CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
July 17, 2018 – Yasmine Ibay
STRUCTURE AND POWERS OF GOVERNMENT
I. IN GENERAL
A. Political Law Defined
MACARIOLA vs. ASUNCION
114 SCRA 77 (1982)
Political Law has been defined as that branch of public law which deals
with the organization and operation of the governmental organs of the
State and define the relations of the state with the inhabitants of its
territory (People vs. Perfecto [1922]). It may be recalled that political
law embraces constitutional law, law of public corporations,
administrative law including the law on public officers and elections.
B. Constitutional Law Defined
1. That branch of the public law of a state which treats of the
organization and frame of government, the organs and
powers of sovereignty, the distribution of political and
governmental authorities and functions, the fundamental
principles which are to regulate the relations of government
and subject, and which prescribes generally the plan and
method according to which the public affairs of the state are
to be administered (Black’s Law Dictionary).
2. That department of the science of law which treats of
constitutions, their establishment, construction, and
interpretation, and of the validity of legal enactments as
tested by the criterion of conformity to the fundamental law
(Black’s Law Dictionary).
C. Constitution Defined
The Constitution is not a document that provides in express terms the
listing of what government powers are. The powers of the government
are inherent. If there are specific provisions in the Constitution
respecting a particular type or kind of power, it is a limitation rather
than a grant.
*Additional Note:
It is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and
unalterable except by the authority from which it emanates. It is the
fundamental and paramount law of the nation. It prescribes the
permanent framework of a system of government, assigns to the
different departments their respective powers and duties, and
establishes certain fixed principles on which government is founded. It
is a supreme law to which all other laws must conform and in
accordance with which all private rights must be determined and all
public authority administered (Manila Prince Hotel vs. GSIS).
DOCTRINE OF CONSTITUTIONAL SUPREMACY
If a law or contract violates any norm of the constitution, that law or
contract, whether promulgated by the legislative or by the executive
branch or entered into by private persons for private purposes, is null
and void and without any force and effect. Since the Constitution is the
fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract (Manila Prince Hotel vs. GSIS).
 Parts of a Constitution
1. Constitution of government
Article VI (Legislative), Article VII (Executive), Article VIII
(Judicial), Article IX (Constitutional Commissions)
2. Constitution of liberties
Article 3 (Bill of Rights)
3. Constitution of sovereignty
Articles on Amendment and Revision
 Characteristics of the 1987 Constitution
1. It is written.
2. It is enacted and not evolved.
- In common law countries where constitutional principles
evolved through their political history. In the Philippines,
it is made effective at a definite point in time.
3. It is rigid.
- It can only be amended or revised based on the strict
terms of the provisions of the Constitution on
amendment or revision.
II. BACKGROUND OF THE PRESENT CONSTITUTION
A. The February 1986 Revolution and the Proclamation of the
Provisional Constitution
B. Adoption and Effectivity of the Present Constitution
The 1987 Constitution was made effective on plebiscite day. This was
based on Proclamation No. 3 which was the Provisional Constitution.
Proclamation No. 1 of Corazon Aquino was the establishment of the
Revolutionary Government. Proclamation No. 3 was the so-called
Freedom Constitution where most of the provisions in the 1973
Constitution were repealed. One of the provisions in the Freedom
Constitution required the passage of a new drafting and eventual
passage of the new constitution. It says “which shall become effective
on the day of the plebiscite.”
Previous constitutions starting with 1935 Constitution will tell us that it
had become effective upon the issuance of the Presidential
Proclamation declaring the votes cast in the plebiscite which were more
for “yes” than for “no”. In the political exercise of a plebiscite, there has
to be some delay brought about by the counting, canvassing, and final
Page 1
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
results tabulation and so the proclamation will be on some other future
date.
The same was true with the 1973 Constitution as well as the 1976 and
1981 amendments thereto. But in the 1987 because the Freedom
Constitution says it would be effective on plebiscite day, then it would
be effective on that day. It is February 2, 1987. So there was a change in
the rationalization of the SC from plebiscite day. This time Justice
Teehankee said that the counting and the canvassing of the votes cast
during plebiscite is a mere mathematical computation of the wish of
the sovereign. It was made effective on the plebiscite day when votes
were cast for its affirmation.
 Compared with Effectivity of Statutes
RULE: There shall be publication. But in the Constitution there is no
need of such publication.
III. JUDICIAL ELABORATION OF THE CONSTITUTION
A. Construction
RULE 1: The provisions in the Constitution are deemed to be SELF-
EXECUTING.
MANILA PRINCE HOTEL vs. GSIS
267 SCRA 408 (1997)
Section 10, Article 12 of the Constitution was allegedly violated in the
sale of the sale of GSIS shares to non-filipinos. The private respondents
argue that the Constitution is not applicable.
RULING: Hence, unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the presumption now is
that all provisions of the constitution are self-executing. If the
constitutional provisions are treated as requiring legislation instead of
self-executing, the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law.
ATTY. MONTEJO: The reason was because the Constitution is a direct
source of rights. There is no need for a congressional act, legislative act,
or enabling law to make the rights under the constitution claimable.
A provision which lays down a general principle, such as those found in
Art. II of the 1987 Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes operative without
the aid of supplementary or enabling legislation, or that which supplies
sufficient rule by means of which the right it grants may be enjoyed or
protected, is self-executing. Thus a constitutional provision is self-
executing if the nature and extent of the right conferred and the
liability imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there
is no language indicating that the subject is referred to the legislature
for action.
 Other examples of non self-executing provisions
 Initiative and Referendum
Article VI, Section 32. The Congress shall, as early as possible, provide
for a system of initiative and referendum, and the exceptions
therefrom, whereby the people can directly propose and enact laws or
approve or reject any act or law or part thereof passed by the Congress
or local legislative body after the registration of a petition therefor
signed by at least ten per centum of the total number of registered
voters, of which every legislative district must be represented by at
least three per centum of the registered voters thereof.
The Congress shall enact a law for the people to exercise the right of
initiative and referendum. That is an express provision requiring a
legislative enactment therefore it is not self-executing.
GENERAL RULE: The presumption is that there is no need for an
enabling law for rights in the constitution to be claimable. (From 2017
TSN)
EXCEPTION: The only exception is when, by intent or by express
requirement of the provision, an enabling law must have to be passed
by congress.
RULE 2: VERBA LEGIS RULE (Plain Language Rule)
GENERAL RULE: The intent of the framers is its plain language or
normal meaning. The Constitution is not a document reserved for
lawyers, law students, or those knowledgeable in law. It is for
everybody to understand.
EXCEPTION: The intent is to use the technical meaning.
 Residence - Residence as qualification for public office under
the 1987 Constitution means that you have to be a
domiciliary of that place.
DOMINO vs. COMELEC
310 SCRA 546 (1999)
It is doctrinally settled that the term residence, as used in the law
prescribing the qualifications for suffrage and for elective office, means
the same thing as domicile.
DAVID v. SET
803 SCRA 435 (2016)
The Constitution should, therefore, be appreciated and read as a
singular, whole unit ut magis valeat quam pereat. Each provision must
be understood and effected in a way that gives life to all that the
Constitution contains, from its foundational principles to its finest
fixings. The intent of the framers must be taken into consideration.
It is a well-established rule in constitutional construction that no one
provision of the Constitution is to be separated from all the others, to
be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted
as to effectuate the great purposes of the instrument. Sections bearing
Page 2
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
on a particular subject should be considered and interpreted together
as to effectuate the whole purpose of the Constitution and one section
is not to be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together.
Atty. Montejo on the Sereno Quo Warranto Case: In one of the reasons
for granting the QW, the SC has applied the statutory construction rule
of the mandatory word “shall” and the permissive word “may”. Yes, the
constitutional provision on impeachment uses the word “may”, but the
thing is that what is the intent of the entire Constitution with respect to
these impeachable officers? Yes, the SC cited it says “may” because the
President and Vice-President can be removed through an election
contest or QW before the PET.
But is there any other provision referring to the OTHER impeachable
officers who could be removed other than a QW petition? Yes, that’s
the rule on statutory construction but is that applicable also when you
view the Constitution? Just like in ordinary statutes, words and phrases
are normally in their technical meaning. That is why most statutes have
the definition of terms. They are not to be understood in their ordinary
plain language because they are technically defined. But the
Constitution is supposed to be understood in their ordinary meaning.
But since the SC said that that is the reason then so will we. 
*Other Rules in DAVID vs. SET (2016)
In relation with intent, it is deemed written in the Constitution. While
the decisions of the SC are not forever, they can be changed as of the
moment under the DOCTRINE OF RELATIVE CONSTITUTIONALITY.
Also, international agreements or those duly accepted principles in
international law should be deemed forming part of interpretations of
the Constitution and so will be on the Local Statutes on the matter.
David, written by Leonen, has stretched it that far because of the issue
of natural-born.
How should we view natural-born citizenship? And because of the
earlier ruling in Poe vs. Comelec, Justice Perez wrote that the intent,
citing our local law on Rules on Adoption, you can only adopt a Filipino
Citizen. If Grace Poe was adopted, then the presumption is that she is a
Filipino. Also based on international law/declarations regarding the
rights of children, it would require the State to give permanent
residence/citizenship to foundlings or children born in their respective
States.
Construing the word “natural-born citizens” is found in Article 4 of the
Constitution. It also considers international treaties concerning
generally accepted principles in international law whether or not we
are signatories or not under the DOCTRINE OF INCORPORATION or
TRANSFORMATION. They will form part of our judicial system and
therefore they should be consulted or read into when interpreting
Constitutional Provisions.
 Reclusion Perpetua - In the Bill of Rights, the threshold
when right to bail is a matter of right or discretion is the
penalty of reclusion perpetua. The word reclusion perpetua
is not in its technical meaning. It is supposed to be
understood in its loose meaning, to include life
imprisonment. If the person is charged with a crime
punishable by life imprisonment or higher, then bail
becomes a matter of discretion. 

RULE 3: It shall be construed PROSPECTIVELY.
GENERAL RULE: The Constitution is not a penal statute. It has is no
retroactive application.
 Miranda Rule
The Miranda Rule first came into our judicial system under the 1973
Constitution. The case of Miranda vs Arizona, a late 1960s decision that
have been incorporated on the 1935(?). any extra-judicial confession
which do not comply with the Miranda Warnings and Miranda Rule
taken before the efficacy of the said rule provided, that they were
coerced, compelled, or tortured are admissible despite non-compliance
with the Miranda Rule. It does not apply retroactively.
EXCEPTION: Retroactive Application
 Natural-born Citizenship
In the 1973 Constitution, the definition of natural-born is:
Section 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the
adoption of this Constitution.
(2) Those whose fathers and mothers are citizens of the
Philippines.
(3) Those who elect Philippine citizenship pursuant to the
provisions of the Constitution of nineteen hundred and
thirty-five.
(4) Those who are naturalized in accordance with law.
Section 4. A natural-born citizen is one who is a citizen of the
Philippines from birth without having to perform any act to acquire or
perfect his Philippine citizenship.
This applies to those who were born of a Filipino mother and a
foreigner father, legitimately, under the 1935 Constitution.
There was seemingly a doubtful situation involving these children
(children which have elected Philippine citizenship upon reaching the
age of majority under the 1973 Constitution). The argument being,
when they elect, they were performing an act to perfect or acquire
citizenship. It was doubtful because there was no definition of natural-
born in the 1935 Constitution. In order to avoid any confusion, the 1987
Constitution expanded the meaning of a natural-born, to wit:
Section 1. The following are citizens of the Philippines:
Page 3
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
(1) Those who are citizens of the Philippines at the time of the
adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of the
Philippines;
(3) Those born before January 17, 1973, of Filipino mothers,
who elect Philippine Citizenship upon reaching the age of
majority; and
(4) Those who are naturalized in the accordance with law.
Section 2. Natural-born citizens are those who are citizens of the
Philippines from birth without having to perform any act to acquire or
perfect their Philippine citizenship. Those who elect Philippine
citizenship in accordance with paragraph (3), Section 1 hereof shall be
deemed natural-born citizens.
Those provisions are applied RETROACTIVELY for those children in order
to avoid the confusion of WON their act of electing citizenship upon
reaching the age of majority still makes them a natural-born.
RULE 4: Rule on Dynamism
The Constitution must be construed to be DYNAMIC. It must be capable
of being interpreted not only to meet what is being asked of in the
present but also the uncertainties and vagaries of the future.
This could be shown by the interpretation of the SC over the SAME
provision. The interpretation in one time may be different in some
other time.
It is said that one of the measures of a good constitution is that it is
capable of being interpreted not only to accommodate the demands of
the present but also those to be demandable in the future. (From 2017
TSN)
In relation to this is your understanding of the: THE DOCTRINE OF
RELATIVE CONSTITUTIONALITY. What does that mean?
When the Supreme Court interprets a law, statute, or an act in relation
to a constitutional provision to be not valid under the constitution at
present, it does not mean that the ruling will remain forever.
Conversely, if the Supreme Court says that it is valid in the constitution
as of the moment that does not mean that it will remain to be valid
forever.
As they say there is no forever. When the circumstances have been
altered or there are new developments say in human society or in
human behavior, that ruling may change depending on the demands of
that particular time.
If you remember the flag salute cases, what was the first thing that you
could remember in these cases where Jehovah‘s witnesses were not
required to salute the flag? The previous ruling was that it does not
violate their right under the freedom to exercise religion clause. But
when the same question was raised 16 years after, the Supreme Court
ruling changed, saying that it violates the free exercise clause.
What has changed? Petitioners are the same. Religion is the same. The
claim is the same. The government is still the same. The circumstances
have altered. The evil sought to be avoided in the earlier decision has
not come to pass or it could not instill the sense of patriotism to
children simply by compelling them to salute the flag. There could be
other ways of instilling patriotism on children. The fear that there
would be a generation of children lacking in that sense [of patriotism
did not come to pass. And so the constitution should be capable of
being interpreted not only to meet the questions of the present
 Nature of the Constitution
It is not a document containing in express or explicit terms the powers
of the government. It admits of residual powers. Powers of the
government are executive, judicial, or legislative.
The provisions relating to each of the powers refer to the limitation
rather than the grant.
ABAS KIDA vs. SENATE
The ARMM elections were not held. The President appointed OICs for
the elective positions affected instead
ISSUE: Whether the President can do that.
RULING: Yes. The President has the power to ensure that laws are
implemented. Part of implementation is to ensure that there is
continuity in the governance of the ARMM.
B. Theory of Judicial Review
 Separation of Powers
This is based on the concept of separation of powers. Before the 1987
Constitution, judicial review has always been a theory. The first case on
judicial review was Angara vs. Electoral Commission which was decided
under the 1935 Constitution.
ANGARA vs. ELECTORAL COMMISSION
63 PHIL 139 (1936)
ISSUE: Who has the power to fix the date for filing of election protest?
Is it the Congress or the Electoral Commission?
In this case, the Supreme Court discussed what separation of powers is
and its role to ensure that such separation is maintained.
From Full Text: The separation of powers is a fundamental principle in
our system of government. It obtains not through express provision but
by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction,
Page 4
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
and is supreme within its own sphere. But it does not follow from the
fact that the three powers are to be kept separate and distinct that the
Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an
elaborate system of checks and balances to secure coordination in the
workings of the various departments of the government. xxx
And the judiciary in turn, with the Supreme Court as the final arbiter,
effectively checks the other departments in the exercise of its power to
determine the law, and hence to declare executive and legislative acts
void if violative of the Constitution.
If there is a violation of the separation of powers, or encroachment,
there must have be an arbiter to interpret whether there is such a
violation. That is a task of the Supreme Court.
The emphasis is on the duty and not on the power because it is the
duty of the Court to ensure that the separation is maintained. When
the court exercises judicial review, it is not imposing its will on the
other co-equal branches; rather it is performing its obligation to make
sure that the separation principle is maintained.
 Presumption of Constitutionality
In the 1987 Constitution, the Court has been given the power to review
acts of other co-equal branches or other officers.
Article VIII, Section 1 of the 1987 Constitution. The judicial power shall
be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.
The Section 1, Article VIII definition of judicial power has been
expanded to include JUDICIAL REVIEW.
First part: Refers to the standard definition of judicial power which is
the power of the court to settle actual controversies.
Second part: The judicial review power to determine whether there is
grave abuse of discretion amounting to lack or excess of jurisdiction.
Because of the PRINCIPLE OF CO-EQUALITY as well as the
PRESUMPTION OF CONSTITUTIONALITY, an act, law or statute or
imposition by the officers of the other branches of the government is
presumed to be not unconstitutional.
C. Conditions for the Exercise of Judicial Review
Courts only exercise judicial review when there is clear violation of the
principle of separation of powers and when these four conditions are
present:
1. There must be an appropriate case or actual controversy.
The appropriate case is sometimes confused with appropriate petition.
Appropriateness of the case means that the issue is ripe for judicial
determination. There must have to be a conflict of rights. That conflict
pertains to a power which is claimed not have been properly exercised.
It is not between two individuals but between the power of the state or
one of its officers or branch.
To raise a constitutional question, there has to a appropriate/proper
petition filed.
 In most cases it is the Rule 65 petition.
 Petition for prohibition or mandamus under Rule 65
 However, it can also be raised as a defense. For example, in
a criminal case, the question of constitutionality can be
raised as defense. It is not always in Rule 65 petition.
Again, the issue must be ripe for judicial determination because that is
the reason why a petition for Declaratory Relief will not be normally
entertained by the Supreme Court. Not only because it is or would be
anticipatory but also Supreme Court has no jurisdiction over petition
for Declaratory Relief.
2. It must be raised by the proper party/legal standing.
This is where most of the cases are avoided because the party
petitioner has no legal standing. Legal standing or locus standi is
equivalent to a real party in interest in civil cases. The difference
between a civil case from judicial review are the following:
CIVIL CASES JUDICIAL REVIEW
Legal standing or Real party in interest
locus standi
It involves private right. It involves a public right
The petitioner brings the suit not
only for himself solely but also for
anybody in the public which maybe
or is similarly situated.
However, the injury must be
personal, substantial and material
as to him because of the
prohibition on third-party
standing.
PROHIBITION ON THIRD-PARTY STANDING - A third-party cannot bring
a suit that would benefit another. It is not personal to him.
Page 5
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
There must have to be actual injury or impending and inevitable injury
if the constitutional question is not raised and not settled because it is
personal.
 Kinds of Legal Standing
1. Taxpayer’s suit – a taxpayer is given a legal standing when
the question involves the constitutionality of a public
spending. He is interested because the public spending is for
constitutional reasons.
2. Voter’s suit – a voter may be allowed to have legal standing
if the issue raised pertains to his discretions as a voter and
right to vote.
3. Legislator’s standing – a member of Congress who approved
a particular legislation may actually raise question of
constitutionality of a bill which had been enacted into law if
it affected his prerogatives as a member of congress.
Example: A question on the passage of a bill as such as when
the bicameral conference committee version included
provisions which were not approved by both the houses of
the Congress.
 Liberal Rule on Legal Standing
Despite the fact that a party has no legal standing, the Supreme Court
in some cases applied the liberal rule on legal standing. The SC has
resolved the constitutional question under the DOCTRINE OF
TRANSCENDENTAL IMPORTANCE.
Under this doctrine the Supreme Court can resolve the case when it
involves public funds, clear violation of the constitution and there is no
party with legal standing. If the issue is of Transcendental Importance,
the SC will necessarily exercise judicial review.
3. It must be raised at the earliest opportunity.
The discussion here admits of other related matters:
 Lower courts can exercise judicial review
If you are made liable to a law in the first instance, you can raise as a
defense or as a cause of action at the first instance the issue of
constitutionality.
That is how you raise the issue at the earliest opportunity before it
becomes moot and academic. The parties can actually raise a
constitutional question at that level.
However, the Supreme Court warns that lower courts must refuse, if
they could, avoid to resolve the constitutional question. This is in
deference to fact that how can a lower court declare a law, enacted by
the Congress and signed into by the President, be declared
unconstitutional. But despite such, the SC said that it does not mean
that the lower court has no jurisdiction. The lower courts have
jurisdiction under Section 5, 2(a), Article VIII of the 1987 Constitution.
Article VIII, Section 5. The Supreme Court shall have the following
powers:
xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as
the law or the Rules of Court may provide, final judgments and orders
of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.
xxx
Decisions of lower courts on constitutional matters are eventually
reviewable by the SC.
 Mootness
On the issue of mootness, the Supreme Court can still resolve a moot
issue under the following instances:
1. There is a grave violation of the constitution;
2. Exceptional character of the issue or paramount public
interest is involved;
3. Resolution is required to formulate controlling principles to
guide the bench and the bar; or
4. The case is capable of repetition yet evading review.
In such cases, the resolution is not for the benefit of the parties
anymore because of a supervening event thereby making the issue
moot. The Court may, under its TEACHING OR SYMBOLIC FUNCTION,
still exercise judicial review.
Judicial review is a standard bar question, it will involve your
understanding of what judicial review is, what the conditions are and
whether they are present or not and resolving the case accordingly. If
the facts of the case do not make a case already decided, it is always on
the prudent side to dismiss the decision by arguing that one, some or
all of the conditions are not present. But if the facts are similar to a case
already decided, then answer accordingly. When there is no legal
standing, do not apply Transcendental Importance. If it is already moot,
do not apply the teaching or symbolic function.
4. It must be the very lis mota of the case.
The issue must the VERY CAUSE of the case. In other cases, it is
characterized as there is no way that a case can be disposed of without
resolving the constitutional question. If the constitutional question can
be avoided, then such is not the very lis mota of the case. But if it is the
Page 6
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
very cause for the court to resolve the case, then it becomes the very lis
mota of the case.
Thus, the following are the conditions for the exercise of judicial
review:
1. There must be an appropriate case or actual controversy;
2. It must be raised by the proper party/legal standing;
3. It must be raised at the earliest opportunity; and
4. It must be the very lis mota of the case.
D. Functions of Judicial Review: Checking, Legitimating and
Symbolic
* Editor’s Note: The discussions below are lifted from the 2017 TSN.
1. Checking
The act in question is nullified for being inconsistent with the
Constitution.
2. Legitimating
Legitimating is exercised when there is no other way for the court
to dispose of the petition but to resolve the unconditional
question or issue. In the end, the SC will declare the act or law
complained of as not violative of the Constitution. The Court will
do this and it will bring, at least for the moment, a rule that it is
not violative of the Constitution.
3. Symbolic
This is used when the issue is moot or academic or there is no
need to resolve the issue because either one, some or all of the
conditions are not present but still the court opt to resolve the
issue, so that there will be some rule promulgated to guide the
bench, the bar and the public. To do so would be to avoid the
repetition of petitions filed in the future involving similar
constitutional questions.
E. All Courts Can Exercise Judicial Review
July 18, 2018 – June Ceballos
F. Effects of Declaration of Unconstitutionality
Article 7, New Civil Code. Laws are repealed only by subsequent ones,
and their violation or non-observance shall not be excused by disuse, or
custom or practice to the contrary.
When the courts declared a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid
only when they are not contrary to the laws or the Constitution. (5a)
 Operative Fact Doctrine
Under Article 7 of the New Civil Code, second paragraph states the
traditional view when the law is declared unconstitutional.
The constitution shall govern when the law shall be void. The effect of
the declaration of unconstitutionality, therefore, makes—any law for
that matter—the law is deemed not to have been enacted at all, never
been a part of our legal system. Therefore, it will not be the basis of any
right, obligation, office or liabilities.
However, because of the so-called existence of that law, that the public
may have acted accordingly—whether there is a prohibition to do an
act, or a command to perform an act—the public generally relying on
the law before it was considered unconstitutional, that period of time
that the law is deemed in effect or was effective is considered as an
operative fact.
And therefore, the principle is that, as an exception to that second
paragraph rule of Article 7, the law or the effects of the law prior to the
declaration of unconstitutionality will have to be given such effect.
That operative fact doctrine is not based on positive rule of law; that is
a rule of equity. Then again, the problem is when do we apply that?
If there is, again, a prior case where the operative fact doctrine has
been applied, and so we apply it as an exception. Otherwise, we apply
the traditional effect that the law would not be a basis of anything,
simply because it is deemed not to have been enacted, not to have
been part of our legal system.
Perhaps the most recent of these laws, which have been declared
unconstitutional, would be your PDAF and your DAP cases.
What should happen, to those moneys or funds, which were actually
spent, in relation to the PDAF provision and to the DAP or the
Disbursement Acceleration Program of the Executive? Should they be
returned if it were to be subjected to COA audit, should it be
disallowed, or should notice of disallowance be issued and the
responsible officers who received them and spent them would have to
return?
The answer is, it has been given operative fact application, for so long
as they were spent validly. Of course, we all know that DAP, there was a
finding of an illegal or unconstitutional transfer of funds, but that was
the extent of why it was declared to be unconstitutional. And since
there was nothing more found as to its actual spending, that it was not
misused, then it may no longer be commanded to be returned.
As opposed to the so-called PDAF, there are two types of expenditures
there. Some were already spent in accordance with the value, subject
in a value project, but some were so-called—obviously they were non-
existing—beneficiaries. So as to that, the operative fact doctrine, if
applied, will not validate what is supposed to be an invalid act.
If the law declares or if the law commands something to be done or not
to be performed, and an act was done contrary to the terms of that
law, the fact that the law was defective, any illegal act done or not
performed under that law will never be invalidated or validated simply
Page 7
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
because the law was declared unconstitutional. The operative fact
doctrine does not operate to validate what, by essence, is an invalid
act.
G. Political Questions vs. Justiciable Questions
Final item in your outline respecting judicial review is the concept of
political question and justiciable question.
That has been raised as a matter respecting the expanded definition of
judicial power, which now includes judicial review. Whereas before, we
said it was just a theory, now it is provided in the constitution in
express terms.
So, the question has been, is the political question doctrine concept
obliterated by the expanded definition of judicial review in the present
constitution?
The cases would say that while the political question concept remains,
it is largely diminished. Whereas before, when it was not in the
constitution in express terms, the political branches of government can
easily refuse judicial inquiry by the simple claim that the matter was
beyond the court’s jurisdiction—meaning it is a political question,
which full discretionary authority has been delegated to them by the
sovereign authority to decide.
But even then, even the diminished character of the political question
doctrine, there are still instances or acts of the political branches which
remain today as political questions and can never be the subject of
judicial inquiry.
 Political Questions in the Executive Branch
For the Executive, any matter pertaining to foreign relations can never
be the subject of any judicial inquiry. The President, being the head of
state, the representative of the state, and any matter relating to foreign
relations, respecting the policy of foreign relations, the wisdom of it will
never be a subject of a judicial review.
That is why even if your president has been cursing the United States,
the European Union, all the other what we know as democratic states,
and is leaning towards China, Russia, he can never be questioned
before the courts because that is foreign policy. Gusto man niya’g mga
communist country, we cannot do anything about it. That is part of his
policy; it is based on his wisdom.
 Political Questions in the Legislative Branch
With respect to the Congress or legislative branch, while Article 6 and
other provisions in the Constitution limiting Article 3, limits
congressional authority. (Sorry di jud masabtan)
But as to what Congress would legislate on, provided not limited by the
constitution, and when it would legislate, is a question of policy. You
cannot, therefore, compel Congress to enact a law on a particular
subject matter if it does not want to.
The only limitations again are those provided in the Constitution.
Congress cannot enact something which the Constitution prohibits. But
if it is not prohibited, you cannot also file a petition for mandamus
compelling Congress to enact a law to protect men from violence
against their women or from their women. Cannot because that is
based on policy consideration, the wisdom is with Congress, to ever
enact a law if they see fit, that is still a political question. Though
diminished again, is not totally lost.
IV. THE PHILIPPINES AS A STATE
A. State Defined
B. Territory
Perhaps what comes to mind is the PCA Case No. 1 at 2013-19 decided
on July 12, 2016. This is the case of the Republic of the Philippines vs.
People’s Republic of China. This was promulgated and issued by the
Permanent Court of Arbitration, and I don’t know why it’s called an
arbitral ruling but that’s how it is referred to.
There were 15 submissions by the Philippines because the plaintiff
here—the term was complainant—was the Philippines, and the claim
was largely made because of the claim over the Spratly group of
islands. Of the 15 submissions, there were rulings on 7, definitive
rulings. The court withheld the main view(?) ruling on the 8 more.
It would seem that we won over China and that the claim is, or the
claimed territory is part of the Philippine territory. That is not accurate.
What the ruling practically said was that the claim of China had no legal
basis. So China is claiming, this is ours because it is traceable to our
maps from the Ming Dynasty.
But the ruling practically said that the UNCLOS or the United Nations
Convention on the Law on the Seas supersedes any claim based on
historic right or legal item because that is the effective and applicable
convention or treaty respecting the law on the seas.
So China cannot claim it, does it follow that it is now part of Philippine
territory? It does not follow.
Because if you remember your concept of Philippine territory under
Article 1, since we follow the ARCHIPELAGIC DOCTRINE, any
continental shelf is supposed to be part of our territory and from the
so-called baselines of the terrestrial domains, there is, base-points
where you connect straight line (because we follow straight baseline
method) that is where the so-called 12 nautical miles for territorial sea
and the 200-mile Exclusive Economic Zone is to be measured.
Of these islands, the question is, if this is for example one island being
claimed, can this be the basis of that Exclusive Economic Zone
measurement?
And a lot of the submissions and the rulings were most of these islands
are rock formation. And you can only establish—based on article in the
Convention—of a continental shelf to be included in the territory, as
well as Exclusive Economic Zone, if the rock formation is capable of
Page 8
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
human habitation and economic life. If the rock formation is not
capable of both, it is never considered part of, but can generate an
Exclusive Economic Zone or a continental shelf.
So in short, mga bato ra na sila, mura rag mga bato sa dagat. So you
cannot make any measurement there. So that’s basically why there are
only two islands there, the Mischief Reef and the second, Thomas Shoal
which were considered found to be within the 200-mile Exclusive
Economic Zone of the Philippines based on the measurement of the
Convention, because there is no overlapping of the Exclusive Economic
Zone.
This brings us to that point: the 12 nautical miles, no problem, it will be
territorial sea. But up to the 200-mile limit, it’s Exclusive Economic
Zone, where, what is technically reserved to the state to which it
belongs, is exclusive economic exploitation or exploration. And
therefore, outside the first 12 nautical miles, any other activity outside
of economic exploration or exploitation is allowable.
So for example it is outside of that or within the Exclusive Economic
Zone of the Philippines, and China built a military structure, is that an
activity involving economic exploration or exploitation? Gira-gira man
na, so that’s actually an issue. And if there is an overlapping of the 200-
miles Exclusive Economic Zone, there has to be some settlement to be
made.
The only reason why that those two islands were considered within is
because there is no issue or dispute as to encroachment. As to the rest,
there are still issues. That’s why it’s not accurate to say, “Ah ato to sila.”
So that’s your Philippines vs. China, PCA Case No. 2013-19 of July 12,
2016.
Now the case of SAGUISAG vs. OCHOA (2016) speaks of the
relationship of the US and the Philippines, respecting the territories
where they shall operate under the Visiting Forces Agreement as
implemented further by EDCA.
The clarification under the Mutual Defense Treaty, the understanding
before, because the peace and order situation within the military bases
would be under the proposed martial of the US government, the belief
was that and it was established or known policy that the “sovereignty”
over that territory belongs to the US.
I don’t know if you still remember one of the old cases in “Immunity
from Suit” claimable by a foreign state, the case of U.S. vs. Guinto, that
is the decision involving six cases. One of the cases there involve a civil
suit for damages filed against the military personnel of Clark Air Field
because Filipinos who went over the perimeter fence were bitten by US
military dogs and the claim was that they were—actually the dogs were
commanded to bite them. So they claim civil claim for damages.
So it was discussed whether the foreign US military personnel could
claim immunity from suit, being a public officer of a foreign sovereign,
who is performing an official duty and function. Without any malice or
bad faith, our Supreme Court sustained that, and part of the discussion
was that they have control over the territory. That was under the
Mutual Defense Treaty.
We all know that the Visiting Forces Agreement is a different kind of an
agreement. They are not here on a permanent basis because they can
no longer maintain military bases here. They are only here visiting, 365
days a year, or the entire duration of the efficacy of the VFA. Bisita lang
man, they are not permanent residents here, visitors lang, kaya lang,
whole year round. 
So in that case of SAGUISAG, it was raised or discussed who supervises,
oversees, or has authority over these bases where the visiting forces
are stationed during their visit. The Supreme Court clarified that it now
belongs to the Philippine government because under EDCA, sovereignty
over these places where they are found should remain with the
Philippines, no longer with the US government.
Unlike the arrangement before under the Mutual Defense Treaty,
because of the more or less permanent character of their stay in their
bases, they control as far as sovereignty in that territory they are
occupying. But no longer now because what is allowed under the EDCA
is only access and use of US visiting forces in the area that they are
visiting.
C. People
1. Different Meaning of the Word “People” under the
Constitution
2. Citizenship
a. Who are Citizens
When we say “people,” we talk about citizenship. It’s usual bar exam
question again, with respect or in relation to qualification to public
office because of the requirement of natural-born citizen.
Case of TECSON vs. COMELEC (2004) and the case of DAVID vs. SET
(2016) is a good read on the historical perspective on Philippine
citizenship. Even if they are lengthy decisions, at least you can have a
historical perspective on who Philippine citizens are.
 Filipino Citizens under the 1935 Constitution
Section 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippine Islands at the time of the
adoption of this Constitution.
(2) Those born in the Philippine Islands of foreign parents who,
before the adoption of this Constitution, had been elected to
public office in the Philippine Islands.
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and, upon
reaching the age of majority, elect Philippine citizenship.
Page 9
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
(5) Those who are naturalized in accordance with law.
Under item 1 of the section on citizenship of the 1935 Constitution,
“Those who are citizens at the time of the adoption of 1935
constitution are considered as citizens of the Philippines.” The problem
is that who are those individuals?
We go back and there is no definition of who is a Filipino citizen until
the Philippine Bill of 1902. Previous to that, there was none. We were
all indios and chonggos to the Spanish government. We have not
been called Filipinos.
After the Treaty of Paris where the Philippine Archipelago was sold by
Spain to the US, still there was no Filipino citizen by definition of law.
It was only again when the Philippine Bill of 1902 that “Filipino citizen”
as a term has been defined. Largely, it was referring to any person, an
inhabitant or not, who were covered by that Treaty of Paris sale and
there’s a cut-off date, April 1898, who are here, and who remained
here thereafter, are considered citizens of the Philippines.
That’s the reason why for a very short period of time, up to April 1899,
those who were born in the Philippines, or what we know at the
Philippines, regardless of citizenship of the parents, and who remain
here, were considered citizens of the Philippines using jus soli.
Citizenship by birth is either acquired under the jus soli principle (place
of birth) or jus sanguinis (by reason of blood relations).
So for that limited period of time, regardless of the citizenship of the
parents, if you are born here up to April 1899, and you remain here,
you can claim to be a Filipino citizen and those were the rulings of the
Supreme Court for those persons born under that same category. After
that, we follow the jus sanguinis as a rule of acquisition of citizenship by
birth.
Item number 2 in citizenship in the 1935 Constitution refers to “Those
who were born of foreign parents but at the time of the adoption of the
Constitution of ‘35 were already elected to public office.” They are
considered citizens of the Philippines. Not appointed, but elected.
Number 3, “Those whose fathers are citizens of the Philippines.”
Number 4, “Those whose mothers are and who elect Philippine
citizenship upon reaching the age of majority.”
That is how the provision reads, but a complete understanding of the
provision should have read, “Those whose mothers are Filipino citizens
and fathers are foreign nationals, legally married, or legitimate children
of Filipino mothers and foreigner fathers born before January 17,
1973.”
That’s supposed to be the complete provision for a complete
understanding. That is to be so because you all know that if the union
of the Filipino mother and a foreigner father is not valid, the child is a
citizen from birth, because the child follows the citizenship of the
Filipino mother. The reason being of course because the child will be
under the custody, parental care, and support of the mother.
Then here comes Fernando Poe Jr.’s case: the father is Filipino, not
married to a foreigner mother. The citizenship follows who? The
Filipino father or the foreigner mother?
The Supreme Court said the Filipino father because the ’35 Constitution
says, “Those whose fathers are citizens of the Philippines.” So even if
the child is not in the custody, support of the father, he will still follow
the citizenship of the father. The reasoning would be to give the child
the chance to be a Filipino citizen because citizenship is a privilege.
Short of saying, to be a Filipino citizen is a privilege.
That’s why the child, if born illegitimate, should follow the Filipino
parent, regardless of whether the child is under the care, custody, and
support of the Filipino parent.
b. Election of Philippine Citizenship
Last item there would be “Naturalized in accordance with the law.”
That being said, there are only two types of citizenship in the
Philippines, either you are natural born or you are naturalized.
The definition of who are natural born first came under the ‘73
constitution. There was no definition of who are natural born in the ’35.
So for that particular class of children, born legitimately of a Filipino
mother and a foreigner father under the 1935 Constitution, they must
have to elect Philippine citizenship upon reaching the age of majority.
During minority age, they are considered foreign nationals, with an
inchoate right to become a Filipino citizen if they do elect upon
reaching the age of majority to become a Filipino citizen because again
they are many privileges if you are a Filipino citizen. And so the election
is under Commonwealth Act 625, it is supposed to be a FORMAL ACT.
You have come across a lot of cases, because I presumed you read
them all, suggesting that there could be an INFORMAL MODE of
electing Philippine citizenship. What is this informal mode?
The informal mode refers to the performance of acts expressly showing
that the individual has chosen or elected to become a Filipino citizen,
like:
- Studying in Philippine schools (honor pa jud, hawod kaayo’s
Constitution);
- In some cases, has taken up a profession, because exercise
of profession in the Philippines is reserved to Filipino citizens
only;
- In some cases, the act of exercising the right to suffrage. If
you were indeed a Filipino and you want to be a Filipino, you
have been participating in the elections.
Page 10
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
So these are acts showing that the individual has effectively chosen to
become a Filipino citizen. But those are obiter; they are not the ruling in
the case. Because the ruling remains that the law requires a formal act
of election.
Under the law, the FORMAL ACT requires the execution of a sworn
election, meaning it is an affidavit. You state the circumstances: born of
a Filipino mother married to a foreigner father, on this date that you
have attained this age of majority that you elect Filipino citizenship,
sign it and have it notarized. That is your sworn election.
You are also required to execute so-called oath of allegiance, stating
that you, swear that you owe allegiance to the Philippines, the
Constitution, the duly constituted authorities, etc.
These two documents must have to be registered in the nearest local
civil registry. That will constitute the formal election and that must have
to be done within reasonable time or period after attaining the age of
majority.
IN RE: CHING
316 SCRA 1 (1999)
The one who took the bar exam, having failed to prove that he was a
Filipino citizen, having failed to show proof of election, the Supreme
Court made mention an old DOJ Circular saying that the election must
have to be done within the period of 3-years.
Supreme Court took note of that and said that, that is a reasonable
time but that is not the hard-and-fast rule. It could be more than 3-
years, for so long as the delay is justified or could be justified why it
took some time, more than the 3-year allowable period per DOJ, why
the election was a little bit delayed. What is important is that there was
an election.
MA vs. FERNANDEZ
625 SCRA 566 (2010)
The two documents which were executed immediately within
reasonable time upon reaching the age of majority were not registered.
There was failure to register them with the nearest local civil registry.
The Supreme Court said that the failure to register is not a fatal defect.
What is constitutive of election is the execution of the required
documents. The registration requirement is simply for recording
purposes of the election made within reasonable time from the
attainment of the age of majority.
So for long as it can be shown that there really was, like in the case of
Ma, the documents were considered ancient documents. The failure to
register was not considered.
 1935 Constitution in Relation to CA No. 63
Now the other matter with respect to the election would be the effect
of the 1935 Constitution in relation to Commonwealth Act No. 63 when
a Filipino woman marries a foreigner man.
Under the law then, in the Constitution applicable in 1935, a Filipino
woman may lose her Philippine citizenship if she marries a foreign
national. Meaning, by operation of law, if she is deemed to take the
citizenship of the foreign husband, then she is, under the Philippine
law, deemed to have lost her Philippine citizenship.
So the question has been, if a child is born out of that marriage, can the
child still elect Philippine citizenship upon reaching the age of majority?
If the Filipino mother/wife has lost her citizenship by operation of law
only, the child of that marriage can still elect Philippine citizenship
because there is still a Filipino mother to talk about. She may be a
foreign national per the laws of the country of the foreigner husband
but under the Philippine law, she is still deemed to be a Filipino. That’s
why the child is still born to a Filipino mother and a foreigner father.
But if the Filipino mother/wife has applied for naturalization in the
foreign country, we must have to determine when the child was at
least conceived. If the child was conceived when the naturalization
was not yet granted, there is still a Filipino mother, even if
naturalization proceedings have been commenced. The child can still
elect Philippine citizenship. But if the child was conceived when the
Filipino mother was already granted naturalized status in that foreign
country, there is no more Filipino mother to talk about. The child
cannot elect Philippine citizenship upon reaching the age of majority.
However, that child can still become a natural born Filipino if we take or
factor in RA 9225. Just hold on to that thought; we will reach there
when we get to Reacquisition.
c. Natural-born Citizens
Natural born citizens have been defined or the term has been defined
for the first time under the 1973 Constitution. They refer to those who
are citizens from birth without performing an act to perfect or acquire
citizenship.
Prior to the 1987 Constitution, there would have been some doubt
whether a child born under that category of mixed marriage who
elected to become Philippine citizens at the time of attaining majority
age would be considered natural born under that definition.
Those who were born under the ‘35 Constitution and who elect at the
‘35 would have no problem because they were not yet categorized as
natural born by the Constitution.
However in ‘73, there was a phrase there, “must not have performed
an act to perfect or acquire.” So if a child was born under the‘35 under
those same circumstances but elected under the ‘73, the question is, is
that child natural born simply because he had to perform an act, which
was the election, to perfect his citizenship?
The 1987 definition of natural born corrected that doubtful situation by
making it clear that children born under the circumstance in ‘35
Constitution who elect Philippine citizenship would also be considered
as natural born. That, we said, is applied retroactively, so there is no
question.
Page 11
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
The phrase, therefore, “since birth” in the definition of natural born
refers to the fact of being a citizen. It does not refer to the fact that the
person has performed an act to perfect or acquire citizenship. So if a
person is a citizen from birth, regardless of whether he performed an
act later, like an election of Philippine citizenship, the child would still
be considered natural born for purposes of our Constitution.
July 19, 2018 – Emmy Buniel
d. Naturalized Citizens
Among those listed in the 1987 Constitution as citizens are those who
are Filipinos by naturalization, which refers to the legal act of adopting
an alien and clothing him with the privilege of a citizen.
 Naturalization Proceedings
Under the present laws, the process of naturalization can be:
1. Judicial; or
2. Administrative
 Judicial Naturalization
Judicially, C.A. No. 473 or The Revised Naturalization Law provides that
after hearing the petition for citizenship and receipt of evidence
showing that the petitioner has all the qualifications and none of the
disqualifications required by law, the competent court may order the
issuance of the proper naturalization certificate and the registration
thereof in the proper civil registry.
The substantial requirements (ARCPEN) under judicial naturalization
include:
1. Age
2. Residency
3. Character
4. Property
5. Education and
6. Not otherwise disqualified by law
For property requirement, the case of REPUBLIC vs. KARBASI (2015) is
instructive.
REPUBLIC vs. KARBASI
764 SCRA 352 (2015)
Jurisprudence dictates that in judicial naturalization, the application
must show substantial and formal compliance with the law. In other
words, an applicant must comply with the jurisdictional requirements;
establish his or her possession of the qualifications and none of the
disqualifications enumerated under the law; and present at least two
(2) character witnesses to support his allegations. Section 2 of the
Naturalization Law clearly sets forth the qualifications that must be
possessed by any applicant, viz:
Section 2. Qualifications. - Subject to section four of this Act, any
person having the following qualifications may become a citizen of the
Philippines by naturalization:
First. He must be not less than twenty-one years of age on the day of
the hearing of the petition;
Second. He must have resided in the Philippines for a continuous period
of not less than ten years;
Third. He must be of good moral character and believes in the
principles underlying the Philippine Constitution, and must have
conducted himself in a proper and irreproachable manner during the
entire period of his residence in the Philippines in his relation with the
constituted government as well as with the community in which he is
living.
Fourth. He must own real estate in the Philippines worth not less than
five thousand pesos, Philippine currency, or must have some known
lucrative trade, profession, or lawful occupation;
Fifth. He must be able to speak and write English or Spanish and any
one of the principal Philippine languages;
Sixth. He must have enrolled his minor children of school age, in any of
the public schools or private schools recognized by the Office of Private
Education of the Philippines, where the Philippine history, government
and civics are taught or prescribed as part of the school curriculum,
during the entire period of the residence in the Philippines required of
him prior to the hearing of his petition for naturalization as Philippine
citizen. (CA 473)
FACTS: Karbasi, an Iranian and registered refugee, filed for
naturalization with the RTC. This was opposed by the OSG on the
ground that Karbasi has no lucrative income.
Based on a government data relied upon by the OSG, the Annual
Income and Expenditure in Western Mindanao shows that the average
income for the year 2000 was P86,135.00 and for 2003 was P93,000.00.
This shows that Karbasi's declared gross income amounting to P21, 868
was way below the average income and average expenses in Western
Mindanao, the region where Dipolog City, his residence, is located.
Karbasi argued that the analysis of the OSG with respect to the data on
Annual Income and Expenditure in Western Mindanao is misplaced.
Firstly, the data presented were merely statistical and not actual, and
did not reflect the circumstances relative to a specific subject or
person. Hence, these are greatly unreliable with respect to a specific
person in a naturalization case. At best, it was only intended for the
purpose it was made - for planning and for policy making of the
government and not to determine whether a certain trade, occupation
or income is lucrative or not.
ISSUE: Can the possession of an applicant's lucrative trade, profession
or lawful occupation, for purposes of naturalization, be fairly
determined through a simplistic read-through on government data?
Page 12
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
RULING: No. The Court finds it difficult to agree with the OSG's meager
use of government data to prove that Karbasi would become a burden
to the Philippine society in the future. Except for its own citation of
government data, nothing else was presented to establish that Karbasi
had indeed no lucrative income or trade to support himself and his
family.
To accept the OSG's logic is a dangerous precedent that would peg the
compliance to this requirement in the law to a comparison with the
results of research, the purpose of which is unclear. This is not to say
that the data produced by government research are inappropriate, or
much less irrelevant in judicial proceedings. The plain reliance on this
research information, however, may not be expected to produce the
force of logic which the OSG wants to attain in this case. Besides, had
the law intended for government data on livelihood and income
research to be used as a gauge for the "lucrative income" requirement,
it must have stated the same and foreclosed the Court's power to
assess existing facts in any given case.
Here, the Court opts to exercise this power and delve into a judicious
review of the findings of the RTC and the CA and, as explained, to rule
that Karbasi, possesses a lucrative income and a lawful occupation, as
required by the Naturalization Law.
The economic qualification for naturalization may be seen to embody
the objective of ensuring that the petitioner would not become a public
charge or an economic burden upon society. The requirement relates,
in other words, not simply to the time of execution of the petition for
naturalization but also to the probable future of the applicant for
naturalization.
DOCTRINE: The property requirement is not actually based on how
much you have or how much you earn. It is whether or not you will be a
burden to the State if and when you become a citizen.
In addition to the substantial requirements, Section 5 of CA 473
provides that one year prior to the filing of his petition for admission to
Philippine citizenship, the applicant for Philippine citizenship shall file
with the Bureau of Justice a declaration under oath that it is bona
fide his intention to become a citizen of the Philippines (Declaration of
Intention).
REPUBLIC VS LI CHING CHUNG
694 SCRA 249 (2013)
FACTS: The petition for naturalization was filed seven months after the
filing of the Declaration of Intention.
ISSUE: Whether or not the filing of the petition for naturalization
before the expiration of the one-year period is fatal.
RULING: Yes. The period of one year from the filing of Declaration of
Intention is the time fixed for the State to make inquiries as to the
qualifications of the applicant. If this period of time is not given to it,
the State will have no sufficient opportunity to investigate the
qualifications of the applicants and gather evidence thereon.
The period is designed to give the government ample time to screen
and examine the qualifications of an applicant and to measure the
latter‘s good intention and sincerity of purpose. Simply put, the waiting
period will unmask the true intentions of those who seek Philippine
citizenship for selfish reasons alone, such as, but not limited to, those
who are merely interested in protecting their wealth, as distinguished
from those who have truly come to love the Philippines and its culture
and who wish to become genuine partners in nation building.
The law is explicit that the declaration of intention must be filed one
year prior to the filing of the petition for naturalization. Stated
otherwise, it is mandatory that the filing of the petition for
naturalization must be made after the expiration of the one-year period
reckoned from the time the Declaration of Intention is filed.
OTHER ISSUE: Is there an exception to the mandatory filing of a
Declaration of Intention?
RULING: Yes. Under Section 6 of CA 473, the following persons may be
naturalized without having to make a declaration of intention upon
complying with the other requirements of this Act:
1. Those born in the Philippines and have received their primary
and secondary education in public schools or those recognized by the
Government and not limited to any race or nationality; and
2. Those who have resided continuously in the Philippines for a
period of thirty years or more before filing their application.
3. When the applicant involves a widowed wife as well as the
minor children (because the law requires that if the applicant
father/husband is married, the foreigner mother as well as the
foreigner minor children will just derive whatever is granted eventually
to the father).
If the applicant father died but has already filed a Declaration of
Intention before, the widowed wife as well as the children can continue
the application and they are exempted from filing another Declaration
of Intention.
After the filing of the petition, there is publication, notice and hearing,
presentation of evidence, and then the decision. When the decision is
favorable, there will be no automatic grant of Philippine citizenship.
There shall be a two-year waiting period, the purpose of which is for
the State to verify that the applicant continues to possess the
qualifications and none of the disqualifications.
After the two-year period, there will be a summary hearing to
determine whether the applicant should be granted a naturalized
status. This is followed by the cancellation of the applicant‘s Alien
Certificate of Registration and the issuance of the Certificate of
Naturalization.
The character requirement, which must be proved by at least two
credible witnesses, is at issue in the case of GO vs. REPUBLIC (2014).
GO vs. REPUBLIC
729 SCRA 138 (2014)
Page 13
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Under CA 473, an applicant for naturalization must comply with the
jurisdictional requirements, establish his or her possession of the
qualifications and none of the disqualifications enumerated under the
law, and present at least two (2) character witnesses to support his
allegations.
In vouching for the good moral character of the applicant for
citizenship, a witness, for purposes of naturalization, must be a
―credible‖ person as he becomes an insurer of the character of the
candidate. What must be ―credible‖ is not the declaration made, but
the person making it. This implies that such person must have a good
standing in the community; that he is known to be honest and upright;
that he is reputed to be trustworthy and reliable; and that his word
may be taken on its face value, as a good warranty of the worthiness of
the petitioner.
In Lim Ching Tian v. Republic, the Court explained that the ―law
requires that a vouching witness should have actually known an
applicant for whom he testified for the requisite period prescribed
therein to give him the necessary competence to act as such.
The reason behind this requirement is that a vouching witness is in a
way an insurer of the character of petitioner because on his testimony
the court is of necessity compelled to rely in deciding the merits of his
petition. It is, therefore, imperative that he be competent and reliable.
And he is only competent to testify on his conduct, character and moral
fitness if he has had the opportunity to observe him personally, if not
intimately, during the period he has allegedly known him.
The law, in effect, requires that the character witnesses be not mere
ordinary acquaintances of the applicant, but possessed of such intimate
knowledge of the latter as to be competent to testify of their personal
knowledge; and that they have each one of the requisite qualifications
and none of the statutory disqualifications.
Under CA 473, an applicant is disqualified if he is a citizen or subject of
a foreign country other than the United States whose laws do not grant
Filipinos the right to become naturalized citizens or subjects thereof. If
there is no reciprocity, then the application will be denied.
REPUBLIC vs. KARBASI (2015)
FACTS: The OSG opposed Karbasi‘s application for naturalization on the
ground that there is no reciprocity. The laws of Iran do not provide for
naturalization of Filipino citizens wanting to become Iranians.
ISSUE: Is the requirement of reciprocity applicable to a refugee
registered under the United Nations High Commissioner for Refugees
(UNHCR)?
RULING: No. The Court does not need to belabor the issue on
reciprocity between Iranian and Philippine laws on naturalization. True,
the Naturalization Law disqualifies citizens or subjects of a foreign
country whose laws do not grant Filipinos the right to become
naturalized citizens or subjects. A perusal of Karbasi's petition, both
with the RTC and the CA, together with his supplemental pleadings filed
with the Court, however, reveals that he has successfully established
his refugee status upon arrival in the Philippines. In effect, the country's
obligations under its various international commitments come into
operation.
Article 7 of the 1951 Convention relating to the Status of Refugees, to
which the Philippines is a signatory, expressly provides exemptions
from reciprocity, while Article 34 states the earnest obligation of
contracting parties to "as far as possible facilitate the assimilation and
naturalization of refugees."
REPUBLIC vs. BATUIGAS
706 SCRA 746 (2013)
ISSUE: Is there a proceeding under Philippine laws for the declaration
of citizenship? In other words, can you file a petition for the court to
declare that you are a Filipino Citizen?
RULING: No, you cannot. There is no proceeding authorized by the law
or by the Rules of Court for the judicial declaration of the citizenship of
an individual.
This case however is not a Petition for Judicial Declaration of Philippine
Citizenship but rather a Petition for Judicial Naturalization under CA
473. In the first, the petitioner believes he is a Filipino citizen and asks a
court to declare or confirm his status as a Philippine citizen. In the
second, the petitioner acknowledges he is an alien, and seeks judicial
approval to acquire the privilege of becoming a Philippine citizen based
on requirements required under CA 473.
GENERAL RULE: The Court cannot declare one‘s citizenship via a
voluntary Petition for the Declaration of Philippine Citizenship. There is
no such proceeding.
EXCEPTION: The only time the Court declares one‘s Philippine
citizenship is when there is:
1. A petition for judicial naturalization (because the court
determines whether or not the applicant is qualified to be a
naturalized Filipino)
2. An issue raised in relation to a qualification (this involves public
offices that require the official to be a natural-born Filipino)
 Effect of Naturalization on the Wife
If the wife is a Filipino citizen, there is no effect. However, if the wife is
an alien, is legally married to the naturalized husband, and does not
suffer from any of the disqualifications in Sec. 4, she is entitled to be
declared a citizen as well. What is required is only an administrative
proceeding before the Bureau of Immigration for the cancellation of
her Alien Certificate of Registration on the ground that her husband has
been recently naturalized.
According to Moya Lim Yao vs. The Commissioner of Immigration (41
SCRA 292) ruling, under Section 15 of Commonwealth Act 473, an alien
woman marrying a Filipino, native born or naturalized, becomes ipso
facto a Filipina provided she is not disqualified to be a citizen of the
Philippines under Section 4 of the same law. Likewise, an alien woman
Page 14
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
married to an alien who is subsequently naturalized here follows the
Philippine citizenship of her husband the moment he takes his oath as
Filipino citizen, provided that she does not suffer from any of the
disqualifications under said Section 4. She need not prove the
qualifications, but only that she is not disqualified.
Note that the rule on becoming ipso facto a Filipino upon the
naturalization of the spouse is only applicable when it involves an alien
wife and a naturalized Filipino husband. Here, the wife follows the
Philippine citizenship of her naturalized husband provided she is not
disqualified by law. What if it is the reverse?
When it involves an alien husband and a naturalized Filipina wife, the
husband does not become ipso facto a Filipino upon the naturalization
of his wife, even if he possesses none of the disqualifications provided
by law. Since there is no automatic grant of Philippine citizenship, the
alien husband still needs to file a Petition for Judicial Naturalization but
because of his marriage to a Filipina, the 10-year residency requirement
under CA 473 is reduced to 5 years.
 Effect of Naturalization on the Children
Minor children of persons naturalized under this law who have been
born in the Philippines shall be considered citizens thereof.
A foreign born minor child, if dwelling in the Philippines at the time of
the naturalization of the parent, shall automatically become a
Philippine citizen and a foreign-born minor child, who is not in the
Philippines at the time the parent is naturalized, shall be deemed a
Philippine citizen only during his minority, unless he begins to reside
permanently in the Philippines when still a minor, in which case, he will
continue to be a Philippine citizen even after becoming of age.
A child born outside of the Philippines after the naturalization of his
parents, shall be considered a Philippine citizen, unless within one year
after reaching the age of majority, he fails to register himself as a
Philippine citizen at the Philippine Consulate of the country where he
resides, and to take the necessary oath of allegiance.
To simplify the effect of naturalization on the children:
I. If the child is of age, no effect.
II. If the child is a minor:
A. If born in the Philippines - automatically becomes a citizen
upon the naturalization of the father.
B. If born abroad
1. Before the naturalization of the father.
a.) If residing in the Philippines at the time of
naturalization - automatically becomes a citizen.
b.) If not residing in the Philippines at the time of
naturalization - considered citizen only during his
minority, unless he takes permanent residence in the
Philippines before reaching majority age. In other words,
he continues to be a Filipino after reaching the age of
majority only if he decides to reside here permanently
before reaching that age.
The minor children who are not born here must have
to be here or at least declared intention to live here at
the time of the grant that they want to reside here and
become naturalized Filipino citizens as well. They cannot
be forced if they are not born here and they are not here
at the time of the grant be naturalized citizens although
the SC has said that Philippine citizenship is a privilege,
we are supposed to be in an advantage.
2. After the naturalization of the father - considered citizen on
the condition that upon reaching the age of majority, he takes
an oath of allegiance in the Philippine consulate of the place
where he may be. If he fails to register his intent to continue as
Filipino within one (1) year upon reaching the age of majority,
he ceases to be a Filipino citizen.
 Denaturalization
This simply refers to the cancellation or the revocation of the Certificate
of Naturalization.
Section 18. Cancellation of naturalization certificate issued -
Upon motion made in the proper proceedings by the Solicitor General
or his representative, or by the proper provincial fiscal, the competent
judge may cancel the naturalization certificate issued and its
registration in the Civil Registry:
(a) If it is shown that said naturalization certificate was obtained
fraudulently or illegally;
(b) If the person naturalized shall, within the five years next
following the issuance of said naturalization certificate, return to his
native country or to some foreign country and establish his permanent
residence there: Provided, that the fact of the person naturalized
remaining for more than one year in his native country or the country
of his former nationality, or two years in any other foreign country,
shall be considered as prima facie evidence of his intention of taking up
permanent residence in the same;
(c) If the petition was made on an invalid declaration of intention;
(d) If it is shown that the minor children of the person naturalized
failed to graduate from a public or private high schools of the
Philippines, where Philippine history, government and civics are taught
as part of the school curriculum through the fault of their parents
either by neglecting to support them or by transferring them to another
school or schools (not when they dropped out because of scholastic
performance). A certified copy of the decree cancelling the
naturalization certificate shall be forwarded by the clerk of the Court to
the Office of the President and the Solicitor-General;
Page 15
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
(e) If it is shown that the naturalized citizen has allowed himself to
be used as a dummy in violation of the Constitutional or legal provision
requiring Philippine citizenship, as a requisite for the exercise, use or
enjoyment of a right, franchise or privilege.
Another ground for denaturalization is if the applicant naturalized
citizen now returns to his country of origin and resides there for a
period of 1 year, there is a disputable presumption that he intends to
take permanent residence in that country of origin again.
If it's in any other foreign country, the period is 2 years then he will be
considered to be disputably intending to reside in that foreign country.
Denaturalization is filed in the same court in the same case which
granted the naturalization. That's why while the decree is final after
the 2-year waiting period, it is not really final after all because there is
still be a possibility of denaturalization where his naturalization may be
cancelled.
 Administrative Naturalization
Republic Act No. 9139 (The Administrative Naturalization Law of 2000)
provides that aliens born and residing in the Philippines may be granted
Philippine citizenship by administrative proceeding by filing a petition
for citizenship with the Special Committee of the DOJ, which, in view of
the facts before it, may approve the petition and issue a certificate of
naturalization.
Article IV, Section 3. Qualifications. - Subject to the provisions of the
succeeding section, any person desiring to avail of the benefits of this
Act must meet the following qualifications:
(a) The applicant must be born in the Philippines and residing
therein since birth;
(b) The applicant must not be less than eighteen (18) years of age,
at the time of filing of his/her petition;
(c) The applicant must be of good moral character and believes in
the underlying principles of the Constitution, and must have conducted
himself/herself in a proper and irreproachable manner during his/her
entire period of residence in the Philippines in his relation with the duly
constituted government as well as with the community in which he/she
is living;
(d) The applicant must have received his/her primary and
secondary education in any public school or private educational
institution dully recognized by the Department of Education, Culture
and Sports, where Philippine history, government and civics are taught
and prescribed as part of the school curriculum and where enrollment
is not limited to any race or nationality: Provided, That should he/she
have minor children of school age, he/she must have enrolled them in
similar schools;
(e) The applicant must have a known trade, business, profession
or lawful occupation, from which he/she derives income sufficient for
his/her support and if he/she is married and/or has dependents, also
that of his/her family: Provided, however, That this shall not apply to
applicants who are college degree holders but are unable to practice
their profession because they are disqualified to do so by reason of
their citizenship;
(f) The applicant must be able to read, write and speak Filipino or
any of the dialects of the Philippines; and
(g) The applicant must have mingled with the Filipinos and
evinced a sincere desire to learn and embrace the customs, traditions
and ideals of the Filipino people. (Republic Act 9139)
As a summary, the following are the substantial requirements in
administrative naturalization:
1. Age
2. Residence (since birth)
Note that in judicial naturalization, the residency requirement is 10 or 5
years (in certain cases). But in administrative naturalization, the
applicant must be residing in the Philippines since birth. Thus, applying
RA 6809 (An Act Lowering the Age of Majority from 21 to 18 Years,
Amending for the Purpose EO 209, And for Other Purposes), the
applicant must be a resident for at least 18 years since birth.
3. Character
4. Property
In judicial naturalization, the property requirement includes ownership
of a real estate amounting to not less than P5000, or gainful
employment. In administrative naturalization, there is no more real
estate with a value of at least P5000. What is merely required is gainful
employment.
5. Education
In judicial naturalization, only the minor children are required to attend
to an educational institution not limited to any race or nationality. But
in administrative naturalization, in addition to the minor children, the
applicant himself must also attend to such school.
6. Not otherwise disqualified by law
If the applicant is a foreigner male born here or residing here since birth
and married to a foreigner female, the foreigner female / wife will
derive. But if it's the other way around, the applicant is a foreigner
female born here, residing here since birth, and married to a foreigner
male, the grant of the administrative naturalization to that female
applicant will not benefit the husband. The husband continues to
become a foreigner unless he applies for judicial naturalization.
Minor children will automatically derive the citizenship granted to the
applicant parent.
3. Loss and Reacquisition of Citizenship
Page 16
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Article IV, Section 3. Philippine citizenship may be lost or reacquired in
the manner provided by law.
a. Loss of Citizenship
COMMONWEALTH ACT No. 63
(AN ACT PROVIDING FOR THE WAYS IN WHICH PHILIPPINE
CITIZENSHIP MAY BE LOST OR REACQUIRED)
Section 1. How citizenship may be lost. – A Filipino citizen may lose his
citizenship in any of the following ways and/or events:
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the
constitution or laws of a foreign country upon attaining twenty-one
years of age or more: Provided, however, that a Filipino may not divest
himself of Philippine citizenship in any manner while the Republic of
the Philippines is at war with any country;
(4) By rendering services to, or accepting commission in, the
armed forces of a foreign country: Provided, That the rendering of
service to, or the acceptance of such commission in, the armed forces
of a foreign country, and the taking of an oath of allegiance incident
thereto, with the consent of the Republic of the Philippines, shall not
divest a Filipino of his Philippine citizenship if either of the following
circumstances is present:
(a) The Republic of the Philippines has a defensive and/or
offensive pact of alliance with the said foreign country; or
(b) The said foreign country maintains armed forces on
Philippine territory with the consent of the Republic of the Philippines:
Provided, That the Filipino citizen concerned, at the time of rendering
said service, or acceptance of said commission, and taking the oath of
allegiance incident thereto, states that he does so only in connection
with his service to said foreign country: And provided, finally, That any
Filipino citizen who is rendering service to, or is commissioned in, the
armed forces of a foreign country under any of the circumstances
mentioned in paragraph (a) or (b), shall not be permitted to participate
nor vote in any election of the Republic of the Philippines during the
period of his service to, or commission in, the armed forces of said
foreign country. Upon his discharge from the service of the said foreign
country, he shall be automatically entitled to the full enjoyment of his
civil and political rights as a Filipino citizen;
(5) By cancellation of the of the certificates of naturalization;
(6) By having been declared by competent authority, a deserter of
the Philippine armed forces in time of war, unless subsequently, a
plenary pardon or amnesty has been granted; and
(7) In the case of a woman, upon her marriage to a foreigner if, by
virtue of the laws in force in her husband's country, she acquires his
nationality.
Take note that under the 1987 Constitution, the 7th ground or the
marriage of a Filipina to a foreigner is no longer a ground to lose
Philippine citizenship. But under the 1935 Constitution, the mere
marriage to a foreigner husband would mean that the Filipina has lost
her Philippine citizenship.
Q: In relation to this, may a child born of Filipino mother and foreigner
father under the 1935 Constitution be allowed to elect Philippine
citizenship upon reaching the age of majority?
A: We must distinguish. When the Filipino mother has not yet been
naturalized when the child was conceived, then the law may allow the
child to elect Philippine citizenship upon reaching the age of majority.
In this case, there is still a ―Filipino mother‖ to speak of. This also
applies even if at the time of the conception of the child, the Filipino
mother has filed for naturalization but the same has not yet attained
finality.
However, when the Filipino mother has been fully naturalized upon the
child‘s conception, then there is no more Filipino mother to talk about.
As such, the child cannot elect Philippine citizenship upon reaching the
age of majority.
b. Reacquisition of Citizenship
COMMONWEALTH ACT No. 63
(AN ACT PROVIDING FOR THE WAYS IN WHICH PHILIPPINE
CITIZENSHIP MAY BE LOST OR REACQUIRED)
Section 2. How citizenship may be reacquired. – Citizenship may be
reacquired:
(1) By naturalization: Provided, That the applicant possess none of the
disqualification's prescribed in section two of Act Numbered Twenty-
nine hundred and twenty-seven,
(2) By repatriation of deserters of the Army, Navy or Air Corp: Provided,
That a woman who lost her citizenship by reason of her marriage to an
alien may be repatriated in accordance with the provisions of this Act
after the termination of the marital status; and
(3) By direct act of the National Assembly.
 Modes of Reacquiring Philippine citizenship:
1. Naturalization
2. Repatriation
3. Direct Act of Congress
 Repatriation laws:
1. CA 63
Page 17
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University

