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Consti 1Review 2008 Lectures of Atty.

dela Banda

SEPTEMBER 16, 2008


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CITIZENSHIP
Classifications of inhabitants of the Philippines:
1. Citizens
a.
Natural-born
b.
Naturalized
c.
Repatriated
d.
Dual Citizens
2. Aliens
3. Stateless individuals
Note: All constitutional positions require that one be a naturalborn citizen of the Philippines.
Section 1. The following are citizens of the Philippines:
Take note that this is only an enumeration, not a classification of
Philippine citizens.
[1] Those who are citizens of the Philippines at the time of the
adoption of this Constitution;
[2] Those whose fathers or mothers are citizens of the
Philippines;
Two cases are important here: the case of Tecson vs. Comelec
and Republic vs. Lim
Tecson vs. COMELEC Fernando Poes father was a Filipino but
his mother was an American. The problem was he was an
illegitimate child. He decided to run for President. The case
reached the SC on whether he was a natural born citizen or not.
Here the rule now is the fact that the father is a Filipino, the child
is also a Filipino.
Facts: FPJ was born in 1939 as an illegitimate son of Bessie Kellly,
an American national, and Allan Poe, A Filipino citizen. On Dec. 1,
2003, he filed his COC for the position of President representing
himself as a natural-born citizen of the Philippines. Considering
that he is an illegitimate son of an alien woman, did he follow the
citizenship of his mother who is an American?
Held: No. Sec. 1, Art. III of the 1935 Constitution provides that
those whose fathers are citizens of the Philippines are Filipino
citizens. As pointed out by the amicus curiae, the Constitution
states that the child is a Filipino without any distinction whether
he is legitimate or illegitimate.
Republic vs. Lim The father is Chinese and the mother is
Filipina, he is also illegitimate. The issue is whether he was a
Filipino citizen. The SC said that he is a Filipino citizen.
Principles:
1. It is enough that one parent is a Filipino for the jus sanguinis
principle to operate.
2. It is immaterial whether you are legitimate or illegitimate, the
child will still be a Filipino
[3] Those born before January 17, 1973, of Filipino mothers,
who elect Philippine citizenship upon reaching the age of
majority; and
So why is the date important? Because January 17, 1973 was
the date that the 1973 was made effective. So under the 1935
Constitution, there was a still a requirement of election if your
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mother is a Filipino and your father was an alien *. So this was
erased by the 1973 and the 1987 Constitution that is why it is
very important to remember the dates involved.
Another important principle here involves the Lim case
again. The SC said that this requirement under Sub paragraph 3
does not apply to illegitimate children. This requirement only
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applies to legitimate children. So if you are legitimate, your mother


is a Filipino and your father is an alien, you still have to elect Filipino
citizenship. But if youre illegitimate, no need. You are automatically
a Filipino. So the illegitimate child is in a better position than the
legitimate child, but that is what the Supreme Court has stated.
Important notes:
1.
a.

Who can elect Filipino citizenship?


Requisites:
i. The mother is Filipina and the father is an alien
ii. The child must be legitimate
iii. The child must be born before January 17, 1973

Question: When must the mother be Filipino?


1. upon time of marriage regardless of whether attained
foreign citizenship after marriage.
2. at the time of birth (of the child) but upon reaching the age
of majority (of the child) no longer a Filipino.
3. at the time of election of the Filipino citizenship
Answer: Paras and Fr. Bernas is saying that it is sufficient that the
mother be Filipino at the time of marriage even if at the time of
birth the mother is no longer a Filipino. What is the reason behind
that? Because in the old days, when a Filipina marries an alien, the
law awards the citizenship of an alien to the woman. So we have a
problem if we require that the mother be a Filipina at the time of
birth because nobody can avail anymore because the mother has
already become an alien. That is why it is sufficient that the mother
is Filipino at the time of marriage.
2. When must election be done?
The constitution is saying that election must be done upon reaching
the age of majority. But the problem is that the SC has tampered
with this requisite. It stated that within a reasonable time after
reaching the age of majority.
What is within a reasonable time? Jurisprudence now states
within 3 years upon reaching the age of majority, unless there are
reasons to justify the late election.
3. How must election be done?
Procedure:
a. Execute a sworn statement; an affidavit electing Philippine
citizenship
b. Filed with the Civil Registry or consular or diplomatic office
where you are residing.
c. Statement is accompanied with an Oath of Allegiance to the
Constitution and the Govt of the Phil
Question: Is there an implied election?
Answer: There are several cases wherein the SC allowed this, but
now, this is no longer allowed.
Co vs. Electoral Tribunal
Facts: His Chinese father was naturalized when he was still a minor.
His mother is a Filipina. He did not elect Phil. citizenship but he
passed CPA board, voted, and worked at Central Bank. Is he a
natural-born Filipino?
Held: Co is a natural-born Filipino citizen
We have jurisprudence that defines "election" as both a formal and
an informal process. The exercise of the right of suffrage and the
participation in election exercises constitute a positive act of election
of Philippine citizenship. The private respondent did more than
merely exercise his right of suffrage. He has established his life here
in the Philippines. It was the law itself that had already elected
Philippine citizenship for him.
But because of In Re: Ching, there is no more implied election of
Philippine citizenship. You can only elect it in the manner prescribed
by law.

This section is the favorite of bar examiners. Almost every year there are
questions on citizenship.
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(4) Those whose mothers are citizens of the Philippines and, upon
In Re: Ching (October 1, 1991)
reaching the age of majority, elect Philippine citizenship.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

Consti 1Review 2008 Lectures of Atty. dela Banda

F: His father is Chinese while his mother is a Filipino. He did not


elect Phil. citizenship upon reaching majority. Passed the bar but
was not allowed to take an oath on the ground that he is a
foreigner. Ching was born under 1935 Const.
H: Ching is a foreigner
The 1935 Constitution and CA No. 625 did not prescribe a time
period within which the election of Philippine citizenship should
be made.Jurisprudence dictates that this must be done within a
reasonable time after attaining the age of majority. It is true
that this clause has been construed to mean a reasonable period
after reaching the age of majority, and that the Secretary of
Justice has ruled that 3 years is the reasonable time to elect
Philippine citizenship under the constitutional provision adverted
to above, which period may be extended under certain
circumstances, as when the person concerned has always
considered himself a Filipino. The span of 14 years that lapsed
from the time he reached the age of majority until he finally
expressed his intention to elect Philippine citizenship is clearly
way beyond the contemplation of the requirement of electing
upon reaching the age of majority. Moreover, Ching has offered
no reason why he delayed his election of Philippine citizenship.
Bar Question (1999)
Victor Ahmad was born on December 16, 1972 of a Filipino
mother and an alien father. Under the law of his father's country,
his mother did not acquire his father's citizenship. Victor consults
you on December 21, 1993 and informs you of his intention to
run for Congress in the 1995 elections. Is he qualified to run?
What advice would you give him? Would your answer be the
same if he had seen and consulted you on December 16, 1991
and informed you of his desire to run for Congress in the 1992
elections? Discuss your answer.
Suggested Answer:
(1) According to UP, you cannot advise him to elect Philippine
citizenship anymore because it is beyond the period. If you try to
look at it he is 21 years old and 3 days. According to UP, that is
beyond the 3 year period by 3 days.
(2) If he wants to run for Congress, he must exercise his right
now.
[4] Those who are naturalized in accordance with law.
Three ways to become naturalized:
1. Through judicial proceedings
2. Administrative naturalization
3. Through legislative action/proceedings

a.
b.
c.
d.
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e.
f.
g.

h.

JUDICIAL NATURALIZATION (outline of proceedings)


File a declaration of intention with the office of the Solicitor
General
Wait for 1 year after the filing of declaration of intention
File the petition in court (RTC)
Comply with the publication requirement (3x every Sunday;
in OG and 1 in a newspaper of general circulation)
Wait for 6 months from the date of last publication
Hearing proper present evidence that you possess all the
qualifications and none of the disqualifications
Suppose the judge decides that you are qualified to become
naturalized, there will still be a re-hearing after 2 years (from
F)
The reason given by the SC here is the 2 year period is a
probationary period where you will be observed if you are
really deserving to become a Filipino.
If after the lapse of 2 years, you are not disqualified, then
there will be the taking of the oath of allegiance.
This is the final step in becoming a naturalized Filipino.
This is the most important one because this will make you
a Filipino.

Republic v. De la Rosa ( June 6, 1994) The requirements are to


be strictly complied with. No short-cuts.
F: Frivaldos naturalization proceeding was railroaded to be on
time for the deadline of filing certificate of candidacy

H: Frivaldo is not a Filipino citizen


Private respondent, having opted to reacquire Philippine citizenship
thru naturalization under the Revised Naturalization Law, is duty
bound to follow the procedure prescribed by the said law. It is not for
an applicant to decide for himself and to select the requirements
which he believes, even sincerely, are applicable to his case and
discard those which be believes are inconvenient or merely of
nuisance value. The law does not distinguish between an applicant
who was formerly a Filipino citizen and one who was never such a
citizen. It does not provide a special procedure for the reacquisition
of Philippine citizenship by former Filipino citizens akin to the
repatriation of a woman who had lost her Philippine citizenship by
reason of her marriage to an alien.
Principle to be remembered:
Bar Question (1994)
No. 7: - Enzo, a Chinese national, was granted Philippine citizenship
in a decision rendered by the Court of First Instance of Pampanga on
January 10, 1956. He took his oath of office on June 5, 1959. In 1970,
the Solicitor General filed a petition to cancel his citizenship on the
ground that in July 1969 the Court of Tax Appeals found that Enzo
had cheated the government of income taxes for the years 1956 to
1959. Said decision of the Tax Court was affirmed by the Supreme
Court in 1969. Between 1960 and 1970, Enzo had acquired
substantial real property In the Philippines, (1) Has the action for
cancellation of Enzo's citizenship prescribed? (2) Can Enzo ask for
the denial of the petition on the ground that he had availed of the
Tax Amnesty for his tax liabilities? (3) What is the effect on the
petition for cancellation of Enzo's citizenship if Enzo died during the
pendency of the hearing of said petition?
Suggested Answer:
(1) The principle of res judicata has no application. The action for
cancellation of Enzos citizenship can be reopened anytime. As held
in Republic vs. Li Yao, 214 SCRA 748, a certificate of naturalizalion
may be cancelled at any time if it was fraudulently obtained by
misleading the court regarding the moral character of the petitioner.
(2) Tax amnesty will not wipe the bad moral character of a person.
Tax amnesty merely removed all the civil, criminal and
administrative liabilities of Enzo. It did not obliterate his lack of good
moral character and irreproachable conduct.
(3) It is an action that survives. The death of Enzo will not render the
proceedings moot and academic. What is the reason? Because if you
are naturalized, your children (minor) and your spouse will normally
be benefitted.

LEGISLATIVE PROCESS simply done by passing a law directly


declaring one a Filipino citizen. Congress has plenary powers to
declare one to be a naturalized Filipino citizen.

ADMINISTRATIVE PROCESS (RA 9139 which took effect 2001)


There is no more need for application before the court. You can
become a naturalized citizen simply by applying with the Special
Committee on Naturalization.
Requisites:
1. One must be born in the Philippines;
2. At least 18 years old (in legislative or judicial proceedings, you
have to be 21 years old to qualify)
3. Permanently residing in the Philippines
4. P100,000.00
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.
Those who elect Philippine citizenship x x x
What is the significance of that? The reason is that in the old
days, there was a conflict as to opinion on whether you would
consider somebody who is a citizen by election as natural born or

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

Consti 1Review 2008 Lectures of Atty. dela Banda

not. Some people were thinking that he is not for the reason that
he performs some act in order to perfect his Philippine
citizenship.
But now, the Constitution has done away with it. It is now
saying that if you elected Philippine citizenship, you are now
considered natural born.
The next question is this: Suppose you elect Phil. Citizenship
prior to this provision (1987), how are you regarded? Naturalborn or naturalized?
This was answered in Co vs. Electoral Tribunal (July 1991).
The SC stated that you will be considered as natural born.
Meaning that this provision will be given retroactive effect to
apply to people who have elected Philippine citizenship even
prior to the 1987 Constitution. How did the SC arrive at that
decision? It was very clear in the debate that the Constitutional
Commissioners wanted to give this provision a retroactive effect
so that everybody will be considered equal.
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
TWO REQUISITES BEFORE ONE IS CONSIDERED NATURAL
BORN (according to the definition) :
1. Citizen from birth;
2. You did not perform any act in order to complete your
Philippine citizenship;
The problem is jurisprudence because it seems not to
comply with the definition.
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Bengzon vs. HRET Bengzon was a Filipino, natural born,


he became an American, and then he became again a Filipino and
decided to run for Congress. He was repatriated. So he was
challenged because he became a Filipino by performing another
act to complete his citizenship. But the SC said that he was still
considered as natural born and he could still run for Congress.
o Why? SC went to the definition of repatriation. When
you get repatriated, you are restored to your former status.
What was Bengzons former status? He was natural-born, so
he is now also natural-born. This decision really contradicts
the opinion of Fr. Bernas prior to this decision because in his
book he was saying that once citizenship is lost, it is lost
forever, it can never be restored in its original sense. But the
SC is saying that considering that Bengzon was repatriated,
then he is considered natural born.
o It is very clear from the decision that if you re-acquired
your citizenship through naturalization, you are not anymore
natural born. If you re-acquired your citizenship through
naturalization, you are considered naturalized. This
(decision) only applies to those people who reacquired their
citizenship by the act of repatriation.
1999 Bar Question: Julio Hortal was born of Filipino parents.
Upon reaching the age of majority, he became a naturalized
citizen in another country. Later, he reacquired Philippine
citizenship. Could Hortal regain his status as natural born Filipino
citizen? Would your answer be the same whether he reacquires
his Filipino citizenship by repatriation or by act of Congress?
Explain. (3%)
1. Yes, Hortal can regain his status as natural born Filipino
citizen if he gets it back through repatriation.
2. By act of Congressthis is problematic because we still have
no jurisprudence on this matter. But Sir dela Banda is thinking
that Congress can do it both ways; Congress can say that we will
naturalize youand you are not natural born. But if Congress by
its acts repatriates you, this can also be done because it has

plenary power. So you will now be restored to your former status


because you got it back through repatriation.
I think when you were in first year, I discussed the case of
Chongkee Uy who ran for governor and Congressman. But the
problem with him is that his parents were Chinese. But when he was
a minor, the parents became Filipino citizens. What is his status? So
the question now has been answered by the SC indirectly. The
principle is this: if the parents, who are aliens, are naturalized,
minor children will be benefited. Meaning, people below 18.
Children above 18 will remain aliens. The only way for the children
above 18 to become Filipino citizens is to apply for naturalization.
Q: Suppose you are benefited, what will happen to you?
A: Kilos Bayan vs. Ermita case (2007) The answer is rather indirect.
What happened here? Justice Ong was a justice of Sandiganbayan.
Take note that to be a justice of SB, you have to be a natural born
Filipino citizen. The problem with him was this, at one time he was
nominated to be a justice of the SC. Kilos Bayan challenged his
appointment because he was not a natural born Filipino because if
you look at his original birth certificate, it was stated there that he
was Chinese. He was able to become a lawyer because when he was
11 years old, his parents got naturalized. So he became a Filipino.
But in the end, the SC merely stated that Ong had to file a petition to
change the entry of his birth certificate to correct it to Filipino.
But the problem is in the a decision, the SC made a statement
that you are naturalized together with your parents. Meaning that
when you became citizen when you were 11 years old, you are only
naturalized. I am thinking that you cannot have a better right than
your parents. If your parents are only naturalized, how can you be
natural born if you get your citizenship from your parents?
But I am thinking there is another argument. The SC did not
mention it as it is only an obiter, but I am thinking that Ong will fall
under the first paragraph natural born without performing any act
because if you are 11 years old, you are not Filipino citizen from
birth but you did not perform any act to complete your Filipino
citizenship.
Anyway, the SC did not reason out, it merely made a statement
that you are naturalized together with your parents.

Section 3. Philippine citizenship may be lost or reacquired in the


manner provided by law.
Two things: How it is lost and how is it reacquired.
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HOW LOST :
1. NATURALIZATION IN A FOREIGN COUNTRY: In the old days, as a
matter of principle, naturalization in a foreign country results to the
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automatic loss of Philippine cit. However, in 2003, under RA 9225 ,
there is an exception.
The law says that if you get naturalized in a foreign country but
at the same time, you take an oath of allegiance as required by law,
you retain Philippine citizenship. Meaning that under RA 9225,
naturalization in a foreign country does not automatically result to
loss of Philippine citizenship. You can retain it if you take the
required oath of allegiance. So the result is you are now a dual
citizen.
2. EXPRESS REUNUNCIATION: This is normal. In all oath taking, you
say I hereby renounce my allegiance to all foreign state. But if you
take a look at RA 9225, Congress did not put it because it will be
difficult for a Filipino to now acquire dual citizenship. But in all cases,

4
BAR Q (2000)
5
This has been asked 3 times in the bar already (1999, 2000, 2003)
Citizenship retention and reacquisition act; Dual citizenship law
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

Consti 1Review 2008 Lectures of Atty. dela Banda

this will also be a result of no. 1. If you get naturalized in a foreign


country, you always renounce other citizenship.
3. SUBSCRIBING TO AN OATH OF ALLEGIANCE: This is also a
necessary result of the first one.
4. RENDERING SERVICE TO ARMED FORCES OF ANOTHER
COUNTRY: But it is good to understand that there is an exception
In countries where the Philippines has a mutual defense treaty,
service in the foreign army will not result to loss. However, an
exception to the exception is if you join the armed forces of a
foreign country (with whom Phil has a mutual defense treaty)
without the consent of the Philippine government, it will result to
loss of Philippine citizenship.
5. CANCELLATION OF CERTIFICATE OF NATURALIZATION : This
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applies only to naturalized Filipino citizen.
6. DESSERTION OF ARMED FORCES TO ANOTHER COUNTRY: This
applies only in time of international war.
HOW REACQUIRED:
1. JUDICIAL NATURALIZATION
2. ACT OF CONGRESS
3. REPATRIATION
4. TAKING AN OATH UNDER RA 9225: So the law actually has two
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elements: retention and reacquisition.

Who are allowed to be repatriated?


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1. Deserters of the armed forces of the Philippines


2. Filipino women who lost Phil. Cit by marriage. This applies
only to those who lost Phil. Cit prior to the 1987 constitution.
3. RA 8171 Those who lost Phil. Cit by reason of economic or
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political necessity

Tabasa vs. CA(2006) The privilege of repatriation under RA


8171 is available only to natural-born Filipinos who lost their
citizenship on account of political or economic necessity and to
the minor children of said natural-born Filipinos. This means that
if a parent who had renounced his Phil. cit due to political or
economic reasons later decides to repatriate under RA 8171, his
repatriation will also benefit his minor children according to law.
Tabasa, being 35 years old, was not a minor at the time of his
repatriation.
Neither was Tabasa a natural-born Filipino who left the
country due to political or economic necessity. Clearly, he lost his
Phil. cit by operation of law and not due to political or economic
exigencies. It was his father who could have been motivated by
economic or political reasons in deciding to apply for
naturalization. The decision was his parents, not his. The
privilege of repatriation under RA 8171 is extended directly to the
natural-born Filipinos who could prove that they acquired
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citizenship of a foreign country due to political and economic


reasons, and extended indirectly to the minor children at the time of
repatriation.
4. Accepting commission in US Army (RA 2630)
5. PD 725 Any natural born Filipino citizen who lost Philippine
citizenship for any reason can get it back through repatriation
Section 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.
Principle: A Filipino citizen, whether man or woman, who marry
aliens will have no problem. When do they lose their citizenship?
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Only when they perform acts or omissions .
Bar Q: (1994) In 1989, Zeny Reyes married Ben Tulog, a national of
the State of Kongo. Under the laws of Kongo, an alien woman
marrying a Kongo national automatically acquires Kongo citizenship.
After her marriage, Zeny resided in Kongo and acquired a Kongo
passport. In 1991, Zeny returned to the Philippines to run for
Governor of Sorsogon.
(1) Was Zeny qualified to run for Governor? (2) Suppose instead of
entering politics. Zeny just got herself elected as vice-president of the
Philippine Bulletin, a local newspaper. Was she qualified to hold that
position?
Suggested answer:
1. She is qualified because mere marriage to an alien does not result
to loss of Phil. citizenship. The fact that she was holding two
passports does not mean anything.
BAR Q (2004) TCA, a Filipina medical technologist, leftin 1975 to
work in ZOZ State. In 1988 she married ODH, a citizen of ZOZ.
Pursuant to ZOZ's law, by taking an oath of allegiance, she acquired
her husband's citizenship. ODH died in 2001, leaving her financially
secured. She returned home in 2002, and sought elective office in
2004 by running for Mayor of APP, her hometown. Her opponent
sought to have her disqualified because of her ZOZ citizenship. She
replied that although she acquired ZOZ's citizenship because of
marriage, she did not lose her Filipino citizenship. Both her parents,
she said, are Filipino citizens. Is TCA qualified to run for Mayor?
Suggested answer: She is no longer qualified because by taking an
oath of allegiance, TCA lost her citizenship.
Q: What is the effect on the citizenship of an alien woman if she
marries a Filipino man? (Bar Q in civil law)
The issue of an alien woman marrying a Filipino man is not covered
by the Constitution. It is covered by law and by the decisions of the
Supreme Court.
In the case of Moy Ya Lim Yao (41 SCRA 292), the SC stated that
when an alien woman marries a Filipino, she becomes ipso facto a
Filipino citizen, provided she does not possess any of the
disqualifications. I always emphasize this that there is no need to
possess the qualifications, so long as you do not possess any of the
disqualifications.

I used to be very sure, but I am not so sure now if there is a crime which
will result to loss of Philippine citizenship. Because in the old days, when
Marcos was still president, rebellion was penalized with loss of Phil. Cit.
But now, if you are natural born, there seems to be no way to remove your
Phil. Cit.
11
7
However, in the Domingo case, the SC came up with another
Retention: I lost my Phil cit but I immediately reacquired it.
decision. Marriage does not ipso facto make you a citizen.
Reacquisition: I lost it in 1940, I can reacquire it now under the law simply
by taking an oath of allegiance. I am really confused about this because the
law does not use the word repatriation. It is simply saying that taking an
So it seems to be contradictory, but if you analyze and reconcile it,
oath of allegiance. So it seems that there is a fourth way of reacquiring
even under the Moy Ya decision, if you are an alien woman who
Filipino citizenship, and that is simply by taking an oath of allegiance
under RA 9225. But take note that this applies only to people who lost Fil.
10 But do not bother with this because until now, Congress has not passed a
Cit by naturalization in a foreign country. It cannot be applied to people
who lost the Fil. Cit by some other means. So the first element is you are
law defining what are the acts or omissions that will result to loss of Filipino
natural born and the second is you lost your Fil cit because you got
citizenship.
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naturalized in another country.
Filipino man who married Filipina and then went to Indonesia. In Indonesia,
8
I am thinking that this is the only act by which you lose your Filipino
converted into Islam and married an Indonesian woman. Went home to
citizenship. This is not under the RPC but under Articles of war.
Philippines bringing along his Indonesian wife. When Filipina wife
9
The best example I can provide is some people who went to the US
discovered the bigamous marriage, a petition for deportation was filed.
because they were enemies of Marcos. So when they returned, they were
Indonesian wife claimed that she was already a Filipino by virtue of marriage,
already naturalized.
thus cannot be deported.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
4

Consti 1Review 2008 Lectures of Atty. dela Banda

marries a Filipino this is the procedure: you file a petition to


cancel your certificate of alien registration with the BID. So it is an
administrative proceeding. The BID will find out if you are not
disqualified to become a Filipino, and if youre not disqualified
then you can take an oath of allegiance without necessarily going
to court. So in a sense, you can say that it is ipso facto. But on the
other hand, you can also say that it is not automatic because you
still undergo a proceeding. So either way it can be justified. The
principle simply is this: you need not be naturalized anymore.
Q: Suppose it is an alien man who marries a Filipina, what is the
effect on citizenship of the alien man?
A: Marriage has no effect. The alien remains an alien. The only
way for him to become a Filipino citizen is to file a petition for
naturalization. The only good thing about it is that they reduced
the residency requirement. Because almost in all cases, there is a
residency requirement of 10 years. But if you are an alien man,
you only have to reside for 5 years.
Section 5. Dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law.
This provision is not self-executing because it is saying that dual
citizenship shall be dealt with by law. This means that the
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Constitution itself does not declare illegal dual citizenship . But
we know from commentators that we are dealing with dual
allegiance here.
What has Congress done to address the problem? Two things:
1. Sec. 40, RA 7160 this is consistent with the Constitution.

Valles vs. COMELEC (8/9/2000)


F: Lopez was born in 1934 in Australia to a Filipino father and
alien mother. She won as governor. Valles contends that Lopez
renounced her Phil citizenship when she applied for ACR in 1988,
thus it is of no moment if she renounced her Australian
citizenship in 1992. She did not reacquire her Phil citizenship
when Lopez elected Filipino citizenship
H: Lopez is a Filipino. Distinguish dual citizenship from dual
allegiance. When it comes to dual citizenship, in some cases, it is
really involuntary. But dual allegiance is always voluntary. When
Congress prohibited dual citizens from running for local elective
positions, Congress was actually referring to dual allegiance. And
if you are dual citizenship, once you file your certificate of
candidacy, there is automatic renunciation of your foreign
citizenship.
The mere fact that private respondent Rosalind Ybasco Lopez was
a holder of an Australian passport and had an alien certificate of
registration are not acts constituting an effective renunciation of
citizenship and do not militate against her claim of Filipino
citizenship. For renunciation to effectively result in the loss of
citizenship, the same must be express. As held by this court in the
aforecited case of Aznar, an application for an alien certificate of
registration does not amount to an express renunciation or
repudiation of one's citizenship. The application of the herein
private respondent for an alien certificate of registration, and her
holding of an Australian passport, as in the case of Mercado vs.
Manzano, were mere acts of assertion of her Australian
citizenship before she effectively renounced the same. Thus, at
the most, private respondent had dual citizenship - she was an
Australian and a Filipino, as well.

CAASI VS. CA 191 SCRA 229 (Bar Q)


F: Caasi involved dual residency. He was a green card holder. A
person who is a green card holder, in order to qualify for public
office, must not only file a COC because such act by itself does
not constitute a waiver of his status as a permanent resident of
another country. He must also perform acts independent of the

12

filing of the COC to show that he is renouncing his green card status.
These acts must be performed prior to the filing of the COC.
Summary: In the end therefore, filing of certificate of candidacy
results into the renunciation of alien citizenship, but it does not
result into renunciation of foreign permanent residency.

2. RA 9225 If you try to examine it, Congress is going against the


Constitution. They passed a law outlawing dual allegiance of citizens,
but Congress is saying is saying you can now have dual citizenship.

AASJS vs. Datumanong (2007) The constitutionality of RA


9225 was questioned. According to the SC, RA 9225 is constitutional.
The intent of the legislature in drafting RA 9225 is to do away with
the provision in CA 63 which takes away Philippine citizenship from
natural-born Filipinos who become naturalized citizens of other
countries. What RA 9225 does is allow dual citizenship to natural
born citizens who have lost Phil. cit by reason of their naturalization
as citizens of a foreign country. On its face, it does not recognize
dual allegiance. By swearing to the supreme authority of the
Republic, the person implicitly renounces his foreign citizenship.
Plainly, Sec. 3 of RA 9225 stayed clear out of the problem of dual
allegiance and shifted the burden of confronting the issue of
whether or not there is dual allegiance to the concerned foreign
country. What happens to the other citizenship was not made a
concern of RA 9225.
Note: If you are a dual citizen, you can practice you profession in the
Philippines, you can be a lawyer and there is no problem. You can
also own natural resources.
If you are a dual citizen under RA 9225, can you run for public office
in the Phil? This is answered by law. You can run for public office but
you must file or execute a personal sworn renunciation of all foreign
citizenship. What is the significance? Go back to LGC, the act of filing
COC results to automatic renunciation. But if you are a dual
citizenship under RA 9225, the act of filing is not enough. Because it
is required that you execute a personal sworn renunciation of all
foreign citizenship.
Bar Q: (1996) X was born in the United States of a Filipino father and
a Mexican mother. He returned to the Philippines when he was
twenty-six years of age, carrying an American passport and he was
registered as an alien with the Bureau of Immigration. Was X
qualified to run for membership in the House of Representatives in
the 1995
elections? Explain.
Suggested Answer: X is qualified. The only requirement under the
Constitution for one to become a member of the HR is that one is
natural born Filipino citizen. Considering that his father is a Filipino,
following the principle of jus sanguinis, X is a natural born Filipino
citizen, thus he is qualified to run.
Note: In another BQ, it was asked if X was allowed to a Director of an
advertising company. According to Sir, when it comes to natural
resources, the fact that you are natural born, naturalized, or
repatriated does not matter. For as long as you are a Filipino, you
can own natural resources.
(by: Hanniyah )
SEPTEMBER 18, 2008
ARTICLE V
13
SUFFRAGE
Section 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

13
The Constitution is simply saying that Congress, do something about
Ever since the new constitution took effect, suffrage has never been asked
this because this is bad for national interest.
in the Bar, even in election laws.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
5

Consti 1Review 2008 Lectures of Atty. dela Banda

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.
Try to remember the qualifications before one can vote. There
are two categories which you have to remember as applied to
local voters and as applied to national voters.
LOCAL VOTERS
1. Citizen There is no requirement that you are natural born for as long as
you are a citizen that is sufficient.
2. 18 years old on the day of the election;
3. not otherwise disqualified by law
You are 18 years of age on the day of the election and not
otherwise disqualified by law -- meaning the provisions under the
Election Code which provides for disqualifications, like those of
unsound mind.
4. resident of the Philippines for 1 year
5. resident of the place where you are voting
Try to take note of the distinction between resident in number
four and word resident in number 5. We are told that when it
comes to resident of the Philippines (number 4) that means
domicile. Meaning permanent resident of the Philippines, not
temporary. Because for local voters, if you are a green card
holder, you cannot vote. I am talking about local voters because it
will be complicated when it comes to the law.
As applied to resident of the place where you are exercising your
right to vote, we are told that it has two meanings: it can be
temporary or it can be permanent. Because of this interpretation,
the net result is this:

So 1 - 3 are the same for local voters, but SC and Congress is saying
that 4 and 5 will no longer hold. Why? Because under the law, even
if you are a green card holder, if you are a Filipino citizen, you can
vote under the Absentee voting law. In fact the law is very clear, it
can apply to immigrants and permanent citizens in the foreign
country. That means that we have to do away with the requirement
of residency in the Philippines. As a substitute for requirements 4
and 5, there is now a need to:
4. execute an affidavit promising to return to the Philippines within
3 years after the approval of your registration. Take note that it is
only a promise. What will happen if you do not return? That will not
invalidate your vote, but maybe next time you will not be allowed to
vote anymore.
If you try to analyze it, it seems to maintain number 4 requirement
(for local voters) because you are promising to return to the
Philippines. Congress seems to be thinking that in the first place, you
have intent to return. You still have your domicile in the Philippines.
But in the end, that is only an affidavit to return.
5. not applied for citizenship in another country.
Q: How do we distinguish, apart from the qualifications, local voters
from the absentee voters?
A: 1. as to whom you can vote for: Local voters participate in voting
for both local and national elections. But an absentee voter cannot
participate in local elections, meaning you cannot vote for mayor,
vice mayor, governors. (Sir dela banda thinks that for purposes of
the election, they consider the House of Representatives as local
elections).
2. where do you vote: Local voters vote in the Philippines; absentee
voters vote abroad usually in the Philippine embassy. (See law for
procedure)

-- If you happen to be a resident of the Philippines (No. 4), you


now have a choice to vote in the place where you are a
permanent resident or in the place where you are a temporary
resident.

So if you are asked the question: Can a green card holder vote? The
answer is yes, provided you execute an affidavit, and provided also
that you have not applied for citizenship in another country.

For example: If you are a student and you permanently reside in


Cotabato but you study in Davao, you can vote in Cotabato or in
Davao, you have a choice.

What about the question: can you be voted for if you are a green
card holder? We already answered that residency requirement is
intact in so far as qualifications for holding an elective office is
concerned.

That is very important because the word resident appears also in


the Constitution and it also appears in the Local Government
Code. But in the LGC, if the word appears as a qualification for
holding office, it only means domicile. But when it comes to the
right to vote, it has two meanings. The Supreme Court is very
clear that it means only domicile if it is a qualification for holding
elective office.
We go to the complications. Congress enacted RA 8189
(Absentee voting law) and this was challenged by Macalintal. If
we try to simplify it, if you are an absentee voter, these are the
qualifications:
Section 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.
Qualifications:
1. citizen of the Phils
2. 18 years of age at the time of the election
3. not otherwise disqualified by law

In the case of Nicolas-Lewis vs. COMELEC, the question was can a


dual citizen vote? Yes, a dual citizen can vote because anyway the
minimum requirement is that you are a citizen of the Philippines.
So where do you vote? It depends. If you are a resident dual citizen,
you have to vote here. But if you are not residing in the Philippines,
you follow the absentee voting law.
Can a dual citizen be voted for? Yes, but you have to first execute a
personal sworn renunciation of your foreign citizen and also another
requirement is that you are not holding a public office in the foreign
country, or you must not be a candidate to hold public office in the
foreign country. Also, you are not in the active service of the armed
forces of the foreign country.
What are the three duties of Congress under Sec. 2?
1. It must provide for a system ensuring the sanctity and secrecy of
the ballot.
2. It must provide for a system of absentee voting
3. provide for a procedure for the disabled and the illiterates to vote
without the assistance of other persons.
ARTICLE VI- LEGISLATIVE
Section 1. The legislative power shall be vested in the Congress of
the Philippines which shall consist of a Senate and a House of

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

Consti 1Review 2008 Lectures of Atty. dela Banda

Representatives, except to the extent reserved to the people by


the provision on initiative and referendum.
Sec. 1 does not define legislative power. It tells us who exercises
legislative power (which is a bit strange because the Constitution
does not also define what is executive power but it defines what
is judicial power).

under the terms of a treaty, is a valid limitation to Congress' power.


