least one representative. [Sec. 5(3)] 5. Each province, regardless of population must have at least one representative. [Sec. 5(3)] b) Party-list system of registered national, regional, and sectoral parties or organizations. [Sec. 5(2)] The party-list representatives shall constitute 20% of the lower house. For 3 consecutive terms after the ratification of the Constitution (1987, 1992, 1995), 1/2 of the seats allocated to the party-list representatives shall be filled by selection or election, as provided by law, form the (i) labor, (ii) peasant, (iii) urban poor, (iv) indigenous cultural

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communities, (v) women, (vi) youth, and (vii) such other sectors as may be provided by law, except the religious sector. Until a law is passed, the President may set up posts by appointment from a list of nominees by the respective sectors, the seats reserved for sectoral representatives (Art. XVIII, Sec. 7). QUALIFICATIONS Citizenship: Age on the day of election: Education: Registered voter:

Natural-born citizen 25 Able to read and write In the district, if district representative 1 year in the district (immediately preceding the election)

Residence: TERM OF OFFICE

3 years To commence (unless otherwise provided by law) at noon of June 30 next following the election. (Art. VI, Sec. 7) But under Sec. 2 of the Transitory Provisions, the members of the House elected on the second Monday of May, 1987 shall serve until noon of June 30, 1992. No Member of the House shall serve for more than 3 consecutive terms. No voluntary renunciation of the office for any length of time shall be considered an interruption in the continuity of his service for the full term for which he was elected for the purpose of circumventing this 3-term limitation.(Art. VI, Sec. 7) Thus, Perez can still re-run in 1992, and 1995, but no longer in 1998. If he is re-elected in 1992 and 1995, and he resigns in 1997, he can still no longer run in 1998. But if he does not run in 1992 or in 1995, he can run for another 3 straight terms, because the continuity would be broken. Thus, one can be a lifetime Congressman so long as he does not run on the third term. Dimaporo vs. Mitra 202 SCRA 779 (Oct. 15, 1991) F:

Petitioner Mohammad Ali Dimaporo was elected Representative for the 2nd Legislative District of Lanao del Sur during the 1987 congressional elections. In Jan., 1990, petitioner filed with the COMELEC a Certificate of Candidacy for the position of Regional Governor of the Autonomous Region in Muslim Mindanao. Upon being informed of such development by the COMELEC, respondents Speaker and Secretary of the House of Reps. excluded petitioner's name from the Roll of Members of the House of Reps. pursuant to Sec. 67, Article IX of the Omnibus Election Code (B.P. Blg. 881) Having lost in the elections, petitioner then tried but failed in his bid to regain his seat in Congress. Hence, this petition. He maintains that he did not lose his seat as congressman because Sec. 67,

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Art. IX of B.P. Blg. 881 is not operative under the present Constitution, being contrary thereto, and therefore not applicable to the present members of Congress.

ISSUE: Whether Sec. 67, Art. IX of B.P. Blg. 881 is operative under the present Constitution HELD: YES. Sec. 67, Art. IX of B.P. Blg. 881 reads: "Any elective official whether national or local running for any office other than the one which he is holding in a permanent capacity except for President and Vice-President shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy." Petitioner failed to discern that rather than cut short the term of office of elective public officials, this statutory provision seeks to ensure that such officials serve out their entire term of office and thereby cutting short their tenure by making it clear that should they fail in their candidacy, they cannot go back to their former position. This is consonant with the constitutional edict that all public officials must serve the people with utmost loyalty and not trifle with the mandate which they have received from their constituents. In theorizing that the provision under consideration cuts short the term of office of a Member of Congress, petitioner seems to confuse "term" with "tenure" of office. "The term of office prescribed by the Constitution may not be extended or shortened by the legislature, but the period during which an officer actually holds the office (tenure), may be affected by circumstances within or beyond the power of said officer. These situations will not change the duration of the term of office."

Under the questioned provision, when an elective official covered thereby files a cert. of candidacy for another office, he is deemed to have voluntarily cut short his tenure, not his term. The term remains and his successor, if any, is allowed to serve its unexpired portion. The fact that the ground cited in Sec. 67, Art. IX of B.P. Blg. 881 is not mentioned in the Constitution itself as a mode of shortening the tenure of office of the members of Congress does not preclude its application to present members of Congress. Sec. 2, Art. IX of the Constitution provides that "xxx All other public officers and employees may be removed from office as provided by law, but not by impeachment." Such constitutional expression clearly recognizes that the 4 grounds found in Art. VI of the Constitution by which the tenure of a Congressman may be shortened are NOT exclusive. Moreover, as the mere act of filing the certificate of candidacy for another office produces automatically the permanent forfeiture of the elective position being presently held, it is not necessary that the other position be actually held. The ground for forfeiture in Sec. 13, Art. VI of the Constitution is different from the forfeiture decreed in Sec. 67, Art. IX of B.P. Blg. 881, which is actually a mode of voluntary renunciation of office under Sec. 7, par. 2 of Art. VI of the Constitution. RAM. Gutierrez, Jr., J.: Dissenting opinion Congress cannot add by statute or administrative act to the causes for disqualification or removal of constitutional officers. Neither can Congress provide a different procedure for disciplining constitutional officers other than those provided in the Constitution. c. Synchronized terms of office

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Art. XVIII, Secs. 1-2 Art. XVIII, Sec. 1. The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May, 1987. The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area. Sec. 2. The Senators, Members of the House of Representatives, and the local officials first elected under this Constitution shall serve until noon of June 30, 1992. Of the Senators elected in the election in 1992, the first twelve obtaining the highest number of votes shall serve for six years and the remaining twelve for three years. 2. Election a. Regular election Art VI, Sec. 8 Art. VI, Sec. 8. Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May. Regular (Art. VI, Sec. 8) 2nd Monday of may, every 3 years, starting 1992 (unless otherwise provided by law). The term of office begins on the following June 30. For the transitory period, the first election was held on the 2nd Monday of May, 1987 (Art. XVIII, Sec. 1.) b. Special election Art. VI, Sec. 9 Art. VI, Sec. 9. In case of vacancy in the Senate or in the House or Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. Republic Act No. 6645, Dec. 28, 1987

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REPUBLIC ACT NO. 6645 AN ACT PRESCRIBING THE MANNER OF FILLING A VACANCY IN THE CONGRESS OF THE PHILIPPINES. Sec. 1. In case a vacancy arises in the Senate at least eighteen (18) months or in the House of Representatives at least one (1) year before the next regular election for Members of Congress, the Commission on Elections, upon receipt of a resolution of the Senate or the House of Representatives, as the case may be, certifying to the existence of such vacancy and calling for a special election, shall hold a special election to fill such vacancy. If Congress is in recess, an official communication on the existence of the vacancy and call for a special election by the President of the Senate or by the Speaker of the House of Representatives, as the case may be, shall be sufficient for such purpose. The Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term. Sec. 2. The Commission on Elections shall fix the date of the special election, which shall not be earlier than forty-five (45) days nor later than ninety (90) days from the date of such resolution or communication, stating among other things the office or offices to be voted for: Provided, however, That if within the said period a general election is scheduled to be held, the special election shall be held simultaneously with such general election. Sec. 3. The Commission on Elections shall send copies of the resolution, in number sufficient for due distribution and publication, to the Provincial or City Treasurer of each province or city concerned, who in turn shall publish it in their respective localities by posting at least three copies thereof in as many conspicuous places in each of their election precints, and a copy in each of the polling places and public markets, and in the municipal buildings. Sec. 4. This Act shall take effect upon its publication in the Official Gazette or in at least two newspapers of general circulation. Approved, December 28, 1987.

Art. IX-C, Sec. 11 Art. IX-C, Sec. 11. Funds certified by the Commission as necessary to defray the expenses for holding regular and special elections, plebiscites, initiatives, referenda, and recalls, shall be provided in the regular or special appropriations and, once approved, shall be released automatically upon certification by the Chairman of the Commission. In case of vacancy in the Senate or the House, a special election may be called to fill up such vacancy "in the manner prescribed by law." The law that governs and lays down the details concerning the special congressional elections is Rep. Act No. 6645 (December 28, 1987). Under the law, no special election will be called if the vacancy occurs (i) less than 18 months before the next regular election in the case of the Senate, or (ii) less than 1 year before the next regular election in the case of the House; in these cases, we will just have to wait for the next regular election, for practical reasons.

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When the vacancy occurs during the period when special elections are allowed to be conducted (18 or 12 months or more before the next regular election), the particular House of Congress must pass either a resolution by the House concerned, if Congress is in session, or a certification by the Senate President or the Speaker of the House, if Congress is not in session, (a) declaring the existence of the vacancy and (b) calling for a special election to be held within 45 to 90 days from the date of calling of the special election (that is, from the date of the resolution or certification). But the Senator or Member of the House thus elected shall serve only for the unexpired portion of the term.(Art. VI, Sec. 9) Funds certified by the COMELEC as necessary to defray the expenses for holding regular and special elections, plebiscites, initiatives, referenda, and recalls, shall be provided in the regular or special appropriations and, once approved, shall be released automatically upon certification by the Chairman of the COMELEC. (Art. IX-C, Sec. 11) In Lozada vs COMELEC, 120 SCRA 337, a petition to compel the COMELEC to call special elections to fill twelve vacancies in the interim Batasang Pambansa was dismissed on the ground inter alia that the petitioners were not proper parties as they had only what the Supreme Court called a "generalized interest" shared with the rest of the people. Lozada vs COMELEC, 120 SCRA 337 (1983) F:

This is a pet. for mandamus filed by Lozada and Igot as representative suit for and in behalf of those who wish to participate in the election irrespective of party affiliation, to compel the resp. COMELEC to call a special election to fill up existing vacancies numbering 12 in the Interim BP. The pet. is based on Sec. 5 (2), Art. VIII of the 1973 Consti. w/c reads: "In case a vacancy arises in the BP 18 months or more before a regular election, the COMELEC shall call a special election to be held w/in 60 days after the vacancy occurs to elect the Member to serve the unexpired term." Petitioner Lozada claims that he is a TP and a bona fide elector of Cebu City and a transient voter of QC, MM, who desires to run for the position in the BP; while petitioner Igot alleges that, as TP, he has standing to petition by mandamus the calling of a special election as mandated by the 1973 Consti.

HELD: I. a. As taxypayers, petitioners may not file the instant petition, for nowhere therein is it alleged that tax money is being illegally spent. xxx b. As voters, neither have petitioners the requisite interest or personality to qualify them to maintain and prosecute the present petition. Petitioners' standing to sue may not be predicated upon an interest of the kind alleged here, w/c is held in common by all members of the public bec. of the necessarily abstract nature of the injury supposedly shared by all citizens. II. a. The SC's jurisdiction over the COMELEC is only to review by certiorari the latter's decision, orders or rulings. xxx There is in this case no decision, order or ruling of the COMELEC w/c is sought to be reviewed by this Court under its certiorari jurisdiction xxx. b. Mandamus does not lie. There is total absence that COMELEC has unlawfully neglected the performance of a ministerial duty or has refused on being demanded, to

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discharge such a duty. xxx [T]he holding of special elections in several regional districts where vacancies exist, would entail huge expenditure of money. Only the BP can make the necessary appropriation for the purpose, and this power of the BP may neither be subject to mandamus by the courts much less may COMELEC compel BP to exercise its power of appropriation. III. Perhaps the strongest reason why the said provision is not intended to apply to the Interim National Assembly is the fact that as passed by the Con Con, the Interim NA was to be composed by the delegates to the Con Con, as well as the then incumbent Pres. and VP, and the members of the Senate and House of Rep. of Congress under the 1935 Consti. W/ such number of representatives representing each congressional district, or a province, not to mention the Senators, there was felt absolutely no need for filling up vacancies occurring in the Interim NA, considering the uncertainty of the duration of its existence. RAM. Barlongay: Q: Can appropriation of money through a law be compelled by mandamus? A: No. Q: Is the rule absolute? A: No. There are exceptions (see Pasay case). LGUs may be compelled by mandamus to appropriate money for obligations already incurred or (when there is already) a right to w/c a private party is entitled. 3. Salaries, Privileges and Disqualifications a. Salaries Art. VI, Sec. 10. The salaries of Senators and Members of the House of Representatives shall be determined by law. 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. Art. XVIII, Sec. 17. Until the Congress provides otherwise, the xxx President of the Senate, the Speaker of the House of Representatives xxx (shall receive an annual salary of) two hundred forty thousand pesos each; the Senators, the Members of the House of Representatives, xxx two hundred four thousand pesos each; xxx The salaries of Senators and Members of the House of Representatives shall be determined by law. Unless the Congress provides otherwise, the President of the Senate and the Speaker of the House shall receive an annual salary of P 240,000; while the Senators and the members of the House shall receive P 204,000 each. (Art. XVIII, Sec. 17.) While it is Congress, through a salary law, that determines the salary to be received by its members, the Constitution mandates that no increase in said compensation shall take effect until after the expiration of the full term of all the members of the two houses approving such increase. PAGE 125


Philconsa v Mathay, 18 SCRA 300 (1966) F:

PHILCONSA has filed in this Court a suit against the Auditor General of the Phils., and the Auditor of the Congress, seeking to permanently enjoin the aforesaid officials from authorizing or passing in audit the payment of the increased salaries authorized by RA 4134 (approved 6/10/64) to the Speaker and members of the HRep before 12/30/69. Sec. 1, par. 1 of RA 4134 provided, inter alia, that the annual salary of the Senate Pres. and of the Speaker of the HRep shall be P40,000 each; that of the Senators and members of the HRep, P32,000 each (thereby increasing their present compensation of P16T and P7,200 pa for the Presiding officers and members respectively.) The 1965-1966 Budget implemented the increase in salary of the Speaker and members of the HRep set by RA 4134. The petitioners contend that such implementation is violative of Art VI, Sec. 14 of the 1935 Consti, w/c provided that: "xxx No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the Senate and of the House of Representatives approving such increase. xxx" The reason given being that the term of the 8 senators elected in 1963, and who took part in the approval of RA 4134, will expire only on 12/30/69; while the term of the members of the House who participated in the approval of the said Act expired on 12/30/65.

HELD: The Court agrees w/ petitioners that the increased compensation provided is not operative until 12/30/69, when the full term of all members of the Senate and House that approved it will have expired. Purpose of the provision.-- The reason for the this rule, the Court said, is to place a "legal bar to the legislators yielding to the natural temptation to increase their salaries. Not that the power to provide for higher compensation is lacking, but with the length of time that has to elapse before an increase becomes effective, there is a deterrent factor to any such measure unless the need for it is clearly felt." Significantly, in establishing what might be termed a waiting period, the constitutional provision refers to "all members of the Senate and of the House or Rep." in the same sentence, as a single unit, w/o distinction or separation bet. them. This unitary treatment is emphasized by the fact that the provision speaks of the "expiration of the full term" xxx using the singular form, and not the plural, despite the difference in the terms of office, xxx thereby rendering more evident the intent to consider both houses for the purpose as indivisible components of one single Legislature. The use of the word "term" in the singular, when combined w/ the following phrase "all the members of the Senate and of the House," underscores that in the application of said provision, the fundamental consideration is that the terms of office of all members of the Legislature that enacted the measure must have expired before the increase in compensation can become operative. Term of all the members of the Congress, instead of all the members of the Senate and of the House." This is a distinction w/o a difference, since the Senate and the House together constitute the Congress. The use of the phrase "of the Senate and of the House" when it could have employed the shorter expression "of the Senate and the House" is grammatically correct. To speak of

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"members of the Senate and the House" would imply that the members of the Senate also held membership in the House. RAM. Illustration: If a salary law is passed in 1983 increasing the salary of members of Congress, the same law can only take effect for the term that begins at noon of 30 June 1992; but if a salary is passed in 1988 decreasing the salary of members of Congress, the law can take effect right away, since the Constitution prohibits only the increase. If another salary law is passed in 1993 to increase the salary, the same can take effect not in the term beginning at noon of 30 June 1995; the top twelve senators elected on the 2nd Monday of May, 1992 would still be holding office then. It can only take effect in 1998. Effectively, therefore, such law can take effect only after the expiration of the longest term of a Senator, which is six years, even if the term of the Representative who voted for the law is only 3 years. Ligot v Mathay, 56 SCRA 823 (1974) F:

Petitioner served as a member of the HRep of Congress for 3 consecutive 4-yr terms covering a 12-yr span from 12/30/57 to 12/30/69. During his 2nd term in office, RA 4134 was enacted into law. Petitioner was reelected to a 3rd term (12/30/65 to 12/30/69) but was held not entitled to the salary increase of P32,000 during such third term by virtue of this Court's unanimous decision in Philconsa v. Mathay. Petitioner lost his bid for a consecutive 4th term in the 1969 elections and his term having expired on 12/31/69, filed a claim for retirement under CA 186, Sec. 12 (c), as amended. The HRep thus issued a treasury warrant in petitioner's favor as his retirement gratuity, using the increased salary of P32,000 p.a. Resp. Congress Auditor did not sign the warrant pending resolution by the Auditor Gen. of a similar claim filed by Cong Singson. When the Auditor Gen.'s adverse decision on Singson's claim came out, resp Auditor requested petitioner to return the warrant for recomputation. Petitioner's request for recon having been denied by the Auditor Gen. he filed the present petition for review.

HELD: 1. [T]he "rate of pay as provided by law" for members of Congress retiring on 12/30/69, such as petitioner, must necessarily be P7,200 p.a., the compensation they received "as provided by law" and the Consti during their term of office. 2. To grant retirement gratuity to members of Congress whose terms expired on 12/30/69 computed on the basis of an increased salary of P32,000 p.a. would be to pay them prohibited emoluments w/c in effect increase the salary beyond that w/c they were permitted by the Consti. to receive during their incumbency. This would be a subtle way of going around the constitutional prohibition and increasing in effect their compensation during their term of office and of doing indirectly what could not be done directly. 3. Petitioners' contention that since the increased salary of P32T p.a. was already operative when his retirement took effect on 12/30/69, his retirement gratuity should be based on such increased salary cannot be sustained as far as he and other members of Congress similarly situated are concerned for the simple reason that a retirement or benefit is a form of compensation w/in the purview of the Constitutional provision limiting their compensation and "other emoluments" to their salary as provided by law. RAM.

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b. Freedom from arrest Art. VI, Sec. 11. A Senator or Member of the House shall, in all offenses punishable by not more than six (6) years imprisonment (prision correcional), be privileged from arrest while Congress is in session. xxx Elements of the privilege: i. Congress must be in session, whether regular (sec. 15) or special (supra). It does not matter where the member of Congress may be found (attending the session, socializing in a private party, or sleeping at home); so long as Congress is in session, freedom from arrest holds; ii. The crime for which the member is to be arrested is punishable by 6 years of imprisonment or less. "Punishable" refers to the maximum possible penalty which a penal statute attaches to the offense. It follows too that if the crime is punishable by 6 years and 1 day of prision mayor or more, the member can be arrested, even if he is session in the halls of Congress. History of the privilege The Revised Penal Code (Act NO. 3815), enacted in 1932, indirectly granted parliamentary immunity, when in Art. 145, it punished with a penalty of prision correcional "any public officer or employee who shall, while the Assembly is in regular or special session, arrest or search any member thereof, except in case such member has committed a crime punishable under this Code by a penalty higher than prision mayor." When the 1935 Constitution took effect, it was thought that a direct grant of parliamentary immunity was given, since in Art. VI, Sec. 15, it was provided that: "The Senators and Members of the House of Representatives shall in all cases except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of the Congress, and in going to and returning from the same." Martinez v Morfe, 44 SCRA 22 (1972) F:

Both petitioners are facing criminal prosecution, the information filed against petitioner Martinez for falsification of a public document (punishable by prision mayor) and 2 informations against petitioner Bautista, Sr. for violation of the Revised Election Code (penalty imposable for each offense charged is not higher than prision mayor). Petitioners, as delegates of the Con Con (1973 Consti.) would invoke what they consider to be the protection of the constitution (granting immunity from arrest to senators and representatives during their attendance at the sessions of Congress) if considered in connection w/ Art 145, RPC penalizing a public officer who shall, during the sessions of Congress, "arrest or search any member thereof, except in case such member has committed a crime punishable under (such) code by a penalty higher than prision mayor." For under the Constitutional Convention Act, delegates are entitled to the parliamentary immunities of a senator or a representative. What is sought by petitioners is that the respective warrants of arrest issued against them be quashed on the claim that by virtue of the parliamentary immunity they enjoy as delegates, xxx they are immune from arrest.

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HELD: Certiorari does not lie to quash the warrants issued against petitioners. Their reliance on the constitutional provision w/c for them should be supplemented by what was provided for in the RPC is futile. There is no justification for granting their respective pleas. Under Art. IV, Sec. 15 of the 1935 Consti., the immunity from arrest does not cover any prosecution for treason, felony and breach of the peace. Treason exists when the accused levies war against the Republic or adheres to its enemies giving them aid and comfort. A felony is an act or omission punishable by law. Breach of the peace covers any offense whether defined by the RPC or any special statute. xxx [F]rom the explicit language of the Consti., xxx petitioners cannot justify their claim to immunity. Nor does Art. 145, RPC come to their rescue. Such a provision that took effect in 1932 could not survive after the Consti. became operative on 10/15/35. xxx In the language of the Consti. then that portion of Art. 145, RPC penalizing a public official or employee who shall while the Congress is in regular or special session arrest or search any member thereof except in case he has committed a crime punishable under the RPC by a penalty higher than prision mayor is declared inoperative. The above conclusion reached by this Court is bolstered and fortified by policy considerations. There is, to be sure, a full recognition of the necessity to have members of Congress, and likewise delegates to the ConCon, entitled to the utmost freedom to enable them to discharge their vital responsibilities, bowing to no other force except the dictates of their conscience. xxx The utmost latitude in free speech should be accorded them. When it comes to freedom from arrest, however, it would amount to the creation of a privileged class, w/o justification in reason, if notwithstanding their liability for a criminal offense, they would be considered immune during their attendance in Congress and in going to and returning from the same. There is likely no dissent from the proposition that a legislator or a delegate can perform his functions efficiently and well, w/o the need for any transgression of the criminal law. RAM. The exceptions under the 1935 Constitution (treason, felony and breach of the peace) were so comprehensive as to exclude from the operation of the privilege all criminal offenses and to limit the immunity from arrest or civil process only during the session of that body. Ultimately, Art. 145 of the RPC, to the extent that it penalized public officers from arresting members of Congress for crimes punishable with prision mayor or less, was rendered "inoperative" upon the passage of the 1935 Constitution. Art. 145, then was deemed stricken out of the statute books upon this declaration by the Court; it was declared "inoperative." Without this felony, there was no way to speak of immunity from arrest. The 1971 Concon, aware of this ruling (Martinez and Bautista were delegates), provided for real immunity in the 1973 Constitution, by including Art, VIII, Sec. 9: "A Member of the National Assembly shall, in all offenses punishable by not more than 6 years imprisonment, be privileged from arrest during his attendance at its sessions, and in going to and returning from the same; but the National Assembly shall surrender the Member involved to the custody of the law within 24 hours after its adjournment for a recess of its next session, otherwise such privilege shall cease upon its failure to do so." The 1987 Constitution seems to have widened the privilege by simply stating that such a member "shall, in all offenses punishable by not more than 6 years imprisonment, be privileged form arrest while the Congress is in session." Unlike the 1973 rule, now, arrest can only be made when Congress is not in session. If the arresting officer cannot acquire jurisdiction over the person of the member during such period, he will have to wait until the end of his term. PAGE 129


It would also seem that upon the effectivity of the 1973 Constitution, Art. 145, RPC which was declared inoperative by the SC, was deemed revived, but with modification (from prision mayor to prision correcional). c. Speech and Debate Clause Art VI, Sec. 11. xxx No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. This privilege protects the member concerned from any libel suit that may be filed against him for a speech made "in" the halls of Congress or in any of its committees. Speech is not confined to traditional speech but even to the casting of votes, the making of reports, a debate or discussion, even communicative actions, and any other form of expression. Thus,

The speech, however, must be made "in" Congress in the discharge of legislative duty.

Jimenez v Cabangbang, 17 SCRA 876 (1966) F: This is an ordinary civil action for the recovery by plaintiffs Jimenez, et al., of several sums of money, by way of damages for the publication of an allegedly libelous letter of defendant Bartolome Cabangbang. An open letter of the President, published in several newspapers of general circulation saying that certain members of the Armed Forces of the Philippines had been preparing for a coup and working for the candidacy of the Secretary of Defense for the Presidency. Upon being summoned, the Cabangbang moved to dismiss the complaint upon the ground that the letter in question is not libelous, and that, even if it were, said letter is a privileged communication. ISSUES: Whether the publication in question is a privileged communication; and, if not, (2) whether it is libelous or not. (1) The determination of the first issue depends on w/n the publication falls w/in the purview of the phrase "speech or debate therein"-- that is to say, in Congress-- used in this provision. Scope of Parliamentary Freedom of Speech and Debate.-- "Said expression refers to utterances made by Congressmen in the performance of their official functions, such as speeches delivered, statements made, or votes cast in the halls of Congress, while the same is in session, as well as bills introduced in Congress, whether the same is in session or not, and other acts performed by Congressmen, either in Congress or outside the premises housing its offices, in the official discharge of their duties as members of Congress and of Congressional Committees duly authorized to perform its functions as such, at the time of the performance of the acts in question."

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The publication involved in this case does not belong to this category. According to the complaint herein, it was an open letter to the Pres. dated 11/14/58, when Congress presumably was not in session, and def. caused said letter to be published in several newspapers of gen. circ. in the Phils., on or about said date. It is obvious that, in thus causing the communication to be so published, he was not performing his official duty, either as a member of Congress of as officer or any Committee thereof. (2) Letter was not libelous.-- The letter was not libelous bec. it mentions that herein appellants as possibly "unwitting tools of a plan of which they have absolutely no knowledge." In other words, the very document upon w/c pltffs' action is based explicitly indicates that they might be absolutely unaware of the alleged operation plans, and that they may be unwitting tools of the planners. The statement is not derogatory to pltffs. to the point of entitling them to recover damages. RAM. The provision protects the Member of Congress only from being held liable outside of Congress ("in any other place"); it does not protect him from liability "inside" Congress, i.e., from possible disciplinary measures that his peers may impose upon him. For as mentioned above, his speech may constitute disorderly behavior as in Osmena v Pendatun (109 Phil 863), and this may be penalized with censure, suspension for 60 days, or expulsion, the latter two upon concurrence of 2/3 of the membership. It is important to note that this privilege is not absolute. The rule provides that the legislator may not be questioned "in any other place," which means that he may be called to account for his remarks by his own colleagues in Congress itself, and when warranted, punished for disorderly behavior. Thus, in the case of Osmena v Pendatun, the President himself who had been vilified by the petitioner could not file any civil or criminal action against him because of this immunity. Nonetheless, the majority of the members of the House of Representatives in which the questioned speech was delivered were not precluded from demonstrating their loyalty to the chief executive by declaring Osmena guilty of disorderly behavior and suspending him in the exercise of their disciplinary power [now Art. VI, Sec. 16(3)]. Osmena v Pendatun (109 Phil 863) F:

In 1960, Cong. Osmena delivered a privilege speech in Congress entitled "A Message to Garcia," maliciously denouncing and charging the administration of Pres. Garcia. As a result of this, the HRep through House Resolution No. 59 created a special committee to investigate the veracity of the charges and for him to show cause why he should not be punished by the House if he failed to substantiate his charges. On his side, Osmena contended in his petition that: (1) the Consti. gave him complete parliamentary immunity, and so, for words spoken in the House, he ought not to be questioned; (2) that his speech constituted no disorderly behavior for w/c he could be punished; (3) supposing he could be questioned and disciplined therefor, the House had lost the power to do so bec. it had taken up other business before approving House Resolution No. 59; (4) that the House has no power, under the Consti., to suspend one of its members. Resolution No. 175 found Osmena guilty of serious disorderly behavior. He was suspended for 15 months.

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HELD: 1. Sec. 15, Art. VI of the 1935 Consti. provides that "for any speech or debate" in Congress, the Senators or Members of the HRep "shall not be questioned in any other place." Observe that "they shall not be questioned in any other place" than Congress. But they may, nevertheless, be questioned in Congress itself. Furthermore, the Rules of the House w/c petitioner himself has invoked recognize the House's power to hold a member responsible "for words spoken in debate." The provision guarantees the legislator complete freedom of expression w/o fear of being made responsible in criminal or civil actions before the courts or any other forum outside of the Congressional Hall. But it does not protect him from responsibility before the legislative body itself whenever his words and conduct are considered by the latter disorderly or unbecoming a member thereof. For unparliamentary conduct, members xxx of Congress have been, or could be censured, committed to prison, suspended, even expelled by the votes of their colleagues. 2. On the third point of petitioner that the House may no longer take action against him, bec. after his speech and before approving the Resolution No. 59, it had taken up other business. xxx [C]ourts have declared that "the rules adopted by deliberative bodies are subject to revocation, modification or waiver at the pleasure of the body appointing them." And it has been said that "Parliamentary rules are merely procedural and w/ their observance, the courts have no concern. They may be waived or disregarded by the legislative body." 3. On the question w/n delivery of speeches attacking the Pres. constitutes disorderly conduct for w/c Osmena may be disciplined, we believe that the House is the judge of what constitutes disorderly behavior, not only bec. the Consti. has conferred jurisdiction upon it, but also bec. the matter depends mainly on factual circumstances of w/c the House knows best but w/c can not be depicted in black and white for presentation to, and adjudication by the Courts. RAM. Illustration: If Congressman X makes an oral abuse against Congressman Y in the halls of Congress, he cannot be arrested nor prosecuted for slander because of the speech clause. But he can be punished by his peers for disorderly behavior. But if Cong. X, in the course of heated debate, assaults Cong. Y and inflicts physical injuries, he can be criminally prosecuted (for direct assault with grave or less grave physical injuries) because although a verbal assault is immune, a physical is not immune. But although he can be prosecuted, he cannot be arrested while Congress is in session, because while he is not immune from prosecution, he is immune from arrest, assuming the penalty does not exceed prision correctional. The court must thus wait for the recess of Congress before it can order his arrest. d. Disqualifications (1) Incompatible Offices and Forbidden Offices Art. VI, Sec. 13. No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or

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instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. xxx An incompatible office is a post which a member cannot accept unless he waives or forfeits his seat in Congress. A sensu contrario, if he waives or forfeits his seat, he may accept the other post, since the incompatibility arises only because of his simultaneous membership in both. BARLONGAY CASE: Adaza v. Pacana, Jr., 135 SCRA 431 (1985) F:

Petitioner Homobono Adaza was elected governor of Misamis Oriental in the 1/30/80 elections. Elected vice-gov. for said province in the same elections was resp. Fernando Pacana, Jr. Both qualified and assumed their respective offices. Both Adaza and Pacana filed their certificates of candidacy for the 5/14/84 BP elections. In the said elections, petitioner won while respondents lost. On 7/23/84, resp. took his oath of office as gov. of Mis. Or. and started to perform the duties of governor. Claiming to be the lawful occupant of the governor's office, petitioner has brought this petition to exclude resp. therefrom. He argues that he was elected to said office for a term of 6 yrs., that he remains to be the governor of the province until his term expires on 3/23/86 as provided by law, and that w/in the context of the parliamentary system, a local elective official can hold the position to w/c he had been elected and simultaneously be an elected member of Parliament.

HELD: 1. The constitutional prohibition against a member of the BP from holding any other office of employment in the govt during his tenure is clear and unambiguous. Sec. 10, Art. VIII of the 1973 Consti. provides that: "Sec. 10. A member of the National Assembly shall not hold any other office or employment in the government xxx except that of prime minister or member of the cabinet. xxx

xxx It is of no avail to petitioner that the system of govt in other states allows a local elective official to act as an elected member of the parliament at the same time. The dictate of the people in whom legal sovereignty lies is explicit. xxx [T]he incompatibility herein present is one created by no less than the constitution itself.

2. The second proposition advanced by petitioner is that resp. Pacana, as a mere private citizen, had no right to assume the governorship left vacant by petitioner's election to the BP. He maintains that resp. should be considered as having abandoned or resigned from the vicegovernorship when he filed his cert. of candidacy. The point pressed runs afoul of BP 697, Sec. 13 (2) of w/c provides that governors, mayors, members of the various sangguniang or barangay officials shall, upon filing a cert. of candidacy, be considered on forced leave of absence from office." Resp falls w/in the coverage of this provision considering that he was a member of the Sangguniang Panlalawigan. RAM. Art. VI, Sec. 13. xxx Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.

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Forbidden Office (VI, Sec. 13) A forbidden office is one to which a member cannot be appointed even if he is willing to give up his seat in Congress. The effect of his resignation from the Congress is the loss of his seat therein but his disqualification for the forbidden office nevertheless remains. The prohibition lies in the "fiduciary" nature of the relationship involved. Such a member cannot resign in anticipation of the passage of the law creating such office or increasing its emolument as a way of circumventing the prohibition. However, the prohibition is not forever (as in the Jones Law); it is for the term for which he was elected. (2) Other prohibitions Art. VI, Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office. (i) Personally appearing as counsel before any court of justice, the Electoral Tribunal, quasi-judicial bodies, and other administrative bodies. What the Constitution prohibits in the case of members of Congress who are also members of the bar is their personal appearance before any of these bodies. This is not a prohibition against, the practice of law in any court. Thus, a member may still sign and file his pleadings, give legal advice, continue as partner, and have a partner or associate appear for him in court. Under the 1973 Constitution, the prohibition against personal appearance covered only courts inferior to a court of appellate jurisdiction (RTC down), courts in a civil case wherein the government is the adverse party, and administrative bodies. Now, the prohibition is against "any" court, thus including the SC and the CA, regardless of the action. BARLONGAY CASE: Puyat v. De Guzman, Jr., 113 SCRA 32 (1982) F:

On 5/14/79, an election for the 11 Directors of the International Pipe Industries Corp. (IPI) was held. There were two groups, the Puyat Group and the Acero Group. The Puyat Group would be in control of the Board and of the management of IPI. On 5/25/79, the Acero Group instituted at the SEC quo warranto proc. questioning the 5/14/79 election. The said group claimed that the votes were not properly counted.

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May 25-31, 1979, the Puyat Group claims that at the conferences of the parties w/ resp. SEC Commissioner, Justice Estanislao A. Fernandez, then a member of the Interim BP, orally entered his appearance as counsel for resp. Acero to w/c the Puyat Group objected on Constitutional grounds. Sec. 11, Art. VIII of the 1973 Consti. provided that no Assemblyman could "appear as counsel before xxx any administrative body," and SEC was an administrative body. xxx On 7/17/79, the SEC granted leave to intervene on the basis of Atty. Fernandez' ownership of ten shares. It is this Order allowing intervention that precipitated the instant petition for Certiorari and Prohibition w/ Prel. Inj. xxx On 9/4/79, the Court en banc issued a TRO enjoining resp SEC Commissioner from allowing the participation as an intervenor, of resp. Fernandez at the proceedings in the SEC case.

HELD: The intervention of Assemblyman Fernandez in the SEC case falls w/in the ambit of the prohibition contained in the Consti. There has been an indirect "appearance as counsel before xxx an administrative body." Ordinarily, by virtue of the Motion of Intervention, Assemblyman Fernandez cannot be said to be appearing as counsel. Ostensibly, he is not appearing on behalf of another, although he is joining the cause of the pvt resps. His appearance could theoretically be for the protection of his ownership of 10 shares of IPI in respect of the matter in litigation. However, certain salient circumstances militate against the intervention of Assemblyman F. in the SEC case. He had acquired a mere P200 worth of stocks in IPI. He acquired them "after the fact," that is, on 5/30/79, after the contested election of Directors on 5/14/79, after the quo warranto suit had been filed on 5/25/79 before SEC and one day before the scheduled hearing of the case before the SEC on 5/31/79. And what is more, before he moved to intervene, he had signified his intention to appear as counsel for resp. Acero, but w/c was objected to by petitioners. Realizing, perhaps, the validity of the objection, he decided, instead to "intervene" on the ground of legal interest in the matter under litigation. RAM. (ii) Being interested financially in any (a) contract with, or (b) franchise or special privilege granted by, the Government, its subdivision, agency or instrumentality, a governmentowned or controlled corporation, or its subsidiary. The prohibition is for the duration of his term of office. benefit. office.

(iii) Intervening in any matter before any office of the government for his pecuniary (iv) Intervening in any matter where he may be called upon to act on account of his

It may be noted that the last 3 prohibitions are themselves punishable acts under the Anti-Graft and Corrupt Practices Act. e. Duty to Disclose Art. XI, 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, PAGE 135


liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. Art. VI, Sec. 12. All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors. Sec. 20. The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member. In general, a public officer or employee shall, upon assuming office and as often thereafter as may be, required by law, submit a declaration under oath of his assets, liabilities and net worth. But in the case of members of Congress and other high government officials (as enumerated), the disclosure must be made public (Art. XI, Sec. 17). Furthermore, all members of Congress shall, upon assumption of office make a full disclosure of their financial and business interests (Art. VI, Sec. 12). The law governing this financial disclosure by public officers and employees is RA 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Every public officer shall submit to (a) the Office of the Department Head, or (b) the Office of the President in case of a head of department or chief of an independent office, the following: 1. A true, detailed, and sworn statement of assets and liability; 2. A statement of the amounts and sources of his income; 3. The amount of personal and family expenses, and 4. The amount of income taxes paid the previous year, on the following occasions: (a) within 30 years after assuming office (b) on or before April 15 after the close of the calendar year, and (c) upon the expiration of their term of office, or upon resignation or separation from office When a member of Congress authors a proposed legislation, he must notify the House concerned of any "potential conflict of interest" that may arise from his filing of such bill (Art. VI, Sec. 12.) Furthermore, the records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the PAGE 136


Commission on Audit, which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member (Art. VI, Sec. 20.) The purpose of public disclosure of a member's financial status and official expenses is to make him visible to the rest, and thus give him a deterrent from committing graft and corruption. The public has a right to know how much it is spending for its government, 4. Internal Government of Congress a. Election of officers Art. VI, Sec. 16 (1) The Senate shall elect its President and the House of Representatives its Speaker, by a majority vote of all its respective Members. Each House shall choose such other officers as it may deem necessary. First order of business - election by each house of the President of the Senate and the Speaker of the House, and such other officers that the rules of each house may provide. A majority vote of all the respective members is required to elect these two officers. Upon the election of the President and the Speaker, the Constitution deems the Houses "organized." (VI, 19) b. Quorum Id., Sec. 16(2) A majority of each House shall constitute a quorom to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide. The quorum required to conduct business is a majority (1/2 + 1) of all the members. But to pass a law, only the votes of the majority of those present in the session, there being a quorum, are required. This is known as the "shifting majority". To illustrate: 13 members of the Senate are sufficient to constitute a quorum. If only 13 members are present, a vote by 7 in favor of a bill is sufficient to pass it. But as the number of those present increases, the number of votes needed to pass a bill would correspondingly increase, i.e., shift. When a quorum cannot be had, a smaller number may adjourn from day to day, and compel the attendance of the absent (recalcitrant) members by the means of arrest or such other measures and penalties as the House may provide in its rules. Avelino v Cuenco, 83 Phil 17 (1949)

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F:

Jose Avelino was Senate President in 1949. On 2/21/49, Senators Tanada and Sanidad filed a resolution (Resolution 68) against Avelino calling for an investigation. During the session, Avelino and 6 others walked out leaving 12 senators behind. The 12 senators continued the session and passed resolution no. 67 declaring the Senate Pres. seat vacate. Sen. Cuenco was eventually elected as the acting Pres. of the Senate. By his petition in this quo warranto proceeding petitioner asks the Court to declare him the rightful President of the Phil. Senate and oust resp., Sen. Cuenco.

ISSUES:

a. Does the Court have jurisdiction over the subject-matter? b. It if has, were resolutions Nos. 68 and 67 validly approved? c. Should the petition be granted?

HELD: a. To the first question, the answer is in the negative, in view of the separation of powers, the political nature of the controversy and the constitutional grant to the Senate of the power to elect its own pres., w/c power should not be interfered w/, nor taken over, by the judiciary. xxx b. The second question depends upon these sub-questions: (1) Was the session of the so-called rump Senate a continuation of the session validly assembled w/ 22 Senators (2 were absent-- one was abroad; the other was confined in a Manila hospital) in the morning of 2/21/49? (2) Was there a quorom in that session? (1) Supposing that the Court has jurisdiction, there is unanimity in the view that the session under Sen. Arranz was a continuation of the morning session and that a minority of 10 senators may not, by leaving the Hall, prevent the other 12 senators from passing a resolution that met w/ their unanimous resolution. (2) If the rump session was not a continuation of the morning session, was it validly constituted? Justices Paras, Feria, Pablo and Bengzon say there was for the following reasons: (i) the minutes say so, (ii) at the beginning of such session there were at least 14 senators including Senators Pendatun and Lopez, and (iii) in view of the absence from the country of Senator Confessor, 12 senators constitute a majority of the Senate of 23 senators. When the Constitution declares that a majority of "each House" shall constitute a quorom, "the House" does not mean "all" the members. Even a majority of all the members constitute the "House." There is a difference bet. a majority of "all the members of the House" and a majority of "the House," the latter requiring less number than the first. Therefore, an absolute majority (12) of all the members of the Senate less one (23) constitutes constitutional majority of the Senate for the purpose of the quorom. J. Pablo believes further that even if the 12 did not constitute a quorom, they could have ordered the arrest of one, at least, of the absent members xxx. RAM. In Avelino v Cuenco, supra., the ruling then was: The quorum was computed on the number of Senators over whom the Senate has jurisdiction at the time of session. c. Rules of proceedings Id., Secs. 16(3) 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 exceed sixty days.

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Sec. 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. Each House or its committees may determine the rules of its proceedings. These rules include the procedure to be followed in "inquiries in aid of legislation." The House may set aside the rules it adopted as it sees fit, because these rules are only of a temporary nature. Pacete v Secretary of the Commission on Appointments, 40 SCRA 58 (1971) The rules of the Commission on Appointments concerning its internal business could be reviewed by the Courts, that is, it is a justiciable matter, when a certain construction of such rules would defeat the right of the individual to a public office. F:

In his suit for mandamus and prohibition filed w/ this Court, petitioner F. Pacete alleged that he was appointed by the then Pres. of the Phils. on 8/31/64 as Mun. Judge of Pigcawan, Cotabato. He then assumed office and discharged his duties. As his appointment was made during the recess of Congress, it was submitted to the Commission on Appointments (CA) at its next session in '65. On 5/20/65, he was unanimously confirmed. More than 9 mos. after such confirmation, the then Sec. of Justice, through the Judicial Supt., advised petitioner to vacate his position as mun. judge, the ground being that his appointment had been by-passed. Petitioner was taken by surprise and sought clarification from the prin. resp. He was informed that a day after his confirmation, one of the members of the CA, Sen. Ganzon, wrote to its Chairman, stating that he was filing a motion for the recon. of the confirmation of the appointment of petitioner xxx in view of derogatory info. w/c he had received. Resp. Sec. of CA thus was led to notify the then Sec. of Justice accordingly, following what he considered to be the prevailing practice of such body that the mere presentation of such letter "automatically vacated the confirmation of the appointment in question ***." Resp. then advised petitioner that he should vacate his position as he had not been duly confirmed.

HELD: Petitioner must prevail. 1. R 21 of the Revised Rules of the CA reads:

"Resolution of the Commission on any appointment may be considered on motion by a member presented not more than one day after their approval. If a majority of the members present concur to grant a recon., the appointment shall be reopened and submitted anew to the Commission. Any motion to reconsider the vote on any appointment may be laid on the table, and this shall be a final disposition of such a motion."

"Respondent's theory would give to the mere filing of motion for recon. the effect w/c it would have if the motion were approved, and, hence, would dispense w/ the necessity of such approval, for w/ the concurrence of a majority of the members present is necessary." (Altarejos v. Molo, 25 SCRA 550.) xxx That would be tantamount to imparting to a move of single member of a collective body a decisive weight. It is bad enough if the minority were to prevail. A one-man rule is infinitely worse. 2. Ad interim appointments take effect at once. The title of the appointee to the office is complete. In the language of the Consti., the appointment is effective "until disapproval by the CA or until the next adjournment of the Congress."

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The constitutional requirement is clear. There must either be a rejection by the CA or nonaction on its part. No such thing happened in this case. Petitioner had instead in his favor a unanimous vote of confirmation. He could thus invoke constitutional protection. For resps. to argue that the mere filing of a MFR did suffice to set it aside, even in the absence of any further action is to lose sight of what is provided in the Consti. 3. The courts are called upon to see to it that private rights are not invaded. Thus even legislative acts and executive orders are not beyond the pale of judicial scrutiny. xxx [T]here is nothing sacrosanct about a rule of the CA, especially so, when as in this case, a construction sought to be fastened on it would defeat the right of an individual to a public office. RAM. d. Discipline of members Art. VI, Sec. 16 (3) 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 exceed sixty days. Each house may punish it members for "disorderly behavior." "disorderly behavior" is solely within the discretion of the house concerned.