Repatriation under CA 63 has a very limited applicability. This is only (3) Person convicted of crimes involving moral turpitude; or
available to deserters of the Armed Forces and Filipino woman who lost
her Philippine citizenship by mere marriage to a foreigner husband. (4) Person suffering from mental alienation or incurable
contagious diseases.
2. PD 725
What do you mean by Moral Turpitude?
In addition to CA 63, Presidential Decree No. 725 was passed, providing
for repatriation of Filipino women who had lost their Philippine
PATERINA vs. SINGSON
citizenship by marriage to aliens, and of natural born Filipinos. The said
law paved the way for the creation of a Special Committee on
Singson went to HK and in the airport he was arrested for possession of
Naturalization.
prohibited drugs. Pleaded guilty and served his sentence. Then went
back to the Philippines, he ran and won. His qualification was
LABO vs. COMELEC questioned because he had been convicted in a foreign court. SC said
drug possession does not carry moral turpitude.
FACTS: Petitioner Ramon Labo, elected mayor of Baguio City was
questioned on his citizenship. He was married in the Philippines to an
PICHAY vs. PEOPLE
Australian citizen. The marriage was declared void in the Australian
Federal Court in Sydney on the ground that the marriage had been
Pichay as sitting member of Congress was charged and convicted for
bigamous. According to Australian records, Labo is still an Australian
libel. And then he ran and his qualification was questioned because he
citizen.
had been convicted for libel. The SC said that libel is a crime that
carries or involves moral turpitude. So therefore, he is disqualified.
ISSUE: Whether or not Petitioner Labo is a citizen of the Philippines.
RULING: The petitioner’s contention that his marriage to an Australian
national in 1976 did not automatically divest him of Philippine This law on repatriation is also reserved to two types of individuals:
citizenship is irrelevant. There is no claim or finding that he
automatically ceased to be a Filipino because of that marriage. a. Filipino women who have lost their Philippine citizenship
by marriage to aliens
He became a citizen of Australia because he was naturalized as such
through a formal and positive process, simplified in his case because he b. Natural-born Filipinos who have lost their Philippine
was married to an Australian citizen. As a condition for such citizenship, including their minor children, on account of
naturalization, he formally took the Oath of Allegiance and/or made the political or economic necessity
Affirmation of Allegiance, renouncing all other allegiance. It does not
appear in the record, nor does the petitioner claim, that he has Under Section 2 of RA 8171, repatriation shall be effected by taking the
reacquired Philippine citizenship. necessary oath of allegiance to the Republic of the Philippines and
registration in the proper civil registry and in the Bureau or
Immigration. The Bureau of Immigration shall thereupon cancel the
3. RA 8171
pertinent alien certificate of registration and issue the certificate of
identification as Filipino citizen to the repatriated citizen.
REPUBLIC ACT 8171
(AN ACT PROVIDING FOR THE REPATRIATION OF FILIPINO WOMEN
4. RA 9225
WHO HAVE LOST THEIR PHILIPPINE CITIZENSHIP BY MARRIAGE TO
ALIENS AND OF NATURAL-BORN FILIPINOS)
REPUBLIC ACT 9225
(CITIZENSHIP RETENTION AND RE-ACQUISITION ACT OF 2003)
Section 1. Filipino women who have lost their Philippine citizenship by
marriage to aliens and natural-born Filipinos who have lost their
Section 3. Retention of Philippine Citizenship - Any provision of law to
Philippine citizenship, including their minor children, on account of
the contrary notwithstanding, natural-born citizenship by reason of
political or economic necessity, may reacquire Philippine citizenship
their naturalization as citizens of a foreign country are hereby deemed
through repatriation in the manner provided in Section 4 of
to have re-acquired Philippine citizenship upon taking the following
Commonwealth Act No. 63, as amended that the applicant is not a:
oath of allegiance to the Republic:

(1) Person opposed to organized government or affiliated with

xxx
any association or group of persons who uphold and teach doctrines
opposing organized government;
Natural born citizens of the Philippines who, after the effectivity of this
Act, become citizens of a foreign country shall retain their Philippine
(2) Person defending or teaching the necessity or propriety of
citizenship upon taking the aforesaid oath.
violence, personal assault, or association for the predominance of their
ideas;
Repatriation is not an act to perfect Philippine citizenship.

