10/18/2019

2019 BAR REVIEW

LECTURE IN
POLITICAL LAW
By: Atty. Enrique V. dela Cruz, Jr.

JUDICIAL
DEPARTMENT

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Q: What is meant by judicial independence?

A: It encompasses the idea that individual judges can freely
exercise their mandate to resolve justiciable disputes, while the
judicial branch, as a whole, should work in the discharge of its
constitutional functions free of restraints and influence from the
other branches, save only for those imposed by the Constitution
itself. Thus, judicial independence can be "broken down into two
distinct concepts: decisional independence and institutional
independence."
Decisional independence "refers to a judge's ability to render
decisions free from political or popular influence based solely on
the individual facts and applicable law."
On the other hand, institutional independence "describes the
separation of the judicial branch from the executive and
legislative branches of government." Simply put, institutional
independence refers to the "collective independence of the
judiciary as a body.“ [In RE: COA Opinion, 678 SCRA 1 (2012)]

IMPORTANT QUESTIONS

A. Enumerate the cases

required by the Constitution
to be heard en banc by the
Supreme Court?

B. What is the composition of

the Judicial and Bar Council
and the term of office of its
regular members?
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Suggested Answer:
A. The following are the cases required by the
Constitution to be heard en banc by the Supreme Court:
a) Cases which under the Rules of Court are required to
be heard en banc.
a. Cases involving the constitutionality, application, or
operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations;
b. Cases heard by a division when the required majority
is not obtained;
c. Cases where a doctrine or principle of law previously
laid down will be modified or reversed;
d. Administrative cases against judges when the penalty
is dismissal; and
e. Election contests for President or Vice-President.

B. The Judicial and Bar Council is composed of the

following:

1. The Chief Justice as ex officio chairman;

2. The Secretary of Justice as ex officio member;
3. A representative of Congress as ex officio
member;
4. A representative of the Integrated Bar;
5. A professor of law;
6. A retired Justice of the Supreme Court; and
7. A representative of the private sector. (Section
8(1), Article VIII of the Constitution)

The term of office of the regular members is four

(4) years. (Section 8(2), Article VIII of the
Constitution)

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Q: Currently, Congress has two representatives in

the JBC. One from the Senate and one from the
House. Thus, the JBC, in effect, has 8 members. Is
this constitutional?
A: NO.
• From a simple reading of Section 8, Article VIII of the
Constitution, it can readily be discerned that the provision
is clear and unambiguous.
• It enumerates the ex-officio or special members of the JBC
composed of the Chief Justice, who shall be its Chairman,
the Secretary of Justice and “a representative of
Congress.”
• The use of the singular letter “a” preceding
“representative of Congress” is unequivocal and leaves no
room for any other construction. (Chavez v. JBC, G.R.
NO. 202242. JULY 17, 2012)

It is clear, therefore, that the Constitution mandates

that the JBC be composed of seven (7) members only.
Thus, any inclusion of another member, whether with one
whole vote or half (1/2) of it, goes against that mandate.
Section 8(1), Article VIII of the Constitution, providing
Congress with an equal voice with other members of the
JBC in recommending appointees to the Judiciary is
explicit.
Any circumvention of the constitutional mandate should
not be countenanced for the Constitution is the supreme
law of the land. Constitutional doctrines must remain
steadfast no matter what may be the tides of time.
It cannot be simply made to sway and accommodate
the call of situations and much more tailor itself to the
whims and caprices of the government and the people
who run it.
Hence, any act of the government or of a public official or
employee which is contrary to the Constitution is illegal,
null and void. (Chavez v. JBC, G.R. NO. 202242. JULY
17, 2012)

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QUESTION:
Sol Gen Jardeleza applied for a vacant
position in the SC. Despite having garnered
enough votes to qualify, the JBC did not
include him in the list of nominees submitted to
the President.
Jardeleza then filed a petition for certiorari with
the SC seeking to compel the JBC to include
him in the list of nominees for Supreme Court
Associate Justice, on the grounds that the JBC
and Chief Justice Sereno acted in grave abuse
of discretion amounting to lack or excess of
jurisdiction in excluding him, despite having
garnered a sufficient number of votes to qualify
for the position.
Is the petition proper?

