r , ~

HAND OUT No. 1 - NATURE OF THE CONSTITUTION' & THE, PHILIPPINES AS A STATE
By: Atty. Rene Cal1anta, Jr.
Constituti.onal Law I, 1st Semest"ir, SY 2012-2013 P. U.P. College of Law

"

GENERAL INTRODUCTION
Political Law defined That branch of public law which deals with the organization and operation of the government organs of the state and defines the relations of. the state with the inhabitants of its territory. (Sinco, Philippine Political Law 1, 11th ed., 1962)

Ma.cariola vs. Asuncion, 114 SCRA 77 (1982) HELD: Political law has been defined as that branch of public law which deals with the organization and operation of the governmental organs of the State and defines the relations of the state with the inhabitants of its territory.

n
I I ,
1

I... J.

Scope of Political Law.-- The entire field of political law may be subdivided into (a) the law of public administration, (b) constitutional law, (c) administrative law, and (d) the law of public corporations. These four subdivisions may be briefly described for the time being, as follows: The first deals with the organization and management of the I different branches of the government; the second, with the guaranties of the constitution to individual rights and the limitations on governmental action; the third, with the exercise of executive power in the making of rules and the decision of questions affecting private rights; and the last, with governmental agencie.s for local' government or for other special purposes. (Sinco 1) LAW SUBJECTS COVERED: 1) Constitutional Law I - Structures &Power of the Government 2) Constitutional Law II - Bill'of Rights & Citizenship 3) Administrative Law , 4) Law on Public Officers 5) Law on Public Corporations 6) Election Law 7) Public International Law

f1
I
.. 1.
I

I.

THE NATURE OF THE CONSTITUTION

A. DEFINITION
Constitution Defined: According to Cooley: that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.

Constitution of the Philippines; Defined:

fl Ll

According to Justice Malcolm: the written instrument enacted by direct action of the people by which the fundamental powers of the ~overnment are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic.

Mariila Prince v. GSIS, 2.67 SCRA 408 (1997)

HELD: A Constitution is a system of fundamental laws for the governance and administration of a nation. It is

supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. It prescribes the permanent framework of a '

,.......

'.

"'it' .I"~ 0

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P. UP. College of Law Page 2 of 15

system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered.

B. PURPOSE
Purpose of the Constitution:

To prescribe the permanent framework of a system of government, to assign to the several departments their respective powers and duties, and to establish certain fixed principles on which government is founded.

C. SUPREMACY OF THE CONSTITUTION

The Constitution is the basic and paramount law of which all other laws must conform and to which all persons, including the highest officials of the land, must defer. No acts shall be valid, however noble its intentions, if it conflicts with the Constitution. The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power debase its rectitude.

Manila Prince v. GSIS, 267 SCRA 408 (1997) HELD: Under the DOCTRINE OF CONSTITUTIONAL SUPREMACY, if a law qr contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract. Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules'be nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws and 'contracts must conform with the fundamental law of the land. Those which violate the Constitution lose their reason for being.

D. CLASSIFICATION
I. Written vs. Unwritten
1. Written - one whose documents. precepts are embodied in one document or set of

2. Unwritten - consists of rules which have not been integrated into a single, concrete form but are scattered in various sources, such as statutes of ' fundamental character, judicial decisions, commentaries of publicists, customs and traditions, and certain common law principles.

p. Conventional

vs. Cumulative
constitution, a conscious formally "struck off" at a definite or deliberate effort taken by a

1. Conventional - an enacted time and place following constituent body or ruler.

2. Cumulative - result of political time but changing by accretion

evolution, "not inaugurated at any specific rather than by any systematic method."

III.

Rigid vs. Flexible

1. Rigid - one that can be amended process. only by a forr;nal and usually difficult

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law . Page 3 of 15

2. Flexible - one that can be changed by ordinary legislation.

Tlte Constitution of tlte Pltilippines is written, conventional

and rigid

E. ESSENTIAL QUALITIES

OF THE WRITTEN CONSTITUTION

1. Broad Not only because it provides for the organization of the entire government and covers all persons and things within the territory of the State but more so because it is supposed to embody the past, to reflect the present and to anticipate the future. The constitution must be comprehensive enough to provide for every contingency. 2. Brief It must be brief and confine' itself to basic principles to be implemented with legislative details more adjustable to change and easier to amend. 3. Definite I Ambiguity in its provisions will result in confusion and divisiveness among the people, and perhaps even physical conflict. Exception: Found only in those cases where the rules are deliberately worded in a vague manner, like the due process clause, to make them more malleable to judicial interpretation in the light of new conditions and circumstances.

F. ESSENTIAL

PARTS OF THE WRITTEN CONSTITUTION

1. Constitution of Liberty Series of prescriptions setting forth the fundamental civil and political rights of the' citizens and imposing limitptions on the powers of government as a means of securing the enjoyment of these rights. ARTICLESII, III, IV, V, and, XII. 2. Constitution of Government I Series of provisions outlining the organization of the government, enumerating its powers, laying down certain rules relative to its administration and defining the electorate. ARTICLESVI to XI 3. Constitution of Sovereignty Consists of provisions pointing out the mode or procedure in accordance with which formal changes in the fundamental law may be brought about. ARTICLESXVII

G. PERMANENCE OF THE CONSTITUTION

Permanence of the constitution: One advantage of the written, conventional and rigid constitution is its permanence, or its capacity to resist capricious or whimsical change dictated not by legitimate needs but only by passing fancies, temporary passions, or occasional infatuations of the people with ideas or personalities. . Such a constitution is not likely to be easily tampered with to suit political expediency, personal ambitions or ill-advised agitation for change.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law Page 4 of 15

Disadvantage: Where the written constitution is unable to adjust to the need for change justified by new conditions and circumstances. The difficulty itself of the amending process may be responsible for the delay iii effecting the need and thus cause irreparable injury to the public interest.

H.INTERPRETATION

l.

It should be interpreted in such a way as to give effect to the intent of

the framers. Intent is discoverable either .in the document itself or through the use of extrinsic aids, such as records of the constitutional convention.

Q: Whether the constitution should be interpreted in the light of conditions obtaining at the time of its adoption or according to changes inevitably transpiring in the history of the nation? A: The constitution must change with the changing times lest it impede the progress of the people with antiquated rules grown ineffective in a modern age.

2. It should be interpreted as self-executing.

Self-executing - no need to enact law in order for it to become operative. EXAMPLE:Article III Non self executing - remains dormant unless it is activated by legislative implementation. Examples: 1. Article II, Section 4 2. Article IV, Section 3

Manila Prince v. GSIS, 267 SCRA 408 (1997)

HELD: Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, Is usually not self-executing. But ~ provision which is complete in itself and becomesoperative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no ianguage indicating that the subject is referred to the legislature for actioln.

In case of doubt, the Constitution should be considered self-executing rather than non-selfexecuting ... Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute.

3. It should be mandatory. Otherwise, the fundamental law would have no more force and prestige than a set of directions which the government and the people would be free to disregard. 4. It should be prospective in application Rights already acquired or vested might be unduly disturbed or withdrawn even in the absence of an unmistakable intention to place them within the scope of the constitution.

Notes in Political Law Atty. Rene Callanta, Jr. is' Semester, PU.P. College of Law Page 5 of 15

THE PHILIPPINES
I. STATE DEFINED.

AS A STATE

A State is a politically organized sovereign community, independent of outside control, bound by ties of nationhood, legally supreme within its territory, and acting through government functioning under a regime of law. CIR v. Campos Rueda, 42 SCRA 23 (1971) A s~ate is a community of persons, more or less numerous, permanently occupying a fixed territory and possessed of an independent government organized for political ends to which the great body of inhabitants render habitual obedience. (Prof. Samilo Barlongay quoting Garner, Introduction to Political Law, 41.) THE ELEMENTS OF A STATE ARE: territory, people, sovereignty, government. People refers simply to the inhabitants of the State. Territorv is the fixed portion of the surface of the earth inhabited by the people of the State. Government is the agency or instrumentality formulated, expressed and realized. through which the will of the State is

So~ereiqntv is the supreme and uncontrollable power inherent in a State by which

that State is governed.

II.

COMPONENTS

OF THE PHILIPPINE

STATE.

A. PEOPLE
As a requisite for Statehood: The people comprising the state must be adequate enough for self sufficiency and defence. Furthermore they must be of both sexes in order that they may perpetuate themselves 1. Three meanings of the word "People" The word "people" is used in at least three senses in the Constitution: a. "People" as Inhabitants
Art. XIII, Section 1. The Congressshall give highest priority to the enactment of measuresthat protect and enhance the right of all the people to human dignity,

reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.
Art. II, Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. Section 16. The State shall protect and advance the right of the people to a. balancedand healthful ecology in accordwith the rhythm and harmony of nature.

Art. III, Section 2. The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures of whatever nature and for any purposeshall be inviolable, xxx The right of an individual to be secure in his person is guaranteed by the Constitution. Under our Constitution, the same is declared a popular right of

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law Page 6 of 15

the people and, of course, indisputably applies to both citizens and foreigners in this country. Qua Chee Gan v. Deportation Board, 9 SCRA 27 (1963)

b. People as Citizens
Preamble. We, the sovereign Filipino people imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality and peace, do ordain and promulgate this Constitution.

Art. II, Sec. 1. The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from them.

Art. II, Sec. 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all "citizens" may be required to render personal military or civil service. Art. III, Sec. 7. The right of the people to informatio,n on' matters of public concern shall be recognized. Access to official records, and to documents, and papers pertinent to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizens subject to limitations provided by law. c. People as Electors Art. VII, Sec. 4. The President and Vice-President shall be elected by direct vote
of the people xxx.

Art. XVI, Sec. 2. The Congress may, by law, adopt a new name for the country,
a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum. '

Art. XVIII, Sec. 25. After the expiration in 1991 of the Agreement between
Republic of the Philippines and United States of America concerning Military Bases, foreign military bases, troops, or facilities shall' not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when Congress requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting party.

B. TERRITORY--

The Archipelago

Concept

Art. 1. The national territory comprises the Philippine archipelago,

with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty 'or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal' waters of the Philippines. In short, the Philippine territory consists of: (1) the Philippine archipelago, and (2) all territories over which the Philippines has sovereignty or
jurisdiction.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law Page 70f 15

1. The Philippine Archipelago Basis of Art. 1 of the 1987 Constitution [PIL, I. Cruz] 1- All the waters within the limits set forth in the: a) Treaty of Paris of December 10, 1898 (Cession of the Philippine Islands by Spain to the U.S.), b) between Spain and U.S., The Treaty of Spain and U.S. at Washington, November I 1, 1900 (Cagayan, Sulu & Sibuto), c) Treaty between U.S. and Great Britain, January 2, 1930 (Turtle and Mangsee Islands); 2- All the waters around, between and connecting the various islands of the Philippine Archipelago, irrespective of their width or dimension, have always been considered as necessary appurtenances of the land territory, forming part of the inland or internal waters of the Philippines; 3- All the waters beyond the outermost islands of the archipelago but within the limits of the boundaries set forth in the aforementioned treaties comprise the territorial sea of the Philippines. 4- The baselines from which the territorial sea of the Philippines is determined consist of straight lines jOining the appropriate points of the outermost islands of the archipelago (straight baseline method);

I
The definition of the baselines of the territorial sea of the Philippine archipelago is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.

ARCHIPELAGIC DOCTRINE > Outermost points of the archipelago shall be connected by straight baselines and all islands and waters therein are regarded as one integrated unit The basic concept of an archipelago is that body of water studded with islands, or the islands surrounded with water, is ~iewed as a unity of islands and waters together forming one unit. This is in contrast to a continent which is a single mass of land. The main purpose of the archipelagic doctrine is to protect the territorial interests of an archipelago. If we follow the old rule of international law, it is possible that between islands, e.g. Bohol and Siquijor, due to the more than 24 mile distance between the 2 islands, there may be high seas. Thus, foreign vessels may just enter anytime at will, posing danger to the security of the State. According to the doctrine, even these bodies of water within the baseline, regardless of breadth, form part of the archipelago and are thus considered as internal waters. economic reasons;(2) national

The archipelagic doctrine has a two-fold purpose:(l) security.

Thearchipelagic doctrine is the principle that it is an integr.ated'unit; everything within it comprises the archipelago. The Constitutional provisions embodying this doctrine are: 1. "klrchipelago, with all theJsland and waters embraced therein" .
,
"

-'
Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law Page Bof 15

2. "the waters around, between, and connecting the islands of the archipelago, regardless of the breadth and dimensions, form part of internal water" Method of determining the baselines 1. RA No. 3046 (17 June 1961) Determine appropriate points of the outermost Islands of the archipelago, then connect theln by means of a straight line until all islands are surrounded or enclosed by the imaginary straight lines. "The baselines from which the territorial sea of the Philippines is determined consist of straight lines jOining appropriate points of the outermost islands of the archipelago."
(fifth whereas clause.)

2. RA No. 5446 (8 September 1968).-- Sec. 2 of the Act provides that the definition of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty. Uses of the baseline: a. Determine what is internal water (all waters inside the baseline, whether or not more tharh 12 miles from the shore). b. Determine the 200 mile EEZ. c. Archipelagic Doctrine

* An archipelago * Territorial
*

is a body of water, studded with islands.

sea means water outside the baseline extending up to 12 miles.

Internal water refers to water within the baseline.

* Insular shelf means the land which is submerged under water which may extend beyond 12 miles as long as it is not more than 300 ft. deep.. It is also known as intercontinental shelf.
2. bther territories over which the Philippines has sovereignty or jurisdiction PO No. 1596 (11 June 1978) Claims the Kalayaan Group of Islands as part of Philippine territory historic rights and legal title. on the basis of

The claim was made "by reason of history, indispensable need, and effective occupation and control established in accordance with international law. xxx" 3. The territorial sea, the sea bed, the subsoil, the insular shelves and other submarine areas 4. Exclusive Economic Zone PO No. 1599 (11 June 1978). There is established an exciusive economic zone extlbnding "to a distance of two hundred (200) nautical miles beyond and from the baselines from which the territorial sea is measured. Provided, That, where the outer


ther~of.)

Notes in Political Law Atty. Rene Callanta, Jr . 1" Semester, P.U.P. College of Law Page 9 of 15

limits of the zone as thus determined overlap the exclusive economic zone of an adjacent or neighboring state, the common boundaries shall be determined by agreement with the state concerned or in accordance with pertinent generally recognized principles or international law on delimitation." (See.lthereof.) Other states shall enjoy in the exclusive economic zone freedoms with respect to navigations and overflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea relating to navigation and communications. (Sec. 4

Purposes: 1. Sovereign rights to explore, exploit, conserve and manage the natural resources, living or non-living, renewable or non-renewable of the seabed, subsoil, and superadjacent waters.

Economic exploitation and exploration of the resources of the zone such as the production of energy from the water, currents and winds.

2. Exclusive rights and jurisdiction with repect to the establishment and utilization of artificial islands, off-shore terminals, installations and structures; the preservation of. the marine environment, including the prevention and control of pollution and scientific research. 3. Such other rights as are recognized by international law. Other states are prohibited from using the zone to: . 1. Explore or exploit any resources; 2. Carry out any search, excavation or drilling operations; 3. Conduct any research; 4. Construct or operate any artificial island, off-shore terminal, installation, or other structure; 5. Perform any activity which is contrary to, or in derogation of, the sovereign rights and jurisdiction herein provided. Other states are allowed to use the zone for: 1. Navigation and overflight; 2. Laying of submarine cable and pipelines; 3. Other lawful uses related to navigation and communication.

* In case of overlapping of EEZs, the common boundaries are to be detemined by (i) agreement and (ii) international rules on delimitations.
UN Conve!"tion on the Law of the Sea (30 April 1982.) The exclusive economic zone which shall not extend beyond 200 nautical miles from baselines from which the breadth of the territorial sea is measured, is recognized in the UNCLOS,of which the Philippines is a signatory. Its concept is that although it is not part of the territory, exclusive economic benefit is reserved for the country.

C. GOVERNMENT

1. Government is that institution or aggregate of institutions by which an indE[pendent society makes and carries out those rules of action which are necessary to enable men to live in a social state or which are imposed upon the people forming that

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law Page 100f 15

society by those who possess is the aggregate of authorities U.S,. vs, Dorr, 2 Phil 332 (1903)

the power or authority of prescribing them. Government which rule a society. (US v. Dorr, 2 Phil 332, 339).

