4CONSTI Updated Transcript

Constitutional Law 1 2013
July 18, 2013

Background
Constitution
of
the
Philippine
Nothing much in the preliminary discussions of

political law.
Well, perhaps the only thing that you would find
interesting there is the effect of change of the
exercise of sovereignty of political laws. You
would understand that when there is change in
the exercise of sovereignty going back to our
Political history there was a time when
sovereignty was exercised by the Spaniards,
then Americans, and then the Japanese. During
those times that there was change in the
exercise of sovereignty the effect of such
changes on the political statutes would be that
political statutes are deemed abrogated even
without any express law abrogating the efficacy
of political statutes. Political statutes remained
unaffected so if the cause or case is collection of
sum of money or with respect to an obligation in
civil law despite the change of the exercise of
sovereignty in the political history, the
obligations remain valid and effective.
Unlike in political statutes, political statutes or
the old sovereign are deemed abrogated with
the coming of the new sovereign. The same is
true with the decisions on political statutes. So
for example, if one has been found liable and
guilty for treason which is a political statutes in
character even if it is found under the Revised
Penal Code, the person who has been charged
and convicted for treason under the old
sovereign, that conviction becomes nullified
under the new sovereign because it is an act of
disloyalty to a particular sovereign and that
sovereign is gone obviously the jurisdiction
would
not
be
valid
anymore.
We have this discussion because of the
applicability of the political statutes with respect
to certain era in our political history because of
change of sovereign.
The
other
is
perhaps
4th Year Batch 2013-2014
on
the
classic
characterization of our present constitution

considering that there is now a move to amend
the constitution again. Our constitution is
characterized by one who dated because it is
found in a document. Unlike in common law
countries where some constitutions are undated.
Our constitution is also considered to be
adopted at a particular time _ and it is rigid in
a sense that it can only be amended or revised
pursuant to the provisions of the existing
constitution.
There were only two occasions in our political
history where the constitution has been changed
without complying with the provisions of the
constitution on a valid revision or amendment.
The first is the efficacy of the 1973 constitution.

As we all know based on the very long case of
Javellana vs. Executive Secretary, the Supreme
Court failed to nullify this proclamation
(Proclamation 1102 which declared 1973
constitution effective) - the reason for SC failing
to declare it to be unconstitutional not because
of the failure of the votes. We all know that the
1935 Constitution was ratified in such an
extraordinary manner. It was not ratified based
on the provisions of the 1935 constitution that
the amendment to the '35 constitution can be
effective if it is submitted and passed through a
plebiscite. The second constitution was adopted
based on what was known then as the
ratification by barangay assemblies.
The second one was when the 1986 Freedom

Constitution was made effective by an issuance
of President Aquino - the Proclamation No. 1,
the '86 Freedom Constitution was made
effective simply by the president signing it. The
1973 constitution provides that any amendment
to the '73 constitution must have to be by
plebiscite as well but because it was an
extraordinary time in 1986, a mere signature of
the President made the 1986 Freedom
Constitution effective.
Page 1
So, where the constitution of the Philippines is

generally characterized as rigid, it can only be
amended following the strict rules amending the
current constitution. Those two constitution were
made effective not consistent with the
characterization that ours is a rigid constitution.
Background of the Present Constitution
Well, we already know that the '87 constitution

has also been subject of several cases making
the efficacy or effectivity which by reason again
of the political background or milieu at that time,
the members of the SC who were reappointed
by President Aquino by reason that all of them
resigned. They were made to tender their
voluntary resignation. So, when the issue on the
validity of the '87 constitution was raised to the
SC, specifically on the issue of its effectivity, it
went against the traditions of the past that the
previous constitution, that is the '35 and '87
constitution, were made effective not on the
plebiscite day but they were made effective on
the day the proclamation issued by the president
was dated and issued.
Previously, the reason why there is a need of
proclamation issued by the president is to
announce officially the efficacy of the
constitution which is under the plebiscite
because on plebiscite day obviously there
neither assurance nor any knowledge that such
constitution will be approved in a plebiscite.
The '87 constitution based on the cases which
you have already taken up, the cases of: De
Leon v. Esguerra, In re: Bermudez, Letter Of
Associate Justice Puno, the SC was quite
certain as the change in the previous traditions
that since the '86 freedom constitution provided
which was copied in the '87 constitution that the
constitution to be adopted shall be effective if
ratified by a majority of the votes cast in a
plebiscite hold and held for the purpose since
the plebiscite was held on February 2, 1987
then it was effective on that day.
The discussions then were such that on
plebiscite day nobody knew that the yes votes
win over the no vote but the SC justified it by

saying that the people in their sovereign
capacity have cast their votes of approval on
plebiscite day. The issuance of a proclamation is
just a confirmation of the mathematical
computation of the votes cast on plebiscite day.
The task of the COMELEC in canvassing the
votes counting and canvassing the votes cast on
plebiscite day is just a mathematical
computation of the expression of the people
during plebiscite day. So, everything goes back
to the day of the plebiscite. So that is the new
rule now, if the constitution is made effective on
a given day or the plebiscite day for that matter,
then that is now the rule upon the efficacy no
longer the traditions in the past the constitutions
are made effective on proclamation which was
the '35, '73, the amendments to the constitution
'79 and '81, all of these constitutions and their
amendment thereto were made effective on the
issuance of the presidential proclamation.
Effectivity Of Statutes In Comparison With The
Effectivity Of A Constitution
Taada v. Tuvera requires publication for
effectivity of statutes in fact this is part of
substantive due process if a law is not publish it
is as if it is not effective so that it will never be a
basis of any right, office or obligation, whatever
acts or omission are defined under the
constitution. For a constitution there is no need
for a publication. Because publication is required
not by the constitution but by our civil laws so
that only statutes are covered for purposes of
publication.
Judicial Elaboration of the Constitution
Technically, this speaks of what we know now

as judicial review. Judicial review prior to the '87
constitution was seemly a concept. Concept
because judicial power defined in the previous
constitution does not provide for judicial review.
Judicial review is based on the task and
obligation, if not duty, of courts to determine
delineations of powers based on the
Page 2
constitution.
This
is
supposedly
an
encroachment by one into the other's
jurisdiction. But in judicial review the '87
constitution has somehow institutionalized what
judicial review is, by expanding the definition of
the judicial power under Section 1, art VIII. The
first phrase there refers to the traditional
definition of judicial power: The right or power of
the court to settle acts or controversies involving
rights which are illegally or totally xxx
enforceable.
The exception is the rest are supposed to be

considered non self-executing provisions.
Provisions which either are declarations of
policies or they need some legislative enactment
or an enabling law to become sources of rights
or sources of obligations. One cannot go to court
directly if the basis for the cause is a non-self
executing provision.
Then it is expanded to include the powers of the

court to determine whether or not there is grave
abuse of discretion amounting to lack or in
excess of jurisdiction on the part of the other
branches of the government. Now, this judicial
review is usually preceded in our understanding
of how the constitutional provisions should be
construed or rules of construction of
constitutional provision. While it has rules on
construction of statutes seemingly there are
different rules for construing constitutional
provisions.
The general rule again is they are selfexecuting the reason being the rights under the
constitution is dependent upon an enabling law
otherwise it would be depended on the claim of
our right on a law or statute which Congress
need to enact. Otherwise, if the Congress would
not enact a law or statue on our constitutional
right then we would not have any recourse to
court because there is no cause of action. All
are deemed to be self-executing unless by its
nature or by express requirement of the law the
provision is non-self-executing.
Rules
provisions:
So, non-self-executing there would include

Article I on Territory, entire Article II [on
Declaration Of Principles and State Policies by
the denomination or title it refer to the policy
which the state must consider in executing a law
or implementing particular legislation].
for
construing
constitutional
Constitutional provisions are generally

considered to be self-executing.
Particular words or phrases must have
to be construed in their ordinary
dictionary meaning unless an express
requirement of technical meaning is
intended.
Constitution should be construed not
only to address the problems of the
present but it must be construed in
such a way that it would also be able to
address the uncertainties or vagaries of
the future.
In that case of Manila Prince Hotel vs. GSIS, we
have been told that constitutional provisions are
generally considered to be self-executing.
Meaning these provisions is considered to be
direct sources of rights. Violations of which
entitled would entitle a party to go to court for

purposes of claiming that right.
Obviously your Article III is self-executing, this

refer to our bill of rights and what else: IV, V, VI,
VII,VIII, IX, they are all self-executing provisions.
The second rule there is as discussed in the
case of Domingo vs. COMELEC which has been
reiterated in that case of Chavez vs. JBC. The
Supreme Court said under the maxim noscitur
a sociis where a particular different word or
phrase is ambiguous in itself, its correct
construction maybe made clear by considering
the company words where it founded. This is
because word or phrase is always used in
association with the other words or phrases.
The particular words or phrases must have to
be construed in their ordinary dictionary
Page 3
meaning unless an express requirement of

technical meaning is intended. The reason for
that according to the SC is that the constitution
is not a document which is used only by lawyers
or law students. This basic document should be
applicable to all and should be easily
understandable by everyone. So, words and
phrases in the Constitution are to be understood
in their ordinary dictionary meaning unless the
intent is to use the technical meaning of that
word, term or phrase. So, when the Bill of Rights
refer to our right to bail or offenses not
punishable by reclusion perpetua or higher, the
term reclusion perpetua there should be
understood in its ordinary dictionary meaning
that means even if you are charged of an
offense where the penalty is like life
imprisonment it is a matter of discretion under
the constitution because the constitution is not a
penal statute, it does not refer to the accessory
penalties which would be included in a word or
term reclusion perpetua.
Obviously, the constitution in the same Article III
uses the right or the writ of habeas corpus. The
right to bail shall not be considered included in
the writ as it has been suspended. There is no
other understanding of the writ of habeas corpus
there other than its technical meaning. But
again, if the word and phrase do not refer to the
technical meaning intended, it should be
understood in its ordinary meaning.
The word or term on qualification which is
residence is technically understood in its
technical meaning. Qualification to President,
Vice-President, or members of Congress or both
houses, the qualification on president is
understood to be domicile. That has always
been the ruling and nobody understands why
they have not changed the word residence to
domicile. Residence perhaps is much easier to
pronounce than domicile. Kung ingana naman
lang ang decision ever since the term xxx 35
constitution, we have the chance in 73, they
have the chance of amending it 1979 and 81,
they also have the chance to change it in 87 but
still they did not change it. So, theres always a
quarrel on what is meant by residence. And

every election year there is an issue: one of the
issues is residency because they have not
change the word in the constitution from
residence to domicile.
Ok. In the case of Pamatong vs. COMELEC still
on non-self-executing, case of Tondo Medical
vs. CA still on self-executing and non-selfexecuting, and the 2011 & 2012 Kida v. Senate
(And Companion Cases), this refers to the law
postponing the ARMM elections and allowing
the president to appoint the caretakers because
the terms of office of the incumbent elective
officials came to an end. One of the issues
raised there is whether the constitution allows
the president to exercise such power of
appointing the caretaker official or officers.
In that old case of Marcos vs. Manglapus,
remember that concept of residual powers. The
constitution according to this case is supposed
to be understood as limitations on state
power/powers of state and its offices and not a
grant of power. The constitution when it grant
say legislative power to Congress, the
constitution states under section 1 of Article VI
that is lodged in congress composed of Senate
and the Representatives that provision does
not provide for the power of Congress. It is a
restatement with or without that congress has
the power to exercise. The various provisions of
the constitution relating to or affecting legislative
power are limitations on legislative power, they
are not grants. The same is true with the
Executive power under section 1 of Article VII
and of Judicial power under Section 1 of Article
VIII. So, if you try to look into the constitution
and look for that specific provision of whether or
not the president can appoint so-called
caretaker officers or officials, there is no such
thing.
But if you ask a question, Can the President do
it then? The answer is YES, it is part of his
executive power to implement and execute the
law. Where could that be based on, it is based
on its residual power. And the SC reckoned
Page 4
further by saying that is how the constitution

should be construed. The constitution should be
construed or the provisions to be construed not
only to address the problems of the present but
it must also be able to or must be construed in
such a way that it would also be able to address
the uncertainties or vagaries of the future.
This was first raise in the case of Taada vs.
Angara. When the President of the Philippines
entered and joined in the World Trade
Organization (WTO) and General Agreement on
Tariffs and Trade (GATT), the issue raised then
was: Does it violate the provision on Section 10
of Article XII? Because GATT and WTO
basically liberalized trading meaning its global.
The perfectionist provisions of the municipal
statutes of all the member states should give
way to the globalization of trade. Under our
Section 10 of Article XII, the constitution requires
that the Philippines or the State should develop
a self reliant economy. So, the argument then by
Taada, how could the Philippines develop a
self reliant economy when without our
manufacturing or reproduction companies being
able to reach that state or level of being
competitive with rest of the world market, here
we are allowing importation. The perfectionists
provisions which would somehow protect our
local products from the influx of the foreign
goods are supposed to give way to the
agreement and to the fact of our joining to the
WTO. The SC said that such provision must
have to be interpreted to mean, the problems
brought about by this new situation or
globalization, and said that the measure of the
constitutional provision is that it is capable of
being interpreted to mean not what is required in
1987 when it was enacted but also to be able to
address the uncertainties when the issue was
raised later in 2000. Which is if you try to look
into for example decision on the SC on Bill Of
Rights provisions, let us take case of freedom of
expression which has gone through a lot of, so
to speak.
When you talk about what is allowable art as
distinguish from obscenity, nudity, or literally the
___. If you go back in history what has been at

least with respect to decisions on protected
expressions, what has been considered
protected expressions before would no longer
be a protected expression of today. If today you
see the proliferation of magazines of women and
men, 30 years ago these are perhaps topics
which could hardly seen in print, 30 years ago
you could not publicly exhibit on primetime TV
same sex relationships: My Husbands Lover ,
but today everybodys excited to go home
because they want to view the episodes.
But we are talking about the same constitutional
provision no law shall be passed abridging the
freedom of expression or of speech and of
religion, that has not been changed from 35 till
today, but look there are more allowance today
on publicly exhibiting print, broadcast, because
this are now art forms. Before these were not
considered art forms. The bond films of
yesteryears; one of the highlights is the bond girl
getting out from a body of water whether its a
sea, river, pool, etc. in a bathing suit. In earlier
movies one piece - naka-short pa. But when the
bond girl was Halle Berry, two piece, but when
James Bond became Daniel Craig, it was Daniel
Craig who got out from the body of water it is
one piece suit. So, things have changed but
see still under the freedom of expression. That
provision has been tested in time that no word
has been changed but the court was able to
interpret it different times to show that such
provision is a measure of whole of the
Constitution is capable not only to be interpreted
to protect whatever rights starts in a given time
different also at the future and no need to
amend it. So, basically those are the rules on
construing some of the general provisions of the
constitution.
Judicial Review
Now, the term judicial review is practically based
on what we know on separation of powers. The
reason why the constitution requires the court to
perform its tasks to determine whether it is
encroachment of constitutionally limited powers
Page 5
because of this Principle of Separation

Powers, each department has its own set
powers and one cannot exercise the power
another. The problem with this separation
powers is that we also have to contend with:
of
of
of
of
1.) the System Of Checks And Balance

which is part of the separation of
powers principle.
2.) Aside from that, there is also what
we called Interdependence Among
The Government.
The reason on separation of powers is to
prevent or to prohibit the concentration of power
in one that it might result into arbitrariness that is
why there is parallel rule on checks and balance.
But really if you try to look into the workings of
the state thru its branches of the government, for
them to have an effective delivery of government
service,
generally
speaking,
there
is
interdependence among all the branches of the
government.
The concept of judicial review is brought into
picture as I have mentioned earlier a theory
before, not expressly provided in the
constitution, is because a body, an entity, an
office or officer or branch of government is given
by the constitution a power which is not
traditionally lodged with it. The earliest case
there or the landmark ruling is the case of
Angara vs. Electoral Commission. If you
remember, that was the first case where this
concept of judicial review was discussed in a
case because under the 35 constitution there
was this electoral commission given with the
power under the constitution to act as what you
know now as electoral tribunal to be the sole
judge of the contest relating to the elections,
qualification and returns of the national
assembly members. But before that everything
must be with the COMELEC and so when the
electoral commission was given that power there
was an interplay of who has the authority to fix
the last day for the filing of the electoral protest.
Congress/National Assembly issued a resolution
fixing it while the Electoral Commission also a
resolution fixing the last day of filing. So which

has the power now? Supreme Court has the
task of determining which has the power or
authority under the Constitution. This brings us
also that other concept of the Supremacy of the
Constitution and not the courts. When the
Supreme Court exercises judicial review it is not
acting as the supreme than the others branches
or officers of the government. It is actually
performing a duty required of it under the
Constitution because that constitution is
supreme. So, that is the supremacy of the
constitution principle.
2 Concepts in the exercise of Judicial Review:
1. Presumption of constitutionality; and
2. Co-equality.
Ok. Now when the courts exercises judicial
review there are several conditions which must
be complied with. This is because there is this
Presumption of Constitutionality
The presumption of constitutionality simply
states that laws or acts which are subject of a
petition on judicial review exercise are presumed
to be constitution.
Thats why we said when the courts declare a
law to be unconstitutional it does not declare it
as or when the court declare that a law or act is
not contrary to the constitution, it does not
declare it as constitutional, it would declare it as
it not unconstitutional, because then again the
presumption is that it is constitutional.
There is also that Respect For The Coordinate
Or Co-Equal Branches Of Government
When a question on the constitutionality
of an act is raised before the courts, the court
will initially refuse to exercise judicial review
because it should respect the acts or exercise
by the other co-equal branches.
Because of this respect of co-equal branches
courts will not easily exercise judicial review
unless again the conditions are met.
Page 6
The conditions are, if you very well remember:

1. There must be an appropriate case or
controversy;
2. It must have to be raised by the proper
party;
3. It must have to be made at earliest
opportunity; and
4. The constitutional question is the very lis
mota of the case.
Now, we study these conditions not because we
are asked in the bar exams whether or not a
question, act or law is unconstitutional. We are
taught of these conditions because most of the
questions in the bar exams on judicial review will
just have to require you to know these
conditions.
The rule has always been if a question in the bar
exams refers to judicial review: set of facts,
question is the questioned statute
unconstitutional?
The first thing to remember is this if there is no
case yet decided by the SC on that particular
issue, do not ever attempt to decide on that
constitutional issue. Because who are we to
decide on the constitutional question when we
are just taking the bar, were not even justices of
the Supreme Court. So, ask yourself whether
theres a similar case decided by the SC on the
constitutional issue. If the there is, you must
have to answer the question according to the
decision of the SC. If there is no decision yet,
just discuss the 4 conditions, find one or some
or all of the conditions not present then dismiss
the petition. If the question states - is the RA so
and so unconstitutional? You have to dismiss
the petition if there is no prior SC decision
because the examiner will just want to know
whether you know what the 4 conditions are.
And you say the petitioner has no standing and
therefore the constitutional issue is not the very
lis mota of the case, the petition should be
dismissed. Never attempt to answer the

question of whether that law is unconstitutional.
So the conditions are there must have to be an
appropriate case or controversy which is
ripe for judicial determination.
When is an issue considered to be ripe
for judicial determination or theres an
appropriate case or controversy?
The appropriateness of the case or controversy
would have to refer to that question of
constitutionality has damaged, prejudiced, or
there is a threatened violation or damage on the
right the party in issue.
Its not the propriety of the nature of petition of
the case although in some cases it could easily
be interchanged. Is a petition for declaratory
relief a proper action to raise the constitutional
question before the Supreme Court? The
answer is NO. The SC has no jurisdiction over
petition for declaratory relief. You can either
raise it before the lower courts or CA but never
the Supreme Court. Thats doesnt always been
the standard ruling.
But that is not what is meant by the
appropriateness of the case. It simply means
that there is violation of the right or threatened
violation because of the act or statute
complained made of. If there is no violation yet
and there is no impending violation, then there is
no appropriate case. The usual petitions filed
before the SC would be under Rule 65 petition
for certiorari because its a question of
jurisdiction. As you very well know, as
distinguished from Rule 45 petitions for review
on certiorari is a petition on the error of law but if
the error on jurisdiction is always under Rule 65.
It must have to be raised at earliest
opportunity
It simply means that there is again a violation a
violation already or theres a threatened or
impending violation or it must not be too late
where there no more need for the court to
Page 7
decide on the issue because it has become

moot or academic.
it must have to be raised by a proper party
This is where most of the discussions are ask in
cases on judicial review because the SC would
always find a reason to dismiss the case unless
theres a clear case of violation. The SC court
will dismiss the petition on technicality and the
usual technical ground is that the party has no
legal standing. But through the years the SC has
from the strict requirement of CITIZEN SUIT
An ordinary citizen raising a question of
constitutionality his legal standing or locus standi
is based on his right that his right is violated or
there is an impending violation and the violation
of that right is to be addressed or assuaged by a
favorable courts decision. It must be personal to
him, it must have to be a material damage or
injury or threatened violation.
It is not something raised by one in favor of
another. It is similar to our civil procedure on real
party-in-interest who are allowed to bring a suit
or be made a defendant in a suit in civil cases,
only real parties-in- interest. That is the
equivalent of citizen suit having a legal standing
to bring a constitutional question. The only
difference is that in civil procedure it is a private
suit while judicial review it is a public suit. A
violation of a right which considered a public
right and that violation of public right can be
addressed, assuaged, if not, it will be protected
under or in that case to be decided by the court
on the constitutional question. That is the only
reasonable allowance for legal standing, an
ordinary citizen suit.
But through the years, the SC has come up with
some rules. There is now what we know as the
TAXPAYERS SUIT
If the issue on constitutionality involves
public spending or spending of public money.
A law is passed creating an office, providing
funds therefore, providing for salaries, benefits
for this employee. A taxpayer can file a petition

if he thinks that that law is unconstitutional. In
such case, the taxpayer has an interest that is
direct and material for any public money on
account of unconstitutional law or act.
Also, there is that concept of VOTERS SUIT
If the constitutional question involves
right to suffrage under the Constitution Article
V, there is legal standing for a person to bring a
case involving a law on the rights to suffrage.
And in some later jurisprudence there is such a
thing as LEGISLATORS SUIT
A member of Congress has legal
standing over a constitutional question involving
a law.
If a bill is passed by the Congress and the
President signs it into law it becomes effective.
A legislator has a right to question its
constitutionality because he has the obligation if
not duty t enact and pass only bills which do not
violate the Constitution. So if he thinks that the
passage of bill which later became law is
unconstitutional, he has the right to raise that
issue being a legislator.
Then we have this concept or DOCTRINE OF
TRANSCENDENTAL IMPORTANCEThe doctrine requires that there is:
1. Clear constitutional violation;
2. Case involves public expenditure or
similar other issues;
3. No other proper party to bring the
constitutional question. (most important
one)
The transcendental importance doctrine is a rule
made by the SC based on its exercise of judicial
review to be able for the court to decide issues
even if judicial review should not have been
exercised because of the transcendental
importance of the issue raised. As we said,
Page 8
ordinarily, if one or some and/or all of the

conditions [on judicial review] are non-existing,
the courts will of course refuse to exercise
judicial review. So if the party has no legal
standing they will use if they want to this
transcendental importance. If the issue must
have been mooted already, there is no need to
decide, the SC will use transcendental
importance because the issue might be
recurring even if the issue was raise too late
they will still resolve the constitutional question.
And one final thing on legal standing, that
landmark decision in the case of Oposa vs.
Factoran,
the
concept
of
INTERGENERATIONAL RESPONSIBILITY
That concept has been brought about
based on the American jurisprudence that the
generation of the present can bring a case on a
public right violation of the constitution for the
benefit of the generation of tomorrow.
This Oposa case was based on the issue of the
issuance or renewal of Timber License
Agreement (TLA) and the argument is that TLAs
if continue to be issued then our forest cover will
be lost and the generation of tomorrow will no
longer have the healthful and balance ecology
which under Article is supposed to be protected.
Can one person bring a suit not to his benefit but
for the benefit of another. Generally, it cannot be
allowed but because of the nature of the issue
involved that it not for the generation of the
present but for future generation, the court has
given legal standing under the concept of
intergenerational responsibility. Of course, it
should come as a matter of exception, the
general rule has always been a CITIZEN SUIT
where a party in a public right violation is
deemed to be real party-in-interest, if it were a
civil under your rules of procedure. Lets
continue next meeting.
~end~
JULY 23, 2013
Hacienda Luisita vs. PARC: Hacienda Luisita

formed the Farmworkers Agrarian Reform
Movement or FARM. And FARM wanted the
court to declare Sec. 31 of RA8857, which
allows stock distribution as an option instead of
actual distribution of land as invalid. It revealed
that the intent in the constitution of agrarian
reform is to distribute lands and not to allow the
distribution of shares of stocks in the
corporation. However, the record shows that
some members of the FARM had already
benefited from the stock distribution option
based on the SDOP which is the subject of the
main case for review. And in took them
something like 14 years from the from the time
the Stock Distribution Option Plan was approved
by the PARC, it took them 14 years before they
have asked for invalidation of Sec. 31 of
RA8857. SC said, it was not raised at the
earliest opportunity because the facts of the
case would show that they have already
benefited from the stock distribution option, and
it would be too late for them to question it now
since they have taken so long to raise the
constitutional question.
This case of Candari vs. Donasco peaks of
condition of actual case or controversy. This is a
case involving an election of cooperative officials
where there were two sets of officers of the
cooperative. The respondents were actually
elected by the general membership while the
case was pending before the RTC. So the RTC
dismissed the case reasoning that since the
issue hinges on who is the set of officers validly
elected by the general membership has already
been settled by reason of the elections, this RTC
dismissed the petition there being no actual
case or controversy. The CA reversed the RTC
and so it went all the way up to the SC. The SC
sustained the RTC. Actual case or controversy
simply means, according to the SC, that there is
a justiciable issue which is required to be
resolved by the court or there is a necessity of a
court resolution to afford the parties relief based
on law upon the questions or issues raised. The
issue again is that who is the set of officers
validly elected and who shall therefore run the
Page 9
affairs of the cooperative? The Cooperative

Code provides that the general membership
would be the ones who will have to elect the set
of officers, and since the set of officers have
been duly elected by the general membership,
then there is no more case or controversy, no
need for a judicial determination or a resolution
of the issues.
Case of L.A.M.P. vs. Sec. of DBM, this is on
ripeness and locus standi or legal standing. Is
an issue ripe for judicial determination? This
involves your Priority Development Assistance
Fund (PDAF). LAMP is a group of lawyers, who
raised the issue of constitutionality of the
practice or policy of the distribution of the PDAF
through the DBM by allowing members of
congress discretion as to how the money would
be spent.
As you very well know, this PDAF is a
congressional insertion in the General
Appropriations Bill, which becomes the General
Appropriations Law. The practice of giving lump
sum amounts to members of congress directly,
which we know then as pork barrel, has been
abolished. What came in its stead was the
practice of congressional insertions where the
allocations for members of congress amounting
to Php60-70M a year are inserted in the
agencies. So for example, in the DPWH, there is
a corresponding amount which is actually
appropriated for the DPWH but in fact is
reserved for a member of congress. All of these
amounts from the agencies, DPWH, DECS, DA,
DENR, all of these amounts would variably
amount to P60-70M a year for members of the
lower house, and P200M for the house of
senate. This is the reason why Rep. Arroyo who
later became Sen. Arroyo has never touched
any of this so called pork barrel because most
of these monies are inserted in the agencies
where there is much appropriation. So, since he
was a representative of Makati, who would need
budget allocations for Makati when there is no
instance that it would need a farm-to-market
road; it would not need allocation, for example,
for irrigation because there is no irrigated land in
Makati. So that would explain why he has never

spent any amount from any of his PDAF or pork
barrel.
Now, the practice, since there is no direct
allocation for members of congress, what is
being done is after the budget is approved, the
DBM now orders the release of these monies. In
the practice, DBM releases these through or
under the discretion of the respective members
of both houses, where they would want the
money to be released and for what project. This
explains why in this P10B scam now in the
news, there are a lot of ghost beneficiaries
because it is not the DBM who actually controls
where it should go but members of congress. If
the members of congress says, Ok, my P10M
should go to this NGO for their whatever. The
DBM will release that to that NGO, and DBM
would have no way of knowing whether that
NGO is actually existing or not. And since the
documentation is complete, where there is
supposedly the COA Allowance, pre-audit, not
post-audit, then the money in these events
would be given even if the intended beneficiary
is a ghost beneficiary.
So this group of lawyers filed a petition
questioning that: whether or not it is a valid
exercise of congressional prerogative as well as
the executive policy to allow members of
congress to exercise discretion as to where the
money should go based on the appropriated
items in the appropriations bill or appropriations
law.
Is the issue ripe for judicial determination? SC
said yes, because while the money or monies
may have been released already, this is a
continuing thing. The annual appropriations is
every year, and the practice is done all over
again. So this is just ripe for judicial
determination whether or not that constitutional
question should be resolved.
Case of Del Llana vs. Chairperson, still question
on legal standing. Dela Llana here is a lawyer
who has raised the issue of the validity of a
Commission on ________ (10:30) Resolution,
Page 10
deleting the requirement of pre-audit for some

govt transactions. The constitution provides for
the general power of the COA, to conduct audit
on any entity including those invoking or
enjoying fiscal autonomy, but the constitution
does not require pre-audit for everything, only
post-audit on some entities. But the thing is that
COA has audit powers over any entity which
received govt funds because the basis of COA
audit powers is the nature of the funds it is going
to audit. If it is public funds, regardless of who
the beneficiary is, COA has the power to
conduct an audit. Which is why in the
constitution, even if it is an NGO or a GOCC
without original charter, if it has received public
funds, COA has right to audit that entity.
Now, here is a COA resolution deleting that
provision on pre-audit on some govt
transactions and Dela Llana raised that issue of
whether that is a valid resolution or does it
violate the constitutional provision requiring the
COA to conduct audit. The matter of judicial
review is his legal standing, does he have legal
standing. As we have made mention last time, if
it involves disbursement or expenditure of public
funds, a person may be given legal standing in
the concept of a taxpayer. So here, Dela Llana
was granted legal standing as a taxpayer.
Galicto vs. Aquino, also on legal standing and
mootness. When is a case considered moot?
Now, this case of Galicto was a question on the
validity of the then order of Pres. Aquino to
suspend the payment of all allowances and
additional benefits and bonuses to those
connected with GOCCs. One of the issues
which Pres. Aquino faced when she was
president was the fact that most of the members
of the board of GOCCs were receiving so much,
much more what the president was receiving.
And based on their charters, apparently, these
GOCCs can determine through its board, how
much the members of the board can receive as
additional remuneration or compensation,
allowances, or benefits. They can give as much
as they would determine. So, Pres. Aquino
issued an executive order ordering the
suspension of all the ________ (14:08). And