ANSWER:
The Court is compelled to rule that Jardeleza should
have been included in the shortlist submitted to the
President.
This consequence arose not from the unconstitutionality
of Section 2, Rule 10 of JBC-009, per se, but from the
violation by the JBC of its own rules of procedure and
the basic tenets of due process.
By no means does the Court intend to strike down the
"unanimity rule" as it reflects the JBC's policy and,
therefore, wisdom in its selection of nominees.
Even so, the Court refuses to turn a blind eye on the
palpable defects in its implementation and the ensuing
treatment that Jardeleza received before the Council.
True, Jardeleza has no vested right to a nomination, but
this does not prescind from the fact that the JBC failed to
observe the minimum requirements of due
process.[Jardeleza v. Sereno, G.R. No. 213181, 21
January 2015]
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ANSWER:
Where the denial of the fundamental right of due
process is apparent, a decision rendered in disregard of
that right is void for lack of jurisdiction.
This rule may well be applied to the current situation for
an opposing view submits to an undue relaxation of the
Bill of Rights. To this, the Court shall not concede. As
the branch of government tasked to guarantee that the
protection of due process is available to an individual in
proper cases, the Court finds the subject shortlist as
tainted with a vice that it is assigned to guard against.
At the risk of being repetitive, the Court upholds the
JBC's discretion in the selection of nominees. Having
been able to secure four (4) out of six (6) votes, the only
conclusion left to propound is that a majority of the
members of the JBC, nonetheless, found Jardeleza to
be qualified for the position of Associate Justice and this
grants him a rightful spot in the shortlist submitted to the
President. [Jardeleza v. Sereno, G.R. No. 213181, 21
January 2015]
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QUESTION: Using a clustering system, the JBC

submitted six separate lists, with five to seven
nominees each, for the six vacancies in the
Sandiganbayan. However, President Aquino
disregarded the clustering system and instead chose
nominees at random from all the clusters.
This was assailed by several petitioners who insist
that President Aquino could only choose one
nominee from each of the six separate shortlists
submitted by the JBC for each specific vacancy, and
no other; and any appointment made in deviation of
this procedure is a violation of the Constitution.
Is the clustering system of nominees adopted by the
JBC Constitutional? Explain.

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ANSWER: NO. The clustering system of

nominees is unconstitutional as it impinges upon the
President's power of appointment, as well as restricts
the chances for appointment of the qualified
nominees, because (1) the President's option for
every vacancy is limited to the five to seven nominees
in the cluster; and (2) once the President has
appointed from one cluster, then he is proscribed
from considering the other nominees in the same
cluster for the other vacancies. The said limitations
are utterly without legal basis and in contravention of
the President's appointing power. [HON. PHILIP A.
AGUINALDO, ET AL. v. PRES. BENIGNO SIMEON C.
AQUINO III, ET AL. G.R. No. 224302, February 21, 2017]

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ANSWER: The power to recommend of the JBC cannot be

used to restrict or limit the President's power to appoint as the
latter's prerogative to choose someone whom he/she
considers worth appointing to the vacancy in the Judiciary is
still paramount.
As long as in the end, the President appoints someone
nominated by the JBC, the appointment is valid. The President
was not obliged to appoint one new Sandiganbayan Associate
Justice from each of the six shortlists submitted by the JBC,
especially when the clustering of nominees into the six
shortlists encroached on the President’s power to appoint
members of the Judiciary from all those whom the JBC had
considered to be qualified for the same positions of
Sandiganbayan Associate Justice. [HON. PHILIP A.
AGUINALDO, ET AL. v. PRES. BENIGNO SIMEON C.
AQUINO III, ET AL. G.R. No. 224302, February 21, 2017]

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Q: The JBC has adopted a policy that First Level Court

judges must first earn 5 years of service before they are
considered for promotion to the RTC or higher courts. Is
this policy required to be published to be valid?

• YES. The assailed JBC policy does not fall within the
administrative rules and regulations exempted from the
publication requirement.
• The assailed policy involves a qualification standard by which
the JBC shall determine proven competence of an applicant.
• It is not an internal regulation, because if it were, it would
regulate and affect only the members of the JBC and their staff.
• Thus, it is but a natural consequence thereof that potential
applicants be informed of the requirements to the judicial
positions, so that they can comply. (Judge Ferdinand
Villanueva vs. the JBC, G.R. No. 211833, 07 April 2015)

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Q: Does the 5-year service policy for First Level

Judges violate the equal protection clause?
• NO. Consideration of experience by JBC as one factor in
choosing recommended appointees does not constitute a
violation of the equal protection clause.
• The JBC does not discriminate when it employs number of
years of service to screen and differentiate applicants from
the competition.
• The number of years of service provides a relevant basis to
determine proven competence which may be measured by
experience, among other factors.
• The difference in treatment between lower court judges who
have served at least five years and those who have served
less than five years, is based on substantial distinctions.
(Judge Ferdinand Villanueva vs. the JBC, G.R. No.
211833, 07 April 2015)

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How long can members of

SC and judges hold office?
Members of SC and judges of the lower
courts can hold office during good
behavior until:

1. The age of 70 years old; or

2. They become incapacitated to

discharge their duties.

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Who holds the power of disciplinary

action over judge of lower courts?
Disciplinary action against judges of lower courts:

1. Only the SC en banc has jurisdiction to

discipline or dismiss judges of lower courts.
2. Disciplinary action/dismissal: Majority vote of
SC Justices who took part in the deliberations
and voted therein.

Note: The Constitution provides that the SC is

given exclusive administrative supervision over
all courts and judicial personnel.

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Does the Civil Service Commission

have jurisdiction over an employee of
the Judiciary for acts committed while
said employee was still in the
Executive Branch?
No. Administrative jurisdiction over a court
employee belongs to the Supreme Court,
regardless of whether the offense was
committed before or after employment in the
Judiciary.

