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POLITICAL AND

PUBLIC
INTERNATIONAL
LAW

2014 GOLDEN NOTES


UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
MANILA
The UST GOLDEN NOTES is the annual student-edited bar review
material of the University of Santo Tomas, Faculty of Civil Law,
thoroughly reviewed by notable and distinct professors in the
field. Communications regarding the NOTES should be addressed
to the Academics Committee of the Team: Bar-Ops.

ADDRESS: Academics Committee


Team Bar-Ops
Faculty of Civil Law
University of Santo Tomas
Espaa, Manila 1008

TEL. NO.: (02) 731-4027


(02) 4061611 loc. 8578

Academics Committee
Faculty of Civil Law
University of Santo Tomas
Espaa, Manila 1008

All Rights Reserved by the Academics Committee of the Faculty of Civil Law of the
Pontifical and Royal University of Santo Tomas, the Catholic University of the
Philippines.

2014 Edition

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No. __________

Printed in the Philippines, June 2014.


ACADEMIC YEAR 2014-2015

CIVIL LAW STUDENT COUNCIL


VICTOR LORENZO L. VILLANUEVA PRESIDENT
GLORIA ANASTASHA T. LASAM VICE PRESIDENT INTERNAL
JOHN ROBIN G. RAMOS TREASURER
RAE GENEVIEVE L. ACOSTA AUDITOR
RAFAEL LORENZ S. SANTOS CHIEF-OF-STAFF

TEAM: BAR-OPS
VANESSA ANNE VIRAY CHAIRPERSON
ERIKA PINEDA HEAD, DOCUMENTATIONS & BAR REQUIREMENTS
JOHN LESTER TAN ASST. HEAD, DOCUMENTATIONS & BAR REQUIREMENTS
HAZEL NAVAREZ HEAD, HOTEL ACCOMODATIONS COMMITTEE
HANNAH QUIAMBAO ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
JULIA THERESE MAGARRO ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
RAFAEL LORENZ SANTOS HEAD, FINANCE COMMITTEE
DEXTER SUYAT ASST. HEAD, FINANCE COMMMITTEE
AL MAYO PAGLINAWAN HEAD, LOGISTICS COMMITTEE
ALBERTO VERNON VELASCO ASST. HEAD, LOGISTICS COMMITTEE
KEVIN TIMOTHY PILE ASST. HEAD, LOGISTICS COMMITTEE
JEAN PEROLA HEAD, PUBLIC RELATIONS
PATRICIA LACUESTA ASST. HEAD, PUBLIC RELATIONS
REINALD VILLARAZA ASST. HEAD, PUBLIC RELATIONS

ATTY. AL CONRAD B. ESPALDON


ADVISER
ACADEMICS COMMITTEE
MARY GRACE L. JAVIER
JAMES BRYAN V. ESTELEYDES EXECUTIVE COMMITTEE
MA. SALVE AURE M. CARILLO

WILLIAM RUSSEL S. MALANG SECRETARY GENERAL

KAREN T. ELNAS ADMINISTRATION AND FINANCE


RAFAEL LORENZ S. SANTOS LAYOUT AND DESIGN
VICTOR LORENZO L. VILLANUEVA

POLITICAL LAW COMMITTEE


JOHN HENRY N. TAMAYO POLITICAL LAW COMMITTEE HEAD
DEXTER JOHN C. SUYAT POLITICAL LAW, ASST. HEAD
CAMILLE ANGELICA B. GONZALES CONSTITUTIONAL LAW, ASST. HEAD
ANDREA VICTORIA R. AMOG ELECTION, PUBLIC OFFICERS,ADMINISTRATIVE LAW, ASST. HEAD
REUBEN BERNARD M. SORIANO PUBLIC CORPORATION LAW, ASST. HEAD
LESLIE ANN D. JOSE PUBLIC INTERNATIONAL LAW, ASST. HEAD
EMMA RUBY J. AGUILAR MEMBER
SONIA MAE C. BALBABOCO MEMBER
MA. KRISTINA JIHAN C. BANA MEMBER
KATRINA MARIE S. DELA CRUZ MEMBER
ERIKA DENICE G. ONG MEMBER
ERINN MARIEL C. PEREZ MEMBER
MA. CIELO R. SANTOS MEMBER
GEMMA F. TIAMA MEMBER

ATTY. AL CONRAD B. ESPALDON


ADVISER
FACULTY OF CIVIL LAW
UNIVERSITY OF SANTO TOMAS

ACADEMIC OFFICIALS

ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAO, O.P.


DEAN REGENT

ATTY. ARTHUR B. CAPILI


FACULTY SECRETARY

ATTY. ELGIN MICHAEL C. PEREZ


LEGAL COUNSEL
UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC

JUDGE PHILIP A. AGUINALDO


SWDB COORDINATOR

LENY G. GADANIA, R.G.C.


GUIDANCE COUNSELOR
OUR DEEPEST APPRECIATION TO OUR
MENTORS & INSPIRATION

JUSTICE AMY LAZARO-JAVIER

JUSTICE OSWALDO D. AGCAOILI

ATTY. ENRIQUE V. DELA CRUZ

ATTY. RENE B. GOROSPE

ATTY. VICTORIA V. LOANZON

ATTY. RAFAELITO M. GARAYBLAS

ATTY. EDWIN R. SANDOVAL

ATTY. MAURICIO C. ULEP

For being our guideposts in understanding the intricate


sphere of Political Law.
- Academics Committee 2014
March on with confidence, head up high, a
smile on your face and faith in yourself. The Bar
exercise is just a good opportunity to prove and
improve yourself. It is not an adversary but an
ally, and even if it were, it is one that you can
persuade and convince to become a lifelong
friend.

- Atty. Rene B. Gorospe


COVERAGE
POLITICAL AND INTERNATIONAL LAW
2014 BAR EXAMINATIONS

I. The Philippine Constitution............................................................................................................... 1


A. Constitution: definition, nature and concepts .. 1
B. Parts . 1
C. Amendments and revisions .. 2
D. Self-executing and non-self-executing provisions 3
E. General provisions . 4

II. General Considerations..................................................................................................................... 5


A. National territory . 5
1. Archipelagic doctrine . 5
B. State immunity . 6
C. General principles and state policies .... 10
D. Separation of powers ... 15
E. Checks and balances .. 17
F. Delegation of powers .. 17
G. Forms of government .... 19

III. Legislative Department ..................................................................................................................... 22


A. Who may exercise legislative power . 22
1. Congress
2. Regional/Local legislative power
3. Peoples initiative on statutes
a) Initiative and referendum
4. The President under a martial law rule or in a revolutionary government
B. Houses of Congress ... 22
1. Senate
2. House of Representatives
a) District representatives and questions of apportionment
b) Party-list system
C. Legislative privileges, inhibitions and disqualifications ......... 28
D. Quorum and voting majorities .. 30
E. Discipline of members .... 32
F. Electoral tribunals and the Commission on Appointments ... 32
1. Nature
2. Powers
G. Powers of Congress . 35
1. Legislative 35
a) Legislative inquiries and the oversight functions
b) Bicameral conference committee
c) Limitations on legislative power
(i) Limitations on revenue, appropriations and tariff measures
(ii) Presidential veto and Congressional override
2. Non-legislative ....................................... 43
a) Informing function
b) Power of impeachment
c) Other non-legislative powers

IV. Executive Department........................................................................................................................ 46


A. Privileges, inhibitions and disqualifications ...................... 46
1. Presidential immunity
2. Presidential privilege
B. Powers........................... 51
1. Executive and administrative powers in general
2. Power of appointment
a) In general
b) Commission on Appointments confirmation
c) Midnight appointments
d) Power of removal
3. Power of control and supervision
a) Doctrine of qualified political agency
b) Executive departments and offices
c) Local government units
4. Military powers
5. Pardoning power
a) Nature and limitations
b) Forms of executive clemency
6. Diplomatic power
7. Powers relative to appropriation measures
8. Delegated powers
9. Veto powers
10. Residual powers
11. Executive privilege
C. Rules of Succession .... 61

V. Judicial Department........................................................................................................................... 63
A. Concepts . 63
1. Judicial power
2. Judicial review
a) Operative fact doctrine
b) Moot questions
c) Political question doctrine
B. Safeguards of Judicial independence .......... 66
C. Judicial restraint ......... 67
D. Appointments to the Judiciary ...... 67
E. Supreme Court ........ 68
1. En banc and division cases
2. Procedural rule-making
3. Administrative supervision over lower courts
4. Original and appellate jurisdiction
F. Judicial privilege ......... 69

VI. Constitutional Commissions..................................................................................................... 71


A. Constitutional safeguards to ensure independence of commissions ..... 71
B. Powers and functions of each commission ........... 71
C. Prohibited offices and interests ... 73
D. Jurisdiction of each constitutional commission .. 73
E. Review of final orders, resolutions and decisions 74
1. Rendered in the exercise of quasi-judicial functions
2. Rendered in the exercise of administrative functions

VII. Bill of Rights .................................................................................................... 76


A. Fundamental powers of the state (police power, eminent domain, taxation) . 76
1. Concept, application and limits
2. Requisites for valid exercise
3. Similarities and differences
4. Delegation.
B. Private acts and the Bill of Rights . 82
C. Due process the rights to life, liberty & property 83
1. Relativity of due process
2. Procedural and substantive due process
3. Constitutional and statutory due process
4. Hierarchy of rights
5. Judicial standards of review
6. Void-for-vagueness doctrine
D. Equal protection .. 87
1. Concept
2. Requisites for valid classification
3. Standards of judicial review
a) Rational Basis Test
b) Strict Scrutiny Test
c) Intermediate Scrutiny Test
E. Searches and seizures .......... 90
a) Concept
b) Warrant requirement
c) Requisites
d) Warrantless searches
e) Warrantless arrests
f) Administrative arrests
g) Drug, alcohol and blood tests
F. Privacy of communications and correspondence ......... 98
1. Private and public communications
2. Intrusion, when allowed
3. Writ of habeas data
G. Freedom of expression ...... 100
1. Concept and scope
a) Prior restraint (censorship)
b) Subsequent punishment
2. Content-based and content-neutral regulations
a) Tests
b) Applications
3. Facial challenges and the overbreadth doctrine
4. Tests
5. State regulation of different types of mass media
6. Commercial speech
7. Private v. government speech
8. Hecklers veto
H. Freedom of religion ..... 110
1. Non-establishment clause
a) Concept and basis
b) Acts permitted and not permitted by the clause
c) Test
2. Free exercise clause
3. Tests
a) Clear and Present Danger Test
b) Compelling State Interest Test
c) Conscientious Objector Test
I. Liberty of abode and freedom of movement ..... 113
1. Limitations
2. Right to travel
a) Watch-list and hold departure orders
3. Return to ones country
J. Right to information .... 116
1. Limitations
2. Publication of laws and regulations
3. Access to court records
4. Right to information relative to:
a) Government contract negotiations
b) Diplomatic negotiations
K. Right of association ...... 117
L. Eminent domain ...... 77
1. Concept
2. Expansive concept of public use
3. Just compensation
a) Determination
b) Effect of delay
4. Abandonment of intended use and right of repurchase
5. Miscellaneous application
M. Contract clause ............. 117
1. Contemporary application of the contract clause
N. Legal assistance and free access to courts .......... 118
O. Rights of suspects ......... 119
1. Availability
2. Requisites
3. Waiver
P. Rights of the accused ...... 120
1. Criminal due process
2. Bail
3. Presumption of innocence
4. Right to be heard
5. Assistance of counsel
6. Right to be informed
7. Right to speedy, impartial and public trial
8. Right of confrontation
9. Compulsory process
10. Trials in absentia
Q. Writ of habeas corpus ........ 127
R. Writs of amparo, habeas data, and kalikasan ........... 128
S. Self-incrimination clause
1. Scope and coverage
a) Foreign laws
2. Application
3. Immunity statutes
T. Involuntary servitude and political prisoners ........... 134
U. Excessive fines and cruel and inhuman punishments ...... 134
V. Non-imprisonment for debts ..... 134
W. Double jeopardy ........ 135
1. Requisites
2. Motions for reconsideration and appeals
3. Dismissal with consent of accused
X. Ex post facto laws and bills of attainder ........ 137

VIII. Citizenship......................................................................................................... 139


A. Who are Filipino citizens
B. Modes of acquiring citizenship
C. Naturalization and denaturalization
D. Dual citizenship and dual allegiance
E. Loss and re-acquisition of Philippine citizenship
F. Natural-born citizens and public office
IX. Law on Public Officers ......................................................................................................................... 146
A. General principles ... 148
B. Modes of acquiring title to public office ..... 148
C. Modes and kinds of appointment ..... 148
D. Eligibility and qualification requirements ... 151
E. Disabilities and inhibitions of public officers ....152
F. Powers and duties of public officers ........ 154
G. Rights of public officers ........ 155
H. Liabilities of public officers ... 156
1. Preventive suspension and back salaries
2. Illegal dismissal, reinstatement and back salaries
I. Immunity of public officers ... 158
J. De facto officers ...... 159
K. Termination of official relation ..... 161
L. The Civil Service .... 163
1. Scope
2. Appointments to the civil service
3. Personnel actions
M. Accountability of public officers ....167
1. Impeachment
2. Ombudsman (Secs. 5 to 14, Art. XI of the 1987 Constitution, in relation to R.A. No. 6770, or otherwise
known as "The Ombudsman Act of 1989.")
a) Functions
b) Judicial review in administrative proceedings
c) Judicial review in penal proceedings
3. Sandiganbayan
4. Ill-gotten wealth
N. Term limits ... 174

X. Administrative Law ............................................................................................................................175


A. General principles ... 175
B. Administrative agencies .. 175
1. Definition
2. Manner of creation
3. Kinds
C. Powers of administrative agencies ..... 176
1. Quasi-legislative (rule-making) power
a) Kinds of administrative rules and regulations
b) Requisites for validity
2. Quasi-judicial (adjudicatory) power
a) Administrative due process
b) Administrative appeal and review
c) Administrative res judicata
3. Fact-finding, investigative, licensing and rate-fixing powers
D. Judicial recourse and review ... 183
1. Doctrine of primary administrative jurisdiction
2. Doctrine of exhaustion of administrative remedies
3. Doctrine of finality of administrative action

XI. Election Law ...................................................................................................................................... 187


A. Suffrage .. 187
B. Qualification and disqualification of voters .. 188
C. Registration of voters 188
D. Inclusion and exclusion proceedings ..... 192
E. Political parties ............. 193
1. Jurisdiction of the COMELEC over political parties
2. Registration
F. Candidacy ........ 194
1. Qualifications of candidates
2. Filing of certificates of candidacy
a) Effect of filing
b) Substitution of candidates
c) Ministerial duty of COMELEC to receive certificate
d) Nuisance candidates
e) Petition to deny or cancel certificates of candidacy
f) Effect of disqualification
g) Withdrawal of candidates
G. Campaign ... 199
1. Premature campaigning
2. Prohibited contributions
3. Lawful and prohibited election propaganda
4. Limitations on expenses
5. Statement of contributions and expenses
H. Board of Election Inspectors and Board of Canvassers ....... 206
1. Composition
2. Powers
I. Remedies and jurisdiction in election law ........ 209
1. Petition not to give due course to or cancel a certificate of candidacy
2. Petition for disqualification
3. Petition to declare failure of elections
4. Pre-proclamation controversy
5. Election protest
6. Quo warranto
J. Prosecution of election offenses ..... 215

XII. Local Governments............................................................................................................................ 217


A. Public corporations .... 217
1. Concept
a) Distinguished from government-owned or controlled corporations
2. Classifications
a) Quasi-corporations
b) Municipal corporations
B. Municipal corporations ...... 218
1. Elements
2. Nature and functions
3. Requisites for creation, conversion, division, merger or dissolution
C. Principles of local autonomy ...... 222
D. Powers of local government units (LGUs) ............. 223
1. Police power (general welfare clause)
2. Eminent domain
3. Taxing power
4. Closure and opening of roads
5. Legislative power
a) Requisites for valid ordinance
b) Local initiative and referendum
6. Corporate powers
a) To sue and be sued
b) To acquire and sell property
c) To enter into contracts
(i) Requisites
(ii) Ultra vires contracts
7. Liability of LGUs
8. Settlement of boundary disputes
9. Succession of elective officialS
10. Discipline of local officials
a) Elective officials
(i) Grounds
(ii) Jurisdiction
(iii) Preventive suspension
(iv) Removal
(v) Administrative appeal
(vi) Doctrine of condonation
b) Appointive officials
11. Recall
12. Term limits

XIII. National Economy and Patrimony...................................................................................................... 245


A. Regalian doctrine
B. Nationalist and citizenship requirement provisions
C. Exploration, development and utilization of natural resources
D. Franchises, authority and certificates for public utilities
E. Acquisition, ownership and transfer of public and private lands
F. Practice of professions
G. Organization and regulation of corporations, private and public
H. Monopolies, restraint of trade and unfair competition

XIV. Social Justice and Human Rights......................................................................................................... 254


A. Concept of social justice ...........................................................
B. Commission on Human Rights ...........................................................

XV. Education, Science, Technology, Arts, Culture and Sports ... 256
A. Academic freedom...........................................................

XVI. Public International Law..................................................................................................................... 259


A. Concepts .... 259
1. Obligations erga omnes
2. Jus cogens
3. Concept of ex aequo et bono
B. International and national law ...... 260
C. Sources ... 261
D. Subjects ........ 262
1. States
2. International organizations
3. Individuals
E. Diplomatic and consular law ... 268
F. Treaties ... 272
G. Nationality and statelessness ..... 275
1. Vienna Convention on the Law of Treaties
H. State responsibility .... 276
1. Doctrine of state responsibility
I. Jurisdiction of States ....... 278
1. Territoriality principle
2. Nationality principle and statelessness
3. Protective principle
4. Universality principle
5. Passive personality principle
6. Conflicts of jurisdiction
J. Treatment of aliens .... 279
1. Extradition
a) Fundamental principles
b) Procedure
c) Distinguished from deportation
K. International Human Rights Law 281
1. Universal Declaration of Human Rights
2. International Covenant on Civil and Political Rights
3. International Covenant on Economic, Social and Cultural Rights
L. International Humanitarian Law and neutrality . 283
1. Categories of armed conflicts
a) International armed conflicts
b) Internal or non-international armed conflict
c) War of national liberation
2. Core international obligations of states in International Humanitarian Law
3. Principles of International Humanitarian Law
a) Treatment of civilians
b) Prisoners of war
4. Law on neutrality
M. Law of the sea ... 294
1. Baselines
2. Archipelagic states
a) Straight archipelagic baselines
b) Archipelagic waters
c) Archipelagic sea lanes passage
3. Internal waters
4. Territorial sea
5. Exclusive economic zone
6. Continental shelf
a) Extended continental shelf
7. International Tribunal for the Law of the Sea
N. Madrid Protocol and the Paris Convention for the Protection of Industrial Property .. 307
O. International environmental law 308
1. Principle 21 of the Stockholm Declaration
P. International economic law 310
DISCLAIMER

THE RISK OF USE, MISUSE OR NON-


USE OF THIS BAR REVIEW MATERIAL
SHALL BE BORNE BY THE USER/
NON-USER.
THE PHILIPPINE CONSTITUTION

THE PHILIPPINE CONSTITUTION NOTE: The Philippine Constitution is written, enacted,


and rigid.

CONSTITUTION: Ways to interpret the Constitution


DEFINITION, NATURE AND CONCEPTS
1. Verba legis Whenever possible, the words used
Political Law in the Constitution must be given their ordinary
meaning except where technical terms are
Branch of public law that deals with the organization employed.
and operations of the governmental organs of the 2. Ratio legis et anima Where there is ambiguity,
State and defines its relations with the inhabitants of the words of the Constitution should be
the territory. (People v. Perfecto, G.R. No. L-18463, interpreted in accordance with the intent of the
October 4, 1922) framers.
3. Ut magis valeat quam pereat The Constitution
Scope of Political Law has to be interpreted as a whole. (Francisco v. HR,
G.R. No. 160261, November 10, 2003)
1. Political Law
2. Constitutional Law NOTE: In case of doubt, the provisions of the Constitution
3. Administrative Law should be construed as self-executing; mandatory rather
4. Law on Municipal Corporations than directory; and prospective rather than retroactive.
5. Law on Public Officers
A provision is not self-executing when it merely indicates the
6. Election laws principles without laying down rules giving them the force of
7. Public International Law law.

Constitution The provisions of the Constitution are to be considered as


self-executing because if they are not treated as such, the
The basic and paramount law to which all other laws legislature can ignore and practically nullify the direction of
must conform and to which all persons, including the the fundamental law.
highest officials, must defer.
Doctrine of Constitutional Supremacy
Effectivity date of the present Constitution
If a law or contract violates any norm of the
Took effect on February 2, 1987, which was the date Constitution, that law or contract, whether
of the plebiscite. (De Leon v. Esguerra, G.R. No. L- promulgated by the legislative or by the executive
78059, August 31, 1987) branch or entered into by private persons for private
purposes, is null and void and without any force and
Classifications of the Constitution effect. Thus, since the Constitution is the
fundamental, paramount and supreme law of the
1. Written Precepts are embodied in one nation, it is deemed written in every statute and
document or set of documents. contract. (Manila Prince Hotel v. GSIS, G.R. No. 122156,
Unwritten Consists of rule, which have not been February 3, 1997)
integrated into a single, concrete form but are
scattered in various sources. PARTS

2. Enacted (Conventional) Formally struck off at a Parts of a Written Constitution


definite time and place following a conscious or
deliberate effort taken by a constituent body or 1. Constitution of Sovereignty This refers to the
ruler. provisions pointing out the modes or procedure in
Evolved (Cumulative) Result of political accordance with which formal changes in the
evolution, not inaugurated at any specific time but Constitution may be made. (Art. XVII,
changing by accretion rather than by any Amendments or Revisions)
systematic method. 2. Constitution of Liberty The series of
prescriptions setting forth the fundamental civil
3. Rigid Can be amended only by a formal and and political rights of the citizens and imposing
usually difficult process. limitations on the power of the government as a
Flexible Can be changed by ordinary legislation. means of securing the enjoyment of those rights.
(Art. III, Bill of Rights)

UNIVERSITY OF SANTO TOMAS


1 FACULTY OF CIVIL LAW
Political and International Law

3. Constitution of Government Provides for a NOTE: Congress may call a ConCon:


structure and system of government; refers to the 1. By a vote of 2/3 of all its members; or
provisions outlining the organization of the 2. By a majority vote of all its members, submit such
question to the electorate.
government, enumerating its powers, laying
down certain rules relative to its administration
If Congress, acting as a ConAss, calls for a ConCon but
and defining the electorate. (Art. VI, Legislative does not provide details for the calling of such ConCon,
Dept, Art. VII, Exec. Dept, Art. VIII, Judicial Dept, Congress by exercising its ordinary legislative power
Art. IX, Constitutional Commissions) may supply such details. But in so doing, the Congress
(as legislature) should not transgress the resolution of
AMENDMENT AND REVISION Congress acting as a ConAss.

Amendment v. Revision The choice between ConAss or ConCon is left to the


discretion of Congress. In other words, it is a political
question, but the manner of calling a ConCon is subject
AMENDMENT REVISION to judicial review because the Constitution has
Isolated or piecemeal A revamp or rewriting provided for voting requirements.
change merely by adding, of the whole
deleting, or reducing instrument altering the c. By Peoples Initiative upon a petition of at
without altering the basic substantial entirety of least 12% of the total number of registered
principles involved. the Constitution. voters, of which every legislative district must
be represented by 3% of the registered voters
Tests to determine whether a proposed change is an therein.
amendment or a revision
2. Ratification Amendments or revisions to the
1. Quantitative test Asks whether the proposed Constitution should be ratified by the majority in
change is as extensive in its provisions as to a plebiscite which should be held not earlier than
change directly the substantial entirety of the 60 days nor later than 90 days after the approval
Constitution by the deletion or alteration of of such amendment.
numerous existing provisions. One examines only
the number of provisions affected and does not Requisites for a valid ratification
consider the degree of the change.
2. Qualitative test Asks whether the change will 1. Held in a plebiscite conducted under Election Law
accomplish such far reaching changes in the 2. Supervised by COMELEC
nature of our basic governmental plan as to 3. Where only registered voters take part
amount to a revision. (Lambino v. Comelec, G.R.
No. 174153, October 25, 2006) NOTE:
GR: Presidential proclamation is not required for effectivity
Ways to amend or revise the Constitution of amendments/revisions.

XPN: Proposed amendment/revision provides otherwise.


1. Proposal
a. By Congress upon a vote of of all its
Doctrine of Proper Submission
members acting as Constituent Assembly
(ConAss)
A plebiscite may be held on the same day as a regular
election (Gonzales v. COMELEC, G.R. No. L-28196,
NOTE: The substance of the proposals is not
subject to judicial review since what to propose is
November 9, 1967), provided the people are
left to the wisdom of the ConAss. sufficiently informed of the amendments to be voted
upon, for them to conscientiously deliberate thereon,
The manner the proposals are made is subject to to express their will in a genuine manner. Submission
judicial review. of piece-meal amendments is unconstitutional. All
amendments must be submitted for ratification in one
Since ConAss owes their existence to the plebiscite only. The people have to be given a proper
Constitution, the courts may determine whether frame of reference in arriving at their decision.
the assembly has acted in accordance with the
(Tolentino v. COMELEC, G.R. No. L-34150, October 16,
Constitution.
1971)
b. By Constitutional Convention (ConCon)

UNIVERSITY OF SANTO TOMAS


2014 GOLDEN NOTES 2
THE PHILIPPINE CONSTITUTION

Initiative and local laws, it intentionally did not do so on the


system of initiative on amendments to the
Power of the people to propose amendments to the Constitution. (Defensor-Santiago v. COMELEC, G.R. No.
Constitution or to propose and enact legislation. 127325, March 19, 1997)

Kinds of initiative under the Initiative and Referendum


Referendum Act (RA 6735)
Power of the electorate to approve or reject legislation
1. Initiative on the Constitutionrefers to a petition through an election called for that purpose.
proposing amendments to the Constitution.
2. Initiative on statutesrefers to a petition to enact Kinds of referendum
a national legislation.
3. Initiative on local legislationrefers to a petition 1. Referendum on Statutes- Refers to a petition to
proposing to enact a regional, provincial, approve or reject a law, or part thereof, passed by
municipal, city, or barangay law, resolution or Congress.
ordinance. (Sec. 2 [a], RA 6735) 2. Referendum on Local Law- Refers to a petition to
approve or reject a law, resolution or ordinance
NOTE: Sec. 2 (b) of RA 6735 provides for: enacted by regional assemblies and local
a. Indirect Initiative- Exercise of initiative by the people legislative bodies.
through a proposition sent to Congress or the local
legislative body for action. NOTE: The following cannot be subject of an initiative or
b. Direct Initiative- The people themselves filed the referendum:
petition with the COMELEC and not with Congress. a. Petition embracing more than one subject shall be
(Ibid.) submitted to the electorate.
b. Statutes involving emergency measures, the enactment
Inadequacy of the RA 6735 in covering the system of of which is specifically vested in Congress by the
initiative on amendments to the Constitution Constitution, cannot be subject to referendum until 90
days after their effectivity. (Sec. 10, RA 6735)
Under the said law, initiative on the Constitution is
confined only to proposals to amend. The people are Initiative v. Referendum
not accorded the power to "directly propose, enact,
approve, or reject, in whole or in part, the INITIATIVE REFERENDUM
Constitution" through the system of initiative. They The power of the Power of the electorate
can only do so with respect to "laws, ordinances, or people to propose to approve or reject
resolutions." Secondly, the Act does not provide for amendments to the legislation through an
the contents of a petition for initiative on the Constitution or to election called for that
Constitution. The use of the clause "proposed laws propose and enact purpose. (Sec. 3, RA No.
sought to be enacted, approved or rejected, amended legislations through an 6735 [1989])
or repealed" denotes that RA 6735 excludes initiative election called for the
on the amendments of the Constitution. purpose.

Also, while the law provides subtitles for National Local initiative v. Local referendum
Initiative and Referendum and for Local Initiative and
Referendum, no subtitle is provided for initiative on LOCAL INITIATIVE LOCAL REFERENDUM
the Constitution. This means that the main thrust of The legal process The legal process
the law is initiative and referendum on national and whereby the registered whereby the registered
local laws. If RA 6735 were intended to fully provide voters of a local voters of the local
for the implementation of the initiative on government unit may government units may
amendments to the Constitution, it could have directly propose, enact, approve, amend or
provided for a subtitle therefor, considering that in the or amend any reject any ordinance
order of things, the primacy of interest, or hierarchy of ordinance. (Sec. 120) enacted by the
values, the right of the people to directly propose Sanggunian. (Sec. 126)
amendments to the Constitution is far more important
than the initiative on national and local laws.

While RA 6735 specially detailed the process in


implementing initiative and referendum on national

UNIVERSITY OF SANTO TOMAS


3 FACULTY OF CIVIL LAW
Political and International Law

SELF-EXECUTING AND NON-SELF-EXECUTING


PROVISIONS

Self-executing provisions of the Constitution

1. Provisions in the Bill of Rights on arrests, searches


and seizures, the rights of a person under
custodial investigation, the rights of an
accused, and the privilege against self-
incrimination;
2. Fundamental rights of life, liberty and the
protection of property;
3. Provisions forbidding the taking or damaging of
property for public use without just
compensation.

NOTE:
GR: A constitutional provision is self-executing.

XPNs: Where it merely announces a policy and its language


empowers the legislature to prescribe the means by which
the policy shall be carried into effect:

a. Art. II on "Declaration of Principles and State Policies".

XPN to the XPN: Sec. 16, Art. II - Right of the people to


a balanced and healthful ecology in accord with the
rhythm and harmony of nature. (Oposa v. Factoran,
G.R. No. 101083, July 30, 1993)

b. Art. XIII on "Social Justice and Human Rights".


c. Art. XIV on "Education Science and Technology, Arts,
Culture end Sports". (Manila Prince Hotel v. GSIS, G.R.
122156, February 3, 1997)

GENERAL PROVISIONS

Symbols of nationality

1. Philippine Flag the flag may be changed by


constitutional amendment
2. Name for the country
3. National anthem
4. National seal

NOTE: Congress may, by law, adopt new symbols in numbers


2, 3 and 4 subject to ratification by the People in a
referendum.

UNIVERSITY OF SANTO TOMAS


2014 GOLDEN NOTES 4
GENERAL CONSIDERATIONS

GENERAL CONSIDERATIONS virtue of the military bases agreement of 1947. They


are not and cannot be foreign territory.
NATIONAL TERRITORY
Not even the embassy premises of a foreign power are
to be considered outside the territorial domain of the
Territory
host state. The ground occupied by an embassy is not
in fact the territory of the foreign State to which the
Fixed portion of the surface of the Earth inhabited by
premises belong through possession or ownership.
the people of the State. As an element of a State, it is
The lawfulness or unlawfulness of acts they committed
an area over which a state has effective control.
is determined by the territorial sovereign. If an attach
commits an offense within the precincts of an
Composition of the Philippine Territory
embassy, his immunity from prosecution is not
because he has not violated the local law, but rather
1. The Philippine archipelago That body of water
for the reason that the individual is exempt from
studded with islands which is delineated in the
prosecution. If a person not so exempt, or whose
Treaty of Paris, as amended by the Treaty of
immunity is waived, similarly commits a crime therein,
Washington and the Treaty with Great Britain.
the territorial sovereign, if it secures custody of the
offender, may subject him to prosecution, even
CONSISTS OF INCLUDING ITS
though its criminal code normally does not
a. Terrestrial 1. Territorial Sea
contemplate the punishment of one who commits an
b. Fluvial 2. Seabed
offense outside of the national domain. It is not
c. Aerial Domains 3. Subsoil
believed, therefore, that an ambassador himself
4. Insular shelves
possesses the right to exercise jurisdiction, contrary to
5. Other Submarine areas
the will of the State of his sojourn, even within his
embassy with respect to acts there committed. Nor is
2. All other territories over which the Philippines has there apparent at the present time any tendency on
sovereignty or jurisdiction Includes any territory the part of States to acquiesce in his exercise of it.
that presently belongs or might in the future
belong to the Philippines through any of the In the light of the above, the crucial error imputed that
accepted international modes of acquiring it should have held that the Clark Air Base is foreign
territory. soil or territory for purposes of income tax legislation
is clearly without support in law. There is nothing in
Components of the National Territory the Military Bases Agreement that lends support to
such an assertion. It has not become foreign soil or
1. Terrestrial Domain territory. This country's jurisdictional rights therein,
2. Maritime Domain certainly not excluding the power to tax, have been
3. Aerial Domain preserved. As to certain tax matters, an appropriate
exemption was provided for. As it ought to be and as
NOTE: RA 9522 which was approved by President Arroyo on it is, Philippine soil or territory, her claim for
March 10, 2009 amended certain provisions of RA 3046, as exemption from the income tax due was distinguished
amended by RA 5446 and defined the archipelagic baselines only by its futility. (William C. Reagan v. Commissioner
of the Philippines. of Internal Revenue, G.R. No. L-26379, December 27,
1969)
Q: An income tax was imposed on Emma Aguilar, an
American. She, however, protested on the imposition ARCHIPELAGIC DOCTRINE
of the income tax arguing that the income was
earned in Clark Air Base, which was considered Archipelagic State
"foreign soil" the same as that of a foreign embassy
in the Philippines, thus, outside of Philippine A state constituted wholly by one or more
jurisdiction. Is Emma Aguilars argument acceptable? archipelagos and may include other islands.

A: No. Clark Air Base and foreign embassies retain Archipelagic Doctrine
their status as native soil. They are still subject to
Philippines authority. Its jurisdiction may be All waters, around between and connecting different
diminished, but it does not disappear. So it is with the islands belonging to the Philippine Archipelago,
bases under lease to the American armed forces by irrespective of their width or dimension, are necessary

UNIVERSITY OF SANTO TOMAS


5 FACULTY OF CIVIL LAW
Political and International Law

appurtenances of its land territory, forming an integral Spratly Group of Islands (SGI) is not part of the
part of the national or inland waters, subject to the Philippine Archipelago because it is too far to be
exclusive sovereignty of the Philippines. included within the archipelagic lines encircling the
internal waters of Philippine Archipelago. The SGI,
It is found in the 2nd sentence of Art. I of the 1987 however, is part of the Philippine territory because it
Constitution. was discovered by a Filipino seaman in the name of
Tomas Cloma who later renounced his claim over it in
The Archipelagic Doctrine emphasizes the unity of the favor of the Republic of the Philippines. Subsequently,
land and waters by defining an archipelago as group of then Pres. Marcos issued a Presidential Decree
islands surrounded by waters or a body of waters constituting SGI as part of the Philippine territory and
studded with islands. sending some of our armed forces to protect said
island and maintain our sovereignty over it.
NOTE: To emphasize unity, an imaginary single baseline is
drawn around the islands by joining appropriate points of SGI and Scarborough Shoal as part of the National
the outermost islands of the archipelago with straight lines Territory
and all islands and waters enclosed within the baseline form
part of its territory.
Art. I of the Constitution provides: The national
territory comprises the Philippine archipelago, x xx,
Purposes of the Archipelagic Doctrine
and all other territories over which the Philippines has
sovereignty or jurisdiction, xxx. The SGI and
a. Territorial Integrity
Scarborough Shoal fall under the second phrase, and
b. National Security
all other territories over which the Philippines has
c. Economic reasons
sovereignty or jurisdiction. It is part of our national
territory because the Philippines exercise sovereignty
NOTE: The main purpose of the archipelagic doctrine is to
protect the territorial interests of an archipelago, that is, to (through election of public officials) over the Spratly
protect the territorial integrity of the archipelago. Without Group of Islands. Moreover, under the Philippine
it, there would be pockets of high seas between some of Baselines Law of 2009 (RA 9522), the Spratly Islands
our islands and islets, thus foreign vessels would be able to and the Scarborough Shoal are classified as islands
pass through these pockets of seas and would have no under the regime of the Republic of the Philippines.
jurisdiction over them. (Philippine Baselines Law of 2009)

Effect of RA 9522 (An Act to Amend Certain Provisions STATE IMMUNITY


of RA 3046, As Amended by RA 5446, To Define the
Archipelagic Baseline of the Philippines and For Other Doctrine of State Immunity
Purposes) on specific description and affirmation of
sovereignty over our national territory The State cannot be sued without its consent. (Sec. 3,
Art. XVI, 1987 Constitution)
RA 9522 amends RA 3046, which defines the baselines
of the territorial sea of the Philippines. The Kalayaan Basis of the Doctrine of State Immunity
Island Group as constituted under PD 1596 and Bajo
de Masinloc, also known as Scarborough Shoal is It reflects nothing less than the recognition of the
determined as Regime of Islands under the Republic sovereign character of the State and an express
of the Philippines consistent with Art. 121 of the affirmation of the unwritten rule effectively insulating
United Convention on the Law of the Sea which states: it from the jurisdiction of courts. It is based on the very
1. An island is a naturally formed area of land, essence of sovereignty. (Department of Agriculture v.
surrounded by water, which is above water at high NLRC, G.R. No. 104269, November 11, 1993)
tide.
2. Except as provided for in par. 3, the territorial sea, NOTE: There can be no legal right against the authority
the contiguous zone, the exclusive economic zone which makes the law on which the right depends. (Republic
and the continental shelf of an island are v. Villasor, G.R. No. L-30671, November 8, 1973) However, it
determined in accordance with the provisions of may be sued if it gives consent, whether express or implied.
this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or This doctrine also applies to foreign governments because of
economic life of their own shall have no exclusive the sovereign equality of all the states. Accordingly,
economic zone or continental shelf. immunity is enjoyed by other States, consonant with the
public international law principle of par in parem non habet
imperium. The head of State, who is deemed the

UNIVERSITY OF SANTO TOMAS


2014 GOLDEN NOTES 6
GENERAL CONSIDERATIONS
personification of the State, is inviolable, and thus, enjoys with the military personnel involved in the
immunity from suit. (JUSMAG Philippines v. NLRC, G.R. No. Mendiola incident instituted an action against
108813, December 15, 1994) the Republic of the Philippines before the trial
court. Respondent Judge Sandoval dismissed the
Remedy of a person who feels aggrieved by the acts complaint on the ground that there was no
of a foreign government waiver by the State. Petitioners argued that the
State has impliedly waived its immunity from
Under both Public International Law and Transnational suit with the recommendation of the
Law, a person who feels aggrieved by the acts of a Commission to indemnify the heirs and victims of
foreign sovereign can ask his own government to the Mendiola incident by the government and by
espouse his cause through diplomatic channels. (Holy the public addresses made by then President
See v. Rosario, Jr., 238 SCRA 524, December 1, 1994) Aquino in the aftermath of the killings. Is the
argument meritorious?
WHEN THE STATE CONSENTS TO BE SUED
A: No. The actions of President Aquino cannot be
Forms of consent deemed as a waiver of State immunity. Whatever
acts or utterances that then President Aquino may
1. Express consent have done or said, the same are not tantamount
a. General law to the State having waived its immunity from suit.
i. Act No. 3083 and CA 327 as amended by The President's act of joining the marchers, days
Secs. 49-50, PD 1445 money claims after the incident, does not mean that there was
arising from contracts which could serve an admission by the State of any liability. In fact to
as a basis of civil action between private borrow the words of petitioners (Caylao group),
parties to be first filed with COA before a "it was an act of solidarity by the government with
suit may be filed in court. The COA must the people". Moreover, petitioners rely on
act upon the claim within 60 days. President Aquino's speech promising that the
Rejection of the claim authorizes the government would address the grievances of the
claimant to elevate the matter to the rallyists. By this alone, it cannot be inferred that
Supreme Court on certiorari. the State has admitted any liability, much less can
ii. Art. 2180, NCC tort committed by it be inferred that it has consented to the suit.
special agent; (Republic v. Sandoval, G.R. No. 84607, March 19,
iii. Art. 2189, NCC LGUs liable for injuries 1993)
or death caused by defective condition of
roads or public works under their b. Special law
control. (City of Manila v. Teotico, G.R. By virtue of PD 1620, the grant of immunity
No. L-23052, January 29, 1968); to IRRI is clear and unequivocal, and express
iv. Sec. 22(2), RA 7160, LGC of 1991 LGUs waiver by its Director General is the only way
have power to sue and be sued; by which it may relinquish or abandon this
v. Sec. 24 of LGC LGUs and their officials immunity. (Callado, v. IRRI, G.R. No. 106483,
are not exempt from liability for death or May 22, 1995)
injury or damage to property.
2. Implied consent
NOTE: The express consent of the State to be sued must a. When the State commences litigation, it
be embodied in a duly-enacted statute and may not be becomes vulnerable to counterclaim. (Froilan
given by a mere counsel of the government. (Republic
v. Pan Oriental Shipping, G.R. No. L-6060,
v. Purisima, G.R. No. L-36084, August 31, 1977)
September 30, 1950)
Q: The members of the Kilusang Mambbukid sa
Q: In a property dispute, the Attorney General of
Pilipinas (KMP) and other members of sectoral
the United States and the defendant-intervenor
organizations clashed with the anti-riot squad
Republic of the Philippines each filed an answer
which resulted to 13 deaths and several
alleging by way of affirmative defense that the
casualties. In the aftermath of the confrontation,
lower court had no jurisdiction over the claim
President Corazon C. Aquino issued AO 11
since the action in that regard constituted a suit
creating the Citizens Mendiola Commission to
against the United Sates to which it had not given
conduct the investigation about the incident. The
its consent. Did the Republic of the Philippines by
commission recommended compensating the
victims. The petitioners (Caylao group) together

UNIVERSITY OF SANTO TOMAS


7 FACULTY OF CIVIL LAW
Political and International Law

its intervention waive its right of immunity from functions. (Department of Agriculture v. NLRC G.R. No.
suit? 104269, November 11, 1993)

A: No. The Republic of the Philippines did not Restrictive Theory of State Immunity from suit
waive its immunity from suit. The Republic of the
Republic of the Philippine intervened in the case The State may be said to have descended to the level
merely to unite the defendant Attorney General of an individual and can thus be deemed to have tacitly
of the United States in resisting plaintiffs claims, given its consent to be sued only when it enters into
and for that reason asked no affirmative relief business contracts. However, the restrictive
against any party in the answer in intervention it application of State immunity is proper only when the
filed, and in its answer to the amended complaint, proceedings arise out of commercial transactions of
"reproduced and incorporated by reference" all the foreign sovereign, its commercial activities or
the affirmative defenses contained in the answer economic affairs. It does not apply where the contract
of the defendant Attorney General, one of which relates to the exercise of its sovereign functions. (US v.
is that the lower court had no jurisdiction over the Ruiz, G.R. No. L-35645, May 22, 1985)
claim for rentals because of lack of consent to be
sued. This is not a case where the state takes the A suit is considered as suit against the State when
initiative against a private party by filing a
complaint in intervention, thereby surrendering 1. The Republic is sued by name;
its privileged position and coming down to the 2. The suit is against an unincorporated government
level of the defendant, but one where the state, agency;
as one of the defendants, merely resisted a claim 3. The suit is on its face against a government officer
against it precisely on the ground among others, but the case is such that ultimate liability will
of its privileged position, which exempts it from belong not to the officer but to the government.
suit. (Lim v. Brownwell, 107 SCRA 345) (Republic v. Sandoval, G.R. No. 84607, March 19,
1993)
b. When State enters into a business contract.
Q: Spouses Bana sued the Philippine National
Capacities of the State in entering into contracts Railways for damages for the death of their son who
fell from an overloaded train belonging to the PNR.
1. In jure gestionis By right of economic or business The trial court dismissed the suit on the ground that
relations; commercial, or proprietary acts. MAY the charter of the PNR, as amended by PD 741, has
BE SUED. (US v. Guinto, G.R. No. 76607, February made the same a government instrumentality, and
26, 1990) thus immune from suit. Is the dismissal proper?
2. In jure imperii By right of sovereign power and in
the exercise of sovereign functions. No implied A: No. The correct rule is that not all government
consent. (US v. Ruiz, No. L-35645, May 22, 1985) entities, whether corporate or non-corporate, are
immune from suits. Immunity from suit is determined
NOTE: In exercising the power of eminent domain, the by the character of the objects for which the entity is
State exercises a power jus imperii, where property has organized. When the government enters into a
been taken without just compensation being paid, the commercial business, it abandons its sovereign
defense of immunity from suit cannot be set up in an
capacity and is to be treated like any other
action for payment by the owner. (Republic v.
corporation. In this case, the State divested itself of its
Sandiganbayan, G.R. No. 90478, November 21, 1991)
sovereign capacity when it organized the PNR which is
Q: Do all contracts entered into by the government no different from its predecessors, the Manila Railroad
operate as a waiver of its non-suability? Company. Thus, PNR is not immune from suit. It did
not remove itself from the operation of Arts. 1732 to
A: No. Distinction must still be made between one 1766 of the Civil Code on common carriers. (Malang v.
which is executed in the exercise of its sovereign PNRC, G.R. No. L-49930, August 7, 1985)
function and another which is done in its proprietary
capacity. A State may be said to have descended to the
level of an individual and can be deemed to have
actually given its consent to be sued only when it
enters into business contracts. It does not apply where
the contract relates to the exercise of its sovereign

UNIVERSITY OF SANTO TOMAS


2014 GOLDEN NOTES 8
GENERAL CONSIDERATIONS

Unincorporarted government agency performing retains the right to raise all lawful defenses. (Philippine
governmental function v. one performing proprietary Rock Industries, Inc. v. Board of Liquidators, G.R. No.
functions 84992, December 15, 1989)

UNINCORPORATED UNINCORPORATED Suability v. Liability of the State


GOVERNMENT AGENCY GOVERNMENT AGENCY
PERFORMING PERFORMING SUABILITY LIABILITY
GOVERNMENTAL PROPRIETARY FUNCTIONS Depends on the consent Depends on the
FUNCTIONS of the State to be sued applicable law and the
Immunity has been Immunity has not been established facts
upheld in its favor upheld in its favor whose The circumstance that a The State can never be
because its function is function was not in State is suable does not held liable if it is not
governmental or pursuit of a necessary necessarily mean that it suable.
incidental to such function of government is liable.
function. but was essentially a
business. (Air Rule on the liabilities of the following:
Transportation Office v.
Spouses David, G.R. No. 1. Public officers By their acts without or in excess
159402, February 23, of jurisdiction: any injury caused by him is his own
2011) personal liability and cannot be imputed to the
State.
NOTE: The Doctrine of State Immunity from suit applies to 2. Government agencies Establish whether or not
complaints filed against public officials for acts done in the the State, as principal which may ultimately be
performance of their duties within the scope of their
held liable, has given its consent.
authority. In which case, the suit filed against the public
official is deemed as a suit against the State. 3. Government Doctrine of State immunity is
available.
GR: The rule is that the suit must be regarded as one against
the state where the satisfaction of the judgment against the Determination of suability of government agencies
public official concerned will require the state to perform a
positive act, such as appropriation of the amount necessary GOVERNMENT AGENCIES SUABILITY
to pay the damages awarded to the plaintiff.
Incorporated agencies Test of suability is stated
XPNs: The rule does not apply where: in their charters. If its
1. The public official is charged in his official capacity for charter says so, it is
acts that are unlawful and injurious to the rights of suable
others. Public officials are not exempt, in their personal Unincorporated Suable if the nature of
capacity, from liability arising from acts committed in government agencies their acts is proprietary
bad faith; or
2. The public official is clearly being sued not in his official
capacity but in his personal capacity, although the acts Instances when a public officer may be sued without
complained of may have been committed while he the States consent
occupied a public position. (Lansang v. CA, G.R. No.
102667, February 23, 2000) 1. To compel him to do an act required by law
2. To restrain him from enforcing an act claimed to
Implications of the phrase waiver of immunity by be unconstitutional
the State does not mean a concession of its liability 3. To compel payment of damages from an already
appropriated assurance fund or to refund tax
When the State gives its consent to be sued, all it over-payments from a fund already available for
does is to give the other party an opportunity to the purpose
show that the State is liable. Accordingly, the phrase 4. To secure a judgment that the officer impleaded
that waiver of immunity by the State does not mean may satisfy the judgment himself without the
a concession of liability means that by consenting to State having to do a positive act to assist him
be sued, the State does not necessarily admit that it is 5. Where the government itself has violated its own
liable. laws because the doctrine of State immunity
cannot be used to perpetrate an injustice
In such a case, the State is merely giving the plaintiff a
chance to prove that the State is liable but the State NOTE: The true test in determining whether a suit against a
public officer is a suit against the State is that, if a public

UNIVERSITY OF SANTO TOMAS


9 FACULTY OF CIVIL LAW
Political and International Law
officer or agency is sued and made liable, the State will have However, principles in Art. II are not intended to be
to perform an affirmative act of appropriating the needed self-executing principles ready for enforcement
amount to satisfy the judgment. If the State will have to do through the courts. They are used by the judiciary as
so, then, it is a suit against the State.
aids or guides in the exercise of its power of judicial
review, and by the legislature in its enactment of laws.
Garnishment of government funds (Tondo Medical v. CA, G.R. No. 167324, July 17, 2007)
GR: Whether the money is deposited by way of XPN: But a provision that is complete in itself, and
general or special deposit, they remain government provides sufficient rules for the exercise of rights, is
funds and are not subject to garnishment. self-executing. Thus, certain provisions in Art. II are
self-executing, one of which is that provided in Sec. 16,
XPN: Where a law or ordinance has been enacted Art. II, The State shall protect and advance the right
appropriating a specific amount to pay a valid of the people to a balanced and healthful ecology in
government obligation, then the money can be accord with the rhythm and harmony of nature.
garnished. (Oposa v. Factoran, supra.) The duty of full public
disclosure is self executing provision. (Province of
NOTE: Funds belonging to government corporations, which
North Cotabato v. GRP G.R. 183591 October 14, 2008)
can sue and be sued and are deposited with a bank, can be
garnished. (PNB v. Pabalan, G.R. No. L-33112, June 15, 1978)
Republican State
If the local legislative authority refuses to enact a law
appropriating the money judgment rendered by the court, A state wherein all government authority emanates
the winning party may file a petition for mandamus to from the people and is exercised by representatives
compel the legislative authority to enact a law. (Municipality chosen by the people. (Dissenting Opinion of Justice
of Makati v. CA, G.R. Nos. 89898-99, October 1, 1990) Puno, G.R. No. 148334, January 21, 2004)

Q: Can the government be made to pay interest in Manifestations of Republicanism


money judgments against it?
1. Ours is a government of laws and not of men.
A: GR: No. 2. Rule of Majority (Plurality in elections)
3. Accountability of public officials
XPNs: 4. Bill of Rights
1. Eminent domain. 5. Legislature cannot pass irrepealable laws
2. Erroneous collection of taxes. 6. Separation of powers
3. Where government agrees to pay interest
pursuant to law. NOTE: The Philippines is not only a representative or
republican state but also shares some aspects of direct
Q: Dexter Suyat filed an action directly in court democracy such as initiative and referendum.
against the government seeking payment for a parcel
of land which the national government utilized for a Constitutional Authoritarianism
road widening project. Can the government invoke
the doctrine of non-suitability of the state? As understood and practiced in the Marcos regime
under the 1973 constitution, it is the assumption of
A: No. When the government expropriates property extraordinary powers by the President including
for public use without paying just compensation, it legislative and judicial and even constituent powers.
cannot invoke its immunity from suit. Otherwise, the
right guaranteed in Sec. 9, Art. III of the 1987 Compatibility of constitutional authoritarianism with
Constitution that private property shall not be taken a republican state
for public use without just compensation will be
rendered nugatory. (Ministerio v. Court of First Constitutional authoritarianism is compatible with a
Instance, L-31635, August 31, 1971) republican state if the Constitution upon which the
Executive bases his assumption of power is a
GENERAL PRINCIPLES AND STATE POLICIES legitimate expression of the peoples will and if the
Executive who assumes power received his office
Provisions in Art. II not self-executing through a valid election by the people.

GR: By its very title, Art. II of the Constitution is a


declaration of principles and state policies.