Galicto raised the issue of whether it is within
the powers of the president to issue that
executive order when the charters of these
GOCCs allow them to determine how much they
will be receiving. However, in the meantime,
while this case was pending before the SC,
congress enacted a new law standardizing the
salaries, benefits, and other remuneration
owing to members or members of the board of
GOCCs. So the issue has become moot. SC
said a moot case is one that ceases to present a
justiciable controversy by virtue of supervening
events, so that a declaration thereon would be of
no practical use or value. It becomes moot when
it no longer presents a judicial controversy
because the issues involved have become
academic, or the matter in dispute has already
been dissolved, hence, no one is entitled to
judicial intervention. So since the issue is
whether the president can, based on the existing
laws, issue such executive order, but because of
the new law providing for the standardization of
the salaries, and one of the provisions there that
the president can actually issue issuances to
implement the provisions of that new law, then
the issue has become moot and/or academic.
Case of Ideals vs. PSALM, also legal standing
and mootness. This involves the sale of the
Angat Hydro-Electric Power Plant, sold to the
Korea Water Resource Corporation. The issue
here is basically whether or not the sale of the
Angat Hydro-Electric Power Plant to a foreign
corporation is in violation of the water rights
provision under Art. XII of the Constitution. The
issue of mootness was raised because PSALM,
the entity under the EPIRA Law which is
authorized to sell all these facilities has raised
the fact that the notice of award were already
given or issued to the Korean firm, so that
whatever is intended to be stopped could no
longer be stopped after the successful conduct
of bid and that the winning bidder has been
issued the notice of award. SC said it is not yet
moot because it is a continuing violation. The
water rights provision in the Constitution is a
continuing right claimable by those who are
Page 11
entitled to them. If utilization of water resources

is reserved to Filipino citizens, then for so long
as that right is violated, then the issue could
never have been mooted even if there is the
issuance of the notice by PSALM.
The case of Funa vs. Villar, still on locus standi,
mootness, and exception. This has something to
do with the terms of office of members of the
Constitutional Commissions. For purposes of
judicial review, the discussion is whether Funa
has legal standing; whether the issue has
become moot; and what is the exception thereto.
Commissioner Villar was appointed to a 7-year
term in the COA, when he was in his 3rd of 4th
year as Commissioner, the position of
Chairperson of COA became vacant. And so,
GMA appointed him to become the Chairperson.
So the issue here is whether as the new
Chairperson, should he serve for a full term of 7
years or should he serve only for the unexpired
term of the departing chairperson. But when
Pnoy became president, true to his (Villar) word,
as he had said that he would resign, he in fact
resigned. So that issue that whether he will
serve a new 7-year term or will serve only for the
unexpired term, there is no need to render or
issue a ruling on that considering that that issue
has already become moot. SC made an
exception and said that even if the issue has
become moot and academic, the court may still
resolve it if the following conditions are present:
(1) if there is a grave violation of the
Constitution; (2) the exceptional character of the
situation and the paramount public interest
involved; (3) when the constitutional issue raised
requires formulation of controlling principles to
guide the bench, the bar, and the public; and (4)
the case is capable of repetition. This actually is
teaching or symbolic function as one of the
functions of judicial review. Because it is
capable of repetition, meaning, the issue if not
resolved can be raised thereafter as it is. It is
recurring. That would be an exception to the
mootness principle where even if the issue has
already become moot, the court would still
resolve the constitutional question. And again,
this is in line with the teaching and symbolic

function of judicial review.
Capalla vs. COMELEC, this is your Archbishop
Capalla,
Archbishop
Emeritus
of
the
archdiocese of Davao. This was on the validity
of the acquisition by the COMELEC of the
PCOS machines. And Capalla was given legal
standing, perhaps because he is archbishop, but
because of the so called transcendental
importance of the issue. As we said,
transcendental importance is a rule which the
courts on its discretion will allow a petition to
prosper even if there not all of conditions are
present moreso on legal standing of the party
raising the issue because transcendental
importance requires that there is a constitutional
violation, it involves a public asset, and third
there is no proper party to raise the
constitutional question. And because of the
importance of the issue at hand, meaning, it is a
public crime(?) violation, the court can allow the
petition to prosper.
Chavez vs. JBC, also legal standing and
transcendental importance, you remember the
case involving the composition of the JBC.
Originally, when the 87 Constitution took effect,
the practice was one (1) member from the
House of Representatives, and some other time,
a member of the House of Senate. There will
two members from the congress attending the
official sessions of the JBC. They later changed
it by allowing 1 member from senate and 1
member from the lower house, and each will
have half a vote for the 7-man band. Then,
Chavez raised that issue. Does he have legal
standing because he was one of the nominees
for the position of Chief Justice? SC said that he
has legal standing as a taxpayer. Because if
there will be expenditure, disbursement of public
funds for the expenses of the JBC, and these
expenses will have no legal basis if they violate
the Constitution, then any taxpayer can have a
right to raise an issue. And of course, because
of the transcendental of the issue, even if he did
not have legal standing, the petition can prosper.
Page 12
Functions of Judicial Review: Checking or

Negative Function, and Legitimating or Positive
Function, and the Symbolic or Teaching
Function.
When the court declares a law or acts
unconstitutional, this is an exercise of the
negative or checking function.
When the court exercises judicial review in its
legitimating function, it means that the law or
act is declared to be NOT unconstitutional. We
always emphasize that when the court declares
it to be not in violation of the constitution, we
always use the term in the double negative to
emphasize the so called presumption of
constitutionality. If it does not declare a law to be
in violation of the constitution, the court will not
declare it to be constitutional because even
without that declaration, the presumption is it is
constitutional. So if it does not violate the
constitution, the disposition will always be that it
is not in violation of the constitution or that it is
not unconstitutional.
The third function, the symbolic or teaching
function, as mentioned earlier, this is an
exception to the strict compliance with the
conditions of judicial review even if one, some,
or all of the conditions for judicial review are not
present, the court may still resolve the
constitutional question because of its symbolic
or teaching function. Largely, to serve as guiding
rules or principles to the bench, bar, and legal
students because the issue is capable of
repetition. Even if the parties of the case will no
longer be benefited from the resolution of the
issue, but because the issue will still come up in
the future, the court will resolve the issue now so
that future conduct will be guided.
All courts can exercise judicial review. The
Constitutional basis for this principle of all courts
can exercise judicial review is your Art. VIII, Sec.
5(2), that the SC shall have the power to review,
revise, reverse, modify, or affirm decisions of
lower courts involving the constitutionality or
legality ofand there is a listing there. Meaning
that there is a lower court which is authorized to
exercise judicial review. But as old as the case

of Ynot vs. IAC, the SC has said that while lower
courts have the power to exercise judicial
review, it should refuse to resolve it if it can be
avoided, owing its deference to the fact that it is
a lower court. When it is a law subject for a
declaration of unconstitutionality, it is a law
enacted by congress, and in the tripartite system
of govt, it is the SC which is co-equal with
congress or the president. It is not the lower
court. But if the lower court cannot refuse or
avoid ruling on the constitutional question, then
it must. First, because it has jurisdiction.
Second, and importantly, it is its duty, being a
court, to resolve the constitutional question. But
in doing so it must avoid ruling on it based on
the wisdom or policy of the questioned act or
statute.
Brokenshire vs. Minister of Labor, this is an old
case but highlights the principle that while lower
courts may declare an act or law as
unconstitutional, quasi-judicial bodies do not
have that power. Judicial review, as we said, in
this present Constitution is just and extension of
judicial power. Judicial review can only be
exercised by entities which have judicial power
to begin with. Quasi-judicial tribunals do not
have or cannot exercise judicial power. Their
power to resolve issues or claims before their
respective jurisdiction or under their respective
jurisdiction is largely based on their power to
implement the law. They do not have the right or
power to interpret the law, much more the power
to declare a law unconstitutional.
So wage orders issued by regional wage boards
can be implemented by quasi-judicial tribunals
like your DOLE director or you NLRC. But in
doing so, those officers or offices are only
implementing the law, as part of their executive
function. Its quasi-judicial because they have
the right or power to resolve claims involving
these wage orders. But to declare the wage
orders as unconstitutional is beyond their
authority since they do not exercise judicial
power to begin with, much more judicial review
powers.
Page 13
Effects of declaration of unconstitutionality.

As you all know, Art. 7(2) of your New Civil
Code, it is your basis, when a law is inconsistent
with the constitution, the constitution shall
prevail and the law shall be void. The traditional
effect is that the void law is considered to have
not been part of our judicial system, not part of
our legal system. It is considered to be not
having been enacted at all, therefore, it is not
the source of any obligation, right, or office, or
any of those which would be the origin of
liabilities or obligations. Nonetheless, because of
the application of the so called operative fact
doctrine, the Operative Fact Doctrine simply
provides that the period of efficacy or effectivity
of that law from its promulgation and effective
date up to the time it is declared by the courts as
unconstitutional, this period of time is an
Operative Fact, with it would be performance of
acts or refusal to commit an act in order not to
be covered by any violation or in order to comply
with the provisions of that law which eventually
was declared to be unconstitutional. Those
operative facts would therefore resolve into
liabilities incurred, obligations incurred, rights or
offices created. What will happen to those? SC
said they should be given legal effects. If they
are legal or valid under that law while the law
was still effective, they should be respected. Of
course, it they were invalid under that law, while
it was still effective, operative fact doctrine will
not validate those invalid acts. Only valid acts or
omissions would be considered valid and
effective even if the law eventually will be
declared as unconstitutional.
One of the issues there is: what should the
traditional view be applied and when should the
operative doctrine be applicable? There are
cases when one was applied and the other
hasnt been applied and it would seem that
when the law in question, when it was made
effective, resulted into rights or right in violation,
the traditional effect of declaration of
unconstitutionality will be applied. Meaning,
when because of the law being effective, there
were violations and damage or prejudice
resulting, if that law would be declared
unconstitutional, what would be applied is the

traditional concept, meaning that law is never
considered to have been made effective at all so
that whatever damage, prejudice or violation
committed will be corrected. But if there was no
violation of rights, no damage or prejudice
caused by reason that law being effective, if that
law is eventually declared as unconstitutional,
then the operative fact doctrine will be applied.
Now, the operative fact doctrine is not applied in
statutes, it is also applied in executive
issuances. That is part of the ruling in the case
Cocofed vs Republic. When the President
issued an executive order, the SC said that it is
also applicable in executive orders or executive
issuances. It is not limited to statutes.
Political Question vs. Justiciable Question,
theres nothing much to it except perhaps to
clarify the current status of political question in
relation to judicial review. When the 87
Constitution included this expanded definition of
judicial power, the right of the courts to look into
whether the other govt branches have acted
outside or without any authority or jurisdiction
resulting to lack or excessive jurisdiction, the
common belief is that anything now can be
subject to court review. However, in a few cases
in your outline, the case of Metrobank vs.
Tobias, its a relatively new case. It has
something to do with the power of the DOJ, the
investigating officers in a criminal case to
determine whether or not there is probable
cause, or in the language of the rules of court, to
engender a well-founded belief that a crime has
been committed and the respondent should be
held for trial, is an executive determination. It is
therefore not a judicial determination whether or
not probable cause exists. In the case
Metrobank vs. Tobias, Metrobank filed a criminal
complaint for estafa against Tobias, and on
appeal to the DOJ Secretary, the DOJ Secretary
ruled that there is no probable cause against
Tobias, and so Metrobank went to the SC
wanting judicial review to be exercised. SC
reiterated the rule that determination of probable
cause in criminal cases is an executive function
Page 14
and it is beyond the courts to review. The court

cannot exercise itscannot impose its wisdom
on the executive conduct determination of
probable cause since it is within their jurisdiction.
And there is no exception unless there is a
grave abuse of discretion amounting to lack or
excess of jurisdiction. Finding none, then the
courts could not review.
The other one, the case of Vinuya vs. Romulo,
this case is on the case of Ang Malayang
________ Organization, these were of comfort
women during the Japanese occupation. They
have tried to bring their case against the
Japanese government, and nothing happened.
So, they officially asked the state through DFA
Secretary Romulo to make their claim against
Japan for an official apology and reparation to
the ICJ. Sec. Romulo refused, so they filed a
case for mandamus. So the question is, can
they compel the Philippine govt to file their case
in the ICJ? The ultimate question is can the
court compel the Phil. govt to file their claims in
the ICJ? SC said that it is a matter of foreign
relations, and in the matters of foreign relations
it is part of executive determination based on
policy and wisdom whether or not they would
seek such demand for justice or they would not
do anything, otherwise it might affect their
relations. Courts cannot impose to the executive
when it is a matter of wisdom or policy.
So, there are still matters which remain within
the concept of Political Question. We
understand Political Question is a question by
which the people in their sovereign capacity will
have to decide or to which whom discretionary
authority has been delegated to the political
branches of govt to decide, meaning the
executive and congress. Courts cannot answer
or resolve these questions. Now, if the question
still remains with policy determination, wisdom
on administration or executive act, these are still
within the political question concept, and courts
cannot resolve questions arising from these
matters involving policy.
Ok, Philippines as a State, you have there your

Philippine Territory. Except perhaps for the issue
on whether our claims over some Philippine
territory, or over some territories claimed to be
part of Philippine territory, there is not much to
discuss in the matter of territory. Perhaps what
is important to remember, is the change in
phraseology in the 73 to the 87 Constitution with
respect to our claims over some territories which
in the 73 would refer to those belonging to the
Philippines under historic or legal title, in the 87
this has been changed to include only those
territories over which the Philippines has
sovereignty and jurisdiction. It does not refer
largely to territory of the past; it would also be
inclusive of territories over which we will
exercise jurisdiction at some other future time if
we can afford it. So the question of whether this
Sabah claim has been dropped, the framers of
the 87 Constitution made it clear that it has not
been dropped because that claim over Sabah is
still based onit would also fall within the
phrase that those territories which the
Philippines would exercise sovereignty and
jurisdiction. So if we can exercise sovereignty
over Sabah at some later time, then it would still
be part of Philippine territory. Our claim is not
largely based on historic title or legal title.
And the other matter there perhaps is the extent
of the Exclusive Economic Zone; common are
incursions into the EEZ territory. The question is
is this part of Philippine territory? The answer
is: the first 12 nautical miles is part of Philippine
territory, outside of the first 12 NM up to the 200mile limit, they are no longer part of Philippine
territory. They are Philippine part of EEZ, so if
there is incursion, there can be no violation of
Philippine laws, as Philippine laws are not
effective outside the first 12 NM. But, within the
first 12 NM, because the 200-mile exclusive
economic zone is measured from the same
baseline as our territory at sea, then it is part of
the territory of the Philippines, outside of the first
12 NM it is no longer part of Philippine territory.
If they fish there, fine. What is their violation?
Violation or our rights under the EEZ in the
UNCLOS. What is reserved to the state, to
Page 15
which the EEZ is reserved for, is exclusive

economic exploitation and exploration. So they
cannot fish their not because we have the
Philippine Fisheries Act, but because of the EEZ
rights under the UNCLOS. So they cannot
violate violations for illegal fishing because our
illegal fishing laws are not effective outside of
the first 12 NM. And for historical purposes, we
can all remember that the 12 NM is an
improvement of what used to be the Cannonshot Rule. Our territorial sea was only 3 NM,
which is the distance a cannonball can reach if
fired from the land. Thats why its referred to as
the Cannon-shot Rule.
JULY 24, 2013

CITIZENSHIP
During the Spanish regime, the native
inhabitants of the country were referred to as
the subjects of Spain or Spanish subjects.
There was no Filipino citizen or citizens of the
Philippines as a term at that time. The local
inhabitants who were native to the islands were
referred to as indios in the church records of
the Spanish Government.
When the Treaty of Paris was concluded in

December of 1898, the Treaty provided that the
civil rights or the Filipino status of the native
inhabitants of the islands shall be determined by
the US Congress. And in the Philippine Bill of
1902, which was the Philippine Organic Act
passed by the American Congress, the term
citizens of the Philippines first came about.
Those who were native inhabitants or all
inhabitants of the Philippine islands from April
11, 1899, who resided in the islands and who
opted not to preserve their allegiance to the
crown of Spain, also their children born
subsequent thereto, were considered citizens of
the Philippine Islands. So it was only during the
efficacy of the Philippine Bill of 1902 effective
July 2, 1902 that the term citizens of the

Philippines came about.
There was a bit of a problem for those born
between April 11, 1899 up to July 1, 1902
because there was no citizens of the
Philippines as a term. There was no law
existing at that time to determine the citizen
status of a person. So if a child was born
between the period from the adoption of the
Treaty of Paris or conclusion of the Treaty of
Paris up to the day before the Philippine Bill of
1902 was made effective, there was no
citizenship law in the Philippines. So for that
period of time, based on the decisions of the
Supreme Court, those born in the Philippines
were subsequently considered as citizens of
the Philippines subsequently because it was
based on Supreme Court decisions that children
born within that time in the country shall follow
citizenship acquisition on territoriality or jus soli.
So, for a period of time, the Philippines applied
the rule on acquisition of citizenship by place of
birth and not by blood relations.
When the Jones Law was made effective in
1916 or the Phil Autonomy Act, it practically
copied and adopted the definitions of citizens of
the Philippines under the Philippine Organic Act
or the Philippine Bill of 1902. So those who are
found or inhabiting in the country as of 11 April
1899 who continued to reside in the Islands and
who did not preserve their allegiance to Spain
were considered citizens of the Philippines.
This would include children born subsequent
thereto, and this would also include Spanish
nationals who remain in the Islands and who did
not preserve their allegiance to the crown of
Spain and remained here whether born in the
country (referred to as Insulares) or born in
Spain (referred to as Peninsulares) were
considered citizens of the Philippines.
In the 1935 Constitution, the Constitution
reiterated on our rule on the acquisition of
citizenship by reason of blood relations. We
have not followed jus soli except for that short
period of time from April 11, 1899 to July 1,
Page 16
1902. Before then and after, it has always been

acquisition by birth by reason of blood relations.
So who are the citizens of Philippines would
have to be based on the Philippine Bill of 1902
and the Philippine Autonomy Act of 1916 as well
as those which were enumerated in the 1935
Constitution.
of the determination of whether or not a person

natural born or not. For national offices, as
required in the Constitution, they require natural
born status. In your outline, there is a listing
there as to the eight positions starting with the
President and ending with the Commission on
Human Rights members who are required to be
natural born citizens:
1. President;
The 1935 Constitution provides for those who

are citizens of the Philippines:
1. those at the time of the adoption of the
Constitution as Filipino citizens;
2. (also, there is a special provision there
for foreigners) if a person is born of
foreigner parents but who at the time of
the adoption of the 1935 Constitution
was already elected to the public office
in the Philippines (elected and not
appointed) is also considered a Filipino
citizen;
3. those whose fathers are also citizens of
the Philippines;
4. those whose mothers are citizens but
fathers are foreigners who elected
Filipino citizenship at the age of majority
shall be considered citizens of the
Philippines;
5. (and finally) those who are naturalized in
accordance with law.
The same provision appears in the 1973 and in
the 1987 constitutions. It must be understood
that in the 1973 and the 1987 constitutions, if
you are a citizen at the time of adoption of any of
those constitutions, you will be considered a
citizen of the Philippines but that does not define
whether you are natural born or not natural born.
In the Constitution, there are only two
classifications of citizenship either you are
natural born or you are naturalized.
Now most of the questions in the Bar respecting
citizenship will be on the qualifications because
2. Vice-President;
3. Members of Congress;
4. Justices of the Supreme Court and
Lower Collegiate Courts;
5. Ombudsman and Deputies;
6. Constitutional Commission Members;
7. Central Monetary Authority Members;
and
8. Commission
Members.
on
Human
Rights
The term natural born was first defined in the

1973 Constitution which has been expanded in
the 1987 Constitution those who are citizens
from birth without having to perform an act to
perfect or acquire their citizenship are
considered natural born in the 1973. Because of
the children born under the 1935 Constitution of
mixed parents (Filipino mother and foreigner
fathers) who must elect Filipino citizenship upon
reaching the age of majority, they have to
perform an act to perfect their citizenship. Their
status was of questionable character under the
1973 Constitution. Thus, in the 1987
Constitution, the definition of natural born has
been expanded the child who had to elect
Filipino citizenship based on the 1935
Constitution is also considered a natural born
citizen. That is a curative law which is to be
applied retroactively to those children covered.
Page 17
So most of the problem areas with respect to

citizenship are those children under that
circumstance. In the case of Fernando Poe, Jr.,
the SC clarified that if the status of the child born
under the 1935 Constitution of Filipino mother
and a foreigner father is illegitimate (meaning
there is no valid marriage of the parents), under
our civil law, the illegitimate child must follow the
citizenship of the mother because she is or the
child is illegitimate. If the child however is
legitimate, the child follows the citizenship of the
foreigner father. And for this reason, the child
must have to elect Filipino citizenship upon
reaching the age of majority. Citizenship of the
child during minority will be that of the foreigner
father. Upon reaching the age of majority, if he
would opt or elect Filipino citizenship then he
would eventually become a Filipino citizen.
Election is made under Commonwealth Act No.
625 (CA 625) which is a 1941 law but which is
still good law. Election requires certain
formalities: 1.) the execution of sworn statement
or affidavit of the fact of election; 2.) the
execution or signing of the oath of allegiance to
the Philippine Constitution; and 3). the
subsequent registration of these documents with
the local civil registry, among others. These
requirements are supposed to be strictly
complied because there is only one form of
election and the election is formal thats why
the formalities must have to be executed and
complied.
There are several cases on the compliance of
CA 625 provisions on election. The first would
be on the matter of when should be the child
elect Filipino citizenship. When the Constitution
provides or requires upon reaching the age of
majority, it is not literally on the day of his 21st
birthday (which was the age of majority at that
time). It must have to be within reasonable time
he attains the age of majority. And based on a
DOJ opinion on the matter, three (3) years is
within the so-called reasonable time frame or
term.
However, in this case of In Re: Ching, 316

SCRA 1 (1999) (a bar passer who was
eventually not allowed to take his oath as a
member of Philippine Bar for having failed to
elect), the three-year period is not a hard and
fast rule. It could be longer than that, provided
the delay is justified and reasonable. But in the
case of Ching, which came about 14 years after,
the SC said that surely does not fall under the
term reasonable time. So three years is the
most common on reasonableness of time, but it
can be extended further, provided the delay is
justified or reasonable.
This case of Republic vs. Lim, 419 SCRA 123
(2004) this involves an illegitimate child where
the SC said that if a child is illegitimate, she
need not elect Philippine citizenship because
she is already a citizen by birth because the
citizenship of an illegitimate child follows the
citizenship of the Filipino mother.
Case of Ma vs. Fernandez, 625 SCRA 566
(2010) this involves children of the same
circumstance (Filipino mother and a foreigner
father under the 1935 Constitution) when they
reached the ages of majority, respectively, they
complied with the documentary requirements but
failed to register the same. Meaning, for one
reason or another, they just failed to submit with
the proper government office for registration. So
the question is: Is their election valid? The SC
said YES.
The special circumstance apparently that
sustains to grant them a valid election because
according to SC, registration is not the fact of
election. The fact of election (meaning electing
Philippine citizenship) is the execution of sworn
statement having chosen to become Filipino
citizens and the execution of the oath of
allegiance. Registration of these documents will
only confirm the fact of election. It is not the fact
of election itself. Besides the fact that they are
Filipino citizens is continuing; it is never lost,
being a child of or children of Filipino mother. So
they must have to be allowed; the SC said they
have validly elected.
Page 18
The case of Republic vs. Sagun, 666 SCRA

321 (2012), however tried to or somehow made
an additional requirement for electing Philippine
citizenship. There were a lot of issues here, one
of which was whether there is a proper
proceeding in court for the declaration of Filipino
citizen. Stated differently, can a person file a
petition in court to declare that he is a Filipino
citizen? The SC said there is none.
All petitions or proceedings in court require a
conflicting issue which is susceptible of judicial
determination. Such is not present in a petition
for a declaration that you are a Filipino citizen.
All citizenship issues that are resolved by the
court involve questions involving conflict of
claims. Thats why it is almost always in relation
to qualifications to public office because there is
a petition for disqualification. But if there is none
and you just want yourself to be declared a
Filipino citizen, there is no proper proceeding.
What the SC added as a requirement is that
apparently under CA 625, only a foreigner can
choose to elect. Meaning, you are a foreigner
because of your foreigner father. So the issue
on the requirement must have to be, according
to the SC, that you must have to have registered
yourself as an alien and therefore, you are
holder of an Alien Certificate of Registration
(ACR), and must have applied or has filed a
petition for the cancellation of the ACR. If there
is no such cancellation, seemingly, there is no
valid election.
But again, CA 625 simply requires those three.
The matter of the additional requirements the
SC may have stated Sagun could either be: 1)
an obiter because it is not required under CA
625; or 2) just a procedural matter which one
must have to comply with before he is allowed to
effectively elect Philippine citizenship.
Now this case of Vilando vs. HRET, 656 SCRA
17 (2011), involves a qualification of a member
of Congress, Limkaichong, who was born of a
foreigner father and a Filipino mother. When she
was born, the father was already naturalized as
a Filipino. Father was naturalized in September
of 1959 and she was born in November 1959.

We all know that in naturalization proceedings,
there is a two-year waiting period. When the
decision of naturalization is issued by the court,
it is not effective until the two (2) year waiting
period is over and complied with, and a
summary hearing is done to determine whether
the applicant continues to have all the legal
qualifications and none of the disqualifications.
So there was an issue on whether Limkaichong
is a natural born considering the questionable
status of his father on the validity of the
naturalization decree.
One of the issues here is whether it is within the
powers of HRET to rule on the issue of
citizenship of Limkaichong as a member of
Congress where it is collaterally attacked or
where the decision as to the naturalization of the
father has been collaterally attacked. SC said it
could not be done.
So it was correct for the HRET to presume that
the decision on the naturalization of the father
was valid and therefore, having been born of a
Filipino father at the time she was born even if it
was questionable then or questionable now, she
is a natural born citizen having been born of a
Filipino father.
These cases show invariably two (2) things:
1. There is a formal mode of election
based on CA 625;
2. There is also an informal mode of
election.
Informal mode some of these cases are In Re:

Mallare, 158 Phil 50 (1974), and Co v.
Electoral Tribunal of the House of
Representatives, 199 SCRA 692 (1991). [both
cases are not in the course outline].
In Re: Mallare was of the same kind born of a
Filipino mother and a foreigner father before the
1935 Constitution. When the child had to elect,
he elected also before the 1935 Constitution and
Page 19
therefore before CA 625 was even issued. So

the question of whether she had formally or
informally chosen or elected to become Filipino
citizen was ruled in his favor. The SC said that
the fact that Mallare had acted as if he were
Filipino (like in the exercise of the right of
suffrage, voting, running for office) would show
that he had informally elected Philippine
citizenship.
This was also subsequently referred to or
quoted in the case of Co v. Electoral Tribunal. In
Co, he was a member of Congress who was
also born of the same circumstance. But when
he was nine years old, his Chinese father was
naturalized as a Filipino. So when he reached
21, he did nothing. He did not execute the
documents required by CA 625. So the question
is: Was there a valid election?
There was an obiter and the SC said that he did
not elect formally because he had already
elected informally, citing actions which this
person during his majority age would show that
he had effectively chosen to become Filipino
citizen like he studied in Philippine schools
from childhood to college; he took up an
accountancy exam reserved only for Filipino
citizens; he voted; he run for public office and
eventually he was elected to Congress. All these
acts show that he had effectively chosen to
become Filipino citizen in an informal manner.
But these are obiter again.
The case of Republic v. Lim, 419 SCRA 123
(2004) is the same. The SC said she had also
performed acts to show that she had informally
chosen to become a Filipino citizen. While in the
case of Sagun, the SC said the court is not
ready to decide or to conclude that there is such
an informal mode of acquiring or electing
Philippine citizenship.
So the rule should only mean that there is no
other way but there is only a formal mode under
CA 625 in electing Filipino citizenship. There is
no informal mode. The reason why they are
considered to be obiter in those cases is
because those respondents or those persons
involved or subjects of those cases, need not

elect Philippine citizenship to begin with.
In the case of Mallare his election
before the 1935 Constitution and CA
election should not be covered
Constitution and any of the laws
election.
was way
625. His
by that
requiring
In the case of Co, when he was nine years old,

his father was naturalized as Filipino, in which
case there was no need to elect Philippine
citizenship upon reaching the age of majority.
Also the same in the case of Limkaichong in the
Vilando ruling. When a child born of the same
circumstance has derived the citizenship of the
father by reason of birth (meaning, foreign
citizenship) but whose father was subsequently
naturalized as Filipino also derives the
citizenship of the father as naturalized Filipino.
Having been considered to have a Filipino
father, then the child is considered to be a
Filipino citizen.
The problem with the matter is that they are
Filipino citizens, alright, but are they natural born
Filipinos? Again, the definition is that those who
are citizens from birth who did not perform any
act to perfect or acquire citizenship.
The question is the phrase from birth, does it
refer to: 1). Citizenship; or 2.) the fact that the
person does not perform an act to perfect or
acquire citizenship?
Say, Lebron James decided, with his American
wife, to come to the Philippines and live here
and decided to be naturalized as a Filipino. A
child born of that marriage before the grant of
naturalization is obviously considered to be not
Filipino. But because of the naturalization, they
are considered to have derived the citizenship of
father which is naturalized Filipino. Question: Is
that child considered natural born? What about
their children born after the naturalization decree
after he was naturalized? Is that child
considered natural born?
Page 20
Okay. Well go back to that later.
men to become Filipino citizens. So,

five years if married to a Filipino woman.
[LONG PAUSE ]
3. Character
Naturalization and Denaturalization
Naturalization proceedings in the country, there
are two (2) ways:
1. under judicial naturalization under
Commonwealth Act 473 (CA 473); and
2. administrative
naturalization
Republic Act 9139 (RA 9139).
4. Property
-
under
There are basically two (2) matters to comply

with: 1.) the substantive requirements; and 2.)
the procedural requirements.
In judicial naturalization, your mnemonics there
would be ARCPEN:
the applicant must have to be of legal

age
2. Residency
-
must have been a resident of the

Philippines for at least 10 years. This
can be lowered to five (5) years under
special circumstances. One of the most
common is if the foreigner applicant
male is married to a Filipino woman.
This is an example of a law which is
predominantly favoring men than
women
(Congress
being
largely
composed largely, if not all, of men). If a
Filipino male is married to a foreigner
woman,
that
foreigner
woman
automatically becomes a Filipino citizen
without going through any judicial
proceedings except just to execute a
document stating that she is not
disqualified by law. Because Filipino
men would want to marry foreigner
women. But they dont want their Filipino
women to marry foreigner men, thats
why they make it so difficult for foreigner
since this is an old law the requirement

on property is Five Thousand (PhP
5,000.00) worth of property. Anybody
could very well afford that now. And you
are even excluded from the PhP
5,000.00 property requirement if you are
engaged in some form of gainful
livelihood.
5. Education
1. Age
-
of course good moral character
refers to the minor children of the

applicant male. The minor children must
have to be schooled in Philippine
schools which teach among others,
Philippine
Constitution,
Philippine
government and the school must not
have been exclusive to foreigners.
6. Not otherwise disqualified by law.