What constitutes

Although a member of either house cannot be held accountable in any other place for any speech he make in the Congress or in any committee thereof, he can be found guilty of disorderly behavior by his own peers, so ruled the Court in Osmena v Pendatun. 109 Phil. 863 (1960). The penalty may consist of (i) censure; or upon a 2/3 vote of all the members of the house, (ii) suspension, not exceeding 60 days, or (iii) expulsion. The history behind the 60-day limitation on the period of suspension could be traced to the early case of Alejandrino v Quezon, infra. In a dictum, the SC said that it was not within the power of the legislature to suspend its member, since suspension deprived the constituents of the member suspended of the right to be represented by a representative that they really had. In effect, suspension punished the constituents. In the case of expulsion, the constituents could at least elect someone else to substitute the member represented. If the only disciplinary measures were limited to expulsion and censure, however, there might not be a penalty appropriate enough for a disorderly behavior that merited something more than censure but less than expulsion. It was this dilemma, that the Court precisely faced in Osmena v Pendatun, which made it upheld the suspension of 15 months despite the Alejandrino ruling. Thus, the 1973 Constitution devised a system of allowing suspension as a penalty but limited its period to 60 days [Art. VII, Sec. 7(3)]. This was carried over in the 1987 Constitution. [Art. VI, Sec. 16(3)] Alejandrino v. Quezon, 46 P 83 (1924)

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F:

The petitioner in this orig. pet. for mandamus and injunction is Jose Alejandrino, a Senator appointed by the Gov-Gen. to represent the 12th Senatorial District. The casus belli is a resolution adopted by the Phil. Senate composed of the resp. Senators, on 2/5/24, depriving Alejandrino of all the prerogatives, privileges, and emoluments of his office for the period of 1 yr from 1/24 having been declared guilty of disorderly conduct and flagrant viol. of the privileges of the Senate for having treacherously assaulted Sen. de Vera on the occasion of certain phrases being uttered by the latter in the course of the debate regarding the credentials of Mr. Alejandrino. The burden of petitioner's complaint is that the resolution is unconstitutional and entirely of no effect.

HELD: 1. Mandamus (M). The gen. rule is that the writ will not lie from one branch of the govt to a coordinate branch, for the very obvious reason that neither is inferior to the other. M will not lie against the legislative body, its members, or its officers, to compel the performance of duties purely legislative in their character w/c therefore pertains to their legislative functions and over w/c they have exclusive control.

2. On the merits of the controversy, the Organic Act authorizes the Gov-Gen. to appoint 2 senators and 9 representatives to represent the non-Christian regions in the Legislature. These senators and representatives "hold office until removed by the Gov.-Gen." They may not be removed by the Leg. However, to the Senate and the HRep., respectively, is granted the power to "punish its members for disorderly behavior, and, w/ the concurrence of 2/3, expel an elective member." xxx. The Consti. has purposely withheld from the 2 Houses of the Leg. and the GovGen. alike the power to suspend an appointive member. The reason is obvious. Punishment by way of reprimand or fine vindicates the outraged dignity of the House w/o depriving the constituency of representation; expulsion, when permissible, likewise vindicates the honor of the legislative body while giving to the constituency an opportunity to elect anew; but suspension deprives the electoral district of representation w/o that district being afforded any means by w/c to fill the vacancy. By suspension, the seat remains filled but the occupant is silenced. Suspension for 1 yr. is equivalent to qualified expulsion or removal. However, the writ prayed for cannot issue, for the reason that the SC does not possess the power of coercion to make the Phil. Senate take any particular action. RAM. Osmena v. Pendatun, 109 P 863 (1960)-- supra. (Speech and Debate Clause) Compared w/ Alejandrino v. Quezon: It is true that in Alejandrino an obiter dictum that "suspension deprives the electoral district of representation w/o that district being afforded any means by w/c to fill that vacancy." But the remark should be understood to refer particularly to the appointive senator who was then the affected party and who was then the affected party and who was by the same Jones Law charged w/ the duty to represent the 12th District xxx. It must be observed, however, that at that time the Legislature had only those powers w/ were granted to it by the Jones Law; whereas now the Congress has the full legislative powers and prerogatives of a sovereign nation, except as restricted by the Consti. xxx Now, the Congress has the inherent legislative prerogative of suspension w/c the Consti. did not impair. "The Legislative power of Congress is plenary, subject only to such limitations as are found in the Consti. So that any power deemed to be legislative by usage or tradition, is necessarily possessed by the Congress, unless the Consti. provides otherwise." (Vera v. Avelino, 77 P 192.) RAM.

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Expulsion compared with exclusion under Art. VI, Sec. 17 Expulsion under Art. VI, Sec. 16(3) should be distinguished from exclusion under Art. VI, Sec. 17, Art. VI, Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. xxx Under the latter, Electoral Tribunals of the Senate and the House, determine election contests. They shall be the sole judges of the elections, returns, and qualifications of their elective members. Each Electoral Tribunal is independent of the other; this emphasizes the exclusive character of the jurisdiction conferred upon each House. However, each Tribunal cannot add to the qualifications or disqualifications found in the Constitution. Thus, the Electoral Tribunal is without power to exclude any member-elect who meets all the Constitution's requirements for membership. e. Journal and Congressional Records Art. VI, 16(4) Each House shall keep a Journal of its proceedings and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered in the Journal. Each House shall also keep a Record of its proceedings. It is the first time that the Constitution requires a "record" in addition to a "journal". Up to the 1973 Constitution, only a journal was required to be kept, although in practice, the legislature has always kept a record. Cruz: The journal is only a resume of minutes of what transpired during a legislative session. The record is the word-for-word transcript of the proceedings taken during the session. (1) The Enrolled Bill Theory Once a bill has been approved by both houses (the procedure will be discussed later), the bill is engrossed or enrolled, and this "Enrolled Copy of the Bill" bears the certification of the Presiding Officer of the house (either Senate President or Speaker of the House) that this bill as enrolled is the version passed by each house. The purpose of the certification is to prevent attempts at smuggling in "riders". The enrolled copy is then sent to the President for his action. What happens if there is a discrepancy between the enrolled copy of the bill, and any other copy of the bill? The enrolled bill prevails, says the SC in the following cases.

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Mabanag v Lopez Vito, 78 Phil. 1 (1947) F:

Three of the pltff. senators and 8 of the pltff. representatives had been proclaimed by a majority vote of the COMELEC as having been elected senators and representatives in the elections held on 4/23/46. The 3 senators were suspended by the Senate shortly after the opening of the first session following the elections, on account of alleged irregularities in their election. The 8 representatives since their election had not been allowed to sit in the lower House, except to take part in the election of Speaker, for the same reason, although they had not been formally suspended. xxx As a consequence, these 3 senators and 8 reprs. did not take part in the passage of the questioned resolution, nor was their membership reckoned in the computation of the necessary 3/4 vote w/c is required in proposing an amendment to the Consti. (the Parity Rights Amendment.) If these members had been counted, the affirmative votes in favor of the proposed amendment would have been short of the necessary 3/4 vote in either branch of Congress.

HELD: 1. Jurisdiction.-- Both notions of jurisdiction and conclusiveness of legislative enactment are synonymous in that both are founded upon the regard w/c the judiciary accords a co-equal, coordinate, and independent branch of Govt. If a political question conclusively binds the judges out of respect to the political departments, a duly certified law or resolution also binds the judges under the "enrolled bill rule" born of that respect. xxx 2. Enrolled Bill Theory.-- The respondent's other chief reliance is on the contention that a duly authenticated bill or resolution imports absolute verity and is binding on the courts. xxx Sec. 313 of the old Code of Civ. Proc., as amended, provides:

"Official documents may be proved as follows: ***(2) the proceedings of the xxx Congress, by the journals of those bodies or of either house thereof, or by published statutes or resolutions, or by copies certified by the clerk or secretary, or printed by their order; Provided, that in the case of Acts of xxx the Phil. Leg., when there is an existence of a copy signed by the presiding officers and secretaries of said bodies, it shall be conclusive proof of the provisions of such Acts and of the due enactment thereof."

Reasons in support of enrollment:

Sec. 150. Reasons for Conclusiveness.-- xxx [T]he rule against going behind the enrolled bill is required by the respect due to a co-equal and independent dept of govt, and it would be an inquisition into the conduct of the members of the legislature, a very delicate power, the frequent exercise of w/c must lead to endless confusion in the admin. of the law. The rule is also one of convenience, bec. courts could not rely on the published session laws, but would be required to look beyond these to the journals of the legislature and often to any printed bills and amendments w/c might be found after the adjournment of the legislature. (Am. Jur.)

3. Compared w/ US v. Pons.-- The Court looked into the journals in US v. Pons bec., in all probability, those were the documents offered in evidence. It does not appear that a duly authenticated copy of the Act was in existence or was placed bef. the Court; and it has not been shown that if that had been done, this Court would not have held the copy conclusive proof of the due enactment of the law. RAM.

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Casco Chemical Co. v Gimenez, 7 SCRA 347 (1963) F:

Pursuant to the provisions of RA 2609 (For-Ex Margin Fee Law), the CB issued Circular No. 95, fixing a uniform margin fee of 25% on for-ex transactions. xxx Several times in Nov. and Dec. 1959, petitioner Casco, w/c is engaged in the manufacture of synthetic resin glues xxx, bought for-ex for the importation of urea and formaldehyde-- w/c are the main RM in the production of said glues and paid the corresponding margin fee. Petitioner had sought the refund claiming that the separate importation of urea and formaldehyde is exempt from said fee. Although the CB issued the vouchers for the refund, the Auditor of the Bank refused to pass in audit and approve said vouchers upon the ground that the exemption granted by the MB for petitioner's separate importations of urea and formaldehyde is not in accord w/ the provisions of sec. 2, par. XVIII of RA 2609. Petitioner maintains that the term "urea formaldehyde" appearing in the provision should be construed as "urea and formaldehyde" and that the resps herein have erred in holding otherwise. xxx "Urea formaldehyde" is a finished product, w/c is patently distinct and different from "urea" and "formaldehyde," as separate articles used in the manufacture of the synthetic resin known as "urea formaldehyde." Petitioner contends that the bill approved in Congress contained the copulative conjunction "and" bet. the terms "urea" and "formaldehyde" and that the members of Congress intended to exempt "urea" and "formaldehyde" separately as essential elements in the manufacture of the synthetic resin glue xxx citing the statements made on the floor of the Senate, during the consideration of the bill bef. the House xxx.

HELD: Said individual statements do not necessarily reflect the view of the Senate. Much less do they indicate the intent of the HRep. Further, the enrolled bill-- w/c uses the term "urea formaldehyde" instead of "urea and formaldehyde,"-- is conclusive upon the courts as regards the tenor of the measure passed by Congress and adopted by the Pres. If there has been any mistake in the printing of the bill bef. it was certified by the officers of Congress and approved by the Pres., the remedy is by amendment or curative legislation. RAM. In Morales v Subido, infra., the SC, in upholding the enrolled bill, explained that its basis is the separation of powers, so that the remedy of an aggrieved party is not a judicial decree but a legislative amendment or curative legislation. In this case, the phrase, "who has served the police department of city or " was omitted from the engrossed copy of the Police Act of 1966, thereby changing the qualifications required by the law of a chief of a city police agency. It was clear from the records and journal that the omission took place not any stage of the legislative proceedings, but only during its enrollment. It was further clear that the change was made not by Congress, but only by an employee. And yet the SC refused to go behind the enrolled Act to discover what really happened, because of the respect due the other departments. The case was different in Astorga v Villegas, infra., because here, upon being informed that the enrolled bill did not contain the amendment proposed by Senator Tolentino (regarding the powers of the Vice-Mayor of Manila) when the house bill was raised to the Senate, the Senate President, withdrew his signature and notified the President of the mistake, who then likewise withdrew his signature. There was no occasion, then, to apply the enrolled bill theory.

(2) Probative Value of the Journal

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The journal is conclusive on the courts as to its contents, so the SC ruled in US V Pons, 34 Phil. 729 (1916). Pons, in this case was prosecuted under a criminal statute. He contended, however, that the statute was passed past the midnight after February 28, 1914, the last day of session of the legislative body, but that the members stopped the clock at mid-night, to pass the law. The SC rejected this claim, ruling that the probative value of the journal could not be questioned, otherwise proof of legislative action would be uncertain and would now have to depend on the imperfect memory of men. US V Pons, 34 Phil. 729 (1916) F:

Juan Pons was accused of violating Act 2381 w/c prohibits the illegal importation of opium. In his motion for the reversal of his conviction, counsel contented that the last day of the special sessions of the Leg. for 1914 was 2/28; that Act 2381, under w/c Pons must be punished if found guilty, was not passed or approved on 2/28 but on 3/1 of that yr; and that, therefore, the same is null and void. The validity of the Act is not otherwise disputed. As it is admitted that the last day of the special session was, under the GovGen's proclamation, 2/28 and that the appellant is charged w/ having violated Act 2381, the vital question is the date of the adjournment of the Leg., and this reduces itself to 2 others, namely, (1) how that is to be proved, whether by the legislative journals or extraneous evidence, and (2) whether the court can take judicial notice of the journals.

HELD: A. While there are no adjudicated cases in this jurisdiction upon the exact question w/n the courts may take judicial notice of the legislative journals, it is well settled in the US that such journals may be noticed by courts in determining the question w/n a particular bill became a law or not. And these journals show, w/ absolute certainty, that the Leg. adjourned sine die at 12 o'clock on 2/28/14. B. We will inquire w/n the courts may go behind the legislative journals for the purpose of determining the date of adjournment when such journals are clear and explicit. Counsel for appellant, in order to establish his contention, must necessarily depend upon the memory or recollection of witnesses, while the legislative journals are the acts of the Govt or the sovereign itself. From their very nature and object the records of the Leg are as important as those of the judiciary, and to inquire into the veracity of the journals of the Leg., when they are clear and explicit, would be to violate both the letter and spirit of the organic laws by w/c the Phil. Govt was brought into existence, to invade a coordinate and independent dept of the Govt, and to interfere w/ the legitimate powers and functions of the Leg. xxx If the clock, was, in fact stopped, as here suggested, "the resultant evil might be slight as compared w/ that of altering the probative force and character of legislative records, and making the proof of legislative action depend upon uncertain oral evidence, liable to loss by death or absence, and so imperfect on account of the treachery of memory xxx. RAM.

(3) Matters Required to be Entered in the Journal The Constitution requires that the following matters be contained in the journal:

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(a) The yeas and nays on third and final reading of a bill [Art. VI, Sec. 26(2)]; (b) Veto message of the President (i.e., his objection to a bill when he vetoes it) [Art. VI, Sec. 27(1)]; (c) The yeas and nays on the repassing of a bill vetoed by the President (Art. VI, Sec. 27(1)]; (d) The yeas and nays on any question at the request of 1/5 of the members present [Art. VI, Sec. 16(4)] In addition, the journal contains the summary of the proceedings. A record, on the other hand, contains the verbatim transcript of all proceedings of the house or its committees. The Constitution is silent as to what the record must contain. However, in Art. XI, Sec. 3(3), the Constitution speaks of the vote of each member of the House either affirming a favorable or overriding its contrary resolution of the impeachment complaint to be "recorded." (4) Journal Entry Rule v Enrolled Bill Theory In the Astorga v Villegas case, the SC, by way of obiter, indicated that the journal might really prevail over the enrolled bill, since a journal is required by the Constitution while the enrollment of a bill is just a legislative practice that is not even mentioned in the Constitution. Further, enrollment does not add to the validity of the bill, for what makes it valid are the votes of the members. But this view is mere dictum. It contradicts the ruling in Morales v Subido that the enrolled copy prevails over the journal. It also contradicts the ratio in Marshall Field & Co. v Clark, 143 US 649 (1891) that the parties were not competent to show from the journal that the bill in the custody of the Secretary of State was against the contents of the journal, because journals are just kept by clerks who could be mistaken, while the certified bill is made by the highest officer of the chamber. To reconcile these two views, it may be said that, as to matters required by the Constitution to be placed in the journal, the journal is conclusive. But aside from these 4 matters, any other matter does not enjoy such conclusiveness. Astorga v Villegas, 56 SCRA 714 (1974) F:

House Bill No. 9266, w/c was filed in the HRep., passed on 3rd reading w/o amendments. It was sent to the Senate for concurrence. It was referred to the appropriate Senate Committee, w/c recommended approval w/ a minor amendment recommended by Sen. Roxas. When the bill was discussed on the Senate floor, substantial amendments to Sec. 1 were introduced by Sen. Tolentino, w/c amendments were approved in toto by the Senate. xxx On 5/21/54, the Sec. of the Senate sent a letter to HRep that the House bill had

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been passed by the Senate w/ amendments. Attached was a certification of the amendment, w/c was the one recommended by Sen. Roxas, and not the Tolentino amendments w/c were the ones actually approved by the Senate. The HRep signified approval as sent back to it. The printed copies were then certified and attested to by the Secretaries of the Senate and of the HRep, the Speaker of the HRep, and the Senate Pres. It was later made public by Sen. Tolentino that the enrolled copy of House bill no. 9266 signed into law by the Pres. was a wrong version of the bill actually passed by the Senate and approved on the Senate floor. The Senate Pres. admitted this mistake in a letter to the Pres. As a result, the Pres. sent a message to the presiding officers of both Houses informing them that in view of the circumstances he was officially withdrawing his signature on House Bill no. 9266. Upon the foregoing facts, the Mayor of Mla. issued circulars ordering the disregard of the provisions of RA 4605. He also issued an order recalling 5 members of the city police force who had been assigned to the Vice-Mayor presumably under authority of RA 4065. Reacting to these steps, the then V-Mayor Astorga, filed a pet. w/ this Court for "Mandamus, Injunction and/or Prohibition w/ Prel Mandatory and Prohibitory Injunction" to compel compliance w/ the provisions of RA 4065. Respondents' position is that RA 4065 never became law since it was not the bill actually passed by the Senate, and that the entries in the journal of that body and not the enrolled bill itself should be decisive in the resolution of the issue.

HELD: 1. Petitioner's argument that the attestation of the presiding officers of Congress is conclusive proof of a bill's due enactment, required, it is said, by the respect due to a co-equal dept of the govt, is neutralized in this case by the fact that the Senate Pres. declared his signature on the bill to be invalid and issued a subsequent clarification that the invalidation of his signature meant that the bill he had signed had never been approved by the Senate. Obviously this declaration should be accorded even greater respect than the attestation it invalidated, w/c it did for a reason that is undisputed in fact and indisputable in logic. As far as Congress itself is concerned, there is nothing sacrosanct in the certification made by the presiding officers. It is merely a mode of authentification. It is the approval by Congress and not the signatures of the presiding officers that is essential. 2. Petitioner agrees that the attestation in the bill is not mandatory but argues that the disclaimer thereof by the Senate Pres., granting it to have been validly made, would only mean that there was no attestation at all, but would not affect the validity of the statute. xxx This arguments begs the question. It would limit the court's inquiry to the presence or absence of the attestation and to the effect of its absence upon the validity of the statute. The inquiry, however, goes farther. Absent such attestation as a result of the disclaimer, and consequently there being no enrolled bill to speak of, what evidence is there to determine w/n the bill had been duly enacted? In such a case, the entry in the journal should be consulted. RAM. Marshall Field & Co. v Clark, 143 US 649 (1891) It is not competent for the appellant to show from the Journals that the enrolled bill contained a section that does not appear in the enrolled Act in the custody of the State Department. F:

In accordance w/ the Tariff Act of Oct. 1, 1890, duties were assessed and collected on woollen dress goods, woollen wearing apparel, and silk embroideries imported by Field & Co.; on silk and cotton laces imported by Sutton & Co.; and on colored cotton cloths imported by Sternbach & Co. The importers severally protested against the assessment upon the ground that the Act was not a law of the US. It was contended, among others, that the Tariff Act was a nullity bec. "it is shown by congressional records of

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proceedings, reports of committees of conference, and other papers printed by authority of Congress, and having reference to House Bill 9416, that a section of the bill as it finally passed, was not in the bill authenticated by the signatures of the presiding officers of the respective houses of Congress, and approved by the Pres."

HELD: The signing by the House Speaker and by the Senate Pres. of an enrolled bill is an official attestation by the two Houses that such bill is the one that has passed Congress. It is a declaration by the 2 houses, through their presiding officers, to the Pres. that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the govt, and that it is delivered to him in obedience to the constitutional requirement that all bills w/c pass Congress shall be presented to him. And when the bill thus attested is signed by the Pres. and deposited in the archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable. RAM. Morales v. Subido, 27 SCRA 131 (1969.) F:

The present insistence of the petitioner is that the version of the provision (Sec. 10 of the Police Act of 1966), as amended at the behest of Sen. Rodrigo, was the version approved by the Senate on 3rd reading, and that when the bill emerged from the conference committee, the only change made in the provision was the insertion of the phrase "or has served as chief of police w/ exemplary record." In support of this assertion, the petitioner submitted certified photostatic copies of the different drafts of House Bill 6951 showing the various changes made. It is unmistakable that the phrase "who has served the police dept of a city or," was still part of the provision, but according to the petitioner the House bill division deleted the entire provision and substituted what is now Sec. 10 of the Act w/c did not carry such phrase. It would thus appear that the omission of the phrase "who has served the police dept of a city of", was made not at any stage of the legislative proceedings but only in the course of engrossment of the bill, more specifically in the proofreading thereof; that the change was not made by Congress but only by an employee thereof xxx.

HELD: The petitioner wholly misconceives the function of the judiciary under our system of govt. [T]he enrolled Act in the office of the legislative secretary of the Pres. of the Phils. shows that sec. 10 is exactly as it is in the statute as officially published in slip form by the Bureau of Printing. We cannot go behind the enrolled Act to discover what really happened. The respect due to the other branches of Govt demands that we act upon the faith and credit of what the officers of the said branches attest to as the official acts of their respective departments. Otherwise, we would be cast in the unenviable and unwanted role of a sleuth trying to determine what actually did happen in the labyrinth of law-making, w/ consequent impairment of the integrity of the legislative process. The investigation w/c the petitioner would like this Court to make can be better done in Congress. [W]e are not to be understood as holding that in all cases the journals must yield to the enrolled bill. To be sure, there are certain matters w/c the Const. expressly requires must be entered on the journal of each house. xxx [W]ith respect to matters not expressly required to be entered on the journal, the enrolled bill prevails in the event of any discrepancy. RAM. (5) Congressional Record

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Art. VI, Sec. 16 (4) xxx Each House shall also keep a Record of its proceedings. UPDATED 1/6/96 RAM f. Sessions (1) Regular sessions Art. VI, Sec. 15. The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine, until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays and legal holidays. xxx Sec. 16(5) Neither house during the session of the Congress shall, without the consent of the other house, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. Cruz: "[P]lace" as here used refers not to the building but to the political unit where the two Houses may be sitting. (2) Special sessions Art. VI, Sec. 15. xxx The President may call a special session at any time. Special sessions are held in the following instances: a) When the President calls for a special session at any time (Art. VI, Sec. 15) b) To call a special election due to a vacancy in the offices of President and VicePresident (Art. VII, Sec. 10) in w/c Congress shall convene at 10 a.m. of the third day after the vacancy, without need of a call. c) To decide on the disability of the President because the Cabinet (majority) has "disputed" his assertion that he is able to dispose his duties and powers. (This takes place not when the Cabinet first sends a written declaration about the inability of the President, but after the President has disputed this initial declaration.) (Art. VII, Sec. 11.) Congress shall convene, if it is not in session, within 48 hours, without need of call. d) To revoke or extend the Presidential Proclamation of Martial Law or suspension of the writ of habeas corpus (Art. VII, Sec. 18). Congress, if not in session, shall, within 24 hours following such proclamation or suspension, convene, without need of a call. In the last three cases, Congress convenes without need of a call. These are exceptions to the general rule in the 1st case that when Congress is not in session, it can only meet in special session call by the President. (3) Joint session PAGE 149


When both houses meet jointly, they generally vote separately. The reason is obvious: there are only 24 senators, while there are 250 representatives. It would be bad policy to give one vote to a Senator, who was elected "at large", and the same weight of vote to a representative, who is either elected only by one legislative district or a party-list. Joint session and separate voting take place in the following instances: (a) Voting Separately a) When Congress, while acting as the canvasser of votes for the President and VicePresident, has to break the tie between two or more candidates for either position having an equal and the highest number of votes (Art. VII, Sec. 4, par. 5). b) When it decides (by 2/3 vote) on the question of the President's inability to discharge the powers and duties of his office (Art. VII, Sec. 11, par. 4). c) Whenever there is a vacancy in the Office of the VP, when it confirms the nomination of a VP by the President from among the members of Congress; such person shall assume office upon confirmation by a majority vote of all the members of both Houses, voting separately (Art. VII, Sec. 9). d) When it declares (by 2/3 vote) the existence of a state of war [Art. VI, Sec, 23(1)]. e) When it proposes to amend the Constitution (3/4 vote of the members) [Art. XVII, Sec. 1(1)].

(b) Voting Jointly But there is one exceptional instance when the two houses meet and vote jointly: When, there has been a proclamation of Martial law or a suspension of the writ by the President, and Congress has to decide whether to revoke or to extend such proclamation or suspension (majority vote of all members, voting jointly) (VII, Sec. 18). VV: There is an illogical inconsistency here. To declare a state of war, the vote is taken separately. But to decide on an internal disorder (which is short of war) which spurred the proclamation of Martial Law or suspension of the writ, the vote is taken jointly. If the voting is made "joint" due to the emergency character of the situation brought about by the invasion or rebellion, there is no reason why it should not be so to declare the existence of war (which among others, empowers the President to extend the tour of duty of the Chief of Staff), the danger to national security and the emergency nature being the same, if not graver. 5. Electoral Tribunals

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Art. VI, Secs. 17 and 19 Art. VI, Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. Id., Sec. 19. The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its Members, to discharge such powers and functions as herein conferred upon it. a. Composition The Senate and the House shall each have an Electoral Tribunal, to be composed of 9 members, 3 shall be justices of the SC to be designated by the Chief Justice, and the remaining 6 shall be members of the respective houses chose on the basis of "proportional representation" from the political parties, and the parties or organizations registered under the party-list system. The senior justice shall be the Chairman. The use of proportional representation to fill up the 6 slots reserved for members of the particular house is different from the rule under the 1935 Constitution, which reserved 3 seats for the majority party and another 3 seats for the minority party. In Tanada v Cuenco, 103 Phil. 1051 (1957), the SC ruled that the slot reserved for the minority party should not be filled up by the majority party, even if there was only one member from the minority party (in the person of Tanada). For to fill it up would offset the balance of the tribunal, and this would defeat its neutrality when acting as the sole judge of all election contests. This could not be done under the present set-up of the lower house because of the party-list system, which makes a fixed representation impossible. On the other hand, by making the composition proportional, the very nature of the Electoral Tribunal as a neutral judge of election contests has been destroyed. In the Senate, for instance, if only one senator comes from the minority party, there is no way that he would be represented in the tribunal. At least, 2 senators are required of the 24 members of the Senate in order to have one representative in the tribunal. And even if this single representative vote together with the 3 justices, there is no way for them outvote the 5 from the majority party. The case then is one of a majority preserving its advantage. Under the system in the 1935 Constitution, so long as there is one minority senator, there is always a clause that he could outvote the majority, and that is when the 3 justices vote with him.

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In Abbas vs Senate Electoral Tribunal, 166 SCRA 651, the petitioners who were protestants in a contest before the respondent body, sought the disqualification of all the legislative members thereof on the ground that they were among the protestees in the said contest, along with the other majority members of the Senate. (The original opposition member, Senator Estrada, later joined the majority and was replaced by Senator Enrile, who voluntarily inhibited himself.) In dismissing the petition, the SC said: It seems clear that in providing for a Tribunal to be staffed by both Justices of the Supreme Court and members of the Senate, the Constitution intended that both those judicial and legislative components commonly share the duty and authority of deciding all contests relating to the election, returns and qualifications of Senators. Said intent is more clearly signalled by the fact that the proportion of Senators to Justices is 2 to 1 -- an unmistakable indication that the legislative and judicial components cannot be totally excluded from participation in the resolution of senatorial election contests. Where a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his other colleagues in the Senate without inviting the same objections to the substitute's competence, the proposed mass disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other court or body can perform, but which it cannot lawfully discharge is shorn of the participation of its entire membership of Senators. The overriding consideration should be that the Tribunal be not prevented from discharging a duty which it alone has the power to perform, the performance of which is in the highest interest of the people. It should be noted that the framers of the Constitution could not have been unaware of the possibility of an election contest that would involve all 24 Senators-elect, some of whom would inevitably have to sit in judgment thereon. b. Nature of Function The Electoral Commission is a constitutional creation, invested with the necessary authority in the performance and execution of the limited and specific function assigned to it by the Constitution. Though its composition is constituted by a majority of members of the legislature, it is a body separate from and independent of the legislature. The grant of power to the Electoral Commission to judge all contests relating to the election, returns and qualifications of members of the legislature, is intended to be complete and unimpaired. (Angara vs Electoral Commission, 63 Phil 134) Request of Justices Melencio Herrera, Cruz and Feliciano to be relieved as members of the HRET (Res. March 19,1991) This resolution should be read in connection with Bondoc vs Pineda, which is discussed under Independence of the Electoral Tribunals. PAGE 152


In said request, the three justices asked to be relieved from membership in the HRET. According to them, political factors which have nothing to do with the merits of the case, were blocking the accomplishment of their constitutionally mandated task. They therefore suggested that there should be a provision in the Constitution that upon designation to membership in the Electoral Tribunal, those so designated should divest themselves of affiliation with their respective political parties, to insure their independence and objectivity as they sit in Tribunal deliberations. The SC resolved to direct them to return to their duties in the Tribunal. According to the court, in view of the sensitive constitutional functions of the Electoral Tribunals as the "sole judge" of all contests relating to the election, returns and qualifications of the members of Congress, all members of these bodies should be guided only be purely legal considerations in the decision of the cases before them and that in the contemplation of the Constitution, the members-legislators, thereof, upon assumption of their duties therein, sit in the Tribunal no longer as representatives of their respective political parties but as impartial judges. To further bolster the independence of the Tribunals, the term of office of every member thereof should be considered co-extensive with the corresponding legislative term and may not be legally terminated except only by death, resignation, permanent disability, or removal for valid cause, not including political disloyalty.

(not in VV's revised outline) Status In Angara v Electoral Commission, supra, the SC held that the then Electoral Commission was an independent body, although attached to Congress, In Suares v Chief Accountant, the Commission on Audit, (then under the 1935 Constitution) as adjunct of Congress, was ruled to be an independent body, although attached to Congress, and so the salary of its staffers need not be the same as those of the Senate. Organization (Art. VI, Sec. 19) The Electoral Tribunal shall be constituted within 30 days after the 2 houses shall have been organized with the election of the President and the Speaker. Functions (id., Sec. 17) The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the (i) election, (ii) returns, and (iii) qualifications of their respective members. Under Vera v Avelino, supra, the house may conduct "exclusion proceedings," and by a vote of the majority deny admission to a member-elect pending the resolution of complaints concerning his election.

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Even if the Constitution vests in the Electoral Tribunal the power to decide the election, returns and qualifications of member-elect, there may be no electoral contest, and so no occasion for the Electoral Tribunal to exercise its jurisdiction. If, for instance, S is the only candidate and he suffers from a disqualification, e.g., citizenship, there would be no election contest since there would be no protestant, and so the jurisdiction of the tribunal could not be invoked. In this case, the house could not be denied the power to pass on this member-elect's qualifications. The opposite is an "expulsion proceeding" where a sitting member is ousted for disorderly behavior by a vote of 2/3 pf all the members of the particular house. c. Independence of the Electoral Tribunals Although the Electoral Tribunals are predominantly legislative in membership and the provision creating them is found in Article VI on the Legislative Department, it is not correct to say that they are mere adjuncts of the Congress of the Philippines. In fact, in the discharge of their constitutional duties, they are independent of the legislature, and also of the other departments for that matter. In the case Bondoc vs Pineda, 201 SCRA 792, the question raised was whether the House of Representatives could, at the request of the dominant political party therein, change its representative in the HRET, presumably to thwart the promulgation of a decision freely reached by the Tribunal. While acknowledging the independence of the Tribunal as the "sole judge" of election contests involving the members of the House of Representatives, the SC assumed jurisdiction, precisely to protect that independence. The SC held that the independence of the HRET would become a myth and its proceedings a farce if the House of Representatives of the majority party therein, may shuffle and manipulate the political (as distinguished from the judicial) component of the HRET, to serve the interests of the party in power. The resolution of the House of Representatives removing Congressman Camasura from the HRET for disloyalty to the LDP, because he cast his vote in favor of the NP's candidate, Bondoc, is a clear impairment of the constitutional prerogative of the HRET to be the sole judge of the election contest between Bondoc and Pineda. To sanction such interference by the House of Representative in the work of the HRET would reduce the Tribunal to a mere tool for the aggrandizement of the party in power which the three SC justices and the lone minority member would be powerless to stop. A minority party candidate may as well abandon all hope at the threshold of the Tribunal. As judges, the members of the HRET must be non-partisan. They must discharge their functions with complete detachment, impartiality and independence -- even independence from the political party to which they belong. Bondoc v. Pineda ( 201 SCRA 792, Sept. 1991) F:

Pineda (LDP) and Bondoc (NP) both ran as congressional reps for the 4th district of Pampanga. Pineda won but Bondoc filed a protest in the House of Reps Electoral Tribunal (HRET), which is composed

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of 9 members, 3 of whom are SC justices, and the remaining 6 are members of the House chosen on the basis of proportional representation from the political parties & the parties or organizations registered under the party-list system represented therein. The HRET decided in favor of Bondoc. Cong. Camasura, an LDP, voted in favor of Bondoc. Before Bondoc could be proclaimed, the LDP expelled Camasura as member of the party. The 3 justices who also voted for Bondoc asked to be relieved from their assignment in the HRET because the withdrawal of Camasura as HRET rep of LDP in effect was a way of aborting the proclamation of Bondoc (NP). [Request of Justices Melencio Herrera, Cruz and Feliciano to be relieved as members of the HRET (Res. March 19,1991)]

ISSUES: 1. May the House of Reps at the request of the dominant political party therein, change the party's representation in the HRET to thwart the promulgation of a decision freely reached by the tribunal in an election contest pending therein? 2. May the Supreme Court review and annul that action of the House? HELD: (as to Issue #1): 1. No. The use of the word "SOLE" in both Sec. 17 of Art. VI of the 1987 Consti & Sec. 11 of Art. VI of the 1935 Consti underscores the EXCLUSIVE jurisdiction of the HRET as judge of contests relating to the ELECTION, RETURNS & QUALIFICATIONS of the members of the House (Robles v. HRET, GR 88647,1990). The tribunal was created to function as a NONPARTISAN court although 2/3 of its members are politicians. It is a NON-POLITICAL body in a sea of politicians x x x. To be able to exercise exclusive jurisdiction, the HRET must be INDEPENDENT. Its jurisdiction to hear and decide congressional election contests is not shared by it with the Legislature nor with the courts. 2. As judges, the members of the tribunal must be NON-PARTISAN. They must discharge their functions with complete detachment, impartiality, & independence- even independence from the political party to which they belong. Hence, DISLOYALTY TO PARTY & BREACH OF PARTY DISCIPLINE are NOT VALID grounds for the expulsion of a member of the tribunal. In expelling Cong. Camasura from the HRET for having cast a "conscience vote" in favor of Bondoc, based strictly on the result of the examination & appreciation of the ballots & the recount of the votes by the tribunal, the house committed a grave abuse of discretion, an injustice, and a violation of the Constitution. Its resolution of expulsion against Camasura is null & void. As to issue #2: Yes. The power & duty of the courts to nullify, in appropriate cases, the actions of the executive & legislative branches of the Govt., does not mean that the courts are superior to the President & the legislature. It does mean though that the judiciary may not shirk the "irksome task" of inquiring into the constitutionality & legality of legislative or executive action when a justiciable controversy is brought before the courts by someone who has been aggrieved or prejudiced by such action, as in this case. It is "a plain exercise of the judicial power, that power to hear and dispose of a case or controversu properly brogue before the court, to the determination of which must be brought the test & measure of the law (Vera v. Avelino, 77 Phil 192). Adapted. d. Powers

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In the earlier case of Angara vs Electoral Commission (63 Phil 139), it was held that the respondent body had the exclusive right to prescribe its own rules of procedure, as against those earlier adopted by the legislature itself, in connection with the election contests under its jurisdiction. This ruling was recently affirmed by the SC in Lazatin vs House Electoral Tribunal, 168 SCRA 391. The SC held that: The power of the HRET, as the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives, to promulgate rules and regulations relative to matters within its jurisdiction, including the period for filing election protests before it, is beyond dispute. Its rule making power necessarily flows from the general power granted to it by the Constitution. This is the import of the case Angara vs Electoral Commission. In such case, the SC held that the creation of the Electoral Commission carried with it ex necesitate rei the power regulative in character to limit the time within which protests intrusted to its cognizance should be filed. Where a general power is conferred, every particular power necessary for the exercise of the one or the performance of the other is also conferred. In the absence of any further constitutional provision relating to the procedure to be followed in filing protests before the Electoral Commission, 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 the members of the legislature, must be deemed by necessary implication to have been lodged also in the Electoral Commission. e. Judicial Review of decisions of Electoral Tribunals Co v. Electoral Tribunal of the House of Representatives (199 SCRA 692, July, 1991) F:

Co, Balinquit & Ong ran for representative of the 2nd legislative district of Northern Samar in the May 11, 1987 elections. Ong won but pets (Co & Balanquit) protested Ong's election on the ground of noncitizenship. The HRET found for Ong.

HELD: 1. Judgments of electoral tribunal are beyond judicial interference save only in the exercise of the Court's so-called extraordinary jurisdiction, x x x upon a determination that the tribunal's decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated ERROR, manifestly constituting such grave abuse of discretion that there has to be a remedy for such abuse. 2. In the absence of a showing that the HRET has committed grave abuse of discretion amounting to lack of jurisdiction, the Court cannot exercise its corrective power. Adapted. 6. Commission on Appointments Art. VI, Sec. 18-19 Art. VI, Sec. 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve senators, and twelve Members of the House of Representatives, elected by each House on the basis of proportional PAGE 156


representation from the political parties and parties or organizations registered under the party-list system represented therein. The Chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority votes of all the Members. Id., Sec. 19. The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its Members, to discharge such powers and functions as herein conferred upon it. Composition by proportional representation has always been the rule even under the 1935 Constitution. And rightly so. For unlike the Electoral Tribunal which performs the essentially neutral function of adjudication, the Commission on Appointments performs the essentially political function of appointment. The distribution of political parties in the two Houses must thus be reflected proportionately in the Commission. Since membership in the Commission on Appointments is based on party affiliation, then a defection from one party to another changes the proportion in the respective houses (which) is a valid ground for the reorganization of the commission. However, a mere temporary alliance, an agreement between and among members coming from different parties to act in a concerted manner only on some issues, but without a change in party affiliation, does not justify a call to reorganize the commission on the ground that there is no longer proportional representation. So the SC ruled in Cunanan v Tan, 115 Phil 7 (1962). In Daza vs Singson, 180 SCRA 496, the petitioner questioned his replacement in the Commission on Appointments, insisting that his designation thereto as a representative of the Liberal Party was permanent and could not be withdrawn. For his part, the respondent contended that he could be validly be named in the petitioner's place in view of the political realignment in the House following the reorganization of the LDP to which he belonged. Both invoked the earlier Cunanan vs Tan case, where the SC had held that the political affiliations in the two Houses of Congress should be reflected in their respective representations in the Commission of Appointments. The petitioner claimed that the formation of the LDP was merely a temporary development whereas the respondent claimed that it had permanently altered the political composition of the House. Ruling in favor of the respondent, the SC declared that petitioner's argument is based on the non-registration of the LDP, which he claims has not provided the permanent political realignment to justify the questioned reorganization. However, the COMELEC then granted the petition of the LDP for registration as a political party. Petitioner then claims that registration is not sufficient and that the political party must pass the test of time. Under this theory, a registered party obtaining the majority of the seats will not be entitled to representation in the Commission on Appointments as long as it was organized only recently and has not yet aged. If such argument is to be followed, only the Liberal Party shall pass such test. The House of Representatives therefore has the authority to change its representation in the Commission of Appointments to reflect at any time the changes that may transpire in the PAGE 157


political alignments of its membership. It is understood that such changes must be permanent and do not include the temporary alliances or factional divisions not involving severance of political loyalties or formal disaffiliation and permanent shifts of allegiance from one political party to another.

Coseteng vs Mitra (187 SCRA 377) F:

During the 1987 Congressional elections, Coseteng was the only candidate elected under the KAIBA party. Of the 12 elected to the Commission on Appointments, Roque Ablan of the KBL, represented the Coalesced Minority. When the LDP was organized a year later, the House Committees including the House representation in the Commission on Appointments had to be reorganized. Coseteng requested Mitra that she be appointed a member of the CA as a representative of KAIBA. Ablan was however retained as the 12th member representing the House minority. Coseteng filed a petition to declare null and void the appointment of the members of the CA on the theory that their election to the CA violated the constitutional mandate of proportional representation.

HELD : The petition should be dismissed not because it raises a political question, which it does not, but because the revision of the House representation in the CA is based on proportional representation of the political parties therein. The issue is justiciable. The legality, and not the wisdom, of the manner of filling the CA, is justiciable. Even if it were a political question, such would still come within judicial review on the issue of whether there was grave abuse of discretion amounting to excess or lack of jurisdiction. The composition was based on proportional representation of the political parties therein. The other minority parties are bound by the majority's choices. Even if KAIBA were an opposition party, its lone member represents only .4% of the House, thus she is not entitled to one of the 12 seats. The other representatives to the CA were duly elected by the House (not by their party) as provided in Art. VI, Sec. 18. The validity of their election to the CA - eleven from the Coalesced Majority and one from the Coalesced Minority - is unassailable. Adapted. Guingona vs Gonzales (214 SCRA 789) F:

As a result of the 1992 Senatorial elections, the LDP was entitled to 7.5 seats in the CA, the NPC to 2.5, the LAKAS-NUCD to 1.5 and the LP-PDP-LABAN to .5. The problem arose as to what to with the 1/2 to which each of the parties is entitled. The LDP majority converted a fractional half-membership to a whole membership (7.5 + .5) to be able to elect Senator Romulo. In so doing, one other party's fractional representation in the CA was reduced. This is clearly a violation of Sec. 18, Art. VI because it is no longer based on proportional representation of the political parties. Senator Tanada claimed that he has a right to be elected as member of the CA because of the physical impossibility of dividing a person (need to round off .5 to one senator) and because as the sole representative of his party, his party is entitled to representation.