UNIVERSITY OF SANTO TOMAS


2014 GOLDEN NOTES 10
GENERAL CONSIDERATIONS

State policy on war which provides: The State shall protect and
advance the right of the people to a balanced and
The State renounces war as an instrument of national healthful ecology in accord with the rhythm and
policy. (Sec. 2, Art. II, 1987 Constitution) harmony of nature. As a constitutionally
guaranteed right of every person, it carries the
NOTE: The Philippines does not renounce defensive war correlative duty of non-impairment. Hence, the
because it is duty bound to defend its citizens. Under the issuance of the cease and desist order by the LLDA
Constitution, the prime duty of the government is to serve is a proper exercise of its power and authority
and protect the people.
under its charter and in consonance with the
declared policy of the state to protect and
Policies of the State on the following promote the right to health of the people and
instill health consciousness among them. (Laguna
1. Working women Sec. 14, Art. XIII of the Lake Development Authority v. Court of Appeals,
Constitution provides: "The State shall protect G.R. No. 110120, March 16, 1994)
working women by providing safe and healthful
working conditions, taking into account their 3. The symbols of statehood - Sec. 1, Art. XVI of the
maternal functions, and such facilities and Constitution provides: "The Flag of the Philippines
opportunities that will enhance their welfare and shall be red, white, and blue, with a sun and three
enable them to realize their full potential in the stars, as consecrated and honored by the people
service of the nation." and recognized by law."
2. Ecology Sec. 16, Art. II of the Constitution
provides: The State shall protect and advance the Sec. 2, Art. XVI of the Constitution states: The
right of the people and their posterity to a Congress may by law, adopt a new name for the
balanced and healthful ecology in accord with the country, a national anthem, or a national seal,
rhythm and harmony of nature." which shall all be truly reflective and symbolic of
the ideals, history, and traditions of the people.
Q: The residents of Taguig City brought a Such law shall take effect only upon its ratification
complaint before Laguna Lake Development by the people in a national referendum."
Authority (LLDA) about an open garbage
dumpsite in their city and sought its closure due 4. Cultural minorities Sec. 22, Art. II of the
to its harmful effects on health and the pollution Constitution provides: The State recognizes and
it brings to the lake. Upon investigation, LLDA promotes the rights of indigenous cultural
discovered that the Taguig City Government has communities within the framework of national
been maintaining the said dumpsite without an unity and development."
Environmental Compliance Certificate from the
Environmental Management Bureau of the Sec. 5, Art. XII of the Constitution reads: The
DENR, and also found the water to have been State, subject to the provisions of this
directly contaminated by the dumpsite Constitution and national development policies
operations. Then, LLDA, under RA 4850, issued a and programs, shall protect the rights of
cease and desist order against the City indigenous cultural communities to their
Government to completely stop the dumping of ancestral lands to ensure their economic, social
any form or kind of waste matter to the and cultural well-being.
dumpsite. Does the LLDA have the power and
authority to issue a cease and desist order The Congress may provide for the applicability of
under RA 4850 enjoining the dumping of garbage customary laws governing property rights or
in Taguig City? relations in determining the ownership and extent
of the ancestral domains."
A: Yes. In the exercise, therefore, of its express
powers under its charter as a regulatory and Sec. 6, Art. XIII of the Constitution provides: The
quasi-judicial body with respect to pollution cases State shall apply the principles of agrarian reform
in the Laguna Lake region, the authority of the or stewardship, whenever applicable in
LLDA to issue a cease and desist order is implied accordance with law, in the disposition or
and need not necessarily be express. Moreover, utilization of other natural resources, including
the immediate response to the demands of "the lands of the public domain under lease or
necessities of protecting vital public interests" concession suitable to agriculture, subject to prior
gives vitality to the statement on ecology rights, homestead rights of small settlers, and the
embodied in Art. II, Sec. 16 of the Constitution

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11 FACULTY OF CIVIL LAW
Political and International Law

rights of indigenous communities to their Sec. 11, Art. XIV of the Constitution provides: "The
ancestral lands. Congress may provide for incentives, including tax
deductions, to encourage private participation in
The State may resettle landless farmers and farm programs of basic and applied scientific research.
workers in its own agricultural estates which shall Scholarships, grants-in-aid or other forms of
be distributed to them in the manner provided by Incentives shall be provided to deserving science
law." students, researchers, scientists, investors,
technologists, and specially gifted citizens."
Sec. 17, Art. XIV of the Constitution states: "The
State shall recognize, respect and protect the Sec. 12, Art. XIV of the Constitution reads: The
rights of indigenous cultural communities to State shall regulate the transfer and promote the
preserve and develop their cultures, traditions, adaptation of technology from all sources for the
and institutions. It shall consider these rights in national benefit. It shall encourage widest
the formulation of national plans and policies participation of private groups, local
governments, and community-based
5. Science and technology Sec. 17, Art. II of the organizations in the generation and utilization of
Constitution provides: "The State shall give science and technology."
priority to education, science and technology,
arts, culture and sports to foster patriotism and Constitutional provision on transparency in matters
nationalism, accelerate social progress, and of public concern
promote total human liberation and
development." The 1987 Constitution provides for a policy of
transparency in matters of public interest:
Sec. 14, Art. XII of the Constitution reads in part:
"The sustained development of a reservoir of 1. Sec. 28, Art. II of the 1987 Constitution provides:
national talents consisting of Filipino scientists, "Subject to reasonable conditions prescribed by
entrepreneurs, professionals, managers, high- law, the State adopts and implements a policy of
level technical manpower and skilled workers and full disclosure of all its transactions involving
craftsmen shall be promoted by the State. The public interest,"
State shall encourage appropriate technology and
regulate its transfer for the national benefit. 2. Sec. 7, Art. III states: "The right of the people to
information on matters of public concern shall be
Sub-sec. 2, Sec. 3, Art. XIV of the Constitution recognized, access to official records, and to
states: "They (educational institutions) shall documents, and papers pertaining to official acts,
inculcate patriotism and nationalism, foster love transactions, or decisions, as well as to
of humanity, respect for human rights, government research data used as basis for policy
appreciation of the role of national heroes in the development, shall be afforded the citizen,
historical development of the country, teach the subject to such limitations as may be provided by
rights and duties of citizenship, strengthen ethical law."
and spiritual values, develop moral character and
personal discipline, encourage critical and 3. Sec. 20, Art. VI reads: "The records and books of
creative thinking, broaden scientific and account of the Congress shall be preserved and be
technological knowledge, and promote vocational open to the public in accordance with law, and
efficiency." such books shall be audited by the Commission on
Audit which shall publish annually an itemized list
Sec. 10, Art. XIV of the Constitution declares: of amounts paid to and expenses incurred for
"Science and Technology are essential for national each member."
development and progress. The State shall give
priority to research and development, invention, 4. Sec. 17, Art. XI provides: A sworn statement of
innovation, and their utilization; and to science assets, liabilities and net worth of the President,
and technology education, training, services. It the Vice-President, the Members of the Cabinet,
shall support indigenous, appropriate, and self- the Congress, the Supreme Court, the
reliant scientific and cultural capabilities, and Constitutional Commission and other
their application to the country's productive constitutional offices, and officers of the armed
systems and national life." forces with general or flag rank filed upon their

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2014 GOLDEN NOTES 12
GENERAL CONSIDERATIONS

assumption of office shall be disclosed to the Sovereignty: Imperium v. Dominium


public in the manner provided by law. IMPERIUM DOMINIUM
The States authority to Capacity of the state to
5. Sec. 21, Art. XII declares in part: "Information on govern as embraced in own or acquire
foreign loans obtained or guaranteed by the the concept of property.
government shall be made available to the sovereignty; includes
public." passing laws governing a
territory, maintaining
NOTE: These provisions on public disclosures are intended to peace and order over it,
enhance the role of the citizenry in governmental decision- and defeating it against
making as well as in checking abuse in government.
foreign invasion.
(Valmonte v. Belmonte, G.R. No. 74930, February 13, 1989)
(Lee Hong Hok v. David, G.R. No. L-30389, December
Doctrine of Incorporation v. Doctrine of 27, 1972)
Transformation
Doctrine of Autolimitation
DOCTRINE OF DOCTRINE
While sovereignty has traditionally been deemed
INCORPORATION TRANSFORMATION
absolute and all encompassing on the domestic level,
It means that the rules Generally accepted it is however subject to restrictions and limitations
of International Law rules of international voluntarily agreed to by the Philippines, expressly or
form part of the law of law are not per se impliedly as a member of the family of nations.
the land and no binding upon the state
legislative action is but must first be By the doctrine of incorporation, the country is bound
required to make them embodied in legislation by generally accepted principles of international law,
applicable in a country. enacted by the which are considered to be automatically part of our
By this doctrine, the lawmaking body and so own laws. (Taada v. Angara, G.R.No. 118295, May 2,
Philippines is bound by transformed into 1997)
generally accepted municipal law.
principles of Civilian supremacy is ensured
international law, which
are considered to be 1. By the installation of the President, the highest
automatically part of civilian authority, as the commander-in-chief of all
our own laws. (Taada the armed forces of the Philippines. (Sec. 18, Art.
v. Angara, G.R. No. VII, 1987 Constitution)
118295, May 2, 1997) 2. Through the requirement that members of the
AFP swear to uphold and defend the Constitution,
NOTE: The fact that the international law has been made which is the fundamental law of civil government.
part of the law of the land does not by any means imply the
(Sec. 5, Par. 1, Art. XVI, 1987 Constitution)
primacy of international law over national law in the
municipal sphere. (Philip Morris, Inc. v. CA, G.R. No. 91332,
July 16, 1993) NOTE: By civilian supremacy, it is meant that civilian
authority is, at all times, supreme over the military.
Sovereignty
Mandatory rendition of military services to defend
Supreme and uncontrollable power inherent in a State the State
by which the State is governed.
One cannot avoid compulsory military service by
Characteristics invoking ones religious convictions or by saying that
he has a sick father and several brothers and sisters to
1. Permanent; support. Accordingly, the duty of government to
2. Exclusive; defend the State cannot be performed except through
3. Comprehensive; an army. To leave the organization of an army to the
4. Absolute; will of the citizens would be to make this duty to the
5. Indivisible; Government excusable should there be no sufficient
6. Inalienable; men who volunteer to enlist therein. The right of the
7. Imprescriptible. (Laurel v. Misa, G.R. No. L-409, Government to require compulsory military service is
January 30, 1947) a consequence of its duty to defend the State and is

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13 FACULTY OF CIVIL LAW
Political and International Law

reciprocal with its duty to defend the life, liberty, and of religion may be allowed, not to promote the
property of the citizen. (People v. Zosa, G.R. No. L- governments favored form of religion, but to
45892-93, July 13, 1938) allow individuals and groups to exercise their
religion without hindrance. (Estrada v. Escritor,
Provisions of the Constitution that support the A.M. No. P-02-1651, June 22, 2006)
principle of separation of Church and State
NOTE: In the Philippine context, the Court categorically ruled
1. The non-establishment clause. (Sec. 5, Art. III) that, the Filipino people, in adopting the Constitution,
2. Sectoral representation in the House of manifested their adherence to the benevolent neutrality
approach that requires accommodations in interpreting the
Representatives. Various sectors may be
religion clauses. (Estrada v. Escritor, A.M. No. P-02-1651,
represented except the religious sector. (Sec. 5,
June 22, 2006)
par. 2, Art. VI)
3. Religious groups shall not be registered as political Kinds of accommodation that result from free
parties. (Sec. 5, par. 2, Art. IX-C, 1987 Constitution) exercise claim
NOTE: Exceptions to the above-mentioned rule are the
1. Mandatory - Those which are found to be
following provisions:
1. Churches, parsonages, etc. actually, directly and constitutionally compelled, i.e. required by the
exclusively used for religious purposes shall be exempt Free Exercise Clause;
from taxation; (Sec. 28, par. 3, Art. VI) 2. Permissive - Those which are discretionary or
2. When a priest, preacher, minister or dignitary is legislative, i.e. not required by the Free Exercise
assigned to the armed forces, or any penal institution Clause;
or government orphanage or leprosarium, public 3. Prohibited - Those which are prohibited by the
money may be paid to them; (Sec. 29, par. 2, Art. VI) religion clauses.
3. Optional religious instruction for public elementary and
high school students; (Sec. 3, par. 3, Art. VI)
NOTE: Based on the foregoing, and after holding that the
4. Filipino ownership requirement for education
Philippine Constitution upholds the benevolent neutrality
institutions, except those established by religious
doctrine which allows for accommodation, the Court laid
groups and mission boards. (Sec. 4, par. 2, Art. XIV)
down the rule that in dealing with cases involving purely
conduct based on religious belief, it shall adopt the strict-
Theories on the separation of church and state compelling State interest test because it is most in line with
the benevolent neutrality-accommodation.
1. Separation Standard - May take the form of either
(a) strict separation or (b) the tamer version Mandatory accommodation v. Permissive
of strict neutrality, or what Mr. Justice Carpio accommodation v. Prohibited accommodation
refers to as the second theory of governmental MANDATORY PERMISSIVE PROHIBITED
neutrality. ACCOMODATION ACCOMODATION ACCOMMODATION
Based on the Means that the Results when the
a. Strict Separationist - The establishment premise that state may, but Court finds no
clause was meant to protect the State from when religious is not required basis for a
the church, and the States hostility towards conscience to, accomodate mandatory
religion allows no interaction between the conflicts with a religious accommodation,
two. government interests. or it determines
b. Strict Neutrality Approach - It is not hostility obligation or that the
towards religion, but a strict holding that prohibition, legislative
religion may not be used as a basis for the accommodation
classification for purposes of governmental government runs afoul of the
action, whether the action confers rights or sometimes establishment or
privileges or imposes duties or obligations. may have to the free exercise
Only secular criteria may be the basis of give way. This clause. In this
government action. It does not permit; much accomodation case, the Court
less require accommodation of religious occurs when all finds that
belief in secular programs. three establishment
conditions of concerns prevail
2. Benevolent Neutrality Approach - States that the
the compelling over potential
wall of separation is meant to protect the
State interest accommodation
church from the State. It believes that with
test are met. interests.
respect to governmental actions, accommodation

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2014 GOLDEN NOTES 14
GENERAL CONSIDERATIONS
NOTE: The purpose of accommodations is to remove a ALTERNATIVE ANSWER:
burden on, or facilitate the exercise of, a persons or Sec. 1, Art. XI of the 1987 Constitution provides that
institutions religions. public officers must at all times be accountable to the
people. Sec. 22 of the Ombudsman Act provides that
SEPARATION OF POWERS the Office of the Ombudsman has the power to
investigate any serious misconduct allegedly
Doctrine of Separation of Powers committed by officials removable by impeachment for
the purpose of filing a verified complaint for
The legislation belongs to the Congress, execution to impeachment if warranted. The Ombudsman can
the executive, and settlement of legal controversies to entertain the complaint for this purpose.
the judiciary. Each is therefore prevented from
invading the domain of the others. Q: May the RTC or any court prohibit a committee of
the Senate like the Blue Ribbon Committee from
Purposes of Separation of Powers requiring a person to appear before it when it is
conducting investigation in aid of legislation?
1. Secure action
2. Forestall over-action A: No, because that would be violative of the principle
3. Prevent despotism of separation of powers. The principle essentially
4. Obtain efficiency means that legislation belongs to Congress, execution
to the Executive and settlement of legal controversies
NOTE: To prevent the concentration of authority in one to the Judiciary. Each is prevented from invading the
person or group of persons that might lead to irreparable domain of the others. (Senate Blue Ribbon Committee
error or abuse in its exercise to the detriment of republican
v. Majaducon, G.R. No. 136760, July 29, 2003)
institutions. The purpose was not to avoid friction, but, by
means of the inevitable friction incident to the distribution
of governmental powers among the three departments, to Principle of blending of powers
save the people from autocracy.
Refers to an instance when powers are not confined
Powers vested in the three branches of government exclusively within one department but are assigned to
or shared by several departments.
EXECUTIVE LEGISLATIVE JUDICIARY
Implementation Interpretation of Examples of the blending of powers
Making of laws
of laws laws
and power of the a. Power of appointment which can be exercised by
(Power of the (Power of judicial
purse each department and be rightfully exercised by
sword) review)
each department over its own administrative
NOTE: Legislative power is given to the legislature whose personnel;
members hold office for a fixed term; (Sec. 1, Art. VI) b. General Appropriations Law President prepares
Executive power is given to a separate Executive who holds the budget which serves as the basis of the bill
office for a fixed term; (Sec. 1, Art. VII) and Judicial power is adopted by Congress;
held by an independent Judiciary. (Sec. 1, Art. VIII) c. Amnesty granted by the President requires the
concurrence of the majority of all the members of
Q: A group of losing litigants in a case decided by the the Congress; and
SC filed a complaint before the Ombudsman charging d. COMELEC does not deputize law-enforcement
the Justices with knowingly and deliberately agencies and instrumentalities of the government
rendering an unjust decision in utter violation of the for the purpose of ensuring free, orderly, honest,
penal laws of the land. Can the Ombudsman validly peaceful and credible elections alone (consent of
take cognizance of the case? the President is required).

A: No. Pursuant to the principle of separation of Q: A provision in the 2014 General Appropriations Act
powers, the correctness of the decisions of the SC as (GAA) granted the legislators lump-sum allocations
final arbiter of all justiciable disputes is conclusive and gave them post-enactment measures, such as
upon all other departments of the government; the project identification, execution and operation
Ombudsman has no power to review the decisions of aspects of the identified projects. Is such provision
the SC by entertaining a complaint against the Justices violative of the principle of separation of powers?
of the SC for knowingly rendering an unjust decision.
(In re: Laureta, G.R. No. L-68635, May 14, 1987)

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15 FACULTY OF CIVIL LAW
Political and International Law

A: Yes. There is a violation of the principle when there Senator and was suspended for disorderly behavior,
is impermissible (a) interference with and/or (b) because it could not compel a separate and co-equal
assumption of another department's functions. department to take any particular action. In Osmea v.
Pendatun (109 Phil. 863 [1960]), it was held that the
These post-enactment measures, which govern the Supreme Court could not interfere with the
areas of project identification, fund release and fund suspension of a Congressman for disorderly behavior,
realignment are not related to functions of because the House of Representatives is the judge of
congressional oversight and, hence, allow legislators what constitutes disorderly behavior. The assault of a
to intervene and/or assume duties that properly fellow Senator constitutes disorderly behavior.
belong to the sphere of budget execution. Legislators However, under Sec. 1, Art. VIII of the 1987
have been, in one form or another, authorized to Constitution, the Supreme Court may inquire whether
participate in "the various operational aspects of or not the decision to expel Avi Amog is tainted with
budgeting in violation of the separation of powers grave abuse of discretion amounting to lack or excess
principle. of jurisdiction.

From the moment the law becomes effective, any Q: Paul Martin was convicted of estafa. When his case
provision of law that empowers Congress or any of its reached the Supreme Court, some Justices proposed
members to play any role in the implementation or to alter the penalties provided for under RPC on the
enforcement of the law violates the principle of basis of the ratio of P1.00 to P100.00, believing that
separation of powers and is thus unconstitutional. Any it is not just to apply the range of penalties, which
post-enactment congressional measure should be was based on the value of money in 1932, to crimes
limited to scrutiny and investigation. Any action or committed at present. However, other justices
step beyond that will undermine the separation of opposed the said proposal for it amounts to judicial
powers guaranteed by the Constitution. (Belgica, et al. legislation. Is the opposition correct?
vs Ochoa, et al., G.R. No. 208566, November 19, 2013)
A: Yes. This Court cannot modify the said range of
Q: Can any other department or agency of the penalties because that would constitute judicial
government review a decision of the Supreme Court? legislation. What the legislature's perceived failure in
Why or why not? amending the penalties provided for in the said crimes
cannot be remedied through this Court's decisions, as
A: No. The Supreme Court is the highest arbiter of legal that would be encroaching upon the power of another
questions. (Javier v. Comelec, 144 SCRA 194 [198]) To branch of the government.
allow review of its decision by the other departments
of government would upset the classic pattern of Verily, the primordial duty of the Court is merely to
separation of powers and destroy the balance apply the law in such a way that it shall not usurp
between the judiciary and the other departments of legislative powers by judicial legislation and that in the
government. course of such application or construction, it should
not make or supervise legislation, or under the guise
Q: Avi Amog was elected Congressman. Before the of interpretation, modify, revise, amend, distort,
end of her first year in office, she inflicted physical remodel, or rewrite the law, or give the law a
injuries on a colleague, Camille Gonzales, in the construction which is repugnant to its terms. The
course of a heated debate. Charges were filed in court Court should apply the law in a manner that would give
against her as well as in the House Ethics Committee. effect to their letter and spirit, especially when the law
Later, the HoR, dividing along party lines, voted to is clear as to its intent and purpose. Succinctly put, the
expel her. Claiming that her expulsion was railroaded Court should shy away from encroaching upon the
and tainted by bribery, she filed a petition seeking a primary function of a co-equal branch of the
declaration by the SC that the House gravely abused Government; otherwise, this would lead to an
its discretion and violated the Constitution. She inexcusable breach of the doctrine of separation of
prayed that her expulsion be annulled and that she powers by means of judicial legislation. (Lito Corpuz v.
should be restored by the Speaker to her position as People, G.R. No. 180016, April 29, 2014)
Congressman. Is Avi Amogs petition before the
Supreme Court justiciable?

A: No. In Alejandrino v. Quezon (46 Phil. 83 [1924]), the


Supreme Court held that it could not compel the
Senate to reinstate a Senator who assaulted another

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2014 GOLDEN NOTES 16
GENERAL CONSIDERATIONS

CHECKS AND BALANCES Q: An appropriations law granting the legislators


lump-sum funds in which they have full discretion on
Principle of Checks and Balances what project it would fund and how much the project
would cost, was passed. Is such law unconstitutional?
Allows one department to resist encroachments upon
its prerogatives or to rectify mistakes or excesses A: Yes. The appropriations merely provide for a
committed by the other departments. singular lump-sum amount to be tapped as a source of
funding for multiple purposes. Since such
Executive check on the other two branches appropriation type necessitates the further
determination of both the actual amount to be
EXECUTIVE CHECK expended and the actual purpose of the appropriation
Legislative Judiciary which must still be chosen from the multiple purposes
stated in the law, appropriation law does not indicate
Through its - Through its power of pardon,
a "specific appropriation of money" and hence,
veto power it may set aside the
without a proper line-item which the President may
judgment of the judiciary.
veto.
- Also by power of
appointment power to
This setup connotes that the appropriation law leaves
appoint members of the
the actual amounts and purposes of the appropriation
Judiciary.
for further determination and, therefore, does not
readily indicate a discernible item which may be
Legislative check on the other two branches subject to the Presidents power of item veto.

LEGISLATIVE CHECK Also, the fact that individual legislators are given post-
Executive Judiciary enactment roles in the implementation of the budget
Override the veto of Revoke or amend the makes it difficult for them to become disinterested
the President decisions by either: "observers" when scrutinizing, investigating or
- Enacting a new law monitoring the implementation of the appropriation
- Amending the old law law. To a certain extent, the conduct of oversight
- Giving it certain would be tainted as said legislators, who are vested
with post-enactment authority, would, in effect, be
definition and
checking on activities in which they themselves
interpretation participate. (Belgica, et al. vs Ochoa, et al., G.R. No.
different from the 208566, November 19, 2013)
old.
Judicial check on the other two branches
Reject certain Impeachment of SC
appointments made members It may declare (through the SC as the final arbiter) the
by the president acts of both the legislature and executive as
Revoke the Define, prescribe, unconstitutional or invalid so long as there is grave
proclamation of apportion jurisdiction of abuse of discretion.
martial law or lower courts:
NOTE: The first and safest criterion to determine whether a
suspension of the - Prescribe the
given power has been validly exercised by a particular
privilege of the writ of qualifications of lower department is whether the power has been constitutionally
habeas corpus court judges conferred upon the department claiming its exercise.
- Impeachment However, even in the absence of express conferment, the
exercise of the power may be justified under the Doctrine of
- Determination of Necessary Implication - the grant of express power carried
salaries of judges. with it all other powers that may be reasonably inferred from
it.
Impeachment
Determine the DELEGATION OF POWERS
salaries of the
president or vice Non-delegation of powers
president
GR: A delegated power cannot be re-delegated.

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17 FACULTY OF CIVIL LAW
Political and International Law

the legislature so that there will be nothing left for


NOTE: Delegated power constitutes not only a right but a the delegate to do when it reaches him except to
duty to be performed by the delegate through the enforce it.
instrumentality of his own judgment and not through the
b. Sufficient Standard Test If the law does not spell
intervening mind of another.
out in detail the limits of the delegates authority,
it may be sustained if delegation is made subject
XPNs: Permissible delegations:
to a sufficient standard.
1. Delegation to the People through initiative and
referendum. (Sec. 1, Art. VI, 1987 Constitution)
NOTE: The sufficient standard test maps out the boundaries
2. Emergency powers delegated by Congress to the of the delegates authority and indicating the circumstances
President. (Sec. 23(2), Art. VI) under which it is to be pursued and effected. Its purpose is
to prevent total transference of legislative power.
NOTE: The conditions for the vesture of emergency
powers are the following: Invalid delegation of legislative power
a. There must be war or other national emergency.
b. The delegation is for a limited period only.
If there are gaps that will prevent its enforcement, the
c. Delegation is subject to restrictions as Congress
may prescribe. delegate is given the opportunity to step into the
d. Emergency powers must be exercised to carry a shoes of the legislature and exercise discretion in
national policy declared by Congress. order to repair the omissions.

3. Congress may delegate Tariff powers to the NOTE: This is tantamount to an abdication of power in favor
President. (Sec. 28 (2),Art. VI) of the delegate, which is in violation of the doctrine of
separation of powers.
NOTE: The Tariff and Customs Code is the enabling law
that grants such powers to the President. Q: A law, which delegated some appropriation
powers to the President, was passed. The law
The power to impose tariffs in the first place is not contains provisions such as and for such other
inherent in the President but arises only from purposes as may be hereafter directed by
congressional grant. Thus, it is the prerogative of the President and to finance the
Congress to impose limitations and restrictions on such priority infrastructure development projects and to
powers which do not normally belong to the executive
finance the restoration of damaged or destroyed
in the first place. (Southern Cross Cement Corporation v.
facilities due to calamities, as may be directed
Philippine Cement Manufacturing Corp., G.R. No.
158540, August 3, 2005) and authorized by the Office of the President of the
Philippines. Are the provisions valid?
4. Delegation to Administrative bodies also known
as the power of subordinate legislation/ quasi- A: No. Said provisions constitute an undue delegation
legislative powers. of legislative power insofar as it does not lay down a
sufficient standard to adequately determine the limits
NOTE: This refers to the authority vested by Congress of the Presidents authority with respect to the
to the administrative bodies to fill in the details which purpose for which the law may be used (sufficient
Congress cannot provide due to lack of opportunity or standard test). It gives the President wide latitude to
competence. This includes the making of use the funds for any other purpose he may direct and,
supplementary rules and regulations. They have the thus, allows him to unilaterally appropriate public
force and effect of law. funds beyond the purview of the law.
Congress can only delegate rule-making power to
It gives him carte blanche authority to use the same
administrative agencies.
fund for any infrastructure project he may so
determine as a priority. The law does not supply a
5. Delegation to Local Governments It is not
definition of priority infrastructure development
regarded as a transfer of general legislative
projects and hence, leaves the President without any
power, but rather as the grant of authority to
guideline to construe the same. To note,
prescribe local regulations.
the delimitation of a project as one of infrastructure
is too broad of a classification since it could pertain to
Tests to determine whether the delegation of
any kind of facility. Thus, the phrase to finance the
legislative power is valid
priority infrastructure development projects must be
stricken down as unconstitutional since it lies
a. Completeness Test The law must be complete in
independently unfettered by any sufficient standard of
all essential terms and conditions when it leaves

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2014 GOLDEN NOTES 18
GENERAL CONSIDERATIONS

the delegating law. (Belgica, et al. v. Ochoa, et al., G.R. government; single, centralized government,
No. 208566, November 19, 2013) exercising powers over both the internal and
external affairs of the State.
Q: Rosalie Jaype-Garcia filed a petition before the b. Federal government One in which the
RTC of Bacolod City for the issuance of a Temporary powers of the government are divided
Protection Order against her husband, Jesus Garcia, between two sets of organs, one for national
pursuant to RA 9262. She claimed to be a victim of affairs and the other for local affairs, each
physical abuse and emotional, psychological, and organ being supreme within its own sphere;
economic violence. During the pendency of the civil consists of autonomous local government
case, Jesus Garcia filed a petition before the SC, units merged into a single State, with the
alleging that RA 9262 is unconstitutional because of national government exercising a limited
undue delegation of judicial power to barangay degree of power over the domestic affairs but
officials by allowing them to issue a Barangay generally full discretion of the external affairs
Protection Order. Is RA 9262 unconstitutional for of the State.
undue delegation of judicial power to barangay
officials? 2. As to the existence or absence of title and/or
control
A: No. There is no undue delegation of judicial power a. De jure Has a rightful title but no power or
to barangay officials. The BPO issued by the Punong control, either because the same has been
Barangay or, in his unavailability, by any available withdrawn from it or because it has not yet
Barangay Kagawad, merely orders the perpetrator to actually entered into the exercise thereof
desist from (a) causing physical harm to the woman or
her child; and (2) threatening to cause the woman or The government under Cory Aquino and the
her child physical harm. Such function of the Punong Freedom Constitution was de jure
Barangay is, thus, purely executive in nature, in government because it was established by
pursuance of his duty under the Local Government authority of the legitimate sovereign, the
Code to "enforce all laws and ordinances," and to people. (In re Letter of Associate Justice Puno,
"maintain public order in the barangay." (Garcia v. A.M. No. 90-11-2697-CA, June 29, 1992)
Drilon, G.R. No. 179267, June 25, 2013)
The government under Gloria Macapagal-
Presidents authority to declare a state of national Arroyo, established after the ouster of
emergency v. Presidents authority to exercise Estrada was a de jure government. (Estrada v.
emergency powers Desierto, G.R. Nos. 146710-15, March 2,
2001)
DECLARE A STATE OF EXERCISE EMERGENCY
NATIONAL EMERGENCY POWERS b. De facto Actually exercises power or control
Granted by the Requires a delegation but without legal title (Lawyers League for a
Constitution, no from Congress. (David, Better Philippines v. Aquino, G.R. No. 73748,
legitimate objection et al. v. Gloria May 22, 1986)
can be raised. Macapagal-Arroyo, et
al., G.R. No. 171396, Kinds of de facto government
May 3, 2006) i. De facto proper Government that gets
possession and control of, or usurps, by
NOTE: Conferment of force or by the voice of the majority, the
emergency powers on the rightful legal government and maintains
President is not mandatory itself against the will of the latter;
on Congress. ii. Government of paramount force
Established and maintained by military
FORMS OF GOVERNMENT forces who invade and occupy a
territory of the enemy in the course of
Classifications of government war; and
iii. Independent government Established
1. As to the centralization of control by the inhabitants of the country who
a. Unitary government One in which the rise in insurrection against the parent
control of national and local affairs is State. (Kop Kim Cham v. Valdez Tan Key,
exercised by the central or national G.R. No. L- 5, September 17, 1945)

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19 FACULTY OF CIVIL LAW
Political and International Law

EDSA 1 v. EDSA 2 4. Provides that subject to the enactment of an


implementing law, the people may directly
EDSA 1 EDSA 2 propose amendments to the Constitution
Involves the exercise Exercise of the people through initiative. (Sec. 2, Art. XVII)
of the people power of power of freedom of
revolution which speech and freedom of 3. As to the concentration of powers in a government
overthrew the whole assembly to petition branch
government. the government for a. Presidential government There is separation
redress of grievances of executive and legislative powers
which only affected b. Parliamentary government There is fusion
the office of the of both executive and legislative powers in
President. Parliament, although the actual exercise of
Extra-constitutional Intra-constitutional the executive powers is vested in a Prime
and the legitimacy of and the resignation of Minister who is chosen by, and accountable
the new government the then sitting to, Parliament.
that resulted from it President that it
cannot be the subject caused and the The Philippines adheres to the presidential system
of judicial review. succession of the Vice
President as the The principal identifying feature of a presidential form
president are subject of government is the separation of powers doctrine.
to judicial review.
Presented political Involves legal question NOTE: In presidential system, the President is both the head
question of State and the head of government.
The Cory Aquino The oath that Arroyo
government was took at the EDSA Essential characteristics of a parliamentary form of
installed through a Shrine is the oath government
direct exercise of the under the 1987
power of the Filipino Constitution. In her 1. The members of the government or cabinet or the
people in defiance of oath, she categorically executive arm are, as a rule, simultaneously
the provisions of the swore to preserve and members of the legislature;
2. The government or cabinet consisting of the
1973 Constitution, as defend the 1987
amended. Constitution. political leaders of the majority party or of a
coalition who are also members of the legislature,
Revolutionary in Not revolutionary in
is in effect a committee of the legislature;
character. character.
3. The government or cabinet has a pyramidal
(Estrada v. Desierto, G.R. Nos. 146710-15, March
structure at the apex of which is the Prime
2, 2001)
Minister or his equivalent;
4. The government or cabinet remains in power only
People Power under the Constitution
for so long as it enjoys the support of the majority
of the legislature;
1. Guarantees the right of the people to
5. Both the government and the legislature are
peaceably assemble and petition the
possessed of control devices which each can
government for redress of grievances. (Sec. 4,
demand of the other immediate political
Art. III)
responsibility. In the hands of the legislature is the
2. Requires Congress to pass a law allowing the
vote of non-confidence (censure) whereby
people to directly propose and enact laws
government may be ousted. In the hands of the
through initiative and to approve or reject
government is the power to dissolve the
any act or law or part of it passed by Congress
legislature and call for new elections.
or a local legislative body. (Sec. 32, Art. VI)
3. 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. (Sec. 16, Art. XIII)

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2014 GOLDEN NOTES 20
GENERAL CONSIDERATIONS

Functions of the Government

1. Constituent Mandatory for the government to


perform because they constitute the very bonds
of society.
2. Ministrant Intended to promote the welfare,
progress and prosperity of the people.

NOTE: Distinction of function is no longer relevant because


the Constitution obligates the State to promote social justice
and has repudiated the laissez faire policy. (ACCFA v.
Federation of Labor Unions, G.R. No. L-221484, November
29, 1969)

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21 FACULTY OF CIVIL LAW
Political and International Law

LEGISLATIVE DEPARTMENT obnoxious because it significantly constricts the future


legislators room for action and flexibility. (Datu
WHO MAY EXERCISE LEGISLATIVE POWER Michael Abas Kida, et al. v. Senate of the Philippines,
et al. G.R. No. 196271, October 18, 2011)
The following may exercise legislative power
NOTE: Every legislative body may modify or abolish the acts
passed by itself or its predecessors. This legislature cannot
1. Congress bind a future legislature to a particular mode of repeal. It
2. Regional/Local Government Units cannot declare in advance the intent of subsequent
3. The People through initiative and referendum. legislatures or the effect of subsequent legislation upon
existing statutes. (Datu Michael Abas Kida, et al. v. Senate of
Limitations on the legislative power of Congress the Philippines, et al. G.R. No. 196271, October 18, 2011)

1. Substantive: limitations on the content of laws. Classes of legislative power (ODCO)


2. Procedural: limitations on the manner of passing
laws. 1. Original: Possessed by the people in their
3. Congress cannot pass irrepealable laws. sovereign capacity i.e. initiative and referendum.
4. Congress, as a general rule, cannot delegate its 2. Delegated: Possessed by Congress and other
legislative power. legislative bodies by virtue of the Constitution.
3. Constituent: The power to amend or revise the
XPN: See Delegation of Legislative Powers. Constitution.
4. Ordinary: The power to pass ordinary laws.
Q: Is the supermajority vote requirement under RA
9054, the second Organic Act of ARMM which reset HOUSES OF CONGRESS
the regular elections for the ARMM regional officials
to the second Monday of September 2001 Composition of Congress
unconstitutional by giving it a character of an
irrepealable law? The Congress is bicameral in nature. It is composed of:
1. Senate
A: Yes. Even assuming that RA 9333 and RA 10153 did 2. House of Representatives
in fact amend RA 9054, the supermajority (2/3) voting a. District representatives
requirement required under Sec. 1, Art. XVII of RA b. Party-list system
9054 has to be struck down for giving RA 9054 the
character of an irrepealable law by requiring more Composition, qualifications, and term of office of
than what the Constitution demands. members of Congress

Sec. 16(2), Art. VI of the Constitution provides that a HOUSE OF


majority of each House shall constitute a quorum to SENATE
REPRESENTATIVES
do business. In other words, as long as majority of the Composition
members of the House of Representatives or the
24 Senators (elected at Not more than 250
Senate are present, these bodies have the quorum
large by qualified members, unless
needed to conduct business and hold session. Within
Filipino voters) otherwise provided by
a quorum, a vote of majority is generally sufficient to law.
enact laws or approve acts.
Qualifications
In contrast, Sec. 1, Art. XVII of RA 9054 requires a vote 1. Natural-born 1. Natural-born citizen
of no less than two-thirds (2/3) of the Members of the citizen of the of the Philippines;
House of Representatives and of the Senate, voting Philippines; 2. Except youth party-
separately, in order to effectively amend RA 9054. 2. At least 35 years of list representatives,
Clearly, this 2/3 voting requirement is higher than age on the day of at least 25 years of
what the Constitution requires for the passage of bills, election; age on the day of
and served to restrain the plenary powers of Congress 3. Able to read and election;
to amend, revise or repeal the laws it had passed. write; 3. Able to read and
4. A registered voter; write;
While a supermajority is not a total ban against repeal, 5. Resident of the 4. Except the party-list
it is a limitation in excess of what the Constitution Philippines for not representatives, a
requires on the passage of bills and is constitutionally less than 2 years registered voter in

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2014 GOLDEN NOTES 22
LEGISLATIVE DEPARTMENT

immediately the district in which Expulsion of members of Congress


preceeding the day he shall be elected;
of election. 5. Resident thereof for MEMBERS OF THE
a period of not less SENATORS HOUSE OF
NOTE: Enumeration is than 1 year REPRESENTATIVES
exclusive immediately the day Expulsion by the Senate Expulsion by the House
of the election. with the concurrence of is with the concurrence
2/3 of all its members. of 2/3 of all its
NOTE: Enumeration is (Sec. 16, par. 3, Art. VI) members. (Sec. 16, par.
exclusive. 3, Art. VI)
Term of office
6years, commencing at 3 years, commencing at Q: Can Congress or COMELEC impose an additional
noon on the 30th day of noon on the 30th day of qualification for candidates for senator /
June next following June next following their representative?
their election. election.
A: No. The Congress cannot validly amend or
Term limit: 3 Term limit: 3 consecutive otherwise modify these qualification standards, as it
consecutive terms. terms. cannot disregard, evade, or weaken the force of a
However, they may constitutional mandate, or alter or enlarge the
serve for more than 3 Constitution. (Cordora v. COMELEC, G.R. No. 176947,
terms provided that the February 19, 2009; Social Justice Society v. DDB and
terms are not PDEA, G.R Nos. 157870, 158633, 161658, November 3,
consecutive. 2008)

Disqualifications of members of Congress Rule on voluntary renunciation of office

SENATE HOUSE OF Voluntary renunciation of office for any length of time


REPRESENTATIVES shall not be considered as an interruption in the
No Senator shall Shall not serve for more continuity of his service for the full term for which he
serve for more than than three (3) consecutive was elected. (Secs. 4 and 7, Art. VI)
two (2) consecutive terms. Voluntary
terms. Voluntary renunciation of the office Composition of the HoR
renunciation of the for any length of time shall
office for any length not be considered as an DISTRICT PARTY-LIST
of time shall not be interruption in the REPRESENTATIVE REPRESENTATIVE
considered as an continuity of his service for Elected according to Elected nationally with
interruption in the the full term for which he legislative district by the party-list organizations
continuity of his was elected. (Sec. 7, Art. VI) constituents of such garnering at least 2% of
service for the full district. all votes cast for the
term for which he party-list system
was elected. (Sec. 4, entitled to 1 seat, which
Art. VI) is increased according to
One who has been declared by competent authority proportional
as insane or incompetent. representation, but is in
no way to exceed 3
One who has been sentenced by final judgment for: seats per organization.
a. Subversion; Must be a resident of his No special residency
b. Insurrection; legislative district for at requirement.
c. Rebellion; least 1 year immediately
d. Any offense for which he has been sentenced to before the election.
a penalty of not more than 18 months; or Elected personally, by Voted upon by party or
e. A crime involving moral turpitude, unless given name. organization. It is only
plenary pardon o granted amnesty. (Sec. 12, BP 881) when a party is entitled
to representation that it
designates who will sit
as representative.

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23 FACULTY OF CIVIL LAW
Political and International Law

Does not lose seat if If he/she changes party


he/she changes party or or affiliation, loses his NOTE: The question of the validity of an apportionment law
affiliation. seat, in which case is a justiciable question. (Macias v. Comelec, G.R. No. L-
he/she will be 18684, September 14, 1961)
substituted by another
qualified person in the Conditions for apportionment
party /organization
based on the list 1. Elected from legislative districts which are
submitted to the apportioned in accordance with the number of
COMELEC. inhabitants of each area and on the basis of a
In case of vacancy, a In case of vacancy, a uniform and progressive ratio.
special election may be substitution will be 2. Uniform Every representative of Congress shall
held provided that the made within the party, represent a territorial unit with more or less
vacancy takes place at based on the list 250,000 population. All the other representatives
least 1 year before the submitted to the shall have the same or nearly the same political
next election. COMELEC. constituency so much so that their votes will
constitute the popular majority.
A district representative A party-list
3. Progressive It must respond to the change in
is not prevented from representative cannot
times. The number of House representatives must
running again as a sit if he ran and lost in
not be so big as to be unwieldy. (Let us say, there
district representative if the previous election.
is a growth in population. The ratio may then be
he/she lost in the
increased. From 250,000 constituents/1
previous election.
representative it may be reapportioned to 300,
A change in affiliation A change in affiliation
000 constituents/1 representative)
within months prior to within 6 months prior to
4. Each city with a population of at least 250,000 or
election does not election prohibits the
each province shall at least have one
prevent a district party-list representative
representative.
representative from from listing as
running under his new representative under his
NOTE: GR: There must be proportional representation
party. new party or according to the number of their
organization. constituents/inhabitants.

District representatives XPN: In one city-one representative/one province-one


representative rule.
Those who are elected from legislative districts
apportioned among the provinces, cities and the 5. Legislative districts shall be re-apportioned by
Metropolitan Manila area. Congress within 3 years after the return of each
census. (Senator Aquino III v. COMELEC, G.R. No.
Apportionment of legislative districts 189793, April 7, 2010)

Legislative districts are apportioned among the Essence of apportionment


provinces, cities, and the Metropolitan Manila area.
They are apportioned in accordance with the number The underlying principle behind the rule for
of their respect inhabitants and on the basis of a apportionment is the concept of equality of
uniform and progressive ratio. (Sec. 5, Art. VI, 1987 representation, which is a basic principle of
Constitution) republicanism. One mans vote should carry as much
weight as the vote of every other man.
Each city with a population of at least 250,000 shall
have at least one representative. Each province shall NOTE: Sec. 5 provides that the House shall be composed of
have at least one representative. not more than 250 members unless otherwise provided by
law. Thus, Congress itself may by law increase the
composition of the HoR. (Tobias v. Abalos, G.R. No. L-
While Sec. 5(3) of Art. VI of the Constitution requires a
114783, December 8, 1994)
city to have a minimum population of 250,000 to be
entitiled to one representative; it does not have to As such, when one of the municipalities of a congressional
increase its population by another 250,000 to be district is converted to a city large enough to entitle it to one
entitled to an additional district. (Senator Aquino III v. legislative district, the incidental effect is the splitting of
COMELEC, G.R. No. 189793, April7, 2010) district into two. The incidental arising of a new district in

UNIVERSITY OF SANTO TOMAS


2014 GOLDEN NOTES 24
LEGISLATIVE DEPARTMENT
this manner need not be preceded by a census. (Tobias v. democracy. (Ang BagongBayani-OFW Labor Party v.
Abalos, G.R. No. L-114783, December 8, 1994) COMELEC, G.R. No. 147589, June26, 2001)

Manner of reapportionment The party-list system is intended to democratize


political power by giving political parties that cannot
Reapportionment may be made thru a special law. As win in legislative district elections a chance to win
thus worded, the Constitution did not preclude seats in the HoR. (Atong Paglaum, Inc. v. COMELEC,
Congress from increasing its membership by passing a G.R. 203766, April 2, 2013)
law, other than a general reapportionment of the law.
Moreover, to hold that reapportionment can only be Different parties under the party-list system
made through a general apportionment law, with a
review of all the legislative districts allotted to each No votes cast in favor of political party, organization or
local government unit nationwide, would create an coalition shall be valid except for those registered
inequitable situation where a new city or province under the party-list system.
created by Congress will be denied legislative 1. Political party Organized group of citizens
representation for an indeterminate period of time. advocating ideology or platform, principles and
(Mariano, Jr. v. COMELEC, G.R. No. 118577, March 7, policies for the general conduct of government
1995) and which, as the most immediate means of
securing their adoption, regularly nominates and
Increase in membership of the HoR supports certain of its leaders and members as
candidate in public office. (Bayan Muna v.
The Constitution does not preclude Congress from COMELEC, G.R. No. 147612, June 28, 2001)
increasing its membership by passing a law, other than 2. National party Its constituency is spread over
a general re-apportionment law. Thus, a law the geographical territory of at least a majority of
converting a municipality into a highly-urbanized city regions.
automatically creates a new legislative district and, 3. Regional party Its constituency is spread over
consequently, increases the membership of the HoR. the geographical territory of at least a majority of
(Mariano, Jr. v. COMELEC, G.R. No. 118577, March 7, the cities and provinces comprising the region.
1995) 4. Sectoral party Organized group of citizens
belonging to any of the following sectors: labor,
Gerrymandering peasant, fisherfolk, urban poor, indigenous,
cultural communities, elderly, handicapped,
Formation of one legislative district out of separate women, youth, veterans, overseas workers and
territories for the purpose of favoring a candidate or a professionals, whose principal advocacy pertains
party. It is not allowed because the Constitution to the special interest and concerns of their
provides that each district shall comprise, as far as sectors.
practicable, contiguous, compact and adjacent 5. Sectoral Organization Refers to a group of
territory. citizens who share similar physical attributes or
characteristics, employment, interest or
Party-list system concerns.
6. Coalition Refers to an aggregation of duly
Mechanism of proportional representation in the registered national, regional, sectoral parties or
election of representatives to the HoR from national, organizations for political and/or election
regional and sectoral parties or organizations or purposes.
coalitions thereof registered with the COMELEC.
Q: Is the party-list system solely for the benefit of
NOTE: Party-list representatives shall constitute 20% of the sectoral parties?
total number of representatives in the HoR. (Sec. 5, par. 2,
Art. VI, 1987 Constitution)
A: No. Sec. 5(1), Art. VI of the Constitution is crystal-
clear that there shall be a party-list system of
Purpose of the party-list system
negistered national, regional, and sectoral parties or
organizations. The commas after the words national
The partylist system intends to make the marginalized
(,) and regional (,) separate national and regional
and the underrepresented not merely passive
parties from sectoral parties. Had the framers of the
recipients of the States benevolence, but active
1987 Constitution intended national and regional
participants in the mainstream of representative
parties to be at the same time sectoral, they would

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25 FACULTY OF CIVIL LAW
Political and International Law

have stated national and regional sectoral parties. Q: Can sectoral wings of major political parties
They did not, precisely because it was never their participate in the party-list election?
intention to make the party-list system exclusively
sectoral. A: Yes. The participation of major political parties
through their sectoral wings, a majority of whose
What the framers intended, and what they expressly members are marginalized and underrepresented or
wrote in Sec. 5(1), could not be any clearer: the party- lacking in well-defined political constituencies, will
list system is composed of three different groups, and facilitate the entry of the marginalized and
the sectoral parties belong to only one of the three underrepresented and those who lack well-defined
groups. The text of Sec. 5(1) leaves no room for any political constituencies as members of the HoR.
doubt that national and regional parties are separate (Atong Paglaum, Inc. v. COMELEC, G.R. 203766, April
from sectoral parties. (Atong Paglaum, Inc. v. 2, 2013)
COMELEC, G.R. 203766, April 2, 2013)
Qualifications of party-list nominees
Composition of the party-list system
A party-list nominee must be a bona fide member of
(1) National parties or organizations; (2) Regional the party or organization which he or she seeks to
parties or organizations; and (3) Sectoral parties or represent. In the case of sectoral parties, to be a bona
organizations. National and regional parties or fide party-list nominee one must either belong to the
organizations are different from different parties or sector represented, or have a track record of advocacy
organizations. National and regional parties or for such sector. (Atong Paglaum, Inc. v. COMELEC, G.R.
organizations need not be organized along sectoral 203766, April 2, 2013)
lines and need not represent any particular sector.
(Atong Paglaum, Inc. v. COMELEC, G.R. 203766, April Guidelines in determining who may participate in the
2, 2013) party-list elections

Q: Does the party-list law require national and 1. Three different groups may participate in the
regional parties or organizations to represent the party-list system:
marginzalized and underrepresented sectors? a. National parties or organizations;
b. Regional parties or organizations; and
A: No. To require all national and regional parties c. Sectoral parties or organizations.
under the party-list system to represent the 2. National parties or organizations and regional
marginalized and underrepresented is to deprive parties or organizations do not need to organize
and exclude, by judicial fiat, ideology-based and cause- along sectoral lines neither represent any
oriented parties from the party-list system. How will marginalized and underrepresented sector.
these ideology-based and cause-oriented parties, who 3. All political parties must register under the party-
cannot win in legislative district elections, participate list system and do not field candidates in
in the electoral process if they are excluded from the legislative district elections. A political party,
party-list system? To exclude them from the party-list whether major or not, that fields candidates in
system is to prevent them from joining the legislative district elections can participate in
parliamentary struggle, leaving as their only option party-list elections only through its sectoral wing
armed struggle. To exclude them from the party-list that must separately register under the party-list
system is, apart from being obviously senseless, system. The sectoral wing is by itself an
patently contrary to the clear intent and express independent sectoral party; it is linked to a
wording of the 1987 Constitution and RA 27941. political party through a coalition.
(Atong Paglaum, Inc. v. COMELEC, G.R. 203766, April 4. Sectoral parties or organizations may either be
2, 2013) marginalized and underrepresented or lacking
in well-defined political constituencies. It is
NOTE: Major political parties cannot participate in the party- enough that their principal advocacy pertains to
list elections since they neither lack well-defined political the special interests and concerns of their sector.
constituencies nor represent marginalized and
underrepresented sectors (Atong Paglaum, Inc. v. NOTE: The sectors that are marginalized and
COMELEC, G.R. 203766, April 2, 2013) underrepresented include labor, peasant, fisherfolk,
urban poor, indigenous cultural communities,
handicapped, veterans, and overseas workers.

The sectors that lack well-defined political

UNIVERSITY OF SANTO TOMAS


2014 GOLDEN NOTES 26
LEGISLATIVE DEPARTMENT
constituencies include professionals, the elderly, party-list groups in question. (Bantay RA 7941 v. COMELEC,
women, and the youth. G.R. No. 177271; G.R. No. 177314, May 4, 2007)

5. A majority of the members of sectoral parties or Effect of the change in affiliation of any party-list
organizations that represent the marginalized ad representative
underrepresented or those representing parties
or organizations that lack well-defined political Any elected party-list representative who changes his
constituencies must belong to the sector they party-list group or sectoral affiliation during his term
respectively represent. of office shall forfeit his seat; provided that if he
6. The nominees of sectoral parties or organizations changes his political party or sectoral affiliation within
that represent the marginalized and 6 months before an election, he shall not be eligible
underrepresented or that represent those who for nomination as party-list representative under his
lack well-defined political constituencies, either new party or organization. (Amores v. HRET, G.R. No.
must belong to their respective sectors, or must 189600, June29, 2010)
have a track record of advocacy for their
respective sectors. NOTE: In case of vacancy in the seat reserved for party-list
7. The nominees of national and regional parties or representatives, it shall be automatically occupied by the
organizations must be bona-fide members of their next representative from the list of nominees in the order
respective parties or organizations. submitted by the same party to the COMELEC and such
representative shall serve for the unexpired term. If the list
8. National, regional, and sectoral parties or
is exhausted, the party, organization, or coalition concerned
organizations shall not be disqualified if some of
shall submit additional nominees.
their nominees are disqualified, provided that
they have at least one nominee who remains Formula mandated by the Constitution in
qualified. (Atong Paglaum, Inc. v. COMELEC, G.R. determining the number of party-list representatives
203766, April 2, 2013)
The House of Representatives shall be composed of
Q: Who shall be voted in a party-list election? not more than 250 members, unless otherwise fixed
by law. (Sec. 5, par. 1, Art. VI, 1987 Constitution)
A: The registered national, regional, or sectoral party-
list groups or organizations and not their candidates. The number of seats available to party-list
representatives is based on the ratio of party-list
Q: Who are elected into office in a party-list election? representatives to the total number of
representatives. Accordingly, we compute the number
A: It is the party-list representatives who are elected of seats available to party-list representatives from the
into office, not their parties or organizations. (Abayon number of legislative districts.
v. HRET, G.R. No. 189466, February 11, 2010)
Number of
Qualifications of a party-list nominee seats available
to legislative Number of seats
districts
0.20 = available to party-list
1. Natural- born citizen of the Philippines; 0.8
representatives
2. Registered voter; ( )
3. Resident of the Philippines for at least 1 year
immediately preceding the day of the election; The above formula allows the corresponding increase
4. Able to read and write; in the number of seats available for party-list
5. Bona fide member of the party or organization representatives whenever a legislative district is
which he seeks to represent at least 90 days created by law.
preceding election day;
6. At least 25 years of age. (For youth sector After prescribing the ratio of the number of party-list
nominees, at least 25 years and not more than 30 representatives to the total number of
years of age) representatives, the Constitution left the manner of
allocating the seats available to party-list
NOTE: There is absolutely nothing in RA 7941 that prohibits representatives to the wisdom of the legislature.
COMELEC from disclosing or even publishing through any
(BANAT v. COMELEC, G.R. No. 179271, April 21, 2009)
medium other than the Certified List the names of the
party-list nominees. As may be noted, no national security or
like concerns is involved in the disclosure of the names of the

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27 FACULTY OF CIVIL LAW
Political and International Law

Guidelines in the allocation of seats for party-list sectoral parties, organizations or coalitions under the
representatives under Sec. 11 of RA 7941 party-list system.

1. The parties, organizations, and coalitions shall be Its basic defect lies in its characterization of the non-
ranked from the highest to the lowest based on participation of a party-list organization in an election
the number of votes they garnered during the as similar to a failure to garner the 2% threshold party-
elections. list vote. What Minero effectively holds is that a party
2. The parties, organizations, and coalitions list organization which does not participate in an
receiving at least 2% of the total votes cast for the election necessarily gets, by default, less than 2% of
party-list system shall be entitled to one the party-list votes. To be sure, this is a confused
guaranteed seat each. interpretation of the law, given the laws clear and
3. Those garnering sufficient number of votes, categorical language and the legislative intent to treat
according to the ranking in paragraph 1, shall be the two scenarios differently. Minero did unnecessary
entitled to additional seats in proportion to their violence to the language of the law, the intent of the
total number of votes until all the additional seats legislature, and to the rule of law in general.
are allocated.
4. Each party, organization, or coalition shall be Clearly, the Court cannot allow PGBI to be prejudiced
entitled to not more than 3 seats. by the continuing validity of an erroneous ruling. Thus,
the Court now abandons Minero and strikes it out from
NOTE: In computing the additional seats, the guaranteed our ruling case law. (Philippine Guardians
seats shall no longer be included because they have already Brotherhood, Inc. [PGBI] v. COMELEC, G.R. No. 190529,
been allocated at one seat each to every two percent. Thus, April 29, 2010)
the remaining available seats for allocation as additional
seats are the maximum seats reserved under the party-list
system less the guaranteed seats. Fractional seats are
LEGISLATIVE PRIVILEGES, INHIBITIONS AND
disregarded in the absence of a provision in RA 7941 allowing DISQUALIFICATIONS
for a rounding off of fractional seats. (BANAT v. COMELEC,
G.R. No. 179271, April21, 2009) Immunity from arrest

Status of the 2% threshold as regards the allocation Grants the legislators the privilege from arrest while
of additional seats Congress is in session with respect to offenses
punishable by more than 6 years of imprisonment.
It is not valid anymore. The Court strikes down the 2% (Sec. 11, Art. VI of 1987 Constitution)
threshold only in relation to the distribution of the
additional seats as found in the second clause of Sec. Purpose of parliamentary immunities
11 (b) of RA 7941. The 2% threshold presents an
unwarranted obstacle to the full implementation of It is not for the benefit of the officials; rather, it is to
Sec. 5(2), Art. VI of the Constitution and prevents the protect and support the rights of the people by
attainment of the broadest possible representation ensuring that their representatives are doing their jobs
of party, sectoral or group interests in the House of according to the dictates of their conscience. It is
Representatives. (BANAT v. COMELEC, G.R. No. indispensable no matter how powerful the offended
179271, April 21, 2009) party is.

NOTE: The 2% threshold is constitutional insofar as the Q: May a congressman who committed an offense
determination of the guaranteed seat is concerned. punishable for less than 6 years, but is not attending
the session, be arrested?
Q: Is the Philippine Mines Safety Environment
Association v. COMELEC ruling, also known as the A: No. So long as he is an incumbent congressman and
Minero Ruling, providing that a party-list so long as Congress is in session, whether or not he is
organization that does not participate in an election attending it, he shall be immune from arrest. (People
necessarily gets, by default, less than 2% of the party- v. Jalosjos, G.R. Nos. 132875-76, February 3, 2000)
list votes, a valid application of RA 7941?
Q: Can a senator-lawyer be disbarred or disciplined
A: No. The Minero Ruling is an erroneous application by the Supreme Court for statements made during a
of Sec. 6(8) of RA 7941 [also known as the Party-List privilege speech?
System Act]. Hence, it cannot sustain PGBIs delisting
from the roster of registered national, regional or

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2014 GOLDEN NOTES 28
LEGISLATIVE DEPARTMENT

A: No. Indeed, the senator-lawyers privilege speech is Corrupt Practices Act?


not actionable criminally or be subject to a disciplinary
proceeding under the Rules of Court. The Court, A: Yes. The accused cannot validly argue that only his
however, would be remiss in its duty if it let the peers in the HoR can suspend him because the court-
Senators offensive and disrespectful language that ordered suspension is a preventive measure that is
definitely tended to degrade the institution pass-by. It different and distinct from the suspension ordered by
is imperative on the Courts part to re-instill in his peers for disorderly behaviour which is a penalty.
Senator/Atty. Santiago her duty to respect courts of (Paredes, Jr. v. Sandiganbayan, G.R. No. 118354,
justice, especially this Tribunal, and remind her anew August 8, 1995)
that parliamentary non-accountability thus granted to
members of Congress is not to protect them against Requirements for the privilege of speech and debate
prosecutions for their own benefit, but to enable to operate
them, as the peoples representatives, to perform the
functions of their office without fear of being made 1. The remarks must be made while the legislature
responsible before the courts or other forums outside or the legislative committee is functioning, that is,
the congressional hall. It is intended to protect in session;
members of congress against government pressure 2. They must be made in connection with the
and intimidation aimed at influencing the decision- discharge of official duties.
making prerogatives of Congress and its members.
(Pobre v. Sen. Defensor-Santiago, A.C. No. 7399, Coverage of speech or debate
August 25, 2009)
It includes utterances made by Congressmen in the
Q: Is Congress considered in session during a recess? performance of their official functions, such as
speeches delivered, statements made, or votes cast in
A: No. It is not in session. During a recess, a the halls of Congress, while the same is in session, as
congressman who has committed an offense well as bills introduced in Congress, whether the same
punishable by not more than 6 years imprisonment is in session or not, and other acts performed by
may be arrested. Congressmen, either in Congress or outside the
premises housing its offices, in the official discharge of
Inapplicability of immunity to searches their duties as members of Congress and of
Congressional Committees duly authorized to perform
The Constitution provides only a privilege from arrest its functions as such, at the time of the performance of
in order to ensure the attendance of Congressmen. the acts in question. (Jimenez v. Cabangbang, G.R. No.
L-15905, August 3, 1966)
Legislative privilege
NOTE: The purpose of the privilege is to ensure the effective
Provides that no member shall be questioned or held discharge of functions of Congress. The privilege may be
liable in any forum other than his respective abused but it is said that such is not so damaging or
detrimental as compared to the denial or withdrawal of such
Congressional body for any debate or speech in
privilege.
Congress or in any committee thereof. (Sec. 11, Art. VI;
Pobre v. Sen. Santiago, A.C.No, 7399, August 25, 2009)
Prohibitions attached to a legislator during his term
Limitations on legislative privilege
1. Incompatible office No senator or member of
the HoR may hold any other office or employment
1. Protection is only against the forum other than
in the Government, or any subdivision, agency, or
the Congress itself. Thus, for defamatory remarks,
instrumentality thereof, including government
which are otherwise privileged, a member may be
owned and controlled corporations or their
sanctioned by either the Senate or the HoR as the
subsidiaries during his term without forfeiting his
case may be.
seat. (Sec. 13, Art.VI)
2. The speech or debate must be made in
performance of their duties as members of
NOTE: Forfeiture of the seat in Congress shall be
Congress. automatic upon the members assumption of such
other office deemed incompatible with his seat in
Q: Can the Sandiganbayan order the preventive Congress. However, no forfeiture shall take place if the
suspension of a Member of the HoR being prosecuted member of Congress holds the other government office
criminally for the violation of the Anti-Graft and in an ex-officio capacity.

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2. Forbidden office Neither shall a senator or a Legislators cannot be If the office was created or
member of the House of Representatives be appointed to any office. the emoluments thereof
appointed to any office which may have been (Sec. 13, Art. VI) increased during the term
created or the emoluments thereof increased for which he was elected.
during the term for which he was elected. (Sec. 13, (Sec. 13, Art. VI)
Art. VI) Legislators cannot During his term of office.
personally appear as
NOTE: With this, even if the member of the Congress is counsel before any
willing to forfeit his seat therein, he may not be court of justice,
appointed to any office in the government that has electoral tribunal, quasi-
been created or the emoluments thereof have been
judicial and
increased during his term. Such a position is forbidden
office. The purpose is to prevent trafficking in public administrative bodies.
office. The provision does not apply to elective offices. (Sec. 14, Art. VI)
Legislators cannot be During his term of office.
The appointment of the member of the Congress to the financially interested
forbidden office is not allowed only during the term for directly or indirectly in
which he was elected, when such office was created or any contract with or in
its emoluments were increased. After such term, and any franchise, or special
even if the legislator is re-elected, the disqualification
privilege granted by the
no longer applies and he may therefore be appointed to
the office.
Government, or any
subdivision agency or
Rule on increase in salaries instrumentality thereof,
including the GOCC or
Increase in the salaries shall take effect until after the its subsidiary. (Sec. 14,
expiration of the full term of all the members of the Art. VI)
Senate and the House of Representatives approving Legislators cannot When it is for his pecuniary
such increase. intervene in any matter benefit or where he may be
before any office of the called upon to act on
Particular inhibitions attached to the respective Govt. account of his office.
offices of Senators and Representatives (Sec. 14, Art. VI)

1. Senators and Representatives are prohibited from Disclosure of legislators of their assets, liabilities, and
personally appearing as counsel before any networth
court of justice or before the Electoral Tribunals,
or quasi-judicial or other administrative bodies. All members of the Senate and HoR shall, upon
(Sec. 14, Art. VI) assumption of office and as often thereafter as may be
2. Upon assumption of office, must make a full required by law, submit a declaration under oath of his
disclosure of financial and business interests. Shall assets, liabilities and net worth. (Sec. 12, Art. VI)
notify the House concerned of a potential conflict
in interest that may arise from the filing of a QUORUM AND VOTING MAJORITIES
proposed legislation of which they are authors.
(Sec. 12, Art. VI) Quorum

Disqualifications attached to Senators and Such number which enables a body to transact its
Representatives offices and their applications busines and gives such body the power to pass a law
or ordinance or any valid act that is binding.
DISQUALIFICATION WHEN APPLICABLE
NOTE: In computing quorum, members who are outside the
Cannot hold any other During his term. If he does
country and, thus, outside of each Houses jurisdiction are
office or employment in so, he forfeits his seat. (Sec.
not included. The basis for determining the existence of a
the Govt or any 13, Art. VI) quorum in the Senate shall be the total number of Senators
subdivision, agency, or who are within the coercive jurisdiction of the Senate.
instrumentality thereof, (Avelino v. Cuenco, G.R. No. L-2821, March 4, 1949)
including GOCCs or their
subsidiaries. (Sec. 13,
Art. VI)

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LEGISLATIVE DEPARTMENT

Effect if there is no quorum Instances when Congress votes by majority

In the absence of quorum, each House may adjourn INSTANCES WHEN NUMBER OF VOTES
from day to day and may compel the attendance of CONGRESS VOTES REQUIRED
absent members in such manner and under such Elect the Senate Majority vote of all its
penalties as each House may provide. President or House of respective members
Representatives (Sec. 16 [1])
NOTE: The members of the Congress cannot compel absent Speaker
members to attend sessions if the reason of absence is a Commission on Majority vote of all the
legitimate one. The confinement of a Congressman charged
Appointments ruling members (Sec. 18)
with a non-bailable offense is certainly authorized by law and
has constitutional foundations (People v. Jalosjos, G.R. No. Passing a law granting Majority of all the
132875-76, February 3, 2000) any tax exemption members of Congress
(Sec. 28 [4])
Majority vote
Instances when Congress votes other than majority
Pertains only to such number or quantity as may be
required to elect an aspirant as such. There is no INSTANCES WHEN NUMBER OF VOTES
indication that by such election, the Houses are CONGRESS VOTES REQUIRED
already divided into the majority camp and the To suspend or expel a 2/3 of all its members
minority camp. Majority refers to more than half of the
member in accordance (Sec. 16, Par. 3, Art. VI)
total or aggregate. Although the Constitution provides
with its rules and
that the Speaker and the Senate President shall be proceedings
elected by a majority of all members, the Constitution
To enter the Yeas and 1/5 of the members
does not provide that those who will not vote for the
nays in the Journal present
winner (by majority vote) are ipso facto the minority
(Sec. 16, Par. 4,
who can elect the minority leader.
Art. VI)
To declare the 2/3 of both houses in
Majority vote refers to the political party with the
existence of a state of joint session voting
most number of backings; refer to the party, faction or
war separately
organization with the number of votes but not
(Sec. 23, Art. VI)
necessarily more than one half (plurality). (Santiago v.
Guingona, G.R. No. 134577, November 18, 1998)
Non-intervention of courts in the implementation of
Instances when Congress is voting separately and the internal rules of Congress
voting jointly
As part of their inherent power, Congress can
SEPARATE JOINT determine their own rules. Hence, the courts cannot
- Choosing the - When revoking or intervene in the implementation of these rules insofar
President in case of extending the as they affect the members of Congress (Osmea v.
a tie (Sec. 4, Art. VII) proclamation Pendatun, G.R. No L-17144, October 28, 1960)
- Determining suspending the
Presidents disability privilege of writ Elected officers of Congress
(Sec. 11, Art. VII) of habeas corpus
- Confirming (Sec. 18, Art. VII) 1. Senate President
nomination of Vice- - When revoking or 2. Speaker of the House
President (Sec. 9, extending the 3. Such officers as deemed by each house to be
Art. VI) declaration of necessary
- Declaring the martial law
existence of a state (Sec. 18, Art. VII) Vote required in election of officers
of war in joint
session (Sec. 23, Art. Majority vote of all respective members. (Sec.16, par.
VI) 1, Art. VI)
- Proposing
Constitutional
amendments
(Sec. 1, Art. XVII)

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Regular session of Congress DISCIPLINE OF MEMBERS

Congress convenes once every year on the 4th Monday Disciplinary power of Congress
of July, unless otherwise provided for by law. It
continues in session for as long as it sees fit, until 30 Each house may punish its members for disorderly
days before the opening of the next regular session, behavior and, with concurrence of 2/3 of all its
excluding Saturdays, Sundays, and legal holidays. (Sec. members, suspend, for not more than 60 days, or
15, Art. VI) expel a member. (Sec. 16, par. 3, Art. VI)

Instances when there are special sessions Determination of disorderly behavior

1. Due to vacancies in the offices of the President It is the prerogative of the House concerned and
and Vice President at 10 oclock a.m. on the third cannot be judicially reviewed. (Osmea v. Pendatun,
day after the vacancies (Sec. 10, Art. VI) G.R. No. L-17144, October 28, 1960)
2. To decide on the disability of the President
because a majority of all the members of the NOTE: Members of Congress may also be suspended by the
cabinet have disputed his assertion that he is Sandiganbayan or by the Office of the Ombudsman. The
able to discharge the powers and duties of his suspension in the Constitution is different from the
office (Sec. 11, Art. VII) suspension prescribed in RA 3019, Anti-Graft and Corrupt
Practices Act. The latter is not a penalty but a preliminary
3. To revoke or extend the Presidential Proclamation
preventive measure and is not imposed upon the petitioner
of Martial Law or suspension of the privilege of for misbehaviour as a member of Congress. (Santiago v.
the writ of habeas corpus (Sec. 18, Art. VII) Sandiganbayan, G.R. No. 128055, April 18, 2001)
4. Called by the President at any time when Congress
is not in session (Sec. 15, Art. VI) ELECTORAL TRIBUNAL AND THE
5. To declare the existence of a state of war in a joint COMMISSION ON APPOINTMENTS
session, by vote of 2/3rds of both Houses (Sec. 23,
par. 1, Art. VI) Composition of the Electoral Tribunal (ET)
6. When the Congress acts as the Board of
Canvassers for the Presidential and Vice- 1. 3 Supreme Court Justices designated by the Chief
Presidential elections (Sec. 4, Art. VII) Justice;
7. During impeachment proceedings (Sec. 3, par. 4 2. 6 members of the Chamber concerned (Senate or
and 6, Art. XI) HoR) chosen on the basis of proportional
representation from the political parties and
Mandatory recess parties registered under the party-list system (Sec.
17, Art. VI).
The 30-day period prescribed before the opening of
the next regular session, excluding Saturdays, NOTE: The senior Justice in the Electoral Tribunal shall be its
Sundays, and legal holidays. This is the minimum chairman.
period of recess and may be lengthened by the
Congress in its discretion. It may however, be called in Jurisdiction of the ETs
special session at any time by the President. (Sec. 15,
Art. VI) Each electoral tribunal shall be the sole judge of all
contests relating to the election, returns, and
Rule on Adjournment qualifications of their respective members (Sec. 17,
Art. VI). This includes determining the validity or
Neither House during the sessions of the Congress invalidity of a proclamation declaring a particular
shall, without the consent of the other, adjourn for candidate as the winner. Each ET is also vested with
more than 3 days, nor to any other place than that in rule-making power. (Lazatin v. HRET, G.R. No. L-84297,
which the two Houses shall be sitting. (Sec. 16, par. 5, December 8, 1988)
Art. VI)
It is independent of the Houses of Congress and its
Adjournment sine die decisions may be reviewed by the Supreme Court only
upon showing of grave abuse of discretion.
An interval between the session of one Congress and
that of another.