-
So you have a list of disqualifications:

a. Persons opposed to organized
government or affiliated with any
association or group of persons who
uphold
and
teach
doctrines
opposing
all
organized
governments;
b. Persons defending or teaching the
necessity or propriety of violence,
personal assault, or assassination
for the success and predominance
of their ideas;
c.
Polygamists or believers in the

practice of polygamy;
d. Persons convicted of
involving moral turpitude;
crimes
Page 21
e. Persons suffering from mental

alienation or incurable contagious
diseases;
f.
Persons who, during the period of

their residence in the Philippines,
have not mingled socially with the
Filipinos, or who have not evinced a
sincere desire to learn and embrace
the customs, traditions, and ideals
of the Filipinos;
g. Citizens or subjects of nations with

whom the Philippines is at war,
during the period of such war;
treated differently if they are born here or born

outside and found here or found outside:
a. If they are born here and are here
during the grant, they are automatically
citizens;
b. If they are born here but were outside,
they are required to execute a document
indicating that they would want to
become Filipino citizens;
c.
h. Citizens or subjects of a foreign

country whose laws do not grant
Filipinos the right to become
naturalized citizens or subjects
thereof.
For procedural, there must have to be a filing of
a declaration of intention at least one (1) year
before the filing of a petition. And after that,
there will be the filing of the petition, hearing,
and then decision.
The purpose of the one (1) year period from the
filing of the declaration as a requisite for the
filing of the petition is to give the government or
the State sufficient lead time to verify the
qualifications and none of the disqualifications of
the applicant. When the decision is favorable to
the applicant, the decision will not become
automatically effective. It will have to wait for two
(2) years (the waiting period). After the two-year
waiting period, there is a summary hearing to
determine the qualifications and none of the
disqualifications. Thereafter the other procedure
will have to do with the ACR cancellation and
the issuance of the Certificate of Naturalization
to the applicant.
Before the wife shall be considered to have
derived the citizenship of the applicant husband,
she must only prove that she has none of the
disqualifications. The minor children will be
Those who are not born here and are

outside at the time of the grant of
naturalization, they must have to
indicate and file the necessary
document before the appropriate
government office where they are found,
that they would want to become Filipino
citizens; otherwise, they lose their
citizenship upon reaching the age of
majority.
Then for those children born after, they are

considered Filipino citizens because they are
now born of a Filipino father.
Under RA 9139 (administrative proceedings)
these are reserved for those who were born in
the country as foreigners. So the parents are
foreigners, they are born here and so they are
given the chance to become Filipino citizens
administratively.
The
same
substantive
requirements are applicable:
1. Age
-
must have to be legal age
2. Residency
-
must have to be residents in the

Philippines from the time they were
born. So the minimum residency
requirement therefore is 18 because
they must have to be here and stayed
here from the time they are born up to
the time the application is filed.
3. Property
Page 22
the same
the naturalized status, then he can be subjected

to denaturalization proceedings.
4. Character
-
the same
5. Education
-
refers to the applicant also. Meaning

from birth, he must have studied in
Philippine schools and these schools
must
have to teach Philippine
Government and Constitution.
6. Not otherwise disqualified by law

-
almost the same.
Procedurally, there is no declaration of intention.

The petition to be admitted as Philippine citizen
is filed with the Special Commission on
Naturalization which is with the DOJ and there is
not much hearing. All you have to do is pay (I
think there is a minimum fee of Forty to Sixty
Thousand Pesos per applicant). And you will
have to pay also for the wife and the children if
they are not Filipinos meaning that foreigner
born in the country is married to a foreigner also.
Because if that foreigner who is born in the
country is residing in the country since birth and
is married to a Filipino citizen, the children are
considered Filipino citizens if they were born
under the 1973 Constitution.
Going back to that question: Would the children

of Lebron James born before the grant of the
naturalized status and who derived the
citizenship, be considered a natural born? The
answer is NO.
But those children born after the grant of the
naturalized status of Lebron James and the
foreigner spouse who later are deemed Filipino
citizens, would be considered natural born.
So the phrase from birth should refer to the
fact of citizenship, and not to the fact of has not
performed an act to perfect or acquire his
citizenship. In all those circumstances where the
child is performing an act or has performed an
act to acquire or perfect citizenship, if one parent
is Filipino, that child is considered natural born.
But if there is no Filipino parent to talk about,
both parents are not Filipinos, even if the child is
to derive the citizenship of the parents who
eventually became Filipinos, since there is no
Filipino blood in it, he is not considered or would
never be considered natural born.
Laws on Reacquisition
You have Commonwealth Act 63 (CA 63). There
are seven 7 grounds provided for by law:
1. By naturalization in a foreign country;
Denaturalization
In
denaturalization
proceedings,
the
naturalization decree is revoked or annulled. It is
supposed to be filed with the same court which
granted the naturalized status. Now there are
grounds the grounds are provided in the same
law on naturalization and there is a disputable
presumption that if a person goes back to his
country of origin and stays there for one (1)
year, or in any place outside the country and
stays there for two (2) years, and this is done
within the five (5)-year period from the grant of
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 21 years
of age or more;
4. By rendering services to, or accepting
commission in, the armed forces of a
foreign country;
5. By cancellation of the of the certificates
of naturalization;
Page 23
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.
The first three are the most common
naturalization in a foreign country, subscribing to
an oath of allegiance to defend the Constitution
and laws of a foreign country, and when there is
express renunciation.
The other four grounds and the 7th ground are
no longer applicable. Under the 1935
Constitution, when a Filipino woman marries a
foreigner husband, if by the laws of the country
of the foreigner husband the Filipino woman is
considered to have acquired the citizenship of
the foreigner husband, then she is deemed to
have lost her Filipino citizenship. By reason of
marriage and operation of law under the 1935
Constitution, a Filipino woman may lose her
citizenship.
In the 1973 Constitution that has been changed.
Mere marriage does not result to automatic loss
of citizenship. A Filipino woman marrying a
foreigner husband can only lose her citizenship
if there is an act that she has performed that will
eventually make her lose her Filipino status. The
same is true in the 1987 Constitution. So mere
marriage will no longer result to automatic loss
of Filipino citizenship.
Naturalization to a foreign country is not so
difficult to understand. If the person has been
granted naturalized status in the foreign country,
automatically, he loses his Filipino citizenship.
Express renunciation or expatriation

In several cases (the old ones at least) the
cases of Yu vs. Defensor-Santiago, 169 SCRA
364 (1989) and Aznar v. COMELEC, 185 SCRA

703 (1990) these were the old cases on
express renunciation.
In Yu, he was a naturalized Filipino, who when
he travelled abroad on a business trip
represented himself to be a foreign national; he
never used his Philippine documents and never
represented himself to be a Filipino. And so the
SC, based on the decision of Commissioner
Santiago of the Bureau of Immigration and
Deportation (BID), said that there was express
renunciation renunciation that is not left to
ones inference, and is by reason of an act that
is clear renunciation of citizenship.
In the case of Aznar (involving the citizenship
status of former Cebu Governor Lito Osmea),
the SC said that the fact that a person is a
holder of an ACR, has registered as an alien
therefore issued an ACR, does not amount to
express renunciation, which was also part of the
ruling in Vilando. Her mother was registered as
a foreigner. Her mother was a holder of ACR.
The SC reiterated the rule that being a holder of
an ACR or that you have registered to be a
foreigner only proves one fact that you have
registered as such. It does not prove your
citizenship status. What it amounts to is that you
just registered as a foreigner. But whether you
are a foreigner or not is not determined by the
fact that you are a holder of an ACR.
Now in the case of Gov. Osmea, the reason for
that is his lineage was traced he is born of
Filipino father, he is a grandson of a Filipino
grandfather, and so he is a natural born Filipino.
This proves one fact as compared to the case of
Yu. If you are a natural born citizen, it would
take more evidence to prove that you have lost
your citizenship by express renunciation. But if
you are of naturalized status, considering your
citizenship status in the Philippines is merely a
grant or a privilege and not a birth right, your
acts may be construed and may constitute
express renunciation, even if in a natural born
citizen they would not be considered as such. It
would take less evidence to prove express
Page 24
renunciation for naturalized citizens than for

those of natural born status.
Now for reacquisition, the 1995 law which is
Republic Act 8171 (RA 8171) gives repatriation
proceedings to two (2) types of citizens:
1. Natural born Filipino women who
married foreigners who lost their
citizenship by reason of marriage. If the
marriage status or marital status has
been severed, she may opt to be
repatriated; and
2. Those natural born Filipino citizen who,
by reason of political or economic
reasons, were forced to be naturalized
elsewhere.
Then we have Republic Act 9225 (RA 9225), an
August 2003 law, which is the Dual Citizenship
Reacquisition or Retention Act which would
result to dual citizenship for those covered. They
cover natural born Filipino citizens who lost their
Philippine status by reason of naturalization to a
foreign country regardless of reason or those
who would eventually lose their citizenship
status because of naturalization proceedings in
a foreign country.
Now this RA 8171 was subject of the case of
Bengzon III v. HRET, 357 SCRA 545 (2001),
which ruling is still applied today. Going back to
my first premise, there are only two (2) types of
citizenship in the country: either you are natural
born or naturalized. There is nothing in between
more or less than that, because, in relation to
our definition of who are natural born, to
emphasize, from birth refers to citizenship and
not to the fact that the person has not performed
any act to perfect or acquire citizenship. If a
Filipino citizen (natural born, that is), has validly
repatriated himself to reacquire his Philippine
citizenship, again having lost it earlier, what he
reacquires is his former status.
In Bengzon III, he was a former natural born
who was naturalized in the US having served in
the army. He went back, repatriated under RA
8171, and the SC said he is natural born. Why?

Because when he successfully repatriated
himself under RA 8171, he acquired his former
status. What was his former status? Natural
born. So he reacquires his natural born status.
Question: Did he perform any act to perfect or
acquire his citizenship. The answer is YES; he
applied for repatriation. But even then, the SC
said the phrase should refer to your citizenship
from birth and not to the absence of
performance of any act to perfect or acquire
your citizenship.
You have the case of Sobejana-Condon v.
Comelec, 678 SCRA 267 (2012), which was
decided under RA 9225. This is relatively a
recent case. She was married to an Australian.
And because of her marriage she applied for
and was granted a naturalized status as an
Australian citizen. She came back in the country
in time for the 2007 elections, run for Mayor in
her town, but she lost, so her citizenship status
was never questioned. When she applied for
reacquisition under RA 9225, she basically
complied with the law she executed the sworn
oath of allegiance which is the only requirement
under RA 9225 (aside from the payment of
registration fees), and submitted it and filed it
with the appropriate government office.
What she did not comply was the requirement of
Section 5 thereof, where there is a special
qualification or requirement or condition for
those exercising political rights under RA 9225
in the Philippines. Section 5 requires, among
others, that if you would want to run for an
elective position you must have to execute, in a
separate document, a sworn statement
renunciating any and all foreign citizenship. If
you would be appointed to any government you
would have to execute a sworn statement
renunciating any and all foreign allegiances.
Is dual citizenship treated in our Constitution?
The answer is NO. It is treated in a provision in
the Local Government Code (LGC) as a
disqualification. So when she came back and
took her oath under RA 9225, her renunciation
Page 25
of foreign allegiances Australian citizenship to

be specific was never notarized. So it never
was compliant.
She ran again in 2010 and this time she won as
Mayor. So her citizenship was questioned on her
dual citizenship, because she continued to have
dual citizenship because of the absence of the
required sworn renunciation of any and all
foreign citizenship. It is opined that she is
disqualified because she is of dual citizenship.
The requirement of RA 9225 is simple just
execute the sworn statement. Her renunciation
not having been duly notarized does not comply
with the law, and the SC said failure to comply
with a very simple requirement under the law
means that she continued to have dual
citizenship which is a disqualification under the
LGC.
Final item under citizenship would be dual
allegiance as compared to dual citizenship. We
made mention that the Constitution does not
prevent or prohibit dual citizenship. What is
referred to in the Constitution is dual allegiance
which is inimical to national interest which shall
be dealt with in accordance with law. A person
can have dual citizenship and most of these
situations are involuntary. Well, not until RA
9225. In RA 9225, these are voluntary acts, but
because of that law, a Filipino can have dual
citizenship.
But before RA 9225, dual citizenship could arise
because of involuntary acts on the part of a
person, viz:
a. Because of the application of the laws of
two states a person may have dual
citizenship;
b. A person who is married to a foreigner
may be considered a dual citizenship
one as a Filipino and one of the
foreigner husband because of the
application of the laws of the country of
the foreigner husband;
c.
Children born of that marriage will also

become dual citizens;
d. If the person is born of Filipino parents

in a country which follows jus soli as a
mode of acquiring citizenship from birth,
then that child may become a dual
citizen.
The application of the laws of two countries and
such other acts are mostly involuntary, in which
it is not inimical to national interest and which
would not necessarily prejudice a person simply
because he is of such citizenship. But there are
special provisions in our law like qualifications to
public office that you must not be of dual
citizenship.
Dual allegiance on the other hand is viewed
from the perspective of the person. It does not
follow that a person of dual citizenship has dual
allegiance as well, because the application of
the laws of two states may make him a dual
citizen. But if he owes allegiance only to one of
these states, then he is not guilty of having dual
allegiance. Dual allegiance, again, has to be
viewed from the persons point of view which
refers to his loyalty to a particular state that is
inimical to public interest and which must have
to be dealt with, according to the Constitution, in
accordance with law.
We shall continue.
July 25, 2013

This calls for your understanding of the concept
of when is a case considered a suit against the
state.
A suit is against the state
When the republic is sued by name,
An unincorporated entity is sued,
Or a public officer is sued in an official

capacity.
Page 26
In any of these, the ultimate liability will rest

upon the state.
and Controlled Corporation (GOCC) with an

original charter.
If the result of the case will make the

government appropriate funds of the public
treasury or would have to give up public
property, then that is a suit against the state.
Conversely therefore, if the adverse decision will
not result in Congress appropriating funds or
giving up property, then it is not a suit against
the state.
There are 2 types of GOCC, one which is

originally incorporated under the corporation
code but which majority of shares of stocks have
been given to the state. Example: manila hotel
incorporated, a subject of manila prince hotel vs
GSIS,
The state is not suable for practical

consideration and based on the theory that there
is no violation of right against the state which
makes the laws for which the rights commenced.
For practical considerations, the state will have
to be immune from suit for it not to be
bombarded with cases.
Second is when the government creates a

corporation by enacting a law creating it and
providing funds thereof. So there is an original
charter in which case, one of the provisions of
the charter provides that the GOCC has the
capacity to sue and liability to be sued, the same
thing with your local government code RA 7160.
One of its corporate powers is the power to sue
and liability to be sued for which there is express
consent as provided for by that law.
Now, the state may be sued if there is consent.

Because it is a sovereign right, there must have
to be waiver or consent granted by Congress.
If you sue the state then you will have to through

CA 3082 otherwise it cannot prosper.
Express consent is in the form of law like in the

case of Meritt vs Government of the Philippine
Islands. In that case, Meritt figured in an
accident by a hospital ambulance. There was an
act entitled an Act authorizing E. Merritt to bring
suit against the Government of the Philippine
Islands and authorizing the Attorney-General of
said Islands to appear in said suit. This is an
example of an express consent made in the
form of law.
Other form of consent is implied consent. By

reason of the acts of the state, it is deemed to
have consented itself to be sued. The most
common is when it enters into proprietary acts.
The rule has been that it is not the fact that you
enter into contract but the nature of the contract
entered into. If it is in its government capacity
there is no waiver or consent. If it is business or
proprietary, then there is deemed to be consent.
The problem lies in distinguishing which is
government and which is not.
Now there is an old law Commonwealth act

3083 which is a general consent that allows you
to sue the state for any claims arising from
contract, express or implied.
Now that law requires claims to be filed first
before the Commission On Audit (COA), if the
COA does not have money to pay, then you
have to file a case in court. It is a condition
precedent that a claim be submitted to COA
before the court.
The other form of express consent is when the
government incorporates a Government Owned
Governmental acts are strictly those that are

required for government to exist, utilities are not
necessary they are merely for the convenience
of the public. So is it governmental? No because
even if there is no electricity, the government
can exist.
Apart from implied consent, there is also
consent when it would be inequitably for the
state to claim immunity.
What is the royal prerogative of dishonesty
(RPD)?
Page 27
The RPD is used when the state erroneously

claims immunity because it is dishonest for it
claim it. If the state therefore is going to claim
immunity and the court will find that it is
inequitable, then the court will rule that there has
been consent or waiver.
In cases of waiver of consent based on the rule
of equity, it is largely limited to actual
expropriation cases. We all know that under the
rules of court, that if the state would want to
expropriate, it has to file a petition for
expropriation and it has to make a deposit for
the initial value of the property and writ of
possession. First part is the determination of the
propriety of the expropriation. 2nd part is the
determination of just compensation.
But if the state actually takes property without
going through this proceeding, can the property
owner file a case against the state in order to
claim just compensation? Yes because even if
there is no consent that is express, that is
considered implied.
This action of property owner to claim
compensation is actually called inverse
condemnation.
An
action
for
inverse
condemnation does not prescribe by reason that
it is not based on the right under any law but
based on the Constitution. If it were based on
ordinary civil code provision then the
prescription rule applies.
rd
3 mode of implied consent would be when the

state initiates a complaint and when the state
seeks affirmative relief against an ordinary party.
In this case, the state is considered to have
been descended to an ordinary person and open
itself to any form of claims. It is not always that
the state is open to counterclaim if it initiates
litigation. There are other instances where the
state enters in litigation to claim an affirmative
defense of immunity. Here it is different because
the affirmative defense is precisely the states
claim of immunity. Therefore, it is not considered
implied consent.
Now, the scope of consent is only valid if it is

strictly a suit against the state. There is consent
express or implied is only valid from the initiation
up to the rendition of judgment. There is no
ordinary execution of judgment adverse of the
state where the sheriff goes to defendant and
seeks payment. What is to be done is still based
on the rules of COA. The adverse decision of
the state would have to be presented to COA,
COA will determine if there is money, if none it
will submit to the Congress for it to be included
in the appropriations bill, the congress may or
may not fund it.
Now, suability vs liability is simply a discussion
on what is the effect if there is no waiver.
If there is a waiver of consent, then you can sue
but that does not mean the state is liable.
Suability simply means that you have given the
opportunity to prove that the state is liable.
Liability is dependent on the facts or evidence
and the applicable laws of the case while
suability is dependent upon the lack or absence
of consent. Liability depends on the evidence
presented and the so called applicable laws of
the matter.
Municipality vs Judge
Municipal corporations, for example, like
provinces and cities, are agencies of the State
when they are engaged in governmental
functions and therefore should enjoy the
sovereign immunity from suit. Nevertheless, they
are subject to suit even in the performance of
such functions because their charter provided
that they can sue and be sued.
A distinction should first be made between
suability and liability. "Suability depends on the
consent of the state to be sued, liability on the
applicable law and the established facts. The
circumstance that a state is suable does not
necessarily mean that it is liable; on the other
hand, it can never be held liable if it does not
first consent to be sued. Liability is not conceded
by the mere fact that the state has allowed itself
Page 28
to be sued. When the state does waive its

sovereign immunity, it is only giving the plaintiff
the chance to prove, if it can, that the defendant
is liable." (United States of America vs.
Guinto, supra, p. 659-660)
Can you sue their public officers? Yes provided

it would fall under personal liability, if it is based
on official functions of the foreign officer and
there will be no consent, the case will not
prosper. If it is personal, the case can prosper.
In the case at bar, the driver of the dump truck of

the municipality insists that "he was on his way
to the Naguilian river to get a load of sand and
gravel for the repair of San Fernando's municipal
streets." (Rollo, p. 29.)
With respect to foreign officers, there are

conventions which would also reflect on the
effect of immunity on diplomatic relations.
1963 Vienna
relations.
convention
on
consular
In the absence of any evidence to the contrary,

the regularity of the performance of official duty
is presumed pursuant to Section 3(m) of Rule
131 of the Revised Rules of Court. Hence, We
rule that the driver of the dump truck was
performing duties or tasks pertaining to his
office.
In the diplomatic relations, the heads of mission,

ambassadors are absolutely immune from the
applicability of the laws of the host country. The
best to be done is a declaration of persona non
grata so he will be asked to leave the host
country. That is the extent of their immunity.
When a public officer is sued in his official

capacity, the ultimate liability is to the state. It
means that the damage resulting from the act
and incurred by the party is from the official acts
of the Public Officers. It must have been done
properly, not attended by conditions which would
take the liability way from the state like if he
acted in bad faith or negligently, was acting
outside of his powers. If any of these are
attendant in the acts complaint of, the liability will
rest on the public officers and not on the state in
which case it will not be considered as a suit
against the state.
Immunity on 1963 Vienna convention will only

be relative as to the Consul down to the last
officer. The consular officers tasked to provide
business and commercial works like visa, etc.
consular officers are relatively immune from the
application of the local laws for official duties in
relation to their consular functions. So if a consul
rents a house for his residence and has not
paid, he can be charge for unlawful detainer, or
ejectment or be asked to pay. Say your visa was
denied for the 5th time and you suffered
damages you cannot sue the consular officer
because it is his official function.
Sovereign Immunity of foreign states.
There are also some other immunities which

may be extended to some foreign entities
naturally or juridical by reason of certain
agreement, treaties or similar agreements.
Can they be sued in our jurisdiction? We follow

in the International Law the principle which
refers to equality among equals - the
Sovereign States should be equal that they
cannot be accountable to another sovereign
unless it violates peace among nations. While
we claim immunity in our jurisdiction it would
also follow the general discussion on Sovereign
immunity as if it were a case filed in the
Philippines. Before a sovereign can be sued
here, there has to be consent.
The first is the United Nations (UN), in line with

its creation after WWII.
The UN as an
organization and all offices under it are given
immunity. All of these and the officers can enjoy
absolute immunity form the applicability of the
laws of the host country. Not that they are
criminals that they would always commit
violations of the law,that they are supposed to
be given immunity. It is because of the nature of
their functions to prevent the host country from
Page 29
meddling, controlling and affecting the nature of

their functions.
the nature of the cause even if that will not

effectively remove him.
Nongovernmental organizations may also be

immunity from the applicability of the laws of the
host country but with respect to them there could
be a need to confer to the agreements as to
what is the extent of immunity. In most cases it
is relative.
After his incumbency, the president enjoys

relative immunity, he is not immune for nonofficial acts for those acts which resulted to
injury damage or similar other claims if these are
attended by abuse of power, he can be held
accountable after his incumbency, but for those
official acts properly done within the limits, even
if resulting to damage he will be immune from
suit even after his incumbency.
Asian Development Bank (ADB) is immune

except when it has to do something with its
banking functions so if a labor case is filed, it
can be dismissed considering the immunity
granted to it by the countries based on the
agreement.
Now. These conventions, treaties and
agreements can grant immunity but they are not
granted immunity because they are immune
under state immunity (SI). SI only refers to the
state and the officers acting for and in behalf of
state. Their immunities are brought about not
because they are representatives of the states
but by reason of these documents (treaties,
conventions) which the Philippines is a
signatory.
With respect to other officers, you also know that
there are those granted with immunity
Impeachable officers is immune from the suit
which would result to effective removal. No case
can prosper of that nature unless they are
impeached first.
A justice of the SC could not be charged
administratively for disbarment because one of
the qualifications of a justice is that he should be
a lawyer and if a disbarred, automatically
therefore he would be removed.
President is an impeachable official so he enjoys
that immunity. Nonetheless, he enjoys immunity
different altogether from other impeachable
officers. The president is immune from any suit
during his incumbency regardless when the
cause of action has existed and regardless of
Lets go to Congress
CONGRESS
Composition nothing much there perhaps the
only discussion with respect to it is domicile, it
has always been the subject of many cases.
There seems to be difficulty in understanding the
term residence is domicile. Domicile means the
place where you establish your residence and
even if you are absent, you have the intention of
returning (animus revertandi), and the intention
is permanent (animus manendi).
Principles of domicile
-
There is only 1 domicile of origin.
Domicile can be changed from

origin to a new one if those
conditions are satisfied, there has to
be an actual change from old to
new, the intention is in good faith,
performance
of
many
acts
consistent with that intention.
Minor children will always follow the

domicile of their parent that is their
domicile of origin. If they are now of
the age of majority 2 things: 1. They
will maintain Domicile of Origin or 2.
They could get or have a new
domicile (domicile of choice)
A wife or husband in any case, in

compliance with the family code
Page 30
provision in establishing conjugal

home and dwelling, can necessary
have another actual residence but
this does not necessarily mean a
domicile of origin or domicile of
choice but actual residence. In
Romualdez vs Comelec, she has
never lost his domicile of origin
because that is where she will return
whenever she wants.
-
A person can only have one

domicile either domicile of origin or
domicile of choice.
Cases:
MITRA vs COmelec
-
Such assessment, in our view,

based on the interior design and
furnishings of a dwelling as shown
by and examined only through
photographs, is far from reasonable;
the COMELEC thereby determined
the fitness of a dwelling as a
persons residence based solely on
very personal and subjective
assessment standards when the law
is replete with standards that can be
used. Where a dwelling qualifies as
a residence i.e., the dwelling
where a person permanently intends
to return to and to remain his or
her capacity or inclination to
decorate the place, or the lack of it,
is immaterial.
Assistio vs Aguirre
-
The address in the COC was non

existence
Domicile is not easily lost. To

successfully effect a transfer
thereof, one must demonstrate:
(1) an actual removal or

change of domicile;
(2) a bona fide intention of

abandoning
the
former
place of residence and
establishing a new one; and
(3) acts which correspond

with that purpose.
There must be animus manendi coupled with

animus non revertendi. The purpose to remain in
or at the domicile of choice must be for an
indefinite period of time; the change of residence
must be voluntary; and the residence at the
place chosen for the new domicile must be
actual.
-
Asistio has always been a resident

of Caloocan City since his birth or
for more than 72 years. His family is
known to be among the prominent
political families in Caloocan City. In
fact, Asistio served in public office
as Caloocan City Second District
representative in the House of
Representatives,
having
been
elected as such in the 1992, 1995,
1998, and 2004 elections. In 2007,
he also sought election as City
Mayor. In all of these occasions,
Asistio cast his vote in the same
city. Taking these circumstances
into consideration, gauged in the
light of the doctrines above
enunciated, it cannot be denied that
Asistio has qualified, and continues
to qualify, as a voter of Caloocan
City. There is no showing that he
has established domicile elsewhere,
or that he had consciously and
voluntarily abandoned his residence
in Caloocan City. He should,
therefore, remain in the list of
permanent registered voters of
Precinct No. 1811A, Barangay 15,
Caloocan City.
Page 31
That Asistio allegedly indicated in

his Certificate of Candidacy for
Mayor, both for the 2007 and 2010
elections, a non-existent or false
address, or that he could not be
physically found in the address he
indicated when he registered as a
voter, should not operate to exclude
him as a voter of Caloocan City.
These purported misrepresentations
in Asistios COC, if true, might serve
as basis for an election offense
under the Omnibus Election Code
(OEC), or an action to deny due
course to the COC.39 But to our
mind, they do not serve as proof
that Asistio has abandoned his
domicile in Caloocan City, or that he
has established residence outside of
Caloocan City.
July 29,2013
PARTY LIST SYSTEM
In the decision in the Ang Bagong Bayani
case, which was one of the landmark rulings in
the Party List Systems Act, the Supreme Court
was able to interpret supposedly who are
entitled or allowed to participate in the party-list
system election. The case main point (nah, di
kaayo nako ma-klaro, Sorry kaayo) guideline
has been changed in the 2013 case of Ang
Atong Paglaum vs. COMELEC, and the
companion cases, a ponentia of Justice Carpio,
the following are the rules now:
o
National, regional and sectoral

parties and organizations can
participate in the party list systems
elections;
National and regional parties do not

need to represent the marginalized
and underrepresented;
Political parties can participate

provided they do not fill candidates
in the legislative districts except
when they do so under the sectoral
wing which must have to be
separately registered as such;
Sectoral
parties
represent:
may
either
marginalized
underrepresented, or
those lacking in well-defined

political constituencies.
and
It is not required that both must have to be

represented;
(Take note: Ang Bagong Bayani case vs. Ang

Paglaum case)
Apparently, in the Ang Bagong Bayani case,
parties must represent both those marginalized
and underrepresented, and lacking well-defined
political constituencies. In Ang Paglaum case,
either and not both.
Majority of the members of those representing
the marginalized and underrepresented sector
must belong to the marginalized and
underrepresented
sector
they
represent.
Majority of the members of those representing
the sector lacking in well-defined political
constituencies must also belong to those lacking
in well-defined political constituencies sector
they represent.
This practically settles the issue of the
qualification of a party list nominee, which prior
to this Ang Atong Paglaum case, according to
Father Bernas, must have to satisfy the
ideological requirement. The Constitution simply
provides for the qualification of nominees as if
they were district representatives. The only
difference would be:
Page 32
RESIDENCE - They are not required to be

residents of that district because they are not
district representatives but they must have to be
residents of the Philippines.
THOSE
REPRESENTING
THE
YOUTH
SECTOR They must have to be up to the age
of thirty (30) only. That was the ruling in the
case of Amores vs. HRET where Villanueva,
representing CIBAC, was allowed to finish his
term despite the fact that he was already more
than 30 or he was to represent a party before he
was 30 but he became 30 during his term.
That would only be the difference.
In the Ang Bagong Bayani case, there was a
sitting requirement of what Father Bernas called
as Ideological Requirement: either you must be
a member of that sector or you must have to
represent the ideology. In the Ang Atong
Paglaum case, the nominee need not be
provided the majority of the members of that
party belong to the sector he represents. The
nominees of these sectors must belong to their
respective sectors or must have a track record
of advocacy for their respective sectors. That
calls the ideological requirement. And, finally,
any party shall not be disqualified, if some of its
nominees are disqualified, provided, at least one
nominee is qualified.
Under the Party List Systems Act, there
must have to be a list of five (5) nominees to be
submitted to the COMELEC in connection with
the registration and intent to participate in the
party list systems election. The nominees must
have to be qualified.
In the Ang Atong
Paglaum case, the Supreme Court said, there
is only a need for one (1) nominee to be
qualified even if four (4) of the nominees are
disqualified. The party cannot be disqualified
due to that fact of disqualification of four (4)
other nominees.
Now, in relation to other cases
BANAT vs COMELEC, a 2009 decision, settled
also but was supposed to have it interpreted in
the Veterans Manpower case before on the

allocation
of
seats
in
the
House.
Constitutionally, there is a requirement of 2% to
be entitled to a one to one seat in the lower
house while there is a maximum of three (3)
seats for every party. In BANAT ruling, the SC
clarified that the 2% requirement (2% of the total
number of votes cast after the party list) is only
required for the purposes of giving a party what
is known as guaranteed seats.
So, the
composition or the allocation of seats would
follow this procedure:
First, 20% of the seats of the lower house must
have to be determined. The 20% is
constitutionally required to be reserved for partylist representatives.
That 20%, after it has been determined the
number of guaranteed seats, meaning, those
parties which are listed from top to bottom,
meaning, the party with the most numbered of
seats as number one, the party with the least
numbers as the bottom party will have to be
given their guaranteed seats based on the 2%
requirement.
The number of guaranteed seats shall be
deducted from the 20% allotted for the party list
system and what should remain is referred to as
the remaining seats.
Now, the remaining seats shall be given to direct
on the parties listed from top to bottom again
based on their percentages. The percentage will
be determined by, if I gave the number of votes
garnered by the party with the total number of
votes cast in the party-list, the percentage will
then be determined from the remaining seats
and if the party is supposed to be entitled by one
seat following the rule that there should be no
rounding off to the higher number, then, even if
a party has not garnered at least 2%, it will be
entitled to a seat in Congress. Of course,
because of the number of votes garnered by the
top parties, they would be entitled to additional
seats from the remaining seats based on their
percentages, and we follow the maximum
Page 33
allowable seat for the party, the rule is not more

than three (3).
Then, the parties which have not garnered 2%
have been entitled to one seat under this 2009
ruling.
The basic question, however, if whether the
three-term limitation applies because we have
been told that the three-term limitation applies or
follows what is known as the elected and serve
rule. Now, originally in the 2007 elections, we
follow the 2% requirement. If a party has not
garnered at least 2% of the total number of
votes cast under the party list systems election,
it was not entitled to a seat. It was only in 2009
in the Banat ruling that everything had changed.
So, the question is, for those parties which
originally
were not entitled to seats but
eventually in the 2009 decision were entitled to
seats, are these parties and their respected
nominees are covered by that three-term
limitation? Some members of Congress under
the party list who were benefited by the Banat
ruling, is of the opinion based on the COMELEC
opinion also that they are still entitled to another
term in the 2016 elections, that will have to be
seen and finally settled the cases filed that we
mention.
This case of Abayon vs. HRET, which was
reiterated in the case of Layog vs. COMELEC,
questions involving eligibility and qualifications
of parties registering and joining in the party list
elections, the issues there would have to be
under the jurisdiction of the COMELEC: eligibility
or qualifications of the party. If it is the eligibility
or qualification of a nominee, initially, it would be
in the COMELEC, but as we all know, once the
party has been declared a winner and its
nominee or nominees, proclaimed by the
COMELEC, then, the jurisdiction lies with the
electoral tribunal. I supposed you have been
made aware, you have read that in the news for
the last couple of weeks, the issue involving a
certain representative Reyes of Marinduque and
a son of a sitting justice in the Supreme Court,
Velasco. For all those cases that you may have
read regarding the jurisdiction of the HRET and

the COMELEC with respect to qualifications of
candidates, starting with the case of
Romualdez vs. COMELEC, the ruling has
consistently been, once that candidate has been
proclaimed despite the fact that he has not yet
assumed office because June 30 has not yet
come to pass, jurisdiction lies with the electoral
tribunal. But in the case of Velasco and Reyes,
the SC, although the decision is still under
motion for reconsideration, has said that the
jurisdiction is still with the COMELEC.
Apparently, Reyes was not qualified being an
American Citizen, and so the COMELEC which
proclaimed her earlier, nullified and revoked her
proclamation
and
eventually
proclaimed
Velasco, the son of Associate Justice Velasco.
(Associate Justice Velasco is the third most
senior; the chief justice being the most senior;
Antonio Carpio as being the second most senior.
So, third is Velasco.) We will have to wait the
resolution of the Supreme Court on that motion
for reconsideration because that will totally alter
the previous rulings and rule that once a
candidate has been proclaimed as winner to sit
in the House of Representatives, or Senate for
that matter. Remember the case of Barbers vs.
Biazon? When Biazon was proclaimed as
winning senator on that 12th seat, the case of
qualification or lack of qualification filed by the
protestant was supposed to have been lost in
the COMELEC because jurisdiction now lies
with the appropriate electoral tribunal.
What else? This case of Lokin vs. COMELEC
involves an issue on the petition to change to
include him as a party list nominee. His name
appeared in the first list, CIBAC, but Villanueva
filed another list or submitted another list where
the name of Lokin do not appear. So, Lokin filed
a petition with the COMELEC and ask the
COMELEC to reinstate him as the second
nominee because CIBAC is entitled to 3
nominees. Eventually, CIBAC won and was
entitled to 3 seats. The issue of who shall be
the 2nd or 3rd nominees was still unsolved, so,
which has the jurisdiction- the COMELEC or the
Electoral Tribunal? The COMELEC continued to
Page 34
decide on the issue and eventually it went to the