Congress may be forced to implement the treaty. Under the
principle of pacta sund servanda, we are forced to observe the
terms of the treaty in good faith. We are obliged to implement it. So
in the end, it is a limitation not only on our sovereignty, but also on
the part of congress in passing legislation.
2. It is limited by the Constitution;

LEGISLATIVE POWER is the power to enact, amend, repeal any


law. There is one bar question asked this year:
In 1963, congress passed a law creating a government-owned
corporation named Manila War Memorial Commission (MWMC),
with the primary function of overseeing the construction of a
massive memorial in the heart of Manila to commemorate victim
of the 1945 Battle of Manila

The first one is procedural - for instance, before a law can be passed,
it must go through three readings;
The second is substantive limitation which may be express or
implied. The bulk of express limitation is found in the Bill of rights.
Implied substantive limitation are those which you cannot see in the
text of the Constitution but we know that it is there.

The MWMC charter provided an initial appropriation of


P1,000,000, empowered the corporation to raise funds in its own
name, and set aside a parcel of land in Malate for the memorial
site. The charter set the corporate life of MWMC at 50 years with
a proviso that Congress may not abolish MWMC until after the
completion of the memorial.

The first set will be those which are implied from the doctrine of
separation of powers. For instance, we know that Congress cannot
pass martial law because it belongs to the president. The second one
arises from the principle of non-delagability. The idea simply is this:
Considering that legislative power came from the people, in theory,
Congress cannot be allowed to delegate it anymore.

Forty-five (45) years later, the memorial was only 1/3 complete
and the memorial site itself had long been overrun by quatters.
Congress enacted a law abolishing the MWMC and requiring that
the funds raised by it be remitted to the National Treasury. The
MWMC challenged the validity of the law, arguing that under its
charter its mandate is to complete the memorial no matter how
long it takes. Decide with reason. (6%)

But there are exceptions to this rule:

Suggested answer: The power of Congress is plenary; it is subject


to no limitation. As a consequence, Congress cannot pass a law
that cannot be repealed. In fact in one case, the City of Davao vs.
RTC Branch 12 (2005), the Congress cannot even pass a law which
can only be repealed subject to conditions. (For instance, this law
cannot be repealed unless another law is repealed first). This
cannot be done because it will be limiting the powers of Congress
and violating the plenary powers of Congress.

a. delegation to local government units;


No question about this. LGUs pass ordinances and nobody
questions that.
b. delegations allowed under the constitution
You have the following powers: setting limits to import
and export -- this is allowed by the Constitution to be delegated to
the President.
c. delegations to the people
Until now, I cannot make up my mind as to whether there
is such thing. Because I told you Sec. 32, that legislative power is
merely delegated and the people reserve that power. So it does not
come from Congress. So commentators quarrel about this.

Before we go any further, just remember the classification of


power in J. Cruz' book:

d. delegation to the administrative bodies. (or rule making


delegation; or the power of subordinate legislation)

I. As to who exercises:
a. original legislative power- one exericised by the people. Sec. 32
is the best example because it reserves the power to the people
to, by themselves, enact a law through initiative or referendum;

The power to pass implementing rules to implement


legislation. This is not really law making by itself.

b. delegated legislative power - which is exercised by the


Congress in Sec. 1. The principle there is that the people hold
legislative power they only delegate it to Congress.
II. as to subject:
a. constituent legislative power - the power to amend the
constitution or modify it. That's why we have the term
constituent assembly (con ass). But remember this power belongs
to the people, Congress only proposes.
b. ordinary legislative power - power to amend or enact an
ordinary law. It belongs to Congress and to the people (through
iniative and referendum)
The main principle is that Congress' power is plenary. But we are
now told that the legislative power of Congress is subject to main
limitations:
1. It is limited by international law;
The limitation by internationl law came out in 2000, when the SC
decided the case of Tanada (challenge on the WTO). Tanada was
saying that if the Congress' power can be restricted by the terms
of the treaty, it will be forced to pass a law implementing the
treaty. The SC stated that it's okay. International law, particularly

I think you know by now what are administrative bodies.


But in the SC decisions, its seems that this is really not solely limited
to administrative bodies. Because for instance, the CHAVEZ case,
delegated the matter about issuing permits for firearms, it delegated
the same to PNP. It is not an administrative body. Usually,
delegation to the President is subject to the same principle also.
Another is PCA (Phil. Coconut Authority), that is not an
administrative body but that is allowable. So this illustrates that
sometimes it is not really administrative bodies but also individuals
and entitites.
You will usually find this in delegation to heads of
executive bodies. For instance, the power to implement the labor
code is lodged in the DOLE Secretary. Remember the Beltran case
(Blood bank case) wherein the Sec. of Health was given the power
and we apply the same principle.
KMU vs. Garcia Jr., - Congress passed a law giving to LTFRB the
power to raise bus fares. But the LTFRB gave it to the provincial bus
operators. The SC said no more. We only allow delegation upto
LTFRB because it is an exception; it is an administrative body but in
no case can the LTFRB pass it to another body because there can be
only one delegation. In passing the same powers, there is now
double delegation. So what is delegated cannot be further
delegated.
In another case which involves NPC (NPC DAMA vs. NPC) - National
Power Board is composed of heads of executive departments. It is

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

Consti 1Review 2008 Lectures of Atty. dela Banda

the governing body of NPC. Congress passed a law giving the NPB
certain powers specially involving regulation and matters about
the corporation. At one time, the NPB conducted a meeting, and
since the members of the cabinet are busy, their representatives
attended the same. And they voted to dismiss many employees
(cut out one department of NPC).
SC stated that the assistants of the heads of executive
department cannot vote on such action. Why? Because the
powers of the Secretaries were given by law. So the secretaries
cannot delegate them further. So if these people attended the
meeting, they cannot do anything that will bind the secretaries.

Tests to find out whether delegation to administrative


bodies is constitutional or not: (Bar Q: 2005)

1. Completeness test - the law is complete in all its terms and


conditions when it leaves the legislature. Meaning that
everything is there, the delegate is not really legislating but
merely implementing. Among the cases here are ABAKADA case
(amended VAT law); Beltran case
2. Sufficient standard test - There must be adequate guidelines
and limitations to map out the delegate's authority and prevent
the delegation from manic riot. Simply, these are just words in
the law; pretexts to ensure that the delegate does not abuse its
power. These are guidelines in implementing the law.
Example: We know that the President can declare Martial Law,
but there are certain guidelines -- only when there is rebellion
and public safety requires it. In a sense, those are the guidelines
because if the President just declares ML without meeting these
guidelines, we know he/she is abusing (her power).
Another thing you need to understand here is that in almost all
cases, the Supreme Court will sustain it. Sometimes the words are
vague, for instance, the Beltran case -- "abolishg all existing
bloodbanks in the interest of public health". The SC said that
public health is good enough; it can guide the Secretary.
In fact, in Philippine jurisprudence, there are only 2 instances
(after 100 years) that the SC considered the guidelines/standards
are inadequate:
a. public welfare to create cities and municipalities -- public
welfare is really a broad term. That's why the constitution has
tried to cure this by providing for standards when cities and
municipalities can be created.
b. People vs. Dacuycuy (2005 Bar Q): If you violate this law, you
will be imprisoned at the discretion of the court. The SC said that
that is an inadequate guideline.
SC decisions -- The following are things that the delegate cannot
do:
1. The delegate cannot change legislative policy;
Policy making actually belongs to the executive or the
legislative.
Association vs. PCA (1998) - Congress passed a law
creating the PPA to promote the development of the coconut
industry. After sometime, PPA passed a rule that from now on,
we will not anymore regulate the industry. SC said that you
cannot do that because you are changing the policy.
2. The delegate cannot add or substract to the standards set by
Congress
Tatad vs. Secretary (1997) - The standard was that you
can deregulate the oil industry if prices in the world petroleum
market are declining. Second, if the exchange rate (dollar to peso)
is stable. If these two are present, you can deregulate. President
Ramos added a third one saying that I will now deregulate
because the two standards are present and there is depletion of
the oil deregulation fund. SC said you are making your own

standards, that is not found in the law. Why is this not allowed?
because we do not know if the president relied on his own standards
alone. So there are existing standards and he has his own standards,
we do not know which one he followed. So in the end that is not
allowed.
14

3. The delegate cannot expand its powers


People vs. Mansarin 75 SCRA 415 --The law passed by
Congress punished people for catching fish using poisonous
substance. The Secretary of Agriculture passed an implementing law
punishing use of poisonous substance and also use of electro-fishing.
The SC said that you cannot do that, you are expanding your powers.
(by: Hanniyah )
SECTION 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.
That is easy to understand
SECTION 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.
Just remember the qualifications for SENATOR:
1. Natural-born Citizens

Just remember that all constitutional positions require that you


have to be natural-born
2. 35 years of age
3. Able to read and write
4. A registered voter
5. A resident of the Philippines for not less than 2 years
immediately preceding the day of the election
Resident of the Philippines means domicile.
SECTION 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 for which he was elected.
rd

Just remember 2 consecutive terms. You can have a 3 term


provided it is not consecutive.
SECTION 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.
MARIANO vs. COMELEC
The seats in the Lower House can be increased by law piece
meal from time to time you can add one. This happens when
Congress creates a new city or province. It is saying unless
otherwise fixed by law. It does not have to be a general law. It can
be a special law. That is the reason why at at the moment you
14

I was talking to a former student. She has a client transporting coconut


lumber. Under the law, you are penalized only for illegally cutting coconut
lumber. She was telling me that her client was charged with illegally
transporting coconut lumber. I asked it where did they get the charge? If you
look at the implementing rules of the PCA, it is there -- but it is not in the law.
So that cannot be done.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
8

Consti 1Review 2008 Lectures of Atty. dela Banda

cannot tell how many congressmen are there. From time to time
they add one, they add two.
(2) The party-list representatives shall constitute twenty per
centum of the total number of representatives including those
under the party list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to
party-list representatives shall be filled, as provided by law, by
selection or election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector.

VETERANS vs. AKBAYAN


ANG BAGONG BAYANI vs. COMELEC (2 cases)
CIBAC vs. COMELEC
BANTAY REPUBLIC vs. COMELEC

2007 Bar Question: X. The Supreme Court has provided a formula


for allocating seats for party-list representatives.
a. The twenty percent allocation - the combined number of all
party-Iist congressmen shall not exceed twenty percent of the
total membership of the House of Representatives, including
those elected under the party list;
b. The two percent threshold - only those parties garnering a
minimum of two percent of the total valid votes cast for the
party-list system are "qualified" to have a seat in the House of
Representatives;
c. The three-seat limit - each qualified party, regardless of the
number of votes it actually obtained, is entitled to a maximum of
three seats; that is, one "qualifying" and two additional seats; and
d. The first-party rule - additional seats which a qualified party
is entitled to shall be determined in relation to the total number
of votes garnered by the party with the highest number of votes.
For each of these rules, state the constitutional or legal
basis, if any, and the purpose.
(No answer from Sir. He just mentioned that this was asked in
the 2007 Bar Exams. I also cannot find a suggested answer ..
hehe )
nd

The 2 paragraph says that 20% should come from the party
list and 80% should come from representation of districts.
In the VETERANS case, it says that to have one seat, you
must have at least 2% of the valid votes cast. How did the
Supreme Court justify that 2% requirement because that is not
found in the Constitution? According to the SC, this will ensure
that the party list which gets the seat is significant enough and
big enough so that it can pass meaningful legislation. It is not just
anybody can be represented. There must be a threshold of 2% to
ensure that it has constituents and it can contribute something
significant to legislation.
st
ANG BAGONG BAYANI (1 case) The SC stated that even
traditional political parties can run under the party list. Just
because you are a political party does not mean that you are
prohibited because it is impliedly allowed by the Constitution and
it was allowed by the Debate.
The only requirement is that you must be marginalized and
underrepresented. This follows that these political parties who
have many representatives already will not be allowed to run
under the party list because they are not anymore
underrepresented. So, the traditional political parties can run if it
is marginalized and underreperesented.
The Supreme Court stated that you can look at the Articles
of Incorporation of this party list to find out about their program
and platform.
The Court is very clear that you cannot have an organization
of bankers (?) or sugar planters because they are very influential
people because they are not marginalized. They cannot run
under the party list.
ND

ANG BAGONG BAYANI (2 case) The Supreme Court


stated that the 2% should be based on the valid votes cast only.

It is not based on the number of registered voters. It is not


based on those voted in the election. It is not also based on those
who voted under the party list only but it is more specific it is only
based on the valid votes cast for the party list.
Sometimes you have 100,000 votes under the party list but
many of them are invalid because they voted for a party who has
been disqualified. So, do not include that because they are not valid
votes.
The requirement of the Supreme Court that it will be based
only on valid votes cast will ensure that more will be represented.
CIBAC case This was asked in the bar already, although not in
the form of a problem. (No mention of what year and I do not know
what question he is referring to .. hehe )
CIBAC included a very complicated mathematical computation
which I cannot understand.
Just remember that if you have 2%, you are entitled to one.
But if you have more votes, in no case where you will be allowed
more than 3 seats.
If you have 6% of the valid votes cast for the party list, are you
automatically entitled to 3 seats?
The answer of the Supreme Court is NO.
First, if you have 2%, you are automatically entitled to 1 seat.
Thats automatic.
What about the subsequent seats? According to the SC,
additional seats, not to exceed 2, which a qualified party is entitled
st
to shall be computed in proportion to the number of votes of the 1
party in relation to the total number of votes for the party list
system.
You do not look at it by looking at the 6% immediately. You will
have to base it on the number of votes which the first party got.
At present, Bayan Muna is the number one party because it has
the most number of votes. We will assume that it has 50% of the
votes. If it has 50%, it cannot be more than 3.
What about the next party? Suppose the other party has 6%. If
you look at the formula, it will not get 3 immediately because you
will base it on what the first party got because in the end, it will be
disproportionate if you also get 3. In the end, it will not be possible
that the next party will get 3, at most it will get 2. So, it depends on
what the first party got. The others will have to rely on what the
first party got.
st
Maybe it is good if the 1 party get 6% also. So, they will all get
an equivalent to 3 seats.
(He mentioned that Bantay Republic Act 7941 case was asked in the
2007 Bar Exams. But I cannot find any related question :o)
BANTAY REPUBLIC ACT 7941 is also about the party list but it
is more related to the Bill of Rights. During the 2007 election, the
COMELEC issued a resolution saying that the names of the
candidates for the party list should not be revealed until 3 oclock on
election day.
The group of Kilosbayan went to the SC saying that it violates
our right to information.
COMELEC stated that the party list election is not personoriented. It is party-oriented. So, you should not know who is the
person who will sit in the event that the party you voted for will win.
The SC stated NO because in the end, it will be the person who
will sit down. That is really the right of the people to information
and matters of public concern. They must know who are the
persons they are voting for.
(3) Each legislative district shall comprise, as far as practicable,
contiguous, compact and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each province,
shall have at least one representative.
(4) Within three years following the return of every census, the
Congress shall make a reapportionment of legislative districts based
on the standards provided in this section.
SEMA vs. COMELEC (July 15, 2008) The power to create
municipalities, cities and provinces is vested in Congress by the

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

Consti 1Review 2008 Lectures of Atty. dela Banda

Constitution but you have to create it under the conditions


provided in the Local Government Code.
When Congress passed a law, the charter of the autonomous
region, it provided that the legislative assembly of the
autonomous region can create provinces, cities and
municipalities provided they do it in accordance with the Local
Government Code. There must also be a law passed by the local
legislative assembly. It seems that Congress is delegating its
power to create cities, municipalities and provinces to the
regional assembly.
Because of that, the regional assembly created a new
province. And it included 8 municipalities.
The SC stated that the power of Congress to create cities and
provinces (actually municipalities ang nasabi .. pero murag
provinces ang pasabot ) cannot be delegated to the local
regional legislative assembly.
Why can they not create cities and provinces? The reason is
that in the Constitution, a province is entitled to 1 seat
automatically. Cities, assuming they have the population of
250,000, will have 1 seat.
We have problem here. They create a province or a city, but
under the Constitution, it automatically has one seat. But they
have no right also to create a legislative seat because the power
to create a legislative district exclusively belongs to Congress. It
cannot be delegated by Congress. According to the SC,
considering that the power to create a province and a city
necessarily includes the power to create a legislative district, it
will be nullified.
No problem with municipalities.
The second reason is, according to the SC, the power of the
regional legislative assembly, under the Constitution, is confined
only to its territory. But to create a seat in Congress, that is now
a national position. So, it cannot really create something which is
effective outside of its territory a national position.
But take note that the COMELEC consider a seat in the
House as a local position. The campaign period for the Lower
House is the same as the campaign period for local officials
because the COMELEC seems to regard it as a local position.
In Absentee Voting Law, you cannot vote for Congressman
because it is local.
But the Supreme Court now states that this is a national
position. It makes sense also in the sense that the salaries come
from the national office. The salaries come from the national
government.
SECTION 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 than
one year immediately preceding the day of the election.
Qualifications for MEMBER OF THE HOUSE OF REPRESENTATIVES:
1. Natural-born citizens
2. 25 years of age on the day of election
3. Able to read and write
4. A registered voter in the district where you want to be
elected
5. A resident of the Philippines for not less than 1 year
immediately preceding the day of the election
Regarding the party list, the qualifications are substantially
the same. Even if you are representing the youth sector, you
have to be 25 years of age.
With respect to being a registered voter in the district, this
only applies to a regular district representative because as a party
list representative, there seems to be no requirement that you
have to be a resident of a district because you represent a group.
It is a functional representation rather than a territorial
representation.

Take note of the decisions in:

ROMUALDEZ vs. COMELEC

AQUINO vs. COMELEC

DOMINO vs. COMELEC


where the SC stated that this (residence) means only domicile.
That is the reason why Imelda Marcos, who was out of Leyte for
40 years, was allowed to run because according to the SC, she had
no intent to abandon Leyte. All the while, she wanted to remain in
Leyte. She did not forfeit her domicile.
The doctrine in Aquino and Domino is almost similar. It simple
states that leasing a property, a house or a condominium unit, in the
district so that you can run there will not be allowed because that
does not mean that you have established domicile. That does not
show any permanency. The principle is residence here only means
domicile. It cannot mean anything else.
Backtrack:
The term of Senators is 6 years. But every 3 years, we elect 12.
We have a doctrine before where we said that it is a continuing
body. The House is not because every 3 years there is a new set of
membership. But the Supreme Court stated that the Senate is a
continuing body. So, for instance, you are ordered arrested because
of contempt, you remain in jail forever if you do not follow what the
Senate is telling you. But in the House, you have to be released after
3 years for the reason that the term ends. But in the Senate, there is
no end to the term.
But in the case of NERI, the Supreme Court stated that the
Senate is not a continuing body. The reason seems to be is that
under the 1935 Constitution where the decision in ARNAULT vs.
NAZARENO was made, where it was a continuing body, the rule was
different. Every 2 years, 8 senators were elected. So, every 2 years,
the remaining 16 will be there. So, it is the same body.
But now, every 3 years, you elect 12. 12 is not the majority.
So, it is no longer the same body. It is a bit strange but that is now
the doctrine. It is not a continuing body because only 12 remain
after every 3 years. It is not majority anymore. It is like the House
now because the membership is changed every 3 years.
SECTION 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.
Members of House of Representatives:

Term of 3 years

Not more than 3 consecutive terms

Voluntary renunciation of the office, similar to the Senate, 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
Bar Questions: (Answers are basically the same as discussed by sir
)
UP: Three-Term Limit: Congressmen (1996)
No. 13: - X, a member of the House of Representatives, was serving
his third consecutive term in the House. In June 1996 he was
appointed Secretary of National Defense. Can he run for election to
the Senate in the 1998 elections? Explain.
SUGGESTED ANSWER:
Yes, X can run for the Senate in the 1988 election. Under Section 7,
Article X of the Constitution, having served for three consecutive
terms as Member of the House of Representatives. X is only
prohibited from running for the same position.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

10

Consti 1Review 2008 Lectures of Atty. dela Banda

UP: Three-Term Limit; Congressmen (2001)


No V - During his third term, "A", a Member of the House of
Representatives, was suspended from office for a period of 60
days by his colleagues upon a vote of two-thirds of all the
Members of the House. In the next succeeding election, he filed
his certificate of candidacy for the same position. "B", the
opposing candidate, filed an action for disqualification of "A" on
the ground that the latter's, candidacy violated Section 7. Article
VI of the Constitution which provides that no Member of the
House of Representatives shall serve for more than three
consecutive terms. "A" answered that he was not barred from
running again for that position because his service was
interrupted by his 60- day suspension which was involuntary. Can
'A', legally continue with his candidacy or is he already barred?
Why? (5%)
SUGGESTED ANSWER:
"A" cannot legally continue with his candidacy. He was elected as
Member of the House of Representatives for a third term. This
term should be included in the computation of the term limits,
even if "A" did not serve for a full term. (Record of the
Constitutional Commission, Vol. n, p. 592.) He remained a
Member of the House of Representatives even if he was
suspended.
The idea there is if you are suspended, you continue to be a
member. You cannot only exercise your function but you are still
a member. Therefore, you have not lost your seat and you have
completed your term. You are not allowed to run again.
Suspension might be involuntary but you continue to be a
member. You cannot exercise your power for the time being. It
would be really absurd if you allow somebody to run after
suspension.
SECTION 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.

formal document certifying the existence of a vacancy in the


appropriate house.
2.

The vacancy must occur 18 months before the next regular


election in the Senate or 1 year in the case of the House of
Representatives
If it is too short, why waste the money of the people.
Better leave the seat vacant. The only time we had a special
election in the Senate is when Guingona became VicePresident.

It is good to understand that because of this requirement now,


it really becomes optional because you cannot force Congress to
issue a resolution. If they will not issue a resolution that there is a
vacancy, no election can be called.
So, the 2 requisites must be present before you can have a
special election.
SECTION 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.

PHILCONSA vs. MATHAY

Q: Suppose the Senate and the House will pass a law now saying
that our salary will be increased to P 1 M every month. When will it
take effect?
A: When the term of everybody expires. The House Members
term will expire on June 30, 2010. Also for 12 Senators. The
problem is you have 12 Senators remaining. So, in the end, the
salary increase will take effect June 30, 2013, noon time.
(by: Jazzie )
SEPTEMBER 23, 2008

Unless otherwise provided by law it simply means you


cannot have election beyond June 30 because the principle is by
June 30, the term ends. Therefore, you have no hold over.
Therefore, it will be unconstitutional if Congress will pass a law
changing the date of the election after June 30. There will be a
vacuum we would have no Congressmen occupying seats,
which might be better for the country
SECTION 9.
In case of vacancy in the Senate or in the
House of 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.
Q: Is it mandatory to hold a special election in case of a
vacancy?
A: NO. There are too many cases that it has become vacant like
after Jalosjos was sentenced finally, there was no election in
Dipolog.
Q:

Can you file a case to require a holding of an election?


That was answered by the Supreme Court in the old case of
LOZADA vs. COMELEC. According to the Supreme Court, you
have no standing. You only have a general interest, not a specific
injury to be suffered. It is a general interest because that is an
interest suffered or enjoyed by all the voters to have a candidate.
It is not specific to you. So, you have no standing.
The rule now regarding special elections is laid down in RA
6645. There are 2 requisites before you can hold a special
election:
1.

There must be a resolution certifying to the existence of a


vacancy from the appropriate house.
If the vacancy is in the lower house, they must issue a
resolution saying that there is a vacancy here. That is a

Article VI - Legislative Department


Section 11 - A Senator or Member of the House of Representatives
shall, in all offenses punishable by not more than six years
imprisonment, be privileged from arrest while the Congress is in
session. No Member shall be questioned nor be held liable in any
other place for any speech or debate in the Congress or in any
committee thereof.
I. Privilege from Arrest
This privilege only means that you cannot be arrested. This
does not mean that you cannot be charged, because the first part is
not immunity. The reason for this is you cannot be arrested while in
the performance of your functions while the Congress is in session.
Requisites for the application of the privilege:
1. While Congress is in session
This means that Congress is NOT in recess, not in official recess.
This applies to the entire 11 month period from the time the session
opens until the end, unless Congress calls for recess in which case
you can be arrested.
2. Applies only to offenses punishable by not more than 6 years
imprisonment
This cannot be enlarged by Congress. Congress cannot pass a
law saying that this privilege will apply even to offenses punishable
by more than 6 years.
II. Parliamentary Freedom of Speech and Debate
Take note that this is immunity. You cannot be charged in any
court. The scope of this immunity is you cannot be charged
criminally, civilly (for damages) and administratively (even before
the Ombudsman).
However, this immunity is NOT absolute, because the
Constitution only says that you cannot be held accountable in any

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

11

Consti 1Review 2008 Lectures of Atty. dela Banda

other place. Meaning, within the Congress itself you can be


disciplined.
Coverage of Parliamentary Immunity: (Jimenez vs. Cabangbang)
1. utterances made in the performance of official duties
This applies to speeches or debates. Meaning the members
of Congress may be debating on certain measures.
2. bills introduced whether in session or not
This one is broader because this not only applies to speeches
and debates but also to bills. This covers also matters in writing.
3. other acts inside or outside the halls of Congress in the
discharge of duties
The third one is the broadest but very significant - this
includes acts.
Remember the Garciliano controversy (the tape), if you look
at the anti-wiretapping law, anybody who listens to a tape
recorded conversation without the consent of the parties that the
conversation will be taken can go to jail. This became the
problem because Congress wanted to listen to the tape. Some
commentators suggested that this is covered by the
parliamentary immunity because it also applies to other acts. The
immunity covers not only the talking, the writing but also the act
of listening because the Cabangbang decision expanded it to
mean acts also. There is no problem here because the acts are in
the discharge of official duties. They were listening in the course
of legislative investigation.
Section 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.
Important thing to remember: Members of legislature are NOT
required to divest themselves of business. They are still allowed
to engaged in business.
2 duties imposed by Sec 12:
1. full disclosure of business interests upon assuming office
This not only applies to Congress. There are other provisions
which require other public officers to make a disclosure. They do
it in the Statement of Assets and Liabilities.
2. notify the House concerned of potential conflict of interest that
may arise from the filing of proposed legislation
They may go on having a business but in the event they
propose a law and it may go in conflict with their business, they
must notify the House concerned. The obligation, actually, is very
minimal compared to Members of the Cabinet.
Section 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.

cannot be done because that is an employment. You are receiving


allowance from the government. Therefore, Congressmen and
Senators cannot give lectures to a government entity.
Atty. Dela Banda believes that they cannot be reviewers of UP
in the Bar examinations because that constitutes an employment,
not an office.
2. during his term
If you hold another office during your term, that is holding an
incompatible office because incompatible office presupposes you
are holding 2 positions.
3. in the Government, or any subdivision, agency, or instrumentality
thereof, including government-owned or controlled corporations or
their subsidiaries
Subdivision - applies to LGU or barangay.
Agency or instrumentality - Landbank of the Phils
GOCC - meaning majority of the stocks is owned by the govt
under subsidiary
Bar Question (BQ): Meaning of subsidiary in the context of
Constitutional Law
There was one question in the 1987 Bar, which was not settled.
In the charter of the colleges and universities, it is found there that
one of the Board of Regents is the Senator, who is the head of the
committee on education. So that became the subject matter of the
bar question in another context.
The examiner provided an answer which was not settled. If you
take a look at it, it seems to be prohibited because the provision (Sec
13) does not put any exception. But the examiner tries to justify it by
saying that that is ex-officio. The main function is being the
head/chairman of the committee on education. That is a good
reason for sitting in the Board of all colleges and universities in the
country.
Some commentators are saying that that cannot be done. Some
commentators are also saying that that can be done. So we do not
know for the moment because if you look at the charter of all
colleges and universities in the Phils, it is stated there and nobody
has challenged it. Atty. Dela Banda believes that if that is asked in
the Bar, you will have to say that that can be done because, anyway,
that is considered as an ex-officio position. That will not be regarded
as an incompatible office. That might be regarded as an additional
function for him.
Consequence for holding an Incompatible Office: Forfeiture of seat
in the Senate or in the House. It is the old position which will be
forfeited. There is a decision now (which will be discussed later)
wherein the SC said that it is the old position which will be lost.
II. Prohibited Appointments
2 items covered:
1. cannot be appointed to an office created during his term
2. cannot be appointed to an office where the emoluments thereof
was increased during his term
Take note: Prohibition applies to appointments only. It does not
prohibit/mention about election.
Distinction between Prohibited Appointments and Incompatible
Office:

I. Incompatible Office
Requisites:
1. cannot hold any other office or employment
Significance of the terms: There is a difference between
holding office and employment. If you are holding an office, you
are holding it in its entire continuity. Employment can only be for
a certain job or you are holding an office and you perform some
functions.
Situation being contemplated: A Congressman was giving
lectures in a judicial academy, a school for judges. The Secretary
of Justice Stated that definitely that is not an office, but still that

Prohibited Appointments
You are not allowed to
retire/resign in order to occupy
the prohibited offices. Even if
you retire, you will still not be
able to hold the new office.

Incompatible Office
If you retired/resigned already,
you can now hold the new
position.

Under the old law, if you are a Senator or a Congressman and


you run for any office, apart from President or V-Pres or the same

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

12

Consti 1Review 2008 Lectures of Atty. dela Banda

position, you are considered resigned upon the filing of the


Certificate of Candidacy (CoC)
We know that that is no longer applicable now for the
reason that Congress has passed a law removing that provision.
But that law still applies to appointive positions. So right now if
you are an appointive official, once you file your CoC, you are
considered resigned. If you are an elective official, even if you file
you CoC you are not considered resigned. You are considered
resigned only upon assuming your new position.
BQ: When do you forfeit your position? a) upon filing, b) upon
campaign, c) upon proclamation, and d) upon assumption
Answer: D - upon assumption
Dimaporo vs Mitra
It is still valid for Congress to pass a law providing for the
removal of a Congressman or Senator for some other reasons.
Meaning, the grounds provided for in the Constitution are NOT
exclusive. Under the Constitution there are only 2 grounds to
remove a Congressman or Senator but in the case of Dimaporo,
the Congress can add some more. That's why the SC invalidated
the provision in the Election Code saying that if you file your CoC
you are considered resigned or removed. So there is no provision
if Congress adds some more.
1993 BQ: How may a Congressman or Senator be removed from
office?
Answer: 1) Holding an incompatible office, 2) engaging in
disorderly behavior, 3) if disqualified after an election protest in
an election tribunal, and 4) resignation (voluntary renunciation)
Section 14 - No Senator or Member of the House of
Representatives may personally appear as counsel before any
court of justice or before the Electoral Tribunal, 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. Appearance as counsel before any court of justice or before
the Electoral Tribunal, or quasi-judicial and other administrative
bodies
> Congressmen and Senators who are lawyers are not prohibited
from practicing law. The only prohibition is from appearing in
those bodies - court of justice, Electoral Tribunal, quasi-judicial
and administrative bodies
> All other professions do not have any restriction unlike in the
case of Members of the Cabinet who are not allowed to practice
any profession. Members of Congress are not prohibited from
practicing their profession as a matter of Constitutional law.
BQ: Compare the prohibitions involving lawyers who
Members of Congress and lawyers who are Members of
Cabinet
Answer:
Lawyer-member of Congress - cannot appear in court
can practice other profession
Lawyer-member of Cabinet
- cannot practice
profession

are
the

but
any

De Guzman case
Fernandez was a lawyer and he appeared before the
Securities and Exchange Commission and somebody questioned
him. He went out and the following day he came back and he had
with him certificate of shares of stock saying that I am defending
myself because I have shares of stock, I am now part of the
corporation

The SC stated that you are not in good faith. You only
purchased your shares recently.
What is the implication of the decision? Atty. Dela Banda thinks
that the decision is still good. Remember the case of Senate vs
Macapagal wherein the Senate questioned EO 464, the prohibition
on the appearance of the Members of the Cabinet in a legislative
investigation. The lead counsel in the arguments in the SC was
actually Senator Arroyo. When Atty. Dela Banda asked him why he
was allowed to appear, he mentioned that he was appearing for the
Senate.
The idea therefore is very simple. If you have a case, you can
appear for yourself even if you are a Congressman or Senator.
Meaning, the decision in De Guzman is still good. The SC did not
allow him to appear only because he was not in good faith; he
became the owner only after the case was filed.
Conclusion: There is no prohibition from appearing if the lawyerSenator/Congressman is a party to a case.
II. Conflict of Interest
1. He cannot be, directly or indirectly, 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.
> This prohibition applies even to a private corporation which was
originally created under the Corporation Code but the majority of
stocks is owned by the govt
> What is prohibited only is if you enter into the contract for your
pecuniary benefit. For instance, you are a Congressman, you are a
contractor. You cannot enter into cotract with the govt. You cannot
be given a franchise by the govt. That will be conflict of interest.
BQ: Can a Congressman borrow money from the PNB? PNB is
definitely a govt corp.
Answer: It depends on the purpose. If it is not for pecuniary benefit,
like you need it to go to the hospital, there is no prohibition. If you
need the money to put a business, that will be barred. That is for
pecuniary benefit.
Take note that the prohibition regarding financial interest says
direct or indirect. There is no problem with direct (financial interest).
That is the one who enters into contract.
What about indirect? There is a problem there because
remember that a Senator/Congressman is not prohibited from
engaging in business. Atty. Dela Banda is thinking that the spouse
also cannot enter into contract with the govt. That will be indirect
because the system in the Phils is absolute community of property.
So the interest of one is also the interest of the other.
There is also a problem with the children. It became an issue
during that time regarding the son of De Venecia, because he
entered into a contract with the govt. Commentators would say that
there is no problem. That is not becoming indirectly interested. If
the children are of age, they also have to leave. That is why
commentators say they are not covered. They cannot be considered
as indirectly interested in a contract. If the son would have his own
family, he may engage in business for his own benefit. That is not
having indirect interest in the govt.
2. He cannot 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.
A. He cannot intervene in any matter before any office of the
Government for his pecuniary benefit
This is like you are acting like a fixer. You have a transaction in
Manila but you cannot go there. Then another govt official says I can
go there and do it for you. Atty.
Dela Banda is thinking that
this also applies to Congressmen. You are prohibited from
intervening in any office for your pecuniary benefit. You have to pay

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

13

Consti 1Review 2008 Lectures of Atty. dela Banda

pension then he says I can do it for you but you have to give
me 10%. If you are a congressman, that is very easy for you to go
there at the GSIS. So that is the idea here.
B. He cannot intervene in any matter before any office of the
Government where he may be called upon to act on account of
his office.
For instance you are the chairman of the House committee
on banking, you cannot be consultant to banks. You may be
called to act on account of your office.
Section 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. The President may call a special
session at any time.