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HELD: The provision of Section 18 on proportional representation is mandatory in character and does not leave any discretion to the majority party in the Senate to disobey or disregard the rule on proportional representation. No party can claim more than what it is entitled to under such rule. Section 18 also assures representation in the CA of any political party who succeeds in electing members to the Senate, provided that the number of senators so elected enables it to put a representative in the CA. Therefore, in the Senate, a political party must at least have 2 duly elected senators for every seat in the CA. The SC does not agree that it is mandatory to elect 12 Senators to the CA. What the Constitution requires is that there be at least a majority of the entire membership. The Constitution does not require the election and presence of 12 senators and 12 members of the House in order that the Commission may function. The election of Senator Romulo and Tanada as members of the CA was clearly a violation of Art. VI, Sec. 18. Adapted. (not in VV's revised outline) Function (Art. VII, Sec. 16) The Commission shall confirm or approve nominations made by the President of certain public officers named by the Constitution or by law: 1. heads of the executive departments 2. ambassadors, other public ministers, and consuls 3. officers of the Armed Forces from the rank of colonel or naval captain 4. other officers whose appointments are vested in him in this Constitution a. Chairman and members of 3 Constitutional Commissions b. regular members of the Judicial and Bar Council c. members of the Regional Consultative council Sessions and Procedure (Secs. 18 & 19) The Commission on Appointments shall meet to discharge its powers and functions only while the Congress is in session. The meeting may be called by (a) the Chairman, or (b) a majority of all its members. The Chairman of the Commission does not vote, except to break a tie. The Commission shall act on all appointments submitted to it within 30 session days of the Congress from their submission. The Commission rules by a majority vote of all its members. Regular appointment Regular appointment takes place when the President appoints an officer whose appoinment requires confirmation by the Commission, while Congress is in session. The officer so appointed cannot assume office at once. The President must first nominate him to the Commission. Then, the Commission shall act on all appointments submitted to it within 30 session days of the Congress from their submission (VI, 18). Failure to act within the period is tantamount to disapproval of the nomination, since the Constitution requires positive action by the Commission (VV). If the Congress or the Commission itself adjourns without taking any PAGE 159


action on the nomination, again it is deemed disapproved (or bypassed). If the Commission approves the nomination, the Office of the President makes an "issuance of commission." Only then can the appointee assume office. Recess appointment On the other hand, recess appointment takes when Congress is not in session. (This is also known as ad-interim appointment, but the latter term is equivocal because it can be used in 2 senses: (i) midnight appointment, which happens when the President makes an appointment before his term expires, whether or not this is confirmed by the Commission on Appointments, and (ii) recess appointment, which happens when the President makes appointment while Congress is in recess, whether or not his term is about to expire.) Unlike regular appointment, the ad-interim appointment made by the President is complete in itself, and thus effective at once, even without confirmation. But this appointment has only temporary effect. When Congress convenes, the Commission would have to act on the ad interim appointment by confirming it (in which case the appointment becomes permanent) or disapproving it by means of a positive failure to act on the appointment (in which case the appointment is immediately terminated). According to the Constitution, the President shall have the power to make appointment during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments (which can only be done when Congress is in session (Art. VI, Sec. 19) or until the next adjournment of the Congress (if the Commission fails to act earlier). (Art. VII, Sec. 16, par. 2). 7. Legislative Power and Process of Congress a. General plenary powers Art. VI, Sec. 1. The legislative power shall be vested in the Congress of the Philippines, which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. b. Limitations on the Legislative Power (1) Substantive limitations (a) Express substantive limitations 1) The Bill of Rights Art. III. Bill of Rights. The freedom of individuals are addressed as limitations to the power of Congress to legislate. Thus, the provisions of the Bill of Rights begin with the phrase "No law shall be passed". PAGE 160


2) Appropriation Laws Art. VI, Sec. 29. (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. xxx Art. VI, Sec. 25. (1) The Congress may not increase the appropriation recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law. (2) No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriations therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates. (3) The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. (4) A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein. (5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions 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. (6) Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law. (7) If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress. General Principle No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. [Art. VI, Sec. 29(1)]. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in the House, but the Senate may propose or concur with amendments (Sec. 24). (The reason is that the House is the more popular chamber of Congress.) General Appropriation The President shall submit to Congress, within 30 days from the opening of its regular session, as the basis of the general appropriations bill, a budget of (a) expenditures, and (b) PAGE 161


sources of financing, including receipts from existing and proposed revenue measures. (Art. VII, Sec. 22). The form, content, and manner of preparation of the budget shall be prescribed by law. [Art. VI, Sec. 25(1), 2nd sentence]. The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. No provision or enactment shall be embrace in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates. [Art. VI, Sec. 25(2)] The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. If, by the end of the fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted, and shall remain in force and effect until the general appropriations bill is passed by the Congress. [Art. VI, Sec. 25(7)] Special Appropriation A special appropriations bill shall (a) specify the purpose for which it is intended, and (b) supported by funds, actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein. [Art. VI, Sec. 25(4)] (A special appropriations bill may be proposed to supply a lack or meet a new need, like a special election. In the case of a special law to elect the President and Vice-President, however, the requirements of the sections are specifically exempted by the Constitution in Art. VII, Sec. 10.) Transfer of funds already appropriated No law shall be passed authorizing any transfer of appropriations. However, the President, President of the Senate, Speaker of the House, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commission 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. [Art. VI, Sec. 25(5)] Discretionary funds appropriated for particular officials shall be disbursed only for public purposes, to be supported by appropriate vouchers, and subject to such guidelines as may be prescribed by law. [Art. VI, Sec. 25(6)] In Demetria v Alba, supra, it was held that Sec. 44 of the Budget Act of 1977 (BP 1177) granting the President the blanket authority to transfer funds from one department to another, with or without savings, is unconstitutional. PAGE 162


Prohibited appropriation to enforce the Separation of Church and State No public money or property shall be appropriated (applied, paid, or employed), directly or indirectly, for the use, benefit, or support of any religion (sect, church, denomination, sectarian institution, or any system of religion) or of any priest (preacher, minister, other religious teacher, or religious dignitary). Exception: When such priest, et. al., is assigned to (a) the AFP; (b) any penal institution; (c) any government orphanage; or (d) any leprosarium. [Art. VI, Sec. 29(2)] Appropriations laws (the spending powers of Congress (id., Sec. 25)) are tied up with Tax laws (the power to raise revenues (id., Sec. 28)). They are two indispensable sides of a coin. They are tied up by the principle that no money shall be paid out of the Treasury except in pursuance of an appropriation made by law (id., Sec. 29(1)). 3) Tax laws Id., Sec. 28. (1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. Cruz: Uniformity in taxation means that persons or things belonging to the same class shall be taxed at the same rate. It is distinguished from equality in taxation in that the latter requires the tax imposed to be determined on the basis of the value of the property. The present Consti. adds that the rule of taxation shall also be equitable, w/c means that the tax burden must be imposed according to the taxpayer's capacity to pay. Id., Sec. 28 (2) The Congress may, by law, authorize the President to fix, within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (3) Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. (4) No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress. Art. XIV, Sec. 4 (3) All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law.

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Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions subject to the limitations provided by law including restrictions on dividends and provisions for reinvestment. Art. VI, Sec. 29. (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. (2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. (3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government. 4) Jurisdiction of the Supreme Court Art. VI, Sec. 30. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence. Cruz: The purpose is to prevent further additions to the present tremendous case load of the SC w/c includes the baclog of the past 2 decades. 5) Title of royalty Art. VI, Sec. 31. No law granting a title of royalty or nobility shall be enacted. Cruz: The purpose of this prohibition is to preserve the republican and democratic nature of our society by prohibiting the creation of privileged classes w/ special perquisites not available to the rest of the citizenry. (b) Implied substantive limitations (i) Non-delegation of legislative powers As a general rule, legislative powers cannot be delegated, what can be delegated is the execution of the laws under acceptable standards limiting discretion of the executive. The Constitution, however, provides certain specific exemptions. A. Delegation to the President PAGE 164


1) Emergency powers: Art. VI, Sec. 23. xxx (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period, and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.. 2) Certain taxing powers [Art. VI, Sec. 28(2)] (see Delegation of Tax Powers) Art. VI, Sec. 28. xxx (2) The Congress may, by law, authorize the President to fix, within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. B. Delegation to Local Governments Tax powers: Art. X, Sec. 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. Pelaez vs Auditor General 15 SCRA 569 At issue here was the validity of Sec. 68 of the Revised Administrative Code empowering the President of the Philippines to create, merge, divide, abolish or otherwise alter the boundaries of municipal corporations. Pelaez contended that it was an invalid delegation of legislative power. The govt. argued that it was not, invoking the earlier case of Cardona vs Binangonan, 36 Phil 547, where the power of the governor-general to transfer territory from one municipality to another was sustained. The SC upheld Pelaez. It ruled that the completeness test and the sufficient standard test must be applied together or concurrently. The SC declared that the Cardona case involved not the creation of a new municipality but merely the transfer of territory from one municipality to another. The power to fix such boundaries of existing municipalities may partake of an administrative nature but the creation of municipal corporations is strictly legislative in nature. Although Congress may delegate to another branch of the Govt. the power to fill details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself -- it must set forth therein the policy to be executed, carried out or implemented by the delegate -- and (b) to fix a standard -- the limits of which are sufficiently determinate or determinable-- to which the PAGE 165


delegate must conform in the performance of his functions. Indeed, without a statutory declaration of policy, which is the essence of every law, and without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Sec. 68 of the RAC does not meet these well settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects of undue delegation. Adapted. C. Delegation to the People Initiative and referendum powers: Art. VI, Sec. 32. The Congress, shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws, or approve or reject any act or law or part thereof, passed by the Congress or local legislative body, after the registration of a petition therefore, signed by at least ten per centum of the total number of registered voters with every legislative district represented by at least three per centum of the registered voters thereof. (ii) Prohibition against passage of irrepealable laws It is axiomatic that all laws, even the Constitution itself, may be repealed or amended. No one can bind future generations to a law. (2) Procedural Limits Art. VI, Sec. 26 (1) Every bill passed by Congress shall embrace only one subject which shall be expressed in the title thereof. (2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal. Sec. 27 (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be considered, and if approved by two-thirds of all the Members of that House, it shall become PAGE 166


a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object. c. Question Hour Art. VI, Sec. 22. The heads of departments may upon their own initiative with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. The heads of department shall provide, appear before, and be heard, by any house, on any matter pertaining to their departments: (i) upon their own initiative, with the consent of the President; or (ii) upon request of either house, as the rules of that house shall provide. (This is a carryover of the 1973 Constitution, a feature of a parliamentary system.) Written questions shall be submitted to the presiding officer of the house at least 3 days before the scheduled appearance. The purpose is to enable the cabinet member to prepare. thereto.

Interpellations shall not be limited to written questions, but may cover matters related

It is submitted that a member of the Cabinet may not refuse to appear before the house. If he refuses a summons, he can be cited for contempt. If the President forbids his appearance, still he must appear if asked by Congress. Under 1935, it was an excuse for the President to certify that the interest of public security justifies the refusal; under 1987, the remedy is an executive session not refusal to appear.

When the security of the State or the public interest so requires, and the President so states in writing, the appearance shall be conducted in executive session. (It must be noted then that the President cannot disallow the appearance but can only ask for a closed door session). d. Legislative Investigations

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Art. VI, Sec. 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid or legislation in accordance with its duly published rules or procedure. The rights of persons appearing in or affected by such inquiries shall be respected. Each house or any of its committees may conduct "inquiries in aid of legislation" according to its duly published rules of procedures. To enforce this right, the SC upheld the power of Congress to hold in contempt a person required to appear before Congress or its committee and answer questions relevant to a matter of legislative interest in the Arnault cases. In Arnault v Nazareno. 87 Phil 29 (1950). Arnault was cited for contempt for persistently refusing, after taking the stand, to reveal the name of the person to whom gave the P440,000. In connection with the legislative investigation of the Buenavista and Tambobong Real Estates whereby a certain Bert was able to sell the land to the government and realized P1.5 million. The second case of Arnault v Balagtas, 97 Phil 350 (1955) arose when he persisted in not giving information, this time about an affidavit which purportedly gave the details surrounding the acquisitions of the estates by Bert and the supposed circumstances under which he gave the amount to a Jess Santos. The Court in both cases, upheld the authority of the Senate to cite him in contempt, and thus dismissed the habeas corpus petitions. When so held in contempt, since the Senate is a continuing body, the contempt seems to be effective even beyond the session during which the contempt was made, held the SC in Arnault, overruling the case of Lopez v de los Reyes, 55 Phil 170 (1930), where the Court held that the contempt lasted only for the session and could not be revived in the next session by a mere reapproval of the previous contempt. However, the rights of the persons (a) appearing in, or (b) affected by such inquiries shall be respected. Notable among these rights is the right against "self- incrimination". Usually, immunity is granted to those who are compelled to appear. Bengzon vs Senate Blue Ribbon Committee 203 SCRA 767 In this case, the petitioners sought to restrain the respondent from investigating their participation in the alleged misuse of govt. funds and the illicit acquisition of properties being claimed by the PCGG for the Republic of the Philippines. The SC granted the petition, holding that the petitioners are impleaded as defendants in a case before the Sandiganbayan, which involves issues intimately related to the subject of contemplated inquiry before the respondent Committee, and that no legislation was apparently being contemplated in connection with the said investigation. However, the decision failed to consider that the proceeding before the Sandiganbayan was criminal in nature and that the purpose of the legislative investigation was to ascertain the disposition of funds and properties claimed to be public in nature. Its findings on this matter PAGE 168


could be the subject of legislation although it may not have been expressly stated that such was the purpose of the inquiry. As observed in the earlier case of Arnault vs Nazareno, 87 Phil 29, the SC is bound to presume that the action of the legislative body was with a legitimate object if it was capable of being so construed, and it has no right to assume that the contrary was intended. Mendoza, The Use of Legislative Purpose as a Limitation on the Congressional Power of Investigation, 46 PHIL L.J. 707 (1971) A determination that the inquiry is for a "legislative purpose" is not the end, but only the beginning, of the complexity. xxx The idea that Congress has a right to be fully informed in order that it may legislate wisely underlies the exercise of the power to investigate, w/ coercive power to compel disclosure. At the same time concern for the fact that unless limited to a "legislative purpose" the power to investigate may be used to harass individuals and invade fundamental rights very early led the US SC to insist on a showing that investigations be "in aid of legislation." xxx THE ALTERNATIVE USE OF THE DOCTRINE Through the years, the doctrine of legislative purpose, first announced in Kilbourn vs.Thomposon, 103 US 168 (1880), has steadily declined in value as a limitation on the congressional power of investigation, until today it is used only as a counterweight to individual rights. xxx The use of the doctrine of legislative purpose is subject to the following observations: First. To say that congressional inquiries may only be justified in terms of the need for legislation is to assume two things: (a) that the powers of govt can be neatly divided into legislative, judicial and executive, and (b) that the function of Congress is confined to strictly lawmaking. Only a doctrinaire view of the principle of separation of powers can support the first. The 2nd assumption is based on an unreality. xxx Second. [T]he doctrine of legislative purpose is difficult of enforcement. xxx It is said that investigations can only be undertaken in aid of legislation. But how is the Court to prove otherwise if Congress declares that its purpose is legislation? The Court cannot probe into the motives of the members of Congress. And legislative investigation need not result in legislation. xxx [W]hile the Court may try to enforce the legislative purpose doctrine by requiring Congress to state the aims and purposes of authorized investigations, there is nothing it can do if Congress refuses to comply w/ its demand. On what ground can the Court strike down vague authorizing resolutions? On the principle of separation of powers? Fourth. Even given the fact that an investigation is for a legislative purpose, the task of the Court is not at an end. xxx The legislative purpose served by the inquiry will still have to be weighed against the right of the witness. Legislative purpose serves not as a limitation on the power of investigation but rather as a counterweight to the interest in civil liberties.

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Fifth. xxx To presume that the purpose is lawmaking where the purpose is different is to place an undue weight on one side of the scale. Against the presumption of legislative purpose, individual rights would indeed appear to be mere paper weights. xxx xxx By recognizing exposure as a normal purpose of investigations, while at the same time stressing its potential danger to individual rights, the Court can begin to act as a real balancer of interests, striking down those inquiries which needlessly destroy constitutional rights and upholding those in w/c exposure of some danger or misdeeds is essential to society. xxx [T]he use of "legislative purpose as a short hand term for what Congress might undertake tends to lend a conclusory meaning when what is involved is a process of reaching judgment. xxx Notes on Legislative Inquiries by RAM : The power of Congress to conduct investigations exists for the primary purpose of enabling it to discharge its legislative functions wisely and effectively-- to guide and aid Congress in the enactment of laws, their amendments and as well as their repeal.1 In the seminal case of Arnault vs. Nazareno2, the Supreme Court said: The power of inquiry- with power to enforce it - is an essential and appropriate auxiliary to the legislative function. 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; and where the legislative body does not itself possess requisite information- which is not infrequently true- recourse must be had to others who do posses it. xxx. Legislative investigations are carried out in order to ascertain (a) what new legislation is needed (b) the existing law to be repealed and (c) whether a new legislation is effectively accomplishing its purpose with a view of amending it.3 But in addition to obtaining facts that may be useful in enacting laws, the power of inquiry may be utilized by Congress for the scrutiny of executive action as well as the formation of public opinion.4 Congressional investigations have the salutary effect of keeping the public informed of what is happening in their government since congressional investigations are given wide publicity by media.5 Congressional investigative function may be justified under certain provisions of the Constitution which are judicial and executive in nature.6 In the exercise of the power to confirm appointments7, information concerning the qualifications of the appointee may be investigated. The Senate may conduct an investigation into all matters pertinent to the possible ratification of a 1Joaquin

R. Roces, The Power of Congressional Investigations, UE Law Journal, vol. I, nos. 1-4, 19581959 at page 262-263. 287 Phil 29, 45 (1950). 3Juan F. Rivera, The Congress of the Philippines, pp. 57-58. 4Tanada and Fernando, The Constitution of the Philippines, pp. 771-771. 5op cit., loc cit. 6Juan F. Rivera, The Congress of the Philippines, p. 57. 7Art. VII, Sec. 16, 1987 Constitution PAGE 170


treaty.8 The power to inquire is also implied in the authority to impeach officials.9 Investigatory power is also available when Congress is considering constitutional amendments10, or the declaration of the existence of a state of war.11 The general power of Congress in conducting investigations may be roughly divided into two parts, one being its inquisitorial power and the other its punitive power.12 The inquisitorial powers of Congress, on the one hand, consists of its authority to summon witnesses, to extract testimony from them, and compel the production of papers, documents and other information.13 The punitive power of the Legislature, on the other hand, consists of its authority to deal directly, by way of contempt proceedings, with acts which inherently obstruct or prevent the discharge of its legislative duties.14 As early as the case of Lopez v. de los Reyes,15 the Supreme Court has ruled that the power to punish for contempt is essential to permit the Legislature to perform its duties without impediment. This pronouncement has been reaffirmed in the 1950 case of Arnault v. Nazareno.16 In that case, the Supreme Court has taken note of the fact that experience has shown that mere requests for such information are often unavailing, and that volunteered information are often unreliable. The courts, thus, concluded that some means of compulsion is essential to obtain what is needed. The correlative power to punish a prevaricating witness for contempt rests on the right of the legislature to self-preservation and is founded on "the right to prevent acts which, in and of themselves, inherently obstruct or prevent the discharge of legislative duties, or refusal to do that which there is an inherent legislative power to compel in order that legislative functions may be performed."17 This punitive power, however, terminates when the legislative body ceases to exist upon its final adjournment.18 Thus, unlike the Senate which is a continuing body, the term of whose members expire at different times,19 the life of the House of Representatives terminates upon its final adjournment.20 TRACING THE ROOTS The practice of legislative inquiries dates back to the 1620s when Pilgrims landed in America. Before that event, British Parliament had experimented with a fact-finding committee armed with the power to compel attendance of persons and the production of documents with the power to punish contumacious witnesses. This experiment on legislative inquest eventually developed as a necessary part of the legislative process with the establishment of the supremacy 8Art.

VII, Sec. 21, ibid. XI, Sec. 3, ibid. 10Art. XII, ibid 11Art. VI, Sec. 23, ibid. 12supra note no. 2 at p. 264-265. 13ibid, citing Willoughby, On the Consitution of the United States, Vol. I, sec. 344. 14ibid, at p. 267 1555 Phil 170. 16 supra note 6. 17supra note 2 at p. 267 citing Marshall v. Gordon, 243 US 521. 18Bernas, The Constitution of the Republic of the Philippines A Commentary, vol. II, p. 134. 19Art. XVII, Sec. 2, 1987 Constitution. 20supra note 18. 9Art.

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of Parliament in 1688. By 1689, a number of parliamentary committees of investigation were in operation.21 The US Congress first exercised this power in March of 1792. The former Congress had approved a resolution creating a committee to investigate the causes of failure of the expedition under Major General St. Clair against the Indians at Fort Wayne, giving this committee the power to call for papers and records need in the investigation. When the committee was called to submit the necessary papers relative to the campaign, President George Washington ordered his cabinet to deliver only those papers, the examination of which would promote public interest, and to refuse the delivery of such papers when disclosure would injure public interest. Nonetheless, the determination of what would enhance public interest was still a Presidential prerogative. In 1796, President Washington again refused the request of the House for the delivery of copy of instruction of the US Minister who negotiated a treaty with Great Britain invoking the doctrine of separation of powers. Subsequently, United States Presidents from Jefferson to Truman effectively wielded this doctrine as a shield against inquiries initiated by Congress.22 The first Philippine case on the matter of legislative investigations is the case of Arnault v. Nazareno. In that case, Senate Resolution no. 8 created a special committee to investigate the Buenavista and Tambobong Estates purchase. The Committee called and examined various witnesses, and among them was Jean Arnault. It sought to inquire into the necessity and regularity of the payment of a certain Burt of one million five hundred thousand pesos (P 1, 500, 000). Burt, for the downpayment of twenty thousand pesos (P20,000) had sometime in 1946 purchased from San Juan de Dios Hospital and from the Philippine Trust Company the Buenavista and Tambobong Estates. The Committee sought to determine who were responsible for and who benefited from the transaction at the expense of the government. Jean Arnault refused to reveal the name of the person to whom he gave the amount of one hundred forty thousand pesos (P140,000.00) as well as to any other related pertinent questions. The Committee then ordered his commitment to the custody of the Sergeant-at-arms and imprisonment in the New Bilibid Prison, Muntinglupa until discharged by further order of the Senate or by the Special Committee created by Senate Resolution no. 8. A petition for the release of the petitioner from his confinement at Muntignlupa was denied by the Supreme Court, thereby upholding the right of Congress to conduct investigations in aid of legislation. Philippine courts have held that the congressional power to investigate is co-extensive with legislative power.23 This ruling follows the later decisions handed down by the US Supreme Court. Note that earlier US jurisprudence has maintained that congressional investigative power is to be used to implement a "clear and precise legislative purpose."24 Later, US rulings, however, have expanded the power to "at least as great as the power to legislate."25

LIMITATIONS Article VI, Sec. 21 of the 1987 Constitution provides: 21supra

note 7 at p. 56 citing Keele, Harold M. Notes on Congressional Investigations, American Bar Association Journal, vol. 40 no. 2, p. 154, February 1954. 22supra note 2, at p. 265-266 citing History of (US) Congressional Investigations. 23Arnault v. Nazareno, supra 24Kilbourn v. Thompson, 103 US 168 (1881). 25supra note no. 2 at p. 60 citing US v. Johnson, 333 US 837. PAGE 172


The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. In an attempt to protect the rights of witnesses, the Constitution imposes several limitations to the investigatory power of Congress. First., the investigation must be in aid of legislation. Congress cannot conduct an investigation merely for the purpose of investigation. No inquiry is an end in itself; it must be related to and in furtherance of a legitimate task of Congress.26 Investigation of purely private affairs of people cannot be made, as Congress cannot legislate on them. However Congress can inquire into private affairs if they affect matters on which Congress can legislate.27 Moreover, Congress cannot conduct an investigation to find out if someone should be prosecuted criminally, or to determine if someone is guilty or innocent of a crime, or to decide what are the rights of parties to a controversy. Congress is not a law enforcement agency or a court.28 Unfortunately, however, the determination of what is "in aid of legislation" is not the end but only the beginning of the complexity.29 If a claim is made by Congress that an investigation is in aid of legislation, how will the court prove otherwise? More often than not, courts are compelled to take the statement of "in aid of legislation" at face value and render it conclusive upon themselves.30 It is difficult to define any limits by which the subject matter of its inquiry can be circumscribed.31 It is not necessary that every question propounded to a witness must be material to a proposed legislation. Materiality of the question must be determined by its direct relation to the subject of inquiry and not by its indirect relation to any proposed or possible legislation.32 In determining the propriety of the question propounded to a witness, thus, the following matters are to be considered33: (1) the definition of the inquiry found in the authorizing resolution or statute; (2) the opening remarks of the committee chair; (3) the nature of the proceedings; (4) the question itself; and (5) the response of the committee to a pertinency objection. In the case of Bengzon v. Senate Blue Ribbon Committee,34 the Supreme Court has held that the contemplated inquiry by the respondent Committee is not really "in aid of legislation" because it is not related to a purpose within the jurisdiction of Congress. In that case, the petitioners seek to enjoin the Senate Blue Ribbon Committee from requiring them to testify and produce evidence at its inquiry into the alleged sale of the equity of Benjamin Romualdez to Lopa Group in thirty six (36) corporations.35 The Court notes the fact that since the aim of the investigation is to find out whether or not the 26Watkins

v. US, supra Jimenez, The Modern Day Spanish Inquisition, Ateneo Law Journal, vol XXXIV p. 71, citing Nelson v. Symaqn, 105 A 2d 756, 764. 28Ibid. 29Vicente V. Mendoza, The Use of Legislative Purpose as a Limitaiton on Congressional Power to Investigate, 46 PLJ 707. 30supra, note 29 at p. 719. 31Arnault v. Nazareno, supra. 32ibid. 33supra note 23 citing Watkins v. US, 354 Us 178, 209-214. 34203 SCRA 767. 35Miriam Defensor-Santiago, CONSTITUTIONAL LAW, p. 141. 27Jacinto

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relatives of the President or Mr. Ricardo Lopa has violated Section 5 of Republic Act 3019, the Anti-Graft and Corrupt Practices Act, the matter appears more within the province of courts rather than the legislature.36 In addition, the court notes that for respondent committee to probe and inquire into the same justiciable controversy, which is already before the Sandiganbayan, would be an encroachment into the exclusive domain of judicial jurisdiction that has much earlier set in.37 Secondly, the investigation must be in accordance with duly published rules of procedure of Congress. These rules of procedure are subject to change or even suspension by Congress at any time except if it will affect the substantive rights of the witness and other persons involved.38 And thirdly, the Constitution further mandates that the rights of witnesses appearing in or affected by such inquiries must be respected. Like all other forms of governmental actions, the Bill of Rights is applicable to congressional investigations. Witnesses at such investigations, hence, cannot be compelled to give evidence against themselves, they cannot be subjected to unreasonable search and seizure, and their freedoms of speech, press, religion and political belief and association cannot be abridged.39 The right against self-incrimination applies to any witness in any proceeding, whether civil, criminal, or investigative, who is being compelled to give testimony that may be used against them in a subsequent criminal case.40 The privilege against self-incrimination not only extends to answers that will, in themselves support a conviction but likewise, embrace "those which would furnish a link in the chain of evidence to prosecute the claimant for a (crime)."41 The privilege, nevertheless, is operative and available only where the compelled testimony or communication possesses a potential for incrimination. For potential incrimination to exist, there must be a showing that (1) there is a threat of criminal liability; (2) that such threat of criminal liability concerns the witness himself; and (3) that such threat is real and appreciable and not imaginary and unsubstantial.42 In a legislative investigation, a witness cannot claim his right against self-incrimination in refusing to answer before any question is propounded on him. He must wait until he is asked an incriminatory question.43 A witness can attempt to avoid answering particular questions by claiming an infringement of his freedom of speech, or freedom of association, belief, or religion. To be meaningful, freedom of speech and freedom of association must allow citizens to express ideas, even unpopular ones, and to join associations, even infamous ones, without fear of ultimate sanction for doing so. To the extent that testifying before a legislative committee forces one to publicly reveal beliefs and associations when disclosure can lead to being blacklisted, socially ostracized, or losing one's job, compelling such testimony infringes upon one's constitutional

36Ibid,

p. 783. p. 784. 38supra note 19 at p. 133 citing Osmena v. Pendatun, 109 Phil. 863 (1960) 39supra note 2 at p. 66. 40Manual on Guaranty against Self-incrimination, Perfecto V. Fernandez, UP Law Complex Institute of Human Rights- Law Center, p. 11 citing Counselman v. Hitchcock, 142 US 547, 12 S Ct 195, 35 L Ed 1110. 41Ibid, p. 63 citing Hoffman v. US, 341 US 479, 71 S Ct 816, 95 L Ed 1118. 42Ibid, p. 139 citing Hoffman v. US, supra.. 43Jacinto Jimenez, supra note 27 at p. 90 citing In re Petition of Graham, 104 So 2d 16, 18. 37ibid,

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rights. A legislative investigation may create what is called a "chilling effect" on the exercise of these rights.44 A witness can remain silent and ultimately avoid possible sanction for a contempt citation if he or she (1) makes a proper claim to the constitutional protection against self-incrimination, (2) validly alleges an infringement of freedom of religion, speech, or of the press and association and (3) validly claims questions asked are not pertinent.45 However, it is apparent that but for a limited and proper claim, none of these options is free of a substantial risk that the witness may be wrong and have to suffer for the miscalculations. Indeed, the legislative power of inquiry and the auxiliary power to compel testimony are limited in theory only, but invariably unrestricted in practice.46 The 1987, as well as in the 1973 Constitution directly conferred the power of investigation upon congressional committees.47 This is a significant development since under the 1935 Constitution, the investigatory powers of the committees were conferred by the legislature. There is a need for defining with "sufficient particularity" the jurisdiction and purpose of investigating committees (1) as a way of insuring the responsible exercise of delegated power and (2) as a basis for determining the relevance of the questions asked.48 The scope of the powers of the committee must, therefore, be delimited in order to enable the witness to know whether the subject of investigation is proper, and, ultimately whether the questions asked are pertinent to the subject of inquiry.49 In delineating this powers, the following propositions50 have been made: (1) the authority of an investigating committee to act must be determined from the rule or resolution creating it; (2) a valid legislative purpose as distinct from a purpose merely of exposure, must be shown; and (3) the witness must be informed as to the pertinency of the particular question in relation to the legislative purpose. AVAILABILITY OF JUDICIAL REVIEW Art. VIII Section 1 of the 1987 Constitution provides: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The courts can review whether or not the questions propounded to a witness is relevant to the subject matter of legislative investigation. Whether the alleged immateriality of the 44Power

to Investigate, the Supreme Court and the Allocation of Consitutional Power, Introductory Essays and Selected Cases, Otis H. Stephens and Gregory J. Rathjen, p. 146 citing Barenblatt v. US, 360 US 109, 79 S Ct 1081, 27 US Law Week 4366 (1959). 45supra note 33 at p. 148. 46Ibid. 47Bernas, supra note 18 at p. 132. 48supra note 29 at p. 711 citing Watkins v. US, 354 US 178. 49Ibid. 50supra note 2 at p. 66 citing Barenblatt v. US, 79 Sct 1081, 27 US Law Week 4366 (1959). PAGE 175


information sought by the legislative body from a witness is relied upon to contest its jurisdiction, the court is in duty bound to pass upon the contention.51 When a claim to the constitutional right against self-incrimination, freedom of speech, press, religion and association is asserted to bar governmental interrogation, the resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.52 It cannot be simply assumed, however, that every congressional investigation is justified by a public need that over-balances any private rights affected. To do so is to abdicate the responsibility placed by the Constitution upon the judiciary to insure that Congress does not unjustifiably encroach upon an individual's right to privacy nor abridge his liberty of speech, press, religion or assembly.53 The legislative purpose served by the inquiry will still have to be weighed against the right of the witness. Legislative purpose serves best, not as a limitation on the power of investigation but rather, as a counterweight to the interest in civil liberties.54 To presume that the purpose is lawmaking when , in fact, it is not is to place an undue weight on one side of the scale.55 RAM.

Question Hour (Art. VI, Sec. 22) and Legislative Investigation (id., Sec. 21) a. As to persons who may appear: 22: Only a department head 21: Any person b. As to who conducts the investigation 22: Entire body 21: Committees c. As to subject-matter 22: Matters related to the department only 21: Any matter for the purpose of legislation.

elections

e. Act as Board of Canvassers for presidential and Vice Presidential

Art. VII, Sec. 4, pars. 4, et seq. Art. VII, Sec. 4. xxx 51supra

note 6. note 44. 53Bengzon v. Senate Blue Ribbon Committe, 203 SCRA 767, 785. 54supra note 30 at p. 719. 55Ibid, p. 720. 52supra

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The returns of every election for President and Vice- President, duly certified by the board of canvassers of each provinces or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of election (w/c is the 2nd Tuesday of June), open all the certificates in the presence of the Senate and House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass (i.e., tally the certificates of canvass) the votes. The persons having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes (tie), one of them shall forthwith be chosen by the vote of a majority of all the members of Congress, voting separately. The Congress shall promulgate its rules for the canvassing of the certificates. RA 7166 : An Act Providing for Synchronized National and Local Elections and for Electoral Reforms Sec. 30. Congress as the National Board of Canvassers for the Election of President and VicePresident: Determination of Authenticity and Due Execution of Certificates of Canvass.-- Congress shall determine the authenticity and due execution of the certificates of canvass for President and Vice-President as accomplished and transmitted to it by the local boards of canvassers, on a showing that: (1) each certificate of canvass was executed, signed and thumbmarked by the chairman and members of the board of canvassers and transmitted or caused to be transmitted to Congress by them; (2) each certificate of canvass contains the names of all of the candidates for President and Vice-President and their corresponding votes in words and in figures; and (3) there exists no discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes of any candidate in words and figures in the same certificate. When the certificate of canvass, duly certified by the board of canvassers of each province, city or district, appears to be incomplete, the Senate President shall require the board of canvassers concerned to transmit by personal delivery, the election returns from polling places that were not included in the certificate of canvass and supporting statements. Said election returns shall be submitted by personal delivery within two (2) days from receipt of notice. When it appears that any certificate of canvass or supporting statement of votes by precinct bears erasures or alterations which may cast doubt as to the veracity of the number of votes stated therein and may affect the result of the election, upon request of the Presidential or Vice-Presidential candidate concerned or his party, Congress shall, for the sole purpose of verifying the actual number of votes cast for President and Vice-President, count the votes as they appear in the copies of the election returns submitted to it.

f. Call a special election in case of vacancy in the offices of President and Vice-President Art. VII, Sec. 10. The Congress shall, at ten o'clock in the morning of the third day after the vacancy in the offices of the President and Vice-President occurs, convene in accordance with its rules without need of a call and within seven days enact a law calling for a special election to elect a President and a Vice-President to be held not earlier than

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forty-five days nor later than sixty days from the time of such call. The bill calling such special election shall be deemed certified under paragraph 2, Section 26, Article VI of this Constitution and shall become law upon its approval on third reading by the Congress. Appropriations for the special election shall be charged against any current appropriations and shall be exempt from the requirements of paragraph 4, Section 25, Article VI of this Constitution. The convening of the Congress cannot be suspended nor the special election postponed. No special election shall be called if the vacancy occurs within eighteen months before the date of the next presidential election. When a vacancy occurs in the offices of the President and Vice-President, more than 18 months before the date of the next regular presidential election, the Congress shall convene at 10 AM of the 3rd day after the vacancy, in accordance with its rules, without need of call. The convening of Congress cannot be suspended. Within 7 days after it convenes, it shall enact a law calling for a special election to elect a President and Vice- President, to be held between 45 to 60 days from the day of such call. The holding of the special election cannot be postponed. Not later than 30 days after the election, Congress shall again act as Board of Canvassers (see infra), since Art. VII, Sec. 4 par. a talks of every election for President and Vice-President. Thus, the timetable is: Day 0 - vacancy occurs Day 3 - Congress convenes without need of call Day 10 - Congress passes the special election law, if it has not passed before this date Day 55 to 70 - election is held Day 85 to 100 - as the case may be - canvassing by Congress, if it has not done so earlier. latest.

Under the Constitution then a vacancy is filled by the 100th day from the vacancy at the The law so passed is exempted from the following:

a) Certification under VI, 26, par. 2. Thus, the three readings can be done all on the same day. b) Approval by the President (for obvious reasons). The bill automatically becomes a law, then, upon its approval on 3rd and final reading. c) Certification by the National Treasurer of the availability of funds, or revenue raising measure under Art. VI, Sec. 25(4). Appropriations for the special election shall be charged against any current appropriations. g. Revoke or extend suspension of privilege of habeas corpus or declaration of martial law PAGE 178


Art. VII, Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines, and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. When the President suspends the privilege of the writ or proclaims martial law (see discussion, infra), then Congress shall convene within 24 hours form the proclamation or suspension in accordance with its rules, without need of a call, if it is not in session. The President shall then submit a report in person or in writing to Congress, within 48 hours from the proclamation or suspension. By a joint majority vote of all the members of both houses in a joint meeting, the Congress has 2 possible courses of action: 1) To revoke (or disapprove) the proclamation or suspension, which revocation cannot be set aside (vetoed) by the President, or 2) To extend the proclamation after 60 days, for a period to be determined by Congress, if the causes persist. It must be noted that the Congress does not approve the proclamation or suspension, but either disapproves it or extends it, because the proclamation or suspension is valid in itself for 60 days already, and so does not require the approval of Congress for its effectivity. What it needs is the extension that may be granted by Congress beyond the 60-day period when it expires, which extension need not be for another 60 days only. PAGE 179


h. Approve Presidential Amnesties Art. VII, Sec. 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. The President has the power to grant amnesty with the concurrence of a majority of all the members of Congress. i. Confirm certain appointments (1) Art. VII, Sec. 9 (By Congress) Art. VII, Sec. 9. Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of Congress, voting separately. (2) Id., Sec. 16 (By the Commission on Appointments) Art. VII, Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also 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. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions or boards. The President shall have the power to make appointments during the recess of Congress, whether voluntary or compulsory, but such appointment shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. The following officers appointed by the President require confirmation by the CA: a. Heads of departments (VII, 16) b. Ambassadors, public ministers, and consuls (VII, 16) c. Officers of the AFP from the rank of colonel and naval captain (VII, 16) PAGE 180


d. Chairman and members of the Constitutional Commissions (IX, B, C, & D, 1[2]) e. Members of the Judicial and Bar Council (VIII, 8[2]) In Sarmiento vs Mison, 156 SCRA 549, the Commissioner of Customs was held not to be subject to confirmation, being of the rank of the bureau director, who was purposely deleted from the listing of those whose appointments had to be approved by the Commission on Appointments. It was the clear and express intent of the framers of the Constitution to exclude presidential appointments from confirmation by the CA, except appointments to offices expressly mentioned in Art. VII, Sec. 16. The power to appoint is already vested in the President, without need of confirmation by the CA. Sarmiento vs Mison, 156 SCRA 549 F:

Petitioners brought this suit for prohibition in their capacity as taxpayers, members of the Bar and law professors, to enjoin respondent Commissioner of Customs from performing his functions on the ground that his appointment, w/o confirmation by the CA, is unconstitutional.

HELD: Art. VII, Sec. 16, as orginally proposed by the Committe on Executive Power of the 1986 Con Com read: Sec. 16. The President shall nominate and, with the consent of a Commission on Appointment, shall appoint the heads of executive departments and bureaus, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain and 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. The Congress may by law vest the appointment of inferior officers in the President alone, in the courts, or in the heads of departments.

However, on motion of Comm. Foz, 2 changes were approved in the text of the provision. The first was to delete the phrase "and bureaus," and the second was to place a period (.) after the word "captain" and substitute the phrase "and all" w/ the phrase "HE SHALL ALSO APPOINT ANY." The first amendment was intended to exempt the appointment of bureau directors from the requirement of confirmation on the ground that this position is low and to require confirmation would subject bureau directors to political influence. On the other hand, the 2nd amendment was intended to subject to confirmation only those mentioned in the frist sentence, namely: The heads of the exec. depts, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in the Consti, i.e., (1) Regular members of the Judicial and Bar Council [Art. VIII, Sec. 8(2)] (2) Chairman and Commissioners of the Civil Service Commission [Art. IX-B, Sec. 1 (2)]; (3) Chairman and Commissioners of the COMELEC [Art. IX-C, Sec. 1 (2)]; (4) Chairman and Commissioners of the COA [Art. IX-D, Sec. 1 (2)]; (5) Members of the regional consultative commission (Art. X, Sec. 18.) The rest of the appointments mentioned in sec. 16 are not subject to confirmation. These are: (1) all other officers of the Govt whose appointments are not otherwise provided for by law;

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(2) those whom the Pres. may be authorized by law to appoint; and (3) officers lower in rank whose appointments Congress may by law vest in the Pres. alone. xxx. VV. j. Concur in Treaties Art. VII, Sec. 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate. This is true, although it is the President who is the chief spokesman in foreign relations. Executive agreements do not need concurrence. k. Declaration of war and delegation of emergency powers Art. VI, Sec. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint sessions assembled, voting separately, shall have the sole power to declare the existence of a state of war. (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. The Congress, by a vote of 2/3 of both houses in joint session assembled but voting separately shall have the sole power to declare the existence of a state of war. [Art. VI, Sec. 23(1)] In times of war or other national emergency, the Congress may authorize the President, for a limited period and subject such restrictions as the law may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Such powers shall cease upon the next adjournment of Congress, unless sooner withdrawn by its resolution. [Art. VI, Sec. 23(2).] Although the tour of duty of the Chief of Staff of the AFP should not exceed 3 years, the President may extend such tour of duty in times of war or other national emergency declared by Congress. [Art. XVI, Sec. 5(7).] l. Be judge of the President's physical fitness Art. VII, Sec. 11, par. 4. If the Congress, within ten days after receipt of the last written declaration, or if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office. PAGE 182


There are 3 ways in which the President may be declared unable to discharge his functions under this article: (1) Upon his own written declaration (2) Upon the first written declaration by majority of his Cabinet (3) Upon determination by Congress by 2/3 vote of all its members voting separately, acting on the 2nd written declaration by the Cabinet When the President himself transmits to the Senate President and Speaker of the House his written declaration that he is unable to discharge the powers and duties of his office, there is no problem. The Vice-President shall discharge such powers and duties as Acting President, until the President transmit to the Senate President and Speaker a written declaration that he is no longer unable to discharge his powers and duties. The problem arises when a majority of all members of Cabinet transmit to the Senate President and Speaker their written declaration that the President is unable to discharge his office. Upon such transmittal, the Vice-President shall "immediately" assume the office as Acting President. The President can contest this by transmitting to the Senate President and Speaker his written declaration that no inability exists. Upon such transmittal, he shall reassume his office. But if the majority of all the members of the Cabinet really believe otherwise, they can contest this "declaration of non- inability" by again sending a second written declaration to the Senate President and Speaker, within 5 days from the time the President transmitted his written declaration of non-inability. It is this second cabinet written "declaration of inability" that brings in the Congress as judge of the President's ability to discharge his office. (The Vice-President in this second instance does not act as President: the President having spoken as against his Cabinet, his declaration entitles him to stay until Congress says otherwise. But if the Cabinet submits the declaration more than 5 days after the President reassumes office, this may be viewed as a new declaration, and so the Vice-President can immediately act as President.) Congress must convene (a) within 10 days after receipt of the 2nd written declaration by the Cabinet, if it is in session, or (b) within 12 days after it is required to assemble by its respective presiding officer, if it is not in session. In a joint session, the Congress shall decide the President's ability. Two-thirds vote by each house, voting separately, is required to declare the President's inability. In other words, if 2/3 of each house vote that the President must step down, the Vice-President shall act as President. But if less than 2/3 of each House vote that the President is unable, the President shall continue in office. m. Power of Impeachment PAGE 183


(1) Who are subject to impeachment Art. XI, Sec. 2 Art. XI, Sec. 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal or public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. a. President b. Vice-President c. Justices of the Supreme Court d. Members of the Constitutional Commissions e. Ombudsman (2) Grounds for impeachment Art. XI, Sec. 2, supra. a) Culpable violation of the Constitution b) Treason (RPC) c) Bribery (RA 3019) d) Graft and corruption (RA 3019) e) Other high crimes f) Betrayal of public trust Limitation: No impeachment proceedings shall be initiated against the same official more than once within a period of one year. [Art. XI, Sec. 3(5)] Forum: The House of Representatives shall have the exclusive power to initiate all cases of impeachment. [Art. XI, Sec. 3(1)] (3) Procedure for impeachment Art. XI, Sec. 3(1)-(6)

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Art. XI, Sec. 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. A) Initiation stage 1) If initiated by less than 1/3 [Secs. 3(2)-(4)] (a) A verified complaint for impeachment is filed with the House of Representative by : (i) a member of the House of Representatives, or (ii) any citizen upon a resolution of endorsement by any member of the House. (b) The complaint must be included in the Order of Business within 10 session days upon receipt thereof. (the purpose is to prohibit any delay) (c) Not later than 3 session days after, including the complaint in the Order of Business, it must be referred (by the Speaker) to the proper committee (usually, the Committee on Justice and Order). (d) The Committee has 60 session days from receipt of the referral to conduct hearings (to see if there is probable cause), to vote by an absolute majority, and to submit report and its resolution to the House. (e) The resolution shall be calendared for consideration and general discussion by the House within 10 session days from receipt thereof.