SC under Rule 63 in relation to Rule 65. So, the
question is whether the COMELEC had or the
SC had jurisdiction in the question of jurisdiction
between the COMELEC and the Electoral
Tribunal because if the decision was of the
COMELEC was invalid for lack of jurisdiction,
the issue must have to be resolved by the
Electoral Tribunal and eventually it will end up
with the same SC. As to where it should come
from was the basis of this issue, and then the
SC said that it is with the COMELEC because it
is not an election protest. The petition of Lokin
with the COMELEC was not to question the
qualification of the person who was made as
nominee but it is a question of him being the
supposed correct or proper nominee since
based on party list systems act, once a list has
been submitted to the COMELEC, the list cannot
be changed or the order of the name in the list
as well as the list itself cannot be changed
unless for valid causes. Normally, the valid
causes would be based on these:
1. You have been removed from the party for
valid causes;
2. You have voluntarily resigned from the party
for which reason you should not represent
the party;
But, for sure, just a mere change of the names
as submitted for the list to the SC would not be a
valid change of the order of the list or the names
appeared on the list.
Okay, I think Ang atong Paglaum is the most
significant decision of the SC with respect to
party list.
ELECTIONS
There is not much with the election provisions in
the Constitution that has not changed. Perhaps
the only thing important to remember there is the
need to call for a special elections if there is a
vacancy.
When can a special elections be held in the

House of Senate or in the House of
Representatives? There supposed to be a ban
on period where a special elections is banned to
be called,
or it should be called on the
succeeding regular elections. What is the time
frame? 12 months? 18 months? It is supposed
to be 18 months.
Now, also, there is no need for the notice in
case there is special elections for purposes of
complying with the rule on notification.
Generally, if there is a special elections, the
public or the electorate must have to be
informed by the notice of general publication that
there is a special elections to be conducted.
However, if a special elections is supposed to
be called to fill up a vacancy where in the House
of Senate, not in the House of Representatives,
say, there shall be 13, remember the case
involving Gringo Honasan where he was the
number 13 candidate and the SC had
maintained that there was no need for a general
notice because the special elections was
conducted in or simultaneously with the regular
elections. And because the regular elections is
already covered by law and the Constitution,
there is no need for prior notice to the public.
SALARIES,
PRIVILEGES
DISQUALIFICATIONS
AND
In salaries, well, the only thing to remember here

is that there is no prohibition on the decrease of
their salaries during their term. What is
prohibited is the increase of salaries during their
term. Now, a law increasing their salaries is not
prohibited per se. But it is prohibited if that law is
taking effect during their term. Their terms of
office, singularly taken, must have to expire, and
the understanding is that, it is understood
singularly both in the Senate and in the House of
Representatives. There should have been no
problem except that because of the
synchronization of elections, the terms of office
Page 35
of those first elected to the House of Senate was

shortened to 1992 - from 1988 up to June 30,
1992. Those were of the first elected. Then,
there was this extension for the Lower House
from 1988, it is extended to, still the same noon
of June 30, 1992. These are full terms even if
for the lower house longer than 3 years; for the
house of Senate shorter than 6 years. For the
top 12 in the 1992 elections, they shall serve a
full term of six years. For the lower 12 or bottom
12 in a 1992 elections in the Senate, they shall
serve for a full term of 3 years. And every 3
years thereafter, we elect 12 senators to sit for a
full term of 6 years. So, at any given time, there
will be some senators, at least 12, whose terms
of office will not end simultaneously with that of
the lower house. So, if a law on increase will
take effect, that must have to be considered.
When would that terms of office of all the
members of the Senate approving the increase
will have to expire before the increase of their
salaries will have to take effect?
FREEDOM FROM ARRESTS

The benchmark is not more than 6 years
imprisonment, and of course, it presupposes
that the penalty has not been reached or
breached for purposes of the --- of freedom from
arrests.
These cases of JALOSJOS and
PIMENTEL highlight the nature of this privilege
which is to grant members of Congress
continued legislative function in order not to
deny
their
constituents
democratic
representation of office.
SPEECH AND DEBATE CLAUSE

There was a question asked when Tito Sotto
was accused of having plagiarized portions or
part, if not, the entire speech during the debates
on the RH Bill. Is he liable for such plagiarism?
Well, if he would like to claim his privilege under
the right of speech and debate clause, he could
not be held accountable outside. Of course, we
all know that while they enjoyed this privilege,

they will not be liable for any of those remarks or
statements while Congress is in session. They
can be held liable in Congress. So members of
Congress can, as their own peers, discipline
their member for what is known as disorderly
behaviour. 25:06
The evolution of this privilege has set to grant
members of Congress more of this in the current
Constitution because the phraseology, places,
the time of ---- when Congress is in session.
Under section 15, sessions of Congress begins,
when? 4th Monday of July, and shall continue
until the so-called mandatory adjournment, 30
days before the opening of the next regular
session exclusive of Saturday, Sunday, and
legal Holidays. So, for the entire duration,
except perhaps on temporary recesses,
members of Congress can enjoy the privilege.
Unlike in the previous Constitution, there was a
requirement that members of Congress must be
going to a session, while attending a session or
is coming from a session before they can enjoy
the privilege, now, for the entire duration of the
sessions.
QUALIFICATIONS,
INCOMPATIBLE
FORBIDDEN OFFICE
AND
These qualifications, incompatible and forbidden

office, jurisdiction there in incompatible office is
one which a member of Congress cannot take if
he does not forfeit his seat in Congress while a
forbidden office is one which cannot be taken by
a member of Congress even if he would forfeit
his seat in Congress because the office was
created during his term or emoluments thereof
of increase during his term.
These 2 cases of Liban and Gordon speak of
residency of Gordon in the Philippine national
territory. Is the PNRC positions considered to be
an
incompatible
office
because
the
incompatibility arises from the fact that it is a
GOCC? These cases would show that PNRC is
Page 36
not a GOCC but is supposed to be an entity SUI

GENERIS. It is not part of government and it is
not GOCC even if it has an original charter in the
Philippines. So, there was no incompatibility.
INTERNAL GOVERNMENT, ELECTIONS OF

OFFICERS
While it is excepted from this incompatible office

is what is known as ex-officio positions, and
when you say ex-officio, it means by reason of
the office. There is no new appointment required
because, if there is, then that is not ex-officio.
There is only designation. The idea of, being
that, the additional task is simply included in the
primary function of the office. Importantly, there
must have to be no additional benefit,
renumeration, salary or wage if you call it for a
member of Congress if he takes that ex-officio
position. Other prohibitions in relation to duty to
disclose, members of Congress do not have
prohibitions altogether except if there is a
financial interest with the government. Being in
business is not a prohibition but if there is a
financial interest of a member of Congress with
the contract with government or with respect to
any action which requires his intervention as a
member of Congress, and there is a financial
interest, then there is a prohibition.
The old case of Santiago vs. Guingona just

explains the concept of election in a plurality
where there are many candidates as there are
many parties. The concept of majority vote
means the most numbered. It is not the usual
concept of majority in a fixed number where it is
required to be more than half because, again,
there are many candidates to minor parties. It
does not follow that those who did not vote for
the majority, or the president for that matter, will
automatically become a minority leader as it is
because again there are many parties or
minority parties, the minority leader is supposed
to be elected from among the minority party
members. Like in the 16th Congress now in the
House of Representatives, the minority leader is
Rep. Zamora of San Juan, the one who ran
against him is Rep. Martin Romualdez of Leyte.
Since there are many from the minority parties,
they have to elect, from among them, who shall
become a minority leader.
Also, for professions, technically, there is no

prohibition for a member of Congress to practice
his profession except for lawyers appearing as
counsels in any of the courts, tribunals, including
the electoral tribunal. On the belief, in theory,
that members of Congress can or will influence
over persons deciding in cases pending before
these bodies. As to business interest, there is no
need to ----, there is only a duty to disclose, and
the duty to disclose is general, applicable to all,
where members or officers and employees of
government must have to disclose their Assets,
Liabilities, and Networth in compliance with the
RA 1319 of the Anti-Graft and Corrupt Practices
Act.
Also, if there is, according to the
Constitution, a possible conflict of interest... So,
if there is no possible conflict of interest brought
about by authorship in a proposed or internal
legislation, there is no duty to disclose required
from the members of Congress.
QUORUM
Quorum is required before a House of Congress
can perform any act with legal implications as
representative body. A number, smaller than a
quorum, can perform acts with legal effects but
limited to: one, adjourning the session on a day
to day basis, and; two, to compel the attendance
of members by imposing sanctions in
accordance with their rules of -----, they could
not do much, but those two acts falls.
Quorum is determined by a number, which is
more than half of those ----- of that number, that
this house concerned has been in jurisdiction
over... that has been explained in the old case of
Avelino vs. Cuenco where one member of that
Senate was out of the country, the other
member was in a hospital but was not in
attendance in the Senate. There were only 22
Page 37
of them. So, the quorum shall be based on 23

because one is in the Philippines where the
House of Senate has jurisdiction over so since
there were 12 in attendance who voted on that
questioned act, 12 is more than half of 23. There
is a quorum. The act questioned is supposed to
be valid.
RULES OF PROCEEDING
Each house shall determine the rules of its
proceedings. These cases will just tell you that,
even if there is no provision in the Constitution,
giving each house the authority or power to
promulgate its own rules of its proceedings. The
SC has set, by reason of ex-- necessity, these
committees or Houses of Congress have the
power to promulgate their own rules of
proceedings. Discipline of members is a rule.
Limitation on votes if the penalty is suspension
or removal, there shall be a limitation on the
period of suspension. Again, this is in relation to
the need for the constituents to have continued
democratic
representation.
What
the
Constitution does not provide, however, is what
should constitute disorderly behaviour.
So, we go back to the basic question, if
Congress or a House of Congress determines
an act to be disorderly, and therefore would be
penalized accordingly, can that be subject to the
review of the Supreme Court? No problem with
the constitutional limitation from vote, as well as
the period of suspension, because those are
provided for in the Constitution. But what
constitutes disorderly behaviour is largely
independent on the determination of the house
concerned, and it may change from a numbered
congress to the other, say, the 12 Congress has
defined these acts as constituting disorderly
behaviour where they would merit these
penalties, the next numbered Congress and the
next and the next can always change them
subject to their own discretions.
JOURNAL
RECORDS
AND
CONGRESSIONAL
The discussion there is on the enrolled bill

theory and the probative value of the Journal.
The bottom line answering that if the matters are
required to be indicated in the Journal according
to the Constitution. In your outline, there is a
listing there: the votes of the third and final
reading of the bill; the veto message of the
President; the votes from the re-passing of a bill
vetoed by the President; the votes on any
questions on the request of 1/5 of members
present, and; summary proceedings. In these
matters, the Journal entry would always prevail
because they are constitutionally required to be
entered and recorded in the Journal.
But when the question involves what the law is,
then the enrolled bill would always prevail. Of
course, we have seen a lot of cases that you
come across, so many of them, where the SC
had to go to the Journal Entries to try to get an
interpretation on what the provisions of law
means. But again, these are secondary sources
for the court to determine what the provision of
the bill is but that is not binding on a law
because what should be binding on the court
would always be the words and phrases as they
appear in the enrolled bill. If there is an issue on
what the bill or what the law is, the enrolled bill
would most prevail than that of the Journal.
SPECIALS OR REGULAR SESSIONS
This 1966 case of Guevarra vs. Inocentes just
highlights the principle that there is only one
Congress. When one house of Congress is not
in session, the other House cannot perform its
legal or cannot perform its functions as well as a
general rule that is why the Constitution requires
that if one House is in session or adjourned for
more than 3 days, it should inform the House so
that the other House knows when to adjourn. In
Inosentes, the SC, in that case, ruled that when
one House is already in recess or as adjourned,
automatically the other House would also
adjourn, and therefore, there will be no session
of Congress to be considered because
Page 38
Congress will function if both houses are in

function.
SPECIAL SESSIONS
The Constitution says that special sessions can
be called at anytime but technically it will only be
called if Congress is not in regular session or is
not in actual session because it is in a recess or
on a temporary --- but it is worded in a way that
it can be called anytime and there are provisions
there which would tell us when there will be
special sessions or a period of call. The most
important provision is when there is a vacancy in
both the offices of the President and VP. There
is a need to enact a law calling for a special
elections so that need of call Congress must
have the ------------------. Also, when there is a
declaration of martial law or suspension of the
privileges of the writ, in order to receive the
report of the President on such declaration or
suspension, it is required that Congress, without
need of call, must have to convene in session to
receive such report.
JOINT SESSIONS
In your outline, there is a listing when there is a
Joint Session and there are 6 instances where
they will be in Joint Sessions. The presumption
is, even without the Constitution stating it, even
in Joint Session, the voting shall always be
separate highlighting the separation or the fact
that there are 2 types of Congress that they
regularly check each others acts. Even in the
normal legislation, one bill is passed by , it is
sent to the other House for its consideration, that
is, there so-called checks and balance. So, even
if the Constitution is silent, the presumption is
they shall vote separately. There is only one
session which is held jointly and the voting is
supposed to be joint and this is when the
President declares Martial Law or Suspension of
privilege of the writ. This is based on the
experience of the past where the numbers may
not be reached because there would have been

arrests and detentions made in the order of the
President and Members of Congress. In order
to avoid the possibility that there will be no
Congress to receive the report of the President,
and thus, cannot exercise the discretion or
power to revoke or nullify the declaration or
suspension made by the President at the onset
then the voting shall be joint so that in the
ordinary understanding they can have the
numbers or muster the numbers to revoke or
nullify the declaration by the President.
ELECTORAL TRIBUNAL
Now, the discussions on electoral tribunal has
always been, with respect to its powers and
most of the cases, at least recently, would have
to refer to the jurisdiction of the COMELEC and
jurisdictions of the electoral tribunal. In the
Constitution, it is quite clear that it is just
involving qualifications, elections and returns of
the members of Congress shall be under the
jurisdiction of the electoral tribunal, and their
power is supposed to be exclusive and because
of the use of the term sole Judge of all these
contests.
Now, what is meant by the term Elections? So,
anything that has something to do with the
election of that member of Congress falls under
the jurisdiction of the electoral tribunal.
QUALIFICATIONS
Is the issue on a quo warranto proceeding an
issue on qualifications? Is a quo warranto over a
member of Congress under the jurisdiction of
the electoral tribunal? So, quo warranto is either
qualifications or acts of disloyalty to the State
that would still fall within the jurisdiction of the
electoral tribunal.
The composition has been settled. The only
thing that has to be discussed there is the socalled Legislative component which shall be
filled up based on proportional representation.
Page 39
This matter of proportional representation has

already been settled. This is based on actual
membership in a particular party. They do not
refer to ordinary or nominal alliances. Like, in
todays Congress, we have always heard of this
term, the Makabayan group composed of 7
representatives belonging to various party-list
organizations. They are not considered a party.
They are in aggrupation of members of
Congress belonging to separate parties. So,
proportional representation again is based on
actual membership. And still following the same
rules, there is no more grounding up to give
more representation to some and thereby
depriving representation to the others.
NATURE,FUNCTION: QUASI-JUDICIAL
It has sometimes been misunderstood that the
electoral tribunal exercises judicial function
because it is acting as the sole judge on all
those contests mentioned. But we all know that
judicial power is only exercised by the courts
under Article 3, section 1. So, at most, it is
exercising quasi-judicial function.
JUDICIAL REVIEW OF ITS DECISIONS

Based on the theory of independence of
electoral tribunal, it is independent from
Congress despite its legislative component. It is
also independent from the court despite its
judicial component. It is also independent from
the parties which nominated them to sit in the
electoral tribunal. This was highlighted in the old
case, Bondoc vs. Pineda, where one of the
members of Congress in dissenting the majority
party sitting in electoral tribunal was forced to
resign from the electoral tribunal or forced to be
removed because the party which nominated
him considered his membership terminated for
acts of disloyalty. SC clarified that the member
of a party can be removed from a party, thereby,
removing in the electoral tribunal on acts of
disloyalty for certain causes except voting
against a partys interest. For example, in the

articles and by-laws of a party, non-payment of
your annual fees, failure to attend 3 consecutive
general assemblies or any other acts of
disloyalty to the officers or whomever report in
the party can be considered acts of disloyalty
causes to remove him from the party, thereby,
eventually removed him from the electoral
tribunal. But voting against partys interest in the
electoral tribunal should not be contemplated.
Now,
because
of
that
independence,
supposedly, the decisions of the electoral
tribunal are final and non-appealable. But,
again, because of our concept of judicial review,
decisions of electoral tribunal may be reviewed
by the courts if judicial review is proper and the
conditions are present and there is a need for
report to review decisions of the electoral
tribunal.
The case of Layog VS. COMELEC, as
mentioned earlier, this was just a reiteration of
the case of Abayon vs. HRET. This involves
Mike Velarde and Buhay Party-List where the
question was on whether the COMELEC or the
electoral tribunal had jurisdiction. The first
question raised was Buhay Party-List is
disqualified to participate in the party list
elections because it is representing the religious
sector, which is a sector identified in the law as
not allowed to join. Second, the qualification of
Mike Velarde. It appears however that MV is the
5th nominee of Buhay, and Buhay Party-List
got the maximum 3 seats. So the issue is,
whether the COMELEC has jurisdiction on these
issues, or whether the electoral tribunal has.
Again, if the question is on eligibility or
qualification of a party, then the jurisdiction is
with the COMELEC and remains with the
COMELEC even if the party has been given
allotted seats after elections.
If it is the
nominee, then once there is a proclamation of
the party, thereby proclamation of the nominees,
it goes with the electoral tribunal. But because
MV did not sit because he is the 5th nominee, he
is not a member. So, electoral tribunal has no
Page 40
jurisdiction. COMELEC continues to have

jurisdiction of the qualification issue of MV.
Jalosjos vs. COMELEC is a ruling on the
jurisdiction of the COMELEC once a candidate
has been declared a winner. The qualification of
Jalosjos was questioned with the COMELEC but
the elections went through. Jalosjos was
proclaimed a winner.
The issue of his
qualification has not yet been settled. So, the
decision, eventually, was questioned. It should
be transferred to the jurisdiction of the electoral
tribunal.
Please take note of the case of Jovilla vs De
Venecia (12/10/2002.) I think this case was the
same as the case of Velasco and Reyes,
because in the case of Jovilla vs. De Venecia,
the candidate who ran against Jovilla, a certain
Locsin, she was earlier proclaimed as the
winner.
But the COMELEC nullified her
proclamation, and eventually proclaimed Jovilla.
Here, the SC said, the jurisdiction with respect to
the qualification of Jovilla is still with the
COMELEC. So, the COMELEC decision to
proclaim Jovilla was correct because the
proclamation of Locsin was supposed to be a
patent nullity from the beginning.
The case of Velando vs. HRET on review of
decisions of the COMELEC. We have taken this
up on the issue of citizenship. It is the same with
lin kai chong ruling and this is just to reiterate
the principle that the decisions of the HRET,
though they are supposed to be considered
complete in itself, final, can always be subjected
to judicial review on proper cases. They are not
immune from judicial interference if the court, in
the exercise of its so-called extraordinary
jurisdiction to determine whether the electoral
tribunal has acted with grave abuse of
discretion, they can actually review decisions on
the electoral tribunal.
AUGUST 1, 2013
So we ended up with Commission on

Appointments. Before we go to the power of
Congress. We've taken up matter of quorum and
the requirement on voting. Based on your
outline, based on your Constitution, the ff are the
quorum and majority voting required:
Election of Officers
Majority vote
To suspend or expel a
member
Qualified 2/3 votes
____ with less than

suspension
or
expulsion
Simple majority
To declare existence of
state of war
2/3 votes
session,
separately
Emergency
powers
granted
to
the
President
Simple majority
Choosing of President
in case of a tie, when
Congress acts as a
canvassing body
Simple majority in joint

session,
voting
separately
in
joint
voting
To decide an issue of
Presidents temporary
incapacity during his
term of office
2/3 votes
session,
voting
in joint
separate
Confirming the choice

of the member of
Congress to become
Vice President
Simple
involving
voting
majority
separate
To tackle the report of

the President when the
President
exercises
Commander-in-chief
powers
Majority
session
When
Congress
concurs in an amnesty
proclamation
Simple
majority
required and with
concurrence of 2/3
votes of Senate
in
joint
Page 41
Now, general plenary powers of congress. The

Grant of legislative power to congress is general
or plenary subject to the limitations as may be
provided for by the Constitution. There are
basically 2 general groupings so to speak on
limitations,
substantive
limitations
and
procedural limitations.
The procedural nothing much has been
changed except perhaps for what we know as
the Bicameral conference committee. We refer
to it as the third house of congress. This is not
found in the Constitution but based on legislative
practice, the bicameral conference committee
composed of members of both houses, those
who are interested in the passage of certain
legislations, will have to meet
1 when there is a conflict in the versions of the
bills coming from both houses in order to
harmonize them; or even if there is no real
conflict but there is a need to refine or fine-tune
the language or phraseology of the intended
legislation, then the Bicameral conference
committee may have to convene to come up
with the third and the final version of the bill.
In relation to the bicameral conference
committee, the practice of the bicameral
conference committee would be the provisions
on the Constitution on limitations on passage,
the so-called no-amendment rule. When a bill
is passed by one house and it is thereafter
submitted to the other house for consideration,
can that house amend the approved legislation
or bill?
The Constitution prohibits that if there is already
a final draft coming from that house. We follow
the no-amendment rule. The final draft as
approved by bicameral conference committee
does not violate the no-amendment rule
because there is technically no nominal voting
when the passage of the final draft coming from
the Conference committee is approved by both
houses.
As early as the case of Arroyo vs. De Venecia,

when the final draft of the approved version from
the bicameral conference committee is to get
proof?, there is no voting required. Simple
passage of the approved measure for lack of
any objection or opposition is considered the
approval of the final draft It does not also violate
the rule on 3 passages because most houses
have already tackled their respective versions of
the bill but which have been subjected to the
discretionary exercise of power by the bicameral
conference
committee.
The first of the ___ following limitations would be
all those in your Bill of rights. We have to
understand that the Bill of Rights is where most
of the limitations of State power may be found.
Thats why by intent and not by accident, the
phraseology, almost all the provisions on the bill
of rights starts with a negative word "no" to
emphasize that these are limitations on
Congressional power. So no law can be passed
in violation all those specific provisions under Art
3.
We also have Sec 25 and 28 of Art 6 with
respect to taxing powers and use of government
funds. Sec 28 has been asked in bar
examinations where the OWWA under the
DOLE has paid the priests celebrate Sunday
Mass for Filipino domestics in HongKong. Is the
payment of the salary of the priests celebrating
mass valid and constitutional? The answer is
supposed to be NO because when the priest is
to be paid with public funds or chaplains or
pastors, they must be paid because they are
employees of the government rendering
religious services for those penal institutions, but
not
in
any
other
capacity.
Art 14 sec 4, that would be the educational
institutions and all the rest under Art 6, Sec 29,
30
and
31.
In implied substantive limitations, most of the
discussions would be on non delegation of
legislative powers. We are taught that delegation
of power is the exception because the rule is
Page 42
non delegation. The authority exercised by the 3

big branches of the government is supposed to
be delegated to them already by the people in
their sovereign capacity so that they are
exercising is not power of origin for which they
are not allowed to delegate it further unless
there is what we know as allowable delegation.
In allowable delegation, there are 2 tests: the
Completeness of statue test and the so-called
Sufficiency of standard test. In completeness of
statutes, which is one of the very first rules on
allowable delegation of Legislative power, when
the law leaves Congress, the law is supposed to
be complete in itself. Delegate only implement
what law says. But because of modernization of
life, society or activities ofand demands of
society require more specific legislation, there
have been more instances where Congress will
allow a specific government entity to exercise
the discretion in filling in the details of the
intended legislation. So what the allowable
delegation requires would be that the law, when
it leaves Congress, would have to have
sufficient limitations ______ delegates properly
exercised is discretion to fill in the details.
skills and technical knowledge that they are

supposed, in theory, to have. Congress is not
expected to know all these specific details in
terms of legislation to address the particular
human activity. So these administrative
agencies have been created by law and given
these special functions for which delegation by
the Congress to them to fill in the details of the
particular legislation affecting their offices would
be the norm and not the exception. So, unless
there is really an exercise of abuse, because
admin agency has provided for a rule in relation
to the law to implement it, which would provide
more than what the law has allowed it to do,
then these rules and regulations would have to
be considered as consistent. This is also called
your Subordinate Legislation. Subordinate
Legislation is simply the rule-making power of
admin agencies pursuant to a valid delegation of
power. There are 3 conditions there: 1. the rules
and regulations must not be contrary to the
Constitution, 2. it must not contrary to law; 3. it
must have to be consistent to the intent of the
delegated
power.
To find sufficiency in the limitations, the ideal is

that is it must be in one legislation. An old
example would be your Labor code provision
which allows RWTB (Regional Wage Tripartite
Board) the power to fix minimum wage whereas
before, min wages come by form of direct
legislation but because it is to much delay by
Congressional deliberations or debate if the law
is to be passed fixing minimum wages every so
often, Congress enacted law amending our
Labor code providing the power to fix minimum
wages by regions by the RWTB. If you read that
section in the Labor Code, there are certain
factors to consider, or guidelines to consider,
just like your guidelines in fixing bail, on how the
minimum wages per region will have to be fixed.
It is not congress fixing the amount per se but
only they delegate. In so many administrative
bodies, this has been the case because
administrative bodies are supposed to be
entrusted the authority to implement the law
affecting their respective offices because of their
Implied substantive limitations. This so-called

allowable delegation also has been provided in
your Constitution. Delegation of the president.
This is what is known as your emergency
powers and a reading of that provision, when
there is grant by congress gives sufficient
standards. Because the provisions of the
Constitution defines the limitations of the
emergency powers of the President. It must
have to be granted by Congress. It must have to
be for a limited period. It must have to be
necessary to implement and declare martial law
policy.
It is also provided for in delegation of the people

under sec 32 art 6. We made mention that it is
established that the power to legislate originates
from the people in their sovereign capacity. But
because of our republican or representative
system of govt, the sovereign people had
actually delegated the power to legislate to
Congress. So in that sense, supposedly under
Page 43
Sec1 of Art. 6 , it is not the entire legislative

power that has been delegated to congress.
There is a certain portion of that which has been
reserved to the people in their sovereign
capacity. But because the Constitution requires
congress (under Sec 32) to provide for enabling
law where the people can exercise their power
to legislate through initiative or referendum. It is
in a sense again delegated to the people. Under
Sec. 1 there is supposed to be reservation but
under Sec 32, it is supposed to be considered
as delegated authority. So much as congress
has allowed the people to exercise initiative and
referendum, this law has provided for the
sufficient standard for the people to exercise
their power to legislate.
Delegation to local govt. It has been traditionally

believed that this is the only law or the exercise
of power which is not based on a specific
provision of law. Traditionally. Because under
the Local government code of 1991, there is
already a general grant by congress to LGUS
through their councils the power to exercise
legislative power .Before that, it has been largely
believed that the delegation to LGU on the
power to legislate has been allowed as a timeimmemorial practice because of the necessity of
LGUs to provide for local legislation because
they are best-equipped of the knowledge and
factors to consider in coming up with any local
legislation Again, RA 7160 has, in express
terms, allowed LGUs thru their legislative
assemblies, the power to exercise delegated
legislative
powers.
The 2nd implied limitation there would be
prohibition against passage of irrepealable laws.
You may have come across certain laws which
are valid and effective for a specific period of
time and after such period of time it loses its
effectivity. That is not an example of a law which
cannot be repealed. That is just a self-limiting
law where after a certain period of time, it would
ordinarily lose its effect or efficacy. What the
Constitution prohibits is that a law cannot be
repealed by any future Congress because
legislative power (general and plenary in

character) includes the power not only to pass
new laws but to pass a new law repealing the
previous one. All laws therefore by nature, are
subject
to
repeal
by
future
actions.
In relation to that rule-making power of the
admin agencies, when congress delegates the
power (what is known as subordinate legislation)
to a particular government agency, the grant of
power is supposed to be complete. Congress
cannot withhold the power to approve, or make
these rules effective dependent upon the
approval of congress. That is known as
INWARD-TURNING LEGISLATION. That has
been the subject of the case of Abakada
vs.Purisima, 2008 case where the Supreme
Court has said that when congress entrust the
power to delegate under subordinate legislation,
the efficacy of the rules (provided they complied
with the 3 conditions on the propriety and
legality of these rules) would make these rules
effective without congress approving them
initially because if that were so, it is referred to
as inward-turning legislation which is
unconstitutional.
Congress has 3 oversight functions:
1. Scrutiny
2. Congressional investigation
3. Legislative supervision. This 3rd one, the
legislative supervision, is what is known
as
inward-turning
which
is
unconstitutional.
We shall take up the 2 later on when we
reached the items respecting their oversight
functions.
Ok. The procedural limitation. Again, there is
nothing much to that. 3 meetings on Saturdays
and there must have to be printed copies of the
final draft for the 3rd reading where voting will be
had. So 333 and if once passed, this shall be
referred to the other house for their
consideration. This requirement on the 333 can
Page 44
be dispensed with if the President certifies it as