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Q: CAN A DISBARMENT CASE BE FILED

AGAINST A SITTING JUSTICE OF THE SUPREME
COURT?
A: NO. A public officer who under the Constitution is
required to be a Member of the Philippine Bar as a
qualification for the office held by him and who may be
removed from office only by impeachment, cannot be
charged with disbarment during the incumbency of
such public officer.

Further, such public officer, during his incumbency, cannot

be charged criminally before the Sandiganbayan or any
other court with any offense which carries with it the penalty
of removal from office, or any penalty service of which would
amount to removal from office. [IN RE: RAUL GONZALES,
April 15, 1988]

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Q: CAN A DISBARMENT CASE BE FILED

AGAINST A SITTING JUSTICE OF THE SUPREME
COURT?
A: NO. 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
misbehaviour that may be proven against him in
appropriate proceedings. [IN RE: RAUL GONZALES,
April 15, 1988]

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Q: Distinguish quo warranto and

impeachment as remedies against an
impeachable officer who is alleged not to possess
the required constitutional qualifications for
his/her office.

Answer:

While both impeachment and quo warranto may

result in the ouster of the public official, the two
proceedings materially differ. At its most basic,
impeachment proceedings are political in nature,
while an action for quo warranto is judicial or a
proceeding traditionally lodged in the courts.
[Republic v. Sereno, May 11, 2018]

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Q: Distinguish quo warranto and impeachment.

Answer:
Aside from the difference in their origin and nature, quo
warranto and impeachment may proceed independently of
each other as these remedies are distinct as to (1) jurisdiction
(2) grounds, (3) applicable rules pertaining to initiation, filing
and dismissal, and (4) limitations.
The causes of action in the two proceedings are unequivocally
different. In quo warranto, the cause of action lies on the
usurping, intruding, or unlawfully holding or exercising of
a public office, while in impeachment, it is the commission
of an impeachable offense.
The crux of the controversy in a quo warranto proceeding is
the determination of whether or not the officer legally holds the
position to be considered as an impeachable officer in the first
place. [Republic v. Sereno, May 11, 2018]

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Q: Distinguish quo warranto and impeachment.

Answer:
Simply put, while title to hold a public office is the issue in quo
warranto proceedings, impeachment necessarily presupposes
that the official legally holds the public office and thus, is an
impeachable officer, the only issue being whether or not
he/she committed impeachable offenses to warrant his/her
removal from office.
A respondent in a quo warranto proceeding shall be adjudged
to cease from holding a public office, which he/she is ineligible
to hold. On the other hand, in impeachment, a conviction shall
result to the removal of the respondent from the public office
that he/she is legally holding.
It is not legally possible to impeach or remove a person from
an office that he/she, in the first place, does not and cannot
legally hold or occupy. [Republic v. Sereno, May 11, 2018]

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What is the scope of the rule

making power of the SC?
Promulgate rules concerning:

1. The protection and enforcement of

constitutional rights;
2. Pleadings, practice and procedure in all
courts;
3. Admission to the practice of law;
4. The Integrated Bar; and
5. Legal assistance to the underprivileged.

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Q: Can the legislature enact laws to regulate the

practice of the law?

A: No. It is noteworthy that unlike the 1935

and 1973 Constitution, the 1987 Constitution
no longer provides for the power of the
legislature to repeal, alter and supplement the
Rules promulgated by the Supreme Court.
However, the legislature, in the exercise of
police power may enact laws regulating the
practice of law to protect the public and
promote public welfare.

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Q: Can congress pass a law lowering the

passing rate for candidates?
A: No, the admission, suspension, disbarment and
reinstatement of attorney at law in the practice of the
profession and their supervision have been indisputably a
judicial function and responsibility.
The Constitution has not conferred on Congress and the
Supreme Court equal responsibility which the Constitution
recognizes continue to reside in this Court. Congress may
repeal, alter and supplement the rules promulgated by the
Supreme Court.
But the authority and responsibility over the admission,
suspension, disbarment and reinstatement of attorney-at-law
and their supervision remains vested with the Supreme
Court. (IN RE: Cunanan, March 18, 1954)

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Q: Can Congress exempt the GSIS from legal fees

imposed by the SC?
A: NO. Since the payment of legal fees is a vital
component of the rules promulgated by the SC concerning
pleading, practice and procedure, it cannot be validly
annulled, changed or modified by Congress.
As one of the safeguards of the Supreme Court's
institutional independence, the power to promulgate rules
of pleading, practice and procedure is now the Court's
exclusive domain.
That power is no longer shared by the Supreme Court with
Congress, much less with the Executive. [Re: Petition for
Recognition of the Exemption of the Government Service
Insurance System from Payment of Legal Fees, 612 SCRA
193 (2010)]