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2014 GOLDEN NOTES 32
LEGISLATIVE DEPARTMENT

Electoral contest Power of each House over its members in the absence
of election contest
Where a defeated candidate challenges the
qualification and claims for himself the seat of the The power of each House to expel its members or even
proclaimed winner. In the absence of an election to defer their oath-taking until their qualifications are
contest, ET is without jurisdiction. determined may be exercised even without an
election contest.
NOTE: Once a winning candidate has been proclaimed, taken
his oath, and assumed office as a member of the HoR, Q: Imelda ran for HoR. A disqualification case was
COMELECs jurisdiction over election contests relating to his filed against her on account of her residence. The
election, returns, and qualification ends, and the HRETs own
case was not resolved before the election. Imelda
jurisdiction begins. The phrase election, returns, and
won the election. However, she was not proclaimed.
qualifications should be interpreted in its totality as
referring to all matters affecting the validity of the Imelda now questions the COMELECs jurisdiction
contestees title. (Vinzons-Chato v. COMELEC, G.R. No. over the case. Does the COMELEC have jurisdiction
172131, April 2, 2007) over the case?

Q: Gemma ran for Congresswoman of Muntinlupa in A: Yes. HRETs jurisdiction as the sole judge of all
the May 2013 elections. However, before the contests relating to elections, etc. of members of
elections, the COMELEC cancelled her CoC after Congress begins only after a candidate has become a
hearing a complaint filed against her. Later, she was member of the HoR. Since Imelda has not yet been
declared winner as Congresswoman of Muntinlupa. proclaimed, she is not yet a member of the HoR. Thus,
She has not yet taken her Oath of Office and has not COMELEC retains jurisdiction. (Romualdez-Marcos v.
assumed her office as Congresswoman. COMELEC, G.R. No. 119976, September 18, 1995)
Subsequently, COMELEC issued a certificate of
finality on its earlier resolution cancelling Gemmas Q: Does the HRET have the authority to pass upon the
COC. Gemma comes before the Court arguing that eligibilities of the nominees of the party-list groups
COMELEC has lost jurisdiction over the case and it is that won in the lower house of Congress?
the HRET that has jurisdiction as she is already
declared a winner. Is Gemmas contention tenable? A: Yes. By analogy with the cases of district
representatives, once the party or organization of the
A: No. The jurisdiction of the HRET begins only after party-list nominee has been proclaimed and the
the candidate is considered a Member of the House of nominee has taken his oath and assumed office as
Representatives, as stated in Sec. 17, Art. VI of the member of the HoR, the COMELECs jurisdiction over
1987 Constitution. To be considered a Member of the election contests relating to his qualifications ends and
House of Representatives, there must be a the HRETs own jurisdiction begins. (Abayon v. HRET,
concurrence of the following requisites: (1) a valid G.R. No. 189466, February 11, 2010)
proclamation, (2) a proper oath, and (3) assumption of
office. Valid grounds or just causes for termination of
membership to the tribunal
In this case, Gemma cannot be considered a Member
of the House of Representatives because, primarily, 1. Expiration of Congressional term of Office
she has not yet assumed office. To repeat what has 2. Death or permanent disability
earlier been said, the term of office of a Member of the 3. Resignation from the political party he represents
House of Representatives begins only at noon on the in the tribunal
thirtieth day of June next following their election. 4. Formal affiliation with another political party
Thus, until such time, the COMELEC retains 5. Removal from office for other valid reasons
jurisdiction. Consequently, before there is a valid or (Bondoc v. Pineda, G.R. No. 97710, September 26,
official taking of the oath it must be made (1) before 1991)
the Speaker of the House of Representatives, and (2)
in open session. Here, although she made the oath Q: Can the ET meet when Congress is not in session?
before Speaker Belmonte, there is no indication that it
was made during plenary or in open session and, thus, A: Yes. Unlike the Commission on Appointments, the
it remains unclear whether the required oath of office ET shall meet in accordance with their rules, regardless
was indeed complied with. (Ongsiako Reyes v. of whether Congress is in session or not.
COMELEC, G.R. No. 207264, June 25, 2013)

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33 FACULTY OF CIVIL LAW
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ET as the sole judge Presidential appointments subject to confirmation by


the Commission
Sec. 17, Art. VI provides that the SET/HRET is the sole
judge of all contests. Hence, from its decision, there is 1. Heads of the Executive departments. (except if it
no appeal. Appeal is not a constitutional right but is the Vice-President who is appointed to the post)
merely a statutory right. 2. Ambassadors, other Public ministers, or Consuls
3. Officers of the AFP from the rank of colonel or
Remedy from an adverse decision of the ET naval captain
4. Other officers whose appointments are vested in
A special civil action for certiorari under Rule 65 of the him by the Constitution (i.e. COMELEC members)
Rules of Court may be filed. This is based on grave (Bautista v. Salonga, G.R. No. 86439, April 13,
abuse of discretion amounting to lack or excess of 1989)
jurisdiction. This shall be filed before the Supreme
Court. NOTE: The enumeration is exclusive.

Composition of the Commission on Appointments Rules on voting


(CA)
1. The CA shall rule by a majority vote of all the
1. Senate President as ex-officio chairman members.
2. 12 Senators 2. The chairman shall only vote in case of tie.
3. 12 members of the HoR (Sec. 18, Art. VI) 3. The CA shall act on all appointments within 30
session days from their submission to Congress
NOTE: A political party must have at least 2 elected senators (Sec. 18, Art. VI)
for every seat in the Commission on Appointments. Thus,
where there are two or more political parties represented in Limitations in the confirmation of such appointment
the Senate, a political party/coalition with a single senator in
the Senate cannot constitutionally claim a seat in the 1. Congress cannot by law prescribe that the
Commission on Appointments. It is not mandatory to elect
appointment of a person to an office created by
12 senators to the Commission; what the Constitution
such law be subject to confirmation by the
requires is that there must be at least a majority of the entire
membership. (Guingona, Jr. v. Gonzales, G.R. No. 106971, Commission.
October 20, 1992) 2. Appointments extended by the President to the
above-mentioned positions while Congress is not
Membership in the ET in session shall only be effective until disapproval
by the Commission or until the next adjournment
The members of the Commission shall be elected by of Congress. (Sarmiento III v. Mison, G.R. No. L-
each House on the basis of proportional 79974, December 17, 1987)
representation from the political party and party list.
Accordingly, the sense of the Constitution is that the Guidelines in the meetings of the Commission on
membership in the Commission on Appointments Appointments
must always reflect political alignments in Congress
and must therefore adjust to changes. It is understood 1. Meetings are held either at the call of the
that such changes in party affiliation must be Chairman or a majority of all its members.
permanent and not merely temporary alliances. 2. Since the Commission is also an independent
Endorsement is not sufficient to get a seat in COA. constitutional body, its rules of procedure are also
(Daza v. Singson, G.R. No. 86344, December 21, 1989) outside the scope of congressional powers as well
as that of the judiciary. (Bondoc v. Pineda, G.R. No.
NOTE: The provision of Sec. 18, Art. VI of the Constitution, 97710, September 26, 1991)
on proportional representation is mandatory in character
and does not leave any discretion to the majority party in the NOTE: The ET and the CA shall be constituted within 30 days
Senate to disobey or disregard the rule on proportional after the Senate and the HoR shall have been organized with
representation; otherwise, the party with a majority the election of the Senate President and the Speaker of the
representation in the Senate or the HoR can by sheer force House.
of numbers impose its will on the hapless minority. By
requiring a proportional representation in the CA, Sec. 18 in
effect works as a check on the majority party in the Senate
and helps maintain the balance of power. No party can claim
more than what it is entitled to under such rule. (Guingona,
Jr. v. Gonzales, G.R. No. 105409, March 1, 1993)

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2014 GOLDEN NOTES 34
LEGISLATIVE DEPARTMENT

POWERS OF CONGRESS 3. Failure of the President to veto the bill and to


return it with his objections to the House where it
LEGISLATIVE originated, within 30 days after the date of receipt
4. A bill calling a special election for President and
Legislative powers of Congress Vice-President under Sec. 10. Art. VII becomes a
law upon its approval on the third reading and
1. General plenary power (Sec. 1, Art. VI) final reading
2. Specific power of appropriation
3. Taxation and expropriation
4. Legislative investigation
5. Question hour

Legislative power

The power or competence of the legislative to


propose, enact, ordain, amend/alter, modify, abrogate
or repeal laws. It is vested in the Congress which shall
consist of a Senate and a House of Representatives,
except to the extent reserved to the people by the
provision on initiative and referendum.

Doctrine of Shifting Majority

For each House of Congress to pass a bill, only the


votes of the majority of those present in the session,
there being a quorum, is required.

Rules regarding the passage of bills

1. No bill passed by either House shall become a law


unless it has passed three readings on separate
days.
2. Printed copies of the bill in its final form should be
distributed to the Members 3 days before its
passage (except when the President certifies to
the necessity of its immediate enactment to meet
a public calamity or emergency)
3. Upon the last reading of a bill, no amendment
thereto shall be allowed.
4. The vote on the bill shall be taken immediately
after the last reading of a bill.
5. The yeas and the nays shall be entered in the
Journal.

XPN: The certification of the President dispenses


with the reading on separate days and the printing
of the bill in the final form before its final
approval. (Tolentino v. Secretary of Finance, G.R.
No. 115455, October 30, 1995)

Instances when a bill becomes a law

1. Approved and signed by the President


2. Presidential veto overridden by 2/3 vote of all
members of both Houses

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35 FACULTY OF CIVIL LAW
Political and International Law

LEGISLATIVE INQUIRIES AND OVERSIGHT the power to impose such penalty is the right to
FUNCTIONS self-preservation. And such right is enforceable
only during the existence of the legislature. (Lopez
Basis v. Delos Reyes, G.R. No. L-3436, November 5,
1930)
The Senate or the House of Representatives or any of 6. Congress may no longer inquire into the same
its respective committees may conduct inquiries in aid justiciable controversy already before the court.
of legislation in accordance with its duly published (Bengzon v. Blue Ribbon Committee, G.R. No.
rules of procedure. The rights of persons appearing in, 89914, November 20, 1991)
or affected by, such inquiries shall be respected. (Sec.
21, Art. VI of the 1987 Constitution) Q: Sen. Jogie Repollo accused the Vice Chairman of
the Standard Chartered Bank of violating the
Scope of the subject matter of the power to conduct Securities Regulation Code for selling unregistered
inquiries in aid of legislation foreign securities. This has led the Senate to conduct
investigation in aid of legislation. SCB refused to
Indefinite. The field of legislation is very wide as attend the investigation proceedings on the ground
compared to that of the American Congress. And that criminal and civil cases involving the same issues
because of such, the field of inquiry is also very broad. were pending in courts. Decide.
It may cover administrative inquiries, social, economic,
political problem (inquiries), discipline of members, A: The mere filing of a criminal or an administrative
etc. Suffice it to say that it is co-extensive with complaint before a court or a quasi-judicial body
legislative power. (Arnault v. Nazareno, G.R. No. L- should not automatically bar the conduct of legislative
3820, July 18, 1950) investigation. Otherwise, it would be extremely easy
to subvert any intended inquiry by Congress through
NOTE: In aid of legislation does not mean that there is the convenient ploy of instituting a criminal or an
pending legislation regarding the subject of the inquiry. In administrative complaint. Surely, the exercise of
fact, investigation may be needed for purposes of proposing sovereign legislative authority, of which the power of
future legislation. legislative inquiry is an essential component, cannot
be made subordinate to a criminal or an administrative
If the stated purpose of the investigation is to determine the
existence of violations of the law, the investigation is no
investigation. (Standard Chartered Bank v. Senate,
longer in aid of legislation but in aid or prosecution. This G.R. No. 167173, December 27, 2007)
violates the principle of separation of powers and is beyond
the scope of Congressional powers. Distiction between Standard Chartered Bank v.
Senate and Bengzon v. Senate Blue Ribbon
Limitations on legislative investigation Committee

1. Under Sec. 21, Art. VI, the persons appearing in or It is true that in Bengzon, the Court declared that the
affected by such legislative inquiries shall be issue to be investigated was one over which
respected. jurisdiction had already been acquired by the
2. The Rules of procedures to be followed in such Sandiganbayan, and to allow the [Senate Blue Ribbon]
inquiries shall be published for the guidance of Committee to investigate the matter would create the
those who will be summoned. This must be strictly possibility of conflicting judgments; and that the
followed so that the inquiries are confined only to inquiry into the same justiciable controversy would be
the legislative purpose. This is also to avoid an encroachment on the exclusive domain of judicial
abuses. jurisdiction that had set in much earlier.
3. The investigation must be in aid of legislation.
4. Congress may not summon the President as To the extent that, in the case at bench, there are a
witness or investigate the latter in view of the number of cases already pending in various courts and
doctrine of separation of powers except in administrative bodies involving the petitioners,
impeachment cases. relative to the alleged sale of unregistered foreign
securities, there is a resemblance between this case
NOTE: It is the Presidents prerogative, whether to and Bengzon. However, the similarity ends there.
divulge or not the information, which he deems
confidential or prudent in the public interest. Central to the Courts ruling in Bengzon -- that the
Senate Blue Ribbon Committee was without any
5. Congress may no longer punish the witness in constitutional mooring to conduct the legislative
contempt after its final adjournment. The basis of

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LEGISLATIVE DEPARTMENT

investigation -- was the Courts determination that the Question hour v. Legislative investigation
intended inquiry was not in aid of legislation. The
Court found that the speech of Senator Enrile, which LEGISLATIVE
QUESTION HOUR
sought such investigation, contained no suggestion of INVESTIGATION
(SEC. 22, ART. VI,
any contemplated legislation; it merely called upon (SEC. 21, ART. VI,
1987 CONSTITUTION)
the Senate to look into possible violations of Sec. 5, RA 1987 CONSTITUTION)
No. 3019. Thus, the Court held that the requested As to persons who may appear
probe failed to comply with a fundamental
requirement of Sec. 21, Art. VI of the Constitution. Only a department head Any person
(Standard Chartered Bank v. Senate, G.R. No. 167173, As to who conducts the investigation
December 27, 2007)
Entire body Committees/Entire Body
Contempt powers of Congress As to subject matter
Matters related to the Any matter for the purpose
Even if the Constitution only provides that Congress department only of legislation
may punish its members for disorderly behavior or
expel the same, it is not an exclusion of power to hold
Oversight power of the Congress
other persons in contempt.

NOTE: Congress has the inherent power to punish Embraces all activities undertaken by Congress to
recalcitrant witnesses for contempt, and may have them enhance its understanding of and influence over the
incarcerated until such time that they agree to testify. The implementation of legislation it has enacted. It
continuance of such incarceration only subsists for the concerns post-enactment measures undertaken by
lifetime, or term, of such body. Thus, each House lasts for Congress. (Concurring and Dissenting Opinion of
only 3 years. But if one is incarcerated by the Senate, it is Justice Puno, Macalintal v. COMELEC, G.R. No. 157013,
indefinite because the Senate, with its staggered terms as an July 10, 2003)
instuitution, is a continuing body.
Scope of the power of oversight
Legislative contempt vis--vis pardoning power of the
president 1. Monitor bureaucratic compliance with program
objectives;
Legislative contempt is a limitation on the Presidents 2. Determine whether agencies are properly
power to pardon by virtue of the doctrine of administered;
separation of powers. 3. Eliminate executive waste and dishonesty;
4. Prevent executive usurpation of legislative
Question Hour authority; and
5. Assess executive conformity with the
Where the heads of departments may, upon their own congressional perception of public interest.
initiative, with the consent of the President, or upon (Concurring and Dissenting Opinion of Justice
the request of either House, as the rules of each House Puno, Macalintal v. COMELEC, G.R. No. 157013,
shall provide, appear before and be heard by such July 10, 2003)
House on any matter pertaining to their departments.
Written questions shall be submitted to the President Bases of oversight power of Congress
of the Senate or the Speaker of the HoR at least 3 days
before their scheduled appearance. Interpellations 1. Intrinsic in the grant of legislative power itself;
shall not be limited to written questions, but it may 2. Integral to the system of checks and balances; and
cover matters related thereto. When the security of 3. Inherent in a democratic system of government.
the State or the public interest so requires and the
President so states in writing, the appearance shall be Categories of Congressional Oversight Functions
conducted in executive session (Sec. 22, Art. VI)
1. Scrutiny Implies a lesser intensity and
continuity of attention to administrative
operations. Its primary purpose is to determine
economy and efficiency of the operation of
government activities. In the exercise of
legislative scrutiny, Congress may request
information and report from the other branches

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37 FACULTY OF CIVIL LAW
Political and International Law

of government. It can give recommendations or separation of powers. (ABAKADA Guro Party-list v.


pass resolutions for consideration of the agency Purisima, G.R. No. 166715, August 14, 2008)
involved. It is based primarily on the power of
appropriation of Congress. But legislative scrutiny Q: May the Senate be allowed to continue the
does not end in budget hearings. Congress can ask conduct of a legislative inquiry without a duly
the heads of departments to appear before and published rules of procedure?
be heard by either the House of Congress on any
matter pertaining to their department. Likewise, A: No. The phrase duly published rules of procedure
Congress exercises legislative scrutiny thru its requires the Senate of every Congress to publish its
power of confirmation to find out whether the rules of procedure governing inquiries in aid of
nominee possesses the necessary qualifications, legislation because every Senate is distinct from the
integrity and probity required of all public one before it or after it. (Garcillano v. House of
servants. Representatives Committee on Public Information,
2. Congressional Investigation Involves a more G.R. No. 170338, December 23, 2008)
intense digging of facts. It is recognized under Sec.
21, Art. VI. Even in the absence of constitutional Publication in the internet
mandate, it has been held to be an essential and
appropriate auxiliary to the legislative functions. The invocation of the Senators of the Provisions of
3. Legislative Supervision Connotes a continuing The Electronic Commerce Act of 2000, to support
and informed awareness on the part of their claim of valid publication through the internet is
congressional committee regarding executive all the more incorrect. The law merely recognizes the
operations in a given administrative area. It allows admissibility in evidence of electronic data messages
Congress to scrutinize the exercise of delegated and/or electronic documents. It does not make the
law-making authority, and permits Congress to internet a medium for publishing laws, rules and
retain part of that delegated authority. regulations. (Garcillano v. House of Representatives
Committee on Public Information, G.R. No. 170338,
Legislative veto December 23, 2008)

A statutory provision requiring the President or an Publication of the internal rules of Congress
administrative agency to present the proposed IRR of
a law to Congress which, by itself or through a The Constitution does not require publication of the
committee formed by it, retains a right or power internal rules of the House or Senate. Since rules of the
to approve or disapprove such regulations before they House or Senate affect only their members, such rules
take effect. As such, a legislative veto in the form of a need not be published, unless such rules expressly
congressional oversight committee is in the form of an provide for their publication before the rules can take
inward-turning delegation designed to attach a effect. (Pimentel, Jr., et al v. Senate Committee of the
congressional leash to an agency to which Congress Whole, G.R. No. 187714, March 8, 2011)
has by law initially delegated broad powers. It radically
changes the design or structure of the Constitutions Q: During a hearing of the Senate Committee of the
diagram of power as it entrusts to Congress a direct Whole, some proposed amendments to the Rules of
role in enforcing, applying or implementing its own the Ethics Committee that would constitute the Rules
laws. Thus, legislative veto is not allowed in the of the Senate Committee of the Whole were adopted.
Philippines. (ABAKADA Guro Party-list v. Purisima, G.R. Senator Sonia raised as an issue the need to publish
No. 166715, August 14, 2008) the proposed amended Rules of the Senate
Committee of the Whole, as directed by the amended
Q: Can Congress exercise discretion to approve or Rules itself. However, the Senate Committee of the
disapprove an IRR based on a determination of Whole proceeded without publication of the
whether or not it conformed to the law? amended Rules. Is the publication of the Rules of the
Senate Committee of the Whole required for their
A: No. In exercising discretion to approve or effectivity?
disapprove the IRR based on a determination of
whether or not it conformed to the law, Congress A: Yes. In this particular case, the Rules of the Senate
arrogated judicial power unto itself, a power Committee of the Whole itself provide that the Rules
exclusively vested in the Supreme Court by the must be published before the Rules can take effect.
Constitution. Hence, it violates the doctrine of Thus, even if publication is not required under the
Constitution, publication of the Rules of the Senate

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LEGISLATIVE DEPARTMENT

Committee of the Whole is required because the Rules A. In a bicameral system, bills are independently
expressly mandate their publication. xxx. To comply processed by both Houses of Congress. It is not
with due process requirements, the Senate must unusual that the final version approved by one House
follow its own internal rules if the rights of its own differs from what has been approved by the other.
members are affected. (Pimentel, Jr., et al v. Senate
Committee of the Whole, G.R. No. 187714, March 8, The conference committee, consisting of members
2011) nominated from both Houses, is an extra-
constitutional creation of Congress whose function is
Q: Is the Senate a continuing legislative body? to propose to Congress ways of reconciling conflicting
provisions found in the Senate version and in the
A: No. The present Senate under the 1987 Constitution House version of a bill. (Concurring and Dissenting
is no longer a continuing legislative body. The present Opinion, J. Callejo, Sr., G.R. No. 168056, September 1,
Senate has 24 members, twelve of whom are elected 2005)
every 3 years for a term of 6 years each. Thus, the term
of 12 Senators expires every 3 years, leaving less than Extent of the power of the Committee
a majority of Senators to continue into the next
Congress since the Rules of Procedure must be The conferees are not limited to reconciling the
republished by the Senate after every expiry of the differences in the bill but may introduce new
term of the 12 Senators. (Garcillano v. House of provisions germane to the subject matter or may
Representatives Committee on Public Information, et report out an entirely new bill on the subject.
al., G.R. No. 170338, December 23, 2008) (Tolentino v. Secretary of Finance, G.R. No, 115455,
August 25, 1994)
NOTE: There is no debate that the Senate as an institution is
"continuing", as it is not dissolved as an entity with each Scope of the powers of the Committee
national election or change in the composition of its
members. However, in the conduct of its day-to-day
1. Adopt the bill entirely
business the Senate of each Congress acts separately and
2. Amend or Revise
independently of the Senate of the Congress before it.
3. Reconcile the House and Senate Bills
Undeniably, all pending matters and proceedings, 4. Propose entirely new provisions not found in
i.e.unpassed bills and even legislative investigations, of the either the Senate or House bills
Senate of a particular Congress are considered terminated
upon the expiration of that Congress and it is merely optional LIMITATIONS ON LEGISLATIVE POWER
on the Senate of the succeeding Congress to take up such
unfinished matters, not in the same status, but as if Limitations on legislative powers
presented for the first time. The logic and practicality of such
a rule is readily apparent considering that the Senate of the
succeeding Congress (which will typically have a different Substantive
composition as that of the previous Congress) should not be 1. Express:
bound by the acts and deliberations of the Senate of which a. Bill of Rights (Art. III, 1987 Constitution)
they had no part. (Neri v. Senate Committee on b. On Appropriations (Secs. 25 and 29, pars. 1
Accountability of Public Officers and Investigations, GR. No. and 2, Art. VI)
180643, September 4, 2008) c. On Taxation (Secs. 28 and 29, par. 3, Art. VI)
d. On Constitutional appellate jurisdiction of SC
THE BICAMERAL CONFERENCE COMMITTEE (Sec. 30, Art. VI)
e. No law granting title of royalty or nobility
Purpose of the Bicameral Conference Committee shall be passed (Sec.31, Art. VI)
f. No specific funds shall be appropriated or
A Conference Committee is constituted and is paid for use or benefit of any religion, sect,
composed of Members from each House of Congress etc., except for priests, etc., assigned to AFP,
to settle, reconcile or thresh out differences or penal institutions, etc. (Sec. 29, par. 2, Art. VI)
disagreements on any provision of the bill. 2. Implied:
a. Prohibition against irrepealable laws
Q: If the version approved by the Senate is different b. Non-delegation of powers
from that approved by the HoR, how are the
differences reconciled? Procedural
1. Only one subject, to be stated in the title of the
bill. (Sec. 26, par. 1, Art. VI)

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2. Three (3) readings on separate days; printed expression or indication of the real subject or scope of
copies of the bill in its final form distributed to the act, is bad.
members 3 days before its passage, except if
President certifies to its immediate enactment to In determining sufficiency of particular title, its
meet a public calamity or emergency; upon its last substance rather than its form should be considered,
reading, no amendment allowed and the vote and the purpose of the constitutional requirement, of
thereon taken immediately and the yeas and nays giving notice to all persons interested, should be kept
entered into the Journal. (Sec.26, par. 2, Art. VI) in mind by the court. (Lidasan v. COMELEC, G.R. No. L-
3. Appropriation bills, revenue bills, tariff bills, bills 28089, October 25, 1967)
authorizing the increase of public debt, bills of
local application and private bills shall originate Q: How many readings must a bill undergo before it
exclusively in the House of Representatives. (Sec. may become a law?
24, Art. VI)
A: Each bill must pass 3 readings in both Houses. In
NOTE: During the First Reading, only the title of the bill is other words, there must be a total of 6 readings.
read and it is passed to the proper committee. On the
Second Reading, the entire text is read, debates and
GR: Each reading shall be held on separate days and
amendments are held. On the Third Reading, only the title is
printed copies thereof in its final form shall be
read, votes are taken immediately thereafter.
distributed to its Members, 3 days before its passage.
One bill-one subject rule
XPN: If a bill is certified as urgent by the President as
Every bill passed by the Congress shall embrace only to the necessity of its immediate enactment to
one subject. The subject shall be expressed in the title meet a public calamity or emergency, the 3 readings
of the bill. This rule is mandatory. can be held on the same day. (Sec. 26, Art. VI)

NOTE: The purposes of such rule are: (1) To prevent Reasons for the three readings on three separate
hodgepodge or log-rolling legislation; (2) To prevent surprise days rule
or fraud upon the legislature; and, (3) To fairly apprise the
people of the subjects of legislation. (Central Capiz v. 1. Address the tendency of legislators (on the last
Ramirez, G.R. No. 16197, March 12, 1920) day of the legislative year when legislators are
eager to go home)
Determination of the sufficiency of the title 2. Rush bills through
3. Insert alterations which would not otherwise
The Constitution does not require Congress to employ stand scrutiny in leisurely debate
in the title of an enactment, language of such precision
as to mirror, fully index or catalogue all the contents Appropriation bill
and the minute details therein. It suffices if the title
should serve the purpose of the constitutional demand Primarily made for the appropriation of sum of money
that it informs the legislators, the persons interested from the public treasury.
in the subject of the bill, and the public, of the nature,
scope and consequences of the proposed law and its Revenue bill
operation. And this, to lead them to inquire into the
body of the bill, study and discuss the same, take Specifically designed to raise money or revenue
appropriate action thereon, and, thus, prevent through imposition or levy.
surprise or fraud upon the legislators.
Bill of local application
The test of the sufficiency of a title is whether or not it
is misleading; and, which technical accuracy is not A bill limited to specific localities, such as for instance
essential, and the subject need not be stated in the creation of a town. Hence, it is one involving purely
express terms where it is clearly inferable from the local or municipal matters, like a charter of a city.
details set forth, a title which is so uncertain that the
average person reading it would not be informed of Private bills
the purpose of the enactment or put on inquiry as to
its contents, or which is misleading, either in referring Those which affect private persons, such as for
to or indicating one subject where another or different instance a bill granting citizenship to a specific
one is really embraced in the act, or in omitting any

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LEGISLATIVE DEPARTMENT

foreigner. They are illustrated by a bill granting Implied limitations on appropriation power
honorary citizenship to a distinguished foreigner.
1. Must specify public purpose;
LIMITATIONS ON APPROPRIATION, REVENUE, AND 2. Sum authorized for release must be determinate,
TARIFF MEASURES or at least determinable. (Guingona v. Carague,
G.R. No. 94571, April 22, 1991)
Constitutional limitations on the legislatives power
to enact laws on appropriation, revenue and tariff Constitutional limitations on special appropriations
(ART) measures measures

1. All appropriation, revenue or tariff bills, bills 1. Must specify public purpose for which the sum
authorizing increase of the public debt, bills of was intended;
local application, and private bills, shall originate 2. Must be supported by funds actually available as
exclusively in the House of Representatives, but certified by the National Treasurer or to be raised
the Senate may propose or concur with by corresponding revenue proposal included
amendments. (Sec. 24, Art. VI) therein. (Sec. 25, par. 4, Art. VI, 1987 Constitution)

NOTE: The initiative for filing of ART bills must come Constitutional rules on General Appropriations Laws
from the House, but it does not prohibit the filing in the
Senate of a substitute bill in anticipation of its receipt of 1. Congress may not increase appropriations
the bill from the House, so long as the action by the recommended by the President for the operations
Senate is withheld pending the receipt of the House bill.
of the government;
(Tolentino v. Sec. of Finance, G.R. No. 115455, August
25, 1994)
2. Form, content and manner of preparation of
budget shall be provided by law;
2. The President shall have the power to veto any 3. No provision or enactment shall be embraced in
particular item or items in an appropriation, the bill unless it releases specifically to some
revenue, or tariff bill, but the veto shall not affect particular appropriations therein;
the item or items to which he does not object. 4. Procedure from approving appropriations for
(Sec.27, Art. VI) Congress shall be the same as that of other
departments in order to prevent sub-rosa
Power of appropriation appropriations by Congress;
5. Prohibition against transfer of appropriations.
The spending power, also called the power of the Nonetheless, the following may, by law, be
purse, belongs to Congress, subject only to the veto authorized to augment any item in the general
power of the President. It carries with it the power to appropriations law for their respective offices
specify the project or activity to be funded under the from savings in other items of their respective
appropriation law. appropriations (Doctrine of Augmentation):
a. President
Appropriation law b. Senate President
c. Speaker of the HoR
A statute which primary and specific purpose is to d. Chief Justice
authorize release of public funds from the treasury. e. Heads of Constitutional Commissions;
6. Prohibitions against appropriations for sectarian
Budget benefit; and
7. Automatic re-appropriation If, by the end of any
Financial program of the national government for the fiscal year, the Congress shall have failed to pass
designated calendar year, providing for the estimates the general appropriations bill for the ensuing
of receipts of revenues and expenditures. fiscal year, the general appropriations law for the
preceding fiscal year shall be deemed reenacted
Classifications of appropriations and shall remain in force and effect until the
general appropriations bill is passed by the
1. General appropriation law Passed annually, Congress. (Sec. 25, par. 7, Art. VI)
intended for the financial operations of the entire
government during one fiscal period;
2. Special appropriation law Designed for a specific
purpose.

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41 FACULTY OF CIVIL LAW
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Q: May each legislator exercise the appropriation


power of Congress? NOTE: The proposed budget is not final. It is subject to the
approval of Congress but the President may exercise his or
A: No. Legislative power shall be exclusively exercised her veto power. Accordingly, the power of the purse belongs
to Congress, subject only to the veto power of the President.
by the body to which the Constitution has conferred
The President may propose the budget but still the final say
the same. The power to appropriate must be exercised
on the matter of appropriation is lodged in the Congress.
only through legislation, pursuant to Sec. 29(1), Art. VI (Philippine Constitution Association v. Enriquez, G.R. No.
of the Constitution which states: No money shall be 113105, August 19, 1994)
paid out of the Treasury except in pursuance of
an appropriation made by law. (Belgica, et al. v. Modification of Congress of the budget proposal
Ochoa, et al., G.R. No. 208566, November 19, 2013)
Congress may only reduce but not increase the
Q: The budget of a predominantly Muslim province budget.
provides the Governor with a certain amount as his
discretionary funds. Recently, however, the NOTE: Congress may not increase its outlay for itself, the
Sangguniang Panlalawigan passed a resolution judiciary and the Constitutional Commissions because it is
appropriating P100,000 as a special discretionary presumed that their needs have already been identified
fund of the Governor, to be spent by him in leading a while drafting the budget.
pilgrimage of his provincemates to Mecca, Saudi
Arabia, Islam's holiest city. PRESIDENTIAL VETO AND CONGRESSIONAL
OVERRIDE
Philconsa, on constitutional grounds, has filed suit to
nullify the resolution of the Sangguniang Rule on presidential veto
Panlalawigan giving the special discretionary fund to
the Governor for the stated purpose. How would you GR: If the President disapproves a bill enacted by
decide the case? Give your reasons. Congress, he should veto the entire bill. He is not
allowed to veto separate items of a bill.
A: The resolution is unconstitutional.
XPN: Item-veto is allowed in case of Appropriation,
1. First, it violates Art. VI, Sec. 29(2) of the Revenue, and Tariff bills. (Sec. 27, Par. 2, Art. VI)
Constitution, which prohibits the appropriation of
public money or property, directly or indirectly, XPNs to the XPN:
for the use, benefit or support of any system of 1. Doctrine of inappropriate provisions A
religion; provision that is constitutionally
2. Second, it contravenes Art. VI, Sec. 25(6), which inappropriate for an appropriation bill may be
limits the appropriation of discretionary funds singled out for veto even if it is not an
only for public purposes. appropriation or revenue item. (Gonzales v.
Macaraig, Jr., G.R. No. 87636, November 19,
The use of discretionary funds for purely religious 1990)
purpose is unconstitutional, and the fact that the 2. Executive impoundment Refusal of the
disbursement is made by resolution of a local President to spend funds already allocated by
legislative body and not by Congress does not make it Congress for specific purpose. It is the failure
any less offensive to the Constitution. Above all, the to spend or obligate budget authority of any
resolution constitutes a clear violation of the Non- type. (Philconsa v. Enriquez, G.R. No. 113105,
establishment Clause of the Constitution. August 19, 1994)

Budget proposal Instances of pocket veto

The President shall propose the budget and submit it 1. When the President fails to act on a bill; and
to Congress. It shall indicate the expenditures, sources 2. When the reason he does not return the bill to the
of financing, as well as, receipts from previous Congress is that Congress is not in session.
revenues and proposed revenue measures. It will
serve as a guide for Congress: NOTE: Pocket veto is not applicable in the Philippines
because inaction by the President for 30 days never
1. In fixing the appropriations;
produces a veto even if Congress is in recess. The President
2. In determining the activities which should be must still act to veto the bill and communicate his veto to
funded. (Sec. 22, Art. VII)

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LEGISLATIVE DEPARTMENT
Congress without need of returning the vetoed bill with his (Sec. 2, Art. XII)
veto message. 11. Power of internal organization (Sec. 16, Art. VI)
a. Election of officers
Rider b. Promulgate internal rules
c. Disciplinary powers (Sec. 16, Art. VI)
A provision in a bill which does not relate to a 12. Informing Function
particular appropriation stated in the bill. Since it is an
invalid provision under Sec. 25, Par. 2, Art. VII, 1987 Congressional grant of emergency powers to the
Constitution, the President may veto it as an item. President

Congressional override Under Sec. 23[2], Art. VI of the Constitution, Congress


may grant the President emergency powers subject to
If, after reconsideration, 2/3 of all members of such the following conditions:
House agree to pass the bill, it shall be sent to the 1. There is a war or other national emergency;
other House by which it shall likewise be reconsidered 2. The grant of emergency powers must be for a
and if approved by 2/3 of all members of that House, limited period;
it shall become a law without the need of presidential 3. The grant of emergency powers is subject to such
approval. restrictions as Congress may prescribe; and
4. The emergency powers must be exercised to carry
Instances when the Constitution requires that the out a national policy declared by Congress
yeas and nays of the Members be taken every time a
House has to vote Policy on war

1. Upon the last and third readings of a bill; (Sec. 26, The Philippines renounces war as an instrument of
par. 2, Art. VI) national policy. (Sec. 2, Art. II)
2. At the request of 1/5 of the members present;
(Sec. 16, par. 4, Art. VI) and Voting requirements to declare the existence of a
3. In repassing a bill over the veto of the President. state of war
(Sec. 27, par. 1, Art. VI)
1. 2/3 vote of both Houses
NON-LEGISLATIVE POWERS 2. In joint session
3. Voting separately
Non-legislative powers of Congress
NOTE: Even though the legislature can declare an existence
1. Power to declare the existence of state of war of war and enact measures to support it, the actual power to
(Sec. 2, Par. 1, Art. VI) engage in war is lodged, nonetheless, in the executive.
2. Power to act as Board of Canvassers in election of
President (Sec. 10, Art. VII) INFORMING FUNCTIONS
3. Power to call a special election for President and
Vice-President (Sec. 10, Art. VII) Informing function of Congress
4. Power to judge Presidents physical fitness to
discharge the functions of the Presidency (Sec. 11, The informing function of the legislature includes its
Art. VII) function to conduct legislative inquiries and
5. Power to revoke or extend suspension of the investigation and its oversight power.
privilege of the writ of habeas corpus or
declaration of martial law (Sec. 18, Art. VII) The power of Congress does not end with the finished
6. Power to concur in Presidential amnesties. task of legislation. Associated with its principal power
Concurrence of majority of all the members of to legislate is the auxiliary power to ensure that the
Congress (Sec. 19, Art. VII) laws it enacts are faithfully executed. As well stressed
7. Power to concur in treaties or international by one scholar, the legislature fixes the main lines of
agreements; concurrence of at least 2/3 of all the substantive policy and is entitled to see that
members of the Senate (Sec. 21, Art. VII) administrative policy is in harmony with it; it
8. Power to confirm certain appointments/ establishes the volume and purpose of public
nominations made by the President (Secs. 9 and expenditures and ensures their legality and propriety;
16, Art. VII) it must be satisfied that internal administrative
9. Power of Impeachment (Sec. 2, Art. XI) controls are operating to secure economy and
10. Power relative to natural resources

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43 FACULTY OF CIVIL LAW
Political and International Law

efficiency; and it informs itself of the conditions of Steps in the impeachment process
administration of remedial measure.
1. Initiating impeachment case
The power of oversight has been held to be intrinsic in a. Verified complaint filed by any member of the
the grant of legislative power itself and integral to the HoR or any citizen upon resolution of
checks and balances inherent in a democratic system endorsement by any member thereof.
of government. Woodrow Wilson went one step b. Included in the order of business within 10
farther and opined that the legislatures informing session days.
function should be preferred to its legislative function. c. Referred to the proper committee within 3
He emphasized that [E]ven more important than session days from its inclusion.
legislation is the instruction and guidance in political d. The committee, after hearing, and by
affairs which the people might receive from a body majority vote of all its members, shall submit
which kept all national concerns suffused in a broad its report to the HoR together with the
daylight of discussion. (Concurring and Dissenting corresponding resolution.
Opinion of Justice Puno, Macalintal v. COMELEC, G.R. e. Placing on calendar the Committee resolution
No. 157013, July 10, 2003) within 10 days from submission;
f. Discussion on the floor of the report;
POWER OF IMPEACHMENT
NOTE: If the verified complaint is filed by at least
Impeachment 1/3 of all the members of the HoR, the same shall
constitute the Articles of Impeachment, and trial
by the Senate shall forthwith proceed. (Sec. 3, par.
The method by which persons holding government
4, Art. XI, 1987 Constitution)
positions of high authority, prestige, and dignity and
with definite tenure may be removed from office for
g. A vote of at least 1/3 of all the members of
causes closely related to their conduct as public
the HoR shall be necessary either to affirm a
officials.
favorable resolution with the Articles of
Impeachment of the committee or override
NOTE: It is a national inquest into the conduct of public men.
its contrary resolution. (Sec. 3, par. 3, Art. XI.
It is primarily intended for the protection of the State, not 1987 Constitution)
for the punishment of the offender. The penalties attached
to the impeachment are merely incidental to the primary 2. Trial and Decision in impeachment proceedings
intention of protecting the people as a body politic. a. The Senators take an oath or affirmation
b. When the President of the Philippines is on
Impeachable officers trial, the Chief Justice of the SC shall preside
but shall not vote.
1. President c. A decision of conviction must be concurred in
2. Vice-President by at least 2/3 of all the members of Senate.
3. Members of the Supreme Court
4. Members of the Constitutional Commissions NOTE: The Senate has the sole power to try and decide all
5. Ombudsman (Sec. 2, Art. XI, 1987 Constitution) cases of impeachment. (Sec. 3(6), Art. XI, 1987 Constitution)

NOTE: The enumeration is exclusive. Initiated impeachment

Grounds for impeachment The proceeding is initiated or begins, when a verified


complaint is filed and referred to the Committee on
1. Culpable violation of the Constitution Justice for action. This is the initiating step which
2. Treason triggers the series of step that follow. The term to
3. Bribery initiate refers to the filing of the impeachment
4. Graft and Corruption complaint coupled with Congress taking initial action
5. Other high crimes of said complaint. (Francisco v. House of Rep., G.R. No.
6. Betrayal of public trust (Sec. 2, Art. XI, 1987 160261, November 10, 2003)
Constitution)
Determination of sufficiency of form and substance
NOTE: The enumeration is exclusive. of an impeachment complaint

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2014 GOLDEN NOTES 44
LEGISLATIVE DEPARTMENT

Determination of sufficiency of form and substance of NOTE: An impeachment case is the legal controversy that
an impeachment complaint is an exponent of the must be decided by the Senate while an impeachment
express constitutional grant of rulemaking powers of proceeding is one that is initiated in the House of
Representatives. For purposes of applying the one year ban
the HoR. In the discharge of that power and in the
rule, the proceeding is initiated or begins when a verified
exercise of its discretion, the House has formulated
complaint is filed and referred to the Committee on Justice
determinable standards as to form and substance of for action. (Francisco v. House of Representatives, et. al., G.R.
an impeachment complaint. Furthermore the No. 160261, November 10, 2003)
impeachment rules are clear in echoing the
constitutional requirements in providing that there The power to impeach is essentially a non-legislative
must be a verified complaint or resolution and that prerogative and can be exercised by Congress only within the
the substance requirement is met if there is a recital limits of the authority conferred upon it by the Constitution.
of facts constituting the offense charged and (ibid)
determinative of the jurisdiction of the committee.
Initiation takes place by the act of filing of the impeachment
(Gutierrez v. The House of Representatives Committee
complaint and referral to the House Committee on Justice.
on Justice, G.R. No. 193459, February 15, 2011) Once an impeachment complaint has been initiated in the
foregoing manner, another may not be filed against the
Essence of the one-year bar rule same official within a one year period. (Gutierrez v. House of
Representatives Committee on Justice, G.R. No. 193459,
The purpose of the one-year bar is two-fold: February 15, 2011)
1. To prevent undue or too frequent harassment
2. To allow the legislature to do its principal task of
legislation. (Francisco v. House of Rep., G.R. No.
160261, November 10, 2003)

The consideration behind the intended limitation


refers to the element of time, and not the number of
complaints. The impeachable officer should defend
himself in only one impeachment proceeding, so that
he will not be precluded from performing his official
functions and duties. Similarly, Congress should run
only one impeachment proceeding so as not to leave
it with little time to attend to its main work of law-
making. The doctrine laid down in Francisco that
initiation means filing and referral remains congruent
to the rationale of the constitutional provision.
(Gutierrez v. The House of Representatives Committee
on Justice, G.R. No. 193459, February 15, 2011)

Effects of conviction in impeachment

1. Removal from office


2. Disqualification to hold any other office under the
Republic of the Philippines
3. Party convicted shall be liable and subject to
prosecution, trial and punishment according to
law. (Sec. 3 (7), Art. XI, 1987 Constitution)

Limitations imposed by the Constitution upon the


initiation of impeachment proceedings

1. The HoR shall have the exclusive power to initiate


all cases of impeachment.
2. Not more than one impeachment proceeding
shall be initiated against the same official within a
period of one year.

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45 FACULTY OF CIVIL LAW
Political and International Law

EXECUTIVE DEPARTMENT Such was the case of former President Joseph


Estrada. Immunity cannot be claimed to shield a
Head of the executive department non-sitting President from prosecution for alleged
criminal acts done while sitting in office. (Estrada
The President is both the head of State and head of v. Desierto, G.R. Nos. 146710-15, March 2, 2001)
government; hence, executive power is exclusively
vested on him. Q: Is a non-sitting President immune from suit for
acts committed during his tenure?
PRIVILEGES, INHIBITIONS AND DISQUALIFICATIONS
A: No. A non-sitting President does not enjoy
IMMUNITY AND PRIVILEGES immunity from suit, even though the acts were done
during her tenure. The intent of the framers of the
Privileges of the President and Vice-President Constitution is clear that the immunity of the
president from suit is concurrent only with his tenure
PRESIDENT VICE-PRESIDENT and not his term. Former President Arroyo cannot use
the presidential immunity from suit to shield herself
1. Official residence; 1. Salary shall not be
from judicial scrutiny that would assess whether,
2. Salary is determined decreased during his
within the context of amparo proceedings, she was
by law and not to be tenure;
responsible or accountable for the abduction of
decreased during his 2. If appointed to a
Rodriguez. (In Re: Petition for the Writ of Amparo and
tenure; (Sec. 6, Art. Cabinet post, no need
Habeas Data in favor of Noriel H. Rodriguez; Noriel H.
VII) for Commission on
Rodriguez v. Gloria Macapagal-Arroyo, et al., G.R. Nos.
3. Immunity from suit Appointments
191805 &193160. November 15, 2011)
for official acts. confirmation. (Sec. 3,
Art. VII)
Purpose of presidential immunity
PRESIDENTIAL IMMUNITY
1. Separation of powers The separation of powers
principle is viewed as demanding the executives
Presidential or executive immunity
independence from the judiciary, so that the
President should not be subject to the judiciarys
The President is immune from suit during his
whim. (Almonte v. Vasquez, G.R. No. 95367, May
incumbency.
23, 1995)
2. Public convenience The grant is to assure the
Rules on executive immunity
exercise of presidential duties and functions free
from any hindrance or distraction, considering
A. Rules on immunity during tenure (not term):
that the presidency is a job that, aside from
1. The President is immune from suit during his
requiring all of the office-holders time, demands
tenure. (In re: Bermudez, G.R. No. 76180,
undivided attention. (Soliven v. Makasiar, G.R. No.
October 24, 1986)
82585, November 14, 1988)
2. An impeachment complaint may be filed
against him during his tenure. (Art. XI)
Principle of command responsibility
3. The President may not be prevented from
instituting suit. (Soliven v. Makasiar, G.R. No.
According to Fr. Bernas, command responsibility, in
82585, November 14, 1988)
its simplest terms, means the responsibility of
4. There is nothing in our laws that would
commanders for crimes committed by subordinate
prevent the President from waiving the
members of the armed forces or other persons subject
privilege. The President may shed the
to their control in international wars or domestic
protection afforded by the privilege. (Soliven
conflict.
v. Makasiar, G.R. No. 82585, November 14,
1988)
It is an omission mode of individual criminal liability,
5. Heads of departments cannot invoke the
whereby the superior is made responsible for crimes
Presidents immunity. (Gloria v. Court of
committed by his subordinates for failing to prevent or
Appeals, G.R. No. 119903, August 15, 2000)
punish the perpetrators (as opposed to crimes he
ordered). (Rubrico, et al. v. GMA, et al., G.R. No.
B. Rule on immunity after tenure:
183871, February 18, 2010)
Once out of office, even before the end of the 6-
year term, immunity for non-official acts is lost.

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2014 GOLDEN NOTES 46
EXECUTIVE DEPARTMENT

Elements of command responsibility


Q: Upon complaint of the incumbent President,
1. The existence of a superior-subordinate Dexter Suyat was charged with libel before the RTC.
relationship between the accused as superior and Dexter contends that if the proceedings ensue by
the perpetrator of the crime as his subordinate; virtue of the Presidents filing of his complaint-
2. The superior knew or had reason to know that the affidavit, he may subsequently have to be a witness
crime was about to be or had been committed; for the prosecution, bringing her under the trial
3. The superior failed to take the necessary and courts jurisdiction. May Dexter invoke the
reasonable measures to prevent the criminal acts Presidents immunity?
or punish the perpetrators thereof. (Rodriguez v.
GMA, et al., G.R. Nos. 191805 &193160, A: No. The immunity of the President from suit is
November 15, 2011) personal to the President. It may be invoked only by
the President and not by any other person. The
Application of the doctrine of command privilege of immunity from suit pertains to the
responsibility in amparo proceedings President by the virtue of the office and may be
invoked only by the holder of that office; and not by
It should, at most, be only to determine the author any other person in his behalf. (Soliven v. Makasiar,
who, at the first instance, is accountable for, and has G.R. No. 82585, November 14, 1988)
the duty to address, the disappearance and
harassments complained of, so as to enable the Court PRESIDENTIAL PRIVILEGE
to devise remedial measures that may be appropriate
under the premises to protect rights covered by the Presidential or executive privilege
writ of amparo. (Rubrico, et al. v. GMA, et al., G.R. No.
183871, February 18, 2010) The power of the President and high-level executive
branch officers to withhold certain types of
Q: May the President be held liable for extrajudicial information from Congress, the courts, and ultimately
killings and enforced disappearances as the the public.
Commander-in-Chief of the Philippine military?
Invocation of the privilege
A: Yes. The President may be held accountable under
the principle of command responsibility. The Executive privilege must be invoked in relation to
President, being the commander-in-chief of all armed specific categories of information and not to
forces, necessarily possesses control over the military categories of persons.
that qualifies him as a superior within the purview of
the command responsibility doctrine. NOTE: While executive privilege is a constitutional concept,
a claim thereof may be valid or not depending on the ground
On the issue of knowledge, it must be pointed out that invoked to justify it and the context in which it is made.
although international tribunals apply a strict standard Noticeably absent is any recognition that executive officials
are exempt from the duty to disclose information by the
of knowledge, i.e. actual knowledge, the same may
mere fact of being executive officials. (Senate v. Ermita, G.R.
nonetheless be established through circumstantial No. 169777, April 20, 2006)
evidence. In the Philippines, a more liberal view is
adopted and superiors may be charged with Q: Does the invocation of this privilege through
constructive knowledge. Knowledge of the executive orders, prohibiting executive officials from
commission of irregularities, crimes or offenses is participating in legislative inquiries, violate the
presumed when: (a) the acts are widespread within constitutional right to information on matters of
the government officials area of jurisdiction; (b) the public concern of the people?
acts have been repeatedly or regularly committed
within his area of responsibility; or (c) members of his A: Yes. To the extent that investigations in aid of
immediate staff or office personnel are involved. legislation are generally conducted in public, however,
any executive issuance tending to unduly limit
As to the issue of failure to prevent or punish, it is disclosures of information in such investigations
important to note that as the commander-in-chief of necessarily deprives the people of information which,
the armed forces, the President has the power to being presumed to be in aid of legislation, is presumed
effectively command, control and discipline the to be a matter of public concern. The citizens are
military. (Rodriguez v. GMA, et al., G.R. Nos. 191805 thereby denied access to information which they can
&193160, November 15, 2011.) use in formulating their own opinions on the matter

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47 FACULTY OF CIVIL LAW
Political and International Law

before Congress opinions which they can then Limitation of executive privilege
communicate to their representatives and other
government officials through the various legal means Claim of executive privilege is subject to balancing
allowed by their freedom of expression. (Senate v. against other interest. Simply put, confidentiality in
Ermita, G.R. No. 169777, April 20, 2006) executive privilege is not absolutely protected by the
Constitution. Neither the doctrine of separation of
Persons who can invoke executive privilege powers nor the need for confidentiality of high-level
communications can sustain an absolute, unqualified
1. President Presidential privilege of immunity from judicial
process under all circumstances. (Neri v. Senate, G.R.
NOTE: The privilege being an extraordinary power, it No. 180643, March 25, 2008)
must be wielded only by the highest official in the
executive department. Thus, the President may not Q: Sec. 1 of EO 464 required all heads of departments
authorize her subordinates to exercise such power. in the Executive branch to secure the consent of the
President before appearing in an inquiry conducted
2. Executive Secretary, upon proper authorization by either House of Congress, pursuant to Art. VI, Sec.
from the President 22 of the Constitution. Is the Sec. 1 of EO 464 valid?

NOTE: The Executive Secretary must state that the A: Sec. 1, in view of its specific reference to Sec. 22,
authority is By order of the President, which means Art. VI of the Constitution and the absence of any
he personally consulted with her. reference to inquiries in aid of legislation, must be
construed as limited in its application to appearances
Requirement if an official is summoned by Congress of department heads in the question hour
on a matter which in his own judgment might be contemplated in the provision of said Sec. 22 of Art. VI.
covered by executive privilege The reading is dictated by the basic rule of
construction that issuances must be interpreted, as
When an official is being summoned by Congress on a much as possible, in a way that will render it
matter which, in his own judgment, might be covered constitutional.
by executive privilege, he must be afforded reasonable
time to inform the President or the Executive The requirement then to secure presidential consent
Secretary of the possible need for invoking the under Sec. 1, limited as it is only to appearances in the
privilege. This is necessary in order to provide the question hour, is valid on its face. For under Sec. 22,
President or the Executive Secretary with fair Art. VI of the Constitution, the appearance of
opportunity to consider whether the matter indeed department heads in the question hour is
calls for a claim of executive privilege. If, after the discretionary on their part. (Senate v. Ermita, G.R. No.
lapse of that reasonable time, neither the President 169777, April 20, 2006)
nor the Executive Secretary invokes the privilege,
Congress is no longer bound to respect the failure of NOTE: Sec. 1 of EO 464 cannot, however, be applied to
the official to appear before Congress and may then appearances of department heads in inquiries in aid of
opt to avail of the necessary legal means to compel his legislation. Congress is not bound in such instances to
appearance. (Senate v. Ermita, G.R. No. 169777, April respect the refusal of the department head to appear in such
20, 2006) inquiry, unless a valid claim of privilege is subsequently
made, either by the President herself or by the Executive
Requirement in invoking the privilege Secretary. (Senate v. Ermita, G.R. No. 169777, April 20, 2006)

A formal claim of the privilege is required. A formal Kinds of executive privilege


and proper claim of executive privilege requires a
specific designation and description of the documents 1. State secret privilege Invoked by Presidents on
within its scope as well as precise and certain reasons the ground that the information is of such nature
for preserving their confidentiality. Without this that its disclosure would subvert crucial military or
specificity, it is impossible for a court to analyze the diplomatic objectives.
claim short of disclosure of the very thing sought to be 2. Informers privilege Privilege of the government
protected. Congress, however, must not require the not to disclose the identity of persons who furnish
Executive to state the reasons for the claim with such information in violations of law to officers charged
particularity as to compel disclosure of the with the enforcement of the law.
information, which the privilege is meant to protect. 3. Generic privilege For internal deliberations. Said
(Senate v. Ermita, G.R. No. 169777, April 20, 2006) to attach to intra-governmental documents

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2014 GOLDEN NOTES 48
EXECUTIVE DEPARTMENT

reflecting advisory opinions, recommendations important evidence and by the unavailability of


and deliberations comprising part of a process by the information elsewhere by an appropriate
which governmental decisions and policies are investigating authority.
formulated.
Presumed privilege status of presidential
NOTE: In determining the validity of a claim of privilege, the communications
question that must be asked is not only whether the
requested information falls within one of the traditional The presumption is based on the Presidents
privileges, but also whether that privilege should be honored
generalized interest in confidentiality. The privilege is
in a given procedural setting.
necessary to guarantee the candor of presidential
Kinds of executive privilege advisors and to provide the President and those who
assist him with freedom to explore alternatives in the
1. Presidential communications privilege; process of shaping policies and making decisions and
2. Deliberative process privilege. (In Re: Sealed Case to do so in a way many could be unwilling to express
No. 96-3124, June 17, 1997) except privately. The presumption can be overcome
only by mere showing of public need by the branch
Presidential communications privilege v. Deliberative seeking access to conversations. The courts are
process privilege enjoined to resolve the competing interests of the
political branches of the government in the manner
that preserves the essential functions of each Branch.
PRESIDENTIAL
DELIBERATIVE
COMMUNICATIONS
PROCESS PRIVILEGE Q: The HoRs House Committee conducted an inquiry
PRIVILEGE
on the Japan-Philippines Economic Partnership
Pertains to Includes advisory
Agreement (JPEPA), then being negotiated by the
communications, opinions,
Philippine Government. The House Committee
documents or other recommendations and
requested DTI Usec. Jamie Arlos to furnish it with a
materials that reflect deliberations
copy of the latest draft of the JPEPA. Arlos replied
presidential decision- comprising part of a
that he shall provide a copy thereof once the
making and process by which
negotiations are completed.
deliberations that the governmental decisions
President believes and policies are
A petition was filed with the SC which seeks to obtain
should remain formulated
a copy of the Philippine and Japanese offers
confidential
submitted during the negotiation process and all
Applies to decision- Applies to decision-
pertinent attachments and annexes thereto. Arlos
making of the President making of executive
invoked executive privilege based on the ground that
officials
the information sought pertains to diplomatic
Rooted in the Rooted in common law
negotiations then in progress. On the other hand,
constitutional principle privileges
Akbayan for their part invoked their right to
of separation of powers
information on matters of public concern.
and the Presidents
unique constitutional
Are matters involving diplomatic negotiations
role
covered by executive privilege?
Elements of presidential communications privilege A: Yes. It is clear that while the final text of the JPEPA
may not be kept perpetually confidential, the offers
1. The protected communication must relate to a exchanged by the parties during the negotiations
quintessential and non-delegable presidential continue to be privilege even after the JPEPA is
power. published. Disclosing these offers could impair the
2. The communication must be authored or ability of the Philippines to deal not only with Japan
solicited and received by a close advisor of the but with other foreign governments in future
President or the President himself. The judicial negotiations. (AKBAYAN Citizens Action Party v.
test is that an advisor must be in operational Aquino, G.R No. 170516, July 16, 2008)
proximity with the President.
3. The presidential communications privilege NOTE: Such privilege is only presumptive.
remains a qualified privilege that may be
overcome by a showing of adequate need, such
that the information sought likely contains

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49 FACULTY OF CIVIL LAW
Political and International Law

Q: Matters involving diplomatic negotiations are b. Office of the Ombudsman;


covered by executive privilege. However, such c. Secretaries;
privilege is only presumptive. How can this d. Undersecretaries;
e. Chairmen or heads of bureaus or offices,
presumption be overcome?
including GOCCs and their subsidiaries.