Page 18
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Section 5. Civil and Political Rights and Liabilities - Those who retain or
re-acquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following
conditions:
(1) Those intending to exercise their right of surffrage must Meet
the requirements under Section 1, Article V of the Constitution,
Republic Act No. 9189, otherwise known as "The Overseas Absentee
Voting Act of 2003" and other existing laws;
(2) Those seeking elective public in the Philippines shall meet the
qualification for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any
and all foreign citizenship before any public officer authorized to
administer an oath;
(3) Those appointed to any public office shall subscribe and swear
to an oath of allegiance to the Republic of the Philippines and its duly
constituted authorities prior to their assumption of office: Provided,
That they renounce their oath of allegiance to the country where they
took that oath;
(4) Those intending to practice their profession in the Philippines
shall apply with the proper authority for a license or permit to engage
in such practice; and
(5) That right to vote or be elected or appointed to any public
office in the Philippines cannot be exercised by, or extended to, those
who:
(a) are candidates for or are occupying any public office in
the country of which they are naturalized citizens; and/or
(b) are in active service as commissioned or non-
commissioned officers in the armed forces of the country which they
are naturalized citizens. (Republic Act 9225)
When one seeks to run for public elective office, RA 9225 provides for
an additional requirement. At the time of the filing of the certificate of
candidacy, the repatriated citizen must make a personal and sworn
renunciation of any and all foreign citizenship before any public officer
authorized to administer an oath.
SOBEJANA-CONDON vs. COMELEC
678 SCRA 267 (2012)
FACTS: Petitioner is a natural-born Filipino citizen... she became a
naturalized Australian citizen owing to her marriage to a certain Kevin
Thomas Condon.
She filed an application to re-acquire Philippine citizenship pursuant to
RA 9225.
The application was approved and the petitioner took her oath of
allegiance to the Republic of the Philippines. The petitioner filed an
unsworn Declaration of Renunciation of Australian Citizenship before
the Department of Immigration and Indigenous Affairs, Canberra,
Australia, which in turn issued the Order dated September 27, 2006
certifying that she has ceased to be an Australian citizen.
Petitioner ran for Mayor in Caba, La Union in the 2007 elections. She
lost.
She again sought elective office during the May 10, 2010 elections this
time for the position of Vice-Mayor and was proclaimed as the winning
candidate.
Private respondents filed separate petitions for quo warranto
questioning the petitioner's eligibility.
The petitions similarly sought the petitioner's disqualification from
holding her elective post on the ground that she is a dual citizen and
that she failed to execute a "personal and sworn renunciation of any
and all foreign citizenship before any public officer authorized to
administer an oath" as imposed by R.A. No. 9225.
Trial court held that the petitioner's failure to comply with R.A. No.
9225 rendered her ineligible to run and hold public office.
The personal declaration of renunciation she filed in Australia was not
under oath.
The petitioner appealed to the COMELEC but the appeal was dismissed
Hence, the present petition ascribing grave abuse of discretion to the
COMELEC en banc.
ISSUE: For purposes of determining the petitioner's eligibility to run for
public office, whether the "sworn renunciation of foreign citizenship" in
Section 5(2) of R.A. No. 9225 is a mere pro-forma requirement.
RULING: Petitioner is disqualified from running for elective office for
failure to renounce her Australian citizenship in accordance with
Section 5(2) of R.A. No. 9225.
R.A. No. 9225 allows the retention and re-acquisition of Filipino
citizenship for natural-born citizens who have lost their Philippine
citizenship by taking an oath of allegiance to the Republic
The oath is an abbreviated repatriation process that restores one's
Filipino citizenship and all civil and political rights and obligations
concomitant therewith, subject to certain conditions imposed in
Section 5, viz:
Sec. 5. Civil and Political Rights and Liabilities. Those who retain or re-
acquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following
conditions:
(2) Those seeking elective public office in the Philippines shall meet the
qualification for holding such public office as required by the
Page 19
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of any
and all foreign citizenship before any public officer authorized to
administer an oath.
She filed a renunciation of Australian citizenship in Canberra, Australia.
Admittedly, however, the same was not under oath contrary to the
exact mandate of Section 5(2) that the renunciation of foreign
citizenship must be sworn before an officer authorized to administer
oath.
Hence, Section 5(2) of Republic Act No. 9225 compels natural- born
Filipinos, who have been naturalized as citizens of a foreign country,
but who reacquired or retained their Philippine citizenship (1) to take
the oath of allegiance under Section 3 of Republic Act No. 9225,.. and
(2) for those seeking elective public offices in the Philippines, to
additionally execute a personal and sworn renunciation of any and all
foreign citizenship before an authorized public officer prior or
simultaneous to the filing of their certificates of candidacy, to qualify as
candidates in Philippine elections.
[T]he intent of the legislators was not only for Filipinos reacquiring or
retaining their Philippine citizenship under Republic Act No. 9225 to
take their oath of allegiance to the Republic of the Philippines, but also
to explicitly renounce their foreign citizenship if they wish to run for
elective posts in the Philippines. To qualify as a candidate in Philippine
elections, Filipinos must only have one citizenship, namely, Philippine
citizenship.
It is an additional qualification for elective office specific only to Filipino
citizens who re-acquire their citizenship under Section 3 of R.A. No.
9225. It is the operative act that restores their right to run for public
office. The petitioner's failure to comply therewith in accordance with
the exact tenor of the law, rendered ineffectual the Declaration of
Renunciation of Australian Citizenship she executed.
As such, she is yet to regain her political right to seek elective office.
Unless she executes a sworn renunciation of her Australian citizenship,
she is ineligible to run for and hold any elective office in the Philippines.
MAQUILING vs. COMELEC
696 SCRA 420; 700 SCRA 367 (2013)
FACTS: After being granted the benefits under RA 9225, Arnado
travelled abroad using his foreign passport, thereby representing
himself as a foreign national.
ISSUE: Whether or not the use of a foreign passport after renouncing
foreign citizenship affects one‘s qualifications to run for public office.
RULING: Yes. The requirement of renunciation of any and all foreign
citizenship, when read together with Section 40(d) of the Local
Government Code which disqualifies those with dual citizenship from
running for any elective local position, indicates a policy that anyone
who seeks to run for public office must be solely and exclusively a
Filipino citizen. To allow a former Filipino who reacquires Philippine
citizenship to continue using a foreign passport – which indicates the
recognition of a foreign state of the individual as its national – even
after the Filipino has renounced his foreign citizenship, is to allow a
complete disregard of this policy. Allowing the subsequent use of a
foreign passport because it is convenient for the person to do so is
rendering the oath of renunciation a hollow act. It devalues the act of
taking of an oath, reducing it to a mere ceremonial formality.
While the act of using a foreign passport is not one of the acts
enumerated in Commonwealth Act No. 63 constituting renunciation
and loss of Philippine citizenship, it is nevertheless an act which
repudiates the very oath of renunciation required for a former Filipino
citizen who is also a citizen of another country to be qualified to run for
a local elective position.
Simply put, the use of foreign passport after renouncing one‘s foreign
citizenship is a positive and voluntary act of representation as to one‘s
nationality and citizenship. It does not divest Filipino citizenship
regained by repatriation but it recants the Oath of Renunciation
required to qualify one to run for an elective position.
By representing himself as an American citizen through the use of a
foreign passport, Arnado voluntarily and effectively reverted to his
earlier status as a dual citizen, which disqualifies him from running for
an elective office.
If it involves an appointive office, there must be a sworn renunciation
of any and all foreign allegiances.
4. Dual Allegiance
Article IV, Section 5. Dual allegiance of citizens is inimical to the
national interest and shall be dealt with by law.
RA 7160, Section 40. Disqualifications. - The following persons are
disqualified from running for any elective local position:
xxx
(d) Those with dual citizenship;
Q: Can a person of dual citizenship be appointed to a public office?
A: Seemingly, the answer is yes because what is required to be
renounced is allegiance, not citizenship.
MERCADO vs. MANZANO
307 SCRA 630 (1999)
Dual citizenship is different from dual allegiance. The former arises
when, as a result of the concurrent application of the different laws of
two or more states, a person is simultaneously considered a national by
the said states. For instance, such a situation may arise when a person
whose parents are citizens of a state which adheres to the principle of
jus sanguinis is born in a state which follows the doctrine of jus soli.
Such a person, ipso facto and without any voluntary act on his part, is
concurrently considered a citizen of both states.
Page 20
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Dual allegiance, on the other hand, refers to the situation in which a
person simultaneously owes, by some positive act, loyalty to two or
more states. While dual citizenship is involuntary, dual allegiance is the
result of an individual‘s volition.
With respect to dual allegiance, Article IV, 5 of the Constitution
provides: Dual allegiance of citizens is inimical to the national interest
and shall be dealt with by law.
 Instances where one can have DUAL CITIZENSHIP:
1. A person whose parents are citizens of a state which adheres
to the principle of jus sanguinis is born in a state which follows the
doctrine of jus soli. Such a person, ipso facto and without any
voluntary act on his part, is concurrently considered a citizen of
both states.
2. A Filipino woman who marries a foreigner husband who by
reason of the laws of a foreigner husband's country is deemed to
have acquired the citizenship of the husband involuntarily except
for the fact of marriage, she becomes a dual citizen.
3. Children of that mixed marriage will also be of dual citizenship
involuntarily without any positive act required of them.
Unlike in dual allegiance, this is a sense of loyalty to a sovereign. This is
voluntary to a person. So a person may have only one citizenship but
may have many allegiances.
Conversely, it does not follow that if a person has dual citizenship that
he owes allegiance to both because again dual citizenship is brought to
a person involuntarily and not voluntarily.
In case of repatriation, there are only 2 kinds of citizenship in the
country as follows:
1. Natural born
2. Naturalized
If you are repatriated under any of those laws (CA 63, PD 725, RA 8171,
RA 9225), what you reacquire is your former citizenship status. And
because all of them refer to former natural born, what one reacquires
is his former natural born status.
In the case of Grace Poe, the SC said that there is no such thing as
reacquired citizenship, it's either you are naturalized or natural born
even if you have reacquired your former citizenship status. There are 2
categories only.
The phrase "since birth" refers to the fact of citizenship. Can a
foreigner at birth be considered as natural born citizen?
RA 9225 benefits the minor children. Minor children will derive the
reacquired status and it includes legitimate, illegitimate, legitimated
and adopted children.
Example: Suppose the Filipino woman marries Lebron James and
becomes a naturalized American, then they have a child. Can the child
become a Filipino citizen assuming under RA 9225?
YES, because the law says "minor children" and there is a Filipino
mother to talk about. Even if she became naturalized as an American,
by blood she is Filipino.
What if the same couple adopts a child from another foreign country?
Can a legally adopted child become a Filipino citizen? YES. Hence, even
if a person is not a Filipino citizen at birth, he can become a Filipino
citizen under RA 9225.
August 1, 2018 – Zarah Domingo
MA vs. FERNANDEZ (2010)
This is respecting the election of Philippine citizenship or that category
of children where the oath of allegiance and the sworn election were
not registered with the Local Civil Registry
SC said that the mistake should not deprive them of their election
because the registration merely seeks the confirmation of the election
which they have done before. What is important is that they actually
did, within reasonable time, upon reaching the age of majority, elected
to become a citizen.
CARDINO vs. COMELEC
819 SCRA 586 (2017)
In this case, the affidavit of renunciation required for running for public
office after reacquisition in RA 9225 was supposedly on July 19 but the
affidavit contained July 16 which she could not have done because she
was out of the country. SC took the testimony of the Municipal Trial
Court Judge, who was the one who administered the oath, that there
was really a mistake or error in the date. Therefore, if it is a clear
clerical error, that should not affect the validity of the so called
certificate of renunciation.
The case of Sobejana-Condon vs. COMELEC (2012) was discussed there
because if you remember, in that case, the affidavit was not sworn
actually. So, renunciation of foreign citizenship was not effective.
Therefore she was disqualified.
D. Sovereignty
1. Sovereign Immunity from Suit
a. Basis
Article XIV, Section 3. The State may not be sued without its consent.
The discussion on Sovereignty is on Sovereign immunity from suit. It is
also a standard bar question--more on your understanding of what the
concept of sovereign immunity is.
Page 21
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
The state is immune, with or without a constitutional provision to that
effect. The constitutional provision that basically states that the State
cannot be sued without its consent is not a grant. It is a limitation,
meaning, the state can now be sued, provided it has given its consent.
Without that, the State cannot be sued under any and all
circumstances.
b. When a Suit against the State
For the defense of State immunity to be claimable or applicable in a
particular case, we must all remember what the nature of the suit is. It
must be the defendant --the State, (meaning the State is sued by
name), an unincorporated government entity, is sued. If it is
incorporated, then normally it has the powers of an ordinary
corporation. Common to the three would be, that the ultimate liability
rest upon the State.
1.) the power to sue; and
2.) the corresponding power to be sued; or
3.) that when a public officer is sued in his official capacity.
The ultimate liability must have to result into a financial liability or loss
of property. Thus, if the case does not amount to that, even if the State
is made defendant, if a public officer is made defendant, even if an
unincorporated government entity is made a defendant, but the result
of the case is not about financial liability or loss of government
property, it is not a suit against the State. The state immunity does not
apply.
You have come across cases like Juan Dela Cruz vs. Republic, Juan Dela
Cruz vs. Office of the President, these are probably more on decisions
or review of orders of the Office of the President but it has nothing to
do with possible financial liability. So when the suit is against the State,
clearly, the State would normally claim the defense of State immunity.
So if there is no consent, the suit can be dismissed outright.
Questions are normally phrased in relation to “contractual publication.”
If you remember Act 3083, that is our express consent, actually by law.
c. Consent to be Sued
1. EXPRESS CONSENT
An express consent must come in the form of a law because it affects
the sovereign right of the state to defend itself from any of these cases.
So it must have to be by direct act of Congress. Act 3083 is still a good
law. It may be old but it is still the basis for all money claims arising
from contract, express or implied. It has been cited in several cases.
Normal questions would range from an unincorporated government
entity entering into a contract for acquisition of goods, services, with
private suppliers or manufacturers; that an incorporated government
entity makes a down payment, gets the goods and services in full, and
would not pay the remainder of the balance. The question is can the
supplier or manufacturer sue? So if it is a suit against the State, the
usual answer is that the state may claim immunity. However if it is
based on a contract, express, Act 3083 is the usual form of express
consent. So that is how the questions are normally phrased.
ACT NO. 3083 - AN ACT DEFINING THE CONDITIONS UNDER WHICH
THE GOVERNMENT OF THE PHILIPPINE ISLANDS MAY BE SUED
Section 1. Complaint against Government. — Subject to the provisions
of this Act, the Government of the Philippine Islands hereby consents
and submits to be sued upon any moneyed claim involving liability
arising from contract, expressed or implied, which could serve as a
basis of civil action between private parties.
Sec. 2. A person desiring to avail himself of the privilege herein
conferred must show that he has presented his claim to the Insular
Auditor 1 and that the latter did not decide the same within two
months from the date of its presentation.
Sec. 3. Venue. — Original actions brought pursuant to the authority
conferred in this Act shall be instituted in the Court of First Instance of
the City of Manila or of the province were the claimant resides, at the
option of the latter, upon which court exclusive original jurisdiction is
hereby conferred to hear and determine such actions.
Sec. 4. Actions instituted as aforesaid shall be governed by the same
rules of procedure, both original and appellate, as if the litigants were
private parties.
Sec. 5. When the Government of the Philippine Island is plaintiff in an
action instituted in any court of original jurisdiction, the defendant shall
have the right to assert therein, by way of set-off or counterclaim in a
similar action between private parties.
Sec. 6. Process in actions brought against the Government of the
Philippine Islands pursuant to the authority granted in this Act shall be
served upon the Attorney-General 2 whose duty it shall be to appear
and make defense, either himself or through delegates.
Sec. 7. Execution. — No execution shall issue upon any judgment
rendered by any court against the Government of the Philippine Islands
under the provisions of this Act; but a copy thereof duly certified by the
clerk of the Court in which judgment is rendered shall be transmitted
by such clerk to the Governor-General, 3 within five days after the same
becomes final.
Sec. 8. Transmittal of Decision. — The Governor-General, 4 at the
commencement of each regular session of the Legislature, 5 shall
transmit to that body for appropriate action all decisions so received by
him, and if said body determine that payment should be made, it shall
appropriate the sum which the Government has been sentenced to
pay, including the same in the appropriations for the ensuing year.
2. IMPLIED CONSENT
Your outline mentions of implied consent. Now implied consent covers
basically what the Supreme Court has, by jurisprudence, considered to
be implied consent.
a. Government enters into Business Contracts
Page 22
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
First, in your outline is when the government enters into a business
contract. So it is not the fact of entering into a contract that determines
the presence or absence of consent, rather it is the nature of the
contract entered into. Similar with an unincorporated government
entity, just because it is unincorporated that automatically it becomes
suable.
If the unincorporated government agency performs a non-
governmental function, meaning business or proprietary, then there is
“implied consent.” It is not the fact of entering into a contract but the
nature of the contract entered into.
b. Inequitable to Claim Immunity
Then, you have, when it is inequitable. Normally, the cases on equity,
because it is not a positive rule of law, is based on situations where it
would result into an unjust situation if the state is allowed to claim
immunity. All of these cases involve more or less actual expropriation.
Under the Rules of Court, when the State expropriates, that would
mean it goes through the proceedings: file the petition, make a full
deposit of at least the initial valuation of the property, get a writ of
possession, enter the property, and fight over what the just
compensation is, at the second stage of eminent domain after
determining the propriety of expropriation.
In actual expropriation or actual exercise of eminent domain, if the
property owner sues thereafter for the value of the property, then the
State ordinarily should be able to claim immunity because, say this is a
suit against the DPWH, which is an unincorporated government entity,
the answer is yes. Will it result into a financial liability? The answer is
yes, so it could easily claim immunity.
However, in almost all cases, the Supreme Court said it will be
inequitable if DPWH will be allowed to claim immunity. So that is your
common example of express consent.
Don’t confuse yourself with that case of BUISAN vs. COA (2017).
BUISAN v. COA
816 SCRA 346 (2017)
This case involves the DPWH where there was a claim for damages
arising from the implementation of flood control projects in some
Maguindanao towns. After 3 years, the owners of the crops, supposed
to have been damaged by the flood control project implemented by
DPWH, sued DPWH for the amount or value of the crops damaged. SC
upheld the claim of state immunity because, again, this was not actual
expropriation. This was “a belated claim” for damages for crops
supposedly damaged because of flood control project implementation.
The factual setting is different because you might come across a case
involving DPWH. DPWH does not always exercise actual expropriation.
He may conduct certain activities which are not in the form of actual
expropriation.
c. Government Initiates a Complaint, Open to Counterclaim
Then you have, government initiates a complaint open to counterclaim.
That is actually provided for in Act 3083. It is listed as implied consent
because it requires the initiation of a complaint by the state. It is not a
positive rule where you can immediately sue the State unless the State
files a case and takes the claim against a private person, the theory
being that the State is considered to have descended to the level of an
ordinary party to a case, therefore opening itself to any form of
counterclaim. In that sense, there is an implied consent.
3. Scope of Consent
If a suit is initiated and it is based on Act 3083 as in express consent or
any of the forms of implied consent, consent is valid from the time of
the initiation of the action up to the rendition of the judgment or
decision. It does not go beyond it because under our rules, the
Constitution specifically, COA has the power to settle all claims against
the State.
NHA vs. ROXAS
773 SCRA 358 (2015)
Any claim must have to be presented to COA first because COA may
have some money to settle the financial liability against the State. This
case involves NHA, is NHA immune from suit? The Supreme Court said
no because it has a charter of its own. However, because of the nature
of its funds, it cannot just be executed just like any other ordinary
judgment; it must have to be presented to COA.
If you have read Act 3083, that’s one of the provisions there. There is a
precondition before you can go to Court, you must have to present
your claim to COA first, and that is like a certificate of conciliation or
similar to that. But before you could go and file a case in court, you
must have to present your claim to COA. And if there is a decision
favorable to the claimant, plaintiff, it must have to be presented to COA
again before there could be “execution.”
If there is no money to settle that, we all know that it has to be
included in the appropriations for next year so it can be funded.
Government property and funds cannot be garnished, cannot be
executed like any other party to a claim.
4. Suability vs. Liability
Suability depends on whether there is consent while liability depends
on the facts, the evidence and the law.
Article 2180 has long been discussed and included there because the
question is, is that a rule on suability? No, it is the rule on liability.
While 2180 provides for certain liability based on tort, if there is no
consent to be sued, the State cannot be made liable.
Suability depends on the presence or absence of consent. So even if by
law, by facts and evidence, the State is liable, if it has not given its
Page 23
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
consent, you can never prove his liability. Conversely, even if the State
consent, you can sue, yes, but it does not automatically mean that the
State is liable because you must have to prove, by facts, by evidence
and by law, that the State, after giving its consent is liable.
The case there involving a municipal corporation involve the issue of
whether a municipal corporation is suable? Yes because again it has a
charter of its own. But is it liable? It has to depend on whether it was in
a governmental capacity or proprietary purposes because largely, if it is
governmental, it could not be held liable. The individual employees will
be liable, not the municipal corporation.
And your problem, when do you know it is governmental, when do you
know it is proprietary? To provide for electricity, is that governmental,
or public utility, is that a governmental function or a business or a
proprietary function? Just think about it.
E. Government
Government, there’s nothing much there. I will leave to Ms. Mocha
Uson to explain to you what federal system is. Because apparently,
even Malacañang is saying that she is going to discuss it for everybody. I
hope you have followed her on social media because she will be
discussing what the draft Federal Constitution is.
V. THE STRUCTURE AND POWERS OF THE NATIONAL GOVERNMENT
A. LEGISLATIVE DEPARTMENT (CONGRESS)
1. Composition, Qualifications, and Term of Office
a. Senate
Article VI, Section 2. The Senate shall be composed of twenty-four
Senators who shall be elected at large by the qualified voters of the
Philippines, as may be provided by law.
Article VI, Section 3. No person shall be a Senator unless he is a
natural-born citizen of the Philippines and, on the day of the election, is
at least thirty-five years of age, able to read and write, a registered
voter, and a resident of the Philippines for not less than two years
immediately preceding the day of the election.
Article VI, Section 4. The term of office of the Senators shall be six
years and shall commence, unless otherwise provided by law, at noon
on the thirtieth day of June next following their election. No Senator
shall serve for more than two consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term of
which he was elected.
b. House of Representatives
Article VI, Section 5.
1. The House of Representatives shall be composed of not more
than two hundred and fifty members, unless otherwise fixed by
law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and
on the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or
organizations.
2. The party-list representatives shall constitute twenty per centum
of the total number of representatives including those under the
party list. For three consecutive terms after the ratification of this
Constitution, one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or
election from the labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as may be
provided by law, except the religious sector.
3. Each legislative district shall comprise, as far as practicable,
contiguous, compact, and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each
province, shall have at least one representative.
4. Within three years following the return of every census, the
Congress shall make a reapportionment of legislative districts
based on the standards provided in this section.
Article VI, Section 6. No person shall be a Member of the House of
Representatives unless he is a natural-born citizen of the Philippines
and, on the day of the election, is at least twenty-five years of age, able
to read and write, and, except the party-list representatives, a
registered voter in the district in which he shall be elected, and a
resident thereof for a period of not less than one year immediately
preceding the day of the election.
Article IX-C, Section 6. A free and open party system shall be allowed to
evolve according to the free choice of the people, subject to the
provisions of this Article.
Article IX-C, Section 7. No votes cast in favor of a political party,
organization, or coalition shall be valid, except for those registered
under the party-list system as provided in this Constitution.
Article IX-C, Section 8. Political parties, or organizations or coalitions
registered under the party-list system, shall not be represented in the
voters' registration boards, boards of election inspectors, boards of
canvassers, or other similar bodies. However, they shall be entitled to
appoint poll watchers in accordance with law.
With the respect to term of office, except for those first appointed,
there is nothing much there. You just have to remember, because of
the synchronization of the election, the first elected senators under the
1987 elections, serve from 1988 to 1992, for a complete term. While
the term is 6 years, that is not 6 years but that is a complete term. In
Page 24
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
1992 elections, the top 12 will serve for a full term of 6 years, the 2nd
twelve, (13-24), will serve for a full term of 3 years, still, full term.
Thereafter, 1995, we elect 12 senators to serve for a full term of 6
years. Except for those, 1988, 1992, and 1995, there’s an election every
3 years of 12 senators.
That will have to be remembered for the purpose of increases in salary.
We all know that increase of salary for members of Congress, cannot
take effect until after the full term of all the members of that Congress
approving the increase. Not the members that approve, but the
Congress that approved it. So even if you voted no, you cannot get the
increase just because you voted no, until the full term. If you read the
report yesterday, the Supreme Court came up with a new decision on
the contempt powers of Congress.
If you remember that old case, 1940 and 1950 case of Arnault vs.
Nazareno and Balagtas on the contempt powers of Congress,
conducting inquiries in aid of legislation, it said that for as long as the
contumacious behavior continues, that person can be imprisoned.
In yesterday’s news, at least where the spokesperson of the SC (there’s
no full text yet), the idea or the principle before that the Senate is a
continuing body, therefore those cited in contempt can be imprisoned
by the Senate in “perpetual”, is no longer correct, because it should be
coexistent with the duration of the investigation.
If the investigation is really done, even if he continues to be actually in
contempt of the Senate, he should be released because no more
reason or justification for his continued detention, simply because the
investigation for which he has been imprisoned for contumacious
behavior has been terminated. So the idea is while it is continuing,
Senate is a continuing body, because of that 12-12-12 every 3 years. For
the House of Representatives, that’s nothing, because they are elected
every 3 years.
 Qualifications
The only discussion with respect to qualification will be natural born
citizenship and the requirement of residence.
When we say residency, we understand that it means, domicile. The
rule is that a person can have only 1 domicile, it cannot have many. It
can have many actual residences, legal or otherwise, but there’s only
one domicile. Normally, the domicile is domicile at birth, but if a person
changes domicile, then there can be a domicile of choice. It can even be
a domicile of choice because a female has established a family home
(that was part of the discussion in the old case of Romualdez-Marcos vs.
COMELEC where it was said that she maintained a family home in
Manila because of her marriage to the former Senator who became
President, but it need not follow that she has changed residence or
domicile unless the family home is constituted as the new domicile of
choice.)
Domicile can be changed provided there is:
(1) An actual removal or change of domicile;
(2) Good faith and intention to abandon the old and
establish a new one; and
(3) Definite acts which would correspond to the purpose
of effectively changing the domicile.
In the case of Co vs. COMELEC, there was an additional requirements or
characterization, the SC added that while there is an animus revertandi
to revert to your domicile and it must have to be permanent or
continuing, when you change your domicile, there must also be an
intention of not returning to your former domicile. So while you have
acquired a new one, you must not have the intention of returning to
your old domicile, in order for you to acquire a new domicile.
 “Animus Non-revertendi”
The other matters with respect to change of domicile, the old case of
MITRA vs. COMELEC (2010), there is no such thing as subjective legal
standards.
MITRA v. COMELEC
622 SCRA 749 (2010)
In this case, Mitra wanted to run as governor having been a resident of
Puerto Princesa for so long. Since it is no longer a component city of the
Province of Palawan, he has to transfer residence to a municipality on
the province. He transferred to what was apparently an old abandoned
fertilizer warehouse which was devoid of any luxury consistent with his
stature in society.
The argument was that, that could not be his new residence because it
is devoid of any luxury consistent with his being a Mitra. The COMELEC
sustained the argument of the protestant. Mitra lost. The SC reversed it
saying that legally, there can be a change of residence if 1-3 are
present. There is no such thing as subjective legal standards, you
cannot say that this is not his new residence or new domicile because it
is not the same 20 Million worth residence which he used to have.
SABILI vs. COMELEC
670 SCRA 664 (2012)
In this case, it was held that your residence does not even have to be
completed in one time. It can be by increments, transfer today and
then next week. You again do things constitutive of your intention to
transfer your domicile.
CABALLERO vs. COMELEC
771 SCRA 213 (2015)
This involves the natural born citizen who lost it by naturalization and
reacquired it under 9225, he reacquired it say in September 2012, for
the May 2013 election, took an oath, affidavit of renunciation, filed a
COC in October 2012 for the 2013 election. Is he qualified?
He did not comply with the residency requirement. RA 9225 is a law to
reacquire your former natural born status. By executing the
renunciation, he is considered a Filipino citizen only, therefore not
Page 25
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
disqualified as a dual citizen, however, reacquisition under 9225 is to
reacquire citizenship.
When a person who resides or is naturalized abroad, a former natural
born necessarily abandons Philippines as his domicile, because he has
to take up residence in that foreign country. It is not unlike citizenship
where if you reacquire it, it traces back to your origin, residence is not,
because you have to change your domicile from Philippines to that
foreign country.
When you return, having reacquired under RA 9225, you must have to
re-establish your residence. If it is 1 year, if it is 5 or 10 years, as the
case may be, that must have to be complied with, because RA 9225
says aside from that sworn renunciation, you must have all the
qualifications under the law. The law requires at least 1 year for local
elective position.
DANO vs. COMELEC
802 SCRA 446 (2016)
In this case, there is a little twist. The dates were so close. She was from
Sevilla, Bohol, went to the States. She was a nurse, naturalized in the
US, became American and came back. She went back to Sevilla, Bohol,
say February of 2012. She secured a community tax certificate. In
March 2012, she reacquired under RA 9225. In May 2, 2012, she
registered as a voter in Sevilla, Bohol. On May 10, went back to States
and stayed there until September 28, 2012, to wind up her affairs in the
States. She came back on September 30. She executed an affidavit of
renunciation of any and all foreign citizenships. In October 2012, she
filed a certificate of candidacy for mayor of Sevilla, Bohol, ran and won
on the May 2013 elections. Question, is she qualified? Yes.
In Arnado vs. COMELEC, if you are a former natural born who has
reacquired citizenship travelled abroad using US passport, you are
deemed to have revoked your affidavit of renunciation.
This did not happen in the Dano vs. COMELEC case, so there is no
revocation or renunciation. But what about the 1 year period, you must
have to satisfy the 1-year residency. COMELEC naturally disqualified
Dano, saying the she did not comply with the 1 year period, 1 year
being from date of election, not the filing of COC. The reckoning date is
whether she has reacquired residence for 1 year before the May 13,
2013 elections. Remember, the dates were so close, registered as voter
on May 2, 2012, left on May 10, 2012, stayed in the States until
September 28, was absent for 4 months.
The Supreme Court said she complied, the reason being, well there
were several testimonies that because she was literally coming back
before the 2012 election, every time there is fiesta in Bohol she would
give money. Kanang sturya gud na: “Mudagan ko para makaserbisyo ko
sa katawhan.” Look at the philanthropists of the world, they are not
public officials, they could spend their own money, mudagan jud para
naay position, kay gastuhun man ang kwarta sa gobyerno, inyu imung
nawng diha, ”through the initiative of.”
The SC said it can be by increment. Your physical presence in your new
domicile, need not be a 24/7 thing, it need not be unbroken. So for so
long as the intention is there, and there are evidence, quoted by the SC
from testimonies from the punong-barangay, saying that there was
intention of really returning and establishing Sevilla, Bohol, as her new
residence, her stay in the US was actually to wind up her affairs. She
need not take permanent residence again. SC reversed the findings and
decision of COMELEC. So those are the discussion on residence or
domicile.
c. Synchronized Term of Office
ABUNDO vs. COMELEC
688 SCRA 149 (2013)
Although it was in local election, the rules may be applicable with
respect to term limitation. Term limitation has been instituted as part
of qualification and disqualification of office, to ensure that there will
be no concentration of power. To give so-called new blood to politics,
to those who will govern.
The rule before in this case of ALDOVINO vs. COMELEC (2009), there
was only one rule saying that if the interruption is voluntary, it will not
be considered for purposes of term limitation. Meaning, if it is
voluntary, it is supposed to be counted, but if it is involuntary, should it
be counted? For example you are suspended, should it be counted? It
should be counted as well.
In 2013, in the case of ABUNDO, SC collated all the decisions on
successive terms and came up with these rules.
1. On succession, if say, a public official succeeded to a higher
position, of course this does not apply to Congress, that
period of time for that higher position, is not considered as
part of the term.
So if a Vice Mayor succeeds to the Mayor because of the remainder of
the term, that will not be counted as first term for mayor. Conversely,
the same, because the Vice Mayor succeeded to the position for Mayor,
that term for which he was elected as vice mayor should not be
counted for the purpose of term limitation.
This follows now basically, the rule of elected and fully served.
1. If the person is not elected though fully served, not counted
as term. Or, conversely, if he has been elected but not fully
served, not also counted.
For example, if a member of Congress has won, a person has won for a
position in Congress or lower house, an election protest was filed
against that person, that person lost. So he was replaced. Will that be
counted as his term? No. That has happened to Ms. Lucy Torres-Gomez.
The person of the protestant won in the election contest, though he
was elected eventually because he won the election contest, did not
full serve the three year term. So also, not counted.
BANAT vs. COMELEC
586 SCRA 210 (2009)
The ruling in party list, before that case of Banat vs. COMELEC, party list
representatives in Congress will only be able to have a seat if they get
Page 26
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University

that 2% threshold but Banat in 2009 changed it all. In the elections of 2. 250 thousand in population plus 100 million in income.
2007, there were other party lists which did not reach the 2%
threshold, but because the SC has to fill all 20% of the seats even if you So, if requirement is established based on income and area, there is no
only have 150,000 votes, you get one seat, so they were able to have need to establish the 250 thousand for it to have one district.
one representative.
NAVARRO vs. ERMITA
So those parties who were able to benefit from the Banat ruling, had 612 SCRA 131 (2009)
the same representatives from 2009 up to today because the 2007 up
to 2010, not counted, they only count the 2010, 2013 and 2016. So if The requirement of continuous land of 2000 sq. km. cannot be applied
that protestant won, so the one sitting is unseated, that will not be if it is an island province.
counted for the protestant and the protestant, because they have not
been elected and fully served, as the case may be. This is referring to the Dinagat Province in Surigao. With respect to
increase in population leading to additional districts, the first 250 is
This case of conversion of LGU, this happened in Digos. If you are a 3- mandatory, the next 250 is not.
term mayor of a municipality and the municipality, on your 3 rd term is
converted into a city, can you run as first mayor for that city? The SC
That was based on Mariano vs. COMELEC involving Makati, as well as
said no, because it is the same LGU, the same constituency actually.
the case of Aquino vs. COMELEC. For Makati to add additional districts
in the city, the first 250 was declared to be mandatory, the next 250
This case of ALDOVINO vs. COMELEC (2009), on preventive suspension,
was not strictly complied with but almost near to 250.
it is not considered a term interrupting event. Therefore, it is still
considered as part.
In the case of provinces if there as increase of population leading to 500
thousand or 750 thousand, there can be additional districts provided it
There is another peculiar case. In that case, a protest which may be
is nearer to the 250 thousand mark, it may not exactly be 250 thousand
applicable in the Senate and House of Representatives, if a protest is
for an additional district.
filed, but the protest was decided after the protestee has fully served
the term, that term will be considered as the full term of the protestee,
 Party List System
even if the decision is to unseat, because after the expiration of the full
duration of the term, he was elected and he has served, so it will be
The case of ATONG PAGLAUM, INC. vs. COMELEC (2013), practically
counted.
changed the guidelines which was established in the earlier case of Ang
Bagong Bayani as to who or which party can participate in the party list
Unlike in those earlier examples, we said, that if one has been unseated
system while the sectors that could not participate remain by law, the
in the middle of the term, that should not be counted for either. But if
Atong Paglaum redefined thru your Associate Justice Carpio which
the situation is that the protestee has lost after the term has been fully
party can now participate.
served, that term shall be counted for the purpose of term limitation.

ATONG PAGLAUM, INC. vs. COMELEC

August 2, 2018 – Ria Lumapas
694 SCRA 477 (2013)

 Apportionment / Districts
There can be a national, regional or sectoral party. Only a sectoral party
representing those sectors; and the sectors can either be, marginalized
The Constitution states that there shall be one representative per
and underrepresented or those lacking in well-defined constituencies.
district and each city which has a population of 250 shall have one
representative. There is also to re-apportion the districts based on
Also redefined based on these guidelines would be the membership of
increase in population. This is to achieve equality in representation.
the sectors for sectoral parties because of the issues before wherein
members of affluent political families are nominees of sectoral parties
ALDABA vs. COMELEC
representing marginalized sectors.
611 SCRA 137 (2009)
615 SCRA 564 (2010)
So the question is, can the son of a sitting president represent as the
number 1 nominee of a party representing security guards?
The reapportionment based on population must not be on an election
year to determine whether there is a need to increase legislative
The Supreme Court said that there is no need that a nominee must
districts as well as add more for purposes of representation.
belong to that sector because what is required now is they must have a
track record of advocacy respecting that sector, need not belong in that
For provinces there is no requirement of population per se, unlike cities
sector.
the constitution says there is a 250 requirement for population to be
entitled to one. However the Local Government Code requires that for
a territory to be created into a province there must have to be either: ABANG LIGKOD vs. COMELEC
1. [now] 100 million income plus 2000 sq. kms; or 708 SCRA 133 (2013)

Page 27
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University

party, it is with the COMELEC, not the electoral tribunal because a party
The party itself need not have a track record provided that at least one never sits in congress, only the nominee.
nominee has a track record of advocacy in the sector the party seeks to
represent. 2. Election

Election, there’s nothing much to it. Even the law on special elections. It
will tell you there’s a period where a special election cannot be called,
ANAD vs. COMELEC
can be called if it is outside of that period before the next regular
705 SCRA 340 (2013)
election. But for all purposes the calling of a special election would still
depend on the House where the vacancy exists.
This case mandates that the submission of the list of 5 nominees is a
mandatory requirement. Failure to submit within the period set by law
of the list of 5 nominees with acceptance will affect the qualification or
inclusion of that party in the party list election.
The reason why it has to be so is because the public has to be made
a. Regular Election
aware who are the nominees because while the theory is that we elect
parties in the party-list system based on the interest, largely it would
still be based on personality. Article VI, Section 8. Unless otherwise provided by law, the regular
election of the Senators and the Members of the House of
Representatives shall be held on the second Monday of May.
So if your number 1 nominee is a handsome guy perhaps or a beautiful
lady then we vote for that party, not because of the track record of
advocacy. Mao man ng mga Pilipino, basta gwapo gani daog dayun. b. Special Election
Makaluluoy kaayo ang mga bati ug nawong.
Article VI, Section 9. In case of vacancy in the Senate or in the House of
The other reason there, I think, that the law seeks to prohibit is the Representatives, a special election may be called to fill such vacancy in
replacement or substitution of nominees without or outside the the manner prescribed by law, but the Senator or Member of the
allowance of the law or by COMELEC, because the names appearing House of Representatives thus elected shall serve only for the
should be the names of succession or order of succession should there unexpired term.
be a vacancy in the seat assigned to that party. So to prevent any
unauthorized substitution of nominees these names must have to be Article IX-C, Section 11. Funds certified by the Commission as necessary
submitted and thereafter published. to defray the expenses for holding regular and special elections,
plebiscites, initiatives, referenda, and recalls, shall be provided in the
Now the case of LICO vs. COMELEC (2015) has something to do with regular or special appropriations and, once approved, shall be released
the jurisdiction of the electoral tribunal and the COMELEC with respect automatically upon certification by the Chairman of the Commission.
to party-list system election.
3. Salaries, Privileges and Disqualifications
The rule of thumb there is if it affects the person who sits in congress,
any issue involving him even if it is framed as a party issue, it has to be a. Salaries
with the electoral tribunal because it affects a member of the lower
house.
Article VI, Section 10. The salaries of Senators and Members of the
House of Representatives shall be determined by law. No increase in
LICO vs. COMELEC said compensation shall take effect until after the expiration of the full
771 SCRA 596 (2015) term of all the Members of the Senate and the House of
Representatives approving such increase.
This was supposed to be an issue of party disloyalty. The party wanted
to remove him as he was already removed from the party membership.
Thing to remember about salaries is the prohibition on increase. As
They wanted to remove him from the House where he was already
mentioned, it would only take effect after the expiration of the full
sitting.
term of the members of that congress approving the increase. A law
may be passed but it can never take effect during that time.
ISSUE: Which has jurisdiction: the Electoral Tribunal or COMELEC?
b. Freedom from Arrest
RULING: It is the electoral tribunal although the issue seems to be intra-
party, but because it affects his seat in congress then the issue involves
Article VI, Section 11. A Senator or Member of the House of
a member of the House of Representatives, it is the electoral tribunal.
Representatives shall, in all offenses punishable by not more than six
years imprisonment, be privileged from arrest while the Congress is in
So, if it is a nominee not sitting in the House of Representatives the
session. No Member shall be questioned nor be held liable in any other
issue is with COMELEC. If the issue is qualification or inclusion of a

Page 28
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
place for any speech or debate in the Congress or in any committee
thereof.
Freedom from arrest and speech and debate clause, are two of the
more important privileges members of congress have. This is to ensure
continued democratic representation, to allow them to reasonably or
effectively discharge the functions of their office.
Under the freedom of arrest it is for offenses where the penalty does
not go more than six (6) years and that it is claimable while congress is
in session.
In the 1973 Constitution, it was while going to attend the session,
attending and coming from a session. Under the present, it is for the
entire duration of the regular session regardless of whether that
member is going to, attending in or coming from a session.
The regular session starts every 4th Monday of July until the mandatory
30-day adjournment from the opening of the next regular session
exclusive of Saturdays, Sundays and legal holidays.
c. Speech and Debate Clause
They shall not be held liable in any other place for any speech and
debate done in congress or in any committee thereof. They can be held
liable in congress though but not outside of congress by declaring them
to have violated the rules on discipline of that particular house.
d. Disqualifications
Members of Congress do not have specific disqualifications, except for
these two: incompatible and forbidden office.
1. Incompatible and Forbidden Offices
Article VI, Section 13. No Senator or Member of the House of
Representatives may hold any other office or employment in the
Government, or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their
subsidiaries, during his term without forfeiting his seat. Neither shall he
be appointed to any office which may have been created or the
emoluments thereof increased during the term for which he was
elected.
Incompatible office can be taken but must have to waive or give his
seat in congress. Example is Representative, now Secretary, Mark Villar.
Immediately after election, took his oath and thereafter appointed to
the cabinet.
Forbidden office, on the other hand, is an office which was created
when that person was a member of congress which cannot be taken
even if that member is willing to forfeit his seat in congress.
2. Other Prohibitions
Article VI, Section 14. No Senator or Member of the House of
Representatives may personally appear as counsel before any court of
justice or before the Electoral Tribunals, or quasi-judicial and other
administrative bodies. Neither shall he, directly or indirectly, be
interested financially in any contract with, or in any franchise or special
privilege granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled
corporation, or its subsidiary, during his term of office. He shall not
intervene in any matter before any office of the Government for his
pecuniary benefit or where he may be called upon to act on account of
his office.
Article XI, Section 16. No loan, guaranty, or other form of financial
accommodation for any business purpose may be granted, directly or
indirectly, by any government-owned or controlled bank or financial
institution to the President, the Vice-President, the Members of the
Cabinet, the Congress, the Supreme Court, and the Constitutional
Commissions, the Ombudsman, or to any firm or entity in which they
have controlling interest, during their tenure.
The other disqualifications basically are of financial interest which a
member of congress is using his influence as a member of congress. If a
contract is entered into above ground which is not basically granted by
reason of his being a member of congress, that is not prohibited.
The exercise of profession for members of congress is technically not
prohibited except that for lawyers there’s a strict limitation that they
could not appear in courts or tribunals, but for any other kind of
practice it is not prohibited. Although the Code of Professional
Responsibility would tell you that there must have to be some
indication that if you are not allowed by your office to practice it must
so be indicated.
The duty to disclose applicable to members of congress are those
relating to authorship of a bill which could possibly be in conflict with
their interest. The other which is the disclosure requirement under
existing laws, you have to submit your SALN.
e. Duty to Disclose
Article XI, Section 17. A public officer or employee shall, upon
assumption of office and as often thereafter as may be required by law,
submit a declaration under oath of his assets, liabilities, and net worth.
In the case of the President, the Vice-President, the Members of the
Cabinet, the Congress, the Supreme Court, the Constitutional
Commissions and other constitutional offices, and officers of the armed
forces with general or flag rank, the declaration shall be disclosed to
the public in the manner provided by law.
Article VI, Section 12. All Members of the Senate and the House of
Representatives shall, upon assumption of office, make a full disclosure
of their financial and business interests. They shall notify the House
concerned of a potential conflict of interest that may arise from the
filing of a proposed legislation of which they are authors.
Page 29
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University

Article VI, Section 20. The records and books of accounts of the So even if they want to vote for Sgt.-at-arms, prince charming, muse,
Congress shall be preserved and be open to the public in accordance you cannot go and say that is unconstitutional. Yes it is not there, but it
with law, and such books shall be audited by the Commission on Audit is also not prohibited.
which shall publish annually an itemized list of amounts paid to and
expenses for each Member. b. Quorum

4. Internal Government of Congress Article VI, Section 16.

a. Election of Officers xxx

Article VI, Section 16.
1. The Senate shall elect its President and the House of
Representatives, its Speaker, by a majority vote of all its
respective Members. Each House shall choose such other officers
as it may deem necessary.
2. A majority of each House shall constitute a quorum to do
business, but a smaller number may adjourn from day to day and
may compel the attendance of absent Members in such manner,
and under such penalties, as such House may provide.
Quorum refers to the minimum number required for each house to
have to conduct business.

Now in federal system of government, election of officers, now we have
a similar problem this time because of the re-organization of the lower
house. And apparently, yesterday speaker GMA recognized Rep. Danilo
Suarez as the minority leader still. Farinas was ousted and threatened
that he will bring the case in court. He contended that if you have voted
for GMA as speaker then you could not be in the minority. Perhaps he
forgot the case of SANTIAGO vs. GUINGONA (1998).
SANTIAGO vs. GUINGONA
298 SCRA 756 (1998)
This was the election of the Senate President, but still election of
officers. 10 senators from the majority Laban ng Masang Pilipino
(LAMP), 7 was from Lakas-NUCD, there was 1,1,1,1,1 from other parties
and 2 independents, Santiago et al. Voting was 20-2-2 for Senate
President; 20 that included the 10 from majority, 7 from Lakas-NUCD,
the 3 from other parties, etc.
AVELINO vs. CUENCO
83 PHIL 17 (1949)
ISSUE: From which number do we base our quorum?
There are situations where not all 24 seats in the senate are filled. In
this case, one was not in the Philippines while the other 23 were here.
Supreme Court said you only consider the 23 and not the 24 because
one was not around and could not be reached by the processes.
To do business you need a quorum, a number lower than the quorum
can do either of these acts with legal consequences to adjourn and
compel the attendance, order the arrest of members to compel their
attendance in sessions.
With respect to quorum and voting majority, here is a rundown:

The question now is who shall lead the minority. Teofisto Guingona was
ACTS OF CONGRESS VOTING MAJORITY
part of the 7 from Lakas-NUCD voted for the Senate President and he
was elected as minority leader. Santiago brought the case to the SC.
Election of Officers Majority vote

Supreme Court discussed the concept of majority and minority. When

To suspend or expel a member 2/3 vote
you speak of majority, it is the party which has the most number of
members. In this case 10 from LAMP, all the rest would be minority
To discipline a member with less Majority vote
parties. Any one from the minority parties can be the minority leader.
than suspension or expulsion

What about the argument of Santiago that if you voted for the
To declare the existence of a state 2/3 vote in joint session, voting
president or in the case of GMA, the speaker, then you should be
of war separately
considered part of the majority.

To grant emergency powers to Majority vote

The SC discussed what majority is in relation to voting. When there is
the President
voting or election, majority means plurality; he who has the most
number of votes. It is not 50% plus 1. There is no violation of the
Constitution because the latter only requires election of Senate Choosing a President in case of a Majority vote in a joint session,
President and Speaker of the House. All the rest are based on the rules tie with Congress acting as the voting separately
respecting the particular house. canvassing body

To decide the President’s 2/3 vote in a joint session, voting

temporary disability, if contested separately

Page 30
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University

Confirming choice of Vice-
President in case of vacancy
To review the exercise of
Commander-in-Chief powers of
the President
Majority vote of both Houses,
voting separately
Majority vote of both Houses,
joint voting
What is disorderly behavior?
That depends on the house which would provide for the rules on how
to discipline their members. The question that is always asked is can
the SC by judicial interpretation declare a rule on discipline as grave
abuse of discretion amounting to lack or excess of jurisdiction.

To concur in amnesty
To concur a treaty by the Senate
To amend or revise the
Constitution by Constituent
Assembly
To amend or revise the
Constitution by Constitutional
Convention
c. Rules of Proceedings
Article VI, Section 16.
Simple majority vote There’s yet to be a decision by the SC on that matter. What the SC has
ruled upon is on the imposed penalty of suspension. The suspension
2/3 vote now is limited to sixty (60) days; whereas, before there was no
limitation.
3/4 vote in a joint session, voting
separately The discussion in an old case was that unlike in expulsion, while the
constituents may have no representation for the moment because
there is a vacancy there is a possibility of an election, the constituents
2/3 vote, voting separately; or by will have a new representative. If it is by suspension the member
majority vote in a joint session, remains a member although the constituents have no representation.
voting separately
The reason why if it is prolonged the damage is not really to the
member himself but to the constituents, the SC can correct if the
period is too long. And as mentioned earlier, it has to require a vote of
2/3.

Two cases, the case of Baterina vs. Singson (1992) and Delgado vs.
3. Each House may determine the rules of its proceedings, punish its
Members for disorderly behavior, and, with the concurrence of Pichay (2016).
two-thirds of all its Members, suspend or expel a Member. A
penalty of suspension, when imposed, shall not exceed sixty days. BATERINA vs. SINGSON

Article VI, Section 21. The Senate or the House of Representatives or
any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure. The
rights of persons appearing in, or affected by, such inquiries shall be
respected.
Section 21 is a special rule on inquiries in aid of legislation. There is a
requirement for publication of the rules. Legislative discretion
respecting the rules required as part of the due process protection, that
if the rule applied affects persons not members of congress they must
have to be published but those internal to them need not be published.
It is quite specific. It must have to be published. Without publication
there can be no inquiries in aid of legislation. When the Constitution
says it must have to be published, each numbered congress must have
to publish their own rules. Meaning, if you say 15th Congress, the 16th
Congress cannot just take it as their own rules without publishing it as
their own.
d. Discipline of Members
Article VI, Section 16.
Rep. Singson was arrested in Hongkong for possession of prohibited
drugs. He was arrested, prosecuted, charged, imprisoned and served
jail time. During his imprisonment there was an issue as to his
membership in the congress because he was a sitting member thereof.
But because he had a lot of buddies in congress he was not removed for
“disorderly behavior”. And then the term of office ended, he ran again
for the same seat. Baterina filed a protest arguing that he is disqualified
having been convicted of a crime.
The SC said that while he was convicted, conviction of a crime need not
carry disqualification because it was not a crime involving moral
turpitude.
DELGADO vs. PICHAY
Rep. Pichay was charged with libel and found guilty and there was a
question on his qualification.
SC said libel is a crime which involves moral turpitude and so, Rep.
Pichay was disqualified.

xxx
3. Each House may determine the rules of its proceedings, punish its
Members for disorderly behavior, and, with the concurrence of
two-thirds of all its Members, suspend or expel a Member. A
penalty of suspension, when imposed, shall not exceed sixty days.
So do not libel any person, just use drugs. Kasi walang moral turpitude
ang drugs. SC said it’s not selling, pero kung gamit2x lang, pwede ka pa
rin tumakbong presidente, senator or congressman.
e. Journal and Congressional Records

Page 31
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Article VI, Section 16.
xxx
4. Each House shall keep a Journal of its proceedings, and from time
to time publish the same, excepting such parts as may, in its
judgment, affect national security; and the yeas and nays on any
question shall, at the request of one-fifth of the Members
present, be entered in the Journal. Each House shall also keep a
Record of its proceedings.
These are official documents required by the Constitution to be had by
both houses. So they are the official repository of proceedings. Journal
reflects normally the salient portions of legislation.
Which prevails, the journal entry or the enrolled bill?
The journal entry is an official document and is supposed to be
conclusive as to the matters written therein. What time did congress
start session, members present, whether there is a quorum, time
adjourned, what matters taken, discussion, bills. If there is an issue
what the bill provides, should the journal entry be examined and
prevail over what has been indicated in the enrolled bill? We all know
that the enrolled bill is that bill submitted to the president in a
procedure what we know as bill presentment.
By the way I was told by someone who knows about the Bangsamoro
Organic Law that the bill presented to the president did not contain the
signature of the speaker.
The question is what is the effect if the enrolled bill does not contain
one of the signatures of the responsible officers? The bill requires the
authentication of the responsible officers of both houses indicating that
this was the approved version of both houses.
And as we all know there was the change in the leadership in the lower
house because that bill was supposed to have been signed in the
morning to be included in the SONA in the afternoon. But because they
were so busy trying to oust Pantaleon they forgot all about it. I don’t
know whether they corrected it. I suppose it was already signed by the
new speaker.
In all matters which the constitution requires that must have to be
entered in the journal, the journal prevails: how was the voting, which
votes won, the yes or the no, who was present, was there a quorum.
But if the question involves the provisions of a bill it must have to be
the enrolled bill because that is the approved version which is
eventually presented to the president and therefore that is conclusive
as to the words and phrases of provisions as found therein.
5. Sessions
a. Regular Sessions
Article VI, Section 15. The Congress shall convene once every year on
the fourth Monday of July for its regular session, unless a different date
is fixed by law, and shall continue to be in session for such number of
days as it may determine until thirty days before the opening of its next
regular session, exclusive of Saturdays, Sundays, and legal holidays. The
President may call a special session at any time.
Article VI, Section 16.
xxx
5. Neither House during the sessions of the Congress shall, without the
consent of the other, adjourn for more than three days, nor to any
other place than that in which the two Houses shall be sitting.
GUEVARA vs. INOCENTES
16 SCRA 379 (1966)
This is just a case involving that rule that because Congress is a
bicameral body, Congress cannot function if only one house is
functioning. The Constitution requires that If one house is adjourned
the other house must have to inform the other house. There is this
protocol that both must have to function.
If you are familiar with legislative work they even have a common
calendar so that they will know when to have vacations, recess because
constitutionally both houses must have to be functioning.
b. Special sessions
Article VI, Section 15. The Congress shall convene once every year on
the fourth Monday of July for its regular session, unless a different date
is fixed by law, and shall continue to be in session for such number of
days as it may determine until thirty days before the opening of its next
regular session, exclusive of Saturdays, Sundays, and legal holidays. The
President may call a special session at any time.
Article VII, Section 10. The Congress shall, at ten o'clock in the morning
of the third day after the vacancy in the offices of the President and
Vice-President occurs, convene in accordance with its rules without
need of a call and within seven days, enact a law calling for a special
election to elect a President and a Vice-President to be held not earlier
than forty-five days nor later than sixty days from the time of such call.
The bill calling such special election shall be deemed certified under
paragraph 2, Section 26, Article V1 of this Constitution and shall
become law upon its approval on third reading by the Congress.
Appropriations for the special election shall be charged against any
current appropriations and shall be exempt from the requirements of
paragraph 4, Section 25, Article V1 of this Constitution. The convening
of the Congress cannot be suspended nor the special election
postponed. No special election shall be called if the vacancy occurs
within eighteen months before the date of the next presidential
election.
Article VII, Section 11. Whenever the President transmits to the
President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to discharge
the powers and duties of his office, and until he transmits to them a
written declaration to the contrary, such powers and duties shall be
discharged by the Vice-President as Acting President.
Page 32
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University

the same weight respecting their votes regardless of the number of

Whenever a majority of all the Members of the Cabinet transmit to the
President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable
to discharge the powers and duties of his office, the Vice-President
shall immediately assume the powers and duties of the office as Acting
President.
members.
The martial law declaration or suspension of writ of habeas corpus is
the constitution requiring that voting shall be joint. In all other matters
it is silent and therefore the presumption is separate in order to put a
balance on the weight of the vote of each house.

Thereafter, when the President transmits to the President of the Senate

and to the Speaker of the House of Representatives his written
declaration that no inability exists, he shall reassume the powers and
duties of his office. Meanwhile, should a majority of all the Members of
the Cabinet transmit within five days to the President of the Senate and
to the Speaker of the House of Representatives, their written
declaration that the President is unable to discharge the powers and
duties of his office, the Congress shall decide the issue. For that
purpose, the Congress shall convene, if it is not in session, within forty-
eight hours, in accordance with its rules and without need of call.
If the Congress, within ten days after receipt of the last written
declaration, or, if not in session, within twelve days after it is required
to assemble, determines by a two-thirds vote of both Houses, voting
separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise,
the President shall continue exercising the powers and duties of his
office.
August 7, 2018 – Jennifer Mortejo
6. Electoral Tribunal
Article VI, Section 17. The Senate and the House of Representatives
shall each have an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the Supreme Court to be
designated by the Chief Justice, and the remaining six shall be Members
of the Senate or the House of Representatives, as the case may be, who
shall be chosen on the basis of proportional representation from the
political parties and the parties or organizations registered under the
party-list system represented therein. The senior Justice in the Electoral
Tribunal shall be its Chairman.

Article VI, Section 19. The Electoral Tribunals and the Commission on
Article VII, Section 18.
Appointments shall be constituted within thirty days after the Senate
xxx
and the House of Representatives shall have been organized with the
election of the President and the Speaker. The Commission on
The Supreme Court may review, in an appropriate proceeding filed by
Appointments shall meet only while the Congress is in session, at the
any citizen, the sufficiency of the factual basis of the proclamation of
call of its Chairman or a majority of all its Members, to discharge such
martial law or the suspension of the privilege of the writ or the
powers and functions as are herein conferred upon it.
extension thereof, and must promulgate its decision thereon within
thirty days from its filing.
a. Composition

Those situations call for special sessions although the constitution also
There shall be what we refer to as, legislative component and the
states that they can also call special sessions anytime. That should not
judicial component – There are 3 members of the Supreme Court and 6
literally be understood but only in those occasions where congress is
members of the House to which the electoral tribunal belongs.
not in regular session.

b. Nature of Function
However in the context of congress calling for a session to tackle any
other business, that can be a special session that can be called at any
It is exercising quasi-judicial function and by this reason, it is supposed
other time. If it is not in the legislative calendar but there is a need to
to be the sole judge of all contests relating to elections, returns and
tackle a new matter then congress can call for a special session and that
qualifications of the respective branch. It has been ruled in several
is what is meant by calling a special session at any other time.
cases that members of the Electoral Tribunal representing the
legislative component sit as Judges with security of tenure. They cannot
c. Joint sessions
be removed by their party just because of party disloyalty arising from a
decision which is contrary to their party list. When they sit in the
The only discussion here is on the manner of voting. Because of the
Electoral Tribunal, they will be nominated by the party because of
bicameral nature, the presumption is that even in joint session, voting
proportional representation. They will act solely based on the facts and
shall always be separate. Otherwise, 24 Senators will always be out-
merits of the case.
voted by now almost 300 members of the House of Representatives.