FACTS: The defendants were convicted upon a complaint charging them with the offence of writing, publishing, and circulating a scurrilous libel against the Government of the United States and the Insular Government of the Philippine Islands. The complaint is based upon Sec. 8 of Act No. 292 of the Commission whicr punishes any person who shall "utter seditious words or speeches, write, publish, or circulate scurrilous libels against the U.S. Government or the Insular Government of the Phil. Islands, or which tend to disturb or obstruct any lawful officer in executing his office, or which tend to instigate others to cabal or meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which tend to stir up the people against the unlawful authorities". The alleged libel was published as an editorial in the issue of the "Manila Freedom". The article'mentioned about the "foolish work that the Civil Commissionis doing all over the Islands" referring to the appointment by the latter of natives which were referred to as "insurgents" and "rogues" to important Government positions. ISSUE: Whether the publication constitutes an offence under Sec. 8 of ACT. No. 292 HELD: NO. The term "government" as employed in ACT No. 292 of the u.s. I'hilippine Commission is used in the abstract sense of the existing political system as distinguished from the concrete organism of the Government. The article in question contains no attack upon the governmental system of the U.S., and it is ' quite apparent that, though grossly abusive as respects both the Commission as a body and some of its individual members, it contains no attack upon the governmental system by which the authority of the u.s. is enforced in these islands. The form of Government by a Civil Commissionand a Civil Governor is not assailed. It is ,the character of the men who are instructed with the administration of the government that the writer is seeking to bring into disrepute. Note on the case:

Administration means the aggregate

govt are for the time being entrusted.

of those

persons

in whose

hands

the reins

of the

A. Functions
The government performs two kinds of functions, to wit, the

constituent and

the

ministrant.
Constituent compulsory. functions constitute the very bonds of society and are therefore

Ministrant functions are those undertaken to advance the general interests of society, such as public works, public charity, and regulation of trade and industry.

Fontanilla v. Maliaman, 194 SCRA 486 (1991) HELD: It may not be amiss to state at this point that the functions of government have been classified into governmental or constituent and proprietary or ministrant. The former involves the exercise of sovereignty and .considered as compulsory; the latter connotes merely the exercise of proprietary functions and thus considered as optional. To our SC, however, the distinction between constituent and ministrant functions is not relevant in our jurisdiction. In 'PVTA v. CIR, 65 SCRA 416, it reiterated the ruling in ACCFA v. Federation of Labor Unions, 30 SCRA 649, that such distinction has been blurred because of the repudiation of the laissez faire policy in the Constitution.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P. U.P. College of Law Page 11 of 15

PVTA v. CIR, GR No. L-32052,

July 25, 1975 (65 SCRA 416)

HELD: "The growing complexities of modern society, however, have rendered this traditional classification of the functions of government quite unrealistic, not to say obsolete. The areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally, and only 'because it was better equipped to administer for the public welfare than is any private individual or group of individuals,' continue to lose their well-defined boundaries and to be absorbed within activities that the government must undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost everywhere else the tendency is undoubtedly towards a greater socialization of economic forces. Here of course this development was envisioned, indeed adopted as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice." Thus was laid to rest the doctrine in Bacani v. National Coconut Corporation (100 Phil. 468), based on the Wilsonian classification of the tasks incumbent on government into constituent and ministrant in accordance with the laissez faire principle. That' concept, then dominant in economics, was carried into the governmental sphere, as noted in a textbook on political science, the first edition of which was published in 1898, its author being the then Professor, later American President, Woodrow Wilson. He took pains to emphasize that what was categorized by him as constituent functions had its basis in a recognition of what was demanded by the "strictest [concept of] laissez faire, [as they] are indeed the very bonds of society." The other functions he would minimize as ministrant or optional. It is a matter of law that in the Philippines, the laissez faire principle hardly commanded the authoritative position which at one time it held in the United States. As early as 1919, Justice Malcolm in Rubi v. Provincial Board (39 Phil. 660), could affirm: "The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economic and political theory, are of the past. The modern period has shown a widespread belief in the amplest possible demonstration of government activity." The 1935 Constitution, as was indicated earlier, continued that approach. As noted in Edu v. Ericta (35 SCRA 481): "What is more, to erase any doubts, the Constitutional Convention saw to it that the concept of laissez-faire was rejected. It entrusted to our ~overnment the responsibility of coping with social and economic problems with the commensurate power of control over economic affairs. Thereby it could live up to its commitment to promote the general welfare through state action." Nor did the opinion in Edu stop there: ''To repeat, our Constitution which took effect in 1935 erased whatever doubts there might be on that score. Its philosophy is a repudiation of laissez-faire.

B. Doctrine of Parens Patriae One of the important tasks of the government is to act for the State as parens patriae, or guardian of the rights of the people. This prerogative of parens patriae is inherent in the suprerT)e power every State, whether that power is lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are sometimes exerted by irresponsible monarchs to the great detriment of the people and the destruction of their liberties.

C. De Jure and De Facto Governments A de jure government has rightful title but no power or control, either because this haS been withdrawn from it or because it has not yet actually entered into the exercise thereof. A de facto government, on the other hand, is a government of fact, that is, it actually exercises power or control but without legal title. The three kinds of de facto government are as follows: (1) The government that gets possession and control of, or USljrps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter. (2) That established as an independent government by the inhabitants of a country who rise in insurrection against the parent state. (3)/ That which is established and maintained by military forces who invade and . occupy a territory of the enemy in the course of war, and which is denominated ,as

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P. u.P. College of Law Page 12 'of 15

a govt of paramount force, like the Second Republic of the Philippines established by the Japanese belligerent. The characteristics ofthis third kind of de facto government. are:' (a) Its existence is maintained by active military power within the territories, and against the rightfui authority of an established and lawful govt. (b) During its existence, it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not I become responsible, as wrongdoers, for those acts, though not warranted by the laws of the rightful govt. 2. "Government of the Philippines" defined GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES refers to the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government. [Adinistrative Code of 1987, Sec.

20)
CASE: Bacani VS. NACOCO (100 PHIL 468)

DOCTRINE: TERM "GOVERNMENT OF THE REPUBUC OF THE PHIUPPINES" CONSTRUED. - The term "Gov/ernment of the Republic of the Philippines" used in section 2 of the Revised Administrative Code refers to that' government entity through which functions of the government are exercised as an attribute of sovereignty, and in this are included those arms through which political authority is made effective whether they be provincial, municipal or other form of local government. These are what we call municipal corporations. They do not include government entities which are given a corporate personality separate and distinct from the government and which are governed by the Corporation Law, such as the National Coconut Corporation. Their poWers, duties and liabilities have to determined in the light of that law and of their corporate charters. They do not therefore come within the exemption clause prescribed in section 16, Rule 130 of our Rules of Court. HELD: NACOCO is a government entity organized to promote the coconut industry. In a litigation concerning NACOCO, the government counsel appeared for it and obtained a transcript of stenographic notes. Under the Rules of Court, the government is exempted from payment of the transcript. Is NACOCO part of the government? . The SC held that it is not because NACOCO was organized to perform ministrant functions. But qccording to Confederation of Government Employees v Agrarian Reform, the distinction between the two functions of the government - constituent and ministrant - no longer holds under the 1935 Constitution, which imposed a greater role on the government.

NATIONAL GOVERNMENT refers to the entire machinery of the central government, as distinguished from the different forms of local governments.

D. SOVEREIGNTY
"Sovereign tv is the supreme and uncontrollable power inherent in a State by which the State is governed. There are two kinds of sovereignty. to wit, legal and political. Legal sovereignty is the authority which has the power to issue fin'al commands whereas political sovereignty is the power behind the legal sovereign, or the sum total of the influences that operate upon it. Sovereignty may also be internal or external. Internal sovereignty refers to the power of the State to control its domestic affairs. External sovereignty. which 'is the power of

I
(Cruz.)

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law Page 13 of 15

the State to direct its relations with other States, is also known as independence. xxx"

The supreme power of the State to govern persons and things within its territory.

"Theory of Auto-Limitation" is the property of the State-force due to which a State has exclusive legal competence of self-limitation and self-restriction (Jellinek). In ~eagan v CIR, it was held that the provision in the military bases agreement giving the US criminal jurisdiction over crimes committed even by Filipinos inside the bases is not a derogation of Philippine sovereignty. The Philippines has the power to limit the exercise of its sovereignty. When it allows a foreign State to use part of its territory and waives jurisdiction over crimes committed therein, it does not give up part of its sovereignty but only limits the exercise of its sovereignty." Kinds of Sovereignty External Political Internal LeQal Refers to the power Refers to the power R-efersto the power Refers to the of the state to of the state to Authority that has behind legal the power to issue sovereignty, ie; the control its domestic direct its relations with other states affairs Final commands, different sectors a.k.a. Independence That is the Congressthat mold public Ooinion I
Tanada v. Angara, GR No. 118295, May 2, 1997 (272 SeRA 18) Is sovereignty really absolute?
HELD: While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. In its Declaration of Principles and State Policies, the Constitution "adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations." By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the olde~t and most fundamental rules in international law is pacta sunt servanda - international agreements must be performed in good faith. "A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties ... A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessaryto ensure the fulfillment of the obligations undertaken."

1. 60MINIUM

and IMPERIUM

Imperium refers to the State's authority to govern. It covers such activities as passing laws governing a territory, maintaining peace and order over it, and defending it against foreign invasion. When the State act in this capacity jure imperii, it generally enjoys sovereign immunity. Dominium refers to the capacity of the State to own property. It covers such rights as title to iand, exploitation and use of it, and disposition or sale of the same. The Regalian doctrine whereby all lands of the public domain belong to the State, and anyone claiming title has the burden to show ownership, comes within this concept. In this capacity jure gestium, the State descends to the status of ordinary persons and thus becomes liable as such." A state as a juridical person may act in the capacity of sovereign as well as owner. xxx "AsIthere are overtones indicative of skepticism, if not of outright rejection, of the wellknown distinction in public law bet. the governmental authority possessed by the state which is appropriately embraced in the concept of sovereignty, and its capacity to own

Notes in Political Law Atty. Rene Callanta, Jr. 1,t Semester, P. u.P. College of Law Page 140f 15

or acquire prop., it is not inappropriate to pursue the matter further. The former comes under the heading of imperium and the latter of dominium. The use of this term is appropriate wi reference to lands held by the state in its proprietary character. In such capacity, it may provide for the exploitation and use Of lands and other natural resources, including their disposition, except as limited by the Consti. Dean Pound did speak of the confusion that existed during the medieval era bet. two such concepts, but did note the existence of res publicae as a corallary to dominium. xxx [Tlhere was a rec9gnition by J. Homes in Carino v. Insular Gov't, that 'Spain in its earlier decrees embodied the universal theory that all lands were held from the Crown***.' That was a concept of jus regalia, wlc was adopted by the 1973 Consti., ownership however being vested in the state as such rather than the head thereof. (Fernando 56.) Distinguish sovereignty from dominion. Sovereignty is the right to exercise the functions of a State to the exclusion of any other State. It is often referred to as the power of imperium, which is defined as the government authority possessed by the State. On the other hand, dominion, or dominium, is the capacity of the State to own or acquire property such as lands and natural resources. (Separate Opinion, Kapunan, J., in Isagani Cruz v. Secretary of DENR, G.R. No. 135385, Dec. 6,2000, En Bane, See Footnote 86) 2. TERRITORIAL, PERSONAL, and EXTRATERRITORIAL JURISDICTION

Juripdiction is the manifestation of sovereignty. The jurisdiction of the state is understood as both its authority and the sphere of the exercise of that authority. (Sinco 26.)

a. Territorial jurisdiction is the authority of the State to have all persons and things
within its territorial iimits to be compietely subject to its control and protection. * When exercised in reference to persons or things found within the territory of the state, it is known as territorial jurisdiction. All persons within that area, regardless of nationality, are subject to the territorial jurisdiction of the state. * The territorial jurisdiction of a state is sovereignty operating or applied within its territory. Its scope and effect are expressed in this classic statement of Chief Justice Marshall on the subject: "Thejurisdiction of the nation within its own territory is necessarilyexclusiveand absolute. It is susceptibleof no limitation not imposedby itself. Any restriction upon it, deriving validity from an external source,would imply a diminution of its sovereigntyto the extent of the restriction, and an investmentof that sovereignty to the same extent in that power which would impose such restriction. All exceptions, therefore, to the full and complete power of a nation w/in its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either expressor implied." (Sinco 26-27.)

b. Personal jurisdiction is the authority of the state over its nationals, their persons,
property, and acts, whether within or outside its territory. The Civil Code provision that prohibitory and mandatory laws follow citizens wherever the;y gO.is an example. * When jurisdiction is exercised on the basis of the status of the persons affected, independent of their presence or absence in the territory of the state, it is known as personal jurisdiction. (Sinco 26.) * The personal jurisdiction of the state is exercised over all its citizens within or without its territory. It affects their person, property, and even some of their acts performed

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P. U.P. College of Law Page 15 of15

abroad. The authority of the state to which they owe permanent allegiance follows them at all times wherever they might reside and as long as their membership of the . state subsists. (Sinco 28.)

c. Extraterritorial jurisdiction

is the authority of the State over persons, things or acts, outside its territorial limits by reason of their effects to its territory. Art. 2 of the RPC is a classic example of this. its legal institutions outside its sufficient confidence in the in a particular country, it may in the latter country where its

* B~ agreement with other states, a state may establish territorial limits. Thus if a state does not have administration of justice and the system of law obtaining enter into a treaty for the establishment of its own courts citizens or nationals may be tried.

Regardless of treaty or agreement, however, a state has full authority to adopt rules intended to apply to persons, whether citizens or aliens, and things found in the territory of other states or on the high seas under certain conditions. Of course, the actual enforcement of rules intended to have extraterritorial effect may be accomplished only when the persons concerned are found w/in the territorial jurisdiction of the state. To enforce them in the territorial limits' of another state would be to violate the sovereignty of the latter, unless this state gives its consent thereto. Thus, we have Art. 2 of the Revised Penal Code: "Art. 2. Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: 1. Should commit an offense while on a Philippine ship or airship. 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippines. 3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the preceding number. 4. While being public officers or employees, should commit an offense in the exercise of their functions; or 5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code."

HAND OUT No.2 - STATE IMMUNITY FROM SUIT

By: Atty. Rene Cal1anta, Jr.
Constitutional Law I, 1st Semester,SY P.U.P. College of Law:. 2012-2013 .

DOCTRINE OF STATE IMMUNITY FROM SUIT

(A) BASIS i. Constitutional
Art. XVI, Sec. 3. The State may not be sued without its consent.

ii. Jurisprudence Positivist theory: There can be no legal right as against the authority that makes the
laws on which the right depends. (Holmes in Kawananakoa v Polyblank) .

Sociological theory:

If the State is amenable to suits, all its time would be spent defending itself from suits and this would prevent it from performing its other functions.
(Republic v Villasor, 54 SCRA 83)

The doctrine is also available to foreign States insofar as they are sought to be sued in the courts of the local State. The added basis in this case is the principle of the sovereign equality of States, under which one State cannot assert jurisdiction over another in violation of the maxim par in parem non habet imperium. To do so would "unduly vex the peace of nations." (Cruz.)

Basis of the Doctrine of State Immuni Ethical Practical

s to a local state s to a fore; n state "There can be no "Par in parem non The state will be legal right against habet imperium" busy defending the authority that Doctrine of sovereign itseff from lawsuits makes the law on equality of all states which the right de ends". ! ' ...
Republic vs. Villasor, 54 5CRA 83 (1973)

QUESTION: What is the reason behind the Doctrine of State Immunity fro suit?
. HELD:

It is a fundamental postulate of constitutionalism flowing from the juristic concept of sovereignty that the state as well as its government is immune from suit unless it gives its consent. It is readily understandable why it must be so. A sovereign is exempt from suit, not bec. of any formal conception or obsolete theory, but on the logical and oractical ground that there can be no legal right as against the authority that makes the law on which the right deoends. p. Holmes, Kawananakoav. Polyblank, 205 US 349.) Sociologicaljurisprudence supplies an answer not dissimilar. A continued adherence to the doctrine of non-suability is not to be deplored for as against the inconvenience that may be caused private parties, the loss of governmental efficiency and the obstacle to the performance of its multifarious functions are far greater if such a fundamental principle were abandoned and the availability of judicial remedy were not thus restricted.