A: Recognizing a type of information as privileged does If the spouse, etc., was already in any of the above
not mean that it will be considered privileged in all offices at the time before his/her spouse became
instances. Only after a consideration of the context in President, he/she may continue in office. What is
which the claim is made may it be determined if there prohibited is appointment and reappointment, not
is a public interest that calls for the disclosure of the continuation in office.
desired information, strong enough to overcome its
traditionally privileged status. (AKBAYAN Citizens Spouses, etc., can be appointed to the judiciary and as
ambassadors and consuls.
Action Party v. Aquino, et al., G.R No. 170516, July 16,
2008)
Q: Christian, the Chief Presidential Legal Counsel
(CPLC), was also appointed as Chairman of the PCGG.
PROHIBITIONS, INHIBITIONS AND
May the two offices be held by the same person?
DISQUALIFICATIONS
A: No. The two offices are incompatible. Without
Prohibitions attached to the President, Vice-
question, the PCGG is an agency under the Executive
President, Cabinet Members, and their deputies or
Department. Thus, the actions of the PCGG Chairman
assistants, unless otherwise provided in the
are subject to the review of the CPLC. (Public Interest
Constitution
Group v. Elma, G.R. No. 138965, June 30, 2006)
1. Shall not receive any other emolument from the
Q: Pres. Espaldon appointed Anthony as the Acting
government or any other source (Sec. 6, Art. VII)
Secretary of Justice. After a couple of days, Pres.
2. Shall not hold any other office or employment
Espaldon designated Anthony as the Acting Solicitor
during their tenure unless:
General in a concurrent capacity. Ben contested the
a. Otherwise provided in the Constitution (e.g.
appointment of Anthony on the ground that the
VP can be appointed as a Cabinet Member
appointment violated Sec. 13, Art. VII of the
without the need of confirmation by
Constitution which expressly prohibits the President,
Commission on Appointments; Sec. of Justice
Vice-President, the Members of the Cabinet, and
sits in the Judicial and Bar Council)
their deputies or assistants from holding any other
b. The positions are ex-officio and they do not
office or employment during their tenure unless
receive any salary or other emoluments
otherwise provided in the Constitution. On the other
therefor (e.g. Sec. of Finance is head of the
hand, Anthony claims that according to Sec. 7, par.
Monetary Board)
(2), Art. IX-B of the Constitution, his appointment to
NOTE: This prohibition must not, however, be such positions is outside the coverage of the
construed as applying to posts occupied by the prohibition under Sec. 13 of Art. VII as it falls into one
Executive officials without additional compensation in of the exceptions as being allowed by law or by the
an ex-officio capacity, as provided by law and as primary functions of his position. Does the
required by the primary functions of the said officials designation of Anthony as the Acting Secretary of
office. (National Amnesty Commission v. COA, G.R. No. Justice, concurrently with his position as Acting
156982, September 2, 2004) Solicitor General, violate the constitutional
prohibition against dual or multiple offices for the
3. Shall not practice, directly or indirectly, any other Members of the Cabinet and their deputies and
profession during their tenure assistants?
4. Shall not participate in any business
5. Shall not be financially interested in any contract A: Yes. While all other appointive officials in the civil
with, or in any franchise, or special privilege service are allowed to hold other office or
granted by the Government, including GOCCs employment in the government during their tenure
6. Shall avoid conflict of interest in conduct of office when such is allowed by law or by the primary
7. Shall avoid nepotism (Sec. 13, Art. VII) functions of their positions, members of the Cabinet,
their deputies and assistants may do so only when
NOTE: The spouse and relatives by consanguinity or
expressly authorized by the Constitution itself. In other
affinity within the 4th civil degree of the President shall
not, during his tenure, be appointed as:
words, Sec. 7, Art. IX-B is meant to lay down the
a. Members of the Constitutional Commissions; general rule applicable to all elective and appointive

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2014 GOLDEN NOTES 50
EXECUTIVE DEPARTMENT

public officials and employees, while Sec. 13, Art. VII is administration of the government. The law he is
meant to be the exception applicable only to the supposed to enforce includes the Constitution,
President, the Vice-President, Members of the statutes, judicial decisions, administrative rules and
Cabinet, their deputies and assistants. Since the regulations and municipal ordinances, as well as
evident purpose of the framers of the 1987 treaties entered into by the government.
Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, Power of administrative reorganization
their deputies and assistants with respect to holding
multiple offices or employment in the government The President has the continuing authority to
during their tenure, the exception to this prohibition reorganize the national government, which includes
must be read with equal severity. On its face, the the power to group, consolidate bureaus and agencies,
language of Sec. 13, Art. VII is prohibitory so that it to abolish offices, to transfer functions, to create and
must be understood as intended to be a positive and classify functions, services and activities and to
unequivocal negation of the privilege of holding standardize salaries and materials; it is effected in
multiple government offices or employment. Verily, good faith if it is for the purpose of economy or to
wherever the language used in the constitution is make bureaucracy more efficient. (MEWAP v.
prohibitory, it is to be understood as intended to be a Executive Secretary, G.R. No. 160093, July 31, 2007)
positive and unequivocal negation. The phrase "unless
otherwise provided in this Constitution" must be given Scope of executive power
a literal interpretation to refer only to those particular
instances cited in the Constitution itself, to wit: the 1. Executive power is vested in the President of the
Vice-President being appointed as a member of the Philippines. (Sec. 1, Art. VII, 1987 Constitution)
Cabinet under Sec. 3, par. (2), Art. VII; or acting as 2. It is not limited to those set forth in the
President in those instances provided under Sec. 7, Constitution (Residual powers). (Marcos v.
pars. (2) and (3), Art. VII; and, the Secretary of Justice Manglapus, G.R. No. 88211, October 27, 1989)
3. Privilege of immunity from suit is personal to the
being ex-officio member of the Judicial and Bar Council
President and may be invoked by him alone. It
by virtue of Sect. 8 (1), Art. VIII. (Funa v. Agra, G.R. No. may also be waived by the President, as when he
191644, February 19, 2013) himself files suit. (Soliven v. Makasiar, G.R. No.
82585, November 14, 1988)
Being designated as the Acting Secretary of Justice 4. The President cannot dispose of state property
concurrently with his position of Acting Solicitor unless authorized by law. (Laurel v. Garcia, G.R.
General, therefore, Anthony was undoubtedly covered No. 92013, July 25, 1990)
by Sec. 13, Art. VII, whose text and spirit were too clear
to be differently read. Hence, Anthony could not Specific powers of the President
validly hold any other office or employment during his
tenure as the Acting Solicitor General, because the 1. Appointing power (Sec. 16, Art. VII)
Constitution has not otherwise so provided. 2. Power of control over all executive departments,
bureaus and offices (Sec. 17, Art. VII)
POWERS OF THE PRESIDENT 3. Commander-in-Chief powers (calling-out power,
power to place the Philippines under martial law,
EXECUTIVE AND ADMINISTRATIVE POWERS IN and power to suspend the privilege of the writ of
GENERAL habeas corpus) (Sec. 18, Art. VII)
4. Pardoning power (Sec. 19, Art. VII)
Executive Power 5. Borrowing power (Sec. 20, Art. VII)
6. Diplomatic/Treaty-making power (Sec. 21, Art. VII)
Power vested in the President of the Philippines. The 7. Budgetary power (Sec. 22, Art. VII)
President shall have control of all executive 8. Informing power (Sec. 23, Art. VII)
departments, bureaus and offices. He shall ensure that 9. Veto power (Sec. 27, Art. VI)
laws are faithfully executed. (Sec. 17, Art. VII, 1987 10. Power of general supervision over local
Constitution) governments (Sec. 4, Art. X)
11. Power to call special session (Sec. 15, Art. VI)
Faithful Execution Clause

The power to take care that the laws be faithfully


executed makes the President a dominant figure in the

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51 FACULTY OF CIVIL LAW
Political and International Law

Q: Is the power of the President limited only to such or re-assumption of office. (Sec. 14, Art. VII)
specific powers enumerated in the Constitution?
Designation
A: No. The powers of the President cannot be said to
be limited only to the specific power enumerated in The imposition of additional duties on a person
the Constitution. Executive power is more than the already in the public service. It is considered only as an
sum of specific powers so enumerated. The framers acting or temporary appointment, which does not
did not intend that by enumerating the powers of the confer security of tenure on the person named.
President he shall exercise those powers and no other. (Binamira v. Garrucho, G.R. No. 92008, July 30, 1990)
Whatever power inherent in the government that is
neither legislative nor judicial has to be executive. NOTE: The President has the power to temporarily designate
These unstated residual powers are implied from the an officer already in the government service or any other
grant of executive power and which are necessary for competent person to perform the functions of an office in
the executive branch. In no case shall the temporary
the President to comply with his duties under the
designation exceed one year.
Constitution. (Marcos v. Manglapus, G.R. No. 88211,
October 27, 1989)
Presidential appointments that need prior
recommendation or nomination by the Judicial and
Administrative power
Bar Council
Power concerned with the work of applying policies
1. Members of the Supreme Court and all lower
and enforcing orders as determined by proper
courts (Sec. 9, Art. VIII)
governmental organs. It enables the President to fix a
2. Ombudsman and his 5 deputies
uniform standard of administrative efficiency and
check the official conduct of his agents. To this end,
Appointments made solely by the President
he can issue administrative orders, rules and
regulations. (Ople v. Torres, G.R. No. 127685, July 23,
1. Those vested by the Constitution on the President
1998)
alone;
2. Those whose appointments are not otherwise
POWER OF APPOINTMENT provided by law;
3. Those whom he may be authorized by law to
Appointment appoint; and
4. Those other officers lower in rank whose
The selection, by the authority vested with the power, appointment is vested by law in the President
of an individual who is to exercise the functions of a alone. (Sec. 16, Art. VII)
given office. It may be made verbally but it is usually
done in writing through what is called the commission. COMMISSION ON APPOINTMENTS
CONFIRMATION
NOTE: The appointing power of the President is executive in
nature. While Congress and the Constitution in certain cases
Instances where confirmation of the Commission on
may prescribe the qualifications for particular offices, the
determination of who among those who are qualified will be Appointments is required
appointed is the Presidents prerogative. (Pimentel, et al. v.
Ermita, et al., G.R. No. 164978, October 13, 2005) 1. Heads of executive departments

Kinds of Presidential appointments GR: Appointment of cabinet secretaries requires


confirmation.
1. Appointments made by an Acting President
2. Midnight Appointment (Sec. 15, Art. VII) XPN: Vice-president may be appointed as a
3. Regular Presidential Appointments, with or member of the Cabinet and such
without the confirmation by the CA appointment requires no confirmation. (Sec. 3(2),
4. Ad-interim Appointments Art. VII)

Rule on the effectivity of appointments made by an 2. Ambassadors, other public ministers and consuls
acting President Those connected with the diplomatic and
consular services of the country.
These shall remain effective unless revoked by the
elected President within 90 days from his assumption

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EXECUTIVE DEPARTMENT

3. Officers of AFP from the rank of colonel or naval Appointee enjoys Appointee does not
captain security of tenure enjoy security of tenure

NOTE: PNP of equivalent ranks and the Philippine Coast


Q: Is the act of the President in appointing acting
Guard are not included.
secretaries even without the consent of the
Commission while Congress is in session,
4. Other officers of the government whose
constitutional?
appointments are vested in the President in the
Constitution (Sec. 16, Art. VII), such as:
A: Yes. Congress, through a law, cannot impose on the
a. Chairmen and members of the CSC, COMELEC
President the obligation to appoint automatically the
and COA (Sec. 1[2], Art. IX-B, C, D)
undersecretary as her temporary alter ego. An alter
b. Regular members of the JBC (Sec. 8[2], Art.
ego, whether temporary or permanent, holds a
VIII)
position of great trust and confidence. The office of a
NOTE: The enumeration is exclusive. department secretary may become vacant while
Congress is in session. Since a department secretary is
Appointing procedure for those that need the alter ego of the President, the acting appointee to
Commissions confirmation the office must necessarily have the Presidents
confidence. (Pimentel v. Ermita, G.R. No. 164978,
1. Nomination by the President October 13, 2005)
2. Confirmation by the CA
3. Issuance of commission NOTE: Acting appointments cannot exceed one year. (Sec.
17[3], Chapter 5, Title I, Book III of EO 292)
4. Acceptance by the appointee

NOTE: At any time, before all four steps have been complied Non-justiability of appointments
with, the President can withdraw the nomination and
appointment. (Lacson v. Romero, G.R. No. L-3081, October Appointment is a political question. So long as the
14, 1949) appointee satisfies the minimum requirements
prescribed by law for the position, the appointment
Proedure for those that do not need Commissions may not be subject to judicial review.
confirmation
Limitations on the appointing power of the President
1. Appointment
2. Acceptance 1. The spouse and relatives by consanguinity or
affinity within the 4th civil degree of the President
Ad interim Appointment shall not, during his "tenure" be appointed as:
a. Members of the Constitutional Commissions;
An appointment made by the president while b. Member of the Office of Ombudsman;
Congress is in session. It takes effect only after c. Secretaries;
confirmation by the Commission on Appointments. d. Undersecretaries;
Once the same is approved, it continues until the end e. Chairmen or heads of bureaus or offices,
of the term of the appointee. including government-owned or controlled
corporations and their subsidiaries. (Sec.
Ad interim appointment v. Appointment in an acting 13[2], Art. VII)
capacity
2. Appointments made by the acting-President shall
AD INTERIM APPOINTMENT IN AN remain effective unless revoked within 90 days
APPOINTMENT ACTING CAPACITY from assumption of office by elected President.
Made if Congress is not Made at any time there (Sec. 14, Art. VII)
in session is vacancy, i.e., whether
Congress is in session or 3. GR: Two months immediately before the next
not Presidential elections (2nd Monday of May), and
Requires confirmation Does not require up to the end of his "term" (June 30), a President
of the Commission confirmation of the (or Acting President) shall not make
Commission appointments.
Permanent in nature Temporary in nature

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53 FACULTY OF CIVIL LAW
Political and International Law

XPN: Temporary appointments, to executive next presidential elections and up to the end of the
positions, when continued vacancies therein will Presidents or Acting Presidents term does not refer
prejudice public service; (Sec. 15, Art. VII) (e.g. to the Members of the Supreme Court. (De Castro v.
Postmaster) or endanger public safety. (e.g. Chief JBC, G.R. No. 191002, March 17, 2010)
of Staff)
NOTE: Ban on midnight appointments is applicable in the
MIDNIGHT APPOINTMENTS entire judiciary except on the Supreme Court. (Ibid)

Sec. 15, Art. VII of the 1987 Constitution prohibits the POWER OF REMOVAL
President from making appointments two months
before the next presidential elections and up to the Power of removal
end of his term.
GR: From the express power of appointment, the
Prohibited appointments under Sec. 15, Art. VII of the President derives the implied power of removal.
Constitution
XPN: Thos appointed by him where the Constitution
1. Those made for buying votes refers to those prescribes certain methods for separation from public
appointments made within two months preceding service (e.g. impeachment).
the Presidential election and are similar to those
which are declared election offenses in the Source of power of removal
Omnibus Election Code; and
2. Those made for partisan considerations consists The President derives his implied power of removal
of the so-called midnight appointments. (In Re: from other powers expressly vested in him.
Hon. Mateo A. Valenzuela and Hon. Placido B. 1. It is implied from his power to appoint.
Vallarta, A.M. No. 98-5-01-SC November 9, 1998) 2. Being executive in nature, it is implied from the
constitutional provision vesting the executive
Q: Does an outgoing President have the power to power in the President.
appoint the next Chief Justice within the period 3. It may be implied from his function to take care
starting two months before the presidential elections that laws be properly executed; for without it, his
until the end of the presidential term? Discuss orders for law enforcement might not be
thoroughly. effectively carried out.
4. The power may be implied from the Presidents
A: Yes. Art. VII is devoted to the Executive control over the administrative departments,
Department, and, among others, it lists the powers bureaus, and offices of the government. Without
vested by the Constitution in the President. The the power to remove, it would not be always
presidential power of appointment is dealt with in possible for the President to exercise his power of
Secs. 14, 15, and 16 of the Article. In particular, Sec. 9 control.
states that the appointment of Supreme Court Justices
can only be made by the President upon the Limitation on the power of removal of the President
submission of a list of at least three nominees by the
JBC; Sec. 4(1) of the Article mandates the President to Not all officials appointed by the President are also
fill the vacancy within 90 days from the occurrence of removable by him since the Constitution prescribes
the vacancy. certain methods for the separation from the public
service of such officers.
Had the framers intended to extend the prohibition
contained in Sec. 15, Art. VII to the appointment of NOTE: Members of the career service of the Civil Service who
are appointed by the President may be directly disciplined
Members of the Supreme Court, they could have
by him (Villaluz v. Zaldivar, G.R. No. L-22754, December 31,
explicitly done so. They could not have ignored the 1965) provided that the same is for cause and in accordance
meticulous ordering of the provisions. They would with the procedure prescribed by law.
have easily and surely written the prohibition made
explicit in Sec. 15, Art. VII as being equally applicable Members of the Cabinet and such officers whose continuity
to the appointment of Members of the Supreme Court in office depend upon the President may be replaced at any
in Art. VIII itself, most likely in Sec. 4 (1), Art. VIII. That time. Legally speaking, their separation is effected not by the
such specification was not done only reveals that the process of removal but by the expiration of their term.
prohibition against the President or Acting President (Aparri v. CA, G.R. No. L-30057, January 31, 1984)
making appointments within two months before the

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EXECUTIVE DEPARTMENT

Q: Deputy Ombudsman Gonzales was dismissed from DOCTRINE OF QUALIFIED POLITICAL AGENCY
service by the Office of the President (OP) by virtue
of Sec. 8(2) of RA 6770 vesting disciplinary authority Doctrine of Qualified Political Agency or Alter Ego
in the President over the Deputy Ombudsman. OP Principle
found him guilty of gross neglect of duty and
misconduct of office. Gonzales filed a petition to set The acts of the secretaries of the Executive
aside the dismissal on the ground that it is only the departments performed and promulgated in the
Ombudsman who can exercise administrative regular course of business are presumptively the acts
disciplinary jurisdiction over the Deputy of the Chief Executive. (Villena v. Secretary of the
Ombudsman. Does the OP have administrative Interior, G.R. No. L-46570, April 21, 1939)
disciplinary jurisdiction over Deputy Ombudsman
Gonzales? Exceptions to the Alter Ego doctrine

A: No. Sec. 8(2) of RA 6770 vesting disciplinary 1. If the acts are disapproved or reprobated by the
authority on the President over the Deputy President;
Ombudsman violates the independence of the Office 2. If the President is required to act in person by law
of the Ombudsman and is, thus, unconstitutional. or by the Constitution.
Subjecting the Deputy Ombudsman to discipline and
removal by the President, whose own alter egos and NOTE: The SC held that the Secretary of Finance can act as
officials in the Executive Department are subject to the an agent of the Legislative Dept. to determine and declare
Ombudsman's disciplinary authority, cannot but the event upon which its expressed will is to take effect.
Thus, being the agent of Congress and not of the President,
seriously place at risk the independence of the Office
the latter cannot alter, or modify or nullify, or set aside the
of the Ombudsman itself. The law directly collided not
findings of the Secretary of Finance and to substitute the
only with the independence that the Constitution judgment of the former for that of the latter. (ABAKADA
guarantees to the Office of the Ombudsman, but Guro v. Executive Secretary, G.R. No. 168056, September 1,
inevitably with the principle of checks and balances 2005)
that the creation of an Ombudsman office seeks to
revitalize. What is true for the Ombudsman must be Essence of the Alter Ego doctrine
equally and necessarily true for her Deputies who act
as agents of the Ombudsman in the performance of Since the President is a busy man, he is not expected
their duties. (Emilio Gonzales III v. Ochoa, G. R. No. to exercise the totality of his power of control all the
196231 & 196232, February 26, 2014) time. He is not expected to exercise all his powers in
person. He is expected to delegate some of them to
POWER OF CONTROL AND SUPERVISION men of his confidence, particularly to members of his
Cabinet.
Power of control
NOTE: Applying this doctrine, the power of the President to
The power of an officer to alter or modify or nullify or reorganize the National Government may be validly
to set aside what a subordinate has done in the delegated to his Cabinet Members exercising control over a
performance of his duties and to substitute ones own particular executive department. (DENR v. DENR Region XII
Employees, G.R. No. 149724, August 19, 2003)
judgment for that of a subordinate.

NOTE: The Presidents power over GOCCs comes not from


EXECUTIVE DEPARTMENTS AND OFFICES
the Constitution, but from statute. Hence, it may be taken
away by statute. Q: Can Department Heads exercise power of control
in behalf of the President?
The President has full control of all the members of his
Cabinet. He may appoint them as he sees fit, shuffle them at A: Yes. The Presidents power of control means his
pleasure, and replace them in his discretion without any power to reverse the judgment of an inferior officer. It
legal inhibition whatever. However, such control is may also be exercised in his behalf by Department
exercisable by the President only over the acts of his
Heads.
subordinates and not necessarily over the subordinate
himself. (Ang-Angco v. Castillo, G.R. No.L-17169, November
NOTE: The Sec. of Justice may reverse the judgment of a
30, 1963)
prosecutor and direct him to withdraw information already
filed. One, who disagrees, however, may appeal to the Office
of the President in order to exhaust administrative remedies
prior filing to the court.

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55 FACULTY OF CIVIL LAW
Political and International Law

Q: Can the Executive Secretary reverse the decision MILITARY POWERS


of another department secretary? In re COMMANDER-IN-CHIEF POWERS

A: Yes. The Executive Secretary when acting by Scope of the Presidents Commander-in-Chief Powers
authority of the President may reverse the decision of
another department secretary. (Lacson-Magallanes 1. Command of the Armed Forces The Commander-
Co., Inc. v. Pao, G.R. No. L-27811, November 17, 1967) in-Chief clause vests on the President, as
Commander-in-Chief, absolute authority over the
LOCAL GOVERNMENT UNITS persons and actions of the members of the armed
forces. (Gudani v. Senga, G.R. No. 170165, August
Power of general supervision 15, 2006)

The power of a superior officer to ensure that the laws NOTE: By making the President the Commander-in-
are faithfully executed by subordinates. The power of Chief of all the armed forces, the principle announced
the President over LGUs is only of general supervision. in Art. II, Sec. III is bolstered. Thus, the Constitution
Thus, he can only interfere in the affairs and activities lessens the danger of a military take-over of the
government in violation of its republican nature.
of a LGU if he finds that the latter acted contrary to
law. The President or any of his alter egos cannot The President as Commander-in-Chief can prevent the
interfere in local affairs as long as the concerned LGU Army General from appearing in a legislative
acts within the parameters of the law and the investigation and, if disobeyed, can subject him to court
Constitution. Any directive, therefore, by the martial. (Gudani v. Senga, G.R. No. 170165, August 15,
President or any of his alter egos seeking to alter the 2006)
wisdom of a law-conforming judgment on local affairs
of a LGU is a patent nullity, because it violates the 2. Calling-out powers Call the armed forces to
principle of local autonomy, as well as the doctrine of prevent or suppress lawless violence, invasion, or
separation of powers of the executive and the rebellion. The only criterion for the exercise of this
legislative departments in governing municipal power is that whenever it becomes necessary.
corporations. (Dadole v. COA, G.R. No. 125350,
December 3, 2002) NOTE: The declaration of a state of emergency is merely
a description of a situation which authorizes her to call
Control v. Supervision out the Armed Forces to help the police maintain law
and order. It gives no new power to her, nor to the
police. Certainly, it does not authorize warrantless
CONTROL SUPERVISION arrests or control of media. (David v. Ermita, G.R. No.
An officer in control The supervisor or 171409, May 3, 2006)
lays down the rules in superintendent merely
the doing of an act. sees to it that the rules The Constitution does not require the President to
are followed, but he declare a state of rebellion to exercise her calling out
himself does not lay power. Sec. 18, Art. VII grants the President, as
down such rules. Commander-in-Chief a sequence of graduated
powers. (Sanlakas v. Executive Secretary, G.R. No.
If the rules are not The supervisor does not
159085, February 3, 2004)
followed, the officer in have the discretion to
control may, in his modify or replace them. If
3. Suspension of the privilege of the writ of habeas
discretion, order the the rules are not
corpus
act undone or re-done observed, he may order
by his subordinate or the work done or re-done NOTE: A writ of habeas corpus is an order from the
he may even decide to but only to conform to court commanding a detaining officer to inform the
do it himself. the prescribed rules. court if he has the person in custody, and what is his
(Drilon v. Lim, G.R. No. basis in detaining that person.
112497, August 4, 1994)
The privilege of the writ is that portion of the writ
NOTE: The power of supervision does not include the power requiring the detaining officer to show cause why he
of control; but the power of control necessarily includes the should not be tested. What is permitted to be
power of supervision. suspended by the President is not the writ itself but its
privilege.

4. He may proclaim martial law over the entire


Philippines or any part thereof.

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EXECUTIVE DEPARTMENT

Requisites for the suspension of the privilege of the 4. It does not automatically suspend the privilege of
writ of habeas corpus the writ of habeas corpus. (Sec. 18 (2), Art. VII)

1. There must be an invasion or rebellion; and NOTE: When martial law is declared, no new powers are
2. Public safety requires the suspension given to the President; no extension of arbitrary authority is
recognized; no civil rights of individuals are suspended. The
NOTE: The invasion and rebellion must be actual and not relation of the citizens to their State is unchanged. The
merely imminent. Supreme Court cannot rule upon the correctness of the
Presidents actions but only upon its arbitrariness.
Non-impairment of the right to bail
Ways to lift the proclamation of martial law
The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. 1. Lifting by the President himself
(Sec. 13, Art. III, 1987 Constitution) 2. Revocation by Congress
3. Nullification by the SC
Limitations on the suspension of the privilege of writ 4. By operation of law after 60 days (Sec. 18, Art. VII)
of habeas corpus
Q: Is the actual use of the armed forces by the
1. Applies only to persons judicially charged for President subject to judicial review?
rebellion or offenses inherent in or directly
connected with invasion; and A: No. While the suspension of the privilege of the writ
2. Anyone arrested or detained during suspension of habeas corpus and the proclamation of martial law
must be charged within 3 days. Otherwise, he is subject to judicial review, the actual use by the
should be released. President of the armed forces is not. Thus, troop
deployments in times of war are subject to the
Guidelines in the declaration of martial law Presidents judgment and discretion. (IBP v. Zamora,
G.R. No. 141284, August 15, 2000)
1. There must be an invasion or rebellion, and
2. Public safety requires the proclamation of martial Q: May the President, in the exercise of peace
law all over the Philippines or any part thereof. negotiations, agree to pursue reforms that would
3. Duration: Not more than 60 days following which require new legislation and constitutional
it shall be automatically lifted unless extended by amendments, or should the reforms be restricted
Congress. only to those solutions which the present laws allow?
4. Duty of the President to report to Congress: within
48 hours personally or in writing. A: If the President is to be expected to find means for
5. Authority of Congress to revoke or extend the bringing this conflict to an end and to achieve lasting
effectivity of proclamation: by majority vote of all peace in Mindanao, then she must be given the leeway
of its members voting jointly. to explore, in the course of peace negotiations,
solutions that may require changes to the Constitution
NOTE: Once revoked by Congress, the President cannot set for their implementation. So long as the President
aside the revocation. limits herself to recommending these changes and
submits to the proper procedure for constitutional
Limitations on the declaration of martial law amendment and revision, her mere recommendation
need not be construed as unconstitutional act. Given
1. It does not suspend the operation of the the limited nature of the Presidents authority to
Constitution; propose constitutional amendments, she cannot
2. It does not supplant the functioning of the civil guarantee to any third party that the required
courts or legislative assemblies; amendments will eventually be put in place, nor even
3. It does not authorize conferment of jurisdiction be submitted to a plebiscite. The most she could do is
over civilians where civil courts are able to submit these proposals as recommendations either to
function; Congress or the people, in whom constituent powers
are vested. (Province of North Cotabato v. Govt of the
NOTE: Civilians cannot be tried by military courts if the Republic of the Philippines Peace panel on Ancestral
civil courts are open and functioning (Open Court Domain, G.R. No. 183591, October 14, 2008)
Doctrine). (Olaguer v. Military Commission No. 34, G.R.
No. L-54558, May 22, 1987)

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57 FACULTY OF CIVIL LAW
Political and International Law

Nature of martial law Role of the Supreme Court in reviewing the factual
bases of the promulgation of a suspension of the
Martial law is a joint power of the President and the privilege of the writ of habeas corpus
Congress. Although Art. VII, Sec. 18 of the 1987
Constitution vests in the President the power to Although the Constitution reserves to the Supreme
proclaim martial law or suspend the privilege of the Court the power to review the sufficiency of the
writ of habeas corpus, he shares such power with the factual basis of the proclamation or suspension in a
Congress. Thus: proper suit, it is implicit that the Court must allow
Congress to exercise its own review powers, which is
1. The Presidents proclamation or suspension is automatic rather than initiated. Only when Congress
temporary, good for only 60 days; defaults in its express duty to defend the Constitution
2. He must, within 48 hours of the proclamation or through such review should the Supreme Court step in
suspension, report his action in person or in as its final rampart. The constitutional validity of the
writing to Congress; Presidents proclamation of martial law or suspension
3. Both houses of Congress, if not in session must of the writ of habeas corpus is first a political question
jointly convene within 24 hours of the in the hands of Congress before it becomes a
proclamation or suspension for the purpose of justiciable one in the hands of the Court. (Fortun v.
reviewing its validity; and PGMA, March 20, 2012)
4. The Congress, voting jointly, may revoke or affirm
the Presidents proclamation or suspension, allow Q: Can the President deploy AFP and PNP personnel
their limited effectivity to lapse, or extend the pursuant to a declaration of a state of emergency in
same if Congress deems warranted. 3 places in Mindanao without an act of Congress?

It is evident that under the 1987 Constitution the A: Yes. The President did not proclaim a national
President and the Congress act in tandem in emergency, only a state of emergency in the three
exercising the power to proclaim martial law or places mentioned. And she did not act pursuant to any
suspend the privilege of the writ of habeas law enacted by Congress that authorized her to
corpus. They exercise the power, not only exercise extraordinary powers. The calling out of the
sequentially, but in a sense jointly since, after the armed forces to prevent or suppress lawless violence
President has initiated the proclamation or the in such places is a power that the Constitution directly
suspension, only the Congress can maintain the vests in the President. She did not need a
same based on its own evaluation of the situation congressional authority to exercise the same. (Datu
on the ground, a power that the President does Zaldy Uy Ampatuan, et al. v. Hon. Ronaldo Puno, et al.,
not have. (Fortun v. Macapagal-Arroyo, G.R. No. G.R. No. 190259, June 7, 2011)
190293, March 20, 2012)
PARDONING POWER
Role of the Supreme Court in inquiring into the
factual bases of the Presidents declaration of a state Pardon
of national emergency
An act of grace, which exempts individual on whom it
While it is true that the Court may inquire into the is bestowed from punishment which the law inflicts for
factual bases for the Presidents exercise of the above a crime he has committed. As a consequence, pardon
power, it would generally defer to her judgment on the granted after conviction frees the individual from all
matter. It is clearly to the President that the the penalties and legal disabilities and restores him to
Constitution entrusts the determination of the need all his civil rights. But unless expressly grounded on the
for calling out the armed forces to prevent and persons innocence (which is rare), it cannot bring back
suppress lawless violence. Unless it is shown that such lost reputation for honesty, integrity and fair dealing.
determination was attended by grave abuse of (Monsanto v. Factoran, G.R. No. 78239, February 9,
discretion, the Court will accord respect to the 1989)
Presidents judgment. (Datu Zaldy Uy Ampatuan, et al.
v. Hon. Ronaldo Puno, et al., G.R. No. 190259. June 7, NOTE: Because pardon is an act of grace, no legal power can
compel the President to give it. Congress has no authority to
2011)
limit the effects of the Presidents pardon, or to exclude from
its scope any class of offenders. Courts may not inquire into
the wisdom or reasonableness of any pardon granted by the
President.

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EXECUTIVE DEPARTMENT

Purpose of pardon (Torres v. Gonzales, G.R. No. L-76872, July 23, 1987)

Relieve the harshness of the law or correcting mistakes Options of the convict when granted pardon
in the administration of justice. The power of
executive clemency is a non-delegable power and 1. Conditional Pardon The offender has the right to
must be exercised by the President personally. reject it since he may feel that the condition
imposed is more onerous than the penalty sought
NOTE: Clemency is not a function of the judiciary; it is an to be remitted.
executive function. The grant is discretionary, and may not 2. Absolute Pardon The pardonee has no option at
be controlled by the legislature or reversed by the court, all and must accept it whether he likes it or not.
save only when it contravenes its limitations. It includes
cases involving both criminal and administrative cases.
NOTE: In this sense, an absolute pardon is similar to
commutation, which is also not subject to acceptance by the
Kinds of executive clemency offender.

1. Pardons (conditional or plenary) Q: Erinn Perez, the assistant city treasurer of


2. Reprieves Caloocan, was convicted of estafa through
3. Commutations falsification of public documents. She was, however,
4. Remission of fines and forfeitures granted an absolute pardon, prompting her to claim
5. Amnesty that she is entitled to be reinstated to her former
public office. Is Erinns contention tenable?
NOTE: The first 4 require conviction by final judgment while
amnesty does not.
A: No. Pardon does not ipso facto restore a convicted
felon neither to his former public office nor to his
Limitations on the Presidents pardoning power rights and privileges, which were necessarily
relinquished or forfeited by reason of the conviction
1. Cannot be granted in cases of impeachment. (Sec. although such pardon undoubtedly restores his
2, Art. XI) eligibility to that office. (Monsanto v. Factoran, G.R.
2. Cannot be granted for violations of election laws No. 78239, February 9, 1989)
without favorable recommendations of the
COMELEC. Reprieve
3. Can be granted only after convictions by final
judgment (except amnesty). The postponement of sentence to a date certain, or
4. Cannot be granted in cases of civil or legislative stay of execution.
contempt.
5. Cannot absolve convict of civil liability. NOTE: It may be ordered to enable the government to secure
6. Cannot restore public offices forfeited. additional evidence to ascertain the guilt of the convict or, in
the case of the execution of the death sentence upon a
Kinds of pardon pregnant woman, to prevent the killing of her unborn child.

As to presence of condition: Commutation


a. Absolute pardon One extended without any
conditions. The reduction or mitigation of the penalty, from death
b. Conditional pardon One under which the convict penalty to life imprisonment, remittances and fines.
is required to comply with certain requirements. Commutation is a pardon in form but not in substance,
because it does not affect his guilt; it merely reduces
As to effect: the penalty for reasons of public interest rather than
a. Plenary pardon Extinguishes all the penalties for the sole benefit of the offender.
imposed upon the offender, including accessory
disabilities partial pardon does not extinguish all NOTE: Commutation does not have to be in any particular
penalties. form. Thus, the fact that a convict was released after 6 years
b. Partial pardon Does not extinguish all the and placed under house arrest, which is not a penalty,
already leads to the conclusion that the penalty has been
penalties.
shortened.
NOTE: A judicial pronouncement that a convict who was
granted a pardon subject to the condition that he should not
again violate any penal law is not necessary before he can be
declared to have violated the condition of her pardon.

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59 FACULTY OF CIVIL LAW
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Q: Can the SC review the correctness of the action of to the past and erases whatever shade of guilt there
the President in granting executive clemency by was. In the eyes of the law, a person granted amnesty
commuting the penalty of dismissal to a dismissed is considered a new-born child.
clerk of court?
Amnesty v. Pardon
A: Yes. By doing so, the SC is not deciding a political
question. What it is deciding is whether or not the AMNESTY PARDON
President has the power to commute the penalty of Addressed to Political Addressed to Ordinary
the said clerk of court. As stated in Daza v. Singson, offenses offenses
G.R. No. 87721-30, December 21, 1989, it is within the Granted to a Class of Granted to Individuals
scope of judicial power to pass upon the validity of the Persons
actions of the other departments of the Government. Requires concurrence Does not require
of majority of all concurrence of
Remission of fines and forfeitures members of Congress Congress
Public act which the Private act which must
Merely prevents the collection of fines or the court may take judicial be pleaded and proved
confiscation of forfeited property. It cannot have the notice of
effect of returning property which has been vested in Looks backward and Looks forward and
third parties or money already in the public treasury. puts to oblivion the relieves the pardonee
offense itself of the consequence of
NOTE: The power of the President to remit fines and the offense
forfeitures may not be limited by any act of Congress. But a
May be granted before Only granted after
statue may validly authorize other officers, such as
department heads or bureau chiefs, to remit administrative or after conviction conviction by final
fines and forfeitures. judgment
Need not be accepted Must be accepted
Probation
DIPLOMATIC POWERS
A disposition under which a defendant after conviction
and sentence is released subject to conditions Scope of the foreign relations powers of the
imposed by the court and to the supervision of a President
probation officer.
1. Negotiate treaties and other international
Parole agreements. However, such treaty or
international agreement requires the
The suspension of the sentence of a convict granted by concurrence of the Senate (Sec. 21, Art. VII) which
a Parole Board after serving the minimum term of the may opt to do the following:
indeterminate sentence penalty, without granting a a. Approve with 2/3 majority;
pardon, prescribing the terms upon which the b. Disapprove outright; or
sentence shall be suspended. c. Approve conditionally, with suggested
amendments which if re-negotiated and the
Amnesty Senates suggestions are incorporated, the
treaty will go into effect without need of
The grant of general pardon to a class of political further Senate approval.
offenders either after conviction or even before the
charges is filed. It is the form of executive clemency 2. Appoint ambassadors, other public ministers, and
which under the Constitution may be granted by the consuls.
President only with the concurrence of the legislature. 3. Receive ambassadors and other public ministers
accredited to the Philippines.
NOTE: Thus, the requisites of amnesty are (a) concurrence of 4. Contract and guarantee foreign loans on behalf of
a majority of all the members of Congress and (b) a previous RP. (Sec. 20, Art. VII)
admission of guilt. 5. Deport aliens:
a. This power is vested in the President by virtue
Effects of the grant of amnesty of his office, subject only to restrictions as
may be provided by legislation as regards to
The total extinguishment of the criminal liability and of the grounds for deportation. (Sec. 69, Revised
the penalty and all its effects. Amnesty reaches back Administrative Code)

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2014 GOLDEN NOTES 60
EXECUTIVE DEPARTMENT

b. In the absence of any legislative restriction to


authority, the President may still exercise this RULES ON SUCCESSION
power.
c. The power to deport aliens is limited by the Rules to be applied if there is vacancy before the
requirements of due process, which entitles beginning of the term of the President
the alien to a full and fair hearing.
d. An alien has the right to apply for bail CAUSE OF VACANCY CONSEQUENCE
provided certain standard for the grant is In case of death or The Vice-President elect
necessarily met. (Government of Hong Kong permanent disability of shall become President.
Special Administrative Region v. Olalia, the President-elect.
G.R.No. 153675, April 19, 2007) In case of failure to The Vice-President shall
elect the President (i.e. act as the President until
NOTE: The adjudication of facts upon which the Presidential elections the President shall have
deportation is predicated devolved on the President
has not been held or been chosen and
whose decision is final and executory. (Tan Tong v.
Deportation Board, G.R. No. L-7680, April 30, 1955)
non-completion of the qualified.
canvass of the
6. Decide that a diplomatic officer who has become Presidential elections)
persona non grata be recalled. In case no President The Senate President, or
7. Recognize governments and withdraw and Vice-President in case of his inability, the
recognition. shall have been chosen Speaker of the HoRs shall
and qualified, or where act as President until a
Sources of the Presidents diplomatic powers both shall have died or President or a Vice-
become permanently President shall have been
1. The Constitution disabled. chosen and qualified.
2. The status of sovereignty and independence
Congress shall by law
A provision in a bill which does not relate to a provide for the manner in
particular appropriation stated in the bill. Since it is an which one who is to act as
invalid provision under Sec. 25, par. 2, Art. VII, 1987 President shall be
Constitution, the President may veto it as an item. selected until a President
or a Vice-President shall
NOTE: The Presidents powers over foreign affairs makes the have qualified, in case of
President the chief architect of foreign relations. By reason death, permanent
of the President's unique position as Head of State, he is the disability or inability of
logical choice as the nation's spokesman in foreign relations. the officials.
The Senate, on the other hand, is granted the right to share
in the treaty-making power of the President by concurring Rules to be applied if the vacancy occurs during the
with him with the right to amend.
incumbency of the President
RESIDUAL POWER
CAUSE OF CONSEQUENCE
VACANCY
Whatever power inherent in the government that is
In case of : The Vice President shall
neither legislative nor judicial has to be executive.
a. Death; become the President
These unstated residual powers are implied from the
b. Permanent Disability; to serve the unexpired
grant of executive power and which are necessary for
c. Removal from office; term.
the President to comply with his duties under the
or
Constitution. (Marcos v. Manglapus, G.R. No. 88211,
d. Resignation of the
October 27, 1989)
President

In case of : The Senate President,


a. Death; or in case of his
b. Permanent Disability; inability, the Speaker of
c. Removal from office; the HoRs, shall act as
or President until the
President or Vice

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61 FACULTY OF CIVIL LAW
Political and International Law

d. Resignation of both President shall have his written declaration


the President and ben elected and that no inability exists.
the Vice-President qualified.

Rules and procedure to be followed if a vacancy


occurs in the offices of the President and Vice-
President

1. At 10:00 A.M. of the third day after said vacancy


occurs Congress shall convene in accordance
with its rules without need of call.
2. Within 7 days Congress shall enact a law calling
for a special election to elect a President and a
Vice President.
3. Said special election shall be held Not earlier
than forty-five (45) days nor later than sixty (60)
days from the time of such call.
4. The bill calling such special election Shall be
deemed certified under Sec. 26, par. 2, Art. VI of
this Constitution and shall become law upon its
approval on third reading by Congress.
5. Appropriations for said special election Shall be
charged against any current appropriations and
shall be exempt from the requirements of, Sec. 25,
par. 4, Art. VI of the Constitution.
6. The convening of Congress and the special
electioncannot be suspended or postponed
7. No special election shall be calledIf the vacancy
occurs within eighteen (18) months before the
date of the next presidential elections.

Instances when there is presidential inability to


discharge powers and duties of his office

INSTANCE CONSEQUENCE
When the President The powers and
transmits to the Senate duties of his office
President and to the shall be discharged by
Speaker of the HoR his the Vice-President as
written declaration that Acting President.
he is unable to discharge
the powers and duties of
his office.

When a majority of all The Vice-President


the members of the shall immediately
Cabinet transmit to the assume the powers
Senate President and to and duties of the
the Speaker of the HoR office as Acting
their written declaration President.
that the President is
unable to discharge the NOTE: The President
powers and duties of his can reassume power
office . and duties of his office
once he transmits to the
Senate President and to
the Speaker of the HoR

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JUDICIAL DEPARTMENT

JUDICIAL DEPARTMENT a party who possesses locus standi or the standing to


challenge it brings the constitutional question or the
JUDICIAL POWER assailed illegal movement or act before it.

Judicial power 2. Proper party One who has sustained or is in


immediate danger of sustaining an injury as a
The duty of the courts of justice to settle actual result of the act complained of. To have standing,
controversies involving rights, which are legally one must show that 1) he has suffered some
demandable and enforceable and to determine actual or threatened injury as a result of the
whether or not there has been a grave abuse of allegedly illegal conduct of the government; 2) the
discretion amounting to lack or excess of jurisdiction injury is fairly traceable to the challenged action;
on the part of any branch or instrumentality of the 3) the injury is likely to be redressed by a favorable
Government. (Sec. 1[2], Art. VIII) action. (Francisco, Jr. & Hizon v. Toll Regulatory
Board, et. al., G.R. Nos. 166910, October 19, 2010)
Body vested with judicial power
Locus Standi v. Real party-in-interest
It is vested in one Supreme Court (SC) and such lower
courts as may be established by law. (Sec. 1, Art. VIII) LOCUS STANDI REAL PARTY-IN-
INTEREST
Judicial inquiry One who has The party who stands to
sustained or is in be benefited or injured
The power of the court to inquire into the exercise of imminent danger of by the judgment in the
discretionary powers to determine whether there has sustaining an injury as suit, or the part entitled
been a grave abuse of discretion amounting to lack or a result of the act to the avails of the suit.
excess of jurisdiction. complained of (direct Unless otherwise
injury test). (Ex Parte authorized by law or
JUDICIAL REVIEW Levitt, 302 U.S. 633) these Rules, every action
must be prosecuted or
Judicial review defended in the name of
the real party in interest.
The power of the SC to declare a law, treaty, ordinance (Sec. 2, Rule 3, Rules of
and other governmental act unconstitutional. Court)
Has constitutional A concept of civil
NOTE: When the judiciary mediates to allocate underpinnings procedure
constitutional boundaries, it does not assert any superiority Whether such parties Whether he is "the party
over other departments; it does not in reality nullify or have "alleged such a who would be benefited
invalidate an act of the legislature, but only asserts the personal stake in the or injured by the
solemn and sacred obligation assigned to it by the outcome of the judgment, or the 'party
Constitution to determine conflicting claims of authority
controversy as to entitled to the avails of
under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures assure that concrete the suit. (Francisco v.
and guarantees to them. This is in truth all that is involved in adverseness which House of
what is termed as judicial supremacy, which properly is the sharpens the Representatives, G.R. No.
power of judicial review under the Constitution. (Angara v. presentation of issues 160261, November 10,
The Electoral Commission, et. al., G.R. No. L-45081, July 15, upon which the court 2003)
1936) so largely depends for
illumination of
Requisites of judicial review difficult constitutional
questions."
1. Actual case An existing case or controversy
which is both ripe for resolution and susceptible NOTE: One who stands in that status sues to secure judicial
of judicial determination, and that which is not relief that would benefit other persons or the community as
conjectural or anticipatory, or that which seeks to a whole is called a non-Hohfeldian plaintiff.
resolve hypothetical or feigned constitutional
problems. There are many examples of non-Hohfeldian plaintiffs whose
prosecution in behalf of others is authorized by the common
NOTE: But even with the presence of an actual case or law: (l) the qui tam plaintiff-one who sues primarily to
controversy, the Court may refuse judicial review unless benefit a public entity-is typically non-Hohfeldian; (2) in a

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63 FACULTY OF CIVIL LAW
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stockholder's derivative suit the plaintiff stands in the very before the Court of Appeals (CA), which is the
same category as a qui tam plaintiff; (3) in actions by bailee competent court, the constitutional question was
for recovery of damage to bailed personality, the bailee may raised at the earliest opportune time. (Estarija v.
press a claim for conversion of, or injury to, the chattel, Ranada, G.R. No. 159314, June 26, 2006)
though ownership of the damaged or lost chattel remains in
the bailor; (4) actions for recovery in behalf of an underage 4. Necessity of deciding constitutional questions
child. As a joint act of the legislative and executive
authorities, a law is supposed to have been
Legal personality carefully studied and determined to be
constitutional before it was finally enacted. As
GR: If there is no actual or potential injury, long as there are other bases which courts can
complainant has no legal personality to raise use for decision, constitutionality of the law will
constitutional questions. not be touched.

XPN: If the question is of transcendental Requisites before a law can be declared partially
importance. unconstitutional
NOTE: The Principle of Transcendental Importance is
1. The legislature must be willing to retain valid
determined by:
portion (separability clause);
1. The character of the funds or other assets involved
in the case; 2. The valid portion can stand independently as law.
2. The presence of a clear case of disregard of a
constitutional or statutory prohibition by the Principle of Stare Decisis
public respondent agency or instrumentality of the
government; Deemed of imperative authority, controlling the
3. The lack of any other party with a more direct and decisions of like cases in the same court and in lower
specific interest in raising the questions being courts within the same jurisdiction, unless and until
raised. (Francisco, Jr. v. House of Representatives,
the decision in question is reversed or overruled by a
G.R. No. 160261, November 10, 2003)
court of competent authority. (De Castro v. JBC, G.R.
3. Earliest opportunity Constitutional question No. 191002, April 20, 2010)
must be raised at the earliest possible
opportunity. Slippery Slope Doctrine

GR: It must be raised in pleadings. The slippery slope argument is the claim that "we
ought not to make a sound decision today, for fear of
XPN: having to draw a sound distinction tomorrow. To
1. Criminal case It may be brought at any stage critics of slippery slope arguments, the arguments
of the proceedings according to the themselves sound like a slippery slope: if you accept
discretion of the judge (trial or appeal) this slippery slope argument, then you'll end up
because no one shall be brought within the accepting the next one and then the next one until you
terms of the law who are not clearly within eventually slip down the slope to rejecting all
them and the act shall not be punished when government power (or all change from the status quo),
the law does not clearly punish them. and thus "break down every useful institution of man.
2. Civil case It may be brought anytime if the
resolution of the constitutional issue is Q: Is the SC obliged to follow precedents?
inevitable in resolving the main issue.
3. When the jurisdiction of the lower court is in A: No. The Court, as the highest court of the land, may
question except when there is estoppel. be guided but is not controlled by precedent. Thus, the
Court, especially with a new membership, is not
NOTE: The earliest opportunity to raise a constitutional obliged to follow blindly a particular decision that it
issue is to raise it in the pleadings before a competent determines, after re-examination, to call for a
court that can resolve the same, such that, if not raised rectification. (De Castro v. JBC, G.R. No. 191002, April
in the pleadings, it cannot be considered in trial and, if 20, 2010)
not considered in trial, it cannot be considered on
appeal. Functions of judicial review
The Ombudsman has no jurisdiction to entertain
1. Checking Invalidating a law or executive act that
questions regarding constitutionality of laws. Thus,
when the issue of constitutionality of a law was raised is found to be contrary to the Constitution.

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JUDICIAL DEPARTMENT

2. Legitimizing Upholding the validity of the law Moot and academic


that results from a mere dismissal of a case
challenging the validity of the law. It is moot and academic when it ceases to present a
3. Symbolic To educate the bench and bar as to the justiciable controversy by virtue of supervening events
controlling principles and concepts on matters of so that a declaration thereon would be of no practical
grave public importance for the guidance of and use or value.
restraint upon the future. (Igot v. COMELEC, G.R.
No. L-352245, January 22, 1980) Court actions over moot and academic cases

Power of judicial review in impeachment proceedings GR: The courts should decline jurisdiction over such
includes the power of review over justiciable issues in cases or dismiss it on ground of mootness.
impeachment proceedings. (Francisco, Jr. v. House of
Representatives, G.R. No. 160261, November 10, 2003) XPNs:
1. There is a grave violation of the Constitution
Doctrine of Relative Constitutionality 2. There is an exceptional character of the situation
and the paramount public interest is involved
Where the constitutionality of certain rules may 3. When the constitutional issue raised requires
depend upon the times and get affected by the formulation of controlling principles to guide the
changing of the seasons. A classification that might bench, the bar, and the public
have been perfectly all right at the time of its inception 4. The case is capable of repetition yet evading
may be considered dubious at a later time. review. (David v. Arroyo, G.R. No. 171396, May 3,
2006)
OPERATIVE FACT DOCTRINE
Q: Atty. Al Conrad filed a petition to set aside the
Doctrine of Operative Fact award of the ZTE-DOTC Broadband Deal. The OSG
opposed the petition on the ground that the Legal
Under this doctrine, the law is recognized as Service of the DOTC has informed it of the Philippine
unconstitutional but the effects of the Governments decision not to continue with the ZTE-
unconstitutional law, prior to its declaration of nullity, NBN Project. That said, there is no more justiciable
may be left undisturbed as a matter of equity and fair controversy for the court to resolve. Hence, the OSG
play. It is a rule of equity. (League of Cities of the claimed that the petition should be dismissed. Atty.
Philippines v. COMELEC, G.R. No. 176951, November Al Conrad countered by saying that despite the
18, 2008) mootness, the Court must nevertheless take
cognizance of the case and rule on the merits due to
NOTE: The invocation of this doctrine is an admission that the Courts symbolic function of educating the bench
the law is unconstitutional. and the bar by formulating guiding and controlling
principles, precepts, doctrines, and rules. Decide.
Applicability on executive acts
A: The OSG is correct. The petition should be dismissed
The Operative Fact Doctrine also applies to executive for being moot. Judicial power presupposes actual
acts subsequently declared as invalid. A decision made controversies, the very antithesis of mootness. In the
by the president or the administrative agencies has to absence of actual justiciable controversies or disputes,
be complied with because it has the force and effect of the Court generally opts to refrain from deciding moot
law. (Hacienda Luisita Inc., v. Presidential Agrarian issues. Where there is no more live subject of
Reform Council, et. al., G.R. No. 171101, November 22, controversy, the Court ceases to have a reason to
2011) render any ruling or make any pronouncement.
(Suplico v. NEDA, G.R. Nos. 178830, July 14, 2008)
MOOT QUESTIONS
POLITICAL QUESTIONS
Moot questions
Political Question Doctrine
Questions on which a judgment cannot have any
practical legal effect or, in the nature of things, cannot The doctrine that the power of judicial review cannot
be enforced. (Baldo, Jr. v. COMELEC, G.R. No. 176135, be exercised when the issue is a political question. It
June 16, 2009) constitutes another limitation on such power of the
judiciary.

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Political questions SAFEGUARDS OF JUDICIAL INDEPENDENCE

Those questions which, under the Constitution, are to Constitutional safeguards that guarantee the
be decided by the people in their sovereign capacity, independence of the judiciary
or in regard to which full discretionary authority has
been delegated to the legislative or executive branch 1. The SC is a constitutional body and may not be
of the government. (Taada v. Cuenco, G.R. No. L- abolished by law.
10520, February 28, 1957) 2. Members are only removable by impeachment.
(Sec. 2, Art. XI, 1987 Constitution)
Justiciable questions v. Political questions 3. The SC may not be deprived of its minimum and
appellate jurisdiction; appellate jurisdiction may
JUSTICIABLE POLITICAL QUESTIONS not be increased without its advice or
QUESTIONS concurrence. (Sec. 2, Art VIII, 1987 Constitution)
Imply a given right Questions which involve 4. The SC has administrative supervision over all
legally demandable and the policy or the wisdom inferior courts and personnel. (Sec. 6, Art. VIII,
enforceable, an act or of the law or act, or the 1987 Constitution)
omission violative of morality or efficacy of 5. The SC has exclusive power to discipline
such right, and a the same. Generally it judges/justices of inferior courts. (Sec, 22, Art. VIII,
remedy granted and cannot be inquired by 1987 Constitution)
sanctioned by law for the courts. Further, 6. The members of the judiciary enjoy security of
said breach of right. these are questions tenure. (Sec. 2 [2], Art. VIII, 1987 Constitution)
which under the 7. The members of the judiciary may not be
Constitution: designated to any agency performing quasi-
a. Are decided by the judicial or administrative functions. (Sec 12, Art.
people in their VIII, 1987 Constitution)
sovereign capacity; 8. The salaries of judges may not be reduced; the
and judiciary enjoys fiscal autonomy. (Sec. 3, Art. VIII,
b. Where full 1987 Constitution)
discretionary 9. The SC alone may initiate the promulgation of the
authority has been Rules of Court. (Sec. 5 [5], Art. VIII, 1987
delegated by the Constitution)
Constitution either to 10. The SC alone may order temporary detail of
the executive or judges. (Sec. 5 [3], Art. VIII, 1987 Constitution)
legislative 11. The SC can appoint all officials and employees of
department. the Judiciary. (Sec. 5 [6], Art. VIII, 1987
Constitution)
Effect of the expanded definition of judicial power on
the political question doctrine Constitutional guarantee of fiscal autonomy

The 1987 Constitution expands the concept of judicial In Bengzon v. Drilon, G.R. No. 103524, April 15, 1992,
review. Under the expanded definition, the Court the SC explained that fiscal autonomy contemplates a
cannot agree that the issue involved is a political guarantee of full flexibility to allocate and utilize
question beyond the jurisdiction of the court to resources with the wisdom and dispatch that the
review. When the grant of power is qualified, needs require. It recognizes the power and authority
conditional or subject to limitations, the issue of to deny, assess and collect fees, fix rates of
whether the prescribed qualifications or conditions compensation not exceeding the highest rates
have been met or the limitations respected is authorized by law for compensation and pay plans of
justiciablethe problem being one of legality or the government and allocate and disburse such sums
validity, not its wisdom. Moreover, the jurisdiction to as may be provided by law or prescribed by it in the
delimit constitutional boundaries has been given to course of the discharge of its functions.
the SC. When political questions are involved, the
Constitution limits the delimitation as to 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 action is being questioned.