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(f) After the discussion, a vote is taken, with the vote of each member recorded. A vote of at least 1/3 of all the members of the House is needed to "affirm a favorable resolution with the Articles of Impeachment of the Committee, or to override its contrary resolution." If the Committee made a favorable recommendation (i.e., it recommended that the complaint be sent over to the Senate), 1/3 of all the members are needed to approve such recommendation. If the Committee made a contrary recommendation (i.e., it recommended the dismissal of the complaint), 1/3 of all the members are needed to disapprove or override this report. In other words, so long as 1/3 of the lower house votes to proceed with the trial, then the case would be sent to the Senate, regardless of the committee recommendation, and regardless of the number who vote (which, could even be as high as 66% of the entire House), that it should not be sent to the Senate for trial. The reason is that the initiation stage does not determine the guilt or innocence of the officer being impeached. It merely determines whether there is a prima facie case against the officer that merits a full blown trial in the Senate. It is similar to a preliminary investigation. Its analogy in US Constitutional Law is the vote of 4 justices of the US Supreme Court on whether to give due course to a petition for certiorari. Once the 4 justices believe that the petition is on its face meritorious, the Court must give due course to it, even if 5 believe that it should not hear the case. Anyway, the grant of due course does not mean a favorable judgment in the end. The case of Romulo v Yniguez, supra, served as the precursor of the present provision on impeachment. Under the 1973 Constitution, the only provision on the initiation stage of impeachment was: "upon the filing of a verified complaint, the National Assembly may initiate impeachment by a vote of at least 1/3 of all its members." The silence of the Constitution on the procedure to be followed enabled the Batasan to adopt a rule that would allow a mere committee of the Batasan to kill the complaint for impeachment by merely shelving it into the archives. And the dilemma in Romulo v Yniguez was the political nature of the decision to shelve the case. For although the legality of the rules of procedure on impeachment is a justiciable or legal question, and thus subject to judicial review, to question this in court, and satisfy the requirements of judicial review (like an injury), one must resort to mandamus to retrieve the case from the archives. But how can one mandamus the Speaker? Thus, even if Romulo was raising a legal question, the court had to consider the question as a political one because it could not order the Speaker, a coequal, to retrieve the case they shelved, a decision made by the legislature in a matter within its competence. The factual situation could no longer arise under the present Constitution since the Committee must report the case to the floor, regardless of its recommendation. It cannot now "kill" the bill on its own volition. And since there is a clear rule of procedure, any other procedure similar to that adopted by the Batasan would now be reviewable by the Courts against a constitutional standard, in the same way laws passed by Congress can be measured against the constitutional norm.

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2) If initiated by 1/3 [Art. XI, Sec. 3(4)] If the verified complaint or resolution of impeachment is filed by at least 1/3 of all the members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. This means that the entire process is cut short. There is no need for a Committee report and discussion anymore, since the end result is that 1/3 of the members of the House have decided to send the case for trial. B) Trial Stage a) The Articles of Impeachment of the Committee is forwarded to the Senate, which has the sole power to try and decide all cases of impeachment, for trial. b) When sitting for the purpose of trying an impeachment case, the Senators shall be on oath or affirmation. c) As a general rule, the President of the Senate presides over an impeachment trial. But when it is the President of the Philippines who is on trial, the Chief Justice of the Supreme Court shall be the presiding officer, but he shall not vote. d) To carry out a conviction, the vote of 2/3 of all the members of the Senate (16 Senators) is required. If less than 2/3 vote that the officer is guilty, the effect is acquittal. e) The judgment of the Senate (like the judgment of the House on whether to initiate) is a political question that cannot be reviewed by the court (Romulo v Yniguez). (Unlike a law that can be reviewed by the courts because of the existence of constitutional standards, this judgment cannot be reviewed, for the Constitution itself has granted the discretion to this co-equal branch to appreciate the case as presented.) (4) Consequences of Impeachment Art. XI, Sec. 3 (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. In case of acquittal office.

The President continues in office, because pending the impeachment trial, he remains in

Acquittal does not only mean the dismissal of the impeachment case, but also a bar from any criminal action on the same offense that may be filed later on. (VV) In case of conviction [Art. XI, Sec. 3(7)]

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Judgment in cases of impeachment shall not extend further than (i) removal from office and (ii) disqualification to hold any office under RP. But a person convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law (RPC, Anti-Graft and Corrupt Practices Act, and other penal laws). (The courts cannot review the judgment on the impeachment case, and ultimately the removal from office and the disqualification, because these are political questions. But it can review the judgment in the criminal case.) (5) Must impeachment precede filing of criminal case? In Lecaroz vs Sandiganbayan, 128 SCRA 324, the SC said that the broad power of the Constitution vests the respondent court with jurisdiction over public officers and employees, including those in GOOCs. There are exceptions, however, like the constitutional officers, particularly those declared to be removable by impeachment. In their case, the Constitution proscribes removal from office by any other method; otherwise, to allow a public officer who may be removed solely by impeachment to be charged criminally while holding his office with an offense that carries the penalty of removal from office, would be violative of the clear mandate of the fundamental law. Judgment in cases of impeachment shall be limited to removal from office and disqualification to hold any office of honor, trust or profit under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution trial, and punishment, in accordance with law. The effect of impeachment is limited to the loss of position and disqualification to hold any office of honor, trust or profit under the Republic of the Philippines. The party thus convicted may be proceeded against, tried and thereafter punished in accordance with law. The clear implication is, the party convicted in the impeachment proceeding shall nevertheless be liable and subject to prosecution, trial and punishment according to law; and that if the same does not result in conviction and the official is not thereby removed, the filing of a criminal action in accordance with law may not prosper. Constitutional officers are not entitled to immunity from liability for possible criminal acts. But there is a fundamental procedural requirement that must be observed before such liability may be determined and enforced. They must first be removed from office via the constitutional route of impeachment (Art. XI, Secs. 2 and 3). Should they be impeached, they may then be held to answer either criminally or administratively for any wrong or misbehavior that may be proven against them in appropriate proceedings. Therefore a fiscal or prosecuting officer should forthwith and motu proprio dismiss any charges brought against constitutional officers. The remedy of a person with a legitimate grievance is to file impeachment proceedings.

n. Power with regard to the utilization of natural resources Art. XII, Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of PAGE 188


agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreement may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law... The President shall notify the Congress of every contract entered into in accordance with this provision, within 30 days from its execution. (Art. XII, Sec. 2, pars. 4 & 5). o. Amendment of the Constitution Art. XVII, Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention. Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters of which every legislative district must be represented by at least three per centum of the registered votes therein. No amendment under this section shall be authorised within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. PAGE 189


Sec. 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convetion, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention. Sec. 4. Any amendment to, or revision of this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision. Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition. Constituent Power (Art. XVII, Secs. 1 and 2) The constituent power, or the power to amend or revise the Constitution, is different from the law-making power of Congress, said the SC in Gonzales v Comelec, infra. Amendment or revision of the Constitution may be proposed in 3 ways: 1. By Congress acting as a constituent body (XVII, 1) A vote of 3/4 of all its members is required. 2. By a constitutional convention (XVII, 1) a) Congress calls a Con Con by a vote of 2/3 of all its members, or b) Congress submits to the electorate the question of calling such convention, by an absolute majority vote. 3. By the people (Art. XVII, Sec. 2) Through initiative upon petition by 12% of all registered voters, of whichever legislative district is represented by at least 3% of its registered voters. But this cannot be resorted to (i) within 5 years from February 2, 1987, nor (ii) more often than once every five years. Any amendment or revision shall be valid when ratified by a majority of the votes cast in a plebiscite to be held between 6o to 90 days from, the approval of the amendment or revision in the case of Congress or the Con Con, or the certification by COMELEC of the sufficiency of the petition in the case of the people. Compared with the 1935 Constitution : 1935 Constitution, Art. XV

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Art. XV, Sec. 1. The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for the purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification. 8. Legislative Process a. Requirements as to bills (1) As to titles of bills Art. VI, Sec. 26. (1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. Title of bills The purpose is to prevent "log-rolling" or the smuggling in of "riders", that is, items that are unrelated to the bill itself and would not have been passed had they not been sneaked into the bill. Cruz:

The purposes of this rule are: (1) To prevent hodgepodge or log-rolling legislation. This is defined as "any act containing several subjects dealing with unrelated matters representing diverse interests, the main object of such combination being to unite the members of the legislature who favor any one of the subjects in support of the whole act." (2) To prevent surprise or fraud upon the legislature. (3) To fairly apprise the people, through such publications of its proceedings as are usually made, of the subjects of legislation that are being considered in order that they may have opportunity of being heard thereon, by petition or otherwise, if they should so desire. xxx But the title need not be a complete catalogue of a bill. xxx In any case, a title must not be "so uncertain that the average person reading it would not be informed of the purpose of the enactment or put on inquiry as to its contents, or w/c is misleading, either in referring to or indicating one subject where another or different one is really embraced in the act, or in omitting any expression or indication of the real subject or scope of the act." The title could be specific ( A bill to create the municipality of Bagoda) or as broad (Civil Code). Which should control, the title or the text of the statute? In Cruz v Paras, infra. the SC referred to the title of the bill to fix the meaning of the text or the substantive portion of the bill. The title provided for the "regulation" of nightclubs and PAGE 191


other places for entertainment, while the text, as amended, gave local governments the authority to "prohibit" these places altogether. The Court ruled that Bocaue, could not, under this law, prohibit these places but only regulate them, first because the title was controlling over the text (VV: the Court stood the principle on its head), and second, because the nightclubs were not nuisances per se that could be summarily evicted. To construe the amendatory act as granting municipal corporations the power to prohibit the operation of nightclubs would be to construe it in a way that it violates the constitutional provision that "every bill shall embrace only one subject which shall be expressed in the title thereof." Cruz v. Paras, 123 SCRA 569 (1983) F:

The petitioners are operators or nightclubs in Bocaue, Bulacan. they filed prohibition suits to stop the Mun. of Bocaue from enforcing an ordinance prohibiting the operation of nightclubs, cabarets, and dance halls in that mun. or the renewal of licenses to operate them. The CFI upheld the validity of the ordinance and dismissed the petition. Hence, this petition for certiorari.

HELD: A mun. corp. cannot prohibit the operation of nightclubs. Nightclubs may be regulated but not prevented from carrying on their business. RA 938, as orginally enacted, granted municipalities the power to regulate the establishment, maintenance and operation of nightclubs and the like. While it is true that On 5/21/54, the law was ameded by RA 979 w/c purported to give municipalities the power not only to regulate but likewise to prohibit the operation of nightclubs, the fact is that the title of the law remained the same so that the power granted to municipalities remains that of regulation, not prohibition. To construe the amendatory act as granting mun. corporations the power to prohibit the operation of nightclubs would be to construe it in a way that it violates the constitutional provision that "every bill shall embrace only one subject which shall be expressed in the title thereof." Moreover, the recentyly-enacted LGC (BP 337) speaks simply of the power to regulate the establishment, and operation of billiard pools, theatrical performances, circuses and other forms of entertainment. Certiorari granted. VV.

(2) Requirements as to certain laws (a) Appropriation laws Art. VII, Sec. 22. The President shall submit to the Congress within thirty days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. Art. VI, Secs. 24-25 Art. VI, Sec. 24. All appropriations, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate

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exclusively in the House of Representatives, but the Senate may propose or concur with amendments. Cruz: The above-mentioned bills are supposed to be initiated by the House or Representatives bec. it is more numerous in membership and therefore also more representative of the people. Moreover, its members are presumed to be more familiar w/ the needs of the country in regard to the enactment of the legislation involved. xxx An appropriation bill is one the primary and specific purpose of w/c is to authorize the release of funds from the public treasury. A revenue bill is one that levies taxes and raises funds for the govt, while a tariff bill specifies the rates or duties to be imposed on imported articles. A bill increasing the public debt is illustrated by one floating bonds for public subscription redeemable after a certain period. A bill of local application is one involving purely local or municipal matters, like a charter of a city. Private bills are illustrated by a bill granting honorary citizenship to a distinguished foreigner. Art. VI, Sec. 25. (1) The Congress may not increase the appropriation recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law. (2) No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriations therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates. (3) The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. (4) A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein. (5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions 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. (6) Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law. (7) If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress. Demetria v. Alba, 148 SCRA 208 (1987)

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Budget Law, Authorizing the Transfer of Items Appropriated for One Government Office to Another is Unconstitutional. F: Petitioners, as concerned citizens, and members of the BP, filed a petition for prohibition, contesting the validity of PD 1177, Sec. 44, authorizing the President of the Phils. "to transfer any fund, appropriated for the different departments, bureaus, offices and agencies of the Executive Department... to any program, project or activity of any department, bureau or office...."

HELD: Par. 1 of Sec. 44 of PD 1177 unduly extends the privilege granted under Art. VIII, Sec. 16 (5) of the 1973 Constitution. It empowers the Pres. to indiscriminately transfer funds from one dept. bureau, office or agency of the Executive Dept. to any program, project or activity of any dept. bureau or office included in the General Appropriations Act or approved after its enactment, w/o regard as to w/n the funds to be transferred are actually savings in the item from w/c the same are to be taken, or w/n the transfer is for the purpose of augmenting the item to w/c said transfer is to be made. It does not completely disregard the standards set in the fundamental law, thereby amounting to an undue delegation of legislative powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional infirmities render the provision in question null and void. VV. Art. VI, Sec. 29. (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. (2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. (3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government. Guingona v. Garague, 196 SCRA 221 (1991) F: Petitioners question the constitutionality of the automatic appropriation for debt service in the 1990 budget. HELD: While it is true that under Sec. 5(5), Article XIV of the Constitution, Congress is mandated to assign the highest budgetary priority to education, it does not thereby follow that the hands of Congress are so hamstrung as to deprive it the power to respond to the imperatives of the national interest and for the attainment of other state policies or objectives. In this case, the budget for education has tripled and the compensation for teachers has doubled. This is a clear compliance with the constitutional mandate giving highest priority to education. Having faithfully complied therewith, Congress is certainly not without any power, guided only by its good judgment, to provide an appropriation, that can reasonably service our

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enormous debt. It is not only a matter of honor and to protect the credit standing of our country. More especially, the very survival of our economy is at stake. If in the process Congress appropriated an amount for debt service bigger than the share allocated to education, the SC finds that such appropriation is constitutional. It was also argued that the Presidential Decrees authorizing automatic appropriation is violative of Sec. 29(1) : No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. They assert that there must be definiteness, certainty, and exactness in an appropriation, otherwise it is an undue delegation of legislative power to the President who determines in advance the amount appropriated for the debt service. The SC was not persuaded by such arguments. The transitory provisions provide that all existing laws not inconsistent with the Constitution shall remain operative until amended, repealed or revoked. In this case, the automatic appropriation provides the flexibility for the effective execution of debt management policies. It was argued that the PDs did not meet the requirement that all appropriations authorizing increase of debt must be passed by Congress and approved by the President (VI, 24 and 27). This refers only to appropriation measures still to be passed by Congress. In this case, the PDs have been considered as passed. As to whether there was undue delegation of legislative power, the Court finds that in this case, the questioned laws are complete in all their essential terms and conditions and sufficient standards are indicated therein. In this case, the legislative intention is clear and that is the amount needed should be automatically set aside in order to enable the country to pay the principal, interest, taxes and other charges when they shall become due without the need to enact a separate law appropriating funds therefor as the need arises. Although the amounts are not stated specifically, such amounts are limited to the principal, interest, taxes and other charges. (b) Tax laws Art. VI, Sec. 28. (1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. (2) The Congress may, by law, authorize the President to fix, within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (3) Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. (4) No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress. Art. XIV, Sec. 4 (3) All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law. PAGE 195


Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions subject to the limitations provided by law including restrictions on dividends and provisions for reinvestment. (4) Subject to conditions prescribed by law, all grants, endowments, donations, or contributions used actually, directly, and exclusively for educational purposes shall be exempt from tax. Norms of Taxation The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. [Art. VI. Sec. 28(1)] Delegation of Tax Powers As a general rule, the power to tax, being an essential aspect of sovereignty, is inherently legislative and therefore is non-delegable, unless the Constitution itself allows the delegation. There are 2 sets of specific exceptions: 1. The Congress, may, by law, authorize the President to fix, within specified limits, and subject to such limitations and restrictions as it may impose, (i) tariff rates, (ii) import and export quotas, (iii) tonnage and wharfage dues, and (iv) other duties and imposts, within the framework of the national development program of the Government. [id., Sec. 28(2)] 2. Each local government unit shall have the power to create its own sources of revenues, and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. (Art. X, Sec. 5) The taxing power may also be exercised by the President as an incident of the emergency powers that Congress may grant to him, under Art. VI, Sec. 23(2). Burden of Taxation Taxation being the source of revenue of government and its very lifeblood, "no law granting any tax exemption shall be passed without the concurrence of a majority of all the members of Congress." [id., Sec. 28(4)] According to jurisprudence, any question regarding the constitutionality of a tax measure must be resolved in favor of its validity. But any doubt regarding the taxability of any person under a valid tax law must be resolved in favor of that person and against the taxing power. However, any doubt as to the applicability of a tax exemption granted to a person must be resolved against the exemption. Proceeds of taxes All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has PAGE 196


been fulfilled or abandoned, the balance if any, shall be transferred to the general funds of the Government. [id., Sec. 29(3)) Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. (Art. X, Sec. 6). Taxation of religious and charitable institutions Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and "all lands, buildings and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes, shall be exempt from taxation." (Art. VI, Sec. 28(3)] In Abra vs Hernando, 107 SCRA 104 (1981), the SC held that one who claims exemption from taxes on the ground that the property sought to be taxed by the government is "actually, directly, and exclusively used for religious purposes" (must prove it.) This cannot simply be presumed on the basis of a declaration to that effect. In YMCA v Collector, 33 Phil 217 (1916), the buildings and grounds of the YMCA devoted to religious, charitable and educational ends, and not founded and conducted for profit, were held to be tax-exempt. (As now, the exemption is not limited to religious institutions.) In Bishop of Nueva Segovia v Provincial Board, 67 Phil 352 (1927), the SC exempted from taxation (1) a piece of land that used to be a cemetery but was no longer used for burial where the faithful would congregate before and after mass, and (2) a tract garden near the convent where vegetables were planted for the use of the priest. It is submitted that under the 1973 and 1987 Constitutions, this case would be overruled, and the dissenting opinion of Justice Malcolm followed. For the former cemetery and the vegetable tract are not "actually and directly" used for religious purposes. Under the 1935 Constitution, the provision read "exclusively for religious, charitable or educational purposes"; in 1973 actually, directly, and exclusively for religious or charitable purposes"; and, in 1987, "actually, directly, and exclusively used for religious, charitable or educational purposes." At any rate, the exemption applies only to taxes. Thus, a "special assessment" (the amount assessed resulting from the appreciation of value of realty due to public works constructed nearby) under the Real Property Tax Code (or the recently enacted Local Government Code), not being a tax, does not fall under the exemption. As in Apostolic Prefect v City Treasurer, 71 Phil 347 (1941), property owned by a religious institution and used for religious and educational purposes is liable for special assessments. Taxation of Educational Institutions All lands, buildings, and improvements, actually, directly, and exclusively used for ... educational purposes shall be exempt from taxation. [Art. VI, Sec. 28(3)] PAGE 197


All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties... Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions, subject to the limitations provided by law, including restrictions on dividends and provisions for reinvestment. [Art. XIV, Sec. 4(3)]. Subject to the conditions prescribed by law, all grants, endowments, donations or contributions actually, directly, and exclusively for educational purposes shall be exempt from tax. [Art. XIV, Sec. 4(4)]. Under these provisions, it is clear that (1) sectarian schools [Art. VI, Sec. 28(3) and Art. XIV, Sec. 4(3)] construed together as well as (2) non-stock, non-profit secular schools [Art. XIV, Sec. 4(3)] are exempt from the following taxes : a} all real property tax ("assets" and Hodges v Municipal Board of Iloilo City, 19 SCRA 28 (1967), b} income tax [Art. XIV, Sec. 4(3)] for #2 and a fortiori for #1 for income actually, directly, and exclusively used for educational purposes and even c} estate and gift tax [Art. XIV, Sec. 4(4)]. Proprietary schools on the other hand, are granted only limited exemption. b. Procedure for the passage of bills Art. VI, Sec. 26. (2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal. Three Readings: No bill passed by either House shall become a law unless it has passed three readings... [Art. VI, Sec. 26(2).] On "first reading," the title of the bill, without the provisions, is read before the body. The presiding officer then refers the bill to the proper committee e.g., "To the Committee on Local Governments". (Congress generally works through its committees, not as one body.) After consideration of the bill or resolution, the Committee returns the same to the body together with its amendments, objections or recommendations. Where the report is favorable, the bill is placed on the proper calendar. If the report is unfavorable, the matter shall be laid on the table, unless the body on the whole decides otherwise. On "second reading", the bill or resolution is read in full before the floor, with such amendments as the committee may have proposed. Then, it is subjected to debate, discussion and amendments. When this is through, a motion to close the general debate is made, then a vote PAGE 198


is taken by the membership on whether to pass the bill or not on the basis of the amendments or discussions. The bill as amended and approved is the "printed in final form" and its copies are, as a general rule, distributed to the members at least 3 days before its passage. [Sec. 26(2)] [The purpose of the 3-day requirement is to enable the members to check if the bill reflects the text and amendments approved on second reading, and to see if riders have been introduced.] As an exception, however, the Constitution allows the 3-day and printed copy requirement to be dispensed with when the President certifies to the necessity of the immediate enactment of the bill to meet a public calamity or emergency. [Sec. 26(2).] In this case, therefore, the three readings may be made in less than 3 days without the bill being printed. On the "third and final reading", the bill is called by its name or title, then a vote is taken right away, with the "yeas" and "nays" entered in the Journal. No more amendment is allowed. [Sec. 26(2).] As a general rule, the three readings must be conducted on separate days, [Sec. 26(2).] The exception is found in Art. VII, Sec. 10: When Congress convenes to call a special election to elect the President and Vice-President, "the bill calling such special election shall be deemed certified under par. 2, Sec. 26, Art. VI", meaning, the three readings can be done on the same day. Conference Committee A bill can be passed jointly (when it is a joint session, supra), or separately. In the latter case, it can be passed simultaneously (when a bill is taken up by both houses separately but at the same time, or sequentially (when a bill originates form one house and goes to the other house). There is no problem if the bill is passed jointly. But if it is passed separately, the bill approved by one house goes to the other house, which can amend such bill. Once the other house approves the bill, this is called the other house's version of the bill. A Conference Committee is then organized, composed of equal number of members from the Senate and the House, to make recommendations to the respective chambers on how to reconcile the two versions of the bill. The respective members are usually granted blanket authority to negotiate and reconcile the bills. At the end of the process, the committee comes up with a "Conference Committee Report", which is then submitted to the respective chambers for approval. Engrossment or Enrollment of the Bill Once the bill is approved by both houses, the bill is engrossed or enrolled (see supra). The Enrolled copy of the Bill bears the certification by the presiding officers (Senate President and Speaker of the House) that this enrolled copy is the version passed by each house. (The effects of this enrolled bill are discussed above.)

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Approval by the President Art. VI, Sec. 27 (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objection to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law as if he had signed it. (2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object. The bill as approved by Congress and certified by its presiding officers is then presented to the President. Generally, there are 3 ways for the bill to become a law: 1) When it is approved by the President; houses;

2) When the vote of the President is overridden by 2/3 vote of all the members of both

3) Upon failure of the President to veto the bill and to return it with his objections, to the House where it originated, within 30 days after the date of receipt. [Sec. 27(1).] But there are 2 cases when a bill becomes a law without the signature of the President: 1) When the veto of the President is overridden by 2/3 vote of all the members of both houses; and 2) When the bill is one calling a special election for President and Vice-President under Art. VII, Sec. 10. Here the bill becomes law upon 3rd and final reading. The Acting President is not required to sign, for he may have an interest in the question. c. The President's veto power Qualified versus Absolute Veto Veto Power of the President

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Message Veto versus Pocket Veto.-- There is only one way for the President to veto a bill: By disapproving it, and returning it to the house where the bill originated, together with his "veto message" (explaining his objections to the bill, which message shall be entered in the Journal within 30 days after receipt [Sec. 27(1)] No "pocket veto" in the Philippines.-- In this regard, there is no "pocket veto" in the Philippines. What is a pocket veto? Compare with Art. I, Sec. 7 of US Constitution: Art. I, Sec. 7. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return in which case it shall not be a law. (The United States Constitution.) A pocket veto, as in the US requires two concurring elements, (1) failure to act on the bill and (2) the reason he does not return the bill to Congress is that Congress is not in session. Thus, if the US Congress is in session, failure by the President to act will not result in the veto of the bill. In the Philippines, there is no such provision. Inaction by the President for 30 days never produced a veto. If Congress is not in session, the President must still act in order to veto the bill. Only he needs to communicate the veto to Congress without need of returning the vetoed bill with his veto message. Art. VI, Sec. 27 (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objection to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law as if he had signed it. (2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object. Compare with 1935 Constitution, Art. VI, Sec. 20

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Sec. 20 (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; but if not, he shall return it with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be considered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. If any bill shall not be returned by the President as herein provided within twenty days(Sunday excepted), after it shall have been presented to him, the same shall become a law in like manner as if he had signed it, unless the Congress by adjournment prevents its return, in which case it shall become a law unless vetoed by the President within thirty days after adjournment. (2) The President shall have the power to veto any particular item or items of any appropriation bill, but the veto shall not affect the item or items to which he does not object. When a provision of an appropriation bill affects one or more items of the same, the President cannot veto the provision without at the same time vetoing the particular item or items to which it relates. The item or items objected to shall not take effect except in the manner heretofore provided as to bills returned to the Congress without the approval of the President. If the veto refers to a bill or any item of an appropriation bill which appropriates a sum in excess of ten per centum of the total amount voted in the appropriation bill for the general expenses of the Govt. for the preceding year, or if it should refer to a bill authorizing an increase of the public debt, the same shall not become a law unless approved by three-fourths of all the Members of each House. (The 1935 Constitution.) Veto Message : When the President vetoes a measure, he should return the measure to the House of origin, indicating his objections thereto in what is commonly known as a "veto message" so that the same can be studied by the members for possible overriding of his veto. Is partial veto allowed under the Constitution? The general rule is that the President must approve entirely or disapprove in toto. The exception applies to appropriation, revenue and tariff bills, any particular item or items of which may be disapproved without affecting the item or items to which he does not object. Cruz: In Bolinao Electronics Corp. v Valencia, 11 SCRA 486, a public works bill contained an item appropriating a certain sum for assistance to television stations, subject to the condition that the amount would not be available in placees where there were commercial television stations in operation. Pres. Macapagal approved the appropriation but vetoed the condition. When his act was subsequently challenged in the SC, it was held that the veto was ineffectual and that the approval of the item carried w/ it the approval of the condition attached to it. xxx In this case, the SC further held that the veto power is "destructive" in nature, not creative, and so the President is limited to approving or disapproving the bill, in toto. He cannot choose only the parts that he likes and vetoes the rest. Thus, in this case, the President was prohibited from vetoing only the part prohibiting the Philippine Broadcasting System from PAGE 202


operating outside a certain radius, while approving the rest of the appropriation for this government radio station. Thus, when the President approves one part and vetoes another, the veto is ineffective: it is as though there is no veto. But in the case of appropriations, revenue or tariff bills, the President shall have the power to veto any particular item or items, without vetoing the other item or items to which he does not object. The reason is, these items are really independent of each other, and so every item is deemed a bill in itself. But as to each item, he cannot approve part and disapprove the other part. In Gonzales vs Macaraig, 191 SCRA 452, the President of the Philippines vetoed a provision in the 1989 General Appropriations Bill and later a similar provision in the 1990 General Appropriations Bill [providing for a prohibition against the restoration or increase of recommended appropriations disapproved and/or reduced by Congress]. In her veto message, Pres. Aquino said that such provision violates Art. VI Sec. 25(5) and that it nullifies her power and that of the Senate President, Speaker, Chief Justice and Heads of Constitutional Commissions, to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations, even in cases of calamity or in the event of urgent need to accelerate the implementation of essential public services. In rejecting the challenge to the veto, the SC declared that the restrictive interpretation urged by the petitioners that the President may not veto a provision without vetoing the entire bill not only disregards the basic principle that a distinct and severable part of a bill may be subject of a separate veto but also overlooks the Constitutional mandate that any provision in the general appropriations bill shall relate specifically to some particular appropriation therein and that any such provision shall be limited in its operate to the appropriation to which it relates [Art. VI, Sec. 25(5).] In other words, a provision in an appropriation bill is limited in its operation to some particular appropriation to which it relates, and does not relate to the entire bill. In this case, the challenged provisions do not relate to any particular or distinctive appropriation. They apply generally to all items disapproved or reduced by Congress in the Appropriations Bill. Also, such provisions are more of an expression of Congressional policy rather than a budgetary appropriation. They should be treated as items for the purpose of the President's veto power. Bengzon vs Drilon 208 SCRA 133 (1992) F:

The issue here is the constitutionality of the veto by the President of certain provisions in the 1992 General Appropriations Act relating to the payment of adjusted pensions to retired justices of the SC and the CA. According to Pres. Aquino, the payment of such adjusted pensions (adjusted with respect to the peso purchasing power) would erode the govt's collective effort to enforce the policy of standardization of compensation and that govt. should not grant distinct privileges to select groups of officials over those of the vast majority of civil service servants. The retired justices asserted that such subject veto is not an item veto.

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HELD: The veto power of the President is not absolute. The Executive must veto a bill in its entirety or not at all. However when it comes to appropriation, revenue or tariff bills, the Administration needs the money to run the machinery of govt. and it can not veto the entire bill even if it may contain objectionable features. This is the reason for the item veto power. The Constitution provides that only a particular item or items may be vetoed. The power to disapprove any item or items in an appropriate bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item. The terms "item" and "provision" are different. An item refers to the particulars, the details, the distinct and severable parts of the bill. It is an indivisible sum of money dedicated to a stated purpose. An item obviously means an item which in itself is a specific appropriation of money, and not some general provision of law. In this case, the President did not veto an item. She vetoed the methods or systems placed by Congress to insure that permanent and continuing obligations to certain officials will be paid when they fall due. In this case, the vetoed portions are not items but are provisions. The augmentation of specific appropriations found inadequate to pay retirement payments, by transferring savings from other items of appropriations is a provision and not an item. It gives the SC Chief Justice the power to transfer funds from one item to another. There is no specific appropriation of money involved. Neither may the veto power be exercised as a means of repealing existing laws. This is arrogating unto the Presidency legislative powers which are beyond its authority. Adapted. Overriding the Veto Upon consideration of the objections raised by the President in his veto message, the House from which the bill originated shall reconsider the bill. If after such reconsideration, 2/3 of all the members of such house shall agree to pass the bill, it shall be sent together with the objections of the President, to the other house by which it shall likewise be reconsidered. If approved by 2/3 of all the members of that house, it shall become a law. In all such cases, the votes of each house shall be determined by "yeas" or "nays", and the names of the members voting for or against shall be entered in the Journal. [VI, 27(1)] d. Legislative vetoes The Congress cannot deem a draft submitted by an executive agency passed as law by it mere inaction within a certain period. It must go through the 3 readings and the submission of the bill to the President, as required by the Constitution. In Miller v Mardo, 2 SCRA 298 (1961), the SC struck down as unconstitutional Sec. 6 of RA 997, which provided that the reorganization plan drafted by the Department of Labor and submitted to President for approval shall be deemed as approved by Congress after its adjournment, unless in the meantime, Congress by resolution disapproved the plan. It struck down as well the Reorganization Plan drafted pursuant to this law. PAGE 204


In so holding, the Court ruled that the approval of a bill cannot be made by Congress by mere silence, adjournment or concurrent resolution. The Constitution requires the two houses to hold separate session for deliberation, and to submit the determination of one to the separate determination of the other, unless a joint session is provided for. This method of passing a law amounts to an abdication by Congress of its legislative prerogatives to the Executive. e. Effectivity of Laws Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. The Code shall take effect one year after such publication. When a bill becomes a law through any of the 3 means mentioned above, the law does not become effective at once. According to the ruling upon reconsideration in Tanada v Tuvera, 136 SCRA 27 (1985), in addition to the date fixed either by the effectivity clause of the statute, or, in its absence, by Art. 2 of the Civil (15 days after its publication), there must first be a publication of the law either in the Official Gazette or in a newspaper of general circulation [EO 200]. Otherwise, there is a violation of due process. This requirement for publication applies to any kind of law, even laws which are not of general application, private laws (e.g. law granting citizenship to X), laws of local application, and rules and regulations of substantive character. In People v Que Po Lay, 94 Phil 640 (1956), a CB circular governing the remittance of dollars with corresponding forfeiture in case of violation, was held to require publication, since it had the nature of a penal rule. Tanada v. Tuvera, 136 S 27 (1985) F: Invoking the people's right to be informed on matters of public concern, a right recognized in the Constitution, as well as the principle that laws to be valid and enforceable must be published in the OG or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the OG of various PDs, LOIs, general orders, proclamations, EOs, letters of implementation and administrative orders. Respondents contend, among others that publication in the OG is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the OG is indispensable for their effectivity. The point stressed is anchored on Art. 2 of NCC. HELD: The interpretation given by respondent is in accord w/ this Court's construction of said article. In a long line of decisions, this Court has ruled that publication in the OG is necessary in those cases where the legislation itself does not provide for its effectivity date-- for then the date of publication is material for determining its date of effectivity, w/c is the 15th day following its publication-- but not when the law itself provides for the date when it goes into effect.

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Respondent's argument, however, is logically correct only insofar as it equates the effectivity of laws w/ the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Art. 2 does not preclude the requirement of publication in the OG, even if the law itself provides for the date of its effectivity. xxx The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. The clear object of the law is to give the general public adequate notice of the various laws w/c are to regulate their actions and conduct as citizens. W/o such notice and publication, there would be no basis for the application of the maxim ignorantia legis non excusat. It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of w/c he had no notice whatsoever, not even a constructive one. It is needless to say that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. RAM. Tanada v. Tuvera, 146 S 446 (1986). Motion for reconsideration. xxx [T]he clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself, w/c cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, w/o its previous publication. Publication is indispensable in every case, but the legislature may in its discretion provide that the usual 15-day period shall be shortened or extended. It is not correct to say that under the disputed clause publication may be dispensed w/ altogether. The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. Conclusive presumption of knowledge of the law.-- The conclusive presumption that every person knows the law presupposes that the law has been published if the presumption is to have any legal justification at all. The term laws should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. RULE: All statutes, including those of local application and private laws, shall be published as a condition for their effectivity, w/c shall begin 15 days after publication unless a different effectivity date is fixed by the legislature. Coverage.-- Covered by this rule are PDs and EOs promulgated by the Pres. in the exercise of legislative powers. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. Interpretative regulations and those merely internal in nature, i.e., regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. Publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. The mere mention of the number of the PD, the title of such decree, its whereabouts, the supposed date of effectivity, and in a mere supplement of the OG cannot satisfy the publication requirement. This is not even substantial compliance. RAM.

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Executive Order No. 200, June 18, 1987 Art. 2. Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. (as amended by EO 200.)

9. Initiative and Referendum, Initiative is the power of the people to propose bills and laws, and to enact or reject them at the polls, independent of the legislative assembly. It is the right of a group of citizens to introduce a matter for legislation either to the legislature or directly to the voters. Referendum is the right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body and which in most cases would without action on the part of the electors become a law. It is a method of submitting an impt. legislative measure to a direct vote of the whole people, the submission of a law passed by the legislature for their approval or rejection.

Rep. Act No. 6735, Aug. 4, 1989

UPDATED 1/22/96 /RAM

B. Executive Department 1. The President a. Qualifications, election, term and oath

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Art. VII, Secs. 2, 4 and 5 Art. VII, Sec. 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election. Qualifications of President 1) Natural-born citizen of the Philippines 2) Registered voter 3) Able to read and write 4) 40 years of age on the day of election 5) Resident of the Philippines for at least 10 years immediately preceding the election Art. VII, Sec. 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date six years thereafter. The President shall not be eligible for any reelection. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time. No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected. Unless otherwise provided by law, the regular election for President and VicePresident shall be held on the second Monday of May. The returns of every election for President and Vice- President, duly certified by the board of canvassers of each provinces or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of election (w/c is the 2nd Tuesday of June), open all the certificates in the presence of the Senate and House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass (i.e., tally the certificates of canvass) the votes. The persons having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes (tie), one of them shall forth with be chosen by the vote of a majority of all the members of Congress, voting separately. The Congress shall promulgate its rules for the canvassing of the certificates. The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President, or Vice-President, and may promulgate its rules for the purpose. Election and Term of President Regular Election and Term

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The President and Vice-President (who shall be elected with and in the same manner as the President) shall be elected by direct vote of the people for a term of 6 years, which shall begin on the noon of June 30 next following the day of election. The regular election for President and Vice-President shall be held on the 2nd Monday of May. (Art. VII, Sec. 4 pars. 1 & 3). The six year term for the incumbent President and Vice- President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. The first regular elections for the President and Vice-President under this Constitution shall be held on the 2nd Monday of May, 1992. (Art. XVIII, Sec. 5.) In In re Saturnino Bermudez, 145 SCRA 160, the SC held that the "incumbent President and Vice-President" referred to above are Pres. Corazon Aquino and Vice-President Salvador Laurel (even if they were not the ones declared by the Batasang Pambansa as the winners of the February 7, 1986 Snap Election). Special Election and Term If a vacancy occurs in the offices of President and Vice- President more than 18 months before the date of the next regular presidential election, a special election to elect the President and Vice-President shall be called by Congress, pursuant to VII, 10. (See discussion under Other Powers of Congress, supra and Succession, infra.) A conditional resignation by the incumbent President is not a real resignation that creates a vacancy for the purpose of calling a special election. But in the Philippine Bar Association, Inc. v COMELEC, 140 SCRA 455, the failure of the SC to issue an injunction on time is already a decision in itself in favor of the validity of the law calling for Snap Elections despite the absence of vacancy; only, it is a decision that is not supported by a ratio decidendi. Indeed, a midterm election in a presidential system of government in response to popular clamor for it, is a legal anomaly. PBA V. COMELEC, 140 SCRA 455 (1985).-- Validity of "Snap" Election for President and Vice-President. Suits questioning the validity of BP 883, calling a special election for Pres. and VicePres. on Feb. 7, 1986. The law was enacted following the letter of Pres. Marcos to the BP that he was "irrevocably vacating the position of Pres. effective only when the election is held and after the winner is proclaimed and qualified as Pres. by taking his oath of office ten days after his proclamation." The principal ground for the challenge to the validity of the statute was that the conditional resignation of the Pres. did not create a vacancy required by Art. VII, Sec. 9 (now Art. VII, Sec. 8) w/c authorized the calling of a special election. After deliberating, 7 Justices voted to DISMISS. On the other hand, 5 Justices voted to DECLARE the statute unconstitutional. In accordance w/ Javellana v. Executive Sec., 50 SCRA 141 (1973), J. Teehankee was of the view that as there were less than ten votes for declaring BP 883 unconstitutional, the petitions should be dismissed. No opinion was delivered. VV.

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The Constitution is silent as to whether the persons elected in the special election shall serve only for the unexpired portion of the term, and whether the new President can run for reelection if he has not served more than 4 years, which depends on the construction of the phrase "has succeeded as the President," discussed in the next section. VV: Only unexpired portion. Re-election The President shall not be eligible for any re-election. Furthermore, no person who has "succeeded" as President and has served as such for more than 4 years, shall be qualified for any election to the same office (the Presidency) at any time. (Art. VII, Sec. 4, par. 1) The person who succeeds as President and not just in an acting capacity, could either be (i) the Vice-President, or (ii) one who was elected President in a special election. In both cases, if he has served for more than 4 years, he is ineligible for re-election as President. If he served for 4 years or less, he can run for re- election, it is submitted, since (a) the term "succeeded" encompasses election and (b) the general rule prohibiting the President to run for re-election refers to the President elected during the regular election. Furthermore, it is submitted that this person may resign on the 4th year so as to be qualified to run for President, since there is nothing in the Constitution that prohibits this. In view of the wording of Art. XVII, Sec. 5, however, President Aquino can run for the 1992 election as President without violating the rule against re-election since the February 7, 1987 election was not conducted under the present Constitution, the 1992 Presidential election being the "first regular elections" to be held under this Constitution. Furthermore, although she may have served for more than 4 years as President by then, she will have done so not as successor to the Presidency. If Vice-President Laurel is the one who serves as President for more than 4 years, then he cannot run for the Presidency in 1992. The Vice-President on the other hand, shall not serve for more than 2 successive terms. And for this purpose, a voluntary (but not involuntary) renunciation of office for any length of time, shall not be considered an interruption in the continuity of the service for the full terms for which he was elected. (Art. VII, Sec. 4, par. 2). This is applicable, however, beginning 1992, because of the Transitory Provisions. (This prohibition is similar to that applicable to Senators.) Canvassing of Election Returns As already noted in the Other Powers of the Legislature, supra, it is the Congress that acts as Board of Canvassers of every election for President and Vice-President. The provision reads: "The returns of every election for President and Vice-President duly certified by the Board of Canvassers of each province or city, shall be submitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than 30 days after the date of the election, open all the certificates in the presence of the Senate and the House of Representatives in a joint public session, and the Congress, upon determination of the authenticity and due execution thereof, in the manner provided by law, canvass the votes.

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The person having the highest number of votes shall be proclaimed elected, but in case 2 or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the members of the Congress, voting separately. The Congress shall promulgate its rules for the canvassing of the certificates." (Art. VII, Sec. 4, pars. 4 - 6). Electoral Tribunal for the Election of the President and Vice- President The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for that purpose. (Art. VII, Sec. 4, par. 7.) Note that while election controversies in the Congress are under the exclusive jurisdiction of their respective Electoral Tribunals, those in the Executive are under the Supreme Court itself. Oath of Office Art. VII, Sec. 5. Before they enter on the execution of their office, the President, the Vice-President or the Acting President shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate to myself to the service of the Nation. So help me God." (In case of affirmation, last sentence will be omitted.)

b. Privilege and salary Art. VII, Sec. 6. The President shall have an official residence. The salaries of the President and Vice-President shall be determined by law and shall not be decreased during their tenure. No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which such increase was approved. They shall not received during their tenure any other emolument from the Government or any other source. The salaries of the President and Vice-President shall be determined by law. Unless the Congress provides otherwise, the President shall receive an annual salary of P 300,000 and the Vice-President, the salary of P 240,000.

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c. Prohibitions Art. VII, Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. Prohibition against the President, Vice-President, members of the Cabinet, and their deputies or assistants (a) They shall not hold any other office or employment during their tenure, unless otherwise provided by this Constitution In Civil Liberties Union vs Executive Secretary, 194 SCRA 317, the petitioner challenged Ex. Order No. 284 which in effect allowed Cabinet members, their undersecretaries and asst. secretaries and other appointive officials of the Executive Department to hold other positions in the govt., albeit, subject of the limitations imposed therein. The respondents, in refuting the petitioners' argument that the measure was violative of Art. VIII, Sec. 13, invoked Art. IX-B, Sec. 7, allowing the holding of multiple positions by the appointive official if allowed by law or by the pressing functions of his positions. In declaring the EO unconstitutional, the SC held that by ostensibly restricting the no. of positions that Cabinet members, undersecretaries or asst. secretaries may hold in addition to their primary position to not more than 2 positions in the govt. and GOOCs, EO 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Art. VIII, Sec. 13 prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. If maximum benefits are to be derived from a dept. head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other govt. offices or employment. Civil Liberties Union (CLU) v Executive Secretary, 194 SCRA 317 (1991) F:

the petitioner challenged Ex. Order No. 284 which in effect allowed Cabinet members, their undersecretaries and asst. secretaries and other appointive officials of the Executive Department to hold other positions in the govt., albeit, subject of the limitations imposed therein. The respondents, in refuting

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the petitioners' argument that the measure was violative of Art. VIII, Sec. 13, invoked Art. IX-B, Sec. 7, allowing the holding of multiple positions by the appointive official if allowed by law or by the pressing functions of his positions.

HELD: By ostensibly restricting the no. of positions that Cabinet members, undersecretaries or asst. secretaries may hold in addition to their primary position to not more than 2 positions in the govt. and GOOCs, EO 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Art. VIII, Sec. 13 prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. If maximum benefits are to be derived from a dept. head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other govt. offices or employment. xxx The stricter prohibition applied to the Pres. and his official family under Sec. 13, Art. VII as compared to the prohibition applicable to appointive officials in general under Art. IX, B, Sec. 7, par. 2 are proof of the intent of the 1987 Consti. to treat them as a class by itself and to impose upon said class stricter prohibions. Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the govt during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Consti. itself. xxx However, the prohibition against holding dual or multiple offices or employment under Art. VII, Sec. 13 must not be construed as applying to posts occupied by the Executive officials specified therein w/o addition compensation in an ex-officio capacity as provided by law and as required by the primary functions of said official's office. The reason is that these posts do not comprise "any other office" w/in the contemplation of the constitutional prohibition but are properly an imposition of additional duties and function on said officials. Adapted.

(b) They shall not practice any other profession. (c) They shall not participate in any business. (d) They shall not be financially interested in any contract with, or in any franchise or special privilege granted. Compare Prohibitions against other officials Art. VI, Sec. 13. No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.