Each House shall choose such other officers as it may deem


necessary.
Avelino vs Cuenco and Santiago vs Guingona
The principle involved in the 2 cases is that the election of
officers is considered as an internal matter. Regarding the validity of
elections, you cannot go to the SC and question it. The SC will have a
hands-off policy.
The only time when the SC can intervene is when there is a
violation of the text of the Constitution in the election. For instance
there is no quorum. They cannot function without a quorum so that
can be challenged.
(2) A majority of each House shall constitute a quorum to do
business, but a smaller number may adjourn from day to day and
may compel the attendance of absent Members in such manner,
and under such penalties, as such House may provide.
Quorum = 50% + 1

Opening of the session vs Beginning of the term:


Opening of the session
- 4th Monday of July.
- this is a significant event because this is also the time the
President makes her SONA (State of the Nation Address)
Beginning of the term - term begins at noontime of June 30
Regular session vs Special session:
Regular session
- one that starts on the 4th Monday of July
- it runs on and on until 30 days (excluding holidays, sundays
and saturdays) before the next 4th Monday of July
- Congress from time to time calls recess within the regular
session, and during that recess they cannot enjoy the privilege
from arrest
Special session
- when Congress is called into session by the President
- at any time when the President calls them into session
Compulsory Recess - during the 30-day period or so, there must
be a Compulsory Recess wherein they cannot call themselves into
session. However, they may be called into session by the
President (Special Session).
Pimentel vs Congress
During compulsory recess, the Congress cannot do anything
unless the President calls it into session.
The election for Pres, V-Pres and Senators was done May.
After May, you have to do the counting and the counting is done
by Congres in joint session. The counting went on and on even
until the compulsory recess period. Pimentel went to say that we
have to stop the counting because Congress is in compulsory
recess and the President cannot call it into special session. And so
the canvassing was null and void.
The issue was can Congress do the canvassing during
compulsory recess when it was not called into session.
The SC said YES. When you speak of compulsory recess, this
applies only to the legislative functions of Congress. Nonlegislative functions are not covered. Therefore, they can
continue the canvassing even during the compulsory period.
Non-legislative functions include impeachment. If the
President declares Martial Law during recess, Congress can
immediately convene even if the President had not called it into
session because that is non-legislative function. It is settled that
non-legislative functions can be conducted even during recess.
Can Congress conduct legislative investigations (during
compulsory recess)? No more. Because legislative investigation is
definitely a legislative function.
Section 16 - (1) The Senate shall elect its President and the
House of Representatives, its Speaker, by a majority vote of all
its respective Members.

Where is majority of all the Members based?


1. in the Constitutional number
In the case of Senate, there are 24 members. Majority is 13.
The 13 now will constitute the quorum.
However, it must be modified because there are instances
when we dont have all the 24 members occupying it. If the
Constitutional number is not fully filled, we base it on the actual
number.
2. Actual Number
In determining the actual number, we must exclude:
1) the dead
It is common sense that if someone dies, he is no longer a
member.
2) resigned
3) expelled
4) suspended
If you are suspended, you are still a member. But for purposes
of quorum, Atty. Dela Banda doubts that you can be included
because you cannot exercise your
functions. You cannot vote
anyway so why include you in the quorum.
5) found abroad
The Avelino case provided that those found abroad should be
excluded. If you are found abroad, you cannot be compelled to
attend by subpoena. So you cannot be included in the quorum.
> The decision in Avelino regarding quorum does not apply to
provincial boards, but it holds true in the case of the Senate and the
House.
> What about Trillanes, do we include him in the quorum? Trillanes
is still a member so definitely he is still part of the quorum.
(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.
I. Rules of Procedure
Arroyo vs De Venecia
Principles:
1. The matter of the rules of proceedings of the House and the
Senate is beyond review by the SC. It will not interfere with it.
2. It can be set aside by the House concerned anytime
There was a bill which was supposed to be for approval. The
Speaker said who is in favor of the bill. Arroyo was trying to object
but the Speaker was saying "Approved! Approved!" Then they had a
recess. Afterwards, they forwarded the bill to Malacanang for
signing. Arroyo went to court saying that it was not yet approved.
The SC said that when you look into the rules of the House
there should be a voting, but in this instance they decided to
suspend it. So they are free to suspend their own rules.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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However, the SC also stated that there are 2 situations when they
cannot suspend their own rules:
1. when the rule in the rules of procedure is a rule of the
constitution
For instance it is stated in the Constitution that before a bill
may become a law there must be 3 readings. That is a rule of the
Constitution. So that cannot be set aside by the House or the
Senate for the reason that it is the rule of the Constitution.
2. when it will affect the rights of 3rd persons
If there are people who are not members of the House or
Senate, definitely they have rights that have to be respected.
II. Punishment for disorderly behavior
Number of votes required: 2/3 of all its members
Principles:
1. This is not subject to review by the court.
If a House member or Senate member is punished, you
cannot go to the SC and have it reviewed.
2. The power to suspend a member is not exclusive.
Paredes case and Santiago vs Sandiganbayan
If a Congressman, Senator or any govt official is facing an
anti-graft law charge, you have to be suspended for 90 days. So
that was questioned by Senator Santiago and Congressman
Paredes.
The SC stated that the power of Congress to suspend is not
exclusive. You can also be suspended on account of the law by
the Sandiganbayan. The Court made a distinction as to the
suspension. According to SC, the suspension here is a penalty but
the suspension under the anti-graft law is preventive. It is only
made to ensure
that you will not tamper with the evidence
but here the purpose is to punish you. They can actually go
together.
> The House or the Senate may impose a penalty lesser than
suspension or removal. If the penalty is fine, censure or
reprimand, you need not comply with the 2/3 requirement.
(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.
> The discussion under this topic is evidentiary in nature.
Important documents:
1. Record - word for word account of the proceedings
2. Journal - abbreviated content of the proceedings (summary or
minutes)
3. Enrolled Bill - bill finally approved by both Houses signed by the
3 officers (Senate President, Speaker of the House and President).
It has the force of law considering that it has already been
approved.
Principles:
1. The journal and enrolled bill are conclusive upon the courts.
This is an issue of evidence. Meaning, nobody is allowed to
present evidence in order to contradict the contents of the
journal and the enrolled bill.

journal. We cannot examine if it is true or not. It is conclusive upon


the courts.
Casco vs Gimenez
The quarrel involves the interpretation of urea formaldehyde or
urea and formaldehyde. The one should be the one intended by
Congress. The SC said that what appears in the enrolled bill is the
one. We cannot question that because that is conclusive upon the
courts. You cannot present evidence on what the Congress was
intending.
PJA vs Prado
It was contended that a provision should not be part of the law.
That provision is not supposed to be there. Somebody put that
there.
Farinas vs Executive
That is the Fair Elections Act. Farinas was saying that we never
indicated that section. Why put it there. What did the SC say? That is
conclusive upon the courts. We cannot inquire how that got there.
We cannot entertain who entered what.
Exceptions:
1. Astorga vs Villegas
In the Senate, they debated a bill and then they revised it.
Afterwards, the one that they printed is the original one. For some
reason , the Senate President and the House Speaker signed the bill
without reading. And the President signed it also. So it became a
problem, whether it is conclusive. When it was discovered that they
printed anything and they signed without reading, the Senate
President and the House Speaker withdrew their signature.
According to the SC, it is no longer enrolled because it lacks the
number of signatures required under the enrolled bill doctrine.
2) mentioned in PJA vs Prado
The enrolled bill is not conclusive as to matters required to be
entered in the journal. With respect to matters required to be
entered in the journal, you are required for instance to present
books on the final reading of the bill. Also when there is a veto and
the veto is overcome if the persons who voted are stated in the
journal. So these are matters required by the Constitution to be
entered in the journal.
The law actually after it is approved, there is a certification by
the Senate and the House that the bill was duly approved on this
date, etc. So there is an approval. Can you question it? Generally
NO, because that is conclusive upon the courts. But if you argue that
actually there was not enough votes, that this bill was not validly
approved, Atty. Dela Banda believes that the SC will review it
because the decision says as to matters required to be entered in
the journal and the required vote is 1/3, so it will not be conclusive.
SC is saying that when it comes to matters required to be
entered in the journal, they can examine the enrolled bill. In the end
therefore, the enrolled bill doctrine is not really conclusive upon the
courts. It is only QUASI-CONCLUSIVE. In some instances, it can be
overthrown with the use of evidence of matters required to be
entered in the journal. Take note that the word used is "required",
and not "required by the Constitution". Not just any matter can be
put there because some of them will not be required by the
Constitution to be entered. That seems to be the meaning of the
term.
(5) Neither House during the sessions of the Congress shall, without
the consent of the other, adjourn for more than three days, nor to
any other place than that in which the two Houses shall be sitting.
(No discussion under this subsection)

US vs Pons
There was a person who was prosecuted for dangerous
drugs. He alleged that the law was null and void because when it
was passed by Congress, it was no longer in session. Meaning, it
falsified the journal that it was passed before the compulsory
recess.
The SC stated that it was stated in the journal that it was
passed on time so we cannot examine the contents of the

Section 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

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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the case may be, who shall be chosen on the basis of


proportional representation from the political parties and the
parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal
shall be its Chairman.
Electoral Tribunals
They are features of the Constitution. They are not features
of the House or Senate which composes them because they are
ceated by the Constitution. So they are highly independent. They
are independent of Congress and the SC for the reason that they
are considered as the sole judge of all election contests relating
to the members of the House and the Senate.
I. Independence from Congress
1. Bondoc vs Pineda (asked in 2002 Bar)
Bondoc was with the party of Camasura but who keeps
voting for the other side and so he was asked to be removed their
partymates. There was a decision by the House removing him.
SC stated that you cannot remove a member of the Tribunal
because it is given independence. It is like a judge who is given
security of tenure. They can only be removed for valid cause, not
disloyalty to the party.
2. Lazatin vs HRET
The quarrel in this case was which will prevail: the Omnibus
Election Code passed by Congress or the Rules of the Election
Tribunal passed by 9 people. The SC stated that the Rules of the
Election Tribunal will prevail. It is a Constitutionally independent
body. Though only 9 people made it and not the entire Congress,
as to the election of its members, the rules of the tribunal is more
superior than the OEC.
II. Independence from Supreme Court
1. Libaan vs HRET
After you vote, you hand back the ballot to the election
officer and he will sign at the back. The quarrel was there were
some ballots which was not signed at the back, but the tribunal
decided to count it. They petitioned the SC but the SC said that
they cannot review that. That is the business of the tribunal.
Meaning, if there is an error they must review it because it is the
sole judge.
2. Garcia vs HRET
The quarrel was about cash deposit. The tribunal has a rule
about cash deposit which was strictly construed. In this instance
the tribunal was very strict. It dismissed the petition for nonpayment of cash deposit. And he went to the SC but the SC said
that it may be too strict but that is not our business. We cannot
review it because it is the sole judge of election contests.
Conclusion: These rulings seem to underscore that the tribunal is
a feature of the Constitution. It is independent of Congress as
well as the SC in all matters as much as possible because it is the
sole judge. However, in the case of Arroyo
Arroyo case
Senator Arroyo challenged another Congressman running in
Makati and the tribunal was so biased. Three members (SC
Justices) of the tribunal offered to resign because the tribunal
was leaning to the other side. The SC stated that you are
depriving them of due process. This is now grave abuse of
discretion.
Exception to the rule on independence from SC: The only
instance where the SC will disturb the ruling of the tribunal will
be when you establish that there is grave abuse of discretion
because it is supposed to be an independent body.
Jurisdiction of Election Tribunals
Election Tribunals apply only to election contests. If you are
a non-member (of Senate or House), you have no business
quarelling before the tribunal because the jurisdiction extends
only to the members of the House or Senate.

Remedies:
1. Before proclamation
If you challenge the qualification of the other before
proclamation, you file it before the COMELEC. The COMELEC has
general jurisdiction over the enforcement of election laws.
2. Within 10 days after proclamation
After proclamation, you only have 10 days to file either an
election protest or quo warranto before the appropriate tribunal.
3. beyond 10 days
The problem arises when it is beyond 10 days because the
tribunal no longer has jurisdiction when it is already filed out of
time. The SC stated that the House or the Senate or any
parliamentary body for that matter, have the inherent authority to
inquire into the qualifications of its members. Therefore, the House
or Senate itself can inquire into its membership when the tribunal
and the COMELEC no longer has jurisdiction.
Dimaporo vs Mitra
When Dimaporo filed his CoC, he was considered resigned but
he did not resign. Mitra took(?) him from the list.
Jalosjos case
The same with the Dimaporo case. He was convicted and what
the House did was issue a resolution cutting(?) him from the list.
Sampayan vs Daza
Daza went to the US and went back to the Phils to run as
Congressman. Sampayan noticed that he was an American and so
filed a petition for quo warranto. The SC said that he cannot
question the qualification of Daza thru quo warranto. The remedy is
to go to the tribunal.
Barbers vs COMELEC
He filed a petition for annulment of proclamation before the
COMELEC. The SC said that the annulment of proclamation before
the COMELEC is not the proper remedy. The remedy is to go to the
tribunal.
Guerrero vs COMELEC
The quarrel in this case is about substitution of candidate.
When the candidate won, they questioned him before the tribunal,
or before the COMELEC or before another court. The problem was
they are not challenging him as to his qualifications under the
Constitution but under a statute. (Whether) The jurisdiction of the
tribunal pertains to the qualifications found in the statute or in the
Constitution. The SC said that it was not distinguished. The
qualifications under the statute or the Constitution has to be
brought before the tribunal, and not before any other body.
Section 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 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 vote of all the
Members.
Just take note of the membership of the CA - 12 in the House,
12 in the Senate. The formula in the Senate is very simple. A party
must have at least 2 Senators to be entitled to at least 1 seat. If you
have 12 seats, you must have have 2 Senators to have 1 seat. What
about fractions? Fractions are rounded off to the nearest. If you
have 3 Senators, you will be entitled to 1 seat only. 5 Senators shall
be entitled to 2 seats only. If that happens, you will not fill in the
entire seats because of the fractions. The SC said that no need
because what is required (which is the maximum) is 12 seats. Even if

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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less than 12, they can function for as long as there is a quorum.
So there is no need to fill it in.
The SC stated that parties can form coalitions, and they are
entitled to more seats. A party of 1 will form a coalition so there
will be 2 of us who will be entitled to 1 seat. So that is the
possibility.
What about in the House?
Commission on Appointments (2002)
No III - Suppose there are 202 members in the House of
Representatives. Of this number, 185 belong to the Progressive
Party of the Philippines or PPP, while 17 belong to the Citizens
Party or CP. How would you answer the following questions
regarding the representation of the House in the Commission on
Appointments?
A. A How many seats would the PPP be entitled to have in the
Commission on Appointments? Explain your answer fully.
(5%)
B. Suppose 15 of the CP representatives, while maintaining their
party affiliation, entered into a political alliance with the PPP in
order to form the "Rainbow Coalition'' in the House. What effect,
if any, would this have on the right of the CP to have a seat or
seats in the Commission on Appointments? Explain your answer
fully. (5%)
SUGGESTED ANSWER:
A. The 185 members of the Progressive Party of the Philippines
represent 91.58 per cent of the 202 members of the House of
Representatives. In accordance with Article VI, Section 18 of the
Constitution, it is entitled to have ten of the twelve seats in the
Commission on Appointments. Although the 185 members of
Progressive Party of the Philippines represent 10.98 seats in the
Commission on Appointments, under the ruling in Guingona v.
Gonzales, 214 SCRA 789 (1992), a fractional membership cannot
be rounded off to full membership because it will result in
overrepresentation
of
that
political
party
and
underrepresentation of the other political parties.
B. The political alliance formed by the 15 members of the Citizens
Party with the Progressive Party of the Philippines will not result
in the diminution of the number of seats in the Commission on
Appointments to which the Citizens Party is entitled. As held in
Cunanan v. Tan, 5 SCRA 1 (1962), a temporary alliance between
the members of one political party and another political party
does not authorize a change in the membership of the
Commission on Appointments, Otherwise, the Commission on
Appointments will have to be reorganized as often as votes shift
from one side to another in the House of Representatives.
Section 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 are
herein conferred upon it.
Section 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 published annually an itemized list of amounts
paid to and expenses for each Member.

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.
We consider the power of Congress to conduct legislative
investigation as inherent. Meaning, even if there is no constitutional
provision, Congress can do this. Because this is so important to
legislation. Without the information, you may not do so.
Arnault vs Nazareno
This was decided under the 1935 Constitution and the 1935
Constitution does not have this provision. But the SC said that that is
inherent. You can proceed investigating even if there is no such
provision under the Constitution.
Requisites of valid conduct of legislative investigation:
1. in aid of legislation
This includes 4 contents:
a. re-examination of any law
b. applies in connection to proposed legislation
c. formulation of future ones
d. in the exercise of any its powers under the Constitution
- Congres can conduct half-legislative and half-nonlegislative functions. Congress can conduct legislative functions in
pursuit of non-legislative functions.

2. in accordance with its duly published rules of procedure


In legislative investigations, it usually affects the rights of third
parties. So in accordance with Tanada vs Tuvera, all laws and rules
must be published. That's why its a requirement here.
Neri vs Senate
Can they publish in the internet? The SC said NO. It must be
published in any way other than the internet.
The other argument of the Senate was they already published it
a long time ago. The SolGen notes that you must publish it at the
start of the term. And the SC agreed. The SC stated that it is not a
continuing body. The Senate every 3 years elects its new members.
Therefore, it is not a continuing body and so they must publish their
rules every 3 years - at the start of the legislative life of the Senate. It
must be publish at the beginning of the 3-year term.
3. the rights of persons appearing shall be respected
The right mainly recognized under this provision is right against
self-incrimination.
In re: Sabio
The court added another one to the right: the right to privacy
will be respected also. We all know the right to privacy is a
Constitutional right. Meaning, it cannot be destroyed by means of
conducting legislative investigation. As of the moment, there are 2
rights respected: right against self-incrimination and right to privacy.
4. there must be no pending case

This has been asked twice in the Bar but usually in the form
of enumeration. What are the provisions in the Constitution that
ensure transparency? So just enumerate it.
Section 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.
Section 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

Bengzon vs Senate
There was a civil case pending in court. The SC stated that the
investigation cannot proceed because they might come out with a
different judgment/finding. So to prevent conflicting decisions,
when a case is filed in court, do not proceed. Give priority to the
case in court.
Senate vs Majaducon
A person was charged before the OMB. So he said that they
cannot proceed now because there is a pending case. SC said NO. It
cannot apply to the OMB. This applies only to the regular courts -

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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Consti 1Review 2008 Lectures of Atty. dela Banda

RTC, MTC, SB. But this does not apply to the OMB because it is
not a court.
Can the SC find out whether an investigation is really in aid of
legislation?
YES. The SC has a right to find out whether it is really for
purposes of legislative investigation. In the Enrile case, the SC
said do not proceed because this must be in aid of legislation.
What is the consequence if the person refuses to attend or
answer a question without valid reason?
1. held in contempt
2. can be detained
2 ways of terminating detention: (when you can be released)
a. to comply (answer the question)
b. upon termination of investigation
c. at the end of 3 years (when new set of officers are
elected)
The term in Congress ends in 3 years. After the lapse of 3
years, you will have new membership. If the House is conducting
an investigation, you did not answer and so you were detained, at
the end of 3 years when there are new set of officers, you may
demand to go out.
However in the Enrile case, the SC made a distinction. In the
case of the Senate, you can be detained forever. The Senate is a
perpetual body. So you remain
forever until such time
you comply. But right now, no more. The theory is the Senate is
no longer a perpetual body. It has new membership every 3
years. You can already demand to go out.
(by: Jo Anne )
SEPTEMBER 25, 2008
I will continue discussing Sections 21 and 22. But I will backtrack a
little. Last time we said that if you refuse to answer a question in
a legislative investigation you can be detained. The question is for
how long? There are two views.
The main answer is that if the investigation is terminated you
have to be released. This means that if Congress has already
passed a law there is no point in holding on to you or detaining
you.
The second is considering that the Senate is no longer a perpetual
body you can remain detained until final adjournment. So what
does final adjournment mean? This means up to the end of the
legislative term. Not up to the end of the session. So, meaning
the longer can be three years.
Can the Committee, not the entire House or not the entire Senate
punish you for contempt of you disobeyed? The SC answered this
recently in the case of Sabio. The answer is YES because if you
look at the Constitution it is saying the Congress or any of is
Committee can subject you to contempt.
What is the status of a law which exempts a person from
attending legislative investigations? This happened in the case of
Sabio. He was a chairman of PCGG and he refused to attend
because EO No. 1 passed by Cory Aquino stated that the member
of the PCGG or any member of the staff cannot attend
investigations judicial, administrative, or legislative. So, Sabio
refused to attend. But the SC said that is unconstitutional. A law
exempting people from attending legislative investigations
directly conflicts with the power of Congress to compel
attendance in aid of legislation.
Can the President validly prohibit a military officer from attending
a legislative investigation? This was decided in the case of Gudani
vs. Senga. Ebdane, I think was the superintendent of the
Philippine Military Academy and was called to testify in a senate
investigation. But he was ordered by Senga in the name of the
President, do not attend. You have no clearance from the
President. But Ebdane refused to obey and still testified
regarding the Garcillano controversy. So he was subjected to

court martial because of insubordination. He went to the SC saying


that I am ordered to attend so I will attend. I cannot disobey the
Senate. So, the SC said that we will solve it in a very simple manner.
Who is your commander in chief? Is it the Senate or the President? If
your commander in chief is the President then you obey your
commander in chief. So, in the end he was subjected to court
martial.
So that seems to be the principle. You follow your commander in
chief. If the Senate does not agree with it, it cannot compel you.
What the Senate can do is to go to the SC and get a ruling whether
the order of the President is valid because it might affect military
matters. The order of the commanding in chief is valid because it
might affect military matters but it cannot do it arbitrarily. So the
final decision therefore is in the SC to resolve the controversy. But
you can disobey the Senate and follow your commander in chief if
you are a military.
Can the President prohibited members of the cabinet from
attending if called by the senate or any of its committees? This is the
rule. If you are called under Section 21, generally you cannot refuse.
This is because Section 21 is the power of Congress to conduct
legislative investigation. It is compelling because the information
you will provide is needed for legislation. So, generally under Sec. 21
the President cannot prohibit the members of the cabinet from
attending.
There is only one exception. If you have a valid claim of executive
privilege then you can refuse to attend under Sec. 21.
Suppose you are summoned by Congress to appear under Sec. 22.
Can you be compelled? The answer is you cannot be compelled with
or without any reason. This is because Sec. 22 is only optional. In
fact if you look at the Constitution it is saying that Congress may
request members of the Cabinet to attend. So the President can
withhold its consent. The reason for this is because under Sec. 22
the purpose is not in aid of legislation or to pass law. The only
purpose is only in order for you to enlighten Congress or to update
Congress as to the interpretation or status of a law which might be
under your department. So in the end actually if the President told
you to attend then you must attend. But if the President told you
not to attend then with or without any reason you can refuse under
Sec. 22. This is only optional. This is only a request.
I go back to Section 21. I told you a while ago that there is only one
instance that the members of the cabinet can refuse and that is if
there is a valid claim of executive privilege. So what is executive
privilege?
Executive privilege refers to the right of the President to refuse to
provide information to Congress, to the judiciary, and to the public.
What are the matters that can validly fall under executive privilege?
There are three given by the SC stating an American jurisprudence.
1. Military or diplomatic secrets these are national security
issues.
2. Identities of crime informants this means somebody who has
been an asset in dealing with the commission of crimes so their
identities have to be protected. So the President can say that we will
not reveal his identity.
3. Internal deliberations of the departments
If you try to examine the doctrine of executive privilege it is
founded on separation of powers. It seems that the executive
department cannot allow an interrogation into the workings of the
executive.
It is also a recognition that the Presidency or the executive
plays a very unique role in our system. Before it can decide policy
decisions the head actually needs the advice of its subordinates. It
requires frank exchange of information. That is why it should not be
disturbed in its functions. It should be allowed a certain leeway in
the process of decision making.
Executive privilege is only presumptive. It is not conclusive.
Meaning, the fact that the Presidency invokes it does not mean that
it is the end of it. Why? So that the courts can inquire into the
validity of the claim for executive privilege.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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In the case of Senate vs. Ermita regarding EO 464 the SC


stated how the executive should invoke the right to executive
privilege. It must allege or invoke the right specifically and must
explain why the information requested is privilege. This is the
reason why EO 464 was declared by the SC as unconstitutional.
Because it made a blanket statement that members of the
cabinet can refuse to attend. Actually, SC did not say that
executive privilege did not exist. It simply stated that the way EO
464 was worded was too broad. SC did not decide whether it was
a valid claim or not.
Let us go to some important cases in executive privilege.
The main one is the case of Neri. The motion for
reconsideration of this case was decided I think in the first
Sunday of the bar or one day before. So it is no longer pending
now.
This is what happened. Neri was the former director of
NEDA. It seems that he is holding a cabinet position. During one
investigation he testified that Chairman Abalos of Comelec
offered him P200M as bribe for this NBN project. He said that he
was offered P200M but he told the president about it. He
testified but there were three questions he would not answer.
The first question was did President Arroyo after being
informed of the bribery follow-up on the NBN project? So may
implication, she knows the bribery and she follows-up.
The second question was did the President directly took _
the project?
The third questions was did the President tell you to
approve the project despite the bribery attempt?
Sec. Ermita said that if Neri will answer the questions it will
affect our foreign diplomatic and economic relations with China.
The SC said that Neri cannot be compelled to answer
because this is a matter covered by executive privilege. The SC
considered it as part of the diplomatic powers of the President
that is, entering into an agreement with another country. So, the
subject falls under number 1.
The second one is this. According to the SC the
communications are received by a close adviser of the President.
So SC applied the operational proximity test. This one is
important. When we speak of operational proximity the
communications must be between the President and a close aide.
I am thinking that it can apply probably only to members of the
cabinet because these are the people who gives the President
advice. Im not very sure if it can apply to an Undersecretary. But
I am very sure that it will not apply to the conversation between
Garcillano and the President because Garcillano definitely cannot
claim this operational proximity because he is not a member of
the Cabinet and he has no business talking to the President.
The third one is important. It said that there is no adequate
showing of a compelling need that would justify the limitation of
the privilege. What is the implication of this statement? The court
seems to be telling us that if you want to overthrow the
presumptive privilege you must show that there is a compelling
need for that information. So according to the court Congress has
not shown any compelling need for the information specific for
legislation.
We all know that it has been very much criticized. Fr. Bernas
does not agree with it. Many justices dissented. But the main
reason is this. First, they keep on citing the Nixon case in the US.
But the procedure in that case is different. In the Nixon case the
judge of an appellate court in the US stated that ok you claim
the privilege and let me review the case to find out if there is a
privilege or not. The US SC said that ok try to explain it, no
problem. Nixon actually turned over the tape because he was
ordered by the court and he resigned.
But the problem is that in this instance the SC never
bothered to find out what will be the answer. How can you judge
if something is privilege or not when in fact you dont know the
answer. Fr. Bernas is suggesting that the SC should have
conducted probably hearings in chambers to find out what is the
answer.
Anyway, we now have reasons given by the SC: (1) regarding
diplomatic matters; (2) proximity test; and (3) the senate or the
congress has not shown any compelling need for the information.

Another case is Akbayan vs. Aquino decided only on July 16,


2008. I think this was the headline in the papers and you are aware
of it. This pertains to the JPEPA (Japan Philippines Economic
Agreement or something like that). What happened was the
President was negotiating our economic relations with Japan. I think
at that time the executive have already completed negotiation. In
fact it was due for ratification by the senate. But they did not give a
copy to the senate or to the public. So, we do not know what the
content of the treaty is. So, some people including some members
of the senate filed a case to compel the President to give copies of
the treaty so that we can study it, we can debate about it whether
we like it or not under the context of the right to information. But in
addition to that they asked for the note also of the negotiator in
negotiating the treaty. When the case was pending I think it was
already due for ratification (?) so the question whether copies of the
case can be given became moot and academic. But people filed a
case insisting that we should have copies of the negotiation so that
we will know what the terms that were sacrificed by the Philippines
are or what are the points were the Japanese gave in. But the
President said no, this is privilege. These are diplomatic matters.
The SC came up with a decision saying that the terms of the
negotiation are covered by executive privilege. Now what is the
reason? The reason given is if you allow the notes of the negotiation
to be released in the future it will discourage Philippine
ambassadors/representatives to make prompt exchange of
proposals with the other side. The same is true with the
representatives of other countries because in treaty negotiation it is
a process of give and take. So it may be criticized by the people
saying why did you give in to this or why did you give in to that.
Sometimes negotiators do that in order to secure some advantage
to the other side. So, according to the SC that will really affect the
power of the President to enter into treaties. So this is privilege
covered by the item on military or diplomatic matters or secrets.
Can the Congress claim compelling interest because they are
trying to _ in accordance with the Constitution so they need to get
the notes. I told you awhile ago it is only presumptive. Meaning, the
fact that some materials declared as executive privilege now does
not mean that it is always considered executive privilege for another
purpose in another case in the future. So they are saying that we
need the documents because it will give is idea whether we will
approve the treaty. SC said that you do not need it because it is the
executive which is the organ of foreign relations. When it comes to
treaty negotiations Senate has nothing to do with it. In fact the
House has nothing to do with it absolutely. The only role given to
the Senate is to concur after the treaty has been entered into by the
President so they cannot claim that they have an important right at
stake. They do not have a compelling interest to have the treaty
revealed.
Take note also that the SC is very careful it is deciding the issue
on executive privilege in the context of legislative investigation. It is
noted that in the Nixon case the issue there is executive privilege
and criminal prosecution. It involves a document to prosecute
certain people for crimes. Because I think the right of the court for
criminal prosecution is more compelling. But again it is not
conclusive.
I think we do not yet have a formula where there is criminal
prosecution and executive privilege and criminal prosecution will
win because again it will depend on the compelling need for the
evidence and the compelling public interest that is involved in the
proceedings.
There is another disturbing statement in the case of Neri which
is part of the law now. Because if you look at Sec. 22 there is a
statement there that when the members of the cabinet will testify
the senate must formulate questions in advance and they must be
given copies. The issue is we should apply this to Section 21. But the
SC said that let us come up with a rule that even in legislative
investigations you should furnish copies in advance of the questions
to the members of the Cabinet. It is hard to find a basis for that but
it got it also from a statement in another case in Senate vs. Ermita
about EO 464. So, we now have a rule that with respect to furnishing
copies of questions in advance it applies to both Sections 21 and 22.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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Section 23. (1) The Congress, by a vote of two-thirds of both


Houses in joint session assembled, voting separately, shall have
the sole power to declare the existence of a state of war.
So, the power to declare existence of a state of was belongs
to Congress not to the President. But it is also good to understand
that the power to make war belongs to the executive because he
is the commander-in-chief. He determines when to send the
army, etc. But the power to declare the existence of war belongs
to Congress by 2/3 vote.
Take note also that this is one instance where they have to
assemble jointly. I think the other time were they will have to
assemble jointly is when they debate on martial law. So this is the
other one. Remember the principle the bicameral system so the
two has to meet separately.
(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.
There are 2 items we need to emphasize here. First is with
respect to the giving of emergency powers to the President. One
question that was asked in the bar was in 1997 what are the
requisites for the grant of emergency powers to the President?
So that is in the outline of the provision just remember it.
Another issue is when an emergency power is granted to the
President it has to be done by means of a law. But when it is to be
withdrawn from the President it can be done through a
resolution. The reason for this is because if you have it withdrawn
by means of a law it might be difficult because the President can
veto a law so in the end s/he can continue exercising emergency
powers. So the Constitution provides that it can be withdrawn by
means of a resolution because a resolution can never be vetoed.
In the case of David vs. Macapagal the President declared a
state of emergency. The question is can the President declare a
state of emergency without the consent of Congress thru a law?
SC said yes it can be done because the Constitution actually does
not put any limitation regarding state of emergency. Take note
for instance, martial law is subject to review by Congress. But
with respect to the state of emergency it does not say that it
cannot be done without any consent or approval of Congress. But
this is the most important qualification if the President declares a
state of emergency it will not increase her powers under the
Constitution. Meaning, it is one thing to declare a state of
emergency but it is another thing to exercise state of emergency
powers. This is because the exercise of emergency powers has to
be done under Sec. 23 and it can only be done if there is a
congressional _ by means of a law. So, declaration is one thing. It
can be done without the consent of Congress. But exercise of it
cannot be done by the President unless Congress actually applies
Sec. 23 by passing a law authorizing her to exercise emergency
powers.
Where does the power of the President to declare a state of
emergency come from? Primarily, it comes from her commanderin-chief powers. Commanders-in-chief actually have the right to
declare that certain situations exist.
One
issue in the case is can the President declare a state of emergency
only in case of a natural calamity? SC said no. It can be exercised
if there is an economic emergency, military, natural calamity, etc.
Those are the grounds for declaring a state of emergency.
Anyway, the President can declare it because the
Constitution does not prohibit her from doing that and the power
is derived from her being a commander in chief of the Armed
Forces.
I do not want to elaborate on the issue of majority. But the
principle is simple this that the majority, as a rule, is simple
majority. Meaning, if the Constitution does not say anything
about it follows that the vote required is simple majority

meaning majority of all those present provided there is a quorum.