The State may not be sued without its consent. A corollary, both dictated by logic and sound sense from such a basic concept is that public funds cannot be the object of a garnishment proceeding even if the consent to be sued had been previously granted and the state liability adjudged. This is based on considerations of public policy. Disbursements of public funds must be covered by the corresponding appropriation as required by law. The functions and public services rendered by the State cannot be al!owed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law.

1st Semester,

Notes in Political Law Atty. Rene Callanta, Jr. P.U.P. College of Law. SY 2012-2013 Page 2 of 23

Department

of Agriculture

vs. NLRC, 227 SCRA 693 (1993)

GR No. 104269

QUESTION:

Why is the Ooctrine of State Immunity from suit called "the Royal prerogative of dishonesty'?

HELp: The basic postulate enshrined in the Constitution that "The State may not be sued without its consent," reflects nothing less than a recognition of the sovereign character of the State and an express affirmation of the unwritten rule effectively insulating it from the jurisdiction of courts. It is based on the very essence of sovereignty. As has been aptly observed by Justice Holmes, a sovereign is exempt from suit, not becauseof any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. True, the doctrine, not too infrequently, is derisively called "the roval prerogative of dishonestv" because it grants the state the prerogative to defeat any legitimate claim against it by simply invoking its non-suability. We have had occasion to explain in its defense, however, that a continued adherence to the doctrine of non-suability cannot be deplored, for the loss of governmental efficiency and the obstacle to the performance of its multifarious functions would be far greater in severity than the inconvenience that may be caused private parties, if such fundamental principle is to be abandoned and the availability of judicial remedy is not to be accordingly restricted.

QUESTION: Is the doctrine of State Immunity absolute?

HELD: The rule, in any case, is not really absolute for it does not say that the state may not be sued under any circumstances. On the contrary the doctrine only conveys, "the state may not be sued without its cons~nt;" its clear import then is that the State may at times be sued. The State's consent may be given either expressly or impliedly. Express consent may be made through a general law (I.e., Commonwealth Act No. 327, as amended by Presidential Decree No. 144S [Sections 49-S0) which requires that all money claims against the govemment must first be filed with the Commission on Audit which must act upon it within sixty days. Rejection of the claim will authorize the claimant to elevate the matter to the Supreme Court on certiorari and, in effect, sue the State thereby) or a special law. In this jurisdiction, the general law waiving the immunity of the state from suit is found in Act No. 3083, where the Philippine government "consents and submits to be sued upon any money claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between the private parties." Implied consent, on the other hand, is conceded when the State itself commences litigation, thus opening itself to a counterclaim or when it enters into a contract. In this situation, the government "is deemed to have descended to the level of the other contracting party and to have divested itself of its sovereign immunity.

(8)" WHEN A SUIT IS AGAINST THE STATE AND WHEN IT IS NOT.

A suit is against the State, regardless of who is named as the defendant, if it produces adverse consequences to the public treasury in terms of disbursement of public funds and'loss of government property. When a suit is against the State, it cannot prosper unless the State has given its consent.

In the following cases, however, the suit is not really against the State. 1. When the purpose of the suit is to compel an officer charged with the duty of making payments pursuant to an appropriation made by law in favor of the plaintiff to make such payment. For in this case, the suit is not really against the State, the State having acknowledged its liability to the plaintiff through the enactment of an appropriation law. Rather, the suit is intended to compel performance of a ministerial duty. (Begoso v PVA, 32 SCRA 466 and Del Mar v PVA, 51 SCRA 340 both involving the War Widow
Belle/Irs Law due the veterans.)

2. When from the allegations in the complaint, it is clear that the respondent is a public officter sued in a private capacity. 3. When the action is not in personam with the government as the named defendant, but an action in rem that does not name the government in particular.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College a/Law. SY 2012-2013 Page 30/23

Lansang vs. CA,326 SCRA259 (2000)

QUE~TION: When is a suit against a public official considered a suit against the state and when is it not?
HELD: The doctrine of state immunity from suit applies to complaints filed against public officials for acts done in the performance of their duties. The rule is that the suit must be regarded as one against the State where the satisfaction of the judgment against the public official concerned will require the State itself to perform a positive act, such as appropriation of the amount necessary to pay the damages awarded to the plaintiff. The rule does not apply where the public official is charged in his official capacity for acts that are unlawful and injurious to the rights of others. Public officials are not exempt, in their personal capacity, from liability

arising from acts committed in bad faith.

Neither does it apply where the public official is clearly being sued not in his official capacity but in his personal capacity, although the acts complained of may have been committed while he occupied a public

position. sanders v. Veridiano II, 162 SCRA88 (1988)

HELp: It is stressed at the outset that the mere allegation that a government functionary is being sued in his

personal capacity will not automatically remove him from the protection of the law of public officers and, if appropriate, the doctrine of state immunity. By the same token, the mere invocation of official character will not suffice to insulate him from suability and liability for an act imputed to him as a personal tort committed without or in excess of his authority. These well-settled principles are applicable not only to the officers of the local state but also where the person sued in its courts pertains to the government of a foreign state, as in the present case. It is abundantly clear in the present case that the acts for which the petitioners are being called to account were performed by them in the discharge of their official duties. sanders, as director of the special services department of NAVSTA, undoubtedly had supervision over its personnel, including the private respondents, and had a hand in their employment, work assignments, discipline, dismissal and other related matters. It is not disputed that the letter had written was in fact a reply to a request from his superior, the other petitioner, for more information regarding the case of the private respondents. Moreover, even in the absence of such request, he still was within his rights in reacting to the hearing officer's criticism - in effect a direct attack against him - that Special Serviceswas practicing "an autocratic form of supervision." As for Moreau, what he is claimed to have done was write the Chief of Naval Personnel for concurrence with the tonversion of the private respondents' type of employment even before the grievance proceedings had even commenced. Disregarding for the nonce the question of its timeliness, this act is clearly official in nature, performed by Moreau as the immediate superior of Sanders and directly answerable to Naval Personnel in matters involving the special services department of NAVSTA.In fact, the Jetter dealt with the financial and budgetary problems of the department and contained recommendations for their solution, including the redesignation of the private respondents. There was nothing personal or private about it. Given the official character of the above-described letters, we have to conclude that the petitioners were, legally speaking, being sued as officers of the United States government. As they have acted on behalf of that government, and within the scope of their authority, it is that government, and not the petitioners personally, that is responsible for their acts. Assuming that the trial can proceed and it is proved that the claimants have a right to the payment of damages, such award will have to be satisfied not by the petitioners in their personal capacities but by the United States government as their principal. This will require that government to perform an affirmative act to satisfy the judgment, viz., the appropriation of the necessary amount to cover the damages awarded, thus making the action a suit against that government without its consent. There should be no question by now that such complaint cannot prosper unless the government sought to be held ,ultimately liable has given its consent to be sued. So we have ruled not orily in Baer but in many other decisions where we upheld the doctrine of state immumity as applicable not only to our own government but also to foreign states sought to be subjected to the jurisdiction of our courts. All this is not to say that in no case maya public officer be sued as such without the previous consent of the state. To be sure, there are a number of well-recognized exceptions. It is clear that a public officer may be sued as such to compel him to do an act required by law, as where, say, a register of deeds refuses to record a deed of sale; or to restrain a Cabinet member, for example, from enforcing a law claimed to be unconstitutional; or to compel the national treasurer to pay damages from an already appropriated assurance

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College o/Law. SY 2012-2013 Page 40/23
fund; or the commissioner of internal revenue to refund tax overpayments from a fund already available for the purpose; or, in general, to secure a judgment that the officer impleaded may satisfy by himself without the government itself having to do a positive act to assist him. We have also held that where the government itself, has violated its own laws, the aggrieved party may directly implead the government even without first filing his claim with the Commission on Audit as normally required, as the doctrine of state immunity "cannot be used as an instrument for perpetrating an injustice." Republic vs. Feliciano, 148 SCRA 424 (1987)

FACTS: Respondent Pablo Feliciano filed a complaint in the CFI of camarines Sur against the Republic of the Philippines, represented by the land authority, for the recovery of ownership and possession of a parcel of , land in Tinambac, camarines Sur. He alleged that the lot in question should be excluded from the NARRA settlement reservation program of the government under Proc. No. 90, since it's his private property being covered by a possessory information title in the name of his predecessor-in-interest. (Proc. No. 90 reserves for settlement purposes, under the administration of the NARRA, now the Land Authority, a tract of land situated in the Municipalities of Tinambac and Siruma, Camarines Sur.) Feliciano prayed that he be declared the rightful owner of the property in question. A motion to dismiss, principally on the ground that the RP cannot be sued without its consent and hence the action cannot prosper, was filed by 86 settlers (as intervenors) of the land in question. The ,CFI granted the motion to dismiss, which was then reversed by the lAC on appeal. Hence this petition by the Republic. ISSUES: 1. WON the doctrine of non-suability of the state can be invoked in this case. (YES)

HELD: The doctrine of non-suability of the State has proper application in this case. The plaintiff has impleaded the RP as defendant in an action for recovery of ownership and possession of a parcel of land, bringing the State to court just like any private person who is claimed to be usurping a piece of property. A suit for the recovery of property is not an action in rem, but an action in personam. By its caption and its allegation and prayer, the complaint is clearly a suit against the State, which under settled jurisprudence is not permitted, except upon a showing that the State has consented to be sued, either expressiy or by implication through the use of statutory language too plain to be misinterpreted. There is no such showing of consent in the instant case. Worse, the complaint itself fails to allege the existence of such consent. This is a fatal defect, and on this basis alone, the complaint should have been dismissed. The failure of the petitioner to assert the defense of immunity from suit when the case was tried before the court a quo, as alleged by private respondent, is not fatal. It is now settled that such defense "may be invoked by tHe courts sua sponte at any stage of the proceedings."

2. WON the consent of the RP may be read from Proc. No. 90 itself. (NO)
HELD: The exclusion of existing private rights from the reservation established by Proc. no. 90 cannot be construed as a waiver of the immunity of the State from suit. Waiver of immunity, being in derogation of sovereignty, will not be inferred lightly, but must be construed in strictissimi juris. Moreover, the Proclamation is not a legislative act. The consent of the State to be sued must emanate from statutory authority. Waiver of State Immunity can only be made by an act of the legislative body. Begosa vs. Chairman, Philippine Veterans Adm., 32 SCRA 466 (1970)

FACTS: Gaudencio Begosa, plaintiff-appellee, was an "enlisted men of ti)e Philippine Commonwealth Army, inducted in the service of the USAFFE" having taken "active participation in the battle of Bataan" as well as the "liberation drive against the enemy" thereafter became "permanently incapacitated from work due to injuries he sustained in line of duty xxx." Plain~iff filed his claim for disability pension as far back as March 4, 1955; but it was erroneously disapproved on May 21, 1955, because his dishonorable discharge from the Army was not a good or proper ground for the said disapproval, and that on reconsideration asked for by him on November 1, 1957, which he continued to follow up, the Board of Administrators, Philippine Veterans Administration (PVA), finally approved his claim on September 2, 1964, at the rate of P30/mo. Judge Soriano noted that: "had it not been for the said error, it appears that there was no good ground to deny the said claim, so the latter was valid and meritorious even as of the date of its filing on March 4, 1955, hence to make the same effective only as of the date of its approval on September 2, 1964 - according to defendants stand - would be greatly unfair and prejudicial to plaintiff.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College o/Law.' SY 2012-2013 Page 5 0/23 The appeal assigns as one error what it considers to be the failing of the LC in not holding that the complaint in this case is in effect a suit against the State which has not given its consent thereto.
HELD: It does not admit of doubt that if the suit were in fact against the State, the Lower Court should have dismIssed the complaint. Nor is it to be doubted that while ostensibly an action may be against a public official, the defendant may in reality be the government. As a result, it is equally well-settled that where a litigation may have adverse consequenceson the public treasury, whether in the disbursement of funds or loss of prop., the public official proceeded against not being liable in his personal capacity, then the doctrine of non-suability may appropriately be invoked. It has no application, however, where the suit against such a functionary had to be instituted because of his failure to comply wI the duty imposed by statute appropriating public funds for the benefit of plaintiff or petitioner. Such is the present case..

However, where the judgement in such a case would result not only in the recovery of possession of the property in favour of said citizen but also in a charge against or financial liability of the Government, then the suit should be regarded as one against the government itself, and consequently, it cannot prosper or be validly entertained by the courts except with the consent of said Government.
Del Mar v. Philippine Veterans Administration (PVA), 51 SCRA 340 (1973) GR No. L-27299

FACTS: Del Mar averred that he served during WW II as chief judge advocate of the Cebu Area Command (a duly recognized guerrilla organization) with the rank of major; that he subsequently obtained an honorable diSChargefrom the service on October 20, 1946 on a certificate of permanent total physical disability; that upon proper claim presented and after hearing and adjudication, the Phil. Veterans Board granted him a monthly life pension of PSOeffective January 28, 1947; that in March 19S0, the said Board discontinued payment of monthly life pension on the ground that his receipt of similar pension from the US Government, thru the USVeterans Administration by reason of military service rendered in the US in the Far East during the war, precluded him from receiving any further monthly life pension from the Philippine Government; that he wrote the said Board twice, demanding the continued payment of his monthly pension but his demands went unheeded. And petition for mandamus was filed with CFI-Cebuwhich rendered judgment upholding Del Mar's claim.

The PVAargues that the court a quo was without jurisdiction to try the civil case because it involves a money claim against PVA- a mere agency of the Govt performing governmental functions with no juridical personality of its own- and, in reality, partakes of an action against the Phil. Govt which is immune from suit without its consent.
HELD: As a general proposition, the rule on the immunity of the Govt from suit without its consent holds true in all actions resulting in "adverse consequenceson the public treasury, whether in the disbursements of funds or loss of property. Needlessto say, in.such actions, which, in effect, constitute suits against the Government, the ~ourt has no option but to dismiss them. Nonetheless, the rule admits of an exception. It finds no application where a claimant institutes an action against a functionary who fails to comply with his statutory duty to release the amount claimed from the public funds already appropriated by statute for the benefit of the said claimant. As clearly discernible from the circumstances, the case at bar falls under the exception. Shauf v. CA, 191 SCRA 713 (1990) GR No. 90314

Doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. FACTS: By reason of her non-selection to a position at Clark Air Base, Shauf filed an equal opportunity complaint against officers of Clark Air Base, for alleged discrimination against the former by reason of her nationality and sex. She then filed a complaint for damages with the RTC. Respondents filed a MTD on the ground that as officers of the US Armed Forces performing official functions in accordance with the powers vested in them, they are immune from suit.

Shauf contends that the officers are being sued in their private capacity for discriminatory acts performed beyond their authority, hence the instant action is not a suit against the US Govt. which would require its consbnt. According to respondents, the complaint is barred by the immunity of the US since the acts sued upon are governmental activities of the US.
HELD: 1. The general rule is that a state may not be sued without its consent. While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same,

Notes in Political Law

Atty. Rene Callanta, Jr.