urgent. But to be technical about it, what can be
dispensed with are readings on separate days.
There should be 3 readings still: reading of the
title, reading on the second part, which is the
deliberation ___, and concessions are taken on
the final provisions. As proof, there shall be
printed copies to be passed to the members for
their voting on 3rd reading. So it can be done in 1
day because the bill is certified as urgent. Of
course you cannot do away with the
deliberations. You cannot do away with the
voting. There is one case where sc said even
the printed can be dispensed with if there is a
certification of urgency and congress will vote
even without the final draft in written form and
that the written form can just be made later. The
problem with that proposition, I think, is what is
there to vote on by members of congress?
There must have to be a written draft of the final
draft of the bill. So again, while the SC said
everything can be dispensed with, I would
surmise that there should be at least a printed
version where eventually the signatures of the
responsible officers of that house and on both
house eventually would be affixed to consider it
as an enrolled bill. Otherwise, if everything is
verbal, there be no written copy, there is nothing
to present to the President for his signature
because there is no enrolled or certified copy.
Now, question hour and ___ investigations are
part of the power of Congress but I mentioned
earlier, as part of their Oversight functions.
Under the first, Scrutiny, Congress regularly
scrutinizes the executive or other branches
through the budget hearings. When the budget
is up for deliberations in Congress, all the
activities of all offices of the government,
including the Judiciary and the Constitutional
Commissions, are subject to the scrutiny of the
congress. In todays newspapers you may have
read that the President would want that even the
expenditures in the SC to be posted online
including the disbursements of the JDF (Judicial
Devt Fund) there are many funds when you
file a case that you are going to pay to the court
and some, or all of these funds are subject to
the discretion of the SC. The President does not

want to do that. The expenditure would be kept
from the public and he would want that all of
these would be posted online in the SC website
for everybody to see. One of the first reactions
coming from the Sandiganbayan Justice was
that everybody will know how low judges are
paid. He said that on the averages, judges are
paid P70,000 a month salary. So it would be an
open invitation for those who would want to
bribe judges to go to them because they are
only receiving P70K. Years ago, you may not
have remembered that there was this 349 case.
Pepsi Cola Bottling Company had this contest.
You just open the cap and theres number and
you win a million pesos. One of the winning
numbers in the cap was 349 and there were like,
let us assume 10k winners at 1M each, how
much would that be? Sabihin natin 1B n lng.
There are only 15 justices of the SC. If you are
Pepsi, you promise them 10M each, times 15,
magkano lng un? 150M. May savings ka pa.
Much more if you put in a website how much
these judges are receiving, again open invitation
against those who would want to corrupt the
system because you are only receiving so much.
I dont know whether that would be included by
Congress in the final approval of the
appropriations
bill
for
2014.
Part of legislative scrutiny, oversight function,
would be your question hour. This section 22 on
question hour was a new addition to the 1987
Constitution so that there has not been much
cases on this until the concept of executive
privilege came about because of what GMA had
done in relation to the members of the cabinet.
One of the most familiar cases would be the
case of NERI, where for the first time the
concept of executive privilege has been
subjected of SC decisions. Its original concept,
Sec 22, was supposed to grant congress the
power to require over heads of executive
departments to determine what the problems of
the dept is, to allow congress probably, or
perhaps, to come up with some form of check
control with the powers of exercise of power of
these agencies. In fact the concept of question
Page 45
hour was almost brought to SC way back

because of the question of: Can the OMB be
called by congress in its committee hearing to
determine whether the OMB was favoring some
and not doing its job really to be the OMB? That
question came about because there were
allegations that members of Congress were
lobbying with the OMB when the OMB was then
Desierto on cases favoring them. If you
remember the most recent case you were aware
of, that OMB case of the father or
Representative Niel Tupas. His father was
supposed to be governor of Iloilo and then
charged with the case and the end result was
that Corona was impeached. That was the end
result of everything, to make the long story
short. But it did not come to pass because
Congress then, at the time of Desierto, did not
proceed with calling Desierto to Congress to
testify. But the first question asked then was:
when would Desierto be subjected to, under Sec
21 on legislative investigation or Sec 22 on
question hour? Question hour is quite specific. It
is referring to heads of exec dept but in our
system, question hour is patterned after the US
Constitution or the US practices where they
have a strict tripartite system of government.
They dont have an OMB there. They dont have
Commissions on Audit, Elections and Civil
Service. Because these offices are ____ of our
Constitutional provisions are just part of the
Executive offices. They are not constitutionally
given the independence and autonomy because
unlike here, we must have to give them
independence and economy for a clear case of
check and balance. Otherwise, if they be put
under the Executive branch, which really, for all
legal intents and purposes by nature, theyre
performing executive functions. At most, if there
is a power to resolve issues, its quasi-judicial.
We are afraid in this country that the President
will be able to influence them unduly. As if,
under the President set-up, they are not being
influenced. Anyway, that was not raised and so
there was no question resolved. The question
now, if it comes again to that point, is can the
OMB
be
called
by
Congress?
Then came this Executive Privilege concept

where members of the cabinet can now be
called to congress not only in Question hour but
they can be called in legislative investigations. In
legislative investigations, as opposed to
question hour, any person can be called. In
Question hour, only those matters pertaining to
the respective departments of the head who is
called to testify can be asked. In Legislative
investigation, any question can be asked
provided it is as issue or question which
Congress has jurisdiction over. And what issue
does Congress have no jurisdiction over, when it
can have jurisdiction over almost any human
activity? But what probably is surprising now is
that with this Janet Lim Napoles issue, there has
been no resolution passed by Congress that
would call for the investigation of the entire
thing. At most, there have been resolutions filed
calling for investigations on SPECIFIC
expenditures, not the entire 10B scandal
because they dont want everybody to be
dragged into because most likely, everybody will
be dragged. __________ and his companion
has filed a resolution calling for the investigation
of the pork barrel expenditure of Rep. ___ of the
Third District of Davao City. At least
magkaibigan sila. D masyadong madugo
yanAbout the entire 10B peso scam,
everybody seems to be quiet but if there is any
other issue which would not concern them but
which would give them free media publicity, they
will conduct investigation everyday because
youre broadcasting ___. Remember that issue
on the Pajeros. The Bishops were given Pajeros
by GMA. Everyday. This pork barrel scam, there
is no resolution filed calling for investigation of
the entire thing because they probably dont
want to touch the issue of pork barrel.
With that issue on the NERI cases and similar
others,
the
concept
of
inquiries
in
____legislation has been expanded to include
also those subjected, or thought to be subjected
only to Question Hour by heads of the executive
department. They cannot refuse a subpoena by
Congress or a committee thereof to attend and
testify on a legislative inquiry under the claim of:
Page 46
they can only be asked under question hour or

they are covered by executive privilege. They
can only refuse to answer specific questions
which would violate executive privilege.
Executive Privilege (EP) as a concept has
evolved in the US based on the need of
congress to aid in its legislative function and in
relation of the right of the people to information.
It is the device or guise used to aid the executive
and on the other hand, to refuse to give in to the
demands. They use the EP so that they will not
be compelled to divulge anything to the public or
to Congress for that matter or to the courts, until
that case of Nixon the Watergate scandal
came to pass and their thinking of EP has
changed altogether. So it should not be a reason
for refusing to new information if what has been
discussed is supposed to be amounting to a
crime. However, they tried to deliberately define
what is crime to be committed actually. A
specific discussion on possibilities that might
amount to a crime. Its just like a lawyer-client
relationship. If the discussion would be on the
commission of a crime in specific terms and
supposedly not covered by the privilege. But if
there is a discussion on POSSIBILITIES or let
us say, theoretically what if, then it might be
covered by the privilege. Same thing with the EP
concept, more so in foreign relation. You dont
suppose that, say the most powerful President in
the whole world, the US President, would say,
what if we bomb Cuba? What should happen?
To bomb Cuba is a crime plus to discuss it in
that manner may be covered by the privilege
because these are only possibilities to come up
with certain discussions.
In the Philippines, based on the NERI rulings,
there are 2 considerations on EP. First would be
the Presidential Communications Privilege and
the second would be the Deliberative Process
Privilege. This would be discussed again when
we reach your Freedom of Information.
Communications Privilege because this would

reflect the discussions leading to presidential
decisions. While the Deliberative Process
Privilege is more of a general advisory generally
on government decisions and policies. It may
not be on the President but if it were to be ____
with, or of or by the President covered by the
Presidential Communications privilege, then the
EP would be given to the President. It also
covers what is know as the Proximity Rules. You
may not be a member of the cabinet but if you
were included in the deliberations and by reason
of proximity, you are part of the discussion
leading to the presidential policy or decision,
then you are covered by the EP. You can refuse
to answer, not refuse to attend an inquiry by
Congress but refuse to answer specific
questions which would be covered under the
Presidential Communications Privilege.
This case of Gudani vs Senate. A relatively old
case but this also is only the claim of EP where
the SC said if it were to be a military officer who
would be called to congress, they can refuse not
because of EP per se but under the CHAIN OF
COMMAND RULE. The commander in chief
being the president, can order any subordinate
(for obvious reasons everybody will be
subordinate military) not to attend any inquiry
and the subordinate being the soldier is
supposed to follow that command because of
the peculiar structure of the military. The chain
of command rule can prevent or prohibit the
subordinate officer from attending any inquiry,
much more divulging any information. Again, this
is not based on the claim of EP per se, but
because of the peculiar structure in the military,
subordinate
officers
should
follow
the
commands of the superior officer. There is no
other superior officer more superior than the
Commander in chief being the President.
Other non-legislative powers of Congress.
1. Act as canvassers
Under these two concepts, there would be

protection of EP granted to the President if it
were to be covered by the Presidential
2. To call for special elections for the

President and VP
Page 47
3. Revoke or extend suspension when the

President exercises his Commander in
chief powers, Congress has the first ___
at it.
4. To approve Presidential amnesties.
5. Confirm certain appointments
Now in our discussion on Commission on
Appointments we only went through the
specifics of it, the composition and its basic
function is executive in character. Executive
because it serves as an extension to the
appointing powers of the President. For those
officers mentioned in the first sentence of
section 16 of Art 7 of the Constitution, they need
to be confirmed by the CA. So when Congress
exercises its powers under the Commissions on
Appointments, they are not exercising legislative
power. It is non-legislative because it is
executive in character. As of July 30, 2013, the
Commission on Appointments has finally been
convened. The 12 members of the lower house
were finally submitted to the Senate President
because he is supposed to head the
Commission on Appointments so by July 30, we
now have Commission on Appointments.
Other discussion in the Commission on
Appointments would be your ad interim and
regular appointments. Ad interim technically are
those appointments extended by the President
for positions falling in the first sentence of Sec
16 but are extended when Congress is not in
session. The CA functions when Congress is in
session thereby conversely, if Congress is not in
session, the CA ought to have been_____. If the
appointment therefore is not among those listed
in the first sentence of sec 16, even if Congress
is not in session, that is not an ad interim
appointment. While ad interim means recess
appointments
or
literally
mean
recess
appointments, the term recess does not refer to
the time that the appointment was made solely.
It must also refer to the nature or the position
that the appointment is made for because if the
position is not again covered by the first
sentence of sec 16, regardless of whether
Congress is in session, that is not ad interim.

Also in your outline theres the case of Pimentel
vs. HRET. That is the question on ad interim and
acting appointment. Basically, the question of
Pimentel as Senator was this: can the President
extend acting appointments for those officers
falling in the first sentence of sec 16 and not
extend to them either regular appointments
when CA is in session (Congress is in session
therefore CA is in session) or ad interim
because Congress and therefore the CA, are not
in session? Because what the President did was
just extend an acting appointment. Supposedly
according to Pimentel, so that the appointment
cannot be subjected to the CA confirmation. If its
ad interim falling in the first sentence of Sec 16
and Congress is not in session, eventually that
appointment would be submitted to the CA.
Acting appointments on the other hand, need
not be submitted to the CA because they are
made in an acting capacity. The intent of
appointing somebody to a position under the first
sentence of Sec 16 submitting it to Congress
through the CA is to make that appointment
permanent. In an acting, SC said it can never
become permanent.
Is that not an abuse of discretion on the part of
the President in extending acting appointments,
instead of ad interim or regular appointments? Is
it not an abuse of discretion in avoiding the
scrutiny of the CA of those appointments? SC
said, if there is no grave abuse of discretion,
then acting appointments are perfectly valid. The
appointing powers of the President are generally
executive and largely discretionary. Congress
and the SC cannot impose upon the Presidents
appointing authority to make call appointments
either ad interim or regular. Even if the position
falls under the first sentence of Sec 16, if the
President does not ___ this person who he will
appoint will become the permanent appointee,
can always extend an acting appointment to that
person, subject further to the authority of the
President to make another appointment, this
time regular or permanent. So unless there is a
pattern showing that the grant of acting
appointments are made to avoid scrutiny by the
Page 48
CA, the court is not ready to rule that there was

an exercise of grave abuse of discretion.
provided for the standards by which the

President can exercise emergency powers.
Finally, in the Commission on Appointments, or

appointments, would be in your nature of the
rule on bypassing and the act of CA in rejecting
the appointment. If an appointment is bypassed
by the CA, can the President reappoint that
person? Yes. Bypassed because Congress
refused to act on the nomination. But if
Congress had already rejected that nomination,
say, Mr so-and-so appointed as Secretary of the
Department of Agrarian Reform. His nomination
was bypassed. Can he be re-nominated to the
same position? Yes, up to ad infinitum. If
however Congress to the CA had already
rejected that nomination, he can no longer be renominated to the same position. Im placing
emphasis on THE SAME because if person A
has been nominated to the Dept of Agrarian
Reform, rejected by the CA, can he still be
nominated and appointed to the DPWH? Yes,
because the rejection of the CA was for him to
become the Secretary of the Agrarian Reform,
but not necessarily to the DPWH. Your most
recent example was Secretary Angelo Reyes,
until he shot himself. After getting out of the
military, our Chief of Staff was appointed to
different positions, always bypassed until he was
with the Dept of Energy. Wla naman cyang
maperahan sa Dept of Energy.
Be the judge for the Presidents physical

fitness or incapacity this is a new provision
in the 1987 Constitution which empowers the
congress to decide whether or not the President
is temporarily physically incapacitated to
discharge the functions of his office.
Ksi ang nagkakapera sa Dept of Energy, un lng

naman 5 families in the Philippines. Lets
continue next meeting.
This will happen if [Congress] or the President

will contest the declaration of his incapacity by a
majority of the members of his cabinet.
Now, Power of Impeachment. You have a new
case here, the case of Corona vs. Senate.
Now, the list of who are subjected to
impeachment is EXCLUSIVE. So, you have the
President, Vice-President, Supreme Court
justices,
Constitutional
Commissioners,
Ombudsman.
The grounds, there are six (6). Treason, bribery,
culpable violation of the Constitution, graft and
corruption, other high crimes, betrayal of public
trust.
Treason, bribery and graft and corruption are
defined by law. The other three grounds are yet
to be defined.
Just like in the power of Congress to discipline
its members or their own peers for so-called
disorderly behavior, the determination of the
three other grounds for impeachment will be
dependent upon the Senate.
August 5, 2013
RE: LEGISLATIVE FUNCTIONS
The third duty under Section 21 in the House of
Senate the Declaration of War and
Delegation of Emergency Powers.
These are Constitutional examples of a valid
delegation because the provision itself has
Now, these two cases of Francisco and

Gutierrez, these involve the matter of the oneyear ban under the rules of impeachment in the
Constitution.
Supposedly, the impeachable officers cannot be
subjected to an impeachment proceeding more
than once in a period of one year.
Page 49
Now, when shall the one year period commence

to be computed?
We follow what is referred to as the Filing and
Referral Rule. It is not the date of filing which
determines whether the one year ban has
commenced to run. It is when the complaint as
filed has finally been referred to by the House of
Representatives appropriate officer, who is the
Speaker, to the House for inclusion in the
calendar.
If the impeachment complaint has not yet been
referred to the House by the official action by the
Speaker, then the one-year period has not yet
commenced.
So, there may be several complaints filed, and
the other complaints may not be barred simply
because not one of these complaints has been
referred to the appropriate committee which is
the Committee on Justice and Good
Governance.
As to the consequences of impeachment, the
impeachment court referred to as the Senate
cannot impose any penalty except for removal if
there is a finding of liability. Of course, it also
carries with it perpetual disqualification. There is
no imprisonment, no damages, etc. because it is
not an ordinary court of justice.
But once the officer is impeached, that officer
will now be subject to any and all criminal cases
which will subject him to criminal liability.
RE: LEGISLATIVE PROCESS
Requirements as to bills. The only matter to
discuss there perhaps would be requirements on
certain bills xxx. This is because there has a
question on certain bills which originate from the
Lower House appropriations, revenue, tariffs,
bills of local application, private bills they must
originate from the lower house.
answer is YES. There can be a Senate version

which is considered to be anticipatory of the
House version that can be filed in the Senate.
What cannot be done by the Senate as a body
in anticipation of the receipt of these bills
originating from the House is for the Senate to
act on the bill.
While those bills must originate from the Lower
House, the Senate must have to receive the
approved version of the Lower House before it
can act on their own version.
There is no prohibition on an anticipatory bill
being filed but not acted upon in the Senate.
We have already taken up the Bicameral
Conference Committee rules what it is
supposed to do,
And in relation to the power of the Senate on
these bills which originate from the Lower House
when the Constitution requires these bills must
originate from the Lower House and that the
Senate cannot act on their own version pending
receipt of the approved version of the Lower
House, it does not preclude the Senate when it
is its turn to pass on the legislation to make its
own version. Because when the Constitution
says that the Senate can make amendments
thereto, it does not preclude the Senate from
modifying the entire bill and coming up its own
version totally different from the Lower House,
though on the same subject matter.
So, for example if it is a revenue bill which is
approved by the Lower House, the Senate can
at its own time approve a totally different version
of that revenue bill.
The same thing with the bicameral conference
committee bill.
The report, which is the
approved version of the bicameral conference
committee need not be the same as that passed
by either or both houses.
The question is can there be a corresponding

version in the House of Senate filed? The
Page 50
When there are conflicting versions coming from

both houses, we said that the bicameral
conference committee is empowered by tradition
and practice to come up with a harmonized
version of these two bills.
To come up with a harmonized version of these
two bills does not require the bicameral
conference committee or prevent or limit its
authority in really harmonizing conflicting
versions.
It could come up with a totally different version
of the bill provided it is on the same subject
matter. And as we have said before, any of
these do not violate the no amendment rule
because both have been passed and approved
by the Senate and the House.
Other limitations would be on appropriations
law. In an appropriations law under Section 25
(2) of Article VI, this requires that all provisions
in the appropriations bill must refer to a
particular item or appropriated item.
This is the basis for what we know as the
Doctrine of Inappropriate Provision. When
the word and phrases in an appropriations bill do
not refer or relate to a particular item of
appropriation, that provision or words or phrases
are considered inappropriate. They should not
have been included there.
And I think, if you have been reading the
newspapers only, the palace would want to
control the releases of the funds of the judiciary.
There are certain conditions according to the
official report that they would require the
Supreme Court to make official reports to the
President or the DBM on how the funds that the
court would get from payment of docket fees xxx
are spent.
So, the question is, can those conditions be
included in the appropriations bill? Because
then again, under Section 25(2), all provisions in
an appropriations bill must refer to a particular
item of appropriation.
Note that the Judicial Development Fund (JDF)

is NOT an appropriated amount. The JDF
comes from the docket fees paid by the litigants.
These are not monies supposed to be taken
from the public treasury which the Congress
may
appropriate
and
include
in
an
appropriations bill. These are monies paid by
litigants or parties to the cases. Of course, there
may be some questions why theses monies are
received only by the judiciary and that the
disposition of these monies is left solely to the
discretion of the Supreme Court.
Well, these are extra income for the Supreme
Court and sources perhaps of additional
remuneration or benefits for the justices or
judges. But that should not make it public funds
technically appropriated from the public treasury
where there can be conditions on their
appropriation.
Well, it has to go through the process of
budgetary hearings now and Congress will
eventually not allow these conditions to be
imposed. Otherwise, if the wordings will come
to be and included in the appropriations bill,
there might be some questions on whether
these are appropriate provisions or inclusions in
the appropriations bill.
Another provision there is Section 35 would
be the appropriation procedure, which should
be similar to all. That has a special application
or applicability to Congress.
When the President submits the entire budget to
Congress xxx all the budget of the Executive,
the
Judiciary,
and
the
Constitutional
Commissions will be subjected to what is known
as Budgetary Hearings.
If the budget of Congress is up for deliberations
in Congress, it should undergo the same
process.
If the head of the Executive department should
be asked by members of Congress to explain
Page 51
why an amount is needed for the operation of a

particular office for the ensuing year, the same
shall be done to the Speaker of the House.
The Speaker shall be asked by his own peers to
explain why an amount of money is needed by
Congress in its operations.
Special appropriations. The only requirement
there is the nature of the purpose, and that there
is availability of funds, or there is a
corresponding revenue proposal.
Automatic Re-enactment provision is to
prevent a possibility that Congress will hold the
Executive or hi-jack the President in agreeing to
some forced trading.
To prevent that from
happening, there shall be an automatic passing
of the previous appropriations until a new
appropriations bill shall have been passed.
Another important provision there is Transfer of
Funds.
They can be authorized by law to transfer funds

provided that there are savings in an
appropriated item and the savings are spent for
augmentation to or of another appropriated item.
So, the item where the savings are had must
have to have been appropriated for and the
items to which the savings are used to augment
are also appropriated for in the same
appropriations law. Otherwise, there may be
technical malversation.
Savings cannot, therefore, be used to be spent
for an item which has not been allowed by
Congress to be funded. The item on which the
augmentation is allowed must have to be
authorized by Congress.
Now, on Veto, the general rule is that the
President must veto the entire bill or none at all.
The President, however, may do what is called
as line item veto for revenue, tariff or
appropriations bill.
The general rule is that there shall be no transfer

of funds allowed in government because if the
money is appropriated for a particular item, it
should be spent for that particular item.
Otherwise, that act may constitute technical
malversation which is a felony in our Revised
Penal Code.
The reason for that is the item or items in

revenue, tariff or appropriations bill are
supposed to be by nature separable from each
other. So, if the items are separable, then the
President may pick one to veto and let the
others stand.
It is not malversation per se because the benefit

is not for the accused but for the government but
there was misapplication of the appropriated
funds.
However, even if there is allowance for line item

veto, the President is not allowed to veto a
portion of a line which is not separable from the
rest.
There is an allowable transfer of funds if the

following conditions concur:
1. There is a special law allowing that.
2. It allows the following officers: Heads of
the various branches of government, the
President,
Chief
Justice,
Senate
President, Speaker of the House and
the different chairpersons of the
Constitutional Commissions.
Example. There is an appropriation for a sum of

money but there is a condition attached to how
this appropriated sum of money can be spent,
they are connected to each other, therefore, not
separable.
The President cannot veto the
condition and let the appropriated item remain.
Now, if there is a Successful Override by the

required two-thirds (2/3) vote of the vote of both
houses of Congress beginning from the house
from which the bill originated, then, the bill
Page 52
becomes a law even without the Presidents

signature.
That is the second instance when a bill becomes
a law without the Presidents signature.
We all know that when Congress certifies a bill
and then enrolls it or submits it to the President,
the President has 30 days within which to act on
the enrolled bill. If the President does not act on
the enrolled bill by signing it or vetoing it (he is
required to write a veto message and that the
veto message together with the vetoed bill must
be returned to the house from which it
originated), the bill will become a law by lapse
of time. That is the first situation when a bill
becomes a law without the Presidents
signature.
The third instance becomes a law without the
Presidents signature, for obvious reasons, when
it is a special law calling for a special
elections because the offices of both the
President and Vice-President are vacant.
When there is vacancy in both offices, Congress
is required without need of call to convene to
pass the special law calling for special elections.
That special law is considered to be urgent,
deemed certified and there is no need for
certification of availability of funds (which is
required in almost all special legislations where
there is an appropriation.
For obvious reasons, once it is passed, it
becomes a law without the Presidents
signature.
Legislative veto. Is there a legislative veto in
the Philippines?
If you talk about failure or refusal of Congress to
act on intended or proposed legislation Yes,
there is such a thing as legislative veto.
Meaning, by the mere refusal of Congress to act
on a proposed legislation, that bill is supposedly
considered as dead in the water.
The other is inward-turning legislation which

we said is not valid. Congress cannot withhold
the efficacy of a rule or rules implementing a law
based on a valid delegation because it amounts
to inward-turning legislation which is not
allowed.
The third one probably is a pocket veto. Pocket
veto is a tradition or practice which is valid in the
United States. It is the failure of the President to
return a bill vetoed by him simply because
Congress is not in session.
In the Philippines, under our Constitution, there
seems to be no requirement must be in session.
The 30-day period refers to calendar days.
Upon receipt, the President must return it
whether or not Congress is in session because
anyway the offices of the responsible officers
are open.
In the U.S., if the President fails to return it
because Congress is not in session, pocket veto
ensues, meaning the bill is deemed vetoed.
In the Philippines, there is no such thing. The
bill must have to be returned whether or not
Congress is in session. Otherwise, from the
lapse of the 30-day period, the bill becomes a
law without the Presidents signature.
Effectivity of laws.
there.
There is nothing much
Initiative and Referendum. Republic Act 6735

has not yet changed. Meaning there is provision
for initiative or referendum with respect to local
or national legislation. But there is no effective
procedure for initiative and referendum to
amend the Constitution.
Based on applicable laws, initiative and
referendum would require 10% nationwide and
3% per legislative district.
Page 53
There are different requirements for the

autonomous region, municipality, barangay with
respect to local initiative or referendum.
What perhaps primarily distinguishes initiative
and referendum in the national level from the
local level in the local level, there is a need to
make a demand on the local legislative council
to enact an ordinance on a particular subject
matter.
If the local council refuses to act on the demand
for an ordinance legislation, then the initiative or
referendum procedure can commence.
Unlike in the national level, there is no such
requirement.
But, perhaps because of the difficulty in
agreeing to a proposed legislation, I do not know
whether there has been an initiative or
referendum in the national level.
It is difficult for 24 senators or I think 300
members of the house to agree on a proposed
legislation. Much more to make 10% nationwide
and 3% per legislative district agree on a
proposed legislation.
So, in effect, initiative and referendum would
never work in a society like the Philippines.akt
*End for August 5, 2013*
August 6, 2013
EXECUTIVE PRIVILEGE
We already discussed presidential immunity also
with respect to the executive privilege. By the
way, in executive privilege, you cannot find any
Constitutional provision expressly granting the
President the claim on executive privilege. In the
matter of jurisprudence which to some extent,
the President has been granted the discretion
not to disclose to the Congress or to the Courts
without violating the publics right to information
under Art III Section 7 to publicly disclose some
information with respect to the decision-making
of the President. When it comes to military and

trade secrets, they are traditionally included in
what is known as EXECUTIVE PRIVILEGE.
Specifically, in treaty-making it has been
accepted in practice that the right of the public to
information including disclosure will have to
extend only to the result which is the treaty itself
as signed, but will not include the discussions in
the execution and conclusion of a treaty and
other executive agreements. Of course, under
the military powers of the President, the
discussions related to the policy whether there
should be an exercise of the Commander-inChief or military powers of the President
including operational discussions cannot be
made public. As to the rest, well, we all know
what is covered under the executive privilege
including the presidential communications
privilege which we said will include the rule on
operational proximity. However, the discussions
would allow legitimacy of the Doctrine of
Executive Privilege based on:
1. The need of secrecy in the formulation
of certain policies
2. The need for a candid discussion for
those involved in decision-making and
3. Similar widely accepted privileges as
accepted by the Rules of Evidence like
doctor-patient privilege,
lawyer-client
privilege, priest-penitent privilege, in the
same manner as these privileges
prevent matters to be disclosed without
violating any right of others including the
right of information, the President is also
entitled to executive privilege.
This may also be related, or in the same
category, as discussions of courts, SC specially,
in coming up with its decisions. While the
Constitution requires that the Supreme Court
and other collegiate courts would need to certify
that before the decision was reached there was
prior consultation among members. However,
there is no requirement or they cannot be
compelled to disclose what the discussions were
during the consultation before the writing of the
decision. The same thing applies during
congressional meetings among members of
Page 54
Congress in what is known as EXECUTIVE

SESSIONS. During the executive sessions, the
public, including the media, can be excluded
from the discussion and whatever is discussed
during the executive deliberations or meetings
among any member of Congress cannot be
compelled to be made public even by a court
order. This is in the same category as the
privilege granted to the President under the
executive privilege.
OFFICIAL RESIDENCE
The president shall also have, well, the official
residence. While it is traditionally known to be
Malacanang, the official residence of the
President is the residence that he is maintaining
under the expense of government. So if it is in
any other place, it is the official residence he is
entitled to.
TERM
There is only one term. The term of the
President is six (6) years without re-election, the
nearest that was to come supposedly to answer
that question is the issue whether or not Estrada
will be eligible for re-election, did not come to
pass because he did not win in the election. The
argument being that , re-election means
immediately after the term, so that, if a
President who has sat for the complete term of 6
years, rests for several 6 years in between,
could be eligible still or qualified to run in
another election. This is because the restrictive
interpretation of re-election is immediately after
the term. But again this did not come to pass
because the question was never resolved.
SALARY
The salary of the president cannot be increased
nor decreased during his term, unlike members
of Congress the prohibition is only on increase
to take effect during their term.
PROHIBITIONS
The president and the members of the executive
family, shall not be allowed to engage in any
other office or employment except for the usual
exception the ex officio capacities. There is
this one case, the case of Betoy vs Board Of

Directors. The members of the cabinet were
made directors by law to some corporations
including PSALM in order to stream-line the
electric industry in the Philippines. There was a
question in their appointments, if these
appointments are considered violative of the
prohibition under Section 13 for them to hold any
other positions in government. The Supreme
Court said it is not. However they are not entitled
to the per diem or any remuneration which they
should have received under the law for their
additional task. The entire justification of the SC
is that their designations therein are not
supposed to be violative because these are in
relation to the policy on intent on the electric
industry. Therefore, there is a need to elect
representatives to the Board. However, since
they are not allowed to receive additional
remuneration for additional task under Sec. 7 of
Article IX, they shall not receive this additional
remuneration.
They shall not also engage in any profession,
engage business, contract any financial interest
in the government, GOCCS, instrumentalities,
and subsidiaries.
Just like any other public officer, they must
disclose their ALN.
SUCCESSION
There is not much in succession, except
perhaps when the permanent vacancy in the
Office of the President shall occur If the
vacancy, which is permanent, occurs at the
beginning of the term, then supposedly the
Congress must have to provide for a law for
succession in case the Senate President as well
as the Speaker are unable to (unclear). But if the
vacancies in both offices occur during the term,
because of the immediacy to fill in the vacancy
in case the Senate President and in his
incapacity the Speaker, both of them are unable,
Congress is supposed to provide for the person
who shall act as President until a President or a
V-President shall be elected. The difference
again is brought about by the need to fill-in the
vacancy immediately, unlike if occurrence of the
Page 55
vacancy is before the term, there may still be

some time for a transition.
The person or the particular public functionary,
who shall act as President is not to be named by
his name. It has to be by his position.
REMOVAL
The President
impeachment.
shall
be
removed
by
POWERS, FUNCTIONS OF THE PRESIDENT