They can be removed by the party for some legal grounds, even party
Unless the constitution states that voting shall be joint, the
disloyalty, except when the cause of the party disloyalty is that voting
presumption is that voting shall be separate vote. Each house will carry
against a party’s interest in the elections contest pending before it.

Page 33
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
What is included in the “elections, returns and qualifications”?
BARBERS vs. COMELEC
460 SCRA 569 (2009)
Election referred to the conduct of the polls, including the listing of
voters, the holding of the electoral campaign, and the casting and
counting of the votes;
Returns to the canvass of the returns and the proclamation of the
winners, including questions concerning the composition of the board
of canvassers and the authenticity of the election returns; and
Qualifications to matters that could be raised in a quo warranto
proceeding against the proclaimed winner, such as his disloyalty or
ineligibility or the inadequacy of his certificate of candidacy.
Is there a pre-proclamation controversy cases for national positions?
There’s none.
Is Congress a local or national position?
(Wala naghatag ug answer si Sir.)
 Jurisdiction
The jurisdiction of the Electoral Tribunal invariably before the case of
Reyes vs. COMELEC (2013), which was asked in the 2014 Bar Exams,
only requires a proclamation, an oath and the term of office must have
started or commenced (meaning, starting at noon of June 30 following
the day of elections). So there’s a timeline determined any of these
issues while it may have been initially filed or instituted with the
COMELEC, as soon as that person becomes a Member of the House,
jurisdiction will now lie with the Electoral Tribunal.
In 2013, in the case of REYES vs. COMELEC (2013), the Supreme Court
changed it by qualifying proclamation. Proclamation must have to be
valid. So that if there’s a prior question still pending on the
proclamation of a person, he is not yet deemed to be a member of the
House concerned. Therefore, the issue may still be entertained by the
COMELEC until there’s a final resolution of the case. In this case of
Reyes, the issue on disqualification was raised before the Supreme
Court and was decided accordingly. The petitioner failed to ask for any
remedy thereafter thinking that because she had won in the elections,
she would now be a Member. But because of issue of the validity of the
proclamation, having been previously disqualified in a final decision,
the Supreme Court said there was no valid proclamation. She remained
to be a non-Member of the House of Representatives. Of course it
helps that the protestant in the case was the son of a sitting Justice in
the Supreme Court, Justice Presbitero Velasco.
c. Independence of the Electoral Tribunal
As mentioned earlier, because they sit as Judges, they enjoy such
security of tenure.
d. Powers
e. Judicial Review of Decisions of Electoral Tribunals
For so long as the Electoral Tribunal has decided the case within the
limited jurisdiction it has, its decisions are considered final. But under
judicial review, if there is grave abuse of discretion, it shall be subject to
review by the Supreme Court.
7. Commission on Appointments
Article VI, Section 18. There shall be a Commission on Appointments
consisting of the President of the Senate, as ex officio Chairman, twelve
Senators, and twelve Members of the House of Representatives,
elected by each House on the basis of proportional representation from
the political parties and parties or organizations registered under the
party-list system represented therein. The chairman of the Commission
shall not vote, except in case of a tie. The Commission shall act on all
appointments submitted to it within thirty session days of the Congress
from their submission. The Commission shall rule by a majority vote of
all the Members.
Article VI, Section 19. The Electoral Tribunals and the Commission on
Appointments shall be constituted within thirty days after the Senate
and the House of Representatives shall have been organized with the
election of the President and the Speaker. The Commission on
Appointments shall meet only while the Congress is in session, at the
call of its Chairman or a majority of all its Members, to discharge such
powers and functions as are herein conferred upon it.
 Composition
- 24 members
- The 25th member is the Senate President who shall
preside but will not vote unless there is a tie.
- The 12-12 from each House shall be filled out based on
proportional representation.
Basically, the Commission on Appointments performs executive
function although they are composed of members of Congress. They
are in relation to the check and balance principle on the appointing
powers of the President.
They have power to reject or confirm appointments made by the
President under the 1st paragraph of Section 16 of Article VII:
Article VII, Section 16. The President shall nominate and, with the
consent of the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him
in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by
law, and those whom he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
Page 34
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
The list is exclusive. Congress cannot, by legislation, provide for an
additional qualification for CA confirmation unless it falls under the 1st
sentence of Section 16:
1. Heads of Executive Departments
2. Ambassadors
3. Other public ministers and consuls
4. Officers of the armed forces from the rank of colonel or naval
captain, and
5. Other officers whose appointments are vested in him in this
Constitution
Parts of that list of those appointed by him are the party-list
representatives for the first 3 terms under the 1987 Constitution, which
has long been abandoned because of the Party List System Election Act.
 Other matters with respect to Commission on
Appointments (CA) are:
1. Extent of Powers
Can it reject any appointment made by the President?
Of course it can.
Conversely, can it approve also or confirm all appointments made by
the President because they are of the same party affiliation? Asking
the question, is the decision of the CA to confirm or reject an
appointment subject to judicial review?
If by rejection or rejecting an appointment or nomination made by the
Executive, there’s hardly any issue on grave abuse because it has the
power to reject.
But what about if it is to confirm? If there is no other legal or
constitutional provision violated in confirming a nomination made,
there could be no issue on judicial review. But if there is a legal or
constitutional qualification required and yet despite its want or lack
thereof, the CA confirm the nomination, it may be a grave abuse of
discretion and be subjected to judicial review.
If you remember there was a recent issue on citizenship of Perfecto
Yasay and eventually, his nomination was rejected. Assuming there was
an issue on whether or not he is still a Filipino citizen yet his nomination
was confirmed, then it could be subjected to judicial review because
that could be in grave abuse of discretion. But if the qualification is
based on what your President has said, “the best and the brightest”
even if it’s Mocha Uson (LOL), that cannot be subjected to judicial
review because it is very subjective. It is a subjective non-legal standard
unlike age, residence or citizenship, these are legal standards.
If a nomination is by-passed, there is no limitation on the executive
making another nomination because to by-pass a nomination is simply
not acting on it with Congress taking a recess to adjourn. The CA only
performs or is going to exercise its functions when Congress is in
session. Therefore, if the Congress is not in session, the CA is also not
functioning. If the nomination submitted to the CA is not acted and
Congress is in recess or adjourned, the nomination is deemed by-
passed.
The President can make a re-nomination up to whenever he likes but
when the CA rejects a nomination, that’s the end for that person for
that specific position. He can be nominated in other positions because
his rejection by the CA was for a particular position as he has been
nominated for. He was not rejected for being himself but only for his
appointment or nomination for that position.
2. Concept of Ad Interim or Recess Appointments
This is technically referring to appointments requiring CA confirmation
made while Congress is not in session or when the CA is not
functioning. If the appointment does not need CA confirmation because
it does not fall in the first sentence of Section 16 of Article VII and made
during recess, it is not an ad interim appointment.
The distinction is important for purposes of the efficacy of the
appointment:
a. An appointment without requiring CA confirmation, which
is made while Congress is in session, is effective upon
acceptance. And even if there is any action taken thereafter,
provided it has been accepted, it is considered effective.
b. In an ad interim appointments, strictly, it is still subject to
CA confirmation later. While it is valid for the moment
because Congress is not functioning and CA is not able to
function too, the CA can eventually act on it and reject the
nomination made.
8. Power of Congress
A. General Plenary Powers
Article VI, Section 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House
of Representatives, except to the extent reserved to the people by the
provision on initiative and referendum.
Subject to the substantive limitations which are all provided in the Bill
of Rights and some other specific provisions in the Constitution
(1) Substantive Limitations
(a) Express Substantive Limitations
 Article III (Bill of Rights)
 Article VI, Sections 25 and 28
 Article XIV, Section 4(3)
 Article VI, Section 29
(b) Implied Substantive Limitations
1. Prohibition against delegation of legislative power
Page 35
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
What is being exercised by the Congress is already a delegated power
and so the Congress cannot delegate it further, unless allowed, subject
to the usual tests of an allowable delegation which are the following:
a. Completeness of Statute
b. Sufficiency of Standards
The Sufficiency of Standards Test is being used more now because
Congress has not been enacting too many laws completely on its terms
once it has been delegated.
Most of the examples on the Doctrine of Non-Delegation would be in
the legislative power. But we all know that this doctrine applies to all of
the other powers of Congress. Executive Power cannot be delegated
unless allowed and the allowance is under the Doctrine of Qualified
Political Agency. Judicial Power cannot also be delegated although by
system, it is exercised by one Supreme Court and such other lower
courts as may be provided for by law. In which case, there is a
“delegation” to the lowest courts subject to final review of the
Supreme Court in appropriate cases.
 Subordinate Legislation
It is the rule-making power when Congress exercises legislative power
and delegates the formulation of rules and regulations to implement
the provisions of existing law. The limitations are the following:
a. The rules and regulations must not be contrary to the
Constitution;
b. Must not be contrary to the law; and
c. Must be within the terms of the delegated authority.
The sufficiency of standards test is normally used. It is not required
however that all the standards are set in one law. It is allowable that
several laws on the same subject matter will provide for several
standards and which all standards taken altogether, may be considered
as sufficient to provide for such rules and regulations.
There are two types of rule-making power which are delegated to
administrative agencies:
1. Supplementary rule-making power
o To fill up the details of the law or its enforcement
2. Contingency rule-making power
o The power of the delegate to ascertain facts to bring in
to law its actual operation. It is not simply filling it up
but there’s a discretion granted to ascertain certain
facts to make the law operative.
 Exceptions to Non-Delegation Doctrine
a. Delegation to the President
This refers to flexible tariff clause under Section 28 (2) and emergency
powers provision under Section 23 (2) of Article VI:
Article VI, Section 23. (1) The Congress, by a vote of two-thirds of both
Houses in joint session assembled, voting separately, shall have the sole
power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall cease upon the next
adjournment thereof.
Article VI, Section 28. xxx
(2) The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as it
may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of
the national development program of the Government.
b. Delegation to the People
Article VI, Section 32. The Congress shall, as early as possible, provide
for a system of initiative and referendum, and the exceptions
therefrom, whereby the people can directly propose and enact laws or
approve or reject any act or law or part thereof passed by the Congress
or local legislative body after the registration of a petition therefor
signed by at least ten per centum of the total number of registered
voters, of which every legislative district must be represented by at
least three per centum of the registered voters thereof.
There is a question in relation to Section 1 of Article VI, whether that is
delegated authority, because it states that:
Section 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent
reserved to the people by the provision on initiative and
referendum.
There is a reservation for the People when they exercise initiative and
referendum because the origin of legislative power would be the
sovereign people. However, under the last section of Article VI (as cited
above), there is a need for Congress to legislate for the People to
exercise initiative and referendum or power to legislate under initiative
and referendum. In which case, it is deemed ti be delegated because
unless there is a law allowing such exercise of legislative powers
seemingly reserved to the People under Section 1, it could not be
exercised and so Congress had to enact.
Republic Act 6735 provides for rule on initiative. Actually, it should be
rules on initiative or referendum because the term initiative suggests
that the intent or the motive to legislate comes from the proponents
which would be the people. The referendum, on the other hand, is
supposed to be coming from the State subjecting a question or
proposition to the electorate whether or not they will accept a
proposed legislation. The people can exercise initiative; they can only
Page 36
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
respond to a referendum. If there is no proposition submitted by the
State to them, they will never be able to exercise referendum.
RA 6735 provides for certain requirements on representation or
percentages on who can initiate but largely, it will tell us that initiative
must come from the electorate and there’s a requirement of 10% of
the total number of the registered voters, of which every legislative
district is represented by at least three per centum (3%) of the
registered voters thereof if it is a national statute. If it’s a local
legislation, there’s a minimum requirement for the number of
electorate to initiate them from barangay, municipal, city, province,
including the ARMM.
What the law requires is for the petitioners to make the proposal in full
and this will be submitted to the electorate for their confirmation by
signatures. The COMELEC is supposed to task to verify the authenticity
of the signatures including the compliance of the required number of
electorates, whether by number of by percentage. After which, there
will be an electoral exercise to be made in order for the rest to accept
its propositions.
2. Prohibition against passage of irrepealable laws
(2) Procedural Limitation
Article VI, Section 26.
1. Every bill passed by the Congress shall embrace only one subject
which shall be expressed in the title thereof.
2. No bill passed by either House shall become a law unless it has
passed three readings on separate days, and printed copies
thereof in its final form have been distributed to its Members
three days before its passage, except when the President certifies
to the necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill, no
amendment thereto shall be allowed, and the vote thereon shall
be taken immediately thereafter, and the yeas and nays entered
in the Journal.
Article VI, Section 27.
1. Every bill passed by the Congress shall, before it becomes a law,
be presented to the President. If he approves the same he shall
sign it; otherwise, he shall veto it and return the same with his
objections to the House where it originated, which shall enter the
objections at large in its Journal and proceed to reconsider it. If,
after such reconsideration, two-thirds of all the Members of such
House shall agree to pass the bill, it shall be sent, together with
the objections, to the other House by which it shall likewise be
reconsidered, and if approved by two-thirds of all the Members of
that House, it shall become a law. In all such cases, the votes of
each House shall be determined by yeas or nays, and the names
of the Members voting for or against shall be entered in its
Journal. The President shall communicate his veto of any bill to
the House where it originated within thirty days after the date of
receipt thereof, otherwise, it shall become a law as if he had
signed it.
2. The President shall have the power to veto any particular item or
items in an appropriation, revenue, or tariff bill, but the veto shall
not affect the item or items to which he does not object.
We follow the 3-3-3 rule; 3 readings on 3 separate days and there shall
be printed copies submitted at least 3 days before the 3rd and final
reading.
We understand that each bill will be processed in each House following
that rule. 1st and 2nd readings are the most important because it is
where the discussions are made. The 3rd reading is reserved for voting,
there shall be no other discussions allowed. Under our journal entry
rule, the votes of the 3rd and final reading are supposed to be entered
in the journal. Once it is approved in one House, it will be forwarded to
the other House for their own deliberations. It shall pass the same rule
on 3-3-3 in the other House, after which if so approved, the bill will be
certified and it is referred to as an enrolled bill which will be presented
to the President under the process of bill enrollment for his action
whether to approve, to veto or to sit on it.
The other issue there is, if the bill is certified as urgent, can the Houses
of Congress do away with the procedural limitations?
3 readings cannot be dispensed with. It can be dispensed on separate
days. The 1st reading can be done now, discussed thereafter and vote
thereafter. It need not be on separate days. Should printed copies be
had before the 3rd and final reading? There’s one case I remember
which says that the printing is also exempt. I did not include it in your
outline because while the intent of the ruling is correct, it cannot be
dispensed with because what is there to submit to the other House for
consideration. It need not be submitted at least 3 days before but there
must have to be printed copies of the final draft as approved by the
House in order for it to be forwarded to the other House for its
consideration. The certification of urgency of the bill does not therefore
exempt the need to have a printed copy of the final draft of the bill.
B. Question Hour
Article VI, Section 22. The heads of departments may, upon their own
initiative, with the consent of the President, or upon the request of
either House, as the rules of each House shall provide, appear before
and be heard by such House on any matter pertaining to their
departments. Written questions shall be submitted to the President of
the Senate or the Speaker of the House of Representatives at least
three days before their scheduled appearance. Interpellations shall not
be limited to written questions, but may cover matters related thereto.
When the security of the State or the public interest so requires and
the President so states in writing, the appearance shall be conducted in
executive session.
C. Legislative Investigations
Article VI, Section 21. The Senate or the House of Representatives or
any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure. The
Page 37
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
rights of persons appearing in, or affected by, such inquiries shall be
respected.
These are part of what is referred to as Oversight Functions of
Congress. There are 3 oversight functions of Congress:
1. Scrutiny
This is usually where question hour would fall and the usual form of
legislative scrutiny is the budget hearings; when members of the Heads
of the different offices of the Government are asked or “investigated”
during budget hearings. Heads of the departments and offices must
have to explain to Congress why they are asking for such an
appropriation for that year. And it’s an opportune time for members of
Congress to determine what that office is doing and what that office is
intending to do with its requested appropriation. That applies to ALL
offices and officers in Government.
For question hour however, it has limited application because it refers
only to Heads of the Executive Department. The Constitution requires
that there must have to be prior consent of the President and there
must have to be written questions submitted to the Heads before they
appear so that they will be ready with their answers. Although
interpellations are not required to be submitted earlier in written form
for obvious reasons.
2. Legislative Inquiry
Inquiry in aid of legislation
3. Legislative Supervision
This usually comes in the form of provisions in legislation providing for
oversight committee. Do not confuse legislative supervision with
inward-turning legislation.
In the case of ABAKADA vs. Purisima, the concept of legislative
supervision strictly speaking, which is allowable, refers to the oversight
function of Congress to make sure that the provisions of the law are
implemented properly.
A good example of an oversight committee, in relation to the legislative
supervision powers of Congress, is the Absentee Voters Act. If you try
to read the law, there’s a provision there establishing the oversight
committee composed of members of both Houses. Every time there is
an election, members of Congress will convene in an oversight
committee and they will travel all over the world where there are
Filipino voters to ensure there is proper voting of Filipinos abroad who
are still entitled to vote. That is the extent of legislative supervision that
is allowed as opposed to inward-turning legislation.
Inward-turning legislation refers to the delegation of a power by
Congress which will entitle eventually Congress the power to decide
whether the exercise of delegated authority is allowable or not. For
example if it is rule-making power, Congress cannot delegate the rule-
making power to an administrative body or officer but withholds its
efficacy upon its prior approval. Once the power is delegated, it is
supposed to be complete and full. The rules and regulations to be made
by the delegate can be questioned only before the Courts, not with the
prior approval of the Congress.
If you remember the PDAF cases, part of its discussion was inward-
turning legislation; for while Congress has approved the General
Appropriations Act (GAA) providing for a lump-sum amount or PDAF,
the individual members of Congress were given specific authority under
that law or provision in the GAA to determine which project shall be
funded and for how much each project shall be funded. Once the law is
passed by Congress, its implementation should be in the Executive, it
should not be made dependent upon prior approval of Congress. That is
an example of inward-turning legislation that is not allowed.
Now as opposed to inquiry in aid of legislation or legislative
investigation, any person can be subjected to the subpoena powers of
the Congress for any inquiry in aid of legislation. What the Constitution
provides however is that all persons appearing thereby, their rights
shall have to be respected. And most of the rights that are applicable
and claimable are the bill of rights, especially the privilege against self-
incrimination under Section 17 of Article III.
Are they entitled to right to counsel?
Since it is not an “investigation” for a criminal case, strictly under
Section 12 of Article III, the right to counsel is not a claimable right.
Although you have seen this in a lot if inquiries in aid of legislation or
legislative inquiries, persons appearing there or required to appear
have brought their counsels. But if you also notice, their counsels are
not allowed to talk because while they are made to fill up the
attendance sheet, they are not recognized. They are not invited there
as such counsel. Of course, they are allowed to confirm with their
clients who are invited in the inquiries in aid of legislation.
It is also required that the rules affecting the conduct of these inquiries
in aid of legislation must have to be published. Each numbered
Congress must have to publish its own Rules of Procedure, including
proceedings in inquiries in aid of legislation.
The other cases there, the case of SENATE vs. ERMITA (2006) and
GUDANI vs. SENGA (2006), highlights the distinction between question
hour and inquiries in aid of legislation respecting members of the
executive family and of the military (in the case of Gudani).
GUDANI vs. SENGA
498 SCRA 671 (2006)
Can members of the Executive family be called instead in inquiries in
aid of legislation and not in question hour?
YES. They may be Heads of Executive Departments but if they are called
not in relation strictly to the operations and administration of their
respective departments, they can be called in inquiries in aid of
legislation.
Page 38
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
What about military officers? Can the President prevent military
officers and the listed personnel from testifying in inquiries in aid of
legislation?
YES. Not because they enjoy some kind of exception to the rule. It is
because of the concept of discipline in the military. As Commander-in-
Chief, the President has control over them. And if the Commander-in-
Chief would order them not to appear, they must have to comply. And
the Congress cannot skirt the matter of discipline that the Commander-
in-Chief imposes upon the subordinate officials and the rest of the
command.
In NERI vs. SENATE COMMITTEES (2008), the Supreme Court
emphasizes the concept of executive privilege.
NERI vs. SENATE COMMITTEES
577 SCRA 170 (2008)
For while members of the Executive family may be investigated either
in question or inquiries in aid of legislation and they cannot refuse
simply because they are members of the Executive family, they can
refuse to answer a question which would fall for a violation of the
executive privilege rule.
We understand that the executive privilege comes in two forms: the
Presidential communications privilege and the deliberative process
privilege. The latter privilege refers to generally the privilege granted to
all government offices and decisions. While the former refers to the
process by which a Presidential decision has been arrived at. Only the
Presidential communications privilege is covered by the executive
privilege rule.
Based on that old case of US vs. Nixon, executive privilege is not found
in our Constitution in express provision. But it has been considered to
be existing because there are certain matters which its publication is
kept in order to allow a free discussion of ideas to come up with a
decision. The freedom to right of information of the public will only
refer to the final outcome or decision. But how the decision is arrived
at, it may be covered by some privilege.
An example would be for the Supreme Court, the deliberations in
collegiate courts. What we are made aware of would be the conclusions
reached by the Court because we are furnished a copy of the decision,
the decision is published. But how the Court deliberated on it as
required by our Constitution, we don’t know unless the Justice would
tell on how the SC voted on it or discussed it before the Court even has
come out with the final decision. But that is more of an exception. So,
there are matters by which there is a need to protect the secrecy of
certain deliberations, except that the public is entitled to the result of
the deliberations.
The Presidential communications privilege follows the proximity rule.
Every person who has been in proximity to the President in coming up
with the decision would be covered by the privilege. That’s why in this
case of Neri, even if he is not the President and he is not technically a
Cabinet Secretary of the Government, but because he is the NEDA
Head, he is in the cluster, the questions asked of him were considered
to be covered by the executive privilege. He is not supposed to be
compelled to answer all questions.
There was a recent case which involves the hazing of Castillo of UST,
the decision came out early August last week, the case of Balag vs.
Senate of the Philippines et.al. (G.R. No. 234608, July 3, 2018). In an En
Banc decision, the Supreme Court modified the power of the Senate or
of Congress to cite a person in contempt for refusing to comply with
the subpoena issued in inquiry in aid of legislation.
In the old cases of Arnault vs. Balagtas and Arnault vs. Nazareno, the
Supreme Court said that the person cited for contumacious behavior
can be cited in contempt and placed in detention until he complies with
the order of the investigating body. In the case of Balag, the head of the
fraternity who was one of those charged raised the issue of his
detention, the Supreme Court modified the power to detain by saying
that the power to detain will have to be consistent with the
continuation of the probe or investigation. It’s a different play if the
investigation has been terminated; there is no more reason to detain
further any person who refused to testify in that investigation because
the investigation has been concluded. That person must have to be
released from detention.
August 9, 2018 – Glorybelle Resurreccion
D. Act as Board of Canvassers for the Presidential and Vice-
Presidential Elections
Art. VII, Section 4, par. 4. xxx
The returns of every election for President and Vice-President, duly
certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate.
Upon receipt of the certificates of canvass, the President of the Senate
shall, not later than thirty days after the day of the election, open all
certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon
determination of the authenticity and due execution thereof in the
manner provided by law, canvass the votes.
E. Call Special Elections for President and Vice-President
Article VII, Section 10. The Congress shall, at ten o’clock in the morning
of the third day after the vacancy in the offices of the President and
Vice-President occurs, convene in accordance with its rules without
need of a call and within seven days enact a law calling for a special
election to elect a President and a Vice-President to be held not earlier
than forty-five days nor later than sixty days from the time of such call.
The bill calling such special election shall be deemed certified under
paragraph 2, Section 26, Article VI of this Constitution and shall become
law upon its approval on third reading by the Congress. Appropriations
for the special election shall be charged against any current
appropriations and shall be exempt from the requirements of
paragraph 4, Section 25, Article VI of this Constitution. The convening of
the Congress cannot be suspended nor the special election postponed.
No special election shall be called if the vacancy occurs within eighteen
Page 39
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
months before the date of the next presidential election.
F. Revoke or extend the suspension of the privilege of the writ of
habeas corpus and declaration of martial law
Article VII, Section 18. The President shall be the Commander-in-Chief
of all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion,
when the public safety requires it, he may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative
of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall, within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without any need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within
thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with the invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
LAGMAN vs. EXECUTIVE SECRETARY
(July 4, 2017)
The Supreme Court had the occasion to revisit the decision earlier in
the case of Fortun vs. Macapagal-Arroyo. The aspect with respect to
the power of Congress over that of the President. The Fortun ruling will
tell you that it is a shared power between the President and Congress.
In Lagman case, the SC clarified that there is no need for a prior
approval when the President declares a martial law or suspends the
privilege of the writ of habeas corpus. It is based on the assessment of
the executive whether or not there is sufficient factual basis to declare
martial law or suspend the privilege of the writ of habeas corpus.
Congress, on the other hand, has the power to revoke such declaration
or the suspension made, whether the President shall make a report in
person or through his representatives. And while the Supreme Court
has the power over any petition to test the sufficiency of the factual
bases, only insofar as the facts are present at the time the declaration is
made. Congress is allowed to consider facts thereafter whether to
revoke or allow the declaration or suspension to continue.
SC, again, is limited on all facts during and up to the time the
declaration is made while Congress can consider facts EVEN AFTER such
declaration. And as shown in the declaration of martial law here in
Mindanao, it is a political determination. While there is authority of
Congress to exercise to determine the sufficiency of the factual basis, it
is largely also a political consideration and it is not surprising because
Congress is part of the political branch of the government.
From FT: “After all, the Court's review is confined to the sufficiency, not
accuracy, of the information at hand during the declaration or
suspension; subsequent events do not have any bearing insofar as the
Court's review is concerned. In any event, safeguards under Section 18,
Article VII of the Constitution are in place to cover such a
situation, e.g., the martial law period is good only for 60 days; Congress
may choose to revoke it even immediately after the proclamation is
made; and, this Court may investigate the factual background of the
declaration.”
G. Approve Presidential Amnesties
Article VII, Section 19. Except in cases of impeachment, or as otherwise
provided in this Constitution, the President may grant reprieves,
commutations and pardons, and remit fines and forfeitures, after
conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of
a majority of all the Members of the Congress.
This is part of the para___ powers of the President. The President can
declare or grant an amnesty provided there is a favourable concurrence
with the Congress.
H. Confirm Certain Appointments
Article VII, Section 9. Whenever there is a vacancy in the Office of the
Vice-President during the term for which he was elected, the President
shall nominate a Vice-President from among the Members of the
Senate and the House of Representatives who shall assume office upon
confirmation by a majority vote of all the Members of both Houses of
the Congress, voting separately.
Page 40
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Article VII, Section 16. The President shall nominate and, with the
consent of the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him
in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by
law, and those whom he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until after disapproval by the
Commission on Appointments or until the next adjournment of the
Congress.
I have mentioned this power on the discussion on Commission on
Appointments.
I. Concur in Treaties
Article VII, Section 21. No treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of all the
Members of the Senate.
CF:
Article XVIII, Section 25. After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the
other contracting State.
Now with respect to treaty negotiations, Pimentel vs. Executive
Secretary (July 6, 2005) tells you that there are four stages in treaty
making:
 First Stage: Negotiation
 Second Stage: Authentication
 Third Stage: Ratification
 Fourth Stage: Exchange of ratified documents
The exchange determines the efficacy of the treaty signed.
PIMENTEL vs. EXECUTIVE SECRETARY
(July 6, 2005)
A ratification, normally, would require concurrence of another branch
or another office of the contracting state. In the case of Pimentel, it is a
mandamus petition to compel the executive to submit the signed treaty
after authentication for submission to the Senate for concurrence as
required under the Constitution. The Senate, headed by Sen. President
Pimentel, argued that it is considered to be mandatory for the Office of
the President to submit a treaty already signed for the concurrence or
ratification by the Senate.
SC clarified, however, that in the in the stages or phases of treaty
making, even after the President of the contracting state has ratified
the treaty, the President is not mandated to make it effective. And so
the Office of the President cannot be compelled to submit a signed
treaty for concurrence. Of course, if it isn’t concurred, it could not be
going to the fourth stage, which is the exchange of ratified documents.
Treaty making is part of the foreign policy powers of the President. And
that is largely executive. While the Constitution declares or provides
that there must have to be Senate concurrence before it can be
considered effective, that is not a mandate for the President to submit
all treaties signed by him or negotiated with the executive with other
contracting states for concurrence because the President would still
have control over its efficacy. So, the mandamus petition is lost.
Art. XVII Sec. 25 (on Transitory Provisions), simply provides an
alternative mode of ratifying a treaty. It need not be directly by the
Senate but it could be by the action of the electorate.
SAGUISAG vs. OCHOA (2016) is a case on the EDCA. The question
raised was whether there is a need for Senate concurrence because it
was a treaty or whether it is just an executive agreement where no
Senate concurrence is required.
And in that short decision, SC ruled that it is an executive agreement. It
is not a treaty. The treaty is the Visiting Forces Agreement when you
already allowed the presence of foreign military troops and facilities in
the country on the visiting status.
The EDCA is just an agreement or document which necessarily arranges
the details on the implementation of the VFA. It did not grant more
than what the VFA has already granted or allowed. So, no need for
Senate concurrence.
J. Declaration of War and Delegation of Emergency Powers
Article VI, Section 23. (1) The Congress, by a vote of two-thirds of both
Houses in joint session assembled, voting separately, shall have the sole
power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall cease upon the next
adjournment thereof.
We have always mentioned that this is normally distinguished from
Commander-in-Chief powers of the President. We said that Sec. 23 is a
constitutional example of valid delegation. In times of war or national
emergency, delegated legislative power can be granted to the
President. It is allowable in order for the President to meet the
necessity of legislating “on account of national emergency or on
Page 41
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University

account of war.” Because of the perceived delay in legislative And because of technology, we were made to submit to the executive
deliberations, the President can be granted such delegated authority. issuance that martial law was indeed declared and it is still effective.

Commander-in-Chief clause is an inherent power. Sec. 18, Art. VII is a L. Power of Impeachment
limitation rather than a grant. Sec. 23(2), Art. VI, on the other hand, is a
delegated authority. The parameters on “sufficiency of standards” are 1. Who are subject to impeachment?
all provided there –
Article XI, Section 2. The President, the Vice-President, the Members of
 it must be authorized by law, the Supreme Court, the Members of the Constitutional Commissions,
 it must be for a limited period, and the Ombudsman may be removed from office, on impeachment
 it must be necessary to carry out a declared national policy. for, and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public
And it is effective when Congress withdraws it by resolution or until the trust. All other public officers and employees may be removed from
next voluntary adjournment of Congress supposing that the emergency office as provided by law, but not by impeachment.
is no longer a hindrance to proper legislation because Congress could
already convene and adjourn on its own volition. As to the efficacy of The list is exclusive:
the declaration of martial law or suspension of privilege of writ of 1. President and Vice-President
habeas corpus, your mnemonic/memory aid there is PCSO – 2. Justices of the Supreme Court
3. Members of the Constitutional Commission
 President lifts it 4. Ombudsman
 Congress revokes it
 Supreme Court nullifies it, or The grounds are also exclusive: [TBC-GOB]
 By operation of Law 1. Treason
2. Bribery
Those are when the Commander-in-Chief powers are deemed no longer 3. Culpable violation of the Constitution
effective. 4. Graft and corruption
5. Other high crimes
K. Be the judge of the President’s physical fitness or capacity 6. Betrayal of public trust

Article VII, Section 11, par. 4. xxx
If the Congress, within ten days after receipt of the last written
declaration, or, if not in session, within twelve days after it is required
to assemble, determines by a two-thirds vote of both Houses, voting
separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as the President;
otherwise, the President shall continue exercising the powers and
duties of his office. xxx
Three are defined by law: treason, bribery and graft and corruption.
The rest are not yet defined. But betrayal of public trust as a ground has
already been defined in the two cases of GONZALES vs. OFFICE OF THE
PRESIDENT (2012 and 2014). It is short of a crime but there is a betrayal
of that trust in the public office.
GONZALES vs. OFFICE OF THE PRESIDENT
678 SCRA 614 (2012)
714 SCRA 611 (2014)

This is just a mode of voting. We have made mention of it already – if it The catch-all phrase betrayal of public trust that referred to "all acts
is contested, meaning if the President does not accept that he is not punishable by statutes as penal offenses but, nonetheless, render
temporarily incapacitated, Congress will convene, if not in session, with the officer unfit to continue in office" could be easily utilized for every
a [deed of poll?], and shall decide the issue on temporary incapacity. conceivable misconduct or negligence in office.

When the 1987 Constitution was drafted and made effective in 1987,
we have not yet seen the light of technology. That is why, at that time,
the context was the President could not effectively run the government
physically because either he is sick, physically unable or perhaps
physically not present.
But as technology has developed, we have seen even if the President is
outside of the country, by reason of technology, he can actually run the
government. And so the question is, is there a temporary incapacity? Of
course, the answer is no. One of the most recent exercises of executive
power which was exercised outside of the Philippine jurisdiction is the
declaration of the martial law in Mindanao. It was declared in Russia.
In the 2012 decision, the SC said that the Deputies (there are several
deputies in the Ombudsman - the Overall Deputy and the three other
Deputies) are subject to the powers of discipline of the President.
The 2014 decision on a motion for reconsideration reversed its earlier
ruling where the SC still upheld that the Special Prosecutor is still under
the office of the executive for discipline but this time the Deputies are
no longer. The reasoning is the same – independence of the
Ombudsman.
The reason why the Ombudsman is independent from the powers of
discipline of the executive is to shield it from political influence. To
allow it to exercise its powers, to investigate on misfeasance or