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Q: Can Congress exempt the GSIS from legal fees

imposed by the SC?
A: NO. The separation of powers among the three co-equal
branches of our government has erected an impregnable
wall that keeps the power to promulgate rules of pleading,
practice and procedure within the sole province of this Court.
The other branches trespass upon this prerogative if they
enact laws or issue orders that effectively repeal, alter or
modify any of the procedural rules promulgated by this
Court.
Viewed from this perspective, the claim of a legislative grant
of exemption from the payment of legal fees under Section
39 of RA 8291 necessarily fails.. [Re: Petition for
Recognition of the Exemption of the Government Service
Insurance System from Payment of Legal Fees, 612 SCRA
193 (2010)]
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Q: Can the SC enjoin a proposed bill seeking to

abolish the Judiciary Development Fund?
A: No, The events feared by petitioner are contingent on the
passing of the proposed bill in Congress. The threat of imminent
injury is not yet manifest since there is no guarantee that the bill
will even be passed into law. There is no transcendental interest
in this case to justify the relaxation of technical rules.
In this case, petitioner has not shown how he is entitled to the
relief prayed for. Hence, this court cannot be compelled to
exercise its power of judicial review since there is no actual case
or controversy.
Considering that what he seeks to be struck down is a proposed
bill, it would be better for him to air his concerns by lobbying in
Congress. In The Matter of Save the Supreme Court Judicial
Independence and Fiscal Autonomy Movement v. Abolition of
Judiciary Development Fund (JDF) And Reduction of Fiscal
Autonomy, 746 SCRA 352 (2015)

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QUESTION:
Congress enacted a law, "AN ACT REQUIRING ALL
CONCERNED GOVERNMENT AGENCIES TO ENSURE
THE EARLY RELEASE OF THE RETIREMENT PAY,
PENSIONS, GRATUITIES AND OTHER BENEFITS OF
RETIRING GOVERNMENT EMPLOYEES“ [RA 10154]
Section 7, Rule III of the IRR to RA 10154 states:
Section 7. Notice of Pendency of Case. — The retiring
employee shall seek Clearance of Pendency/Non-
Pendency of Administrative Case from his/her
employer agency, Civil Service Commission (CSC),
Office of the Ombudsman, or in case of presidential
appointees, from the Office of the President.
Is this provision applicable to retiring employees of the
judiciary?

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ANSWER: NO
Section 6, Article VIII of the 1987 Constitution exclusively vests
in the SC administrative supervision over all courts and
court personnel. As such, it oversees the court personnel's
compliance with all laws and takes the proper administrative
action against them for any violation thereof. As an adjunct
thereto, it keeps in its custody records pertaining to the
administrative cases of retiring court personnel.
To apply such provision to the judiciary would disregard the
SC’s constitutionally-enshrined power of administrative
supervision over its personnel. Besides, retiring court
personnel are already required to secure a prior clearance of the
pendency/non-pendency of administrative case/s from the Court
which makes the CSC clearance a superfluous and non-
expeditious requirement. [Request for Guidance/Clarification
on Section 7, Rule 111 of Republic Act. No. 10154, 706
SCRA 502 (2013)]

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QUESTION:
Congress enacted a law [RA 10154] which
requires all retiring government employees
to first seek Clearance of Pendency/Non-
Pendency of Administrative Case from
his/her employer agency, Civil Service
Commission (CSC), Office of the
Ombudsman, or in case of presidential
appointees, from the Office of the President
– before the retirement benefits are released.
Is law provision applicable to retiring
employees of the judiciary?

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ANSWER: NO.
Section 6, Article VIII of the 1987 Constitution exclusively vests
in the SC administrative supervision over all courts and
court personnel. As such, it oversees the court personnel's
compliance with all laws and takes the proper administrative
action against them for any violation thereof. As an adjunct
thereto, it keeps in its custody records pertaining to the
administrative cases of retiring court personnel.
To apply such provision to the judiciary would disregard the
SC’s constitutionally-enshrined power of administrative
supervision over its personnel. Besides, retiring court
personnel are already required to secure a prior clearance of the
pendency/non-pendency of administrative case/s from the Court
which makes the CSC clearance a superfluous and non-
expeditious requirement. [Request for Guidance/Clarification
on Section 7, Rule 111 of Republic Act. No. 10154, 706
SCRA 502 (2013)]

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QUESTION: Congress passed a law, R.A. No. 15005,

creating an administrative Board principally tasked with
the supervision and regulation of legal education
(“Legal Education Board”).
The LEB was attached to the Office of the President.
The LEB promulgated a Rule establishing the
Philippine Law Admission Test as a requirement before
law students are admitted into law schools.
A petition was filed with the Supreme Court assailing
the constitutionality of the law arguing that it
encroached on the prerogatives of the Supreme Court
to promulgate rules relative to admission to the
practice of law.
Is the law constitutional?

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ANSWER: NO.
The LEB is under the Office of the President. It is an
executive office. As such, it usurps the exclusive powers of
the Supreme Court to promulgate rules for the admission to
the practice of law. By imposing the PhilSAT tests, the
LEB effectively added a requirement before a student can
be admitted into law school. This will mean that those
excluded thereby will no longer be able to enroll in a law
school and will consequently be prevented from taking the
bar exams and be admitted to the practice of law.

The Executive Department may not encroach upon the

constitutional prerogative of the Supreme Court to
promulgate rules for admission to the practice of law in the
Philippines.