The only exception is when the constitution provides otherwise.
The exception is very few for instance in amendments you need is ,
declaration of state of war 2/3, tax laws you need absolute majority.
In all other instances like passage of ordinary laws you need only
simple majority.
Section 24. All appropriation, revenue or tariff bills, bills
authorizing increase of the public debt, bills of local application, and
private bills hall originate exclusively in the House of
Representatives, but the Senate may propose or concur with
amendments.
So these are the bills that must originate on the lower house.
Laws can start anywhere. Bills can be introduced in the house or
senate no problem. But the enumeration in Sec. 24 is the only bills
that must be introduced first from the lower house.
So appropriation bills authorizing the release of money from
the treasury;
Second, revenue or tariff bills. What about if the revenue law is
only being amended must the bill introducing the amendment
originate in the lower house? This was answered by the ABAKADA
case. This case was actually an amendment of the VAT law. It has to
originate in the lower house also.
Bills authorizing increase of public debt.
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Bills of local application. I think in your 1 year my favorite
question is a bill introduced is titled Local Government Code of
1991 must it start in the lower house? So take note the meaning of
local application is not the LGC because the LGC is actually a bill of
general application. It applies to the entire country. So when we
speak of bills of local application it simple means that it is only good
for one locality. Like for instance a bridge for a certain province so
you need money for that or a bill creating a new province or
municipality, that is of local application.
Private bills. The only law that I can think of and is given by
commentators is the law giving citizenship to an alien or a direct act
of Congress.
There is this 1996 bar exam (question below). Sirs answer: This
is a very tricky question. The principle simply is: not all bills which
have to appropriate money have to originate in the lower house. It
will only originate in the lower house if the appropriation is the main
or principal function. Because actually all bills usually will involve
money. Even the anti-money laundering law, its last article provides
for P50M as initial appropriation. But the purpose of the anti-money
laundering law is to punish money laundering. The purpose actually
is not to appropriate funds so therefore it need not originate from
the lower house.
Law-Making; Appropriation Bill (1996) No 5: Are the following
bills filed in Congress constitutional? A bill originating from the
Senate which provides for the creation of the Public Utility
Commission to regulate public service companies and appropriating
the initial funds needed to establish the same. Explain.
SUGGESTED ANSWER: A bill providing for the creation of the Public
Utility Commission to regulate public service companies and
appropriating funds needed to establish it may originate from the
Senate. It is not an appropriation bill, because the appropriation of
public funds is not the principal purpose of the bill. In Association of
Small Landowners of the Philippines, Inc. vs. Secretary of Agrarian
Reform 175 SCRA 343, it was held that a law is not an appropriate
measure if the appropriation of public funds is not its principal
purpose and the appropriation is only incidental to some other
objective.
Remember also the principle which was enunciated in the
ABAKADA case. When the bill is required to originate in the House
the SC stated that it does not mean that the final version should look
like the version introduced in the House. Meaning, there can be
amendments introduced by the Senate and in fact it can be entirely
revised by the Senate and there is no constitutional problem for as
long as the Senate did not deliberate on its own until the House
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actually produced its version (until the House has completed its 3

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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reading). According to the court it is only the BILL that is required


to originate from the House. There is no requirement that the
LAW or the FINAL PRODUCT has originated from the Lower
House.
The reason given by the court here is that if the law must look like
the version that originated from the House then you are
LIMITING the power of the Senate to introduce or concur in the
amendment. That is why it cannot be allowed.
Section 25. (1) The Congress may not increase the appropriations
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.
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In your 1 year I told you the meaning of this. Because I


interpreted it in the light of the Administrative Code. This is what
is provided in the Administrative Code: The Congress shall not
increase the appropriation or any budget or program of any
department, bureaus, or office over the amount submitted by the
President. In case of any reduction of a proposed appropriation
for a project or program a corresponding deduction shall be
made in the appropriation for the department and the total of
the General Appropriations Bills. So I used to tell you that this
seems to be the meaning. So the way I interpret it, it is the act of
Congress for instance they provide the total budget of P500B
then they put there Department of Agrarian Reform maybe for
the CARL P50B. So, if you try to interpret the Admin Code the
Congress says Oh you need P50B for the DAR so the budget for
the DAR will be reduced probably from 100 to 90B. And it is
saying also that the entire budget for the department has to be
reduced also in that corresponding amount. So Congress is not
allowed to juggle it.
Fr. Bernas in his lecture said that the provision in the Constitution
regarding increase applies only to the budget productivity. I think
what you need to understand here is that the annual budget is
prepared by the President. So s/he proposes everything, such as
the amount for the judiciary, for the legislature, for the executive.
Now, Fr. Bernas is saying that the budget pertained to in the
Constitution pertains only to the budget productivity. Meaning
that you can increase anyway you like the proposal for the
budget for Congress.
(2) No provision or enactment shall be embraced 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.
This is the most difficult provision in the entire Constitution.
I will try to explain it to you in the context of the veto power. The
important thing to understand here is that this provision
prohibits RIDERS. Riders are actually insertions which have
nothing to do with the budget. The principle simply is: the budget
law cannot speak of anything else except the budget.
(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.
Subsection 5 is an important provision that has been asked in the
bar and there are cases on this.

First, this provision tells us on when you can validly juggle funds
from one item to another because the principle is that the
Constitution does not allow the juggling of funds. In fact juggling of
funds is considered as technical malversation. However, the
Constitution allows it in a very limited instance. So, the ff. are the
requisites before it can be allowed:
1. If done by the authorized officers;
2. If the purpose is to augment an item;
3. It must come from savings in another item;
4. It is within the same department; and
5. It is authorized by law.
So, it is not self-executing because it has to be authorized by law. So
let us explain this. The authorized officers are those officers listed in
the Constitution - 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. In
effect therefore there are only 7 officers allowed. I have a little
doubt about it so I asked Fr. Bernas last time because if your try to
look at it the CHR is an independent entity. It enjoys fiscal
autonomy. The OMB also. So I asked him can the OMB move one
item to another. He said that is not allowed. So OMB and CHR are
not allowed. So only those 7 officers are authorized.
Second, the purpose is to augment an item. Meaning, the item is
insufficient so you need to augment it so the money can only come
from number 3 savings.
Fourthly, it must be within he same department. Same department
means if executive then executive only. So if judiciary then judiciary
only. The judiciary cannot move funds to the executive. There is a
little bit difference with the legislature because there are two
Houses there. The Speaker can only move items in its own domain,
that is, within the lower house. The Senate President can only move
it within the Senate. They are not allowed to transfer funds from the
Senate to the House. Take note that this is not self-executing. It
must be authorized by law, by express command of the Constitution.
The do it actually in the budget law itself. They will say that in case
there are savings from this item it can be transferred to that item.
So, without that provision in the budget law it cannot be done.
One of the cases here is Demetriu which was asked in the bar. This
happened in the time of Marcos. The President of the Philippines is
saying that I authorize myself to transfer funds within my own
department. It cannot be challenged because it is authorized by
law. The President can pass a law at that time. But the SC is saying
that he is an authorized officer, it is also within his department, but
the problem is that it will actually authorize the movement of funds
without any restriction because he did not say that there are savings
from this or there are portions to be augmented in the other.
The main principle simply behind this is that this will stop Congress
from passing or moving appropriations without any basis.
There is a question here in the 1998 bar exams based on the PCA
case. It is easy to answer. The provision of the law states that The
Chief of Staff, Armed Forces is authorized subject to the approval of
the Sec. of National Defense. Ans. So, the Chief of Staff, Armed
Forces is not among the officers mentioned. What about the fact
that it is approved by the Sec. of National Defense? Again he is not
mentioned. What about if you put there the Sec. of National
Defense subject to the approval of the President? I think it can be
possible because the President will now have the final say. The Sec.
is just the alter-ego of the President. As long as the final say is with
the President then it can be cured.
Renewal & Power of Augmentation (1998)
No XI. - Suppose the President submits a budget which does not
contain provisions for CDF (Countrywide Development Funds),
popularly known as the pork barrel, and because of this Congress
does not pass the budget.
1. Will that mean paralization of government operations in the next
fiscal year for lack of an appropriation law? (2%) (see answer in
Subparagraph 7).
2. Suppose in the same budget, there is a special provision in the
appropriations for the Armed Forces authorizing the Chief of Staff,
AFP, subject to the approval of the Secretary of National Defense, to
use savings in the appropriations provided thereto to cover up
whatever financial losses suffered by the AFP Retirement and
Separation Benefits System (RSBS) in the last five (5) years due to

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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alleged bad business judgment. Would you question the


constitutionality validity of the special provision? [3%]
SUGGESTED ANSWER: 2. Yes, the provision authorizing the Chief
of Staff, with the approval of the Secretary of National Defense,
to use savings to cover the losses suffered by the AFP Retirement
and Separation Benefits System is unconstitutional. Section 25(5],
Article VI of the Constitution provides: "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 appropriation law
for their respective offices from savings in other Items of their
respective appropriations." In Philippine Constitution vs Enriquez,
235 SCRA 506, 544, the Supreme Court held that a provision in
the General Appropriation Act authorizing the Chief of Staff to
use savings to augment the funds of the AFP Retirement and
Separation Benefits Systems was unconstitutional. "While Section
25(5) allows as an exception the realignment of savings to
augment items in the general appropriations law for the
executive branch, such right must and can be exercised only by
the President pursuant to a specific law."
(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.
Discretionary funds must be for public purpose. I think it was
asked in the bar in the 1990. The question was: The Governor of
Basilan was given discretionary funds by the Provincial Board to
be used as _ (super labo). The question of the examiner is that
valid? Take note of the requirement that discretionary funds can
only be used for a public purpose. So it will violate that provision.
(Note: wala nako nakita sa list of bar qs).
(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.
This was asked only once in the bar in 1998 also. The
commentators usually call this as the AUTOMATIC
REAPPROPRIATION LAW.
Renewal & Power of Augmentation (1998)
No XI. - Suppose the President submits a budget which does not
contain provisions for CDF (Countrywide Development Funds),
popularly known as the pork barrel, and because of this Congress
does not pass the budget.
1. Will that mean paralization of government operations in the
next fiscal year for lack of an appropriation law? (2%)
SUGGESTED ANSWER: 1. No, the failure of Congress to pass the
budget will not paralyze the operations of the Government.
Section 25(7), Article VI of the Constitution provides: "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.

Another is that the subject must be embraced in the title. The


reason is to prevent fraud for the legislature so that it will not be
deceived in approving a bill.
In the case of Farias the SC has given a very elastic interpretation.
For as long as the provision is PROPERLY CONNECTED to the title.
Another is for as long as the provision is NOT INCONSISTENT with
the title. Another is for as long as it is GERMANE to the title.
The Farias case uses the term for as long as it is NOT FOREIGN to
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the title. What do you mean by this? In your 1 year I used to discuss
the case of PJA vs. Prado. They challenged the bill with the title An
Act Creating the Philippine Postal Corporation. One provision
removed the franking (?) privilege of the judges/judiciary. If you look
at it the removal of the privilege is not in the title. The SC said that
anyway that is not inconsistent with the title. So very broad
definition.
Another one is the Chongbian case. The title of the bill is the
An Act Creating the Autonomous Region of Muslim Mindanao.
One provision stated that the President can transfer one city or
province to another or one region to another. If you look at it that is
not in the title. But according to the SC that is not inconsistent.
In the end therefore, this requirement is very elastic. It can easily be
justified even if the subject matter seems to be no longer directly
embraced in the title.
The Farias case is the latest one which is not yet around during
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your 1 year. The title actually is the Fair Elections Act of 2003.
There was a provision that if you are an elected public official and
you file a certificate of candidacy no problem.
Until now after 100 years you only have 2 cases where the SC
declared a law defective on account of title. The first one is _ vs.
Ramirez. The title of the law is Public Land Act. There is a provision
about private lands. What did the court say? That is not allowed
anymore because private lands are not covered in the subject public
lands. It will deceive the legislature. So that is very alien to the title.
The other one is the Lidasan case. An Act Creating the Province of
Dianaton. But what it did was it altered the two provinces stealing
some barrios from Cotabato and moved it to Lanao. SC said it
deceived the Legislature. I think the reason why it deceived the
Legislature is because even the Congressman from Cotabato City
voted for the law without knowing that his province was being
divided.
(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.
House

Senate
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Print

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Section 26. (1) Every bill passed by the Congress shall embrace
only one subject which shall be expressed in the title thereof.
There are two topics here. First is saying that a bill should only
have 1 subject. Second, the subject must be expressed in the
title.
One thing that we should remember about the 1 bill 1 subject
rule is the LOG ROLLING LEGISLATION. This is actually a bill that
has more than 1 subject.

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Con Com

We go back to basic principles. So, we have a bicameral system. A


bill to become a law must pass both Houses. Another principle that
we have mentioned earlier is that a bill can start anywhere except if
they are appropriations, tariff, increase public debts, and local
application and private bill.
If you look at the procedure for law-making this is what will happen
the bill starts in the House. The first thing is the first reading which is

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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the reading of the title of the bill. After that the bill will be
referred to the appropriate Committee. In the Committee they
will discuss it sometimes they combine it with other bills pending
and sometimes it will be the end of it. In fact if you look at the
Constitution there is no requirement that a bill will have to come
out after a specific time. So the practice now is that if a bill is not
passed they will reintroduce it at the next legislative return.
So from the Committee as long as it votes to approve it will be
forwarded to or back to the House and then there will now be the
nd
nd
2 reading. The 2 reading is now the debate. During the debate
it will go to the law provision by provision. Once the amendments
have been approved it will now undergo printing. So there is now
printing of the approved version. The printed copy has to be
rd
given to the Members 3 days before the 3 reading. During the
rd
3 reading no more amendments are allowed because the
nd
debate took place in the 2 reading.
rd
So during the 3 reading you only vote for it. No more
objections because you should have raised it before. Once it is
finished it will now be forwarded to the Senate to undergo the
same procedure.
One problem is that suppose it is a tax bill. It must originate
in the House. Suppose they are still debating it or have not yet
approved it in the third reading can you sponsor your own
version in the Senate? Yes for as long the Senate will not act as a
body. This means that even if the tax or appropriation law is still
deliberated in you can introduce something in the Senate but do
not debate on it. Do not act on it as a body. So that will be valid.
That will not destroy the idea that it must originate in the lower
house.
I think it is almost impossible to have a situation that the
version of the 2 Houses will be the same. I think it cannot happen
because there are so many people there thinking differently. So,
the result is this if the 2 versions are different they will form a
Conference Committee. There is no body called a conference
committee because this is ad hoc. This is created only when the
need arises. The usual practice is that the conference committee
takes up the sponsored bill in the House and the sponsored bill in
the Senate. What will it do? It will now come up with a
RECONCILED version. So it will reconcile the 2 versions.
Suppose they have come up with a reconciled version what
will be done with the law? Will it still undergo the three readings?
Definitely no more; otherwise, there will be no more end to it. So
what is needed only is the third reading. It will have to be
approved again by votes but no more debates.
There are 3 questions I want to remind you about.
First is what happens when the President certifies to the
necessity of its immediate enactment to meet a public calamity
or emergency. SC said that once the President certifies to the
immediate enactment of a bill 3 things will be removed:
1. There is no more need to undergo 3 readings on 3
separate days this means that you have to read the bill 3 times
but you need not do it on three separate days. So it can be done
in one day.
2. There is no more need of printing the final version.
3. There is no more need to distribute copies of the final
version three days before its passage.
Second question is can the SC inquire into the validity of the
certification made by the President that the bill is urgent? The
answer is definitely no. The reason according to the SC is
separation of powers. The President made a determination that it
is urgent and the Congress acted on it by passing it immediately.
So who are we (SC) to examine the determination made by the
President. So it is a political question which binds the judiciary.
Remember the argument of Tolentino, the constitutionalist, he
was saying before that the certification of the VAT is defective
because there was no calamity. He was saying that this problem
has long been with us so how do you call this as a calamity. But
the SC said that it is not our business to second guess the
President to find out whether there was really a calamity.
Another very important matter is that the Conference
Committee can add matters to the bill which have not been the
subject of any disagreement. So, the House comes up with its
version. The Senate comes up with its version. The Commission

said that we dont like that of the Senate or that of the House in fact
we will add provisions of our own. The SC said that we will not be
the appropriate authority to question whether insertion is done or
not. What is the reason? Because once it is approved by the two
Houses it is now considered an enrolled bill. An enrolled bill is
conclusive as to the contents.
I want to emphasize this because the challenge of Tolentino is
very _. What he is saying is that how can the conference committee
add a provision because according to the Constitution there should
nd
be no more amendments to be introduced after the 2 reading.
nd
Here you are after the 2 reading you are still introducing
amendments. What did the SC say? There is no problem because
new matters inserted by the conference committee will still be
approved again by the 2 Houses.
Take note also of the last point here. I told you before that even
if the bill is certified by the President as urgent it still subject to veto.
Because the veto power cant be limited. Because sometimes it is
not the bill certified by the President that gets approved. There are
so many changes done therefore the veto power of the President
should remain intact because he may not want the final product.
Let us go back to Taada. Only the printing is done away with.
PUBLICATION of the bill is not done away with because it is the
requirement in Taada that all bills must be published before they
become effective. The printing is different from publication because
the printing is the one were the copies are distributed.
Last thing I would like to emphasize is that even if the bill is
certified as urgent the Constitution always requires that it has to
undergo 3 readings.
(by: Karla )
SEPTEMBER 30, 2008
SECTION 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 reconsidered, 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. 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.
Section 27 VETO POWER
Preliminary Matters: Bar Questions
UP: Law-Making; Passage of a Law (1988)
No. 12: - 2. A bill upon filing by a Senator or a Member of the House
of Representatives goes through specified steps before it leaves the
House of Representatives or the Senate, as the case may be. After
leaving the legislature, please name the three methods by which
said bill may become a law.
SUGGESTED ANSWER:
A bill passed by Congress may become a law in any of the following
cases:
1. If it is signed into law by the President. (Art. VI, sec. 27(1)).
2. If it is re-passed over the President's veto by the vote of two
thirds of all the members of the House of Representatives and
of the Senate.
3. If the President fails to veto it within thirty days after receipt
thereof and communicate the veto to the House from which it
originated.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

23

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UP: Law Making; Process & Publication (1993)


No. 2; Ernest Cheng, a businessman, has no knowledge of
legislative procedure. Cheng retains you as his legal adviser and
asks enlightenment on the following matters:
(1) When does a bill become a law even without the signature of
the President?
SUGGESTED ANSWER:
1) Under Section 27(1), Article VI of the Constitution, a bill
becomes a law even without the signature of the President if he
vetoed it but his veto was overriden by two-thirds vote of all the
members of both the Senate and the House of Representatives
and if the President failed to communicate his veto to the House
from which the bill originated, within thirty days after the date of
receipt of the bill by the President.
Bar Question: 1996 # 7 (I cant find it in the UP Bar )
Q: Can the President take part in the legislative process?
If you take a look at it, our system does not allow the
president to take an active part in the legislative process because
as the chief executive, his main job is only to implement to law.
UP gave instances where the president is allowed to
participate in the legislation:
1. exercises veto power
2. calls Congress for a special session
3. certifies bill as urgent (it will encourage Congress to work on
the bill)
4. prepares the budget bill (it is the executive which prepares
the budget bill)
POCKET VETO
This is a term in American Constitutional Law but it is very
distinct from what we have.
If the president fails to return the bill after congressional
adjournment, then, it is as if he vetoed it. We do not have it in
the Philippines because in the Philippines, it is the opposite. In
the Philippines, if the President fails to return the bill within 30
days, he approves it. In the US, if he fails to return and congress
calls a recess, it as if he has disapproved the bill.
VETO means disapproval of the bill passed by Congress.
Q: Can the president veto a bill even if the bill is otherwise legal
or constitutional?
A: YES, because veto power is founded on policy, not on
legality. This means if the president thinks the bill is bad for the
country or for the people, he is free to disapprove it. That is
among his powers as chief executive. He need not invoke any
constitutional provision in rejecting the bill.
Q: How is the veto overcome?
A: It is overcome by the 2 houses, if each of them will be able
to summon 2/3 vote of all the members of each house.
This is one instance where the Constitution requires that the
yeas and the nays be entered in the journal. The enrolled bill is
conclusive upon the court. This is one instance when a matter is
required to be entered in the journal and they might be able to
use it in order to defeat actually the contents of the enrolled bill.
I.

Can the President veto a provision of an ordinary bill?

Absolutely NO. Ordinary bill means it does not involve


money. It is not a tariff or revenue bill. He must disapprove
everything or approve everything take it or leave it or do
nothing
II.

Can the President veto an item?

It can veto an item only if it is an appropriation, tariff or


revenue bill.

(1) Tariff budget law (special or general)


(2) Revenue or appropriation are generally of the same class
- those which impose taxes
Cases:
BENGZON vs. DRILON
It was an appropriation bill. So, you can have an item veto. The
amount of P 50M was appropriated by Congress for the Supreme
Court under the item General Fund Adjustment. And it put there a
provision use of funds: unbooked obligations, bank salaries,
personnel benefits. So, P 50 M will be used for that purpose. Pres.
Aquino only vetoed this portion she objected to using it for
personnel benefits of judges and employees of the judiciary.
Q: Is that a valid item veto?
A: The Supreme Court answered it try to take note what is an
item. According to the SC, within the content of the appropriation
law, item is a sum of money dedicated for a particular purpose.
With that meaning, the Supreme Court stated that this veto is
null and void because she did not veto a sum of money. What she
could have veto was the entire P 50M, not these terms here which is
not an item.
In the Philippines, there is this big chunk amount of money.
They do not itemize it.
Accountants call it line item budgeting. This means that if you
put an amount to a specific subject there, it can be subject to veto.
For instance bank salaries P 20,000; unbooked obligations P
20,000. That would now constitute an item subject to veto.
But in the Congress, the budget contains big chunks amount of
money. In the end, you can only veto the entire heading, with the
amount of money.
CIR vs. CTA
This is now the meaning of an item in the context of a tax law.
In the NIRC motels, hotels, cockpits, cabarets are subject to 20%
tax of the gross income. Pres. Ramos vetoed hotels and motels only.
Is this exercise a valid item veto?
This is how the Supreme Court explained the meaning of an
item in the context of a revenue law. Item does not mean an entire
section imposing a particular kind of tax, but rather, the subject of
the tax and tha tax rate.
It simply means that items for the purpose of revenue or tariff
law pertain to the of the tax and the tax rate, subject of the tax and
the tax rate not the entire section.
Q: Did Pres. Ramos exercise a valid item veto of this revenue
law?
A: YES, because the item actually referred to the subject of the
tax and the tax rate. He did not veto the entire section.
The meaning of an item is really very different in the context of
an appropriation law and in the context of a revenue law.
III. Can the President veto a provision in an appropriation
bill?
Take note that this is not about an ordinary bill because it is not
allowed. This is about an appropriation bill.
Generally, an ordinary bill does not contain an item. The
Revised Penal Code does not have any item. There is no sum of
there for a particular there. There is money there about fine, but it
is not regarded as an item. The Family Code will never contain an
item.
But when you look at a budget law, a budget law contains both
an item and a provision. If a budget law contains an item only, you
cannot understand it. You have to put a provision this money to
be used for this purpose, subject to this restriction. That is why an
appropriation bill has to contain both an item and a provision.
Q:

Can the President veto a provision in an appropriation bill?


The provision there means the words, not in figures.

A:

Fr. Bernas calls this the doctrine of inappropriate provision.

There are essentially 2 types of bill:


Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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Consti 1Review 2008 Lectures of Atty. dela Banda

The president cannot veto it if the provision is appropriate.


If the provision is appropriate, it is not subject to veto.
But if the provision is inappropriate, it cannot be vetoed.
Q:
A:

When do we say that the provision is inappropriate?


There are 3 instances:
1. when it amends or repeals a law
2. when it does not relate to a particular item
3. if it extends its operaton beyond an item

SECTION 25.
xxx
(2) No provision or enactment shall be embraced 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.
xxx
You will notice that the 2
(19:45)

nd

rd

and 3 instances are covered.

Q:

What is an appropriate provision?


It is appropriate if it is the exception if it relates to an item.
If the provision relates to an item, it is appropriate. Therefore, it
is not subject to veto.
Examples:
1. GONZALES vs. MACARAEG
This is the provision The president is prohibited from
augmenting portions in the budget that have been reduced or
disapproved by Congress during the deliberation.
The Constitution does not generally allow you to augment
one item from savings in another, unless it is allowed by law,
unless it is stated in the budget law. That is the rule.
In this article, however, Congress put a warning. It stated
that the president will not be allowed to augment portions of the
budget that have reduced during the debate.
This was vetoed by Ramos. Is that valid?
The Supreme Court answered that is inappropriate. It does
not relate to any particular item. It relates actually to how many
items there that may have been reduced in the debate. The rule
is the provisions must relate to only one item to be valid to be
appropriate. So, there are many portions in the budget. That will
refer to so many items. The veto is unconstitutional. The
provision can stand.
2.

PROVINCE OF BATANGAS
If you look at the Local Government Code, the shares of the
provinces in IRA (Internal Revenue Allotment) are provided there.
In the case of cities and provinces, you get 30% of the IRA. As to
municipalities, they get 20%.
Over the years, Congress is complaining that too much
money goes to the local government. So, in one budget law,
Congress stated that for instance in 1995, from now on, the
shares of cities and provinces shall be reduced to 20% and the
shares of municipalities shall be reduced to 10%. It was
challenged by the Province of Batangas.
The Supreme Court answered that is an inappropriate
provision. You are amending or repealing the Local Government
Code through the budget law. The budget law must speak of
nothing else except the budget. It has no business amending or
modifying a previous law. If you want to modify the LGC, no
problem. But do it in a separate law. Do not insert the repeal in
the budget law itself. The veto is ineffective. It is null and void.
There was also another case. The budget law at that time
stated that the President is given P 20M which he will use to
retire the CAFGU.
The Supreme Court answered that it is inappropriate. Take
note how did we have the CAFGU? The CAFGU was created by
means of law way back in 1988. The Supreme Court stated that if
they want to amend the law, do not do it in the budget in the
law. Do not do it in the budget law. Pass another law. It is an
inappropriate provision. It can be done.

3.

ATITIW
In the budget law, this was inserted the amount therein
appropriated shall be used to wind up the activities of the Cordillera
Administrative Region including payment of separation pay to
affected employees.
It was challenged. You are amending a previous law by
inserting it in the budget law. That is a rider.
But the Supreme Court said NO, we will allow it. Actually, the
Cordillera Administrative Region was not abolished. In fact, only
some portions were deactivated. You must distinguish deactivation
from abolition. Since it is only deactivation, you did not really
amend the law. It continues to exist.
4.

PCA
In the budget law, they put there the amount of P 86B. What is
the use of the P 86B? They have this provision The
appropriations authorized therein shall be used for the payment of
the principal and interest of foreign indebtedness, PROVIDED that
any payment in excess of the amount therein appropriated shall be
subject to the approval of the President, PROVIDED further that in
no case shall this fund be used to pay for the liabilities of the Central
Bank Board of Liquidators.
President Ramos vetoed the entire provision and he was
challenged before the Supreme Court for making an invalid veto.
The Supreme Court made a very sharp analysis. According to
the Supreme Court, if you try to look at it, this is a provision which is
being vetoed in an appropriation law. So, we will look it according
to the doctrine of inappropriate provision.
According to the SC, there are 3 provisions here (1) the first
sentence, (2) provided and (3) provided further:
1) The appropriations authorized therein shall be used for the
payment of the principal and interest of foreign indebtedness
According to the SC, that is appropriate. It relates to an item.
The appropriation is P 86B. Therefore, it cannot be vetoed.
2) PROVIDED that any payment in excess of the amount therein
appropriated shall be subject to the approval of the PresidentThis is inappropriate. It is saying in excess of the amount. It
does not refer only to the P 86B. It extends its operation beyond an
item in excess of the P 86B. Therefore, it can be subject to veto.
3) PROVIDED further that in no case shall this fund be used to
pay for the liabilities of the Central Bank Board of LiquidatorsThis is appropriate in no case shall this fund. What does
this refer to? The P 86B. Therefore, it is an appropriate provision.
According to the SC, the veto will be valid insofar as the second
sentence.
If you try to analyze further, the SC is saying that these are
unconstitutional provisions in the budget law anyway. If the
president will veto it, no problem because it is unconstitutional. In
fact, if the president does not veto it and you go to court, the
Supreme Court will declare it unconstitutional because it does not
comply with the provisions of the Constitution on appropriations.
That is the summary of the doctrine of inappropriate provision.
It is possible that the court will later find other situations where the
court will say it is inappropriate. But for the moment, these are the
only ones.
LEGISLATIVE VETO
The Supreme Court defined legislative veto as the means
whereby the legislature can block or modify administrative actions
taken under a statute.
The concept seems to be very simple because in our
Constitution, we only have executive veto it is the President who
disapproves. But if you look at the legislative veto, it is saying that
the legislature can block administrative actions. It is now the
reverse. It is now Congress exercising a veto power.
2 cases:
1. MILLER vs. MARDO
2. PCA

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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In the PCA case, Congress passed a budget law saying that


the Presidnet has elected to modernize the AFP and for this
purpose, he was given a lot of money purchase firearms,
equipment, boats, airplanes. However, Congress stated before
you start buying things, first come up with a shopping list and
present it to us so that we will approve it. If you try to look at it,
the process is now reversed. The President will propose to buy
these and the Congress will say approve or disapprove. The
Supreme Court did not come out with a ruling. It resolved it with
some other means.
In the old case of Miller, the Supreme Court stated that that
is unconstitutional. You reverse the Constitution. You are
putting the Constitution upside-down. Under our system of
government, it is supposed to be the executive which exercises
veto power. Now, you have congress trying to exercise veto
power. It is legislative veto. It cannot be allowed. You are now
modifying, prohibiting or blocking an executive function taken
under a statute.
Impoundment of funds
This means refusal by the President to spend money made
available by Congress.
The Supreme Court answered (?) the issue on whether it is
valid for the president to make such refusal whether it is
constitutional?
If you try to look at it, the main argument is simply that the
job of the President pertains only to the execution of laws. He
has no business trying to disobey Congresss by keeping the
money or without spending the money made available by
Congress by means of a law.
Congress stated that that here is P 20M retire 11,000
CAFGUs by 1990. Ramos said why will I retire them? I need
them. So, he did not spend the money for retirement.
The Supreme Court stated that we can resolve this by some
other means, by not declaring the law unconstitutional.
But if you try to look at the Administrative Code of 1987, the
Adminsitrative Code is saying that the president can refuse to
spend money if he thinks that it is best for national interest. So, it
is possible. So, Congress is the one appropriating the amount.
But it also passed a law saying that no problem, if the President
does not think that he should spend the money.
Q: When does the law take effect?
A: As a rule, we follow the Civil Code it takes effect 15 days
after publication, except when the law provides otherwise. The
exception simply means that the period can be shortened or
made longer. What you cannot be done away with is publication
because it is an element of due process based on TAADA.
If Congress passed a law saying that this law shall take effect
immediately, that law is valid but it will take effect only after
publication.
UP: Law Making; Process & Publication (1993) No. 2; Ernest
Cheng, a businessman, has no knowledge of legislative
procedure. Cheng retains you as his legal adviser and asks
enlightenment on the following matters: xxx
(2) When does the law take effect?
SUGGESTED ANSWER:
2) As held in Tanada vs. Tuvera, 146 SCRA 446, a law must be
published as a condition for its effectivity and in accordance with
Article 2 of the Civil Code, it shall take effect fifteen days
following the completion of its publication in the Official Gazette
or in a newspaper of general circulation unless it is otherwise
provided. (Executive Order No. 292, Revised Administrative Code
of 1989)
SECTION 28.
(1) The rule of taxation shall be uniform and
equitable. The Congress shall evolve a progressive system of
taxation.