Page 42
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
malfeasance in government, it should not be made subject to the
powers of the executive. For if the Deputies are so subject to such
powers, then they may not be able to act and perform their functions
well because the Ombudsman himself/herself is not expected to act on
everything.
The Ombudsman acts through the Deputies and so Deputies are
shielded as well. But while the executive cannot discipline them, and
they are not impeachable officers, the Ombudsman must discipline
them if they have committed any violation. And if the Ombudsman will
not discipline them despite clear violations, then the Ombudsman
opens himself/herself to impeachment proceeding. That is how the
discipline should work.
Recently you might have read that Overall Deputy Ombudsman
Melchor Arthur Carandang has been dismissed on the service by
Malacanang. And the newly appointed Ombudsman is going to impose
the decision. The question is: Is that contrary to the Gonzalez ruling? By
reading, it seems to be. By what we heard, Malacanang wants the
doctrine revisited. That is why they want Carandang to eventually raise
it before the Supreme Court. In the meantime, what happens to him,
he has to be dismissed from the service.
What is interesting to note from the newly-appointed Ombudsman
Samuel Martires is he used to be part of the Supreme Court. And yet
when asked on interview if he is going to impose it, he said that he is
going to then let Carandang question the same before SC. So the
presumption now is this – that the Malacanang was correct and the SC
was wrong in Gonzales. We all know that until a decision is reversed by
the SC en banc, a court decision stands and everybody should follow
what the law is.
In Carpio-Morales vs. CA (2015) on the Aguinaldo doctrine on Binay,
was Binay suspended because of the non-application of the Aguinaldo
ruling? No, he was not. Ombudsman followed it and said “Aguinaldo
may be applicable but we are questioning it.” And so the SC in Carpio-
Morales vs. CA reversed the Aguinaldo ruling. Meaning, we follow what
the rule is for the moment and until reversed by the SC; we should
comply with the decision no matter how we view it as erroneous. But
we are in a different time in the Duterte presidency.
2. Grounds for Impeachment
Article XI, Section 2. The President, the Vice-President, the Members of
the Supreme Court, the Members of the Constitutional Commissions,
and the Ombudsman may be removed from office, on impeachment
for, and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public
trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment.
3. Procedure for Impeachment
Article XI, Section 3. (1) The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any Member
of the House of Representatives or by any citizen upon a resolution of
endorsement by any Member thereof, which shall be included in the
Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral,
together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from
receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be
necessary either to affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution.
The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed
by at least one-third of all the Members of the House, the same shall
constitute the Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same
official more than once within a period of one year.
(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on
oath or affirmation. When the President of the Philippines is on trial,
the Chief Justice of the Supreme Court shall preside, but shall not vote.
No person shall be convicted without the concurrence of two-thirds of
all the Members of the Senate.
Procedure did not change as much. Still the initiation is in the lower
house. The trial/hearing is in the House of Senate. The Senate President
presides.
There are other collateral matters which could have been issues for
resolution which have remained unclear. It started during the time of
the Erap impeachment. Is there a right of an official/respondent to
cross-examine witnesses against the respondent-official during the
initiation stage?
That question remained even during the Sereno impeachment
proceeding because they have wanted to cross-examine the witnesses
in the initiation stage before them. But all their motions and requests
have been denied and none of them has raised the issue to the SC. No
problem during the trial because there is cross-examination allowed.
And this has been allowed even during the Estrada impeachment
proceedings.
Now if you are to liken it to an ordinary preliminary investigation under
Rule 112 of the Rules of Court, the conclusion reached would be the
same. In preliminary investigation, there is no right to cross-examine
witnesses. What one can do if he/she is a respondent in a criminal case
is to submit counter-availing evidence. If they (complainants) have
affidavits of their own witnesses, the respondent could also submit
affidavits of his own witnesses. But as to cross-examination, at best, in
a preliminary investigation what is conducted as a form of trial is what
we know as clarificatory hearing. And in Rule 112, clarificatory hearing
Page 43
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
is for the purpose not of the parties but of the investigating officer. All
questions are to be coursed through and asked by the investigating
officer for the officer to be enlightened on or clarified on certain
matters not clear to him similar with the initiation in the House of
Representatives.
In the recent Sereno impeachment, there were “hearings” conducted in
the lower house. And the camp of Sereno was complaining why they
were not able to cross-examine or was not granted the right to ask
questions on the witnesses for the complainant. But rightfully so
because it is similar or akin to just a preliminary hearing to determine
whether there is a need to proceed to the trial for the impeachment
case.
If the required vote is not reached during the initiation, complaint can
be initiated directly by a member of the lower house or by any person
with a favourable resolution of a lower house member. If there is no
vote as required by the Constitution, it should be processed in the
regular course submitted to the plenary for its calendar. It would be
referred to the appropriate committee – the Committee on Good
Government and Justice which will study it, conduct hearings perhaps,
and come up with a report. The report is actually the decision whether
to proceed with the impeachment by coming up with an impeachment
complaint or a decision to dismiss the complaint by resolving so.
Any action of the committee shall be presented to the body for voting
for approval or rejection as the case may be. If impeachment is to
proceed, it will then be forwarded to the House of Senate. The rules on
impeachment in the House of Senate are theirs. And they have to be
published because generally rules of Congress which affect third parties
must have to be published as part of “due process”. They should be
taken with [change?] but we follow the elementary rule of fair notice,
hearing and trial.
4. Consequence of Impeachment
Article XI, Section 3.
xxx
(7) Judgment in cases of impeachment shall not extend further than
removal from office and disqualification to hold any office under the
Republic of the Philippines, but the party convicted shall nevertheless
be liable and subject to prosecution, trial, and punishment according to
law.
A required vote of 2/3 must have to be met for the conviction. If a
respondent public officer is convicted, the decision cannot go beyond
removal and perpetual disqualification. The impeachment court, so to
speak, the House of Senate is neither a criminal court which can impose
penalties of imprisonment nor a civil court which can impose payment
of damages. However, the public official who is deemed removed or
impeached after the vote of the Senate can now be opened to any and
all kinds of cases including criminal cases.
There is a rule on ban for the same public officer to be subject of
impeachment. (1) Either we follow the so-called one-year ban which
follows the so-called filing and referral rule. It is not the fact of filing of
one complaint that determines the one-year ban to run. It is the fact
that the complaint so filed has been referred to the lower house for
consideration. In actual terms, it has been calendared.
So even if there are 100 complaints filed by different persons with
favourable recommendation by a member of the lower house against
one impeachable officer; but none of them has been calendared as yet
in the lower house, the one-year ban will NOT commence to run. But
once one of these complaints has been calendared in the lower house
for the consideration of the plenary, then the one-year ban commences
to run.
(2) The other is when the respondent ____ the Senate is not found
liable because of the failure to meet the required 2/3 of votes. In
which case, there will be a ban on the filing of a similar complaint
whether in the lower house or for any criminal cases arising thereof.
M. Power with Regard to the Utilization of Natural Resources
Article XII, Section 2. All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural
lands, all other natural resources shall not be alienated. The
exploration, development, and utilization of natural resources shall be
under the full control and supervision of the State. The State may
directly undertake such activities, or it may enter into co-production,
joint venture, or production-sharing agreements with Filipino citizens,
or corporations or associations at least 60 per centum of whose capital
is owned by such citizens. Such agreements may be for a period not
exceeding twenty-five years, renewable for not more than twenty-five
years, and under such terms and conditions as may provided by law. In
cases of water rights for irrigation, water supply, fisheries, or industrial
uses other than the development of waterpower, beneficial use may be
the measure and limit of the grant.
The State shall protect the nations marine wealth in its archipelagic
waters, territorial sea, and exclusive economic zone, and reserve its use
and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural
resources by Filipino citizens, as well as cooperative fish farming, with
priority to subsistence fishermen and fish workers in rivers, lakes, bays,
and lagoons.
The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance for large-
scale exploration, development, and utilization of minerals, petroleum,
and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth
and general welfare of the country. In such agreements, the State shall
promote the development and use of local scientific and technical
resources.
Page 44
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
The President shall notify the Congress of every contract entered into in
accordance with this provision, within thirty days from its execution.
9. Legislative Process
a. Requirements as to Bills
(1) As to Titles of Bills
Article VI, Section 26.
(1) Every bill passed by the Congress shall embrace only one subject
which shall be expressed in the title thereof.
Nothing changed there. The subject matter of the bill must be indicated
in the title. And the title must only be for one subject. The reason is for
purposes of information:
1. To avoid log-rolling legislation (to include other unrelated
matters which are not indicated in the title which is
indicative of the subject matter);
2. To inform the legislators on what the intended legislation is;
and
3. To inform the public as to what the subject matter of the
intended legislation is so that they could be heard on it if
they would want to.
PHILIPPINE JUDGES ASSOCIATION vs. PRADO
227 SCRA 703 (1993)
We consider first the objection based on Article VI, Sec. 26(l), of the
Constitution providing that "Every bill passed by the Congress shall
embrace only one subject which shall be expressed in the title thereof."
The purposes of this rule are:
(1) to prevent hodge-podge or "log-rolling" legislation;
(2) to prevent surprise or fraud upon the legislature by means of
provisions in bills of which the title gives no intimation, and which
might therefore be overlooked and carelessly and unintentionally
adopted; and
(3) to fairly apprise the people, through such publication of
legislative proceedings as is usually made, of the subject of legislation
that is being considered, in order that they may have opportunity of
being heard thereon, by petition or otherwise, if they shall so desire
(2) Requirements as to Certain Laws
 Origin of Bills
a) Appropriation of Laws
Article VII, Section 22. The President shall submit to the Congress
within thirty days from the opening of every regular session, as the
basis of the general appropriations bill, a budget of expenditures and
sources of financing, including receipts from existing and proposed
revenue measures.
Article VI, Section 24. All appropriation, revenue or tariff bills, bills
authorizing increase of the public debt, bills of local application, and
private bills shall originate exclusively in the House of Representatives,
but the Senate may propose or concur with amendments.
Section 25. (1) The Congress may not increase the appropriations
recommended by the President for the operation of the Government as
specified in the budget. The form, content, and manner of preparation
of the budget shall be prescribed by law.
(2) No provision or enactment shall be embraced in the general
appropriations bill unless it relates specifically to some particular
appropriation therein. Any such provision or enactment shall be limited
in its operation to the appropriation to which it relates.
(3) The procedure in approving appropriations for the Congress shall
strictly follow the procedure for approving appropriations for other
departments and agencies.
(4) A special appropriations bill shall specify the purpose for which it is
intended, and shall be supported by funds actually available as certified
by the National Treasurer, or to be raised by a corresponding revenue
proposed therein.
(5) No law shall be passed authorizing any transfer of appropriations;
however, the President, the President of the Senate, the Speaker of the
House of Representatives, the Chief Justice of the Supreme Court, and
the heads of Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for their respective
offices from savings in other items of their respective appropriations.
(6) Discretionary funds appropriated for particular officials shall be
disbursed only for public purposes to be supported by appropriate
vouchers and subject to such guidelines as may be prescribed by law.
(7) If, by the end of any fiscal year, the Congress shall have failed to
pass the general appropriations bill for the ensuing fiscal year, the
general appropriations law for the preceding fiscal year shall be
deemed reenacted and shall remain in force and effect until the general
appropriations bill is passed by the Congress.
The only discussion in origin of bill is:
Q: Can similar types of bills be introduced in the House of Senate even
without it receiving the approved version of the lower house?
Revenue or tariff appropriationbills authorizing increase of the public
debt, bills of local application, and private bills – can said versions be
filed even if there is yet to be an approved version of the lower house
submitted to it (House of Senate)?
Page 45
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
A: YES. What is prohibited is for the House of Senate to process its
own version without receiving first the approved version of the lower
house. So, filing is not prohibited. Processing it is what is prohibited.
And even if the bill must originate from the lower house, the House of
Senate is not precluded from passing a totally different version of the
bill. Say an expanded-expanded value added tax bill from the lower
house *has in it+ 22 items and the Senate version’s items on the
expanded-expanded value added tax are only 10. That is allowed
because the origin is a limitation of where it should come from based
on the representation. It is deemed to be by theory that the lower
house is more representative unlike the Senate which is on national
scale and there are only 24 of them.
 On Appropriation of Laws
Sec. 25 (2) defines what a provision in an appropriations bill is. In very
simple terms, it is a provision providing for a specific sum of money for
a specific expenditure. In the case of BELGICA vs. OCHOA (2013), the SC
made an enumeration on what these so-called item/s are in an
appropriations bill.
Item may be:
1. singular appropriation which is called “line-item”;
2. based on component percentages;
3. based on several related purposes or accounting purposes.
e.g. MOOE (maintenance and other operating expenses);
4. special purpose funds or singular correspondence
BELGICA vs. OCHOA
710 SCRA 1 (2013)
(1) It is significant to point out that an item of appropriation must be an
item characterized by singular correspondence – meaning an allocation
of a specified singular amount for a specified singular purpose,
otherwise known as a "line-item." This treatment not only allows the
item to be consistent with its definition as a "specific appropriation of
money" but also ensures that the President may discernibly veto the
same. Based on the foregoing formulation, the existing Calamity Fund,
Contingent Fund and the Intelligence Fund, being appropriations which
state a specified amount for a specific purpose, would then be
considered as "line- item" appropriations which are rightfully subject to
item veto.
(2) Likewise, it must be observed that an appropriation may be validly
apportioned into component percentages or values; however, it is
crucial that each percentage or value must be allocated for its own
corresponding purpose for such component to be considered as a
proper line-item.
(3) Moreover, as Justice Carpio correctly pointed out, a valid
appropriation may even have several related purposes that are by
accounting and budgeting practice considered as one purpose, e.g.,
MOOE (maintenance and other operating expenses), in which case the
related purposes shall be deemed sufficiently specific for the exercise
of the President‘s item veto power.
(4) Finally, special purpose funds and discretionary funds would
equally square with the constitutional mechanism of item-veto for as
long as they follow the rule on singular correspondence as herein
discussed. Anent special purpose funds, it must be added that Section
25(4), Article VI of the 1987 Constitution requires that the "special
appropriations bill shall specify the purpose for which it is intended,
and shall be supported by funds actually available as certified by the
National Treasurer, or t o be raised by a corresponding revenue
proposal therein." Meanwhile, with respect to discretionary funds,
Section 2 5(6), Article VI of the 1987 Constitution requires that said
funds "shall be disbursed only for public purposes to be supported by
appropriate vouchers and subject to such guidelines as may be
prescribed by law."
Any other provision not relating to any of these four are not provisions
supposedly to be included in an appropriations bill. In all decisions, it is
referred to as inappropriate provision. And in the doctrine of
appropriate provision, these provisions can be removed from an
appropriations bill because they are not supposed to be there to begin
with.
Now if the appropriations provision does not relate to any of those
four, then they can be removed technically or it can be vetoed by the
President. In the case of Belgica (on the PDAF), the item on PDAF
according to the SC was a lump-sum appropriation. It did not provide
for a singular correspondence, not a line-item, it was not even for
accounting purposes. It was just a sum of money. And it allowed, after
the passage of the General Appropriations Act, the individual members
of Congress a specific amount out of that P 24.78B and from that
specific amount, members of the Congress individually can determine
which are to be funded by them and which of the [P54M?] each shall be
used for those expenditures. And the SC referred to it as intermediate
appropriation. And that intermediate appropriation is not allowed.
When Congress enacts a bill like an appropriations bill, it is complete
when it leaves Congress. Its implementation is left with the executive.
In the case of PDAF, what has been approved by Congress is a lump-
sum amount and the specific implementation is left to the individual
members of Congress. That should not be allowed because members of
Congress are not to implement but only to pass and legislate.
With respect to ARAULLO vs. AQUINO III (2014 and 2015), in relation
to Sec. 25, there is the transfer of funds. When Congress enacts an
appropriations bill which eventually becomes a law, it is the
authorization for government expenditure. Government officials and
offices must therefore have to spend the appropriation or budget for
the purposes which the Congress has allowed.
So, when government funds appropriated for a particular item is spent
for personal use that is misappropriation of public funds. If it is used for
another public purpose that would be considered as technical
malversation for while there is no personal gain, there is still damage to
the State because it has not been used for the public purpose that
Congress intended it to be.
Page 46
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Transfer of funds is NOT allowed. That is the general rule. The
exception however, as provided in the Constitution is that there must
have to be a law allowing such transfer of funds. The Constitution
would allow the heads of offices to transfer of funds. As listed: the
President, the Chief Justice, the Heads of the Constitutional
Commissions, both houses of Congress as well.
It is also required that there must have to be savings. And before any of
these savings can be transferred… it can only be transferred from an
appropriated item to another appropriated item…it could not…well the
SC said the term augment is to enlarge what has been allowed by
Congress. It cannot be used therefore to fund something which has not
been allowed by Congress. And savings can [come?] because are there
three situations contemplated as listed in Araullo case:
1. When a project is completed and there are savings after full
completion or there is a decision to terminate or cease the
project for valid reasons;
2. If there are savings because of efficient delivery (balances
arising from unpaid compensation and related costs
pertaining to vacant positions and leaves of absence without
pay);
3. Balances realized from the implementation of measures
resulting in improved systems and efficiencies
ARAULLO vs. AQUINO III
728 SCRA 1 (2014)
749 SCRA 283 (2015) (MR)
Savings refer to portions or balances of any programmed appropriation
in this Act free from any obligation or encumbrance which are:
(i) still available after the completion or final discontinuance or
abandonment of the work, activity or purpose for which the
appropriation is authorized;
(ii) from appropriations balances arising from unpaid compensation and
related costs pertaining to vacant positions and leaves of absence
without pay; and
(iii) from appropriations balances realized from the implementation of
measures resulting in improved systems and efficiencies and thus
enabled agencies to meet and deliver the required or planned targets,
programs and services approved in this Act at a lesser cost.
The three instances listed in the GAAs’ aforequoted definition were a
sure indication that savings could be generated only upon the purpose
of the appropriation being fulfilled, or upon the need for the
appropriation being no longer existent.
Only when any of these eventualities occur can there be savings. There
is no such thing as forced savings. Forced savings can come “if the
executive does what is referred to as executive impoundment.” The
executive impoundment is the practice of the executive not to release
appropriations for whatever reason. That is not supposed to be the
reason for any savings.
And if there are savings which is used to augment, it can be used only
within the same department. The SC came up again with a term “cross-
border transfer” or “cross-border augmentation” which is not allowed.
The executive can transfer funds within the executive department. The
executive cannot transfer funds to other branches of the government.
In the story of the PDAF or DAP, there was a transfer of certain
amounts to Senator Drilon to fund the completion of the Ilo-ilo
Convention Center. So can the savings in the executive branch be
transferred to the legislative branch? That is supposed to be not
allowable.
b) Tax Laws
Article VI, Section 28. (1) The rule of taxation shall be uniform and
equitable. The Congress shall evolve a progressive system of taxation.
(2) The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as it
may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of
the national development program of the Government.
(3) Charitable institutions, churches and parsonages or convents
appurtenant thereto, mosques, non-profit cemeteries, and all lands,
buildings, and improvements, actually, directly, and exclusively used for
religious, charitable, or educational purposes shall be exempt from
taxation.
(4) No law granting any tax exemption shall be passed without the
concurrence of a majority of all the Members of the Congress.
Article XIV, Section 4. (3) All revenues and assets of non-stock, non-
profit educational institutions used actually, directly, and exclusively for
educational purposes shall be exempt from taxes and duties. Upon the
dissolution or cessation of the corporate existence of such institutions,
their assets shall be disposed of in the manner provided by law.
Proprietary educational institutions, including those cooperatively
owned, may likewise be entitled to such exemptions subject to the
limitations provided by law including restrictions on dividends and
provisions for reinvestment.
(4) Subject to conditions prescribed by law, all grants, endowments,
donations, or contributions used actually, directly, and exclusively for
educational purposes shall be exempt from tax.
b. Procedure for Passage of Bills
Article VI, Section 26. (2) No bill passed by either House shall become a
law unless it has passed three readings on separate days, and printed
copies thereof in its final form have been distributed to its Members
three days before its passage, except when the President certifies to
the necessity of its immediate enactment to meet a public calamity or
Page 47
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
emergency. Upon the last reading of a bill, no amendment thereto shall
be allowed, and the vote thereon shall be taken immediately
thereafter, and the yeas and nays entered in the Journal.
c. President’s Veto Power
Article VI, Section 27. (1) Every bill passed by the Congress shall, before
it becomes a law, be presented to the President. If he approves the
same, he shall sign it; otherwise, he shall veto it and return the same
with his objections to the House where it originated, which shall enter
the objections at large in its Journal and proceed to reconsider it. If,
after such reconsideration, two-thirds of all the Members of such
House shall agree to pass the bill, it shall be sent, together with the
objections, to the other House by which it shall likewise be
reconsidered, and if approved by two-thirds of all the Members of that
House, it shall become a law. In all such cases, the votes of each House
shall be determined by yeas or nays, and the names of the Members
voting for or against shall be entered in its Journal. The President shall
communicate his veto of any bill to the House where it originated
within thirty days after the date of receipt thereof; otherwise, it shall
become a law as if he had signed it.
(2) The President shall have the power to veto any particular item or
items in an appropriation, revenue, or tariff bill, but the veto shall not
affect the item or items to which he does not object.
With respect to the veto power, we still follow the GR on “veto all or
none at all.” That is for ordinary bills. The problem is with revenue
appropriation or tariff bills because item veto is allowed. It is allowed in
order not to hold the executive a hostage for agreeing to a revenue or
tariff appropriations bill which is not acceptable with the thought that
the delivery of public service will be affected. Imagine if there is a bad
general appropriations bill submitted to the President (on money or
item wise) and he is not allowed an item veto, then there will be no
new budget for the government next year or the President will be
forced to accept a bad appropriations bill. Hence, the President is
allowed to line-item veto.
In LINE-ITEM VETO, while the President is allowed to veto certain
portions/“provisions on an appropriations revenue or tariff bill”, the
President cannot be allowed to veto a portion of an item or a line-item.
If, say an expenditure is conditioned on something, the President
cannot just veto or delete the condition and let the item or amount of
money or the project remain because Congress has allowed the
expenditure, money, or project because of a condition to be [fulfilled?].
The condition is part of the entire line-item. So, in revenue or tariff
appropriations bill, while item veto is allowed, President must still
follow the rule that it should veto the entire line-item or none at all.
The President cannot nitpick and just veto some words, provisions,
conditions, especially in an appropriation on revenue or tariff.
In one old case, there was appropriation in the GAA (General
Appropriations Act) for retirement fund. And those supposed to be
entitled are a list of public officers. What the President did was he
removed certain public officers in the listing. SC said that it is not an
allowable line-item veto because what was allowed by Congress is the
fund for retirement for these public officers. What the President can do
it to delete the entire fund because that is the line item or that is the
item in the appropriation.
Final item on veto, on how to override a veto, the procedure remained
the same. It requires the vote of 2/3 of each house which shall be
allowed to re-pass a bill vetoed by the President.
The President has 30 days from bill presentment to act on the bill. If the
enrolled bill is not acted by the President within 30 days from such
enrolment, the bill becomes a law even without the President’s
signature.
The other time that the bill becomes a law without the President’s
signature is when a bill previously vetoed by the President is re-passed
successfully by both houses of the Congress.
POCKET VETO
In the U.S., while they still follow the rule that if the President vetoes a
bill, it must return the bill to the Congress. However, in their
jurisdiction, if the Congress is not session, the President cannot
therefore return the bill. So what happens to the bill if it has not been
returned because of recess and the period to return has lapsed? In the
U.S., there is a pocket veto. Because of the vacuum, it is deemed to be
vetoed because of the legal impossibility to return it as Congress is not
in session.
Q: Is there a pocket veto in the Philippines?
A: NO. It should be returned WON Congress is in session. If Congress
isn’t in session but it is still returned, it is deemed vetoed provided the
bill as vetoed must have with it the veto message of the President. And
such veto message must be entered in the journal as required in the
Constitution.
d. Effectivity of Laws
Article 2, Civil Code. Laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette or in a
newspaper of general circulation in the Philippines, unless it is
otherwise provided. This Code shall take effect one year after such
publication (as amended by E.O. No. 200).
10. Initiative and Referendum
August 14, 2018 – Therese Candolita
B. EXECUTIVE DEPARTMENT
1. The President
a. Qualifications, election, term and oath
Article VII, Section 2. No person may be elected President unless he is a
natural-born citizen of the Philippines, a registered voter, able to read
and write, at least forty years of age on the day of the election, and a
resident of the Philippines for at least ten years immediately preceding
such election.
Page 48
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University

Article VII, Section 4. The President and the Vice-President shall be
elected by direct vote of the people for a term of six years which shall
begin at noon on the thirtieth day of June next following the day of the
election and shall end at noon of the same date, six years thereafter.
The President shall not be eligible for any re-election. No person who
has succeeded as President and has served as such for more than four
years shall be qualified for election to the same office at any time.
No Vice-President shall serve for more than two successive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of the service for the full
term for which he was elected.
Unless otherwise provided by law, the regular election for President
and Vice-President shall be held on the second Monday of May.
The returns of every election for President and Vice-President, duly
certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate.
Upon receipt of the certificates of canvass, the President of the Senate
shall, not later than thirty days after the day of the election, open all
the certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon
determination of the authenticity and due execution thereof in the
manner provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed
elected, but in case two or more shall have an equal and highest
number of votes, one of them shall forthwith be chosen by the vote of
a majority of all the Members of both Houses of the Congress, voting
separately.
The Congress shall promulgate its rules for the canvassing of the
certificates.
The Supreme Court, sitting en banc, shall be the sole judge of all
contests relating to the election, returns, and qualifications of the
President or Vice-President, and may promulgate its rules for the
purpose.
the incumbent during which such increase was approved. They shall not
receive during their tenure any other emolument from the Government
or any other source.
There is a prohibition on both increase and decrease in salary during
the term. As they said, “maliit ang sweldo, malaki ang sahod”. The
lower house has refused to discuss the budget for next year because of
the increase in amount plus the fact that release for budget has not
been accepted in the lower house.
 Other Privileges
Official residence is Malacañang. The reason for the official residence
being: grants the president residence for purposes of public
expenditure. The president can actually maintain any other residence,
what is important is that the expense for running that residence is
covered. For a while, we all know that former president Aquino held
office in a different place other than the Malacañang.
 Presidential Immunity
The so-called Presidential Communication Privilege, which allows non-
disclosure of any info which may have lead to the decision making of
the president. The decision itself may be made public, but how it was
reached is beyond the claim of right to information covered by the
presidential privilege. And any person who is in proximity when the
president reached such decision will have to be covered by that
presidential privilege as well. The question there is: Is the decision to
commit a crime covered by that privilege? To put in another
perspective: Is that decision of the American president to wage war in
Syria covered by the executive privilege? Or can the communication be
exposed by a court process or by Congress? To be made public as to
who made or proposed the decision to wage war elsewhere. To wage
war is a matter of perspective whether it’s a crime or not. Definitely,
the old case of US vs. Nixon (The Watergate Scandal), the order to
commit a crime is not covered.
US vs. NIXON

It is admitted that it is not provided for in the Constitution expressly.

Article VII, Section 5. Before they enter on the execution of their office,
But because of the fact that the President has the power to ensure that
the President, the Vice-President, or the Acting President shall take the
the laws are fully implemented, it is supposed to be, on that account
following oath or affirmation:
that when the President is to decide on a matter or of course on the
action to be taken, there are certain matters which the President may
"I do solemnly swear (or affirm) that I will faithfully and conscientiously
not be compelled by legislative inquiry or judicial proceedings or any
fulfill my duties as President (or Vice-President or Acting President) of
form of investigation to make any public disclosures of those fact. The
the Philippines, preserve and defend its Constitution, execute its laws,
Supreme Court divided however this concept of executive privilege and
do justice to every man, and consecrate myself to the service of the
we made mention of this already.
Nation. So help me God." (In case of affirmation, last sentence will be
omitted.)
If it is objectively committing a crime—not covered. BUT if there is a
b. Privileges and Salary gray line between the policy to eradicate the drug problem or in the
case of insurgency, that may be covered by the executive privilege.
Article VII, Section 6. The President shall have an official residence. The
salaries of the President and Vice-President shall be determined by law  Deliberative Process Privilege
and shall not be decreased during their tenure. No increase in said
compensation shall take effect until after the expiration of the term of