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JUDICIAL DEPARTMENT

JUDICIAL RESTRAINT Composition of the JBC

Principle of Judicial Restraint 1. Chief Justice, as ex-officio chairman


2. Secretary of Justice, as an ex-officio member
Theory of judicial interpretation that encourages 3. Representative of Congress, as an ex- officio
judges to limit the exercise of their own power. member
4. Representative of the Integrated Bar
In terms of legislative acts, the principle of judicial 5. A professor of law
restraint means that every intendment of the law must 6. A retired member of the SC
be adjudged by the courts in favor of its 7. Private sector representative
constitutionality, invalidity being a measure of last
resort. In construing therefore the provisions of a Representative of Congress in the JBC
statute, courts must first ascertain whether an
interpretation is fairly possible to sidestep the Only one. The word Congress used in Sec. 8(1), Art.
question of constitutionality. (Estrada v. VIII of the Constitution is used in its generic sense. No
Sandiganbayan, G.R. No. 148560, November 19, 2001) particular allusion whatsoever is made on whether the
Senate or the HoR is being referred to, but that, in
NOTE: The doctrine of separation of powers imposes upon either case, only a singular representative may be
the courts proper restraint born of the nature of their allowed to sit in the JBC. The seven-member
functions and of their respect for the other departments in composition of the JBC serves a practical purpose, that
striking down acts of the legislature as unconstitutional.
is, to provide a solution should there be a stalemate in
(Francisco, Jr. v. The House of Representatives, G.R. No.
voting.
160261, Bellosillo J., Separate Opinion, November 10, 2003)

APPOINTMENTS TO THE JUDICIARY It is evident that the definition of Congress as a


bicameral body refers to its primary function in
Judicial appointment government to legislate. In the passage of laws, the
Constitution is explicit in the distinction of the role of
The members of the judiciary are appointed by the each house in the process. The same holds true in
President of the Philippines from among a list of at Congress non-legislative powers. An inter-play
least three nominees prepared by the Judicial and Bar between the two houses is necessary in the realization
Council (JBC) for every vacancy. of these powers causing a vivid dichotomy that the
Court cannot simply discount. This, however, cannot
NOTE: The appointment shall need no confirmation from the be said in the case of JBC representation because no
Commission on Appointments. (Sec. 9, Art. VIII) liaison between the two houses exists in the workings
of the JBC. Hence, the term Congress must be taken
Rules on vacancies in the SC to mean the entire legislative department. The
Constitution mandates that the JBC be composed of
1. Vacancies in the SC should be filled within 90 days seven (7) members only. (Chavez v. Judicial and Bar
from the occurrence of the vacancy. Council, G.R. No. 202242, July 17, 2012)
2. Vacancies in lower courts should be filled within
90 days from submission to the President of the Functions of the JBC
JBC list.
3. The filling of the vacancy in the Supreme Court The principal function of the JBC is to recommend
within the 90-day period is an exception to the appointees to the judiciary. It may, however, exercise
prohibition on midnight appointments of the such functions as the SC may assign to it. (Sec. 8, Art.
president. This means that even if the period falls VIII)
on the period where the president is prohibited
from making appointments (midnight NOTE: The duty of the JBC to submit a list of nominees
before the start of the Presidents mandatory 90-day period
appointments); the president is allowed to make
to appoint is ministerial, but its selection of the candidates
appointments to fill vacancies in the Supreme
whose names will be in the list to be submitted to the
Court. (De Castro v. JBC, G.R. No. 191002, April 20, President lies within the discretion of the JBC. (De Castro v.
2010) JBC, G.R. No. 191002, March 17, 2010)

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67 FACULTY OF CIVIL LAW
Political and International Law

Tenure of the members of the SC and judges 6. Administrative cases involving the discipline or
dismissal of judges of lower courts;
Members of the SC and judges of lower courts can hold 7. Election contests for president or vice-president.
office during good behavior until:
1. The age of 70 years old; or NOTE: Other cases or matters may be heard in division, and
2. They become incapacitated to discharge their decided or resolved with the concurrence of a majority of
duties. the members who actually took part in the deliberations on
the issues and voted thereon, but in no case without the
concurrence of at least three such members.
General qualification for appointments to the
judiciary No law shall be passed increasing the appellate jurisdiction
of the SC as provided in the Constitution without its advice
Of proven competence, integrity, probity and and concurrence. (Sec. 30, Art. VI)
independence. (Sec. 7 [3], Art. VIII)
PROCEDURAL RULE-MAKING POWER
Qualifications for appointments to the SC
Scope of the rule making power of the SC
1. Natural born citizen of the Philippines;
2. At least 40 years of age; 1. The protection and enforcement of constitutional
3. A judge of a lower court or engaged in the practice rights
of law in the Philippines for 15 years or more. (Sec. 2. Pleadings, practice and procedure in all courts
7 [1], Art. VIII) 3. Admission to the practice of law
4. The Integrated Bar
General qualifications for appointments to lower 5. Legal assistance to the underprivileged
collegiate courts
Limitations on its rule making power
1. Natural born citizen of the Philippines;
2. Member of the Philippine Bar. 1. It should provide a simplified and inexpensive
procedure for the speedy disposition of cases.
General qualifications for appointments to lower 2. It should be uniform for all courts of the same
courts grade.
3. It should not diminish, increase, or modify
1. Citizen of the Philippines; substantive rights.
2. Member of the Philippine Bar.
ADMINISTRATIVE SUPERVISION OVER LOWER
NOTE: For both lower collegiate courts and lower courts, COURTS
Congress may prescribe other qualifications. (Sec. 7 [1] and
[2], Art. VIII)
SCs disciplinary power over judges of lower court
SUPREME COURT 1. Only the SC en banc has jurisdiction to discipline
or dismiss judges of lower courts.
EN BANC DECISIONS 2. Disciplinary action/dismissal Majority vote of
the SC Justices who took part in the deliberations
Cases that should be heard by the SC en banc and voted therein. (Sec. 11, Art. VIII)
1. All cases involving the constitutionality of a treaty, NOTE: The Constitution provides that the SC is given
international or executive agreement, or law; exclusive administrative supervision over all courts and
2. All cases which under the Rules of Court may be judicial personnel.
required to be heard en banc;
3. All cases involving the constitutionality, Administrative cases, which the SC may hear en banc,
application or operation of presidential decrees, under Bar Matter No. 209, include:
proclamations, orders, instructions, ordinances,
and other regulations; 1. Administrative judges;
4. Cases heard by a division when the required 2. Disbarment of lawyers;
majority in the division is not obtained; 3. Suspension of more than 1 year; or
5. Cases where the SC modifies or reverses a 4. Fine exceeding Php10, 000. (People v. Gacott, G.R.
doctrine or principle of law previously laid either No. 110930, July 13, 1995)
en banc or in division;

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2014 GOLDEN NOTES 68
JUDICIAL DEPARTMENT

Q: Does the CSC have jurisdiction over an employee confidential matters, which refer to information not
of the judiciary for acts committed while said yet publicized by the Court like (1) raffle of cases, (2)
employee was still in the executive branch? actions taken in each case in the Courts agenda, and
(3) deliberations of the Members in court sessions on
A: No. Administrative jurisdiction over a court cases matter pending before it. This privilege,
employee belongs to the SC, regardless of whether the however, is not exclusive to the Judiciary and it
offense was committed before or after employment in extends to the other branches of government due to
the Judiciary. (Ampong v. CSC, G.R. No. 167916, August our adherence to the principle of separation of
26, 2008) powers. (IN RE: Production of Court Records and
Documents and the Attendance of Court Officials and
ORIGINAL AND APELLATE JURISDICTION OF SC Employees as Witnesses under the Subpoenas of
February 10, 2012 and the Various Letters of the
Original jurisdiction v. Appellate jurisdiction Impeachment Prosecution Panel dated January 19 and
25, 2012, February 14, 2012)
1. Original Jurisdiction - A court has original
jurisdiction when it is the proper court to first hear Purpose of Judicial Privilege
the case. This is where the court makes
determinations of law and fact. The DPP is intended to prevent the chilling of
e.g.: deliberative communications. It insulates the Judiciary
a. Over cases affecting ambassadors, other from an improper intrusion into the functions of the
public ministers and consuls; judicial branch and shields judges, justices, and court
b. Over petitions for certiorari, prohibition, officials and employees from public scrutiny or the
mandamus, quo warranto, and habeas pressure of public opinion that would impair their
corpus; and ability to render impartial decisions. (Ibid.)
c. Review of the martial law or suspension of
the privilege of writ of habeas corpus. Requisites for a document to be protected by DPP

2. Appellate Jurisdiction - A court has appellate It must be shown that the document is both (1)
jurisdiction when it is reviewing a case that has predecisional and (2) deliberative. A document is
already been heard by a lower court and it only predecisional if they were made in the attempt to
looks at the matters of law. reach a final decision, and it is deliberative if it reflects
e.g.: the give-and-take of the consultative process such as
a. Over final judgments and orders of lower the disclosure of the information would discourage
courts in all cases in which the open discussion within the agency. Court records
constitutionality or validity of any treaty, which are predecisional and deliberative in nature are
international or executive agreement, law, thus protected and cannot be the subject of subpoena
presidential decree, proclamation, order, if judicial privilege is to be preserved. (Ibid.)
instruction, ordinance, or regulation is in
question; Q: During the impeachment proceedings against the
b. All cases involving the legality of any tax SC Chief Justice, the House Impeachment Panel,
impost, assessment or toil, or any penalty through letters, asked for the examination of records
imposed in relation thereto; and the issuance of certified true copies of the rollos
c. All cases in which the jurisdiction of any lower and the Agenda and Minutes of Deliberations of
court is in issue; specific SC-decided cases. Also, the same panel
d. All criminal cases in which the penalty requested for the attendance of court officials
imposed is reclusion perpetua or higher; and including judges, justices, and employees as
e. All cases in which only a question of law is witnesses under subpoenas. May judges, justices,
involved and Court officials and employees testify in an
impeachment proceeding against a Member of the
JUDICIAL PRIVILEGE Court on confidential matters learned in their official
capacity?
Judicial Privilege (Deliberative Process Privilege)
A: No. Members of the Court may not be compelled to
Deliberative process privilege is the privilege against testify in the impeachment proceedings against the
disclosure of information or communications that Chief Justice or other Members of the Court about
formed the process of judicial decisions. This applies to information acquired in the performance of their

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69 FACULTY OF CIVIL LAW
Political and International Law

official adjudicatory functions and duties; otherwise,


their disclosure of confidential matters learned in their
official capacity violates judicial privilege as it pertains
to the exercise of the constitutional mandate of
adjudication. (Ibid.)

XPN: If the intent only is for them to identify or certify


the genuineness of documents within their control
that are not confidential and privileged, their
presence in the Impeachment Court may be excused.

Q: May an individual SC Justice waive judicial


privilege?

A: No. This privilege, incidentally, belongs to the


Judiciary and is for the Supreme Court (as the
representative and entity speaking for the Judiciary),
and not for the individual justice, judge, or court
official or employees to waive. Thus, every proposed
waiver must be referred to the Supreme Court for its
consideration and approval. (Ibid.)

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2014 GOLDEN NOTES 70
CONSTITUTIONAL COMMISSIONS

CONSTITUTIONAL COMMISSIONS A of the Constitution. The automatic release of approved


annual appropriations to a Constitutional Commission
Constitutional Commissions vested with fiscal autonomy should thus be construed to
mean that no condition to fund releases may be imposed.
(CSC v. DBM, G.R. No. 158791, July 22, 2005)
1. Civil Service Commission (CSC)
2. Commission on Elections (COMELEC)
Requisites for the effective operation of the
3. Commission on Audit (CoA)
rotational scheme of terms of constitutional bodies
NOTE: The CSC, COMELEC, and CoA are equally pre-eminent
in their respective spheres. Neither one may claim 1. The original members of the Commission shall
dominance over the others. In case of conflicting rulings, it is begin their terms on a common date;
the judiciary, which interprets the meaning of the law and 2. Any vacancy occurring before the expiration of
ascertains which view shall prevail. (CSC v. Pobre, G.R. No. the term shall be filled only for the balance of such
160508, September 15, 2004) term. (Republic v. Imperial, G.R. No. L-8684,
March 31, 1995)
Purpose
POWERS AND FUNCTIONS OF EVERY COMMISSION
The creation of the Constitutional Commissions is
established in the Constitution because of the CIVIL SERVICE COMMISSION
extraordinary importance of their functions and the
need to insulate them from the undesired political As the central personnel agency of the government, it:
interference or pressure. Their independence cannot 1. Establishes a career service;
be assured if they were to be created merely by 2. Adopts measures to promote morale, efficiency,
statute. integrity, responsiveness, progressiveness and
courtesy in the Civil Service;
CONSTITUTIONAL SAFEGUARDS TO ENSURE 3. Strengthens the merits and rewards system;
INDEPENDENCE OF COMMISSIONS 4. Integrates all human resources and development
programs for all levels and ranks;
Guarantees of independence provided for by the 5. Institutionalizes a management climate conducive
Constitution to the 3 Commissions to public accountability. (Sec. 3, Art. IX-B)

1. They are constitutionally-created; may not be COMMISSION ON ELECTIONS


abolished by statute of its judicial functions.
2. Each is conferred certain powers and functions Constitutional powers and functions of the COMELEC
which cannot be reduced by statute.
3. Each is expressly described as independent. 1. Enforce and administer all laws and regulations
4. Chairmen and members are given fairly long term relative to the conduct of an election, plebiscite,
of office for 7 years. initiative, referendum, and recall.
5. Chairmen and members cannot be removed
except by impeachment. 2. Exercise:
6. Chairmen and members may not be reappointed a. Exclusive original jurisdiction over all contests
or appointed in an acting capacity. relating to the election, returns and
7. Salaries of chairmen and members are relatively qualifications of all elective:
high and may not be decreased during ii. Regional
continuance in office. iii. Provincial
8. Commissions enjoy fiscal autonomy. iv. City officials
9. Each commission may promulgate its own b. Exclusive appellate jurisdiction over all
procedural rules. contests involving:
10. Chairmen and members are subject to certain i. Elective municipal officials decided by
disqualifications calculated to strengthen their trial courts of general jurisdiction.
integrity. ii. Elective barangay officials decided by
11. Commissions may appoint their own officials and courts of limited jurisdiction.
employees in accordance with Civil Service Law. c. Contempt powers
i. COMELEC can exercise this power only in
NOTE: The Supreme Court held that the no report, no relation to its adjudicatory or quasi-
release policy may not be validly enforced against offices judicial functions. It cannot exercise this
vested with fiscal autonomy, without violating Sec. 5, Art. IX-

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71 FACULTY OF CIVIL LAW
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in connection with its purely executive or 8. Recommend to the President the removal of any
ministerial functions. officer or employee it has deputized, or the
ii. If it is pre-proclamation controversy, the imposition of any other disciplinary action, for
COMELEC exercises quasi-judicial/ violation or disregard of, or disobedience to its
administrative powers. directive, order, or decision.
iii. Its jurisdiction over contests (after 9. Submit to the President and the Congress a
proclamation), is in exercise of its judicial comprehensive report on the conduct of each
functions. election, plebiscite, initiative, referendum, or
recall.
NOTE: The COMELEC may issue writs of certiorari,
prohibition, and mandamus in exercise of its Q: All election cases, including pre-proclamation
appellate functions. controversies, must be decided by the COMELEC in
division. Should a party be dissatisfied with the
3. Decide, except those involving the right to vote, all decision, what remedy is available?
questions affecting elections, including
determination of the number and location of A: The disatisfied party may file a motion for
polling places, appointment of election officials reconsideration before the COMELEC en banc. If the en
and inspectors, and registration of voters. bancs decision is still not favorable, the same, in
accordance with Sec. 7, Art. IX-A, may be brought to
NOTE: Questions involving the right to vote fall within
the Supreme Court on certiorari. (Reyes v. RTC of
the jurisdiction of ordinary courts.
Oriental Mindoro, G.R. No. 108886, May 5, 1995)
4. Deputize, with the concurrence of the President,
NOTE: The fact that decisions, final orders or rulings of the
law enforcement agencies and instrumentalities COMELEC in contests involving elective municipal and
of the government, including the AFP, for the barangay offices are final, executory and not appealable,
exclusive purpose of ensuring free, orderly, (Art. IX-C, Sec. 2[2]) does not preclude recourse to the
honest, peaceful and credible elections. Supreme Court by way of a special civil action of certiorari.
(Galido v. COMELEC, G.R. No. 95346, January 18, 1991)
5. Registration of political parties, organizations, or
coalitions and accreditation of citizens arms of Q: Can the COMELEC exercise its power of contempt
the COMELEC. in connection with its functions as the National Board
of Canvassers during the elections?
6. File, upon a verified complaint, or on its own
initiative, petitions in court for inclusion or A: Yes. The effectiveness of the quasi-judicial power
exclusion of voters; investigate and, where vested by law on a government institution hinges on
appropriate, prosecute cases of violations of its authority to compel attendance of the parties
election laws, including acts or omissions and/or their witnesses at the hearings or proceedings.
constituting election frauds, offenses and In the same vein, to withhold from the COMELEC the
malpractices. power to punish individuals who refuse to appear
a. COMELEC has exclusive jurisdiction to during a fact-finding investigation, despite a previous
investigate and prosecute cases for violations notice and order to attend would render nugatory the
of election laws. COMELECs investigative power, which is an essential
b. COMELEC can deputize prosecutors for this incident to its constitutional mandate to secure the
purpose. The actions of the prosecutors are conduct of honest and credible elections. (Bedol v.
the actions of the COMELEC. COMELEC, G.R. No. 179830, December 3, 2009)

NOTE: Preliminary investigations conducted by the COMMISSION ON AUDIT


COMELEC are valid.
Powers and duties of COA
7. Recommend to the Congress effective measures
to minimize election spending, including 1. Examine, audit and settle all accounts pertaining
limitation of places where propaganda materials to revenue and receipts of, and expenditures or
shall be posted, and to prevent and penalize all uses of funds and property owned or held in trust
forms of election frauds, offenses, malpractices, or pertaining to government.
and nuisance candidacies. 2. Keep general accounts of government and
preserve vouchers and supporting papers.

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2014 GOLDEN NOTES 72
CONSTITUTIONAL COMMISSIONS

3. Authority to define the scope of its audit and COMMISSION ON ELECTION


examination, establish techniques and methods
required therefore. Cases that fall under the jurisdiction of COMELEC by
4. Promulgate accounting and auditing rules and division
regulations, including those for prevention and
disallowance. (Sec. 2, Art. IX-D) Election cases should be heard and decided by a
division. If a division dismisses a case for failure of
Q: The PNB was then one of the leading government- counsel to appear, the MR may be heard by the
owned banks and it was under the audit jurisdiction division.
of the COA. A few years ago, it was privatized. What
is the effect, if any, of the privatization of PNB on the NOTE: According to Balajonda v. COMELEC, G.R. No. 166032,
audit jurisdiction of the COA? February 28, 2005, the COMELEC can order immediate
execution of its own judgments.
A: Since the PNB is no longer owned by the
Government, the COA no longer has jurisdiction to Cases that fall under the jurisdiction of COMELEC en
audit it as an institution. Under Sec. 2(2), Art. IX-D of banc
the Constitution, it is a GOCC and their subsidiaries
which are subject to audit by the COA. However, in Motion for Reconsideration of decisions should be
accordance with Sec. 2(1), Art. IX-D, the COA can audit decided by COMELEC en banc. It may also directly
the PNB with respect to its accounts because the assume jurisdiction over a petition to correct manifest
Government still has equity in it. (PAL v. COA, G.R. No. errors in the tallying of results by Board of Canvassers.
91890, June 9, 1995)
NOTE: Any decision, order or ruling of the COMELEC in the
exercise of its quasi-judicial functions may be brought to the
PROHIBITED OFFICES & INTERESTS
SC on certiorari under Rules 64 and 65 of the Revised Rules
of Court within 30 days from receipt of a copy thereof.
No member of a Constitutional Commission shall,
during his tenure: These decisions or rulings refer to the decision or final order
1. Hold any other office or employment of the COMELEC en banc and not of any division thereof.
2. Engage in the practice of any profession
3. Engage in the active management and control of Acts that fall under the COMELECs power to
any business which in any way may be affected by supervise or regulate
the function of his office
4. Be financially interested, directly or indirectly, in 1. The enjoyment or utilization of all franchises or
any contract with, or in any franchise or privilege permits for the operation of transportation and
granted by the Government, any of its other public utilities, media of communication or
subdivisions, agencies or instrumentalities, information.
including GOCCs or their subsidiaries 2. Grants, special privileges or concessions granted
by the government or any subdivision, agency or
instrumentality thereof, including any GOCC or its
JURISDICTION OF EACH CONSTITUTIONAL subsidiary. (Sec. 4, Art. IX-C, 1987 Constitution)
COMMISSION
Instances when COMELEC can exercise its
CIVIL SERVICE COMMISSION constitutional powers and functions

Scope of the Civil Service 1. During election period 90 days before the day of
the election and ends 30 days thereafter. In
The civil service embraces all branches, subdivisions, special cases, COMELEC can fix a period.
instrumentalities, and agencies of the Government, 2. Applies not only to elections but also to plebiscites
including government-owned or controlled and referenda.
corporations with original charters. (Sec. 2[1], Art. IV-
B)

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73 FACULTY OF CIVIL LAW
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Jurisdiction of the COMELEC before the proclamation


v. its jurisdiction after proclamation 2. CSC: In the case of decisions of the CSC,
Administrative Circular 1-95538 which took effect
The difference lies in the due process implications. on June 1, 1995, provides that final resolutions of
the CSC shall be appealable by certiorari to the CA
OVER PRE- OVER CONTESTS within 15 days from receipt of a copy thereof.
PROCLAMATION (AFTER From the decision of the CA, the party adversely
CONTROVERSY PROCLAMATION) affected thereby shall file a petition for review on
COMELECs jurisdiction COMELECs jurisdiction certiorari under Rule 45 of the Rules of Court.
is administrative or is judicial and is
quasi-judicial and is governed by the
governed by the less requirements of judicial 3. COMELEC: only decision en banc may be brought
stringent requirements process. to the Court by certiorari since Art. IX-C, says that
of administrative due motions for reconsideration of decisions shall be
process (although the decided by the Commission en banc. (Reyes v.
SC has insisted that Mindoro, G.R. No. 108886, May 5, 1995)
question on
qualifications should Procedural requisite before certiorari to the Supreme
be decided only after a Court may be availed of
full-dress hearing).
Sec. 1 of Rule 65 says that certiorari may be resorted
NOTE: Hence, even in the case of regional or provincial or to when there is no other plain or speedy and
city offices, it does make a difference whether the COMELEC adequate remedy. But reconsideration is a speedy and
will treat it as a pre-proclamation controversy or as a adequate remedy. Hence, a case may be brought to
contest. the Supreme Court only after reconsideration.

COMMISSION ON AUDIT Decision-making process in these Commissions

Q: Can the COA be divested of its power to examine 1. Each Commission shall decide matter or cases by a
and audit government agencies? majority vote of all the members within 60 days
from submission.
A: No law shall be passed exempting any entity of the a. COMELEC may sit en banc or in 2 divisions.
Government or its subsidiary in any guise whatsoever, b. Election cases, including pre-proclamation
or any investment of public funds, from the jurisdiction controversies are decided in division, with
of the Commission on Audit. motions for reconsideration filed with the
The mere fact that private auditors may audit COMELEC en banc.
government agencies does not divest the COA of its c. The SC has held that a majority decision
power to examine and audit the same government decided by a division of the COMELEC is a
agencies. (DBP v. COA, G.R. No. 88435, January 16, valid decision.
2002) 2. As collegial bodies, each Commission must act as
one, and no one member can decide a case for the
REVIEW OF FINAL ORDERS, RESOLUTION & entire commission.
DECISIONS
Rule on appeals
RENDERED IN THE EXERCISE OF QUASI-JUDICIAL
FUNCTION 1. Decisions, orders or rulings of the COMELEC/COA
may be brought on certiorari to the SC under Rule
SCs jurisdiction over decisions of the Commissions 65.
2. Decisions, orders or rulings of the CSC should be
1. COA: Judgments or final orders of the Commission appealed to the CA under Rule 43.
on Audit may be brought by an aggrieved party to
the Supreme Court on certiorari under Rule 65.
Only when COA acts without or excess in
jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, may
the SC entertain a petition for certiorari under
Rule 65.

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2014 GOLDEN NOTES 74
CONSTITUTIONAL COMMISSIONS

RENDERED IN THE EXERCISE OF ADMINISTRATIVE


FUNCTION

Power of the CSC to hear and decide administrative


cases

Under the Administrative Code of 1987, the CSC has


the power to hear and decide administrative cases
instituted before it directly or on appeal, including
contested appointments.
Body which has the jurisdiction on personnel actions,
covered by the civil service

CSC. It is the intent of the Civil Service Law, in requiring


the establishment of a grievance procedure, that
decisions of lower officials (in cases involving
personnel actions) be appealed to the agency head,
then to the CSC. The RTC does not have jurisdiction
over personnel actions. (Olanda v. Bugayong, G.R. No.
140917, October 10, 2003)

Jurisdiction of the COMELEC

The COMELEC has exclusive original jurisdiction over


all contests relating to returns, and qualifications of all
elective regional, provincial, and city officials.It also
has appellate jurisdiction over all contests involving
elective municipal officials decided by trial courts of
general jurisdiction, or involving elective barangay
officials decided by trial courts of limited jurisdiction.

Certiorari jurisdiction of the SC over these


Commissions

Proceedings are limited to issues involving grave abuse


of discretion resulting in lack or excess of jurisdiction
and do not ordinarily empower the Court to review the
factual findings of the Commissions. (Aratuc v.
COMELEC, G.R. No. L-49705-09, February 8, 1979)

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75 FACULTY OF CIVIL LAW
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BILL OF RIGHTS Compens Value of


Protection
ation Intangible; the
and public
FUNDAMENTAL POWERS OF THE STATE general property
improveme
welfare expropria
nts
Fundamental powers of the State ted

1. Police Power POLICE POWER


2. Power of Eminent Domain
3. Power of Taxation Police Power

NOTE: These powers are considered inherent because they Inherent and plenary power of the State which enables
belong to the very essence of government and without them it to prohibit all that is hurtful to the comfort, safety,
no government can exist. and welfare of society. (Ermita-Malate Hotel and
Motel Operators Association, Inc. v. Mayor of Manila,
Similarities among the fundamental powers of the L-24693, July 31, 1967)
State
Police power easily outpaces the other two powers. It
1. They are inherent in the State and may be regulates not only property, but also the liberty of
exercised by it without need of express persons. Police power is considered the most
constitutional grant. pervasive, the least limitable, and the most demanding
2. They are not only necessary but also of the three powers. It may be exercised as long as the
indispensable. The State cannot continue or be activity or property sought to be regulated has some
effective unless it is able to exercise them. relevance to the public welfare. (Gerochi v.
3. They are methods by which the State interferes Department of Energy, G. R. 159796, July 17, 2007)
with private rights.
4. They all presuppose an equivalent compensation Police power rests upon public necessity and upon the
for the private rights interfered with. right of the State and of the public to self-protection.
5. They are exercised primarily by the legislature. For this reason, its scope expands and contracts with
the changing needs. (Churchill v. Rafferty, 32 Phil. 580,
Common limitations on these powers 602-603, 1915)
1. May not be exercised arbitrarily to the prejudice Generally, police power extends to all the great public
of the Bill of Rights needs. Its particular aspects, however, are the
2. Subject at all times to the limitations and following:
requirements of the Constitution and may in 1. Public health
proper cases be annulled by the courts, i.e. when 2. Public morals
there is grave abuse of discretion. 3. Public safety
4. Public welfare
Police Power v. Taxation v. Eminent Domain
GR: Police power is lodged primarily in the national
POLICE EMINENT legislature.
TAXATION
BASIS POWER DOMAIN
Extent of Regulates Affects only Affects XPN: By virtue of a valid delegation of legislative
power liberty and property only power, it may be exercised by the:
property rights property 1. President
rights 2. Administrative bodies
Power Exercised Exercised Maybe 3. Lawmaking bodies on all municipal levels,
exercised only by the only by the exercised including the barangay. Municipal governments
by whom governmen governmen by private exercise this power under the general welfare
t t entities clause.
Purpose Property Property is Property
taken is taken for is taken Q: Can the MMDA exercise police power?
destroyed public use for
public A: No. The MMDAs powers are limited to the
use formulation, coordination, regulation,
implementation, preparation, management,

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2014 GOLDEN NOTES 76
BILL OF RIGHTS

monitoring, setting of policies, installing a system, and representatives. It increased their annual license fees
administration. Nothing in RA No. 7924 granted the as well. Is the ordinance constitutional?
MMDA police power, let alone legislative power.
(MMDA v. Trackworks GR. No. 179554, December 16, A: Yes. The mantle of protection associated with the
2009) due process guaranty does not cover the hotel and
motel operators. This particular manifestation of a
Requisites for the valid exercise of police power by police power measure being specifically aimed to
the delegate safeguard public morals is immune from such
imputation of nullity resting purely on conjecture and
1. Express grant by law unsupported by anything of substance. To hold
2. Must not be contrary to law otherwise would be to unduly restrict and narrow the
3. GR: Within territorial limits of LGUs scope of police power which has been properly
characterized as the most essential, insistent and the
XPN: When exercised to protect water supply least limitable of powers, extending as it does "to all
(Wilson v. City of Mountain Lake Terraces, 417 the great public needs." There is no question but that
P.2d 632, 1966) the challenged ordinance was precisely enacted to
minimize certain practices hurtful to public morals.
NOTE: The exercise of police power lies within the discretion The challenged ordinance then proposes to check the
of the legislative department. The only remedy against clandestine harboring of transients and guests of these
legislative inaction is a resort to the court of public opinion, establishments by requiring these transients and
a refusal of the electorate to turn to the legislative members
guests to fill up a registration form, prepared for the
who, in their view, have been remiss in the discharge of their
purpose, in a lobby open to public view at all times,
duties.
and by introducing several other amendatory
Q: Can the courts interfere with the exercise of police provisions calculated to shatter the privacy that
power? characterizes the registration of transients and guests.
Moreover, the increase in the licensed fees was
A: No. If the legislature decides to act, the choice of intended to discourage "establishments of the kind
measures or remedies lies within its exclusive from operating for purpose other than legal" and at
discretion, as long as the requisites for a valid exercise the same time, to increase "the income of the city
of police power have been complied with. government." (Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila,
Requisites for a valid exercise of police power G.R. No. L-24693, July 31, 1967)

1. Lawful subject The interests of the public EMINENT DOMAIN


generally, as distinguished from those of a
particular class, require the exercise of the police Power of eminent domain
power
2. Lawful means The means employed are Power of the state to forcibly acquire the needed
reasonably necessary for the accomplishment of property in order to devote it to the intended public
the purpose and not unduly oppressive upon use, upon payment of just compensation.
individuals. (NTC v. Philippine Veterans Bank, 192
SCRA 257) Conditions for the exercise of the power of eminent
domain
Q: Hotel and motel operators in Manila sought to
declare Ordinance 4670 as unconstitutional for being 1. Taking of private property
unreasonable, thus violative of the due process 2. For public use
clause. The Ordinance requires the clients of hotels, 3. Just compensation
motels and lodging house to fill up a prescribed form 4. Observance of due process
in a lobby, open to public view and in the presence of
the owner, manager or duly authorized The following, however, may exercise this power by
representative of such hotel, motel or lodging house. virtue of a valid delegation
The same law provides that the premises and
facilities of such hotels, motels and lodging houses 1. The President of the Philippines
would be open for inspection either by the City 2. Various local legislative bodies
Mayor, or the Chief of Police, or their duly authorized 3. Certain public corporations e.g. Land Authority
and National Housing Authority

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4. Quasi-public corporations e.g. Philippine National Eminent Domain v. Destruction from necessity
Railways
BASIS EMINENT DESTRUCTION
Power of expropriation as exercised by Congress v. DOMAIN FROM NECESSITY
Power of expropriation as exercised by delegates Who can Only authorized May be validly
exercise public entities or undertaken by
When exercised by Congress, the power is pervasive public officials private
and all-encompassing. It can reach every form of individuals
property which may be needed by the State for public Kind of right Public right Right of self-
use. In fact, it can reach even private property already defense, self-
dedicated to public use, or even property already preservation,
devoted to religious worship. (Barlin v. Ramirez, 7 Phil. whether applied
41) But when exercised by delegates, it can only be to persons or to
broad as the enabling law and the conferring property
authorities want it to be. Requirement Conversion of No need for
property taken for conversion; no
As to the question of necessity, the same is a political public use; just
question when the power is exercised by Congress. On payment of just compensation
the other hand, it is a judicial question when exercised compensation but payment in
by delegates. The courts can determine whether there the form of
is genuine necessity for its exercise, as well as the damages when
value of the property. applicable
Beneficiary State/public Private
Requisites for a valid taking (PMAPO)
EXPANSIVE CONCEPT OF PUBLIC USE
1. The expropriator must enter a Private property
2. Entry must be for more than a Momentary period Expansive concept of Public Use
3. Entry must be under warrant or color of legal
Authority The requisite of public use does not necessarily mean
4. Property must be devoted to Public use or use by the public at large. Whatever may be
otherwise informally appropriated or injuriously beneficially employed for the general welfare satisfies
affected the requirement. Moreover, that only few people
5. Utilization of property must be in such a way as to benefit from the expropriation does not diminish its
Oust the owner and deprive him of beneficial public-use character because the notion of public use
enjoyment of the property (Republic v. vda. De now includes the broader notion of indirect public
Castellvi, G.R. No. L-20620, Aug. 15, 1974) benefit or advantage. (Manosca v. CA, G.R. 166440,
Jan. 29, 1996).
All private property capable of ownership, including
services, can be taken. Q: The National Historical Institute declared the
parcel of land owned by Petitioners as a national
Money and choses in action, personal right not historical landmark, because it was the site of the
reduced in possession but recoverable by a suit at law, birth of Felix Manalo, the founder of Iglesia ni Cristo.
right to receive, demand or recover debt, demand or The Republic filed an action to appropriate the land.
damages on a cause of action ex contractu or for a tort Petitioners argued that the expropriation was not for
or omission of duty cannot be taken. a public purpose. Is this correct?
NOTE: A chose in action is a property right in something
A: Public use should not be restricted to the traditional
intangible, or which is not in ones possession but
enforceable through legal or court action. Ex. cash, a right of
uses. The taking is for a public use because of the
action in tort or breach of contract, an entitlement to cash contribution of Felix Manalo to the culture and history
refund, checks, money, salaries, insurance claims. of the Philippines. (Manosca v. CA , G.R. No. 106440,
Jan. 29, 1996)

Q: The NHA failed to relocate squatters from Metro


Manila to the Dasmarias Resettlement Project in
Cavite. Marina, one of the owners, seeks to reclaim
her portion of the land expropriated on the ground

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that NHA failed to comply with the stated public


purpose of the expropriation. Is the contention NOTE: The owner is entitled to the payment of interest from
correct? the time of taking until just compensation is actually paid to
him. Taxes paid by him from the time of the taking until the
transfer of title (which can only be done after actual
A: No. The expropriation of private lands for slum
payment of just compensation), during which he did not
clearance and urban development is for public
enjoy any beneficial use of the property, are reimbursable by
purpose. The Constitution itself allows the State to the expropriator.
undertake, for the common good and in cooperation
with the private sector, a continuing program of urban An interest of 12% per annum on the just compensation due
land reform and housing which will make at affordable the landowner should be used in computing interest. (LBP
cost decent housing and basic services to v. Wycoco G.R. No. 140160, January 13, 2004)
underprivileged and homeless citizens in urban
centers and resettlement areas. The expropriation of DETERMINATION
private property for the purpose of socialized housing
for the marginalized sector is in furtherance of the The value of the property must be determined either
social justice provision under Sec. 1, Art. XIII of the at the time of taking or filing of the complaint,
Constitution. To this end, the State shall require the whichever comes first. (EPZA v. Dulay, G.R. No. 59603,
acquisition, ownership, use and disposition of April 29, 1987)
property and its increments. Thus, it follows that the
low cost housing project of respondent NHA on the The Regional Trial Court determines the amount of just
expropriated lots is in compliance with the public compensation. A trial is indispensable to give the
use requirement. It is for public purpose even if the parties the opportunity to present evidence on the
developed area is later sold to private homeowners, issue of just compensation. (Manila Electric Co. v.
commercial firms, entertainment and service Pineda, 206 SCRA 196)
companies and other private concerns. (Reyes v. NHA,
G.R. No. 147511, Jan. 20, 2003) EFFECT OF DELAY

JUST COMPENSATION GR: Non-payment by the government does not entitle


private owners to recover possession of the property
Just compensation because expropriation is an in rem proceeding, not an
ordinary sale, but only entitle them to demand
It is the full and fair equivalent of the property taken payment of the fair market value of the property.
from the private owner (owners loss) by the
expropriator. It is usually the fair market value (FMV) XPNs:
of the property and must include consequential 1. When there is deliberate refusal to pay just
damages (damages to the other interest of the owner compensation
attributed to the expropriation) minus consequential 2. Governments failure to pay compensation within
benefits (increase in the value of other interests 5 years from the finality of the judgment in the
attributed to new use of the former property). expropriation proceedings. This is in connection
with the principle that the government cannot
NOTE: FMV is the price fixed by the parties willing but not keep the property and dishonor the judgment.
compelled to enter into a contract of sale. (Republic v. Lim, G.R. No. 161656, June 29, 2005)

Form of payment ABANDONMENT OF INTENDED USE AND RIGHT


OF REPURCHASE
GR: Compensation has to be paid in money.
Q: Several parcels of lands located in Lahug, Cebu City
XPN: In cases involving CARP, compensation may be in
were the subject of expropriation proceedings filed
bonds or stocks, for it has been held as a non-
by the Government for the expansion and
traditional exercise of the power of eminent domain.
improvement of the Lahug Airport. The RTC rendered
It is not an ordinary expropriation where only a specific
judgment in favor of the Government and ordered
property of relatively limited area is sought to be taken
the latter to pay the landowners the fair market value
by the State from its owner for a specific and perhaps
of the land. The landowners received the payment.
local purpose. It is rather a revolutionary kind of
expropriation. (Association of Small Landowners in the
The other dissatisfied landowners appealed. Pending
Philippines, Inc. v. Secretary of Agrarian Reform, G.R.
appeal, the Air Transportation Office (ATO),
No. 78742, 14 July 1989)

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proposed a compromise settlement whereby the the judgment would violate the property owners
owners of the lots affected by the expropriation right to justice, fairness, and equity.
proceedings would either not appeal or withdraw
their respective appeals in consideration of a In light of these premises, we now expressly hold that
commitment that the expropriated lots would be the taking of private property, consequent to the
resold at the price they were expropriated in the Governments exercise of its power of eminent
event that the ATO would abandon the Lahug domain, is always subject to the condition that the
Airport, pursuant to an established policy involving property be devoted to the specific public purpose for
similar cases. Because of this promise, the which it was taken. Corollary, if this particular purpose
landowners did not pursue their appeal. Thereafter, or intent is not initiated or not at all pursued, and is
the lot was transferred and registered in the name of peremptorily abandoned, then the former owners, if
the Government. The projected improvement and they so desire, may seek the reversion of the property,
expansion plan of the old Lahug Airport, however, subject to the return of the amount of just
was not pursued. From the date of the institution of compensation received. In such a case, the exercise of
the expropriation proceedings up to the present, the the power of eminent domain has become improper
public purpose of the said expropriation (expansion for lack of the required factual justification. (Mactan-
of the airport) was never actually initiated, realized, Cebu International Airport Authority and Air
or implemented. Transportation Office v. Lozada, et. al, G.R. No.
176625, Feb. 25, 2010)
Thus, the landowners initiated a complaint for the
recovery of possession and reconveyance of MISCELLANEOUS APPLICATION
ownership of the lands based on the compromised
agreement they entered into with the ATO. On the Q: An ordinance of Quezon City requires memorial
other hand, the Government anchor their claim to park operators to set aside at least 6% of their
the controverted property on the supposition that cemetery for charity burial of deceased persons who
the decision in the pertinent expropriation are paupers and residents of Quezon City. The same
proceedings did not provide for the condition that ordinance also imposes fine or imprisonment and
should the intended use of the land for the expansion revocation of permit to operate in case of violation.
of the Lahug Airport be aborted or abandoned, the Is this a valid exercise of police power?
property would revert to respondents, being its
former owners. Do the former owners have the right A: No. It constitutes taking of property without just
to redeem the property? compensation. The power to regulate does not include
the power to prohibit. The power to regulate does not
A: Yes. It is well settled that the taking of private include the power to confiscate. The ordinance in
property by the Governments power of eminent question not only confiscates but also prohibits the
domain is subject to two mandatory requirements: (1) operation of a memorial park cemetery, because
that it is for a particular public purpose; and (2) that under Sec. 13 of said ordinance, 'Violation of the
just compensation be paid to the property owner. provision thereof is punishable with a fine and/or
These requirements partake of the nature of implied imprisonment and that upon conviction thereof the
conditions that should be complied with to enable the permit to operate and maintain a private cemetery
condemnor to keep the property expropriated. shall be revoked or cancelled. The confiscatory clause
and the penal provision in effect deter one from
More particularly, with respect to the element of operating a memorial park cemetery. Moreover,
public use, the expropriator should commit to use the instead of building or maintaining a public cemetery
property pursuant to the purpose stated in the for this purpose, the city passes the burden to private
petition for expropriation filed, failing which, it should cemeteries. (City Government of Quezon City v. Ericta,
file another petition for the new purpose. If not, it is G.R. No. L-34915, Jun. 24, 1983)
then incumbent upon the expropriator to return the
said property to its private owner, if the latter desires Q: NPC negotiated with Maria for an easement of
to reacquire the same. Otherwise, the judgment of right of way over her property. NPC contends that
expropriation suffers an intrinsic flaw, as it would lack they shall only pay easement fee, not just
one indispensable element for the proper exercise of compensation. Is a right of way easement subject to
the power of eminent domain, namely, the particular expropriation?
public purpose for which the property will be
devoted. Accordingly, the private property owner A: Yes. There can be expropriation in the right of way
would be denied due process of law, and easement. Expropriation is not limited to the

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acquisition of real property with a corresponding sought to be done, the tax may be successfully
transfer of title or possession the right of way attacked as an inordinate and unconstitutional
easement resulting in a restriction of limitation on exercise of the discretion that is usually vested
property right over the land traversed by transmission exclusively in the legislature in ascertaining the
lines also falls within the ambit of the term amount of tax.
expropriation. (NPC v. Maria Mendoza San Pedro, G.R.
No. 170945 Sept. 26, 2006) 1. The power to tax is primarily vested in the
legislature. This power, however, may now be
Q: Causby sued the United States for trespassing on exercised by local legislative bodies, no longer by
his land, complaining specifically about how low- virtue of a valid delegation as before, but pursuant
flying military planes caused his chickens to jump up to a direct authority conferred by Art. X, Sec. 5 of
against the side of the chicken house and the walls the 1987 Constitution.
and burst themselves open and die. Are they entitled
to compensation by reason of taking clause? 2. The power to tax is subject to the limitations
imposed by the Constitution.
A: Yes. There is taking by reason of the frequency and
altitude of the flights. Flights of aircraft over private 3. The power of taxation is inherent in the State and
land which are so low and frequent as to be a direct the State therefore can still exercise this power
and immediate interference with the enjoyment and even if the constitution had not mentioned about
use of the land are as much an appropriation of the use it.
of the land as a more conventional entry upon it. If the
flights over Causby's property rendered it Payment of taxes is an obligation based on law, and
uninhabitable, there would be a taking compensable not on contract. It is a duty imposed upon the
under the Fifth Amendment. It is the owner's loss, not individual by the mere fact of his membership in the
the taker's gain, which is the measure of the value of body politic and his enjoyment of the benefits
the property taken. Morever, Causby could not use his available from such membership.
land for any purpose. (US v. Causby, 328 U.S. 256 ,
1946) NOTE: Except only in the case of poll (community) taxes,
non-payment of a tax may be the subject of criminal
TAXATION prosecution and punishment. The accused cannot invoke the
prohibition against imprisonment for debt as taxes are not
considered debts.
Taxes are
Matters left to the discretion of the legislature
1. Enforced proportional contributions from persons
and property
1. Whether to tax in the first place
2. Levied by the State by virtue of its sovereignty
2. Whom or what to tax
3. For the support of the government
3. For what public purpose
4. For public needs
4. Amount or rate of the tax
Taxation
Limitations, in general, on the power of taxation
Process by which the government, through its
Inherent and Constitutional limitations
legislative branch, imposes and collects revenues to
defray the necessary expenses of the government, and
Inherent limitations
to be able to carry out, in particular, any and all
projects that are supposed to be for the common
1. Public purpose
good. Simply put, taxation is the method by which
2. Non-delegability of power
these contributions are exacted.
3. Territoriality or situs of taxation
4. Exemption of government from taxation
The power to tax includes the power to destroy only if
5. International comity
it is used as a valid implement of the police power in
discouraging and in effect, ultimately prohibiting
Constitutional limitations
certain things or enterprises inimical to public welfare.
But where the power to tax is used solely for the
1. Due process of law (Art. III, Sec.1)
purpose of raising revenues, the modern view is that it
2. Equal protection clause (Art. III, Sec.1)
cannot be allowed to confiscate or destroy. If this is

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3. Uniformity, equitability and progressive system of Tax exemptions may either be


taxation (Art. VI, Sec 28)
4. Non-impairment of contracts (Art. III, Sec. 10) 1. Constitutional
5. Non-imprisonment for non-payment of poll tax 2. Statutory
(Art. III, Sec. 20)
6. Revenue and tariff bills must originate in the Tax exemptions may be revoked if
House of Representatives (Art I, Sec. 7)
7. Non-infringement of religious freedom (Art. III, 1. Exemption is granted gratuitously revocable
Sec.4) 2. Exemption is granted for valuable consideration
8. Delegation of legislative authority to the President (non-impairment of contracts) irrevocable
to fix tariff rates, import and export quotas,
tonnage and wharfage dues Tax v. License fee
9. Tax exemption of properties actually, directly and
exclusively used for religious, charitable and TAX LICENSE FEE
educational purposes (NIRC, Sec 30) Levied in exercise of Imposed in the exercise
10. Majority vote of all the members of Congress the taxing power of the police power of
required in case of legislative grant of tax the state
exemptions The purpose of the tax License fees are imposed
11. Non-impairment of SCs jurisdiction in tax cases is to generate for regulatory purposes
12. Tax exemption of revenues and assets of, revenues which means that it must
including grants, endowments, donations or only be of sufficient
contributions to educational institutions amount to include
expenses in issuing a
Q: Should there be notice and hearing for the license; cost of necessary
enactment of tax laws? inspection or police
surveillance, etc.
A: It depends. From the procedural viewpoint, due If its primary purpose If regulation is the
process does not require previous notice and hearing is to generate primary purpose, the
before a law prescribing fixed or specific taxes on revenue, and fact that incidental
certain articles may be enacted. But where the tax to regulation is merely revenue is also obtained
be collected is to be based on the value of taxable incidental does not make the
property, the taxpayer is entitled to be notified of the imposition a tax
assessment proceedings and to be heard therein on
the correct valuation to be given the property. NOTE: Ordinarily, license fees are in the nature of the
exercise of police power because they are in the form of
Uniformity in taxation regulation by the State and considered as a manner of paying
off administration costs. However, if the license fee is higher
Refers to geographical uniformity, meaning it operates than the cost of regulating, then it becomes a form of
taxation. (Ermita-Malate Hotel and Motel Operators Assoc.,
with the same force and effect in every place where
Inc. v. City Mayor of Manila, G.R. No. L-24693, Oct. 23, 1967)
the subject of it is found.
PRIVATE ACTS AND THE BILL OF RIGHTS
Progressive system of taxation
Bill of Rights
Means that the tax rate increases as the tax base
increases.
Set of prescriptions setting forth the fundamental civil
and political rights of the individual, and imposing
Double taxation occurs when:
limitations on the powers of government as a means
of securing the enjoyment of those rights.
1. Taxes are laid on the same subject
2. By the same authority
In the absence of governmental interference, the
3. During the same taxing period
liberties guaranteed by the Constitution cannot be
4. For the same purpose
invoked against the State. The Bill of Rights guarantee
NOTE: There is no provision in the Constitution specifically governs the relationship between the individual and
prohibiting double taxation, but it will not be allowed if it the State. Its concern is not the relation between
violates equal protection private individuals. What it does is to declare some
forbidden zones in the private sphere inaccessible to

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any power holder. (People v. Marti, G.R. No. 81561, Requirements of due process in judicial proceedings
Jan. 18, 1991)
Whether in civil or criminal judicial proceedings, due
Bill of Rights cannot be invoked against private process requires that there be:
individuals. In the absence of governmental
interference, the liberties guaranteed by the 1. An impartial and disinterested court clothed by
Constitution cannot be invoked. Put differently, the law with authority to hear and determine the
Bill of Rights is not meant to be invoked against acts of matter before it.
private individuals. (Yrasegui v. PAL, G.R. No. 168081,
Oct. 17, 2008) NOTE: The test of impartiality is whether the judges
intervention tends to prevent the proper presentation
NOTE: However, where the husband invoked his right to of the case or the ascertainment of the truth.
privacy of communication and correspondence against a
private individual, his wife, who had forcibly taken from his 2. Jurisdiction lawfully acquired over the defendant
cabinet and presented as evidence against him documents or the property which is the subject matter of the
and private correspondence, the Supreme Court held these proceeding
papers inadmissible in evidence, upholding the husbands 3. Notice and opportunity to be heard be given to
right to privacy. (Zulueta v. CA, G.R. No. 107383, Feb. 20
the defendant
1996)
4. Judgment to be rendered after lawful hearing,
clearly explained as to the factual and legal bases
DUE PROCESS
(Art. VII, Sec. 14, 1987 Constitution)
Due process means that:
Requisites of administrative due process
1. There shall be a law prescribed in harmony with
1. The right to hearing which includes the right to
the general powers of the legislature;
present ones case and submit evidence to
2. It shall be reasonable in its operation;
support thereof.
3. It shall be enforced according to the regular
2. Tribunal or body or any of its judges must act on
methods of procedure prescribed; and
its own independent consideration of the law and
4. It shall be applicable alike to all citizens of the
facts of the controversy.
State or to all of a class. (People v. Cayat, G.R. No.
3. Tribunal must consider the evidence presented.
L-45987, May 5, 1939)
4. Evidence must be substantial, which means
relevant evidence as a reasonable man might
Kinds of due process
accept as adequate to support a conclusion.
5. The decision must have something to support
1. Procedural Due Process
itself.
2. Substantive Due Process
6. Decision must be based on evidence presented
during hearing or at least contained in the record
RELATIVITY OF DUE PROCESS
and disclosed by the parties.
7. Decision must be rendered in a manner that the
Relativity of due process
parties can know the various issues involved and
the reason for the decision rendered. (Ang Tibay
Arises when the definition of due process has been left
vs CIR, Gr. No. L-46496, February 27, 1940).
to the best judgment of our judiciary considering the
peculiarity and the circumstances of each case. In a
NOTE: When a regulation is being issued under the quasi-
litany of cases that have been decided in this legislative authority of an administrative agency, the
jurisdiction, the common requirement to be able to requirements of notice, hearing and publication must be
conform to due process is fair play, respect for justice observed. (Commissioner of Internal Revenue v. CA, G.R. No.
and respect for the better rights of others. In 119761, Aug. 29, 1996)
accordance with the standards of due process, any
court at any particular time, will be well guided, Administrative v. Judicial due process
instead of being merely confined strictly to a precise
definition which may or may not apply in every case. BASIS ADMINISTRATIVE JUDICIAL
Essence Opportunity to A day in court
explain ones side

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Political and International Law

Means Usually through Submission of 6. Issuance of warrants of distraint and/or levy by


seeking a pleadings and the BIR Commissioner
reconsideration of oral arguments 7. Cancellation of the passport of a person charged
the ruling or the with a crime
action taken, or 8. Suspension of a banks operations by the
appeal to a Monetary Board upon a prima facie finding of
superior authority liquidity problems in such bank
Notice Required when the Both are
and administrative essential: Q: Ordinance 6537 of the City of Manila makes it
Hearing body is exercising 1. Notice unlawful for non- Filipino citizens to be employed or
quasi-judicial 2. Hearing to be engaged in any kind of trade, business or
function (PhilCom- occupation within the City of Manila, without
Sat v. Alcuaz, G.R. securing an employment permit from the Mayor of
No. 84818, Dec. Manila. Lee Min Ho sought to enjoin its enforcement.
18, 1989) Is the said ordinance unconstitutional?

Requisites of student discipline proceedings A: Yes. The ordinance is unconstitutional. While it is


true that the Philippines as a State is not obliged to
Student discipline proceedings may be summary and admit aliens within its territory, once an alien is
cross-examination is not an essential part thereof. admitted, he cannot be deprived of life without due
However, to be valid, the following requirements must process of law. This guarantee includes the means of
be met: livelihood. The ordinance amounts to a denial of the
1. Written notification sent to the student/s basic right of the people of the Philippines to engage
informing the nature and cause of any accusation in the means of livelihood. (Mayor Villegas v. Hiu Ching
against him/her; Tsai Pao Hao, G.R. No. L-29646, Nov. 10, 1978)
2. Opportunity to answer the charges, with the
assistance of a counsel, if so desired; PROCEDURAL AND SUBSTANTIVE DUE PROCESS
3. Presentation of ones evidence and examination
of adverse evidence; Procedural v. Substantive due process
4. Evidence must be duly considered by the
investigating committee or official designated by SUBSTANTIVE PROCEDURAL
the school authorities to hear and decide the case. DUE PROCESS DUE PROCESS
(Guzman v. National University, G.R. No. L-68288, Purpose This serves as a Serves as a
July 11, 1986) restriction on the restriction on
5. The student has the right to be informed of the governments law actions of
evidence against him and rule-making judicial and
6. The penalty imposed must be proportionate to powers. quasi-judicial
the offense. agencies of the
government.
Due process required in deportation proceedings Requisites 1. The interests of 1. Impartial
the public in court or
Although deportation proceedings are not criminal in general, as tribunal
nature, the consequences can be as serious as those of distinguished clothed with
a criminal prosecution. The provisions of the Rules of from those of a judicial
Court for criminal cases are applicable. (Lao Gi alias particular class, power to
Chia, Jr. v. CA, GR. No. 81789, Dec. 29, 1989.) require the hear and
intervention of determine
Instances when hearings are not necessary the state. the matters
2. The means before it.
1. When administrative agencies are exercising their employed are 2. Jurisdiction
quasi-legislative functions reasonably properly
2. Abatement of nuisance per se necessary for acquired
3. Granting by courts of provisional remedies the over the
4. Cases of preventive suspension accomplishment person of
5. Removal of temporary employees in the of the purpose the
government service and not unduly defendant

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oppressive upon and over other social ills, it can instead impose reasonable
individuals. property regulations such as daily inspections of the
which is the establishments for any violation of the conditions of
subject their licenses or permits, it may exercise its authority
matter of to suspend or revoke their licenses for these
the violations; and it may even impose increased license
proceeding. fees. (City of Manila v. Laguio, Jr. GR. No. 1118127,
3. Opportunity April 12, 2005)
to be heard.
4. Judgment PROCEDURAL DUE PROCESS
rendered
upon lawful Procedural due process
hearing and
based on Relates to the mode of procedure which government
evidence agencies must follow in the enforcement and
adduced. application of laws.

SUBSTANTIVE DUE PROCESS The fundamental elements of procedural due process

Substantive due process 1. Notice (to be meaningful, must be as to time and


place)
A guarantee that life, liberty and property shall not be 2. Opportunity to be heard
taken away from anyone without due process of law. 3. Court/tribunal must have jurisdiction
If a law is invoked to take away ones life, liberty or
property, the more specific concern of substantive due Q: Does an extraditee have a right of access to the
process is not to find out whether said law is being evidence against him?
enforced in accordance with procedural formalities
but whether the said law is a proper exercise of A: It depends. During the executive phase of an
legislative power. extradition proceeding, an extraditee does not have
the right of access to evidence in the hands of the
Q: The City of Manila enacted Ordinance 7783, which government. But during the judicial phase he has.
prohibited the establishment or operation of (Secretary v. Judge Lantion, GR. No. 139465, Oct. 17,
business providing certain forms of amusement, 2000)
entertainment, services and facilities where women
are used as tools in entertainment and which tend to Due process does not require a trial-type proceeding.
disturb the community, among the inhabitants and The essence of due process is to be found in the
adversely affect the social and moral welfare of reasonable opportunity to be heard and to submit any
community. Owners and operators concerned were evidence one may have in support of ones defense.
given three months to wind up their operations or to To be heard does not always mean verbal arguments
transfer to any place outside the Ermita-Malate area, in court. One may be heard also through pleadings.
or convert said business to other kinds of business Where opportunity to be heard, either through oral
which are allowed. Does the ordinance violate the arguments or pleadings, is accorded, there is no denial
due process clause? of due process (Zaldivar v. Sandiganbayan, G.R. No. L-
32215, Oct. 17, 1988).
A: Yes. These lawful establishments may only be
regulated. They cannot be prohibited from carrying on NOTE: The meetings in the nature of consultations and
their business. This is a sweeping exercise of police conferences cannot be considered as valid substitutes for
the proper observance of notice and hearing. (Equitable
power, which amounts to interference into personal
Banking Corporation v. NLRC, G.R. No. 102467, June 13,
and private rights which the court will not 1987)
countenance. There is a clear invasion of personal or
property rights, personal in the case of those Q: A complaint was filed against respondent Camille
individuals desiring of owning, operating and Gonzales, then Chief Librarian, Catalog Division, of
patronizing those motels and property in terms of the National Library for dishonesty, grave misconduct
investments made and the salaries to be paid to those and conduct prejudicial to the best interest of the
who are employed therein. If the City of Manila service. The complaint charged respondent Gonzales
desired to put an end to prostitution, fornication, and with the pilferage of some historical documents from

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the vaults of the Filipiniana and Asian Division (FAD) opportunity to respond to the charge, present his
of the National Library which were under her control evidence or rebut the evidence against him.
and supervision as Division Chief and keeping in her 3. Written Notice of Termination Served on the
possession, without legal authority and justification, Employee Indicating that upon due
some forty-one (41) items of historical documents consideration of the circumstances, grounds have
which were missing from the FAD vaults of the been established to justify his termination. In case
National Library. The DECS investigating committee of termination, the foregoing notices shall be
was created to inquire into the charges against served on the employees last address.
Gonzales. Is she entitled to be informed of the
findings and recommendations of the investigating II. If the dismissal is based on authorized causes under
committee? Arts. 283 and 284

A: No. It must be stressed that the disputed The employer must give the employee and the
investigation report is an internal communication Department of Labor and Employment written notices
between the DECS Secretary and the Investigation 30 days prior to the effectivity of his separation.
Committee, and it is not generally intended for the
perusal of respondent or any other person for that HIERARCHY OF RIGHTS
matter, except the DECS Secretary. She is entitled only
to the administrative decision based on substantial There is a hierarchy of constitutional rights. While the
evidence made of record, and a reasonable Bill of Rights also protects property rights, the primacy
opportunity to meet the charges and the evidence of human rights over property rights is
presented against her during the hearings of the recognized. Property and property rights can be lost
investigation committee. (Pefianco v. Moral, GR. No. thru prescription; but human rights are
132248, January 19, 2000) imprescriptible. In the hierarchy of civil liberties, the
rights of free expression and of assembly occupy a
CONSTITUTIONAL AND STATUTORY DUE PROCESS preferred position as they are essential to the
preservation and vitality of our civil and political
Constitutional due process v. Statutory due process institutions (Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc., G.R.
CONSTITUTIONAL STATUTORY DUE No. L-31195, June 5, 1973).
DUE PROCESS PROCESS
Protects the individual While found in the JUDICIAL STANDARDS OF REVIEW
from the government Labor Code and
and assures him of his Implementing Rules, it 1. Deferential review Laws are upheld if they
rights in criminal, civil protects employees rationally further a legitimate governmental
or administrative from being unjustly interest, without courts seriously inquiring into
proceedings terminated without just the substantiality of such interest and examining
cause after notice and the alternative means by which the objectives
hearing (Agabon v. could be achieved
NLRC, G.R. No. 158693, 2. Intermediate review The substantiality of the
November 17, 2004) governmental interest is seriously looked into and
the availability of less restrictive alternatives is
I. For Termination of Employment Based On Just considered.
Causes (Art. 282, Labor Code) 3. Strict scrutiny The focus is on the presence of
compelling, rather than substantial governmental
The following standards of due process shall be interest and on the absence of less restrictive
substantially observed. means for achieving that interest (Separate
opinion of Justice Mendoza in Estrada v.
1. Written Notice served on the Employee Sandiganbayan, G.R. No. 148965, Feb. 26, 2002)
Specifying the grounds of termination and giving
to said employee reasonable opportunity within NOTE: Given the fact that not all rights and freedoms or
which to explain his side. liberties under the Bill of Rights and other values of society
2. Hearing or conference During which the are of similar weight and importance, governmental
regulations that affect them would have to be evaluated
employee concerned, with the assistance of
based on different yardsticks, or standards of review.
counsel, If the employee so desires, is given the

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VOID-FOR-VAGUENESS DOCTRINE identity of rights. It does not forbid discrimination as


to persons and things that are different. What it
Void-for-vagueness doctrine forbids are distinctions based on impermissible criteria
unrelated to a proper legislative purpose, or class or
A law is vague when it lacks comprehensive standards discriminatory legislation, which discriminates against
that men of common intelligence must necessarily some and favors others when both are similarly
guess at its common meaning and differ as to its situated.
application. In such instance, the statute is repugnant
to the Constitution because: Q: EO 1 was issued by President Aquino to investigate
1. It violates due process for failure to accord reported cases of graft and corruption of the Arroyo
persons, especially the parties targeted by it, fair administration. Is such action valid?
notice of what conduct to avoid
2. It leaves law enforcers an unbridled discretion in A: No. It must be borne in mind that the Arroyo
carrying out its provisions. (People v. de la Piedra, administration is but just a member of a class, that is,
G.R. No. 128777, Jan. 24, 2001) a class of past administrations. It is not a class of its
own. Not to include past administrations similarly
The "void-for-vagueness" doctrine does not apply as situated constitutes arbitrariness which the equal
against legislations that are merely couched in protection clause cannot sanction. Such discriminating
imprecise language but which specify a standard differentiation clearly reverberates to label the
though defectively phrased; or to those that are commission as a vehicle for vindictiveness and
apparently ambiguous yet fairly applicable to certain selective retribution. (Biraogo v. The Philippine Truth
types of activities. The first may be "saved" by proper Commission of 2010, G.R. No. 192935, Dec. 7, 2010)
construction, while no challenge may be mounted as
against the second whenever directed against such Q: Are aliens entitled to the protection of equal
activities. protection clause?