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POWER
OF
JUDICIAL
REVIEW
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Q: What is a Citizen Suit under the new SC Rules of

Procedure on Environmental Cases?
A:
SEC. 5. Citizen suit. — Any Filipino citizen in
representation of others, including minors or
generations yet unborn, may file an action to enforce
rights or obligations under environmental laws. Upon
the filing of a citizen suit, the court shall issue an order
which shall contain a brief description of the cause of action
and the reliefs prayed for, requiring all interested parties to
manifest their interest to intervene in the case within fifteen
(15) days from notice thereof. The plaintiff may publish the
order once in a newspaper of a general circulation in the
Philippines or furnish all affected barangays copies of said
order. [A.M. No. 09-6-8-SC, effective April 29, 2010].

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Q: Can resident marine mammals file suit to protect

their natural habitat?
A: NO.
Resident Marine Mammals have no standing because
Section 1, Rule 3 of the Rules of Court requires parties to an
action to be either natural or juridical persons.
The ruling in the case of Oposa vs. Factoran cannot be
applied here because the petitioners therein were all natural
persons, albeit some of them were still unborn.
Since the petition was not brought in the name of a real
party-in-interest, it should be dismissed for failure to state
a cause of action. [Resident Marine Mammals of the
Protected Seascape Tañon Strait v. Reyes, 756
SCRA 513 (2015)]

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What are the functions of Judicial

Review?
1. Checking – invalidating a law or executive act
that is found to be contrary to the Constitution.

2. Legitimating – upholding the validity of the law

that results from a mere dismissal of a case
challenging the validity of the law.
3. Symbolic – to educate the bench and bar as to
the controlling principles and concepts on matters
of grave public importance for the guidance of
and restraint upon the future.

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Q: May the Supreme Court decide a case that is

already moot and academic?
A: YES.
The "moot and academic" principle is not a magical
formula that automatically dissuades courts in resolving a
case.
Courts are not prevented from deciding cases, otherwise
moot and academic, if (1) there is a grave violation of the
Constitution; (2) the situation is of exceptional character
and of paramount public interest; (3) 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 yet evading review.
[Resident Marine Mammals of the Protected Seascape
Tañon Strait v. Reyes, 756 SCRA 513 (2015)]

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Q: May the Supreme Court decide a case that is

already moot and academic?
A: YES.
Once a suit is filed, the Court cannot automatically be
deprived of its jurisdiction over a case by the mere
expedient of the doer voluntarily ceasing to perform the
challenged conduct.
Otherwise, the doer would be dictating when this Court
should relinquish its jurisdiction over a case.
Further, a case is not mooted when the plaintiff seeks
damages or prays for injunctive relief against the possible
recurrence of the violation. (Province of North Cotabato
vs. GRP, 14 October 2008, 568 SCRA 402)

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Q: What is the extent of power of judicial review in

impeachment proceedings?
A: The power of judicial review includes the power of
review over justiciable issues in impeachment
proceedings.
Given their concededly political character, the precise role of
the judiciary in impeachment cases is a matter of utmost
importance to ensure the effective functioning of the separate
branches while preserving the structure of checks and
balance in our government.
Moreover, in this jurisdiction, the acts of any branch or
instrumentality of the government, including those traditionally
entrusted to the political departments, are proper subjects of
judicial review if tainted with grave abuse or arbitrariness.
(Chief Justice Corona v. Senate Impeachment Court, G.R.
NO. 200242. JULY 17, 2012)

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Q: May the Supreme Court issue a TRO to

stop Congress from conducting impeachment
proceedings?
A:
Yes. The Constitution did not intend to leave
the matter of impeachment to the sole
discretion of Congress. Instead, it provided
for certain well-defined limits, or “judicially
discoverable standards” for determining the
validity of the exercise of such discretion.
(Gutierrez v. House of Representatives
Committee on Justice, Feb. 15, 2011)

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NATIONAL
PATRIMONY

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Q: Does the Constitution prohibit service contracts or

joint explorations of our natural resources with foreign
nationals or companies?
A: NO.
The last paragraph of Section 2, Article XII of the 1987
Constitution, reads as follows:
“The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance
for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the
general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the
country. In such agreements, the State shall promote the
development and use of local scientific and technical resources.”
“The President shall notify the Congress of every contract
entered into in accordance with this provision, within thirty days
from its execution.”