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Art. IX, A, Sec. 2. No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including governmentowned or controlled corporations or their subsidiaries. Art. IX, B, Sec. 7. 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. Art. VIII, Sec. 12. The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. Exceptions to rule prohibiting executive officials from holding additional positions: a. President (1) The President can assume a Cabinet post, (because the departments are mere extensions of his personality, according to the Doctrine of Qualified Political Agency, so no objection can be validly raised based on Art. VII, Sec. 13.) (2) The President is the Chairman of NEDA. (Art. XII, Sec. 9) b. Vice-President Art. VII, Sec. 3. xxx The Vice-President may be appointed as member of the Cabinet. appointment requires no confirmation.

Such

c. Cabinet (1) The Secretary of Justice shall be an ex-officio member of the Judicial and Bar Council. (Art. VIII, Sec. 8[1]) 2) Unless otherwise allowed by law or by the primary functions of his position, appointive officials shall not 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. (Art. IX, B, 7, par. 2)

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Art. VII, Sec. 13 talks of "unless otherwise provided by the Constitution." In the case of Cabinet members, this refers to Art. IX, B, 7, par. 2. Thus, the Constitution allows a Cabinet member to hold another office provided either (1) such is necessitated by the primary functions of his position (e.g. Secretary of Trade and Industry as Chairman of NDC, Secretary of Agrarian Reform as Chairman of the Land Bank), or (ii) is allowed by law. The validity of EO 284 allowing members of the Cabinet and their Under-Secretaries to hold 2 additional offices was decided in the case of CLU vs Exec. Secretary. d. Succession (1) At the beginning of term Art. VII, Sec. 7. The President-elect and the Vice-President elect shall assume office at the beginning of their terms. xxx This provision refers to the President and Vice-President elected in the regular election, and so the term referred to begins on June 30 next following the election on the 2nd Monday of 1992, and every 6 years thereafter. Vacancy in the Presidency There are two sets of rules on succession, depending on whether the vacancy took place before the beginning of the term on June 30, or during the pendency of the terms that commences on June 30. (The cut-off point is unsettled. One view is that the cut-off is noon of June 30, as expressed in Art. VII, Sec. 4, par. 1. The other view is that the cut-off is midnight of June 29 when June 30 begins.) A. Temporary or permanent vacancy in the Presidency before the term 1. If the President-elect cannot assume his post at the beginning of his term because i) he has not qualified as yet ( e.g. he had an operation and so he could not take his oath of office on June 30), ii) or a President has not been "chosen" and qualified as yet (e.g. there is a tie and Congress has not yet broken the tie), then the Vice-President shall act as President until the President-elect shall have qualified, or shall have been "chosen: and qualified, as the case may be. (Art. VII, Sec. 7, pars. 2 & 3). Art. VII, Sec. 7. xxx If the President-elect fails to qualify, the Vice-President-elect shall act as President until a President shall have been chosen and qualified. If a President shall not have been chosen, the Vice-President-elect shall act as President until a President shall have been chosen and qualified. xxx PAGE 215


2. If the President-elect i) dies, or ii) becomes permanently disabled "at the beginning of the term of the President" (i.e., before the term), then the Vice-President elect shall become the President. (Id., par. 4) Art. VII, Sec. 7. xxx xxx xxx If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled, the Vice-President-elect shall become President. 3. If both President and Vice-President (i) have not been "chosen" or (ii) have not qualified, or (iii) die, or (iv) become permanently disabled, then the President of the Senate, or in case of his inability, the Speaker of the House, shall act as President until a President or a VicePresident shall have been "chosen" and qualified. (par. 5) Art. VII, Sec. 7. xxx Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives shall act as President until a President or a Vice-President shall have been chosen and qualified. (par. 5 thereof.) In case both the President of the Senate and the Speaker of the House are unable to act as President, then Congress shall by law, provide for the "manner of selecting" the one who will act as President until a President of Vice-President shall have (been either "chosen" or "elected" pursuant to the special election referred to in VII, 10, and qualified. Art. VII, Sec. 7. xxx The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph. (par. 6 thereof.) Art. VII, Sec. 10. The Congress shall, at ten o'clock in the morning of the third day after the vacancy in the offices of the President and Vice-President occurs, convene in accordance with its rules without need of a call and within seven days enact a law calling for a special election to elect a President and a Vice-President to be held not earlier than forty-five days nor later than sixty days from the time of such call. The bill calling such special election shall be deemed certified under paragraph 2, Section 26, Article VI of this Constitution and shall become law upon its approval on third reading by the Congress. Appropriations for the special election shall be charged against any current appropriations and shall be exempt from the requirements of paragraph 4, Section 25, Article VI of this Constitution. The convening of the Congress cannot be suspended nor the special election PAGE 216


postponed. No special election shall be called if the vacancy occurs within eighteen months before the date of the next presidential election. (2) During term Art. VII, Sec. 8. In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified. The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the Vice-President shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President.

B. Permanent Vacancy in the Presidency during the term 1. In case of the President's (i) death (ii) permanent disability, (iii) removal from office (the only way is by impeachment), or (iv) resignation, the Vice-President shall become President for the unexpired portion of the term. (par. 1) 2. In case of both the President's and Vice-President's death, permanent disability, removal from office (by impeachment), or resignation, then the Senate President or, in case of his inability, the Speaker of the House, shall act as President until the President or Vice-President shall have been "elected" (pursuant to the special election in Art. VII, Sec. 10) and qualified. (par. 1.) When the Acting President (i.e., the Senate President, or Speaker of the House) dies, becomes permanently disabled, or resigns (but is not removed, because there is no need to impeach him, his stay being temporary), then the Congress shall by law, provide "who" shall be Acting President until the President or Vice-President shall have been "elected" (pursuant to the special election in Art. VII, Sec. 10) and qualified. This Acting President shall be subject to the same restrictions of powers and disqualifications.(par. 2) Comparisons and distinctions between the two vacancies: a) The incumbent President never holds-over the Presidency in any case. b) The vacancy must occur in the offices of both the President and Vice-President in order for the Senate President, or the Speaker, or, in their inability, the one provided to succeed

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according to the Law of Succession passed by the Congress, to succeed as Acting President until the qualification of the President. c) The Law on Succession must be passed by the Congress in both cases in the event that the President, Vice-President, Senate President and the Speaker are all unable to act as President. But in the case of a vacancy occurring before the term, the law provides only for the "manner of selecting" the Acting President, while in the case of a vacancy occurring during the term, it provides for "the person" who shall act as President. In both cases, the stint of the Acting President is temporary. d) When the vacancy comes before the term, the Constitution talks of the successor acting as President until a President has been "chosen" and "qualified"; when it comes during, it talks of "elected" and qualified. The reason is that before the term, the vacancy in the Presidency need not be filled up by election, since it may be filled up by a vote of Congress in case of a tie (Art. VII, Sec. 4, par. 5); but during the term, the only way to fill up the vacancy is by special election. e) A special election in both cases is held, pursuant to Art. VII, Sec. 10, only when both offices of President and Vice-President are vacant. However, if the vacancy occurs before the term, the grounds are limited to 2 (death and permanent disability or both), while if the vacancy occurs during the term, the grounds are 4 (death, permanent disability, removal, and resignation). f) The vacancy that occurs before the term of office may be temporary or permanent; the vacancy that occurs during the term of office can only be a permanent one. Thus, a different set of rules applies, to be discussed next following, in case of the temporary inability of the President during the term of office. Art. VII, Sec. 10. The Congress shall, at ten o'clock in the morning of the third day after the vacancy in the offices of the President and Vice-President occurs, convene in accordance with its rules without need of a call and within seven days enact a law calling for a special election to elect a President and a Vice-President to be held not earlier than forty-five days nor later than sixty days from the time of such call. The bill calling such special election shall be deemed certified under paragraph 2, Section 26, Article VI of this Constitution and shall become law upon its approval on third reading by the Congress. Appropriations for the special election shall be charged against any current appropriations and shall be exempt from the requirements of paragraph 4, Section 25, Article VI of this Constitution. The convening of the Congress cannot be suspended nor the special election postponed. No special election shall be called if the vacancy occurs within eighteen months before the date of the next presidential election. (3) In case of temporary disability Art. VII, Secs. 11-12 Art. VII, Sec. 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to PAGE 218


discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the VicePresident as Acting President. Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the VicePresident shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call. If the Congress, within ten days after receipt of the last written declaration, or if not in session, within twelve days after it is required to assemble, determines by a twothirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office. C. Temporary Vacancy in the Presidency during the term (Art. VI, Sec. 11, supra) ways:

A vacancy in the Presidency arising from his disability can occur in any of the following 1. A written declaration by the President 2. Written declaration by the Cabinet 3. Finding by Congress by 2/3 vote that the President is disabled. In all these cases, the Vice-President temporarily acts as the President.

Voluntary declaration of inability by President a. When the President transmits to the Senate President and the Speaker his written declaration that he is unable to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice-President as Acting President. b. The Vice-President shall so act until the President transmits to the Senate President and the Speaker a written declaration that he is no longer unable to discharge his office. Contested inability of the President

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a. When majority of all the members of the Cabinet transmit to the Senate President and Speaker their written declaration that the President is unable to discharge his office, then the Vice-President shall immediately assume the Presidency in an acting capacity. b. The President can contest this by sending his own written declaration to the Senate President and Speaker, that no inability exists. Upon such transmittal, the President shall automatically assume his office. c. Should the majority of the Cabinet insist on their original stand by transmitting a second written declaration of the President's inability within 5 days from resumption of office of the President, then Congress shall step in. d. Upon receipt of this second declaration by the Cabinet, Congress shall convene, if it is not in session, within 48 hours, without need of call, in accordance with its rules. (If it is already in session, it must meet right away, as glimpsed from the fact that they only have 10 days to decide, whereas if it is not in session, it must convene in 2 days and decide before the 12th day.) e. Congress shall determine the President's inability within 10 days after receipt of the second written declaration by the Cabinet if it is in session, or within 12 days after it is required to assemble by its respective presiding officer if it is not in session. f. If the President, by a 2/3 vote of both houses voting separately, determined to be "unable" to discharge his office, then the Vice-President shall act as President. If less than 2/3 find him unable, then the President shall continue exercising the powers and duties of his office. Serious Illness of the President Art. VII, Sec. 12. In case of serious illness of the President, the public shall be informed of the state of his health. The members of the Cabinet in charge of national security and foreign relations and the Chief of Staff of the Armed Forces of the Philippines, shall not be denied access to the President during such illness. e. Removal Art. XI, Secs. 2-3 Art. XI, Sec. 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal or public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Art. XI, Sec. 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. PAGE 220


(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. [A more detailed discussion on this topic can be found above under Other Powers of Congress: Impeachment.] Initiation Stage at the House of Representatives a. Filing of verified complaint for impeachment of the President or Vice-President, on the ground of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. b. Inclusion of the complaint in the Order of Business within 10 session days. c. Referral of complaint to the Committee on Justice within 3 session days from its inclusion. referral.

d. Hearing, voting, and submission of report by the Committee within 60 days from e. Placing on calendar of the Committee resolution within 10 days from submission.

f. Discussion on the floor of the report, then a vote by the membership of the House of Representatives. PAGE 221


g. If 1/3 vote to affirm a favorable resolution or override a contrary resolution, the case is forwarded to the Senate for trial. Trial Stage at the Senate a. The Senators take an oath or affirmation. The Chief Justice of the Supreme Court presides over the trial, but does not vote. b. After trial, the Senators vote to convict or acquit. A vote of 16 (2/3 of all the members) is required to convict the President or Vice-President. Post-trial a. If the President is acquitted by the Senate, he shall continue in office. impeachment proceeding can again be initiated against him within a period of one year.

No

b. If the President is impeached, he shall be removed from office at once, and shall be disqualified to hold any office in the Republic. His criminal liability under Art. XI, Sec. 3(7) may be subject to him immunity from suit. f. Powers and Functions of the President (1) Executive Power Art. VII, Secs. 1 and 17 Art. VII, Sec. 1. Philippines.

The executive power shall be vested in the President of the

Id., Sec. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. The executive function is essentially the duty to implement the laws within the standards imposed by the legislature. Under the Constitution, this power is exercised by the President. Thus, when the Cabinet and other branches of the Executive Department implement the law, they are acting under the control of the President. Marcos vs Manglapus 177 SCRA 668, 178 SCRA 760 F:

This is a petition for mandamus asking the Court to order the respondents to issue travel documents to Mr. Marcos and his immediate family and to enjoin the implementation of the President's decision to bar their return to the Philippines. The issue is whether or not, in the exercise of executive power, the President may prohibit the Marcoses from returning to the Philippines.

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The Constitution provides that the executive power shall be vested in the President (Art. VII, Sec. 1). However, it does not define what is meant by "executive power" although in the same article it touches on the exercise of certain powers by the President, i.e. the power of control over all executive depts., bureaus and offices, the power to execute the laws, the appointing power, the powers under the commander in chief clause, the power to grant reprieves, commutations, pardons, the power to grant amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit the budget to congress and the power to address Congress. (VII, Sec. 14-23)

The inevitable question is whether by enumerating certain powers of the President, did the framers of the Constitution intend that the President shall exercise those specific powers and no other? According to the SC, that although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of executive power. Corollarily, the powers of the President cannot be said to be limited only to the specific power enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. In this case, the President has the power to bar the Marcoses from returning to the Philippines. She has the obligation to protect the people, promote their welfare and advance the national interest. She has to balance the general welfare and the common good against the exercise of rights of certain individuals. The power involved is the President's residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people. Resolution on Motion for Reconsideration : It cannot be denied that the President, upon whom executive power is vested, has unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. Adapted. (2) Control of executive departments

Art. VII, Sec. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. "Control" is the power to substitute one's own judgment in that of a subordinate. Under the qualified political agency doctrine, the different executive departments are mere adjuncts of the President. The secretaries are the alter ego of the President, men of his bosom confidence whom he designated to assist him in his otherwise physically impossible multifarious functions, the extension of the President in the particular field in which they act. Their acts are presumptively acts of the "President, until countermanded or reprobated by him". The President can substitute his will over those of the secretaries, and they cannot complain.

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Furthermore, they hold their office subject to the discretion of the President, who can replace them anytime once he loses his confidence in them. Thus, in Planas v Gil, since the Civil Service Commissioner, then not an independent body, was the alter ego of the President, and the President could investigate local officials, the Commissioner could likewise investigate them. In Villena v Secretary of the Interior, the investigation of the Mayor of Makati by the Secretary of the Interior was deemed an investigation conducted by the President himself. The doctrine on the power of control remained unchanged in the jurisprudence under the 1973 Constitution. Free Telephone Workers Union vs Minister of Labor (108 SCRA 757) had occasion to reemphasize its continuing validity. Here, the power given to the Minister of Labor to assume jurisdiction over a labor dispute affecting the national interest or to certify it for compulsory arbitration was challenged as an undue delegation of a power which properly belonged to the President. All that was needed to settle the case was to hark back to the Villena doctrine that the heads of ministries are alter egos of the President. Under the presidential system, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive and, except in cases where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive. Each head of a department is, and must be, the President's alter ego in the matters of that department where the President is required by law to exercise authority. The President has the constitutional power of control and direction over such dept. heads and cabinet secretaries.

regions Art. X, Sec. 4. governments. xxx

(3) General supervision of local governments and autonomous

The President shall exercise general supervision over local

Art. X, Sec. 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. "General supervision" means the mere overseeing of a subordinate to make sure that they do their duties under the law. But this does not include the power to overrule their acts, if these acts are within their discretion. The grant of mere supervisory power over local governments and autonomous regions is in line with the policy of the State to promote the autonomy of local governments and autonomous regions. There can be no real local autonomy while the National Government controls the local governments. PAGE 224


Ganzon vs CA 200 SCRA 271 The petitioners question the power of the President, acting through the Secretary of Local Government, to suspend and/or remove local officials. It is the considered opinion of the Court that notwithstanding the change in the constitution, the charter did not intend to divest the legislature of its right -- or the President of her prerogative as conferred by existing legislation to provide administrative sanctions against local officials. The omission of "as may be provided by law" (Sec. 4, Art. X) signifies nothing more than to underscore local governments' autonomy from Congress and to break Congress' "control" over local govt. affairs. The Constitution did not, however, intend for the sake of local autonomy, to deprive the legislature of all authority over municipal corporations, in particular, concerning discipline. Petitioners are under the impression that the Constitution has left the President mere supervisory powers, which supposedly excludes the power of investigation, and denied her control, which allegedly embraces disciplinary authority. This is a mistaken impression because legally "supervision" is not incompatible with disciplinary authority. "Control" has been defined as the power of an officer to alter, modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. "Supervision" on the other hand means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. Adapted. (4) Power of appointment Cruz: Appointment may be defined as the selection, by the authority vested w/ the power, of an individual who is to exercise the functions of a given office. The power of appointment is, according to the SC in Concepcion v Paredes, the most eminently executive power, because it is through his appointees that the President can execute laws. The power of appointment by the President under the 1987 Constitution has been significantly curbed. It can be classified as follows: With the consent of the Commission on Appointments Members of the Regional Consultative Council in Art. X, Sec. 18 are according to Sarmiento v Mison, 156 SCRA 547, supra. also subject to confirmation by the CA, because their appointment is vested in the President by the Constitution. But J. Mendoza disagrees. For unlike the Chairman and members of the Constitutional Commissions and the regular members of the JBC, the Constitution in Art. X, Sec. 18 does not say that the appointment is subject to confirmation. Also, the pattern in the Constitution shows that where the nominees are already screened either by JBC (for justices and judges) or the multi-sectoral bodies (Regional Consultative Council), then there is no need for CA confirmation to prevent an overkill. It is enough that the President made the appointment on the basis of nominations. Otherwise, it PAGE 225


would be too rigid, considering that the duty of the RCC is only to advise Congress on the autonomous act to be enacted. Do bureau directors need confirmation? In Sarmiento v Mison (Dec. 1987), the SC held that no they did not need to be confirmed. The deliberations of the Con Con showed that a draft similar to VII, 10 of the 1935 Constitution, which included bureau heads in the list of appointees requiring confirmation, was introduced, but upon motion, bureau directors were omitted expressly from the draft because they were considered of low rank, and so were thought to be better shielded from partisan politics. But the SC added that of the 4 categories of public officers requiring confirmation, the 4th must be given a restrictive construction because confirmation derogates the appointing power of the President. Indeed, it said, only a small class of officers needed confirmation. In saying so, however, it did not try to explain certain anomalies that may arise from such restrictive interpretation: (a) If a colonel needed confirmation, why not the Undersecretary of National Defense who has a higher rank as line officer? (b) If an ambassador needed confirmation, why not the Undersecretary of Foreign Affairs who has a higher rank? (c) Why not the CB governor who is so powerful as to plunge the country into bankruptcy? Bautista vs Salonga 172 SCRA 160 Petitioner was appointed Chairman of the Commission on Human Rights on 12/17/88. She took F: her oath of office on 12/22 and thereafter entered into the discharge of her functions and duties. However, on 1/9/89, she was asked by the Commission on Appointments to submit certain information and documents needed in the confirmation of her appointment. She refused to do so on the ground that her appointment was not subject to confirmation. On 1/14/89, the Pres. submitted petitioner's ad interim appointment to the CA, but, considering petitioner's refusal to submit to the jurisdiction of the CA, the CA disapproved her appointment on 1/25. Petitioner, anticipating the action of the CA, filed a petition for certiorari w/ the SC.

ISSUE: Whether or not the appointment by the President of the Chairman of the Commission on Human Rights (CHR) is to be made with or without CA confirmation. HELD: (1) Only those appointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed by the CA, namely, "the heads of the executive departments, ambassadors, other public ministers and consuls, other officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution." All other appointments by the Pres. are to be made w/o the participation of the CA." Since the position of Chairman of the CHR, an independent office created by the Constitution, is not among the positions mentioned in the first sentence of Sec. 16, Art. VII, appointments to which are to be made with the confirmation of the CA, it follows that the appointment by the President of the Chairman of the CHR is to be made without the review or participation of the CA. They are among the officers of the govt "whom he (the Pres.) may be authorized by law to appoint." And Sec. 2 (c) of EO 163, May 5, 1987, authorizes the Pres. to appoint the Chairman and Members of the CHR. xxx. VV.

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Quintos-Deles vs. Commission on Appointments 177 SCRA 259 F: Petitioner and 3 others were appointed Sectoral Representatives by the President pursuant to Article VII, Section 16, par. 2 and Article XVIII, Section 7 of the Constitution. However, petitioner and the 3 other sectoral representatives- appointees were not able to take their oaths and discharge their duties as members of Congress due to the opposition of some congressmen-members of the Commission on Appointments (CA), who insisted that sectoral representatives must first be confirmed by the CA before they can take their oaths and/or assume office as members of the House of Representatives. ISSUE: Whether the Constitution requires confirmation by the CA in the appointment of sectoral representatives to the House of Representatives. HELD: YES. Section 16, Article VII of the Constitution provides that: "The president shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution x x x". In SARMIENTO VS. MISON (1987), the SC construed Sec. 16, Art. VII of the Constitution to mean that only appointments to offices mentioned in the first sentence of the said Section 16, Art. VII require confirmation by the CA. Since the seats reserved for sectoral representatives in par. 2, Sec. 5, Art. VI may be filled by appointment by the President by express provision of Sec. 7, Art. XVIII of the Constitution, it is indubitable that sectoral representatives to the House of Representatives are among the "other officers whose appointments are vested in the President in this Constitution", referred to in the first sentence of Sec. 16, Art. VII whose appointments are subject to confirmation by the CA.(SARMIENTO VS. MISON) Implicit in the invocation of par. 2, Section 16, Art. VII as authority for the appointment of petitioner is, the recognition by the President as appointing authority that petitioner's appointment requires confirmation by the CA. Under Par. 2, Sec. 16, Art VII, appointments made by the President pursuant thereto "shall be effective only until disapproval by the CA or until the next adjournment of the Congress." If indeed appointments of sectoral representatives need no confirmation, the President need not make any reference to the constitutional provisions above-quoted in appointing the petitioner. As a matter of fact, the President had expressly submitted petitioner's appointment for confirmation by the CA. Considering that Congress had adjourned without resp. CA having acted on petitioner's appointment, said appointment/nomination had become moot and academic pursuant to Sec. 23 of the Rules of resp. CA and "unless resubmitted shall not again be considered by the Commission." Adapted. Calderon v. Carale (208 SCRA 254) F:

In March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code, was approved. It provides in Sec. 13 thereof as follows: "xxx The Chairman, the Division Presiding Commissioners and other Commissioners shall be appointed by the President, subject to confirmation by the CA. xxx"

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Pursuant to said law, President Aquino appointed the Chairman (B. CARALE) and Commissioners of the NLRC. The appointments stated that the appointees may qualify and enter upon the performances of the duties of the office. The present petition for prohibition questions the constitutionality and legality of the permanent appointments extended by the President to the respondents Chairman and Members of the NLRC, without submitting the same to the Commission on Appointments for confirmation pursuant to Art. 215 of the Labor Code as amended by RA 6715. Petitioners insists on a mandatory compliance w/ RA 6715 which has in its favor the presumption of validity. RA 6715 is not, according to the petitioner, an encroachment on the appointing power of the executive contained in Sec. 16 of Art. VII of the Constitution. The Solicitor General contends, on the other hand, that RA 6715 transgresses Sec. 16, Art. VII by expanding the confirmation powers of the Commission on Appointments without constitutional basis.

ISSUES: (1) W/N Congress may, by law, require confirmation by the Commission on Appointments of appointments extended by the President to government officers additional to those expressly mentioned in the first sentence of Sec. 16, Art. VII of the Constitution. (NO) HELD: The controversy in the case is focused on Sec. 16, Art. VII of the 1987 Constitution w/c provides: "Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also 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. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards." xxx are:

There are four groups of officers whom the President shall appoint. These four groups

First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; Second, all other officers of the Government whose appointments are not otherwise provided for law; Third, those whom the President may be authorized by law to appoint; Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone. The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose appointments are not otherwise provided for by law and those whom the President may be authorized by law to appoint. Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Sec. 16, Art. VII, more specifically under "those whom he (the President) may be authorized by law to

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appoint." Undeniably, the Chairman and Members of the NLRC are not among the officers mentioned in the first sentence of Sec. 16 whose appointments requires confirmation by the CA. To the extent that RA 6715 requires confirmation by the CA of the appointments of respondents Chairman and Members of the NLRC, it is unconstitutional because: 1. it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding thereto appointments requiring confirmation by the CA; and 2. it amends by legislation, the second sentence of Sec. 16, Art. VII, by imposing the confirmation of the CA on appointments w/c are otherwise entrusted only with the President. Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a judicial function. Supreme Court decisions applying or interpreting the Constitution shall form part of the legal system of the Philippines. No doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may be modified or reversed except by the Court sitting en banc. Adapted. Notes: From the rulings in Sarmiento III v. Mison, 156 S 549), Bautista v. Salonga, 172 S 160, and Deles v. Constitutional Commission, 177 S 259, these doctrines are deducible: 1. Confirmation by the CA is required only for presidential appointees as mentioned in the first sentence of Sec. 16, Art. VII, including, those officers whose appointments are expressly vested by the Constitution itself in the president (like sectoral representatives to Congress and members of the constitutional commissions of Audit, Civil Service and Election). 2. Confirmation is not required when the President appoints other government officers whose appointments are not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the Chairman and Members of the Com. on Human Rights). Also, as observed in Sarmiento v. Mison, when Congress creates inferior offices but omits to provide for appointment thereto, or provides in an unconstitutional manner for such appointments, the officers are considered as among those whose appointments are not otherwise provided for by law. (2) W/N legislation can expand a constitutional provision after the Supreme Court has interpreted it. In Endencia and Jugo v. David, 93 Phil. 699, the Court held: "We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the Constitution, which is not within the sphere of the Legislative Department. If the Legislature may declare what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertained its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in PAGE 229


judicial processes and court decisions. Under such a system, a final court determination of a case based on judicial interpretation of the law or of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or of the Constitution by the Legislative Department. That would neither be wise nor desirable, besides being clearly violative of the fundamental principles of our constitutional system of government, particularly those governing the separation of powers." The function of the Court in passing upon an act of Congress is to " lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former" and to announce its considered judgment upon the question." It cannot be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately intended by the framers to be a departure from the system embodied in the 1935 Constitution where the CA exercised the power of confirmation over almost all presidential appointments, leading to many cases of abuse of such power of confirmation. Adapted. Ramos v. Alvarez (97 PHIL. 844) [Compare with Calderon case] F: Before serving his full term as elected member of the Provincial Board of Negros Occ., Jesus Aritao (LP) resigned his office when he filed his certificate of candidacy for congressman. To fill such vacancy, then President Quirino, acting on the authority of Sec. 21 (b) of the Revised Election code (REC) appointed Agustin Ramos (LP), who assumed office thereafter. In due time, Ramos' interim appointment was submitted to the Commission on Appointments (CA) for confirmation. But before it could be confirmed, the new President of the Phil., Hon. R. Magsaysay, nominated Rafael Alvarez for the same office. The nomination was unanimously confirmed by the CA after it has rejected Ramos' appointment. Alvarez assumed office as member of the Prov'l Board of Negros Occ. despite vigorous opposition from Ramos, who thereafter filed the present petition to have himself declared legally entitled to the office and to have Alvarez ousted therefrom. Petitioner contends, among others, that he is still legally entitled to the office because his appointment was not subject to the consent or disapproval of the CA. Respondent on his part contends otherwise. ISSUE: W/N an appointment made by the President under Sec. 21(b) of the REC is subject to the consent of the CA. (YES) Sec. 21(b) of the REC, under w/c the petitioner was appointed, provides: Whenever in any elective local office a vacancy occurs as a result of the death, resignation, removal or cessation of the incumbent, the President shall appoint thereto a suitable person belonging to the political party of the officer whom he is to replace, upon the recommendation of said party, save in the case of mayor, which shall be filled by the vice-mayor." Under Par. 3, of Sec. 10, Art. VII of the 1935 Constitution, there are four groups of officers that the President shall appoint, namely: First, the heads of executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and air forces from the rank of captain or commander;

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Second, all other officers of the Government whose appointments are not otherwise provided for in the Constitution; Third, those whom the President may be authorized by law to appoint; and Fourth, inferior officers whose appointments the Congress has by law vested in the President alone. The Constitution is explicit that for officers of the first, second and third groups, the appointment made by the President shall be with the consent of the CA. It is only in the case of the fourth group, that is, of inferior officers whose appointment is by law vested "in the President alone" that such consent is not required. On the other hand, examining the provision of Sec. 21(b) of the REC, we find that while it says that the President shall make the appointment, it does not say that the appointment is not to be subject to the consent of the CA that is, that it is to be made by the President alone. Such being the case, the President's appointment must be deemed subject to the general requirement that the same is to be with the consent of the CA. It would fall then under the third group of officers mentioned in par. 3 of Sec. 10, Art. VII of the 1935 Constitution. Thus, in the United States, under a constitutional provision similar to ours, the general rule is that "when a statute does not specify how an officer is to be appointed, it must be by the President and with the consent of the Senate." In view of the foregoing, petitioner's appointment as member of the Provincial Board was subject to the consent of the CA, so that his right to the office ceased when his appointment was rejected by the Commission. Adapted. (Take note of the case of Calderon v. Carale, 208 SCRA 254)

(a) Heads of the executive departments Art. VII, Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also 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. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions or boards. The President shall have the power to make appointments during the recess of Congress, whether voluntary or compulsory, but such appointment shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.

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(b) Ambassadors, other public ministers and consuls (Id.) (c) Officers of the Armed Forces of the Philippines with the rank of colonel or naval captain (because these are officers of a sizeable command enough to stage a coup) (Id.) (d) Other officers whose appointments are vested in the President in the Constitution: (i) Chairman and Commissioners of the Constitutional Commissions Art. IX, B, Sec. 1. (2) The Chairman and the Commissioners (of the Civil Service Commission) shall be appointed by the President with the consent of the Commission on Appointment for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. Id., C, Sec. 1. (2) The Chairman and the Commissioners (of the Commission on Elections) shall be appointed by the President with the consent of the Commission on Appointment for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. Id., D, Sec. 1 (2) The Chairman and the Commissioners (of the Commission on Audit) shall be appointed by the President with the consent of the Commission on Appointment for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. (ii) Regular members of the Judicial and Bar Council (composed of the IBP representative, professor of law, retired SC justice, and representative of the private sector. Note the ex-officio members: Chief Justice, Secretary of Justice, and representative of Congress) Art. VII, Sec. 8. (2) The regular members of the (Judicial and Bar) Council shall appointed by the President for a term of four years with the consent of the Commission on Appointments. Of the Members first appointed, the representative of the Integrated Bar

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shall serve for four years, the professor of law for three years, the retired Justice for two years, and the representative of the private sector for one year. (iii) Sectoral representatives Art. XVIII, Sec. 7. Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors the seats reserved for sectoral representation in paragraph (2) of Section 5 of Article VI of this Constitution. (iv) Regional Consultative Commission Art. X, Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.

Upon recommendation of the Judicial and Bar Council (a) Members of the Supreme Court and all other courts Art. VIII, Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within ninety days from the submission of the list. nao, general and military)

(b) Ombudsman and his 5 deputies (for Luzon, Visayas, Minda-

Art. XI, Sec. 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur. PAGE 233


Appointment of Vice-President as Member of the Cabinet Art. VII, Sec. 3. xxx The Vice President may be appointed as a Member of the Cabinet. appointment requires no confirmation

Such

Appointments solely by the President Art. VII, Sec. 16. The President shall xxx also 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. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions or boards. The President shall have the power to make appointments during the recess of Congress, whether voluntary or compulsory, but such appointment shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. 1. Those vested by the Constitution on the President alone (e.g. appointment of VicePresident to the Cabinet) [Art. VII, Sec. 3(2)] 2. Those whose appointments are not otherwise provided by law. 3. Those whom he may be authorized by law to appoint. 4. Those other officers lower in rank whose appointment is vested by law in the President (alone). The phraseology is muddled. The meaning of #4 was touched upon in Sarmiento v Mison. In arguing that even bureau chiefs needed confirmation even if they are of inferior rank, the argument was the phrase, "The Congress may, by law, vest in the appointment of other officers lower in rank in the President alone" meant that until a law is passed giving such appointing power to the President alone, then such appointment has to be confirmed. Only after such law is passed does the necessity for confirmation no longer hold. The SC dismissed this view however, saying that the inclusion of the word "alone" was an oversight. Thus, the Constitution should read "The Congress may, by law, vest the appointment of other officers lower in rank in the President." (5) Limitations on appointing power of the President Art. VII, Secs. 13 and 15 `Art. VII, Sec. 13. xxx

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The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. Id., Sec. 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. a. The spouse and relatives by consanguinity or affinity within the 4th civil degree of the President shall not, during his "tenure". be appointed as (i) members of the Constitutional Commissions, (ii) member of the Office of Ombudsman, (iii) Secretaries, (iv) Undersecretaries, (v) Chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. b. Two months immediately before the next presidential elections (2nd Monday of March), and up to the end of his "term" (June 30), a President (or Acting President) shall not make appointments. Exception: Temporary appointments, to executive positions, when continued vacancies therein will (1) prejudice public service (e.g. Postmaster) or (ii) endanger public safety (e.g. Chief of Staff). This provision seems to have overruled previous pronouncements of the Supreme Court on the validity of "midnight appointments". (Ad interim appointments could either be "midnight", if made by the President before he steps down from office or recess, if made by the President when Congress is not in session.) In Aytona v Castillo, 4 SCRA 1 (1962), the SC ruled that while "midnight appointments" are not illegal, they should be made in the capacity of a "care-taker" doubly careful and prudent in making the selection, so as not to defeat the policies of the incoming administration. Said the court: After the proclamation of an incoming President, the outgoing President is no more than a "caretaker" administrator duty bound to prepare for the orderly transition to the new President, and he should not do acts that would obstruct the policies of his successor. The filling up of vacancies in important posts, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointees qualifications, may be undoubtedly permitted. But the issuance of 350 appointments in one night, and the planned induction of almost all of them a few hours before the inauguration of the new President may be regarded as abuse of presidential prerogatives.

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Where the President makes ad-interim (i.e., midnight) appointments, he is bound to be "prudent" to insure approval of his selection, either by previous consultation with the CA or by explaining his reason thereafter. Where the CA that will consider the appointees is different from that existing at the time of appointment, and where the names are to be submitted by his successor who may not wholly approve of his selections, the President should be "doubly careful in extending such appointment. In Jorge v Mayer, 10 SCRA 331 (1964), the Court emphasized the rule in Aytona that a prudently made midnight appointment so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointees' qualifications is not prohibited by law. The circumstances of Jorge's appointment as Director of Lands in this case, based on his 38 years of faithful service and confirmed by the CA before its adjournment, were found to be judicious. In Quisumbing v Tajanglangit, 10 SCRA 446 (1964), the SC emphasized that the Aytona ruling does not declare all midnight appointments as invalid, and that the ad interim appointment of the petitioner chief of police here, whose qualification and regularity were not disputed, except for the fact that it was made during the last few days of the old administration, is thus not invalid. Interim or recess appointments Art VI, Sec. 19. The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its Members, to discharge such powers and functions as herein conferred upon it. Art. VII, Sec. 16. xxx The President shall have the power to make appointments during the recess of Congress, whether voluntary or compulsory, but such appointment shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. Regular and recess (ad-interim) appointments The procedure for confirmation has been discussed above under Constitutional Congressional Committees. To sketch: Appointments requiring confirmation are of two kinds, (i) regular, if the CA, that is, Congress, is in session, or (ii) during the recess of Congress (because the Commission shall meet only while Congress is in session [Art. VI, Sec. 19]). PAGE 236


Regular appointments require confirmation before the appointee can take his post. The President nominates, Congress receives the nomination and forwards this to the CA for confirmation, then the Office of the President issues a Commission, at which point the appointee can assume his office. Recess appointments, on the other hand, need no confirmation to be effective, albeit temporarily. The appointment is effective until it is disapproved by the Commission on Appointments, or until the next adjournment of Congress (unless meantime, it is confirmed by the Commission) (Art. VII, Sec. 16, par. 2) Temporary Designations: Administrative Code of 1987, Book III Sec. 17 The President may designate an officer already in the govt. service or any other competent person to perform the functions of any office in the executive branch, appointment to which is vested in him by law, when: (a) The officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or (b) There exists a vacancy; In no case shall a temporary designation exceed one (1) year. (6) Limitations on the appointing power of the Acting President Art. VII, Secs. 14-16 Art. VII, Sec. 14. Appointments extended by an Acting President shall remain effective unless revoked by the elected President within ninety days from his assumption or reassumption of office. Art. VII, Sec. 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. Art. VII, Sec. 16. xxx 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 Commission on Appointments or until the next adjournment of the Congress.

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UPDATED 1/23/96 /RAM (7) Executive clemencies Art. VII, Sec. 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. It shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. The President may grant (i)reprieves, (ii) commutations, and (iii) pardons, and (iv) remit fines and forfeitures, after conviction by final judgment, except : (a) In cases of impeachment, and (b) As otherwise provided in this Constitution, viz. Art. IX, C, Sec. 5. No pardon, amnesty, parole or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation by the Commission (on Elections.) Definitions Reprieve is a temporary relief from or postponement of execution of criminal penalty or sentence or a stay of execution. It does not more than stay the execution of a sentence extended to a prisoner to afford him an opportunity to procure some amelioration of the sentence imposed. (Black.) It is the withholding of a sentence for an interval of time, a postponement of execution, a temporary suspension of execution. (People vs. Vera, infra.) Commutation is a reduction of sentence. (Black.) It is a remission of a part of the punishment; a substitution of a less penalty for the one originally imposed. (People vs. Vera, infra.) Pardon is a permanent cancellation of sentence. (Black) It is an act of grace proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for the crime he has committed. It is a remission of guilt, a forgiveness of the offense. (People v Vera, infra.) Cruz: Kinds of Pardon.-- Pardon may be classified into absolute or conditional and plenary or partial. An absolute pardon is one extended w/o any strings attached, so to speak, whereas a conditional pardon is one under w/c the convict is required to comply w/ certain requirements. A PAGE 238


plenary pardon extinguishes all the penalties imposed upon the offender, including accessory disabilities, whereas partial pardon does not. Where the pardon is conditional, the offender has the right to reject the same since he may feel that the condition imposed is more onerous than the penalty sought to be remitted. But in the case of an absolute pardon, the pardonee has no option at all and must accept it whether he likes it or not. In this sense, an absolute pardon is similar to commutation, w/c is also not subject to acceptance by the offender. Amnesty is a sovereign act of oblivion for past acts, granted by government generally to a class of persons who have been guilty usually of political offenses (treason, sedition, rebellion), and who are subject to trial but have not yet been convicted, and often conditioned upon their return to obedience and duty within a prescribed time. (Black; Brown v Walker, 161 US 602). Probation is a disposition under which a defendant after conviction and sentence is released subject to conditions imposed by the court and to the supervision of a probation officer. [Sec. 3 (a), PD 968.] Parole is the suspension of the sentence of a convict granted by a Parole Board after serving the minimum term of the indeterminate sentence penalty, without granting a pardon, prescribing the terms upon which the sentence shall be suspended. (a) Pardon distinguished from probation People vs. Vera, 65 P 56 (1937) Probation and Pardon are not coterminous; nor are they the same. They are actually distinct and different from each other, both in origin and nature. In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completely exonerated. He is not exempt from the entire punishment w/c the law inflicts. Under the Probation Act, the probationer's case is not terminated by the mere fact that he is placed on probation. The probationer, during the period of probation, remains in legal custody-- subject to the control of the probation officer and of the court, he may be rearrested upon the non-fulfillment of the conditions of probation and, when rearrested, may be committed to prison to serve the sentence originally imposed upon him. Notes: In both cases, there must be a final judgment of conviction, and the convict must be exempted from service of sentence. But pardon is granted by the Chief Executive for any crime, while probation is granted by the court after investigation by a probation officer only for cases where the penalty imposed does not exceed 6 years and 1 day (prision mayor), where the crime is not against the security of the State, where there was no previous conviction for an offense punished by arresto mayor, and where there was no previous availment of probation. In absolute pardon, the sentence and its effects, including the accessory penalties, are abolished upon the grant of pardon. In probation, the restoration of the probationer to his civil rights takes places only after his final discharge after the period of his probation. (Secs. 14 & 16) PAGE 239


(b) Pardon distinguished from Parole Pardon may be granted by the Chief Executive under the Constitution and formerly the Administrative Code, at any time after final judgment of conviction, even before service; while parole is granted by the Board of Pardons and Parole under the Indeterminate Sentence Law only after the convict has served the minimum term of his sentence. In pardon, the convict becomes a free man; in parole, he is not really free because although he his released from the custody of the law, he must submit to periodic examination by the Board of Parole. In Tesoro v Director of Prisons, 68 Phil 154 (1939), the SC dismissed the contention that because parole is not mentioned in the Constitution, then the power to grant parole is also deemed repealed. The Court said that parole is part of the pardoning power of the President. Justice Fernando points out, however, that this is not accurate. If ever the President has the power to grant parole, it is because the law grants him that power, and not because parole is part of pardon. Tesoro vs. Director of Prisons, 68 Phil 154 F:

On Oct. 10, 1934, petitioner Tesoro was convicted in the CFI- Manila of the crime of falsification of a public document and was sentenced. His penalty was to expire on Oct. 28, 1937. On Nov. 14, 1935, the Gov. Gen. granted the petitioner a parole, which the latter accepted, subject to certain conditions. One of the conditions was that he will not commit any other crime and will conduct himself in an orderly manner. Dec. 3, 1937, the petr was charged with the crime of adultery. However, the case was dismissed for non-appearance of the complainant, Jose Nagar. Feb. 1938, Nagar lodged a complaint with the Board of Indeterminate Sentence, and upon the same facts supporting the crim. action, charged petitioner with violation of the conditions of his parole. Later, by virtue of an order from the President, the petr was arrested and recommitted to the custody of the Dir. of Prisons. Petr. contends that sec. 64 (i) of the Rev. Adm. Code, insofar as it confers upon the Chief Executive the power to grant and revoke paroles, has been impliedly repealed by Par. 6, sec. 11, Art. VII of the Constitution, as the latter omitted to specify such power in connection with the powers granted therein to the President of the Philippines. Sec. 64(1) gives the Gov. Gen the ff. powers and duties: "To grant to convicted persons reprieves or pardons, either plenary or partial, conditional or unconditional; to suspend sentences without pardon, remit fines, and order the discharge of any convicted person upon parole, subject to such conditions as he may impose; and to authorize the arrest and re-incarceration of any such person who, in his judgment shall fail to comply with the condition, or conditions, of his pardon, parole, or suspension of sentence." The aforementioned Constitutional provision provides:

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"The President shall have the power to grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction, for all offenses, except in cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper to impose. He shall have the power to grant amnesty with the concurrence of the National Assembly."

ISSUE NO. 1: W/N there has been a repeal. HELD: NONE. The power to pardon given the President by the Constitution, "upon such conditions and with such restrictions and limitations as he may deem proper to impose," includes the power to grant and revoke paroles. If the omission of the power of parole in the Constitution is to be construed as a denial thereof to the President, the effect would be to discharge unconditionally parolees, who, before the adoption of the Constitution, have been released conditionally by the Chief Executive. ISSUE NO. 2: W/N the Board has legal authority to investigate the conduct of the petitioner. HELD: YES. By the terms of his parole, petitioner agreed to report to the executive secretary of the Board once a month during the first year of his parole, and thereafter, once every 3 months. By his consent to this condition, petitioner has placed himself under the supervision of the Board. The duty to report on the part of the petitioner implies a corresponding power on the part of the Board to inquire into his conduct and a fortiori to make recommendations to the President by whose authority it was acting. The power to revoke paroles necessarily carries with it the power to investigate and to inquire into the conduct of the parolees, if such power of revocation is to be rational and intelligent. In the exercise of this incidental power, the President is not precluded by law or by the Constitution from making use of any agency of the govt, or even of any individual, to secure the necessary assistance. ISSUE NO. 3: W/N judicial pronouncement to the effect that he has committed a crime is necessary before he can be properly adjudged as having violated his conditional parole. HELD: NO. As one of the conditions of his parole, petitioner agreed that he will not commit any other crime and will conduct himself in an orderly manner. Thus, the mere commission, not his conviction by court, of any other crime, that was necessary in order that petitioner may be deemed to have violated his parole. And under Sec. 64 (i), the Chief Executive is authorized to order "the arrest and re-incarceration of any such person who, in his judgment, shall fail to comply with the condition/s of his pardon, parole, or suspension of sentence. ISSUE NO. 4: W/N the courts can review the findings of the Pres. regarding the violation of the conditional parole. HELD: NO. Where the determination of the violation of the conditional parole rests exclusively in the sound judgment of the Chief Executive, the courts will not interfere, by way of review, with any of his findings. ISSUE NO. 5: W/N upon the expiration of his maximum term of imprisonment, his conditional parole also expires.