Executive Power, ahm, the only discussion
there is perhaps be on what we know as the
RESIDUAL POWERS of the President. In
Marcos vs Manglapus, the SC clarified that the
President has residual powers in the execution
and the implementation of the law. The
provisions in the Constitution relating to the
executive powers do not partake of grants, or
listing, or enumeration of the extent of the
powers of the President, rather they are
limitations of the powers of the president if there
is a provision relating to that power. Section 1 of
Article 7 which provides where executive power
shall be lodged is a provision precisely indicating
who shall exercise power but does not limit what
Executive Power is. The various provisions in
the Constitution relating to executive power or
specific powers of the Executive are considered
to be limitations to such power. The same
should go with the Congress and the SC with
respect to their respective authorities. Unless
the Constitution provides specifically anything
which has something to do with legislation,
Congress can do, also with the SC in cases of
exercise of judicial power. If the Constitution or
the rules do not limit or prevent the SC from
exercising authority, then the courts will decide.
Of course with respect to jurisdiction, since the
Constitution provides for specific cases where
SC has jurisdiction and other laws provide for
jurisdiction of lower collegiate courts and other
lower courts, if these cases are not among those
listed items, the court cannot exercise
jurisdiction over a petition or action or complaint
filed.
One of the cases which is known to us is the for

the declaration of citizenship in the cases that
we have already discussed, the SC has
repeatedly said that one cannot file a petition in
court for the declaration for whether or not one is
a Filipino citizen simply because it has not been
provided so by law.
POWER OF CONTROL AND SUPERVISION
Control over the Executive Department, the only
discussion with respect to control on executive
departments would be on its distinction with the
power of supervision. When you talk of power of
control, it is the power of the President to
reverse, revise, remand, modify, or affirm
decisions of his subordinates. So the power of
the President is exercised over the actions of the
actors not on the actors themselves as
distinguished from the power of supervision
which is the power of the president to ensure
that the laws are faithfully implemented or
executed which carries with it the power to
impose penalties for (?). The president,
therefore, in the power of supervision, can affect
the actor, not only the action of the actor by
which the power of discipline can be exercised.
With respect to his control over his Executive
Department, what comes to mind is The
Doctrine of Qualified Political Agency, which is
an example of allowable delegation of power.
The president can exercise the discretion of
delegating executive power to members of the
cabinet. This delegation is technically called The
DOCTRINE OF QUALIFIED POLITICAL
AGENCY. The actions of the members of the
cabinet are considered as the action of the
president. They, the members of the cabinet, are
considered to be the alter-egos of the President
and therefore any of their actions are considered
to be the actions of the president, unless
reprobated or changed by the President. Any
action, except when the nature of the executive
action is required to be performed personally by
the President, any and all of these executive
functions can be delegated. In the case of
Villena vs Executive Secretary, the SC said that
the power to declare martial law or the power to
Page 56
suspend the privilege of the writ of habeas

corpus or pardoning power are those which the
president must do personally, and cannot be
delegated. The rest of the executive officials is
under the indirect control of the President. He
directly controls the members of the cabinet and
through them indirectly controls the rest of the
officers in the executive department.
POWER OF APPOINTMENT
One of the most discussed powers of the
President with respect to appointments would be
the power to appoint under the first sentence of
Section 16 because this is exercised
simultaneously or together with the Commission
on Appointments.
The basics in appointments are as follows:
1. Essentially executive in character, even
if the SC appoints a clerk of court or a
sheriff in the judiciary, the SC is not
exercising judicial function. It is
exercising an executive function.
2. By nature, the power to appoint must
have to be discretionary, because if the
discretion is lost, the power of
appointment is lost. While Congress,
can by law, provide qualifications to a
position, that power of the Congress
cannot be abused that only one can be
qualified for a position, there must have
to be an opportunity for the appointing
authority to (?) the President to exercise
his discretion as to who he shall appoint.
Even laws providing for recommendatory
powers are not binding upon the appointing
authority. For example, there is a law creating
an office, the regional state prosecutions office,
the regional state prosecutor must have to be
recommended by the Secretary of the
Department of Justice, that recommendation
shall purely be recommendatory. It shall not be
binding upon the President, such that the
President can appoint whoever he wishes to
appoint, provided of course there are those
qualifications.
Now those officers falling under the first

sentence of Section 16, would have to undergo
the confirmation process of Commission of
Appointments. As we have discussed, the
confirmatory powers of the Commission on
Appointments is based on the constitutional
requirement that their nominations must be
confirmed. Technically the procedure is:
1. They shall be nominated to the position,
2. The nominations shall be submitted to
the Commission on Appointments,
3. The Commission on Appointments shall
act on it or by-pass their nominations. If
the CA acts on it, and rejects the
nomination thats the end of it for the
particular position. Those nominated
can be nominated to other positions if
the CA has not yet rejected them. For
those whose appointments which are
merely by-passed, the President can reappoint them or re-nominate them til
eternity until the CA rejects them or
their respective nominations.
The rule is simple when the nomination does not
fall under the first sentence of Section 16 Article
VII, there is no requirement for CA confirmation.
Even if the President erroneously refers it to the
CA, the CA does not have any jurisdiction over
that nomination. Second, there can be no law
increasing the list by providing the requirement
for CA confirmation if the position does not fall
within the first sentence because a legislation
cannot amend the Constitution which includes a
law which requires confirmation as a condition
for the validity of the appointment. That is why in
several cases involving, one, the PNP, since the
PNP is a civilian police force under the
Constitution, even if the commensurate rank for
colonel , which I think for the PNP is senior
superintendent, the appointment (of senior
superintendent) need not pass CA confirmation.
There is also this case of the Coastguard of the
Philippines, while they assume military
characterization, the Coastguard is not part of
the Armed Forces of the Philippines. Therefore
even if the position is Commander of the
Coastguard, his appointment need not pass the
Page 57
CA. In one case involving the NLRC

Commissioner, SC said that there is no
requirement, there is no need, for confirmation
of the CA. The law providing for that is
unconstitutional.
Still in relation to the appointing powers of the
president is the distinction between ad interim
appointments and the regular appointments, as
well as between ad interim appointments and
acting or temporary appointments. As we made
mention before in the case of Pimentel, the
President can extend acting appointments even
if the position refers to those under the first
sentence of Section 16. The President is not
required to make regular appointments
everytime because the power to appoint is
discretionary. The president has the discretion to
choose, such that, if there is no person to
adequate for him to extend a regular
appointment, then the President should not be
prevented from extending acting appointments,
even if, again, the position is one among those
in the first sentence of Section 16. The caveat is
that, the President must not abuse that
discretion just to avoid the confirmatory process.
If there is no showing that this power has been
gravely abused amounting to lack of jurisdiction,
then these acting appointments cannot be said
to be violative of the grant of extension of acting
appointments.
Now,
another
there
is
the
midnight
appointments, two months before the end of the
term, the President cannot extend appointments
except to temporary appointments to executive
positions when continued vacancies would
prejudice public service or public safety. One of
the most interesting ruling is this 2010 ruling in
De Castro vs JBC. In 1998 in the case of In Re:
Mateo Valenzuela, the SC said that appointment
to the judiciary is covered by this midnight
appointment ban. In 2010, the case of De Castro
reversed that ruling, saying that the 2-month
midnight appointments ban does not apply to the
judiciary. But if should be specific to the SC
because of this 90-day rule. The appointment to
the judiciary shall be made by the President
through a list for every vacancy given to the

President submitted by the JBC to the President.
But with regards to the SC, it should be made
within 90 days from the occurrence of the
vacancy, unlike in the lower courts it is 90 days
from the submission of the list. This requirement
over the SC is mandatory, if the 90-day period
has already commenced, the President has to
make the appointment. Otherwise, there would
be a constitutional violation. So if the 90-day
period falls within the 2-month period before a
regular election up to the end of the term, how
long is that? So..hmm second Monday of May is
the regular election, two months before that is
March, second Monday of March. From second
Monday of May til noon of June 30, that is 45
days. So it is really longer than 90 days. (Did
this make sense classmates? Mao mai ingon ni
Sir) So if the vacancy occurs within that period
and the 90-days fall within that same period, the
President really must make the appointment.
Therefore the judiciary is not covered,
technically, by the midnight appointment ban.
The other item
President: is
appointment
consanguinity
degree in the
Office of the
offices. So
limitations on
President.
on the appointing authority of the

that the President shall not
his
spouse,
relatives
by
or affinity within the 4th civil
Constitutional Commissions, the
Ombudsman and other listed
these are the constitutional
the appointing authority of the
With respect to the power of removal, if the one

removed would be other subordinate executive
officials, we follow the civil service rules on
whether one is career or non-career. Under the
Revised Rules in Administrative Cases in the
Civil Service, there is a procedure for imposing
disciplinary sanctions to erring public officers.
However, with respect to Members of the
Cabinet, they can be removed not because of
any rules of discipline, but it stems from the
power of the President to appoint them. Largely,
Members of the Cabinet are appointed because
of the level of trust and confidence the President
had in them. But of course, basically because of
Page 58
their qualifications. But what are the

qualifications for one to be the Secretary of
National Defense? Does it require one to be a
former military officer? By tradition, they are
former military officers. (Sir talks about the
modernization of the AFP with its newlyacquired cutter.). What is the qualification for
one to be the Executive Secretary? In EO 292,
there seems to be none. There is even no
requirement that they must have to be Civil
Service eligible. The qualification is, you must
have to be a friend of the President. If the
presidents trust and confidence in you is lost,
the President can terminate you. Again, this
stems(?) not under the power of the President to
discipline Members of his Cabinet but from the
power of the President to appoint.
The other class or group of positions which the
President can appoint without the CA
confirmation will be those, upon the
recommendation of the Judicial and Bar Council
which refers to Members of the Supreme Court
and other lower collegiate courts , Ombudsman,
and his deputies. The next would be the
appointment of the Vice-President, by the
President, as a member of his Cabinet. The last
group would be those that are appointed solely
by the President, and these includes
appointments that are not otherwise provided for
by law or those he may be authorized by law to
appoint.
By the way, there is this case of Angeles vs
Gaite, this is not Abigail Gaite, rather Manuel
Gaite of the DOJ. This involves a judge
(Angeles) charged with child abuse, for
purportedly abusing her niece, and by reason of
the child abuse case, the prosecutor of the DOJ
was charged by Angeles for libel. Based on our
understanding of the rules in Criminal
Procedure, when the investigating prosecutor
resolves to dismiss the case, you can file a
motion for reconsideration. And based on your
MTS Rules for appeal, you can file the appeal or
petition for review with the Department
Secretary. After the Department Secretary,
where will you go if you will question the
decision of the department secretary? Can you

go to the Office of the President (which Judge
Angeles did)? Based on the old and obscure
memorandum circular numbered 58, resolutions
and orders of the Department of Justice
Secretary may be appealed to the Office of The
President if the crime or felony involved is
punishable by reclusion perpetua. So if the
penalty for the case is not reclusion perpetua to
death, the decision of the Department Secretary
is final. Judge Angeles claims that that
memorandum circular violates the Doctrine of
Qualified Political Agency, because under the
doctrine, the decisions of the Department
Secretary, though they remain as acts of the
President therefore valid unless reprobated or
changed by him, does not apply if MC 58 is
governing. It only allows the President to
exercise qualified political agency if the penalty
for the case involved is reclusion perpetua. It
ties the hands of the president in exercising
qualified political agency or control over
decisions of the department secretary, which is
violative of the doctrine . Supreme Court said
NO, because the doctrine must be viewed as
unless the President is required to act on it
personally, the acts of department secretaries
are considered as his acts, there are only three
mentioned. But the SC said the list is not
exclusive. If there are other functions which the
President must do with similar importance, then
the acts of the President may be done by his
department secretaries.
It has been a while, there has been a practice of
granting certain persons of cabinet rank but they
dont have a cabinet position of line agencies.
How many cabinet secretaries do we have now
who do not have a line agency? The normal
lines are those which you can find in EO 292 or
the Administrative Code of the Philippines. Is
Ricky Carandang a cabinet secretary? I think he
is one of the heads of the Presidential
Communications, one of the most lavish offices
of the President. As for the last COA audit, how
much did they spend for communications
expense? Have you read that item? Abigail
Gaite, is she a cabinet secretary? Or is she just
Page 59
a presidential spokesperson with cabinet rank?

The question is asked becausedo these
persons exercise powers delegated under
qualified political agency? Or does the Doctrine
of Qualified Political Agency apply merely to the
with line agencies strictly secretaries holding
department positions?
Temporary designations, in your outline, it is
mentioned there that under the Administrative
Code, the President may designate an officer in
government service when the regular officer is
unable to perform or is absent, or there exist a
vacancy. In no case shall a temporary
designation exceed one year.
Still in relation with the appointing powers of the
President is the appointing powers of the Acting
President. The Acting President suffers the
same limitations as that of the current president.
The only difference is that, appointments made
by the Acting President shall always be subject
to the actions of the Regular President when he
reassumes
office.
Acting
Presidents
appointments are valid, but are covered by the
same limitations as of that of the Regular
President. But even if the appointments of the
Acting President are valid, such appointments
are always subject to the actions of the regular
president upon reassumption of his office. Let us
continue next meeting. *iptaganas
August 12, 2013
(13) Immunity from Suits
BASIS OF THE IMMUNITY:
It is interesting to note that the 1987 Constitution
does not provide for presidential immunity from
suit. Unlike congressional immunity, presidential
immunity is not expressly stated nor prescribed
by the Constitution. Basis for the immunity is
only found in jurisprudence, both in the U.S. and
the Philippines, which, by virtue of Article 8 of
the Civil Code, forms a part of the legal system
of the Philippines.
In the case of In re: Bermudez, (1986), the
Supreme Court expressly held that, _Incumbent
presidents are immune from suit or from being
brought to court during the period of their

incumbency and tenure._
The purpose of the immunity was discussed in
the case of Soliven, et al., vs Judge Makasiar
(1988), where the Supreme Court stated that
The rationale for the grant to the President of
the privilege of immunity from suit is to assure
the exercise of Presidential duties and functions
free from any hindrance or distraction,
considering that being the Chief Executive of the
Government is a job that, aside from requiring all
of the office-holders time, also demands
undivided attention.
WHO MAY CLAIM IMMUNITY:
In the same case of Soliven, et al., vs Judge
Makasiar (1988) petitioners argued that the
reasons which necessitate presidential immunity
from suit impose a correlative disability to file
suit. He contended that if criminal proceedings
ensue by virtue of the Presidents filing of her
complaint-affidavit, she may subsequently have
to be a witness for the prosecution, bringing her
under the trial courts jurisdiction. This would in
an indirect way defeat her privilege of immunity
from suit, as by testifying on the witness stand,
she would be exposing herself to possible
contempt of court or perjury.
In turning down petitioners argument, the Court
held that the privilege of immunity from suit,
pertains to the President by virtue of the office
and may be invoked only by the holder of the
office; not by any other person in the Presidents
behalf. Thus, an accused in a criminal case in
which the President is complainant cannot raise
the presidential privilege as a defense to prevent
the case from proceeding against such accused.
Moreover, there is nothing in our laws that would
prevent the President from waiving the privilege.
Thus, if so minded the President may shed the
protection afforded by the privilege and submit
to the courts jurisdiction. The choice of whether
to exercise the privilege or to waive it is solely
the Presidents prerogative. It is a decision that
cannot be assumed and imposed by any other
person.
Page 60
SCOPE OF IMMUNITY:
On 27 May 1997, a unanimous United States
Supreme Court held in Clinton v. Jones that the
Constitution does not protect a sitting President
from a lawsuit that is predicated on private, prepresidential conduct. Basically, the Court stated
that an incumbent was liable to a suit for
damages, based on actions taken before his
term began. The Court held further that an
officials absolute immunity should extend only
to acts in performance of particular functions of
his office because immunities are grounded in
the nature of the function performed, not the
identity of the actor who performed it.
Further, an officials absolute immunity extends
only to acts in performance of particular
functions of his office. The doctrine of immunity
finds no application and cannot be invoked in
cases where the public official is being sued in
his private capacity or as an ordinary citizen.
The mantle of protection afforded public officers
is removed the moment they are sued in their
individual capacity.
This usually arises where the government official
acts without authority or in excess of the powers
vested in him or his office such as when he has
acted with malice and in bad faith, or beyond the
scope of his authority or jurisdiction.
Those cases in your outline regarding the
petition for the issuance of the writ of Amparo
wherein Pres. GMA was made partly the
respondent, the principle referred there is that
the sitting president is immune from any suits.
Therefore the dismissal of the case against
Pres. GMA was affirmed by the SC. Although in
the last case of Lozada vs. GMA, considering
that she was no longer the president, the SC
reiterated the exception that immunity no longer
apply.
Nonetheless, the SC clarified that in the petition
for the writ of Amparo, since what is sought to
be established is the responsibility, not the
liability, of who is responsible for the acts sought
to be protected in the petition, then the sitting

President is not immune from such case. The
nature of the petition for the writ of Amparo
establishes not liability (civil, criminal, or
administrative) but rather the responsibility over
which for whom shall be tasked with determining
the whereabouts of persons whose absence or
disappearance is the subject for the writ of
Amparo.
C. Judicial Dept.
1. The Supreme Court
a. Composition
Art. 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
Page 61
modified or reversed except by the court

sitting en banc.
SC CIRCULAR NO. 2-89 February 7, 1989

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.
In the composition of the SC, the only thing we
need to remember is that in the US, their
Supreme Court is composed only of 9 members.
We couldnt see why we need 15. Do we need
more minds to determine or resolve the
constitutional questions raised before our SC?
Do we need more minds than what was
established in the US where the Philippines is
patterned after? Perhaps this number has
caused the issuance of decisions and
resolutions of the SC which has changed
substantially based on the number of minds
affecting the doctrines or principles being done
by the SC.
SC Resolution No. 2-89, which took effect on
March 1, 1989, refers to the rule on the referral
of cases to the SC En Banc. We follow the
principle that there is only one Supreme Court in
the Philippines. Even if the SC sits in divisions of
3, 5 or 7 members, which is the number of
divisions allowable in the constitution, at present
we sit in divisions of 5 members, that is why
there are 3 divisions. Despite the divisions
rendering decisions, a division decision is still
considered a decision of the entire SC. This
principle that there is only one SC is
strengthened by the provision of the constitution
that a case handled by the division can be
referred to the court en banc only in the
following instances when:
1.) there has been no decision or resolution
by the division yet;
2.) majority of the division has referred the
case for decision or resolution to the
court en banc; and
3.) the court en banc majority has accepted
the referral.
Page 62
Only in those instances that a division case may

be referred to the SC en banc, otherwise, the
issue has to remain with the division. The
resolution emphasized that the SC en banc is
not a review/appellate court of the division. The
decisions of the division referring and of the SC
en banc accepting or declining the referral of the
division shall be final and non reviewable.
What cases shall the SC decide en banc?
1.) On constitutional issues or cases. This
must have to be decided by the SC en
banc (e.g. when there is a petition on
the sufficiency of factual basis on the
declaration of Martial Law or suspension
of the privilege of the writ of habeas
corpus. These are en banc petitions).
2.) When the division vote is not met, the
case may be referred to the SC en
banc;
3.) When there is a reversal of the decision
of the court by division or by the court
en banc in a subsequent case, the
reversal must have to be that of the
court en banc;
4.) When there is administrative case
involving disbarment, dismissal or if the
suspension is for more than one year or
the fine is more than 10,000 pesos. The
decision of the court must have to be
handed down by the court en banc.
If the decision in the administrative cases
involves judges, and justices of the lower
collegiate courts or lawyers or it involves none of
the cases listed above, then the decision may be
validly rendered by a division.
In the case of City of Tagaytay vs. Guerrero,
the SC highlights the previous ruling that a
decision of the division or by the court en banc
must have to be reversed by the Court En Banc.
Second is the principle on case law, that the
decision of the case is the law between the
parties. In this case, there was a foreclosure
sale for failure to pay real estate or real property
taxes. The City of Tagaytay won, and filed a
petition for the issuance of title in its favor. The
RTC granted the petition and the Court of
Appeals affirmed but the SC reversed the

decisions of the lower courts on the ground that
the foreclosure/public auction sale based on the
tax delinquency was not valid because the City
of Tagaytay had no authority over the lands in
question because it is situated in Batangas and
not in Tagaytay. All the proceedings from the
imposition of the tax, to the delinquency, to the
public auction sale were nullified by the SC.
In another case, there was a petition seeking the
declaration of nullity of an auction sale. The RTC
decided that the foreclosure sale is invalid again
based on the same reasoning as the Tagaytay
case, that the lands in question were not within
the City of Tagaytay. The City of Tagaytay
appealed to the SC asking the SC to declare
that the properties were actually in Tagaytay and
not in Talisay, Batangas. The SC said that when
the first decision was rendered, it already
became final and executory, which decision is
now the rule between the parties. This prior
ruling can only be overturned by the SC en
banc.
b. Appointment and qualifications
Art. VIII.
Section 7. 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.
Section 8 (par. 5). The Council shall have the
principal function of recommending appointees
to the judiciary. It may exercise such other
functions and duties as the Supreme Court may
assign to it.
Section 9. The Members of the Supreme Court
and judges of lower courts shall be appointed by
the President from a list of at least three
nominees preferred by the Judicial and Bar
Council for every vacancy. Such appointments
need no confirmation.
Page 63
For the lower courts, the President shall issue

the appointment within ninety days from the
submission of the list.
On appointments and qualifications, we know
that the appointment shall be made from the list
of 3 nominees by the JBC to the President. In
the case of de Castro vs. JBC, the SC ruled that
the appointment made by the President within
90 days from the occurrence of the vacancy, is
mandatory. With respect to the lower courts, the
ninety (90) days shall be computed from the
submission of the list by the JBC to the
president for appointment.
Publications, the only discussion there is the 10
yrs. experience in the practice of law. In the
case of Cayetano vs. Monsod, the SC decision
accommodates the appointment of Christian
Monsod as the Chairman of the COMELEC.
Because he was not into litigation, the SC
Interpreted in the light of the various definitions
of the term Practice of law", particularly the
modern concept of law practice, taking into
consideration the liberal construction intended
by the framers of the Constitution. The SC ruled
then that Practice of law means any activity, in
or out of court, which requires the application of
law, legal procedure, knowledge, training and
experience. To engage in the practice of law is
to perform those acts which are characteristics
of the profession. Generally, to practice law is to
give notice or render any kind of service, which
device or service requires the use in any degree
of legal knowledge or skill."
Aside from that, qualifications mentioned
competence, integrity, and independence; which
are largely very subjective. Low grade in the bar
or having not passed it in your first prior try,
doesnt mean you are not with proven
competence. That is not a good measure of
ones competence.
For lower courts, Congress shall prescribe for
the other qualifications but because of the
Judicial Reorganization Act of 1981, BP 129, all
Judges of the lower courts to the SC, must be

natural born citizens.
In the case of Kilosbayan vs. Justice Gregory
Ong of the Sandiganbayan, Justice Gregory
Ong was nominated to the SC. Kilosbayan
headed by former Senate President Jovito
Salonga, raised the issue of his qualification
based on his citizenship. His nomination cannot
be tackled because of his citizenship. There is
no question that he is a Filipino citizen; the issue
is whether he is natural born.
We already tackled in the case of de Castro vs.
JBC, the task of the JBC if the sitting Associate
Justice of the SC is nominated to the Chief
Justice position, there is no need to process his
nomination. His nomination to the Chief Justice
position does not make him any more
competent, more qualified, or more natural born
citizen. The only reason that the JBC will
process any position to the court is to determine
that they have all the qualifications and not any
of the disqualifications.
c. Salary
Art. XVIII. Section 17. Until the Congress
provides otherwise, the President shall receive
an annual salary of three hundred thousand
pesos; the Vice-President, the President of the
Senate, the Speaker of the House of
Representatives, and the Chief Justice of the
Supreme Court, two hundred forty thousand
pesos each; the Senators, the Members of the
House of Representatives, the Associate
Justices of the Supreme Court, and 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.
The only matter here is the constitutional
proscriptrion that salaries of Justices cannot be
subjected to decrease or diminution during their
tenure. This is explanable by the fact that
Justices have no hand in passing the law which
will increase their salaries. The other reason is,
it can strengthen their independence from the
Page 64
political bondage. If Judges will have higher

salaries, they will become more independent
theoretically.
Case:
1. Nitafan vs. Commissioner of Internal
Revenue, GR L-78780, 23 July 1987
FACTS: Petitioners David Nitafan, Wenceslao
Polo and Maximo Savellano Jr., were duly
appointed and qualified Judges of the RTC
National Capital Judicial Region. They seek to
prohibit and/or perpetually enjoin respondents,
(CIR and the Financial Officer of the Supreme
Court) from making any deduction of withholding
taxes from their salaries. Petitioners submit that
any tax withheld from their emoluments or
compensation as judicial officers constitutes a
decrease or diminution of their salaries, contrary
to Section 10, Article VIII of the 1987
Constitution.
ISSUE: Is a deduction of withholding tax a
diminution of the salaries of Judges/Justices?
HELD: The SC hereby makes of record that it
had then discarded the ruling in PERFECTO VS.
MEER (88 Phil 552) and ENDENCIA VS. DAVID
(93 Phil 696), that declared the salaries of
members of the Judiciary exempt from payment
of the income tax and considered such payment
as a diminution of their salaries during their
continuance in office. The Court hereby
reiterates that the salaries of Justices and
Judges are property subject to general income
tax applicable to all income earners and that the
payment of such income tax by Justices and
Judges does not fall within the constitutional
protection against decrease of their salaries
during their continuance in office.
The debates, interpellations and opinions
expressed regarding the constitutional provision
in question until it was finally approved by the
Commission disclosed that the true intent of the
framers of the 1987 Constitution, in adopting it,
was to make the salaries of members of the
Judiciary taxable. The ascertainment of that

intent is but in keeping with the fundamental
principle of constitutional construction that the
intent of the framers of the organic law and of
the people adopting it should be given effect.
The ruling that the imposition of income tax
upon the salary of judges is a diminution thereof,
and so violates the Constitution in Perfecto vs.
Meer, as affirmed in Endencia vs. David, must
be deemed discarded.
d. Security of Tenure
Art 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
deliberations on the issues in the case and
voted in thereon.
Section 2 (par. 2). No law shall be passed
reorganizing the Judiciary when it undermines
the security of tenure of its Members.
Members of the Judiciary do not have terms.
They only have tenure. They can stay in office
up to the mandatory retirement age of 70. They
can only be removed for cause because as
Judges, they are supposed to be secured in
their tenure. The only discussion here is when
BP 129 in 1980 was passed; there were a lot of
Justices of the Appellate Court and Judges of
the lower court that were affected. The
discussion there was whether BP 129 is a law
which violated their security of tenure or whether
it was a valid law on abolition. The SC discussed
the difference between abolition of office and the
removal of the incumbent in violation of his
constitutional security of tenure.
In abolition of office, there is no incumbent
because the office is abolished. Unlike in
Page 65
removal, the office remains and a new

appointment is made. If there is no new
appointment and the office does not remain, it
becomes an abolition and there is no violation of
the security of tenure.
It was raised because the names of the old
courts were changed, from CFI to RTC and from
CA to IAC. The incumbents there were not
removed, they were just left there with no office
because the office was abolished. SC
maintained that abolition may amount to removal
from office and a violation of security of tenure if
the abolition is not done in good faith. If it is
done in good faith, there is no violation of
security of tenure. (de la LLana vs. Alba)
Case:
2. Gualberto J. De La Llana, et. al. vs.
Manuel Alba, et. al., GR No. L-57883,
12 March 1982
FACTS: De La Llana, et. al. filed a Petition for
Declaratory Relief and/or for Prohibition, seeking
to enjoin the Minister of the Budget, the
Chairman of the Commission on Audit, and the
Minister of Justice from taking any action
implementing BP 129, which mandates that
Justices and judges of inferior courts from the
CA to MTCs, except the occupants of the
Sandiganbayan and the CTA, unless appointed
to the inferior courts established by such act,
would be considered separated from the
judiciary. It is the termination of their
incumbency that for petitioners justifies a suit of
this character, it being alleged that the security
of tenure provision of the Constitution has been
ignored and disregarded.
ISSUES: W/N BP 129 is unconstitutional for
impairing the security of tenure of the justices
and judges in this case?
HELD: The SC ruled that the Court is
empowered:
to discipline judges of inferior courts and, by a
vote of at least eight members, order their
dismissal. Thus it possesses the competence to

remove judges. Under the Judiciary Act, it was
the President who was vested with such power.
Removal is, of course, to be distinguished from
termination by virtue of the abolition of the office.
There can be no tenure to a non-existent office.
After the abolition, there is in law no occupant. In
case of removal, there is an office with an
occupant who would thereby lose his position. It
is in that sense that from the standpoint of strict
law, the question of any impairment of security
of tenure does not arise. Nonetheless, for the
incumbents of inferior courts abolished, the
effect is one of separation. As to its effect, no
distinction exists between removal and the
abolition of the office. Realistically, it is devoid of
significance. He ceases to be a member of the
judiciary. In the implementation of the assailed
legislation, therefore, it would be in accordance
with accepted principles of constitutional
construction that as far as incumbent justices
and judges are concerned, this Court be
consulted and that its view be accorded the
fullest consideration. No fear need be
entertained that there is a failure to accord
respect to the basic principle that this Court
does not render advisory opinions. No question
of law is involved. If such were the case,
certainly this Court could not have its say prior to
the action taken by either of the two
departments. Even then, it could do so but only
by way of deciding a case where the matter has
been put in issue. Neither is there any intrusion
into who shall be appointed to the vacant
positions created by the reorganization. That
remains in the hands of the Executive to whom it
properly belongs. There is no departure
therefore from the tried and tested ways of
judicial power. Rather what is sought to be
achieved by this liberal interpretation is to
preclude any plausibility to the charge that in the
exercise of the conceded power of reorganizing
the inferior courts, the power of removal of the
present incumbents vested in this Tribunal is
ignored or disregarded. The challenged Act
would thus be free from any unconstitutional
taint, even one not readily discernible except to
those predisposed to view it with distrust.
Page 66
Moreover, such a construction would be in

accordance with the basic principle that in the
choice of alternatives between one which would
save and another which would invalidate a
statute, the former is to be preferred.
e. Removal
Art. VIII. Section 11. The Members of the
voted in thereon.
Art. XI. Section 2. The President, the VicePresident, 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.
Removal in relation to impeachment must have
to be understood as applicable only to the SC
Justices. Justices of the lower collegiate courts
and Judges of the lower courts are subject to the
disciplinary function of the Supreme Court.
Based
on
the
constitutional
provision,
administrative cases involving disbarment,
dismissal or if the suspension is for more than
one year or the fine is more than 10,000 pesos
or both, the decision of the court must have to
be handed down by the court en banc. If less
than that, the decision and the imposition of the
penalty shall be done by the SC division.
Case:
3. In Re First Indorsemet From

Honorable Raul M. Gonzalez Dated 16
March 1988 Requesting Honorable
Justice Marcelo B. Fernan To
Comment On An Anonymous LetterComplaint, A.M. No. 88-4-5433 April
15, 1988
Facts: Tanodbayan Special Prosecutor, Raul M.
Gonzales, endorsed an anonymous letter
complaint with enclosure dated 14 December
1987, against Justice Marcelo B. Fernan.
The mentioned 1st Indorsement has two (2)
attachments. First, an anonymous letter by
"Concerned Employees of the Supreme Court"
addressed to Hon. Raul M. Gonzalez referring to
charges for disbarment brought by Mr. Miguel
Cuenco against Justice Marcelo B. Fernan. The
second attachment is a copy of a telegram from
Mr. Miguel Cuenco addressed to Hon. Raul M.
Gonzalez, where Mr. Cuenco refers to pleadings
he apparently filed on 29 February 1988 with the
Supreme Court in Administrative Case No. 3135
against Justice Fernan.
Issue: W/N disbarment proceeding will prosper
against a justice of the Supreme Court whose
position is constitutionally classified as
impeachable?
Held: The Court dealt with this matter in its
Resolution
of
17
February
1988
in
Administrative Case No. 3135 in the following
terms:
There is another reason why the complaint for
disbarment must be dismissed. Members of the
Supreme Court must, under Article VIII (7) (1) of
the Constitution, be members of the Philippine
Bar and may be removed from office only by
impeachment (Article XI [2], Constitution) To
grant a complaint for disbarment of a Member of
the Court during the Member's incumbency,
would in effect be to circumvent and hence to
run afoul of the constitutional mandate that
Members of the Court may be removed from
office only by impeachment for and conviction of
Page 67
certain offenses listed in Article XI (2) of the