Just try to remember 3 items there that in the power of


taxation by Congress, these are the requirements:
1. It shall be uniform
2. It shall be equitable
3. It shall be progressive
(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.
This is one exception to that issue on the principle that
legislative power cannot be delegated. You have that instance here
where Congress can delegate the power to tax in a sense that it can
allow the President to fix this subject matter of taxes.
Q: Does this extend to income tax? Does it extend to VAT?
A: It is not. It only applies to certain taxes tariff, import and
export quotas, tonnage and wharfage dues.
If you try to look at it, it has something to do with import and
export taxes. The prices usually fluctuate in the international
market. If you leave the matter of taxation of these items to
Congress, Congress will be slow. So, thats why Congress is allowed
to delegate it to the President because it can decide in a very fast
manner.
SOUTHERN CROSS vs. CEMENT
Q: Can Congress delegate the power to the Secretary of Trade or
the Secretary of Agriculture or DTI Secretary and not to the
President?
If you look at the Constitution, this power can be delegated to
the President. But in this law passed by Congress, it delegated the
power to the Secretary of Agriculture or the Secretary of Trade or
the DTI Secretary.
A: YES, they can. Anyway, these 3 people are already alter egos of
the president under the doctrine of qualified political agency. They
can all exercise the power of the president.
Q: Is this provision self-executing?
A: NO, the President can exercise the power only if there is a law
passed by Congress. The delegation can only be done by means of a
law passed by Congress.
EXECUTIVE vs. SOUTHWING
nd
Q: Can the President limit the import of 2 hand vehicles to the
country by means of an Executive Order?
A: The Supreme Court sustained the power under this provision.
He can prohibit the export and import altogether. It is allowable.
The other reason given by the court is that take note it is not
self-executing. In reality, there are now trade laws which were
passed by Congress authorizing the President the import and export
quotas, among them are the NIRC, Small Measures Act and the
Investment Code. These 3 laws allow the President to limit exports
of any item which he thinks might be good for the country. And it is
allowed by the Constitution itself. This power can be delegated by
Congress to the President.
(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.
Remember that this applies only to real property tax.
You will notice later on that if it is an educational institution,
non-stock, non-profit, they also enjoy exemption from taxes on their
income but not because of this provision. It is because of the
provsion in the Constitution under the article on education. This
one is limited only to real property tax.
Q:

Is this provision self-executing?

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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Consti 1Review 2008 Lectures of Atty. dela Banda

A: YES. Commentators call it as the constitutional exemption.


This means that Congress cannot amend (?) this provision
because it is guaranteed by the Constitution. There is no need of
a law before churches and educational institution can enjoy
exemption under this section.
LUNG CENTER vs. QUEZON CITY
Q: What is the meaning of exclusively used for charitable, or
educational purposes:? Does that mean if portions of the
property are used for non-education purpose, does it mean that
the entire privilege from taxes will be removed?
A: NO, what is to be removed only is to the extent that the
property is not used for educational purpose.
ABRA VALLEY
The school had 2 floors. One floor was used as the residence
of the President of the University and his family. The other floor
was rented by commercial establishments. It was assessed by BIR
for full tax.
The Supreme Court said that is not the case. With respect to
the residence of the President and his family, that is still
educational. That is incidental to education. So, that is
exempted.
As to the lower one, this one is subject to tax. In the end,
they will suffer 50% tax to the extent that the building is not used
for educational purpose.
(4) No law granting any tax exemption shall be passed without
the concurrence of a majority of all the Members of the
Congress.
Remember the voting requirement majority of all the
members of the Congress.
Tax laws can be passed by simple majority because the
Constitution does not provide otherwise. But once there is a tax
exemption, the Constitution requires that there should be
majority of all the members absolute majority, not only those
who attended which is the quorum, but the actual membership
of the Congress at that time.
CHAVEZ vs. PCGG
PCGG entered into an amicable settlement with the Marcos
family. And it provided that the estate of Marcos shall be
exempted from taxation.
The Supreme Court answered that NO, it cannot be done.
The power to grant exemption belongs to the Congress. The
PCGG has no business granting a tax exemption, unless it is
subsequently ratified by means of a law.
It seems that when it comes to tax exemption, the primary
purpose of the law is tax exemption. If you will notice, there are
really laws which grant tax exemptions but it is not the main
purpose.
For instance, the Cooperative Code. There is a section there
which gives tax exemptions to cooperatives. I doubt if this will
apply because the purpose there is not to grant tax exemptions
only. It is only incidental. We will go back to the principle that a
simple majority will be needed to pass that law. Otherwise, most
laws will end up being subject to absolute majority because there
are many laws which give tax exemption NAPOCOR, senior
citizens.
SECTION 29.
(1) No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law.
Only Congress can authorize expenditures of public lands.
This is the only reason why you cannot execute against the
government a judgment because you cannot get money from the
government unless there is an appropriation pursuant to law.
BRILLANTES, JR. vs. COMELEC
This is the project of the COMELEC to conduct an unofficial
quickcount in 2004 election. The COMELEC decided to conduct

an unofficial quickcount so that they will know in advance as to who


is winning. This was challenged by Brillantes.
The Supreme Court nullified it on this Section. According to the
Court, if it is unofficial, where will you get the money? That entails
expenses and you cannot spend any money unless there is a law
appropriating it. That cannot be done. The Court declared it
unconstitutional.
(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.
The main principle is if a priest works with the government in
that capacity, it is not allowed to receive money from the
government. Conversely, if he serves the government in a nonreligious capacity, he is allowed to receive money.
Q: What are the exceptions that a priest can receive money from
the government even if he works in a religious capacity?
Take note of the exception. That was the subject matter of a
1997 bar question.
UP: (1997)
No. 4: Upon request of a group of overseas contract workers in
Brunei, Rev. Father Juan de la Cruz, a Roman Catholic priest, was
sent to that country by the President of the Philippines to minister
to their spiritual needs. The travel expenses, per diems, clothing
allowance and monthly stipend of P5,000 were ordered charged
against the President's discretionary fund. Upon post audit of the
vouchers therefor, the Commission on Audit refused approval
thereof claiming that the expenditures were in violation of the
Constitution. Was the Commission on Audit correct in disallowing
the vouchers in question?
SUGGESTED ANSWER: Yes, the Commission on Audit was correct in
disallowing the expenditures. Section 29(2), Article VI of the
Constitution prohibits the expenditure of public funds for the use,
benefit, or support of any priest. The only exception is when the
priest is assigned to the armed forces, or to any penal institution or
government orphanage or leprosarium. The sending of a priest to
minister to the spiritual needs of overseas contract workers does not
fall within the scope of any of the exceptions.
Take note that the Constitution does not mention that his
ministering with the overseas workers is an exception. The
exception is exclusive. It applies only to :
work with the Armed Forces
penal institutions
government orphanage
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.
There is not much here. This is a tax levied for a special
purpose. They have not yet asked this yet in the Bar and no actual
case made.
SECTION 30.
No law shall be passed increasing the appellate
jurisdiction of the Supreme Court as provided in this Constitution
without its advice and concurrence.
Take note that this applies only to the appellate jurisdiction.
There seems to be no prohibition if what is increased is the original
jurisdiction. It is the language of the Constitution.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

27

Consti 1Review 2008 Lectures of Atty. dela Banda

Sometimes, it can come to a problem. For instance, like in


the Bar Question. (No mention of what year ) It is Congress
who passed a law creating a remedy for the writ of amparo. It
says that the Supreme Court will also have original jurisdiction.
If you look at the provision, it is not prohibited because it is
original jurisdiction. What is prohibited only is appellate
jurisdiction. So, it can be allowed even if there is no consent.
The problem is it will run into conflict with Article VIII,
Section 5 the rule making power belongs to the Supreme Court.
Congress might not be allowed to create remedies relating to the
rules, practice and procedures, which belongs to the Supreme
Court.
Q: Can Congress pass a law instituting the jury system in the
Philippines?
A: We will discuss that when we reach Section 5
FABIAN vs. DESIERTO
Congress increased the appellate jurisdiction of the Supreme
Court from the Ombudsman
FIRST INVESTMENT vs. CA
Appellate jurisdiction of the Supreme Court from the Board
of Investments
The Supreme Court (in both cases) said null and void. You
did not get our consent first. The Court seems to be thinking that
you get it before hand, before you pass a law. Do not get it (the
consent from the SC ) after you pass a law. It will be
unconstitutional.
2 prohibitions on Congress when it comes to the jurisdiction of
the Supreme Court:
1. Congress cannot pass a law increasing the appellate
jurisdiction (Article VI, Section 30)
2. Congress cannot pass a law reducing the jurisdiction of the
Supreme Court as found in Article VIII, Section 5. (Article
VIII, Section 2)
SECTION 31.
shall be enacted.

No law granting a title of royalty or nobility

They keep moving this provision.


Under the 1935
Constitution, they put it under the Bill of Rights. Under the 1973
Constitution, they put it somewhere in the declaration of
principles. Now, it is here. They cannot make up their minds
where to put it
It is good to understand that a copy from the American
Constitution.
It is good to understand also that under the 1935
Constitution, it is made up two parts. The other part was that no
other government official can receive a title of royalty or nobility
from a foreign country without the consent of Congress. They
asked in the bar sometime in 1994. It is no longer found in the
Constitution. I forgot that they put that provision in the Civil
Service. So, they kept it. So, it is not allowed.
The grant of title of royalty from other countries is allowed
when you go to England and make you a Duke, you can do it only,
if you are a government official with the consent of Congress. If
you are private individual, no problem. You can get it
immediately.
It used to be in the 1973 Constitution that the consent is to
be given by the President. Now, they revoke it. The consent is to
be given by Congress.
I was thinking that the only private law I can think of is a law
nd
granting citizenship to an individual. This is the 2 one a law
authorizing an individual, under the Civil Service, to accept a title
of royalty from another country.
SECTION 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 therefor signed by at least ten per centum of the total
number of registered voters, of which every legislative district must
be represented by at least three per centum of the registered voters
thereof.
UP: REFERENDUM vs. INITIATIVE (Q1-2005)
(a) The present Constitution introduced the concepts and processes
of Initiative and Referendum. Compare and differentiate one from
the other. (3%)
SUGGESTED ANSWER: INITIATIVE is the power of the people to
propose amendments to the Constitution or to propose and enact
legislations through an election called for the purpose. Under the
1987 Constitution, the people through initiative can propose
amendments to the Constitution 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 voters therein. REFERENDUM is the power of the
electorate to approve or reject a legislation through an election
called for the purpose. (Sec. 3, R.A. No. 6735 [1989]).
On the other hand, the Local Government Code (R.A. No. 7160)
defines LOCAL INITIATIVE as the legal process whereby the
registered voters of a local government unit may directly propose,
enact, or amend any ordinance (Sec. 120) and LOCAL REFERENDUM
as the legal process whereby the registered voters of the local
government units may approve, amend or reject any ordinance
enacted by the Sanggunian. (Sec. 126)
UP: Phil Con 87; People Power (2000)
No IX. Is the concept of People Power recognized in the
Constitution? Discuss briefly.
(3%)
SUGGESTED ANSWER: Yes, the concept of People Power is
recognized in the Constitution.
Under Section 32. Article VI of the Constitution, through
initiative and referendum, the people can directly propose and enact
laws or approve or reject any act or law or part thereof passed by
the Congress or local legislative body after the registration of a
petition therefor signed by at least ten per centum of the total
number of registered voters, of which every legislative district must
be represented by at least three per centum of the registered voters
thereof.
Under Section 16, Article XIII of the Constitution, the right of
the people and their organizations to effective and reasonable
participation at all levels of social, political and economic decisionmaking shall not be abridged. The State shall, by law facilitate the
establishment of adequate consultation mechanisms.
Under Section 2. Article XVII of the Constitution, the people
may directly propose amendments to the Constitution through
initiative upon a petition of at least 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 voters
therein.
UP: Phil Con 87; People Power (2003)
No I - Is "people power" recognized by the 1987 Constitution?
Explain fully.
SUGGESTED ANSWER: "People power" is recognized in the
Constitution.
Article III, Section 4 of the 1987 Constitution guarantees the
right of the people peaceable to assemble and petition the
government for redress of grievances.
Article VI, Section 32 of the 1987 Constitution requires
Congress to pass a law allowing the people to directly propose and
enact laws through initiative and to approve or reject any act or law
or part of it passed by Congress or a local legislative body.
Article XIII, Section 16 of the 1987 Constitution provides that
the right of the people and their organizations to participate at all
levels of social, political, and economic decision-making shall not be
abridged and that the State shall, by law, facilitate the establishment
of adequate consultation mechanisms.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

28

Consti 1Review 2008 Lectures of Atty. dela Banda

Article XVII, Section 2 of the 1987 Constitution provides that


subject to the enactment of an implementing law, the people
may directly propose amendments to the Constitution through
initiative.

SBMA vs. COMELEC


The Municipality of Morong, Bataan passed a resolution making
Morong, Bataan part of the special economic zone. The Supreme
Court stated that the people can disapprove that and initiate that it
be nullified.

Bar Question: Does the Constitution recognize People Power?


You can answer YES by citing Constitutional provisions. One
of them will be the provision on party list to ensure the
participation of the marginalized sector. This one makes another
manifestation of people power. It allows direct democracy.
People are allowed to enact legislation or to repeal a certain
legislation. You can use this to answer this type of question.

Requirement for initiative and referendum:


National Law
1. 10% of total number of votes at the certification stage
2. Each district must be supported by at least 3%

Q: How do you classify this kind of power?


A: This is considered only as ordinary legislative power. It
pertains to the power to amend or to enact an ordinary
legislation, not constituent. Why not constituent? Because
constituent means the power is found in the Constitution for the
amendment or revision of the Constitution. This pertains only to
ordinary legislation.
Take note that it is not self-executing. Congress is required
to pass a law to in order to implement it and Congress has done
that way back in 1989.
INITIATIVE is the power of the people to propose
amendments or to enact legislation. If you look at initiative, it
involves both proposal and reenactment.
REFERENDUM is the power of the electorate to approve or
reject. This applies to approval or rejection. When it comes to
referendum, it does not include proposal. The role of the people
is very minimal.
The Supreme Court in fact stated that in initiative, Congress
or the law-making body does not act at all. For instance, you
want a law but Congress does not do anything. So, thats why
you have to initiate and in the end, approve the law.
What about referendum? Here, Congress starts the process.
It passes a law and we are asked if we approve it. Thats why this
is only the approval stage.
In effect therefore, an initiative necessarily includes
referendum. But referendum does not necessarily include
initiative. It comes after only.
3 instances when referendum has to be done:
1. Organic Act of Autonomous Region
When you want to pass an organic act for the
Autonomous Region, it has to be approved in a referendum
to be participated by the area that is part of the Autonomous
Region.
2. Create a new province, city or municipality
It must pass through a referendum of the areas to be
affected.
3. Adopt a new name for the Philippines or change the national
anthem
Q: What if you want to change the flag all red?
A: Congress can change the design of the flag without a
referendum. If you look at the Constitution, if you want to
change the name of the Philippines to United States, you need a
referendum. Also, if you want to change the national anthem.
What are the subjects of initiative and referendum under RA
6731?
1. Constitution
2. Law passed by Congress or statutes
3. Local legislation or ordinances
GARCIA vs. COMELEC
But the Supreme Court in the Garcia case also added that
even resolutions which has a binding effect can be subject to
initiative and referendum.

This is impossible. In fact, it has not happened until now.


There is no initiative on any legislation that has been successfully
done. With some district, it is impossible to get 3% - like Basilan,
Jolo, Sulu, Tawi-Tawi.
When does a law passed on initiative and referendum take effect?
If you look at the law passed by Congress, it is also 15 days after
publication.
What can be the subject matter of initiative and referendum?
Can we repeal the rape law through initiative and referendum?
If you try to look at it, it is saying that the only kind of law that
cannot be the subject matter of initiative and referendum will be
statutes involving emergency powers. The reason for that is if you
grant emergency powers to the President, the Constitution requires
specific provisions number of votes, that it can be recalled
anytime, the requirement that it is received jointly and discuss it. It
is very careful that you cannot pass statutes involving emergency
powers.
Can we abolish taxes?
Many years ago, when the VAT was added, we were involved in
an act (?) to repeal it because it is not prohibited. We can abolish
taxes if you can do it.
What about rape law?
We can do it also because it is not an exception. But why is it
that they did not put it as an exemption murder cannot be
abolished? Because we know that we are not crazy enough to
approve that law abolishing rape, murder, homicide. In the end, it
will be through referendum.
There is no provision whether or not Congress can repeal a law
passed through initiative. I am thinking that it stands to reason that
it should not be repealed because we exercised our sovereign
power. This means that we are the author. We are the sovereign
people. The power of Congress to pass laws is only delegated.
If we pass a law and Congress repeals it, so, well pass it again
and then Congress will repeal it. So, theres no end to it. Congress is
not allowed to do that. It cannot repeal a law passed through
initiative.
If that is the principle, we have a problem. In the beginning, we
said that the power of Congress is plenary. You cannot pass a law
which is not repealable.
But that is subject to an exception a law passed by the people
in its sovereign capacity under Section 32 should not be subject to
repeal. No one should be more powerful than us.
Can a local legislative body repeal, for instance, when we are the
ones who pass an anti-smoking law?
YES, but you can only repeal it after 6 months to 3 years from
the effectivity of the law by vote. This means that within 6
months from the time of the effectivity of the law, the Sanggunian
cannot repeal it. After 3 years, they cannot repeal it. But they have
a grace period 6 months to 3 years it is subject to repeal by the
local legislative body.
This is the reason also why Congress cannot repeal because
there is no equivalent provision when it comes to Congress. But in
the local government unit, it puts a provision that it can be repealed.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

29

Consti 1Review 2008 Lectures of Atty. dela Banda

But take note also that the voting is very high of the local
legislative will approve the repeal of the ordinance passed
through initiative.
(Medyo nalito ako .. murag ang pasabot na what was passed
through initiative is an ordinance jud (effective within an LGU),
not a law na national in scope. Nalibog ko kay law man gud ang
gimention sa question .. hehe .. check lang )
Can the President veto a bill/law passed through an initiative?
The provision does not say it. I am thinking that this is not
subject to veto. We are a sovereign and we pass a law. And if we
allow the president to veto it, that is absurd
Can you challenge a law passed through initiative before the
Supreme Court? Can we challenge it as unconstitutional?
I believe you can because remember the principle that the
Constitution is the fundamental law of the land. So, it must
comply with the provisions of the Constitution. For instance, you
cannot violate the Bill of Rights.
For instance from now on, only one religion will be
recognized in the Philippines. That is violating the Constitution.
That is not allowed.
Do not confuse it with amending the Constitution because if
the people amend the Constitution and revoke a Constitutional
provision, you cannot do anything about it. The people are
sovereign. They can amend the Constitution but they cannot
amend the Constitution by passing an ordinary law. In amending
the Constitution, you need 12% to initiate it. In ordinary law, only
10%.
You can challenge a law actually if it is unconstitutional. The
Congress and the people cannot amend the Constitution through
initiative under Section 32. You have to do it under the article on
initiative and referendum.
INDIRECT INITIATIVE is not found in the law. This is how it is
defined a petition filed by an accredited peoples organization
with the House of Representatives for the adoption of a bill into a
law.
They are 2 things that are significant here:
1. In our system, there are only 2 types of bill the Senate Bill
(introduced by the Senate) and the House Bill (introduced by the
Congressmen). We now have a new type indirect initiative.
This is a bill introduced by an accredited peoples organization.
2. Remember that I mentioned the bills that must originate
from the Lower House appropriation, tariff, revenue, local
application, increase of public debt, private bills (Article VI,
Section 24). There is a new one indirect initiative. By its
definition, it is a petition filed by an accredited peoples
organization with the House of Representative. So, it originates
in the House of Representative. You cannot actually file (?) it
with the Senate if it is an initiative bill.
(by: Jazzie )
OCTOBER 2, 2008
Article VII Executive Department
Section 1. The executive power shall be vested in the President of
the Philippines.

Means the power to execute or implement laws.


Can the president do something even if there is no law
authorizing him to do it? What is the extent of executive
power? Can the president do things only allowed to him by
constitution and by law or is he allowed to do things which
are not mentioned in the constitution or any law.
o The supreme court authorized (?) conflicting answer,
though we do not say they are in conflict but in the end,
the summary is that it will depend on the situation.
Sometimes the supreme court will allow the president
to exercise the power not in the constitution or a law
but sometimes It will say you cannot do it.

Case of Manglapus the issue there is whether president


Aquino can ban the return of marcos in the Philippines.
supreme court answered yes, even if there is no law
authorizing her to bar, that is inherent in the executive
power.
o Laurel case (Roppongi property) the president has no
power to sell that property. There is no law, there is
nothing in the constitution that authorizes the president to
sell the property in a foreign country.
o Quirio vs Director (National ID system) this cannot be
done. This matter belongs to congress. There must be a
law. There is nothing for the president to implement
considering that the congress did not pass a law, so it
cannot be done. (murag Ople vs Torres case ni)
o David vs Macapagal (Can the president declare a state of
emergency without the senate approval?) - the supreme
court said you can do it, there is nothing in the
constitution that prohibit her from declaring a state of
emergency.
o Conclusion. Case to case basis!
Doctrine of Immunity from suit involving the president.
o Unlike the 1973 constitution. The present constitution
provides specific statement that the president is immune
from suit. In international law, the president is immune
from suit in other countries even if he commits a crime.
The president cannot be sued even in other countries
because he is the representative of the state and the state
cannot be subject to the jurisdiction of another country.
Also, the reason of the supreme court is this so that the
president will not be disturbed in the performance of his
functions.
o What is the effect of this immunity? He cannot be sued
criminally or be subjected administratively.
o Exceptions: when there is an election protest (defensor vs
ramos case). The second one is impeachment.
o David vs Macapagal supposing the president declares
martial law, can the president be impleaded directly? It
cannot be done. What can you do?
o Javellana vs Executive secretary file suit against
executive secretary who is the little president and the alter
ego of the president.
Can the president waive her immunity from suit? (beltran case)
o It can be committed and subject to waiver because this is a
personal privilege. The only person who can waive this is
the president.

UP: Presidential Immunity from Suit (1997) No. 13: Upon complaint
of the incumbent President of the Republic, "A" was charged with
libel before the Regional Trial Court. "A" moved to dismiss the
information on the ground that the Court had no jurisdiction over
the offense charged because the President, being immune from suit,
should also be disqualified from filing a case against "A" in court.
Resolve the motion.
SUGGESTED ANSWER: The motion should be denied according to
Soliven us. Makasiar, 167 SCRA 393, the immunity of the President
from suit is personal to the President. It may be invoked by the
President only and not by any other person.

Is the VP immune from suit?


o Atty. De la banda is not certain. The reason in beltan
cannot be applied. VP has nothing to do.

Section 2. No person may be elected President unless he is a naturalborn 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.

P/VP 40 y.o.
Senators 35 y.o.
Congressman 25 y.o.
Justice of SC 40 y.o.
Residency requirement

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

30

Consti 1Review 2008 Lectures of Atty. dela Banda

o
o

10 years ( this means domicile)


2 years senators?

Section 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.

VP enjoys same qualifications not privileges.


As member of the cabinet and there is no need for
confirmation
o Can the VP be appointed in a position lesser that a
cabinet member?

Father Bernas says that it cannot be done. But I


think it can be done. Estrada was appointed as
head of the anti crime commission and that is not
a cabinet position.

Section 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.

when both houses decided differently, one in favor of A and the


other in favor of B. then, there will be no president. Atty. De la
banda says it is difficult to understand what this means.
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.

In all constitutional offices no holdover status is allowed.


When june 30, 12 noon arrives, you have to vacate. In other
positions in the government, sometimes it will allow
holdover but in the constitution it is not allowed.

The President shall not be eligible for any re-election.

This is an absolute prohibition

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.

Take note the cut off date that it is more that four years.
Meaning if it is exactly four years you can run.

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.

Take note of that it is successive.


Unless otherwise provided by law, the regular election for
President and Vice-President shall be held on the second Monday
of May.
The returns of every election for President and VicePresident, duly certified by the board of canvassers of each
province 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 the election, open all the certificates in the
presence of the Senate and the 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 the votes.
The person 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, one of them shall forthwith be
chosen by the vote of a majority of all the Members of both
Houses of the Congress, voting separately.

Pimentel vs Congress even if Congress is in recess, the


canvassing can go on since it is a none legislative function
and proceed proclaiming the president.
Two people with equal number of votes how to break the
tie? The House will decide and the Senate will decide
separately. You have to win in both houses. The problem is

Case of Fernando Poe (disqualification case when he ran for


presidency 2 cases SC another 2 b4 SC)
o The supreme court held that the supreme court has only
jurisdiction on cases filed before the Comelec. The reason,
the SC has the power to review by certiorari all the
decisions of the Comelec. The SC cannot directly entertain
the disqualification case of Fernando before he was
proclaimed. PET has only jurisdiction when one is already
proclaimed.
What about the case coming from the comelec, in what
capacity does the SC reviews it? As PET or as a the original SC?
It review it as original SC.
What will render the protest moot and academic?
o Expiry of the term
o Permanently appointed except acting appointment (if
you file EP and accept an appointment that will render
the EP moot and academic)
o Running, winning, assuming

Santiago vs Ramos (the 3 must be present)


o Death, if no proper substitute

Death in either sides (protestant or protestee) will


not render the protest moot and academic since
public interest is involved so it must be found out
who won.

Case of Fernando if you look at the rule of PET,


there are only two persons allowed to file protest.
The second and the third placer who were Fernando
and Lacson. No other will have any other personality
to file. The wife of Fernando has no personality to file.
Thus, the protest has died. The protest will be
rendered moot and academic if no proper
substitution has been made.

Section 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 myself to the service of the Nation. So help me God."
[In case of affirmation, last sentence will be omitted].

2007 Bar question: true or false

All public officers and employees shall take an oath to


uphold and defend the Constitution. False. It may also be
an affirmation.

Section 6. The President shall have an official residence. The salaries


of the President and Vice-President shall be determined by law and
shall not be decreased during their tenure. No increase in said
compensation shall take effect until after the expiration of the term
of the incumbent during which such increase was approved. They
shall not receive during their tenure any other emolument from the
Government or any other source.

The last statement is significant. This is an outright prohibition


to engage in any business or to exercise a profession or any
activity that will have a return on income. For president and
vice president, they are absolutely prohibited from taking any
other job. The same thing also, if the vice president becomes a

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

31

Consti 1Review 2008 Lectures of Atty. dela Banda

member of the cabinet, he will not be receiving additional


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

Sec. 7 Beginning of term


o VP becomes Pres

President elect fails to qualifty

President shall not have been chosen

At the beginning of term, P elect shall have died,


permanently disabled
o Senate President / Speaker becomes president

No president/VP has been chosen or qualified

When pres/VP has died/ permanently disabled


o None Available
June 30, noontime, the beginning of the term, if we have no
president, what will happen? The vice president. What are
the situations contemplated on june 30?
o The president elect failed to qualify (he has not taken
his oath); VP temporary
o The president shall not have been chosen (canvassing
has not been finished); VP temporary
o At the beginning of the term, the president elect shall
have died or been permanently disabled; VP becomes
Pres permanently
Another situation is when will the president or the senate
speaker become president? This means that if there is no
president or vice president, the senate president can
become president but the speaker cant go up. He remains a
speaker. The only instance where the speaker will go up is
when there is no senate president. So the speaker will
become president. (nalibug na si sir diri. Samut na ko)
o No president or VP has been chosen or qualified ( no
election, wait until P chosen/qualified)
o When P/VP had died/permanently disabled (there is an
election)
The third situation none available. (all are dead)
o Congress should pass a law to address that, but until
now, they have not done it.

Section 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.

Sec. 8 Middle of term (after june 30)


o When VP becomes P permanently

Dies

Permanently disabled (physical, mental or moral)

Resignation (oral, writing, express or implied)

Removal
o If both not available (P/VP)
o If all (Congress pass a law)
Section 8 applied during the middle of the term and interpreted
that it happened after june 30, 3 days or 2 days after. It is
considered in the middle of the term. So they started assuming
and something happens to them.
The first situation is when will the VP become P permanently?
When the P dies, becomes permanently disabled, resigned or
removed by impeachment.
In Estrada case, the supreme court stated that disability can
apply to physical, mental or moral. This moral can apply to
estrada because all the members of the cabinet resigned.
In resignation, the supreme court in the Estrada case also
qualified it saying that when we speak of resignation there is no
formalites required,. It can be oral, writing, express or implied.
If you notice, all resignation should be in writing. This is the
only instance where the supreme court came up with a new
rule.
The second situation is that when both the president or the
vice president are not available, if they die in the middle of the
term, it will be the senate president and in case of disability,
the speaker of the house. Again the constitution is very careful
to create that scenario, if all of them are not available, congress
shall pass a law to answer the problem.

Section 9. Whenever there is a vacancy in the Office of the VicePresident 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 the Congress, voting separately.
o

We have no problem here. The only position that became


vacant is the office of the vice president, there is no need
for election, why waste money on him. He is doing
nothing. What it said here is that you nominate somebody
from either house, it can be a senator or the speaker of
the house. Theres no problem here, if you nominate
somebody and he does not get confirmed by one house,
nominate another guy until the two houses will confirm
him.

Section 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 VicePresident 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 V1 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 V1 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.

Section 10 Special Elections (requisites both must be present)


o 2 offices becomes vacan
o Prior to 18 months before next election.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

32

Consti 1Review 2008 Lectures of Atty. dela Banda

This is very important. The only instance where we can


conduct special elections under the consti for the exec
position where the two requisites concur. We are talking of
simultaneous vacancy meaning nobody can nominate (?),
nobody can go up.
It is prior to 18 months so that it will not be too short. If its
too short we wait for the next election.
The law calling for a special election is the second instance in
the constitution where congress is called to act or pass a law
during specific period. The second instance is during martial
law where congress should pass a law within a certain period
of time.
This is one instance where there is a law without the
signature of the president.
Bar. Other instances where the law does not have the
signature of the president;
o When the president veto the bill.
o When the president does not act on it.
Does the law need to be published..
o Taada case. All laws must be published. So, you must
still publish it.

(by: Anthony )
SECTION 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 Vice-President 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 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 the President; otherwise, the President shall continue
exercising the powers and duties of his office.
Who will decide if the President is unable to discharge his
powers?
1. By the President himself
He will write a letter and transmit it to the Senate President
and Speaker of the House that he is no longer able to perform his
duties.
By the way, does this refer to permanent or temporary
disability? The answer seems to be that it applies to both. If you
try to look at it, it is saying if the president says he is able, he can
reassume. So, it indicates temporary
ESTRADA vs. DESIERTO
In the case of Estrada, in the end, the Supreme Court stated
that he was determined to be permanently disabled.

2. If the president cannot do it because is too sick to do it, maybe


he is dying, the majority of all the members of the Cabinet can make
a determination.
3.