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Q: What are the requisites for such service contracts or

joint explorations with foreign nationals or companies to
be valid?
A:
Such service contracts may be entered into only with respect
to minerals, petroleum and other mineral oils. The grant
thereof is subject to several safeguards, among which are
these requirements:
(1) The service contract shall be crafted in accordance
with a general law that will set standard or uniform terms,
conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of
terms disadvantageous to the country. [Resident Marine
Mammals of the Protected Seascape Tañon Strait v. Reyes,
756 SCRA 513 (2015)]

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Q: What are the requisites for such service contracts or

joint explorations with foreign nationals or companies to
be valid?
A:
(2) The President shall be the signatory for the
government because, supposedly before an agreement is
presented to the President for signature, it will have been
vetted several times over at different levels to ensure that it
conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the
President shall report it to Congress to give that branch of
government an opportunity to look over the agreement and
interpose timely objections, if any. [Resident Marine
Mammals of the Protected Seascape Tañon Strait v. Reyes,
756 SCRA 513 (2015)]

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• Q: Section 6, Art. X of the 1987 Constitution mentions

national taxes as the source of the just share of the
LGUs while Section 284 of the LGC states that the LGUs
share should be taken from national internal revenue
taxes instead. Is this constitutional?
• A: NO.
• The exclusion of other national taxes like customs duties
from the base for determining the just share of the LGUs
contravened the express constitutional edict in Section 6,
Article X the 1987 Constitution.
• Congress can validly exclude taxes that will constitute the
base amount for the computation of the IRA only if a
Constitutional provision allows such exclusion.
• [Gov. Mandanas v. Executive Secretary, GR No. 199802,
July 3, 2018]

49

CONSTITUTIONAL
BODIES

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Q: Can the President, thru an Executive Order, include the

CSC Chairperson as Ex-Officio Board Member of several
GOCC’s?
A: NO. When the CSC Chairman sits as a member of the
governing Boards of the GSIS, PHILHEALTH, ECC and HDMF,
he may exercise powers and functions, which are not anymore
derived from his position as CSC Chairman.
He will likewise be under the control of the Chief Executive
when he sits in the board of GOCC’s.
Also, he will receive per diem, a form of additional
compensation that is disallowed by the concept of an ex officio
position by virtue of its clear contravention of the proscription
set by Section 2, Article IX-A of the 1987 Constitution.
This situation goes against the principle behind an ex officio
position, and must, therefore, be held unconstitutional. [Funa
v. Duque III, 742 SCRA 166 (2014)].

51

SUMMARY OF RULES:
1. The appointment of members of any of the three
constitutional commissions, after the expiration of the uneven
terms of office of the first set of commissioners, shall always be
for a fixed term of seven (7) years; an appointment for a lesser
period is void and unconstitutional.
The appointing authority cannot validly shorten the full term of
seven (7) years in case of the expiration of the term as this will
result in the distortion of the rotational system prescribed by the
Constitution.
2. Appointments to vacancies resulting from certain causes
(death, resignation, disability or impeachment) shall only be for
the unexpired portion of the term of the predecessor, but such
appointments cannot be less than the unexpired portion as this
will likewise disrupt the staggering of terms laid down under
Sec. 1 (2), Art. IX (D). [Funa v. Villar, 670 SCRA 579 (2012)]

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SUMMARY OF RULES:
3. Members of the Commission, e.g., COA, COMELEC or
CSC, who were appointed for a full term of seven years and
who served the entire period, are barred from reappointment to
any position in the Commission. Corollarily, the first appointees
in the Commission under the Constitution are also covered by
the prohibition against reappointment.
4. A commissioner who resigns after serving for less than
seven years is eligible for an appointment to the position of
Chairman for the unexpired portion of the term of the departing
chairman. Such appointment is not covered by the ban on
reappointment, provided that the aggregate period of the length
of service as commissioner and the unexpired period of the
term of the predecessor will not exceed seven (7) years and
provided further that the vacancy in the position of Chairman
resulted from death, resignation, disability or removal by
impeachment. [Funa v. Villar, 670 SCRA 579 (2012)]

53

SUMMARY OF RULES:
The Court clarifies that "reappointment" found in Sec.
1 (2), Art. IX (D) means a movement to one and the
same office (Commissioner to Commissioner or
Chairman to Chairman).
On the other hand, an appointment involving a
movement to a different position or office
(Commissioner to Chairman) would constitute a new
appointment and, hence, not, in the strict legal sense,
a reappointment barred under the Constitution.
5. Any member of the Commission cannot be
appointed or designated in a temporary or acting
capacity. [Funa v. Villar, 670 SCRA 579 (2012)]

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The Ombudsman filed charges of “Usurpation of

authority” against Former President Noynoy Aquino. If a
certiorari petition is filed with the SC to review this act of
the Ombudsman, will such a petition prosper?
• A: NO. The discretion of the Office of the Ombudsman in the
determination of probable cause to charge a respondent public
official or employee cannot be interfered with in the absence of a
clear showing of grave abuse of discretion amounting to lack or
excess of jurisdiction.