The Supreme Court held that the doctrine can only be A: GR: It applies to all persons, both citizens and aliens.
invoked against that species of legislation that is The Constitution places the civil rights of aliens on
utterly vague on its face, i.e., that which cannot be equal footing with those of the citizens.
clarified either by a saving clause or by construction.
(Estrada v. Sandiganbayan, G.R. No. 148560, Nov. 19, XPN: Statutes may validly limit exclusively to citizens
2001) the enjoyment of rights or privileges connected with
public domain, the public works, or the natural
The test in determining whether a criminal statute is resources of the State.
void for uncertainty is whether the language conveys
a sufficiently definite warning as to the proscribed NOTE: The rights and interests of the State in these things
are not simply political but also proprietary in nature and so
conduct when measured by common understanding
citizens may lawfully be given preference over aliens in their
and practice. It must be stressed, however, that the use or enjoyment.
"vagueness" doctrine merely requires a reasonable
degree of certainty for the statute to be upheld - not Aliens do not enjoy the same protection as regards political
absolute precision or mathematical exactitude. (Ibid.) rights. (Inchong v. Hernandez, G.R. No. L-7995, May 31,
1957)
NOTE: The void-for-vagueness doctrine cannot be used to
impugn the validity of a criminal statute using facial REQUISITES FOR VALID CLASSIFICATION
challenge but it may be used to invalidate a criminal statute
as applied to a particular defendant.
The classification must
1. Rest on substantial distinctions
EQUAL PROTECTION OF THE LAWS 2. Be germane to the purpose of the law
3. Not be limited to existing conditions only;
CONCEPT 4. Apply equally to all members of the same class.
(People v. Cayat, GR. No. L-45987, May 5, 1939)
Equal protection of the laws
Q: Rosalie Garcia filed a case against her husband,
All persons or things similarly situated should be Jesus Garcia, for violation of RA 9262. The RTC then
treated alike, both as to rights conferred and issued a Temporary Protection Order. Jesus argues
responsibilities imposed. It guarantees equality, not that RA 9262 violates the guarantee of equal

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protection because the remedies against personal equally apply to all medical practitioners without
violence that it provides may be invoked only by the distinction whether they belong to the public or
wives or women partners but not by the husbands or private sector. After all, the freedom to believe is
male partners even if the latter could possibly be intrinsic in every individual and the protective robe
victims of violence by their women partners. Does RA that guarantees its free exercise is not taken off even
9262 violate the equal the protection clause of the if one acquires employment in the government.
Constitution? (Imbong et. al., v. Ochoa G.R. No. 204819 April 8, 2014)

A: No. RA 9262 rests on substantial distinction. There Q: The New Central Bank Act created two categories
is an unequal power relationship between women and of employees: (1) Bangko Sentral ng Pilipinas officers
men and the fact that women are more likely than who are exempt from the Salary Standardization Law
men to be victims of violence and the widespread (SSL) and (2) rank-and-file employees with salary
gender bias and prejudice against women all make for grade 19 and below who are not exempt from the
real differences justifying the classification under the SSL. Subsequent to the enactment of the Act, the
law. The classification is germane to the purpose of the charters of the Land Bank of the Philippines and all
law. The distinction between men and women is other Government Financial Institutions (GFIs) were
germane to the purpose of RA 9262, which is to amended exempting all their personnel, including the
address violence committed against women and rank-and-file employees, from the coverage of the
children. As spelled out in its Declaration of Policy, the SSL. BSP Employees Association filed a petition to
State recognizes the need to protect the family and its prohibit the BSP from implementing the provision of
members particularly women and children, from the Act for they were illegally discriminated against
violence and threats to their personal safety and when they were placed within the coverage of the
security. Moreover, the application of RA 9262 is not SSL. Was there a violation of the equal protection
limited to the existing conditions when it was clause of the Constitution?
promulgated, but to future conditions as well, for as
long as the safety and security of women and their A: Yes. In the field of equal protection, the guarantee
children are threatened by violence and abuse. that no person shall be denied the equal protection
Furthermore, RA 9262 applies equally to all women of the laws includes the prohibition against enacting
and children who suffer violence and abuse. (Garcia v. laws that allow invidious discrimination, directly or
Drilon G.R. No. 179267 June 25, 2013) indirectly. If a law has the effect of denying the equal
protection of the law, or permits such denial, it is
NOTE: In his separate concurring opinion, Justice Abad said unconstitutional. It is against this standard that the
that 9262 is discriminatory but it does not deny equal disparate treatment of the BSP rank-and-file from the
protection because of the concept of expanded equal
other Government Financial Institutions (GFI) cannot
protection clause enshrined by Sec. 1 Art. XIII and Sec 14 Art
stand judicial scrutiny. For, as regards the exemption
II of the Constitution and because of this, the equal
protection clause can be interpreted not only as a guarantee from the coverage of the SSL, there exists no
of formal equality (if it passes the reasonableness test) but substantial distinction so as to differentiate the BSP
also of substantive equality. The expanded equal protection rank-and-file from the other rank-and-file of other
clause should be understood as meant to reduce social, GFIs. The challenged provision of the New Central
economic, and political inequalities, and remove cultural Bank Act was facially neutral insofar as it did not
inequities by equitably diffusing wealth and political power differentiate between the rank-and-file employees of
for the common good. the BSP and the rank-and-file employees of other GFIs,
and yet its effects, when taken in light of the
Q: Sec. 5.23 of the RH-IRR provides that skilled health exemption of the latter employees from the SSL, were
professional such as provincial, city or municipal discriminatory. (Central Bank Employees Association,
health officers, chiefs of hospital, head nurses, Inc., v. Bangko Sentral ng Pilipinas, G.R. No. 148208,
supervising midwives cannot be considered as Dec. 15, 2004)
conscientious objectors. Is this provision
constitutional? Q: A law was passed, which aggravates estafa if the
accused originated from China or whose any parents
A: No. This is discriminatory and violative of the equal were Chinese. Al Paglinawan, whose mother was
protection clause. The conscientious objection clause Chinese, files a petition before the court arguing that
should be equally protective of the religious belief of the law violates the Equal Protection Clause because
public health officers. There is no perceptible it does not amount to a valid classification. May
distinction why they should not be considered exempt Congress enact a law whose classification is based on
from the mandates of the law. The protection origin, race or parentage?
accorded to other conscientious objectors should

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operation of the last proviso of Sec. 15(c), Art. II of RA


A: No. The legislature may not validly classify the 7653, specifically in relation to the fact that the rank-
citizens of the State on the basis of their origin, race, and-file employees of other GFIs were already
or parentage. But the difference in status between exempted from the operation of the SSL and those
citizens and aliens constitutes a basis for reasonable under BSP were not exempted. Hence, due to the
classification in the exercise of police power. (Demore recent laws enacted by Congress, the substantial
v. Kim, 538 U.S. 510, 2003) distinctions that initially validated the inclusion of the
rank-and-file employees in the SSL, is rendered moot
Rationale for allowing, in exceptional cases, valid and academic. The SC held that the classification must
classification based on citizenship not only be reasonable, but must also apply equally to
all members of the class. The proviso may be fair on
Aliens do not naturally possess the sympathetic its face and impartial in appearance but it cannot be
consideration and regard for customers with whom grossly discriminatory in its operation, so as practically
they come in daily contact, nor the patriotic desire to to make unjust distinctions between persons who are
help bolster the nations economy, except in so far as without differences. Hence, the law which was valid
it enhances their profit, nor the loyalty and allegiance initially becomes void for being a violation of the equal
which the national owes to the land. These limitations protection clause. (Central Bank Employees
on the qualifications of aliens have been shown on Association, Inc. v. Bangko Sentral ng Pilipinas, 446
many occasions and instances, especially in times of SCRA 229)
crisis and emergency. (Ichong v. Hernandez, G.R. No. L-
7995, May 31, 1957) Tests in determining compliance with the equal
protection clause
Intensified means test or the balancing of
interest/equality test 1. Rational Basis Test - Courts will not overturn
government action unless the varying treatment
Test which does not look solely into the governments of different groups or persons is so unrelated to
purpose in classifying persons or things (as done in the achievement of any combination of legitimate
Rational Basis Test) nor into the existence of an purposes that the court can only conclude that the
overriding or compelling government interest so great government's actions were irrational. (Warren v.
to justify limitations of fundamental rights (Strict City of Athens, 411 F.3d 697, 710, 6th Cir. 2005)
Scrutiny Test) but closely scrutinizes the relationship
between the classification and the purpose, based on The guaranty of the equal protection of the laws
spectrum of standards, by gauging the extent to which is not violated by legislation based on reasonable
constitutionally guaranteed rights depend upon the classification. This standard of review is typically
affected individuals interest. quite deferential; legislative classifications are
presumed to be valid largely for the reason that
STANDARDS OF JUDICIAL REVIEW the drawing of lines that create distinctions is
peculiarly a legislative task and unavoidable one.
The Doctrine of Relative Constitutionality or Principle
of Altered Circumstance 2. Intermediate Scrutiny Test Provides that to
withstand constitutional challenge, it must be
A statute may be valid at one time as applied to a set shown that the law or policy being challenged
of facts but it may become void at another time furthers an important government interest in a
because of altered circumstances. way that is substantially related to that interest. It
is generally applied in sex-based classifications,
Example: Sec. 15 (c) of Art. II of RA 7653 exempted the illegitimacy, sexual orientation and free speech.
BSP Officers from the Salary Standardization Law (SSL), (Craig v. Boren, 429 U.S. 190)
but did not exempt rank and file employees. Said law
is held to be constitutional as there were substantial Rational Basis Test v. Strict Scrutiny
distinctions that made real differences between two
classes. Subsequently, certain laws were enacted by RATIONAL BASIS TEST STRICT SCRUTINY
Congress extending the SSL exemption to the rank- Applies to legislative Applies to legislative
and-file employees of other Government Financial classifications in classifications affecting
Institutions (GFIs). The subsequent enactments general, such as those fundamental rights or
constitute significant changes in circumstance that pertaining to economic suspect classes.
considerably alter the reasonability of the continued or social legislation,

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which do not affect ones private activities in such a way as to cause


fundamental rights of humiliation to a persons ordinary sensibilities.
suspect classes; or is not
based on gender or Search warrant v. Warrant of arrest
illegitimacy
Legislative purpose Legislative purpose BASIS SEARCH WARRANT OF
must be legitimate must be compelling WARRANT ARREST
Classification must be Classification must be As to The judge It is not
rationally related to thenecessary and narrowly authority, must necessary that
legislative purpose tailored to achieve the which personally the judge
legislative purpose examines examine in the should
(Central Bank Employees Association Inc. v. BSP, GR. form of personally
No. 148208, December 15, 2004) searching examine the
questions and complainant
3. Strict Scrutiny Test - It is applied when the answers, in and his
challenged statute either: writing and witnesses; the
a. Classifies on the basis of an inherently under oath, judge would
suspect characteristic; the simply
b. Infringes fundamental constitutional rights; complainant personally
that all legal restrictions which curtail the civil and the review the
rights of a single racial group are immediately witnesses he initial
suspect. That is not to say that all such may produce determination
restrictions are unconstitutional. It is to say on facts of the
that courts must subject them to the most personally prosecutor to
rigid scrutiny. The presumption of known to see if it is
constitutionality is reversed; that is, such them. supported by
legislation is assumed to be unconstitutional substantial
until the government demonstrates evidence.
otherwise. (Central Bank Employees The He merely
Association Inc. v. BSP, GR. No. 148208. Basis of determination determines the
December 15, 2004) determination of probable probability, not
cause depends the certainty of
SEARCHES AND SEIZURES to a large guilt of the
extent upon accused and, in
CONCEPT the finding or so doing, he
opinion of the need not
Right against unreasonable searches and seizures judge who conduct a new
conducted the hearing.
Right of the people to be secure in their persons, required
houses, papers, and effects against unreasonable examination
searches and seizures of whatever nature and for any of the
purpose shall be inviolable, and no search warrant or applicant and
warrant of arrest shall issue except upon probable the witnesses.
cause to be determined personally by the judge after
examination under oath or affirmation of the WARRANT REQUIREMENT
complainant and the witnesses he may produce, and
particularly describing the place to be searched and Requisites of a valid search warrant and warrant of
persons or things to be seized. (1987 Constitution, Art. arrest
3, Sec. 2)
1. There should be a search warrant or warrant of
Essence of privacy arrest issued by a judge;
2. Probable cause supported the issuance of such
The right to be left alone. In context, the right to warrant;
privacy means the right to be free from unwarranted 3. Such probable cause had been determined
exploitation of ones person or from intrusion into personally by a judge;

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4. Judge personally examined the complainant and Properties subject to seizure


his witnesses;
5. The warrant must particularly describe the place 1. Property subject of the offense
to be searched and the persons or things to be 2. Stolen or embezzled property and other proceeds
seized. or fruits of the offense
3. Property used or intended to be used as means for
NOTE: General warrant is not allowed. It must be issued the commission of an offense
pursuant to specific offense.
Probable cause
General warrants
Such facts and circumstances antecedent to the
Warrants of broad and general characterization or issuance of a warrant that in themselves are sufficient
sweeping descriptions which will authorize police to induce a cautious man to rely on them and act in
officers to undertake a fishing expedition to seize and pursuance thereof.
confiscate any and all kinds of evidence or articles
relating to an offense. Personal knowledge

Purpose of particularity of description in search 1. The person to be arrested must execute an overt
warrants act indicating that he had just committed, is
actually committing, or is attempting to commit a
1. Readily identify the properties to be seized and crime; and
thus prevent the peace officers from seizing the 2. Such overt act is done in the presence or within
wrong items the view of the arresting officer.
2. Leave peace officers with no discretion regarding
the articles to be seized and thus prevent Searching questions
unreasonable searches and seizures. (Bache and
Co. v. Ruiz, 37 SCRA 823) Examination by the investigating judge of the
complainant and the latters witnesses in writing and
Purpose of particularity of description in warrant of under oath or affirmation, to determine whether there
arrest is a reasonable ground to believe that an offense has
been committed and whether the accused is probably
For warrant of arrest, this requirement is complied guilty thereof so that a warrant of arrest may be issued
with if it contains the name of the person/s to be and he may be held liable for trial.
arrested. If the name of the person to be arrested is
not known, a John Doe warrant may be issued. A John Court which has the primary jurisdiction in issuing
Doe warrant will satisfy the constitutional search warrants
requirement of particularity of description if there is
some descriptio personae which is sufficient to enable The RTC where the criminal case is pending or if no
the officer to identify the accused. information has yet been filed, in RTC in the area/s
contemplated. An RTC not having territorial
Particularity of description for a search warrant is jurisdiction over the place to be searched, however,
complied with when: may issue a search warrant where the filing of such is
necessitated and justified by compelling
1. The description therein is as specific as the considerations of urgency, subject, time, and place.
circumstances will ordinarily allow; or
2. The description expresses a conclusion of fact, not Power of the Commissioner
of law, by which the warrant officer may be
guided in making the search and seizure; or The Commissioner of Immigration is also given, by
3. The things described are limited to those which legislative delegation, the power to issue warrants of
bear direct relation to the offense for which the arrests.
warrant is being issued
NOTE: Sec. 1 (3), Art. III of the Constitution does not require
NOTE: If the articles desired to be seized have any direct judicial intervention in the execution of a final order of
relation to an offense committed, the applicant must deportation issued in accordance with law. The
necessarily have some evidence other than those articles to constitutional limitation contemplates an order of arrest in
prove said offense. The articles subject of search and seizure the exercise of judicial power as a step preliminary or
should come in handy merely to strengthen such evidence. incidental to prosecution or proceedings for a given offense

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91 FACULTY OF CIVIL LAW
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or administrative action, not as a measure indispensable to 8. Exigent and emergency circumstances. (People v.
carry out a valid decision by a competent official, such as a De Gracia, 233 SCRA 716)
legal order of deportation, issued by the Commissioner of
Immigration, in pursuance of a valid legislation. (Morano v.
Plain View Doctrine
Vivo, G.R. No. L-22196, June 30, 1967)

Provides that objects falling in plain view of an officer


Nature of search warrant proceeding
who has a right to be in the position to have that view
are subject to seizure even without a search warrant
Neither a criminal action nor a commencement of a
and may be introduced as evidence. Requisites for the
prosecution. It is solely for the possession of personal
application of the doctrine are the following:
property. (United Laboratories, Inc. v. Isip, G.R. No.
a. The law enforcer in search of the evidence has a
163858, June 28, 2005)
prior justification for an intrusion, or is in a
position from which he can view a particular area;
Q: Can the place to be searched, as set out in the
b. The discovery of the evidence in plain view is
warrant be amplified or modified by the officers
inadvertent;
personal knowledge of the premises or evidence they
adduce in support of their application for the
Stop-and-frisk search
warrant?
Limited protective search of outer clothing for
A: No. Such a change is proscribed by the Constitution
weapons. Probable cause is not required but a genuine
which requires a search warrant to particularly
reason must exist in light of a police officers
describe the place to be searched; otherwise it would
experience and surrounding conditions to warrant the
open the door to abuse of the search process, and
belief that the person detained has weapons
grant to officers executing the search that discretion
concealed. (Malacat v. CA, G.R. No. 123595, Dec. 12,
which the Constitution has precisely removed from
1997)
them.
Checkpoints
WARRANTLESS SEARCHES
Searches conducted in checkpoints are lawful,
Instances of a valid warrantless search
provided the checkpoint complies with the following
requisites:
1. Visual search is made of moving vehicles at
1. The establishment of checkpoint must be
checkpoints
pronounced;
2. Search is an incident to a valid arrest
2. It must be stationary, not roaming; and
3. The search must be limited to visual search and
NOTE: An officer making an arrest may take from the
person:
must not be an intrusive search.
a. Any money or property found upon his person
which was used in the commission of the offense NOTE: Not all searches and seizures are prohibited. Between
b. Was the fruit thereof the inherent right of the State to protect its existence and
c. Which might furnish the prisoner with the means promote public welfare and an individuals right against
of committing violence or escaping warrantless search which is however reasonably conducted,
d. Which might be used as evidence in the trial of the the former should prevail.
case
A checkpoint is akin to a stop-and-frisk situation whose
object is either to determine the identity of suspicious
3. Search of passengers made in airports
individuals or to maintain the status quo momentarily while
4. When things seized are within plain view of a the police officers seek to obtain more information.
searching party (Plain View Doctrine) (Valmonte v. De Villa, GR.83988, Sept. 29, 1989)
5. Stop and frisk (precedes an arrest)
6. When there is a valid express waiver made Q: When may motorists and their vehicles passing
voluntarily and intelligently though checkpoints be stopped and extensively
searched?
NOTE: Waiver is limited only to the arrest and does not
extend to search made as an incident thereto, or to any
A: While, as a rule, motorists and their vehicles passing
subsequent seizure of evidence found in the search.
(People v. Peralta, G.R. 145176, March 30, 2004)
though checkpoints may only be subjected to a routine
inspection, vehicles may be stopped and extensively
7. Customs search searched when there is probable cause which justifies
a reasonable belief among those at the checkpoints

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that either the motorist is a law offender or the chief of the Mamamayan Muna Hindi Mamaya Na
contents of the vehicle are or have been instruments division, Briccio Ricky A. Pollo. Consequently, a
of some offense. (People v. Vinecario, G.R. No. 141137, team with IT background was formed to back up all
Jan. 20, 2004) the files in the computers found in the Mamamayan
Muna Public Assistance and Liaison Division (PALD)
Q: Police officer Jim Santos suspected Alfred Vitug of and Legal Division. Pollo was not present during the
growing marijuana in his apartment. Indoor backing-up and was only informed through text
marijuana growth typically requires high-intensity message. It was then found that most of the files
lamps. Santos used an Agema Thermovision 210 sourced from the computer used by Pollo were
thermal imager to scan the apartment. The scan pleadings and letters connected with pending cases
showed that the roof over the garage and a side wall in CSC and other tribunals. He was found guilty of
of Vitugs house were relatively hot compared to the dishonesty, grave misconduct and conduct
rest of the house and substantially warmer than prejudicial to the best interest of the service and
neighboring house. Santos concluded that Vitug was violation of RA 6713 and penalized him with
using halide lights to grow marijuana. Vitug was then dismissal. Were the searching and copying of Pollos
indicted of one count of manufacturing marijuana. computer files reasonable in its inception and scope?
1. Was the search reasonable?
2. Is the use of thermal imaging constitutional? A: Yes. First, Pollo failed to prove that he had an actual
(subjective) expectation of privacy either in his office
A: or government-issued computer which contained his
1. No. The Government uses a device that is not in personal files. The CSC had implemented a policy that
general public use, to explore details of a private put its employees on notice that they have no
home that would previously have been expectation of privacy in anything they create, store,
unknowable without physical intrusion, the send or receive on the office computers, and that the
surveillance is a Fourth Amendment search, and CSC may monitor the use of the computer resources
is presumptively unreasonable without a warrant. using both automated and human means. This implies
2. No. Such an approach would be wrong in principle that on-the-spot inspections may be done to ensure
because, in the sanctity of the home, all details are that the computer resources were used only for such
intimate details. (Kyllo v. United States 533 U.S. legitimate business purposes. Second, the search of
27) petitioners computer files was conducted in
connection with investigation of work-related
Q: Jamie was a lady frisker whose duty is to frisk misconduct prompted by an anonymous letter-
departing passengers, employees, and crew and complaint addressed to Chairperson David regarding
check for weapons, bombs, prohibited drugs, anomalies in the CSC-ROIV where the head of
contraband goods, and explosives. When she frisked the Mamamayan Muna Hindi Mamaya Na division is
Rozanne, a boarding passenger, she felt something supposedly lawyering for individuals with pending
hard on Rozannes abdominal area which was later cases in the CSC. A search by a government employer
found to be 3 packs of shabu. Can Rozanne Dela Cruz of an employees office is justified at inception when
invoke a violation of the search and seizure clause? there are reasonable grounds for suspecting that it will
turn up evidence that the employee is guilty of work-
A: No. Persons may lose the protection of the search related misconduct. (Pollo v. David G.R. No. 181881
and seizure clause by exposure of their persons or October 18, 2011)
property to the public in a manner reflecting a lack of
subjective expectation of privacy, which expectation Q: A search was conducted on Mar. 3, 1986 during
society is prepared to recognize as reasonable. Such which, the Philippines has no Constitution. The
recognition is implicit in airport security procedures. Constabulary raiding team searched the house of
With increased concern over airplane hijacking and Elizabeth Dimaano by virtue of a search warrant and
terrorism has come increased security at the nations thereafter seized some items not included in the
airport. (People v. Leila Johnson, G.R. No.138881, Dec. 18, warrant. Dimaano questioned the search for being
2000) violative of the Constitution. Can she invoke her right
against unreasonable searches and seizures during
Q: Civil Service Commission (CSC) Chairperson Karina the interregnum?
Constantino-David received an anonymous letter
alleging that an employee of CSC acts as a lawyer of A: Yes. The Bill of Rights under the 1973 Constitution
an accused government employee who has pending was not operative during the interregnum. Be that as
case in CSC. Said employees were referred to as the it may, under Art. 17(1) of the International Covenant

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on Civil and Political Rights, the revolutionary the premises under the immediate control of the
government had the duty to insure that no one shall accused. The accused may not successfully invoke the
be subjected to arbitrary or unlawful interference with right against a warrantless search, even as regards the
his privacy, family, home or correspondence. Art. 17 plastic container with dried marijuana leaves found on
(2) provides that no one shall be arbitrarily deprived of the table in her store. (People v. Salazar, G.R. No.
his property. Although the signatories to the 98060, Jan. 27, 1997)
Declaration did not intend it as a legally binding
document, being only a declaration, the Court has Q: Is Sec. 19 of the Cybercrime Law, which provides
interpreted the Declaration as part of the generally that, when a computer data is prima facie found to
accepted principles of international law and binding on be in violation of the provisions of this Act, the DOJ
the state. The revolutionary government did not shall issue an order to restrict or block access to such
repudiate the Covenant or the Declaration during the computer data constitutional?
interregnum. It was also obligated under international
law to observe the rights of individuals under the A: No. The Department of Justice order cannot be a
Declaration. (Republic of the Philippines v. substitute for judicial search warrant. The
Sandiganbayan G.R. No. 104768 July 21, 2003) Government, in effect, seizes and places the computer
data under its control and disposition without a
Q: While sleeping in his room, Rex was arrested by warrant. Not only does Sect. 19 preclude any judicial
virtue of a warrant of arrest. Thereafter, some police intervention, but it also disregards jurisprudential
officers ransacked the locked cabinet inside the room guidelines established to determine the validity of
where they found a firearm and ammunition. Are the restrictions on speech for the content of the computer
warrantless search and seizure of the firearm and data can also constitute speech. Sec. 19 merely
ammunition justified as an incident to a lawful requires that the data to be blocked be found prima
arrest? facie in violation of any provision of the cybercrime
law. It does not take into consideration any of the
A: No. The scope of the warrantless search is not three tests: the dangerous tendency doctrine, the
without limitations. A valid arrest allows the seizure of balancing of interest test and the clear and present
evidence or dangerous weapons either on the person danger rule. Therefore, Sec. 19 is unconstitutional.
of the one arrested or within the area of his immediate (Disini v. Secretary of Justice G.R. No. 203335 February
control. The purpose of the exception is to protect the 11, 2014)
arresting officer from being harmed by the person
arrested, who might be armed with a concealed Q: Sgt. Victorino Noceja and Sgt. Alex de Castro, while
weapon, and to prevent the latter from destroying on a routine patrol in Pagsanjan, Laguna, spotted a
evidence within reach. In this case, search was made passenger jeep unusually covered with "kakawati"
in the locked cabinet which cannot be said to have leaves. Suspecting that the jeep was loaded with
been within Valeroso's immediate control. Thus, the smuggled goods, the two police officers flagged down
search exceeded the bounds of what may be the vehicle driven by Rudy. The police officers then
considered as an incident to a lawful arrest. (Valeroso checked the cargo and they discovered bundles of
v. Court of Appeals, G.R. No. 164815, Sept. 3, 2009) 3.08 mm aluminum/galvanized conductor wires
exclusively owned by National Power Corporation
Q: A buy-bust operation was conducted in Jogies (NPC). Police officers took Rudy into custody and
store. Police Officer CA Mindaro posed as a buyer and seized the conductor wires. Was Rudys right against
bought marijuana from Jogie. After the exchange of unreasonable searches and seizures violated when
marked money and marijuana, Mindaro arrested the police officers searched his vehicle and seized the
Jogie without a warrant. The other police officer wires found therein without a search warrant?
searched the store and seized a plastic container
containing six marijuana stocks. Thereafter, Jogie A: Yes. When a vehicle is stopped and subjected to an
was charged with selling marijuana. Is the extensive search, such a warrantless search would be
warrantless seizure of marijuana legal? constitutionally permissible only if the officers
conducting the search have reasonable or probable
A: Yes. The search being an incident to a lawful arrest, cause to believe, before the search, that either the
it needed no warrant for its validity. The accused motorist is a law-offender or they will find the
having been caught in flagrante delicto, the arresting instrumentality or evidence pertaining to a crime in
officers were duty bound to apprehend her the vehicle to be searched. However, the fact that the
immediately. The warrantless search and seizure, as vehicle looked suspicious simply because it is not
an incident to a lawful arrest, may extend to include common for such to be covered with kakawati leaves

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does not constitute "probable cause" as would justify legality of the warrant issued therefore, or from assailing the
the conduct of a search without a warrant. regularity or questioning the absence of a preliminary
Furthermore, the police authorities did not claim to investigation of the charge against him, provided that he
raises them before entering his plea. (Sec. 26, Rule 114, Rules
have received any confidential report or tipped
of Court)
information that Rudy was carrying stolen cable wires
in his vehicle which could otherwise have sustained
Arrest with warrant v. Warrantless arrest as to the
their suspicion. It cannot likewise be said that the
element of time
cable wires found in Rudy's vehicle were in plain view,
making its warrantless seizure valid. The cable wires
Arrest with Warrant Warrantless Arrest
were not exposed to sight because they were placed
There is an appreciable There must be a large
in sacks and covered with leaves. The articles were
lapse of time between measure of immediacy
neither transparent nor immediately apparent to the
the arrest and the between the time the
police authorities. (Caballes v. Court of Appeals, G. R.
commission of the offense is committed
No. 136292, January 15, 2002)
crime. and the time of the
arrest.
WARRANTLESS ARRESTS
Q: SPO2 Luigi Morales and PO2 Yael Padilla received
Instances of a valid warrantless arrest
information that Neil Banzon was about to deliver
drugs at the Thunder Bird Resort in Angeles City.
1. In flagrante delicto The person to be arrested
When Neil Banzon arrived at the resort, he was
has either committed, is actually committing, or
carrying a sealed Zest-O juice box. The police men
is about to commit an offense in the presence of
hurriedly accosted him and introduced themselves as
the arresting officer.
police officers. When SPO2 Morales peeked into the
2. Hot Pursuit When an offense has in fact just
contents of the Zest-O box, he saw that it contained
been committed and the arresting officer has
a crystalline substance. He instantly confiscated the
probable cause to believe, based on personal
said box. Neil was then found guilty of illegal
knowledge of the facts and circumstances
possession of shabu. Was the search lawful?
indicating, that the person to be arrested has
committed it
A: No. Neither the in flagrante delicto nor the stop and
3. Escaped Prisoner or Detainee When the person
to be arrested is a prisoner who has escaped from frisk principle is applicable to justify the warrantless
a penal establishment or place where he is arrest and consequent search and seizure made by the
serving final judgment or temporarily confined police operatives on accused-appellant. In in flagrante
while his case is pending, or has escaped while delicto arrests, the accused is apprehended at the very
being transferred from one confinement to moment he is committing or attempting to commit or
another. (Sec. 5, Rule 113, Rules of Court) has just committed an offense in the presence of the
4. Waiver When the right is waived by the person arresting officer. Emphasis should be laid on the fact
arrested, provided he knew of such right and that the law requires that the search be incidental to a
knowingly decided not to invoke it. lawful arrest. Therefore, it is beyond cavil that a lawful
5. Continuing offenses A peace officer can validly arrest must precede the search of a person and his
conduct a warrantless arrest in crimes of belongings. Accordingly, for this exception to apply
rebellion, subversion, conspiracy or proposal to two elements must concur: (1) the person to be
commit such crimes, and crimes or offenses arrested must execute an overt act indicating that he
committed in furtherance thereof, or in has just committed, is actually committing, or is
connection therewith constitute direct assaults attempting to commit a crime; and (2) such overt act
against the State, which are in the nature of is done in the presence or within the view of the
continuing crimes. Since rebellion is a continuing arresting officer. Neil did not act in a suspicious
offense, a rebel may be arrested at any time, with manner. For all intents and purposes, there was no
or without a warrant, as he is deemed to be in the overt manifestation that he has just committed, is
act of committing the offense at any time of the actually committing, or is attempting to commit a
day or night. (Umil v. Ramos, 187 SCRA 311) crime. (People v. Sy Chua, G.R. Nos. 136066-
67. February 4, 2003)
NOTE: The waiver is limited to invalid arrest and does not
extend to illegal search. Q: Pat. Ben Reyes was instructed by P/Lt. Vic Laurel
to monitor the activities of Edwin Alcaraz because of
An application for or admission to bail shall not bar the information that the latter
accused from challenging the validity of his arrest or the was selling marijuana. Pat. Reyes positioned himself

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under a house which was adjacent to a ADMINISTRATIVE ARREST


chapel. Thereafter, Pat. Reyes saw Edwin enter the
chapel, taking something which turned out later to be There is an administrative arrest when there is an
marijuana from the compartment of a cart found arrest as an incident to deportation proceedings.
inside the chapel, and then return to the street where
he handed the same to Jack Acebes. Police officers The following aliens shall be arrested upon the
then pursued Jack. Upon seeing the police, he threw warrant of the Commissioner of Immigration or of any
something to the ground which turned out to be a tea other officer designated by him for the purpose and
bag of marijuana. When confronted, Jack admitted deported upon the warrant of the Commissioner of
that he bought the same from Edwin. Thus, Edwin Immigration after a determination by the Board of
was convicted for violating Dangerous Drugs Act. Was Commissioners of the existence of the ground for
the warrantless arrest lawful? Was the evidence deportation as charges against the alien:
resulting from such arrest admissible?
1. Any alien who enters the Philippines after the
A: Yes. When a police officer sees the offense, effective date of this Act by means of false and
although at a distance, or hears the disturbances misleading statements or without inspection and
created thereby, and proceeds at once to the scene admission by the immigration authorities at a
thereof, he may effect an arrest without a warrant. designated port of entry or at any place other than
There is nothing unlawful about the arrest considering at a designated port of entry; [As amended by
its compliance with the requirements of a warrantless Republic Act No. 503, Sec. 13]
arrest. Ergo, the fruits obtained from such lawful arrest 2. Any alien who enters the Philippines after the
are admissible in evidence. (People v. Sucro, G.R. No. effective date of this Act, who was not lawfully
93239 March 18, 1991) admissible at the time of entry;
3. Any alien who, after the effective date of this Act,
Q: At about 7:00 a.m. of April 3, 2003 Gibo Cayetano, is convicted in the Philippines and sentences for a
together with Juan Villar and Bong Escudero, started term of one year or more for a crime involving
drinking liquor and smoking marijuana in the house moral turpitude committed within five years after
of Gibo. They started talking about their intention to his entry to the Philippines, or who, at any time
kill Simeon Marcos. The three carried out their plan after such entry, is so convicted and sentenced
at about 2:00 p.m. of the same day by mauling more than once;
Simeon. At about 4:00 p.m. of the same day, 4. Any alien who is convicted and sentenced for a
Patrolman Jaime Santos received a report about a violation of the law governing prohibited drugs;
mauling incident. Right away, Patrolman Santos [As amended by Republic Act No. 503, Sec. 13]
proceeded to Paseo de Blas where the mauling 5. Any alien who practices prostitution or is an
incident took place. Patrolman Santos frisked Gibo inmate of a house of prostitution or is connected
and found a coin purse in his pocket which contained with the management of a house of prostitution,
dried leaves wrapped in cigarette foil. The dried or is a procurer;
leaves were found to be marijuana. He was 6. Any alien who becomes a public charge within five
held guilty for violating the Dangerous Drugs years after entry from causes not affirmatively
Act. Was the search lawful? shown to have arisen subsequent to entry;
7. Any alien who remains in the Philippines in
A: Yes. The search conducted on Gibo's person was violation of any limitation or condition under
lawful because it was made as an incident to a valid which he was admitted as a non-immigrant;
arrest. This is in accordance with Sec. 12, Rule 126 of 8. Any alien who believes in, advises, advocates or
the Revised Rules of Court which provides: "Sec. 12. teaches the overthrow by force and violence of
Search incident to lawful arrest. A person lawfully the Government of the Philippines, or of
arrested may be searched for dangerous weapons or constituted law and authority or who disbelieves
anything which may be used as proof of the in or is opposed to organized government, or who
commission of an offense, without a search warrant." advises, advocates or teaches the assault or
The frisk and search of appellant's person upon his assassination of public officials because of their
arrest was a permissible precautionary measure of office, or who advises, advocates, or teaches the
arresting officers to protect themselves, for the person unlawful destruction of property, or who is a
who is about to be arrested may be armed and might member of or affiliated with any organization
attack them unless he is first disarmed. (People v. entertaining, advocating or teaching such
Gerente, G.R. No. 95847-48. March 10, 1993) doctrines, or who in any manner whatsoever

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lends assistance, financial or otherwise, to the unbridled discretion to schools and employers to
dissemination of such doctrines; determine the manner of drug testing as well as it can
9. Any alien who commits any of the acts described be used to harass a student or an employee deemed
in Sec.s forty-five of this Act, independent of undesirable. Is the provision constitutional?
criminal action which may be brought against him:
Provided, that in the case of alien who, for any A: Yes. A law requiring mandatory drug testing for
reason, is convicted and sentenced to suffer both students of secondary and tertiary schools is not
imprisonment and deportation, said alien shall unconstitutional. It is within the prerogative of
first serve the entire period of his imprisonment educational institutions to require, as a condition for
before he is actually deported: Provided, admission, compliance with reasonable school rules
however, that the imprisonment may be waived and regulations and policies. To be sure, the right to
by the Commissioner of Immigration with the enroll is not absolute; it is subject to fair, reasonable,
consent of the Department Head, and upon and equitable requirements. In sum:
payment by the alien concerned of such amount
as the Commissioner may fix and approved by the 1. Schools and their administrators stand in loco
Department Head; [Paragraph added pursuant to parentis with respect to their students;
Republic Act No. 144, Sec. 3] 2. Minor students have contextually fewer rights
10. Any alien who, at any time within five years after than an adult, and are subject to the custody and
entry, shall have been convicted of violating the supervision of their parents, guardians, and
provisions of the Philippine Commonwealth Act schools;
Numbered Six hundred and fifty-three, otherwise 3. Schools acting in loco parentis, have a duty to
known as the Philippine Alien Registration Act of safeguard the health and well-being of their
1941**(now Alien Registration Act of 1950, students and may adopt such measures as may
Republic Act No. 562, as amended) or who, at any reasonably be necessary to discharge such duty;
time after entry, shall have been convicted more and
than once of violating the provisions of the same 4. Schools have the right to impose conditions on
Act; [Added pursuant to Republic Act No. 503, Sec. applicants for admission that are fair, just and
13] non-discriminatory. (SJS v. DDB, G.R. No. 157870,
11. Any alien who engages in profiteering, hoarding, Nov. 3, 2008)
or black-marketing, independent of any criminal
action which may be brought against him; [Added A law requiring mandatory drug testing for officers and
pursuant to Republic Act No. 503, Sec. 13] employees of public and private offices is not
12. Any alien who is convicted of any offense unconstitutional. As the warrantless clause of Sec. 2,
penalized under Commonwealth Act Numbered Art. III of the Constitution is couched and as has been
Four hundred and seventy-three, otherwise held, reasonableness is the touchstone of the
known as the Revised Naturalization Laws of the validity of a government search or intrusion. And
Philippines, or any law relating to acquisition of whether a search at issue hews to the reasonableness
Philippine citizenship; [Added pursuant to standard is judged by the balancing of the
Republic Act No. 503, Sec. 13] government-mandated intrusion on the individuals
13. Any alien who defrauds his creditor by absconding privacy interest against the promotion of some
or alienating properties to prevent them from compelling state interest. In the criminal context,
being attached or executed. [Added pursuant to reasonableness requires showing probable cause to be
Republic Act No. 503, Sec. 13] (Philippine personally determined by a judge. Given that the drug-
Immigration Act of 1940) testing policy for employeesand students for that
matterunder RA 9165 is in the nature of
DRUG, ALCOHOL, AND BLOOD TESTS administrative search needing what was referred to in
Veronia case as swift and informal procedures, the
Q: Congress enacted the Comprehensive Dangerous probable cause standard is not required or even
Drugs Act of 2002 requiring the mandatory drug practicable. (SJS v. DDB and PDEA, G.R. No. 157870,
testing of candidates for public office, students of Nov. 3, 2008)
secondary and tertiary schools, officers and
employees of public and private offices, and persons Q: R.A. 9165 requires mandatory drug testing for
charged before the prosecutors office with certain persons charged before the prosecutors office with
offenses. Social Justice Society questions this criminal offenses punishable with 6 years and 1 day
provision for being unconstitutional for it constitutes imprisonment. Petitioner SJS questions the
undue delegation of legislative power when it give constitutionality of the law on the ground that it

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violates the rights to privacy and against self- of certain rights is necessary to accommodate
incrimination of an accused. Decide. institutional needs and objectives of prison facilities,
primarily internal security. As long as the letters are
A: The Court finds the situation entirely different in the not confidential communication between the detainee
case of persons charged before the public prosecutors and his lawyer the detention officials may read them.
office with criminal offenses punishable with But if the letters are marked confidential
imprisonment. The operative concepts in the communication between detainee and lawyer the
mandatory drug testing are randomness and officer must not read them but only inspect them in
suspicionless. In the case of persons charged with a the presence of detainees. A law is not needed before
crime before the prosecutors office, a mandatory an executive officer may intrude into the rights of
drug testing can never be random or suspicionless. The privacy of a detainee or a prisoner. By the very fact of
ideas of randomness and being suspicionless are their detention, they have diminished expectations of
antithetical to their being made defendants in a privacy rights. (Alejano v. Cabuay, G.R. No. 160792, Aug.
criminal complaint. They are not randomly picked; 25, 2005)
neither are they beyond suspicion. When persons
suspected of committing a crime are charged, they are Q: Does an officer charged with a crime in connection
singled out and are impleaded against their will. The with his office have a reasonable expectation of
persons thus charged, by the bare fact of being hauled privacy in his office and computer files?
before the prosecutors office and peaceably
submitting themselves to drug testing, if that be the A: No. The Supreme Court cited the US case of
case, do not necessarily consent to the procedure, let OConnor v. Ortega, which ruled that government
alone waive their right to privacy. To impose agencies, in their capacity as employers, rather than
mandatory drug testing on the accused is a blatant law enforcers, could validly conduct search and seizure
attempt to harness a medical test as a tool for criminal in the governmental workplace without meeting the
prosecution, contrary to the stated objectives of R.A. probable cause or warrant requirement for search
9165. Drug testing in this case would violate a persons and seizure. Moreover, he failed to prove that he had
right to privacy guaranteed under Sec. 2, Art. III of the an actual (subjective) expectation of privacy either in
Constitution. Worse still, the accused persons are his office or government-issued computer which
veritably forced to incriminate themselves. (SJS v. contained his personal files. (Pollo v. David G.R. No.
DDB, G.R. No. 157870, Nov. 3, 2008) 181881 October 18, 2011)

RIGHT TO PRIVACY IN COMMUNICATION AND Q: Under the Cybercrime Law, cybersex is the willful
CORRESPONDENCE engagement, maintenance, control, or operation,
directly or indirectly, of any lascivious exhibition of
PRIVATE AND PUBLIC COMMUNICATIONS sexual organs or sexual activity, with the aid of a
computer system, for favor or consideration.
GR: Right to privacy of communication and Petitioners expressed their fear that private
correspondence is inviolable. communications of sexual character between
consenting adults, which are not regarded as crimes
XPNs: under the penal code, would now be regarded as
1. By lawful order of the court; crimes when done for favor in cyberspace. Is the
2. Public safety or public order as prescribed by law argument of the petitioners valid?

NOTE: Any evidence in violation of this right or the right A: No. The deliberations of the Bicameral Committee
against unreasonable searches and seizures shall be of Congress on Sec.4(c)(i) of the law show a lack of
inadmissible for any purpose in any proceedings. intent to penalize a private showing between and
among two private persons although that may be a
INTRUSION, WHEN ALLOWED form of obscenity to some. The understanding of those
who drew up the cybercrime law is that the element
Q: Is a regulation mandating the opening of mail or of engaging in a business is necessary to constitute
correspondence of detainees violative of the the crime of illegal cybersex. The Act actually seeks to
constitutional right to privacy? punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This
A: No. There is no longer a distinction between an includes interactive prostitution and pornography,
inmate and a detainee with regard to the reasonable e.g., by webcam. (Disini v. Secretary of Justice G.R. No.
expectation of privacy inside his cell. The curtailment 203335 February 11, 2014)

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Anti-wiretapping act (RA 4200) commit any of the prohibited acts under R.A. 4200. (Ramirez
v. CA, G.R. No. 93833 Sept. 28, 1995)
This law prohibits any person, not being authorized by
all the parties to any private communication or spoken Q: Respondent DOJ Secretary Raul Gonzales warned
word, to tap any wire or cable, or by using any other that reporters who had copies of the compact disc
device or arrangement, to secretly overhear, (CD) and those broadcasting or publishing its
intercept, or record such communication or spoken contents could be held liable under the Anti-
word by using a device commonly known as a Wiretapping Act. Secretary Gonzales also ordered
dictaphone or dictagraph or dictaphone or walkie- the NBI to go after media organizations found to
talkie or tape recorder, or however otherwise have caused the spread, the playing and the printing
described. of the contents of a tape of an alleged wiretapped
conversation involving the President about fixing
It also prohibits any person, be he a participant or not votes in 2004 national elections. Can the DOJ
in the act or acts penalized in the next preceding Secretary use the Anti-Wiretapping act as a
sentence, to knowingly possess any tape record, wire regulatory measure to prohibit the media from
record, disc record, or any other such record, or copies publishing the contents of the CD?
thereof, of any communication or spoken word
secured either before or after the effective date of this A: No. The Court ruled that not every violation of a law
Act in the manner prohibited by this law; or to replay will justify straitjacketing the exercise of freedom of
the same for any other person or persons; or to speech and of the press. There are laws of great
communicate the contents thereof, either verbally or significance but their violation, by itself and without
in writing, or to furnish transcriptions thereof, more, cannot support suppression of free speech and
whether complete or partial, to any other person. free press. In fine, violation of law is just a factor, a vital
Provided, that the use of such record or any copies one to be sure, which should be
thereof as evidence in any civil, criminal investigation weighed in adjudging whether to restrain freedom of
or trial of offenses mentioned in sect. 3 hereof, shall speech and of the press. The totality of the injurious
not be covered by this prohibition. effects of the violation to private and public interest
must be calibrated in light of the preferred status
Under Sec. 3 of RA 4200, a peace officer, who is accorded by the Constitution and by related
authorized by a written order of the Court, may international covenants protecting freedom of speech
execute any of the acts declared to be unlawful in Sec. and of the press. By all means, violations of law
1 and Sec. 2 of the said law in cases involving the should be vigorously prosecuted by the State for they
crimes of: breed their own evil consequence. But to repeat, the
1. Treason need to prevent their violation cannot per se trump
2. Espionage the exercise of free speech and free press, a preferred
3. Provoking war and disloyalty in case of war right whose breach can lead to greater evils. (Francisco
4. Piracy and mutiny in the high seas Chavez v. Raul M. Gonzales, G.R. No. 168338, Feb. 15,
5. Rebellion (conspiracy and proposal and inciting 2008)
to commit included)
6. Sedition (conspiracy, inciting included) Q: Are letters of a husbands paramour kept inside
7. Kidnapping the husbands drawer, presented by the wife in the
8. Violations of CA 616 (punishing espionage and proceeding for legal separation, admissible in
other offenses against national security) evidence?

The use of telephone extension is not a violation of RA A: No, because marriage does not divest one of his/her
4200 (Anti-WireTapping Law The use of a telephone right to privacy of communication. (Zulueta v. CA,G.R.
extension to overhear a private conversation is neither No. 107383, Feb. 20, 1996)
among those devices, nor considered as a similar
device, prohibited under the law. (Gaanan v. IAC, G.R. Exclusionary rule
No.L-69809 Oct. 16, 1986)
Any evidence obtained in violation of the Constitution
NOTE: Anti-Wiretapping Act only protects letters, messages, shall be inadmissible for any purpose in any
telephone calls, telegrams and the like. proceeding. However, in the absence of governmental
interference, the protection against unreasonable
The law does not distinguish between a party to the private search and seizure cannot be extended to acts
communication or a third person. Hence, both a party and a committed by private individuals. (People v. Marti,
third person could be held liable under R.A. 4200 if they
G.R. No. 78109. Jan. 18, 1991)

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WRIT OF HABEAS DATA Scope of protected freedom of expression under the


Constitution
Writ of habeas data
1. Freedom of speech
A remedy available to any person whose right to 2. Freedom of the press
privacy in life, liberty or security is violated or 3. Right of assembly and to petition the government
threatened by an unlawful act or omission of a public for redress of grievances
official or employee, or of a private individual or entity 4. Right to form associations or societies not
engaged in the gathering, collecting or storing of data contrary to law
or information regarding the person, family, home and 5. Freedom of religion
correspondence of the aggrieved party. (Sec. 1, The 6. Right to access to information on matters of public
Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, concern.
Jan. 22, 2008)
Protected speech includes every form of expression,
The reliefs that may be obtained in the petition for whether oral, written, tape or disc recorded. It
issuance of writ of habeas data may include the includes motion pictures as well as what is known as
updating, rectification, suppression or destruction of symbolic speech such as the wearing of an armband as
the database or information or files kept by the a symbol of protest. Peaceful picketing has also been
respondent and in case of threats of the unlawful act, included within the meaning of speech.
the relief may include a prayer for an order enjoining
the act complained of. A general prayer for other Limitations of freedom of expression
reliefs that are just and equitable under the
circumstances is also allowed. It should be exercised within the bounds of laws
enacted for the promotion of social interests and the
A writ of habeas data may not be issued to protect protection of other equally important individual rights
purely property and commercial concerns. It bears such as:
reiteration that like the writ of amparo, habeas data 1. Laws against obscenity, libel and slander (contrary
was conceived as a response, given the lack of to public policy)
effective and available remedies, to address the 2. Right to privacy of an individual
extraordinary rise in the number of killings and 3. Right of state/government to be protected from
enforced disappearances. Its intent is to address seditious attacks
violations of or threats to the rights to life, liberty or 4. Legislative immunities
security as a remedy independently from those 5. Fraudulent matters
provided under prevailing rules. Writs of amparo and 6. Advocacy of imminent lawless conducts
habeas data will not issue to protect purely property 7. Fighting words
or commercial concerns nor when the grounds 8. Guarantee implies only the right to reach a willing
invoked in support of the petitions therefore are vague audience but not the right to compel others to
or doubtful. Employment constitutes a property right listen, see or read
under the context of the due process clause of the
Constitution. It is evident that respondents Rationale behind the provision on freedom of
reservations on the real reasons for her transfer-a expression
legitimate concern respecting the terms and
conditions of ones employment- are what prompted Consistent with its intended role in society, it means
her to adopt the extraordinary remedy of habeas data. that the people are kept from any undue interference
(Manila Electric Company v. Lim, GR. No. 184769, Oct. from the government in their thoughts and words.
5, 2010) The guarantee basically flows from the philosophy that
the authorities do not necessarily know what is best
FREEDOM OF EXPRESSION for the people.

Freedom of expression Four aspects of freedom of speech and press

No law shall be passed abridging the freedom of 1. Freedom from censorship or prior restraint see
speech, of expression, or of the press, or of the right of discussion on prior restraint.
the people peaceably to assemble and petition the 2. Freedom from subsequent punishment to
government for redress of grievances. publication see discussion on subsequent
punishment.

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3. Freedom of access to information regarding resulting from radio and television coverage will
matters of public interest Official papers, reports inevitably result in prejudice. (Re: Request for Radio-
and documents, unless held confidential and TV Coverage of the Trial in the Sandiganbayan of the
secret by competent authority in the public Plunder Cases Against the Former President Joseph E.
interest, are public records. As such, they are open Estrada, A.M. No. 01-4-03-SC, June 29, 2001)
and subject to regulation, to the scrutiny of the
inquiring reporter or editor. Information obtained In a constitutional sense, public trial is not
confidentially may be printed without synonymous with publicized trial. The right to a public
specification of the source; and that source is trial belongs to the accused. The requirement of a
closed to official inquiry, unless the revelation is public trial is satisfied by the opportunity of the
deemed by the courts, or by a House or members of the public and the press to attend the trial
committee of the Congress, to be vital to the and to report what they have observed. The accuseds
security of the State. right to a public trial should not be confused with the
4. Freedom of circulation Refers to the freedom of the press and the publics right to know as
unhampered distribution of newspapers and a justification for allowing the live broadcast of the
other media among customers and among the trial. The tendency of a high profile case like the
general public. It may be interfered with in several subject case to generate undue publicity with its
ways. The most important of these is censorship. concomitant undesirable effects weighs heavily
Other ways include requiring a permit or license against broadcasting the trial. Moreover, the fact that
for the distribution of media and penalizing the accused has legal remedies after the fact is of no
dissemination of copies made without it, and moment, since the damage has been done and may be
requiring the payment of a fee or tax, imposed irreparable. It must be pointed out that the
either on the publisher or on the distributor, with fundamental right to due process of the accused
the intent to limit or restrict circulation. These cannot be afforded after the fact but must be
modes of interfering with the freedom to circulate protected at the first instance. (In Re: Petition for
have been constantly stricken down as Radio and Television Coverage of the Multiple Murder
unreasonable limitations on press freedom. Cases against Maguindanao Governor Zaldy
(Chavez v. Gonzales G.R. No. 168338, Feb. 15, Ampatuan, et al., A.M. No. 10-11-5-SC, October 23,
2008) 2012)

NOTE: There need not be total suppression; even restriction Q: Members of the faculty of the University of the
of circulation constitutes censorship. Philippus College of Law published a statement on
the allegations of plagiarism and misrepresentation
Q: The Kapisanan ng mga Brodkaster ng Pilipinas relative to a certain Courts decision. Essentially, the
(KBP) sent a letter requesting the Supreme Court to faculty calls for the resignation of Justice Mario
allow live media coverage of the anticipated trial of Pascual in the face of allegations of plagiarism in his
the plunder and other criminal cases filed against work. Does this act of the faculty members squarely
former President Joseph E. Estrada before the fall under the freedom of speech and expression?
Sandiganbayan in order to assure the public of full
transparency in the proceedings. Should they be A: No. The publication of a statement by the faculty of
allowed to cover the trial grounding their petition on the University of the Philippus College regarding the
the constitutional right of the public to information allegations of plagiarism and misrepresentation in the
and freedom of the press? Supreme Court was totally unnecessary, uncalled for
and a rash act of misplaced vigilance. While most agree
A: No. Live TV coverage may be prohibited since the that the right to criticize the judiciary is critical to
right of the accused must prevail over the right of the maintaining a free and democratic society, there is
public to information and freedom of the press. Its also a general consensus that healthy criticism only
presence is a form of mental - if not physical- goes so far. Many types of criticism leveled at the
harassment, resembling a police line-up or the third judiciary cross the line to become harmful and
degree. The inevitable close-up of his gestures and irresponsible attacks. These potentially devastating
expressions during the ordeal of his trial might well attacks and unjust criticism can threaten the
transgress his personal sensibilities, his dignity, and his independence of the judiciary. (Re: Letter of the UP Law
ability to concentrate on the proceedings before him. Faculty entitled Restoring Integrity: A Statement by the
A defendant on trial for a specific crime is entitled to Faculty of the University of the Philippines College of Law
his day in court, not in a stadium, or a city or on the Allegations of Plagiarism and Misrepresentation in
nationwide arena. The heightened public clamor the Supreme Court., A.M. No. 10-10-4-SC, Oct. 19, 2010)

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PRIOR RESTRAINT (CENSORSHIP) online defamation constitutes similar means for


committing libel. Furthermore, the United Nations
Prior restraint Human Rights Committee did not actually enjoin the
Philippines to decriminalize libel. It simply suggested
Means official government restrictions on the press or that defamation laws be crafted with care to ensure
other forms of expression in advance of actual that they do not stifle freedom of expression. Free
publication or dissemination. (Bernas, The 1987 speech is not absolute. It is subject to certain
Philippine Constitution A Comprehensive Reviewer, restrictions, as may be necessary and as may be
2006) provided by law. (Disini v. Secretary of Justice G.R. No.
203335 February 11, 2014)
NOTE: Freedom from prior restraint is largely freedom from
government censorship of publications, whatever the form NOTE: In her dissenting and concurring opinion, Chief
of censorship, and regardless of whether it is wielded by the Justice Maria Lourdes Sereno posits that the ponencia
executive, legislative or judicial branch of the government. correctly holds that libel is not a constitutionally protected
Thus, it precludes governmental acts that required approval conduct. It is also correct in holding that, generally, penal
of a proposal to publish; licensing or permits as prerequisites statutes cannot be invalidated on the ground that they
to publication including the payment of license taxes for the produce a chilling effect, since by their very nature, they
privilege to publish; and even injunctions against are intended to have an in terrorem effect (benign chilling
publication. Even the closure of the business and printing effect) to prevent a repetition of the offense and to deter
offices of certain newspapers, resulting in the criminality. The chilling effect is therefore equated with
discontinuation of their printing and publication, are and justified by the intended in terrorem effect of penal
deemed as previous restraint or censorship. Any law or provisions.
official that requires some form of permission to be had
before publication can be made, commits an infringement of Thus, when Congress enacts a penal law affecting free
the constitutional right, and remedy can be had at the speech and accordingly imposes a penalty that is so
courts. (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) discouraging that it effectively creates an invidious chilling
effect, thus impeding the exercise of speech and expression
Exceptions to the prohibition of prior restraint altogether, then there is a ground to invalidate the law. In
this instance, it will be seen that the penalty provided has
1. Pornography gone beyond the in terrorem effect needed to deter crimes
2. False or Misleading Advertisement and has thus reached the point of encroachment upon a
preferred constitutional right.
3. Advocacy of Imminent Lawless Actions
4. Danger to National Security (Soriano v. MTRCB,
Two kinds of chilling effect
G.R. No. 165636, April 29, 2009)
Benign Chilling Effect Invidious Chilling Effect
Near v. Minnesota, 283 US 697 (1931) adds the
following to the enumeration: May be caused by penal May be caused by penal
1. When a nation is at war, many things that might statutes which are laws affecting free
be said in time of peace are such a hindrance to its intended to have an in speech and accordingly
effort that their utterance will not be endured so terrorem effect to imposes a penalty that
long as men fight and that no court could regard prevent a repetition of is so discouraging thus
them as protected by any constitutional right. the offense and to deter impeding the exercise
2. The primary requirements of decency may be criminality. The chilling of speech and
enforced against obscene publications. effect is equated with expression altogether.
3. The security of community life may be protected and justified by the
against incitements to acts of violence and the intended in terrorem
overthrow by force of orderly government. effect of penal
provisions.
Q: Are the provisions of the Revised Penal Code on
NOTE: Allowed NOTE: Not allowed
Libel and the provision of the Cyber Crime Law on
cyber libel constitutional?
Q: Nestor posted on Facebook that Juan Dela Cruz, a
A: Yes. Libel is not a constitutionally protected speech
married person, has an illicit affair with Maria. Dexter
and that the government has an obligation to protect
liked this post and commented: Yes! This is true!
private individuals from defamation. Indeed, cyber
What an immoral thing to do?! This post was
libel is actually not a new crime since Art. 353, in
likewise liked by 23 people. Juan Dela Cruz filed a
relation to Art. 355 of the penal code, already punishes
case for online libel against Nestor, Dexter and 23
it. In effect, Sec. 4(c)(4) above merely affirms that

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other people who liked the post using as his basis Sec. falsehood relating to his official conduct unless he
5 of the Cybercrime law which penalizes any person proves that the statement was made with actual malice.
who willfully abets or aids in the commission of any 4. Rights of students to free speech in school premises not
absolute The school cannot suspend or expel a
of the offenses enumerated in the said law. Is this
student solely on the basis of the articles he has written
provision of the law constitutional?
except when such article materially disrupts class work
or involves substantial disorder or invasion of rights of
A: No. The terms aiding or abetting constitute broad others.(Miriam College Foundation v. CA, GR 127930,
sweep that generates chilling effect on those who Dec. 15, 2000)
express themselves through cyberspace posts,
comments, and other messages. Its vagueness raises Doctrine of Fair Comment
apprehension on the part of internet users because of
its obvious chilling effect on the freedom of While as a general rule, every discreditable public
expression, especially since the crime of aiding or imputation is false because every man is presumed
abetting ensnares all the actors in the cyberspace front innocent, thus every false imputation is deemed
in a fuzzy way. The terms aiding or abetting malicious, as an exception, when the discreditable
constitute broad sweep that generates chilling effect imputation is directed against a public person in his
on those who express themselves through cyberspace public capacity, such is not necessarily actionable. For
posts, comments, and other messages. Hence, Sec. 5 it to be actionable, it must be shown that either there
of the cybercrime law that punishes aiding or is a false allegation of fact or comment based on a false
abetting libel on the cyberspace is a nullity. But supposition. However, if the comment is an expression
Nestor, the author, is still liable for the defamatory of opinion, based on established facts; it is immaterial
words he posted. (Disini v. Secretary of Justice G.R. No. whether the opinion happens to be mistaken, as long
203335 February 11, 2014) as it might reasonably be inferred from facts. (Borjal v.
CA, G.R. No. 126466, Jan. 14, 1999)
FREEDOM FROM SUBSEQUENT PUNISHMENT
Q: A national daily newspaper carried an exclusive
Freedom from subsequent punishment report stating that Senator Ryan Christopher received
a house and lot located at YY Street, Makati, in
A limitation on the power of the State from imposing consideration for his vote to cut cigarette taxes by
a punishment after publication or dissemination. 50%. The Senator sued the newspaper, its reporter,
Without this assurance, the individual would hesitate editor and publisher for libel, claiming the report was
to speak for fear that he might be held to account for completely false and malicious. According to the
his speech, or that he might be provoking the Senator, there is no YY Street in Makati, and the tax
vengeance of the officials he may have criticized. cut was only 20%. He claimed one million pesos in
(Antonio Nachura, Outline Reviewer in Political Law, p. damages. The defendants denied "actual malice,"
152) claiming privileged communication and absolute
freedom of the press to report on public officials and
This second basic prohibition of the free speech and matters of public concern. If there was any error, the
press clause prohibits systems of subsequent newspaper said it would publish the correction
punishment which have the effect of unduly curtailing promptly. Are the defendants liable for damages?
expression.
A: No. Since Senator Ryan Christopher is a public
NOTE: Freedom from subsequent punishment is not person and the questioned imputation is directed
absolute; it may be properly regulated in the interest of the against him in his public capacity, in this case actual
public. The State may validly impose penal and/or malice means the statement was made with
administrative sanctions such as in the following:
knowledge that it was false or with reckless disregard
1. Libel A public and malicious imputation of a crime,
vice or defect, real or imaginary or any act omission,
of whether it was false or not. Since there is no proof
status tending to cause dishonor, discredit or contempt that the report was published with knowledge that it
of a natural or judicial person, or blacken the memory is false or with reckless disregard of whether it was
of one who is dead (Art 353, Revised Penal Code) false or not, the defendants are not liable for damages.
2. Obscenity In Pita v Court of Appeals, the Supreme (Borjal v. CA, G.R. No. 126466, Jan. 14, 1999)
Court declared that the determination of what is
obscene is a judicial function. Q: Is the Borjal doctrine applicable in a case where
3. Criticism of Official Conduct In New York Times v. the allegations against a public official were false and
Sullivan, 376 US 254 (1964), the constitutional
that the journalist did not exert effort to verify the
guarantee requires a federal rule that prohibits a public
official from recovering damages for a defamatory
information before publishing his articles?