1st Semester, P.U.P. College of Law. SY 2012-2013 Page 6of23 such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself, although it has not been formally impleaded. 2. lt,is a different matter where the public official is made to account in his capacity as such for acts contrary to laWand injurious to the rights of plaintiff. Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of govt. officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. The doctrine of state immunity cannot be used as an instrument for perpetrating an injustice. 3. The cloak of immunity is removed from the moment the public official is sued in his individual capacity such as where he acts without authority or in excess of the powers vested in him. A public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction. In this case, the officers are liable for damages. Republic v. Sandoval, 220 SCRA 124 (1993)
Herein public officials, having been found to have acted beyond the scope of their authority, liable for damages. may be held

FACTS: The heirs of the 12 rallyists who perished during the Mendiola massacre filed an action for damages. Suc"! action was filed against the government. This was by virtue of a recommendation made by the Citizen's Mendiola Commission (created for the purpose of conducting an investigation of the disorder, deaths and casualties that took place during the Mendiola incident.) that the heirs and wounded victims of the incident be compensated by the Govt. Notwithstanding such recommendation, no concrete form of compensation was received by the victims. The caylo Group (the group of marchers in the said incident) filed a formal letter of demand from the govt. Still unheeded for almost a year, the group filed an action against the government, together with the military officers and personnel involved in the incident before the trial court. Respondent Judge dismissedthe complaint as against the RPon the ground that there was no waiver by the sate. 1. The principle of immunity from suit is based on the very essence of sovereignty, and on the practical ground that there can be no legal right as against the authority that makes the law on which the right depends. It also rests on reasons of public policy -- that public service would be hindered, and the public endangered, if the sovereign authority could be subjected to law suits at the instance of every citizen and consequently controlled in the uses and dispositions of the means required for the proper administration of the government.
HELD:

2. This is not a suit against the State with its consent. Firstly, the recommendation made by the Mendiola Commission regarding indemnification of the heirs and the victims of the incident by the government does not in aMyway mean that liability automatically attaches to the State. The Commission was merely a fact-finding body and its recommendation was not final and executory. Secondly, whatever acts or utterances that President Aquino may have done or said, the same are not tantamount to the State having waived its immunity from suit. Although consent to be sued may be given impliedly, such consent was not given in this case. 3. Some instances when a suit is against the State: (1) when the Republic is sued by name; (2) when the suit is against an unincorporated govt. agency; (3) when the suit is on its face against a govt. officer but the case is such that the ultimate liability will belong not to the officer but to the govt. In this case, while the Republic is sued by name, the ultimate liability dpes not pertain to the government Although the military officers were discharging their official functions when the incident occurred, their functions ceased to be official the moment they exceeded their authority. Immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic. The .principle of state immunity from suit does not apply, as in this case, when the relief demanded by the suit requires no affirmative official action on the part of the State nor the affirmative discharge of any obligation w/c belongs to the State in its political capacity, even though the officers or agents who are made defendants
claim to hold or act only by virtue of a title of the state and as its agents and servants. !

They are therefore liable for damages.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College a/Law. SY 2012-2013 Page 70/23

(C) CONSENT TO BE SUED HoW consent is given

The consent to be sued, in order to be effective, must come from the State, acting through a duly enacted statute. Waiver of state immunity can only be made by an act of legislative body. In Republic v Purissima, 78 SCRA 470 (1977), the SC held that a contract entered into by the Rice and Corn Administration stipulating that in the event of breach, action may be filed by the parties, cannot be the basis of a money claim against the RCA, a government entity under the Office of the President, since the RCA had no authority to bind the government to be sued. Only a statute could. Republic v. Purissima, 78 SCRA470 {1977}
Suability of the State. The Need for a Statute Giving Consent

FACTS: The Rice & Corn Administration (RCA)entered into a contract with the Yellow Ball Freight Lines in which they agreed that in the event of breach,action may be filed with the courts of Manila. In 1972, Yellow Ball filed a money claim against RCA. The casewas assignedto respondentJudge, who denied a motion to dismissfiled by RCArelying on the stipulation in the contract of the parties.
HELD: The RCAis part of the govt, being in fact an office under the Office of the Presidentand therefore cannot be sued wlo the consent of the State. The consent to be effective.... must come from the State, acting thru.a duly enacted statute. Thus, whatever counselfor def. RCAagreed to, had no binding force in the govt. That was clearly beyondthe scopeof his authority.

In Republic v F~liciano, 148 SCRA 424, the SC held that the Proclamation of the President of the Philippines (recognizing private rights to the land) cannot be the source of consent, since the Proclamation is not a legislative act.

Express consent: (1) Money claims arising from contracts.

express or implied.

Act No. 3083. An Act Defining the Conditions under which the Government of the Philippines may be Sued.
Sec. 1. Subject to the provisions of this Act, the Government of the Philippines hereby consents and submits to be sued upon any moneyed claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties. . Sec. 2. A person desiring to avail himself of the privilege herein conferred must show that he has presented his claim to the Commission on Audit and that the latter did not decide the same within two months .from the date of its presentation. Sec. 3. shall be province exclusive actions. Original actions brought pursuant to the authority conferred in this Act instituted in the Regional Trial Court of the City of Manila or of the where the claimant resides, at the option of the latter, upon which court original jurisdiction is hereby conferred to hear and determine such

Sec. 4. Actions instituted as aforesaid shall be governed by the same rules of procedure, both original and appellate, as if the litigants were private parties. Sec. 5. When the Government of the Philippines is plaintiff in an action instituted in any court of original jurisdiction, the defendant shall have the right to assert

1st Semester,

Notes in Political Law Atty. Rene Callanta, Jr. P.U.P. College of Law. SY 2012-2013 Page 8 of 23

therein, by way of set-off or counterclaim in a similar action between private parties.

Sec. 6.

Process in actions brought against the Government of the Philippines pursuant to the authority granted in this Act shall be served upon the SolicitorGeneral whose duty it shall be to appear and make defense, either himself or through delegates.

Sec. 7. No execution shall issue upon any judgment rendered by any court against the Government of the Philippines under the provisions of this Act; but a copy thereof duly certified by the clerk of the Court in which judgment is rendered shall be transmitted by such clerk to the President of the Philippines, within five days after the same becomes final. Sec. 8. The President of the Philippines, at the commencement of each regular
session of the Legislature, shall transmit to that body for appropriate action all decisions so received by him, and if said body determine that payment should be made, it shall appropriate the sum which the Government has been sentenced to pay, including the same in the appropriations for the ensuing year. .

Sec. 9. This Act shall take effect on its approval.

Approved, March 16, 1923.

Com. Act 327. An Act Fixing the Time within which the Auditor General shall Render His Decisions and Prescribing the Manner of Appeal Therefrom. Sec. 1. In all cases involving the settlement of accounts or claims, other than
those of accountable officers, the Auditor General shall act and decide the same within sixty days, exclusive of Sundays and holidays, after their presentation. If said accounts or claims need reference to other persons, office or offices, or to a party interested, the period aforesaid shall be counted from the time the last comment necessary to a proper decision is received by him. With respect to the accounts of accountable officers, the Auditor General shall act on the same within one hundred days after their submission, Sundays and holidays excepted. In case of accounts or claims already submitted to but still pending decision by the Auditor General on or before the approval of this Act, the periods provided in this section shall commence from the date of such approval .

. Sec. 2. The party aggrieved by the final decision of the Auditor General in the
settlement of an account or claim may, within thirty days from receipt of the decision, take an appeal in writing: (a) xxx (b) To the President of the Philippines, or (c) To the Supreme Court of the Philippines, if the appellant is a private person or entity. If there are more than one appellant, all appeals shall. be taken to the same authority resorted to by the first appellant. From a decision adversely affecting the interests of the Government, the appeal may be taken by the proper head of the department or in case of .Iocal governments by the head of the office or branch of the Government immediately concerned. The appeal shall specifically set forth the particular action of the Auditor General to which exception is taken with the reasons and authorities relied on for reversing such decision.

Sec. 3. This Act shall take effect upon its approval.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College of Law. SY2012-2013 . Page 9 of 23 Approved, June 18, 1938.

Sec. 2 of CA 327 has been amended by Sec. 50 of PO 1445 and by Sec. 35. Ch~pter 5, Subtitle B, Title I, Book V, Administrative Code of the Philippines, as follows:
Sec. 50. Appeal from decisions of the Commission.-- The party aggrieved by any decision, order, or ruling of the Commission may within thirty days from his receipt of a copy thereof appeal on certiorari to the Supreme Court in the manner provided by law and the Rules of Court. When the decision, order, or ruling adversely affects the interests of any government agency, the appeal may be taken by the proper head of that agency. (PD 1445.) Any decision, order or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof in the manner provided by law and. the Rules of Court. When the decision, order or ruling adversely affects the interest of any government agency, the appeal may be taken by the proper head of that agency. (Subtitle B, Title I, Book V, Administrative Code of the Philippines.)

Sec. 35. Appeal from Decision of the Commission.--

Before the 1987 Constitution, the law in force was Act No. 3038 and CA No. 327 which, according to Sayson v. Singson (a suit to compel payment of electrical supplies delivered to CAA), allowed suit only for money claims arising from contract, and providing a special procedure. Under this procedure, the claim must be filed with the Auditor General (now, COA). If the Auditor did not act within 60 days, then the claimant could file his claim with the RTC But if the Auditor rendered a decision, then the appeal could be made to the SC, unless the claimant was a public official in which case appeal was to the President. Art. IX of the 1987 Constitution now gives a different procedure. All money claims are to be filed with COA, which has 60 days within which to act. If it fails to so act, the claimant must wait anyway. Once a decision has been made, he has, within 30 days to appeal by certiorari to the Sc.

!
Sayson vs. Singson, 54 SeRA 282 (1973)
FACTS: In 1/67, the Office of the District Engr. requisitioned various spare parts for the repair of. a D-8

Bulldozer. A public bidding for the said items was conducted wherein the awards committee accepted the winning bid of P43,530 given by Singkier Motor Service owned by resp. Singson. Said award was approved by the Sec. of Public Works and Comm. who then directed the immediate delivery of the parts. In due course, the voucher w/c covered the transaction reached the hands of petitioner Highway Auditor Sayson who then made inquiries about the reasonablenessof the price.. After finding the price reasonable (as was evidenced by the indorsements of the Div. Engr. and the Comm. of Public Highways, the approval of the Sec. of PW & C, and the verification of the representative of the Bureau of Supply Coordination), petitioner approved and effected payment of the voucher and withheld the 20% equivalent of P8,706 in order to submit the documents covering the transaction to the Supervising Auditor for revi!,!w. After making a canvass, the General Auditing Office determined the transaction to be overpriced by at least P40,000. Malversation charges were failed against the district engr. and civil engr. involved. A mandamus suit was filed by the resp. w/c sought to compel petitioner government auditors to approve the payment of the voucher covering the balance.. The LCdecided in favor of resp. Singson. Hence this appeal by certiorari. HELb: It is apparent that resp. Singson'scause of action is a money claim against the Govt, for the payment of the alleged balance of the cost of spare parts supplied by him to the Bureau of Public Highways. Assuming momentarily the validity of such claim, mandamus is not the remedy to enforce the collection of such claim against the State ***, but an ordinary action for specific performance***. Actually, the suit disguised as one for mandamus to compel the Auditors to approve the vouchers for payment, is a suit against the State, w/c cannot prosper or be entertained by the Court except w/ the consent of the State***. In other words, the resp. should have filed his claim w/ the General Auditing Office, under the provisions of CA 327*** w/c prescribe the conditions under w/c money claim against the government may be filed.

.,1-

1st

Notes in Political Law Atty. Rene Callanta, Jr. Semester, P.U.P. College a/Law. SY 2012-2013 . Page 10 0/23

It is true that once consent is secured, an action may be filed. There is nothing to prevent the State, however, in such statutory grant, to require that certain administrative proceedings be had and be exhausted. Also, in the proper forum in the judicial hierarchy can be specified if thereafter an appeal would be taken by the ~arty aggrieved. Here, there was no ruling of the Auditor Gen. Even had there been such, the court to wlc the matter should have been elevated is this Tribunal; the LC could not legally act on the matter.

(2) Quasi-delicts

committed

by special

agents

Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx The State is responsible in like manner when it acts through a special agent, but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Art. 2176 shall be applicable. xxx (Civil Code.) Art. 2176. ' Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (ibid.)

Art. 2180 committed non-regular

of the Civil Code by the government functions)

allows a suit when acting

against through

the government special agents

for quasi-delicts (those performing

But if the tortious act was committed by a regular employee, the injured only bring a suit for damages against the employee in his personal capacity. It sRould be noted

party

could

3Il, the SC said that

in 'this connection, that in Merritt vs Govt: of the Philippine Islands, 34 Phil it is therefore evident that the State is only liable for acts of its agents, officers and EEs when they act as special agents within the meaning of Art. 1903 (now Art. 2180) and that the chauffeur of the ambulance of the General Hospital waS{ not such agent. In this case, the Philippine General Hospital (PGH), the agency involved, did not yet have separate legal personality from the Philippine Govt. It should further be noted that the plaintiff was allowed to sue by virtue of a special law but was unable to hold the defendant govt. liable since the injuries were caused by a regular driver of the govt. and not a special agent. Merritt v. Government of the Philippine Islands, 34 Phil 311
FACTS: Merritt, while riding his motorcycle was hit by an ambulance owned by the Philippine General

Hospital. It was driven by a driver employed by the hospital. In order for Merritt to sue the Philippine government, Act No. 24S7 was enacted by the Philippine Legislature 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. A suit was then filed before the CFI of Manila which fixed the responsibility for the collision solely on the ambulance driver and determined the amount of damages to be awarded to Merritt. .Both parties appealed from the decision, plaintiff Merritt as to the amount of damages and defendant in rendering the amount against the government.
ISSljlE: Did the defendant in enacting Act No. 2457 simply waive its immunity from suit or did it also concede

its liability to the plaintiff? By consenting to be sued, a state simply waives its immunity from suit. It does not thereby concede its liability to the plaintiff, or create any cause of action in his favor, or extend its liability to any cause not previously recognized. It merely gives a remedy to enforce a pre-existing liability and submit itself to the jurisdiction of the court, subject to its right to interpose any lawful defense. .
HELD:

Notes in Political Law Affy.Rene Callanta, Jr. 1" Semester, P.U:P. College of Law. SY 2012-2013 Page 11 of23

Act No. 2457 authorizes E. Merritt to bring suit for the purpose of fixing the responsibility for the collision and determining the amount of damages, if any, to which E. Merritt is entitled on account of said collision. The gove:rnmentdid not assume any liability under the Act. The Government of the Philippine Islands is only liable, for the acts of its agents, officers and employees when they act as special agents within the meaning of paragraph 5 of A1903, OCC (par. 6, Art. 2180, NCC). A special agent is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official. The special agent acts in representation of the state and executes the trust confided to him. This concept does not apply to any executive agent who is an employee of the active administration and who on his own responsibility performs the functions wlc are inherent in and naturaliy pertain to his office and wlc are regulated by law and the regulations. The responsibility of the State is limited to that wlc it contracts through a special agent, duly empowered by a definite order or commission to perform some act or charged wI some definite purpose wlc gives rise to the claim, and not were the claim is based on acts or omissions imputable to a public official charged wI some administrative or technical office who can be held to the proper responsibility in the manner laid down by the law of civil responsibility. The chauffeur of the ambulance of the General Hospital was not such an agent:

us v. Ceballos,

182 SCRA 644 (1990)

FACTS: Resp. was employed as barracks boy in Camp O'Donnel, and was arrested following a buy-bust oper~tion conducted by petitioners, who are officers of the US Air Force and special agents of the Air Force Office of Special Investigators. Petitioners filed charges against resp. for violation of RA 6425 and testified against him at the trial. Resp was dismissed from employment as a result of the filing of the charge. Resp. filed a complaint for damages against petitioners for his removal. Defendants (petitioners herein) filed the affirmative defense that they had only done their duty in the enforcement of Phil. laws inside the American bases pursuant to the RP-USMBA. Later, their counsel filed a motion to withdraw answer and moved for the dismissal of the complaint on the ground that defendants were acting in their official capacity and that the complaint against them was in effect a suit against the US wlo its consent.
HELD: Petitioners cannot be directly impleaded for acts imputable to their principal w/c has not given its consent to be sued. Petitioners were acting in the exercise of their official functions when they conducted the buy-bust operation.

Pvt resp. invoke Art. 2180, NCC wlc holds the govt liable if it acts through a special agent. The argument, it would seem, is premised on the ground that since the officers are designated as "special agents," the US govt should be liable for their torts. Suabilitv v. Liabilitv. There seems to be a failure to distinguish 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 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. The said article establishes a rule of liability, not suability. The govt may be held liable under this art. only if it first allows itself to be sued through any of the accepted forms of consent. Moreover, the agent performing his regular functions is not a special agent even if he is so denominated, as in the case at bar. No less important, the said provision appears to regulate only the relations of the local state wI its inhabitants and, hence, applies only to the Phil. govt and not to foreign govts impleaded in our courts. We reject the conclusion of the trial court that the answer filed by the special counsel of the Office of the Sheriff Judge Advocate of Clark Air Basewas a submission by the US govt to its jurisdiction. Expresswaiver of immunity cannot be made by a mere counsel of the govt but must be effected through a duly-enacted statute. Neither does such answer come under the implied forms of consent.