Disagreement 2/3 of Congress


rd

The 3 paragraph seems a bit strange. The Constitution is


stating that there is a possibility of disagreement between the two
(the President thinks he is able but the majority of the Cabinet says
he is still unable). How do we resolve that?
Congress will determine it by 2/3 vote of both Houses. That is
one of the few instances which has a very high voting requirement.
It is like declaring a state of war.
SECTION 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.
Just take note of who are those people who are authorized to
have access to the President. It cannot be extended, it is limited members of the Cabinet in charge of national security (National
Security adviser, Secretary of National Defense) and foreign
relations and the Chief of Staff of the Armed Forces of the
Philippines.
SECTION 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 governmentowned or controlled corporations and their subsidiaries.
Sometimes the Constitution mentions corporations, sometimes
it includes subsidiaries, sometimes it does not. In one bar question,
the examiner asked whether it is important that subsidiaries are
covered or not covered. It enumerated the instances. For instance,
the provisions involve the Ombudsman, Commission or Congress.
UP:GOCCs Without Original Charter vs. GOCCs With Original
Charter (1998) (This may be the bar question sir is referring to)
No II.-- The Constitution distinguishes between two types of owned
and/or controlled corporations: those with original charters and
those which are subsidiaries of such corporations. In which of the
following rule/rules is such a distinction made? Consider each of the
following items and explain briefly your answer, citing pertinent
provisions of the
Constitution.
1. The rule prohibiting the appointment to certain government
positions, of the spouse and relatives of the President within the
fourth degree of consanguinity or affinity. [2%]
2. The rule making it incompatible for members of Congress to hold
offices or employment in the government. [2%]
3. The rule prohibiting members of the Constitutional Commissions,
during their tenure, to be financially interested in any contract with
or any franchise or privilege granted by the government, [2%]
4. The rule providing for post audit by the COA of certain
government agencies. [2%]

So, it applies to both situations, not only to the temporary


Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

33

Consti 1Review 2008 Lectures of Atty. dela Banda

5. The rule requiring Congress to provide for the standardization


of compensation of government officials and employees. [2%]
SUGGESTED ANSWER:
1. Section 13. Article VII of the Constitution, which prohibits the
President from appointing his spouse and relatives within the
fourth degree of consanguinity or affinity does not distinguish
between government corporations with original charters and
their subsidiaries, because the prohibition applies to both.
2. Section 13, Article VII of the Constitution, which prohibits
Members of Congress from holding any other office during their
term without forfeiting their seat, does not distinguish between
government corporations with original charters and their
subsidiaries, because the prohibition applies to both.
3. Section 2, Article IX-A of the Constitution, which prohibits
Members of the Constitutional Commissions from being
financially interested in any contract with or any franchise or
privilege granted by the Government, does not distinguish
between government corporations with original charters and
their subsidiaries, because the prohibition applies to both.
4. Section 2(1), Article IX-D of the Constitution which provides for
post audit by the Commission on audit of government
corporations, does not distinguish between government
corporations with original
charters and their subsidiaries, because the provision applies to
both.
5. Section 5, Article IX-B of the Constitution, which provides for
the standardization of the compensation of government officials
and employees, distinguishes between government corporations
and their subsidiaries, for the provision applies only to
government corporations with original charters.
Who are the people covered by Section 13:
1. The President
2. The Vice-President
3. The Members of the Cabinet
4. The Deputies and Assistants of the Members of the Cabinet
The Constitution uses the term members of the cabinet.
Do not equate it with the heads of the cabinet because in some
portions of the Constitution, especially when you go to
appointment, the Constitution does not mention members of the
cabinet. It mentions head of the administrative department.
They are not synonymous. Some members of the cabinet are not
heads of the executive department. They do not have the rank of
the Secretary. They have no department under them. All people
who have the rank of Secretary are also members of the Cabinet.
But if you are a cabinet member, it does not mean that you are a
head of an executive department.
Those are the officials who are covered.
PUBLIC INTEREST vs. ELMA
Elma was appointed by the President as Chief of the
Presidential Commission on Good Government, who is now
headed by Sabio. A few months later, the President appointed
Elma as Presidential Legal Counsel.
Q: If he suffers defect from accepting the position under
Section 13?
A: The Supreme Court said NO. He is not covered by the
provision. A Presidential Legal Counsel is not a member of the
Cabinet. A Chair of the PCGG is not a member of the Cabinet. So,
he is not covered. But another provision was applied by the
Supreme Court.
So, it is important to know who are covered by Section 13.
What is the extent or scope of the prohibition?
1. They cannot hold any other office or employment unless
otherwise provided by the Constitution.
Take note unless otherwise provided by the
Constitution, they will not be allowed to hold any other office or
employment. It is much smaller than the prohibitions on
members of the legislature. For members of the legislature, you
are prohibited only from holdinga public office with the
government or its corporation, or any subsidiary.

But here it says, you are prohibited from holding any other
office or employment. It does not distinguish whether the office is
private or public. It is broader compared to the prohition on
members of Congress.
2.

They shall not directly or indirectly:


a. practice any profession
b. participate in any business
c. financially interested in contract

Again, different from Congress. In Congress, you can practice


your profession. There is no prohibition in the Constitution. But
here, members of the Cabinet are prohibited.
The second prohibition does not apply to members of Congress.
(please verify this .. I am not sure of what I heard )
The third prohibition is the same with the provision as to
members of Congress.
3. They shall strictly avoid any conflict of interest in the conduct of
their office
We will proceed further.
It mentions here that you are allowed to hold office if
permitted by the Constitution because it says unless otherwise
provided in the Constitution.
In what instances can members of the Cabinets or these people
hold another position as allowed by the Constitution?
1. If you are Vice-President, you can be a member of the Cabinet
2. If you are the Secretary of Justice, you are an ex-officio member
of the Judicial Bar Council.
3. If you hold it in an ex-officio capacity (This is not in the
Constitution but it is accepted by the Supreme Court as allowable)
Requisites where you can hold an ex-officio position:
1. No need of a separate appointment
Why? If you occupy this office, it follows that you occupy that
also. You are not appointed anymore.
2.
3.

You cannot receive additional compensation


It must be in accordance with law
There are so many now specifically allowed by the law. If you
are the Secretary of Education, in the Charter provided for
Universities, you sit in the Board of Trustees of all the colleges and
universities in the Philippines (please double check this info ). If
you are the Secretary of Education, the law creating the Boy Scout, it
states that you have to be a member of the Boy Scouts of the
Philippines.
4. It must be related to the main function
For instance, the Secretary of Justice is a member of the
Dangerous Drugs Board. That is logical. It is related with his work.
It is also logical that the Secretary of Education will be a member of
the Boy Scout.
For instance, the Secretary of National Defense is also a
member of the Board of Land Bank of the Philippines. What does he
know about banking?
BITONIO vs. CA; NAC vs. CA
What do these cases tell us? Most members of the Cabinet
hold numerous ex-officio positions. Their normal practice is they
send their assistants or subordinates to attend meetings. In these 2
cases, these assistants tried to ask for per diems because they
attended meetings.
Q: Can the representatives of these people, acting in an ex-officio
capacity, get per diems or allowances or compensations?
A: The Supreme Court said NO, you are prohibited. You are not
allowed to receive any salaries, no allowances, no per diems or
anything of another term. So, it is an absolute prohibition that no
additional compensation for holding an additional ex-officio
position.
In fact, the Supreme Court would justify this by saying that it is
really not an additional position. It is only additional work.
So, these people who hold position in ex-officio capacity are
not required or are not allowed to receive any additional

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

34

Consti 1Review 2008 Lectures of Atty. dela Banda

compensation, allowances or per diems. The same with anybody


attending in their behalf.
PUBLIC INTEREST VS. ELMA
I told you that he is not covered (by Section 13 ). But the
Supreme Court stated that he is still prohibited because of
another provision when you studied the law on Public Officers in
Civil Service. That is Article XI-B, Section 7 Civil Service.
There is a similar prohibition on members of all appointive
officials.
ARTICLE XI-B SECTION 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.
The main distinction there is that for members of the
Cabinet, Section 13 says unless allowed by the Constitution.
For appointive officials, unless allowed by law. Congress can
pass a law allowing lower appointive officials to hold other
positions.
But in the CLU vs. SECRETARY CASE case, Congress can
never pass a law allowing members of the Cabinet to hold an
additional position. In fact, the provision in the Administrative
Code of the Philippines saying it is allowable was declared by the
Supreme Court as unconstitutional.
With respect therefore to Elma, who held positions as
Presidential Legal Counsel and PCGG Chair, the Supreme Court
stated that you cannot do it for the reason that there is no law
allowing him to hold such position. The second one is saying
unless allowed by your primary function. The Supreme Court
stated that if you are the Presidential Legal Counsel, you advise
the President on all legal matters. Sometimes problems go to the
very department of the government. If you are the PCGG Chair,
you head one government office. What will happen If there is a
problem there, you report it to the President and the President
will consult you and ask you for advice about it as Presidential
Legal Counsel. According to the Supreme Court, that cannot be
permitted because there will be conflict of interest.
Q: What will happen to you, considering that you are holding 2
positions creating a problem? Some are thinking that because
you held 2 positions, you shall be thrown out of both. Assuming
that he is not thrown out of both, which position will remain?
A: The Supreme Court stated we go back to the law on Public
Officers. If you occupy two positions, the presumption is you
vacated the old one. The new one will continue.
The other paragraph of this Section contains prohibitions on
appointment of relatives of the the president.
xxx 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.
What are the positions where the relatives of the President shall
not be appointed?
1. Members of the 3 Constitutional commissions
2. Ombudsman
3. Secretaries or Undersecretaries
4. Chair or heads of the various bureaus of the government.
Apparently, the concept of nepotism in the Constitution is
much broader compared to the concept of nepotism in the Civil

th

Service Law. Under the Constitution, it says 4 civil degree but for
these positions only. But under the Civil Service Law, the concept of
rd
nepotism is covered only up to 3 civil degree. It is good to
understand also that under the Local Government Code, the concept
th
of nepotism is again broader 4 civil degree. The mayor is not
th
allowed to appoint people who are within the 4 civil degree to him.
There is no problem really. If the positions are listed in the
Constitution, we apply it. If it is a local government position, we
apply the Local Governmetn Code. For others, we apply the Civil
Service Law. There are no contradictions.
UP: AFP; limitation on accepting additional duties (1996)
No. 7: Can the Judge-Advocate General of the Armed Forces of the
Philippines be appointed a Trustee of the Government Service
Insurance System? Explain.
SUGGESTED ANSWER:
No, the Judge Advocate General of the Armed Forces of the
Philippines cannot be appointed as trustee of the Government
Service Insurance System. Under Section 5(4). Article XVI of the
Constitution, no member 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.
(Sir: There has nothing to do with the main function.)
UP: Cabinet Members; limitation on accepting additional duties
(1996)
1996 No. 7: Can the Secretary of Finance be elected Chairman of the
Board of Directors of the San Miguel Corporation? Explain.
SUGGESTED ANSWER: No, the Secretary of Finance cannot be
elected Chairman of the Board of Directors of the San Miguel
Corporation. Under Section 13, Article VII of the Constitution,
members of the Cabinet cannot hold any other office or
employment during their tenure unless it is otherwise provided in
the Constitution. They shall not also during said tenure 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.
UP: Prohibitions and Inhibitions of Public Office (2004)
(3-a) JAR faces a dilemma: should he accept a Cabinet appointment
now or run later for Senator? Having succeeded in law practice as
well as prospered in private business where he and his wife have
substantial investments, he now contemplates public service but
without losing the flexibility to engage in corporate affairs or
participate in professional activities within ethical bounds. Taking
into account the prohibitions and inhibitions of public office whether
as Senator or Secretary, he turns to you for advice to resolve his
dilemma. What is your advice? Explain briefly. (5%)
SUGGESTED ANSWER: I shall advise JAR to run for SENATOR. As a
Senator, he can retain his investments in his business, although he
must make a full disclosure of his business and financial interests
and notify the Senate of a potential conflict of interest if he authors
a bill. (Section 12, Article VI of the 1987 Constitution.) He can
continue practicing law, but he cannot personally appear as counsel
before any court of justice, the Electoral Tribunals, or quasijudicial
and other administrative bodies. (Section 14, Article VI of the 1987
Constitution.)
As a member of the Cabinet, JAR cannot directly or indirectly
practice law or participate in any business. He will have to divest
himself of his investments in his business. (Section 13, Article VII of
the 1987 Constitution.) In fact, the Constitutional prohibition
imposed on members of the Cabinet covers both public and private
office or employment. (Civil Liberties Union v. Executive Secretary,
194 SCRA 317)
Sir: As a lawyer, if you are a senator, you can still practice but you
cannot appear in court. But as a secretary of any department, you
cannot practice any profession.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

35

Consti 1Review 2008 Lectures of Atty. dela Banda

As a senator, you can still engage in any business. But as a


member of the cabinet, you cannot participate in any business.
Maybe you can have your own shares of stock but you cannot
participate in the business. I think there is no law requiring you
to give up everything.
What about your wife? Sometimes, it can be a problem. It
seems the prohibition will apply to both. You cannot enter into
any financial contract with the government, its subsdivisions and
agencies. For instance, you cannot have a lotto outlet anymore.
You cannot own a cockpit anymore. That will be directly or
indirectly entering into a contract with the government. That will
be the extent of the prohibition.
If you are a senator, what is required is simply you have to
divulge and also, when you sponsor a legislation, you have to
reveal it if there is a potential conflict of interest.
4 Kinds of Appointment:
1. Appointments made by the Acting President under
Section 14
2. Midnight Appointments under Section 15
3. Regular Appointments under Section 16
4. Ad Interim Appointments under Section 16
Additional:
5. Acting Appointments made by the President involving his
members of the cabinet
It became a problem because some of them will not be able
to get the permission (?). So, they will issue them acting
appointment. It is not provided in the Constitution but the
President was sustained by the Supreme Court. We will discuss
that.
With regard to the power to appoint, it is executive in
nature. That is the principle. However, it is good to understand
that the other departments are also given by the Constitution
power to appoint.
For instance, the Supreme Court appoints all its employees.
The 3 Constitutional Commissions are also allowed to appoint its
employees to ensure its independence and to avoid too much
interference by the President.
But the law is, the power to appoint belongs to the
executive.
Another principle given in the TORRES case is that the
normal practice will pass a law and will provide for qualifications
of the person who will be appointed. It is the President who will
make the appointment.
The Supreme Court also told us that Congress cannot pass a
law making the qualifications that only one person will fit it into
the office, as it happened in the DRILON case. It was provided
that Congress passed a law that the Chairman of the SBMA
should have the following qualifications (1) that he should be
the mayor of Subic. So, the Supreme Court stated that it cannot
be done.
There was an EO creating the Mindanao Land Commission.
By that EO, they are creating a new office. Impossible! You
cannot do that because only Congress can create an office. And it
there was an amount of P 50M to be appropriated. How can they
do that when they do not have money?
SECTION 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.
Appointments made by an Acting President
If you try to look at it, the principle is if you are an acting
president, you can only make an acting appointment. The
president is given 90 days from assumption to revoke the
appointment.
Suppose the president does not revoke it within 90 days, will
it become permanent? It seems that it is the intention of the

Constitution that it will become permanent. But if the position


requires confirmation, you cannot do away with confirmation.
If the president does not revoke the appointment, the
appointment will become permanent but if the position requires
confirmation, the person appointed shall still be confirmed.
Otherwise, it cannot be done.
Q: Can the acting president exercise all the powers of the regular
president? For instance, can the acting president declare a martial
law? Can the acting president grant pardon?
A: The Constitution does not say. The only provision in the
Constitution that states the power of the acting President is this one
Section 14.
It is only saying you cannot make regular
appointments, only acting appointments. The others are silent. It is
very difficult to answer as to the other portions.
In the end, you can say that if the Constitution does not say
that it cannot be done, then, it can be done. You can provide an
instance if it is an acting president.
SECTION 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.
Midnight Appointments
A midnight appointment is when the president makes an
appointment shortly before he leaves office. The Constitution
provides the period 2 months before the next presidential
elections and up to the end of his term. It is about 4 months.
Can a president make a valid midnight appointment?
YES, provided:
1. It must be temporary acting capacity
2. The appointment is to the executive position
Q:
A:

What does executive position means?


There are 2 possibilities here
a. Within the executive only Take note that under
this
principle,
judges
might
not
be
covered.
Appointment to the Constitutional Commissions cannot
be covered.
b. Very high position
We really do not know what it means for the reason that the
statutes (? .. hindi ko maklaro ) on what executive position means.
3.

If vacancy will prejudice public service

DE RAMA vs. CA
The Supreme Court stated that this prohibition on midnight
appointments does not apply to local executives.
VILLANUEVA
The Supreme Court stated that appointed to the judiciary, for
the members of the Supreme Court, you have to make an
appointment within 90 days from the vacancy. As to the lower
courts, you must make an appointment 90 days from the time your
name is submitted by the Judicial Bar Council to the President.
Q: What happens if the name was submitted or the vacancy
occurred within the midnight period?
A: The Supreme Court answered if there is vacancy or the name is
submitted for positions in the judiciary during the midnight period,
the president cannot appoint. It is mandated (the 90-day period )
if it is not during the midnight period.
General Rule: In the judiciary observe 90 days
Exceptions: If it falls within the midnight period
Do not confuse midnight appointment with the lame duck
provision of the Constitution. Lame duck provision states that you
cannot appoint somebody who lost in the election within 1 year
after the election.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

36

Consti 1Review 2008 Lectures of Atty. dela Banda

COMELEC ban with the election period, you are not


allowed to make any appointment. The COMELEC ban is
absolute. Midnight appointment is different.
(by: Jazzie )
OCTOBER 7, 2008

2.

Appointments
1. appointments by the acting president
2. midnight appointments
3. regular appointments
4. ad interim appointments
5. acting appointments

3.

3. REGULAR APPOINTMENTS
Section 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

4.

Note: These provisions seem to be interlocking.

Officers whose appointments in the Constitution


require confirmation of the Commission:
a. the chair and members of the 3 commissions
15
Comelec, CSC, COA
b. the regular members of the Judicial and Bar
16
Council
There are 7 members of the JBC. The 3 are
ex-oficio members. The other 4 are regular
officers who are appointed by the
President and they are:
i. a representative of the Integrated Bar,
ii. a professor of law,
iii.a retired Member of the Supreme
Court and
iv.
a representative of the
private sector.
These people require appointment wit the
consent of the Commission. The others are
not mentioned because they are ex-oficio
members, whose appointments to the JBC
do not require confirmation.
c.
[sectoral representatives]
In
Quintos-Deles
sectoral
representative require appointment
of the Commission because they are
officers whose appointments are
vested in the President by the
Constitution. Now, you only have
party-list representative thats why

Outline of whom the President can nominate:


1. 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
According to the court, only these enumerated in
the first sentence require confirmation. These are
the people who require confirmation of the
Commission on Appointments.
2. all other officers of the Government whose
appointments are not otherwise provided for by law
Congress can make the President appoint an
officer in office but in the event that none is
provided, it is understood by the Constitution that
the power is still in the President.
3. those whom he may be authorized by law to appoint
This is clear. The President is authorized to
appoint when authorized by law.
4. 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.
This seems to inter-lap with number 3 except for
the word alone. When it said the word alone,
it allows technically to revise the law and no
recommendatory or request matters with respect
to the appointment.
1999 Bar question: What are the categories of officials who are
subject to the appointing powers of the President?
Answer: It depends on how you outline it but those mentioned
above are the officials whom the president may appoint.

It does not say member of the cabinet.


Appointment to the cabinet does not require the
confirmation of the Commission on Appointment. It
only applies to the rank of a secretary of a
department. It also does apply to deputies and
assistant secretaries.
ambassadors, other public ministers and consuls or
These are people who are in foreign service. Note
that vice consuls do not require the confirmation of
the Commission because they only say consul.
Although it says other public ministers, we do not
practice it here in the Philippines because we do not
have officers with the rank of public ministers.
officers of the armed forces from the rank of colonel or
naval captain, and
This covers only those in the Armed Forces of the
Philippines (AFP). In the case of Manalo, the Chief
Superintendent of the Philippine National Police
(PNP) although a high rank with the equivalent of
General does not require confirmation of the
Commission. PNP is civilian in character and is not
part of the Armed Forces. In the case of Soriano, it
involved the following officers commodore, rear
admiral and vice-admiral. The SC said that they are
not part of the army, so they do not require
confirmation.
other officers whose appointments are vested in him in
this Constitution
Note: There are officers whose appointments
are vested in the President by the Constitution
that either require confirmation or none at all
by the Commission.

15

ARTICLE IX. BCSC Sec. 1(2), CComelec Sec. 1(2), DCOA Sec. 1(2) The
Chairman and the Commissioners shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years without reappointment.
16

1999 Bar Question: Who are the officials whose appointments


are subject to confirmation of the Commission on
Appointments?
Answer:
1. heads of the executive departments

ARTICLE VIII. JUDICIAL DEPARTMENT. Section 8. (1) 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 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. xxx

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

37

Consti 1Review 2008 Lectures of Atty. dela Banda

sectoral representatives
bracketed.

was

Officers whose appointments in the Constitution


require confirmation of the Commission:
17
a. The Ombudsman and his Deputies
b. Justices of the Supreme Court, justices of
the Court of Appeals and judges of the
lower court
Note: The JBC requires confirmation
from the Commission.
c. Chairman of the Commission of Human
Rights and the other members
Note: The CHR does not belong to
the class of the 3 constitutional
commissions
that
require
confirmation of the Commission.
Congress cannot add other officers whom the president may
appoint with the confirmation of the Commission. Now and then,
Congress would make laws saying that the appointment to
certain offices require confirmation. The SC has declared those to
be unconstitutional:
1. Philippine Postal [?] Trillano case [?]
2. PNP Carmando case [?]
3. chair and members of the NLRC Cavali case
4. governor of the central bank [?] Singson case
There are old laws that require confirmation of the President. For
instance, is the Probation Board, which requires confirmation but
that it under an old law. But Congress cannot make a law
requiring confirmation because that is only inherent to those who
require such confirmation. Just like in the CHR, submission to the
Commission is useless because none is provided for in the
Constitution that it requires confirmation. The final say is this
Congress cannot make the President appoint an officer with
confirmation from the Commission.
The case of Doquino vs. Librilla [?]. It pertains to the Board of ___
of the Philippines. The fore purpose of the law was to insulate it
from political influence. It said that in the event that one of the
member dies, the others will appoint him. However, President
Estrada, when one of the members died, appointed a member to
the Board. SC, said no.

4. AD INTERIM APPOINTMENTS
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 disapproved by the Commission on
Appointments or until the next adjournment of the Congress.
Requisites of Ad Interim Appointments:
1. made during the recess of the Congress, whether
voluntary or compulsory
When Congress is not in session or adjourned, the
Commission on Appointments cannot also meet.
Thats why, how can they extend confirmation?
2. the position must require confirmation
Example: Appointment of the president of city,
provincial or municipal officers under the
Administrative
Code.
They
require
no
confirmation and shall be called as official
appointments.
Effects of Ad Interim Appointments
1. it is effective immediately

17

ARTICLE XI. ACCOUNTABILITY OF PUBLIC OFFICERS. Section 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.

2.

3.

If a person is appointed, he can perform his functions


effective immediately even if his appointment is nor
confirmed.
it is permanent in character
Benipayo case: Benipayo was appointed as Chairman
of Comelec. In commissions, the Constitution is clear
that you cannot make temporary designations. The
President cannot make ad interim appointments to
the Chairman of the Comelec because that is not
temporary. The SC said that an ad interim
appointment is permanent in character.
two ways for which the ad interim appointment can be
terminated:
a. until disapproved by the Commission on
Appointments or
The disapproval is the positive act from the
Commission, which terminates the
appointment.
b. until the next adjournment of the Congress.
This means that the Commission does not
act on your appointment when they are in
session right after the appointment.
Disapproval of the
Commission
The disapproval means
that the President can
no longer appoint a
person in the same
position in which his
appointment
was
disapproved by the
Commission. It only
means
that
the
Commission
has
decided that such
person is not qualified.

Non-action of the
commission
The non action of the
Commission of an
appointment of a
person to a position
means
that
the
President may still
appoint him again to
the same position. The
reason for this is
because the non-action
of the Commission
does not amount to
disapproval.

5. ACTING APPOINTMENTS
This is not in the Constitution but was discussed by the SC in the
case of Pimentel [?]. The people who were appointed by the people
could not get confirmation. So, the President only gave out acting
positions by extending appointments to people in the executive
department. The SC said that temporary appointments are allowed.
In the Administrative Code, there is a provision there that officers
may be appointed in an acting capacity. This designation in an acting
appointment may only be extended to the executive branch.
However, although the Code says the appointment cannot extend
for more than 1 year, there are still officers appointed by the
President in an acting capacity who have been holding office for
more than a year already.
1994 Bar Question: Distinguish an
interim appointment.
Ad interim appointment
Permanent
Requires confirmation of
Commission
Enjoy security of tenure

If you are extended an ad


interim appointment, and it is
in an incompatible office, you
are not longer allowed to
return to the same position.
It is because the principle
with respect to public
officers, once they hold

acting appointment from an ad


Acting appointment
Temporary
Does
not
require
confirmation
No security of tenure; can be
removed
anytime
even
without cause
With respect to a regular
appointment, it is effective
immediately and if it not yet
confirmed, an officer can go
back to his original position.
The reason for that it is
defective
without
confirmation.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

38

Consti 1Review 2008 Lectures of Atty. dela Banda

an incompatible office,
you are deemed to have
forfeited the first one.
Example: A senator was
appointed as Secretary of
the DND; that is an
incompatible office. He
can no longer go back to
the Senate anymore.

Section 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed.
Powers of the President
1. power of supervision
This power is one which allows the President to
ensure that that laws are followed.
2. power of control
This power allows the president to change, alter or
modify the acts of those under him under the
executive department.
3. the doctrine of qualified political agency
This is based on the rule that there is only one
executive. All acts of the department secretaries
shall be deemed the act of the President unless
reversed by the President himself. It only covers the
executive department. This is unlike legislature
where the act of legislation cannot be delegated.
Constitutional Powers of the President that can be Delegated
1. the power to contract foreign loans (Constantino vs.
Yap)
Constitutional Powers of the President that CANNOT be
Delegated
1. the power to declare martial law
2. the power to suspend the writ of habeas corpus
3. the power to grant parole
4. the power of executive clemency
5. the power to enter into treaties (Neri case)
The negotiation stage is usually delegated by the
President to an office but this does not mean that
the one negotiating can also enter into treaties.
Note: These powers are personal to the President alone.

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 of habeas corpus 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 of habeas corpus.
The suspension of the privilege of the writ of habeas corpus
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 of habeas
corpus, any person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be released.
Commander-in-Chief Powers of the President
1. power to call out the armed forces
2. power to suspend the writ of habeas corpus
3. power to declare martial law
4. emergency powers
The SC may inquire into the exercise of the President of powers just
like whether or not the exercise falls under the commander-in-chief
powers. PGMA issued an order requiring a General not to attend an
administrative investigation. The SC said that the President can do
that as part of her power as commander-in-chief.
1. power to call out the armed forces
There are 2 requisites:
a. to prevent or suppress lawless violence, invasion or
rebellion
b. whenever it becomes necessary
The power of determining whether it is
necessary is discretionary upon the President.
However, the SC may still inquire on it on the
ground of grave abuse of discretion.
2. power to suspend the writ of habeas corpus

The local government units are independent of the President as


the President has only power of supervision over them. The
legislative and the judiciary are also not under the power of the
President. However, there are agencies that exercise quasijudicial powers such as the NLRC, which is under the DOLE of the
executive branch.

Grounds for suspension


1. invasion or rebellion and
2. when the public safety requires it
The grounds are different from those required when calling out
the armed forces which are lawless violence, invasion or
rebellion. In suspension of the writ, there is no lawless
violence; invasion or rebellion only. In calling out the armed
forces, it is whenever it becomes necessary while in
suspension, it is when public safety requires it.

Section 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.

Limitations:
1. it only applies to people charged with rebellion and
other crimes related to rebellion
Hence, if what was committed was but a mere
common crime, the suspension does not have
an effect with respect to the person charged.
2. the suspension may not exceed 60 days
The privilege does not apply when the person is
not charged within 8, 16 or 36 hours. In such a
case, the public officer is responsible for the
delay in the delivery of detained persons under
the RPC.
3. 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,

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

39

Consti 1Review 2008 Lectures of Atty. dela Banda

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.
3. power to declare martial law
Grounds:
1. invasion or rebellion and
2. when the public safety requires it
Limitations/Safeguards:
1. it can only be declared in case of invasion or
rebellion, when the public safety requires it
2. it cannot extend for a period exceeding 60 days
3. within 48 hours from the proclamation, the
President shall submit a report in person or in
writing to the Congress.
4. The Congress, voting jointly, may revoke the
proclamation by a vote of at least a majority of all
its Members
This is problematic. In most cases, Congress
votes separately. These are one of the
instances when the Constitution provides
that Congress shall vote jointly. All members
of Congress, both from the Senate and the
House shall be called together and vote
together.
5. The Supreme Court may review the sufficiency of
the factual basis of the proclamation
Other than Congress, the SC may also revoke
the proclamation. This is in order to protect
the people against abuses of the President.
6. A state of martial law does NOT:
a. suspend the operation of the Constitution
b. supplant the functioning of the civil courts
c. supplant the functioning of the legislative
assemblies
It covers all of Congress and all local
legislative assemblies the sangguniang
panlungsod,
pambayan
and
panlalawigan. The operation of
Congress will continue.
d. 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 of habeas corpus
The civilian courts still have jurisdiction
over civilians. The only time when they
are covered by the military courts is
when the civilian courts are not
functioning.
e. the declaration of martial law does not mean
the suspension of the writ of habeas corpus
But can the president suspend the writ
of Amparo? It is not found in the
Constitution. Its grounds are not only
deprivation of liberty (like in habeas
corpus) but also includes deprivation of
security and life. If the president
suspends the writ of habeas corpus, it
can only suspend that part with respect
to liberty but not with respect to
security and life. this also goes with the
Writ of Habeas data as the right to
privacy also continues and is not
suspended because it is also not found
of the Constitution.
4. emergency powers

Section 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.
General Rule:
The President may:
1. grant reprieves,
2. grant commutations,
3. grant pardons,
4. remit fines and forfeitures and
5. grant amnesty
Exceptions:
1. in cases of impeachment, or as otherwise provided in this
Constitution
2. pardon and amnesty cannot be granted with respect to
election offenses without the favorable recommendation
of Comelec
Note: When an officer is pardoned by the President, it does not also
result to his reinstatement to the same position.

Section 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 the Congress a complete report of its decision 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.
Powers involving foreign affairs
1. Power to enter into treaties
2. Power to receive foreign ambassadors
3. Power to contract or guarantee foreign loans
4. Power to enter into international agreements
1999 Bar Question: Limitations to the power of the President to
contract or guarantee foreign loans
1. it must be with the prior concurrence of the Monetary
Board, and
2. it is subject to such limitations as may be provided by law

Section 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.
2008 Bar: T/F: The President alone without the concurrence of the
Senate can enter into a treaty or international agreement
Answer: False. The President enters into treaties and the Senate
only concurs it.

Section 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.
Congress is not allowed to increase its deliberation. If it has only a
budget of 200 billion, it cannot spend budget than 200 billion.
Section 23. The President shall address the Congress at the
opening of its regular session. He may also appear before it at any
other time.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

40

Consti 1Review 2008 Lectures of Atty. dela Banda

This refers to the SONA of the President.


(by: Blithe )
OCTOBER 9, 2008
ARTICLE VIII Judicial Department
SECTION 1.
The 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.
Try to memorize this section. Many bar questions called for
this provision.
Who can exercise judicial power?
It is not only the Supreme Court but the entire judiciary.
The new Constitution has expanded the meaning of judicial
power. In the new Constitution, there are 2 parts compared to
the previous constitutions. In the 1935 Constitution, it only
st
nd
includes the 1 sentence (of the 2 paragraph judicial power
and so constitutes the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable.
2 kinds of questions that can be asked before the court
1. Questions that are considered justiciable
2. Questions that are regarded as political
Justiciable Questions
To ask the court whether something is legal or
constitutional. You ask the court to apply a provision of law or to
apply the Constitution. This is the standard concept of judicial
power. It will simply look at the law or the Constitution to find
out whether something was violated or something has been
validly interpreted.
They try to expand the concept. The second type of
question is political questions. We defined a political question as
what is addressed to the wisdom of an act, not the legality or
validity of something.
This comes in many forms. For instance, to ask the court if it
is practical to deregulate an industry. It has nothing to do with a
law. There is no law. Another is if it is timely to do it now?
DENR vs. DENR Employees
For instance in the DENR case, is it valid to move office from
Cotabato to Marbel considering that it is Ramadan? The Court
stated that the issue is the wisdom the practicality. Is it
economical? Nothing to do with legality or validity.
The Supreme Court told that there are 2 political questions
one that is assigned to a political department and secondly, one
that is assigned to people in their capacity. They are the ones
who will resolve the issue.
Q: What are the questions that are addressed to a political
department?
A: For instance, whether a person is to be pardoned or not.
That is to be decided by the President. Or a question whether a
treaty must be entered into. That belongs to the President, with
the concurrence of the Senate. Or questions as to amnesty. That
belongs to the Congress, the executive.
There are questions that are exclusive to the Congress
whether or not to grant emergency powers to the President.
That belongs to the president.