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A: No. Borjal may have expanded the protection of No presumption of There is presumption of
qualified privileged communication beyond the unconstitutionality unconstitutionality
instances given in Art. 354 of the RPC, but this
expansion does not cover such a case. The expansion NOTE: The burden of proof
speaks of "fair commentaries on matters of public to overcome the
interest." While Borjal places fair commentaries within presumption of
the scope of qualified privileged communication, the unconstitutionality is with
the government.
mere fact that the subject of the article is a public
Test to be used: Test to be used: Clear and
figure or a matter of public interest does not
Intermediate Present Danger
automatically exclude the author from liability. His
Approach
articles cannot even be considered as qualified
privileged communication under the second
paragraph of Art. 354 of the RPC, which exempts from Intermediate Approach Test
the presumption of malice a fair and true report. Good
faith is lacking. (Tulfo v. People,G.R. No. 161032, Sept. Used when the speech restraints take the form of a
16, 2008) content-neutral regulation, only a substantial
governmental interest is required for its validity.
Q: Erika Ong penned several articles in Malaya Because regulations of this type are not designed to
newspaper regarding alleged bribery incidents in the suppress any particular message, they are not subject
Supreme Court and characterizing the justices as to the strictest form of judicial scrutiny but an
thieves and a basket of rotten apples. The Court intermediate approachsomewhere between the
En Banc required Erika to explain why no sanction mere rationality that is required of any other law and
should be imposed on her for indirect contempt of the compelling interest standard applied to content-
court. Did the order of the Court violate freedom of based restrictions. The test is called intermediate
the press? because the Court will not merely rubberstamp the
validity of a law but also require that the restrictions
A: No. While freedom of speech, of expression and of be narrowly-tailored to promote an important or
the press are at the core of civil liberties and have to significant governmental interest that is unrelated to
be protected at all costs for the sake of democracy, the suppression of expression. (Chavez v. Gonzales,
these freedoms are not absolute. For, if left unbridled, G.R. No. 168338, Feb. 15, 2008)
they have the tendency to be abused and can translate
NOTE: A law is narrowly-tailored if it is for the advancement
to licenses, which could lead to disorder and anarchy. of states interest, if it does not restrict a significant amount
Erika crossed the line, as hers are baseless scurrilous of speech that does not implicate the government interest
attacks which demonstrate nothing but an abuse of and if it is the least restrictive alternative available to serve
press freedom. They leave no redeeming value in such interest. (Eugene Volokh, Freedom of Speech,
furtherance of freedom of the press. They do nothing Permissible Tailoring and Transcending Strict Scrutiny, 144 U.
but damage the integrity of the High Court, undermine Pennsylvania L. Rev. 2417, 1997)
the faith and confidence of the people in the judiciary,
and threaten the doctrine of judicial independence. (In Clear and Present Danger Test
Re: Allegations Contained in the Columns of Mr.
Amado P. Macasaet, A.M. No. 07-09-13-SC, Aug. 8, The government must also show the type of harm the
2008) speech sought to be restrained would bring about
especially the gravity and the imminence of the
CONTENT-BASED & threatened harm otherwise the prior restraint will be
CONTENT-NEUTRAL REGULATION invalid. Prior restraint on speech based on its content
cannot be justified by hypothetical fears, but only by
CONTENT-NEUTRAL CONTENT-BASED showing a substantive and imminent evil that has
REGULATION RESTRAINT taken the life of a reality already on ground. As
Merely concerned The restriction is based on formulated, the question in every case is whether the
with the incidents of the subject matter of the words used are used in such circumstances and are
the speech, or one that utterance or speech. The of such a nature as to create a clear and present
merely controls the cast of the restriction danger that they will bring about the substantive
time, place or manner, determines the test by evils that Congress has a right to prevent. It is a
and under well defined which the challenged act question of proximity and degree. The regulation
standards. is assailed with. which restricts the speech content must also serve an
important or substantial government interest, which is

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unrelated to the suppression of free expression. FACIAL CHALLENGES AND


(Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008) OVERBREADTH DOCTRINE

Q: The NTC issued a warning that that the continuous Facial Challenge
airing or broadcast by radio and television stations of
the alleged wiretapped conversation involving the A challenge to a statute in court, in which the plaintiff
President allegedly fixing votes in the 2004 national alleges that the legislation is always, and under all
elections is a continuing violation of the Anti- circumstances, unconstitutional, and therefore void.
Wiretapping Law and shall be just cause for the
suspension, revocation and/or cancellation of the NOTE: Facial challenge to a statute is allowed only when it
licenses or authorizations issued to the said operates in the area of freedom of expression. Invalidation
companies. Were the rights to freedom of expression of the statute on its face, rather than as applied, is permitted
and of the press, and the right of the people to in the interest of preventing a chilling effect on freedom of
information on matters of public concern violated by expression. (Separate opinion of Justice Mendoza in Cruz v.
such warning of the NTC? Secretary of Environment and Natural Resources, GR.
135385, Dec. 6, 2000)
A: Yes. Said rights were violated applying the clear and
present danger test. The challenged acts need to be Distinguished from an as-applied challenge which
subjected to the clear and present danger rule, as they considers only extant facts affecting real litigants,
are content-based restrictions. The acts of NTC and the a facial invalidation is an examination of the entire law,
DOJ Sec. focused solely on but one objecta specific pinpointing its flaws and defects, not only on the basis
content fixed as these were on the alleged taped of its actual operation to the parties, but also on the
conversations between the President and a COMELEC assumption or prediction that its very existence may
official. Undoubtedly these did not merely provide cause others not before the court to refrain from
regulations as to the time, place or manner of the constitutionally protected speech or activities.
dissemination of speech or expression. (Southern Hemisphere Engagement Network, Inc. v.
Anti-Terrorism Council, G.R. No. 178552, Oct. 5, 2010)
A governmental action that restricts freedom of
speech or of the press based on content is given the Q: Is facial challenge to a penal statute allowed?
strictest scrutiny, with the government
having the burden of overcoming the presumed A: No. Facial challenges are not allowed in penal
unconstitutionality by the clear and present danger statutes. Criminal statutes have general in
rule. It appears that the great evil which government terrorem effect resulting from their very existence,
wants to prevent is the airing of a tape recording in and, if facial challenge is allowed for this reason
alleged violation of the anti-wiretapping law. alone, the State may well be prevented from enacting
laws against socially harmful conduct. In the area of
The evidence falls short of satisfying the clear and criminal law, the law cannot take chances as in the
present danger test. Firstly, the various statements of area of free speech. (KMU v. Ermita, G.R. No. 17855,
the Press Secretary obfuscate the identity of the voices Oct. 5, 2010)
in the tape recording. Secondly, the integrity of the
NOTE: A litigant cannot thus successfully mount a facial
taped conversation is also suspect. The Press Secretary
challenge against a criminal statute on either vagueness or
showed to the public two versions, one supposed to overbreadth grounds.
be a complete version and the other, an altered
version. Thirdly, the evidence on the whos and the The rule established in our jurisdiction is, only statutes on
hows of the wiretapping act is ambivalent, especially free speech, religious freedom, and other fundamental
considering the tapes different versions. The identity rights may be facially challenged.(Southern Hemisphere
of the wire-tappers, the manner of its commission and Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.
other related and relevant proofs are some of the 178552, Oct. 5, 2010)
invisibles of this case. Fourthly, given all these
unsettled facets of the tape, it is even arguable Overbreadth Doctrine
whether its airing would violate the anti-wiretapping
law. There is no showing that the feared violation of Permits a party to challenge the validity of a statute
the anti-wiretapping law clearly endangers the even though as applied to him it is not unconstitutional
national security of the State. (Chavez v. Gonzales, G.R. but it might be if applied to others not before the Court
No. 168338, Feb. 15, 2008) whose activities are constitutionally protected.
(Separate opinion of Justice Mendoza in Cruz v.
Secretary of Environment and Natural Resources, GR.

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105 FACULTY OF CIVIL LAW
Political and International Law

135385, Dec. 6, 2000) It is a type of facial challenge government restriction would then be allowed. It
that prohibits the government from achieving its is not necessary though that evil is actually
purpose by means that sweep unnecessarily broadly, created for mere tendency towards the evil is
reaching constitutionally protected as well as enough.
unprotected activity.
Emphasis: Nature of the circumstances under
Note: The application of the overbreadth doctrine is limited which the speech is uttered, though the speech
to a facial kind of challenge. per se may not be dangerous.
The most distinctive feature of the overbreadth technique is
3. Grave-but-Improbable Danger test
that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant
claims that a statute is unconstitutional as applied to him or Question: Whether the gravity of the evil,
her; if the litigant prevails, the courts carve away the discounted by its improbability, justifies such an
unconstitutional aspects of the law by invalidating its invasion of free speech as is necessary to avoid the
improper applications on a case to case basis. Moreover, danger. (Dennis v. US, 341 US 494, 1951)
challengers to a law are not permitted to raise the rights of
the third parties and can only assert their own interests. In 4. Balancing of interest test
overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court
Question: Which of the two conflicting interests
invalidates the entire statute on its face, not merely as
(not involving national security crimes) demands
applied for so that the overbroad law becomes
unenforceable until a properly authorized court construes it the greater protection under the particular
more narrowly. The factor that motivates court to depart circumstances presented:
from the normal adjudicatory rules is the concern with the a. When particular conduct is regulated in the
chilling, deterrent effect of the overbroad statute on third interest of public order
parties not courageous enough to bring suit.The Court b. And the regulation results in an indirect,
assumes that an overbroad laws very existence may cause conditional and partial abridgement of
others not before the court to refrain from constitutionally speech. (Gonzales v. COMELEC, G.R. No. L-
protected speech or expression. An overbreadth ruling is
27833, Apr. 18, 1969)
designed to remove that deterrent effect on the speech of
those third parties. (Southern Hemisphere Engagement
Network, Inc. v. Anti-Terrorism Council, G.R. No. 178552, Oct. 5. OBrien test
5, 2010)
Question: in situations when speech and non-
TESTS speech elements are combined in the same
course of conduct, whether there is a sufficiently
Tests for valid governmental interference to freedom important governmental interest that warrants
of expression regulating the non-speech element, incidentally
limiting the speech element.
1. Clear and Present Danger test
NOTE: A government regulation is valid if:
a. It is within the constitutional power of the
Question: Whether the words are used in such
government;
circumstances and are of such a nature as to b. In furtherance of an important or substantial
create a clear and present danger that they will governmental interest;
bring about the substantive evils that Congress c. Governmental interest is unrelated to the
has a right to prevent. It is a question of proximity suppression of free expression; and
and degree. (Schenck v. US, 249 US 47, 1919) d. The incidental restriction on the freedom is
essential to the furtherance of that interest.
Emphasis: The danger created must not only be (US v. OBrien, 391 US 367, 1968; SWS v.
clear and present but also traceable to the ideas COMELEC, G.R. 147571, May 5, 2001)
expressed. (Gonzales v. COMELEC, G.R. No. L-
27833, April 18, 1969) 6. Direct Incitement test

2. Dangerous Tendency test Question: What words did a person utter and
what is the likely result of such utterance?
Question: Whether the speech restrained has a
rational tendency to create the danger Emphasis: The very words uttered, and their
apprehended, be it far or remote, thus ability to directly incite or produce imminent
lawless action.

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NOTE: It criticizes the clear and present danger test for being A: No. To compel print media companies to donate
too dependent on the specific circumstances of each case. "Comelec-space, is tantamount to "taking" of private
personal property for public use or purposes. The
STATE REGULATION OF DIFFERENT taking of private property for public use is, of course,
TYPES OF MASS MEDIA authorized by the Constitution, but not without
payment of "just compensation. And apparently the
Q: Can an offensive and obscene language uttered in necessity of paying compensation for "Comelec space"
a prime-time television broadcast which was easily is precisely what is sought to be avoided by the
accessible to the children be reasonably curtailed and Commission. As such, it does not constitute a valid
validly restrained? exercise of the power of eminent domain.

A: Yes. In Soriano v. MTRCB, G.R. No. 165636, Apr. 29, Also, the resolution is a blunt and heavy instrument
2009, the Court, applying the balancing of interest that purports, without a showing of existence of a
doctrine, ruled that the governments interest to national emergency or other imperious public
protect and promote the interests and welfare of the necessity, indiscriminately and without regard to the
children adequately buttresses the reasonable individual business condition of particular newspapers
curtailment and valid restraint on petitioners prayer or magazines located in differing parts of the country,
to continue as program host of Ang Dating to take private property of newspaper or magazine
Daan during the suspension period. Sorianos publishers. No attempt was made to demonstrate that
offensive and obscene language uttered on prime- a real and palpable or urgent necessity for the taking
time television broadcast, without doubt, was easily of print space confronted the Comelec and that the
accessible to the children. His statements could have resolution was itself the only reasonable and
exposed children to a language that is unacceptable in calibrated response to such necessity available to the
everyday use. As such, the welfare of children and the Comelec. Thus, it does not constitute a valid exercise
States mandate to protect and care for them, of the police power of the State. (Philippine Press
as parens patriae, constitute a substantial and Institute, Inc. v. COMELEC, G.R. No. L-119694, May 22,
compelling government interest in regulating 1995)
Sorianos utterances in TV broadcast.
Q: Petitioners challenge the validity of Sec. 92, BP 881
NOTE: In his dissenting opinion, Justice Carpio cited Action which provides: COMELEC Time The Commission
for Children's Television v. FCC which establishes the safe shall procure radio and television time to be known
harbor period to be from 10:00 in the evening to 6:00 in the
as the COMELEC Time which shall be allocated
morning, when the number of children in the audience is at
a minimum. In effect, between the hours of 10:00 p.m. and
equally and impartially among the candidates within
6:00 a.m., the broadcasting of material considered indecent the area of coverage of all radio and television
is permitted. Between the hours of 6:00 a.m. and 10:00 p.m., stations. For this purpose, the franchise of all radio
the broadcast of any indecent material may be sanctioned. broadcasting and television stations is hereby
amended so as to provide radio or television time,
Q: COMELEC promulgated Resolution 2772 stating free of charge, during the period of campaign. Is Sec.
that the Commission shall have free print space in at 92 valid?
least one newspaper as COMELEC Space. This ad
space will be used by candidates for their campaign A: Yes. All broadcasting, whether by radio or by
or platforms of government, and for the television stations, is licensed by the government.
Commissions dissemination of vital information. Airwave frequencies have to be allocated as there are
Moreover, COMELEC released a letter-directive more individuals who want to broadcast than there
ordering the different newspapers to comply with the are frequencies to assign. A franchise is thus a privilege
said resolution. The petitioner contended that subject, among other things, to amended by Congress
COMELEC violated the prohibition imposed by the in accordance with the constitutional provision that
Constitution against the taking of properties without "any such franchise or right granted . . . shall be subject
just compensation. On the other hand, COMELEC to amendment, alteration or repeal by the Congress
asserts their directive is not mandatory and when the common good so requires."
compelling and that they only asked for a donation.
Moreover, they aver that even if the order is In truth, radio and television broadcasting companies,
mandatory, it would still be valid through the use of which are given franchises, do not own the airwaves
police power. Is COMELECs action constitutional? and frequencies through which they transmit
broadcast signals and images. They are merely given
the temporary privilege of using them. Since a

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franchise is a mere privilege, the exercise of the no substitute to breastmilk; and b) that there be a
privilege may reasonably be burdened with the statement that powdered infant formula may contain
performance by the grantee of some form of public pathogenic microorganisms and must be prepared and
service. used appropriately. Sec. 16 of the RIRR prohibits all
health and nutrition claims for products within the
In the granting of the privilege to operate broadcast scope of the Milk Code, such as claims of increased
stations and thereafter supervising radio and emotional and intellectual abilities of the infant and
television stations, the state spends considerable young child. These provisions of the Milk Code
public funds in licensing and supervising such stations. expressly forbid information that would imply or
It would be strange if it cannot even require the create a belief that there is any milk product
licensees to render public service by giving free air equivalent to breastmilk or which is humanized or
time. (Telecommunications and Broadcast Attorneys maternalized, as such information would be
of the Philippines, INC. v. COMELEC, G.R. No. 132922, inconsistent with the superiority of breastfeeding.
April 21, 1998) Thus, the RIRR is a reasonable means of enforcing the
Milk Code and deterring circumvention of the
COMMERCIAL SPEECH protection and promotion of breastfeeding as
embodied in the Milk Code. (Pharmaceutical and
Commercial speech Health Care Association of the Philippines v. Duque,
G.R. No. 173034, October 9, 2007)
Communication which no more than proposes a
commercial transaction. Advertisements of goods or PRIVATE V. GOVERNMENT SPEECH
of services is an example of this.
GOVERNMENT SPEECH PRIVATE SPEECH
To enjoy protection, commercial speech: The government may The right of a person to
1. Must not be false or misleading (Friedman v. advance its own speech freely speak ones mind
Rogers, 440 US 1, 1979) without requiring is a highly valued
2. Should not propose an illegal transaction. viewpoint neutrality freedom in a republican
(Pittsburgh Press Co. v Human Relations when the government and democratic society.
Commissions, 413 US 376, 1973) itself is the speaker. (Ashcroft v. Free Speech
(doctrine was implied Coalition, 535 U.S. 234
NOTE: However, even truthful and lawful commercial in Wooley v. Maynard in (2002))
speech maybe regulated if (1) government has a substantial 1971)
interest to protect; (2) the regulation directly advances that
interest; and (3) it is not more than extensive than is
necessary to protect that interest. (Central Hudson Gas & HECKLERS VETO
Electric Corp v. Public Service Commission of NY, 447 US 557
(1980)) Hecklers Veto
Q: EO 51 (Milk Code) was issued by President Chris Occurs when an acting party's right to freedom of
Bautista on October 28, 1986 by virtue of the speech is curtailed or restricted by the government in
legislative powers granted to the President under the order to prevent a reacting party's behavior. The term
Freedom Constitution. On May 15, 2006, the DOH Hecklers Veto was coined by University of Chicago
issued Revised Implementing Rules and Regulations professor of law Harry Kalven.
(RIRR) which was to take effect on July 7, 2006. The
Association of Healthcare Workers claimed that the It may be in the guise of a permit requirement in the
Milk Code only regulates and does not impose holding of rallies, parades, or demonstrations
unreasonable requirements for advertising and conditioned on the payment of a fee computed on the
promotion while RIRR imposes an absolute ban on basis of the cost needed to keep order in view of the
such activities for breastmilk substitutes intended for expected opposition by persons holding contrary
infants from 0-24 months old or beyond, and forbids views. (Gorospe, 2006, citing Forsyth County v.
the use of health and nutritional claims. Were the Nationalist Movement, 315 U.S. 568, 1942)
labeling requirements and advertising regulations
under the RIRR valid?

A: Yes. Sec. 13 on total effect and Sec. 26 of Rule VII


of the RIRR contain some labeling requirements,
specifically: a) that there be a statement that there is

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FREEDOM OF ASSEMBLY AND PETITION Tests applicable to the exercise of the right to
assembly
Right of the people to assemble and petition the
government for redress of grievances 1. Purpose Test Looks into the purpose of the
assembly regardless of its backers. (De Jonge v.
The right to assembly is not subject to prior restraint. Oregon, 299 US 353, 365, 1937)
It may not be conditioned upon the prior issuance of a 2. Auspices Test Looks into the
permit or authorization from government authorities. backers/supporters.
The right, however, must be exercised in such a way as
will not prejudice the public welfare. NOTE: The ruling in Evangelista v. Earnshaw (G.R. No. 36453,
Sept. 28, 1932) has not yet been abrogated where the Mayor
Permit system revoked permits he already granted because the group, the
Communist Party of the Philippines, was found by the fiscal
to be an illegal association. When the intention and effect of
Before one can use a public place, one must first the act is seditious, the constitutional guaranties of freedom
obtain prior permit from the proper authorities. Such of speech and press and of assembly and petition must yield
is valid if: to punitive measures designed to maintain the prestige of
1. It is concerned only with the time, place, and constituted authority, the supremacy of the Constitution and
manner of assembly; and the laws, and the existence of the State.
2. It does not vest on the licensing authority
unfettered discretion in choosing the groups Q: Exec. Sec. Pat Alampay issued a policy via press
which could use the public place and discriminate release. The policy pertains to the strict
others. implementation of BP 880 also known as the Public
Assembly Act of 1985. It provides for the strict
NOTE: Permits are not required for designated freedom enforcement of no permit, no rally policy, and
parks. arrest of all persons violating the laws of the land,
and dispersal of unlawful mass actions. Is BP Blg. 880
Rules on assembly in public places unconstitutional on the ground that it violates the
constitutionality guaranteed right to peaceful
1. The applicant should inform the licensing assembly?
authority of the date, the public place where and
the time when the assembly will take place. A: No. BP 880 is constitutional. It does not curtail or
2. The application should be filed ahead of time to unduly restrict the freedom. It merely regulates the
enable the public official concerned to apprise use of public places as to the time, place and manner
whether there are valid objections to the grant of of assemblies. Far from being insidious, maximum
the permit or to its grant, but in another public tolerance is for the benefit of the rallyists, not the
place. The grant or refusal should be based on the government. The delegation to the mayors of the
application of the Clear and Present Danger Test. power to issue rally permits is valid because it is
3. If the public authority is of the view that there is subject to the constitutionally sound clear and
an imminent and grave danger of a substantive present danger standard. (Bayan Karapatan v.
evil, the applicants must be heard on the matter. Eduardo Ermita, et al., G.R. No. 169838, April 25, 2006)
4. The decision of the public authority, whether
favorable or adverse, must be transmitted to the Q: Is the policy of Calibrated Preemptive Response
applicants at the earliest opportunity so that they insofar as it would purport to differ from or be in lieu
may, if they so desire, have recourse to the proper of maximum tolerance, void on its face?
judicial authority. (Reyes v. Bagatsing, G.R. No. L-
65366, Nov. 9, 1983) A: Yes. Calibrated Preemptive Response Policy is
illegal. In view of the maximum tolerance policy
Assembly in private properties mandated by BP Blg. 880, CPR serves no valid purpose
if it means the same thing as maximum tolerance, and
Only the consent of the owner of the property or is illegal if it means something else. Accordingly, what
person entitled to possession thereof is required. is to be followed is and should be that mandated by
law itself, namely, maximum tolerance, which
specifically means the highest degree of restraint that
the military, police and other peace keeping
authorities shall observe during a public assembly or in

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dispersal of the same. (Bayan Karapatan v. Eduardo inviolability of the human conscience which is also
Ermita, et al., G.R. No. 169838, April 25, 2006) protected by the free exercise clause. As a social value,
protected by the non-establishment clause, it means
Q. Mayor Reuben Soriano modified the application that the growth of a religious sect as a social force
for permit to rally of IBP outright without informing must come from the voluntary support of its members
the applicants. Is it valid? because of the belief that both spiritual and secular
society will benefit if religions are allowed to compete
A: No. In modifying the permit outright, respondent on their own intrinsic merit without benefit of official
gravely abused his discretion when he did not patronage. Such voluntarism cannot be achieved
immediately inform the IBP who should have been unless the political process is insulated from religion
heard first on the matter of perceived imminent and and unless religion is insulated from politics. Non
grave danger of a substantive evil that may warrant establishment assures such insulation and thereby
the changing of the venue. Respondent failed to prevents interfaith dissention. (Bernas, S.J., 2011)
indicate how he had arrived at modifying the terms of
the permit against the standard of clear and present ACTS PERMITTED AND
danger which is an indispensable condition to such NOT PERMITTED BY THE CLAUSE
modification. (IBP v. Atienza GR No. 175241 February
24, 2010) The non-establishment clause states that the State
cannot
FREEDOM OF RELIGION
1. Set up a church
Religion 2. Pass laws which aid one or all religions or prefer
one over another
A profession of faith to an active power that binds and 3. Influence a person to go to or stay away from
elevates man to his creator. (Aglipay v. Ruiz, GR. No. L- church against his will
45459, Mar. 13, 1937) 4. Force him to profess a belief or disbelief in any
religion
Guarantees contained in Sec. 5 Art. III of the 1987
Constitution Constitutional provisions which express the non-
establishment clause
1. Non-establishment clause;
2. Free exercise clause, or the freedom of religious 1. Art. VI, Sec. 29 No public money/property given to
profession and worship. religious sect or minister/religious personnel
(except for those assigned to army, penal
NON-ESTABLISHMENT CLAUSE institution, government orphanage and
leprosarium)
Non-establishment clause 2. Art. II, Sec. 6 Separation of church and state is
inviolable
Art. III, Sec. 5 No law shall be made respecting an 3. Art. IX(C), Sec. 2 (5) No religious sects can be
establishment of religion, or prohibiting the free registered as political parties
exercise thereof.
Constitutionally created exceptions to the non-
NOTE: The non- establishment clause means that the state establishment clause
should adopt a position of neutrality when it comes to
religious matters. (Political Law Reviewer, Suarez ,p. 252 1. Art. 6, Sec.29 (prohibition on appropriation of
citing CJ Fernando, 2011) public money or property for the use, benefit or
support of any religion)
Purpose of the non-establishment clause 2. Art. 6, Sec. 28 (3) (exemption from taxation of
properties actually, directly and exclusively used
There is no unanimous interpretation of this clause as for religious purposes
a political principle, but there seems to be a 3. Art. 14, Sect. 3 (3) (optional religious instruction in
substantial agreement that this protects voluntarism public elementary and high schools)
and insulation of the political process from interfaith 4. Art. 14, Sec. 4 (2) (citizenship requirement of
dissension. ownership of educational institutions, except
those established by religious groups and mission
Voluntarism as a value is both personal and social. As boards)
a personal value, it is nothing more than the

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5. Art. 6, Sec. 29 (2) (appropriation allowed where thus she should not be allowed to remain employed
ecclesiastic is employed in armed forces, in a therein as it might appear that the court condones
penal institution, or in a government-owned her act. Angel admitted that she has been living with
orphanage or leprosarium) CA without the benefit of marriage for twenty years
6. Tax exemption on property actually, directly and and that they have a son. But as a member of the
exclusively used for religious purposes; religious sect known as the Jehovahs Witnesses and
7. Religious instruction in public schools: the Watch Tower and Bible Tract Society, their
a. At the option of parents/guardians expressed conjugal arrangement is in conformity with their
in writing; religious beliefs. In fact, after ten years of living
b. Within the regular class hours by instructors together, she executed on July 28, 1991 a
designated or approved by religious Declaration of Pledging Faithfulness. Should Angels
authorities of the religion to which the right to religious freedom carve out an exception
children belong; from the prevailing jurisprudence on illicit relations
c. Without additional costs to the government; for which government employees are held
administratively liable?
Exceptions to the non-establishment clause as held
by jurisprudence A: Yes. Angels conjugal arrangement cannot be
penalized as she has made out a case for exemption
1. Government sponsorship of town fiestas, some from the law based on her fundamental right to
purely religious traditions have now been freedom of religion. The Court recognizes that State
considered as having acquired secular character interests must be upheld in order that freedoms
(Garces v. Estenzo, G.R. No. L-53487, May 25, including religious freedom may be enjoyed. In the
1981); and area of religious exercise as a preferred freedom,
2. Postage stamps depicting Philippines as the venue however, man stands accountable to an authority
of a significant religious event benefit to the higher than the State, and so the State interest sought
religious sect involved was merely incidental as to be upheld must be so compelling that its violation
the promotion of Philippines as a tourist will erode the very fabric of the State that will also
destination was the primary objective. (Aglipay v. protect the freedom. In the absence of a showing that
Ruiz, G.R. No. L-45459 March 13, 1937) such State interest exists, man must be allowed to
subscribe to the Infinite. Furthermore, our
Lemon test Constitution adheres to the benevolent
neutrality approach that gives room for
A test to determine whether an act of the government accommodation of religious exercises as required by
violates the non-establishment clause. the Free Exercise Clause. The benevolent neutrality
doctrine allows accommodation of morality based on
To pass the Lemon test, a government act or policy religion, provided it does not offend compelling state
must: interests. (Estrada v. Escritor, A.M. No. P-02-1651,
1. Have a secular purpose; June 22, 2006)
2. Not promote or favor any set of religious beliefs
or religion generally; and Q: Ang Ladlad is an organization composed of men
3. Not get the government too closely involved and women who identify themselves as lesbians,
(entangled) with religion. gays, bisexuals, or transgendered individuals (LGBTs).
Ang Ladlad applied for registration with the
FREE-EXERCISE CLAUSE COMELEC to participate in the party-list elections.
The COMELEC dismissed the petition on moral
Aspects of freedom of religious profession and grounds, stating that definition of sexual orientation
worship of the LGBT sector makes it crystal clear that
petitioner tolerates immorality which offends
1. Right to believe, which is absolute; and religious beliefs based on the Bible and the Koran.
2. Right to act on ones belief, which is subject to Ang Ladlad argued that the denial of registration,
regulation. insofar as it justified the exclusion by using religious
dogma, violated the constitutional guarantees
Q: Angel, a court interpreter, is living with a man not against the establishment of religion. Is this
her husband. Ben filed an administrative case against argument correct?
Angel as he believes that she is committing an
immoral act that tarnishes the image of the court,

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A: Yes. It was grave violation of the non-establishment nature as to create a clear and present danger that
clause for the COMELEC to utilize the Bible and the they will bring about the substantive evils that
Koran to justify the exclusion of Ang Ladlad. Our Congress has a right to prevent. (Schenck v. United
Constitution provides in Art. III, Sec. 5 that no law States, 249 U.S. 47, 1919)
shall be made respecting an establishment of religion,
or prohibiting the free exercise thereof. At bottom, NOTE: The test can be applied with regard to the Freedom
of Religion when what is involved is religious speech as this
what our non-establishment clause calls for is
is often used in cases of freedom of expression.
government neutrality in religious matters. Clearly,
governmental reliance on religious justification is
COMPELLING STATE INTEREST TEST
inconsistent with this policy of neutrality (Ang Ladlad
LGBT Party v. COMELEC, G.R. No. 190582, Apr. 8,
Compelling State Interest test
2010).
Used to determine if the interests of the State are
The government must act for secular purposes and in
compelling enough to justify infringement of religious
ways that have primarily secular effects. That is, the
freedom. It involves a three-step process:
government proscribes this conduct because it is
1. Has the statute or government action created a
"detrimental (or dangerous) to those conditions upon
burden on the free exercise of religion? Courts
which depend the existence and progress of human
often look into the sincerity of the religious belief,
society" and not because the conduct is proscribed by
but without inquiring into the truth of the belief
the beliefs of one religion or the other. (Estrada v.
since the free exercise clause prohibits inquiring
Escritor, A.M. No. P-02-1651, June 22, 2006)
about its truth.
2. Is there a sufficiently compelling state interest to
Q: The petitioners, led by Mylene, members of the
justify this infringement of religious liberty? In
Philippine Independent church, clamored for the
this step, the government has to establish that its
transfer of Fr. B to another parish but Bishop Kevin
purposes are legitimate for the State and that
denied their request. The problem was compounded
they are compelling.
when Bishop Kevin told Mylene not to push through
3. Has the State in achieving its legitimate purposes
with his plan to organize an open mass to be
used the least intrusive means possible so that the
celebrated by Fr. Garry during the town fiesta of
free exercise is not infringed any more than
Socorro. Bishop Kevin failed to stop Mylene from
necessary to achieve the legitimate goal of the
proceeding with her plan. Mylene and her
State? The analysis requires the State to show
sympathizers proceeded with their plan.
that the means in which it is achieving its
Subsequently, Bishop Kevin declared petitioners
legitimate State objective is the least intrusive
expelled/excommunicated from the Philippine
means, or it has chosen a way to achieve its
Independent Church. Petitioners filed a complaint for
legitimate State end that imposes as little as
damages with preliminary Injunction against Bishop
possible intrusion on religious beliefs.
Kevin. Is it within the jurisdiction of the courts to hear
the case involving the expulsion/excommunication of
NOTE: The Compelling State Interest test is used in cases
members of a religious institution? involving purely conduct based on religious belief.

A: No. The church and the state are separate and Q: Shery, Julia, Paula, Joanne, Lisette and Angela
distinct from each other. Said matter involving the were minor school children and member of the sect,
expulsion/excommunication of members of the Jehovahs Witnesses. They were expelled from their
Philippine Independent Church should be left to the classes by various public school authorities for
discretion of the officials of said religious institution in refusing to salute the flag, sing the national anthem
line with the doctrine that the court should not and recite the Panatang Makabayan required by RA
interfere on doctrinal and disciplinary differences. 1265. According to them, the basic assumption in
(Dominador Taruc, et al. v. Bishop Perfirio Dela Cruz, their universal refusal to salute the flags of the
GR. No. 044801, Mar. 10, 2005) countries in which they are found is that such a salute
constitutes an act of religious devotion forbidden by
TESTS God's law and that their freedom of religion is grossly
violated. On the other hand, the public authorities
CLEAR AND PRESENT DANGER TEST claimed that the freedom of religious belief
guaranteed by the Constitution does not mean
The question in every case is whether the words used exception from non-discriminatory laws like the
are used in such circumstances and are of such a saluting of flag and the singing of the national

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anthem. To allow otherwise would


disrupt school discipline and demoralize the A: No. The United States Supreme Court held that
teachings of civic consciousness and duties of there is no dispute that Alis professed beliefs were
citizenship. Is the expulsion justified? founded on basic tenets of the Muslim religion, as he
understood them, and derived in substantial part
A: No. Religious freedom is a fundamental right of from his devotion to Allah as the Supreme Being.
highest priority. The two- fold aspect of right to Thus, his claim unquestionably was within the
religious worship is: 1.) Freedom to believe which is an `religious training and belief' clause of the exemption
absolute act within the realm of thought. 2.) Freedom provision." (Clay v. United States, 403 U.S.698 (1971)
to act on ones belief regulated and translated to
external acts. The only limitation to religious freedom Q: Sec. 23, par. 3 of RH Law mandates medical
is the existence of grave and present danger to public practitioners who are conscientious objectors to
safety, morals, health and interests where State has refer those patients who are seeking information
right to prevent. The expulsion of the petitioners from regarding reproductive health programs and services
the school is not justified. to another medical practitioner. Is this provision
constitutional?
In the case at bar, the students expelled are only
standing quietly during ceremonies. By observing the A: No. The Court is of the view that the obligation to
ceremonies quietly, it doesnt present any danger so refer imposed by the RH Law violates the religious
evil and imminent to justify their expulsion. The belief and conviction of a conscientious objector. Once
expulsion of the students by reason of their religious the medical practitioner, against his will, refers a
beliefs is also a violation of a citizens right to free patient seeking information on modem reproductive
education. The non-observance of the flag ceremony health products, services, procedures and methods,
does not totally constitute ignorance of patriotism and his conscience is immediately burdened as he has
civic consciousness. Love for country and admiration been compelled to perform an act against his beliefs.
for national heroes, civic consciousness and form of As Commissioner Joaquin A. Bernas (Commissioner
government are part of the school curricula. Bernas) has written, "at the basis of the free exercise
Therefore, expulsion due to religious beliefs is clause is the respect for the inviolability of the human.
unjustified. (Ebralinag v. Division Superintedent of Accordingly, a conscientious objector should be
Cebu, G.R.No. 95770, March 1, 1993) exempt from compliance with the mandates of the RH
Law. If he would be compelled to act contrary to his
CONSCIENTIOUS OBJECTOR TEST religious belief and conviction, it would be violative of
"the principle of non-coercion" enshrined in the
Conscientious objector constitutional right to free exercise of religion. The
same holds true with respect to non-maternity
An "individual who has claimed the right to refuse to specialty hospitals and hospitals owned and operated
perform military service on the grounds of freedom of by a religious group and health care service providers.
thought, conscience, and/or religion. (International (Imbong v. Ochoa G.R. No. 204819 April 8, 2014)
Covenant on Civil and Political Rights, Art. 18)
LIBERTY OF ABODE AND FREEDOM OF
Requisites for one to be considered a conscientious MOVEMENT
objector
Rights guaranteed under Sec. 6 of the Bill of Rights
1. The person is opposed to war in any form
2. He must show that this opposition is based upon 1. Freedom to choose and change ones place of
religious training and belief abode; and
3. And he must show that this objection is sincere. 2. Freedom to travel within the country and outside.
(Clay v. United States, 403 U.S.698 (1971)
Liberty of abode
Q: Boxer Muhammad Jerald Tristan Ali, a Muslim,
refused to report for induction into the United States Right of a person to have his home or to maintain or
military forces during the Vietnam War. He applied change his home, dwelling, residence or habitation in
to be exempted based on the teachings of Islam. His whatever place he has chosen, within the limits
local draft board had rejected his application for prescribed by law.
conscientious objector classification. Is the denial
correct?

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Q: The military commander in charge of the Qatar due to growing incidence of physical and
operation against rebel groups directed the personal abuses to female overseas workers. PASEI
inhabitants of the island which would be the target of contends that it impairs the constitutional right to
attack by government forces to evacuate the area travel. Is the contention correct?
and offered the residents temporary military hamlet.
Can the military commander forced the residents to A: No. The deployment ban does not impair the right
transfer their places of abode without a court order? to travel. The right to travel is subject, among other
things, to the requirements of "public safety," "as may
A: No. The military commander cannot do so without be provided by law." Department Order No. 1 is a valid
a court order. Under Sec. 6, Art. III of the Constitution, implementation of the Labor Code, in particular, its
a lawful order of the court is required before the basic policy to "afford protection to labor," pursuant
liberty of abode and of changing the same can be to the Department of Labor's rule-making authority
impaired. vested in it by the Labor Code. (Philippine Association
of Service Exporters, Inc. v. Drilon, G.R. No. 81958, June
LIMITATIONS 30, 1988)

The liberty of abode may be impaired only: WATCH-LIST AND HOLD DEPARTURE ORDERS
a. Upon lawful order of the court and;
b. Within the limits prescribed by law. Watch-list order (WLO)

Examples: Order issued to prevent an individual from travelling.


1. Persons in the danger zone areas (e.g. Mt. It may be issued by the Secretary of Justice motu
Pinatubo, Taal Volcano) may be relocated to safer proprio or upon request, under any of the following
areas and evacuation centers in case of danger circumstances:
and emergency to save lives and property. 1. Against the accused, irrespective of nationality, in
2. Insane persons who roam around in Roxas criminal cases pending trial before the RTCs or
Boulevard may be committed by the government before courts below the RTCs.
to the National Mental Hospital for appropriate 2. Against the respondent, irrespective of
treatment and medical attention. nationality, in criminal cases pending preliminary
investigation, petition for review, or motion for
RIGHT TO TRAVEL reconsideration before the DOJ or any of its
provincial or city prosecution offices.
Right to travel 3. The Secretary of Justice may likewise issue a WLO
against any person, either on his own, or upon the
Right of a person to go where he pleases without request of any government agency, including
interference from anyone. commissions, task forces or similar entities
created by the Office of the President, pursuant to
The limitations on the right to travel the "Anti-Trafficking in Persons Act of 2003" (R.A.
No. 9208) and/or in connection with any
a. Interest of national security; investigation being conducted by it, or in the
b. Public safety; interest of national security, public safety or
c. Public health. public health. (Sec. 2, DOJ Circ. 41, s.2010)

NOTE: With respect to the right to travel, it is settled that NOTE: WLO is available for (a) criminal cases pending before
only a court may issue a hold departure order against an lower courts, or even for (b) cases still under preliminary
individual addressed to the Bureau of Immigration and investigation. A WLO is good for sixty (60) days. (Sec. 4, DOJ
Deportation. However, administrative authorities, such as Circ. 41, and s.2010)
passport-officers, may likewise curtail such right in the
interest of national security, public safety, or public health, Hold Departure Order (HDO)
as may be provided by law.
An order issued to prevent an individual from
Q: PASEI is engaged in the recruitment of Filipino travelling. It may be issued by the Secretary of Justice
workers, male and female, for overseas employment. motu proprio or upon request, under any of the
It challenged the validity of Department Order 1 of following circumstances:
the Department of Labor and Employment (DOLE)
because it suspends the deployment of female
domestic and household workers in Iraq, Jordan and

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BILL OF RIGHTS

1. Against the accused, irrespective of nationality, in The Hold Departure Order can be lifted or cancelled
criminal cases falling within the jurisdiction of as follows:
courts below the Regional Trial Courts (RTCs):
1. When the validity period of the HDO has already
i. If the case against the accused is pending expired;
trial, the application under oath of an 2. When the accused subject of the HDO has been
interested party must be supported by allowed to leave the country during the pendency
(a) a certified true copy of the complaint of the case, or has been acquitted of the charge,
or information; and (b) a Certification or the case in which the warrant/order of arrest
from the Clerk of Court concerned that was issued has been dismissed or the
criminal case is still pending. warrant/order of arrest has been recalled;
3. When the civil or labor case or case before an
ii. If the accused has jumped bail or has administrative agency of the government wherein
become a fugitive from justice, the the presence of the alien subject of the HDO/WLO
application under oath of an interested has been dismissed by the court or by appropriate
party must be supported by (a) a certified government agency, or the alien has been
true copy of the complaint or discharged as a witness therein, or the alien has
information; (b) a certified true copy of been allowed to leave the country.
the warrant/order of arrest; and (c) a
Certification from the Clerk of Court The Watch List Order may be lifted or cancelled under
concerned that the warrant/order of any of the following grounds:
arrest was returned unserved by the
peace officer to whom the same was 1. When the validity period of the WLO has already
delivered for service. expired;
2. When the accused subject of the WLO has been
2. Against the alien whose presence is required allowed by the court to leave the country during
either as a defendant, respondent, or witness in a the pendency of the case, or has been acquitted
civil or labor case pending litigation, or any case of the charge;
before a quasi-judicial or an administrative agency 3. When the preliminary investigation is terminated,
of the government. or when the petition for review, or motion for
reconsideration has been denied and/or
The application under oath of an interested party dismissed.
must be supported by (a) a certified true copy of
the subpoena or summons issued against the RETURN TO ONES COUNTRY
alien; and (b) a certified true copy complaint in
civil, labor or administrative case where the Q: Ferdinand Marcos, in his deathbed, has signified
presence of the alien is required. his desire to return to the Philippines to die. But
President Corazon Aquino barred the return of
3. The Secretary may likewise issue an HDO against Marcos and his family. The Marcoses invoke their
any person, either on his own, or upon the request right to return. Is the right to return a constitutionally
by the Head of a Department of the Government, protected right?
the head or a constitutional body or commission,
the Chief Justice of the Supreme Court for the A: No. The right to return to ones country is not
Judiciary, the Senate President or the House among the rights specifically guaranteed in the Bill of
Speaker for the Legislature, when the adverse Rights, which treats only of the liberty of abode and
party is the Government or any of its agencies or the right to travel. Nevertheless, the right to return
instrumentalities, or in the interest of national may be considered as a generally accepted principle of
security, public safety or public health. (Sec. 1, International law, and under the Constitution, is part
DOJ Circ. 41, s.2010) of the law of the land. However, it is distinct and
separate from the right to travel and enjoys a different
NOTE: A Hold Departure Order can be issued against (a) an protection under the Intl. Covenant of Civil and
accused in criminal cases under the jurisdiction of the Political Rights. (Marcos v. Manglapus, G.R. No. 88211,
Regional Trial Courts and even (b) against aliens whose Sept. 15, 1989 & Oct. 27, 1989)
presence is required either as respondents or as witnesses.

A HDO is valid for five (5) years from issuance.

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RIGHT TO INFORMATION valid publication intended to make full disclosure and


give proper notice to the people.
This right covers information on matters of public
concern. It pertains to access to official records, Publication of regulations
documents and papers pertaining to official acts,
transactions or decisions, as well as to government Publication is necessary to apprise the public of the
research data used as basis for policy development. contents of penal regulations and make the said
penalties binding on the persons affected thereby.
The SC has held in Chavez v. PEA and AMARI (G.R. No. (Pesigan v. Angeles G.R. No. L-6427, April 30, 1984)
133250, July 9, 2002) that the right to information
contemplates inclusion of negotiations leading to the ACCESS TO COURT RECORDS
consummation of the transaction.
Q: During the pendency of the intestate proceedings,
NOTE: The right only affords access to records, documents Ojay, a creditor of the deceased, filed a motion with
and papers, which means the opportunity to inspect and a prayer that an order be issued requiring the Branch
copy them at his expense. The exercise is also subject to
Clerk of Court to furnish him with copies of all
reasonable regulations to protect the integrity of public
records and to minimize disruption of government processes and orders and to require the
operations. administratrix to serve him copies of all pleadings in
the proceedings. The judge denied the motion
LIMITATIONS because the law does not give a blanket authority to
any person to have access to official records and
GR: The access must be for a lawful purpose and is documents and papers pertaining to official acts. The
subject to reasonable conditions by the custodian of judge said that his interest is more of personal than
the records. of public concern. Is the judge correct?

XPNs: A: No. The right to information on matters of public


The right does not extend to the following: concern is a constitutional right. However, such is not
1. Information affecting national security, military absolute. Under the Constitution, access is subject to
and diplomatic secrets. It also includes inter- limitations as may be provided by law. Therefore, a
government exchanges prior to consultation of law may exempt certain types of information from
treaties and executive agreement as may public scrutiny such as national security. The privilege
reasonably protect the national interest against disclosure is recognized with respect to state
2. Matters relating to investigation, apprehension, secrets bearing on the military, diplomatic and similar
and detention of criminals which the court may matters. Since intestate proceedings do not contain
not inquire into prior to arrest, prosecution and any military or diplomatic secrets which will be
detention disclosed by its production, it is an error on the part of
3. Trade and industrial secrets and other banking the judge to deny Ojays motion. (Hidalgo v. Reyes,
transactions as protected by the Intellectual AM No. RTJ-05-1910, Apr. 15, 2005)
Property Code and the Secrecy of Bank Deposits
Act RIGHT TO INFORMATION RELATIVE TO:
4. Other confidential information falling under the
scope of the Ethical Safety Act concerning GOVERNMENT CONTRACT NEGOTIATIONS
classified information
Q: PSALM commenced the privatization of Angat
PUBLICATION OF LAWS AND REGULATIONS Hydro-Electric Power Plant. Korea Water Resources
Corporation won in the public bidding. IDEALS then
Publication of Laws requested for detailed information regarding the
winning bidder, such as company profile, contact
There is a need for publication of laws to reinforce the person or responsible officer, office address and
right to information. In Taada v. Tuvera, the Court Philippine registration but PSALM refused to give
said that Laws must come out in the open in the clear such information. May IDEALS compel PSALM to
light of the sun instead of skulking in the shadows with furnish them those pieces of information invoking
their dark, deep secrets. Mysterious pronouncements their right to information?
and rumored rules cannot be recognized as binding
unless their existence and contents are confirmed by a A: Yes. The Court distinguished the duty to disclose
information from the duty to permit access to

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information on matters of public concern under Sec. 7, dictate the terms and conditions of their employment.
Art. III of the Constitution. Unlike the disclosure of The same is fixed by law and circulars and thus not
information which is mandatory under the subject to any collective bargaining agreement.
Constitution, the other aspect of the peoples right to
know requires a demand or request for one to gain NOTE: Pursuant to Sec. 4, Rule III of the Rules and
access to documents and paper of the particular Regulations to Govern the Exercise of the Right of
agency. Moreover, the duty to disclose covers only Government Employees to Self-Organization, the terms and
conditions of employment in the Government, including any
transactions involving public interest, while the duty to
of its instrumentalities, political subdivision and government
allow access has a broader scope of information which
owned and controlled corporations with original charters,
embraces not only transactions involving public are governed by law and employees therein shall not strike
interest, but any matter contained in official for the purpose of securing changes thereof. (SSS Employees
communications and public documents of the Association v. CA, GR. No. 85279, July 28, 1989) The only
government agency. Such relief must be granted to the available remedy for them is to lobby for better terms of
party requesting access to official records, documents employment with Congress. The right to unionize is an
and papers relating to official acts, transactions, and economic and labor right while the right to association in
decisions that are relevant to a government contract. general is a civil-political right.
(IDEALs v. PSALM, G.R. No. 192088, Oct. 9, 2012)
CONTRACT CLAUSE
DIPLOMATIC NEGOTIATIONS
CONTEMPORARY APPLICATION OF THE
Q: Petitioners request that they be given a copy of the CONTRACT CLAUSE
full text of the JPEPA as well as the offers and
negotiations between the Philippines and Japan. The law impairs the obligation of contracts if
Can these documents be disclosed as matters of
public concern? 1. It changes the terms and conditions of a legal
contract either as to the time or mode of
A: There is a distinction between the text of the treaty performance
and the offers and negotiations. They may compel the 2. It imposes new conditions or dispenses with those
government to disclose the text of the treaty but not expressed if it authorizes for its satisfaction
the offers between RP and Japan, because these are something different from that provided in its
negotiations of executive departments. Diplomatic terms
Communication negotiation is a privileged
NOTE: Mere technical change which does not change the
information. (Akbayan v. Aquino, G.R. No. 170516, July
substance of the contract, and which still leaves an
16, 2008) efficacious remedy for enforcement does NOT impair the
obligation of contracts. A valid exercise of police power is
RIGHT OF ASSOCIATION superior to obligation of contracts.

Freedom of association Non-impairment clause cannot be invoked if there is


neither public interest involved nor a law that supports
The right to form associations shall not be impaired the claim. It can only be invoked if it is against the
without due process of law. It is therefore an aspect of government or when the government intervenes in
the general right of liberty. More specifically, it is an contract between the parties. (Pacific Wide Realty and
aspect of freedom of contract; and in so far as Development Corp. v Puerto Azul Land, Inc., G.R. No.
associations may have for their object the 180893, Nov 25, 2009)
advancement of beliefs and ideas, freedom of
association is an aspect of freedom of expression and Impairment of contracts
of belief. The guarantee also covers the right not to
join an association. Any statute which introduces a change into the
express terms of the contract, or its legal construction,
NOTE: Freedom of association includes the freedom not to or its validity, or its discharge, or the remedy for its
associate, or, if one is already a member, to disaffiliate from enforcement, impairs the contract. (Blacks Law
the association. Dictionary)

The right to strike is not included in the right to form NOTE: Franchises, privileges, licenses, etc. do not come
unions or freedom of assembly by government within the context of the provision, since these things are
employees. Their employment is governed by law. It is subject to amendment, alteration or repeal by Congress
the Congress and administrative agencies which when the common good so requires.

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Applicability of the provision embarrassment. Even granting that the police power
of the State may be exercised to impair the vested
This constitutional provision is applicable only if the rights of privately-owned airlines, the deprivation of
obligation of contract is impaired by legislative act property still requires due process of law. (Kuwait
(statute, ordinance, etc.). The act need not be by a Airline Corporation v. PAL, G.R. No. 156087, May 8,
legislative office; but it should be legislative in nature. 2009)
Furthermore, the impairment must be substantial
(Philippine Rural Electric Cooperatives Assoc. v. DILG LEGAL ASSISTANCE AND FREE ACCESS TO COURTS
Secretary, G.R. 143076, June 10, 2003).
Right to free access to courts
Mutuality of contracts
This right is the basis for Sec. 17, Rule 5 of the New
GR: Valid contracts should be respected by the Rules of Court allowing litigation in forma pauperis.
legislature and not tampered with by subsequent laws Those protected include low paid employees,
that will change the intention of the parties or modify domestic servants and laborers. (Cabangis v. Almeda
their rights and obligations. The will of the parties to a Lopez, G.R. No. 47685, Sept. 20, 1940)
contract must prevail. A later law which enlarges,
abridges, or in any manner changes the intent of the Q: The Municipal Trial Court denied Dexters petition
parties to the contract necessarily impairs the contract to litigate in forma pauperis on the ground that
itself and cannot be given retroactive effect without Dexter has regular employment and sources of
violating the constitutional prohibition against income thus cannot be classified as poor or pauper. Is
impairment of contracts. (Sangalang v. IAC, G.R. No. the courts order justified?
71169, Dec. 22, 1988)
A: No. They need not be persons so poor that they
XPN: Enactment of laws pursuant to the exercise of must be supported at public expense. It suffices that
police power because public welfare prevails over the plaintiff is indigent. And the difference between
private rights. It is deemed embedded in every paupers and indigent persons is that the latter are
contract a reservation of the States exercise of police persons who have no property or sources of income
power, eminent domain and taxation, so long as it sufficient for their support aside from their own labor
deals with a matter affecting the public welfare. (PNB though self-supporting when able to work and in
v Remigio, G.R. No 78508, Mar. 21, 1994) employment. (Acar v. Rosal, G.R. No. L-21707, March
18, 1967)
Q: While still being a GOCC, PAL entered into a
Commercial Agreement and Joint Services Q: The Good Shepherd Foundation, Inc. seeks to be
Agreement with Kuwait Airways. The Commercial exempted from paying legal fees for its indigent and
Agreement established a joint commercial underprivileged clients couching their claim on the
arrangement whereby PAL and Kuwait Airways were free access clause embodied in Sec. 11, Art. III of the
to jointly operate the Manila-Kuwait (and vice versa) Constitution. Is the contention tenable?
route, utilizing the planes and services of Kuwait
Airways. Subsequently, PAL was privatized. After 14 A: No. The Court cannot grant exemption of payment
years, delegations from the Philippine of legal fees to foundations/institutions working for
government and Kuwait government met in Kuwait. indigent and underprivileged people. According to Sec.
The talks culminated in a Confidential Memorandum 19, Rule 141, Rules of Court, only
of Understanding (CMU). Can the execution of the a natural party litigant may be regarded as an indigent
CMU between Kuwait and Philippine Government litigant that can be exempted from payment of legal
automatically terminate the Commercial fees. Exemption cannot be extended to the
Agreement? foundations even if they are working for the indigent
and underprivileged people. (Re: Query of Mr. Roger C.
A: No. An act of the Phil. Govt negating the Prioreschi Re exemption from legal and filing fees of
commercial agreement between the two airlines the Good Shepherd Foundation, Inc., A. M. No. 09-6-9-
would infringe the vested rights of a private individual. SC, August 19, 2009)
Since PAL was already under private ownership at the
time the CMU was entered into, the Court cannot
presume that any and all commitments made by the
Phil. Govt are unilaterally binding on the carrier even
if this comes at the expense of diplomatic

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RIGHTS OF SUSPECTS would then direct interrogatory questions which tend


to elicit incriminating statements.
Miranda rights
NOTE: Sec. 2 of R.A. 7438 provides that custodial
These are the rights to which a person under custodial investigation shall include the practice of issuing an
investigation is entitled. These rights are: invitation to a person who is under investigation in
connection with an offense he is suspected to have
1. Right to remain silent
committed
2. Right to competent and independent counsel,
preferably of his own choice Rights during custodial investigation apply only against
3. Right to be reminded that if he cannot afford the testimonial compulsion and not when the body of the
services of counsel, he would be provided with accused is proposed to be examined (e.g. urine sample;
one photographs; measurements; garments; shoes) which is a
4. Right to be informed of his rights purely mechanical act.
5. Right against torture, force, violence, threat,
intimidation or any other means which vitiate the In the case of Galman v. Pamaran, it was held that the
constitutional safeguard is applied notwithstanding that the
free will
person is not yet arrested or under detention at the time.
6. Right against secret detention places, solitary, However, Fr. Bernas has qualified this statement by saying
incommunicado, or similar forms of detention that jurisprudence under the 1987 Constitution has
7. Right to have confessions or admissions obtained consistently held, following the stricter view, that the rights
in violation of these rights considered begin to be available only when the person is already in
inadmissible in evidence (Miranda v Arizona, 384 custody. (People v. Ting LanUy, G.R. No. 157399, Nov.17,
U.S. 436, 1966) 2005)

NOTE: Even if the person consents to answer questions Furthermore, in the case of People v. Reyes, GR No. 178300,
without the assistance of counsel, the moment he asks for a Mar. 17, 2009, the court held that: The mantle of protection
lawyer at any point in the investigation, the interrogation afforded by the above-quoted provision covers the period
must cease until an attorney is present. from the time a person is taken into custody for the
investigation of his possible participation in the commission
The Miranda Rights are available to avoid involuntary of a crime of from the time he was singled out as a suspect
extrajudicial confession. in the commission of the offense although not yet in custody.