!
NOTES on the consolidated 1. The doctrine cases US v. Guinto, et at.:

of state immunity is sometimes derisively called the "royal prerogative of dishonesty" because of the privilege it grants the state to defeat any legitimate claim against it by simply invoking its non-suability. This implies however that the State may be sued with its consent.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 12 of 23

2. The consent of the state to be sued may be manifested expressly or impliedly. Express consent may be embodied in a general law or a special law. Express consent is effected only by the will of the legislature through the medium of a duly enacted statute. Consent is implied when the state enters into a contract or it itself commences litigation. When the govt. enters into a contract, it is deemed to have descended to the level of the other contracting party and divested of its sovereign immunity from suit with its implied consent. However, distinctions must be made between sovereign and proprietary acts. The state may only be liable for proprietary acts. As for the filing of a complaint by the govt., suability will result only where the govt. is claiming afffirmative relief from the defendant. 3. There is no question that the US will be deemed to have impliedly waived its nonsuability if it has entered into a contract in its proprietary or private capacity. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied. 4. In this case, by entering into an employment contract [a proprietary function] with the !respondents, the US impliedly divested itself of its sovereign immunity. The state could therefore be sued since such contracts are commercial in nature. (3) Incorporation of government-owned or controlled corps.

Suits against government agencies

A) Incorporated Agencv , Test of suability is found in its charter B) Unincorporated Agency r Test of suability depends upon the primary functions it discharges When the government creates a corporation, it invariably' provides this corporation a separate entity and with the capacity to sue and be sued. If the government entity is given the capacity to be sued, the suit encompasses any kind of action, including one from tort. I In SSS v. CA, 120 SCRA 707 (1983), the property of one Socorro Cruz was foreclosed due to the negligence of the regular employees of 555 in mistaking her account, which was updated, with that of another Socorro Cruz, which was in arrears. The SC, in granting nominal damages to the claimant, seemed to be saying that 555 could have invoked the defense of Art. 2180, which it did not. The separate opinion of Makasiar enunciated this. [Note: Consent to be sued includes actions based on quasi-delict even though committed by regular agents and not by special agents.] So the rule, it seems, is that a government entity can be sued for tort, but if it is, it can invoke the defense that it acted through its regular employees, not special agents.
PNBv. CIR, 81 SCRA 314 (1978)
Since the PHHC had the capacity to be sued, any judgment and its funds could even be garnished.
I

against it could be enforced by a writ of execution,

FACTS: The United Homesite Employees and Laborers Association of the People's Homesite, and Housing
COrporation (PHHC) in a case filed before the Court of Industrial Relations prevailed over PHHC. The final and executory judgment was sought to be enforced via a writ of garnishment against PHHC's funds deposited with PNB. PNB sought to quash the writ alleging that the funds were "public in character." The motion was denied, hence this petition for certiorari alleging grave abuse of discretion in denying the motion. HELD: PHHC was a government-owned entity. It has personality distinct and separate from the government. It has all the powers of a corporation under the COrporation Law, accordingly it may sue and be sued and may be subjected to court processes just like any other corporation. By engaging in business through the instrumentality of a corp., the govt divests itself of its sovereign character, so as to render the corp. subject to

1st

Notes in Political Law Atty. Rene Callanta, Jr. Semester, P.u.P. College a/Law. SY 2012-2013 Page 130/23

the rules governing private corporations. Garnishment is a proper remedy for a prevailing party to proceed agait\st the funds of a corporate entity even if owned or controlled by the government. It is well-settled that when the government enters into commercial business, it abandons its sovereign capacity and is to be treated just like any other corporation. (The case was based primarily on NASSCO v OR, 118 Phil 782.)

Rayo vs CFI of Bulacan, 110 SCRA 456 (1981) FACTS: Petitioners are among the many victims of the flooding caused by the simultaneous opening of the three floodgates of Angat Dam during the height of typhoon "Kading". The complaints they filed before the CFI of Bulacan were dismissed for the reason that the NPC in the operation of the Angat Dam is . performing a purely governmental function,' thus it can not be sued without the express consent of the State.' Respondent CFI denied MRecon, hence, this petition.
HELD: The government has organized a private corporation, put money in. it and has allowed it to sue and be sued in any court under its charter [RA 639S, Sec. 3(d)]. As a government owned and controlled corporation, it has a personality of its own, distinct and separate from that of the Government (NASSCO v CIR). Moreover, the charter provision that the NPC can "sue and be sued in any court" is without qualification on the cause of action and accordingly it can include a tort claim such as the one instituted by petitioners.

SSS V. CA, 120 SCRA 707 (1983) FACTS: The Spouses David and Socorro Cruz obtained a loan from SSS on the security of a lot located in Sto.
Rosario, Pateros, Rizal. Claiming that the couple had defaulted in the payment of the monthly amortizations, the SSS applied for the foreclosure of the mortgage. As a result the sheriff scheduled the sale of the prop. mortgaged and notice of the sale was published. It turned out that while the couple failed to pay some of the amortizations on time, at the time of the application for foreclosure, their account was up to date. The 555 mistook the couple's account for that of another one bearing the same name Socorro Cruz, although wi different middle name. The spouses sued 555 for damages. HELD: (1) Having accepted the late payments of the monthly instalments, the 555 could not suddenly and prior notice to the couple apply for the extrajudicial foreclosure of their mortgage. There was negligence on the part of the 555 when it mistook the loan account of Socorro J. Cruz for that of Socorro C. Cruz. Its attention was called to the error but it refused to acknowledge its mistake. SSS should, thus, be held liable for nominal damages.

wlo

(2) Under its charter [RA 1161, sec. 4(k)] the SSS can sue and be sued. So, even assuming that the 555 enjoys immunity from suit as an entity performing governmental functions by virtue of the explicit provision of the enabling law, it can be sued. The government must be deemed to have waived immunity in respect of the 555, although it does not thereby concede its liability. Makasiar, dissenting: xxx. The provision that it can be sued and be sued merely allows a private citizen a remedy for the enforcement of his rights but always subject to the defense of the govt. Since under Art. 2180, NCC the State is liable for tort only when it acts through special agents but not when it acts through officials to whom the task done properly pertains and who alone are liable for their torts, the 555 cannot be held liable for damages in this case.

Implied consent: (1) When the government enters into business contracts When the government is in the performance of governmental function (jure imperii), eveh if it enters into a contract with private persons, it cannot be sued without its consent. Thus, in United States v Ruiz, 136SCRA 487(1985),a contract for the repair of wharves and piers at the naval base in Subic was held to be in line with the governmental function of the us Government and so the immunity existed. But when the government enters into commercial contracts and descends to the status of ordinary persons (jure gestioni), it can be sued like any other person.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 140f23

In Mlliong v PNR, 138 SeRA 63 (1985), it was held that when the state organized the Philippine National Railway, it divested itself of its sovereign capacity, and so became liable for damages that arose from the death of one who fell from an overloaded train.
United States of America v. Ruiz, 136 SCRA 487 (1985)
State Immunity from Suits Extends to contracts Relating to Sovereign Functions.

FACTS: In 5/72, the US advertised for bid projects involving the repair of wharves and certain works on the shorelines at its naval base in Subic, Zambales. Eligio de Guzman & Co., Inc. (EG & Co.) submitted proposals in connection w/ w/c it received 2 telegrams from the US govt asking it to confirm its price proposals and the, name of its bonding co. However, in 6/82, EG & Co. was informed that its proposals had been rejected and the projects had been awarded to 3rd parties. EG & Co. brought suit in the CFI to compel the US govt to allow it to perform the work on the projects. It also asked for a writ of Pre!. inj. to restrain the US govt from entering into contract w/ 3rd parties for work on the projects. The US govt moved to dismiss the complaint, but its motion was denied. Hence the petition for review. HELD: It has been necessary to distinguish bet. sovereign and governmental acts Uure imperil) and private, coml)llercial and proprietary acts Uure gestionis.) The result is that State immunity now extends only to acts jure imperii. However, the resp. Judge held that by entering into a contract for the repair of wharves or shoreiines the State did not act in its governmental capacity. A state may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. The rule does not apply where the contract relates to the exercise of its sovereign functions. In this case the projects are an integral part of the naval base w/c is devoted to the defense of both the US and the Phils., indisputably a function of the govt of the highest order; they are not utilized for, nor dedicated to, commercial or business purpose. Malong v. PNR, 138 SCRA 63 (1985)
PNR not Immune from Suit

FACTS: The petitioners sued the Philippine National Railway (PNR) for damages for the death of their son who fell from an overloaded PNRtrain on 10/30/77. However, the trial court dismissed the suit on the ground that,! under its charter as amended by PD 741, the PNR had been made a government instrumentality, and that'as such it is immune from suit. HELD: The correct rule is that "not all government entities, whether corporate or non corporate, are immune from suits. Immunity from suit is determined by the character of the objects for w/c the entity is organized." When the govt enters into a commercial transaction it abandons its sovereign capacity and is to be treated like any other corp. In this case, the state divested itself of its sovereign capacity when it organized the PNR,w/c is no different from its predecessor, the Manila Railroad Co. Department of Agriculture v. NLRC, 227 SCRA 693 (1993)
Restrictive Doctrine of State immunity from suit

HELD: Not all contracts entered into by the government operate as a waiver of its non-suability; distinction must still be made between one which is executed in the exercise of its sovereign function and another which is done in its proprietary capacity. . In United States of America v. Ruiz (136 SeRA 487), where the questioned transaction dealt with the imprbvements on the wharves in the naval installation at Subic Bay, we held: "The traditional rule of immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a necessary consequence of the principle of independence and equality of States. However, the rules of International Law are not petrified; they are constantly developing and evolving. And because the activities of states have multiplied, it has been necessary to distinguish them - between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii. The restrictive application of State immunity is now the rule in the United States, the United Kingdom and other states in Western Europe.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 15 of23

The restrictive application of State immunity is proper only when the proceedings arise out of . commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters into business contracts. It does not apply where the contracts relate to the exercise of its sovereign functions. In this case the projects are an integral part of the naval base which is devoted to the defense of both the United States and the Philippines, indisputably a function of the government of the highest order; they are not utilized for nor dedicated to commercial or business purposes."

(2) When it would be inequitable for the state to invoke its immunity, or when it takes private property for public use or purpose. In Amigable v Cuenca, (43 SCRA 360), Alfonso v Pasay and Ministerio v CFI, 40 SCRA 464, the SC allowed suit for the recovery of possession of titled lands previously (decades) taken over by the government for expansion of roads without just compensation and the prolPer expropriation proceedings. In so holding, it said that it would be unjust for the government to invoke immunity after it has itself violated the rights of the partiesclaimant by taking over the possession of the lands, In Santiago v Republic, 87 SCRA 294 (1978), the SC allowed the revocation of a deed of donation made to the Bureau of Plant Industry for its failure to comply with the condition that it should install a lightning and water system on the property and build an office building with parking lot before a certain date. It would be unfair, said the court, for the government to invoke its immunity after gratuitously receiving property and not fulfilling its conditions. The case of Commissioner of Public Highways vs Burgos, 96 SCRA 831, simply implemented the ruling in Amigable vs Cuenca, 43 SCRA 360. In the earlier case, 'the question raised was the right of the plaintiff to sue the govt, for recovery of the value of her property which had been converted into public streets without payment to her of just compensation. Although it was shown that she had not previously filed her claim with the Auditor Gel!eral as normally required, the SC decided. in her favor. The SC held that the doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen. In this instant case, the SC fixed just compensation based on the market value of the land at the time of the taking.

santiago v. Republic, 87 SCRA 284 (1978) Consent to be Sued Presumed where Allowance of Immunity Would be Inequitable FACTS: Petitioner filed an action in the CFI of Zamboanga City for the revocation of a deed of donation w/c he and his wife had made to the Bureau of Plant Industry. He claimed that the donee failed to comply w/ the condition of the donation that the donee should install a lighting and water system on the prop. and build an office building w/ parking lot thereon not later than 12/7/74. The trial court dismissed the action on the ground of sovereign immunity. .
HELD: Ordinarily, a suit of this nature cannot prosper. It would, however, be manifestly unfair for the govt, as donee, w/c is alleged to have violated the condition under w/c it received gratuitously certain prop., to invo~e its immunity. Since it would be against equity and justice to allow such a defense in this case, consent to be sued could be presumed.

Commissioner of Public Highways v. Burgos, 96 SCRA 831 (1980) FACTS: Priv. respondent Victoria Amigable was the owner of a parcel of land in cebu City; sometime in 1924 the Government took this land for road-right-of-way purpose. In 1959, she filed in the CFI of cebu a complaint for recovery of ownership and possession plus damages. This complaint was dismissed on the grounds of estoppel and the statute of limitations and also on the ground of non-suability of the Government. The SC on appeal reversed the CFI and remanded the case for the purpose of determining the compensation to be paid Amigable, directing that to determine just compensation for the land, the basis should be the price or value thereof at the time of the taking. Respondent judge, however did not heed the directive but instead

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 16 of23 took! into account supervening inflation of the currency and adjusted the value in accordance with the preVailing peso-dollar exchange rate. His basis was Article 1250 of the Civil Code. The Sol-Gen appealed the decision.
HELD: Art. 1250 applies only to cases where a contract or agreement is involved. It does not apply where the obligation to pay arises from law, independent of contract. The taking of private property by the Government in the exercise of its power of eminent domain does not give rise to a contractual obligation. The value of the property at the time the govt took possession of the land in question, not the increased value resulting from the passage of time, w/c invariably brings unearned increment to real estate, represents the value to be paid as just compensation for the prop. taken.

EPG Construction Co. v. Vigilar, 354 SCRA 566 (2001)

HELD: To our mind, it would be the apex of injustice and highly inequitable for us to defeat petitionerscontractors' right to be duly compensated for actual work performed and services rendered, where both the government and the public have, for years, received and accepted benefits from said housing project and reaped the fruits of petitioners-contractors' honest toil and labor.

Incidentally, respondent likewise argues that the State may not be sued in the instant case, invoking the constitutional doctrine of Non-suability of the State, otherwise known as the Royal Prerogative of Dishonesty. Respondent's argument is misplaced inasmuch as the principle of State immunity finds no application in the case before us. Under these circumstances, respondent may not validly invoke the Royal Prerogative of Dishonesty and conveniently hide under the State's cloak of invincibility against suit, considering that this principle yields to certain settled exceptions. True enough, the rule, in any case, is not absolute for it does not say that the state may not be sued under any circumstances. Thus, in Amigable v. Cuenca, this Court, in effect, shred the protective shroud which shields the state from suit, reiterating our decree in the landmark case of Ministerio v. CEl ofCebu that "the doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen." It is just as important, if not more so, that there be fidelity to legal norms on the part of officialdom if the rule of law were to be maintained. Although the Amigable and Ministerio cases generously tackled the issue of the State's immunity from suit vis a viS the payment of just compensation for expropriated property, this Court nonetheless finds the doctrine enunciated in the aforementioned cases applicable to the instant controversy, considering that the ends of justice would be subverted if we were to uphold, in this particular instance, the State's immunitY from suit. To be sure, this Court - as the staunch guardian of the citizens' rights and welfare - cannot sanction an injustice so patent on its face, and allow itself to be an instrument in the perpetration thereof. Justice and equity sternly demand that the State's cloak of invincibility against suit be shred in this particular instance, and that petitioners-contractors be duly compensated - on the basis of quantum meruit- for construction done on the public works housing project. .