There are questions that are addressed to the people. An


example is the Constitution. Only the people decide whether we will
revise the Constitution. Another is the issue on recall. That belongs
to the people.
Q: What is the effect of the expanded meaning of judicial power 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?
How has it affected?
A: So, now, even if it is a political question, the Supreme Court can
entertain it if it involves grave abuse of discretion. It includes such
situation where other departments acted arbitrarily. (in my own
words na ito based sa notes ko .. hindi ko maklaro man gud )
Q: When can the Supreme Court reverse another department for
grave abuse of discretion? Did the other department act arbitrarily?
A: It does not ask the question whether the other department was
correct. That is a useless question. The other department may be
wrong but the Supreme Court will not reverse it because errors are
not subject of reversal.
The only time the Supreme Court can review it is if there is a
grave abuse of discretion.
Q: Has the Supreme Court reversed a decision of another
department for grave abuse of discretion?
A: I have not seen a decision.
EO 464 was found to be null and void. But the Supreme Court
ruled upon it not because there was grave abuse of discretion but
because there was violation of the Constitution.
The only time the Supreme Court ruled that there is grave
abuse is usually the COMELEC.
I asked the question can the Supreme Court reverse the
president for granting clemency or pardon?
He (hindi ko alam sinong he :o) did not answer the question
because he is also not certain. In fact, many of us believe that it was
wrong to grant pardon to Estrada. But nobody filed a case in court
questioning the pardon.
Did the other department act arbitrarily? That is the standard.
This means if there is no rhyme or reason in the action, then, it there
must grave abuse of discretion. Not if the other department
committed a mistake or made an error.
This has been asked 5 times in the bar.
UP: Judicial Power (1989)
No. 10: Where is judicial power vested? What are included in such
power?
SUGGESTED ANSWER: According to Section 1, Article VIII of the
1987 Constitution, judicial power is vested in one Supreme Court
and in such lower courts as may be established by law. It 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.
UP:Judicial Power; Scope (1994)
No. 2: 1} What is the difference, if any. Between the scope of Judicial
power under the 1987 Constitution on one hand, and the 1935 and
1973 Constitutions on the other?
SUGGESTED ANSWER: The scope of judicial power under the 1987
Constitution is broader than its scope under the 1935 and 1973
Constitution because of the second paragraph of Section 1, Article
VIII of the 1987 Constitution, which states that it 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. As held in Marcos
us. Manglapus, 177 SCRA 668. this provision limits resort to the

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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Consti 1Review 2008 Lectures of Atty. dela Banda

political question doctrine and broadens the scope of juridical


inquiry into areas which the courts under the 1935 and the 1973
Constitutions would normally have left to the political
departments to decide.
ALTERNATIVE ANSWER: Under the 1935 and 1973 Constitutions,
there was no provision defining the scope of judicial power as
vested in the judiciary. While these Constitutions, both provided
for vesture of judicial power "in one Supreme Court and in such
inferior courts as may be established by law," they were silent as
to the scope of such power.
The 1987 Constitution, on the other hand, rewrote the provisions
on the vesture of judicial power originally appearing in the 1935
and 1973 Constitutions, as follows:
"The 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." (Sec. 1. Art. VIII)
The second paragraph of the cited provision was not found
in the 1935 and 1973 Constitution, it contains a new definition of
judicial power particularly the scope thereof. The first portion
thereof represents the traditional concept of Judicial power,
involving the settlement of conflicting rights as by law, which
presumably was implicit in the 1935 and 1973 Constitutions. The
second (latter) portion of the definition represents a broadening
of the scope of judicial power or, in the language of the Supreme
Court, conferment of "expanded Jurisdiction" on the Judiciary
(Daza v. Singson, 180 SCRA 496) to enable the courts to review
the exercise of discretion by the political departments of
government. This new prerogative of the judiciary as now
recognized under the 1987 Constitution was not constitutionally
permissible under the 1935 and 1973 Charters.
Political Question (1995) No. 13: Judicial power as defined in Sec.
nd
1, 2 par., Art. VIII, 1987 Constitution, now "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 of excess of jurisdiction on the part of any
branch or instrumentality of the Government. "This definition is
said to have expanded the power of the judiciary to include
political questions formerly beyond its jurisdiction.
(1) Do you agree with such as interpretation of the constitutional
definition of judicial power that would authorize the courts to
review and, if warranted, reverse the exercise of discretion by the
political departments (executive and legislative) of the
government, including the Constitutional Commissions? Discuss
fully,
(2) In your opinion, how should such definition be construed so as
not to erode considerably or disregard entirely the existing
"political question" doctrine? Discuss fully.
SUGGESTED ANSWER:
1. Yes, the second paragraph of Section 1, Article VIII of the 1987
Constitution has expanded the power of the Judiciary to include
political questions. This was not found in the 1935 and the 1973
Constitution, Precisely, the framers of the 1987 constitution
intended to widen the scope of judicial review.
2. As pointed out in Marcos vs. Manglapus, 177 SCRA 668, so as
not to disregard entirely the political question doctrine, the
extent of judicial review when political questions are involved
should be limited to a determination of whether or not there has
been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose act is being
questioned. If grave abuse of discretion is not shown, the courts
should not substitute their judgment for that of the official
concerned and decide a matter which by its nature or by law is
for the latter alone to decide.
UP: Political Question; To Settle Actual Controversies (2004)

(a) The 1935, 1973 and 1987 Constitutions commonly provide that
"Judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law."
What is the effect of the addition in the 1987 Constitution of the
following provision: "Judicial power includes the duty of the courts
of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or
not there has been grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of
the government"? Discuss briefly, citing at least one illustrative case.
(5%)
SUGGESTED ANSWER: The effect of the second paragraph of Section
1, Article VIII of the 1987 Constitution is to limit resort to the
political question doctrine and to broaden the scope of judicial
inquiry into areas which the Judiciary, under the previous
Constitutions, would have left to the political departments to
decide. If a political question is
involved, the Judiciary can determine whether or not the official
whose action is being questioned acted with grave abuse of
discretion amounting to lack or excess of jurisdiction (Marcos v.
Manglapus, 177 SCRA 668 [1989]); (Daza v. Singson, 180 SCRA 496
[1989]).
Thus, although the House of Representatives Electoral Tribunal has
exclusive jurisdiction to decide election contests involving members
of the House of Representatives, the Supreme Court nullified the
removal of one of its members for voting in favor of the protestant,
who belonged to a different party. (Bondoc v. Pineda, 201 SCRA 792
[1991]).
(Sir only mentioned those 4 questions )
SECTION 2.
The Congress shall have the power to 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.
No law shall be passed reorganizing the Judiciary when it
undermines the security of tenure of its Members.
nd

I told you that the first sentence is the 2 limitation of the


power of Congress in prescribing jurisdiction of various courts.
Issuance of Restraining Orders and Injunctions (1992)
No. 7: Congress is considering new measures to encourage foreign
corporations to bring their investments to the Philippines. Congress
has found that foreign investments are deterred by the uncertain
investment climate in the Philippines. One source of such
uncertainty is the heightened judicial intervention in investment
matters.
One such measure provides that "no court or administrative agency
shall issue any restraining order or injunction against the Central
Bank" in the Bank's exercise of its regulatory power over specific
foreign exchange transactions.
Would this be a valid measure? Explain.
SUGGESTED ANSWER: Yes, the measure is valid. In MANTRUSTE
SYSTEMS, INC. VS. COURT OF APPEALS, 179 SCRA 136, the Supreme
Court held that a law prohibiting the issuance of an injunction is
valid, because under Section 2, Article VIII of the Constitution, the
jurisdiction of the courts may be defined by law.
ALTERNATIVE ANSWER: Since under Sections 1 and 5(2), Article VIII
of the Constitution, the courts are given the power of Judicial
review, the measure is void, Such power must be preserved. The
issuance of restraining orders and Injunctions is in aid of the power
of judicial review.
MANTRUSTE vs. CA
Q: Can Congress pass a law prohibit courts issue TROs against
Central Bank for instance?
A: The answer of the Supreme Court is that it can be done. The
reason is that issuing injunction and TROs is not among the powers
mentioned in Section 5. That is only ancillary.
Take note of the sentence there on the prohibition on the reorganization of the judiciary. Take note that this one is a prohibition

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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on re-organization. It cannot be done but do not violate the


security of tenure of the judges.
SECTION 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.
UP: Fiscal Autonomy (1999)
No XI - What do you understand by the mandate of the
Constitution that the judiciary shall enjoy fiscal autonomy? Cite
the constitutional provisions calculated to bring about the
realization of the said constitutional mandate. (2%)
SUGGESTED ANSWER: Under Section 3, Article VIII of the
Constitution, the fiscal autonomy of the Judiciary means that
appropriations for the Judiciary may not be reduced by the
legislature below the amount appropriated for the previous year
and, after approval, shall be automaticallyand regularly released.
In Bengzon v. Drilon, 208 SCRA 133, the Supreme Court explained
that fiscal autonomy contemplates a guarantee of full flexibility
to allocate and utilize resources with the wisdom and dispatch
that the needs require. It recognizes the power and authority to
deny, assess and collect fees, fix rates of compensation not
exceeding the highest rates authorized by law for compensation
and pay plans of the government and allocate and disburse such
sums as may be provided by law or prescribed by it in the course
of the discharge of its functions.
According to Fr. Bernas, this section means that the
appropriation should not be reduced below the amount
appropriated for the previous year and it shall be automatically
released once.
BENGZON vs. DRILON
According to the Supreme Court, it means more than that.
Fiscal autonomy means:
1. allocate resources
2. charge fees
3. determine compensation
4. disburse funds
CSC vs. DEPARTMENT
If there was not enough money for a particular year, can this
amount be automatically released to CSC?
The Supreme Court said even you do not have money, you
must release it (hehe .. relate to fiscal autonomy discussion in
admin ). The reason is otherwise, if you will not release it
automatically, you are not treating it as the same other agencies.
Case:
The Supreme Court made a classification of certain
employees. The DBM disapproved it. According to the Court,
you cannot do disapprove it. You just tell that it is wrong. Call
their attention.
Q: What is fiscal autonomy enjoyed by the CHR?
A: The court answered the meaning for CHR is not the same
meaning for us (judiciary). It only means once approved, it is
automatically released.
2001 BQ: What section in the Constitution which are intended to
secure independence of the Secretary? (I dont know Secretary
of what and I cannot find this particular BQ )
A: One is fiscal autonomy. There are many as we go along.
Another is administrative supervision.
SECTION 4.
(1) The Supreme Court shall be composed of a
Chief Justice and fourteen Associate Justices. It may sit en banc or
in its discretion, in divisions of three, five, or seven Members. Any
vacancy shall be filled within ninety days from the occurrence
thereof.

They can 5 divisions. But it has never been done. They only
have 3 divisions.
This is important regarding vacancy it is 90 days from the
occurrence thereof. There is a difference from vacancies in the
lower courts, which is 90 days from the time the list is submitted to
the Judicial and Bar Council.
(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, and all other cases which under the Rules of
Court are required to be heard 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.
UP: Cases to be Heard En Banc; Supreme Court (1999)
No XI - Enumerate the cases required by the Constitution to be
heard en banc by the Supreme Court? (2%)
SUGGESTED ANSWER: The following are the cases required by the
Constitution to be heard en banc by the Supreme Court:
(1) Cases involving the constitutionality of a treaty, international or
executive agreement, or law;
(2) Cases which under the Rules of Court are required to be heard en
banc. (This one was not included in Sirs discussion )
(3) Cases involving the constitutionality, application, or operation of
presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations;
(4) Cases heard by a division when the required majority is not
obtained;
(5) Cases where a doctrine or principle of law previously laid down
will be modified or reversed;
(6) Administrative cases against judges when the penalty is
dismissal; and
(7) Election contests for President or Vice- President.
Even barangay ordinances can be decided by the Supreme
Court en banc because it is not distinguished. And also, regulations
of administrative bodies can be decided by the Supreme Court if the
is issue unconstitutionality.
FORTICH vs. CORONA
The Supreme Court ruled 3-1.
Upon motion for
reconsideration, they decided 2-2. Considering 2-2, will it be
referred to Supreme Court en banc? The Supreme Court said NO,
they actually voted on that matter. They must go back to the
original decision of the division.
You refer it to the Supreme Court if in the original decision,
they voted 2-2.
Take note that the dismissal of a judge is en banc. What about
lawyers? It is not en banc. It only applies to judges.
GACOTT
It refers only if the judge is dismissed. If it is suspension or the
judge is fined, there is no need for the Supreme Court to decide en
banc. Dismissal will have to be en banc. All others need not be en
banc.
But there is a Circular if the fine is more than P10,000, en
banc. If it is P10,000 or less, in division. If suspension is more than 1
year, en banc. If suspension is 1 year or less, it can be by division.
But under Constitutional law, only the dismissal will call for en
banc decision. Lesser than that, no need of an en banc.

PUBLIC vs. ELMA


The decision of the Supreme Court was that the appointment of
Elma is unconstitutional because he is holding 2 incompatible
positions as counsel of the President and chair of PCGG.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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Consti 1Review 2008 Lectures of Atty. dela Banda

Q: Must it be done en banc? They decided the appointment is


unconstitutional.
A: The Supreme Court said no need. It is en banc when it
involves unconstitutionality of a treaty, law or executive
agreement. It does not include appointment.
It is only en banc when it is specifically covered under the
Constitution.
Votes required for declaring a law unconstitutional (1996)
No. 7: Can five members of the Supreme Court declare a
municipal ordinance unconstitutional? Explain.
SUGGESTED ANSWER: Yes. five Members of the Supreme Court
sitting en-banc can declare a municipal ordinance
unconstitutional. Under Section 4(2). Article VIII of the
Constitution, a municipal ordinance can be declared
unconstitutional with the concurrence of a majority of the
Members of the Supreme Court who actually took part in the
deliberation on the issues in the case and voted thereon. If only
eight Members of the Supreme Court actually took part in
deciding the case, there will still be a quorum. Five Members will
constitute a majority of those who actually took part in deciding
the case.
PAREO vs. ESTAREJAS
Q: Can the Ombudsman declare a law unconstitutional
A: The Supreme Court answered NO, the power belongs to the
SC as provided in the Constitution.
In this case, Pareo was a retired military officer. After
retirement, he became an American citizen. His pension was
ordered cut-off. He went to the COA and said the law was
unconstitutional.
Q: Can any of the constitutional commissions declare a law
constitutional?
A: Again, NO. The Constitutional Commissions and the
Ombudsman have no power to declare a law unconstitutional.
But lower courts can declare a law unconstitutional on first
impression. SC has appellate jurisdiction over those.
(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 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.
SECTION 5.
The Supreme Court shall have the following
powers:
(1) Exercise original jurisdiction over cases affecting
ambassadors, other public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo warranto,
and habeas corpus.
(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.
(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.
(4) Order a change of venue or place of trial to avoid a miscarriage
of justice.
(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. Rules of procedure
of special courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court.
(6) Appoint all officials and employees of the Judiciary in
accordance with the Civil Service Law.
Coverage of the Supreme Court Outline
I. Judicial Power
A. Original Jurisdiction
1. Exercise original jurisdiction over cases affecting ambassadors,
other public ministers and consuls, and
2. Over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
B. Appellate Jurisdiction
1. 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.
2. All cases involving the legality of any tax, impost, assessment,
or toll, or any penalty imposed in relation thereto.
3. All cases in which the jurisdiction of any lower court is in issue.
4. All criminal cases in which the penalty imposed is reclusion
perpetua or higher.
5. All cases in which only an error or question of law is involved.
II. Administrative Power
1. Assign temporarily judges of lower courts to other stations as
public interest may require.
2. Order a change of venue or place of trial to avoid a miscarriage
of justice.
3. 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.
4. Appoint all officials and employees of the Judiciary in
accordance with the Civil Service Law.
5. Administrative supervision of courts and personnel
Discussion:
A. ORIGINAL JURISDICTION
1. Exercise original jurisdiction over cases affecting ambassadors,
other public ministers and consuls
This is rare. This happens if when such foreigner commits a
crime in the Philippines who enjoys an immunity but waives such
immunity.
BP 129: Such power is also with the RTC, but not with the Court
of Appeals. The Supreme Court and RTCs have power over those.
(please verify .. I may have misunderstood this )
2. Over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
Many lawyers file an injunction with the Supreme Court. No,
you cannot do that because that is not in the Constitution.
It is good to understand that when the Supreme Court
introduced the Writ of Amparo and Habeas Data, it granted itself
original jurisdiction.
But with Writ of Amparo and Habeas Corpus, it is concurrent
with RTC, CA, Supreme Court and Sandiganbayan.
B.

Appellate Jurisdiction

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

44

Consti 1Review 2008 Lectures of Atty. dela Banda

1. 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.

The Supreme Court can declare a treaty unconstitutional. The


treaty is declared null and void if it is unconstitutional.

2. All cases involving the legality of any tax, impost,


assessment, or toll, or any penalty imposed in relation thereto.
Number 2 seems to pertain to tax matters only.

II. Administrative Power


1. Assign temporarily judges of lower courts to other stations as
public interest may require.
Temporary assignment 6 months or less

3. All cases in which the jurisdiction of any lower court is in


issue.
4. All criminal cases in which the penalty imposed is reclusion
perpetua or higher.
MATEO case
In this case, the Supreme Court it is now appealable to the
Court of Appeals first. The Supreme Court is not deprived of
jurisdiction, as warranted by the Constitution.
5. All cases in which only an error or question of law is
involved.

2. Order a change of venue or place of trial to avoid a miscarriage


of justice.
3. 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.
4. Appoint all officials and employees of the Judiciary in
accordance with the Civil Service Law.
To assure its independence
5.

This was asked 3x in the Bar Exams 2004, 2003, 2000:


Q: If there is a conflict between a provision in a treaty and a
provision in a Constitution, which prevails?
A: The Constitution prevails because it is the fundamental law
of the land.
UP: Municipal Law vs. International Law (2003)
No XVI- An organization of law students sponsored an interschool debate among three teams with the following assignments
and propositions for each team to defend:
Team "A" - International law prevails over municipal law. Team
"B" - Municipal law prevails over international law. Team "C" A
country's Constitution prevails over international law but
international law prevails over municipal statutes. If you were
given a chance to choose the correct proposition, which would
you take and why?
SUGGESTED ANSWER: I shall take the proposition for Team C.
International Law and municipal law are supreme in their own
respective fields. Neither has hegemony over the other.
(Brownlie, Principles of Public International Law, 4th ed. p. 157.)
Under Article II, Section 2 of the 1987 Constitution, the generally
accepted principles of international law form part of the law of
the land. Since they merely have the force of law, if it is Philippine
courts that will decide the case, they will uphold the Constitution
over international law. If it is an international tribunal that will
decide the case, it will uphold international law over municipal
law. As held by the Permanent International Court of Justice in
the case of the Polish Nationals in Danzig, a State cannot invoke
its own Constitution to
evade obligations incumbent upon it under international law.
ALTERNATIVE ANSWER I would take the proposition assigned to
Team "C" as being nearer to the legal reality in the Philippines,
namely, "A country' Constitution prevails over international law
but
international law prevails over municipal statutes". This is,
however, subject to the place of international law in the
Philippine Constitutional setting in which treaties or customary
norms in international law stand in parity with statutes and in
case of irreconcilable conflict, this may be resolved by /ex
posteriori derogat lex priori as the Supreme Court obiter dictum
in Abbas v. COMELEC holds. Hence, a statute enacted later than
the conclusion or effectivity of a treaty may prevail.
In the Philippine legal system, there are no norms higher than
constitutional norms. The fact that the Constitution makes
generally accepted principles of international law or conventional
international law as part of Philippine law does not make them
superior to statutory law, as clarified in Secretary of Justicev.
Lantion and Philip Morris decisions.

Administrative supervision of courts and personnel.

Q:
A:

Can a treaty amend the Rules of Court?


TAADA vs. ANGARA
If you have a product which is similar to a product in a foreign
country, you are deemed to have copied that product. You are
deemed a pirate. That is the presumption.
The main problem is the presumption rule of evidence.
In this instance, the President entered into a treaty which
intrudes into the power of the Supreme Court. But the Supreme
Court ruled that anyway, that is a small matter.
BQ 1987 (but I cannot find this ):
GARCIA case
The President entered into an executive agreement which
provides that Filipinos who passed the bar can practice in Spain and
Spaniards who passed the bar in Spain can practice in the
Philippines.
The Supreme Court stated that that is unconstitutional. The
power to admit people to the bar belongs to us.
Follow the later decision (Taada case). The Taada decision
never adverted to the Garcia case. It was just asked in the 1987 bar.
Q:

Can Congress amend the Rules of Court?


Under the 1935 Constitution, it was provided that Congress can
amend. But the problem is under the 1987 Constitution, they
removed it. What is the effect of the removal?
There are decisions there.
WEBB vs. DE LEON
It is the matter of the state witness. The state witness is
provided in the Rules of Court. But there is a law also passed by
Congress Witness Protection Law.
Q: Can also amend the Rules of Court?
A: The Supreme Court said YES. Moreover, the Rules of Court may
be changed by legislation to improve our justice system.
However, in the case of:
ECHEGARAY vs. SECRETARY
The Supreme Court said NO, it cannot be done.
The issue was Echegaray was convicted. Can the Supreme
Court, even if the decision was final, decide to stay the execution
saying that there is a pending law for the repeal of the death
penalty? (There was a motion filed by his lawyer.
The new Constitution took away that power of Congress of
repeal or alter rules on proceedings, practice and procedure. In fact,
such power is no longer shared by the Court with the Congress.
Those cases are exact opposites. Both decisions were penned
by Justice Puno

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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Consti 1Review 2008 Lectures of Atty. dela Banda

How to resolve it?


BQ: 2008 - XIII -Congress enacted a law establishing the right to
trial by jury of an accused charged with a felony or offense
punishable with reclusion perpetua or life imprisonment. The law
provides for the qualification of prospective jury member, the
guidelines to be observed by the judge and the lawyers in jury
selection including the grounds for challenging the selection of
jury member, and the methodology for jury deliberations. Is the
law constitutional? Explain fully. (7%)
A: Some of them said that it is unconstitutional because jury will
decide for offenses punishable with reclusion perpetua or life
imprisonment.
But maybe that is not the point of the examiner. The point
of the examiner is can you actually intrude (?) upon the rulemaking power of the court by a simple law. It relates to
procedure matter relating to pleadings, practice and
procedures in court.
The cases of Webb and Echegaray are not fully instructive.
It seems that in this instance, it cannot be done.
If you look at Echegaray, the issue is can Congress amend
the Rules of Court? It is not shared, according to the Supreme
Court. That is different.
Congress is now initiating a procedure on its own initiative.
It is not trying to amend (?). That is problematic.
We relate it with the Writ of Amparo. Could Congress have
passed the Writ of Amparo? That is rule-making for the
enforcement of a right.
That power is with the Supreme Court that is for the
enforcement of a constitutional right.
Maybe in the end probably, we can say that Congress cannot
initiate it on its own. (I am confused as to this topic so please
refer to your notes and other materials )
It is important to note that under the Commonwealth
Period, prior to 1935 Constitution, we followed the American
system. But the Rules of Court never passed by the Supreme
Court. It was passed by Congress.
But right now, it is complicated because the Supreme Court
now has rule-making power as to pleadings, practice and
procedure and the like.
POWER OF JUDICIAL REVIEW
Requisites:
1. Actual case or controversy (not moot an academic and not
asking for an opinion)
2. Proper Party (locus standi)
3. Earliest Opportunity
4. Necessity (resolution of the constitutional question is
necessary to determine the controversy
UP: Judicial Review; Requisites (1994)
No. 2: 2) Assume that the constitutional question raised in a
petition before the Supreme Court is the Iis mota of the case, give
at least two other requirements before the Court will exercise its
power of judicial review?
SUGGESTED ANSWER:
2) According to Macasiano vs. National Housing Authority, 224
SCRA 236, in addition to the requirement that the constitutional
question raised be the lis mota of the case, the following
requisites must be present for the exercise of the power of
judicial review:
1. There must be an actual case or controversy involving a conflict
of legal rights susceptible of Judicial determination;
2. The constitutional question must be raised by the proper party;
and
3. The constitutional question must be raised at the earliest
opportunity.
Power of judicial review
Take note of the definition of the power of judicial review
the power of the Supreme Court to review (?) the

constitutionality or validity of any treaty, international or executive


agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation. The Supreme Court can check
the acts of another department if they are acting in accordance
with the Constitution.
Requisites:
1. Actual case or controversy
In the executive, there are times when people appointed to
positions were too old. In 2006, Guingona was ambassador to
China. The appointment was questioned before the Supreme Court.
But Guingona resigned. The Supreme Court said that it is already
moot and academic. That is a classic decision where there is no
need for to go over the controversy because it has become moot
and academic.
But it is good to understand that there are situations which the
Supreme Court would decide on cases even if they are are already
moot and academic.
Moot and academic exceptions:
1. Grave violation of the Constitution
2. Exceptional character of the situation and paramount public
interest involved (the question is important)
3. Issue raised requires formulation of principles to bench, bar
and public (educational functions of the Supreme Court)
4. Case capable of repetition

Case capable of repetition


In cases of declaring state of emergency or state of calamity or
state of rebellion. Every time the president declares a state of
rebellion or emergency, and you challenge it in court. But before
the decision comes it, the president withdraws it. Even if it is moot
and academic, it can be decided because it is capable of repetition.
Locus standi
This is very important. You must have a personal and
substantial interest or that you sustain direct injury. The Supreme
Court calls this as the direct injury test. This means not only injury
that is shared with other people.
For instance, the IBP questioned the deployment of Marines in
Metro Manila. According to the Supreme Court, IBP itself will not
suffer any direct injury. The injury must be specific.
1.

Citizen
When it comes to martial law or suspension of the privilege of
the writ of habeas corpus, the Constitution itself grants standing to
all citizens.
CHAVEZ case:
Right to information on matters of public concern belongs to
the public. So, if you try to invoke that right, as a citizen, you have
standing.
MOA? Can you question it? You have standing as a citizen.
You invoke a public right.
2.

Concerned Citizen
The Supreme Court will allow if the question is of
transcendental importance. What is transcendental importance? It
is so important that it affect the life of the country.
For instance the deregulation of the oil industry (TATAD case).
It will result to change in prices, which is vital for us.
VFA, WTO these were resolved by the Supreme Court based
on transcendental importance because that will change the trade
relations with other countries.
DAVID vs. MACAPAGAL
State of emergency It was resolved because of transcendental
importance.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

46

Consti 1Review 2008 Lectures of Atty. dela Banda

When we speak of transcendental importance, the Court is


simply saying that even if you have no standing, we will decide it.
We are waiving the requisite of standing.

When? If it affects their powers it diminishes their power as


legislators.
PCA case (old case)

3.

Voters
When you are challenging election laws, a voter has
standing. But it has to be emphasized because the Supreme
Court has narrowed it down. You can raise your right as a voter if
the provision of the law that you are questioning affects your
right as a voter. If it has no effect on your right as a voter, you
cannot question it.
For instance, I want to question absentee voting. But it has
nothing with you. You are not an absentee voter.
4.

Taxpayer

Taxpayer's Suit; Locus Standi (1995)


No. 12: When the Marcos administration was toppled by the
revolutionary government, the Marcoses left behind several Old
Masters' paintings and antique silverware said to have been
acquired by them as personal gifts. Negotiations were then made
with Ellen Layne of London for their disposition and sale at public
auction. Later, the government entered into a "Consignment
Agreement" allowing Ellen Layne of London to auction off the
subject art pieces. Upon learning of the intended sale, wellknown artists, patrons and guardians of the arts of the Philippines
filed a petition in court to enjoin the sale and disposition of the
valued items asserting that their cultural significance must be
preserved for the benefit of the Filipino people.
(1) Can the court take cognizance of the case? Explain.
(2) What are the requisites for a taxpayer's suit to prosper?
SUGGESTED ANSWER:
1. No, the court cannot take cognizance of the case. As held in
Joya vs. Presidential Commission on Good Government, 225 SCRA
569, since the petitioners were not the legal owners of paintings
and antique silverware they had no standing to question their
disposition. Besides, the paintings and the antique silverware did
not constitute important cultural properties or national cultural
treasures, as they had no exceptional historical and cultural
significance to the Philippines.
2. According to Joya us. Presidential Commission on Good
Government, 225 SCRA 568. for a taxpayer's suit to prosper, four
requisites must be considered:
(1) the question must be raised by the proper party;
(2) there must be an actual controversy;
(3) the question must be raised at the earliest possible
opportunity; and
(4) the decision on the constitutional or legal question must be
necessary to the determination of the case.
In order that a taxpayer may have standing to challenge the
legality of an official act of the government, the act being
questioned must involve a disbursement of public funds upon the
theory that the expenditure of public funds for an
unconstitutional act is a misapplication of such funds, which may
be enjoined at the instance of a taxpayer.
Requisites:
a. Applies to an illegal disbursement of funds or
If the law will require an appropriation of money, I have
standing since it is my money as a taxpayer.
b.

Challenge of a revenue law


It is collected from me.

CHAVEZ vs. PCGG


This is an enlargement. There was an agreement (?)
between the PCGG and the Marcos regarding illegal wealth. If
you look at it no disbursement, no revenue law.
The Court stated that the money belongs to the people. It
diminishes the wealth of the country.
5.

Legislative body/legislature

SENATE vs. ERMITA


EO 464 Senate has standing. The Supreme Court stated that
you are under investigation, you need (?) to appear.
PIMENTEL
Many senators were challenging the appointment made by the
president in acting capacity. They stated that if you allow the
president to appoint in an acting capacity, it will affect the powers of
the Senators.
The Supreme Court said wait a minute, not all of you. It only
involves senators who are members of the Commission on
Appointments. They are supposed to confirm it but the president
making appointment in an acting capacity means there is no
confirmation. So, not all senators are directly injured by the act of
the President. The only ones who have standing are senators who
are members of the Commission on Appointments.
The Supreme Court, for instance, will allow members of
Congress to challenge the veto power of the president.
UP: Judicial Review; Locus Standi (1992)
No. 6: The Philippine Environmentalists' Organization for Nature, a
duly recognized nongovernmental organization, intends to file suit
to enjoin the Philippine Government from allocating funds to
operate a power plant at Mount Tuba In a southern island. They
claim that there was no consultation with the Indigenous cultural
community which will be displaced from ancestral lands essential to
their livelihood and indispensable to their religious practices.
a. The organization is based in Makati. All its officers live and work in
Makati. Not one of its officers or members belong to the affected
indigenous cultural community. Do they have the standing in this
dispute? Explain.
b. Would your answer be different if the Philippine Power
Corporation, a private company, were to operate the plant? Explain.
SUGGESTED ANSWER:
a) Under Section 5, Article XII of the Constitution, the State should
protect the rights of cultural Indigenous communities to their
ancestral lands to ensure their well-being. Under Section 17, Article
XIV of the Constitution, the State should protect the rights of
indigenous cultural communities to preserve and develop this
cultures, traditions, and institutions and should consider these rights
in the formulation of national plans and policies. The government
violated these provisions, because it decided to operate the power
plant without consulting the indigenous cultural community and the
operation of the power plant will result in its displacement. If the
projected lawsuit will be based on violation of the rights of the
indigenous cultural communities, the Philippine Environmentalists
Organization will have no standing to file the case. None of its
officers and members belong to the indigenous cultural community.
None of their rights are affected. If the lawsuit will seek to enjoin the
use of public funds to operate the power plant, the Philippine
Environmentalists' Organization can file a taxpayer's suit. As held in
Maceda us. Macaraig, 197 SCRA 771, a taxpayer has standing to
question the illegal expenditure of public funds.
b) The Philippine Environmentalists Organization will have no
standing to file the case if it is a private company that will operate
the power plant, because no public funds will be spent for its
operation. As held in Gonzales vs. Marcos, 65 SCRA 624, a taxpayer
has no standing to file a case if no expenditure of public funds is
involved. Since no member or officer of the Philippine
Environmentalists' Organization belongs to the affected indigenous
community, none of the rights of the Philippine Environmentalists'
Organization and of its officers and members are affected. In
accordance with the ruling in National Economic Protectionism
Association vs. Ongpin, 171 SCRA 657, the organization has no
standing to file the case.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

47

Consti 1Review 2008 Lectures of Atty. dela Banda

2007: VIII - The Provincial Governor of Bataan requested the


Department of Budget and Management (DBM) to release its
Internal Revenue Allocation (IRA) of P100 million for the current
budget year. However, the General Appropriations Act provided
that the IRA may be released only if the province meets certain
conditions as determined by an Oversight Council created by the
President.
a. xxx
b. The Provincial Governor is a party-mate of the
President. May the Bataan Representative instead file a
petition to compel the DBM to release the funds?
A: NO, it has nothing to do with budget. Under the direct injury
test, he is not personally injured with the withholding of the fund.
6.

Environmental law case

OPOSA vs. FACTORAN


That is beyond belief The Supreme Court allowed children
who cannot act for themselves and people not yet born. They
had standing. The case was remanded for further proceedings.
Q: What is the effect of the decision of unconstitutionality?
A:
a. Unorthodox view It is simply saying that if a law is declared
unconstitutional now, it will have a retroactive effect. It will
affect acts done before. Previous acts are null and void. We do
not follow this.
b. Modern view Prospective. We follow this.

1.
or
2.

Investigate you administratively to remove you, suspend you


to fine you
Criminal jurisdiction but only for the purpose of determining
probable cause
The Supreme Court made a distinction:
a. Public acts related to administrative functions
b. Public acts not related to administrative functions

Q:

Why is it important?
Suppose I am a judge. I committed both a criminal and an
administrative offense.
Can I be charged before the Ombudsman?
A: For the administrative aspect, NO, because only the Supreme
Court has administrative jurisdiction over me.
Q: Can I be charged before the Ombudsman for purposes of
criminal investigation?
A: We have to make a distinction. If the act is related to the
performance or function, I cannot be investigated. But if the act
does not relate to performance or function, I can be investigated.
DOLALAS vs. CAOIBES
There was delay in rendering a decision and rendering an unjust
judgment. In this instance, there is a relation as to the function of a
judge. Therefore, the Ombudsman cannot conduct a preliminary
investigation.
But if the act has nothing to do for instance, rape the
Ombudsman can conduct a preliminary and charge me in court.