• Jurisprudence explains that the Office of the Ombudsman is

vested with the sole power to investigate and prosecute, motu
proprio or on complaint of any person, any act or omission of any
public officer or employee, office, or agency when such act or
omission appears to be illegal, unjust, improper, or inefficient.
• The Ombudsman’s power to investigate and to prosecute is
plenary and unqualified. [Soriano v. Ombudsman, AUGUST 19,
2015 (Bersamin)]

55

The Ombudsman filed charges of “Usurpation of

authority” against Former President Noynoy Aquino. If a
certiorari petition is filed with the SC to review this act of
the Ombudsman, will such a petition prosper?
• A: The Ombudsman has the discretion to determine whether
a criminal case, given its attendant facts and circumstances,
should be filed or not.
• The Ombudsman may dismiss the complaint should the
Ombudsman find the complaint insufficient in form or
substance, or the Ombudsman may proceed with the
investigation if, in the Ombudsman’s view, the complaint is
in due form and substance.
• Hence, the filing or non-filing of the information is primarily
lodged within the “full discretion” of the Ombudsman.
• [Soriano v. Ombudsman, AUGUST 19, 2015 (Bersamin)]

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The general Rule is that the decision of the Ombudsman

on who and what to charge is beyond judicial review.
What are the exceptions?
• A: In the following instances, the courts may interfere with the
Ombudsman’s investigatory powers:
• To afford protection to the constitutional rights of the accused;
• When necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions;
• When there is a prejudicial question which is sub judice;
• When the acts of the officer are without or in excess of authority;
• Where the prosecution is under an invalid law, ordinance or
regulation;
• When double jeopardy is clearly apparent;
• Where the court has no jurisdiction over the offense;
• Where it is a case of persecution rather than prosecution;
• [Soriano v. Ombudsman, AUGUST 19, 2015 (Bersamin)]

57

May the President discipline a deputy ombudsman?

A: NO. Subjecting the Deputy Ombudsman to discipline and
removal by the President, whose own alter egos and officials in
the Executive Department are subject to the Ombudsman's
disciplinary authority, cannot but seriously place at risk the
independence of the Office of the Ombudsman itself.

The Office of the Ombudsman, by express constitutional

mandate, includes its key officials, all of them tasked to support
the Ombudsman in carrying out her mandate.

What is true for the Ombudsman must be equally and

necessarily true for her Deputies who act as agents of the
Ombudsman in the performance of their duties. The
Ombudsman can hardly be expected to place her complete
trust in her subordinate officials who are not as independent as
she is, if only because they are subject to pressures and
controls external to her Office. [Emilio Gonzales III vs. Office
of the President, G.R. No. 196232. January 28, 2014].

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May the President discipline the Chairman and other

officers of the Commission on Human Rights?
• No. As the term of office of the Chairman (and Members) of
the Commission on Human Rights, is seven (7) years,
without re-appointment, --- their tenure cannot be made
dependent on the pleasure of the President.

• It is extremely difficult to conceptualize how an office

conceived and created by the Constitution to be
independent — as the Commission on Human Rights —
and vested with the delicate and vital functions of
investigating violations of human rights, pinpointing
responsibility and recommending sanctions as well as
remedial measures therefor, can truly function with
independence and effectiveness, when the tenure in office
of its Chairman and Members is made dependent on the
pleasure of the President. [Bautista v. Salonga, G.R. No.
86439. April 13, 1989].

59

Q. Is the Commission on Human Rights (CHR) considered

as a Constitutional Body enjoying fiscal autonomy?
Explain.
ANSWER: NO. From the 1987 Constitution and the
Administrative Code, it is abundantly clear that the CHR is not
among the class of Constitutional Commissions.
Nor is there any legal basis to support the contention that the
CHR enjoys fiscal autonomy. In essence, fiscal autonomy
entails freedom from outside control and limitations, other than
those provided by law. It is the freedom to allocate and utilize
funds granted by law, in accordance with law, and pursuant to
the wisdom and dispatch its needs may require from time to
time. Only the Judiciary, the Civil Service Commission, the
Commission on Audit, the Commission on Elections, and the
Office of the Ombudsman, which enjoy fiscal autonomy.
[CHREA vs. CHR, G.R. No. 155336. November 25, 2004]

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AMENDMENTS OR
REVISION OF THE
CONSTITUTION

61

Can we still amend the Constitution

before Duterte’s term ends?

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• Q: How may the Constitution be amended or

revised? (CONASS)
– By Congress upon a vote of ¾ of all its
members acting as Constituent Assembly
(ConAss);
– “Any amendment to, or revision of, this
Constitution may be proposed by: (1) The
Congress, upon a vote of three-fourths of all its
Members; (Art. XVII, Sec. 1, 1987 Constitution)
– A respected Constitutionalist, Fr. Joaquin
Bernas, points to the record of the
Constitutional Convention that “the two houses
of Congress should vote separately” in reaching
the required 3/4 vote.

63

• Q: How may the Constitution be amended or

revised?
– By Constitutional Convention (ConCon)
• Note: Congress may call a ConCon:
• 1. By a vote of 2/3 of all its members; or
• 2. By a majority vote of all its members, submit such
question to the electorate.
• If Congress, acting as a ConAss, calls for a ConCon
but does not provide details for the calling of such
ConCon, Congress by exercising its ordinary
legislative power may supply such details. But in so
doing, the Congress (as legislature) should not
transgress the resolution of Congress acting as a
ConAss.