.1
I

(3) If the Govt. files a complaint, defendant may file a counterclaim against it In hoi/an vs Oriental Pan Shipping, GR L-6060 (Sept. 30, 1950), the SC held that when the State itself files a complaint, the defendant is entitled to file a counterclaim against it. This is based on equitable grounds. The SC ruled that the govt. impliedly allowed itself to be sued when it filed a complaint in intervention for the purpose of asserting a claim for affi~mative relief against the plaintiff, to wit, recovery of a vessel.
Froilan v. Oriental Pan Shipping, 12 SCRA 276, (1950) FACTS: Froilan purchased from Shipping Commission a vessel for P200,000 paying P50 T downpayment. A CM was executed to secure the payment of the balance. For various reasons including non-payment of installments, the Commissiontook possessionof the vessel and considered the contract of sale cancelled. The Commission chartered and delivered said vessel to Pan Oriental. Froilan appealed from the action of the Commissionand he was restored to all the rights under the original contract. However, Pan Oriental retained the possessionof the vessel. Froilan filed a complaint to recover possessionof the vessel. A writ of replevin was issued. The Govt intervened alleging that Froilan failed to pay the balance to the Commission; that the intervenor was entitled to the possessionof said vessel under the terms of the original contract or in order for

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 170f23 it to leffect the extrajudicial foreclosure of the mortgage. Pan Oriental answered the complaint in intervention praying that if RPsucceeded in obtaining the possessionof the vessel, to comply w/ its obligation of delivering it to Pan Oriental pursuant to their contract of bareboat charter w/ option to purchase. Complaint in intervention was dismissed upon Froilan's payment of his account to the RP. RPfiled a motion to dismiss the counterclaim w/c Pan Oriental had filed against it in view of the court's order dismissing the complaint in intervention. Counterclaim of Pan O. against RP was dismissed. Hence, this appeal. RP raised, among others, as ground for the dismissal of Pan O's counterclaim, the State's immunity from suit. HELD: By filing its complaint in intervention, the govt in effect waived its right of non-suability. Stated otherwise, by taking the initiative in an action against a private party, the State surrendered its privileged position and came down to the level of the def. The latter automatically acquires, w/in certain limits, the right to set up whatever claims and other defenses he might have against the State.

(D) SCOPE OF CONSENT (1) Under Act NO.3083

Sec. 1. Subject to the provisions of this Act, the Government of the Philippines
hereby consents and submits to be sued upon any moneyed claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties. When a money judgment is given against the government, the ordinary rule for execution would not apply, for the consent of the government to be sued is only up to the point of judgment. If it does not pay, it cannot be compelled to pay by attachment or otherwise. The procedure is for one to furnish the Office of the President with the decision so it could include the amount in the budget for the next year as the basis for appropriation (since there can be no disbursement of public funds except in pursuance of law). If the judge nonetheless issues a writ of execution against government funds or property, no ordinary civil action can be filed against the judge,. unless there is a shoring of malice. But, a reinstatement of the funds to government accounts and refund by the private party can be ordered. (Commissioner of Public Highways v San Diego, 31 SCRA 616 (1970), reiterating the case of A/sua v Johnson.) Commissioner of Public Highways v. San Diego, 31 SCRA 616 (1970) FACTS: On 11/20/40, the .Govt filed a complaint for eminent domain (ED) in the CFI for the expropriation of land belonging to N.T. Hashim needed to construct EDSA. On 11/25/40, the Govt took possession of the prop. upon deposit w/ the city treasurer of the sum fixed by the court as the provisional value of all the lots needed to construct the road. In 1958, the estate of Hashim, through its Judicial Administrator, Tomas Hashim, filed a money claim w/ the QC Engr's Office, w/c was alleged to be the FMVof the prop. in question. Nothing having come out of the claim, the estate filed a complaint for the recovery of the FMV against the Bureau of Public Highways (BPH.) The parties entered into a compromise agreement w/c was approved by the CFI. The estate filed a motion for the issuance of a writ of execution,'w/c the court granted. A notice of garnishment, together w/ a writ of execution was served on PNB, notifying it that levy was thereby made upon the funds of petitioner Bureau and the Auditor General on deposit. Resp. Coruna, in his capacity as Chief, Documentation Staff of PNB's Legal Dept., authorized the issuance of a cashier's check of the bank in the amount of the judgment! compromise agreement. Petitioners contend that PNB acted precipitately in havir~gdelivered the amount w/o affording petitioner Bureau a reasonable time to contest the validity of the garr\ishment. It demands that the bank credit the petitioner's account w/ the amount garnished. HELD: Although the govt, as plaintiff in expropriation proceedings, submits itself to the jurisdiction of the Court and thereby waives its immunity from suit, the judgement that is thus rendered requiring its payment of the award determined as just compensation for the condemned prop. as a condition precedent to the transfer to the title thereto in its favor, cannot be realized upon execution. It is incumbent upon the legislature to appropriate any additional amount, over and above the provisional deposit, that may be necessary to pay the award determined in the judgment, since the Govt cannot keep the land and dishonor the judgment. The universal rule that where the State gives its consent to be sued by private parties either by general or special law, it may limit claimant's claim "only up to the completion of proceedings anterior to the stage of

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 18 of 23
execLtion" and that the power of the Courts end when the judgment is rendered, since govt funds and properties may not be seized under writs of execution or garnishment to satisfy such judgments, is based on obvious considerations of public policy. Disbursements of public funds must be covered by the corresponding appropriations as required by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law.

(2) Under a charter When consent to be sued is provided by the charter, the consent does not stop with the rendition, but goes up to the satisfaction of the judgment. In PNB v CIR, 81 SCRA 314 (1978), the SC held that since the PHHChad the capacity to be sued, any judgment against it could be enforced by a writ of execution, and its funds could even be garnished.

(E)! MEASURE OF RECOVERY

When property has been unlawfully taken by the government so that it is now compelled to make payment, the measure of recovery is the fair market value of the property at the time of taking (Ministerio v CFI, 40 SCRA 464). The value of the peso in relation to the dollar at the time of taking cannot be considered. For Art 1250 of the Civil Code concerning supervening inflation has no application in eminent domain cases, being applicable only to contractual obligations {Commissioner of Public Highways v Burgos, 96 SCRA 831 (1980)]. Ultimately, the face value of the peso then is the amount to be paid now.

(F) SOVEREIGN OR DIPLOMATIC IMMUNITY

Minucher v. CA, 397 SCRA 244 (2003) HELp: The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and, by tbe time of its ratification on 18 April 1961, its rules of law had long become stable. X x x Traditionally, the exercise of diplomatic intercourse among states was undertaken by the head of state himself, as being the preeminent embodiment of the state he represented, and the foreign secretary, the official usually entrusted with the external affairs of the state. Where a state would wish to have a more prominent diplomatic presence in the receiving state, it would then send to the latter a diplomatic mission. Conformably with the Vienna Convention, the functions of the diplomatic mission involve, by and large, the representation of the interests of the sending state and promoting friendly relations with the receiving state.

.1

The. Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios accredited to the heads of state, (b) envoys, ministers or internuncios accredited to the head of states; and (e) charges d' affairs accredited to the ministers of foreign affairs. Comprising the "staff of the (diplomatic) mission" are the diplomatic staff, the administrative staff and the technical and service staff. Only the heads of missions, as well as members of the diplomatic staff, excluding the members of the administrative, technical and service staff of the mission, are accorded diplomatic rank. Even while the Vienna Convention on
Diplomatic Relations provides for immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding that the same be restrictively applied. Onlv "di%matic agents." under the terms of the Convention, are vested with blanket diolomatic immunitv from civil and criminal suits. The Convention defines "di%matic agentS' as the heads of missions or members of the diplomatic staff, thus impliedly withholding the same privileges from all others. It might. bear stressing that even consuls, who represent their respective states in concerns of commerce and navigation and perform certain administrative and notarial duties, such as the issuance of passports and visas, authentication of documents, and administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and privileges accorded diplomats, mainly for the reason that they are not charged with the duty of representing their states in political matters. Indeed, the main

vardstick in ascertaining whether a oerson is a diplomat entitled to immunitv is the determination of whether or not he oetforms duties of di%matic nature.
X x x An attache belongs to a category of officers in the diplomatic establishment who may be .in charge of its cultural, press, administrative or financial affairs. There could also be a class of attaches belonging to certain ministries or departments of the government, other than the foreign ministry or department, who are detailed by their respective ministries or departments with the embassies such as the military, naval, air, commercial,

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 19 of23 agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief of mission in his duties and are administratively under him, but their main function is to observe, analyze and interpret trends and developments in their respective fields in the host country and submit reports to their own ministries or departments in the home government. These officials are not generally regarded as members of the
diplomatic mission, nor are they normally designated as having diplomatic rank.

Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the In World Health Organization vs. Aquino (48 SCRA 242), the Court has recognized that, in such matters, the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and incautious grant of immunity, designed to gain exemption from the jurisdiction of courts, it should behoove the Philippine government, specifically its Department of Foreign Affairs, to be most circumspect, that should particularly be no less than compelling, in its post litem motam issuances. It might be r.ecalledthat the privilege is not an immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction. X x x
government

But while the diplomatic immunity of scalzo might thus remain contentious, it was sufficiently established that, inde,d, he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of suspected drug activities within the country on the dates pertinent to this case. If it should be ascertained that Arthur Scalzo was acting well within his assigned functions when he committed the acts alleged in the complaint, the present controversy could then be resolved under the related doctrine of State Immunity from Suit. The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary international law then closely identified with the personal immunity of a foreign sovereign from suit and, with the emergence of democratic states, made to attach not just to the person of the head of state, or his representative, but also distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit are
those of a foreign government done bv its foreign agent although not necessarilv a diplomatic oersonage, but acting in his official caoacitv, the comolaint could be barred bv the immunitv of the foreign sovereign from suit without its consent. Suing a representative of a state is believed to be, in effect suing the state itself. The

proscription is not accorded for the benefit of an individual but for the State, in whose service he is, under the maxim - par in parem, non habet imperium - that all states are sovereign equals and cannot assert jurisdiction over one another. The implication, in broad terms, is that if the judgment against an official would require the state itself to perform an affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit must be regarded as being against the statE!itself, although it has not been formally impleaded. In United States of America vs. Guinto (182 SCRA 644), involving officers of the United States Air Force and special officers of the Air Force Office of Special Investigators charged with the duty of preventing the distribution, possessionand use of prohibited drugs, this Court has ruled -

"While the doctrine (of state immunity) appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties..... It cannot for a moment be imagined that they were acting in their private or unofficial capacity when they apprehended and later testified against the complainant. It follows that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts imputable to their principal, which has not given its consent to be sued.... As they have acted on behalf of the government, and within the scope of their authority, it is that' government, and not the petitioners personally, [who were] responsible for their acts." This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals (191 SCRA 713) elaborates:

"It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of Telecommunications, et aI., vs. Aligaen, et al. (33 SCRA368): 'Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not acts of the State. and an action against the officials or officers by one whose rights have been invaded or violated by such acts. for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in eguity against a State officer or the director of a State department on the ground that. while claiming to act for the. State. he violates or invades the personal and property rights of the plaintiff. under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within the constitutional provision that the State may not be sued without its

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 20 of23
consent. The rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.

"xxx

xxx

xxx

"The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinarv citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority and jurisdiction." A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be established that he is acting within the directives of the sending state. The consent of the host state is an indispensable requirement of basic courtesy between the two sovereigns. Guinto and Shauf both involve officers and personnel of the United States, stationed within Philippine territory, under the RP-US Military Sase's Agreement. While evidence is wanting to show any similar agreement between the governments of the Philippines and of the United States (for the latter to send its agents and to conduct surveillance and related activities of suspected drug dealers in the Philippines), the consent or imprimatur of the Philippine government to the activities of the United States Drug Enforcement Agency, however, can be gleaned from the facts heretofore elsewhere mentioned. The official exchanges of communication between agencies of the government of the two countries, certifications from officials of both the Philippine Department of Foreign Affairs and the United States Embassy, as well as the participation of members of the Philippine Narcotics Command in the "buy-bust operation" conducted at the residence of Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic status" of the latter but they give enough indication that the Philippine government has given its imprimatur, if not consent, to the activities within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. The job description of Scalzo has tasked him to conduct surveillance on suspected drug suppliers and, after having ascertained the target, to inform local law enforcers who would then be expected to make the arrest. In conducting surveillanct;! activities on Minucher, later acting as the poseur-buyer during the buy-bust operation, and then becoming a principal witness in the criminal case against Minucher, scalzo hardly can be said to have acted beyond the scope of his official function or duties. All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States Drug Enforcement Agency allowed by the Philippine government to conduct activities in the country to help contain the problem on the drug traffic, is entitled to the defense of state immunity from suit.

Liang vs. People, G.R. No. 125865, January 28, 2000

FACTS: Petitioner is an economist working with the Asian Development Sank (ADS). Sometime in 1994, for allegedly uttering defamatory words against fellow ADS worker Joyce cabal, he was charged before the Metropolitan Trial Court (MeTe) of Mandaluyong City with two counts of grave oral defamation docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued by the MeTe. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC released him to the custody of the Security Officer of ADS. The next day, the MeTC judge received an "office of protocol" from the Department of Foreign Affairs (DFA) stating that petitioner is covered by immunity from legal process under Section 45 of the Agreement between the ADS and the Philippine Government regarding the Headquarters of the ADS (hereinafter Agreement) in the country. Based on the said protocol communication that petitioner is immune from suit, the MeTC judge without notice to the prosecution dismissed the two criminal cases.

ISSUE: WON the action of the METC judge was proper?

HELO: NO. Courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered by any immunity. The DFA's determination that a certain person is covered by immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the DFA's advice and in motu proprio dismissing the two criminal cases without notice to the prosecution, the latter's right to due process was violated. It should be noted that due process is a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time. At any rate, it has been ruled that the mere invocation of the immunity clause does not ipso facto result in the dropping of the charges. Slandering a person could not possibly be covered by the immunity agreement because our laws do not allow the commission of a crime, such as defamation, in the name of official duty. The imputation of theft is ultra vires and cannot be part of official functions. It is well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have cqused by his act done with malice or in bad faith or beyond the scope of his authority or jurisdiction.

I I

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law. SY 2012-2013 Page 21 of23 Under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions. As already mentioned above, the commission of a crime is not part of official duty.
The Holy see v. Rosario, 238 SCRA 524 (1994) QUESTION: How to plead Diplomatic Immunity before our courts of justice?

HELD: In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of th~ state where it is sued to convey to the court that said defendant is entitled to immunity.

In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office conveYs its endorsement to the courts varies. In International catholic Migration Commission v. calleja, 190 SCR/J 130 (1990), the secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, S7 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the "suggestion" in a Manifestation and Memorandum as amicus curiae. In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in support of petitioner's claim of sovereign immunity. In some cases, the defense of sovereign immunity was submitted directly. to the local courts by the respondents through their private counsels (Raquiza v. Bradford, 75 Phil 50 [1945); Miquiabas v. PhilippineRyukyus Command, 80 Phil 262 [1948}; United States of America v. Guinto, 182 SCRA 644 [1990} and companion cases). In cases where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved.
I

The 'Republic of the Philippines has accorded the Holy see the status of a foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government since 1957. This appears to be the universal practice in international relations.
Sovereian Immunitv

As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted principles of International Law. Even without this affirmation, such principles of International Law are deemed incorporated as part of the law of the land as a condition and consequence of our admission in the society of nations (United States of America v. Guinto, 182 SCRA 644 [1990}). There are two conflicting concepts of sovereign immunity. each widely held and firmly established. According to the classical or absolute theorv. a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theorv. the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure gestionis (United States of America v. Ruiz, 136 SCRA 487 [1987); Coquia and Defensor-santiago, Pubiic International Law 194 [1984J).

!
This Court has considered the following transactions by a foreign state with private parties as acts jure imperii: (l) the lease by a foreign government of apartment buildings for use of its military officers (Syquia v. Lopez, 84 Phil. 312 [1949J); (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station (United States of America v. Ruiz, supra.); and (3) the change of employment status of base employees (sanders v. Veridiano, 162 SCRA 88 [1988J). On the other hand, this Court has considered the following transactions by a foreign state with private parties as acts jure gestionis: (l) the hiring of a cook in the recreation center, consisting of three restaurants, a

cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to American servicemen and the general public (United States of America v. Rodrigo, 182 SCRA 644 [1990J); and (2) the bidding for the operation of barber shops in Clark Air Base in Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990J). The operation of the restaurants and other facilities open to the general public is undoubtedly for profit as a commercial and not a governmental activity. Byentering into the

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College of Law. SY 2012-2013 Page 22 of23
employment contract with the cook in the discharge of its proprietary function, the United States government impliedly divested itself of its sovereign immunity from suit. In the absence of legislation defining what activities and transactions shall be considered "commercial" and as constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may be.

Certainly, the mere enterIng Into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical questIon is whether the foreign statels engaged In the activIty In the regular course of busIness. If the foreIgn state is not engaged regularly in a business'or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuIt of a sovereIgn activity, or an incident thereof, then it is an act jure imperi~ especIally when it is not undertaken for gain or profit.
As held in United States of America
II.

Guinto, (supra].

"There is no question that the United States of America, like any other state, will be deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied." In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business, surely the said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the acquisition and subsequent disposal of Lot S-A were made for profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute said claim. Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and entered into force in the Philippines on November 15, 1965.