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HELD: NO. When a conditional pardon is violated, the prisoner is placed in the same state in w/c he was at the time the pardon was granted. He may be rearrested and recommitted to prison. xxx The rule is well-settled that, in requiring the convict to undergo so much of the punishment imposed by his original sentence as he had not suffered at the time of his release, the court should not consider the time during which the convict was at large by virtue of the pardon as time served on the original sentence. (Pp. v. Tapel) This rule applies by analogy to conditional parole. Adapted. Torres v. Gonzales 152 SCRA 272 F:

Before 1979, Torres was convicted of the crime of estafa (2 counts) and was sentenced to imprisonment and to pay an indemnity. The maximum sentence would expire on Nov. 2, 2000. On April 18, 1979, a conditional pardon was granted the petitioner by the President on condition that petitioner would "not again violate any of the penal laws of the Phil. Should this condition be violated, he will be proceeded against in the manner prescribed by law. Petitioner accepted the conditional pardon and was released. On Sept. 8, 1986, the President cancelled the conditional pardon of the petitioner upon recommendation of the Board of Pardons. The record before the Board showed that petitioner had been charged with 20 counts of estafa, convicted of sedition w/c is the subject of an appeal, and a letter report from the NBI showing a long list of charges brought against the petitioner. The petitioner was subsequently arrested and confined in Muntinlupa to serve the unexpired portion of his sentence. Petitioner claims he did not violate his conditional pardon since he has not been convicted by final judgment of the 20 counts of estafa nor of the crime of sedition. He also contends that he was not given an opportunity to be heard before he was arrested and recommitted to prison and thus deprived of due process.

ISSUE: W/N conviction of a crime by final judgment of a court is necessary before the petitioner can be validly rearrested and recommitted for violation of the terms of his conditional pardon and accordingly to serve the balance of his original sentence. HELD: NO. The Court cited 3 cases: Espuelas v. Prov'l Warden of Bohol; Tesoro v. Dir. of Prisons and Sales v. Dir. of Prisons. The grant of pardon and the determination of the terms and conditions of a conditional pardon are purely executive acts which are not subject to judicial scrutiny. The determination of the occurrence of a breach of a condition of a pardon, and the proper consequences of such breach, may be either a purely executive act, not subject to judicial scrutiny under Sec. 64 (i) of the Rev. Adm. Code; or it may be a judicial act consisting of trial for and conviction of violation of a conditional pardon under Art. 159 of the RPC. Where the President opts to proceed under Sec. 64 (i), RAC, no judicial pronouncement of guilt of a subsequent crime is necessary, much less conviction therefor by final judgment of a court, in order that a convict may be recommended for the violation of his conditional pardon. Because due process is not semper et ubique judicial process, and because the conditionally pardoned convict had already been accorded judicial due process in his trial and

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conviction for the offense for w/c he was conditionally pardoned, sec. 64 (i), RAC, is not afflicted with a constitutional vice. In short, in proceeding against a convict who has been conditionally pardoned and who is alleged to have breached the conditions of his pardon, the Executive Dept. has 2 options: (i) to proceed against him under Sec. 64 (i), RAC; or (ii) to proceed against him under Art. 159, RPC which imposes the penalty of prision correccional minimum period, upon a convict who having been granted conditional pardon by the Chief Executive, shall violate any of the conditions of such pardon. Here, the President has chosen to proceed against the petitioner under the RAC. That choice is an exercise of the executive prerogative and not subject to judicial scrutiny. Adapted. (c) Pardon distinguished from Amnesty 1. Pardon is usually granted for common crimes; amnesty, for political crimes. 2. Pardon is granted to individuals; amnesty, to a group, class, or community generally. 3. Pardon can only be granted after conviction; amnesty may be granted even before trial. 4. Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolishes or forgives the punishment; amnesty looks backward and abolishes and puts into oblivion the offense itself, that is, it overlooks and obliterates the offense with which the convict is charged that the person released stands precisely as though he had committed no offense. (Barrioquinto v Fernandez, infra.) 5. Pardon is a private act of the President w/c must be pleaded and proved by the person bec. the courts do not take judicial notice of it; amnesty is a public act of w/c the courts take judicial notice. (Cruz, Philippine Political Law, 1991 ed.) 6. Pardon does not require the concurrence of the Congress; amnesty requires such concurrence. (id.) Barrioquinto et al v. Fernandez 82 Phil 642 F:

Petitioners Jimenez and Barrioquinto were charged with murder. Jimenez was sentenced to life imprisonment. Before the period for perfecting an appeal had expired, Jimenez became aware of Procl. No. 8 which grants amnesty in favor of all persons who may be charged with an act penalized under the RPC in furtherance of resistance to the enemy or against persons aiding in the war efforts of the enemy, and committed during the period Dec. 8, 1941 to the date when each particular area of the Phil. where the offense was actually committed was liberated from enemy control and occupation. The petitioners submitted their cases to the Guerrilla Amnesty Commission (GAC). The GAC returned their cases to the CFI-Zamboanga w/o deciding whether or not they are entitled to the benefits of the Amnesty Proclamation, on the ground that inasmuch as neither of the petitioners have admitted to committing the offense, they cannot invoke the benefits of the amnesty.

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HELD: Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof; while Amnesty is by Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act of which the courts should take judicial notice. Pardon is granted to one after conviction; while Amnesty is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolishes or forgives the punishment, and for that reason it does "not work the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon," and it "in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence" (Art 36 RPC). While Amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. ISSUE: W/N in order to entitle a person to the benefits of the Amnesty Procl. of Sept. 7, 1946, it is necessary as a condition precedent that he should admit having committed the criminal act with w/c he is charged and allege the amnesty as a defense. HELD: NO. It is sufficient that the evidence, either of the complainant or of the accused, shows that the offense committed comes w/n the terms of said Amnesty Procl. It is not correct to say that "invocation of the benefits of the amnesty is in the nature of a plea of confession and avoidance. Although the accused does not confess the imputation against him, he may be declared by the courts or the Amnesty Commissions entitled to the benefits of the amnesty. For, w/n he admits or confesses having committed the offense w/ w/c he is charged, the Commissions should, if necessary or requested by the interested party, conduct summary hearing of the witnesses both for the complainants and the accused, on whether he has committed the offense in furtherance of the resistance to the enemy, or against persons aiding in the war efforts of the enemy, and decide whether he is entitled to the benefits of amnesty and to be "regarded as a patriot or hero who has rendered invaluable services to the nation," or not, in accordance with the terms of the Amnesty Proclamation. ISSUE: W/N the benefits of amnesty may be waived. HELD: The right to the benefits of amnesty, once established by the evidence presented, either by the prosecution or the defense, cannot be waived, because it is of public interest that a person who is regarded by the Amnesty Proclamation, which has the force of law, not only as innocent, for he stands in the eyes of the law as if he had never committed any punishable offense because of the amnesty, but as a patriot or hero, cannot be punished as a criminal.

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Dissenting Opinion: Amnesty presupposes the commission of a crime. When an accused says that he has not committed a crime, he cannot have any use for amnesty. It is also self-evident that where the Amnesty Proclamation imposes certain conditions, as in this case, it is incumbent upon the accused to prove the existence of those conditions. A petition for amnesty is in the nature of a plea of confession and avoidance. The pleader has to confess the allegations against him before he is allowed to set out such facts as, if true, would defeat the action. ---- o ---The 4th distinction (pardon is forward looking while amnesty is backward looking) is not accurate on the basis of decided cases. It can be seen from several cases, therefore that the effect of pardon retroacts to the day of the crime. It is not simply forward-looking. Pardon is still useful, then, even if the convict has already served his full sentence, because there may be accessory penalties that are perpetual in extent. Adapted. Notes: The fifth distinction bet. pardon and amnesty is that pardon is a private act of the President, and so must be impleaded in court; amnesty is a public act by the President and Congress, and so the court is enjoined to take judicial notice of it. (supra) The 5th distinction (pardon is a private act while amnesty is a public act) is not true in Philippine law. The case holds that pardon must be raised as a defense, otherwise the court cannot take judicial notice of such pardon. But under Art. 89 of the RPC, absolute pardon extinguishes criminal liability. And under the Constitution, pardon can only be granted after final conviction. If so, once, a convict has been granted pardon, this implies that he has already been convicted, and that precisely he has been exempted from the penalty arising from conviction. Why would he still have to invoke it? This seems to contemplate a situation where he is being charged again of the same crime, and that he needs to invoke the pardon as a defense, which is impossible because of double jeopardy. The error in the Barrioquinto ruling is that it borrowed this distinction from American law, which allows the President the power to grant pardon even before conviction (thus, Ford was able to pardon Nixon even without a trial.) Such was our law under the Jones Law of 1916. But under the 1935 Constitution, this rule was changed: pardon could only be granted after conviction, In 1973, it was made stricter: pardon could be granted only after "final" conviction. Then, in 1981, the phrase "after final conviction" was dropped, thus going back to the rule under the Jones Law and the President could grant pardon anytime. In 1987, the phrase reads: "after conviction by final judgment." Aside from extinguishing criminal liability, pardon also works to remit fines and forfeitures paid in favor of the Government.

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But it does not automatically restore the public office forfeited, nor relieve the pardonee of civil liability and other claims pertaining to the private offended party. (d) Effects of Pardon In Cristobal v Labrador, 71 Phil 34 (1940), the voter whose right to vote was challenged in an exclusion proceeding because he had been convicted of estafa which carried the accessory penalty of disqualification from the right of suffrage, and in Pellobello v Palatino, 72 Phil 441 (1941), the mayor-elect who was not allowed to take his oath because of a previous conviction, for falsification of a private document which likewise carried the accessory penalty of disqualification, were both allowed to exercise their political right in view of the subsequent pardon granted them. [There would be no problem if they were pardoned beforehand, for then they would be restored to their political right(s) right away.] Cristobal v Labrador, 71 Phil 34 (1940) F: On 3/15/30, Teofilo Santos was found guilty of estafa and sentenced to 6 months of arresto mayor. Upon appeal, his conviction was affirmed. He was confined in jail from 3/14/9/32 to 8/18/32. Notwithstanding his conviction, Santos continued to be a registered elector in Malabon, Rizal and was municipal pres. from 1934 to 1937. Subsequently, The Election Code was approved. Sec. 94, par. (b) of said law disqualifies the resp. from voting for having been declared by final judgment guilty of any crime against prop." Bec. of this provision, Santos petitioned the Chief Executive for absolute pardon. The Pres. granted his petition restoring him to his "full civil and political rights, except that with respect to the right to hold public office or employment, he will be appointed for appointments only to positions w/c are clerical or manual in nature and involving no money or prop. responsibility. On 11/40, Cristobal filed a petition for the exclusion of Santos' name in from the list of voters in Malabon on the ground that the latter is disqualified under par. (b), Sec. 94 of CA 357. LC denied Cristobal's petition holding that Santos' pardon had the effect of excluding him from the disqualification created by par. (b) of Sec. 94. Hence, this petition for ceritorari. HELD: There are 2 limitations upon the exercise of the constitutional prerogative of the Pres. to grant pardon: (1) that the power be exercised after conviction; (2) that such power does not extend to cases of impeachment. xxx An absolute pardon not only blots out the crime committed but it also removes all disabilities resulting from conviction. In the present case, the disability is the result of conviction w/o w/c there would be no basis for the disqualification from voting. xxx In the present case, while the pardon extended is conditional in the sense that "he will be eligible for appointment only to positions w/c are clerical or manual in nature involving no money or prop. resp., " it is absolute insofar as it "restores the resp. to full civil and political rights." Adapted. Pelobello v. Palatino 72 Phil 441 F:

Pelobello alleges that Palatino is disqualified from voting and being voted upon. It appears that Palatino was convicted by final judgment in 1912 of atentado contra la autoridad y sus agentes and sentenced to imprisonment. He was later elected mayor of Torrijos, Marinduque in 1940. It is admitted that

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Palatino was granted by the Gov. Gen. a conditional pardon in 1915. It is also proven that on Dec. 25, 1940, the President granted him absolute pardon and restored him to the enjoyment of full civil and political rights.

ISSUE: W/N the absolute pardon had the effect of removing the disqualification incident to criminal conviction under the then Election Code, the pardon having been granted after the election but before the date fixed by law for assuming office. HELD: YES. The SC adopts the broad view in Cristobal v. Labrador that subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislation; an absolute pardon not only blots out the crime committed but removes all disabilities resulting from the conviction; and that when granted after the term of imprisonment has expired, absolute pardon removes all that is left of the consequences of conviction. Thus the better view is not to unnecessarily restrict or impair the power of the Chief Executive who, after inquiry into the environmental facts, should be at liberty to atone the rigidity of law to the extent of relieving completely the party or parties concerned from the accessory and resultant disabilities of criminal conviction. Under the circumstances of the case, it is evident that the purpose in granting him absolute pardon was to enable him to assume the position in deference to the popular will; and the pardon was thus extended after the election but before the date fixed by the Election Code for assuming office. Adapted. In Lacuna v Abes, 24 SCRA 780, the petitioner was convicted of counterfeiting, and so was disqualified from the right of suffrage. As a result, he was not allowed to file his candidacy, even if he was already granted pardon, because one of the requirements for the office was that the candidate be a qualified voter. The SC, after pointing out that the law did not require that he be a registered voter but only a qualified voter at the day of election, pointed out that, granting arguendo, pardon retroacted to the day of the crime. Thus, on the day of the election, "it is as though he was a registered voter even if on that day, he was not yet pardoned." Lacuna v. Abes 24 SCRA 780 F:

Mayor-elect Abes had been convicted of the crime of counterfeiting treasury warrants and sentenced to prision mayor and a fine. After he had partially served his sentence, he was released on April 7, 1959 by virtue of a conditional pardon granted by the President, remitting only the unexpired portion of the prison term and fine. Without the pardon, his maximum sentence would have been served on Oct. 13, 1961. With the approach of the 1967 elections, Abes applied for registration as a voter but said application was denied. Despite this, Abes filed his certificate of candidacy for the office of mayor and later won. On Nov. 16, 1967, he was proclaimed the fully elected mayor. Lacuna placed second. Lacuna filed his petition for quo warranto with prelim. injunction in CFI-Nueva Ecija. On the same day that the hearing was held on the application for prelim. injunction, the President granted Abes an absolute and unconditional pardon and restored to him full civil and political rights. CFI dismissed the petition, declaring Abes' eligibility to the position of mayor. Lacuna contends that the restoration of Abes' civil and pol. rights did not retroact to remove the disqualification existing anterior to the grant of the pardon.

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ISSUE: W/N a plenary pardon, granted after election but before the date fixed by law for assuming office, had the effect of removing the disqualifications prescribed by both the criminal and electoral codes. HELD: YES. The view consistently adopted in this jurisdiction is that the pardon's effects should not be unnecessarily limited as it would lead to the impairment of the pardoning power, which was not contemplated in the Constitution (Cristobal v. Labrador; Pelobello v. Palatino; Mijares v. Custorio). As laid down in the Pelobello case, "xxx subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislative action; that an absolute pardon not only blots out the crime committed but removes all disabilities resulting from conviction; and that when granted after the term of imprisonment has expired, absolute pardon removes all that is left of the consequences of conviction. Thus the better view is not to unnecessarily restrict or impair the power of the Chief Executive who, after inquiry into the environmental facts, should be at liberty to atone the rigidity of law to the extent of relieving completely the party or parties concerned from the accessory and resultant disabilities of criminal conviction. Adapted. In Monsanto vs Factoran, 170 SCRA 190, where a woman who was convicted of estafa through falsification of public documents was granted an absolute pardon, and thereafter claimed she was entitled as a consequence to reinstatement as assistant city treasurer, the SC held that a pardon cannot mask the acts constituting the crime. These are "historical facts" which, despite the public manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men will take into account in their subsequent dealings with the actor." Pardon granted after conviction frees the individual from all penalties and legal disabilities and restores him to all his civil rights. But unless expressly grounded on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. This must be constantly kept in mind, lest we lose track of the true character and purpose of the privilege. Thus, pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction, although such pardon undoubtedly restores his eligibility for appointment to that office.

Monsanto vs Factoran, 170 SCRA 190 A Pardoned Convict is not Entitled to Reinstatement to a Public Office. F:

Petitioner Salvacion Monsanto was Asst. Treasurer of Calbayog City. She was convicted of estafa thru falsification of public documents and sentenced to 4 yrs., 2 mos. and 1 day of prision correcional, as minimum, to 10 yrs. and 1 day of prision mayor, as maximum; to pay fine (P3,500) and to indemnify the govt (P4,892.50) in a decision of the SB. While her case was pending appeal in the SC, she was granted absolute pardon and "restored to full civil and political rights" by then Pres. Marcos. The Ministry of Finance agreed to reinstate her w/o necessity of a new appointment provided this was done not earlier than

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the date of her pardon. However, on 4/15/86, the new administration held that she was not entitled to automatic reinstatement on the basis of the pardon granted her. As her MFR was denied, petitioner brought this action to the SC. Petitioner's theory is that the gen. rule on pardon does not apply to her bec. she was extended clemency while her case was still pending in the SC. She contended that w/o final judgment on conviction, the accessory penalty of forfeiture of office did not attach.

HELD: (1) Petitioner was granted pardon under the 1973 Consti., as amended, w/c, by deleting the requirement that pardon could be granted only after final conviction, impliedly authorized it to be granted even before conviction. The 1987 Consti. reverted to the former rule, requiring final conviction as a condition for the grant by the Pres. of pardon. However, it is immaterial when the pardon was granted, for the result would be the same. By accepting the pardon, the petitioner is deemed to have abondoned her appeal, w/ the result that the judgment of conviction of the SB (w/c entailed her temporary absolute disqualification from holding public office) became final. (2) The modern trend of authorities reject the unduly broad language of Ex Parte Garland, 4 Wall. 333 (1867) to the effect that in the eyes of the law, the offender who is pardoned is as innocent as if he had never committed the offense. While we are prepared to concede that pardon may remit all the penal consequences of a criminal indictment if only to give meaning to the fiat that a pardon, being a presidential prerogative, should not be circumscribed by legislative action, we do not subscribe to the view that pardon blots out the guilt of an individual and that once he is absolved, he should be treated as if he were innocent. For whatever may have been the judicial dicta in the past, we cannot perceive how pardon can produce such "moral changes" as to equate a pardoned convict in character and conduct w/ one who has constantly maintained the mark of a good, law-abiding citizen. Accordingly, pardon does not ipso facto restore him to public office may have been forfeited by reason of the conviction, although such pardon undoubtedly restores his eligibility for appointment to that office. Petitioner may apply for reappointment but, in considering her qualifications, the facts constituting her conviction should be taken into account to determine whether she can again be entrusted w/ public funds. (3) Nor can petitioner be exempted from the payment of the civil indemnity. It subsists notwithstanding service of sentence, if for any reason the sentence is not served by pardon, amnesty or commutation of sentence. VV. Notes on the case: "Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. But unless expressly grounded on the person's innocence (w/c is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing. This must be constantly kept in mind lest we lose track of the true character and purpose of the privilege. xxx" (e) Sanctions for violations of conditional pardon Torres vs Gonzales 152 SCRA 272 In proceeding against a convict who has been conditionally pardoned and who is alleged to have breached the conditions of his pardon, the Executive Dept. has 2 options: (i) to proceed

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against him under Sec. 64(i), RAC; or (ii) to proceed against him under Art. 159, RPC which imposes the penalty of prision correccional minimum period, upon a convict who having been granted conditional pardon by the Chief Executive, shall violate any of the conditions of such pardon. Here, the President has chosen to proceed against the petitioner under the RAC. That choice is an exercise of the executive prerogative and not subject to judicial scrutiny.

cases?

(f)

Does pardoning power apply to administrative

Llamas vs Executive Secretary, 202 SCRA 844 (1991) "Conviction" may be used in either a criminal case or in an administrative case. F: Pet. Llamas was Vice-Gov. of Tarlac who assumed the position of gov. when Gov. Ocampo was found guilty by DILG of a viol. of RA 3019 and meted a penalty of 90 days suspension. Administrative conviction was based on complaint filed by petitioners and others charging Ocampo w/ executing loan agreement w/ Lingkod Tarlac Foundation for the amount of P20M, w/c is a non-stock and non-profit org. headed by the gov. as chairman and his brother-inlaw as executive director, trustee and secretary. Loan was claimed to be disadvantageous to the govt. MFR by Ocampo was denied by DILG. On 3/19/91, Ocampo issued "admin. order" wherein he signified intention to continue in office at his residence in the belief that pendency of appeal to the Exec. Sec. precluded finality as executory of the DILG order. W/o ruling on the MFR, the Exec. Sec. issued a resolution granting executive clemency to Ocampo. Llamas filed petition claiming that executive clemency could only be granted by the Pres. in crim. cases, not in admin. cases. HELD: According to petitioner, "after conviction by final judgment" applies solely to crim. cases." But, he himself describes the governor as one "convicted in an admin. case" and thus actually concedes that "conviction" may be used either in a crim. or admin. case. The Const. does not distinguish bet. w/c cases executive clemency may be exercised by the Pres., w/ the sole exclusion of impeachment cases. If the President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses. However, the power of the President to grant executive clemency in administrative cases refers only to administrative cases in the Executive branch and not in the Judicial or Legislative branches of the govt. Under the doctrine of Qualified Political Agency, the different Executive departments are mere adjuncts of the President. Their acts are presumptively the acts of the President until countermanded or reprobated by her. In this case, the President in the exercise of her power of supervision and control over all executive departments, may substitute her decision for that of her subordinate. It is clearly within the power of the President not only to grant "executive clemency" but also to reverse or modify a ruling issued by a subordinate against an erring public official, where a reconsideration of the facts alleged would support the same. It is in this sense that the alleged executive clemency was granted. Adapted.

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Sec. 53, Chapter 7, Subtitle A, Title I, Book V, Administrative Code of 1987 Sec. 53. Removal of Administrative Penalties or Disabilities.-- In meritorious cases and upon recommendation of the (Civil Service) Commission, the President may commute or remove administrative penalties or disabilities imposed upon officers or employees in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service (g) Who may avail of amnesty? Tolentino vs Catoy 82 Phil 300 (1948) F:

Petitioner was a Hukbalahap who was found guilty of illegal assembly in furtherance of the Hukbalahap designs. After the judgment was promulgated, the President issued Proc. No. 76 granting amnesty to leaders and members of the Hukbalahap. Petitioner who was already serving his sentence, sent a petition to the President for his release under the provisions of the proclamation. No action was taken on his petition. He then went to court and filed an application for a writ of habeas corpus.

HELD : Though some members of the Court question the applicability of Amnesty Proclamation No. 76 to Hukbalahaps already undergoing sentence upon the date of its promulgation, the majority of the Court believe that by its context and pervading spirit the proclamation extends to all members of the Hukbalahap. It makes no exception when it announces that the amnesty is proclaimed in favor of the leaders and members of the associations known as the Hukbalahap and Pambansang Kaisahan ng Magbubukid (PKM). No compelling reason is apparent for excluding Hukbalahaps of any class or condition from its object which is "to forgive and forego the prosecution of the crimes of rebellion, sedition, etc." If total punishment is foregone in favor of Hukbalahaps who succeeded in evading arrest, it stands to reason that those who fell into the clutches of the law have a better claim to clemency for the remaining portion of a punishment fixed for the same offense. The avowed practical objective of the amnesty is to secure pledge of loyalty and obedience to the constituted authorities and encourage resumption of lawful pursuits and occupation. This objective cannot be expected to meet with full success without the goodwill and cooperation of the Hukbalahaps who have become more embittered by their capture, prosecution and incarceration. Fundamentally and in their utmost effect, pardon and amnesty are synonymous. Pardon includes amnesty. Pardon and amnesty are both construed most strictly against the state. Adapted. Macaga-an vs People 152 SCRA 430 Petitioners were charged and convicted of estafa through falsification of public and commercial documents by the Sandiganbayan. They claimed that they had been granted amnesty by President Marcos. The Sandiganbayan claimed that the benefits of amnesty were never available to petitioners under PD 1182. The SC agreed with the Sandiganbayan that in fact the petitioners were expressly disqualified from amnesty. The acts for which they were convicted

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were ordinary crimes without any political complexion and consisting only of diversion of public funds to private profit. The amnesty proclamation covered only acts in the furtherance of resistance to duly constituted authorities of the Republic. BARLONGAY CASE: Vera vs. People, 7 SCRA 152 (1963) Amnesty cannot be invoked, where the accused actually denies the commission of the offense charged. F:

In the CFI-Quezon, petitioners Vera, among others, were charged w/ the complex crime of kidnapping w/ murder of Amadeo Lozanes. Upon petitioners' motion, invoking the benefits of Amnesty Procl. of the Pres, s. of 1946, the case was referred to the Eight Guerrilla Amnesty Commission, w/c actually tried it. During the hearing, none of the petitioners admitted having committed the crime charged. In fact, Vera, the only def. who took the witness stand, instead of admitting the killing of the deceased Lozanes, categorically denied it. Hence, the Commission, in its decision held that it could not take cognizance of the case, on the ground that the benefits of the Amnesty Procl., could be invoked only by defs. in a criminal case who, admitting the commission of the crime, plead that said commission was in pursuance of the resistance movement and perpetrated against persons who aided the enemy during the Japanese occupation. Consequently, the Commission ordered that the case be remanded to the court of origin for trial. A MFR was filed by petitioners but was denied. From this order of the Commission, petitioners appealed to the CA w/c certified the appeal to us, in view of the legal issue involved.

ISSUE: W/n persons invoking the benefit of amnesty should first admit having committed the crime of w/c they are accused. Petitioners contend that to be entitled to the benefits of Amnesty Procl. No. 8, it is not necessary for them to admit the commission of the crime charged, citing in support of their submission, among others, the case of Barrioquinto, et. al vs. Fernandez, et, al. (82 P642.) to the effect that "in order to entitle a person to the benefits of Amnesty Procl., it is not necessary that he should, as a condition precedent, admit having committed the criminal act or offense w/ w/c he is charged, and allege the amnesty as a defense; it is sufficient that the evidence, either of the complainant or the accused, shows that the offense committed comes w/in the terms of said Amnesty Procl. HELD: But said cases have been superseded and deemed overruled by the subsequent cases of Peo. vs. Llanita, et. al. (86 P 219), etc. wherein we held that-"It is rank inconsistency for appellant to justify an act or seek forgiveness for an act, according to him, he has not committed. Amnesty presupposes the commission of a crime, and when an accused maintains that he has not committed a crime, he cannot have any use for amnesty. Where an amnesty procl. imposes certain conditions, as in this case, it is incumbent upon the accused to prove the existence of such conditions. The invocation of amnesty is in the nature of a plea of confession and avoidance, which means that the pleader admits the allegations against him but disclaims liability therefor on account of intervening facts which, if proved, would bring the crime charged within the scope of the amnesty proclamation." (italics supplied.)

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At any rate, the facts established bef. the Commission do not bring the case w/in the terms of the Amnesty Procl. xxx As found by the Commission, the killing of the deceased (Lozanes) was not in furtherance of the resistance movement, but due to the rivalry bet. the Hunter's Guerrilla, to w/c he belonged, and the Vera's Guerrilla of petitioners. RAM. (8) Powers as commander-in-chief Art. VII, Sec. 18. The President shall be the Commander-in- Chief of all armed forces of the Philippines, and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when the evidence of guild is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Art. VIII, Sec. 1. xxx Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. PAGE 253


As Commander-in-Chief of all armed forces of the Philippines, the President has the following powers: a. He may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. b. He may suspend the privilege of the writ of habeas corpus, or c. He may proclaim martial law over the entire Philippines or any part thereof. Subject to: Art. VIII, Sec. 1 par. 2. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Govt. Call out the AFP to prevent lawless violence This is merely a police measure meant to quell disorder. As such, the Constitution does not regulate its exercise radically

Suspend the privilege of the writ of habeas corpus A "writ of habeas corpus" is an order from the court commanding a detaining officer to inform the court (i) if he has the person in custody, and (ii) what his basis in detaining that person. The "privilege of the writ" is that portion of the writ requiring the detaining officer to show cause why he should not be tested. Note that it is the privilege that is suspended, not the writ itself. Requisites: 1. There must be an invasion or rebellion, and 2. The public safety requires the suspension. Effects of the suspension of the privilege 1. The suspension of the privilege of the writ applies only to persons "judicially charged" for rebellion or offenses inherent in or directly connected with invasion (Art. VII, Sec. 18, par. 5). Such persons suspected of the above crimes can be arrested and detained without a warrant of arrest.

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"Judicially charged" as used in the Constitution is imprecise. For if one were already judicially charged, his detention would be legal and so he could no longer petition for habeas corpus. Habeas corpus precisely contemplates a situation in which a person is being detained without being charged in court. Thus, the provision should read "one who is suspected of complicity in" the two crimes above. As a general rule, no person could be arrested without a warrant of arrest (validly issued upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses, (cf. Art. III, Sec. 2), unless (i) the arrest was made in connection with a crime committed in the presence of the detaining officer, or (ii) the privilege of the writ was suspended. If the public officer arrests him without a warrant, the officer becomes liable for "arbitrary detention" under Art. 124 of the RPC, and a petition for habeas corpus can be filed to seek his release. The suspension of the privilege does not make the arrest without warrant legal. But the military is, in effect, enabled to make the arrest, anyway since, with the suspension of the privilege, there is no remedy available against such unlawful arrest (arbitrary detention). The arrest without warrant is justified by the emergency situation and the difficulty in applying for a warrant considering the time and the number of persons to be arrested. But the crime for which he is arrested must be one related to rebellion or the invasion. As to other crimes, the suspension of the privilege does not apply. 2. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within 3 days, or otherwise he shall be released. (Art. VII, Sec. 18, par. 6). In other words, the public officer can detain a person without warrant of arrest, but he can only do so for 72 hours. Before the lapse of 72 hours, an information must have been filed in the proper court charging him of the offense for which he was arrested. Under the Rules of Criminal Procedure, if the detainee wants a preliminary investigation to be first conducted by the fiscal, he must sign a waiver of the effects of Art. 125. (delay in the delivery of detained persons) The effect of the suspension of the privilege, therefore, is only to extend the periods during which he can be detained without a warrant. Under Art. 125, as amended by EO 272, the public officer can only detain him for 12, 18 or 36 hours depending on the gravity of the offense of which he is charged; within this time, he must be judicially charged, otherwise, he must be released. When the privilege is suspended, the period is extended to 72 hours. What happens if he is not judicially charged nor released after 72 hours? The public officer becomes liable under Art. 125 for "delay in the delivery of detained persons." As to the detainee, it is submitted that he or someone else in his behalf can file a petition for habeas corpus. For even if the suspension has a lifetime of 60 days in general, as to that person, the suspension only has an effectivity of 72 hours, so that after this time, the suspension is lifted as to him. 3. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. (Art. III, Sec. 13)

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Art. III, Sec. 13. xxx The right to bail shall not be impaired even when the privilege of the writ of HC is suspended. Excessive bail shall not be required. This new provision abrogates the ruling in Morales v Ponce- Enrile which held the contrary. Proclaim Martial Law Requisites: 1. There must be an invasion or rebellion, and 2. Public safety requires the proclamation of martial law all over the Philippines or any part thereof. Effects of the proclamation of martial law The President can: 1. Legislate 2. Order the arrest of people who obstruct the war effort. But the following cannot be done (Art. VII, Sec. 18, par. 4) 1. Suspend the operation of the Constitution. 2. Supplant the functioning of the civil courts and the legislative assemblies. The principle is that martial law is proclaimed only because the courts and other civil institutions like Congress have been shut down. It should not happen that martial law is declared in order to shut down the civil institutions. 3. Confer jurisdiction upon military courts and agencies over civilians, where civil courts are unable to function. This is the "open court" doctrine which holds that civilians cannot be tried by military courts if the civil courts are open and functioning. But if the civil courts are not functioning, then civilians can be tried by the military courts. Martial laws usually contemplates a case where the courts are already closed and the civil institutions have already crumbled, that is a "theater of war." If the courts are still open, the President can just suspend the privilege and achieve the same effect. 4. Automatically suspend the privilege of the writ of habeas corpus. This overrules the holding in Aquino v Ponce-Enrile, 59 SCRA 183 (1974), that when the President proclaims martial law, he also impliedly suspends the privilege of the writ.

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Under the present rule, the President can still suspend the privilege even as he proclaim martial law, but he must so suspend expressly. The Role of Congress a. When the President proclaims martial law or suspends the privilege of the writ, such proclamation or suspension shall be effective for a period of 60 days, unless sooner revoked by the Congress. b. Upon such proclamation or suspension, Congress shall convene at once. If it is not in session, it shall convene in accordance with its rules without need of a call within 24 hours following the proclamation or suspension. c. Within 48 hours from the proclamation or the suspension, the President shall submit a report, in person or in writing, to the Congress (meeting in joint session of the action he has taken). d. The Congress shall then vote jointly, by an absolute majority. It has two options: (i) To revoke such proclamation or suspension. When it so revokes, the President cannot set aside (or veto) the revocation as he normally would do in the case of bills. If Congress does not do anything, the measure will expire anyway in 60 days. So the revocation must be made before the lapse of 60 days from the date the measure was taken. (ii) To extend it beyond the 60-day period of its validity. Congress can only so extend the proclamation or suspension upon the initiative of the President. The period need not be 60 days; it could be more, as Congress would determine, based on the persistence of the emergency. If Congress fails to act before the measure expires, it can no longer extend it until the President again redeclares the measure, for how do one extend something that has already lapsed? Note that Congress cannot "validate" the proclamation or suspension, because it is already valid. It is thus restricted to the 2 measures above. If Congress extends the measure, but before the period of extension lapses, the requirements for the proclamation or suspension no longer exist, Congress can lift the extension, since the power to confer implies the power to take back. If Congress does not review or lift the order, this can be reviewed by the Supreme Court pursuant to the next section. The Role of the Supreme Court The Supreme Court may review, in an appropriate proceeding filled by any citizen, the sufficiency of the factual basis of (a) the proclamation of martial law or the suspension of the privilege of the writ, or (b) the extension thereof. It must promulgate its decision thereon within 30 days from its filing. (Art. VII, Sec. 18 par. 3) PAGE 257


This is because judicial power includes the duty to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Art. VIII, Sec. 1, par. 2) The jurisdiction of the SC may be invoked in a proper case. A petition for habeas corpus is one such case. When a person is arrested without a warrant for complicity in the rebellion or invasion, he or someone else in his behalf has the standing to question the validity of the proclamation or suspension. But before the SC can decide on the legality of his detention, it must first pass upon the validity of the proclamation or suspension. The test to be used by the Supreme Court in so reviewing the act of the President in proclaiming or suspending, or the act of Congress in extending, is the test of arbitrariness which seeks to determine the sufficiency of the factual basis of the measure. The question is not whether the President or Congress acted correctly, but whether he acted arbitrarily in that the action had no basis in fact. Deciding on whether the act was arbitrary amounts to a determination of whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction, which is now made part of judicial power by Art. VIII, Sec. 1, par. 2. This curbs radically the application of the political question doctrine. This test was taken from the case of Lansang v Garcia, 42 SCRA 446 (1971). The issue there raised was whether in suspending the privilege of the writ in 1971, Marcos had a basis for doing so. The SC, in considering the fact that the President based his decision on (a) the Senate report on the condition in Central Luzon and (b) a closed door briefing by the military showing the extent of subversion, concluded that the President did not act arbitrarily. One may disagree with his appreciation of the facts, but one cannot say that it is without basis. [In this case of Lansang vs. Garcia, the SC held unanimously that it has the authority to inquire into the existence of the factual basis in order to determine the constitutional sufficiency thereof. This holding of the SC is now found in Art. VII, Sec. 18, par. 3.] With this test and the new provisions in the 1987 Constitution, the case of Garcia-Padilla v Ponce Enrile, 121 SCRA 472 (1983), is, at last, overruled, and may it be so always. In that case, the SC held that the President's proclamation of martial law is beyond judicial review, and that the citizen can only trust that the President acts in good faith. The cases of Barcelon v Baker and Montenegro v Castaneda, which ruled that the validity of the suspension of the privilege was a political question, are likewise buried in the grave of judicial history. There are 4 ways, then, for the proclamation or suspension to be lifted: 1) Lifting by the President himself 2) Revocation by Congress 3) Nullification by the Supreme Court 4) Operation of law after 60 days

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Military Trial of Civilians Void Even Under Martial Law, If Civil Courts Are Open. (Art. VII, Sec. 18, par. 5.). In Aquino vs Military Commission No. 2, 63 SCRA 546, the SC upheld the power of the President to create military tribunals authorized to try not only military personnel but also civilians even if at that time civil courts were open and functioning, thus rejecting the "open court" theory. The SC there held: "Martial law creates an exception to the general rule of exclusive subjection to the civil jurisdiction, and renders offenses against the laws of war, as well as those of a civil character, triable by military tribunals. Public danger warrants the substitution of executive process for judicial process. The immunity of civilians from military jurisdiction, must, however, give way in areas governed by martial law. xxx In the case of Olaguer vs Military Commission No. 34, 150 SCRA 144, the Aquino vs. Military Commission No. 2 decision was reversed. According to the SC, civilians who are placed on trial for civil offenses under general law are entitled to trial by judicial process. Since we are not enemy-occupied territory nor are we under a military govt. and even on the premise that martial law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable by the civil courts that have remained open and have been regularly functioning. The assertion of military authority over civilians cannot rest on the President's power as Commander in Chief or on any theory of martial law. As long as civil courts remain open and are regularly functioning, military tribunals cannot try and exercise jurisdiction over civilians for offenses committed by them and which are properly cognizable by civil courts. To hold otherwise is a violation of the right to due process. "The presiding officer at a court martial is not a judge whose objectivity and independence are protected by tenure and undiminshed salary and nurtured by the judicial tradition, but is a military officer. Substantially different rules of evidence and procedure apply in military trials. Apart from these differences, the suggestion of the possibility of influence on the actions of the court-martial by the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct command and authority over its members is a pervasive one in military laws, despite strenuous efforts to eliminate the danger. (9) Emergency powers Art. VI, Sec. 23. xxx (2) In times of war or other national emergency, the Congress, may, by law, authorize the President, for a limited period, and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. This grant of emergency power to the President is different from the Commander-inChief clause. When the President acts under the Commander-in-Chief clause, he acts under a constitutional grant of military power, which may include the law-making power. But when the President acts under the emergency power, he acts under a Congressional delegation of lawmaking power.

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The scope of the grant is such "powers necessary and proper to carry out a declared national policy." Under the 1935 Constitution, this was construed the power to issue rules and regulations to carry out the declared policy. The 1987 Constitution, it is submitted, does not change the scope. "Power necessary and proper" should mean legislative power, because Congress is only allowed to delegate legislative power, being its only inherent power. Its other powers are only granted to it by the Constitution, and so it cannot delegate what has only been delegated to it. This power is (1) for a limited period, and (2) subject to such restrictions as Congress may provide. The power ceases (a) upon being withdrawn by resolution of the Congress, or, if Congress fails to adopt such resolution, (b) upon the next (voluntary) adjournment of Congress. For the fact that Congress is able to meet in session uninterruptedly and adjourn of its own will proves that the emergency no longer exists is to justify the delegation. This rule or the termination of the grant of emergency powers is based on decided cases, which in turn became Art. VII, Sec. 15 of the 1973 Constitution. In Araneta v Dinglasan, 84 Phil 368 (1949), the Congress granted the President emergency powers to fix rentals of houses. After the war, Congress held a special session. The SC held that the emergency power lasted only until Congress held its regular session. The fact that Congress could now meet meant that there was no emergency anymore that would justify the delegation. In the cases of Rodriguez v Treasurero, involving the law made by Pres. Quirino appropriating the sum of money for the operation of the government; Barredo v COMELEC, involving another law made by Pres. Quirino appropriating an amount to defray the expenses for an election, and Guevarra v Collector of Customs, involving a regulation of export, the SC held that the emergency power that enabled the President to legislate ceased the moment Congress could meet in regular session. At the very least, said the SC in Rodriguez v Gella, 92 Phil 603 (1953), it should cease upon the approval of a resolution by Congress terminating such grant. In this case, the Congress enacted a bill precisely terminating the grant of emergency power, but this was vetoed by the President. The SC ruled that the vetoed bill should be deemed a resolution that terminates the grant. Araneta v Dinglasan, 84 Phil 368 (1949) F:

The petitions challenge the validity of EOs of the Pres. avowedly issued in virtue of CA 671. They rest their case chiefly on the proposition that the Emergency Powers Act (CA 671) has ceased to have any force and effect.

HELD: CA 671 became inoperative when Congress met in regular session on 5/25/46, and the EOs were issued w/o authority of law.

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CA 671 does not in term fix the duration of its effectiveness. The intention of the Act has to be sought for in its nature, the object to be accomplished, the purpose to be subserved, and its relation to the Consti. Art. VI of the 1935 Consti. provides that any law passed by virtue thereof should be "for a limited period." The words "limited period" are beyond question intended to mean restrictive in duration. Emergency, in order to justify the delegation of emergency powers, "must be temporary or it can not be said to be an emergency." It is to be presumed that CA 671 was approved w/ this limitation in view. The opposite theory would make the law repugnant to the Consti., and is contrary to the principle that the legislature is deemed to have full knowledge of the constitutional scope of its powers. The assertion that new legislation is needed to repeal the act would not be in harmony w/ the Consti. either. If a new and different law were necessary to terminate the delegation, the period for the delegation would be unlimited, indefinite, negative and uncertain; "that w/c was intended to meet a temporary emergency may become permanent law," for Congress might not enact the repeal, and even if it would, the repeal might not meet w/ the approval of the Pres., and the Congress might not be able to override the veto. Further, this would create the anomaly that, while Congress might delegate its powers by simple majority, it might not be able to recall them except by a 2/3 vote. xxx. RAM. Rodriguez v Gella, 92 Phil 603 (1953) F:

On 12/16/41, CA 671 was approved declaring a state of total emergency as a result of war involving the Phils. and authorizing the Pres. to promulgate rules and regulations to meet such emergency." In 1949, the SC decided that said emergency powers ceased as early as 1945. Here, the issue again is w/n CA 671 is still effective. It appears that in 1952, the Pres. issued EOs 545 and 546 (for appropriation of funds for public works and for relief in the provinces and cities visited by typhoons, floods, etc.) The Congress passed House Bill 727 declaring that "was has long ended" and that the "need for the grant of such unusual powers to the Pres. has disappeared," and for that reason , Congress repealed all the Emergency Powers Acts of the Pres. However, this was vetoed by the Pres. Petitioners seek to invalidate said EOs.

HELD: Although House Bill 727, has been vetoed by the Pres. and did not thereby become a regular statute, it may at least be considered as a concurrent resolution of the Congress formally declaring the termination of the emergency powers. To contend that the Bill needed presidential acquiescence to produce effect, would lead to the anomalous, if not absurd situation that, "while Congress while delegate its powers by a simple majority, it might not be able to recall them except by 2/3 vote. xxx Adapted. Barlongay: Notice the apparent inconsistency bet. the Constitution and the cases. The Consti. [Art. VI, Sec. 23 (2)] states that the emergency powers shall cease upon the next adjournment of Congress unless sooner withdrawn by resolution of Congress whereas the cases tell us that the emergency powers shall cease upon resumption of session. To reconcile the two, I believe that it would not be enough for Congress to just resume session in order that the emergency powers shall cease. It has to pass a resolution withdrawing such emergency powers, otherwise such powers shall cease upon the next adjournment of Congress.

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(10) Contracting and guaranteeing foreign loans Art. VII, Sec. 20. The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government, or government-owned or controlled corporations, which would have the effect of increasing the foreign debt, and containing other matters provided by law. Art. XII, Sec. 21. Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public. Republic Act 4860 AN ACT AUTHORIZING THE PRESIDENT OF THE PHILIPPINES TO OBTAIN SUCH FOREIGN LOANS AND CREDITS, OR TO INCUR SUCH FOREIGN INDEBTEDNESS, AS MAY BE NECESSARY TO FINANCE APPROVED ECONOMIC DEVELOPMENT PURPOSES OR PROJECTS, AND TO GUARANTEE, IN BEHALF OF THE REPUBLIC OF THE PHILIPPINES, FOREIGN LOANS OBTAINED OR BONDS ISSUED BY CORPORATIONS OWNED OR CONTROLLED BY THE GOVERNMENT OF THE PHILIPPINES FOR ECONOMIC DEVELOPMENT PURPOSES INCLUDING THOSE INCURRED FOR PURPOSES OF RELENDING TO THE PRIVATE SECTOR, APPROPRIATING THE NECESSARY FUNDS THEREFORE, AND FOR OTHER PURPOSES. Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: Sec. 1. The President of the Philippines is hereby authorized in behalf of the Republic of the Philippines to contract such loans, credits and indebtedness with foreign governments, agencies or instrumentalities of such foreign governments, foreign financial institutions, or other international organizations, with whom, or belonging to countries with which, the Philippines has diplomatic relations, as may be necessary and upon such terms and conditions as may be agreed upon, to enable the Government of the Republic of the Philippines to finance, either directly or through any government office, agency or instrumentality or any government-owned or controlled corporation, industrial, agricultural or other economic development purposes or projects authorized by law: Provided, That at least seventy-five per cent shall be spent for purposes of projects which are revenue-producing and self-liquidating, such as electrification, irrigation, river control and drainage, telecommunication, housing, construction and improvement of highways and bridges, airports, ports and harbors, school buildings, water works and artesian wells, air navigation facilities, development of fishing industry, and other: Provided, That such foreign loans shall be used to meet the foreign exchange requirements or liabilities incurred in connection with said development projects to cover the cost of equipment, related technical services and supplies, where the same are not obtainable within the Philippines at competitive prices as well as part of the peso costs, other than working capital and operational expenses not exceeding twenty per cent of the loan: Provided, further, That in the case of roads, bridges, irrigation, portworks, river controls, airports and power, the amount shall not exceed seventy per cent of the loan.