Page 49
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
The case of DFA vs. BCDA (2016) involved deliberative process
privilege, the process by which other government agencies or officers
would reach a decision. The privilege is supposed to be not absolute, it
can be claimed in a limited sense only. This case will tell you what is
covered by the entire process. It mentions of recommendations,
advisory opinions, draft documents, proposals, suggestions, and other
subjective documents and similar papers that reflect the opinion of the
agency or the government. Covered by deliberative process privilege
and could be applied to presidential privilege communications as well.
Any of those leading to the president to come up with a decision is
covered by that privilege. In this case is a subpoena issue that required
the production of certain documents leading to the arbitration case and
the SC held that the matters or documents sought to be made public
was covered by the privilege and therefore could not be made public.
Even if a decision is reached, only the decisions can be made public.
 Policy basis:
1. To protect candid discussions
2. To protect public confusion from premature
disclosure of conclusions
3. To protect decision or conclusion reached
 Immunity from suit
A sitting president is immune from all kinds of cases, regardless of
whether it could effectively remove him from office. As an impeachable
officer, the premise is that the president is immune from any case
which will effectively remove him from office before he is impeached.
So as president per se--- immune from suit, any and all kinds. Immunity
is claimable after term if it was the result of an official act. To prevent
the president from fearing to do an act during his term because of
possibility that he will be subjected to a case thereafter.
The Vienna Convention on Diplomatic Relations tells us that the
president as head of state is also immune absolutely from the laws of
those countries so when he travels he is immune from the laws of the
receiving state. In the 2012 case of Saez vs. GMA, it was held that a
sitting president cannot move to dismiss a petition for Writ of Amparo
because the writ is not a criminal, civil or administrative case the
purpose of which is to establish responsibility and accountability on the
enforced disappearance of persons or extrajudicial killings. A sitting
president is not allowed to move for its dismissal just because he is
immune from suit.
SAEZ vs. GMA
681 SCRA 686 (2012)
ISSUE: WON the President should be immediately dropped as
respondent on the ground of her immunity from suit.
RULING: NO. The President cannot be automatically dropped as a
respondent pursuant to the Doctrine of Command Responsibility. The
president, being the commander-in-chief of all armed forces,
necessarily possesses control over the military that qualifies him as a
superior within the purview of the command responsibility doctrine.
Philippine National Police and other Law Enforcement Agencies (E.O.
226). Under E.O. 226,a government official may be held liable for
neglect of duty under the doctrine of command responsibility if he has
knowledge that a crime or offense shall be committed, is being
committed, or has been committed by his subordinates, or by others
within his area of responsibility and, despite such knowledge, he did
not take preventive or corrective action either before, during, or
immediately after its commission. Knowledge of the commission
of irregularities, crimes or offenses is presumed when(a) the acts are
widespread within the government official’s area of jurisdiction; (b) the
acts have been repeatedly or regularly committed within his area
of responsibility; or (c) members of his immediate staff or office
personnel are involved. Pursuant to the doctrine of command
responsibility, the President, as the Commander-in-Chief of
the AFP, can be held liable for affront against the petitioner’s rights to
life, liberty and security as long as substantial evidence exist to show
that he or she had exhibited involvement in or can be imputed with
knowledge of the violations, or had failed to exercise necessary and
reasonable diligence in conducting the necessary investigations
required under the rules.
c. Prohibitions
Article VII, Section 13. The President, Vice-President, the Members of
the Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment
during their tenure. They shall not, during said tenure, directly or
indirectly, practice any other profession, participate in any business, or
be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency,
or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the fourth
civil degree of the President shall not, during his tenure, be appointed
as Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of
bureaus or offices, including government-owned or controlled
corporations and their subsidiaries.
The most prominent is with respect to the holding of another office
while being member of executive family. This is similarly related to
members of congress that they could not have any incompatible office.
The vice-president as member of cabinet, secretary of justice as
member of JBC---- by reason of the primary functions of their office is
allowed to perform other tasks. Importantly, these ex-officio member
positions they hold are also not paid additionally because the work
done is covered by their primary office.
d. Succession
Nothing has changed there, the only thing to remember is that when
permanent vacancy occurs in both offices of the president and vice-
president before the beginning of term or during term, the succession
rules provide for the senate president, if he is willing and able, and if
not, the speaker of the house. But if beginning of term, congress must
enact a law as to the process of selecting as to who shall act as
Page 50
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
president until a president is elected. If vacancy occurs during a term,
then congress must enact a law as to who shall be the active president.
1. At the beginning of term
Article VII, Section 7. The President-elect and the Vice President-elect
shall assume office at the beginning of their terms.
If the President-elect fails to qualify, the Vice President-elect shall act as
President until the President-elect shall have qualified.
If a President shall not have been chosen, the Vice President-elect shall
act as President until a President shall have been chosen and qualified.
If at the beginning of the term of the President, the President-elect
shall have died or shall have become permanently disabled, the Vice
President-elect shall become President.
Where no President and Vice-President shall have been chosen or shall
have qualified, or where both shall have died or become permanently
disabled, the President of the Senate or, in case of his inability, the
Speaker of the House of Representatives, shall act as President until a
President or a Vice-President shall have been chosen and qualified.
The Congress shall, by law, provide for the manner in which one who is
to act as President shall be selected until a President or a Vice-
President shall have qualified, in case of death, permanent disability, or
inability of the officials mentioned in the next preceding paragraph.
2. During term
Article VII, Section 8. In case of death, permanent disability, removal
from office, or resignation of the President, the Vice-President shall
become the President to serve the unexpired term. In case of death,
permanent disability, removal from office, or resignation of both the
President and Vice-President, the President of the Senate or, in case of
his inability, the Speaker of the House of Representatives, shall then act
as President until the President or Vice-President shall have been
elected and qualified.
The Congress shall, by law, provide who shall serve as President in case
of death, permanent disability, or resignation of the Acting President.
He shall serve until the President or the Vice-President shall have been
elected and qualified, and be subject to the same restrictions of powers
and disqualifications as the Acting President.
3. In case of temporary disability
Article VII, Section 11. Whenever the President transmits to the
President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to discharge
the powers and duties of his office, and until he transmits to them a
written declaration to the contrary, such powers and duties shall be
discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to the
President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable
to discharge the powers and duties of his office, the Vice-President
shall immediately assume the powers and duties of the office as Acting
President.
Thereafter, when the President transmits to the President of the Senate
and to the Speaker of the House of Representatives his written
declaration that no inability exists, he shall reassume the powers and
duties of his office. Meanwhile, should a majority of all the Members of
the Cabinet transmit within five days to the President of the Senate and
to the Speaker of the House of Representatives, their written
declaration that the President is unable to discharge the powers and
duties of his office, the Congress shall decide the issue. For that
purpose, the Congress shall convene, if it is not in session, within forty-
eight hours, in accordance with its rules and without need of call.
If the Congress, within ten days after receipt of the last written
declaration, or, if not in session, within twelve days after it is required
to assemble, determines by a two-thirds vote of both Houses, voting
separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise,
the President shall continue exercising the powers and duties of his
office.
Article VII, Section 12. In case of serious illness of the President, the
public shall be informed of the state of his health. The members of the
Cabinet in charge of national security and foreign relations and the
Chief of Staff of the Armed Forces of the Philippines, shall not be
denied access to the President during such illness.
1. If the President is not chosen: the Vice-President shall act until
the President is chosen.
2. If the President fails to qualify even if chosen: the Vice-President
shall act until the President qualifies.
3. If at the beginning of the term, the President dies or becomes
permanently disabled: the Vice-President becomes the President.
4. If during the term, the President dies, he becomes permanently
disabled, has been removed or has resigned: the Vice-President
becomes the President.
 Designated Survivor Rule
Is there a law already that designates the survivor after the speaker of
the house? I presume the reason why there I none is because
everybody wants to be.
e. Removal
By (1) impeachment and because of the Sereno ruling also by (2)
electoral protest under Section 4 last paragraph of Article 7, the
Supreme Court sits as electoral tribunal for the president and all
contests relating to the election, returns, and qualifications of the
president and vice-president shall be with the SC, so not only by
impeachment. Outline only mentions Article 11 by impeachment.
Article XI, Section 2. The President, the Vice-President, the Members of
Page 51
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
the Supreme Court, the Members of the Constitutional Commissions,
and the Ombudsman may be removed from office on impeachment for,
and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public
trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment.
Article XI, Section 3. The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
A verified complaint for impeachment may be filed by any Member of
the House of Representatives or by any citizen upon a resolution or
endorsement by any Member thereof, which shall be included in the
Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. The Committee, after
hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral,
together with the corresponding resolution. The resolution shall be
calendared for consideration by the House within ten session days from
receipt thereof.
A vote of at least one-third of all the Members of the House shall be
necessary either to affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution.
The vote of each Member shall be recorded.
In case the verified complaint or resolution of impeachment is filed by
at least one-third of all the Members of the House, the same shall
constitute the Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
No impeachment proceedings shall be initiated against the same official
more than once within a period of one year.
The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on
oath or affirmation. When the President of the Philippines is on trial,
the Chief Justice of the Supreme Court shall preside, but shall not vote.
No person shall be convicted without the concurrence of two-thirds of
all the Members of the Senate.
Judgment in cases of impeachment shall not extend further than
removal from office and disqualification to hold any office under the
Republic of the Philippines, but the party convicted shall nevertheless
be liable and subject to prosecution, trial, and punishment, according
to law.
The Congress shall promulgate its rules on impeachment to effectively
carry out the purpose of this section.
Article VII, Section 4 (last part)
xxx
The Supreme Court, sitting en banc, shall be the sole judge of all
contests relating to the election, returns, and qualifications of the
President or Vice- President, and may promulgate its rules for the
purpose.
f. Powers and Functions of the President
1. Executive Power
Article VII, Section 1. The executive power shall be vested in the
President of the Philippines.
Article VII, Section 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure that the
laws be faithfully executed.
First up is to remember the concept of residual powers. MARCOS vs.
MANGLAPUS (1989), in our tripartite system of government, if it is not
legislative, not judicial, then it must have to be executive. So the
constitution is not supposed to be a document that lists down all the
powers of the executive. Anything and everything that has something
to do with implementation, execution and administration is executive
in character. The provisions in the constitution should be read as
limitations rather than grants.
MARCOS vs. MANGLAPUS
177 SCRA 668
178 SCRA 760 (1989)
RULING: Contrary to petitioners' view, it cannot be denied that the
President, upon whom executive power is vested, has unstated residual
powers which are implied from the grant of executive power and which
are necessary for her to comply with her duties under the Constitution.
The powers of the President are not limited to what are expressly
enumerated in the article on the Executive Department and in
scattered provisions of the Constitution. This is so, notwithstanding the
avowed intent of the members of the Constitutional Commission of
1986 to limit the powers of the President as a reaction to the abuses
under the regime of Mr. Marcos, for the result was a limitation of
specific power of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of
executive power.
In the case of OCAMPO vs. ENRIQUEZ (2016), this is the Marcos burial
case in the Libingan Ng Mga Bayani.
Question: Is the order of President Duterte to bury the remains of
Marcos in the Libingan done with great abuse of discretion? Quite a
lengthy decision relating to several laws, but the ultimate conclusion is
that the Libingan Ng Mga Bayani is not the national cemetery
mentioned by law. It is a national memorial shrine or cemetery for
where to bury former military personnel under the auspices of the
Philippine Veterans Administration Office under the Department Of
National Defense, which is under the Office of the President. The OP
simply implemented the law that any former military personnel (and
dogs!) can be buried in that cemetery.
OCAMPO vs. ENRIQUEZ
807 SCRA 223 (2016)
Page 52
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
The President's decision to bury Marcos at the LNMB is in accordance
with the Constitution, the law and jurisprudence.
While the Constitution is a product of our collective history as a
people, its entirety should not be interpreted as providing guiding
principles to just about anything remotely related to the Martial Law
period such as the proposed Marcos burial at the LNMB.
Being the Chief Executive, the President represents the government as
a whole and sees to it that all laws are enforced by the officials and
employees of his or her department. Under the Faithful Execution
Clause, the President has the power to take "necessary and proper
steps" to carry into execution the law. The mandate is self-executory by
virtue of its being inherently executive in nature and is intimately
related to the other executive functions. It is best construed as an
imposed obligation, not a separate grant of power. The provision
simply underscores the rule of law and, corollarily, the cardinal
principle that the President is not above the laws but is obliged to obey
and execute them.
Another thing is the case of SM LAND vs. BCDA (2015) on the question
on executive powers is that: Can a President’s verbal order have legal
effects?
In the case of SM, the SC said that generally, the answer is NO, because
all presidential issuances must have to be in writing. However, under
EO 292 or the administrative code, the executive secretary can issue an
executive issuance under or by authority of the president. So if the
president has given a verbal order, which has been authenticated in
writing by the executive secretary by or under the authority of the
president, that will be a valid order. So verbal per se--- cannot, BUT if
duly authenticated by and in writing of the executive secretary then
that is enough.
In fact if you notice, EO 292 has not been signed by the president. I
think it has been signed only by the executive secretary, during the
interim when the 1987 Constitution took effect and congress re-
convened after the first elections. Aquino was exercising legislative
powers under the 1986 Freedom Constitution. So there were several
statues which came in the form of executive orders. Examples are the
Family Code and the Administrative Code. What is EO 200? It amended
Article 2 of your Civil Code. Publication not only in the Official Gazette
but also a newspaper of general circulation. Not to be confused with
the executive order issued by the president’s ordinance powers in the
administration.
Article 2, Civil Code. Laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette, unless it is
otherwise provided. This Code shall take effect one year after such
publication.
2. Control of Executive Department
 Qualified Political Agency
We said that the allowable delegation in the executive department is
through the so-called power of control by the president over the entire
executive department and directly over members of cabinet under the
Doctrine of Qualified Political Agency, because the president is not
expected to be able to perform all the functions of his office alone, so
he is allowed under the doctrine to let secretaries of his cabinet
perform any and all of his functions. The presumption is that the acts of
the department secretaries are considered acts of the president until
reprobated or changed by the president. Of course subject to actions of
the president because he has the power of control.
Power of control as distinguished from power of supervision refers to
the effect of the superior officer to that of the subordinate. In control,
superior officer controls the acts of subordinate. He may not be able to
control subordinate himself but his acts. He can revise, reverse, review
or affirm the acts of his subordinates. In supervision, to ensure the
subordinate is faithfully performing the acts of his office, it may include
the power to discipline that subordinate officer. So when members of
the cabinet do not follow the instructions of the president, they are
removed not because the president can remove them for any other
cause, it is because the president has the power to appoint them and
he can remove them for loss of trust.
But what cannot be delegated are the following:
1. Power to declare martial law
2. Power to suspend the privilege of Writ of Habeas Corpus
3. To exercise bargaining powers
4. To enter into executive agreements (based on 2008 Neri
decision)
5. To enter into treaties and other agreements of similar
import or importance
All the rest the president can allow cabinet secretaries to decide.
NERI vs. SENATE COMMITTEE
What the fact ought to be compelled for disclosure are in order for the
court to determine whether it is covered by the executive privilege.
Meaning, a simple claim of executive privilege does not prevent the
disclosure of that. It must have to be shown that in fact it is part of the
privilege. Same thing with the negotiations privilege where the
Supreme Court said that a simple claim of that will not make it covered
by the diplomatic negotiations privilege. It must be shown that it is
really part of the diplomatic negotiations and to divulge this is
prejudicial to public or national interest.
The decision in HONTIVEROS-BARAQUEL vs. TRB (2015), is that the
power to review must have to be reviewed by the secretary of DOTC.
Now there are two different departments. The SC said in the case that
even without that executive order authorizing the secretary to review
contracts entered into by the toll regulatory board, it goes without
saying that under the doctrine of QPA, the secretary can do the acts of
the president.
HONTIVEROS-BARAQUEL vs. TRB
751 SCRA 271 (2015)
Page 53
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
ISSUE: Whether the approval of the ASTOA by the DOTC Secretary was
valid
RULING: Approval of the ASTOA by the DOTC Secretary was approval by
the President.
The doctrine of qualified political agency declares that, save in matters
on which the Constitution or the circumstances require the President to
act personally, executive and administrative functions are exercised
through executive departments headed by cabinet secretaries, whose
acts are presumptively the acts of the President unless disapproved by
the latter.
Applying the doctrine of qualified political agency, we have ruled that
the Secretary of Environment and Natural Resources can validly order
the transfer of a regional office by virtue of the power of the President
to reorganize the national government. In Constantino v. Cuisia, the
Court upheld the authority of the Secretary of Finance to execute debt-
relief contracts. The authority emanates from the power of the
President to contract foreign loans under Section 20, Article VII of the
Constitution. In Angeles v. Gaite, the Court ruled that there can be no
issue with regard to the President’s act of limiting his power to review
decisions and orders of the Secretary of Justice, especially since the
decision or order was issued by the secretary, the President’s own alter
ego.
There can be no question that the act of the secretary is the act of the
President, unless repudiated by the latter. In this case, approval of the
ASTOA by the DOTC Secretary had the same effect as approval by the
President. The same would be true even without the issuance of E.O.
497, in which the President, on 24 January 2006, specifically delegated
to the DOTC Secretary the authority to approve contracts entered into
by the TRB.
In MANALANG vs. TIDCORP (2013), it is a different set of facts.
TIDCORP was established with 9 members of the board, 5 of which are
members of the cabinet including the NEDA chair. Can the decision of
the board of TIDCORP be reviewable by the president under the
doctrine of QPA? The answer is NO, because TIDCORP as a board did
not act as members of the cabinet, they acted as members of the
board. Their acts, even if members of the cabinet, did not refer to their
particular cabinet position and therefore their actions as a board is not
subject to review by the president under QPA.
MANALANG vs. TIDCORP
692 SCRA 359 (2013)
The doctrine of qualified political agency could not be extended to the
acts of the Board of Directors of TIDCORP despite some of its members
being themselves the appointees of the President to the Cabinet. Under
Section 10 of Presidential Decree No. 1080, as further amended by
Section 6 of Republic Act No. 8494, the five ex officio members were
the Secretary of Finance, the Secretary of Trade and Industry, the
Governor of the Bangko Sentral ng Pilipinas, the Director-General of the
National Economic and Development Authority, and the Chairman of
the Philippine Overseas Construction Board, while the four other
members of the Board were the three from the private sector (at least
one of whom should come from the export community), who were
elected by the ex officio members of the Board for a term of not more
than two consecutive years, and the President of TIDCORP who was
concurrently the Vice-Chairman of the Board. Such Cabinet members
sat on the Board of Directors of TIDCORP ex officio, or by reason of
their office or function, not because of their direct appointment to the
Board by the President. Evidently, it was the law, not the President,
that sat them in the Board.
Under the circumstances, when the members of the Board of Directors
effected the assailed 2002 reorganization, they were acting as the
responsible members of the Board of Directors of TIDCORP constituted
pursuant to Presidential Decree No. 1080, as amended by Republic Act
No. 8494, not as the alter egos of the President. We cannot stretch the
application of a doctrine that already delegates an enormous amount
of power. Also, it is settled that the delegation of power is not to be
lightly inferred.
3. Supervision of Local Governments and Autonomous Regions
Article X, Section 4. The President of the Philippines shall exercise
general supervision over local governments. Provinces with respect to
component cities and municipalities, and cities and municipalities with
respect to component barangays, shall ensure that the acts of their
component units are within the scope of their prescribed powers and
functions.
Article X, Section 16. The President shall exercise general supervision
over autonomous regions to ensure that laws are faithfully executed.
Our present constitution has granted expanded autonomy to local
governments. Despite that, local government, remain accountable to
the national government. So the question here, in the case of
VILLAFUERTE vs. ROBREDO (2014) is can the local government officials
be disciplined by the secretary of interior and local government for
failure to comply with certain issuances of then-secretary Robredo?
This case involved the need for transparency of then-secretary Robredo
institutionalizing the posting of all bids and awards of local
governments for everybody to see and the memorandum required
them under the pain of administrative penalty. Governor Villafuerte
argued it destroys the concept of expanded autonomy. The SC said that
even if granted certain powers especially on fiscal matters, it does not
mean that they are no longer accountable to the national government.
The issuances of Sec. Robredo was in line with the constitutional trust
of public office, public trust and transparency, and there was nothing in
the issuances that provided for penalties not already provided for by
law so it was not done with abuse of discretion. Because in supervision
it is said that it is not only the act itself which is affected, but the actor
himself will be affected.
VILLAFUERTE vs. ROBREDO
744 SCRA 534 (2014)
ISSUE: Did the assailed memorandum circulars violate the principles of
local and fiscal autonomy?
RULING: NO, a reading of MC No. 2010-138 shows that it is a mere
Page 54
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
reiteration of an existing provision in the LGC. It was plainly intended to
remind LGUs to faithfully observe the directive stated in Section 287 of
the LGC to utilize the 20% portion of the IRA for development projects.
It was, at best, an advisory to LGUs to examine themselves if they have
been complying with the law. It must be recalled that the assailed
circular was issued in response to the report of the COA that a
substantial portion of the 20% development fund of some LGUs was
not actually utilized for development projects but was diverted to
expenses more properly categorized as MOOE, in violation of Section
287 of the LGC.
Contrary to the Villafuerte, et al.’s posturing, however, the
enumeration was not meant to restrict the discretion of the LGUs in the
utilization of their funds. LGUs remain at liberty to map out their
respective development plans solely on the basis of their own judgment
and utilize their IRAs accordingly, with the only restriction that 20%
thereof be expended for development projects. They may even spend
their IRAs for some of the enumerated items should they partake of
indirect costs of undertaking development projects. Villafuerte, et al.
likewise misread the issuance by claiming that the provision of
sanctions therein is a clear indication of the President’s interference in
the fiscal autonomy of LGUs. Significantly, the issuance itself did not
provide for sanctions.
It did not particularly establish a new set of acts or omissions which are
deemed violations and provide the corresponding penalties therefor. It
simply stated a reminder to LGUs that there are existing rules to
consider in the disbursement of the 20% development fund and that
non-compliance therewith may render them liable to sanctions which
are provided in the LGC and other applicable laws. Villafuerte,et al.
claim that the requirement to post other documents in the mentioned
issuances went beyond the letter and spirit of Section 352 of the LGC
and R.A. No. 9184, otherwise known as the Government Procurement
Reform Act, by requiring that budgets, expenditures, contracts and
loans, and procurement plans of LGUs be publicly posted as well.
4. Power of Appointment
This is generally executive in character. By character, it is supposed to
be discretionary. Congress can by law provide for qualifications to an
office which by law was created but it could not affect the discretionary
nature of the appointing power by providing for qualifications that only
one can qualify for the position.
In the case of Flores vs. Drilon which concerned the law creating the
SBMA. It created for the authority and established the office of the
chairperson and the law provided that the first chairperson should be
the mayor of Olongapo city. That provision was declared
unconstitutional not only because a sitting mayor cannot hold any
other position under the LGC, but because it also violates the
discretionary nature of the appointing authority. Congress can provide
for qualifications, but not to the point that only one person can qualify
so it generally prevents the appointing authority from exercising any
discretion.
FLORES vs. DRILON
ISSUE: Whether there is legislative encroachment on the appointing
authority of the President.
RULING: YES, although Section 13(d) itself vests in the President the
power to appoint the Chairman of SBMA, he really has no choice but to
appoint the Mayor of Olongapo City. The power of choice is the heart
of the power to appoint. Appointment involves an exercise of discretion
of whom to appoint. Hence, when Congress clothes the President with
the power to appoint an officer, it cannot at the same time limit the
choice of the President to only one candidate. Such enactment
effectively eliminates the discretion of the appointing power to choose
and constitutes an irregular restriction on the power of appointment.
While it may be viewed that the proviso merely sets the qualifications
of the officer during the first year of operations of SBMA, i.e., he must
be the Mayor of Olongapo City, it is manifestly an abuse of
congressional authority to prescribe qualifications where only one, and
no other, can qualify.
Since the ineligibility of an elective official for appointment remains all
throughout his tenure or during his incumbency, he may however
resign first from his elective post to cast off the constitutionally-
attached disqualification before he may be considered fit for
appointment. Consequently, as long as he is an incumbent, an elective
official remains ineligible for appointment to another public office.
We have discussed the requirements for confirmation by the
Commission on Appointments (CA). The crucial positions require that
the nature of the listing in that first sentence of Section 16, Article VII
cannot be expanded and those which should be appointed by the
president under the constitution would refer to the sectoral
representatives before we refer to the regular members of JBC and
chairpersons and members of the constitutional commissions. So
literally the president appoints them under the constitution and the list
is exclusive. It could not be expanded.
We’ve also discussed the nature of ad-interim or recess appointments.
Remember the 2005 case of Pimentel? When the position requiring CA
confirmation becomes vacant, the president is not compelled to make a
regular appointment immediately. The president may make or extend
appointments in an acting capacity.
Senate President Pimentel questioned the practice of President Arroyo
in extending appointments to the cabinet in an acting capacity. He
argued that it violates the CA confirmation by not extending a regular
appointment. The SC said that even if the position requires CA
confirmation, it is not required that the president should make a
regular appointment because the power to appoint is discretionary. For
as long as it was done in good faith and was not done to circumvent the
law, that is allowed until the president finds a suitable replacement and
makes a regular appointment.
In the case of AGUINALDO vs. AQUINO (2017), this is your latest case
involving the appointing authority of the president. This involves the
appointing power of President Aquino when the Sandiganbayan Law
was amended, creating 6 more divisions. The JBC received applications
and vetted the applicants and submitted 6 shortlist between 5-7 names
for each division. 37 names in all 6 lists. Aquino appointed some and
the IBP questioned the appointees, arguing that it violated the rule
under the constitution that for every vacancy, the JBC must vet and
Page 55
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
submit at least 3 nominees from which the president’s appointment
shall be made.
They argue that the president must limit his choice for every division in
the shortlist submitted by the JBC for that division only, and that if the
name of a person is shortlisted in division 16, he cannot be appointed in
division 21 and vice versa. Question is: Did the president violate the
constitution? SC said NO.
The constitutional provision is quite simple that for every vacancy, JBC
must submit a list of at least 3 nominees. To limit the appoint power of
the president to the list submitted by the JBC per division in cluster
violates the appointing power of the president. In appointments to the
judiciary, how is seniority determined respecting appointment to the
judiciary? Date of appointment is the first rule on seniority.
If you are appointed on the same date, the order in which your names
appear determines the order of seniority. So whoever is listed first is
more senior than whoever is listed next. So if president appoints from
cluster 16, then that determines seniority, because he will have to
appoint first from division 16, then 17, then 18, and so on and so forth
up to division 21. The president must have discretion to determine who
is more senior then the rest of appointees.
Secondly, the SC said that the clustering also prevents the president
from appointing anyone who has been vetted and qualified for the
same position to be appointed to another position. Stated differently,
the question is this: If you have vetted and qualified and shortlisted for
the 16th division, why can you not be qualified for the 21st division? Is
there a different set of qualifications? The answer is NO.
All of those in the list, regardless of what division, they appear, have
been vetted and have been found to have complied with minimum
requirements of proven competence, integrity, probity and
independence. So that is your Aguinaldo vs Aquino ruling. Aguinaldo is
the president of the IBP.
AGUINALDO vs. AQUINO III
811 SCRA 304 (2016)
818 SCRA 310 (2017)
The primordial question then for resolution of the Court is whether
President Aquino, under the circumstances, was limited to appoint only
from the nominees in the shortlist submitted by the JBC for each
specific vacancy.
RULING: The Court answers in the negative.
It is apparent from the aforequoted CONCOM deliberations that
nomination by the JBC shall be a qualification for appointment to the
Judiciary, but this only means that the President cannot appoint an
individual who is not nominated by the JBC.
It should be stressed that the power to recommend of the JBC cannot
be used to restrict or limit the President's power to appoint as the
latter's prerogative to choose someone whom he/she considers worth
appointing to the vacancy in the Judiciary is still paramount. As long as
in the end, the President appoints someone nominated by the JBC, the
appointment is valid.
Moreover, in the case at bar, there were six simultaneous vacancies for
the position of Sandiganbayan Associate Justice, and the JBC cannot, by
clustering of the nominees, designate a numerical order of seniority of
the prospective appointees. The Sandiganbayan, a collegiate court, is
composed of a Presiding Justice and 20 Associate Justices divided into
seven divisions, with three members each. The numerical order of the
seniority or order of preference of the 20 Associate Justices is
determined pursuant to law by the date and order of their commission
or appointment by the President.
Evidently, based on law, rules, and jurisprudence, the numerical order
of the Sandiganbayan Associate Justices cannot be determined until
their actual appointment by the President.
It bears to point out that part of the President's power to appoint
members of a collegiate court, such as the Sandiganbayan, is the power
to determine the seniority or order of preference of such newly
appointed members by controlling the date and order of issuance of
said members' appointment or commission papers.
There is also a legal ground why the simultaneous vacant positions of
Sandiganbayan Associate Justice should not each be assigned a specific
number by the JBC. The Sandiganbayan Associate Justice positions were
created without any distinction as to rank in seniority or order of
preference in the collegiate court. The President appoints his choice
nominee to the post of Sandiganbayan Associate Justice, but not to a
Sandiganbayan Associate Justice position with an identified rank, which
is automatically determined by the order of issuance of appointment by
the President. The appointment does not specifically pertain to the
16th, 17th, 18th, 19th, 20th, or 21st Sandiganbayan Associate Justice,
because the Sandiganbayan Associate Justice's ranking is temporary
and changes every time a vacancy occurs in said collegiate court.
Furthermore, the JBC, in sorting the qualified nominees into six
clusters, one for every vacancy, could influence the appointment
process beyond its constitutional mandate of recommending qualified
nominees to the President. Clustering impinges upon the President's
power of appointment, as well as restricts the chances for appointment
of the qualified nominees, because (1) the President's option for every
vacancy is limited to the five to seven nominees in the cluster; and (2)
once the President has appointed from one cluster, then he is
proscribed from considering the other nominees in the same cluster for
the other vacancies. The said limitations are utterly without legal basis
and in contravention of the President's appointing power.
August 15, 2018 – Janine Lumanag
 Revised Rules on Administrative Cases in the Civil Service
We’ve already mentioned GONZALES vs. OFFICE OF THE PRESIDENT
(2012). We will see what will happen in the impending dismissal
complaint overhaul that the Ombudsman because the newly appointed
ombudsman has publicly declared that he will implement the decision.
Page 56
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
This is contrary to the 2014 ruling of GONZALES vs. OFFICE OF THE
PRESIDENT.
GONZALES vs. OFFICE OF THE PRESIDENT
714 SCRA 611 (2014)
Section 8(2) of RA No. 6770 vesting... disciplinary authority in the
President... over the Deputy Ombudsman violates... the independence
of the Office of the Ombudsman and is thus... unconstitutional... we
rule that subjecting the Deputy Ombudsman to discipline and removal
by the President, whose own alter egos and officials in the Executive
Department are subject to the Ombudsman's disciplinary authority,
cannot but seriously place at risk the... independence of the Office of
the Ombudsman itself. The Office of the Ombudsman, by express
constitutional mandate, includes its key officials, all of them tasked to
support the Ombudsman in carrying out her mandate. Unfortunately,
intrusion upon the... constitutionally-granted independence is what
Section 8(2) of RA No. 6770 exactly did. By so doing, the law directly
collided not only with the independence that the Constitution
guarantees to the Office of the Ombudsman, but inevitably with the
principle of checks and... balances that the creation of an Ombudsman
office seeks to revitalize.
What is true for the Ombudsman must be equally and necessarily true
for her Deputies who act as agents of the Ombudsman in the
performance of their duties. The Ombudsman can hardly be expected
to place her complete trust in her subordinate officials who are not as...
independent as she is, if only because they are subject to pressures and
controls external to her Office. This need for complete trust is true in
an ideal setting and truer still in a young democracy like the Philippines
where graft and corruption is still a major problem... for the
government. For these reasons, Section 8(2) of RA No. 6770 (providing
that the President may remove a Deputy Ombudsman) should be
declared void.
he statements made by Commissioner Monsod emphasized a very
logical principle: the Executive power to remove and discipline key
officials of the Office of the Ombudsman, or to exercise any power over
them, would result in an absurd situation wherein the Office of the
Ombudsman is given the duty to adjudicate on the integrity and
competence of the very persons who can remove or suspend its
members.
5. Executive Clemencies
Article VII, Section 19. Except in cases of impeachment, or as otherwise
provided in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of
a majority of all the Members of the Congress.
Article IX-C, Section 5. No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules, and regulations shall be
granted by the President without the favorable recommendation of the
Commission.
The pardoning powers of the President are largely executive,
discretionary, final and unappealable. If there is no constitutional
provision or limitation violated, the private act of the President though
official, which is the grant of pardon or clemency is considered to be
final and unappealable.
The limitations as provided for in the Constitution are the following:
1. There must have to be conviction by final judgment
If it is in relation to an election offense, there must be favorable
recommendation by the Comelec.
2. It cannot be done in cases of impeachement and there are no
other constitutional limitations on the exercise of such power.
In the case of RISOS-VIDAL vs. COMELEC (2015), the SC had the
occasion to mention one doctrine, the doctrine of non-diminution or
non-impairment of the president’s power of pardon by acts of
Congress. Simply there can be no legislation which would limit the
power of the president to extend executive clemency because only the
constitution can provide for such limitation.
In the said case, this was the pardon extended to former president
Estrada by Gloria Macapagal-Arroyo (GMA). It’s for the conviction for
plunder and part of the discussion there was whether the grant of
pardon was conditional or absolute. Cited by petitioner was one of the
preambular clause, the third one saying that president Estrada affirmed
that he will no longer stay in the public office.
So the question was, in running for an elective position, did he violate
the conditions of pardon. SC said that the preambular clause – the
whereas clauses of the statute, the grant of pardon being one, is not
considered to be part of the operative fact or act of the grant of
pardon. The recitation of the grant of pardon stating that he is restored
to all his political and civil rights is an indication that the grant was
absolute and so, he was not disqualified to run.
RISOS-VIDAL vs. COMELEC
747 SCRA 210 (2015)
In September 12, 2007, the Sandiganbayan convicted former President
Estrada for the crime of plunder and was sentenced to suffer the
penalty of Reclusion Perpetua and the accessory penalties of civil
interdiction during the period of sentence and perpetual absolute
disqualification. On October 25, 2007, however, former President Gloria
Macapagal Arroyo extended executive clemency, by way of pardon, to
former President Estrada, explicitly stating that he is restored to his civil
and political rights.
In 2009, Estrada filed a Certificate of Candidacy for the position of
President. None of the disqualification cases against him prospered but
he only placed second in the results.
In 2012, Estrada once more ventured into the political arena, and filed a
Page 57
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Certificate of Candidacy, this time vying for a local elective post, that of
the Mayor of the City of Manila.
Petitioner Risos-Vidal filed a Petition for Disqualification against Estrada
before the Comelec stating that Estrada is disqualified to run for public
office because of his conviction for plunder sentencing him to suffer the
penalty of reclusion perpetua with perpetual absolute disqualification.
Petitioner relied on Section 40 of the Local Government Code (LGC), in
relation to Section 12 of the Omnibus Election Code (OEC).
The Comelec dismissed the petition for disqualification holding that
President Estrada’s right to seek public office has been effectively
restored by the pardon vested upon him by former President Gloria M.
Arroyo.
Estrada won the mayoralty race in May 13, 2013 elections. Alfredo Lim,
who garnered the second highest votes, intervened and sought to
disqualify Estrada for the same ground as the contention of Risos-Vidal
and praying that he be proclaimed as Mayor of Manila.
ISSUE: May former President Joseph Estrada run for public office
despite having been convicted of the crime of plunder which carried an
accessory penalty of perpetual disqualification to hold public office?
RULING: Yes. Estrada was granted an absolute pardon that fully
restored all his civil and political rights, which naturally includes the
right to seek public elective office, the focal point of this controversy.
The wording of the pardon extended to former President Estrada is
complete, unambiguous, and unqualified. It is likewise unfettered by
Articles 36 and 41 of the Revised Penal Code. The only reasonable,
objective, and constitutional interpretation of the language of the
pardon is that the same in fact conforms to Articles 36 and 41 of the
Revised Penal Code.
It is insisted that, since a textual examination of the pardon given to
and accepted by former President Estrada does not actually specify
which political right is restored, it could be inferred that former
President Arroyo did not deliberately intend to restore former
President Estrada’s rights of suffrage and to hold public office, orto
otherwise remit the penalty of perpetual absolute disqualification. Even
if her intention was the contrary, the same cannot be upheld based on
the pardon’s text.
The pardoning power of the President cannot be limited by legislative
action.
The 1987 Constitution, specifically Section 19 of Article VII and Section
5 of Article IX-C, provides that the President of the Philippines
possesses the power to grant pardons, along with other acts of
executive clemency, to wit:
Section 19. Except in cases of impeachment, or as otherwise provided in
this Constitution, the President may grant reprieves, commutations, and
pardons, and remit fines and forfeitures, after conviction by final
judgment.
He shall also have the power to grant amnesty with the concurrence of
a majority of all the Members of the Congress.
xxxx
Section 5. No pardon, amnesty, parole, or suspension of sentence for
violation of election laws, rules, and regulations shall be granted by the
President without the favorable recommendation of the Commission.
It is apparent from the foregoing constitutional provisions that the only
instances in which the President may not extend pardon remain to be
in: (1) impeachment cases; (2) cases that have not yet resulted in a final
conviction; and (3) cases involving violations of election laws, rules and
regulations in which there was no favorable recommendation coming
from the COMELEC. Therefore, it can be argued that any act of
Congress by way of statute cannot operate to delimit the pardoning
power of the President.
The third preambular clause of the pardon did not operate to make
the pardon conditional.
Contrary to Risos-Vidal’s declaration, the third preambular clause of the
pardon, i.e., "[w]hereas, Joseph Ejercito Estrada has publicly committed
to no longer seek any elective position or office," neither makes the
pardon conditional, nor militate against the conclusion that former
President Estrada’s rights to suffrage and to seek public elective office
have been restored.
This is especially true as the pardon itself does not explicitly impose a
condition or limitation, considering the unqualified use of the term
"civil and political rights"as being restored. Jurisprudence educates that
a preamble is not an essential part of an act as it is an introductory or
preparatory clause that explains the reasons for the enactment, usually
introduced by the word "whereas." Whereas clauses do not form part
of a statute because, strictly speaking, they are not part of the
operative language of the statute. In this case, the whereas clause at
issue is not an integral part of the decree of the pardon, and therefore,
does not by itself alone operate to make the pardon conditional or to
make its effectivity contingent upon the fulfilment of the
aforementioned commitment nor to limit the scope of the pardon.
Besides, a preamble is really not an integral part of a law. It is merely an
introduction to show its intent or purposes. It cannot be the origin of
rights and obligations. Where the meaning of a statute is clear and
unambiguous, the preamble can neither expand nor restrict its
operation much less prevail over its text.
If former President Arroyo intended for the pardon to be conditional on
Respondent’s promise never to seek a public office again, the former
ought to have explicitly stated the same in the text of the pardon itself.
Since former President Arroyo did not make this an integral part of the
decree of pardon, the Commission is constrained to rule that the 3rd
preambular clause cannot be interpreted as a condition to the pardon
extended to former President Estrada.
a. Amnesty vs. Pardon
The case of MAGDALO vs. COMELEC (2012) discusses the distinction
between Amnesty and pardon. Amnesty is an act of the sovereign
Page 58
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
that’s why the Constitution requires that section 19 requires prior
concurrence of congress, it’s not a private act of the president alone
unlike a pardon.
MAGDALO vs. COMELEC
673 SCRA 651 (2012)
Amnesty commonly denotes a general pardon to rebels for their
treason or other high political offenses, or the forgiveness which one
sovereign grants to the subjects of another, who have offended, by
some breach, the law of nations. Amnesty looks backward, and
abolishes and puts into oblivion, the offense itself; it so overlooks and
obliterates the offense with which he is charged, that the person
released by amnesty stands before the law precisely as though he had
committed no offense.
Pardon is granted by the Chief Executive and as such it is a private act
which must be pleaded and proved by the person pardoned, because
the courts take no notice thereof; while amnesty by Proclamation of
the Chief Executive with the concurrence of Congress, is a public act of
which the courts should take judicial notice.
Amnesty – any person can claim coverage or benefit under the
amnesty proclamation regardless of the stage whether he has not yet
been arrested, been arrested, tried, convicted or serving sentence
provided one is covered by the amnesty proclamation, one can claim
amnesty.
In pardon, there must have to be a conviction by final judgment. You all
remember that case of PEOPLE vs. SALLE, JR. (1995) where the SC
traced the history of the requirement of conviction by final judgment.
In the original text of the 1935 Constitution, this followed the American
condition that there has or there is no requirement of conviction, only
an act of commission. Once a crime has been committed, a person may
be granted pardon already or executive clemency.
In the 1973 original draft, as approved, it required conviction by final
judgment although even if it is on appeal provided there has been a
conviction by the trial court, pardon or clemency can be extended.
When it was amended in 1981, it returned to the American tradition
that no conviction required.
In the 1987, it was restored and the phraseology was changed, it is now
clear that there must have to be judgment of final conviction meaning
there is no appeal pending, there is service of sentence or one must
have applied for probation. In instances where before under the
imposed death penalty, a person may waive his right to appeal in
writing except in instances of death penalty impositions, a conviction is
also considered final. When it is so, then executive clemency can be
extended.
PEOPLE vs. SALLE, JR.
250 SCRA 581 (1995)
Section 19, Article VII thereof reads as follows:
“Except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations, and
pardons, and remit fines and forfeitures, after conviction by final
judgment.
He shall also have the power to grant amnesty with the concurrence of
a majority of all the Members of the Congress.”
Where the pardoning power is subject to the limitation of conviction, it
may be exercised at any time after conviction even if the judgment is
on appeal. It is, ofcourse, entirely different where the requirement is
" final conviction, " as was mandated in the original provision of Section
14, Article IX of the 1973 Constitution, or "conviction by final
judgment," as presently prescribed in Section 19, Article VII of the 1987
Constitution. In such a case, no pardon may be extended before a
judgment of conviction becomes final.
A judgment of conviction becomes final (a) when no appeal is
seasonably perfected, (b) when the accused commences to serve the
sentence, (c) when the right to appeal is expressly waived in writing,
except where the death penalty was imposed by the trial court, and (d)
when the accused applies for probation, thereby waiving his right to
appeal. Where the judgment of conviction is still pending appeal and
has not yet therefore attained finality, as in the instant case,
executive clemency may not yet be granted to the appellant.
The "conviction by final judgment" limitation under Section 19, Article
VII of the present Constitution prohibits the grant of pardon, whether
full or conditional, to an accused during the pendency of his appeal
from his conviction by the trial court. Any application therefor, if one is
made, should not be acted upon or the process toward its grant should
not be begun unless the appeal is withdrawn. Accordingly, the agencies
or instrumentalities of the Government concerned must require proof
from the accused that he has not appealed from his conviction or that
he has withdrawn his appeal. Such proof may be in the form of a
certification issued by the trial court or the appellate court, as the case
may be.
The acceptance of the pardon shall not operate as an abandonment or
waiver of the appeal, and the release of an accused by virtue of a
pardon, commutation of sentence, or parole before the withdrawal of
an appeal shall render those responsible therefor administratively
liable. Accordingly, those in custody of the accused must not solely rely
on the pardon as a basis for the release of the accused
from confinement.
WHEREFORE, counsel for accused-appellant Ricky Mengote y Cuntado
is hereby given thirty (30) days from notice hereof within which to
secure from the latter the withdrawal of his appeal and to submit it to
this Court. The conditional pardon granted the said appellant shall be
deemed to take effect only upon the grant of such withdrawal. In case
of non-compliance with this Resolution, the Director of the Bureau of
Corrections must exert every possible effort to take back into his
custody the said appellant, for which purpose he may seek the
assistance of the Philippine National Police or the National Bureau of
Investigation.
b. Pardon vs. Probation
Page 59
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
You know what probation is, it covers a certain specie of offenses
where the penalty imposable does not exceed 6 years and there is
other requirements of first time offender.
The question there is, is that granted by the president as part of his
clemency powers? Technically it is not, it is granted by the Court upon
proper recommendation of the parole and probation board. But it is
also granted by the executive department but again not granted
directly by the president but upon order of the court.
c. Pardon vs. Parole
Who grants parole? Also the parole and probation board after
minimum service of minimum sentence under the ISL. Not directly
granted by the president.
d. Effects of Pardon
If the pardon is absolute, it restores the person to all his civil and
political rights.
If it is conditional, a condition must have to be complied with or
satisfied before a person is fully restored to all his rights civil and
political.
e. Sanctions for Violations of Conditional Pardons
There is a separate felony for failing to comply with conditional pardon
or there can be administrative liability by requiring the accused to serve
the remainder if there is a violation of the pardon.
f. Does pardoning power apply to administrative cases?
The old case of LLAMAS vs. EXECUTIVE SECRETARY (1991) is still a good
law. It can be extended to administrative cases but only if the power is
with the president. In administrative cases relating to other branches of
the government which the President does not have any power of
discipline, the president cannot extend pardoning powers or clemency
powers to those administrative held liable in their respective cases (?).
LLAMAS vs. EXECUTIVE SECRETARY
202 SCRA 844 (1991)
Ocampo III was the governor of Tarlac Province. Llamas together with
some other complainants filed an administrative case against Ocampo
III for alleged acts constituting graft and corruption. Ocampo III was
found guilty. He was suspended for office for 90 days hence his vice
governor, Llamas, assumed office. In not less than 30 days however,
Ocampo III returned with an AO showing that he was pardoned hence
he can resume office without completing the 90 day suspension
imposed upon him.
The petitioner argues that President may grant executive clemency only
in criminal cases. They say that the qualifying phrase “after conviction
by final judgment” applies solely to criminal cases, and no other law
allows the grant of executive clemency or pardon to anyone who has
been “convicted in an administrative case, allegedly because the word
“conviction” refers only to criminal cases.
ISSUE: WON the President of the Philippines has the power to grant
executive clemency in administrative cases.
RULING: Yes. It is not specified in the constitution whether it may be
considered under criminal or administrative cases. , if the law does not
distinguish, so we must not distinguish. The Constitution does not
distinguish between which cases executive clemency may be exercised
by the President, with the sole exclusion of impeachment cases. By the
same token, if executive clemency may be exercised only in criminal
cases, it would indeed be unnecessary to provide for the exclusion of
impeachment cases from the coverage of Article VII, Section 19 of the
Constitution. Cases of impeachment are automatically excluded
inasmuch as the same do not necessarily involve criminal offenses.
The do not clearly see any valid and convincing reason why the
President cannot grant executive clemency in administrative cases. It is
the court’s considered view that if the President can grant reprieves,
commutations and pardons, and remit fines and forfeitures in criminal
cases, with much more reason can she grant executive clemency in
administrative cases, which are clearly less serious than criminal
offenses.
The court stressed, however, that when we say the President can grant
executive clemency in administrative cases, we refer only to all
administrative cases in the Executive branch, not in the Judicial or
Legislative branches of the government.
In criminal cases, the quantum of evidence required to convict an
individual is proof beyond reasonable doubt. On the other hand, in
administrative cases, the quantum of evidence required is mere
substantial evidence to support a decision.
6. Powers of Commander-in-Chief
Article VII, Section 18. The President shall be the Commander-in-Chief
of all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion,
when the public safety requires it, he may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of
the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety
requires it.
Page 60
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
The Congress, if not in session, shall, within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within
thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
Article III, Section 13. All persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
Article VIII, Section 1. xxx
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.
This refers to the military powers of the president. Section 18 as we all
know is the longest provision in the present constitution singularly as a
result of the effects of the declaration of Martial Law. The framers of
the 1987 Constitution has tried to perceive and conceive all limitations
to avoid repetition of the events of the past. The case of LAGMAN vs.
EXECUTIVE SECRETARY (2017) is the longest decision now per report in
the SCRA.
There is a listing of the powers which the President can do under
Section 18. The first is referred to as the calling out power.
1. Calling out power
To call out the armed forces to suppress any lawless
violence invasion of.
2. Suspension of the privilege of the writ of habeas corpus
3. Declaration of martial law
In Lagman, the SC said that the listing is not an enumeration
of the sequence of power that the President can exercise.
It’s just a listing based on gravity or graveness of the
offense. The SC cannot quantify nor direct which of these
powers the president should or must exercise in a particular
situation. It is not for the President to exercise calling out
first then suspend then declare martial law. It depends on
the calculation of the president based on the exercise of
discretion on whether the conditions are met.
LAGMAN vs. EXECUTIVE SECRETARY
G.R. No. 231658; July 4, 2017
Graduation of powers: It refers to hierarchy based on scope and
effect, and not to a sequence/order that the President must adhere to.
Also, the Court cannot calibrate the President's decision on which
among the powers he will avail of in a given situation.
The President as Commander-in-Chief has three extraordinary powers:
(a) Calling out the armed forces, (b) Suspending the privilege of the writ
of habeas corpus, and (c) Declaring martial law.
Calling out the armed forces is the most benign and involves ordinary
police action. It is done only when it is necessary to prevent or suppress
lawless violence, invasion, or rebellion. The only limitations are that the
president must act within constitutional boundaries and not in a
manner constituting grave abuse of discretion.
For both the suspension of the privilege of the writ of habeas corpus
and the declaration of martial law, the president is allowed to resort to
these only when there is actual invasion or rebellion AND public safety
requires it. It is limited to 60 days, subject to review and possible
revocation by Congress, and also to review and possible nullification by
the Supreme Court. Insurrection and IMMINENT danger are NOT
grounds for the suspension of the writ or declaration of Martial Law. As
a constitutionally granted power of the President, the recommendation
of the Defense Secretary to declare martial law is not a prerequisite.
During the period of martial law, the president exercises police power,
which is normally a function of the legislature. The president as
commander-in-chief can also order arrests and seizures without judicial
warrants, ban public assemblies, takeover news media and agencies
and censor the press, and issue presidential decrees. Nonetheless, the
president still does not have unbridled discretion to infringe the rights
of civilians because martial law does not suspend the operation of the
Constitution, nor supplant the operation of civil courts or legislative
assemblies.
Petition for certiorari is not the appropriate proceeding. It is also not
correct to say that the power to review the factual basis of the
declaration of Martial Law falls under Section 1 and Section 5, Article
VIII.
Page 61
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Rule 65 is not the appropriate proceeding because this refers to
whether or not an official gravely abused his/her authority amounting
to lack or excess of jurisdiction. The review of the sufficiency of the
FACTUAL basis of Martial Law cannot be done using the same standard
of review. The jurisdiction of the Supreme Court in reviewing the
sufficiency of the factual basis of the declaration of martial law is suis
generis -- it is a special ad specific jurisdiction of the Supreme Court
aside from those enumerated in Section 1 (expanded jurisdiction of the
Court) and Section 5 (exclusive and original jurisdiction of the SC) of
Article VIII. If the Court applies the standard of review used in a petition
for certiorari, the same would emasculate its constitutional task under
Section 18, Article VII. The framers of the Constitution added an
additional safeguard under the third paragraph of Section 18, Article VII
on top of the expanded jurisdiction of the Court.
Lansang doctrine reiterated
According to the case of Garcia-Padilla vs. Enrile, decided after the
declaration of martial law during the presidency of Ferdnand Marcos,
the declaration of martial law and the suspension of the privilege of the
writ of habeas corpus is a political question and not subject to judicial
review. The Garcia case overturned the Lansang doctrine, an earlier
case that declared that the factual basis of declaring martial law and
the suspension of the privilege of the writ of habeas corpus are subject
to judicial inquiry. In the case at bar, the Supreme Court made it clear
that the 1987 Constitution (Section 18, Article VII) reverted to and
constitutionalized the Lansang doctrine.
The power of the Court to review the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of
the writ of habeas corpus under Section 18, Article VII of the 1987
Constitution is independent of the actions taken by Congress.
By this conclusion, the Court reversed the doctrine in Fortun vs.
Macapagal-Arroyo insofar as it refers to the role of Congress and the
Supreme Court in the review of the factual basis of the declaration of
martial law. In Fortun, the Court declared that it was only on "standby"
in case Congress defaults, but the Court made it clear in the case at bar
that the it can exercise its power of review simultaneously with the
power of Congress to do the same.
Proclamation No. 216 is not vague and is, therefore, constitutional.
As held in this case, the void-for-vagueness doctrine applies only to free
speech cases. Proclamation No. 216 does not regulate speech or any
other fundamental right that may be facially challenged. It only seeks to
penalize conduct, not speech.
The inclusion of "other rebel groups" does not make the proclamation
vague, as it should be interpreted in relation to the other words that
accompany it. They refer to the other rebel groups as found in
Proclamation No. 55 (calling out armed forces), which was cited in
Proclamation No. 216 by way of reference in the Whereas clauses.
The lack of operational parameters does not make the proclamation
void. Operational guidelines are mere tools for the implementation of
the proclamation. Judicial review covers only the sufficiency of the
information or data at the time, or prior to the declaration or
suspension. The review by this Court will be confined to the
proclamation itself and the report submitted to Congress. Any act
committed under the said orders in violation of the Constitution and
the laws, such as criminal acts or human rights violations, should be
resolved in a separate proceeding.
Sufficiency of factual basis test
The president as Commander-in-Chief has the sole discretion to declare
martial law and/or to suspend the privilege of the writ of habeas
corpus. The determination of this Court as to whether there is sufficient
factual basis for the exercise of such must ONLY be based on facts or
information known by the President at the time he made the
declaration or suspension, which facts or information are already found
in the proclamation as well as the written Report submitted by him to
Congress.
The Court cannot look at the absolute correctness of the facts, as this
will unduly burden the president and impede the process of decision-
making. The Court should look into the full complement or totality of
the factual basis, and not piecemeal or individually. The Court does not
need to satisfy itself that the President's decision is correct, rather it
only has to satisfy itself that the decision had sufficient factual bases.
(Sufficiency > accuracy)
Standard of proof is only probable cause.
The Supreme Court declared that the president only needs to satisfy
probable cause to make a declaration of martial law and to suspend the
privilege of the writ of habeas corpus. This is, according to the majority
decision, the most practical and most expedient standard by which the
President can ascertain the existence or non-existence of rebellion.
Based on the facts cited in the 2 proclamations and the report to
Congress, the Court found that the factual circumstances in Marawi
warranted the declaration of Martial Law. As to other parts of
Mindanao, the Court took notice of the fact that the Maute group has
established extensive networks and linkages with foreign and local
armed groups.
The counter-evidence provided by the petitioners were not given
credence. As found by the Court, the counter-evidence came from
unverified news reports. The ruling in Bedol vs. Commission on
Elections on the admissiblity of independent relevant statements does
not apply. Independent relevant statements are reliable only when the
statements are relevant and when the truth or falsity thereof is
immaterial. In the case at bar, the truth or falsity of the contents of the
news reports is material.
Maute groups are terrorists. Although terrorism is not cited as a
ground to declare martial law, terrorism and rebellion are not
mutually exclusive.
Terrorism neither negates nor absorbs rebellion. Objective of a terrorist
is to sow and create a condition of widespread fear among the
populace in order for the government to give in to an unlawful demand.
Rebellion is political. Nonetheless, nothing in Article 134 of the Revised
Page 62
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Penal Code nor RA 9372 makes them mutually exclusive. In fact,
rebellion may be subsumed under the crime of terrorism, which is
broader in scope and covers a wide range of predicate crimes. Rebellion
is only one of the various means by which terrorism can be committed.
As to the powers of congress while the case of FORTUN vs.
MACAPAGAL-ARROYO (2012) on the Maguindanao Martial law
declaration, said that the power to declare martial law is shared by
both the President and Congress. That has been altered in the case of
LAGMAN where the SC said there is no requirement of prior consent or
approval from congress, the president can declare martial law.
Absolutely, the president has the power to declare without requiring
any prior approval of any other office for that matter.
FORTUN vs. MACAPAGAL-ARROYO
668 SCRA 504 (2012)
The President has the sole and exclusive power to declare martial law
or suspend the writ. This power of the President is subject to review
separately by Congress and the Supreme Court. Justice Mendoza
stresses, "Thus, Congress and this Court have separate spheres of
competence. They do not act ‘jointly and sequentially’ but
independently of each other." Father Bernas points out, "Since the
powers of Congress and the Court are independent of each other, there
is nothing to prevent Congress and the Court from simultaneously
exercising their separate powers."
What is the basis for the president to declare martial law?
This is based on the test of sufficiency of the factual basis – that there is
invasion or rebellion and that public safety requires it. Provided those
are present, then the president can declare martial law. When the
President mixed(?) that the court to congress in person or through his
representatives in writing as required by the constitution, congress can
consider facts prior during and even after such declaration. It is a
political determination. Congress is not limited to a determination by
the court on the sufficiency of the factual basis. The SC’s authority
comes when there is an appropriate petition filed.
What is that nature of that petition in Lagman?
The SC said:
 If it were to be to question the calling out power, it must be
based on rule 65 petition. Grave abuse of discretion.
 But if it were to be to question the factual sufficiency of the
suspension of the privilege or declaration of martial law,
then it is sui generis It is not a rule 65 petition because it is
not a test of grave abuse of discretion of arbitrariness. It is a
petition to test the sufficiency of the factual basis for such
suspension or declaration.
Again there is a difference between questioning the calling out power
and with respect to the other two more grave declarations. It is sui
generis because it does not follow the rule 65 rules, any citizen is
supposed to be a proper party to question the sufficiency so when you
talk about a legal standing, the only requirement is that you are a
citizen of majority age of no other particular requirement.
When the petition is filed, the SC said that it upheld the old ruling in
LANSANG vs. GARCIA (1971) that the declaration of martial law or
suspension of the privilege of the writ is a justiciable not a political
question, however, unlike in Lansang vs. Garcia where the SC then said
that it can be tested based on arbitrariness. This time around, the SC
said the Lansang ruling requiring in arbitrariness is no longer true
because what is to be determined is sufficiency of factual basis.
The SC in determining whether the factual basis is sufficient must have
to consider the totality of the facts based on what has been reported to
the president. It is based on sufficiency not on accuracy. So even if the
facts turn out later to be inaccurate, but by the totality of the facts
taken altogether when the President made the declaration would make
up a sufficient basis for declaring martial law or suspending the writ
that would be sufficient. SC is not allowed to take facts after into
consideration in determining whether the declaration or suspension
was made without sufficient factual basis. So the cap of is up to the
time of declaration or suspension. Unlike congress which is allowed to
take matters even after. Now with respect to the requirement of
determination of the existence of rebellion, SC said that the President is
still bound by Art 134 of the RPC and that kind of rebellion. However,
the determination of its existence is based on probable cause – such
facts and circumstances which would engender a well-founded belief
that rebellion is being committed. It does not require preponderance, it
does not require proof beyond reasonable doubt, only probable cause.
Finally with respect to the coverage of declaration of martial law or
suspension of the privilege, the SC made a discussion that it is not
limited to where actual public uprising is happening. Where public
uprising is required in rebellion, there are common crimes which are
absorbed in rebellion under the doctrine of absorption and these
common crimes will be committed in areas where there is no actual
public uprising. And so, despite the requirement of rebellion, it is
conceivable that the declaration may include areas where there may be
no actual public uprising but there are common offenses being
committed in furtherance of rebellion. That’s why even if the actual
public uprising is in Marawi, in the western side of Mindanao, Dinagat
Island in the eastern side is covered by the declaration of the martial
law because common crimes may be committed in Dinagat Island in
furtherance of rebellion in Marawi. To follow the ruling of the SC, so the
entire island had been placed (in martial law).
Final item discussed in the case of Lagman is the matter of rebellion vs.
terrorism. Justice Leonen was discussing in his dissent that what was
committed was an act of terrorism and not rebellion. The SC addressed
that by saying that rebellion may be subsumed under terrorism.
Rebellion is one of the means to commit terrorism.
LANSANG vs. GARCIA
42 SCRA 448 (1971) – OVERRULED
(no longer true but just to compare the Lagman and this one..)
FACTS: Due to the throwing of two hand grenades in a Liberal Party
caucus in 1971 causing the death of 8 people, Marcos issued PP 889
Page 63
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
which suspended the privilege of the writ of habeas corpus. Marcos
urged that there is a need to curtail the growth of Maoist groups.
Subsequently, Lansang et al were invited by the PC headed by Garcia
for interrogation and investigation. Lansang et al questioned the
validity of the suspension of the writ averring that the suspension does
not meet the constitutional requisites.
ISSUE: Whether or not the suspension is constitutional.
RULING: The doctrine established in Barcelon and Montenegro was
subsequently abandoned in this case where the SC declared that it had
the power to inquire into the factual basis of the suspension of the
privilege of the writ of habeas corpus by Marcos in Aug 1971 and to
annul the same if no legal ground could be established. Accordingly,
hearings were conducted to receive evidence on this matter, including
two closed-door sessions in which relevant classified information was
divulged by the government to the members of the SC and 3 selected
lawyers of the petitioners. In the end, after satisfying itself that there
was actually a massive and systematic Communist-oriented campaign
to overthrow the government by force, as claimed by Marcos, the SC
unanimously decided to uphold t5he suspension of the privilege of the
Writ of Habeas Corpus.
7. Emergency Powers
Article VI, Section 23.
xxx
2. In times of war or other national emergency, the Congress may,
by law, authorize the President, for a limited period and subject to
such restrictions as it may prescribe, to exercise powers necessary
and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease
upon the next adjournment thereof.
 Efficacy of the Declaration
As to the efficacy of the declaration, the Constitution says that the
initial declaration cannot be longer than 60 days but any extension can
be longer. That’s why in Mindanao we are still under martial law up to
31st of December. And it is congress which will determine any request
for extension whether it is needed. Can the SC review the grant of
extension by congress? The provision says any extension thereof so it
could also be.
The declaration of martial law does not carry with it the suspension of
the privilege of the writ of habeas corpus and vice versa. Both must
have to be declared by the President. With respect to the suspension,
we all know that what is actually suspended is not the writ itself but the
privilege to be released from detention without official charge within
the standard periods under article 125 of the RPC. The 12, 18 and 36
hrs. The suspension of the privilege simply extends the period of
extension without charge to 72 hours because the constitution says
that these persons must be charged within 72 hours or 3 days
otherwise, they would have to be released. A suspension of the
privilege does not therefore authorize or validate indefinite detention.
It does not even validate invalid arrests, you can be arrested and
detained without warrant but subsequently charged within that 3-day
window. Otherwise, that person must have to be released. It does not
authorize indefinite detention without any official charge.
 Effects of Martial Law
As to the effects of martial law, what traditionally the effects of martial
law in the so called political law concept, in the actual theatre of war,
the executive can do anything. The martial law commander on the
ground xxx, can exercise any of the powers of government within that
so called theatre of war. That is the reality. But our constitution,
because it is a reaction to what has happened before categorically
states that:
1. The constitution is not suspended.
2. Civilian courts will continue to have jurisdiction over
civilians. Military courts are not conferred jurisdiction.
3. Legislative assemblies shall continue to function that
includes all other governmental institutions. That ideally
should happen if there is no actual hostilities or skirmishes
ongoing like what we are having in Mindanao.
The declaration or suspension will lose its effect:
1. If the President lifts it himself like what happened in
Maguindanao declaration; or
2. If congress nullifies it; or
3. If the SC, in a proper petition, revokes it; and
4. By operation of law, if the period for efficacy has lapsed and
there has been no extension, then declaration or suspension
will lose (its effectivety).
8. Contracting and Guaranteeing Foreign Loans
Article VII, Section 20. The President may contract or guarantee foreign
loans on behalf of the Republic of the Philippines with the prior
concurrence of the Monetary Board, and subject to such limitations as
may be provided by law. The Monetary Board shall, within thirty days
from the end of every quarter of the calendar year, submit to the
Congress a complete report of its decision on applications for loans to
be contracted or guaranteed by the Government or government-owned
and controlled corporations which would have the effect of increasing
the foreign debt, and containing other matters as may be provided by
law.
Article XII, Section 21. Foreign loans may only be incurred in
accordance with law and the regulation of the monetary authority.
Information on foreign loans obtained or guaranteed by the
Government shall be made available to the public.
Page 64
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
The case of CONSTANTINO vs. CUISIA (2005) discusses this Section 20
of Art 7. Section 20 simply states that the President may contract or
guarantee foreign loans subject to the prior approval or
recommendation of the Monetary Board and subject to restriction as
may be provided for by law. So there is no question that the President
can but there must have to be prior recommendation by the monetary
board.
One of the questions raised here is that if the president pays the debt
should there be authorization from the monetary board and/or
Congress to exterminate a debt. So he can contract a loan but can he
pay the loan without congressional authorization? Because the
constitution requires that all appropriations from the public treasury
must have to be with legislation and the SC said that there is a law.
The law on debt payment is not included in the general appropriations
act. That is to ensure that we are or the country is compliant with its
debt servicing obligation. On the manner of xxx, the SC said even then
even if there was no such law on debt servicing or debt termination or
repayment of a debt of a loan, the fact that the constitution grants to
the president that power to contract a loan, it necessarily includes the
power to pay that loan because it defies common sense and logic that if
you are authorized to obtain one that you are not also authorized to
pay up. So the president can pay up the loan even without
congressional authorization.
CONSTANTINO vs. CUISIA
472 SCRA 505 (2005)
During the Aquino regime, her administration came up w/ a scheme to
reduce the country’s external debt. The solution resorted to was to
incur foreign debts. Three restructuring programs were sought to
initiate the program for foreign debts – they are basically buyback
programs & bond-conversion programs). Constantino as a taxpayer and
in behalf of his minor children who are Filipino citizens, together w/
FFDC averred that the buyback and bond-conversion schemes are
onerous and they do not constitute the loan “contract” or “guarantee”
contemplated in Sec. 20, Art. 7 of the Constitution. And assuming that
the President has such power unlike other powers which may be validly
delegated by the President, the power to incur foreign debts is
expressly reserved by the Constitution in the person of the President.
They argue that the gravity by which the exercise of the power will
affect the Filipino nation requires that the President alone must
exercise this power. They argue that the requirement of prior
concurrence of an entity specifically named by the Constitution–the
Monetary Board–reinforces the submission that not respondents but
the President “alone and personally” can validly bind the country.
Hence, they would like Cuisia et al to stop acting pursuant to the
scheme.
ISSUE: Whether or not the president can validly delegate her debt
power to the respondents.
RULING: There is no question that the president has borrowing powers
and that the president may contract or guarantee foreign loans in
behalf of this country w/ prior concurrence of the Monetary Board. It
makes no distinction whatsoever and the fact that a debt or a loan may
be onerous is irrelevant. On the other hand, the president can delegate
this power to her direct subordinates. The evident exigency of having
the Secretary of Finance implement the decision of the President to
execute the debt-relief contracts is made manifest by the fact that the
process of establishing and executing a strategy for managing the
government’s debt is deep within the realm of the expertise of the
Department of Finance, primed as it is to raise the required amount of
funding, achieve its risk and cost objectives, and meet any other
sovereign debt management goals. If the President were to personally
exercise every aspect of the foreign borrowing power, he/she would
have to pause from running the country long enough to focus on a
welter of time-consuming detailed activities–the propriety of
incurring/guaranteeing loans, studying and choosing among the many
methods that may be taken toward this end, meeting countless times
with creditor representatives to negotiate, obtaining the concurrence
of the Monetary Board, explaining and defending the negotiated deal
to the public, and more often than not, flying to the agreed place of
execution to sign the documents. This sort of constitutional
interpretation would negate the very existence of cabinet positions and
the respective expertise which the holders thereof are accorded and
would unduly hamper the President’s effectivity in running the
government. The act of the respondents are not unconstitutional.
Exception:
There are certain acts which, by their very nature, cannot be validated
by subsequent approval or ratification by the President. There are
certain constitutional powers and prerogatives of the Chief Executive of
the Nation which must be exercised by him in person and no amount of
approval or ratification will validate the exercise of any of those powers
by any other person. Such, for instance, in his power to suspend the
writ of habeas corpus and proclaim martial law and the exercise by him
of the benign prerogative of pardon (mercy).
There are certain presidential powers which arise out of exceptional
circumstances, and if exercised, would involve the suspension of
fundamental freedoms, or at least call for the supersedence of
executive prerogatives over those exercised by co-equal branches of
government. The declaration of martial law, the suspension of the writ
of habeas corpus, and the exercise of the pardoning power
notwithstanding the judicial determination of guilt of the accused, all
fall within this special class that demands the exclusive exercise by the
President of the constitutionally vested power. The list is by no means
exclusive, but there must be a showing that the executive power in
question is of similar gravitas and exceptional import.
9. Power over Foreign Affairs
a. Treaty Making
Article VII, Section 21. No treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of all the
Members of the Senate.
We have discussed the xxx. We have mentioned the xxx office of the
president on the stages of the negotiations of the treaty in relation to
concurrence of senate requirements.
Page 65
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
That case of VINUYA vs. ROMULO (2014) that highlights the concept of
political question, the matter of bringing up a claim against a foreign
sovereign cannot be forced on our executive or the president because it
affects foreign relations as representative of the state in foreign
relations it is still within the political discretion of the president
whether or not he would file such claim against a foreign sovereign.
b. Deportation against Undesirable Aliens
This case of ROSAS vs. MONTOR (2015), is just a discussion to author to
exclude and deport. Exclusion is the process by which a state can
prevent the entry of a foreigner. The given is that, the entry and stay of
a foreigner in the Philippines is a matter of privilege. His entry may be
denied and if allowed entry already that person may be ordered
deported and in deportation proceedings, there is no necessity that the
foreigner must have to be convicted in a final judgment. Whatever
determination that the executive may have over that person because
his continued presence in the Philippines is inimical to public interest
would be sufficient to cause his deportation.
Now in ROSAS, exclusion is again the act of the state thru Bureau of
Immigration to deny the entry of a foreign national. 2 days ago there
was a foreign professor who was here on transit but he got sick and he
was supposed to or there was a request for him to be taken out of the
airport terminal for medical examination but because of his political
views, his entry has been denied even on humanitarian grounds. He
was allowed to however be examined by a physician in one of the
lounges in the airport but never to get out of the terminal and go to a
hospital for medical reason.
Deportation on the other hand involves a proclamation where a
foreigner has been allowed entry but again because of certain
violations, again, not requiring conviction by final judgment, he may be
ordered depowered or ordered to leave the country.
What comes to your mind is the case of sister fox, she has been in the
Philippines for more than 30 years as a nun in a missionary ground
involved in urban poor and other poor communities but because she
has been joining public assemblies which was or had been critical to the
Duterte administration, YOUR President ordered her deportation. So
the Bureau of Immigration Commissioner cancelled her missionary visa
and ordered her immediate deportation. On appeal to the DOJ Sec, the
order of the BI Commissioner was reversed because in deportation
proceedings, as early as the case of QUA CHEE GAN vs. DEPORTATION
BOARD (1963), we all know that before a person is to be ordered
arrested and deported there must have to be a determination that his
stay is undesirable. He cannot be ordered deported immediately
without that determination. Upon orders of YOUR president, his visa
was cancelled without any proceedings. On what ground? Apil apil kag
rally madreha ka! So, the short of the long story was that the BI was
ordered to conduct deportation proceedings. She was able to prove her
case or cause and the result was visa is still cancelled. She was ordered
deported. But at least she still has options after the order issued by the
BI unlike the first order it was a major reaction because nag rally rally,
pahawaon! Pak cancelled dayon!
ROSAS vs. MONTOR
772 SCRA 462 (2015)
Every sovereign power has the inherent power to exclude aliens from
its territory upon such grounds as it may deem proper for its self-
preservation or public interest. In the Philippines, aliens may be
expelled or deported from the Philippines on grounds and in the
manner provided for by the Constitution, the PIA of 1940, as amended,
and administrative issuances pursuant thereto.[27]
Section 10[28] of the PIA of 1940 requires non-immigrants to present
their unexpired passports and valid passport visas to immigration
officers. Pursuant to their powers as outlined in Section 6[29] of the PIA
of 1940, the examining immigration officer determines whether the
non-immigrant is qualified to enter the Philippines based on Section
29(a).[30] If the alien holds none of the disqualifications as stated in
Section 29, he may be admitted entry barring other circumstances that
might affect his entry. If, however, the immigration officer determines
that an alien possesses any of the disqualifications under Section 29,
the immigration officer is authorized to issue an exclusion order.
Exclusion and deportation are formal removal procedures which
ultimately results to an alien's removal from the territory provided for
separately under Section 29 and 37 of the PIA, respectively. The United
States in Ex Parte Domingo Corypus,[31] the Washington District Court in
1925 differentiated exclusion from deportation in the following
manner:
x x x Deporting a person who is already in the country, and therefore
enlarged, is depriving him of a privilege which he, at least at the time, is
enjoying in the United States; whereas a person being denied the
privilege to enter is not deprived of any liberties which he had
theretofore enjoyed. The gate is simply closed and he may not enter.
Under Philippine immigration laws, exclusion is the authorized removal
of an alien by immigration officers, performing primary inspection, or
by the immigration boards of special inquiry, by secondary inspection,
of any foreigner arriving in the Philippines who, upon inspection and
prior to entry or admission, is barred by immigration laws, rules and
regulations from entering or being admitted to the Philippines. [32] When
an alien is excluded he is immediately sent back to the country where
he came from on the same vessel which transported him, unless in the
opinion of the Commissioner of Immigration such immediate return is
not practicable or proper.[33] Under certain circumstances, when an
alien is excluded, Section 25[34] of the PIA of 1940 authorizes the alien's
detention until such time it is determined that he is qualified for entry
and/or admission.
Deportation proceedings, on the other hand, are governed by Sections
37[35] to 39 of the PIA. We have stated that the power to deport aliens is
an act of State, an act done by or under the authority of the sovereign
power.[36] It is a police measure against undesirable aliens whose
continued presence in the country is found to be injurious to the public
good and the domestic tranquility of the people.
12. Power of Legislation
Page 66
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
We will discuss that. What probably is best to remember I don’t know if
you are familiar with the problem now of our budget. There has been a
deadlock as mentioned yesterday, the executive is changing the rules
on the budget proposal. They want a catch base appropriation meaning
that the appropriations must have to be spend within a period of 1 or 2
years to complete a project. The members of the lower house would
want to continue with the obligation based appropriation.
According to the executive, it increases the deficit (whatever that
means, that means mapobre tag samot). We all know that in the
budgetary sense, when the executive comes up with a budget proposal,
not all of that amount is funded it still has to be raised as the year
progressed that’s why there are corresponding revenue proposals in
the budget proposal. That’s why we are going to experience another
TRAIN and it will affect your school, hospital. Karon gas pa lang ug
kuryente. Gamay pa lang.
In today’s news, the plan of the executive if they will take the dare of
the lower house is they are willing to take a re-enacted budget. So they
approved GAA 2018 will be used in 2019. My question is this, what has
been approved in 2018. So if you’re taking about NOE that’s okay
because what is to be paid this year will necessarily be paid next year in
terms of salaries and expenses. But what about projects? If in 2018
were taking about 300 km of roads in Luzon, and it is re-enacted in
2019 where can they use that? Because the appropriation says in
Luzon. How could they make use of that if the budget is re-enacted? It
cannot be anyone be like PDAF it’s a lump sum fund, there must have
to be a specification on which project this particular amount should be
spent on. So if that has been done and accomplished this year, what is
the basis for using that next year for some other similar project?
13. Immunity from Suits
* Editor’s Note: The following topics were not discussed. Provided below
are the provisions of the law as stated in the syllabus.
2. Vice-President
a. Qualifications, Election, Term and Oath
Article VII, Section 3. There shall be a Vice-President who shall have the
same qualifications and term of office and be elected with, and in the
same manner, as the President. He may be removed from office in the
same manner as the President.
The Vice-President may be appointed as a Member of the Cabinet. Such
appointment requires no confirmation.
Article VII, Section 4. The President and the Vice-President shall be
elected by direct vote of the people for a term of six years which shall
begin at noon on the thirtieth day of June next following the day of the
election and shall end at noon of the same date, six years thereafter.
The President shall not be eligible for any re-election. No person who
has succeeded as President and has served as such for more than four
years shall be qualified for election to the same office at any time.
No Vice-President shall serve for more than two successive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of the service for the full
term for which he was elected.
Unless otherwise provided by law, the regular election for President
and Vice-President shall be held on the second Monday of May.
The returns of every election for President and Vice-President, duly
certified by the board of canvassers of each province or city, shall be
transmitted to the Congress, directed to the President of the Senate.
Upon receipt of the certificates of canvass, the President of the Senate
shall, not later than thirty days after the day of the election, open all
the certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon
determination of the authenticity and due execution thereof in the
manner provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed
elected, but in case two or more shall have an equal and highest
number of votes, one of them shall forthwith be chosen by the vote of
a majority of all the Members of both Houses of the Congress, voting
separately.
The Congress shall promulgate its rules for the canvassing of the
certificates.
The Supreme Court, sitting en banc, shall be the sole judge of all
contests relating to the election, returns, and qualifications of the
President or Vice-President, and may promulgate its rules for the
purpose.
Article VII, Section 5. Before they enter on the execution of their office,
the President, the Vice-President, or the Acting President shall take the
following oath or affirmation:
"I do solemnly swear (or affirm) that I will faithfully and conscientiously
fulfill my duties as President (or Vice-President or Acting President) of
the Philippines, preserve and defend its Constitution, execute its laws,
do justice to every man, and consecrate myself to the service of the
Nation. So help me God." (In case of affirmation, last sentence will be
omitted.)
b. Privilege and Salary
Article VII, Section 6. The President shall have an official residence. The
salaries of the President and Vice-President shall be determined by law
and shall not be decreased during their tenure. No increase in said
compensation shall take effect until after the expiration of the term of
the incumbent during which such increase was approved. They shall not
receive during their tenure any other emolument from the Government
or any other source.
c. Prohibitions
Article VII, Section 13. The President, Vice-President, the Members of
the Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment
Page 67
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
during their tenure. They shall not, during said tenure, directly or
indirectly, practice any other profession, participate in any business, or
be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency,
or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the fourth
civil degree of the President shall not, during his tenure, be appointed
as Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of
bureaus or offices, including government-owned or controlled
corporations and their subsidiaries.
Article VII, Section 3. xxx
The Vice-President may be appointed as a Member of the Cabinet. Such
appointment requires no confirmation.
d. Succession
Article VII, Section 9. Whenever there is a vacancy in the Office of the
Vice-President during the term for which he was elected, the President
shall nominate a Vice-President from among the Members of the
Senate and the House of Representatives who shall assume office upon
confirmation by a majority vote of all the Members of both Houses of
the Congress, voting separately.
e. Removal
Article XI, Section 2. The President, the Vice-President, the Members of
the Supreme Court, the Members of the Constitutional Commissions,
and the Ombudsman may be removed from office on impeachment for,
and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public
trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment.
f. Functions
1. Right of Succession
Article VII, Section 8. In case of death, permanent disability, removal
from office, or resignation of the President, the Vice-President shall
become the President to serve the unexpired term. In case of death,
permanent disability, removal from office, or resignation of both the
President and Vice-President, the President of the Senate or, in case of
his inability, the Speaker of the House of Representatives, shall then act
as President until the President or Vice-President shall have been
elected and qualified.
The Congress shall, by law, provide who shall serve as President in case
of death, permanent disability, or resignation of the Acting President.
He shall serve until the President or the Vice-President shall have been
elected and qualified, and be subject to the same restrictions of powers
and disqualifications as the Acting President.
Article VII, Section 11. Whenever the President transmits to the
President of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to discharge
the powers and duties of his office, and until he transmits to them a
written declaration to the contrary, such powers and duties shall be
discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to the
President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable
to discharge the powers and duties of his office, the Vice-President
shall immediately assume the powers and duties of the office as Acting
President.
Thereafter, when the President transmits to the President of the Senate
and to the Speaker of the House of Representatives his written
declaration that no inability exists, he shall reassume the powers and
duties of his office. Meanwhile, should a majority of all the Members of
the Cabinet transmit within five days to the President of the Senate and
to the Speaker of the House of Representatives, their written
declaration that the President is unable to discharge the powers and
duties of his office, the Congress shall decide the issue. For that
purpose, the Congress shall convene, if it is not in session, within forty-
eight hours, in accordance with its rules and without need of call.
If the Congress, within ten days after receipt of the last written
declaration, or, if not in session, within twelve days after it is required
to assemble, determines by a two-thirds vote of both Houses, voting
separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise,
the President shall continue exercising the powers and duties of his
office.
2. Membership in Cabinet
Article VII, Section 3. xxx
The Vice-President may be appointed as a Member of the Cabinet. Such
appointment requires no confirmation.
August 22, 2018 – Cyndall Jardinel
C. THE JUDICIAL DEPARTMENT
1. The Supreme Court
a. Composition
Article VIII, Section 4.
1. The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its discretion,
in division of three, five, or seven Members. Any vacancy shall be
filled within ninety days from the occurrence thereof.
2. All cases involving the constitutionality of a treaty, international
or executive agreement, or law, which shall be heard by the
Page 68
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Supreme Court en banc, and all other cases which under the Rules
of Court are required to be heard en banc, including those
involving the constitutionality, application, or operation of
presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations, shall be decided with the
concurrence of a majority of the Members who actually took part
in the deliberations on the issues in the case and voted thereon.
3. Cases or matters heard by a division shall be decided or resolved
with the concurrence of a majority of the Members who actually
took part in the deliberations on the issues in the case and voted
thereon, and in no case without the concurrence of at least three
of such Members. When the required number is not obtained, the
case shall be decided en banc: Provided, that no doctrine or
principle of law laid down by the court in a decision rendered en
banc or in division may be modified or reversed except by the
court sitting en banc.
SC Resolution No. 2-89
CIRCULAR NO. 2-89 February 7, 1989
SUPREME COURT CIRCULARS AND ORDERS
TO: COURT OF APPEALS, SANDIGANBAYAN, COURT OF TAX APPEALS,
REGIONAL TRIAL COURTS, METROPOLITAN TRIAL COURTS, MUNICIPAL
TRIAL COURTS, MUNICIPAL CIRCUIT TRIAL COURTS, SHARI'A DISTRICT
COURTS AND SHARI'A CIRCUIT COURTS, ALL MEMBERS OF THE
GOVERNMENT PROSECUTION SERVICE, AND ALL MEMBERS OF THE
INTEGRATED BAR OF THE PHILIPPINES.
SUBJECT: GUIDELINES AND RULES IN THE REFERRAL TO THE COURT EN
BANC OF CASES ASSIGNED TO A DIVISION.
1. The Supreme Court sits either en banc or in Divisions of three, five or
seven Members (Sec. 4[1],Article VIII, 1987 Constitution). At present
the Court has three Divisions of five Members each.
2. A decision or resolution of a Division of the Court, when concurred in
by a majority of its Members who actually took part in the deliberations
on the issues in a case and voted thereon, and in no case without the
concurrence of at least three of such Members, is a decision or
resolution of the Supreme Court (Section 4[3]. Article VIII, 1987
Constitution).
3. The Court en banc is not an Appellate Court to which decisions or
resolutions of a Division may be appealed.
4. At any time after a Division takes cognizance of a case and before a
judgment or resolutions of a Division may refer the case en consulta to
the Court en banc which, after consideration of the reasons of the
Division for such referral may return the case to the Division or accept
the case for decision or resolution.
4a. Paragraph [f] of the Resolution of this Court of 23
February 1984 in Bar Matter No. 205 [formerly item 6, en
banc Resolution dated 29 September 1977], enumerating the cases
considered as en banc cases, states:
f. Cases assigned to a division including motions for
reconsideration which in the opinion of at least three (3) members
merit the attention of the Court en banc and are acceptable by a
majority vote if the actual membership of the Court en banc.
5. A resolution of the Division denying a party's motion for referral to
the Court en banc of any Division case, shall be final and not appealable
to the Court en banc.
6. When a decision or resolution is referred by a Division to the Court
en banc, the latter may, in the absence of sufficiently important
reasons, decline to take cognizance of the same, in which case, the
decision or resolution shall be returned to the referring Division.
7. No motion for reconsideration of the action of the Court en
banc declining to take cognizance of a referral by a Division, shall be
entertained.
8. This Circular shall take effect on March 1, 1989.
Composition of the Supreme Court is found in Resolution no. 2- 89, it’s
an old resolution but still a good law, this is a resolution which reminds
us that even if the Supreme Court sits in division, there is still one
Supreme Court; that the Supreme Court en banc is not an appellate
court, reviewing court of a division.
The SC En Banc can accept a case referred by a division if the conditions
are met:
1. There must be no resolution yet on the issue in a
division;
2. The division by majority vote has resolved to refer the
case for eventual resolution or decision through the
court en banc;
3. The court en banc by majority must have to accept the
referral. Only then that the division case can be
resolved finally by the court en banc;
4. The decision to accept or not to accept the referral by
the division by the court en banc is not reviewable.
b. Appointments and Qualifications
Article VIII, Section 7.
1. No person shall be appointed Member of the Supreme Court or
any lower collegiate court unless he is a natural-born citizen of
the Philippines. A Member of the Supreme Court must be at least
forty years of age, and must have been for fifteen years or more,
a judge of a lower court or engaged in the practice of law in the
Philippines.
Page 69
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Article VIII, Section 8.
xxx
5. The Council shall have the principal function of recommending
appointees to the judiciary. It may exercise such other functions
and duties as the Supreme Court may assign to it.
Article VIII, Section 9. The Members of the Supreme Court and judges
of lower courts shall be appointed by the President from a list of at
least three nominees preferred by the Judicial and Bar Council for every
vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issued the appointment within
ninety days from the submission of the list.
There are several cases here, we have the old case of DE CASTRO vs.
JBC (2010), this case has changed the ruling in IN RE: VALENZUELA
(1998) that the prohibition in the midnight appointments does not
apply to judiciary.
It also resolved that the 90-day period to fill in the vacancy in the
Supreme Court is mandatory, for lower-collegiate courts and lower
court it shall be directory.
DE CASTRO vs. JBC
615 SCRA 666
618 SCRA 639 (2010)
The 90-day for the Supreme Court to fill it up is to be counted from the
occurrence of the vacancy. That being said, if there is an impending
vacancy because of retirement age or due to retirement, the JBC must
have to process the procedure to fill it up so that the 90-day period
shall not be violated, so to speak, to give the President enough time to
go over the list of nominees to the vacancy.
For the lower collegiate courts and lower courts, the 90-day period
shall be counted from the time the list of nominees after vetting by the
JBC shall have been submitted to the President.
You have to include the case of JARDELEZA vs. SERENO (2014).There
have been several issues in this case.
JARDELEZA vs. SERENO
733 SCRA 729 (2014)
ISSUE #1: What is the role of the Supreme Court with respect to the
JBC.
RULING: While JBC is created by the Constitution, it is under the overall
supervision of the Supreme Court, and so, while the JBC has the power
to promulgate its own rules, the Court under the power of supervision
can make sure or can exercise authority to ensure that the JBC is
faithfully compliant with its rules of procedure.
The issue on qualification which the JBC must have to consider, in the
Jardeleza ruling, there was an issue on integrity, there was the rule in
the JBC which was referred to as the unanimity rule. Constitutionally,
an applicant to the judiciary must have proven competence, integrity,
probity and independence, if there is a question on integrity, the JBC
has a rule on unanimity wherein the members of the JBC must have to
vote by unanimous vote on the issue - integrity.
The problem with the case of Jardeleza was that there was a belief that
complaints raised by Sereno on his supposed extra-marital affairs and
insider-trading. The initial complaint with respect to his nomination to
the Supreme Court post as an applicant with the JBC was on the
supposed procedural tactic he took when he was the government’s
lawyer in case. It involves professional handling of a case issue, where
supposedly there was a variance in opinion as to what the
government’s position should be.
JARDELEZA vs. SERENO
ISSUE #2: Could he (Jardeleza) be granted his right to due process?
(Because apparently the JBC did not want to hear his side of the
controversy.)
RULING: The applicability of the unanimity rule will only apply if there is
a question on integrity. As to the decision on what the procedure for
handling of a case where the Republic should have been, that is not a
question of integrity because lawyers necessarily would have difference
in opinion as to the strategy or tactic that should be taken in handling a
case.
But on the supposed or alleged extra-marital affair and insider-trading,
that would go in to the question of integrity and therefore, the
unanimity rule must have to apply. However, because it was belatedly
raised, they could not use the unanimity rule to vote on the first issue
on the legal strategy which he undertook as the lawyer of the Republic.
ISSUE #3: On the violation of due process.
RULING: The procedure in the JBC is neither quasi-judicial in character
and so there is, ordinarily, no violation to due process if an applicant is
not heard.
But they likened it to a proceeding of disbarment or suspension filed
against a lawyer, which we all know in legal ethics is a species of its
own, where there is also an “opportunity” given to the lawyer-
respondent in an administrative case to disprove the allegations against
him. So if an applicants’ integrity or qualification is questioned before
the JBC, it is just reasonable and sound, as a principle that the applicant
must be heard.
Of course, the due process here is not a trial type proceedings where
the applicant is allowed to cross examine, present his evidence but he
must have to be heard on such issue of any question on his
qualification, because an applicant must also be allowed to prove that
he possesses all of the qualifications and none of its disqualification.
ISSUE #4: Can the JBC be subjected to a mandamus suit to compel the
inclusion of Jardeleza as one of the applicants or nominees, or to
compel it to give in a supposed due process right.
RULING: The duty of JBC to nominate is discretionary. Therefore,
mandamus does not apply against it. Nonetheless, because the JBC has
Page 70
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University