Constitution...
The provisions of the 1973 Constitution quoted
in Lecaroz vs. Sandiganbayan are substantially
reproduced in Section 2, Article XI of the 1987
Constitution:
Sec. 2 The President, the Vice-President, the
Members of the Supreme Court, 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.
(underscoring supplied)
It is important to make clear that the Court is not
saying that Members of the other constitutional
offices we referred to above are entitled to
immunity from liability for possible criminal acts
or for alleged violation of the Canons of Judicial
Ethics or other supposed misbehavior. What the
Court is saying is that there is a fundamental
procedural requirement that must be observed
before such liability may be determined and
enforced. A Member of the Supreme Court must
first be removed from office via the constitutional
route of impeachment under Sections 2 and 3 of
Article XI of the 1987 Constitution. Should the
tenure of the Supreme Court Justice be thus
terminated by impeachment, he may then be
held
to
answer
either
criminally
or
administratively (by disbarment proceedings) for
any wrong or misbehavior that may be proven
against him in appropriate proceedings.
f.
Fiscal Autonomy
Art. VIII. Section 3. The Judiciary shall enjoy

fiscal autonomy. Appropriations for the Judiciary
may not be reduced by the legislature below the
amount appropriated for the previous year and,
after approval, shall be automatically and
regularly released
In CSC vs. DBM, the SC held that the Judiciary

enjoys fiscal autonomy; their appropriations shall
be automatically and regularly released. It
cannot be impounded and subjected to the DBM
no report, no release policy of the DBM. They
shall be given priority in the release of approved
appropriations over all other agencies not
similarly vested with fiscal autonomy, when
there is a revenue shortfall. If the government
has no money, everybody suffers. But if there
are available funds, those with fiscal autonomy,
like the judiciary, shall be given preference in the
release of funds.
Case:
4. Civil Service Commission, Petitioner,
Vs. Department Of Budget And
Management, Respondent, G.R. No.
158791, July 22, 2005
Facts: Petitioner Civil Service Commission filed
a petition for mandamus which seeks to compel
the respondent Department of Budget and
Management to release the balance of its
budget for fiscal year 2002. It also seeks a
determination by this Court of the extent of the
constitutional concept of fiscal autonomy.
The petitioner claimed that the General
Appropriations Act (GAA) of 2002 appropriated
P215,270,000.00 for its Central Office, with a
total allocation from all sources, amounting to
P285,660,790.44.[1] It complained, however,
that the total fund released by the respondent to
the petitioner during the fiscal year 2002 was
only P279,853,398.14, leaving an unreleased
balance of P5,807,392.30.
The balance was intentionally withheld by
respondent on the basis of its no report, no
release policy, whereby allocations for agencies
are withheld pending their submission of the
documents mentioned in Sections 3.8 to 3.10
and Section 7.0 of National Budget Circular No.
478 on Guidelines on the Release of the FY
2002 Funds.
Issue: W/N, the application of the no report, no
release policy upon independent constitutional
Page 68
bodies like the petitioner, CSC, a violation of the

principle of fiscal autonomy, and therefore,
unconstitutional.
Held: The SC held that the no report, no
release policy may not be validly enforced
against offices vested with fiscal autonomy
without violating Article IX (A), Section 5 of the
Constitution which provides:
Sec. 5. The Commission shall enjoy fiscal
autonomy. Their approved appropriations shall
be automatically and regularly released.
By parity of construction, automatic release of
approved annual appropriations to petitioner, a
constitutional commission, which is vested with
fiscal autonomy, should thus be construed to
mean that no conditions for fund releases may
be imposed. This conclusion is consistent with
the June 3, 1993 Resolution of this Court which
effectively prohibited the enforcement of a no
report, no release policy against the Judiciary
which has also been granted fiscal autonomy by
the Constitution.[10]
The Constitution grants the enjoyment of fiscal
autonomy
only
to the Judiciary,
the
Constitutional Commissions of which petitioner
is one, and the Ombudsman. To hold that
petitioner may be subjected to withholding or
reduction of funds in the event of a revenue
shortfall would, to that extent, place petitioner
and the other entities vested with fiscal
autonomy on equal footing with all others which
are not granted the same autonomy, thereby
reducing to naught the distinction established by
the Constitution.
The agencies which the Constitution has vested
with fiscal autonomy should thus be given
priority in the release of their approved
appropriations over all other agencies not
similarly vested when there is a revenue
shortfall.
Significantly, pertinent General Provisions of the
Year 2002 GAA read as follows:
Sec. 63. Unmanageable National Government

Budget Deficit. Retention or reduction of
appropriations authorized in this Act shall be
effected only in cases where there is
unmanageable national government budget
deficit. (underscoring supplied)
Unmanageable national government budget

deficit as used in this Section shall be
construed to mean that the actual national
government budget deficit has exceeded the
quarterly budget deficit targets consistent with
the full-year target deficit of P130.0 billion as
indicated in the FY 2002 Budget of Expenditures
and Sources of Financing submitted by the
President to Congress pursuant to Section 22,
Article VII of the Constitution or there are clear
economic indications of
an impending
occurrence of such condition, as determined by
the
Development
Budget
Coordinating
Committee and approved by the President.
In contrast, the immediately succeeding
provision of the Year 2002 GAA, which
specifically applied to offices vested with fiscal
autonomy, stated:
Sec. 64. Appropriations of Agencies Vested
with Fiscal Autonomy. Any provision of law
to the contrary notwithstanding, the
appropriations authorized in this Act for the
Judiciary, Congress of the Philippines, the
Commission on Human Rights, the Office of the
Ombudsman, the Civil Service Commission,
the Commission on Audit and the Commission
on Elections shall be automatically and
regularly
released.
(Emphasis
and
underscoring supplied)
Clearly, while the retention or reduction of
appropriations for an office is generally allowed
when there is an unmanageable budget deficit,
the Year 2002 GAA, in conformity with the
Constitution, excepted from such rule the
appropriations for entities vested with fiscal
Page 69
autonomy. Thus, even assuming that there was

a revenue shortfall as respondent claimed, it
could not withhold full release of petitioners
funds without violating not only the Constitution
but also Section 64 of the General Provisions of
the Year 2002 GAA.
This Court is not unaware that its above-cited
June 3, 1993 Resolution also states as a guiding
principle on the Constitutional Mandate on the
Judiciarys Fiscal Autonomy that:
After approval by Congress, the appropriations
for the Judiciary shall be automatically and
regularly released subject to availability of funds.
This phrase subject to availability of funds
does not, however, contradict the present ruling
that the funds of entities vested with fiscal
autonomy should be automatically and regularly
released
a
shortfall
in
revenues
notwithstanding. What is contemplated in the
said quoted phrase is a situation where total
revenue collections are so low that they are not
sufficient to cover the total appropriations for all
entities vested with fiscal autonomy. In such
event, it would be practically impossible to fully
release the Judiciarys appropriations or any of
the entities also vested with fiscal autonomy for
that matter, without violating the right of such
other entities to an automatic release of their
own appropriations. It is under that situation that
a relaxation of the constitutional mandate to
automatically
and
regularly
release
appropriations
is
allowed.
(underscoring
supplied)
Considering that the budget for agencies
enjoying fiscal autonomy is only a small portion
of the total national budget, only in the most
extreme circumstances will the total revenue
collections fall short of the requirements of such
agencies.
With respect to the Judiciary, Art. VIII, Section 3
of the Constitution explicitly provides:
Section 3. The Judiciary shall enjoy fiscal

autonomy. Appropriations for the Judiciary may
not be reduced by the legislature below the
amount appropriated for the previous year
and, after approval, shall be automatically and
regularly
released.[16]
(Emphasis
and
underscoring supplied)
On the other hand, in the parallel provision
granting fiscal autonomy to Constitutional
Commissions, a similar proscription against the
reduction of appropriations below the amount for
the previous year is clearly absent. Article IX
(A), Section 5 merely states:
Section 5. The Commission shall enjoy fiscal
autonomy. Their approved annual appropriations
shall be automatically and regularly released.
The plain implication of the omission of the
provision proscribing such reduction of
appropriations below that for the previous year is
that Congress is not prohibited from reducing
the
appropriations
of
Constitutional
Commissions below the amount appropriated for
them for the previous year.
In light of all the foregoing discussions,
respondents act of withholding the subject funds
from petitioner due to revenue shortfall is hereby
declared UNCONSTITUTIONAL.
Case:
5. Re: Clarifying And Strengthening The
Organizational
Structure
and
Administrative
Set-Up
of
the
Philippine
Judicial
Academy
(PHILJA),
A.M. No. 01-1-04-SCPHILJA, January 31, 2006
Facts: The Court promulgated a Resolution on
February 24, 2004, clarifying and strengthening
the organizational structure and administrative
set-up of the Philippine Judicial Academy
(PHILJA).1 Pursuant to said resolution, the
positions of SC Chief Judicial Staff Officer and
Supervising Judicial Staff Officer with Salary
Page 70
Grades (SG) 25 and 23, respectively, were

created in the following Divisions of the PHILJA:
Publications Division, and External Linkages
Division (Research, Publications and Linkages
Office); Mediation Education and Management
Division (Judicial Reforms Office); Corporate
Planning Division, and Administrative Division
(Administrative and Finance Office). However,
in its Notice of Organization, Staffing, and
Compensation Action (NOSCA) dated May 5,
2005, the Department of Budget and
Management (DBM) downgraded said positions
and their corresponding salary grades, as
follows:
Position
Title/SG per
A.M. No.
01-1-04-SC
SC
Chief
Judicial Staff
Officer/
SG
25
Supervising
Judicial Staff
Officer/SG 23
Position
Title/SG
per
DBM NOSCA
Administrative
Officer V/SG
24
Administrative
Officer
IV/SG22
Remarks
Title
downgraded
and
SG
reduced
Title
downgraded
and
SG
reduced2
On July 5, 2005, the Court issued a Resolution,

retaining "the originally proposed titles and
salary grades of SC Chief Judicial Staff Officer
(SG 25) and Supervising Judicial Staff Officer
(SG 23) in the [PHILJA]".
Issue: W/N, DBMs issuance of the NOSCA
downgrading the Courts proposed positions and
reducing its corresponding salary grades
"undermine the independence of the Judiciary
and impinge on the Supreme Courts exercise of
its fiscal autonomy expressly granted by the
Constitution."
Held: The SC held that the primary role of the
DBM is to breathe life into the policy behind the
Salary Standardization Law of "providing equal
pay for substantially equal work and to base
differences in pay upon substantive differences
in duties and responsibilities, and qualification
requirements of the positions." Pursuant to its

mandate, the DBM is authorized to evaluate and
determine whether a proposed reclassification
and upgrading scheme is consistent with
applicable laws and regulations.5 The task of the
DBM is simply to review the compensation and
benefits plan of the government agency or entity
concerned and determine if it complies with the
prescribed policies and guidelines issued in this
regard. Thus, the role of the DBM is
"supervisorial in nature, its main duty being to
ascertain that the proposed compensation,
benefits and other incentives to be given to
[government] officials and employees adhere to
the policies and guidelines issued in accordance
with applicable laws."6
As such, the authority of the DBM to review
Supreme Court issuances relative to court
personnel on matters of compensation is even
more limited, circumscribed as it is by the
provisions of the Constitution, specifically Article
VIII, Section 37 on fiscal autonomy and Article
VIII, Section 68 on administrative supervision
over court personnel. Fiscal autonomy means
freedom from outside control9, as the Court
explained in Bengzon v. Drilon.10
The Judiciary, the Constitutional Commissions,
and the Ombudsman must have the
independence and flexibility needed in the
discharge of their constitutional duties. The
imposition of restrictions and constraints on the
manner the independent constitutional offices
allocate and utilize the funds appropriated for
their operations is anathema to fiscal autonomy
and violative not only of the express mandate of
the Constitution but especially as regards the
Supreme Court, of the independence and
separation of powers upon which the entire
fabric of our constitutional system is based. In
the interest of comity and cooperation, the
Supreme Court, Constitutional Commissions,
and the Ombudsman have so far limited their
objections to constant reminders. XXX
Clearly then, in downgrading the positions and
salary grades of SC Chief Judicial Staff Officer
Page 71
and SC Supervising Judicial Staff Officer in the

PHILJA, the DBM overstepped its authority and
encroached upon the Courts fiscal autonomy
and supervision of court personnel as enshrined
in the Constitution; in fine, a violation of the
Constitution itself.
Moreover, the General Provisions of the General
Appropriations Act reiterates the constitutional
provision on fiscal autonomy of the Judiciary. In
matters
affecting
court
personnel
and
compensation, the Court is guided by the
Special Provision for the Judiciary under the
General Appropriations Act for FY 2003
(Republic Act No. 9206), which was deemed
reenacted for FY 2004, and hence governed
during the issuance of the Resolution of 24
February 2004. The Special Provision vests the
Chief Justice with the authority to "formulate and
implement the organizational structure of the
Judiciary, to fix and determine the salaries,
allowances and other benefits of their personnel,
and whenever public interest so requires, makes
adjustments in the personal services itemization,
including but not limited to the transfer of item or
creation of new positions in the Judiciary."
It is therefore clear that when the Court
exercises its administrative authority over
matters affecting its personnel, it does so within
parameters prescribed by pertinent laws. It
cannot be presumed that the Court will violate
budgetary laws or go beyond the ambit of its
authority or issue administrative resolutions in
derogation of the law. The exercise of such
authority should not in any case be absolute or
outside the law as, being the ultimate interpreter
of the law, the Court is constitutionally bound to
observe the Constitution and the law it is
mandated to interpret. On the other hand, the
DBM is duty-bound not only to accord respect
for the issuances of the highest Court in the
Judiciary, the third branch of government, but
also to implement them. For the DBM to even
venture to alter a Resolution of the Court is to
violate the basic principle of separation of
powers. xxx
xxx
Thus, the authority of the DBM to "review" the
plantilla and compensation of court personnel
extends only to "calling the attention of the
Court" on what it may perceive as erroneous
application of budgetary laws and rules on
position classification. The DBM may not
overstep its authority in such a way as to cause
the amendment or modification of Court
resolutions
even
if
these
pertain
to
administration of compensation and position
classification system. Only after its attention to
an allegedly erroneous application of the
pertinent law or rule has been called by the DBM
may the Court amend or modify its resolution, as
its judgment and discretion may dictate under
the law.
In this instance, the change of two position titles
was made apparently to conform to position
titles indicated in the personnel services
itemization for all government positions, clearly
oblivious of the fact that positions in the
Judiciary are peculiar only to that branch of
government. It appearing that the salary grades
of 25 and 23 are proper positions equivalent to
those of SC Chief Judicial Staff Officer and
Supervising Judicial Staff Officer, respectively,
under the Salary Standardization Law, and that
the Court prescribed those position titles only
after consideration of the nature of work and
functions that the holders of those positions
must perform, there is no reason to amend the
Resolutions of 24 February 2004, and of 5 July
2005, so as to reflect the position titles and
salary grades stated in the NOSCA for the same
positions.12
CONSIDERING
THE
FOREGOING,
the
Department of Budget and Management is
DIRECTED to implement the Resolutions of the
Court dated February 24, 2004 and July 5, 2005,
retaining the originally proposed titles and salary
grades of the positions of SC Chief Judicial Staff
Officer (SG 25) and Supervising Judicial Staff
Officer (SG 23) in the Philippine Judicial
Academy.
Page 72
Case:
6. Re: COA Opinion on the Computation
of the Appraised Value of the
Properties Purchased by the Retired
Chief/Associate Justices of the
Supreme Court, A.M. No. 11-7-10-SC,
July 31, 2012
Facts: On June 8, 2010, the Legal Services
Sector of the Office of the General Counsel of
the Commission on Audit (COA), issued an
opinion which found the underpayment
amounting to P221,021.50, which resulted when
five (5) retired Supreme Court justices
purchased from the Supreme Court the personal
properties assigned to them during their
incumbency in the Court.
The COA attributed this underpayment to the
use by the Property Division of the Supreme
Court of the wrong formula in computing the
appraisal value of the purchased vehicles by
applying the Constitutional Fiscal Autonomy
Group (CFAG) Joint Resolution No. 35 dated
April 23, 1997 and its guidelines, in compliance
with the Resolution of the Court En Banc dated
March 23, 2004 in A.M. No. 03-12-01,3 when it
should have applied the formula found in COA
Memorandum No. 98-569-A4 dated August 5,
1998.
Issue: W/N, the Commission on Audit (COA)
encroached into the Courts judicial prerogative
in light of the Courts fiscal autonomy, when it
questions and attempts to substitute the Courts
policy in the disposal of its property.
Held: The Judiciarys fiscal autonomy is realized
through the actions of the Chief Justice, as its
head, and of the Supreme Court En Banc, in the
exercise
of
administrative
control
and
supervision of the courts and its personnel. As
the Court En Bancs Resolution (dated March
23, 2004) in A.M. No. 03-12-01 reflects, the
fiscal autonomy of the Judiciary serves as the
basis in allowing the sale of the Judiciarys
properties to retiring Justices of the Supreme
Court and the appellate courts:
XXX by the constitutional mandate of fiscal

autonomy as defined in Bengzon v. Drilon (G.R.
No. 103524, 15 April 1992, 208 SCRA 133, 150)
the Judiciary has "full flexibility to allocate and
utilize (its) resources with the wisdom and
dispatch that (its) needs require";
XXX the long-established tradition and practice
of Justices or Members of appellate courts of
purchasing for sentimental reasons at retirement
government properties they used during their
tenure has been recognized as a privilege
enjoyed only by such government officials; and
XXX the exercise of such privilege needs
regulation to the end that respect for sentiments
that a retiring Justice attaches to properties he
or she officially used during his or her tenure
should be in consonance with the need for
restraint in the utilization and disposition of
government resources.
Thus, under the guarantees of the Judiciarys
fiscal autonomy and its independence, the Chief
Justice and the Court En Banc determine and
decide the who, what, where, when and how of
the privileges and benefits they extend to
justices, judges, court officials and court
personnel within the parameters of the Courts
granted power; they determine the terms,
conditions and restrictions of the grant as
grantor.
In the context of the grant now in issue, the use
of the formula provided in CFAG Joint
Resolution No. 35 is part of the Courts exercise
of its discretionary authority to determine the
manner the granted retirement privileges and
benefits can be availed of. Any kind of
interference on how these retirement privileges
and benefits are exercised and availed of, not
only violates the fiscal autonomy and
independence of the Judiciary, but also
encroaches upon the constitutional duty and
privilege of the Chief Justice and the Supreme
Court En Banc to manage the Judiciarys own
affairs. (underscoring supplied)
As a final point, we add that this view finds full
support in the Government Accounting and
Page 73
Auditing Manual (GAAM), Volume 1, particularly,

Section 501 of Title 7, Chapter 3, which states:
Section 501. Authority or responsibility for
property disposal/divestment. The full and sole
authority and responsibility for the divestment
and disposal of property and other assets owned
by the national government agencies or
instrumentalities, local government units and
government-owned
and/or
controlled
corporations and their subsidiaries shall be
lodged in the heads of the departments,
bureaus, and offices of the national government,
XXX. (underscoring supplied)
This provision clearly recognizes that the Chief
Justice, as the head of the Judiciary, possesses
the full and sole authority and responsibility to
divest and dispose of the properties and assets
of the Judiciary; as Head of Office, he
determines the manner and the conditions of
disposition, which in this case relate to a benefit.
As the usual practice of the Court, this authority
is exercised by the Chief Justice in consultation
with the Court En Banc. However, whether
exercised by the Chief Justice or by the
Supreme Court En Banc, the grant of such
authority and discretion is unequivocal and
leaves no room for interpretations and
insertions.
ACCORDINGLY, premises considered, the inhouse computation of the appraisal value made
by
the
Property
Division,
Office
of
`Administrative Services, of the properties
purchased by the retired Chief Justice and
Associate Justices of the Supreme Court, based
on CFAG Joint Resolution No. 35 dated April 23,
1997, as directed under the Court Resolution
dated March 23, 2004 in A.M. No. 03-12-01, is
CONFIRMED to be legal and valid. Let the
Commission on Audit be accordingly advised of
this Resolution for its guidance.
g. Jurisdiction
Cases which the SC en banc has jurisdiction:
1. On constitutional issues or cases;
2. Petitions where the president exercises

his command in chief powers;
3. When the division vote is not met;
4. When there is a reversal of any doctrine
or decision of the court by division or by
the court en banc in a subsequent case;
5. When the SC acts as the Presidential
Electoral Tribunal (PET); and
6. When there is disciplinary cases
involving disbarment, dismissal or if the
suspension is for more than one year or
the fine is more than 10,000 pesos.
Any other cases involving judges, and justices of
the lower collegiate courts or lawyers or if it
involves none of the cases listed above, then the
decision may be validly rendered by a division.
Two other provisions of the constitution which
affect the jurisdiction of the SC:
1. Congress cannot by law deprive the SC
of the jurisdiction over those cases
mentioned in Art. VIII, Sec. 5 (2); and
2. Cases where Congress would increase the
appellate jurisdiction of the SC, it must have the
prior conformity of the SC. (as held in the case
regarding the validity of the review of
administrative cases under RA 6770, the law
creating the Office of the Ombudsman. It must
have the prior concurrence of the SC)
Other cases are those affecting Questions of
law. When would a case be considered involving
a question of law?
It is characterized by the Conflict in the
interpretation or application of the law and there
is no conflict in the interpretation of facts. If the
case involves merely on the question on what
law should be applied or how it should be
applied, and the facts are either admitted or
disputed, it is a pure question of law. Any
evidentiary matters, that would be considered
Page 74
questions of facts, which the SC has no direct

jurisdiction. Eventually in cases where it would
reach the SC, questions of fact may
nevertheless be resolved by the SC.
Ex.
1. Death penalty imposed by lower court,
there is automatic review by the SC.
When the conviction is automatically
reviewed by the SC, by force of
circumstance, the SC has to rule on the
evidentiary questions; and
2. When the commander in chief exercises
any of its powers, the petition on the
sufficiency of the factual basis, will have
to be filed before the SC only. In which
case, the SC will have to tackle and
resolve the questions of facts.
In Makalintal vs. PET, the SC acts as the
Presidential Electoral Tribunal, which is one of
those cases where the SC exercises judicial
power of a specialized kind. Petitioner contends
that the SC sitting as PET is unconstitutional,
that the SC cannot act as PET because courts
are limited from performing other than judicial
functions. The SC resolved that his claim is not
right because the Constitution allows the SC to
act as PET. Besides, even if it is not strictly
judicial power, election contest involves the
exercise of judicial determination of conflicting
rights, on who is entitled to the office, by
question of either qualification or if its quo
warranto, disloyalty to the republic.
Art. VIII. Section 1. The judicial power shall be
vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the
Government.
Art. VIII. Section 5. The Supreme Court shall

have the following powers:
1. Exercise original jurisdiction over cases
affecting ambassadors, other public
ministers and consuls, and over
petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas
corpus.
2. Review, revise, reverse, modify, or
affirm on appeal or certiorari, as the law
or the Rules of Court may provide, final
judgments and orders of lower courts in:
a. All cases in which the
constitutionality or validity of any
treaty, international or executive
agreement, law, presidential
decree, proclamation, order,
instruction,
ordinance,
or
regulation is in question.
b. All cases involving the legality of
any tax, impost, assessment, or
toll, or any penalty imposed in
relation thereto.
c. All cases in which the
jurisdiction of any lower court is
in issue.
d. All criminal cases in which the
penalty imposed is reclusion
perpetua or higher.
e. All cases in which only an error
or question of law is involved.
3. Assign temporarily judges of lower
courts to other stations as public interest
may
require.
Such
temporary
assignment shall not exceed six months
without the consent of the judge
concerned.
4. Order a change of venue or place of trial
to avoid a miscarriage of justice.
5. Promulgate rules concerning the
protection
and
enforcement
of
constitutional rights, pleading, practice,
and procedure in all courts, the
admission to the practice of law, the
integrated bar, and legal assistance to
the under-privileged. Such rules shall
provide a simplified and inexpensive
procedure for the speedy disposition of
Page 75
cases, shall be uniform for all courts of

the same grade, and shall not diminish,
increase, or modify substantive rights.
Rules of procedure of special courts and
quasi-judicial bodies shall remain
effective unless disapproved by the
Supreme Court.
6. Appoint all officials and employees of
the Judiciary in accordance with the
Civil Service Law.
Art. VII. Section 18 (par. 3). 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.
Art. VII. Section 4 (par. 7). 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.
Art. IX, A, Section 7. Each Commission shall
decide by a majority vote of all its Members, any
case or matter brought before it within sixty days
from the date of its submission for decision or
resolution. A case or matter is deemed
submitted for decision or resolution upon the
filing of the last pleading, brief, or memorandum
required by the rules of the Commission or by
the Commission itself. Unless otherwise
provided by this Constitution or by law, any
decision, order, or ruling of each Commission
may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty
days from receipt of a copy thereof.
Case:
7. Annotation Supreme Court re: Jose
Suan, Petitioner, Vs. National Labor
Relations Commission, Irma Fishing
And Trading Inc., Roberto Del
Rosario And Emiliano Oripaypay,
Respondents, G.R. No. 141441, June

19, 2001
Facts: Jose Suan filed a petition for review on
certiorari seeking to annul and set aside the
decision dated August 17, 1999 of the
1
respondent Court of Appeals which affirmed the
decision of the NLRC and the Labor Arbiter
dismissing the petitioners illegal dismissal case
against private respondents and the resolution
denying petitioners motion for reconsideration.2
Issue: W/N, petitioners remedy of filing the
petition for review on certiorari before the
Supreme Court was proper.
Held: The SC ruled that the petition was without
merit. The Court found the petition was
essentially raising a factual issue, whether
petitioner was illegally dismissed from his
employment by the private respondents.
In petitions for review of decisions of the Court
of Appeals, the jurisdiction of the Supreme Court
is confined to a review of questions of law,
except where the findings of fact are not
supported by the record or are so glaringly
erroneous as to constitute a serious abuse of
discretion.8 It is a settled ruling that the Supreme
Court is not a trier of facts.9 (underscoring
supplied)
The arguments herein raised are mere rehash of
petitioners contentions in his memorandum filed
with the NLRC and in his petition for certiorari
filed with the respondent court. We find no
cogent reason to disturb the findings of the
respondent Court of Appeals that no grave
abuse of discretion was committed by the
respondent NLRC and Labor Arbiter in finding
and declaring that petitioner was not dismissed
by the private respondent and hence not entitled
to backwages.
Case:
8. Evelyn Ongsuco And Antonia Salaya,
Petitioners, V. Hon. Mariano M.
Malones, Both In His Private And
Official Capacity As Mayor Of The
Municipality
Of
Maasin,
Iloilo,
Respondent,
G.R.
No.
182065,
October 27, 2009
Page 76
Facts: Petitioners, Evelyn Ongsuco and Antonia