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The authority of the President of the Philippines as herein provided shall include the power to issue, for the purposes hereinbefore stated, bonds for sale in the international markets the income from which shall be fully tax exempt in the Philippines. Sec. 2. The total amount of loans, credits and indebtedness, excluding interests, which the President of the Philippines is authorized to incur under this Act shall not exceed one billion United States dollars or its equivalent in other foreign currencies at the exchange rate prevailing at the time the loans, credits and indebtedness are incurred: Provided, however, That the total loans, credits and indebtedness incurred under this Act shall not exceed two hundred fifty million in the fiscal year of the approval of this Act, and two hundred fifty million every fiscal year thereafter, all in United States dollars or its equivalent in other currencies. All loans, credits and indebtedness under the preceding section shall be incurred only for particular projects in accordance with the approved economic program of the Government and after the plans for such projects shall have been prepared by the offices or agencies concerned, recommended by the National Economic Council and the Monetary Board of the Central Bank of the Philippines, and approved by the President of the Philippines. Sec. 3. The President of the Philippines is, likewise, hereby authorized, in behalf of the Republic of the Philippines, to guarantee, upon such terms and conditions as may be agreed upon, foreign loans extended directly to, or bonds for sale in international markets issued by, corporations owned or controlled by the Government of the Philippines for industrial, agricultural or other economic development purposes or projects authorized by law, such as those mentioned in Section one of this Act, including the rehabilitation and modernization of the Philippine National Railways, the cash capital requirements of the Land Bank , electrification, irrigation, river control and drainage, telecommunication, housing, construction and/or improvement of highways, housing, construction and/ or improvement of highways, airports, ports and harbors, school buildings, waterworks and artesian wells, air navigation, development of the fishing industry, iron and nickel exploitation and development, and others: Provided, That at least seventy five per cent shall be spent for purposes or projects which are revenue-producing and self-liquidating. The loans/ or bonded indebtedness of government-owned or controlled corporations which may be guaranteed by the President under this Act shall include those incurred by government-owned or controlled financial institutions for the purpose of re-lending to the private sector and the total amount thereof shall not be more than five hundred million United States dollars or its equivalent in other foreign currencies at the exchange rate prevailing at the time the guarantee is made: Provided, That the governmentowned or controlled financial institutions shall re-lend the proceeds of such loans and/ or bonded indebtedness to Filipinos or to Filipino-owned or controlled corporations and partnerships, at least sixty-six and two-thirds per centum of the outstanding and paid-up capital of which is held by Filipinos at the time the loan is incurred, such proportion to be maintained until such time as the loan is fully paid: Provided, however, That during anytime that any amount of the loan remains outstanding, failure to meet with the capital ownership requirement shall make the entire loan immediately due and demandable, together with all penalties and interests, plus an additional special penalty of two per centum on the total amount due. Sec. 4. The implementation of this Act shall be subject to, and governed by, the provisions of Executive Order 236, dated February 13, 1957, prescribing procedures for the planning of development finances, the issuance of government securities, and the disbursement of proceeds and creating the Fiscal Policy Council and the Technical Committee on Development Finance, as amended by Executive Order No. 236, dated May 26, 1966, not inconsistent with this Act, which are hereby adopted by reference and made an integral part of this Act. Sec. 5. It shall be the duty of the President, within thirty days after the opening of every regular session, to report to the Congress the amount of loans, credits and indebtedness contracted, as well as the guarantees extended, and the purposes and projects for which the loans, credits and

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indebtedness were incurred, and the guarantees extended, as well as such loans which may be reloaned to Filipino-owned or controlled corporations and similar purposes. Sec. 6. The Congress shall appropriate the necessary amount of any funds in the National Treasury not otherwise appropriated, to cover the payment of the principal and interest on such loans, credits or indebtedness as and when they shall become due. Sec. 7. This Act shall take effect upon its approval. Approved, September 8, 1966.

Does Congress have to be consulted by the President when he contracts or guarantees foreign loans that increase the foreign debt of the country? The affirmative view cites Art. VI, Sec. 24 which holds that all bills authorizing increase of the public debt must originate exclusively from the House of Representatives, although the Senate may propose or concur with amendments. The negative, and stronger view, is that the President does not need prior approval by Congress because the Constitution places the power to check the President's power on the Monetary Board and not on Congress. Congress may, of course, provide guidelines for contracting or guaranteeing foreign loans, and have these rules enforced through the Monetary Board. But that Congress has prior approval is a totally different issue. At any rate, the present power, which was first introduced in the 1973 Constitution, was based on RA 4860 or the Foreign Loan Act. What used to be a statutory grant of power is now a constitutional grant which Congress cannot take away, but only regulate. (11) Powers over foreign affairs (a) Treaty-making power Art. VII, Sec. 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate. By reason of the President's unique position as head of state, he is the logical choice as the nation's spokesman in foreign relations. The Senate, on the other hand, is granted the right to share in the treaty-making power of the President by concurring with him with the right to amend. Treaty distinguished from executive agreements Executive agreements entered into by the President need no concurrence. The reason is that although executive agreements are a kind of international agreements, when the Constitution intends to include executive agreements, it says so specifically, as in Art. VIII, Sec. 5, par. 2, when it speaks of the power of the SC to review final judgments of lower courts in cases in PAGE 264


which the constitutionality or validity of any treaty, international or executive agreement, is in question. In holding that treaties are formal documents which require ratification with approval of the Senate, while executive agreements become binding through executive action without need of a vote by the Senate, the SC in Commissioner of Customs v Eastern Sea Trading, 3 SCRA 351 (1961), said that the difference between a treaty and an executive agreement is that a treaty is an international agreement involving political issues or changes of national policy and those involving international arrangements of a permanent character, while an executive agreement is an international agreement embodying adjustments of detail carrying out well-established national policies and traditions, and those involving arrangements of a more or less temporary nature. Examples of treaties are an agreement on tax, extradition, alliance. Examples of executive agreements are agreements relating to postal conventions, tariff rates, copyright, mostfavored nation clause. Commissioner of Customs vs. Eastern Sea Trading, 3 SCRA 351 F: Resp. Eastern was the consignee of several shipment of onion and garlic w/c arrived at the port of Mla.

from 8/5 to 9/7/54. Some shipments came from Japan and others from HK. Inasmuch as none of the shipments had the certificate required by CB Circulars Nos. 44 and 45 for the release thereof, the goods thus imported were seized and subjected to forfeiture proceedings for alleged violations of Sec. 1363 (f) of the Rev. Adm. Code, in relation to the said circulars. Said goods were then declared forfeited in favor of the govt by the Commissioner of Customs-- the goods having been, in the meantime, released to the consignees on surety bonds. On review, the Court of Tax Appeals reversed the Commissioner of Customs and ordered the aforementioned bonds to be cancelled and withdrawn. According to the CTA, the seizure and forfeiture of the goods imported from Japan cannot be justified under EO 238, not only bec. the same seeks to implement an Executive Agreement-- extending the effectivity of our Trade and Financial Agreements w/ Japan-- w/c agreement, is of dubious validity xxx owing to the fact that our Senate had not concurred in the making of said Executive Agreement.

HELD: The concurrence of said House of Congress is required by the Consti. in the making of "treaties", w/c are, however, distinct and different from "executive agreements," which may be validly entered into w/o such concurrence. [The court went on to distinguish a treaty from an executive agreement.] The agreement in question, being merely an executive agreement, there is no requirement of concurrence. RAM. USAFFE Veterans Assn. vs Treasurer 105 Phil 1030 F:

The central issue in this case concerns the validity of the Romulo-Snyder Agreement (1950) whereby the Phil. Govt. undertook to return to the US Govt. in ten annual installments, a total of $35 M dollars advanced by the US to, but unexpended by, the National Defense Forces of the Philippines. The USAFFE Veterans contended that the money delivered by the US were straight payments for military services and that therefore there was nothing to return to the US and nothing to consider as a loan. They

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also contended that the Romulo-Synder Agreement was void for lack of authority of the officers who concluded the same.

HELD: The funds involved have been consistently regarded as funds advanced and to be subsequently accounted for. Such arrangement therefore includes the obligation to return the unexpended amounts. In this case, Pres. Quirino approved the negotiations. He had power to contract loans under RA 213 amending RA 16. As to the contention that the agreement lacks ratification by the Senate, it was held that the yearly appropriations by Congress of funds as compliance with the agreement constituted ratification. But even if there was no ratification, the agreement would still be valid. The agreement is not a "treaty" as the term is used in the Constitution. The agreement was never submitted to the Senate for concurrence. It must be noted that a treaty is not the only form that an international agreement may assume. For the grant of treaty making power to the Executive and the Senate does not exhaust the power of the govt. over international relations. Consequently, executive agreements may be entered into with other states and are effective even without the concurrence of the Senate. From the point of view of international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned as long as the negotiating functionaries have remained within their powers. The distinction between an executive agreement and a treaty is purely a constitutional one and has no international legal significance. In the case of Altman vs US, it was held that an international compact negotiated between the representatives of two sovereign nations and made in the name and or behalf of the contracting parties and dealing with important commercial relations between the two countries, is a treaty internationally although as an executive agreement, it is not technically a treaty requiring the advice and consent of the Senate. Nature of Executive Agreements : There are 2 classes : (1) agreements made purely as executive acts affecting external relations and independent of or without legislative authorization, which may be termed as presidential agreements, and (2) agreements entered into in pursuance of acts of Congress, or Congressional-Executive Agreements. The Romulo-Snyder Agreement may fall under any of these two classes, for precisely on Sept. 18, 1946, Congress specifically authorized the President to obtain such indebtedness w/ the Govt of the US, its agencies or instrumentalities. Even assuming, arguendo, that there was no legislative authorization, it is hereby maintained that the Romulo-Snyder Agreement was legally and validly entered into to conform to the second category. This 2nd category usually includes money agreements relating to the settlement of pecuniary claims of citizens. Adapted. CIR vs Gotamco 148 SCRA 36 F:

The World Health Organization (WHO) is an international organization which has a regional office in Manila. It enjoys privileges and immunities which are defined in the Host Agreement entered into between the Philippines and the said organization. One of the provisions is that WHO shall be exempt from all direct and indirect taxes. When it decided to construct a building to house its own offices, it entered into a further agreement with the govt. exempting it from paying duties on any importation of materials and fixtures required for the construction. WHO informed the bidders that it was exempt from the payment of

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all fees, licenses and taxes and that their bids should not include such items. However, the CIR demanded from its contractor, Gotamco, the payment of 3% contractor's tax. The CIR questions the entitlement of the WHO to tax exemption, contending that the Host Agreement is null and void, not having been ratified by the Philippine Senate.

HELD : While treaties are required to be ratified by the Senate, less formal types of international agreements may be entered into by the Chief Executive and become binding without the concurrence of the legislative body. The Host Agreement comes within the latter category. It is a valid and binding international agreement even without the concurrence of the Philippine Senate. Adapted. (b) Deportation of undesirable aliens In Qua Chee Gan v Deportation Board, 9 SCRA 27 (1959), the SC declared that while the Deportation Board has no power to issue a warrant of arrest issued upon the filing of formal charges against certain alien for the purpose of taking him in custody to answer those charges, it has the power delegated by the President, to issue a warrant to carry out a final order based on a finding of guilt. In Go Tek v Deportation Board, 79 SCRA 17 (1976), the SC upheld the President's power to order the deportation of an alien under Sec. 69 of the Revised Administrative Code. He need not wait for the pending case to end in conviction. He may, even during the pendency of the case, order the deportation if he thinks he is undesirable to national interest. This decision to deport, said the Court, is an act of State. Qua Chee Gan vs. Deportation Board, 9 SCRA 27 (1963) F:

On 5/12/52, Sp Pros. Galang charged petitioners bef. the Deportation Board w/ having purchased dollars in the total sum of $130,000, w/o having the necessary license from the CB, and of having clandestinely remitted the same to HK; and petitioners w/ having attempted to bribe officers of the Phil. and US Governments in order to evade prosecution for said unauthorized purchase of US dollars. Following the filing of said deportation charges, a warrant for the arrest of said aliens was issued by the presiding officers of the Deportation Bd. xxx Petitioners contest the power of the Pres. to deport aliens and, consequently, the delegation to the Deportation Bd. of the ancillary power to investigate, on the ground that such power is vested in the Legislature. It is claimed that for the power to deport aliens be exercised, there must be a legislation authorizing the same.

HELD: Under CA 613, the Commissioner of Immigration was empowered to effect the arrest and expulsion of an alien, after previous determination by the Bd. of the existence of ground or grounds therefor. W/ the enactment of this law, however, the legislature did not intend to delimit or concentrate the exercise of the power to deport on the Immigration Commissioner alone. While it may really be contended that Sec. 52 of CA 613 did not expressly confer on the Pres. the authority to deport undesirable aliens, xxx but merely lays down the procedure to be observed should there be deportation proceedings, the fact that such a procedure was provided for bef. the Pres. can deport an alien-- w/c provision was expressly declared exempted from the repealing

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effect of Immigration Act of 1940-- is a clear indication of the recognition, and inferentially a ratification, by the legislature of the existence of such power in the Executive. Under the present and existing laws, therefore, deportation of an undesirable alien may be effected in 2 ways: (1) by order of the Pres., after due investigation, pursuant to Sec. 69 of RAC, and (2) by the Commissioner of Immigration, upon recommendation of the Bd. of Commissioners, under Sec. 37 of CA 613. President's power of investigation may be delegated to the Deportation Board.-- The President's power of investigation may be delegated. This is clear from a reading of Sec. 69 of the RAC w/c provides for "a prior investigation, conducted by said Executive or his authorized agent xxx the Deportation Board has been conducting the investigation as the authorized agent of the Pres. xxx Power to arrest aliens.-- Sec. 69 of the RAC does not provide for the exercise of the power to arrest. The contention xxx that the arrest of a foreigner is necessary to carry into effect the power of deportation is valid only when there is already an order of deportation. To carry out the order of deportation, the Pres. obviously has the power to order the arrest of the deportee. But, certainly, during the investigation, it is not indispensable that the alien be arrested. Power to order arrest of alien may not be delegated to Deportation Board by President.- Conceding w/o deciding that the Pres. can personally order the arrest of alien, yet such power cannot be delegated by him to the Deportation Board. The exercise of the power to order the arrest of an individual demands the exercise of discretion by the one issuing the same, to determine whether under specific circumstances, the curtailment of the liberty of such person is warranted. xxx And authorities are to the effect that while ministerial duties may be delegated, official functions requiring the exercised of discretion and judgement may not be so delegated. RAM. Go Tek vs. Deportation Board, 79 SCRA 17 (1977) F:

Petitioner was arrested for possession of fake dollars and prosecuted under Art. 168 RPC. At the same time, deportation proceedings were brought against him. He filed a petition for prohibition against the Deportation Board, contending that he could only be deported on grounds enumerated in Sec. 37 (3) of the Immigration Law (of w/c possession of fake dollars is not) and only after conviction. The CFI-Mla sustained his contention.

HELD: The President's power to deport aliens derives from Sec. 69 of the Rev. Adm. Code w/c does not specify the grounds for deportation of aliens but only provides that it be ordered after due investigation. The intention is to give the Chief Executive full discretion to determine whether an alien's residence in the country is so undesirable as to affect or inure the security, welfare, or interest of the State. The Chief Executive is the sole and exclusive judge of the existence of facts w/c warrant the deportation of aliens as disclosed in an investigation. VV. (12) Power over legislation (a) Message to Congress

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Art. VII, Sec. 23. The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time. Every 4th Monday of July, the President delivers the State of the Nation Address, which contains his proposals for legislation. Through this speech, he can influence the course of legislation that Congress can take during the regular session. (b) Prepare and submit the budget Art. VII, Sec. 22. The President shall submit to Congress within thirty days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures. The budget is the plan indicating the (a) expenditures of the government, (b) sources of financing, and (c) receipts from revenue-raising measures. This budget is the upper limit of the appropriations bill to be passed by Congress. Through the budget, therefore, the President reveals the priorities of the government. (c) Veto power Art. VI, Sec. 27 (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objection to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law as if he had signed it. (2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object. As a general rule, all bills must be approved by the President before they become law, except when (i) the veto of the President is overridden by 2/3 vote, and (ii) the bill passed is the special law to elect the President and Vice-President. This gives the President an actual hand in legislation. However, his course of action is only to approve it or veto it as a whole. (See Legislative Power of Congress)

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(d) Emergency Power Art. VI, Sec. 23. xxx (2) In times of war or other national emergency, the Congress, may, by law, authorize the President, for a limited period, and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. (See Previous Notes) (e) Fixing of tariff rates Art. VI, Sec. 28. xxx The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. The reason for the delegation is the highly technical nature of international commerce, and the need to constantly and with relative ease adapt the rates to prevailing commercial standards. (13) Immunity from suit The SC has affirmed time and again the doctrine of the President's immunity from suit. In a resolution in Carillo v Marcos, (April 1981) and in the latest case of In re Bermudez (October 1986), the Court said that it is "elementary that incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure." A related doctrine is the President's "immunity from liability". In the US case of Nixon v Fitzgerald, an employee of the Air Force was laid off due to an adverse decision of a Senate Committee made upon the insistence of Pres. Nixon, but which decision was later found to be baseless, the SC ruled that the President, whether in office or not, is absolutely immune from liability for his official acts. The Court gave three reasons for such immunity: 1. The singular importance of the Presidency and his high visibility. 2. The distraction that suits would bring to such an important official laden with enormous responsibility.

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3. The consequence that the President might hesitate at the moment of greatest peril to the nation if he knows that he would be held liable later on. In Harlow v Fitzgerald, however, the SC ruled that Cabinet members and senior aides sued for the same act as in Nixon v Fitzgerald only enjoy "qualified immunity." This immunity is less than absolute, and yet it would enable them to defeat unsubstantiated claims without resorting to trial. They are allowed to show in a preliminary manner that the claim is unsubstantial. Barlongay: Q: Does the President's immunity from suit extend to his alter egos? A: No. Carillo vs. Marcos, Res. of April 4, 1981 The President as such cannot be sued, enjoying as he does immunity from suit, but the validity of his acts can be tested by an action against the other executive officials or such independent constitutional agencies as the Commission on Elections and the Commission on Audit. VV. In re: Saturnino V. Bermudez, 145 SCRA 160 F:

In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first par. of Sec. 5 of Art. VIII of the proposed 1986 Consti., w/c provides: "Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election, is for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. xxx" Claiming that the said provision is not clear as to whom it refers, he then asks the Court "to declare and answer the question of the construction and definiteness as to who, among the present incumbent Pres. Aquino and Vice-Pres. Laurel and elected Pres. Marcos and Vice-Pres. Tolentino being referred to under the said provision.

HELD: This petition is dismissed outright for lack of jurisdiction and lack of cause of action. Prescinding from the petitioner's lack of capacity to sue, it is elementary that this Court assumes no jurisdiction over petitions for declaratory relief. More importantly, the petition amounts in effect to a suit against the incumbent Pres. Aquino and it is equally elementary that incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure. RAM. Soliven vs Makasiar; Beltran vs Makasiar 167 SCRA 393

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F:

This is the libel case involving Beltran's allegations that President Aquino was hiding under her bed. One of the issues was whether the President may initiate criminal proceedings against the petitioners through the filing of a complaint-affidavit. According to Beltran, the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit. He contended that if criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the TC's jurisdiction. This would be an indirect way of defeating her privilege of immunity from suit, since by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury.

HELD: The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive is a job that, aside from requiring all of the officeholder's time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case where the President is a complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against the accused. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. The President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by another person. RAM. Barlongay: Q: Does the President's immunity from suit extend even beyond his term? A: Yes. So long as the act was done during his term. (14) Executive Privilege In the case of US vs Nixon, President Nixon refused to release information concerning the Watergate scandal, claiming what he called "executive privilege." The US SC held his refusal invalid, declaring that neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arise. Absent a claim of need to protect military, diplomatic or sensitive national security secrets, it is difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for inspection with all the protection that the court will be obliged to provide. 2. Vice President

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a. Qualifications, election, term and oath Art. VII, Sec. 3. There shall be a Vice-President who shall have the same qualifications and term of office and be elected with and in the same manner as the President. He may be removed from office in the same manner as the President. The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation. Id., Sec. 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date six years thereafter. The President shall not be eligible for any reelection. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time. No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected. Unless otherwise provided by law, the regular election for President and VicePresident shall be held on the second Monday of May. The returns of every election for President and Vice- President, duly certified by the board of canvassers of each provinces or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of election (w/c is the 2nd Tuesday of June), open all the certificates in the presence of the Senate and House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass (i.e., tally the certificates of canvass) the votes. The persons having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes (tie), one of them shall forth with be chosen by the vote of a majority of all the members of Congress, voting separately. The Congress shall promulgate its rules for the canvassing of the certificates. The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President, or Vice-President, and may promulgate its rules for the purpose. Id., Sec. 5. Before they enter on the execution of their office, the President, the Vice-President or the Acting President shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate to myself to the service of the Nation. So help me God." (In case of affirmation, last sentence will be omitted.)

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b. Privilege and salary Art. VII, Sec. 6. The President shall have an official residence. The salaries of the President and Vice-President shall be determined by law and shall not be decreased during their tenure. No increase in said compensation shall take effect until after the expiration of the term of the incumbent during which such increased was approved. They shall not received during their tenure any other emolument from the Government or any other source. c. Prohibitions Art. VII, Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office. The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.

Art. VII, Sec. 3. xxx The Vice-President may be appointed as member of the Cabinet. appointment requires no confirmation.

Such

d. Succession Art. VI, Sec. 9. Whenever there is a vacancy in the Office of the Vice- President during the term for which he was elected, the President shall nominate a Vice-President from among the members of the Senate and the House of Representatives, who shall assume office upon confirmation by a majority vote of all the members of both houses, voting separately. Note that in case the vacancy occurs in both the offices of President and Vice-President, there is no Acting Vice-President spoken of. The reason is that the Vice-President does not have real functions when the President is around. PAGE 274


When a vacancy occurs in both offices, the Vice-President is elected in a special election. If the vacancy occurs only in the Vice-Presidency, the successor is not elected anymore, but merely chosen from the Congress. e. Removal Art. XI, Secs. 2-3 Art. XI, Sec. 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal or public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Art. XI, Sec. 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. f. Functions PAGE 275


(1) Right of succession Art. VII, Secs. 8 and 11 Art. VII, Sec. 8. In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified. The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the Vice-President shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President. Art. VII, Sec. 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the VicePresident as Acting President. Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the VicePresident shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call. If the Congress, within ten days after receipt of the last written declaration, or if not in session, within twelve days after it is required to assemble, determines by a twothirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office. (2) Membership in Cabinet Art. VII, Sec. 3. xxx The Vice-President may be appointed as member of the Cabinet. appointment requires no confirmation.

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Such


UPDATED 1/24/96 RAM

C. The Judicial Department Barlongay: Of the three departments of government, two departments (Executive and Legislative) are considered as active. On the other hand, the Judiciary is considered as passive. It is passive in the sense that it has to wait for a case to be filed before it can act. Cruz: To maintain the independence of the Judiciary, the following safeguards have been embodied in the Consti: (1) The SC is a constitutional body. It cannot be abolished nor may its membership or the manner of its meetings be changed by mere legislation. [Art. VIII, Sec. 4 (1)] (2) The members of the judiciary are not subject to confirmation by the CA. (3) The members of the SC may not be removed except by impeachment. (Art. IX, Sec. 2.) (4) The SC may not be deprived of its minimum original and appellate jurisdiction as prescribed in Art. X, Sec. 5 of the Consti. (Art. VIII, Sec. 2.) (5) The appellate jurisdiction of the SC may not be increased by law w/o its advice and concurrence. (Art. VI, Sec. 30.) (6) The SC now has administrative supervision over all lower courts and their personnel. (Art. VIII, Sec. 6.) (7) The SC has exclusive power to discipline judges of lower courts. (Art. VIII, Sec. 11.) (8) The members of the SC and all lower courts have security of tenure, w/c cannot be undermined by a law reorganizing the judiciary. (Id.) (9) They shall not be designated to any agency performing quasi-judicial or administrative functions. (Art. VIII, Sec. 12.) PAGE 277


(10) The salaries of judges may not be reduced during their continuance in office. (Art. VIII, Sec. 10.) (11) The judiciary shall enjoy fiscal autonomy. (Art. VIII, Sec. 3.) (12) The SC alone may initiate rules of court. [Art. VIII, Sec. 5 (5).] (13) Only the SC may order the temporary detail of judges. [Art. VIII, Sec. 5 (3)] (14) The SC can appoint all officials and employees of the judiciary. [Art. VIII, Sec. 5 (6)] 1. The Supreme Court a. Composition Art. VIII, Sec. 4. (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof. (2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court, en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. Creation The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. (Art. VIII, Sec. 1, par. 1.) The Supreme Court is a constitutional body. As such it cannot be abolished by the Congress for the power to destroy only resides in the one who has the power to create. The lower courts (Court of Appeals, Regional Trial Courts, Municipal Trial Courts, Metropolitan Trial Courts, Municipal Circuit Trial Courts), on the other hand, are established by law, and so could be abolished by law, provided the security of tenure is not undermined. Composition The Supreme Court shall be composed of a Chief Justice and 14 Associate Justices. [Art. VIII, Sec. 4(1)] PAGE 278


Under the 1935 Constitution, the Supreme Court was composed of eleven (11) justices in all; in 1973, fifteen (15) Justices. Mode of Sitting It may sit en banc, or in its discretion, in divisions of 3, 5 or 7 members (or 5, 3 or 2 divisions). [Art. VIII, Sec. 4(1)] In 1935, the rule was that the SC may sit en banc or in 2 divisions, "unless otherwise provided by law." Congress decided against allowing the SC to sit in 2 divisions on the theory that there is only one Supreme Court. And so, it provided in the Judiciary Act of 1948 the rule that the SC may only sit en banc. But the reality was that the dockets were crowded. This prompted the framers to eliminate one phrase "unless otherwise provided by law" in 1956, and in effect leave the decision to the SC on whether to sit en banc or in 2 divisions, if it sat on divisions. In 1987, not only was the discretion retained, but also the divisions were increased. There may be 5, 3 or 2 divisions made up of 3, 5 or 7 members, respectively. At present, the SC sits either en banc or in 3 divisions. One Supreme Court When the SC sits in divisions, it does not violate the concept of a "one Supreme Court" because, according the United States v Limsiongco, 41 Phil 94 (1920), the divisions of the SC do not diminish its authority, because although it sits in divisions, it remains and co-functions as one body. This "one Supreme Court" doctrine is strengthened by the provision that "when the required number (in a division) is not obtained, the case shall be decided en banc: provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. [Art. VIII, Sec. 4(3)] Strict Composition In Vargas v Rilloraza, 80 Phil 297 (1948), the SC held that the temporary designation of judges of the CFI and the Court of Appeals in the Supreme Court to constitute a quorum due to disqualification of some of the justices, is unconstitutional. There is but one Supreme Court whose membership appointments are permanent. Vargas v Rilloraza, 80 Phil 297 (1948) F: Pet. Vargas filed a motion assailing the constitutionality of People's Court Act w/c provides that any justice of the SC who held any office or position under the Phil Exec. Commission or under the govt called

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Phil. Republic, may not sit and vote in any case brought to that court under sec. 13 hereof in w/c the accused is a person who held any office or position under either both the Phil. Exec. Commission and the Phil. Republic or any branch, instrumentality or agency thereof. If on account of such disqualification, or bec. of any of the grounds of disqualification of judges, in R 126, sec. 1 of the ROC, or on account of illness, absence of temporary disability, the requisite number of justices necessary to constitute a quorom in any case is not present, the Pres. may designate such no. of judges of the CFI, judges at large of CFI, cadastral judges, having none of the disqualification set forth in the above law, as may be necessary to sit temporarily as justice of the SC in order to form a quorom.

HELD: (1) Congress does not have the power to add to the existing grounds for disqualification of a justice of the SC. To disqualify any of these constitutional component member of the courtespecially as in this case, a majority of them-- in a treason case, is nothing short of depriving the court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power. It would seem evident that if Congress could disqualify members of SC in taking part in the hearing and determination of certain "collaboration" cases, it could extend the disqualification to other cases. (2) The designation provided (a CFI-judge to sit as a SC justice if the SC does not have the required quorum) is repugnant to the constitutional requirement that members be appointed by the Pres. w/ the consent of the CA. (This was under the 1935 Constitution w/c required confirmation from the Commission on Appointments.) It will result in a situation wherein 6 members sitting will not be appointed and confirmed in accordance w/ the Consti. (3) However brief or temporary may be the action or participation of a judge designated, there is no escaping the fact that he would be participating in the deliberations and acts of the SC and if allowed to do so, his vote would count as much as any regular justice. xxx Adapted. b. Appointment and qualifications Art. VIII, Sec. 7. (1) No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or m ore a judge of a lower court or engaged in the practice of law in the Philippines. Judicial and Bar Council Id., Sec. 8. (5) The (Judicial and Bar) Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it. Id., Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

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Qualifications (1) Natural-born citizen [Art. VIII, Sec. 7(1)] (2) At least 40 years of age (id.) (3) At least 15 years of experience as a judge of lower court, or practice of law in the Philippines (id.) (4) Of proven competence, integrity, probity and independence [Art. VIII, Sec. 7(3)] c. Salary Art. VIII, Sec. 10. The salary of the Chief Justice and of the Associate Justices of the Supreme court and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased. Unless the Congress provides otherwise, the CJ shall receive an annual salary of P 240,000 and the Associate Justices shall receive P 204,000 each. (Art. XVIII, Sec. 17.) The salary of lower court judges is not initially fixed by the Constitution but by the law. 10.)

During their continuance in office, their salary shall not be decreased. (Art. VIII, Sec.

But it may be increased by law, to take effect at once. Reasons are: [one] the Constitution does not prohibit it; [two] the Judiciary plays no part in the passage of the law increasing their salary unlike the Congress and the Executive, and so there can be no conflict of interest; and [three] this will promote the independence of the Judiciary. Is the imposition of income tax on the salary of the Justices and Judges a diminution of their salary as prohibited by the Constitution? Under the 1935 Constitution (Art. VIII, Sec. 9), it was provided that the members of the Judiciary "shall receive such compensation as may be fixed by law, which shall not be diminished during their continuance in office." In Perfecto v Meer, 85 Phil 552 (1950), the SC ruled that salaries of judges were not subject to income tax, for such would be a diminution of their salary, in contravention of the Constitution. This happened after Justice Perfecto refused to pay the assessment of income tax made upon him by the Collector.

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Responding to this, Congress passed a law providing that the constitutional provision against the diminution of salaries of members of the judiciary should not be interpreted to mean an exemption from income tax. (Sec. 13, RA 590.) But the Court struck this statute down as unconstitutional when as in the previous case, Judge Endencia refused to pay his taxes; thereby giving the SC an opportunity to make the pronouncement in the case of Endencia v David, 93 Phil 696 (1953). The SC ruling invalidating the statute was based on the reason that the legislature had no power to interpret the Constitution, such power being lodged in the judicial branch, and so when it did, it violated the separation of powers under the Constitution.

Compare the 1973 Constitution, Art. XV, Sec. 6 Aware of this ruling, the framers of the 1973 Constitution clearly provided in Art. XV, Sec. 6 that: Art., Sec. 6. No salary or any form of emolument of any public officer or employee, including constitutional officers, shall be exempt from the payment of income tax. thereby avoiding a SC contrary, self-defensive ruling. This provision in the 1973 Constitution, however, is not found in the 1987 Constitution, prompting some judges including Nitafan, to contend that the old ruling in Perfecto and Endencia is thereby deemed revived. But the SC this time did not uphold the old ruling. Not exempt from income tax In Nitafan v Commissioner of Internal Revenue, (July 1987), the Court ruled that under the 1987 Constitution, the salaries of members of the Judiciary are not exempt from taxes. It anchored its decision on the deliberation of the Constitutional Commission, that is, on the legislative history of the present Art. VIII, Sec. 10. A draft of the present Art. VIII, Sec. 10 when originally presented to the body, expressly exempted the salary of judges from taxation. But when this draft was discussed on second reading, the sentiment was against the exemption, the reason being that like any other citizen, judges and justices must pay their share in the burden of maintaining the government. So this express exemption was deleted from Art. VIII, Sec. 10 and so it was when the draft was adopted by the body. There was a plan to insert a similar provision as that found in Art. XV, Sec. 6 of 1973, but through oversight, the constitutional commission failed to insert one. Yet, the intent was clear to have one, and so it must be read into the Constitution, the SC concluded. d. Security of Tenure

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Art. VIII, Sec. 11. The members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years, or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. Id., Sec. 2. xxx No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members. Reorganization It is highly doubtful if this provision applies to the SC. The power to reorganize involves the power to create and destroy. Since the SC is a creation of the Constitution and not of Congress, it may not be created nor destroyed, and ultimately reorganized by Congress. De la Lallana vs. Alba, 112 SCRA 294 (1982) F: Sec. 144 of BP 129 replaced the existing court system, w/ the exception of the SC and the SB, w/ a new one and provided that upon the completion of the reorganization by the Pres., the courts affected "shall be deemed automatically abolished and the incumbents thereof shall cease to hold office." Petitioner, judge of the city court of Olangapo, and 7 members of the Bar questioned the validity of the Act in an action for prohibition, on the ground that it contravened the security of tenure of judges. They sought to bolster their claim by imputing lack of GF in the enactment of the Act and by characterizing it as an undue delegation of legislative power bec. of Sec. 41, w/c authorizes the Pres. to fix the compensation of those who would be appointed under it "along the guidelines set forth in LOI No. 93, pursuant to PD 985, as amended by PD 1597." HELD: The imputation of lack of GF disregards the fact that the Act was the product of careful study and deliberation not only by the BP but also by a Presidential study committee (composed of the Chief Justice and Minister of Justice as co-chairmen, w/ members drawn from the SC and Ministry of Justice.) The study group called attention to the clogged dockets of the courts and the possible worsening of the situation as a result of population growth and rising expectations, and the adverse effect of this on the developmental programs of the govt. It was this problem w/c the Act seeks to solve. xxx [T]he abolition of an office is w/in the competence of a legislative body if done in GF. The test is whether the abolition is in GF. As that element is present in the enactment of BP 129, the lack of merit of the petition becomes apparent. (2) However, while there can be no claim to security of tenure where the office no longer exists, in their effect there is no difference bet. removal and the abolition of office. In either case, the effect on the incumbent is one of separation. Accordingly, in the implementation of the law it would be in keeping w/ the spirit of the Consti. that, as far as incumbent justices and judges are concerned, the SC be consulted and that its view be accorded fullest consideration. This is not rendering advisory opinion bec. there is no question of law involved. Neither is there intrusion into the appointing process bec. only incumbents are involved.

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(3) As to the charge of undue delegation, the provisions of Sec. 41 that the Pres. should fix the compensation of those who will be appointed to the new courts "along the guidelines set forth in LOI No. 93, pursuant to PD 985, as amended by PD 1597" constitutes a sufficient ground. VV. e. Removal Art. VIII, Sec. 11. The members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years, or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. Art. XI, Sec. 2. The xxx Members of the Supreme Court xxx may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. See procedure for impeachment under Other Powers of Congress. Members of the SC cannot be removed except by impeachment. Thus, a SC justice cannot be charged in a criminal case or a disbarment proceeding, because the ultimate effect of either is to remove him from office, and thus circumvent the provision on impeachment. f. Fiscal Autonomy Art. VIII, Sec. 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released. g. Jurisdiction (1) The Power of Judicial Review Art. VIII, Sec. 5. xxx (2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. PAGE 284


The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. (Art. VIII, Sec. 1, par. 1.) Scope of the Judicial Power Judicial power includes the duty of the courts of justice to: (Art. VIII, Sec. 1, par. 2) 1. Settle actual controversies, involving rights which are legally demandable and enforceable; and This is the classical definition of judicial power that contemplates a case where the party-plaintiff has a cause of action against the party-defendant, that is, the plaintiff has a right corresponding to the defendant's obligation, which right was violated by the defendant, thereby resulting in injury. 2. Determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. As early as Angara v Electoral Tribunal, the SC held that when it performs his checking function of the co-equal branches, it is merely performing a duty imposed upon it by the Constitution; that it acts as the mechanism that implements the "supremacy of the Constitution." The extent to which it exercises this function, however, has been limited by the political question doctrine. (1) Power of Judicial Review Angara v Electoral Commission, 63 Phil 139 (1936). F:

In 1935, the National Assembly adopted a resolution that "all members-elect, with no election protest filed on or before 3 December 1935 are deemed elected." The Electoral Commission, a constitutional body, on the other hand set the 9 December 1935 as the deadline for the filing of election protest. Ynsua, who lost to Angara, filed a motion of protest (complaint) on 8 December 1935. This was entertained by the Electoral Commission. Angara contended that the deadline set by the National Assembly was controlling. Who prevailed?

HELD: The SC, through J. Laurel, ruled for Ynsua, thereby upholding the authority of the Electoral Commission, in view of the constitutional provision granting the electoral Commission jurisdiction over election protests. In justifying the power of judicial review, J. Laurel pointed out that when the court allocated constitutional boundaries, it neither asserts supremacy, nor annuls the acts of the legislature. It simply carries out the solemn and sacred obligations imposed upon it by the constitution to determine conflicting claims and to establish for the parties the rights which the

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constitution grants 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. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. xxx Adapted. a. Conditions for the Exercise of Judicial Review In People v Vera, 66 Phil 56 (1937), J. Laurel laid down the doctrine that judicial review can only be exercised in an actual case and controversy. This means (1) a party with a personal and substantial interest, (2) an appropriate case, (3) a constitutional question raised at the earliest possible time, and (4) a constitutional question that is the very lis mota of the case, i.e. an unavoidable question. Political Questions In PBA v COMELEC, 140 SCRA 455, we see a reversal of judicial review. The case was clearly a justiciable controversy. Is the resignation submitted by Marcos, which was conditioned on the election, proclamation and assumption into office by the elected President, a valid resignation as to authorized the Batasan to pass a Snap Election Law? The Court could have validly issued an injunction to stop the COMELEC from proceeding with the preparations for the election. But it did not, citing its delay in deciding the case and the sentiments of the people that developed in the meantime as reason for its inaction. According to the court, what at first was a legal question became a political question because it was overtaken by events. [In this case, no 7 Justices voted to dismiss the petitions, and 5 Justices voted to declare the statute unconstitutional. In accordance w/ Javellana vs. Exec. Sec., J. Teehankee was of the view that as there were less than ten votes for declaring BP 883 unconstitutional, the petitions should be dismissed. ) VV: A Court which does not issue an injunction to enjoin an official act when it could have issued one is actually deciding the case in favor of the validity of the act. Failure to issue an injunction is as much an exercise of judicial review. In Romulo v Yniguez, infra, we see another trend of judicial review. What seems like a legal question when viewed in isolation (namely, whether the rules of the Batasan enabling it to shelve a complaint for impeachment against the President is constitutional.) is really a political question when viewed in a broader context (i.e., that the case was filed against the Speaker of a co-equal branch to compel him by mandamus to recall the complaint from the archive, and that the ultimate result of the case was to question the decision of the Batasan to shelve the case, a matter, that is solely committed to that department.) Said the SC: By denying Mitra's motion to recall the resolution of impeachment, the BP in effect confirmed the action of its committee dismissing the resolution. This places the matter beyond review by this Court. While the petition is directed at the Committee on Justice, Human PAGE 286


Rights and Good Govt., it is actually directed at the BP bec. the committee's action, dismissing the resolution of impeachment, was approved by the BP. Indeed, an interference by the judicial dept. w/ the work of a legislative committee would be tantamount to an intereference w/ the work of the legislature itself. Yet, despite the really political nature of the question, the SC passed on the validity of the rules to erase doubts that may still be entertained. Dumlao v COMELEC (95 SCRA 392) F:

Section 4 of BP 52 provided that any retired elective local official who had received retirement pay to which he was entitled under the law and who have been 65 years old at the commencement of the term of office to which he sought to be elected, was not qualified to run for the same elective local office from which he had retired. Dumlao filed for prohibition to enjoin the enforcement of the law, claiming that this was directed at him as former governor of Nueva Vizcaya.

HELD: The SC held that (a) he had no standing, since he had not been injured by the operation of the law, no petition for his disqualification having been filed and (b) the action was a request for advisory opinion. And yet, the SC upheld the validity "because of paramount public interest", declaring that the legislative purpose of infusing younger blood in local government was valid. Adapted. Barlongay: Q: What are the two aspects of political questions? A: (1) those questions that are left to the people in their sovereign capacity (2) matters w/c are lodged in the other branches of govt. Q: What is the effect of the expanded jurisdiction on the political question doctrine? A: The doctrine still exists but has been reduced in scope. b. All courts can exercise judicial review The review power of the SC implies that it has appellate jurisdiction over final judgments of lower courts on cases with constitutional issues. If so, inferior courts have original jurisdiction over constitutional cases although they decide the case only at first instance, their decision being always reviewable by the SC. Thus, for instance an RTC can rule on the constitutionality of the Anti-Subversion Law. In J.M. Tuason & Co. v CA, 3 SCRA 696 (1961), RA 2616, which provided for the expropriation of the Tatalon Estate, was claimed to be unconstitutional. This issue said the SC, could be resolved by the CFI in the ejectment case filed before it by the evictees of the estate, since the 1935 Constitution contemplated that inferior courts should have jurisdiction in cases involving constitutionality issues, that it spoke of appellate review of "final judgment of inferior

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courts" in cases where such constitutionality happens to be in issue. The 2/3 vote of the SC required by Sec. 10 of Art. VII restricted the decisions of that Court only in the exercise of its appellate jurisdiction. Said the court: The Consti. contemplates that the inferior courts should have jurisdiction in cases involving the constitutionality of any treaty or law, for it speaks of appellate review of the final judgment of inferior courts, in cases where such constitutionality happens to be in issue. The 2/3 vote of the SC, required by Sec. 10, Art. VIII, of the 1935 Consti., conditions only decisions of that court in the exercise of its appellate jurisdiction. In Ynot v IAC 148 SCRA 659, the SC reversed the RTC's holding that it had no authority to rule on the validity of EO 626-A, banning the transporting of carabaos from one province to another. The Court pointed out, that since it has jurisdiction to review, revise, reverse, modify or affirm final judgments of lower courts in constitutional cases, then the lower courts can pass upon the validity of a statute in the first instance. The SC then struck down the law for being arbitrary and for unduly delegating legislative power. Ynot vs. IAC, 148 SCRA 659 (1987) F:

Petitioners' 6 carabaos were confiscated by the police for having been transported from Masbate to Iloilo in violation of EO 626-A. He brought an action for replevin, challenging the consitutionality of the EO. The trial court sustained the confiscation of the animals and declined to rule on the validity of the law on the ground that it lacked authority to do so. Its decision was affirmed by the IAC. Hence this petition for review.