The purpose of providing counsel to a person under Miranda rights is unavailable when
custodial investigation is to curb the police-state practice of
extracting a confession that leads appellant to make self- 1. During a police line-up, unless admissions or
incriminating statements. (People v. Rapeza, G.R. 169431, confessions are being elicited from the suspect
April 3, 2007) (Gamboa v. Cruz, G.R. No. L-56291, June 27, 1988)
2. During administrative investigations (Sebastian, Jr
Rights and limitations of a person in a preliminary v Garchitorena, G.R. No 114028)
investigation 3. Confessions made by an accused at the time he
voluntarily surrendered to the police or outside
1. He cannot cross-examine the context of a formal investigation; (People v
2. No right to counsel except when confession is Baloloy, G.R. No 140740, April 12, 2002) and
being obtained 4. Statements made to a private person (People v
3. He cannot file complaint or information without Tawat, G.R. No 62871, May 25, 1985)
authority 5. Forensic investigation is not tantamount to
4. Right to be present not absolute custodial investigation, therefore Miranda rights
5. No dismissal without approval is not applicable (People v. Tranca, 235 SCRA 455,
6. Right to discovery proceedings 1994)

AVAILABILITY REQUISITES FOR VALID WAIVER

Availability of Miranda rights Requisites for valid waiver

During custodial investigation or as soon as the 1. Made voluntarily, knowingly and intelligently
investigation ceases to be a general inquiry unto an 2. Waiver should be made in writing
unsolved crime and direction is aimed upon a 3. Made with the presence of counsel (People vs
particular suspect, as when the suspect who has been Galit, GR. No. L-51770, Mar. 20, 1985)
taken into police custody and to whom the police

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Q: Is a confession given to a mayor admissible in WAIVER


court?
Rights that may be waived
A: It depends. If such confession was given to the
mayor as a confidant and not as a law enforcement 1. Right to remain silent
officer, it is admissible, in which case, the 2. Right to counsel
uncounselled confession did not violate the suspects
constitutional rights. Otherwise, it is not. (People v NOTE:
Zuela, G.R. No 112177, Jan. 28, 2000) 1. However, the right of the accused to be informed of
these rights is not subject to waiver; and
NOTE: What the Constitution bars is the compulsory 2. The waiver must be in writing and made in the presence
disclosure of the incriminating facts or confessions. The of counsel.
rights under Sec. 12 are guarantees to preclude the slightest
use of coercion by the State, and not to prevent the suspect RIGHTS OF THE ACCUSED
from freely and voluntarily telling the truth. (People v.
Andan, G.R. No. 116437, Mar. 3, 1997) 1. Due process
2. Be presumed innocent
Admissibility as evidence of confessions given to 3. Be heard by himself and counsel
news reporters and/or media and videotaped 4. Be informed of the nature and cause of the
confessions accusation against him
5. A speedy, impartial and public trial
Confessions given in response to a question by news 6. Meet the witnesses face to face
reporters, not policemen, are admissible. Where the 7. Have compulsory process to secure the
suspect gave spontaneous answers to a televised attendance of witnesses and production of
interview by several press reporters, his answers are evidence on his behalf
deemed to be voluntary and are admissible. 8. Against double jeopardy
9. Bail
Videotaped confessions are admissible, where it is
shown that the accused unburdened his guilt willingly, CRIMINAL DUE PROCESS
openly and publicly in the presence of the newsmen.
Such confessions do not form part of confessions in Requisites of criminal due process
custodial investigations as it was not given to
policemen but to media in attempt to solicit sympathy 1. Accused is heard by a court of competent
and forgiveness from the public. jurisdiction
2. Accused is proceeded against under the orderly
However, due to inherent danger of these videotaped processes of law
confessions, they must be accepted with extreme 3. Accused is given notice and opportunity to be
caution. They should be presumed involuntary, as heard
there may be connivance between the police and 4. Judgment must be rendered after lawful hearing
media men. (People v. Endino, G.R. No. 133026, Feb.
20, 2001) NOTE: The right to appeal is neither a natural right nor part
of due process. It is a mere statutory right, but once given,
Fruit of the poisonous tree doctrine denial constitutes violation of due process.

Once the primary source (the tree) is shown to have RIGHT TO BAIL
been unlawfully obtained, any secondary or derivative
evidence (the fruit) derived from it is also inadmissible. Bail

NOTE: The rule is based on the principle that evidence The security given for the release of a person in
illegally obtained by the State should not be used to custody of law, furnished by him or a bondsman,
gain other evidence, because the originally illegally conditioned upon his appearance before any court as
obtained evidence taints all evidence subsequently required (Sec. 1, Rule 114, Rules of Court).
obtained.
GR: All persons shall, before conviction, be bailable.

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XPN: Those who are charged with offenses punishable c. A child in conflict with the law charged with
by reclusion perpetua, life imprisonment or death an offense punishable by death, reclusion
when the evidence of guilt is strong. perpetua or life imprisonment when evidence
of guilt is not strong (Sec. 28, A.M. No. 02-1-
NOTE: The prosecution cannot adduce evidence for the 18-SC).
denial of bail where it is a matter of right. However where
the grant of bail is discretionary, the prosecution may show Grounds for denial of bail
proof to deny the bail.
If the penalty imposed by the trial court is
Statutory provisions connected to right to bail imprisonment exceeding six (6) years, the accused
shall be denied bail, or his bail shall be cancelled upon
a. The suspension of the privilege of the writ of a showing by the prosecution, with notice to the
habeas corpus does not impair the right to bail. accused, of the following or other similar
b. Excessive bail is not required. circumstances:
a. That he is a recidivist, quasi-recidivist, or
Rationale behind the right to bail habitual delinquent, or has committed the
crime aggravated by the circumstance of
An accused is presumed innocent until his guilt is reiteration;
proven beyond reasonable doubt by final judgment. b. That he has previously escaped from legal
The right to bail gives the accused not only an confinement, evaded sentence, or violated
opportunity to obtain provisional liberty but also the the conditions of his bail without valid
chance to prepare for trial while continuing his usual justification;
work or employment. The bail posted by the accused c. That he committed the offense while under
for his provisional liberty is, in effect, an assurance that probation, parole, or conditional pardon;
the accused will attend the court proceedings, d. That the circumstances of his case indicate
particularly when his presence is required. In short, the the probability of flight if released on bail; or
purpose of the bail is to relieve the accused from e. That there is undue risk that he may commit
imprisonment until his conviction and at the time his another crime during the pendency of the
appearance at the trial is secured.(Almeda v. Villaluz, appeal.
66 SCRA 38 (1975) (Suarez, Political Law Reviewer, p.
302, 2011). The appellate court may, motu proprio or on motion of
any party, review the resolution of the RTC after notice
NOTE: The right to bail may be invoked once detention
to the adverse party in either case. (Sec. 5, Rule 114,
commences even if no formal charges have yet to be filed.
(Teehankee v. Rovira, G.R.No. L-101, Dec. 20, 1945) Rules of Court)

1. Bail as a matter of right NOTE: The right to bail is available from the very moment of
arrest (which may be before or after the filing of formal
a. Before or after conviction by the
charges in court) up to the time of conviction by final
metropolitan and municipal trial courts, and
judgment (which means after appeal). No charge need be
b. Before conviction by the RTC of an offense filed formally before one can file for bail, so long as one is
not punishable by death, reclusion perpetua under arrest. (Heras Teehankee v. Rovira, G.R. No. L-101,
or life imprisonment (Sec. 4, Rule 114). Dec. 20 1945)
c. Before final conviction by all children in
conflict with the law for an offense not Two scenarios in which the penalty imposed on the
punishable by reclusion perpetua or life appellant applying for bail is imprisonment exceeding
imprisonment. six years

2. Bail as a matter of discretion a. The first scenario deals with the absence of the
a. Upon conviction by the RTC of an offense not circumstances enumerated in 3rd par., sec. 5 of
punishable by death, reclusion perpetua or Rule 114. In this scenario, bail is a matter of
life imprisonment discretion. This means that, if none of the
b. Regardless of the stage of the criminal circumstances mentioned in the third paragraph
prosecution, a person charged with a capital of Sec. 5, Rule 114 is present, the appellate court
offense, or an offense punishable by reclusion has the discretion to grant or deny bail. An
perpetua or life imprisonment, when application for bail pending appeal may be denied
evidence of guilt is not strong (Sec. 7, Rule even if the bail-negating circumstances in the
114); and third paragraph are absent.

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Q: Why are capital offenses when evidence of guilt is


NOTE: The discretionary nature of the grant of bail strong not bailable?
pending appeal does not mean that bail should
automatically be granted absent any of the A: Due to the gravity of the offenses committed, the
circumstances mentioned in the third paragraph of Sec.
confinement of a person accused of said offenses
5, Rule 114 of the Rules of Court (Jose Antonio Leviste v.
insures his attendance in the court proceedings than if
Court of Appeals, et al., G.R.No. 189122, March 17,
2010). he is given provisional liberty on account of a bail
posted by him.
b. The second scenario contemplates of the
existence of at least one of the said Factors to be considered in setting the amount of bail
circumstances. The appellate court exercises a
more stringent discretion, that is, to carefully 1. Financial ability of accused
ascertain whether any of the enumerated 2. Nature and circumstances of offense
circumstances in fact exists. If it so determines, it 3. Penalty for offense
has no other option except to deny or revoke bail 4. Character and reputation of accused
pending appeal. (Jose Antonio Leviste v. Court of 5. Age and health of accused
Appeals, et al., G.R.No. 189122, March 17, 2010). 6. Weight of evidence against him
7. Probability of appearance at trial
The following are entitled to bail 8. Forfeiture of other bail
9. Whether he was a fugitive from justice when
1. Persons charged with offenses punishable by arrested
reclusion perpetua or death, when evidence of 10. Pendency of other cases where he is on bail
guilt is not strong (Sunga v. Judge Salud, A.M. No. 2205-MJ, Nov. 19,
2. Persons convicted by the trial court. Bail is only 1981)
discretionary pending appeal
3. Persons who are members of the AFP facing a Q: Manolet was arrested for child abuse. She filed a
court martial petition for application of bail. The court granted her
application with a condition that the approval of the
Whether bail is a matter of right or of discretion, bail bonds shall be made only after her arraignment.
reasonable notice of hearing is required to be given Is the courts order valid?
the prosecutor, or at least he must be asked for his
recommendation, because in fixing the amount of bail, A: No. The grant of bail should not be conditioned upon
the judge is required to take into account a number of prior arraignment of the accused. In cases where bail is
factors. (Cortes v. Judge Catral, A.M. No. RTJ-97-1387, authorized, bail should be granted before arraignment,
Sept. 10, 1997) otherwise the accused will be precluded from filing a
motion to quash which is to be done before
Q: In bail application, if the prosecutor interposes no arraignment. If the information is quashed and the case
objection to the accused charged with capital is dismissed, there would be no need for the
offense, may the judge grant the application without arraignment of the accused. To condition the grant of
court hearing? bail on his arraignment would be to place him in a
position where he has to choose between (1) filing a
A: No. Judges are required to conduct hearings if the motion to quash and thus delay his release until his
accused is being charged with a capital offense. motion can be resolved because prior to its resolution,
Absence of objection from the prosecution is never a he cannot be arraigned, and (2) foregoing the filing of a
basis for the grant of bail in such cases, for the judge motion to quash so that he can be arraigned at once
has no right to presume that the prosecutor knows and thereafter be released on bail. These scenarios
what he is doing on a ccount of familiarity with the undermine the accuseds constitutional right not to be
case. (Joselito v. Narciso v Flor Marle Sta. Romana- put on trial except upon valid complaint or information
Cruz, G.R. No. 134504, March 17, 2000) sufficient to charge him with a crime and his right to
bail. (Lavides v. Court of Appeals, G.R. No. 129670,
NOTE: A hearing on the motion for bail must be conducted February 1, 2000)
by the judge to determine whether or not the evidence of
guilt is strong. (Baylon v. Judge Sison, A.M. No. 92-7-360-0, NOTE: It should not be taken to mean that the hearing on a
Apr. 6, 1995) petition for bail should at all times precede arraignment,
because the rule is that a person deprived of his liberty by
virtue of his arrest or voluntary surrender may apply for bail
as soon as he is deprived of his liberty, even before a

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complaint or information is filed against him. (Serapio v. Q: The RTC QC rendered a decision convicting Judge
Sandiganbayan, G.R. No. 148468, January 28, 2003) Bueno of violation of R.A. 7610. The criminal cases
are now on appeal before the Court of Appeals.
Applicability of the right to bail to an alien subject of Meanwhile, Senior State Prosecutor Guinto (SSP
deportation proceedings Guinto) suggested the immediate suspension of
Bueno. SSP Guinto posited that since Judge Bueno
The right to bail is available to an alien during the stands convicted of two counts of child abuse, her
pendency of deportation proceedings provided that moral qualification as a judge is in question. Judge
potential extraditee must prove by clear and Bueno manifested that she still enjoys the
convincing proof that he is not a flight risk and will presumption of innocence since the criminal cases
abide with all orders and processes of the extradition are on appeal. Does she still enjoy the presumption
court. (Government of Hong Kong Special of innocence if the judgment convicting her is on
Administrative Region v. Olalia Jr., G.R 153675, Apr. appeal?
19, 2007)
A: Yes. Judge Bueno still enjoys the constitutional
NOTE: The application or admission of the accused to bail presumption of innocence. Since her conviction of the
shall not bar him from challenging both the validity of his
crime of child abuse is currently on appeal before the
arrest or the legality of the warrant issued therefore,
CA, the same has not yet attained finality. As such, she
provided that he raises them before he enters his plea. It
shall not likewise bar the accused from assailing the still enjoys the constitutional presumption of
regularity or questioning the absence of a preliminary innocence. It must be remembered that the existence
investigation of the charge against him provided the same is of a presumption indicating the guilt of the accused
raised before he enters his plea. (Rule 114, Sec. 26, Rules of does not in itself destroy the constitutional
Court) presumption of innocence unless the inculpating
presumption, together with all the evidence, or the
PRESUMPTION OF INNOCENCE lack of any evidence or explanation, proves the
accuseds guilt beyond a reasonable doubt. Until the
Basis accuseds guilt is shown in this manner, the
presumption of innocence continues. (Re: Conviction
No person shall be compelled to be a witness against of Judge Adoracion G. Angeles, A.M. No. 06-9-545-RTC,
himself. (Sec. 17, Art. III of the Constitution) Jan. 31, 2008)

Every circumstance favoring the innocence of the Equipoise rule


accused must be taken into account. The proof against
him must survive the test of reason; the strongest When the evidence of both sides is equally balanced,
suspicion must not be permitted to sway judgment the constitutional presumption of innocence should
(People v. Austria, G.R. No. 55109, Apr. 8, 1991) tilt the scales in favor of the accused. (Corpuz v. People,
G.R. No. 74259, Feb. 14, 1991)
It can be invoked only by an individual accused of a
criminal offense; a corporate entity has no personality RIGHT TO BE HEARD
to invoke the same.
Q: In a murder case, Christian was convicted in the
Rules regarding presumption of innocence trial court but was not given the right to testify and
to present additional evidence on his behalf. Is the
1. The prosecution has the burden to prove the guilt conviction correct?
of the accused beyond reasonable doubt. (People
v. Colcol., Jr., 219 SCRA 107, February 19, 1993) A: No. An accused has the constitutional right to be
2. The prosecution must rely on the strength of its heard by himself and counsel and the right to testify
evidence and not in the weakness of the defense. as a witness in his own behalf . The denial of such
(People v. Solis, 182 SCRA 182, February 14, 1990) rights is a denial of due process. The constitutional
3. The right to be presumed innocent must be offset right of the accused to be heard in his defense is
by guilt beyond reasonable doubt. (People v. Ortiz, inviolate. No court of justice under our system of
198 SCRA 836, December 3, 1990) government has the power to deprive him of that
4. Any doubt as to the guilt of the accused must be right.(People v. Lumague, G.R. No. L-53586)
resolved in his favor and against the State. (People
v. Mortos, 226 SCRA 29, September 1, 1993)

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ASSISTANCE OF COUNSEL unequivocally, knowingly, and intelligently made and


with the full assistance of a bona fide lawyer, Atty. Dani
Right to assistance of counsel Lacap. Accordingly, denial of due process cannot be
successfully invoked where a valid waiver of rights has
The right of a person under investigation is to have a been made. (People v. Tulin, G.R. 111709, Aug. 30,
competent and independent counsel preferably of his 2001)
own choice. The purpose is to preclude the slightest
coercion as would lead the accused to admit NOTE: In Flores v. Ruiz, G.R. No. L-35707, May 31, 1979, the
something else. (People vs Evanoria, 209 SCRA 577, Supreme Court held that the right to counsel during the trial
June 8, 1992) cannot be waived, because even the most intelligent or
educated man may have no skill in the science of law,
particularly in the rules of procedure, and without counsel,
The accused must be amply accorded legal assistance he may be convicted not because he is guilty but because he
extended by a counsel who commits himself to the does not know how to establish his innocence.
cause of the defense and acts accordingly; an efficient
and truly decisive legal assistance, and not simply a Q: Mao was criminally charged in court. He hired
perfunctory representation. (People v. Bermas, G.R. Justin as counsel who handles high-profile clients.
No. 120420, Apr. 21, 1999) Due to his many clients, Justin cannot attend the
hearing of the case of Mao. He requested many times
Q: Can a PAO lawyer be considered an independent to have the hearings postponed. The case dragged on
counsel within the contemplation of Sec 12, Art III, slowly. Judge Oliver Punay, in his desire to finish the
1987 Constitution? case as early as practicable under the continuous trial
system, appointed a counsel de officio and withdrew
A: Yes. A PAO lawyer can be considered an the counsel de parte. Is the action of the judge valid?
independent counsel within the contemplation of the
Constitution considering that he is not a special A: Yes. The appointment of counsel de officio under
counsel, public or private prosecutor, counsel of the such circumstances is not proscribed under the
police, or a municipal attorney whose interest is Constitution. The preferential discretion is not
admittedly adverse of the accused-appellant. Thus, absolute as would enable an accused to choose a
the assistance of a PAO lawyer satisfies the particular counsel to the exclusion of others equally
constitutional requirement of a competent and capable. The choice of counsel by the accused in a
independent counsel for the accused. (People v. Bacor, criminal prosecution is not a plenary one. If the
306 SCRA 552, April 30, 1999) counsel deliberately makes himself scarce the court is
not precluded from appointing a counsel de officio
Q: Several individuals were tried and convicted of whom it considers competent and independent to
Piracy in Philippine Waters as defined in PD 532. enable the trial to proceed until the counsel of choice
However, it was discovered that the lawyer, Ms. enters his appearance. Otherwise the pace of criminal
Cantos, who represented them was not a member of prosecution will entirely be dictated by the accused to
the bar although evidence shows that she was the detriment of the eventual resolution of the case.
knowledgeable in the rules of legal procedure. The (People v. Larranaga, G.R. No. 138874-75, Feb. 3,
accused now allege that their conviction should be 2004)
set aside since they were deprived of due process.
Are they correct? Q: A police officer told Alex, Ralph, Nats, Andrew and
Ojay to be in a police line-up with other five suspects.
A: No. Sec. 1 of Rule 115 of the Revised Rules of Nats told the police that he wants to be excused in
Criminal Procedure states that "upon motion, the the police line-up until his lawyer, Atty. Barbaza,
accused may be allowed to defend himself in person arrives. Is Nats entitled to the right to counsel at that
when it sufficiently appears to the court that he can stage?
properly protect his rights without the assistance of
counsel." By analogy, but without prejudice to the A: No. The investigation has not yet commenced.
sanctions imposed by law for the illegal practice of law,
it is amply shown that the rights of accused were Q: At what stage shall Nats have the right to counsel?
sufficiently and properly protected by the appearance
of Ms. Cantos. An examination of the record will show A: Nats shall have the right to counsel from the
that she knew the technical rules of procedure. Hence, moment the investigating officer starts to ask
there was a valid waiver of the right to sufficient questions to illicit information or confession or
representation during the trial, considering that it was admission. This right, however, can be waived but said

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waiver shall be made in writing and in the presence of rights under Sec. 12 are guarantees to preclude the
counsel. (Gamboa vs Judge Cruz GR. No. L-56291, Jun. slightest use of coercion by the State and not to
27, 1988) prevent the suspect from freely and voluntarily telling
the truth. (People v. Andan ,G.R. No. 116437, March 3,
Q: Ian Loy is in police custody. Bothered and 1997)
remorseful, he spontaneously admitted guilt and that
he is the one who killed Dr. Neil. Is his confession Q: Accused Antonio Lauga was charged and convicted
admissible? of the crime of rape of his thirteen-year old daughter,
AAA. During the proceedings, Juan Paulo
A: Yes. Ian Loys statement is a spontaneous Nepomuceno, a bantaybayan in the barangay,
statement. It was not elicited through questioning by testified that the accused confessed that he had in
the authorities. (People v. Cabiles, G.R. No. 112035, fact raped AAA. The trial court found him guilty of the
Jan. 16, 1998) crime of rape. Lauga contends that the confession he
made to Nepomuceno is inadmissible in evidence. Is
Q: Arthur had no counsel while giving his statement his contention tenable?
because Atty. Sol Santos, whom he called by
telephone encountered heavy traffic along Sucat A: Yes. A barangay bantaybayan is considered a public
Road. The interrogation was about to end when Atty. officer and any extrajudicial confession made to him
Santos arrived. Atty. Santos immediately requested without the assistance of counsel is inadmissible in
the police investigator to allow him to talk to Arthur. evidence as provided for under Sec. 12, Art. III of the
She discussed with Arthur regarding the statements Constitution. (People v. Lauga, GR. No. 186228, March
he already made. Thereafter, Arthur signed the 15, 2010)
statement. Is the constitutional requirement about
the presence of counsel complied with? RIGHT TO BE INFORMED OF THE NATURE AND
CAUSE OF ACCUSATION
A: No. The right to counsel was a right to effective
counsel from the first moment of questioning and all Rationale of the right to be informed
throughout. (People v. De Jesus, G.R. No. 91535, Sept.
2, 1992) 1. To furnish the accused with such a description of
the charge against him as will enable him to make
Q: Mayor Pineda arrived and proceeded to the his defense
investigation room. Upon seeing the mayor, 2. To avail himself of his conviction or acquittal for
appellant Flores approached him and whispered a protection against further prosecution for the
request to talk privately. The mayor led appellant to same cause
the office of the Chief of Police and there, Flores 3. To inform the court of the facts alleged so that it
broke down and said "Mayor, patawarin mo ako! I may decide whether they are sufficient in law to
will tell you the truth. I am the one who killed support a conviction, if one should be had (US v.
Villaroman." The mayor opened the door of the room Karelsen G.R. No. 1376, Jan. 21, 1904)
to let the public and media representatives witness
the confession. The mayor first asked for a lawyer to Determination of the real nature of the crime
assist appellant but since no lawyer was available she
ordered the proceedings photographed and Description, not designation of the offense, is
videotaped. In the presence of the mayor, the police, controlling. The real nature of the crime charged is
representatives of the media and appellant's own determined from the recital of facts in the
wife and son, appellant confessed his guilt. His information. It is neither determined based on the
confession was captured on videotape and covered caption or preamble thereof nor from the specification
by the media nationwide. Did such uncounselled of the provision of the law allegedly violated.
confession violate the suspects constitutional rights?
Requisites for properly informing the accused of the
A: No. A confession given to the mayor may be nature and cause of accusation
admitted in evidence if such confession by the suspect
was given to the mayor as a confidant and not as a law 1. Information must state the name of the accused
enforcement officer. In such a case, the uncounselled 2. Designation given to the offense by statute
confession did not violate the suspects constitutional 3. Statement of the acts or omission so complained
rights. What the constitution bars is the compulsory of as constituting the offense
disclosure of incriminating facts or confessions. The 4. Name of the offended party

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125 FACULTY OF CIVIL LAW
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5. Approximate time and date of commission of the Right to impartial trial


offense
6. Place where offense was committed Impartial trial meant that the accused is entitled to
7. Every element of the offense must be alleged in cold neutrality of an impartial judge, one who is free
the complaint or information from interest or bias.

NOTE: The accused cannot be convicted thereof if the Right to public trial
information fails to allege the material elements of the
offense even if the prosecution is able to present evidence Trial must be public in order to prevent possible
during the trial with respect to such elements.
abuses which may be committed against the accused.
The attendance at the trial is open to all, irrespective
The right to be informed of the nature and cause of
of their relationship to the accused.
accusation cannot be waived. However, the defense
may waive the right to enter a plea and let the court
XPN: If the evidence to be adduced is offensive to
enter a plea of not guilty.
decency or public morals, the public may be excluded.
Right to be informed vis--vis void-for-vagueness
NOTE: Under Sec. 21, Rule 119 of the Rules of Criminal
doctrine Procedure it is provided that the judge may motu proprio
exclude the public from the court room when the evidence
The accused is also denied the right to be informed of to be adduced is offensive to decency and public morals.
the charge against him, and to due process as well,
where the statute itself is couched in such indefinite RIGHT OF CONFRONTATION
language that it is not possible for men of ordinary
intelligence to determine therefrom what acts or Purpose of the right of confrontation
omissions are punished. In such a case, the law is
deemed void. 1. To afford the accused an opportunity to test the
testimony of a witness by cross-examination;
Variance doctrine 2. To allow the judge to observe the deportment of
the witness.
In spite of the difference between the crime that was
charged and that which was eventually proved, the If the failure of the accused to cross-examine a witness
accused may still be convicted of whatever offense is due to his own fault or was not due to the fault of
that was proved even if not specifically set out in the the prosecution, the testimony of the witness should
information provided it is necessarily included in the not be excluded.
crime charged. (Teves v. Sandiganbayan, G.R. No.
154182, Dec. 17, 2004) The affidavits of witnesses who are not presented
during trial are inadmissible for being hearsay. The
RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL accused is denied the opportunity to cross-examine
the witnesses.
Right to speedy trial
NOTE: Depositions are admissible under circumstances
The term speedy means free from vexatious, provided by the Rules of Court.
capricious and oppressive delays. The factors to be
considered are: RIGHT TO COMPULSORY PROCESS TO SECURE
1. Time expired from the filing of information ATTENDANCE OF WITNESS AND PRODUCTION OF
2. Length of delay EVIDENCE
3. Reasons for the delay
4. Assertion or non-assertion of the right by the Means available to the parties to compel the
accused attendance of witnesses and the production of
5. Prejudice caused to the defendant documents and things needed in the prosecution or
defense of a case
NOTE: The denial of the right to speedy trial is a ground for
acquittal. 1. Subpoena ad testificandum and subpoena duces
tecum
The right to speedy trial [Sec. 14 (2)] particularly refers to 2. Depositions and other modes of discovery
criminal prosecutions which are at the trial stage, while the
3. Perpetuation of testimonies
right to speedy disposition of cases (Sec. 16) applies to all
cases before judicial, quasi-judicial or administrative bodies.

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Ad Testificandum v. Duces Tecum


NOTE: While the accused is entitled to be present during
AD TESTIFICANDUM DUCES TECUM promulgation of judgment, the absence of his counsel during
A process directed to a person The person is also such promulgation does not affect its validity.
requiring him to attend and to required to bring
testify at the hearing or trial of with him any Promulgation of judgment in absentia is valid
an action, or at any books, provided the following are present
investigation conducted by documents, or
competent authority, or for other things 1. Judgment be recorded in the criminal docket
the taking of his deposition. under his control. 2. Copy be served upon accused or counsel

NOTE: Recording the decision in the criminal docket of the


NOTE: The subpoena duces tecum shall contain a reasonable
court satisfies the requirement of notifying the accused of
description of the books, documents or things demanded
the decision wherever he may be. (Estrada v. People, G.R.
which must appear to the court as prima facie relevant.
No. 162371, Aug. 25, 2005)

Requirements for the exercise of the right to secure


WRIT OF HABEAS CORPUS
attendance of witness
Writ of Habeas Corpus
1. The witness is really material
2. The attendance of the witness was previously
The writ of habeas corpus is a writ directed to the
obtained
person detaining another, commanding him to
3. The witness will be available at the time desired
produce the body of the detainee at a designated time
4. No similar evidence could be obtained
and place, and to show the cause of his detention.
NOTE: Right to cross-examine is demandable only during
trials. Thus, it cannot be availed of during preliminary Privilege of the Writ of Habeas Corpus
investigations.
The right to have an immediate determination of the
Principal exceptions to the right of confrontation legality of the deprivation of physical liberty.

1. Admissibility of dying declarations and all Requisites for the suspension of the privilege of the
exceptions to the hearsay rule writ of habeas corpus
2. Trial in absentia under Sec.14 (2) of Art. III of the
Constitution 1. There must be an invasion or rebellion; and
3. With respect to child testimony 2. Public safety requires the suspension

NOTE: The invasion and rebellion must be actual and not


TRIAL IN ABSENTIA
merely imminent.

Trial in absentia may proceed if the following NOTE: The writ applies only to persons judicially charged for
requisites are present rebellion or offenses inherent in or directly connected with
invasion and anyone arrested or detained during suspension
1. Accused has been validly arraigned must be charged within 3 days. Otherwise, he should be
2. Accused has been duly notified of the dates of released.
hearing
3. Failure to appear is unjustifiable Q: Micheal, Victorias husband, disappeared without
a trail. A source says that he saw Micheal at CIDG at
The presence of the accused is mandatory in the Camp Crame, being questioned for the death of Nida
following instances Blanca. Victoria then filed a petition for habeas
corpus in the Regional Trial Court. Will the petition
1. During arraignment and plea prosper?
2. During trial, for identification, unless the accused
has already stipulated on his identity during the A: No. The Court held that the grant of relief in a
pre-trial and that he is the one who will be habeas corpus proceeding is not predicated on the
identified by the witnesses as the accused in the disappearance of a person, but on his illegal detention.
criminal case It may not be used as a means of obtaining evidence
3. During promulgation of sentence, unless for a on the whereabouts of a person, or as a means of
light offense finding out who has specifically abducted or caused

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the disappearance of a certain person. When forcible Main advantages of the Writ of Amparo over the Writ
taking and disappearance not arrest and detention of Habeas Corpus
have been alleged, the proper remedy is not habeas
corpus proceedings, but criminal investigation and WRIT OF
WRIT OF
proceedings. (Martinez v. Mendoza 499 SCRA 234, BASIS HABEAS
AMPARO
2006) CORPUS
As to Interim reliefs, No interim
Q: Jane Lopez was arrested by the military on the availability of such as reliefs
basis of a mission order issued by the Department of interim reliefs temporary
National Defense. A petition for habeas corpus was protection
filed. The writ was issued. Later, an information for order, witness
rebellion was filed against Jane. The military moved protection
that the petition should be dismissed for having order,
become moot and academic. Decide. inspection
order and
A: The function of the special proceeding of habeas production
corpus is to inquire into the legality of ones detention. order, are
Now that the detainees incarceration is by virtue of a available
judicial order in relation to criminal cases As to acts Covers acts Limited to
subsequently filed against them, the remedy of habeas covered which violate cases
corpus no longer lies. The writ has served its purpose. or threaten to involving
(Ilagan v. Enrile, G.R. No. 70748, Oct. 21, 1985) violate the actual
right to life, violation of
WRIT OF AMPARO, HABEAS DATA liberty and right to
AND KALIKASAN security liberty
As to General denial Mere denial
Writ of Amparo allowability of is not allowed; is a ground
denial detailed return for dismissal
A remedy available to any person whose right to life, is required of of the
liberty, and security has been violated or is threatened the petition
with violation by an unlawful act or omission of a respondent
public official or employee, or of a private individual or As to No Presumption
entity. The writ covers extralegal killings and enforced applicability of presumption of regular
disappearances or threats thereof. (Rule on Writ of presumption of regularity; performance
Amparo) of regularity must prove of official
observance of duty is
Extralegal killings extraordinary applicable
diligence
Killings committed without due process of law, i.e., As to Enforceable Only
without legal safeguards or judicial proceedings. enforceability anywhere in enforceable
the Philippines anywhere in
Enforced disappearance the Phil. if
filed with the
An arrest, detention or abduction of a person by a CA or SC
government official or organized groups or private justice
individuals acting with the direct or indirect As to payment Exempted Not
acquiescence of the government. It is further of docket fees from payment exempted
characterized by the refusal of the State to disclose the of docket fees
fate or whereabouts of the person concerned or a As to effect of Release of Release of
refusal to acknowledge the deprivation of liberty release of detained detained
which places such persons outside the protection of detained person does person
law. person not render the renders it
petition moot moot and
and academic academic

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Q: Engr. Peregrina disappeared one day and his wife A: Yes. While Almarius and Aaron were detained, they
filed a petition for the Writ of Amparo with the CA were threatened that if they escaped, their families,
directed against the PNP, claiming that the including them, would be killed. In time, they were
unexplained uncooperative behavior of the able to escape. The condition of the threat to be killed
respondents request for help and their failure and has come to pass. It should be stressed that they are
refusal to extend assistance in locating the now free from captivity not because they were
whereabouts of Peregrina were indicative of their released by virtue of a lawful order or voluntarily freed
actual physical possession and custody of the missing by their abductors. It ought to be recalled that
engineer. The PNP was held responsible for the towards the end of their ordeal their captors even told
enforced disappearance of Engr. Peregrina. Is this them that they were still deciding whether they
valid? should be executed.

A: Yes. The government in general, through the PNP The possibility of Almarius and Aaron being executed
and the PNP-CIDG, and in particular, the Chiefs of stared them in the eye while they were in
these organizations together with Col. Kasim, should detention. With their escape, this continuing threat
be held fully accountable for the enforced to their life is apparent, more so now that they have
disappearance of Peregrina. Given their mandates, the surfaced and implicated specific officers in the military
PNP and the PNP-CIDG officials and members were the not only in their own abduction and torture, but also
ones who were remiss in their duties when the in those of other persons known to have disappeared
government completely failed to exercise such as April, Mela, and Sol, among others.
extraordinary diligence that the Amparo rule requires.
(Razon v. Tagitis, G.R. No. 182498, Dec. 3, 2009) Understandably, since their escape, they have been
under concealment and protection by private citizens
Q: Fr. Reyes was charged with rebellion and his name because of the threat to their life, liberty and
was included in the hold departure list. The case was security. The threat vitiates their free will as they are
later on dismissed but the Hold Departure Order still forced to limit their movements or activities. Precisely
subsisted. Can the Writ of Amparo be invoked to because they are being shielded from the
protect his right to travel? perpetrators of their abduction, they cannot be
expected to show evidence of overt acts of threat such
A: No. The restriction on his right to travel as a as face-to-face intimidation or written threats to their
consequence of the pendency of the criminal case filed life, liberty and security. Nonetheless, the
against him was not unlawful. Fr. Reyes also failed to circumstances of their abduction, detention, torture
establish that his right to travel was impaired in the and escape reasonably support a conclusion that
manner and to the extent that it amounted to a serious there is an apparent threat that they will again be
violation of his right to life, liberty, and security, for abducted, tortured, and this time, even
which there exists no readily available legal remedy. executed. These constitute threats to their liberty,
(Reyes v. CA, G.R. No. 182161, Dec. 3, 2009) security, and life, actionable through a petition for a
Writ of Amparo. (Sec. of National Defense and AFP
Q: Almarius and Aaron were abducted by the CAFGU. Chief of Staff v. Manalo, G.R. No. 180906, Oct. 7, 2008)
They were taken to various military camps, put in
chains and tortured. While detained, they were Liability of the President for the extralegal killings
threatened that if they escape, they and their families and enforced disappearances or threats committed
would be killed. While in captivity they met April, by a public official or employee under the principle
Mela, and Sol who were also prisoners then of command responsibility when the following
eventually, Almarius and Aaron were able to escape. requisites are present:

Presently, Almarius and Aaron are now in protective 1. The existence of a superior-subordinate
custody under private individuals. Almarius and relationship between the accused as superior and
Aaron then filed a petition for the issuance of the the perpetrator of the crime as his subordinate;
Writ of Amparo, implicating several officers of the 2. The superior knew or had reason to know that the
military as their abductors. They allege that their crime was about to be or had been committed;
cause of action consists in the threat to their right to 3. The superior failed to take the necessary and
life and liberty, and a violation of their right to reasonable measures to prevent the criminal acts
security. Considering the fact that they have already or punish the perpetrators thereof.
escaped, will the petition still prosper? 4. The superior has knowledge that a crime or
offense shall be committed, is being committed,

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129 FACULTY OF CIVIL LAW
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or has been committed by his subordinates, or by WRIT OF KALIKASAN


others within his area of responsibility and,
despite such knowledge, he did not take Writ of Kalikasan
preventive or corrective action either before,
during, or immediately after its commission; and A remedy available to a natural or juridical person,
5. President ceases to occupy the office by entity authorized by law, peoples organization, non-
impeachment or expiration of term and shown by governmental organization, or any public interest
substantial evidence. group accredited by or registered with any
government agency, on behalf of persons whose
NOTE: Knowledge of the commission of irregularities, constitutional right to a balanced and healthful
crimes or offenses is presumed when: ecology is violated, or threatened with violation by an
1. The acts are widespread within the government unlawful act or omission of a public official or
officials area of jurisdiction; employee, or private individual or entity, involving
2. The acts have been repeatedly or regularly committed environmental damage of such magnitude as to
within his area of responsibility; and
prejudice the life, health or property of inhabitants in
3. Members of his immediate staff or office personnel is
involved. (In Re: Petition for the Writ of Amparo and
two or more cities or provinces. (A.M. No. 09-6-8-SC)
Habeas Data in Favor of Noriel H. Rodriguez v.
Macapagal-Arroyo, GR. No. 193160, Nov. 15, 2011) Essence for the promulgation of the writ

WRIT OF HABEAS DATA There is an increasing awareness of the need to


protect the environment and conserve the finite
The writ of habeas data is a remedy available to any resources of the Earth. In fact, the urgent call for the
person whose right to privacy in life, liberty or security preservation of the environment was recognized by
is violated or threatened by an unlawful act or the international community as early as June 16, 1972
omission of a public official or employee, or of a during the Stockholm Declaration. After almost two
private individual or entity engaged in the gathering, decades, the Stockholm Declaration was reaffirmed by
collecting or storing of data or information regarding the Rio Declaration.
the person, family, home and correspondence of the
aggrieved party.(Sec. 1, The Rule on the Writ of Habeas Our very own Constitution also considers as a State
Data, A. M. No. 08-1-16-SC, Jan. 22, 2008) policy the obligation of the State to protect and
advance the right of the people to a balanced and
A writ of habeas data cannot be issued to protect healthful ecology in accord with the rhythm and
purely property or commercial concern. It bears harmony of nature. This right was recognized as an
reiteration that like the writ of amparo, habeas data enforceable right in the case of Oposa v. Factoran
was conceived as a response, given the lack of wherein the Supreme Court recognized the
effective and available remedies, to address the Intergenerational Responsibility of the people over
extraordinary rise in the number of killings and the Earths natural resources. The first issue it resolved
enforced disappearances. Its intent is to address was the issue of locus standi on the part of the
violations of or threats to the rights to life, liberty or petitioners who claimed to represent their generation,
security as a remedy independently from those and generations yet unborn. The Court ruled in favor
provided under prevailing rules. Writs of amparo and of the petitioners saying that the minor petitioners
habeas data will not issue to protect purely property assertion of their right to a sound environment is a
or commercial concerns nor when the grounds performance of their duty to preserve such for the
invoked in support of the petitions therefore are vague succeeding generations.
or doubtful. Employment constitutes a property right
under the context of the due process clause of the More importantly, the case of Oposa clarified the fact
constitution. It is evident that respondents that although the right to a balanced and healthful
reservations on the real reasons for her transfer-a ecology is found in the Declaration of Principles of the
legitimate concern respecting the terms and Constitution, this right is of equal importance with the
conditions of ones employment- are what prompted civil and political rights found in the Bill of Rights. Thus,
her to adopt the extraordinary remedy of habeas data. in the exercise of the Supreme Courts power to
(Manila Electric Company v. Lim, 632 SCRA 195, 2010) promulgate rules concerning the protection and
enforcement of constitutional rights , an
environmental writ was established to further to
protect a persons environmental right when the
measures taken by the executive and the legislative
are insufficient.

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Nature of the writ of kalikasan writ does not preclude the filing of separate civil,
criminal, or administrative actions, as discussed in the
The Writ of kalikasan is an extraordinary remedy preceding chapter. The petitioner does not need to
which may be issued depending on the magnitude of pay docket fees. While this is similar to the rule on
the environmental damage. The environmental filing fees for civil and criminal cases under the Rules,
damage must be one which prejudices the life, health the exemption from payment of docket fees under this
or property of inhabitants in two or more cities or remedy is a necessary consequence of the fact that no
provinces, or that which transcends political and award of damages to private individuals can be made
territorial boundaries. under the writ. In comparison to civil or criminal cases
under the Rules of Civil Procedure, the filing fees need
It is also a remedy which enforces the right to not be paid at the time of filing but the same shall be
information by compelling the government or a imputed from the award of damages that may be given
private entity to produce information regarding the to the complainant in the judgment.
environment that is within their custody.
INCRIMINATION CLAUSE
Persons who may file a petition for a writ of kalikasan
Basis
The Writ of Kalikasan may be availed of by any of the
following: No person shall be compelled to be a witness against
a. Natural or juridical persons; himself. (Sec. 17, Art. III of the Constitution)
b. Entities authorized by law; or
c. Peoples organizations, non-governmental NOTE: This constitutional privilege has been defined as a
organizations, or any public interest group protection against testimonial compulsion, but this has since
accredited by or registered with any government been extended to any evidence communicative in nature
agency. acquired under circumstances of duress (People v. Olvis, G.R.
No. 71092, Sept. 30, 1987)
The petition must be on behalf of persons whose What is prohibited is the use of physical or moral compulsion
constitutional right to ahe balanced and healthful to extort communication from the witness or to otherwise
ecology is violated and involving environmental elicit evidence which would not exist were it not for the
damage that injures the life, health or property of actions compelled from the witness.
inhabitants in two or more cities or provinces.
The right is available in:
Persons against whom a petition for a writ of
kalikasan is filed 1. Criminal cases
2. Civil cases
As mentioned in the foregoing paragraphs, the Writ of 3. Administrative cases
Kalikasan may be applied against: 4. Impeachment
a. The government, as represented by a public 5. Other legislative investigations that possess a
official or employee; or criminal or penal aspect
b. A private individual or entity.
NOTE: It does not apply to private investigations done by
Courts where the petition for a writ of kalikasan is private individual. (BPI v. CASA, GR.No.149454, May 28,
filed 2004) When the privilege against self-incrimination is
violated outside of court, say, by the police, then the
testimony, as already noted, is not admissible under the
The petition is filed either with (a) the Supreme Court;
exclusionary rule. When the privilege is violated by the court
or (b) any station of the Court of Appeals. itself, that is, by the judge, the court is ousted of its
jurisdiction, all its proceedings are null and void, and it is as
NOTE: The rationale for this is that the jurisdiction of both if no judgment has been rendered. (Chavez v. CA, G.R. No. L-
tribunals is national in scope which corresponds with the 29169, Aug. 19, 1968)
magnitude of the environmental damage contemplated by
the Rules.
Incriminating question
Procedure for the issuance of a writ of kalikasan
A question tends to incriminate when the answer of
the accused or the witness would establish a fact
The petition shall file his application for a Writ of
which would be a necessary link in a chain of evidence
kalikasan with the proper tribunal as specified in the
preceding paragraph. The filing of a petition for the

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to prove the commission of a crime by the accused or Q: Fiscal Jessa Bernardo petitioned the lower court to
the witness. order Art to appear before the former to take
dictation in Arts own handwriting to determine
NOTE: The privilege against self-incrimination is not self- whether or not it was Art who wrote certain
executing or automatically operational. It must be claimed. documents supposed to be falsified. The lower court
It follows that the right may be waived, expressly, or granted the petition of the fiscal. Art refused what
impliedly, as by a failure to claim it at the appropriate time.
the fiscal demanded and sought refuge in the
constitutional provision of his right against self-
Q: Jane Lopez, a witness, is ordered by the judge to incrimination. Is Arts contention valid?
testify in Court but she refused to abide by the said
order invoking her right against self-incrimination. A: Yes. Under Sec. 17, Art. III of the 1987
Can Jane invoke such right? Constitution, no person shall be compelled to be
a witness against himself. Since the provision
A: No. The privilege against self-incrimination can be prohibits compulsory testimonial incrimination, it
claimed only when the specific question, incriminatory does not matter whether the testimony is taken by
in character, is actually addressed to the witness. It oral or written. Writing is not purely a mechanical act
cannot be claimed at any other time. It does not give a because it requires the application of intelligence and
witness the right to disregard a subpoena, to decline attention. The purpose of the privilege is to avoid and
to appear before the court at the time appointed. prohibit thereby the repetition and recurrence of
(Rosete et. al. v. Lim, G.R. No. 136051, June 8, 2006) compelling a person, in a criminal or any other
case, to furnish the missing evidence necessary for
Right against self incrimination of an accused v. Right his conviction. (Bermudez v. Castillo, July 26, 1937;
against self incrimination of a witness Beltran v. Samson, G.R. No. 32025, Sept. 23, 1929)

ACCUSED ORDINARY WITNESS NOTE: There is similarity between one who is compelled to
Can refuse to take the Cannot refuse to take produce a private document (Boyd v. US, 1886), and one who
witness stand the witness stand; can is compelled to furnish a specimen of his handwriting, for in
altogether by invoking only refuse to answer both cases, the witness is required to furnish evidence
the right against self- specific questions which against himself.
incrimination would incriminate him
in the commission of an Q: During custodial investigation, Jez was asked to
offense sign letters without the assistance of the counsel. The
letters were admitted in evidence and Jez was
NOTE: An accused occupies a different tier of protection convicted. On appeal, Jezs counsel Zenia argued that
from an ordinary witness. Whereas an ordinary witness may the signing of Jezs and her co-accuseds names was
be compelled to take the witness stand and claim the not a mere mechanical act but one which required
privilege as each question requiring an incriminating answer the use of intelligence and therefore constitutes self-
is shot at him, an accused may altogether refuse to take the incrimination. Is there a violation of the accuseds
witness stand and refuse to answer any and all questions. right against self-incrimination?
For, in reality, the purpose of calling an accused as a witness
for the People would be to incriminate him. The rule
positively intends to avoid and prohibit the certainly A: None. The purpose for securing the signature of
inhuman procedure of compelling a person to furnish the petitioner on the envelopes was merely to
missing evidence necessary for his conviction (Chavez v. authenticate the envelopes as the ones seized from
Court of Appeals, G.R. L-29169, August 1968) him. Moreover, when the signatures of the accused
were affixed, such signatures were actually evidence
Q: Brian was asked by Atty. Tamayo to re-enact how of admission obtained from the petitioner and his co-
he robbed the BPI Bank. Brians counsel objected on accused under circumstances constituting custodial
the ground that the question is incriminating. Can investigation. Under the Constitution, among the
Brian validly invoke his right against self- rights of a person under custodial investigation is the
incrimination? right to have competent and independent counsel
preferably of his own choice and if the person cannot
A: Yes. A person who is made to re-enact a crime may afford the services of a counsel, that he must be
rightfully invoke his privilege against self- provided with one. It is on this ground that the letters
incrimination, because by his conduct of acting out with the signature of the accused could be rejected
how the crime was supposedly committed, he thereby (Marcelo v. Sandiganbayan, G.R.No. 109242, January
practically confesses his guilt by action which is as 26, 1999).
eloquent, if not more so, than words.

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Inapplicability of the right against self-incrimination An immunity agreement was entered between Jesus
to juridical persons and the Republic which he undertook to testify for his
government and provide its lawyers with information
It is not available to juridical persons as it would be a needed to prosecute the case. Said agreement gave
strange anomaly to hold that a state having chartered Jesus an assurance that he shall not be compelled to
a corporation to make use of certain franchises, could give further testimonies in any proceeding other than
not, in the exercise of sovereignty, inquire how these the present matter. Jesus complied with his
franchises had been employed, and whether they have undertaking. But after 18 years, Sandiganbayan
been abused, and demand the production of the issued a subpoena against him, commanding him to
corporate books and papers for that purpose. testify and produce documents before said court in
(Bataan Shipyard and Engineering Corporation v. PCG, an action filed against Herminio. Can Jesus be
GR. No. 75885, May 27, 1987) compelled to testify before the Sandiganbayan?

IMMUNITY STATUTES A: No. A contract is the law between the parties. It


cannot be withdrawn except by their mutual consent.
DERIVATIVE-USE TRANSACTIONAL In the case at bar, the Republic, through the PCGG,
IMMUNITY IMMUNITY offered Jesus not only criminal and civil immunity but
Only prevents the Completely protects the also immunity against being compelled to testify in any
prosecution from using witness from future proceeding other than the civil and arbitration cases
the witness' own prosecution for crimes identified in the agreement, just so he would agree to
testimony, or any related to his or her testify. When the Republic entered in such agreement,
evidence derived from testimony. it needs to fulfill its obligations honorably as Jesus did.
the testimony, against The government should be fair. (Disini v.
him. However, should Sandiganbayan, G.R. No. 180564, June 22, 2010)
the prosecutor acquire
evidence substantiating Q: Lisette and Angela were called before the AGRAVA
the supposed crime Board to elicit and determine the surrounding facts
independent of the and circumstances of the assassination of Benigno
witness's testimony Aquino Sr. Sec. 5 of PD 1886 creating the Board
the witness may then be compels a person to take the witness stand, testify or
prosecuted for the produce evidence, under the pain of contempt if they
same. failed or refused to do so. Lisette and Angela gave
Does not protect the Gives the witness the their testimonies without having been informed of
witness quite as much, most protection from their right to remain silent and that any statement
because here the prosecution because given by them may be used against them. The Board
witness is only that witness can never then used the information from the testimonies of
protected from future be prosecuted in the Lisette and Angela to support the prosecution's case
prosecution based on future for any crimes against them in Sandiganbayan. The Board contends
exactly what he or she related to his or her that the fact that Lisette and Angela testified before
says on the witness testimony. the Board constituted as a valid waiver of their
stand, and not from any constitutional rights to remain silent and not to be
evidence the prosecutor Also known as blanket compelled to be a witness against themselves.
finds to substantiate the or total immunity. 1. Was there a valid waiver of the rights?
witness crime. 2. Are the testimonies of Lisette and Angela
admissible in court?
Q: The Republic of the Philippines filed a case against 3. How can the unconstitutional effects be
Westinghouse Corporation before the US District reconciled?
Court due to the belief that Westinghouse contract
for the construction of the Bataan Nuclear power A:
plant, which was brokered by Herminio Disinis 1. None. In the case at bar, Lisette and Angela were
company, had been attended by anomalies. Having under the directive of law and under the
worked as Herminios executive in the latters compulsion of fear for the contempt powers of
company for 15 years, the Republic asked Jesus Disini the Board. They were left with no choice but to
to give his testimony regarding the case. provide testimonies before the Board.

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2. No. The manner in which testimonies were taken whipping post, or in the pillory, burning at the stake,
from Lisette and Angela falls short of the breaking on the wheel, disemboweling, and the like.
constitutional standards both under the due Fine and imprisonment would not thus be within the
process clause and under the exclusionary rule. prohibition. It takes more than merely being harsh,
excessive, out of proportion, or severe for a penalty to
3. As a rule, such infringement of constitutional right be obnoxious to the Constitution. The fact that the
renders inoperative the testimonial compulsion, punishment authorized by the statute is severe does
meaning, the witness cannot be compelled to not make it cruel and unusual. (Corpuz v. People, G.R.
answer UNLESS a co-extensive protection in the No. 180016, April 29, 2014)
form of IMMUNITY is offered. The only way to
cure the law of its unconstitutional effects is to NOTE: A penalty is cruel and inhuman if it involves torture or
construe it in the manner as if IMMUNITY had in lingering suffering. (ex. being drawn and quartered)
fact been offered. The applicability of the
A penalty is degrading if it exposes a person to public
immunity granted by P.D. 1886 cannot be made to
humiliation. (ex. being tarred and feathered, then paraded
depend on a claim of the privilege against self-
throughout town)
incrimination which the same law practically
strips away from the witness. (Galman v.
NON-IMPRISONMENT FOR DEBTS
Pamaran, G.R. Nos. 71208-09, Aug. 30, 1985)
Basis
INVOLUNTARY SERVITUDE AND POLITICAL
PRISONERS
No person shall be imprisoned for debt or non-
payment of a poll tax. (Sec. 20, Art. III of the
Involuntary servitude Constitution)
Condition where one is compelled by force, coercion, Debt
or imprisonment, and against his will, to labor for
another, whether he is paid or not. Any civil obligation arising from contract
GR: No involuntary servitude shall exist. Poll tax
XPNs: A specific sum levied upon any person belonging to a
1. Punishment for a crime for which the party has certain class without regard to property or occupation
been duly convicted (e.g. Community tax)
2. Personal military or civil service in the interest of
national defense NOTE: A tax is not a debt since it is an obligation arising from
3. In naval enlistment, a person who enlists in a law. Hence, its non-payment maybe validly punished with
merchant ship may be compelled to remain in imprisonment. Only poll tax is covered by the constitutional
service until the end of a voyage provision.
4. Posse comitatusor the conscription of able-bodied
men for the apprehension of criminals If an accused fails to pay the fines imposed upon him, this
5. Return to work order issued by the DOLE may result in his subsidiary imprisonment because his
liability is ex delicto and not ex contractu.
Secretary or the President
6. Minors under patria potestas are obliged to obey
NOTE: Generally, a debtor cannot be imprisoned for failure
their parents
to pay his debt. However, if he contracted his debt through
fraud, he can be validly punished in a criminal action as his
EXCESSIVE FINES AND CRUEL AND responsibility arises not from the contract of loan but from
INHUMAN PUNISHMENTS commission of a crime. (Lozano v. Martinez, G.R. No. L-
63419, Dec.18, 1986)
Coverage
RIGHT AGAINST DOUBLE JEOPARDY
It has long been held that the prohibition of cruel and
unusual punishments is generally aimed at the form or Right against Double Jeopardy
character of the punishment rather than its severity in
respect of duration or amount, and applies to No person shall be twice put in jeopardy of
punishments which public sentiment has regarded as punishment for the same offense. If an act is punished
cruel or obsolete, for instance, those inflicted at the by a law and an ordinance, conviction or acquittal

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under either shall constitute a bar to another Q: Hans, a writer in Q Magazine, published an article
prosecution for the same act about Carlos illicit affairs with other women. The
magazine also happened to have a website where the
Requisites same article was published. Carlo then filed a libel
case against Hans both under the Revised Penal Code
1. Valid complaint or information and the Cybercrime Law. Is there a violation of the
proscription against double jeopardy?
NOTE: Double jeopardy does not attach in preliminary
investigation. A: Yes. There should be no question that if the
published material on print, said to be libelous, is again
2. Filed before a competent court posted online or vice versa, that identical material
3. To which the defendant had pleaded cannot be the subject of two separate libels. The two
4. Defendant was previously acquitted or convicted, offenses, one, a violation of Art. 353 of the Revised
or the case dismissed or otherwise terminated Penal Code and the other a violation of Sec. 4(c)(4) of
without his express consent R.A. 10175 involve essentially the same elements and
are in fact one and the same offense. Online libel
NOTE: Consent of the accused to the dismissal cannot be
implied or presumed; it must be expressed as to have no under Sec. 4(c)(4) is not a new crime but is one already
doubt as to the accuseds conformity. (Caes v. Intermediate punished under the Art. 353. Sec. 4(c)(4) merely
Appellate Court, 179 SCRA 54) establishes the computer system as another means of
publication. Charging the offender under both laws
When the dismissal is made at the instance of the accused, would be a blatant violation of the proscription against
there is no double jeopardy. (People v. Quizada, 160 SCRA double jeopardy. (Disini v. Secretary of Justice, G.R. No.
516) 203335, Feb. 11, 2014)
The grant of a demurrer to evidence is equivalent to an
Doctrine of Supervening Event
acquittal, and any further prosecution of the accused would
violate the constitutional proscription against double
jeopardy. (San Vicente v. People, G.R. No. 132081, November The accused may still be prosecuted for another
28, 2002) offense if a subsequent development changes the
character of the first indictment under which he may
Related protections provided by the right against have already been charged or convicted
double jeopardy
Q: Jet was convicted for Reckless Imprudence
1. Against a second prosecution for the same Resulting in Slight Physical Injuries. Can he still be
offense after acquittal; prosecuted for Reckless Imprudence Resulting in
2. Against a second prosecution for the same Homicide and Damage to Property arising from the
offense after conviction; same incident?
3. Against multiple punishments for the same
offense. A: No. The doctrine that reckless imprudence under
Art. 365 is a single quasi-offense by itself and not
Exceptions to the right against double jeopardy merely a means to commit other crimes such that
conviction or acquittal of such quasi-offense bars
1. Dismissal is based on insufficiency of evidence; subsequent prosecution for the same quasi-offense,
2. Denial of the right to speedy trial regardless of its various resulting acts. Reason and
3. Of course, on occasions, a motion for precedent both coincide in that once convicted or
reconsideration after an acquittal is possible. But acquitted of a specific act of reckless imprudence, the
the grounds are exceptional and narrow as when accused may not be prosecuted again for that same
the court that absolved the accused gravely act. For the essence of the quasi offense of criminal
abused its discretion, resulting in loss of negligence under Art. 365 of the Revised Penal Code
jurisdiction, or when a mistrial has occured. In any lies in the execution of an imprudent or negligent act
of such cases, the State masy assail the decision that, if intentionally done, would be punishable as a
by special civil action of certiorari under Rule 65 felony. The law penalizes thus the negligent or careless
(People v. Tria-Triona, 462 SCRA 463, July 15, act, not the result thereof. The gravity of the
2005) consequence is only taken into account to determine
4. An appeal from order of dismissal shall not the penalty, it does not qualify the substance of the
constitute double jeopardy offense. And, as the careless act is single, whether the
injurious result should affect one person or several

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persons, the offense (criminal negligence) remains one jeopardy of being convicted of the crime of serious
and the same, and cannot be split into different crimes physical injuries; and that another prosecution for
and prosecutions. (Jason Ivler y Aguilar v. Hon. Maria homicide for the same act under the amended
Rowena Modesto-San Pedro, G.R. No. 172716, information would constitute double