In AH:icle31(a) of the ConventIon, a diplomatic envoy Is granted immunity from the civil and adminIstrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state whIch the envoy holds on behalf of the sendIng state for the purposes of the mission. If thIs immunity is provided for a diplomatic envoy, wIth all the more reason should immunIty be recognized as regards the sovereign itself, which In thIs case is the Holy See.
The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. Petitioner did not sell Lot S-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of the donation. The fact that squatters have occupied and are still occupying the lot, and that they stubbornly refuse to leave the premises, has been admitted by private respondent in its complaint. The issue of petitioner's non-suability can be determined by the trial court .without going to trial in the light of the pleadings, particularly the admission of private respondent. Besides, the privilege of sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. As the department tasked with the conduct of the Philippines' foreign relations (AdministratIve Code of 1987, Book III, Title I, sec. 3), the Department of Foreign Affairs has 'formally intervened in this case and officiplly certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this country. The determination of the executive arm of government that a

II

state or instrumentalitv is entitled to sovereign or diplomatIc Immunitv is a political guestion that is conclusive upon the courts (International Catholic MigratIon Commission v. Calleja, 190 SCRA 130 [1990]). Where the plea of immunitv is recoonized and affirmed bv the executive branch it is the dutv of the courts to accept this claim so as not to embarrass the executIve arm of the government In conducting the country's foreign relations (World Health Organization II. Aquino, 48 SCRA242 [1972]). As in International Catholic Migration
Commission and in World Health Organization, Affairs. we abide by the certification of the Department of Foreign

Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels:

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College of Law. SY 2012-2013 Page 23 of23 Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy see. Its first task is to persuade the Philippine government to take up with the Holy see the validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See (Young, Remedies of Private
Claimants Against Foreign States, Selected Readings on Protection

by Law of Private Foreign Investments 90S,

919 [1964]). Once the Philippine government decides to espouse the claim, the latter ceases to be a private cause. According to the Permanent Court of International Justice, the forerunner of the International Court of Justice: "By taking up the case of one of its subjects and by reporti~g to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights - . its right to ensure, in the person of its subjects, respect for the rules of international law ( The Mavrommatis Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).

HAND OUT No.3

- PRINCIPLES & POLICIES

By: Atty. Rene Callanta, Jr.

Constitutional Law I, 1st Semester, SY 2012-2013 P.U.P. College of Law

PRINCIPLES AND POLICIES OF THE PHILIPPINE GOVERNMENT

PREAMBLE We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure. to ourselves and our posterity 'the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.

While the 1935 Constitution started with "The Filipino people ;..", the 1973 and 1987 . Constitutions begin the preamble with "We, the sovereign Filipino people ... " The change from third person point of view to a first person point of view emphasizes that the Filipinos themselves are the ones establishing the Constitution, The third person presupposes someone talking about the Filipino people, and yet that someone is himself a Filipino. While the 1935 and 1973 Constitutions referred to the Divine Providence, the 1987 Constitution refers Almighty God, which is more personal. A preamble has two functions: (1) identify the authors of the Constitution, and (2) state the general principles upon which the Constitution is founded. (Sets the tone for the succeeding provisions)

3 I~PORTANT POINTS ABOUT THE PREAMBLE:

Does not confer rights nor impose duties Not a source of power or right for any department of government It only sets down the origin, scope, and purpose of the constitution, as such, it is useful as an aid in ascertaining the meaning of ambiguous provisions in the body of the constitution PRINCIPLES

A.

II

It is a standard to be observed because it is required by justice or fairness or other dimensions of morality 1. SOVEREIGNTY OF ITS PEOPLE AND REPUBLICANISM Art. II, Sec. 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.
Art. V. SUFFRAGE.

Sec. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippinesfor at least one year and in the place wherein they proposeto vote for at least six months immediately preceding the election. No literacy, property,

1,t Semester,

Notes in Political Law Atty. Rene Callanta, Jr. P.U.P. College of Law. SY 2012-2013 Page 2 of36

or other substantive requirement shall be imposed on the exercise of suffrage. Sec. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinosabroad. The Congressshall also design a procedurefor the disabled and the illiterates to vote without the assistance of other persons. Until then, they shall be allowed to vote under existing laws and such rules as the Commission on Elections may promulgate to protect the secrecyof the ballot. Art. VI, Sec. 1. The legislative power shall b'e vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by provision on initiative and referendum. Under this principle, the Philippines is a democratic state that is, a government for, of, and by the people. But it is not a pure democracy. Thus, while it is true that the people are the possessors of sovereign power, it is equally the case that they cannot exercise the powers of government directly, but only through the medium of their duly elected representatives. Their participation in government consists of : 1) Suffrage - electing the officials to whom they delegate the right of government. 2) Plebiscite a) ratifying the Constitution b) approving any amendment thereto c) with respect to local matters, approving any changes in boundaries, mergers, divisions, and even abolition of local offices d) creating metropolitan authorities, and e) creating autonomous regions 3) Initiative and referendum - enacting or proposing laws, local or national, in a refe!rendum. 4) Recall (Under the Local Government Code.) Features of Republicanism: 1. It is a govt of laws and not of men; 2. There is periodic holding of elections; 3. There is observance of principle of separation of powers and of checks and balances; 4. There is observance of the role that the legislature cannot pass or enact irrepealable laws. 2. ADHERENCE TO INTERNATIONAL LAW

Art. II, Sec. 2. The Philippines renounces war as an instrument of

national policy, adopt the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

"Adopts the generally accepted principles of international law" means the Philippines uses the incorporation theory (Doctrine of Incorporation). Without need of statute, these generally accepted principles of international law become part of the Philippine body of laws from the municipal point of view.

Ii

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College o/Law. SY 2012-2013 Page 30/36

"Adrerence Pact. Art.

to the principles

of international

law" was adopted

from

the Kellogg

Brian

II, Sec. 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self- determination. II, Sec. 8.

Art.

The Philippines, consistent with the national interest, adopts and pursues a. policy of freedom from nuclear weapons in its territory.

"Consistent with national interest" admits of two interpretations. One view holds that the Constitution itself has decided to have no nuclear interest as the policy of the State. The other view holds that, as shown by the deliberations of the Constitutional Commission, the phrase should be read as "subject to national interest" which means tha~ the issue of whether to allow the stock-piling of nuclear weapons depends on Congressional policy. .
It is the intent and sense of the Constitutional Commission that the phrase "consistent with national interest" xxx also means "subject to the national interest." (Joaquin Bernas,

The Constitution o/the Republic o/the Philippines A Commentary, vol. II, 1988 ed)
Art. XVIII, Sec. 4.

All existing treaties or international agreements which have not been ratified shall not be renewed or extended without the concurrence of at least 2/3 of all the members of the Senate. Art. XVIII, Sec. 25. After the expiration in 1991 of the Agreement
between Republic of the Philippines and United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress requires, ratified by a majority of votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting parties.

The reason why the agreement must be recognized as a treaty by the other contracting state is so it is approved by its own Senate, and not just by its President (executive agreement), thus, committing its legislature to honor the agreement and preventing it from refusing appropriations therefore.

Q. Who has the power to ratify a treaty?

HELD: In our jurisdiction, the power to ratify is vested in the Presidentand not, as commonlybelieved,in the legislature. The role of the senate is limited only to giving or withholding'its consent, or concurrence,to the ratification. (BAYAN vs. Zamora, G.R. No. 138570, Oct. 10, 2000)

Q. Which provision of the Constitution applies with regard to the exercise by the Senate of its constitutional power to concur with the Visiting Forces Agreement (VFA)?
HELD:

The 1987 Philippinecontains two provisionsrequiring the concurrenceof the Senateon treaties or internationalagreements.

Section21, Article VII x x x reads: "No treaty or international agreement shall be valid and effective unless concurred in by at leasttwo-thirds of all the Membersof the Senate."

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 40f36 Section 2S, Article XVIII, provides: "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State." Section 21, Article VII deals with treaties or international agreements in general, in which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays down the general rule on treaties or international agreements and applies to any form. of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treaties or those economic in nature. All treaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective. In cqntrast, Section 2S, Article XVIII is a special provision that applies to treaties which involve the presence of fbreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further requires that "foreign military bases, troops, or facilities" may be allowed in the Philippinesonly by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting State. It is our considered view that both constitutional provisions, far from contradicting each other, actual!y share some common ground. These constitutional provisions both embody phrases in the negative and thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause "No treaty x x x," and Section 25 contains the phrase "shall not be allowed." Additionally, in both instances, the concurrence of the Senate is indispensableto render the treaty or international agreement valid and effective. To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the Senate extended its concurrence under the same provision, is immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional requirements. On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, ,md further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessels and aircraft, importation and exportation of equipment, materials and supplies. Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a.certain extent and in a limited sense, however, the provisions of Section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate x x x. It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one. Lex specialis derogat generali. (DAYAN vs. Zamora, G.R. No. 138570, Oct. 10,2000,342 SCRA 449)

..

Q. Should the contention that since the VFA merely involved the temporary visits of United States personnel engaged in joint military exercises and not a basing agreement, therefore, Sec. 25. Art. XVIII of the Constitution is inapplicable to the VFA. be upheld?
It is specious to argue .that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. On this score, the Constitution makes no distinction between "transient" and "permanent". certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in .the Philippines.
HELD:
I

It is a rudiment in legal hermeneutics that when no distinction is made by law, the Court should not distinguish - Ubi lex non distinguit nee nos distinguire debemos. (DAYAN vs. Zamora, G.R. No. 138570, Oct. 10,
2000,342 SCRA 449)

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 5 of36

Q. Will it be correct to argue that since no foreign military bases, but merely troops and facilities, are involved in the VFA, therefore, Section 25, Article XVIII of the Constitution is

not controlling?
HELD: In like manner, we do not subscribe to the argument that Section 2S, Article XVIII is not controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a perusal of said constitutional provision reveals that the proscription covers "foreign military bases, troops, or facilities." Stated differently, this prohibition is not limited to the entry of troops and facilities without any foreign bases being established. The clause does not refer to "foreign military bases, troops, or facilities" collectively but treats them as separate and independent subjects. The use of comma and disjunctive word "or" clearly signifies disassociation and independence of one thing from the others included in the enumeration, such that, the provision contemplates three different situatians - a military treaty the subject of which could be either (a) foreign bases (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it under the coverage of Section 2S, Article XVIII.

To this end, the intention of the framers of the Charter x x x is consistent with this interpretation x x x. Moreover, military bases established within the territory of another state is no longer viable because of the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without returning to their home country. These military warships are actually used as substitutes for a land-home base not only of military aircraft but also of military personnel and facilities. Besides, vessels are mobile as compared to a land-based military headquarters. (BAYAN Zamora, G.R. No. 138570, Del. 10, 2000, 342 SeRA 449)

.s.

Q. Were the requirements of Sec. 25, Art. XVIII of the 1987 Constitution complied with when the

Senate gave its concurrence to the VFA?

HELD: Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty, (b) the treaty must be duly concurred in by the Senate and, when so required by Congress, ratified by'a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state. '

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution, whether under the general requirement in Section 21, Article VII, or the specific mandate mentioned in Section 2S, Article XVIII, the provision in the latter article requiring ratification by a majority of the votes cast in a national referendum being unnecessarysince Congress has not required it. As to the matter of voting, Section 21, Article VIIparticularly requires that a treaty or international agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members of the senate. On the other hand, section 25, Article XVIII simply provides that the treaty be "duly concurred in by the senate. " Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is clearly required so that the concurrence contemplated by law may be validly obtained and deemed present. While it is true that Section 2S, Article XVIII requires, among other things, that the treaty - the VFA, in the instant case - be "duly concurred in by the Senate," it is very true however that said provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, wl)ich in more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a two-thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to section 21, Article VII. As noted, the "concurrence requirement" under section 25, Article XVIII must be construed in relation to the provisions of Section 21, Article VII. In a more particular language, the concurrence of the senate contkmplated under Section 25, Article XVIII means that at least two-thirds of all the members of the Senate favorably vote to concur with the treaty - the VFA in the instant case. Having resolved that the first two requisites prescribed in 5ection 25, Article XVIII are present, we shall now pass upon and delve on the requirement that the VFA should be recognized as a treaty by the United States of America. This Court is of the firm view that the phrase "recognized as a treaty"means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, The United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.

Notes in Political Law Atty. Rene Callanta, Jr. Is' Semester, P.u.P. College of Law. SY 2012-2013 Page 6 of 36

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use. Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA .possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty. The that the with records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated the United States government has fully committed to living up to the terms of the VFA. For as long as United States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution.

Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate shol1ld be taken as a clear and unequivocal expression of our nation's consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder. With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. (BAYAN vs. Zamora, G.R. No. 138570, Oct. 10,2000,342 SeRA 449)

Q. Are the "Balikatan" exercises covered by the Visiting Forces Agreement?

Held: The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT has been described as the "core" of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts; the "Balikatan" is the largest such training exercise directly supporting the MDT's objectives. It is this treaty to which the VFA adverts and the obligations thereunder which it seeks to reaffirm. The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US-Philippine defense relations, that is, until it was replaced by the Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of eleven to three, this Court upheld the validity of the VFA (SA YAN v. Zamora, 342 SeRA 449 [2000}). The VFA provides the "regulatory mechanism" by which "United States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government." It contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It is the VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a common foe. The first question that should be addressed is whether "Balikatan 02-1': is covered by the Visiting Forces Agreement. To resolve this, it is necessary to refer to the VFA itself. Not much help can be had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the apprpval of the Philippine government. The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must "abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity." All other activities, in other words, are fair game. We are not completely unaided, however. The Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements, state x x x. It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. X x x

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College of Law. SY 2012-2013 Page 70f36 The Termsof Referencerightly fall within the context of the VFA. After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word "activities" arose from accident. In our view, it was deliberately made that way to give both parties a certain leewayin negotiation. In this manner, visiting USforces may sojourn in Philippineterritory for purposesother than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillanceto protect the nation's marine resources,sea search-and-destroyoperations to assistvessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarianmissions,and the like. Underthese auspices,the VFAgives legitimacyto the current Balikatanexercises. It is only logicalto assume that "Balikatan 02-1," a "mutual anti-terrorism advising, assisting and training exercise," falls under the umbrella of sanctionedor allowable activities in the context of the agreement. Both the history and intent of the Mutual DefenseTreaty and the VFAsupport the conclusionthat combat-related activities - as opposedto combat itself - such as the one subject of the instant petition, are indeed authorized. (Arthur D. Lim vs. Execflive Secretary, G.R. No. 151445, April 11, 2002)

3. SUPREMACYOF CIVILIAN AUTHORITY

Art. II, Sec. 3. Civilian authority is at all times, supreme over the
military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of that national territory. Art. VII, Sec. 18. The President shall be the Commander-in- Chief
of all armed forces of the Philippines, x x x

Art. XVI, Sec. 4.

The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and service, as may be provided by law. It shall keep a regular force necessary for the security of the State.

Art. XVI, Sec. 5.

(1) All members of the Armed Forces of the Philippines shall take an oath or affirmation to uphold and defend the Constitution.
(2) The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty. (3) Professionalism in the Armed Forces of the Philippines and adequate remuneration and benefits of its members shall be a prime concern of the State. The Armed Forces of the Philippines shall be insulated from partisan politics. No member of the military shall engage directly or indirectly in any partisan political activity. (4) No members of the Armed Forces of the Philippines in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries. (5) Laws on retirement of military officers shall not allow extension of their service. (6) The officers and men of the regular force of the Armed Forces of the Philippines shall be recruited proportionately from all provinces and cities as far as practicable.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law. SY 2012-2013 Page8of36 (7) The tour of duty of the Chief of Staff of the Armed Forces of the Philippines shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty. one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law.