Salaya, filed a Petition for Review on Certiorari
under Rule 45 of the Rules of Court, assailing
1
the Decision of the Court of Appeals dated 28
2
November 2006, affirming the Decision of the
Regional Trial Court (RTC), Branch 39, of Iloilo
City, dated 15 July 2003, in a Civil Case
dismissing the special civil action for
Mandamus/Prohibition with Prayer for Issuance
of a Temporary Restraining Order and/or Writ of
Preliminary Injunction, filed by the petitioners
against respondent Mayor Mariano Malones of
the Municipality of Maasin, Iloilo.
Petitioners are stall holders of the newly
renovated Maasin Public Market, which imposes
an
increased
goodwill
fees
of
P20,000.00/month in contrast with the previous
P45.00/month rent prior to the renovation, as
sanctioned by the Municipal Ordinance No. 9801, entitled "The Municipal Revised Revenue
Code" approved on 17 August 1998. The same
Code authorized respondent to enter into lease
contracts over the said market stalls,5 and
incorporated a standard contract of lease for the
stall holders at the municipal public market. On
18 September 1988, the Sangguniang Bayan of
Maasin passed a Resolution No. 68 declaring
the public hearing dated 11 August 1988
inoperative because majority of the persons
affected by the imposition of the goodwill fee
failed to agree to the said measure. However,
the respondent Mayor vetoed the resolution.
Thereafter, the respondent Mayor sent a letter to
the petitioners informing them that the stalls
were considered vacant and open for any
qualified and interested applicants, due to the
fact that they did not have a new lease contract
required by the new ordinance.
Issue: W/N, petition for review on certiorari
under Rule 45 assailing the decision of the CA
before the SC is proper, where petitioners raise
the following issues:
I WHETHER OR NOT THE PETITIONERS
HAVE
EXHAUSTED
ADMINISTRATIVE
REMEDIES BEFORE FILING THE INSTANT
CASE IN COURT;
II
WHETHER OR NOT EXHAUSTION OF
ADMINISTRATIVE REMEDIES IS APPLICABLE
IN THIS CASE; AND
III WHETHER OR NOT THE APPELLEE
MARIANO MALONES WHO WAS THEN THE
MUNICIPAL MAYOR OF MAASIN, ILOILO HAS
COMMITTED
GRAVE
ABUSE
OF
DISCRETION.25
Held:
1. On issues 1 and 2, the Court determines
that there is no need for petitioners to
exhaust administrative remedies before
resorting to the courts.
The findings of both the RTC and the Court of
Appeals
that
the
Petition
for
Prohibition/Mandamus in the Civil Case was
premature is anchored on Section 187 of the
Local Government Code, which reads:
Section 187. Procedure for Approval and
Effectivity of Tax Ordinances and Revenue
Measures; Mandatory Public Hearings. The
procedure for approval of local tax ordinances
and revenue measures shall be in accordance
with the provisions of this Code: Provided, That
public hearings shall be conducted for the
purpose prior to the enactment thereof:
Provided, further, That any question on the
constitutionality or legality of tax ordinances or
revenue measures may be raised on appeal
within thirty (30) days from the effectivity thereof
to the Secretary of Justice who shall render a
decision within sixty (60) days from the date of
receipt of the appeal: Provided, however, That
such appeal shall not have the effect of
suspending the effectivity of the ordinance and
the accrual and payment of the tax, fee, or
charge levied therein: Provided, finally, That
within thirty (30) days after receipt of the
decision or the lapse of the sixty-day period
without the Secretary of Justice acting upon the
appeal, the aggrieved party may file appropriate
proceedings with a court of competent
jurisdiction.
It is true that the general rule is that before a
party is allowed to seek the intervention of the
court, he or she should have availed himself or
herself of all the means of administrative
Page 77
processes afforded him or her. Hence, if resort

to a remedy within the administrative machinery
can still be made by giving the administrative
officer concerned every opportunity to decide on
a matter that comes within his or her jurisdiction,
then such remedy should be exhausted first
before the court's judicial power can be sought.
The premature invocation of the intervention of
the court is fatal to one's cause of action. The
doctrine of exhaustion of administrative
remedies is based on practical and legal
reasons. The availment of administrative remedy
entails lesser expenses and provides for a
speedier
disposition
of
controversies.
Furthermore, the courts of justice, for reasons of
comity and convenience, will shy away from a
dispute until the system of administrative
redress has been completed and complied with,
so as to give the administrative agency
concerned every opportunity to correct its error
and dispose of the case. However, there are
several exceptions to this rule.26
The rule on the exhaustion of administrative
remedies is intended to preclude a court from
arrogating unto itself the authority to resolve a
controversy, the jurisdiction over which is initially
lodged with an administrative body of special
competence. Thus, a case where the issue
raised is a purely legal question, well within the
competence; and the jurisdiction of the court and
not the administrative agency, would clearly
constitute an exception.27 Resolving questions of
law, which involve the interpretation and
application of laws, constitutes essentially an
exercise of judicial power that is exclusively
allocated to the Supreme Court and such lower
28
courts the Legislature may establish.
In this case, the parties are not disputing any
factual matter on which they still need to present
evidence. The sole issue petitioners raised
before the RTC in Civil Case No. 25843 was
whether Municipal Ordinance No. 98-01 was
valid and enforceable despite the absence, prior
to its enactment, of a public hearing held in
accordance with Article 276 of the Implementing
Rules and Regulations of the Local Government
Code. This is undoubtedly a pure question of

law, within the competence and jurisdiction of
the RTC to resolve.
Paragraph 2(a) of Section 5, Article VIII of the
Constitution, expressly establishes the appellate
jurisdiction of this Court, and impliedly
recognizes the original jurisdiction of lower
courts over cases involving the constitutionality
or validity of an ordinance:
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. (underscoring supplied)
Although not raised in the Petition at bar, the
Court is compelled to discuss another
procedural issue, specifically, the declaration by
the RTC, and affirmed by the Court of Appeals,
that petitioners availed themselves of the wrong
remedy
in
filing
a
Petition
for
Prohibition/Mandamus before the RTC.
Sections 2 and 3, Rule 65 of the Rules of the
Rules of Court lay down under what
circumstances petitions for prohibition and
mandamus may be filed, to wit:
SEC. 2. Petition for prohibition. - When the
proceedings of any tribunal, corporation, board,
officer or person, whether exercising judicial,
quasi-judicial or ministerial functions, are without
or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal or
any other plain, speedy, and adequate remedy
in the ordinary course of law, a person
aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty
and praying that judgment be rendered
Page 78
commanding the respondent to desist from

further proceedings in the action or matter
specified therein, XXX.
SEC. 3. Petition for mandamus . - When any
tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act
which the law specifically enjoins as a duty
resulting from an office, trust, or station, or
unlawfully excludes another from the use and
enjoyment of a right or office to which such other
is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the
facts with certainty and praying that judgment be
rendered
commanding
the
respondent,
immediately or at some other time to be
specified by the court, to do the act required to
be done to protect the rights of the petitioner,
and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the
respondent. (Emphases ours.)
In a petition for prohibition against any tribunal,
corporation, board, or person - - whether
exercising judicial, quasi-judicial, or ministerial
functions - - who has acted without or in excess
of jurisdiction or with grave abuse of discretion,
the petitioner prays that judgment be rendered,
commanding the respondent to desist from
further proceeding in the action or matter
specified in the petition.32 On the other hand, the
remedy of mandamus lies to compel
performance of a ministerial duty.33 The
petitioner for such a writ should have a welldefined, clear and certain legal right to the
performance of the act, and it must be the clear
and imperative duty of respondent to do the act
34
required to be done.
In this case, petitioners' primary intention is to
prevent
respondent
from
implementing
Municipal Ordinance No. 98-01, i.e., by
collecting the goodwill fees from petitioners and
barring them from occupying the stalls at the
municipal public market. Obviously, the writ
petitioners seek is more in the nature of
prohibition (commanding desistance), rather

than mandamus (compelling performance).
For a writ of prohibition, the requisites are:
(1) the impugned act must be that of a "tribunal,
corporation, board, officer, or person, whether
exercising judicial, quasi-judicial or ministerial
functions"; and
(2) there is no plain, speedy, and adequate
remedy in the ordinary course of law."35
The exercise of judicial function consists of the
power to determine what the law is and what the
legal rights of the parties are, and then to
adjudicate upon the rights of the parties. The
term quasi-judicial function applies to the action
and discretion of public administrative officers or
bodies that are required to investigate facts or
ascertain the existence of facts, hold hearings,
and draw conclusions from them as a basis for
their official action and to exercise discretion of a
judicial nature. In implementing Municipal
Ordinance No. 98-01, respondent is not called
upon to adjudicate the rights of contending
parties or to exercise, in any manner, discretion
of a judicial nature.
A ministerial function is one that an officer or
tribunal performs in the context of a given set of
facts, in a prescribed manner and without regard
for the exercise of his or its own judgment, upon
the propriety or impropriety of the act done.36
The Court holds that respondent herein is
performing a ministerial function.
The Court further notes that respondent already
deemed petitioners' stalls at the municipal public
market vacated. Without such stalls, petitioners
would be unable to conduct their businesses,
thus, depriving them of their means of livelihood.
It is imperative on petitioners' part to have the
implementation of Municipal Ordinance No. 9801 by respondent stopped the soonest. As this
Court has established in its previous discussion,
there is no more need for petitioners to exhaust
administrative remedies, considering that the
fundamental
issue
between them
and
respondent is one of law, over which the courts
Page 79
have competence and jurisdiction. There is no

other plain, speedy, and adequate remedy for
petitioners in the ordinary course of law, except
to seek from the courts the issuance of a writ of
prohibition commanding respondent to desist
from continuing to implement what is allegedly
an invalid ordinance.
2. On the validity of Municipal Ordinance
N. 98-01, the SC ruled that:
While the respondent maintains that the
imposition of goodwill fees upon stall holders at
the municipal public market is not a revenue
measure that requires a prior public hearing, and
that rentals and other consideration for
occupancy of the stalls at the municipal public
market are not matters of taxation, the SC rules
that respondent's argument is specious.
Article 219 of the Local Government Code
provides that a local government unit exercising
its power to impose taxes, fees and charges
should comply with the requirements set in Rule
XXX, entitled "Local Government Taxation":
Article 219. Power to Create Sources of
Revenue. Consistent with the basic policy of
local autonomy, each LGU shall exercise its
power to create its own sources of revenue and
to levy taxes, fees, or charges, subject to the
provisions of this Rule. Such taxes, fees, or
charges shall accrue exclusively to the LGU.
Article 221(g) of the Local Government Code of
1991 defines "charges" as:
Article 221. Definition of Terms.
xxx
(g) Charges refer to pecuniary liability, as rents
or fees against persons or property.
Evidently, the revenues of a local government
unit do not consist of taxes alone, but also other
fees and charges. And rentals and goodwill fees,
imposed by Municipal Ordinance No. 98-01 for
the occupancy of the stalls at the municipal
public market, fall under the definition of
charges. (underscoring supplied)
For the valid enactment of ordinances imposing
charges, certain legal requisites must be met.
Section 186 of the Local Government Code

identifies such requisites as follows:
Section 186. Power to Levy Other Taxes, Fees
or Charges. Local government units may
exercise the power to levy taxes, fees or
charges on any base or subject not otherwise
specifically enumerated herein or taxed under
the provisions of the National Internal Revenue
Code, as amended, or other applicable laws:
Provided, That the taxes, fees or charges shall
not
be
unjust,
excessive,
oppressive,
confiscatory or contrary to declared national
policy: Provided, further, That the ordinance
levying such taxes, fees or charges shall not be
enacted without any prior public hearing
conducted for the purpose. (underscoring
supplied.)
Section 277 of the Implementing Rules and
Regulations of the Local Government Code
establishes in detail the procedure for the
enactment of such an ordinance, relevant
provisions of which are reproduced below:
Section 277. Publication of Tax Ordinance and
Revenue Measures. x x x.
xxx
(b) The conduct of public hearings shall be
governed by the following procedure:
xxx
(2) In addition to the requirement for publication
or posting, the sanggunian concerned shall
cause the sending of written notices of the
proposed ordinance, enclosing a copy thereof,
to the interested or affected parties operating or
doing business within the territorial jurisdiction of
the LGU concerned.
(3) The notice or notices shall specify the date or
dates and venue of the public hearing or
hearings. The initial public hearing shall be held
not earlier than ten (10) days from the sending
out of the notice or notices, or the last day of
publication, or date of posting thereof, whichever
is later;
xxx
(c) No tax ordinance or revenue measure shall
be enacted or approved in the absence of a
Page 80
public hearing duly conducted in the manner

provided under this Article. (underscoring
supplied)
It is categorical, therefore, that a public hearing
be held prior to the enactment of an ordinance
levying taxes, fees, or charges; and that such
public hearing be conducted as provided under
Section 277 of the Implementing Rules and
Regulations of the Local Government Code.
There is no dispute herein that the notices sent
to petitioners and other stall holders at the
municipal public market were sent out on 6
August 1998, informing them of the supposed
"public hearing" to be held on 11 August 1998.
Even assuming that petitioners received their
notice also on 6 August 1998, the
"public hearing" was already scheduled, and
actually conducted, only five days later, on 11
August 1998. This contravenes Article 277(b)(3)
of the Implementing Rules and Regulations of
the Local Government Code which requires that
the public hearing be held no less than ten days
from the time the notices were sent out, posted,
or published.
When the Sangguniang Bayan of Maasin sought
to correct this procedural defect through
Resolution No. 68, series of 1998, dated 18
September 1998, respondent vetoed the said
resolution. Although the Sangguniang Bayan
may have had the power to override
respondent's veto,37 it no longer did so.
The defect in the enactment of Municipal
Ordinance No. 98 was not cured when another
public hearing was held on 22 January 1999,
after the questioned ordinance was passed by
the Sangguniang Bayan and approved by
respondent on 17 August 1998. Section 186 of
the Local Government Code prescribes that the
public hearing be held prior to the enactment by
a local government unit of an ordinance levying
taxes, fees, and charges.
cannot be given any effect. Consequently, a void

and ineffective ordinance could not have
conferred upon respondent the jurisdiction to
order petitioners' stalls at the municipal public
market vacant.
IN VIEW OF THE FOREGOING, the instant
Petition is GRANTED. The assailed Decision
dated 28 November 2006 of the Court of
Appeals in CA-G.R. SP No. 86182 is
REVERSED and SET ASIDE. Municipal
Ordinance No. 98-01 is DECLARED void and
ineffective, and a writ of prohibition is ISSUED
commanding the Mayor of the Municipality of
Maasin, Iloilo, to permanently desist from
enforcing the said ordinance. Petitioners are
also DECLARED as lawful occupants of the
market stalls they occupied at the time they filed
the Petition for Mandamus/Prohibition XXX. In
the event that they were deprived of possession
of the said market stalls, petitioners are entitled
to recover possession of these stalls.
(underscoring supplied).
Case:
9. Henlin Panay Company And/Or
Edwin Francisco/Angel Lazaro III,
Petitioners, vs. National Labor
Relations Commission (Nlrc) And
Nory A. Bolanos, Respondents, G.R.
No. 180718 , October 23, 2009
Facts: Petitioners filed a petition for review on
certiorari with the Supreme Court questioning
the Decision1 dated October 9, 2007 and the
2
Resolution dated November 26, 2007 of the
3
Court of Appeals affirming the Resolution dated
January 31, 2007 of the National Labor
Relations Commission (NLRC) declaring
petitioners liable for illegally dismissing
respondent Nory A. Bolanos.
Since no public hearing had been duly

conducted prior to the enactment of Municipal
Ordinance No. 98-01, said ordinance is void and
Page 81
Issue: W/N, the CA erred in affirming the

decision of the NLRC declaring the petitioners
liable for the illegal dismissal of the respondent.
Held: The SC affirmed and modified the
decision of the CA confirming the resolution of
the NLRC in declaring the petitioners liable for
the illegal dismissal of the respondent. The
Court held that:
To constitute abandonment, there must be a
clear and deliberate intent to discontinue one's
employment without any intention of returning.
Two elements must concur:
(1) failure to report for work or absence without
valid or justifiable reason, and
(2) a clear intention to sever the employeremployee relationship, with the second element
as the more determinative factor and being
manifested by some overt acts.13 It is the
employer who has the burden of proof to show a
deliberate and unjustified refusal of the
employee to resume his employment without
any intention of returning.14
In the instant case, petitioners failed to prove
that it was Bolanos who refused to report for
work despite being asked to return to work.
Petitioners merely presented the affidavits of the
officers of Henlin Panay narrating their version
of the facts. These affidavits, however, are not
only insufficient but also undeserving of credit as
they are self-serving. Petitioners failed to
present memoranda or show-cause letters
served on Bolanos at her last known address
requiring her to report for work or to explain her
absence, with a warning that her failure to report
would be construed as abandonment of work.
Also, if indeed Bolanos abandoned her work,
petitioners should have served her a notice of
termination as required by law. Petitioners'
failure to comply with said requirement bolsters
Bolanos's claim that she did not abandon her
work but was dismissed.
Clearly, Bolanos's case is one of illegal
dismissal. First, there is no just or authorized
cause for petitioners to terminate her
employment. Her alleged act of dishonesty of

"passing out" food for free was not proven.
Neither was there incompetence on her part
when some food items were not punched in the
cash register as she was not the cashier
manning it when the food items were ordered. In
fact, the other cashier even owned up to said
mistake. Second, Bolanos was not afforded due
process by petitioners before she was
dismissed. A day after the incident, she was
verbally dismissed from her employment without
being given the chance to be heard and defend
herself.
h. Congressional
Power
over
Jurisdiction of Supreme Court
There are basically two provisions there: Section
2(1) of Article VIII states that Congress cannot
deprive the Supreme Court of jurisdiction over
cases mentioned in Section 5. Typically, this
would refer to the original action under Section
5(1) and the appealed cases under Section 5(2).
The other would refer to those questions of law
and those wherein the penalty imposed in
criminal cases is reclusion perpetua or higher.
The case of Fabian v. Desierto speaks of
Republic Act 6770, the creation of the Office of
the Ombudsman where there was a provision
there that the decisions of the Ombudsman over
certain cases are directly reviewable by the
Supreme Court, which SC declared as an
unconstitutional provision considering that when
that law was passed, the prior consent and
concurrence of the Supreme Court was not
secured according to what is provided under
Section 30 of Article VI.
Art. VIII. Section 2 (par 1). 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.
Art. VI. Section 30. No law shall be passed
increasing the appellate jurisdiction of the
Page 82
Supreme Court as provided in this Constitution

without its advice and concurrence.
i.
Administrative Powers
Supervision of the lower courts highlights one

principle, that the SC has administrative power
over all judges of all collegiate courts and court
personnel. This prohibits other agencies of the
government, particularly the Office of the
Ombudsman, to exercise primary jurisdiction
and even preliminary investigation over the
administrative cases involving justices, judges,
and other court personnel. Any complaints must
first be filed and eventually resolved by the SC.
With respect to criminal cases, it has to be
determined whether done in the performance of
their administrative or judicial functions, in which
case, the SC has the first primary jurisdiction.
1.) Temporary assign judges to other
places in the public interest
Due to the demands or the exigencies of
service, with a lot of courts which have remained
vacant, the SC can make temporary
appointments. The temporary designation or
assignment shall not exceed six (6) months
without the consent of the judge concerned. The
reason for this is that when the President
appoints a person to be a member of the
judiciary, that is a permanent appointment. The
station is permanent and a judge cannot be
appointed by the SC to sit in another court.
Judges cannot be appointed temporary because
it violates independence and security of tenure.
have to be made upon request by either of the

parties most especially by the prosecution. The
SC will have to issue an order directing such
case to be transferred. Until then, the place
where the crime was committed would have to
exercise jurisdiction over the criminal case.
Art. VIII. Section 5 (par. 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.
Art. VIII. Section 5 (par. 4) Order a change of
venue or place of trial to avoid a miscarriage of
justice.
voted in thereon.
Art. VIII. Section 5 (par. 6). Appoint all officials
and employees of the Judiciary in accordance
with the Civil Service Law.
j. Rule Making
2.) Order place of venue or place of trial

to avoid miscarriage of justice
The rule-making power under Sec. 5(5) refers to

protection and enforcement of constitutional
rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the
integrated bar and legal assistance to the underprivileged.
Unlike in civil cases, where the parties can

agree on the venue, venue in criminal cases is
jurisdictional. In order to avoid a miscarriage of
justice, simply because there might be refusal or
reluctance on the part of witnesses to testify or
there is no available voluntary witnesses in the
venue where the case is filed, there may be an
order of change of venue. This, however, must
This includes the petition for taking the bar

exams. The Rules of Court provides for the
passing rate of 75% with no grade below 50%. If
you get 49% in any of the 8 subjects, youre
supposed to be disqualified. Just recently, the
SC has removed the disqualification. So even if
you get 49% in any 2 of the 8 subjects, and all
the rest is 100%, you still become a lawyer. This
Page 83
was the subject of a very old case, the Bar

Flunkers case. The issue was whether
Congress can enact a law lowering the passing
rate in the bar. The SC held that it is
unconstitutional because admission to the
Philippine Bar is part of the constitutional power
of the SC under its rule-making power.
Under the legal assistance to the underprivileged, Rule 138-A is an example of this.
This is the Limited Law Student Practice Rule.
The indigents can be legally assisted by a law
student who has finished third year in law
school. If you finish third year in law school, you
are already considered learned in the law and a
legal practitioner under the limited law student
practice rule. The only difference is that, you are
not yet a member of the Philippine Bar, not
covered by the ethics, and you can commit
mistakes because you are still under the
supervision of a lawyer. These are subject to
these conditions; it must be simplified,
inexpensive, uniform for all course of the same
grade, must not diminish, increase, or modify
substantiveness. One of the rules relevant to
this is the SC resolution involving the conduct of
activities or rallies or pickets in courtrooms or
courthouses. The SC said it is a content neutral
restriction because it prevents these acts from
disrupting court activities. It is unlawful to
conduct these activities within 200 meter radius
from the court room or courthouse. Otherwise,
you can be held liable for contempt. Does the
resolution, part of the rule-making power of the
SC,
diminish
or
modify
or
increase
substantiveness?
When you pass the bar, you become a member
of the Philippine Bar. It has long been settled in
the case of Edillon vs. Mallari that membership
in the IBP is a precondition for the practice of
law. But membership is one thing, being allowed
to practice is another. Non-payment of the
membership dues does not allow a member of
the IBP to practice law. In recent years, the SC
has come up with different resolutions; like in
your pleading, you must have to indicate your
MCLE compliance; otherwise, your pleading is
considered unsigned. You must have to include

your telephone number and your email address
in your pleading, otherwise, your pleading is
considered unsigned. Recently, there has been
the e-practice in the practice of the profession.
When you file petition electronically in the court,
you must have to include a soft copy or a usb or
cd. What if theres an old lawyer who does not
know anything about computers. So, he is not
allowed to go to the SC practice because he
does not comply with the rules on e-practice. Is
that a violation of your substantive right to
practice law in the Philippines? He has been
admitted in the bar, taken the oath and signed
the roll.
In the 1935 Constitution, it is stated under
Section 13 of Article VIII that the Congress shall
have the power to repeal, alter or supplement
the Rules concerning pleading, practice,
procedure or the rule-making powers of the
Supreme Court. Congress has that express
authority. In the 1973 Constitution, this was
rephrased and the rules promulgated by the SC
may be repealed, altered or supplemented by
the Batasang Pambansa, which was then the
Congress. In the 1987 Constitution, there is no
similar provision. So the question is: can
Congress, under the 87 Constitution, still repeal,
alter or supplement these rules promulgated by
the SC under its rule-making powers? In the
case of Echegaray vs. Secretary, the SC held
that Congress can no longer exercise that power
because the 1987 Constitution has expanded
the rule-making powers of the SC and omitted
such power of the Congress. Such omission
showed the intent of the framers to grant the SC
the rule-making power in its entirety without any
power remaining with Congress.
Art. VIII. Section 5 (par. 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,
Page 84
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.
Art. XII. Section 14 (par 2). The practice of all
professions in the Philippines shall be limited to
Filipino citizens, save in cases prescribed by
law.
k. No
quasi-judicial
and
administrative work of Judges
Supreme Court and of other courts established
by law shall not be designated to any agency
performing quasi-judicial or administrative
function.
l. Report on the Judiciary
Art. 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 number of
votes required.
We mentioned already the cases that the SC
shall hear and decide en banc. Now, with
respect to voting, it follows what is commonly
referred to as shifting majority. Unlike before,
where the rules are strict, we have the 2/3 rule
before on all issues involving constitutional
questions, now it largely depends on a majority
of the members of the Court who actually took
part on the issues and deliberated thereon.
What needs to be determined is that whether
there is a quorum. From the 15 members of the
court, there must have to be a quorum, which

the SC normally follows, shall mean more than
half. The number which is more than half is
supposed to be the number which constitutes
the majority for purposes of quorum. Out of the
quorum, a majority of those who actually took
part in the issues deliberated thereon, will have
to determine whether or not there is a majority
vote of the decision of the court en banc. In
division, there is a special rule there that while it
still follows the shifting majority rule, there is a
limitation that in no case shall there be less than
three votes. So, if Supreme Court shall be in a
division of three members, there must have to
be a unanimous vote among the sitting Justices.
Which number shall be included for purposes of
quorum? The number which represents the total
membership of the Court. What about those who
actually did not take part? Are their numbers
considered? If there is a Division, is that person
considered? Again, only those who actually took
part in the deliberation of the issues shall be
considered for purposes of majority for a valid
quorum in the Court.
If a Division decision is not reached despite prior
consultation, the issue or case shall be referred
to the Court en banc. If the court en banc in the
civil case or petition has not reached the
required majority or are equally divided, the
requirement under Rule 56, Section 7 that the
Court will deliberate on the case again will be
applied. If still, after deliberation, no vote is
reached or the Court is equally divided, then the
rules state that if it is an original action or
petition, it shall be dismissed. If it is an appealed
case, the appealed decision shall be considered
affirmed. All other incidents of the petition are
deemed denied. In instances involving criminal
decisions under Section 3 of Rule 125, there will
be a deliberation. After deliberation, if the Court
is still divided or the majority vote is not reached,
the Court will deliberate on the case again. If
nd
after the 2 deliberation, still the Court is divided
or the majority vote is not reached, then the
judgment of conviction in the lower court is
Page 85
deemed reversed and the accused shall be set

free.
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
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 decisions
There are two basic requirements with respect
to the decision making of the courts: the formal
requirements and the substantive requirements.

With respect to the formal requirements, the SC
and the lower collegiate courts follow what is
known as the rule on certification. Meaning,
before the decision is read and written, there
must have to be a consultation with the other
members of the court and a certification is
required to that effect to be appended in the
decision. However, there have been several
cases in the past that even if the certification is
wanting; it does not make the decision invalid
because the presumption of regularity is still
there. Meaning, the presumption that they have
consulted each other before the decision has
been reached and assigned to a ponente for the
writing of the main ruling or of the decision after
a voting has been done and complied with. The
problem is that it may amount to an
administrative liability to the justices or to the
court involved for failing to write or include the
certification.
Now, the other formal requirement would be if
there is a dissent, the dissenting opinion must
have to be written. Or if there is abstention or
refusal to participate, the reasons for the refusal
to participate or inhibition must also be
indicated. Of course, because the majority is the
decision of the Court, those who agree or concur
to the decision are not required to write a
separate concurring opinion, though they are not
prohibited. In some cases, if you notice,
because it is constitutionally required in form
that there is a separate dissenting opinion to be
written, some justices who would not want to
write a separate dissent would just join the
dissent of another. That would substantially
comply with the constitutional requirement.
The substantive requirement of a decision in all
courts for that matter, is that the decisions must
have to expressly and distinctly contain the facts
and the law on the specific case based on the
first paragraph of Sec. 14. It is specifically
required for the purpose of complying with due
process. Parties to the case must know how the
court has reached the decision so that if there is
a need to have it appealed or have it reviewed
Page 86
by a higher court; the parties may know how to

assign and what errors to assign. There is no
requirement as to how it is to be written. You
can have it written with headings like Justice
Velasco; what the facts are, proceedings in the
lower court, decisions of the lower court, issues
before the SC and the decision of the SC. You
can have it written in prose and poetry like
Justice Isagani Cruz or in memorandum type
like the decision of former Associate Justice
Arturo Joaquin. A memorandum decision is a
decision which simply copies material portions of
the decision subject of the review. The
Constitution does not prohibit it and the Rules of
Court does not make these Memorandum
decisions invalid. If the facts and the law are
expressed therein for the parties to understand,
and how the Court has reached the decision,
then it substantially complies with the
requirement.
The second paragraph of Section 14 requires
the legal reason for the denial of a petition for
review or motion for reconsideration. This is a
new addition which gives the lawyers the legal
basis of the denial of the petition for review or
motion for reconsideration. In the case of
Mangelen vs. CA, the SC grants the motion for
reconsideration. The court does not have to
apply the second paragraph which requires
stating the legal basis because it is not a denial
of the motion for reconsideration. The first
paragraph of Section 14 must be applied, which
requires that the decision must restate the law
and the facts of the case because it is a new
decision.
Art. 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.
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.
o. Mandatory Period for deciding
cases
For lower courts, 90 days; for lower collegiate
courts, 12 months; for the Supreme Court, 24
months. The period for deciding cases would be
counted from or commenced from the time the
case is submitted for decision. It is not really the
90 days, 12 months, and 24 months periods
strictly, because cases are deemed submitted
for decision only until all the evidence are in, or
the period to submit evidence has lapsed or the
parties have submitted their memorandum or
brief, as required, or the period to do so has
already lapsed without any of them being filed.
These periods are both mandatory and
discretionary. Discretionary in the sense that
with respect to the decisions rendered after
these periods, the decisions will not be invalid
simply because they were promulgated after the
said periods. They remain to be valid for so long
as they are valid to begin with. However, with
respect to those persons who are tasked to
render these decisions, they are mandatory.
There are a lot of cases, most of them in your
outline are on that point. Trial court judges who
have failed to resolve issues, motions or decide
cases within the mandated period have been
fined with variable amounts depending on the
gravity of the delay. These are, in that sense,
mandatory. But we have yet to see a decision of
the SC penalizing one or all of them for failing to
comply with the 24-month period. There was
one in the Sandiganbayan, the late Presiding
Justice Garchitorena was dismissed from the
service for failing to comply with the 12-month
period to decide or resolve cases.
Page 87
If part of the decision was plagiarized, would that

fact invalidate the decision? The answer is NO,
because the decision is valid. Even if portions of
it is plagiarized, it would not render it invalid. The
omission of the sources of the quotation would
not make the quotation invalid. It simply is your
failure to make the proper citation.
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.
Art. XVIII.
Section 12. The Supreme Court shall, within
one year after the ratification of this Constitution,
adopt a systematic plan to expedite the decision

or resolution of cases or matters pending in the
Supreme Court or the lower courts prior to the
effectivity of this Constitution. A similar plan shall
be adopted for all special courts and quasijudicial bodies.
Section 13. The legal effect of the lapse, before
the ratification of this Constitution, of the
applicable period for the decision or resolution of
the cases or matters submitted for adjudication
by the courts, shall be determined by the
Supreme Court as soon as practicable.
Section 14. The provisions of paragraphs (3)
and (4), Section 15 of Article VIII of this
Constitution shall apply to cases or matters filed
before the ratification of this Constitution, when
the applicable period lapses after such
ratification.
2. Lower Courts
a. Qualifications
and
Appointments
1. No person shall be appointed Member
of the Supreme Court or any lower
collegiate court unless he is a naturalborn citizen of the Philippines. A
Member of the Supreme Court must be
at least forty years of age, and must
have been for fifteen years or more, a
judge of a lower court or engaged in the
practice of law in the Philippines.
2. The Congress shall prescribe the
qualifications of judges of lower courts,
but no person may be appointed judge
thereof unless he is a citizen of the
Philippines and a member of the
Philippine Bar.
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.
Page 88
b. Salary
Art. 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.
c. Congressional
power
to
reorganize and Security of
Tenure
voted in thereon.
Art. VIII. Section 2 (par 2). No law shall be
passed reorganizing the Judiciary when it
undermines the security of tenure of its
Members.
d. Removal
voted in thereon.
e. Jurisdiction
Art. VIII. Section 1. The judicial power shall be
vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the
Government.
f.
Requirements
as
to
Preparation of Decisions
7. Upon
the
expiration
of
the
served
upon
the
parties.
The
g. Mandatory period for deciding
cases
Page 89

3. Upon
the
expiration
of
the
served
upon
the
parties.
The
Art. XVIII. Section 12. The Supreme Court
shall, within one year after the ratification of this
Constitution, adopt a systematic plan to expedite
the decision or resolution of cases or matters
pending in the Supreme Court or the lower
courts prior to the effectivity of this Constitution.
A similar plan shall be adopted for all special
courts and quasi-judicial bodies.
Section 13. The legal effect of the lapse, before
the ratification of this Constitution, of the
applicable period for the decision or resolution of
the cases or matters submitted for adjudication
by the courts, shall be determined by the
Supreme Court as soon as practicable.
Section 14. The provisions of paragraphs (3)
and (4), Section 15 of Article VIII of this
Constitution shall apply to cases or matters filed
before the ratification of this Constitution, when
the applicable period lapses after such
ratification.
3. The Judicial and Bar Council
The JBC shall be composed of three ex-officio
members, the CJ, the Secretary of Justice, and
a representative of Congress; and four regular
members. This was the subject of the petition of
Atty. Frank Chavez, that the JBC was voting
unconstitutionally because there is one Senator

and one member of the lower House with one
vote each. There are supposed to be seven
votes only and not eight because what should
happen if the eight members are equally divided
as to the candidates or applicants for a position
in the judiciary? The constitution only says
seven so that there will be no equal voting in the
regular course of proceedings. Now, the regular
members are appointed by the President with
the confirmation of the Commission on
Appointments. They are the IBP representative,
a professor of law, a retired SC Justice, and a
representative of the private sector for a fouryear term. The function of the JBC is largely to
recommend appointees to the judiciary, but they
can also be made to perform other tasks as the
SC may assign. Up to now, there is yet any
other function of the JBC known to the public.
The JBC has been created largely, based on the
discussion in the case of De Castro v. JBC, to
screen appointees to the judiciary in order to
shield these appointees from the politics of the
regular appointments made by the President.
Before the creation of the JBC, appointments to
the SC and justices of lower collegiate courts
and judges of lower courts have been screened
through the Commission on Appointments. So
the JBC was put in place apparently to shield
these appointees from politics of the executive
and Congress. Because of the so-called
staggered terms, just like in the Constitutional
Commissions, the staggered terms would
assure the (1) continuity of the functions of the
office, and (2) ensure that there is continued
independence of that body because they will
always out-term the President who will only sit
for six (6) years.
1. A Judicial and Bar Council is hereby
created under the supervision of the
Supreme Court composed of the Chief
Justice as ex officio Chairman, the
Secretary
of
Justice,
and
a
representative of the Congress as ex
officio Members, a representative of the
Integrated Bar, a professor of law, a
retired Member of the Supreme Court,
Page 90
and a representative of the private

sector.
2. The regular members of the Council
shall be appointed by the President for a
term of four years with the consent of
the Commission on Appointments. Of
the Members first appointed, the
representative of the Integrated Bar
shall serve for four years, the professor
of law for three years, the retired Justice
for two years, and the representative of
the private sector for one year.
3. The Clerk of the Supreme Court shall be
the Secretary ex officio of the Council
and shall keep a record of its
proceedings.
4. The regular Members of the Council
shall receive such emoluments as may
be determined by the Supreme Court.
The Supreme Court shall provide in its
annual budget the appropriations for the
Council.
5. The Council shall have the principal
function of recommending appointees to
the judiciary. It may exercise such other
functions and duties as the Supreme
Court may assign to it.
4. Automatic release of appropriations
for the Judiciary
Art. VIII. Section 3. The Judiciary shall enjoy
fiscal autonomy. Appropriations for the Judiciary
may not be reduced by the legislature below the
amount appropriated for the previous year and,
after approval, shall be automatically and
regularly released.
Floresita B. Salinas
Constitutional Law Review 1
Ateneo de Davao College of Law
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Constitutional Law 1 2013

July 18, 2013

Nothing much in the preliminary discussions of

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