its own rules and if it has violated its own rules respecting the vetting of appointed as Chief Justice, the question was, why should he undergo
an applicant, it can be corrected by a petition for certiorari because the same vetting process?
that would be in grave abuse of its discretions.
Two questions are asked:
VILLANUEVA vs. JBC
755 SCRA 182 (2015) 1. Is the Chief Justice position a new position?

This case involves rule making power also of the JBC. The JBC has
promulgated or issued the rule requiring 5-years of tenure as MTC
judge before you can be eligible for nomination for a post in the
Regional Trial Court. Villanueva, an MTC judge somewhere in North
Cotabato, questioned the standards set saying that, it would be in
violation of his rights, equal protection at the very least.
The Supreme Court said that for so long as the minimum qualifications
provided for in the Constitution are not violated, the JBC can impose
additional standards or set additional standards for nomination in a
judicial posts.
The case of AGUINALDO vs. AQUINO III (2016 & 2017), we have
discussed that already, and finally in that case of JARDELEZA vs.
SERENO (2014), the Supreme Court reiterated the rule that the
Supreme Court supervises the JBC.
The JBCs’ duty to recommend or nominate applicants to a post is not
absolute; the JBC cannot do away with the constitutional requirements.
While in VILLANUEVA vs. JBC (2015), it can add certain reasonable
standards but it cannot do away with what the Constitution has
required as a minimum.
That being said the Supreme Court in Sereno, decided that Sereno has
failed the qualification of integrity; the material representation that the
refusal to submit the SALN to the JBC should not have made her an
applicant or to be considered as a nominee in the Supreme Court post.
The JBC therefore gravely abused its discretion when despite lack of
qualification, or at least submission of the SALN, as required, she was
still included in the vetting and thereafter in the shortlist.
2. Second, is the justice no longer qualified as of today,
that’s why he has to be vetted again?
That was discussed though not raised as an issue and not answered in
the De Castro ruling. But if you go by the Sereno ruling, it will leave that
question that at some other point in time, if that issue of integrity or
probity or independence, will be raised at some other time, but will
relate back at the time of appointment, then probably a sitting justice
can be removed by a quo-warranto proceedings.
Those are the cases in relation to your appointment and qualifications.
c. Salary
Article VIII, Section 10. The salary of the Chief Justice and of the
Associate Justices of the Supreme Court, and of judges of lower courts
shall be fixed by law. During the continuance in office, their salary shall
not be decreased.
Salary cannot be decreased but can be increased and this can be
effective immediately. Now the items on salaries, tenure, removal,
fiscal autonomy are part of what is known collectively as
SAFEGUARDS OR CONSTITUTIONAL SAFEGUARDS TO MAINTAIN THE
INDEPENDENCE OF THE JUDICIARY.
1) Fiscal autonomy
Constitutionally, the judiciary enjoys fiscal autonomy.

2) Principle of non-diminution of salaries

As to the issue of integrity, the Supreme Court said that the repeated
failure, to submit the SALN goes to the very question of integrity and
In relation to fiscal autonomy, there’s also a provision there, the NON-
therefore she lacks the qualification of integrity at the time she applied
DIMINUTION AND AUTOMATIC RELEASE OF APPROPRIATIONS.
for and was appointed to a position in the Supreme Court.

In that old case of your Civil Service Commission vs. Department, the
One of the side issues discussed publicly, not in the decision, because
Supreme Court clarified that even if the government has a budgetary
she was removed as Chief Justice was: Could she be retained as an
shortfall, that not to all the appropriations, under the General
Associate Justice? Because remember she was removed by quo-
Appropriations Act (GPA) are readily available, while everybody suffers
warranto as Chief Justice.
as soon as there is money availing, the judiciary or those enjoying fiscal
autonomy has a first crack at it.
If you remember in the original, in the first decision of DE CASTRO vs.
JBC (2010), there was a discussion, though not resolved but merely an
This is something to do with the so called “no-report-no-release policy”
obiter: If a sitting Justice of the Supreme Court applies for the Chief
of the Department of Budget and Management. That is not applicable
Justice position, should that associate justice sitting, be subjected to the
to the Supreme Court or the judiciary and all those enjoying fiscal
vetting process of the JBC?
autonomy because they have the rights or they enjoy the benefit of
automatic release of appropriations. They must not be burdened with
The question is being raised because when that person was appointed
asking the executive branch for the release of the appropriations
to the seat as an associate justice, he/she must surely vetted and that
granted to them.
she continue, and that she has all the qualifications and none of the
disqualification. At some later day, when he/she would want to be

Page 71
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University

Now with respect to the appropriations in the current year, it must be fairly be criticized for their conduct. The emphasis is for fair
have to be equal to the previous one or more. It cannot be decreased criticisms.
because there’s a prohibition on that – the non-diminution. This is to
safeguard their independence from the political branches of
government. SUMMARY

This is exactly the reason why, if you remember when the question on The following are the Constitutional Safeguards to maintain the Judicial
the constitutionality of the DAP was under consideration before from Independence of the Judiciary:
the Supreme Court, there was a letter coming from the Chief Justice of
the Supreme Court asking for the President’s release of funds for 1. Fiscal autonomy
rehabilitation or construction of some court houses. Commentaries or 2. Non-diminution of salary
opinion at that time was to be effect that how could the Supreme Court 3. Impeachment/Removal
4. Principle of Judicial Independence
resolve to declare the DAP unconstitutional when then institution itself,
5. Open Justice Policy
meaning the judiciary had asked for “transfer of funds” from the
executive. g. Jurisdiction

Most do not know that the expense or appropriations for court houses g. Judicial Power
or court buildings in the country are not within the judiciary, precisely
because of the constitutional prohibition on non-diminution of the What are the cases over which the Supreme Court has jurisdiction over
appropriations. If you were to include that in the appropriations for the on en banc and division cases?
judiciary then that amount cannot be taken out in the subsequent years
even if the court houses or court buildings are already constructed. En banc Cases:

By practice it has been under the executive, usually under the 1.
Department of Justice, if not with DPWH. Because with those 2.
departments, if the expenditure in the project has already been
completed it can be taken out of the budget in the ensuing year. Unlike
in the judiciary that amount could never be taken out in the next year’s 3.
appropriation that’s why it’s never in the judicial branch.
4.
3) Impeachment/Removal
Then you have the impeachment, of course that refers to the removal
and now we know that impeachment is not the only way to remove a 5.
sitting justice, there is also a quo-warranto proceeding.
6.
4) Principle of Judicial Independence
Then you have the so-called principle of judicial independence and
there are two aspects – the individual and the institutional. In judicial
independence, the courts are supposed to be free from unfair The other cases over which the Supreme Court exercises review
criticisms. powers:
All issues which are constitutional;
When there is a petition questioning the commander in
chief powers of the President;
When the division vote is not met;
When there is reversal of a doctrine. Whether rendered of a
division or by en banc, it can only be reversed by the court
en banc;
When the issue is with respect to the its exercise as
presidential electoral tribunal, it’s an en banc decision;
In administrative cases when the penalty is dismissal,
disbarment or more than one year suspension or more than
10 thousand pesos in fine or both, any penalty less than
that, it can be heard and decided by a division.

IN RE: TULFO
Court decisions can be criticized provided they are done in respectful
language, directed to the merits, of course it is not sub judice and it is
not designed to ridicule the members of the court or the court itself.
This is to ensure that individually, judges are free to decide the cases
regardless of public opinion and institutionally to free the courts from
the bar of the public opinion.
5) Open Justice Policy
- Section 5(2), Article VIII on the power of the Supreme Court
to reverse, review, revise, modify or affirm, and there is a
listing there, there’s nothing much that’s changed.
Article VIII, Section 5. The Supreme Court shall have the following
powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as
the law or the Rules of Court may provide, final judgments and orders
of lower courts in:

The last safeguard there is open justice policy. While there is judicial
independence, there is also a corresponding obligation of the courts to
ensure that there be no arbitrariness. That is the reason why courts can

Page 72
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
a. All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question;
b. All cases involving the legality of any tax, impost,
assessment, or toll, or any penalty imposed in relation thereto;
c. All cases in which the jurisdiction of any lower court is in
issue;
d. All criminal cases in which the penalty imposed is
reclusion perpetua or higher;
e. All cases in which only an error or question of law is
involved.
h. Principle of Hierarchy of Courts
The only thing perhaps to remember is this concept of HIERARCHY OF
COURTS. When the Supreme Court has exercised or is exercising
concurrent jurisdiction with other courts, the principle of hierarchy of
courts dictates that parties should first seek the jurisdiction of a lower
court. This is to, not to add to the clogged dockets of the Supreme
Courts and to give lower courts the first crack at its subject to the
eventual decision or review of the Supreme Court.
The only exemption there is the CONCEPT OF TRANSCENDENTAL
IMPORTANCE. Now please do not confuse the transcendental
importance in judicial review where even if the conditions are not met,
if the issue is of transcendental importance, courts may exercise judicial
review.
In transcendental importance exception for hierarchy of courts, it does
not strictly refer to judicial review exercise. This can be ordinary
petitions by which the Supreme Court exercises concurrent jurisdiction
with lower courts. It can go directly to the Supreme Court if there is, or
if the issue is of transcendental importance. In that case, the party
petitioner must have to have real interest or he must be a real party
of interest to be able to file that ordinary petition, not necessarily in
the concept of judicial review.
h. Congressional Power Over Jurisdiction of Supreme Court
Article VIII, Section 2. The Congress shall have the power to define,
prescribe, and apportion the jurisdiction of the various courts but may
not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5 hereof.
Article VI, Section 30. No law shall be passed increasing the appellate
jurisdiction of the Supreme Court as provided in this Constitution
without its advice and concurrence.
For obvious reasons, if it is original jurisdiction, there can be no
legislation that could affect it because those are called in the
Constitution. For appellate jurisdiction, we have the old case of
FABIAN vs. DESIERTO (1998).
FABIAN vs. DESIERTO
295 SCRA 470 (1998)
The Supreme Court said that while Congress can by law provide for
cases under the review powers of the SC, it must have to give its prior
consent for concurrence, absent that, that law will be unconstitutional.
Now if you remember that case of CARPIO-MORALES vs. CA on the
BINAY RULING, there was also a discussion on the extent of the power
of Congress over jurisdiction of courts generally. That when respect to
lower courts, or appellate jurisdiction of the Supreme Court, Congress
can legislate, granting court’s jurisdiction or review appellate
jurisdiction of the Supreme Court in certain cases, subject to its prior
concurrence or consent.
Nonetheless, the authority of Congress is only with respect to the
jurisdiction of courts, with respect to ancillary remedies, these are all
under the rule making power of the Supreme Court. Congress has no
authority over these rules.
It has been made clear, citing that case of ECHEGARAY vs. SECRETARY
(1999), the change in phraseology from the ‘35, ‘73 to the‘87
Constitution regarding the rules that the Supreme Court made, enact
and issue or promulgate while in the two previous constitutions, the
Congress can legislate on the same subject matter on the rules in the
87, that proviso has been taken out, to emphasize that Congress can no
longer legislate on the same matter, subject to the rules of the
Supreme Court.
So to limit the power of issuing a temporary restraining order or
bringing judgement only to the Supreme Court and no other court for
that matter by legislation was declared to be unconstitutional. Court of
Appeals retains the power to issue ancillary remedy because they are
just preliminaries, attached to the main action over which the court has
by law, given jurisdiction over.
i. Administrative Powers
1. Supervision of Lower Courts
Most of these cases will tell you that the office of the Ombudsman has
no authority over judges and other court personnel, with respect to
administrative liabilities in relation to their official duty. The Supreme
Court has the power of supervision over them and therefore, any
administrative case that involve these officials and members of the
judicial department are supposed to be with or at the jurisdiction of the
Supreme Court and not with the Office of the Ombudsman.
The question there is of criminal cases: Can they be subjected to
criminal complaints filed before the Ombudsman?
Because we all know that under RA 6770, the Ombudsman also has
preliminary investigation powers over criminal complaints against any
public official or employee for any malfeasance, misfeasance or
Page 73
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
nonfeasance. If it has nothing to do with their administrative duty, it
can proceed independently with the OMB.
What felonies or crimes are defined by a law which has something to
do with their duty as judges or members? Could you imagine a felony?
Is there a felony like maliciously rendering an unlawful order or
judgement? Can that proceed independently in a criminal complaint
filed with the Office of the OMB? (Might come out of the exam.)
2. Temporarily Assign Judges to Other Stations in the Public
Interest
Article VIII, Section 5. The Supreme Court shall have the following
powers:
xxx
3. Assign temporarily judges of lower courts to other stations as
public interest may require. Such temporary assignment shall not
exceed six months without the consent of the judge concerned.
Nothing is much changed there. We all know that judges are appointed
to a specific post but because there are certain sala or branches which
do not have applicants, therefore there are no judges appointed there.
Justice for that matter is not extended, and therefore Supreme Court
may temporary assign judges to other stations.
3. Order a Change of Venue or Place of Trial to Avoid
Miscarriage of Justice
Article VIII, Section 5. The Supreme Court shall have the following
powers:
4. Order a change of venue or place of trial to avoid a miscarriage of
justice.
This is more or less done in criminal cases. It’s unlike in civil cases
where we all know that venue can be agreed upon. In criminal cases
venue is jurisdictional. It must have to be filed in the territorial
jurisdiction where the crime was committed to ensure that there are
available witnesses, both for prosecution and defense, specially.
But in cases where there is possibility of prosecution witnesses or
defense witness is not able to testify out of fear or may be in disgrace
of justice then the Supreme Court upon motion of either party may
order the change of venue and it would be tried in some other courts.
I think the longest running now is the Ampatuan and the Maguindanao
Massacre because it has continued to be tried in Quezon City.
4. Discipline of Judges
Article VIII, Section 11. The Members of the Supreme Court and judges
of the lower court shall hold office during good behavior until they
reach the age of seventy years or become incapacitated to discharge
the duties of their office. The Supreme Court en banc shall have the
power to discipline judges of lower courts, or order their dismissal by a
vote of majority of the Members who actually took part in the
deliberations on the issues in the case and voted in thereon.
5. Appointment of Officials and Employees of Entire Judiciary
Article VIII, Section 5. The Supreme Court shall have the following
powers:
xxx
6. Appoint all officials and employees of the Judiciary in accordance
with the Civil Service Law.
j. Rule Making
Article VIII, Section 5. The Supreme Court shall have the following
powers:
xxx
5. Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts, the
admission to the practice of law, the integrated bar, and legal
assistance to the under-privileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of cases, shall be
uniform for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of procedure of special
courts and quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court.
We have discussed that already.
k. No Quasi-judicial and Administrative Work of Judges
Article VIII, Section 12. The Members of the Supreme Court and of
other courts established by law shall not be designated to any agency
performing quasi-judicial or administrative function.
This is just to make sure that judges or positions in administrative work
by judges will not fall for review before the courts. This is the
reiteration of the principle that they must have to continue doing
judicial work.
l. Report on the Judiciary
Article VIII, Section 16. The Supreme Court shall, within thirty days
from the opening of each regular session of the Congress, submit to the
President and the Congress an annual report on the operations and
activities of the Judiciary.
m. Manner of Sitting and Votes Required
We follow what is known as the SHIFTING MAJORITY. There must have
to be a quorum for the court to be able to conduct business. A majority
of those constituting the quorum can render a valid decision. For
division cases however, there is a minimum number of three votes in
every case.
Page 74
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
We all know that the constitution allows the Supreme Court to sit in
division of three, five or seven members. As of the present, they sit in
divisions of five members. So a quorum of five is three, and no case
shall there be a vote less than three. There must have to be three votes
to render a decision.
Who shall be counted for purposes of determining quorum? Those who
did not take part, are they included? Those who inhibited, are they
included?
For purposes of determining quorum, Article VIII, Sec. 4.
Article VIII, Section 4.
1. The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. It may sit en banc or in its discretion, in division of
three, five, or seven Members. Any vacancy shall be filled within ninety
days from the occurrence thereof.
2. All cases involving the constitutionality of a treaty, international or
executive agreement, or law, which shall be heard by the Supreme
Court en banc, and all other cases which under the Rules of Court are
required to be heard en banc, including those involving the
constitutionality, application, or operation of presidential decrees,
proclamations, orders, instructions, ordinances, and other regulations,
shall be decided with the concurrence of a majority of the Members
who actually took part in the deliberations on the issues in the case and
voted thereon.
3. Cases or matters heard by a division shall be decided or resolved with
the concurrence of a majority of the Members who actually took part in
the deliberations on the issues in the case and voted thereon, and in no
case without the concurrence of at least three of such Members. When
the required number is not obtained, the case shall be decided en banc:
Provided, that no doctrine or principle of law laid down by the court in
a decision rendered en banc or in division may be modified or reversed
except by the court sitting en banc.
n. Requirements as to Decision
Article VIII, Section 13. The conclusions of the Supreme Court in any
case submitted to it for the decision en banc or in division shall be
reached in consultation before the case the case assigned to a Member
for the writing of the opinion of the Court. A certification to this effect
signed by the Chief Justice shall be issued and a copy thereof attached
to the record of the case and served upon the parties. Any Member
who took no part, or dissented, or abstained from a decision or
resolution must state the reason therefor. The same requirements shall
be observed by all lower collegiate court.
Article VIII, Section 14. No decision shall be rendered by any court
without expressing therein clearly and distinctly the facts and the law
on which it is based.
No petition for review or motion for reconsideration of a decision of
the court shall be refused due course or denied without stating the
legal basis therefor.
Two general requirements are the formal and substantive.
When we say formal, the first requirement for the Supreme Court and
the lower collegiate courts is the requirement on certification. As we
have mentioned this in relation to the discussion of the executive
privilege.
The consultation or prior consultation before coming up with a
decision, that is the example of the privilege where it cannot be made
public. Constitution requires that the collegial bodies, there must have
to be a prior consultation before it is assigned to the member of the
court to write or penned a decision. There is a requirement, that there
must have to be certification of defect(?). However lack of that
certification will not render the decision invalid because that is just a
matter of form.
With respect to the substance, the constitution requires that the
decision must express clearly and distinctly the facts and the law on
which it is based. There is no specific requirement on how it should be
written. The constitution simply requires that the parties will know
what the court has believed to be the facts that have been proven and
what law has been applied to the set of facts which the court has
admitted to have been proven. So that it will testify the decision or
judgment rendered on.
There is no requirement to restate or state the facts and law if it
refers to a resolution denying a petition or a motion for
reconsideration. What is required is only the legal basis for the
immediate denial of the petition.
In real practice you will be able to see that all petitions filed before or
appellate courts or Courts of Appeals or the Supreme Court, not every
petition is decided on the merits. There are a lot which are dismissed
out right and they are dismissed because you failed to with some
rules.
So for example there is already a rule on e-filling. If you file a petition
before the Supreme Court, you must attach an e-copy of a petition
including all an excess there to submit in a CD form or in USB format.
There is a requirement of issuing or attaching a certification, that as
counsel you have caused the… how do call that? To turn it to a CD
format and that you have not changed anything. If you don’t comply
with that, your petition which is about of, let just say, a hundred pages,
you just waste so much money. It will be dismissed for failing to comply
with that. So there’s no need to discuss the state the facts or mention
the laws as applied because it has not been given due course, only the
legal basis.
With respect to a motion for reconsideration resolution, if it is denied
then there is no need to restate the facts and/or the law on which it is
based because the decision on resolution which a subject the motion
Page 75
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
for reconsideration is deemed affirmed anyway. That is where you are
informed already on why the court has come up with such resolution.
However, if the motion for reconsideration is granted, the court is
required to restate the facts and the new law now, which it is based
to explain to the parties why the court has taken a different stance
from the original decision which has been reversed because the
motion for reconsideration was granted.
It is not enough that when it is granted that there be no restatement of
facts and all of the new law on which the new decision has been issued.
This is a requirement of due process to let the parties know how the
courts arrived to its conclusion and to give the parties the possibility of
intelligently signing errors on appeal in case they would want the
decision to be dismissed.
o. Mandatory Period for Deciding Cases
Article VIII, Section 15.
1. All cases or matters filed after the effectivity of this Constitution
must be decided or resolved within twenty-four months from
date of submission for the Supreme Court, and, unless reduced by
the Supreme Court, twelve months for all lower collegiate courts,
and three months for all other lower courts.
2. A case or matter shall be deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or
memorandum required by the Rules of Court or by the court
itself.
3. Upon the expiration of the corresponding period, a certification to
this effect signed by the Chief Justice or the presiding judge shall
forthwith be issued and a copy thereof attached to the record of
the case or matter, and served upon the parties. The certification
shall state why a decision or resolution has not been rendered or
issued within said period.
4. Despite the expiration of the applicable mandatory period, the
court, without prejudice to such responsibility as may have been
incurred in consequence thereof, shall decide or resolve the case
or matter submitted thereto for determination, without further
delay.
Article VII, Section 18. xxx
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within
thirty days from its filing.
The Supreme Court has 24 months; lower collegiate courts have 12;
and lower courts have 3 months. These periods are supposed to be
counted from the time the case or incident is submitted for resolution
and for decision.
Are these periods mandatory or directory?
With respect to the decisions or resolutions themselves these periods
are directory. Decisions or resolutions issued beyond these periods
remains to be valid for so long as they are valid to begin with.
However, these are mandatory with respect to the administrative
liabilities of justices or judges concerned. If they failed to render such
decision or resolution within the mandated periods they can be or they
may be subjected to administrative liabilities.
There have been lot of cases where justices of lower collegiate courts
not the Supreme Court and judges of lower court have been either
dismissed or administratively fined for failing to comply with these
periods. So as to them, these are mandatory.
Of course we have yet to see the Supreme Court penalizing themselves
for not resolving cases if you are not of transcendental importance.
Because if you are a person in a transcendental importance, they will
resolve your case with dispatch but if you are not that person 24
months will take 24 years.
5. Court Martial
If you remember the case of GARCIA vs. EXECUTIVE SECRETARY (2012),
GARCIA vs. EXECUTIVE SECRETARY
ISSUE: Is a Court Martial a court in the constitutional concept?
RULING: YES. Not that it is a court which exercises judicial power per se,
but it is a court for purposes of applying the prohibition on members of
congress appearing before court or tribunal.
So if you are member of congress, you cannot personally appear and
represent the respondent military officer personnel in a court martial
because for purposes of that prohibition a court martial is technically
considered a court.
Is a respondent in the court martial entitled to the usual due process
rights in courts?
Due process, yes; bail, no. It is quite clear that bail is not extended to
respondents or accused military officer personnel in a court martial.
All the others are claimable.
August 23, 2018 – Yasmine Ibay
D. THE CONSTITUTIONAL COMMISSIONS
 General Provisions
 Qualifications in General
1. Member of the Philippine Bar - Must be a trial lawyer
Page 76
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
2. Engaged in the practice of law - Any activity of a member of
a Philippine bar which would require him to use any of his
legal skill, expertise, and knowledge is considered to be in
the practice of law
LAME DUCK DISQUALIFICATION
It is a one-year ban. If a person has ran and lost in an election, he
cannot be appointed to any government position within one year from
that election.
If a person has run and won, technically he can be appointed. But for
purpose of the Commissions, there is an EXTENDED LAME DUCK
DISQUALIFICATION. They must not have been candidates in the
immediately preceding election. This is regardless if whether they have
won.
The prohibition is:
 On the act of running as a candidate and
 It extends to the period immediately preceding the election
regardless of whether it is one year or more
How do we treat barangay elections?
National election – every 3 years. If you are a candidate in 2016, you
cannot be eligible for appointment until after the 2019 elections. What
if there is barangay elections in the middle? Will that brgy election
break the period of the extended lame duck disqualification? (no
answer)
 Appointment and Reappointment; In General
It is a discussion on constitutional safeguards to strengthen or maintain
the independence of the Commissions.
ROTATIONAL PLAN (Rotation)
Constitutionally, those who are appointed to the positions under the
Constitution are appointed for a staggered but fixed term.
Three (3), five (5) and seven (7) year terms, they are considered full
terms.
There can be no reappointment in any case. We are long gone beyond
the 1987 Constitution. In the 1987, there was an allowance that if you
were serving as a Commissioner prior to the efficacy of the 1987
Constitution, then you are reappointed under the new Constitution,
you can do so. Provided that, the term before the efficacy of the 1987
Constitution and thereafter will not exceed the fixed term (3, 5, or 7) as
the case may be.
But thereafter, the subsequent appointees can only be appointed once
and for a fixed term of 7 years.
The appointing authority cannot lessen the term because that will
violate the rotational plan.
This is the only plan that would strengthen the independence of the
commissions because no President can appoint all the members of the
Commission at the same time except for those initially appointed.
 Prohibition on Acting or Temporary Appointments
There is a prohibition on acting or temporary appointments. Only a
permanent and regular appointment of the commission can ensure the
independence of the Commissioners.
Reason for the Prohibition: They will not fear of being removed from
office if they decide the case against the appointing authority because
they are only appointed there temporarily.
BRILLANTES vs. YORAC
G.R. No. 93867; December 18, 1990
FACTS: The petitioner is challenging the designation by the President of
the Philippines of Associate Commissioner Haydee B. Yorac as Acting
Chairman of the Commission on Elections, in place of Chairman Hilario
B. Davide.
The petitioner contends that the choice of the Acting Chairman of the
COMELEC is an internal matter that should be resolved by the members
themselves and that the intrusion of the President of the Philippines
violates their independence. No designation from the President of the
Philippines is necessary.
ISSUE: WON the President can make a temporary appointment for the
Acting Chairman of the COMELEC.
RULING: NO. Article IX-A, Section 1, of the Constitution expressly
describes all the Constitutional Commissions as "independent."
Although essentially executive in nature, they are not under the control
of the President of the Philippines in the discharge of their respective
functions. Each of these Commissions conducts its own proceedings
under the applicable laws and its own rules and in the exercise of its
own discretion. Its decisions, orders and rulings are subject only to
review on Certiorari by this Court as provided by the Constitution in
Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular
chairman comes under that discretion. That discretion cannot be
exercised for it, even with its consent, by the President of the
Philippines.
The problem allegedly sought to be corrected, if it existed at all, did not
call for presidential action. The situation could have been handled by
the members of the Commission on Elections themselves without the
participation of the President, however well-meaning.
In the choice of the Acting Chairman, the members of the Commission
on Elections would most likely have been guided by the seniority rule as
they themselves would have appreciated it. In any event, that choice
and the basis thereof were for them and not the President to make.
 Non-Diminution of Salaries; In General
Page 77
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
This is similar with the Judiciary – Non-diminution of salaries of the
members of the Commission. Of course, they can be increased because
they do not have a hand anyway in the passage of the law increasing
their salaries.
Similarly, with the judiciary, the commissions enjoy fiscal autonomy and
automatic release of the appropriations which have been granted to
them by Congress.
However, unlike the judiciary, their appropriations can be diminished in
subsequent years. This is because the appropriation is dependent on
the demand of the commission on each year of operations.
Example: In the COMELEC, on an election year, they will need more
funds for appropriations. But in a non-election year, they will be
needing less than that.
FUNA vs. VILLAR
From Morilla Notes:
What is prohibited under the “NO REAPPOINTMENT RULE” as part of
the rotational plan to safeguard independence and fiscal autonomy of
the commissions is the appointment of a commissioner to the same
position of commissioner, or from chairman to chairman. But if the
appointment is from ordinary commissioner to the chairman, that is
not a violation of the “no reappointment rule” because that is not a
reappointment. That commissioner had been appointed to a different
and higher position from his first appointment.
Supreme Court said that to insure the independence of the
Commission, the appointing authority cannot appoint any
Commissioner or Chairman to a temporary capacity.Only a permanent
appointment can make the incumbent secured in his position.
Temporary appointment would not make the Commissioner
independent for fear that his appointment will never become
permanent.
If there is vacant in the Chairman position, the remaining
Commissioners have the power to appoint among themselves who
will be the acting- chairman for the meantime.
An ―UPGRADING APPOINTMENT, which is not violative of the
rotational plan or the fiscal autonomy and independence, allows the
appointment of incumbent Commissioner to the position of Chair
provided the following 2 conditions are met:
a. The incumbent chairperson must have resigned; died, removed
by impeachment or by reason of disability could no longer perform his
functions thereby leaving an unexpired term.
b. An incumbent Commissioner can be appointed as Chair. He
must serve only for the unexpired term of the chairperson. 
 Over the Government and GOCCs with original charters.
c. The tenure of the incumbent as commissioner and the
unexpired term of the Chairperson must not exceed seven years. This is
to maintain the so called staggered terms - that no president except for
those first appointed will be allowed to appoint all the members of the
commission during his term. 