Earliest opportunity
There has to be distinction which you need to understand.
ESTARIJA vs. RANADA
The Ombudsman has no power to declare a law
unconstitutional. He was tried before the Ombudsman. He
forgot to raise the issue on constitutionality. At the Court of
Appeals, he remembered it. The CA said you are too late. You
should have raised it at the earliest opportunity.
The Supreme Court stated anyway, the Ombudsman has no
right to declare a law unconstitutional.
STA. ROSA vs. AMANTE
Somebody filed a case with the CAR. Then, to the CA. At the
CA, he remembered that the law is unconstitutional. So, he
raised it.
The Supreme Court said too late. You must have raised it
with the DAR.
Something seems to be wrong Can DAR declare a law
unconstitutional? If the Ombudsman cannot do it, how can DAR
do it? Maybe they forgot it.
Q: When do you raise the constitutionality of a law at the first
opportunity?
A: With the authority to declare a law unconstitutional. You do
it with the courts, not with these bodies.
SECTION 6.
The Supreme Court shall have administrative
supervision over all courts and the personnel thereof.
Nobody can discipline members of the judiciary, even the
clerk, the janitor, the stenographer, or the interpreter because
this is excluse.
It is contradictory to the Ombudsman. The Ombudman has
power, under the Constitution, to investigate all public officials.
But the court personnel and members of the judiciary, that is
exclusive with the Supreme Court. This has been asked twice.

Take note of the ruling of the Supreme Court in the cases of:
MACEDA vs. VASQUEZ
DOLALAS vs. CAOIBES
The Ombudman has 2 types of jurisdiction:

Elective and Appointive Officials: disciplinary authority (2004)


2004 (3-b) CTD, a Commissioner of the National Labor Relations
Commission (NLRC), sports a No. 10 car plate. A disgruntled litigant
filed a complaint against him for violation of the Anti-Graft and
Corrupt Practices Act before the Ombudsman. CTD now seeks to
enjoin the Ombudsman in a petition for prohibition, alleging that he
could be investigated only by the Supreme Court under its power of
supervision granted in the Constitution. He contends that under the
law creating the NLRC, he has the rank of a Justice of the Court of
Appeals, and entitled to the corresponding privileges. Hence, the
OMB has no jurisdiction over the complaint against him. Should
CTD's petition be granted or dismissed? Reason briefly. (5%)
SUGGESTED ANSWER:
The petition of CTD should be dismissed. Section 21 of the
Ombudsman Act vests the Office of the Ombudsman with
disciplinary authority over all elective and appointive officials of the
government, except officials who may be removed only by
impeachment, Members of Congress, and the Judiciary. While CTD
has the rank of a Justice of the Court of Appeals, he does not belong
to the Judiciary but to the Executive Department. This simply means
that he has the same compensation and privileges as a Justice of the
Court of Appeals. If the Supreme Court were to investigate CTD, it
would be performing a non-judicial function. This will violate the
principle of separation of powers. (Noblejas v. Teehankee, 23 SCRA
405[1968])
SECTION 7.
(1) No person shall be appointed Member of the
Supreme Court or any lower collegiate court unless he is a naturalborn 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.
The significant thing here is that is that justices of the Supreme
Court must be natural born and at least 40 years of age.
Even justices of the CA have qualifications here natural born.
Even if you are occupying non-constitutional position CA, OMB,
CTA , you must be natural born.

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

48

Consti 1Review 2008 Lectures of Atty. dela Banda

(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.
(3) A Member of the Judiciary must be a person of proven
competence, integrity, probity, and independence.
Lower courts you do not have to be natural born. It only
says unless you are a citizen.
But look at BP 129, natural born, even the RTC judges.
Q: Is that amending the Constitution?
A: You can say that citizen is the minimum qualification.
Congress can make it more stringent.
But you have to understand that if the Constitution provides
a qualificiton, it cannot be made more difficult by Congress.
Maybe it is only permissible because it is only the lower courts.
SECTION 8.
(1) 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 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 functions and duties as the Supreme Court may assign to it.
SECTION 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.
Take note of the members of the JBC:
Ex-office (does not need appointment)
1. Chief Justice
2. Secretary of Justice
3. Representative of Congress (Senate or House)
Others:
4. IBP Representative
5. Professor of Law
6. Retired Justice of the Supreme Court
7. Representative of the Private Sector
UP: Judicial & Bar Council (1988)
No. 11: A novel feature of the present Constitution is the Judicial
and Bar Council. Please state:
1. Its principal function;
2. Its composition; and
3. Who supervises it, and takes care of its appropriations?
SUGGESTED ANSWER:
1. The Judicial and Bar Council has the principal function
ofrecommending appointees to the Judiciary. It may exercise
such other functions and duties as the Supreme Court may assign
to it. (Art. VIII, sec. 8(5)).
2. The JBC is 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. (Art. VIII, sec. 8(1)).
3, The Supreme Court supervises the JBC and provides in the annual
budget of the Court the appropriations of the JBC. (Art. VIII, sec.
8(4)).
UP: Judicial & Bar Council (1999)
No XI - What is the composition of the Judicial and Bar Council and
the term of office of its regular members? (2%)
SUGGESTED ANSWER:The Judicial and Bar Council is composed of
the following:
1. The Chief Justice as ex officio chairman;
2. The Secretary of Justice as ex officio member;
3. A representative of Congress as ex officio member;
4. A representative of the Integrated Bar;
5. A professor of law;
6. A retired Justice of the Supreme Court; and
7. A representative of the private sector.
(Section 8 (1), Article VIII of the Constitution)
The term of office of the regular members is four (4) years. (Section
8(2), Article VIII of the Constitution)
Take note of what we mentioned before regarding the
appointment :
1. For lower courts 90 days after submission of the list to the JBC
2. For justices of the SC 90 days from the time of vacancy
VILLANUEVA
However, it does not apply it falls within the the midnight
period.
(by: Jazzie )
OCTOBER 15, 2008
Section 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.
Intended to strengthen judiciary
Nitafan vs. Commissioner- salaries of judges and justices still subject
to tax and it will not be considered as a diminution of their salaries.
Why is that important? Because in 1935 Constitution, you have a
similar provision. And I think in a case involving that provision and
the SC held that salaries of judges and justices not subject to tax
because it will be diminish their salaries. After that, Congress passed
a law that it is still subject to tax and it will not be diminution of their
salaries. The SC said that the law is unconstitutional because the
Congress is not supposed to interpret the Constitution, it is the job
of the SC. But now, SC changed its mind because when this
provision was instroduced in the 1987 Constitution, it is very clear
from the debates that nobody is exempt from taxation. So the SC
was forced to abandon the earlier cases.
Section 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.
Intended to strengthen the independence of the judiciary; This
section pertains to SOT enjoyed by judges and justices. Take note of
People vs. Gacott, Jr. wherein the SC stated that as a matter of
Constitutional law, only dismissal will require an en banc decision.
All other cases need not be en banc, it may be made by a division.
Take note of the retirement age -- this applies only to judges and
justices. Meaning that this does not apply to employees in the
judiciary. Even if you occupy a very high position, like the SC

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

49

Consti 1Review 2008 Lectures of Atty. dela Banda

administrator, and your rank is equivalent to justice, your


retirement age is 65. So it does not apply to other employees of
the SC who are not judges or justices.
Why is that important? Bar Q (1996)
A, an associate justice of the Supreme Court reached the age of
seventy on July 1,1996. There was a case calendared for
deliberation on that day where the vote of Awas crucial. Can A
hold over the position and participate in the deliberation of the
case on July 1, 1996? Explain.
Suggested Answer: The answer to this question is very simple.
The question is can you participate in the deliberations on your
70th birthday? The practice of the SC is your last day in office is
the day before your birthday. On your birthday, you are actually
70 years old in that one day. So on your birthday, you do not
participate anymore. Another principle by the examiner here is
very simple: In all constitutional positions, there is no hold over
status. Meaning, as soon as the age of retirement has been
reached, you will no longer discharge any functions. In fact, the
question is more specific on that: can A hold over the position?
So there is no hold over for all constitutional provisions.
1993(BQ) - How may the following be removed from office:
1) Senators & Congressmen
2) Judges of lower courts
Suggested answer: They can only be removed by the SC
en banc.
3) Officers and employees in the Civil Service
Q: Can members of the SC discipline their companions?
A: If you try to look at it, we understand that the SC justices can
be removed only by impeachment. But if you remember the last
Bar scandal involving one justice, the SC investigated and
reprimanded the Justice who was guilty. They can discipline but
never dismiss because these people are impeachable. But the
thing is from time to time, the SC forms a committee and
investigate their companions if there seems to be scandal. But I
have not seen any case where they suspended somebody. It is
also good to understand that in impeachment, there is no penalty
of dismissal or suspension. There is only an option of
disqualification from holding public office in the future. So I am
thinking that it is possible that the SC suspend their companion
but I am not certain of that because there has yet been no actual
case.
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.
There are two prohibitions here: regarding
1. Agencies performing administrative functions
2. Quasi judicial functions (NAPOLCOM, NLRC)
In Re: Designation of Rodolfo Manzano (1988) involving an RTC
judge in Ilocos who was designated by Governor to sit in
provincial committee on justice. SC said that the committee is an
administrative body and you cannot sit in the provincial
committee on justice. This was asked already in the Bar. The
same principle (applies) for instance in the newly established
Regional Peace and Order council -- So they cannot sit in this
body because it is performing an administrative function.
What about QJ bodies? I think to put it simply is that these are
18
bodies which also decide cases. In one Bar Question : Election
18

time and there was a vacancy in Comelec, President designated CA


justice to sit temporarily in the COMELEC.
Answer: The act of the President is limited by two provisions in the
Constitution. (1) Cannot assign judges/justice to quasi-judicial bodies
because the COMELEC decides cases, so that cannot be done. (2)
You can never assign or designate any person termporarily to any
constitutional commission.
Section 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 Members 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.
Applies only to collegiate courts (a court with many members). It will
definitely not apply to MTC or RTC.
IF you try to outline Sec 13, it is the process of decision-making.
1.

2.
3.

The justices should deliberate


Purpose: intended to ensure that the decision is that of
the collegiate body and not only a decision of one justice.
(But not really followed in reality)

(Pedragosa vs. COMELEC) What is the effect on


the decision when the justice who inhibited
himself did not state his reason?

Answer: The SC stated that we will apply this


provision but it will have no effect on the validity
of the decision. The one who did not state the
reason may become liable but that will not have
an effect on the decision. Decision is valid.

(Consing vs. CA):What happens if there is failure


to attach certification that the decision was
arrived at after deliberation? Decision itself will
be valid but the CA justice who failed to attach
the certification will be held administratively
liable.
A justice who inhibits himself must state the reason why
he inhibits.
A justice who dissents from the majority opinion should
also state the reason why he is disagreeing.
19

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.
If you try to look at it, there are two items there regarding the
contents of a decision: decisions and resolutions.
1.

Decisions - When it comes to decisions, meaning the


courts actually deal on the merits, there is a requirement
to state the facts and law: (only decisions will reach the
SCRA)

This only applies to the judiciary. This requirement does not apply to
CSC, Sec. of Labor, TRB, Military commission. So admin and quasijudicial bodies are not covered by this provision. There are so many

I think 1997 Bar Q: A month before a forthcoming election, A" one of


the incumbent Commissioners of the COMELEC, died while in office and
Commissioner A and designated by way of a temporary measure. Associate
"B", another Commissioner, suffered a severe stroke. In view of the
Justice D of the Court of Appeals as acting Associate Commissioner during
proximity of the elections and to avoid penalization in the COMELEC, the
the absence of Commissioner B. Did the President do the right thing in
President who was not running for any office, appointed Commissioner C
extending such ad interim appointment in favor of Commissioner C and
of the Commission on Audit, who was not a lawyer but a certified public
designating Justice Dacting Commissioner of the COMELEC?]
19
accountant by profession, ad interim Commissioner to succeed
(applies to RTC and MTC unlike Sec. 13)
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
50

Consti 1Review 2008 Lectures of Atty. dela Banda

cases now, i.e. Padua. But there are one or two cases wherein the
SC forgets and it scolds the administative body for not applying
the Constitution. But the principle is: the provision does not apply
to administrative bodies.
Q: how extensive should it be? Must the decision state the facts
of both parties? The SC said no need. What is required by the
Constitution are the facts only which the judge believe to be true;
which serve as the basis for the decision.
Q: What is the only instance wherein you can write a decision
without stating the law and the facts? By way of exception, that is
20
found in BP 129 in cases of Memorandum decisions . BP 129
actually allows courts to write Memorandum decisions for
purposes of Convenience.
2.

Resolutions: Petition
reconsideration.

for

review,

Motion

for

We are told by the Constitution that there is no need to state law


and facts, but only legal basis of the decision. If we look at the
legal basis, this is simply the reason for the decision. So the
decision need not be extensive as there is no need to state the
facts.
I think most of you work in law offices and in almost 99% of the
cases, the only way for them to reach the SC is by petition for
review. And the SC can dismiss outright stating only legal basis
without discussing the extent. For example: For failure to comply
with Circular 105. That is already sufficient as long as legal basis is
stated in dismissal. One liner is not enough. Even the mere
statement of "finding no merit in the appeal, the petition is
hereby dismissed." That already complies with the Constitution.
Exception where you have to state facts and law even if only MFR
- only one exception: If the judge in the motion for
reconsideration reversed himself.
If in the original decision, you lost. In MFR, you won. Judge is
required to state laws and facts-- so go back to the general rule.
This is found in the Bill of Rights. In one case, the SC held that
there is no double jeopardy which attached because the judge
faile to state the law and the facts when he reversed himself. So
it is a very important requirement.
Sec. 15. (1) All cases or matters filed after the effectivity of this
Constitution must be decided or resolved within twenty-four
months from 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.
SUMMARY OF PERIODS:
1. SC - 24 months
2. CA - 12 month
21
3. MTC/RTC, CTA, SB - 3 months
20

Memorandum decision - decision of appellate court, adopting


the findings of facts and conclusions of law of the lower court.
Example: I am an appellate court, I will simply state: Finding the
case to be without merit, the case is dismissed. I am adopting the
decision of the lower court. A memorandum decision simply
incorporates decision of lower courts and need not state the facts
and the law as the basis of the affirmance of the (appealed)
decision. Warning: use this procedure sparingly; only in simple
cases. Do not use it in all cases because if that is the case, the
appellate court will simply affirm the lower court's decisions. It is
not encouraged, actually it is discouraged, but the point simply is
that it is allowed even if it seemingly violates the Constitution.

Note: SB is court with double kind of jurisdiction: original and


appellate jurisdiction. Despite the fact that the SB exercises both
appellate and original jurisdiction, we follow only one rule. In both
cases, only 3 months whether original exclusive or appellate. So all
cases must be decided within 3 months from time of last pleading
submitted.
(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.
Despite the lapse of the period, the court does not lose its
jurisdiction. Delay of the judge will have no bearing on the outcome
of the case; so they will only have to decide faster.
1989 BAR Q: Despite the lapse of 4 months from the time that the
trial was terminated and the case submitted for decision, the trial
court failed to decide the case. The defense counsel moved to
dismiss the case on the ground that after the lapse of 90 days, the
court had lost jurisdiction to decide the case. Should the motion be
granted?
The codal answer is no. The court does not lose its jurisdiction; delay
has no bearing on the case. Judge must only act faster.
But the SC modified above rule in Licaros vs. Sandiganbayan. What is
the qualification introduced by the Licaros case? After the lapse of
10 years, the SB still failed to decide the case. So Licaros filed a
motion to dismiss the case-- but if you look at the provision, no
effect but the judge must act faster. But the SC said, NO, dismiss the
case. Considering it is a violation of the right of the accused to
speedy disposition of cases, the case should be dismissed.
So the proper answer to the bar question is this: Delay of the judge
in deciding the case will have no bearing in the outcome of the case,
unless delay is unreasonable and violates the right of a party to
speedy disposition of cases/trial. If that happens, the case will be
dismissed. And this amounts to acquittal which cannot be reviewed.
Section 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.
IMMUNITY FROM SUIT:
Article XVI, Section 3. The State may not be sued without its
consent.
Kinds of Immunity:
1. State immunity from suit (subject matter of Consti I) immunity enjoyed by Phil. Gov't. So this is Art. 16, Sec. 3,
the only one we will be studying.
2. Sovereign immunity - Public International Law - States
cannot be subject to suit. Basis of doctrine is not the
article we are studying. The "state" in Art. 16 refers only to
Philippine State and it does not apply to other states. The

thought that considering that the SB is a collegiate court, the cases must be
decided within 12 months. But SC decided in In Re: Sandiganbayan (?) the
CTA and the SB wiil be categorized with the MTC and the RTC. Why?
21
The problem before was that the SB is a collegiate court. So for many
Because, according to the SC, the CTA and the SB are special courts, they are
years I committed an error (he's not superhuman afterall! ;p) because I
not the ones contemplated by the Consti as regular courts
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla
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Consti 1Review 2008 Lectures of Atty. dela Banda

3.

4.

basis of sovereign immunity is doctrine of sovereign


equality of all states.
Presidential immunity from suit - not found in Consti
but as practice we do it. The basis is not the
constitution. When you studied PIL, the head of State is
the President. The basis is No. 2. President is head of
state, enjoys doctrine of sovereign equality.
Diplomatic Immunity - basis is treaty. Vienna
Convention on Diplomatic and Consular relations.

So do not confuse this. They have asked this several times in the
Bar and even the examiners are precise about this. If they want
immunity under international law, they say it. If they say
immunity from local law, they also state it. So the examiners are
aware of these immunities that's why do not confuse them.
Doctrine of State immunity (DSI) will apply only when the suit
involves money claims against the government.
Philippine Aguila case: One department of government granted a
contract to A, X questioned it because the contract was awarded
without a bidding.So X wanted to have it annulled. The
government asked for immunity. But the said NO, X here is not
asking for any money. In fact, if you file an injunction, if you file
an annullment without asking for any money, the State has no
business invoking immunity from suit. The reason is obvious
because if the doctrine of immunity from suit can be invoked in
any situation, we will have no recourse against the government.
For example, you challenge the law for being unconstitutional.
The Government says: You cannot do that! We are immune from
suit. So that is very clear in the Aguila decision, if you are not
asking for any money, the government cannot invoke immunity
from suit.

3.

When the suit is against officer but ultimate liability falls


on the government. This is a reverse of No. 1. In what
situations will this happen?
a. When the acts are under authority of law (and)
b. When the act is performed in legal manner.

What is an example where this DSI applies? DSI also applies to high
government officials because they are indirectly benefited by it, for
as long as they do their acts in a legal manner.
Liability For Damages in Performance of Official Functions (Bar
Question: 1990)
No. 10: The Secretary of Public Works, after an investigation,
ordered the demolition of the fishpond of X as a nuisance per se on
the ground that it encroached on navigable rivers and impeded the
use of the rivers. The Secretary submitted to the President of the
Philippines a report of said investigation, which report contained
clearly libelous matters adversely affecting the reputation of X, a
well-known civic and religious leader in the community. The
Supreme Court later found that the rivers were man-made and were
constructed on private property owned by X.
(1) May X recover damages from the Secretary of Public Works for
the cost involved in rebuilding the fishponds and for lost profits?
State your reason.
Suggested Answer: No, because the Secretary is just doing his
functions. He conducted the same in a legal manner, in fact, he
conducted an investigation. While there may be a mistake, the same
will not result to liability on the government.
Well, he can sue but first ask consent from the State, because
without the State's consent, X cannot sue because the Secretary
here was acting in a lawful manner.

WHEN IS A SUIT AGAINST THE STATE? (Articl XVI, Sec. 3)


1.

When Republic is sued by name EXCEPT: (meaning, even if the GRP is sued by
name, the suit will be allowed if) ultimate
liability will fall on the official responsible, not
on the Government itself.
When does ultimate liability fall on the
official responsible? So when either of the
two acts are present:
a. When the acts have no authority under law
b. When the act is with authority but performed
in illegal manner.

Republic vs. Sandoval - shooting of Mendiola marchers by the


soldiers. If you try to look at it, the caption is sued by name. But
the SC allowed the suit to go on because ultimate liability will not
fall on the government. It will be the officials responsible who will
shoulder liability.
2.

When it is against an unincorporated government


entity (PNP, Departments,)
An entity is incorporated if it is created by:
a. Special law
b. Corporation code
When an entity is incorporated - it can be sued;
the charter will allow it to be sued. The
problem comes in when it is an
unincorporated entity, i.e. PNP, AFP. They are
not entities created by law but are adjuncts
created by law. Another example is the DOH,
DFA. So if you sue an unincorporated entity, it
can invoke immunity from suit because it is
covered-- it has no separate personality from
the government; it is as if you are suing the
government.

Outline of discussion:
1. Immunity
2. Liability
3. Enforceability
CONSENT
When is there Consent? Remember the principle that state cannot
be sued without consent. So how can the state give its consent?
A. EXPRESS CONSENT - This is the one favored. In fact, there are so
many cases that the SC is saying there is no such thing as implied
consent.
Generally, consent must be given by law; an act of
Congress. That is the idea when we say express consent.
Examples: Act 3083 - for contracts entered into by the State, it
may be sued. So this is a situation wherein there is general
consent. However, Congress can also pass a law giving consent
to be sued. So this is the case of Merit, wherein he was bumped
by an ambulance. So Congress enacted a law giving authority to
one person to sue the State which is very unusual. I doubt if this
will happen again. So in this case, this is called special consent.
Despite that general principle, there are situations where we
can consider that there is implied consent.
B. IMPLIED CONSENT 1.

When government enters into a contract.


But it is good to remember that when the
Government enters into a contract, you still have
to distinguish; There is consent if contract is
considered proprietary or private in nature. If it
is governmental in nature, there is no implied
consent. (Royal Traders Bank case)

The Central Bank, Land Bank and the Philippine


Railway can be subjects of suits.
Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

52

Consti 1Review 2008 Lectures of Atty. dela Banda

This was translated in a Bar Q: (1998) The Department of


National Defense (take note that this is an unincorporated entity)
entered into a contract with Raintree Corporation for the supply
of ponchos to the Armed Forces of the Philippines (AFP),
stipulating that, in the event of breach, action may be filed in the
proper courts in Manila. Suppose the AFP fails to pay for
delivered ponchos, where must Raintree Corporation fileits
claim? Why? [ 10%]

The motion to dismiss should be denied. As held in Amigable v.


Cuenca, 43 SCRA 300 (1972), when the Government expropriates
private property without paying compensation, it is deemed to have
waived its immunity from suit. Otherwise, the constitutional
guarantee that private property shall not be taken for public use
without payment of just compensation will be rendered nugatory.

Suggested Answer: AFP is not subject to suit because it is an


unincorporated agency. What about the fact that it entered into a
contract? The contract is actually governmental in nature. So in
the end, you file a claim with COA.

This happened only once. I think there were building contractors


who were building houses for DPWH. Later DPWH ran out of money
and the Secretary stated that no problem, just go on constructing,
anyway, money will come later. But eventually, nothing was
included in the budget. So the building contractor sued the Sec. The
government stated that we are immune from suit.

What is an example of a contract which is proprietary in nature?


Royal Traders Bank case: In the old days, there was this entity
called National Media Production Center (?) which was tasked to
disseminate information, government propaganda. One time, the
NMPC entered into a contract with Royal Traders Bank to borrow
money. For the purpose? To broadcast PBA games, I think
because it wanted to enter into a contract to earn money. So it
was able to get money but it did not pay. When the agency was
sued, it invoked immunity from suit.
The SC said that NMPC entered into a contract which has nothing
to do with its official functions. So it is subject to suit.
There are actually many cases on this but they usually involve
foreign governmental entities because the doctrine of sovereign
immunity from suit applies. So if you remember US vs. Guinto
case (which involves the barber shop operating in Camp John
Hay). The SC stated that barbering, is that governmental or not?
In fact, you are catering even to non-US armies. So it is not a
governmental function. But I am thinking that if the barbershop
catered only to US army men, then maybe they will be immune
because that will already be governmental function.

2.

When the State commences litigation, you can file a


counterclaim against the government.

3.

When the State accepts donations Before, this only applies when government accepts
conditional donation and the government does not
follow the conditions attached.

What if donation is not conditional? It seems that the SC


expanded number 3 in DECS vs. ONATE: In this case, A donated a
piece of property to DECS. Later on, it was found out that B
owned the property. So B sued to recover his property. DECS
invoked immunity from suit. The SC said that by accepting
donation, DECS can be subject to suit.
So now, there is no need that the donation is not conditional. So
by mere acceptance, subject to suit.
4.

When State takes over property (bar questions:


1987, 1992, 2001)

Bar Q: (2001) The Republic of the Philippines, through the


Department of Public Works and Highways (DPWH), constructed
a new highway linking Metro Manila and Quezon province, and
which major thoroughfare traversed the land owned by Mang
Pandoy. The government neither filed any expropriation
proceedings nor paid any compensation to Mang Pandoy for the
land thus taken and used as a public road. Mang Pandoy filed a
suit against the government to compel payment for the value of
his land. The DPWH filed a motion to dismiss the case on the
ground that the State is immune from suit. Mang Pandoy filed an
opposition. Resolve the motion. (5%)
SUGGESTED ANSWER:

5.

Implied contract

The SC stated that this is a case of implied contract. Considering that


the State has already accepted the benefits, it cannot be allowed to
invoke immunity, otherwise the DSI will be used to perpetuate
injustice.
Take note that consent is construed against individual and in favor of
State. It is like tax exemption. The presumption is that there is no
consent. If you prove consent, you must show clear and convincing
evidence that government gave consent and waived its immunity.
(Republic vs. Sandoval)
I think when you were in first year, I told you about the case wherein
the legal officer lost and he remembered the immunity only upon
apeal. So on apeal he raised it. According to his opponents, he can
no longer do that. But the SC said that aiver wis construed against
the party invoking that there was waiver. So the fact that the legal
officer forgot it does not mean that there is consent. There must be
a law giving the consent.
ENFORCEABILITY Bar Q (1997) It is said that "waiver of immunity by the State does
not mean a concession of its liability". What are the implications of
this phrase?
It is good to distinguish immunity from liability. Immunity simply
means that the state cannot be sued without its consent. If there is
consent, it does not mean that there is liability. So that is the next
step, prove liability. How? Present evidence that the state is liable.
SUGGESTED ANSWER: The fact that government waives its immunity
from suit does not mean that it is liable. Once the government
allows you to sue, you must prove that it is liable. Fact that State
waives its immunity does not mean that you can get something from
it.
In some instance, there are really provisions stating liability. Like in
the civil code Art. 2180 for defective conditions of road within the
control of government, the government is liable if there are
accidents. So there is really a provision on liability. Meaning that for
as long as you are able to prove that the roads, etc were defective
and under the control of government, then the government will be
automatically liable. But some commentators are saying that this is
not a rule on liability but merely rule on immunity. But I am thinking
that this is really a rule on liability, meaning that once the
government allows you to sue and you are able to prove the
conditions, the government will automatically be liable for the acts
of its employees.
But in most cases the situation is this: The government gives its
consent. You are able to prove that the State is liable. The third
stage is most problematic because the principle is simply: the fact
that you are able to prove liability does not mean that you are able
to get something from the State.
In explaining this, go back to your civil procedure. In civ pro, when
you win, the idea is very simple: you just file a motion for the
issuance of a writ of execution and the sheriff will come running

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

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Consti 1Review 2008 Lectures of Atty. dela Banda

looking for the property/money of the losing party. But the


problem is if the government is the other party, you cannot do it
that way because the main principle is, with respect to money
owned by the government, you cannot release it unless there is a
law. Money can only be released by appropriation by law.
Property cannot also be executed because public property is for
public use. So those are basic principles. In the end therefore, the
only way to enforce it is file with COA. If COA will not allow you, I
don't know what the remedy is. Because we are assuming here
that COA will be kind to you and will grant you the claim. But you
cannot really sue COA because it is immune from suit. So there
seems to be no further remedy after COA.
Bar Q: Nesia vs. Fermin - Enforceability against LGUs. This was
asked 2x in the bar already.
The idea simply is this if you win a case vs. LGUs, and the LGU
does not pay you, we are told that you can file mandamus case
against mayor and local council compelling it to include you in its
next appropriation (but note, this cannot be done to Congress
ha!). So you can compel the mayor and the local council to pass
an ordinance appropriating money for the judgment.
If LGU holds property in its proprietary capacity, such property is
subject to execution. For example: distrained property, escheated
estates.
Bar Q: (1994) The Municipality of Antipolo, Rizal, expropriated
the property of Juan Reyes for use as a public market. The
Municipal Council appropriated Pl,000,000.00 for the purchase of
the lot but the Regional Trial Court, on the basis of the evidence,
fixed the value at P2,000,000.00. 1) What legal action can Juan
Reyes take to collect the balance? 2) Can Juan Reyes ask the
Regional Trial Court to garnish the municipality's account with
Land Bank.
Suggested Answer: As to the 1 million, can be garnished because
there is already appropriation. As to the rest or the balance of 1
million, it cannot be garnished because there has been no
appropriation yet. The legal action that Juan Reyes is the Fermin
case, so mandamus to appropriate the balance.

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.
Main principle: Amending and revising the constitution are acts of
sovereignty. Only the people can revise and amend the constitution
and no one else. All other entities can propose, but in the end, only
people can approve and ratify it. That's why they call it acts of
sovereignty.
Who can propose amendments or revision to the Constitution:
1. Congress upon votes - only instance in Constitution with
vote requirement.T What is the reason for the very high
voting requirement? The reason is that Congress is now
acting as a constituent body, that's why there has to be
3/4 majority. We call Congress as Constitutional Assembly.
Q: How does Congress convert itself to Constituent
body (hence requirement for high votes)? How
do you compute the ? Base it on the total
number of both HR and Senate (Mendoza); Base
it on separate voting, 3/4 HR, 3/4 Senate
(Bernas). Right now, the HR and the Senate is
divided. The Senate is following Bernas, the HR is
following Justice Mendoza.
2.

Constitutional convention - How is this formed? Can be


formed either by election or by appointment or both.
There is no restriction in the constitution. So it may be
made up of appointed people, or elected people. It will
depend on the type of law passed by Congress.

3.

People through initiative - applies only to amendment,


never revision. It is very cumbersome to revise the entire
constitution with the people making the proposal. There is
no forum to allow discussion.
This is in relation to the MOA case: There is one provision
in the MOA-AD that states that this area will be part of the
BJE. There is one provision wherein it was stated that the
Executive, commits itself to hold and deliver a plebiscite in
those areas. The SC stated that that cannot be allowed.
The Executive is usurping the powers on who can propose
amendments. It cannot commit itself to propose
amendments and conduct plebiscites because the power
to propose amendments belong to the the three
mentioned.

22

AMENDMENT OR REVISION TO CONSTITUTION (Article 17) Section 1. Any amendment to, or revision of, this Constitution
may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its
Members; or
(2) A constitutional convention.
Section 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
voters 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.
Section 3. The Congress may, by a vote of two-thirds of all its
Members, call a constitutional convention, or by a majority vote
of all its Members, submit to the electorate the question of
calling such a convention.
Section 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

Who can call a convention:


1.
2.

Limits on the power of the people to change the Constitution?


1. Cannot be exercised within 5 years after effectivity of the
Constitution, nor more once every five years.
Take note that the Constitution can be amended as often
as we want. In fact, you can do this everyday. BUT, if you
do it through initiative, there is a limitation in Number 1.
But amendments through a proposal by the convention, or
through initiative, there is no such limitation. So this
applies only to proposals through initiative.
2. Extends only to proposing amendments because I told you
that the people cannot revise or propose revisions to the
constitution.
3.

22

Congress, by means of a law, needing 2/3 vote


Submit issue to people by majority of all the members.

Needs an enabling law. The provision is not self-executing.

Asked 3 or 4 times in the Bar already.


Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

54

Consti 1Review 2008 Lectures of Atty. dela Banda

Q: Is there such a law? This is problematic because when you


were in first year, I discussed with you the case of Santiago vs.
COMELEC. What was the holding in that case? There is still no
enabling law because RA 6735 is ineffective in so far as initiative
to Constitutional amendments are concerned.
Lambino vs. COMELEC - 10 years later, in a motion for
reconsideration, 10 justices stated that the law, RA 6735 is
effective! Lambino was decided exactly 10 or 12 years after the
Santiago decision. By that time, only 2 of the old members of the
SC remained.
So as it stands now, we have an enabling law and we can amend
the Constitution through initiative as per decision in Lambino.
What was wrong in the Lambino petition? (1) They did not bother
to attach the proposed changes and the signature sheet. (2) The
second reason is this: If you try to look at the proposal, there are
actually two proposals there. According to the SC, that is not
allowed. I think I told you before that when you pass legislation,
there must only be one subject which must be in the title. So one
bill, one subject. So the SC applied that here. A prposoal to
amend the constitution must contain only one subject. Cannot
have two subjects, otherwise, it will be log-rolling legislation.
Distinctions between Revision and Amendment
Quantitative
1.
2.

Revision - affects several provisions in the constitution


Amendment- affects only specific provisions

Qualitative:
1. Revisions - implies a change that alters the basic
principle of government. So in revision, what is affected
is the basic principle of government -- republican to
parliamentary. I think it is same to assume, though the
SC did not rule on it, that removing term limits will only
involve amendments.
2. Amendment Procedural
1. Revision- may not be proposed by the people - only the
Congress can propose revision.
2. Amendment - may be proposed by the people
(by: Hanniyah )
- END -

Notes prepared by: Anthony Balagot, Jo Anne Beltran, Mariblithe Cartujano, Karla Deles, Jazzie Sarona and Hanniyah Sevilla

55