HELD: (1) Under the provision granting the SC jurisdiction to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide final judgments of lower courts" in all cases involving the constitutionality of certain measures, lower courts can pass upon the validity of a statute in the first instance. (2) There is no doubt that by banning the slaughter of these animals (except where there at least 7 yrs. old if male and 11 yrs old if female upon the issuance of the necessary permit) the EO will be conserving those still fit for farm work or breeding and preventing their improvident depletion. We do not see, however, how the prohibition of the interprovincial transport of carabaos can prevent their indiscriminate slaughter, considering that they can be killed any where, w/ no less difficulty in on province than in another. Obviously, retaining the carabao in one province will not prevent their slaughter there, any more than moving them to another province will make it easier to kill them there. As for the carabeef, the prohibition is made to apply to it as otherwise, so says the EO, it could be easily circumsbcribed by simply killing the animal. Perhaps so. However, if the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there is no reason either to prohibit their transfer as, not to be flippant, dead meat. (3) In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the petitioner only after he had filed a complaint for recovery and given a supersedeas bond w/c was ordered confiscated upon his failure to produce the carabaos when ordered by the trial court. The EO defined the prohibition, convicted the petitioner and immediately imposed punishment, w/c was carried out forthright. The measures struck him at

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once and pounced upon the petitioner w/o giving him a chance to be heard, thus denying him elementary fair play. xxx VV. (2) Judicial Review and political questions. Art. VIII, Sec. 1. Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The second aspect of the definition of judicial power modifies the political question doctrine. As enunciated in Tanada v Cuenco, a political question is one to be decided by the people in their sovereign capacity, one in respect to which full discretionary capacity is given to the other branches of the government. It does not mean, however, that the political question doctrine has been completely abrogated by the Constitution, such that if those cases where the SC invoked the doctrine were decided now it would have to decide the case on its merits. It is submitted that what the Constitution overrules is only the ruling in Garcia Padilla v Ponce-Enrile, supra, where the SC held that the question on the validity of the proclamation of martial law is beyond judicial review, so that when the President says that there is a need for such proclamation, his words are binding on the Courts, and all that the citizen can do is trust in the good faith of the President. Indeed, as already noted in the Commander-in-Chief power of the President above, Art. VII, Sec. 18 authorizes the SC to review, in an appropriate proceeding (like a habeas corpus petition), filed by a citizen (who, under the Rules of Court, could be the detainee himself, or anyone else in his behalf), the sufficiency of the factual basis of the proclamation or suspension. Beyond this, the political question doctrine is not a dead issue. In fact, the Supreme Court continues to invoke it as in Lawyers' League for a Better Philippines v Aquino, In re Bermudez and Marcos vs Manglapus. Garcia vs BOI, 191 SCRA 288 In this case, the court ruled that it has a constitutional duty to step into the controversy and determine the paramount issue. Said the court, "[t]here is before us an actual controversy whether the petrochemical plant should remain in Bataan or should be transferred to Batangas, and whether its feedstock originally of naphtha only should be changed to naphtha and/ or liquified petroleum gas as the approved amended application of the BPC, now Luzon Petrochemical Corp. (LPC), shows. And in the light of the categorical admission of the BOI that it is the investor who has the final choice of the site and the decision on the feedstock, whether or not it constitutes a grave abuse of discretion for the BOI to yield to the wishes of the investor, national interest notwithstanding.

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The Supreme Court held that the BOI committed a grave abuse of discretion in approving the transfer of the petrochemical plant from Bataan to Batangas and authorizing the change of feedstock from naphtha only to naphtha and/or LPG for the main reason that the final say is in the investor all other circumstances to the contrary notwithstanding. No cogent advantage to the government has been shown by this transfer. This is a repudiation of the independent policy of the government expressed in numerous laws and the Constitution to run its own affairs and the way it deems best for the national interest. Dissenting : The decision of the BOI may be extremely unwise and inadvisable, but the SC may not, for that reason annul the BOI's action or prohibit it from acting on the manner that lies within its particular sphere of competence, for the Court is not a judge of the wisdom and soundness of the actions of the two other co-equal branches of the Government, but only of their legality and constitutionality. Adapted. (3) Jurisdiction over criminal cases where penalty imposed is reclusion perpetua Art. VIII, Sec. 5. The Supreme Court shall have the following powers: xxx (2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in: higher.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or

In People v Daniel, 86 SCRA 511 (1978) and as affirmed in People v Ramos, 88 SCRA 466 (1979), both being rape cases where the trial court imposed lesser penalties because of misappreciation of the aggravating and qualifying circumstances and on appeal the penalty was increased. The majority opinion held that "henceforth, should the CA be of the opinion that the penalty of death or reclusion perpetua should be imposed in any criminal case appealed to it where the penalty imposed by the trial court is less than reclusion perpetua, the said Court, with comprehensive written analysis of the evidence and discussion of the law involved (should) render judgment expressly and explicitly imposing the penalty of either death or reclusion perpetua as the circumstances warrant, refrain from entering judgment, and forthwith certify the case and elevate the entire record thereto to this Court for review." Chief Justice Castro, for the majority, explained: Art. X, Sec. 5 (2) (d) [now Art. VIII, Sec. 5 (2) (d)] provides that the SC shall have appellate jurisdiction over "final judgements and decrees of inferior courts" in criminal in w/c the "penalty imposed is death or life imprisonment." Unless the CA renders judgment and imposes the penalty of death or reclusion perpetua, there would be no judgment for SC to review. Indeed, Section 34 of the Judiciary Act of 1948 and the present Rule 124, Sec. 13 provide that, whenever the CA should be of the opinion that the penalty of death or life imprisonment should be imposed, "the said court shall refrain from entering judgment thereon, and shall forthwith certify the case brought before it on appeal," which that it is not prohibited from rendering judgment. In other words, the CA is not prohibited from rendering judgment but from "entering judgment." The distinction bet. the two is well established.

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The phrase "entering judgment" is not to be equated w/ an "entry of judgment" as the latter is understood in R36 in relation to Sec. 8, R 121 and Sec. 16, R 124, ROC. "Entry of judgment" presupposes a final judgment-- final in the sense that no appeal was taken from the decision of the trial court or appellate court w/in the reglamentary period. A judgment in a crim. case becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or the def. has expressly waived in writing his right to appeal. It is only then that there is a judgment w/c is to be entered or recorded in the book of entries of judgments. Rule 124, Sec. 13. xxx Whenever the Court of Appeals should be of the opinion that the penalty of reclusion perpetua or higher should be imposed in a case, the Court after discussion of the evidence and the law involved, shall render judgment imposing the penalty of reclusion perpetua or higher as the circumstances warrant, refrain from entering judgment and forthwith certify the case and elevate the entire record thereof to the Supreme Court for review. (4) Article VII, Sec. 18, par. 3 Art. VII, Sec. 18. xxx xxx The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. (5) Article VII, Sec. 4, par. 7 Art. VII, Sec. 4. xxx xxx The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President, Vice-President, and may promulgate its rule for the purpose. Lopez vs. Roxas, 17 SCRA 756 (1966) F:

In 1965, the 2 Houses of Congress in joint session proclaimed petitioner Fernando Lopez elected to the Office of the Vice-President of the Philippines. His closest opponent, resp. Gerardo Roxas, then filed with the Presidential Electoral Tribunal (PET) an election protest contesting the election of petitioner herein as VP upon the ground that it was not he, but said resp., who had obtained the largest number of votes for said office. Petitioner Lopez then instituted this Original Action to prevent the PET from hearing and deciding the aforementioned election contest, upon the ground that R.A. No. 1793, creating said Tribunal, is "unconstitutional" and that, "all proceedings taken by it are a nullity".

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ISSUE: Whether R.A. 1793 is unconstitutional HELD: NO. Section 1, Art. VIII of the Constitution vests in the judicial branch of the government, not merely some specified or limited judicial power, but the entirety or "all" of said power, except, only, so much as the Constitution confers upon some other agency, such as the power to "judge all contests relating to the election, returns and qualifications' of members of the Senate and those of the House of Representatives, which is vested by the Constitution solely in the Senate Electoral Tribunal and the House Electoral Tribunal, respectively. R.A 1793, creating the PET, has the effect of giving a defeated candidate the legal right to contest judicially the election of the President-elect or the VP-elect. By providing that the PET "shall be composed of the Chief Justice and the other 10 Members of the SC", R.A. 1793 has conferred upon such court an additional exclusive original jurisdiction. It has not created a new and separate court. It has merely conferred upon the SC the functions of a PET. The PET is not inferior to the SC since it is the same court, although the functions peculiar to said Tribunal are more limited in scope than those of the SC in the exercise of its ordinary functions. The authority of the PET to declare who has the better right to office does not abridge constitutional tenure. If the evidence introduced in the election protest shows that the person really elected is the protestant, not the person declared elected by Congress, then the latter had legally no constitutional tenure whatsoever, and, hence, he can claim no abridgment thereof. Moreover, in the imposition of new duties upon the SC, the Congress has not, through R.A. 1793, encroached upon the appointing power of the Executive. It constitutes neither the creation of an office, nor the appointment of an officer. Said law is constitutional. Adapted. (6) Article IX, A, Sec. 7 Art. IX, A, Sec. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of the copy thereof. h. Congressional Power over Jurisdiction of the Supreme Court Art. VIII, Sec. 2. The Congress shall have the power the define, prescribe and apportion the jurisdiction of various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof. xxx But while the jurisdiction of courts is a matter of legislative apportionment, the Constitution sets certain limitations on this prerogative: 1. It cannot decrease the constitutionally set jurisdiction of the Supreme Court.

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(It may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.) 2. It cannot increase the constitutionally set appellate jurisdiction of the Supreme Court. Art. VI, Sec. 30. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence. 3. It can increase the original jurisdiction of the SC (pursuant to its general power). 4. It can make the jurisdiction of the SC concurrent with lower courts (pursuant to its general power). Thus, under the Rules of Court, the original jurisdiction of the SC is concurrent with the RTC and in the case of the special civil actions, with the CA. 5. It cannot pass a law reorganizing the judiciary when it undermines the security of tenure of its members. (Art. VI, Sec. 2, par. 2) Mantruste Systems, Inc. vs CA F:

Mantruste (MSI) entered into an interim lease agreement w/ DBP, owner of Bayview Plaza Hotel wherein the former would operate the hotel for a minimum of 3 mos. or until such time that the said properties are sold to MSI or other third parties by DBP. Subsequently, the Pres. issued Procl. 50 w/c sought to the expeditious privatization of government assets. The Bayview Hotel properties were among the govt assets identified for privatization and were consequently transferred from DBP to the Asset Privatization Trust (APT) for disposition. xxx. The properties were subsequently awarded to the MakatiAgro Trading and La Filipina Corp. MSI filed a complaint for the issuance of a restraining order enjoining APT from approving the winning bid and awarding the Bayview property to private petitioners and from ejecting MSI from the property or from terminating the contract of lease. The CA nullified the lower court's decision for being violative of Sec. 31 of Procl. 50-A.

HELD: Section 31 of Proclamation No. 5-A prohibited courts and administrative agencies from issuing any restraining order or injunction against the Asset Privatization Trust in connection with the acquisition, sale or disposition of assets transferred to it, nor against any purchaser of assets sold by the Trust to prevent such purchaser from taking possession of any assets purchased by him. Said Section does not infringe any provision of the Constitution. It does not impair the inherent power of the courts "to settle actual controversies which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the govt." The President, in the exercise of her legislative power under the Freedom Constitution, issued said Proclamation to prevent courts from interfering in the discharge of the Executive Department of its task of carrying out the expeditious disposition and privatization of certain govt. corporations and/or the assets thereof, absent any grave abuse of discretion amounting to excess or lack of jurisdiction on its part. This proclamation, not being inconsistent with the Constitution and not having been repealed or revoked by Congress, has remained operative.

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While the judicial power may appear to be pervasive, the truth is that under the system of separation or powers, the powers of the courts over the other branches and instrumentalities of government is limited to the determination of whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction in the exercise of their authority and in the performance of their assigned tasks. Courts may not substitute their judgment for that of the APT, nor block, by an injunction, the discharge of its functions and the implementation of its decisions in connection with the acquisition, sale, or disposition of assets transferred to it. Adapted. The Supreme Court's Jurisdiction A) Original jurisdiction [Art. VIII, Sec. 5(1)] (1) Cases affecting ambassadors, other public ministers and consuls. (2) Petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus. (3) Sufficiency of factual basis of proclamation of martial law and suspension of privilege of writ of HC Note that the SC does not have jurisdiction over declaratory relief cases, which must be filed with the RTC (In Re Bermudez said so too, and yet gave due course to the petition.) The first case (ambassadors, etc.) is made concurrent with RTCs by law (Judiciary Act of 1948). The second case (special civil actions) is concurrent with the CA and the RTC, with respect to inferior bodies. B) Appellate Jurisdiction The Supreme Court shall have the power to review, revise, reverse, modify, or affirm on (i) ordinary appeal, or (ii) petition for review on certiorari, as the law or the Rules of Court may provide, final judgment and orders of lower courts in the following cases: (1) Cases questioning the constitutionality or validity of any (a) treaty, (b) international and executive agreement, (c) law or statute, (d) presidential decree, (e) proclamation, (f) order, (g) instruction, (h) ordinance, or (i) regulation. (2) Cases questioning the legality of an (a) tax, (b) impost, (c) assessment, or (d) toll, or (e) any penalty imposed in relation thereto. (3) Cases in which the jurisdiction of lower courts is in issue. (4) Criminal cases in which the penalty imposed is reclusion perpetua or higher. (5) Cases in w/c only an error or question of law is involved. (6) Orders of the Constitutional Commissions. PAGE 294


Appellate jurisdiction may be exercised in two ways: 1. Ordinary appeal This is obligatory on the courts, so the appellant possesses this "as a matter of right". Under this mode, the SC can pass on both questions of fact and law. Ordinary appeal to the SC is allowed by law in criminal cases where the penalty imposed is reclusion perpetua or higher, including those involving other offenses which, although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion (to ensure uniformity of decision). (Sec. 17, Judiciary Act of 1948). The other case is the automatic review by the SC of criminal cases where the death penalty is imposed. This is unlike the ordinary appeal taken where the penalty is reclusion perpetua or higher, for in this case, the review is automatic. The reason why it is not automatic in the first case (reclusion perpetua) is that on appeal, the appellate court may increase the penalty imposed by the trial court (to death) so that the convict must first waive his right against double jeopardy, precisely by voluntarily making the appeal, before the SC can reopen the case on appeal. But the case is different when death is imposed because the worst that could happen on automatic appeal is that the judgment is affirmed. Naturalization and denaturalization cases under the Judiciary Act of 1948 (Sec. 17) used to be directly appealable to the SC. But this is deemed to have been amended by the Judiciary Reorganization Act of 1980 (BP 129) which, in Sec. 5(3), makes all cases decided by the RTC, appealable to the CA, except those made directly appealable to the SC by (i) the Constitution, (ii) BP 129 and (iii) Sec. 17 [3(i)] and Sec. 17 [4(4)]of the Judiciary Act of 1948. Naturalization and denaturalization cases do not fall under any of the exceptions. 2. Petition for review on certiorari This is not discretionary on the SC. It has the authority not to give due course to the petition, if the petition shows no merit on its face. Thus, mode provided for in Rule 45, is limited to pure questions of law. All other cases can be appealed to the SC using this mode. The Constitution now provides that "no petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor." (Art. VIII, Sec. 14, par. 2) The four other cases falling under the appellate jurisdiction of the SC (viz, constitutionality, tax, jurisdiction and pure questions of law), are appealable to the SC by petition for review on certiorari. However, in cases involving constitutionality, tax, or jurisdiction, when the resolution of the main issue depends on a controverted question of fact, the case must be appealed to the CA on both, questions of fact and law, and the decision of the CA is then raised to the SC by petition for review on certiorari on pure questions of law. (Sec. 17 of the Judiciary Act of 1948) Certiorari PAGE 295


The certiorari referred to in 5(1) (when the SC exercises original jurisdiction) is the special civil action of certiorari under Rule 65, where the question raised is a "jurisdictional question," that is, (a) lack of jurisdiction, (b) excess of jurisdiction, or (c) grave abuse of discretion amounting to lack of jurisdiction. The certiorari referred to in 5(2) (when the SC exercises appellate jurisdiction) is certiorari as an ordinary mode of appeal, where the issue raised is "error of judgment" or error of law. i. Administrative powers (1) Supervision of lower courts Art. VIII, Sec. 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof. In Noblejas v Teehankee, the SC held that although the Commissioner of Land Registration is given the rank of judge of the CFI, he is still an administrative official, hence outside the jurisdiction of the SC and cannot be investigated by it as if he were a lower court judge. Otherwise, the SC would be performing a non-judicial work. interest

(2) Temporarily assign judges to other stations in the public

Art. VIII, Sec. 5. The Supreme Court shall have the xxx power (to) xxx (3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. (3) Order a change of venue or place of trial to avoid miscarriage of justice [Art. VIII, Sec. 5 (4)] (4) Discipline of lower court judges Art. VIII, Sec. 11. xxx The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal, by a vote of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. (5) Appointment of officials and employees of entire judiciary Art. VIII, Sec. 5. The Supreme Court shall have the xxx power (to) PAGE 296


xxx (6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. j. Rule making Art. VIII, Sec. 5. The Supreme Court shall have the following powers: xxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rights of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. Power of Congress to repeal Rules of Court Article XVIII, Sec. 10. All courts existing at the time of the ratification of this Constitution shall continue to exercise their jurisdiction, until otherwise provided by law. The provisions of the existing Rules of Court, judiciary acts, and procedural laws not inconsistent with this Constitution shall remain operative unless amended or repealed by the Supreme Court or the Congress.

(not in VV's revised outline) Co-Judicial powers Aside from the jurisdiction of the Supreme Court mentioned above the following are its other powers related to, though not exactly constituting, its judicial function: 1. Order a change of venue or place of trial, in order to avoid a miscarriage of justice. Art. VIII, Sec. 5(4)] 2. Rule making - Promulgate rules concerning (a) the protection and enforcement of constitutional rights, (b) pleading, practice and procedure in all courts, (c) the administration to the practice of law, (d) the Integrated Bar, and (e) legal assistance to the underprivileged. Limitations to this power: Such rules shall (i) provide simplified and inexpensive procedure, for the speedy disposition of cases, (ii) be uniform for all courts of the same grade, and (iii) not diminish, increase or modify substantive rights.

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Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the SC. [Art. VIII, Sec. 5(5)] It is on the basis of this power, that the Rules of Court, the Bar, IBP, Legal Aid Office were adopted. In 1935, as affirmed in the case of In re Cunanan, the Congress was given the power to alter, supplement or modify the Rules of Court. Thus, if the SC set the passing grade in the bar at 75%, Congress could lower it to 70%, provided this has no retroactive effect. This is no longer true in 1987. Rule-making power and the corollary power of amending the rules are now lodged exclusively on the SC. Practice of Professions Art. XII, Sec. 14. xxx The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law. Martial Law Art. VII, Sec. 18. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of Martial Law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days form its filing. (par. 3 thereof.)

k. No quasi-judicial and administrative work of judges Generally: No non-judicial work for judges; No quasi- judicial and administrative work for judges. As a general rule, members of the judiciary shall only have judicial functions, in line with the separation of powers principle of the Constitution. Thus: Art. VIII, Sec. 12. The members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative function. Thus, in Meralco v Pasay Transportation Co., 57 Phil 600 (1932), the SC held that justices of the SC could not be constituted into a Board of Arbitration to determine reasonable compensation for the use of a bridge, for this is a non-judicial work. Meralco v Pasay Transportation Co., 57 Phil 600 (1932) PAGE 298


The issue concerns the legal right of the members of the SC, sitting as a board of arbitrators, the decision of a majority of whom shall be final, to act in that capacity. HELD: The SC and its members should not and cannot be required to exercise any power or to perform any trust or to assume any duty not pertaining to or connected w/ the administering of judicial functions. RAM. In Garcia v Macaraig, 39 SCRA 106 (1971), the SC said that it did not look with favor at the practice of long standing of judges being detailed with the Department of Justice to assist the Secretary, even if it were only in connection with his work of exercising administrative authority over courts. The basis of this rule is the separation of powers. In this case, resp. Macaraig was appointed to one of the newly-created CFI branches w/ station at Calamba Laguna. At the time of his appointment, resp. was the chief of Technical Staff of the DOJ and concurrently member of the Board of Pardons and Parole. xxx In Re : Rodolfo Manzano 166 SCRA 246 F:

EO No. 856 created the Provincial/City Committees on Justice to insure the speedy disposition of cases of detainees, particularly those involving the poor and indigent ones, thus alleviating jail congestion and improving local jail conditions. Among the functions of said committee are to receive complaints against any apprehending officer, jail warden, fiscal or judge who may be found to have committed abuses in the discharge of his duties and refer the same to proper authority for proper action, to recommend revision of any law or regulation which is believed prejudicial to the proper administration of criminal justice. Judge Manzano, Executive Judge Of Ilocos Norte was appointed as member of said Committee. Before accepting the appointment, it sought the opinion of the SC as to the propriety of such appointment.

HELD: Such committee performs administrative functions. Administrative functions are those which involve the regulation and control over the conduct and affairs of individuals for their own welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are devolved upon the administrative agency by the organic law of its existence. Under the Constitution, the members of the courts shall not be designated to any agency performing quasi-judicial or administrative functions. Considering that membership of Judge Manzano in such committee, will violate the Constitution, the Supreme Court is constrained to deny his request that he be allowed to serve therein. He can only render assistance to such committee to help promote the laudable purposes of said committee, but only when such assistance may be reasonably incidental to the fulfillment of his judicial duties. Adapted. Exceptions: Constitutionally appointed non-judicial functions of the Supreme Court a. Act as Presidential Electoral Tribunal While Congress acts as the National Board of Canvassers for the Presidential election, the Supreme Court acts as the Electoral Tribunal for such election. The Constitution provides:

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"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose." (Art. Art. VII, Sec. 4, last par.) This means that before the proclamation by the Congress of the winner, Congress is the judge of any electoral issue, but the proclamation, when there is an electoral contest already, then the SC becomes the sole judge. The 1935 Constitution did not provide this power. And so RA 1793 gave the SC the power to act as judge in presidential electoral contests. It was challenged in the case of Lopez v Roxas, 17 SCRA 756 (1966), but the SC upheld the law, reasoning that it did not constitute the SC as a separate body but only added to its powers the power to be the judge of election contests. With the express provision in Art. VII, Sec. 4, par. 7, this is no longer a problem. 3(6)]

b. Chief Justice as presiding officer in impeachment trial of the President. [Art. XI, Sec. c. Chief Justice as Chairman of the Judicial and Bar Council. l. Report on the judiciary

Art. VIII, Sec. 16. The Supreme Court shall, within thirty days from the opening of each regular session of the Congress, submit to the President and the Congress an annual report on the operations and activities of the Judiciary. m. Manner of sitting and votes required Art. VIII, Sec. 4. (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof. (2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court, en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.

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The Supreme Court may sit en banc or in its discretion, in divisions of 3, 5, or 7 members. [Art. VIII, Sec. 4(1)] The following cases shall be heard by the SC en banc: 1. Cases involving the constitutionality of a treaty, international or executive agreement or law. [Id., Sec. 4(2)] 2. Cases involving the (a) constitutionality, (b) application, or (c) operation of presidential decrees, proclamations, orders, instructions, ordinances and other regulations. [Id., Sec. 4(2)] 3. All other cases which under the Rules of Court are required to be heard by the SC en banc. [Id., Sec. 4(2)] 4. Cases or matters heard by a division where the required number of votes to decide or resolve (the majority of those who took part in the deliberations on the issues in the case and voted thereon, and in no case less than 3 members) is not met. [Id., Sec. 4(3)] 5. To modify or reverse a doctrine or principle of law laid down by the court in a decision rendered en banc or in division. [Id., Sec. 4(3)] 6. Administrative disciplinary cases involving judges of lower courts. (Id., Sec. 11.) 7. Actions instituted by citizen to test the validity of a proclamation of martial law or suspension of the privilege of the writ. (Art. VII, Sec. 18.) 8. The court sitting as Presidential Electoral Tribunal. (Art. VII, Sec. 4, par. 7.) Rule 56, Sec. 11 Sec. 11. Procedure if opinion is equally divided.-- Where the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action shall be dismissed if originally commenced in the court; in appealed cases, the judgement or order appealed from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. Rule 125, Sec. 3 Sec. 3. Decision if opinion is equally divided.-- When the court en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be re-heard, and if on rehearing no decision is reached, the judgment of conviction of the lower court shall be reversed and the accused acquitted. n. Requirement as to decisions PAGE 301


Art. VIII, Secs. 13-14 Deliberations Art. VIII, Sec. 13. The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a member for the writing of the opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor. The same requirements shall be observed by all lower collegiate courts. The reason for the requirement that the decision must be reached "in consulta" (i.e., after deliberations by the group) is to emphasize that the SC is one body, albeit collegiate, so that the decision of the case is by the court itself and not the ponente. The writer of the opinion is merely the spokesman of the body. Consing V CA 177 SCRA 14 (1989) ISSUE: W/N absence of certification by the Court of Appeals renders that decision invalid. HELD: NO. The certification requirement imposed by the 1987 constitution was meant to ensure the implementation of the constitutional requirement that decisions of the Supreme Court and lower collegiate courts, such as the CA, Sandiganbayan and CTA, are reached after consultation with the members of the court sitting en banc or in a division before the case is assigned to a member thereof for decision writing. The absence would not necessarily mean that the case submitted for decision had not been reached in consultation before being assigned to one member for the writing of the opinion of the court since the regular performance of official duty is presumed. The lack of certification serves as an evidence of failure to observe the certification requirement but it would not have the effect of invalidating the decision. Art. VIII, Sec. 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor. Voting Votes required to "render a decision or resolution"

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A) En banc Concurrence of a majority of the members who (i) actually took part in the deliberations (i.e., the consultation) on the issues in the case, and (ii) voted thereon. [Art. VIII, Sec. 4(2) and Sec. 11.] a. The lowest possible votes needed to render a decision is 5, since quorum of 15 is 8, and majority of 8 is 5. This number may increase as the number of justices present increase; b. One who abstained is deemed to have voted for the purpose of computing the majority vote needed. For an abstention is really a form of casting a vote with its own repercussions on the outcome of the case. c. One who was present but kept silent during the deliberations and did not vote is still included in the counting for the purpose of determining the majority. For it may happen that he has already made up his mind on how to decide and influence the outcome of the case. d. But one who expressly inhibited or is disqualified from taking part (for instance because of conflict of interest) is not included. e. There must be a quorum before a valid decision can be made. Without a quorum, there can be no valid business to begin with. f. In case, the necessary majority cannot be mustered, then there is no decision rendered. (See effect of failure to reach a majority below.) This provision thus, overrules the requirement of (a) 10 votes (2/3) to declare a law unconstitutional under 1973 (a constitutional requirement), and (b) 10 votes to impose or affirm the death penalty (by internal rules of the SC, although constitutionally 8 votes were enough). The presumption of constitutionality of laws under the Judiciary Act of 1948, however, remains valid. B) In divisions Cases or matters heard by a division shall be decided or resolved (a) with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon, and (b) in no case without the concurrence of at least 3 of such members. When the required number is not obtained, the case shall be decided en banc. No doctrine or principle of law laid by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. [Art. VIII, Sec. 4(3)] a. In a division of 7 members, the majority if all are present is 4. If only 6 are present, 4. If only 5 or 4, 3. If only 3, no quorum. present.

b. In a division of 5 members, 3 votes are needed regardless of whether 5, 4, or 3 are c. In division of 3 members, 3 votes are needed. PAGE 303


d. In any of these cases, when the votes cannot be mustered, the case must be raised to the court en banc. Effect of failure to muster the necessary majority: If the necessary majority cannot be had, the case is again reheard. If upon rehearing, no majority is still had, the following are the effects: a. If a case is on appeal, the judgment appealed from is deemed affirmed except: (i) Criminal cases where the judgment is that of conviction: the conviction is reversed, and the accused is acquitted. (ii) Cases where the lower court declared a law, etc. unconstitutional: the judgment is reversed, and the validity of the law is deemed sustained, pursuant to the presumption of constitutionality under Sec. 9 of the Judiciary Act of 1948. (If the lower court declared the law as not unconstitutional, this judgment is deemed affirmed pursuant to the general rule above.) (Thus, if 12 are present, 5 voted the law unconstitutional, 4 voted for its validity, and 3 abstained, there is no decision and so the law remains valid.) b. If the case is an original petition, then the case is deemed dismissed. Writing of the decision No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. (Art. VIII, Sec. 14.) In the case of the SC and lower collegiate court, this rule is addressed to the one to whom the writing of the opinion was assigned after consultation, that is, the ponente. In the case by other courts, this rule is addressed to the judge. Decisions on the merit. The rule requiring statement of the relevant facts, the issues, the ruling, and the reasoned opinion in support of the ruling, applies only to decisions on the merit by a court of record, based on the following rulings of the SC: a. In Valladolid v Inciong, 121 SCRA 205 (1983), it was held that the Order of the Deputy Minister of Labor did not contain a statement of facts and conclusions of law is not covered by the constitutional requirement because it is not a decision of a court of record, the Ministry of Labor being an administrative agency with quasi-judicial functions, with rules of procedure mandated to be non-litigious, summary and non-technical. Section 14, Chapter 3, Book VII, Administrative Code of 1987 PAGE 304


Section 14. Decision.-- Every decision rendered by the agency in a contested case shall be in writing and shall state clearly and distinctly the facts and the law on which it is based. xxx

Air Manila vs. Balatbat, 38 SCRA 489 (1971) Administrative proceedings are not exempt from the operation of certain basic and fundamental procedure principles, such as the due process requirements in investigations and trials. Administrative due process includes: (a) The right to notice, be it actual or constructive, of the institution of the proceedings that may affect a person's legal rights; (b) Reasonable opportunity to appear and defend his rights, introduce witnesses and relevant evidence in his favor; (c) A tribunal so constituted as to give him reasonable assurance of honesty and impartiality, and one of competent jurisdiction; and (d) A finding or decision by that tribunal supported by substantial evidence presented at the hearing, or at least contained in the records or disclosed to the parties affected. b. In Bacolod Murcia Milling Co. v Henares, 107 Phil. 560 (1960), the SC ruled that orders of a court on an incidental matter (in this case, the order imposing the payment of attorney's fees) need not state the legal basis of the ruling. Minute Resolution Cruz: 1:

In justifying the so-called minute resolution, the SC said in Borromeo v. CA, 186 SCRA

"The SC disposes of the bulk of its cases by minute resolutions and decrees them as final and executory, as where a case is patently w/o merit, where the issues raised are factual in nature, where the decision appealed from is supported by substantial evidence and is in accord w/ the facts of the case and the applicable laws, where it is clear from the records that the petitions were filed merely to forsetall the early execution of judgment and for non-compliance w/ the rules. The resolution denying due course or dismissing a petition always gives the legal basis. x x x x The Court is not duty bound to render signed decisions all the time. It has ample discretion to formulate decisions and/ or minute resolutions, provided a legal basis is given, depending on its evaluation of a case."

And neither does the rule apply to administrative cases decided by the SC itself, as it held in Prudential Bank v. Castro, 158 SCRA 646, thus:

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"No constitutional provision is disregarded in the SC's Minute Resolution denying a motion for reconsideration 'for lack of merit, the issues raised therein having been previously duly considered and passed upon. In an administrative case, the constitutional mandate that 'no *** motion for reconsideration of a decision of the court shall be *** denied without stating the legal basis therefor is inapplicable. And even if it were, said resolution stated the legal basis for the denial, and, therefore, adhered faithfully to the constitutional requirement. 'Lack of merit,' as a ground for denial is legal basis. Petitions for review and motions for reconsideration No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied, without stating the legal basis therefor. (Art. VIII, Sec. 14, par. 2.) This rule applies to a dismissal of a motion for reconsideration of a "decision on the merits", said the SC in Mendoza v CFI, 51 SCRA 369 (1973). It does not apply, as in this case, to a dismissal of a motion for reconsideration of a previous dismissal of a petition for habeas corpus. (The dismissal of the petition for habeas corpus is not a decision on the merits, but is similar to a dismissal of a petition for review, which is a decision not to give due course to the petition.) The past practice used to be that when the appellate court denied a petition for review, or denied a MFR, it simply did so in a Minute Resolution, stating that the case was dismissed for lack of basis. This aggrieved many a lawyer, specially those who would spend days preparing pages of briefs, only to find out that all their effort was answered by a one-liner "Dismissed for lack of basis". This prompted the framers of the 1987 Constitution to force the Court to at least write down the legal basis for the denial. This means that while a fully detailed decision is not required, neither is a skimpy one-liner is allowed. The legal reason for the dismissal must be written. Dissenters and Abstainers In the case of a decision on the merits, if a member (a) took no part, or (b) dissented, or (c) abstained from a decision or resolution, he must state his reason therefor. (Art. VIII, Sec. 13.) Before, only those who dissented were required to write an opinion. Now, even those who took no part in the deliberations but were present, and those who abstained are required to write their reasons for these are really forms of casting their vote. Those who inhibited themselves are, of course, not required to vote, since they did not really participate. Procedurally, the purpose is to enable the party to find out the reason for the action taken. For courts lower than the SC, and even the SC itself, this is important for appeal or motion for reconsideration purposes, as the basis for the assignment of error.

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Theoretically, since the SC is not an elective branch it must explain the reason being its ultimate source of authority. Congress need not explain its action since it has been delegated the legislative power by the people. o. Mandatory period for deciding cases Art. VIII, Sec. 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from the date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts. (2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court itself. (3) Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period. (4) Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay. Art. VII, Sec. 18. xxx xxx The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. xxx (par. 3 thereof.) Art. XVIII, Secs. 12-14 Art. XVIII, Sec. 12. The Supreme Court shall, within one year after the ratification of this Constitution, adopt a systematic plan to expedite the decision or resolution of cases or matters pending in the Supreme Court or the lower courts prior to the effectivity of this Constitution. A similar plan shall be adopted for all special courts and quasi-judicial bodies. Id., Sec. 13. The legal effect of the lapse, before the ratification of this Constitution, of the applicable period for the decision or resolution of the cases or matters submitted for adjudication by the courts, shall be determined by the Supreme Court as soon as practicable.

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Id., Sec. 14. The provisions of paragraphs (3) and (4), Section 15 of Article VIII of this Constitution shall apply to cases or matters filed before the ratification of this Constitution, when the applicable period lapses after such ratification. A) Cases filed after February 2, 1987 All cases or matters filed after the effectivity of this Constitution must be decided within twenty-four months counted from the date of submission." [Art. VIII, Sec. 15(1)] A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court itself. [Art. VIII, Sec. 15(2)] Mandatory period in the Supreme Court: 24 months [Art. VIII, Sec. 15(1)] Except: A proper case questioning the sufficiency of the factual basis of the proclamation of martial law or suspension of the privilege which must be decided 30 days from filing. (Art. VII, Sec. 18, par. 1.) But what happens if the judge or court fails to meet the deadline anyway? The Constitution provides: Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding Judge shall forthwith be issued, and a copy thereof attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has been rendered or issued within said period. [Art. VIII, Sec. 15 (3)] Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility (administrative disciplinary action against the judge or justices) shall decide or resolve the case or matter submitted thereto for determination without further delay. [Art. VIII, Sec. 15(4)] In other words, failure to decide the case [for reasons other than the inability to reach the necessary majority] has no consequence on the case. Thus, a certification is required that the period has lapsed without any decision being made, stating the reason for such inaction. Then the court must decide without any further delay. The consequences are on the judge: (a) he could not draw out his salary, since he would not be able to certify that he has resolved all cases submitted to him in 90 days and (b) he is subject to administrative sanctions. B) Cases filed before February 2, 1987 but expire after this date The provisions of Art. VIII, Sec, 15(3) - (4) shall apply to cases or matters filed before the ratification of this Constitution, when the applicable period lapses after such ratification. (Art. XVIII, Sec. 14) In other words, it is as if these cases were filed after February 2, 1987.

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C) Cases that expired before February 2, 1987 The legal effect of the lapse, before the ratification of this Constitution, of the applicable period for the decision or resolution of the cases or matters submitted for adjudication by the courts, shall be determined by the SC as soon as practicable. (Art. XVIII, Sec. 13.) The Supreme Court shall, within 1 year from February 2, 1987 adopt a systematic plan to expedite the decision or resolution of cases or matters pending in the SC or lower courts prior to the effectivity of this Constitution. A similar plan shall be adopted for all special courts and quasi-judicial bodies. (Art. XVIII, Sec. 12.) 2. Lower courts a. Qualifications and appointment Art. VIII, Sec. 7 (1) - (2) Art. VIII, Sec. 7. (1) No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. A member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more a judge of a lower court or engaged in the practice of law in the Philippines. (2) the Congress shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippine Bar. Id., Sec. 8. (5) The (Judicial and Bar) Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it. Id., Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at list three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointment within ninety days from the submission of the list. Composition The composition of lower courts shall be provided by law. The laws are the Judiciary Act of 1948 and BP 129. Qualifications Lower Collegiate Court (Court of Appeals)

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(1) No person shall be appointed member of any lower collegiate court unless he is a naturalborn citizen. [Art. VIII, Sec. 7(1)] and a member of Philippine Bar. (2) The Congress shall prescribe qualifications of judges of lower courts. [Art. VIII, Sec. 7(2)] (3) A member of the judiciary must be a person of proven competence, integrity, probity, and independence. [Art. VIII, Sec. 7(3)] Lower Courts (1) The Congress shall prescribe qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippine bar. [Art. VIII, Sec. 7(2)] (2) He must be a person of proven competence, integrity, probity and independence. [Art. VIII, Sec. 7(3)] b. Salary Art. VIII, Sec. 10. The salary of the Chief Justice and of the Associate Justices of the Supreme court and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased. . c. Congressional power to reorganize and security of tenure Art. VIII, Sec. 11. The members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years, or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. Id., Sec. 2. xxx No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members.

1987.

The power of Congress to reorganize lower courts has been upheld by the SC prior to

In Ocampo v Secretary of Justice, 51 OG 147 (1955), the SC by failing to muster the 2/3 vote required then to declare a law unconstitutional in effect sustained the validity of the law passed by Congress abolishing the offices of "judges-at-large" and "cadastral judges" and the consequent removal of judges occupying these posts. Noting that the purpose of the law was to promote the independence of the judiciary (by avoiding forum-shopping), it held that an PAGE 310


abolition of an office made in good faith does not violate security of tenure. Security of tenure presupposes the continued existence of the office from which one was removed not removal from an office that has been abolished in good faith and not merely partisan political reasons. In De La Llana v Alba, 112 SCRA 294 (1982), the SC again upheld the Reorganization Act of 1980 (BP 129), on the ground that the abolition of an office, is within the competence of the legislature if done in good faith. That there was good faith was shown by the fact that the Act was the product of careful study and deliberation by the Batasan and the Presidential study committee, the membership of which includes SC justices, and was the means to upgrade the administration of justice in the Philippines. The SC reiterated that there can be no claim for security of tenure where the office no longer exists, and that the abolition of office is not removal, although their effects may be the same. It is doubtful whether these rulings remain valid in toto in view of the new express provision prohibiting a reorganization law that undermines the security of tenure of the Judiciary. One compromise view is that Congress has the power to pass a reorganization law concerning the lower courts, but it can only take effect until the post has been vacated by the incumbent judge. d. Removal Art. VIII, Sec. 11. The members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years, or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. Cruz: "Judges of lower court," as here used, includes justices of the Sandiganbayan. This rule casts much doubt on the legality of the presidential decree making them removable only by the legislature through the process of impeachment. e. Jurisdiction Art. VIII, Sec. 1. Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. As ruled in J.M. Tuason & Co. v CA and in Ynot v IAC, supra, there is in effect a " constitutional conferment of original jurisdiction on the lower courts in those five cases for which the Supreme Court is granted appellate jurisdiction in 5(2)."

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Under the provision granting the SC jurisdiction "to review, revise, reverse, modify or affirm on appeal or certiorari as the law or Rules of Court may provide, judgments of lower courts," lower courts can pass upon the validity of a statute in the first instance. f. Requirements as to preparation of decisions Art. VIII, Sec. 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor. Manner of sitting The Court of Appeals sits in divisions when it hears cases; the only time it convenes as one body is to take up matters of administration. judge.

The trial and inferior courts, of course, do not have this problem since there is only one

Deliberations The same requirements (for consulta) shall be observed by all lower collegiate courts. (Art. VIII, Sec. 13) For obvious reasons, this requirement does not apply to the trial and inferior courts. Voting For collegiate courts, like the Court of Appeals, the law provides that it sits only in divisions when deciding cases. For trial and inferior courts, no problem arises since only one judge is involved. Effect of failure to muster the necessary majority Court of Appeals.-- The same rules apply, except that the decision can now be appealed to the SC. Inferior Courts.-- Failure to decide has no consequence on the decision of the court. The Court is not ousted of its jurisdiction, but the judge suffers administrative consequences. g. Mandatory period for deciding

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Art. VIII, Sec. 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from the date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts. (2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court itself. (3) Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period. (4) Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay. Art. XVIII, Secs. 12-14 Art. XVIII, Sec. 12. The Supreme Court shall, within one year after the ratification of this Constitution, adopt a systematic plan to expedite the decision or resolution of cases or matters pending in the Supreme Court or the lower courts prior to the effectivity of this Constitution. A similar plan shall be adopted for all special courts and quasi-judicial bodies. Id., Sec. 13. The legal effect of the lapse, before the ratification of this Constitution, of the applicable period for the decision or resolution of the cases or matters submitted for adjudication by the courts, shall be determined by the Supreme Court as soon as practicable. Id., Sec. 14. The provisions of paragraphs (3) and (4), Section 15 of Article VIII of this Constitution shall apply to cases or matters filed before the ratification of this Constitution, when the applicable period lapses after such ratification. Mandatory Period Lower collegiate courts: 12 months, unless reduced by the SC Other lower courts: 3 months, unless reduced by the SC Overruled : The Constitution now explicitly provides in Sec. 15 (1) that the periods are mandatory, aside from using the word "must" (not "shall" as in 1973) in Sec. 15 (1). The case of Marcelino

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v Cruz, 121 SCRA 51 (1983), which held that the periods in the 1973 Constitution were only directory, is thus now, overruled. Cruz: It should be noted that, although decision within the maximum period is now mandatory, failure to arrive at the same will not divest the court of jurisdiction, without prejudice to any responsibility that may attach to the judge. The court must still resolve the case w/o further delay, unlike the old rule when the decision appealed was deemed automatically affirmed and the petition was deemed automatically dismissed as a result of the inaction of the court. xxx Marcelino vs. Cruz, 121 SCRA 51 F:

Judgement in a criminal case was rendered before the clerk of court within 85 days after the case was concluded. But judgement was promulgated after lapse of 90 days from the day the case was submitted for decision.

ISSUE: W/N trial court lost jurisdiction over the case for failure to decide the same within 90 days from submission thereof. W/N constitutional provision is mandatory. HELD: No to both. The constitutional provision refers to rendition of judgement which refers to the filing of the signed decision with the clerk of court. By the phrase "unless reduced by the Supreme Court," it is evident that the period prescribed is subject to modification by the SC under its prerogative power to promulgate rules concerning procedure in all courts. Constitutional provisions are directory, where they refer to matters merely procedural. But failure to decide a case within 90 days constitute a ground for administrative sanction against the defaulting judge. Adapted. De Roma vs CA 152 SCRA 205 The CA decided the case beyond the 12 month period prescribed by the 1973 Constitution. Said provision in the Constitution was merely directory and failure to decide on time would not deprive the corresponding courts of jurisdiction or render their decisions invalid.

3. The Judicial and Bar Council Art. VIII, Sec. 8. A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. (2) The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments. Of the Members PAGE 314


first appointed, the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired Justice for two years, and the representative of the private sector for one year. (3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings. (4) The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council. (5) The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other function and duties as the Supreme Court may assign to it. Ex-officio members [Art. VIII, Sec. 8(1)] (1) Chief Justice as ex-officio Chairman (2) Secretary of Justice (3) Representative of Congress Regular members [Art. VIII, Sec. 8(1)] (4) Representative of the Integrated Bar (5) Professor of Law (6) Retired member of the SC (7) Representative of private sector Secretary ex-officio [Art. VIII, Sec. 8(3)] Clerk of the SC, who shall keep a record of its proceedings Appointment, Tenure, Salary Ex-officio members For obvious reasons this does not apply since the position in the Council is good only while the person is the occupant of the office. Regular members [Art. VIII, Sec. 8(2)] The regular members shall be appointed by the President with the consent of the Commission on Appointments. The term of the regular members is 4 years. But the term of those initially appointed shall be staggered in the following way so as to create continuity in the council: IBP representative - 4 years PAGE 315


Law professor - 3 years Retired justice - 2 years Private sector - 1 year Regular members shall receive such emoluments as may be determined by the SC. The SC shall provide in its annual budget the appropriations for the Council. [Art. VIII, Sec. 8(4)] Functions

Sec. 9)

1. Recommend appointees to the Judiciary [Art. VIII, Sec. 8(5)] 2. Recommend appointees to the Office of the Ombudsman and his 5 deputies. (Art. XI, 3. Such other functions and duties as the SC may assign [Art. VIII, Sec. 8(5)]

4. Automatic release of appropriation for the judiciary Art. VIII, Sec. 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.

UPDATED 1/27/96 REVISED 4/13/96 RAM

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