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• Q: People’s Initiative?
– By People’s Initiative upon a petition of at least
12% of the total number of registered voters, of
which every legislative district must be
represented by 3% of the registered voters
therein.
• Note: The Constitution may be amended
not oftener than every 5 years through
initiative.
• Revisions cannot be done through Initiative.
• (Lambino v. Comelec, G.R. No. 174153, Oct. 25, 2006)

65

What if they
will just add
the phrase –
“as may be
provided by
law.”
Is this an
amendment or
revision?

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• Q: How do you determine whether a proposed

change is an amendment or a revision?
• ANSWER: Quantitative test – asks whether the
proposed change is so extensive in its provisions as to
change directly the ‘substantial entirety’ of the
Constitution by the deletion or alteration of numerous
existing provisions. One examines only the number of
provisions affected and does not consider the degree
of the change.

• Qualitative test – whether the change will accomplish

such far reaching changes in the nature of our basic
governmental plan as to amount to a revision. (Lambino
v. Comelec, G.R. No. 174153, Oct. 25, 2006)

67

• Q: Can the plebiscite for the new constitution

be held together with the 2020 elections?
• ANSWER:
• The doctrine of fair and proper submission to the people of
proposed constitutional amendments as enunciated by the
Court in Tolentino vs. Comelec (41 SCRA 702, 729)
mandates that "in order that a plebiscite for the ratification of
an amendment to the Constitution may be validly held, it must
provide the voter not only sufficient time, but ample basis for
an intelligent appraisal of the nature of the amendment per se
as well as its relation to the other parts of the Constitution with
which it has to form a harmonious whole."
• There must be fair submission and intelligent consent or
rejection. The people must be "sufficiently informed of the
amendments to be voted upon, to conscientiously
deliberate thereon, to express their will in a genuine
manner."
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• QUESTION: With the popularity of

President Duterte, the members of the
PDP-Laban super majority in the House
of Representatives increased to almost
270, out of the 300 total membership in
the House. The Super majority in the
House decided that it was time to
propose amendments to the
Constitution.
• The Senators, however, were cool to the
idea. But the members of the House
insisted.

69

• QUESTION: They accordingly convened

Congress into a constituent assembly in
spite of the opposition of the majority of
the members of the Senate. When the
votes were counted, 275 members of the
House of Representatives approved the
proposed amendments. Only 10 Senators
supported such proposals.
• The proponents now claim that the
proposals were validly made, since more
than the required three-fourths vote of
Congress (combined) has been obtained.

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• QUESTION:
• The 14 Senators who voted against the
proposals claim that the proposals
needed not three-fourths vote of the
entire Congress but each house voting
separately.
• Since the required number of votes in the
Senate was not obtained, then there
could be no valid proposals, so argued
the Senators.
• Were the proposals validly adopted by
Congress? Explain.

71

• ANSWER:
• NO. The proposals were not validly adopted, because the
ten (10) Senators who voted in favor of the proposed
amendments constituted less than three-fourths of all the
Members of the Senate.
•
• Although Section 1, Article XVII of the Constitution did not
expressly provide that the Senate and the House of
Representatives must vote separately, but since the nature
of our Congress is a BICAMERAL BODY, then the
Legislature consist of two (2) houses, both the house and
the senate must each vote separately and the 3/4th vote
required by the Constitution must be obtained from each
the House and the Senate separately. The determination
of one house must be submitted to the separate
determination of the other house [Miller v. Mardo, 2
SCRA 898 [1961].
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• Q: What are the kinds of initiative under

the Initiative and Referendum Act?
• 1. Initiative on the Constitution—refers to
a petition proposing amendments to the
Constitution.
• 2. Initiative on statutes—refers to a
petition to enact a national legislation.
• 3. Initiative on local legislation—refers to
a petition proposing to enact a regional,
provincial, municipal, city, or barangay law,
resolution or ordinance. (Sec. 2 [a], RA
6735)

73

• Q: Can the Constitution be revised directly by

the people thru initiative under RA 6735?
• A: NO.
• RA 6735 applies only to initiative and referendum
on national and local laws.
• Under RA 6735, initiative on the Constitution is
confined only to proposals to amend.
• The proposals will then have to be submitted to
Congress for enactment. (Defensor-Santiago v.
COMELEC, G.R. No. 127325, March 19, 1997)
• Revisions cannot be done through Initiative.
(Lambino v. Comelec, G.R. No. 174153, Oct. 25,
2006)

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• Q: Distinguish Initiative from

Referendum.
• A:
• An Initiative is the power of the people to
propose amendments to the Constitution or
to propose and enact legislations through an
election called for the purpose.
• A Referendum is the power of the
electorate to approve or reject legislation
through an election called for that purpose.
[RA No. 6735 [1989], Sec. 3(c)]

75

Q: What are the limitations on local initiative?

• ANSWER:
• 1. It shall not be exercised for more than once a
year.
• 2. It shall extend only to subjects or matters which
are within the legal powers of the sanggunian to
enact.
• 3. If at any time before the initiative is held, the
sanggunian concerned adopts in toto the
proposition presented and the local chief executive
approves the same, the initiative shall be
canceled. However, those against such action
may, if they so desire, apply for initiative in the
manner herein provided (LGC, Sec. 124).

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