The reason for the unexpired term of the Chairman is either the
Chairman died, has been removed by impeachment, has voluntarily
resigned or any other causes which resulted to an unexpired term. If
the position of Chair has been vacant because of end of term, then
there is no unexpired term and there can be no upgrading
appointment.
The end of term will be dependent on the original term of the
departing Commissioner.
 Disqualifications; In General
The only thing to remember is similar to almost all of the officers of the
Constitution, only that they can engage in business provided they are
not in the active management of a business with a possible conflict of
interest.
Example: A company dealing with COMELEC for election paraphernalia
like Smartmatic. Can the COMELEC Commissioner have shares with
Smartmatic?
Technically, the Constitution says active management. If you are not in
active management and you are just a passive owner, probably it is not
prohibited.
1. CIVIL SERVICE COMMISSION
a. Composition and Qualifications of Commissioners
Article IX-B, Section 1(1). The Civil Service shall be administered by the
Civil Service Commission composed of a Chairman and two
Commissioners who shall be natural-born citizens of the Philippines
and, at the time of their appointment, at least thirty-five years of age,
with proven capacity for public administration, and must not have been
candidates for any elective position in the elections immediately
preceding their appointment.
Article VII, Section 13(2).The spouse and relatives by consanguinity or
affinity within the fourth civil degree of the President shall not during
his tenure be appointed as members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their subsidiaries.
b. Powers
 Administrative Functions
 Quasi-judicial Functions
Page 78
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
TORRES vs. DE LEON
781 SCRA 110 (2016)
FACTS: When Torres (petitioner) was the Chapter Administrator of the
PNRC, General Santos City Chapter, the PNRC Internal Auditing Office
conducted an audit of the funds and accounts of the PNRC. Based on
the audit report submitted to respondent Corazon Alma G. De Leon (De
Leon), Torres incurred a "technical shortage".
Hence, respondent De Leon formally charged petitioner with Grave
Misconduct for violating PNRC Financial Policies on Oversubscription,
Remittances and Disbursement of Funds.
After the completion of the investigation of the case against petitioner,
respondent issued a Memorandum imposing upon petitioner the
penalties of one-month suspension and transfer to the National
Headquarters. Petitioner filed a motion for reconsideration, but it was
denied.
Thereafter, petitioner filed a Notice of Appeal addressed to the Board
of Governors of the PNRC through respondent and furnished a copy
thereof to the CSC. Petitioner addressed her appeal to the CSC and sent
copies thereof to the PNRC and the CSC. Respondent denied
petitioner's appeal.
The CSC dismissed petitioner's appeal and imposed upon her the
penalty of dismissal from service. Thus, petitioner filed a petition for
review under Rule 43 with the CA. It was likewise denied. Hence, the
present petition.
According to petitioner, this Court has decided that PNRC is not a
GOCC, hence, the CSC has no jurisdiction or authority to review the
appeal that she herself filed. As such, she insists that the CSC
committed GAOD in modifying the decision of respondent De Leon.
ISSUE: WON PNRC is under the Civil Service Commission.
RULING: YES. As ruled by this Court in Liban, et al. v. Gordon,3 the
PNRC, although not a GOCC, is sui generis in character, thus, requiring
this Court to approach controversies involving the PNRC on a case-to-
case basis. As discussed:
There is merit in PNRC's contention that its structure is sui generis. x x x
x National Societies such as the PNRC act as auxiliaries to the public
authorities of their own countries in the humanitarian field and provide
a range of services including disaster relief and health and social
programmes…. A National Society partakes of a sui generis character x
x x.
The auxiliary status of [a] Red Cross Society means that it is at one and
the same time a private institution and a public service organization
because the very nature of its work implies cooperation with the
authorities, a link with the State.
Although the PNRC is called to be independent under its Fundamental
Principles, it interprets such independence as inclusive of its duty to be
the government's humanitarian partner. To be recognized in the
International Committee, the PNRC must have an autonomous status,
and carry out its humanitarian mission in a neutral and impartial
manner. However, the PNRC must be distinguished from private and
profit-making entities. The PNRC, as a National Society of the
International Red Cross and Red Crescent Movement, can neither "be
classified as an instrumentality of the State, so as not to lose its
character of neutrality" as well as its independence, nor strictly as a
private corporation since it is regulated by international humanitarian
law and is treated as an auxiliary of the State.
Based on the above, the sui generis status of the PNRC is now
sufficiently established. Although it is neither a subdivision, agency, or
instrumentality of the government, nor a government-owned or -
controlled corporation or a subsidiary thereof, as succinctly explained
in the Decision of July 15, 2009, so much so that respondent, under the
Decision, was correctly allowed to hold his position as Chairman
thereof concurrently while he served as a Senator, such a conclusion
does not ipso facto imply that the PNRC is a "private corporation"
within the contemplation of the provision of the Constitution, that
must be organized under the Corporation Code. As correctly mentioned
by Justice Roberto A. Abad, the sui generis character of PNRC requires
us to approach controversies involving the PNRC on a case-to-case
basis.4
In this particular case, the CA did not err in ruling that the CSC has
jurisdiction over the PNRC because the issue at hand is the
enforcement of labor laws and penal statutes, thus, in this particular
matter, the PNRC can be treated as a GOCC, and as such, it is within the
ambit of Rule I, Section 1 of the Implementing Rules of Republic Act
67135, stating that:
Section 1. These Rules shall cover all officials and employees in the
government, elective and appointive, permanent or temporary,
whether in the career or non-career service, including military and
police personnel, whether or not they receive compensation, regardless
of amount.
Thus, having jurisdiction over the PNRC, the CSC had authority to
modify the penalty and order the dismissal of petitioner from the
service.
The question would be: When do we plead PNRC as under Civil Service
or as a private corporation?
The importance of answering the question is that if it is a GOCC without
original charter, it is NOT covered by the CSC.
Example: Manila Hotel – even if 51% of the shares is owned and
controlled by GSIS, it is not a GOCC with original Charter. It was
established and incorporated under the Philippine Corporation Code.
c. Appointment and term of office of Commissioners; Rule
against reappointment
Page 79
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
Article IX-B, Section 1(2). The Chairman and the Commissioners shall
be appointed by the President with the consent of the Commission on
Appointments for a term of seven years without reappointment. Of
those first appointed, the Chairman shall hold office for seven years, a
Commissioner for five years, and another Commissioner for three
years, without reappointment. Appointment to any vacancy shall be
only for the unexpired term of the predecessor. In no case shall any
Member be appointed or designated in a temporary or acting capacity.
d. Appointment of personnel of CSC
Article IX-A, Section 4. The Constitutional Commissions shall appoint
their officials and employees in accordance with law.
e. Salary
Article XVIII, Section 17. xxx the Chairmen of the Constitutional
Commissions, two hundred four thousand pesos each; and the
Members of the Constitutional Commissions, one hundred eighty
thousand pesos each.
Article IX-A, Section 3. The salary of the Chairman and the
Commissioners shall be fixed by law and shall not be decreased during
their tenure.
f. Disqualifications
Article IX-A, Section 2. No member of a Constitutional Commission
shall, during his tenure, hold any other office or employment. Neither
shall he engage in the practice of any profession or in the active
management or control of any business which, in any way, may be
affected by the functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including government-
owned or controlled corporations or their subsidiaries.
g. Impeachment
Article XI, Section 2. The President, the Vice-President, the Members of
the Supreme Court, the Members of the Constitutional Commissions,
and the Ombudsman may be removed from office, on impeachment
for, and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public
trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment.
h. Appeal
i. Scope of the Civil Service
Article IX-B, Section 2(1). The civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the Government,
including government- owned or controlled corporations with original
charters.
 GOCC with Original Charter; Defined
Article XII, Section 16. The Congress shall not, except by general law,
provide for the formation, organization, or regulation of private
corporations. Government-owned or controlled corporations may be
created or established by special charters in the interest of the
common good and subject to the test of economic viability.
CSC has administrative and quasi-judicial powers.
DOF vs. DELA CRUZ
FACTS: The case stemmed from the issuance of EO 140. BOC
Commissioner Biazon issued CPO 189-2013 detailing 27 BOC personnel
holding the positions of Collector of Customs V and VI, including
respondents in this case, to CPRO "effective immediately and valid until
sooner revoked."
Respondents filed an action for Dec. Relief with App. for TRO and/or
WPI before the RTC of Manila. Exec. Judge Dela Cruz issued a TRO
enjoining petitioners or any person acting for and in their behalf from
implementing CPO 189-2013.
Petitioners alleged that the case involves personnel action affecting
public officers which is under the exclusive jurisdiction of the CSC.
Respondents alleged that the case involves the validity and
constitutionality of CPO 189-2013, and thus, it is beyond the jurisdiction
of the CSC.
ISSUE: WON the matter is within the exclusive jurisdiction of the CSC.
RULING: NO. The CSC has jurisdiction over all employees of
government branches, subdivisions, instrumentalities, and agencies,
including government-owned or controlled corporations with original
charters. The CSC is the sole arbiter of controversies relating to the civil
service. The rule is that disciplinary cases and cases involving personnel
actions, including "appointment through certification, promotion,
transfer, reinstatement, reemployment, detail, reassignment,
demotion, and separation," are within the exclusive jurisdiction of the
CSC. This rule is embodied in Section 1, Rule V of the Omnibus Rules
Implementing Book V of Executive Order No. 292 and Other Pertinent
Civil Service Laws (Omnibus Rules) which states:
SECTION 1. x x x.As used in these Rules, any action denoting movement
or progress of personnel in the civil service shall be known as personnel
action. Such action shall include promotion, transfer, reinstatement,
reemployment, detail, secondment, reassignment, demotion and
separation, x x x.
Under Section 8, Rule VII of the Omnibus Rules, "[a] detail is the
movement of an employee from one department or agency which is
temporary in nature, which does not involve a reduction in rank, status
or salary and does not require the issuance of another appointment."
Page 80
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
CPO 189-2013 is an order detailing personnel from the BOC to CPRO
under the DOF.
A reading of the petition filed before the RTC shows that respondents
were questioning their mass detail and reassignment to CPRO.
According to respondents, their detail was carried out in bad faith and
was meant to remove them from their permanent positions in the BOC.
The action appears to be a personnel action under the jurisdiction of
the CSC.
However, the petition went beyond questioning the detail of
respondents. Respondents further assailed the validity and
constitutionality of CPO 189-2013. When respondents raised the issue
of validity and constitutionality of CPO 189-2013, the issue took the
case beyond the scope of the CSC's jurisdiction because the matter is
no longer limited to personnel action. Thus, the RTC did not abuse its
discretion in taking cognizance of the action.
2. COMMISSION ON ELECTIONS
The only issue in COMELEC would be the jurisdiction over qualifications
and election returns respecting a candidate. Before a candidate is
considered a member of the house, the contest shall be with the
COMELEC. Thereafter, it would be on the appropriate electoral tribunal.
a. Composition and Qualifications of Commissioners
Article IX-C, Section 1. There shall be a Commission on Elections
composed of a Chairman and six Commissioners who shall be natural-
born citizens of the Philippines and, at the time of their appointment,
at least thirty-five years of age, holders of a college degree, and must
not have been candidates for any elective positions in the
immediately preceding elections. However, a majority thereof,
including the Chairman, shall be members of the Philippine Bar who
have been engaged in the practice of law for at least ten years.
Article VII, Section 13(2). xxx The spouse and relatives by consanguinity
or affinity within the fourth civil degree of the President shall not,
during his tenure, be appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their subsidiaries.
b. Appointment and term of office of Commissioners; Rule
against reappointment
Article IX-C, Section 1(2).The Chairman and the Commissioners shall be
appointed by the President with the consent of the Commission on
Appointments for a term of seven years without reappointment. Of
those first appointed, three Members shall hold office for seven years,
two Members for five years, and the last Members for three years,
without reappointment. Appointment to any vacancy shall be only for
the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.
c. Appointment of Personnel
Article IX-A, Section 4. The Constitutional Commissions shall appoint
their officials and employees in accordance with law.
d. Salary
Article IX-A, Section 3. The salary of the Chairman and the
Commissioners shall be fixed by law and shall not be decreased during
their tenure.
e. Disqualifications
Article IX-A, Section 2. No member of a Constitutional Commission
shall, during his tenure, hold any other office or employment. Neither
shall he engage in the practice of any profession or in the active
management or control of any business which, in any way, may be
affected by the functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including government-
owned or controlled corporations or their subsidiaries.
f. Impeachment
Article XI, Section 2. The President, the Vice-President, the Members of
the Supreme Court, the Members of the Constitutional Commissions,
and the Ombudsman may be removed from office on impeachment for,
and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public
trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment.
g. Appeal
3. COMMISSION ON AUDIT
 Powers
 Administrative
 Quasi-judicial
a. Composition and Qualifications
Article IX-D, Section 2(1). The Commission on Audit shall have the
power, authority, and duty to examine, audit, and settle all accounts
pertaining to the revenue and receipts of, and expenditures or uses of
funds and property, owned or held in trust by, or pertaining to, the
Government, or any of its subdivisions, agencies, or instrumentalities,
including government-owned or controlled corporations with original
charters, and on a post-audit basis: (a) constitutional bodies,
commissions and offices that have been granted fiscal autonomy under
this Constitution; (b) autonomous state colleges and universities; (c)
other government-owned or controlled corporations and their
subsidiaries; and (d) such non-governmental entities receiving subsidy
or equity, directly or indirectly, from or through the Government, which
Page 81
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
are required by law or the granting institution to submit to such audit
as a condition of subsidy or equity. However, where the internal control
system of the audited agencies is inadequate, the Commission may
adopt such measures, including temporary or special pre-audit, as are
necessary and appropriate to correct the deficiencies. It shall keep the
general accounts of the Government and, for such period as may be
provided by law, preserve the vouchers and other supporting papers
pertaining thereto.
Article VII, Section 12(2). The Commission shall have exclusive
authority, subject to the limitations in this Article, to define the scope
of its audit and examination, establish the techniques and methods
required therefor, and promulgate accounting and auditing rules and
regulations, including those for the prevention and disallowance of
irregular, unnecessary, excessive, extravagant, or unconscionable
expenditures, or uses of government funds and properties.
REMEMBER: It is within the jurisdiction of COA if it involves public
funds (money coming in or given to the government).
Article XI-D, Section 3. No law shall be passed exempting any entity of
the Government or its subsidiary in any guise whatever, or any
investment of public funds, from the jurisdiction of the Commission on
Audit.
NGOs were included in the examination of the COA during the PDAF
scam because it involved public funds.
FUNA vs. MECO
715 SCRA 247 (2015)
This involves Manila Economic and Cultural Office (MECO), a quasi-
government entity taking care of our “diplomatic relations” with
Taiwan. MECO is authorized to handle consular services as well as
collect fees of overseas employers over the Philippine workers
employed in Taiwan.
ISSUE: WON these funds should be under the jurisdiction of COA.
RULING: YES. For so long as there is money going to or coming from the
government, COA has the power to examine and audit those accounts.
Insofar as the percentage of the money paid as consular fees or those
paid by the employers to the government, COA has the right to audit or
examine.
PARAISO-ABAN vs. COA
780 SCRA 235 (2016)
FACTS: The Senate's Committees on Accountability of Public Officers and
Investigations and on National Defense and Security held various hearings
to investigate the alleged anomalous acquisitions of land by the AFP-RSBS.
The Deputy Ombudsman for the Military and Other Law Enforcement
Offices requested the COA to conduct an audit of the past and present
transactions of the AFP-RSBS.
A Special audit team (SAT) was constituted, which found that AFP-RSBS
purchased 4 parcels of land located in Calamba, Laguna. The purchase was
covered by two deeds of sale for different amounts; and, that the sale
which was registered with the RD of Calamba indicated a total price of
P91,024,800.00, whereas the deeds of sale found in the records of the
AFP-RSBS showed that it actually paid P341,343,000.00 for the lots, or a
difference of P250,318,200.00.
The SAT issued Audit Observation Memorandum which were received by
AFP-RSBS. It elicited no response from the latter, hence, its conclusion
that for all legal intents the true deed of sale was the one filed with the
RD.
The SAT issued ND No. 2010-07-084-(1996) for P250,318,200.00
representing the excess in the price paid for the above lots. It named the
petitioner, the Acting Head of the Office of Internal Auditor of the AFP-
RSBS,as among the persons liable for the said disallowance, on the basis
of her participation in the transaction through her "verifying the
correctness of payment."
The petitioner appealed to the COA en banc, where she reiterated that
she had no knowledge of the above transactions. The COA en banc denied
the petitioner's request for exclusion from liability.
RULING: It is well to be reminded that the exercise by COA of its general
audit power is among the mechanisms of check and balance instituted
under the 1987 Constitution on which our democratic form of
government is founded. Article IX-D, Section 2(1) of the 1987 Constitution
provides that the COA has "the power, authority, and duty to examine,
audit, and settle all accounts pertaining to the revenue and receipts of,
and expenditures or uses of funds and property, owned or held in trust
by, or pertaining to, the Government, or any of its subdivisions, agencies,
or instrumentalities, including government-owned or controlled
corporations with original charters." Corollary to the COA's audit power,
Section 2(2) of Article IX-D further provides:
Sec. 2(2). The Commission shall have exclusive authority, subject to the
limitations in this Article, to define the scope of its audit and examination,
establish the techniques and methods required therefor, and promulgate
accounting and auditing rules and regulations, including those for the
prevention and disallowance of irregular, unnecessary, excessive,
extravagant, or unconscionable expenditures or uses of government funds
and properties. (Emphasis supplied)
In a recent case, Delos Santos v. COA, wherein the Court upheld the COA's
disallowance of irregularly disbursed Priority Development Assistance
Fund, the Court explained that:
At the outset, it must be emphasized that the COA is endowed with
enough latitude to determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant or unconscionable expenditures of
government funds. It is tasked to be vigilant and conscientious in
safeguarding the proper use of the government's, and ultimately the
people's, property. The exercise of its general audit power is among the
constitutional mechanisms that gives life to the check and balance
system inherent in our form of government.
Corollary thereto, it is the general policy of the Court to sustain the
decisions of administrative authorities, especially one which is
constitutionally-created, such as the CoA, not only on the basis of the
Page 82
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
doctrine of separation of powers but also for their presumed expertise
in the laws they are entrusted to enforce. Findings of administrative
agencies are accorded not only respect but also finality when the decision
and order are not tainted with unfairness or arbitrariness that would
amount to grave abuse of discretion. It is only when the CoA has acted
without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, that this Court entertains a
petition questioning its rulings, x x x. (Citation omitted and Emphasis
supplied)
In its assailed decision, the COA cited Title II, Vol. Ill of the Government
Accounting and Auditing Manual to point out that internal audit is part of
internal control which the responsible agency officers must exercise over
its transactions. As Section 123 of Presidential Decree (P.D.) No. 1445 also
provides:
Sec. 123. Definition of internal control. Internal control is the plan of
organization and all the coordinate methods and measures adopted
within an organization or agency to safeguard its assets, check the
accuracy and reliability of its accounting data, and encourage adherence
to prescribed managerial policies.
As further provided in Section 124 of P.D. No. 1445, it is the direct
responsibility of the head of agency to install, implement, and monitor a
sound system of internal control. Needless to state, however, the agency
head must rely on the diligent assistance and sound expertise of the
internal audit head and staff in installing and operating a sound internal
control system.
In the case before this Court, the petitioner admitted that to verify the
correctness of the subject transaction, all that she did was to check the
same against AFP-RSBS's "approved" planned purchases and "approved"
budgets, further pointing out that she "signed correct" on the vouchers
months after payments had been released, and only after the post-audit
by the audit staff and the review by the head of the Financial Audit
Branch. The petitioner consulted no independent sources, such as the
documents submitted to the Bureau of Internal Revenue (BIR) and the RD,
or any data of prevailing real estate prices. Had she done so, she could
conceivably have discovered the loss.
Atty. Montejo: This refers to the Notice of Disallowance. The COA can
issue a Memo. Under GovAcc, if the expenditure is disallowed in audit,
there is a demand to payback what has been spent.
If there is an issue on the payment, for completion, the COA can issue
an Audit Memo which is just an observation of what should had been
done or what could be done or could issue an order for the suspension
of payment until the issue is resolved. But in case there is a finding that
it should not have been paid at all, that is where Notice of Disallowance
shall be issued. That is within the power of COA because it is provided
in the Constitution that COA has the power to disallow payment of
expenses that is not done in compliance with law.
Based on this Aguinaldo Doctrine (reversed by Carpio-Morales Case)
Is the findings of COA conclusive?
In the case of Aguinaldo, the COA issued an audit-finding that former
governor Aguinaldo has not violated any of the rules and regulations
issued by COA with respect on the questioned expenditure.
Can that Audit Report be used a basis for dismissing the Criminal Case?
The SC said that a COA Report is only conclusive on the Administrative
aspect of the Government Accounting and Auditing Practices (GAAP). It
is not a conclusive proof that there is no criminal violation committed.
At best, it is just proof that all the administrative issuances were not
violated when that COA Report was made.
Conversely, it can also be the basis for finding a probable cause if COA
finds some questionable transactions and if it should amount to a
criminal liability.
b. Appointment and term of office of Commissioners; Rule
against reappointment
Article IX-D, Section 1(2). xxx The Chairman and the Commissioners
shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, the Chairman shall hold office
for seven years, one Commissioner for five years, and the other
Commissioner for three years, without reappointment. Appointment to
any vacancy shall be only for the unexpired portion of the term of the
predecessor. In no case shall any Member be appointed or designated
in a temporary or acting capacity.
c. Appointment of Personnel
Article IX-A, Section 4. The Constitutional Commissions shall appoint
their officials and employees in accordance with law.
d. Salary
Article IX-A, Section 3. The salary of the Chairman and the
Commissioners shall be fixed by law and shall not be decreased during
their tenure.
e. Disqualifications
Article IX-A, Section 2. No member of a Constitutional Commission
shall, during his tenure, hold any other office or employment. Neither
shall he engage in the practice of any profession or in the active
management or control of any business which, in any way, may be
affected by the functions of his office, nor shall he be financially
interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including government-
owned or controlled corporations or their subsidiaries.
f. Impeachment
Article XI, Section 2. The President, the Vice-President, the Members of
the Supreme Court, the Members of the Constitutional Commissions,
Page 83
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
and the Ombudsman may be removed from office on impeachment for,
and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public
trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment.
g. Appeal
 Review of Decisions of the Commission
The Constitution provides for the 30-day period to seek a review of the
decisions and final orders of the commissions but subject, however, to
provisions of the Rules of Court. The mode of review for each of the
commissions is provided for by the Rules of Court, more specifically:
1. Civil Service Commission - Rule 43 by Petition for Certiorari
to the Court of Appeals within 15 days from notice of
judgment or from the date of its last publication, if required;
and
2. Commission on Audit and Commission on Elections – Rule
64 in relation to Rule 65 by Petition for Certiorari to the
Supreme Court within 30 days from notice of judgment.
But with respect to the COMELEC, if the decision is from the electoral
tribunals it goes directly to the SC under Rule 65. If the decision is from
the COMELEC itself, it is rule 64 in relation to rule 65. And as a general
rule, only the decisions and final orders of the COMELEC en banc can be
the subject of the petition for certiorari with the SC.
These cases that can be reviewed by the SC or the CA are only those
final orders or resolutions rendered by the commissions in the exercise
of their quasi-judicial function. So, these exclude those done from
administrative duties.
Example: if there is an appointment of an election officer, the order on
who is to be appointed cannot be the subject of a review under Rule 64
in relation to Rule 65. You file an ordinary petition before the regular
courts.
In the case of CASABALANCA vs. CSC (2009), this involves a
disqualification of an examinee for cheating in the civil service exams,
the decision to perpetually disqualify him to take any other civil service
exam is not that decision which shall be reviewable by the CA. It shall
be with the regular courts. This is because under the Administrative
Code of 1987, the CSC has the administrative power and functions to
control and supervise the civil service examinations. Also under the
Omnibus Civil Service Rules and Regulations, the CSC has the original
disciplinary jurisdiction over cases involving civil service examination
anomalies or irregularities.
VI. THE AMENDING PROCESS
Under the 1987 constitution, there are three modes to amend the
constitution and two ways that the constitution can be revised.
Amendment refers to change which nevertheless maintains the basic
structure of government as it was in the constitution to be amended.
The proposal to change our government from unitary to federal is
considered to be an amendment even if all the provisions are seemingly
affected, but because the similar setup is maintained and only there are
additional layers.
Revision is one that practically changes the structure of the
government from the amended constitution into a new one even if only
one or two provisions are altered. It can be a change from a bicameral
to a unicameral congress or from a 3 branch government to a
parliamentary form. It is the character or nature of the change and not
the number of changes that has been made.
A. Proposal
For modes of amendment, the 1987 constitution provides:
1. By Congress
Article XVII, Section 1. Any amendment to, or revision of, this
Constitution may be proposed by:
1. The Congress, upon a vote of three-fourths of all its Members; or
2. A constitutional convention.
Congress acting as Constituent Assembly by a vote ¾ votes of all
members of both houses
2. By Constitutional Convention
Article XVII, Section 3. The Congress may, by a vote of two-thirds of all
its Members, call a constitutional convention, or by a majority vote of
all its Members, submit to the electorate the question of calling such a
convention.
Constitutional Convention will be called by a 2/3 votes of all members
of both houses or by a majority vote to let the people decide in an
election activity whether they want a constitutional convention to be
called
3. By the People through Initiative
Article XVII, Section 2. Amendments to this Constitution may likewise
be directly proposed by the people through initiative upon a petition of
at least twelve per centum of the total number of registered voters, of
which every legislative district must be represented by at least three
per centum of the registered voters therein. No amendment under this
section shall be authorized within five years following the ratification of
this Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of
this right.
RA 6735, Section 5. Requirements. — (a) To exercise the power of
initiative or referendum, at least ten per centum (10%) of the total
number of the registered voters, of which every legislative district is
Page 84
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
represented by at least three per centum (3%) of the registered voters
thereof, shall sign a petition for the purpose and register the same with
the Commission.
(b) A petition for an initiative on the 1987 Constitution must have at
least twelve per centum (12%) of the total number of registered voters
as signatories, of which every legislative district must be represented by
at least three per centum (3%) of the registered voters therein.
Initiative on the Constitution may be exercised only after five (5) years
from the ratification of the 1987 Constitution and only once every five
(5) years thereafter.
(c) The petition shall state the following:
c.1. contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be;
c.2. the proposition;
c.3. the reason or reasons therefor;
c.4. that it is not one of the exceptions provided herein;
c.5. signatures of the petitioners or registered voters; and
c.6. an abstract or summary in not more than one hundred (100)
words which shall be legibly written or printed at the top of every page
of the petition.
(d) A referendum or initiative affecting a law, resolution or ordinance
passed by the legislative assembly of an autonomous region, province
or city is deemed validly initiated if the petition thereof is signed by at
least ten per centum (10%) of the registered voters in the province or
city, of which every legislative district must be represented by at least
three per centum (3%) of the registered voters therein; Provided,
however, That if the province or city is composed only of one (1)
legislative district, then at least each municipality in a province or each
barangay in a city should be represented by at least three per centum
(3%) of the registered voters therein.
(e) A referendum of initiative on an ordinance passed in a municipality
shall be deemed validly initiated if the petition therefor is signed by at
least ten per centum (10%) of the registered voters in the municipality,
of which every barangay is represented by at least three per centum
(3%) of the registered voters therein.
(f) A referendum or initiative on a barangay resolution or ordinance is
deemed validly initiated if signed by at least ten per centum (10%) of
the registered voters in said barangay.
RA 6735, Section 9. Effectivity of Initiative or Referendum
Proposition. xxx
(b) The proposition in an initiative on the Constitution approved
by a majority of the votes cast in the plebiscite shall become effective
as to the day of the plebiscite.
SANTIAGO vs. COMELEC
270 SCRA 106 (1997)
ISSUE: Is R.A. No. 6735 (Initiative and Referendum Act) a full
compliance with the power and duty of Congress to provide for the
implementation of the exercise of the right?
RULING: A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section
2 of the Act does not suggest an initiative on amendments to the
Constitution. The said section reads:
SECTION 2. Statement and Policy. -- The power of the people under a
system of initiative and referendum to directly propose, enact, approve
or reject, in whole or in part, the Constitution, laws, ordinances, or
resolutions passed by any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized and
guaranteed. (Underscoring supplied).
The inclusion of the word Constitution therein was a delayed
afterthought. That word is neither germane nor relevant to said
section, which exclusively relates to initiative and referendum on
national laws and local laws, ordinances, and resolutions. That section
is silent as to amendments on the Constitution. As pointed out earlier,
initiative on the Constitution is confined only to proposals to AMEND.
The people are not accorded the power to directly propose, enact,
approve, or reject, in whole or in part, the Constitution through the
system of initiative. They can only do so with respect to laws,
ordinances, or resolutions.
Second. It is true that Section 3 (Definition of Terms) of the Act defines
initiative on amendments to the Constitution and mentions it as one of
the three systems of initiative, and that Section 5 (Requirements)
restates the constitutional requirements as to the percentage of the
registered voters who must submit the proposal. But unlike in the case
of the other systems of initiative, the Act does not provide for the
contents of a petition for initiative on the Constitution. Section 5,
paragraph (c) requires, among other things, statement of the proposed
law sought to be enacted, approved or rejected, amended or repealed,
as the case may be.
Third. While the Act provides subtitles for National Initiative and
Referendum (Subtitle II) and for Local Initiative and Referendum
(Subtitle III), no subtitle is provided for initiative on the Constitution.
This conspicuous silence as to the latter simply means that the main
thrust of the Act is initiative and referendum on national and local laws.
If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it
could have provided for a subtitle therefor, considering that in the
order of things, the primacy of interest, or hierarchy of values, the right
of the people to directly propose amendments to the Constitution is far
more important than the initiative on national and local laws.
R.A. No. 6735, in all of its twenty-three sections, merely (a) mentions,
the word Constitution in Section 2; (b) defines initiative on the
Constitution and includes it in the enumeration of the three systems of
initiative in Section 3; (c) speaks of plebiscite as the process by which
the proposition in an initiative on the Constitution may be approved or
rejected by the people; (d) reiterates the constitutional requirements
as to the number of voters who should sign the petition; and (e)
provides for the date of effectivity of the approved proposition.
Page 85
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University
There was, therefore, an obvious downgrading of the more important
or the paramount system of initiative. R.A. No. 6735 thus delivered a
humiliating blow to the system of initiative on amendments to the
Constitution by merely paying it a reluctant lip service.
The foregoing brings us to the conclusion that R.A. No. 6735 is
incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned.
Its lacunae on this substantive matter are fatal and cannot be cured by
empowering the COMELEC to promulgate such rules and regulations as
may be necessary to carry out the purposes of [the] Act.
LAMBINO vs. COMELEC
G.R. No. 17415, October 25, 2006
FACTS: Petitioners in G.R. No. 174153, namely Raul L. Lambino and
Erico B. Aumentado (Lambino Group), with other groups and
individuals, commenced gathering signatures for an initiative petition
to change the 1987 Constitution. The Lambino Group filed a petition
with the COMELEC to hold a plebiscite that will ratify their initiative
petition under Section 5(b) and (c)[2] and Section 7[3] of Republic Act
No. 6735 or the Initiative and Referendum Act (RA 6735).
The Lambino Group alleged that their petition had the support of
6,327,952 individuals constituting at least twelve per centum (12%) of
all registered voters, with each legislative district represented by at
least three per centum (3%) of its registered voters. The Lambino Group
also claimed that COMELEC election registrars had verified the
signatures of the 6.3 million individuals.
The COMELEC issued its Resolution denying due course to the Lambino
Groups petition for lack of an enabling law governing initiative petitions
to amend the Constitution. The COMELEC invoked this Court’s ruling in
Santiago v. Commission on Elections declaring RA 6735 inadequate to
implement the initiative clause on proposals to amend the Constitution.
RULING: The Lambino Group miserably failed to comply with the basic
requirements of the Constitution for conducting a peoples initiative.
Thus, there is even no need to revisit Santiago, as the present petition
warrants dismissal based alone on the Lambino Groups glaring failure
to comply with the basic requirements of the Constitution. For
following the Courts ruling in Santiago, no grave abuse of discretion is
attributable to the Commision on Elections.
The present petition warrants dismissal for failure to comply with the
basic requirements of Section 2, Article XVII of the Constitution on the
conduct and scope of a people’s initiative to amend the Constitution.
There is no need to revisit this Court’s ruling in Santiago declaring RA
6735 incomplete, inadequate or wanting in essential terms and
conditions to cover the system of initiative to amend the Constitution.
An affirmation or reversal of Santiago will not change the outcome of
the present petition. Thus, this Court must decline to revisit Santiago
which effectively ruled that RA 6735 does not comply with the
requirements of the Constitution to implement the initiative clause on
amendments to the Constitution.
Seemingly, there has been a misunderstanding that the Lambino Ruling
has allowed initiative to amend the constitution to be undertaken
under R.A. 6735. In the case of Santiago, the SC ruled that R.A. 6735
was found to be insufficient. When the Lambino followed, it was
decided by a vote of 8-7 and the petition was dismissed. The Santiago
Ruling was not revisited. Justice Carpio who penned the decision stated
that there is no reason to revisit because R.A. 6735 is still insufficient.
Also, in that case the initiative was considered to be a revision and not
a mere amendment. They wanted to change the legislative branch into
a parliamentary form.
On November 21, 2006, the motions for reconsideration were denied
with finality by the same 8-7 votes. But the problem was the clerk of
court in the final paragraph in the minute resolution misquoted the
main decision because it says, “Ten members of the Court reiterate
their position, as shown by their various opinions already given when
the Decision herein was promulgated, that Republic Act 6735 is
SUFFICIENT and ADEQUATE to amend the Constitution thru a people’s
initiative.”
So the COMELEC in January 2007, following the minute resolution, said
that there can be an initiative on the Constitution. And that minute
resolution has found its way in various books. But take note that
Santiago never changed and Lambino did not even revisit the former.
The minute resolution was not even signed by the justices; it was only
the Clerk of Court. Remember that the last decision was never
reconsidered because all of the MRs were denied with finality.
Atty. Montejo: I would still submit that there is no law providing for the
details for amending the constitution under R.A. 6735.
Executive Order No. 10, December 7, 2016
A consultative committee which shall review the 1987 constitution was
created composing of 25 members. They have already submitted a
draft constitution to the president. But if the Congress constitutes itself
as a constituent assembly or calls for a constitutional convention may
make its own draft or use the one of the consultative as a working
draft. The approved draft will be subjected to a plebiscite which shall be
held within a period of 60-90 days from such approval. It will be
effective thereafter.
B. Ratification
The two modes for revision are:
1. In case amendments proposed by Congress or Convention
Article XVII, Section 4(1). Any amendment to, or revision of, this
Constitution under Section 1 hereof shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not earlier
than sixty days nor later than ninety days after the approval of such
amendment or revision.
Page 86
 CONSTITUTIONAL LAW 1 REVIEW
From the lectures of Atty. Vincent Paul Le. Montejo
4- Manresa (2018-2019) | Ateneo de Davao University

a. Congress acting as Constituent Assembly by a vote ¾ votes

of all members of both houses;

b. Constitutional Convention will be called by a 2/3 votes of all

members of both houses or by a majority vote to let the
people decide in an election activity whether they want a
constitutional convention to be called.

2. In case of amendments proposed through initiative

Article XVII, Section 4(2). Any amendment under Section 2 hereof shall
be valid when ratified by a majority of the votes cast in a plebiscite
which shall be held not earlier than sixty days nor later than ninety days
after the certification by the Commission on Elections of the sufficiency
of the petition.

NOTE: Plebiscite to be called by Congress and supervised by COMELEC,

but the initiative on Constitution will be called by COMELEC.

C. Theories regarding the position of a Constitutional

Convention in our system of government

D. Judicial Review of the Amending/Revision Process

Article VIII, Section 1. The judicial power shall be vested in one

Supreme Court and in such lower courts as may be established by law.
xxx

The Constituent Assembly and the Constitutional Convention is

supposed to a co-equal body to be separate from the other branches of
the government even if congress itself constitutes itself as the former.
It is not acting as a congress but it is performing its sovereign duty to
propose amendments or revisions to the constitution. Their powers
over the procedures of amendment or revision would be absolute
insofar as the proposed changes are concerned. They can only be
controlled with respect to the procedures as required under the
constitution which is to be amended or revised. So long as the voting
requirements in constitution are not violated provided in the
constitution, any changes they would want to include will not be
subject of a judicial review.

Page 87