Sec. 6. The State shall establish and maintain

The supremacy of civilian rule over the military is ensured by, (i) the installation of the President, the highest civilian authority, as the commander-in-chief of the military, (ii) the' requirement that members of the AFP swear to uphold and defend the Constitution, whifh is the fundamental law of the civil government, (iii) the professionalization of the service and the strengthening of the patriotism and nationalism, and respect for human rights, of the military, (iv) insulation of the AFP from partisan politics, (v) prohibition against the appointment to' a civil position, (vi) compulsory retirement of officers (no over- staying of officers), so as to avoid propagation of power), (vii) a 3-year limitation on the tour of duty of the Chief of Staff, which although extendible in case of emergency by the President, depends on Congressional declaration of. emergency, (viii) requirement of professional recruitment, so as to avoid any regional clique from forming within the AFP, as well as (ix) the establishment of a police force that is not only civilian character but also under the local executives.
IBP v.

zamora, 338 SCRA 81 (2000)

FACTS: The President issued Letter of Instruction (LOl) ordering the deployment of members of the Philippine Marines in the metropolis to conduct joint visibility patrols with members of the Philippine National Police in various shopping malls. Will this not violate the civilian supremacy clause under Section 3, Article II of the Constitution? Will this not amount to an "insidious incursion" of the military in the task of law enforcement in violation of section 5(4), Article XVI of the Constitution? ,
HELD: The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The calling of the marines in this case constitutes permissible use of military assets for civilian law enforcement. x x x. The limited participation of the Marines is evident in the provisions of the Lor itself, which sufficiently provides the metes and bounds of the Marines' authority. It is noteworthy that the local police forces are the ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-PhilippineMarines joint visibility patrols. Under the Lor, the police forces are tasked to brief or orient the soldiers on police patrol procedures. It is their responsibility to direct and manage the deployment of the Marines. It is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support to these soldiers. In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian authority.

Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character of the poiice force. Neither does it amount to an "insidious incursion" of the military in the task of law enforcement in violation of Section 5[4], Article XVI of the Constitution. In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in derogation of the aforecited provision. The real authority in these operations, as stated in the Lor, is lodged with the head of a civilian institution, the PNP, and not with the military. Such being the case, it does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he does not exercise any authority or control over the same. Since none of the Marines was incorporated or enlisted as members of the PNP,there can be no appointment to a civilian position to speak of. Hence, the deployment of the Marines in the joint visibility patrois does not destroy the civilian character of the PNP. Considering the above circumstances, the Marines render nothing more than assistance required in conducting the patrols. As such, there can be no "insidious incursion" of the military in civilian affairs nor can there be a violation of the civilian supremacy clause in the Constitution.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 9 of 36 It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the military in the implementation and execution of certain traditionally "civil" functions. x x x [S]ome of the multifarious activities wherein military aid has been rendered, exemplifying the activities that bring both the civilian and the military together in a relationship of cooperation, are: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. Elections; Administration of the Philippine National Red Cross; Relief and rescue operations during calamities and disasters; Amateur sports promotion and development; Development of the culture and the arts; Conservation of natural resources; Implementation of the agrarian reform program; Enforcement of customs laws; Composite civilian-military law enforcement activities; Conduct of licensure examinations; Conduct of nationwide tests for elementary and high school students; Anti-drug enforcement activities; Sanitary inspections; Conduct of census work; Administration of the Civil Aeronautics Board; Assistance in installation of weather forecasting devices; Peaceand order policy formulation in local government units.

This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never before questioned. What we have here is mutual support and cooperation between the military and civilian authorities, not derogation of civilian supremacy.

4. GOVERNMENT AS PROTECTOR OF THE PEOPLE AND PEOPLE AS DEFENDERS OF THE STATE ! Art. II Sec. 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfilment thereof, all citizens may be required under conditions provided by law, to render personal, military or civil service.
II, Sec. 5. The maintenance of peace and order, the protection of life, libertv, and property, and the promotion of the general welfare, are essential for the enjoyment by all the people of the blessing of democracy. Art. Note the emphasis on the government may as servant of the people, to render rather than vice-versa. (not proxy)

Note also that the people military or civil service.

by law are required

"personal"

!
5. SEPARATION OF CHURCH AND STATE
Art.

II, Sec. 6. inviolable.

The separation of the Church and State shall be

Art. III, Sec. 5. No law shall be made respecting an establishment

of religion, or Qrohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 100f36

Art. IX, C, Sec. 2(5) xxx Religious denominations and sects shall
not be registered (as a political party, organization, or coalition by the COMELEC).

Art. VI, Sec. 5(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to the party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasan,t, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.

Exceptions: Art. VI, Sec. 28(3). Charitable institutions, churches, parsonages

or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.

Sec. 29(2).

No public money or property shall be appropriated, applied, paid or employed directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the 'Armed Forces of the Philippines, or any penal institution, or government orphanage or leprosarium.

Art. XIV, Sec. 3(3).

At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government.

Sec. 4(2). Educational institutions, other than those established by

religious groups and mission boards, shall be owned solely by citizens. of the Philippines or corporations or associations at least 60% of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions. The control and administration of educational institutions shall be vested in citizens of the Philippines. No educational institutions shall be established exclusively for aliens and no group of aliens shall comprise more than 1/3 of the enrolment in any school. The provisions of this subsection shall not apply to schools established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other foreign temporary residents.

The classic case in separation of church and state is Pamil v. Teleron, which invalidated the selection to a local post of Fr. Gonzaga, (note however, that ecclesiastics are not

prohibited from running for Congress).

It is difficult to draw the line between separation of Church and State. In Elizalde v. a law exempting members of .Iglesia ni Kristo from the

Victoriano, for instance,

Notes in Political Law Atty. Rene Callanta, Jr. 1s' Semester, P.u.P. College a/Law. SY 2012-2013 Page 11 0/36

requirement that all employees must join a union as condition for continued employment, pursuant to a closed-shop agreement in the CBA, on the ground that it is prohibited by their religion, was held valid. For although the law amounted to an establishment of religion, it was likewise promoting the free exercise thereof. The non-establishment clause is not violated, however, if the benefit derived by a religion from the expenditure of public funds is merely incidental to public purpose. Thus, in Aglipay v. Ruiz, the SC held that the stamps printed by the government to commemorate the 33rd International Eucharistic Congress,in Manila did not violate the separation of church and state, because its main purpose was to promote Manila as seat of the congress and thus to attract tourists to its (the stamp showed the map of the Philippines, not a chalice). Not having been inspired by any sectarian feeling to favor a denomination nor to benefit the Roman Catholic Church, whatever religious character the stamp had was only incidental and uncontemplated. While the Constitution mandates separation of Church and State through (1) NonEstablishment, Free Exercise and No Religious Test clauses in the Bill of Rights, (2) the disallowance of the religious sector from being registered as a political party and from being appointed as sectoral representatives of Congress, yet it allows exceptions to the rule. (1) The exemption of religious institutions from taxation is a recognition that the Church is not all separate from State, for if they were really so, the Church should be taxed by State like any other entity. (2) Public funds, while generally prohibited from being spent for religious purposes as an aspect of the Non- Establishment clause, may be applied to priest rendering religious service to the AFP, a penal institution, or a government orphanage or leprosarium. The reason is the exigency of the service. If members of the AFP had to go out of the barracks to attend to their spiritual needs, national security might be endangered; yuif inmates were allowed to go out of jail to hear mass, they might never return; and if lepers were allowed out of the leprosarium, they might contaminate others. The general prohibition, however, does not apply to a priest who, for instance, teaches Mathematics at UP, for payment in this case is not for religious activities but for teaching of a secular subject. (3) The permission to have optimal religious instruction during regular class hours upon written request of the parent or guardian, to be taught by a teacher approved by the authorities of the religion of which the chilO is a member, provided it is without cost to the government is a new provision in the Constitution. Under the old Administrative Code, the instruction could not be within regular class hours. Under A359 of the Civil Code, religious instruction would even be made part of the curriculum (with grades and failing marks), so long as the parents ask for it. ! (4) With the exception of sectarian schools, all schools must be owned by citizens or 60% Filipino corporations. The control and administration of all schools, including sectarian schools, must be in the hands of Filipinos. Furthermore, they cannot be established exclusively for aliens, and the alien population in the school should not exceed 1/3.

B. POLICIES
A policy is a standard which sets out a goal to be reached, generally an improvement in economic, political or social feature of the community

Notes in Political Law Atty. Rene Col/onto, Jr. 1" Semester, P.U.P. Col/ege of Law. SY 2012-2013 Page 12 of 36

1. INDEPENDENT FOREIGN POLICY AND A NUCLEAR FREE PHILIPPINES Art. II, ,Sec. 7. The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self- determination. Art. II,' 'Sec. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory. " .. 2.

4 JUST AND DYNAMIC

SOCIAL ORDER

Art. II, Sec. 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. Art. XII, Sec. 1. The goals of the national economy are a more equitable distribution of opportunities, income, wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for' all, especially the underprivileged,

a. ~romotion of social justice

* The

1987 Constitution, compared to the 1935 and the 1973 Constitution, contains the most expanded concept of Social Justice.

The classic definition of SOCIAL JUSTICE is ~ound in Calalang vs. Williams, 70 Phil. 726, where Justice Laurel declared as follows:
"Social Justice is 'neither communism, nor despotism, nor atomism, nor anarchy,' but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the component elements of, society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex."

Art. II, Sec. 10. The State shall promote social justice in all phases of national development, Art. XIII, Sec. 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to huma'n dignity, reduce social, economic and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common gooc;l,

,)

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 24 of36

law and not subject to stipulation, except that the marriage settlements may be to a certain extent fix the property relations during the marriage. (Civil Code)
1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (Family Code) Art.

4 .. SELF-RELIANT AND INDEPENDENT ECONOMIC ORDER

Art.

II, Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.

Sec. 20. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments. .

Art. XII, Sec. 6. The use of property bears a social function,

and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives and similar collective organizations, shall have the right to own, establish and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands. These provisions reveal that the economic policy of the Philippines is one closer to socialism than capitalism. The State adopts a policy of balancing the private sector's pursuit for profit and the concern of the State to promote distributive justice. The use of "distributive justice" is based on the Aristotelian notion of giving each one what is due him on the basis of personal worth and value, and not merely what he has contracted for. Tanada vs. Angara, 272 SCRA 18 (1997)
HELD: The constitutional policy of a ''self-reliant and independent national economy" does not necessarily rule Tout the entry of foreign investments, goods and services. It contemplates neither "economic seclusion"

nor "mendicancy in the international community." Aside from envisioning a trade policy based on "equality and reciprocity," the fundamental law encourages industries that are "competitive in both domestic and foreign marketS," thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets. Garcia vs. BOI (191 SCRA 288) FACTS: The BOI approved the transfer of the site of the petrochemical plant from Bataan to Batangas and shift of feedstock for that plant from naphtha only to naphtha and/or LPG. The petrochemical plant was to be a joint venture between the PNOCand the BPCwhich is a Taiwanese group. According to the BOI, it is the investor which has the final say as to the site and the feedstock to be used,
HELD: Every provision of the Constitution on the national economy and patrimony is infused with the spirit of

nationai interest. The non-alienation of natural resources, the State's full control over the devt. and utilization of scarce resources, agreements with foreigners being based on real contributions to the economic growth

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College o/Law. SY 2012-2013 Page 130/36

To this end, the State shall regulate the acquisition. ownership. use. and disposition of property and its increments.
Art. XIII,

The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.
Sec. 2. II, Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.

Art.

Art. VII,

Sec. 13, par. 2. The spouse and relatives by consanguinity or affinity within the 4th civil degree of the President shall not during his tenure be appointed as Member of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations.
No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary position, no appointive official shall hold any other the Government or any subdivision, agency o~ thereof, including government owned or controlled subsidiaries. functions of his employment in instrumentality corporations or

Art. IX, B, Sec. 7.

The President cannot hold any other post except those allowed by the Constitution, (1) ,~hairman of NEDA, and (2) Department Secretary. The Vice-President can hold a cabinet seat without need of confirmation.

viz.,

Members of the cabinet (Secretaries and Undersecretaries): Some are of the view that the clause "unless otherwise provided by law" implies that when there is a law allowing so, he may be appointed to any other government post, even if not affiliated to his cabinet position. EO 284 limits the number of government posts of cabinet members to not more than 2. However, EO 284 has been declared unconstitutional by the SC in the case of Civil Liberties Union vs Executive Secretary (194 SCRA 317). The prohibition however does not include positions held without additional compensation in ex officio capacities as provided by law and as required by the primary functions of the concerned official's office. [For further discussion, see Executive Dept.: Prohibitions.]

b. Respect for human dignity and human rights

! . Art. II, Sec. 11. The State values the dignity of every human person

and guarantees full respect for human rights. Art. XVI, Sec. S(2).
The State shall strengthen the patriotic spirit and nationalist consciousness of the military, and respect for people's rights in the performance of their duty.

Art. XIII, Sec. 17

(1) There is hereby created an independent office called the Commission on Human Rights.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law. SY 2012-2013 Page 140f36

Sec. 18.

The Commission on Human Rights shall have the following powers and functions: (1) Investigate on its own or on complaint by any party all forms of human rights violations involving civil or political rights;

(2) Adopt its operational guidelines and rules of procedure and cite for contempt for violations thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the protection of human rights of all person within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection; (4) Exercise visitorial facilities; powers over jails, prisons, or detention

(5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights; (6) Recommend to Congress effective measures to promote human rights and provide for, compensation to victims of violations of human rights, or their families; (7) Monitor the Government's compliance with international treaty obligations on human rights; (8) Grant immunity from prosecution to any person whose testimony or whose possession of document or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under'its authority; (9) Request the assistance of any department, agency in the performance of its functions; bureau, office, or .

(10) Appoint its officers and employees in accordance with law;

and (11) Perform such other duties and functions as may be provided by law.

Sec. 19. The Congress may provide for other cases of violations of
human rights that should fall within the authority of the Commission taking into account its recommendation.

c. Fundamental equality of women and men ! Art. II, Sec. 14. The State recognizes the role of women in nationbuildina, and shall ensure the fundamental equality of men and women before the law. Art. IV, Sec. 1(2) in relation with Sec. 4. The following are
citizens of the Philippines: xxx (2) Those whose fathers or mothers are citizens of the Philippines.

Sec. 4. Citizens of the Philippines who marry aliens shall retain

their citizenship, unless by their act or omission they are deemed under the law, to have renounced it.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College o/Law. SY 2012-2013 Page 150/36

Sec. 14. The State shall protect working women by providing safe and healthful working conditions, taking into account .their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. Sec. 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the underprivileged sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers. Art. XIII,

Art. XIII,

i
One significant move to equalize men and women is in the area of citizenship. Under the 1935 Constitution, a child born of a Filipino mother became a Filipino only upon election when he reached the age of majority. The 1973 Constitution removed this stigma and made such born after 17 January 1973 a Filipino without the need of election. The 1987 Constitution improved the situation even more by granting to those children born before 17 January 1973 who elected citizenship, whether born before or after 17 January 1973, the status of natural-born citizens. At the same time, Filipino women who by virtue of marriage to an alien husband, became citizens of their husband's country no longer lost her Philippine citizenship by that fact alone, beginning 17 January 1973. In the area of labor it has been consistently held, beginning in the US with Sandy v. Oregon ( the court requiring the company to provide stools for women workers in the factories), that statutes (Book 3, Title III, Chapter I of the Labor Code) granting women bet!er treatment by virtue of their maternal function were valid.

d. Promotion of health Art. II, Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.

Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. Sec. 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly, disabled, women and children. The State shall endeavor to provide free medical care to paupers. .
Art. XIII, Sec. 12. The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health manpower development and research, responsive to the country's health needs and problems. Sec. 13. The State shall establish a special agency for disabled
persons for their rehabilitation, self-development and self-reliance, and their integration to the mainstream of society.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 16 of 36 Oposa v. Factoran, Jr., 224 SCRA 792 (1993) HELD: While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policiesand not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation, the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself x x x the day would not be too far when all else would be lost not only for the present generation, but also for those to come - generations which stand to inherit nothing but parched earth incapable of sustaining life. Tano v. Socrates, 278 SCRA 154 (1997) FACTS: The Province of Palawan and the City of Puerto Princesa enacted ordinances prohibiting the catching and/or exportation of live tropical fishes, and imposing penalties for violations thereof, in order to stop the illegal practice of cyanide fishing which destroys the corals and other marine resources. several fishermen apprehended for violating the ordinances in question challenged their constitutionality contending that the ordinances violated their preferential right as subsistence and marginal fishermen to the use of our communal marine resources guaranteed by the Constitution, under Section 7, Article XIII. Will you sustain the challenge? HELD: The "preferential right" of subsistence or marginal fishermen to the use of marine resources is not absolute. In accordance with the Regalian Doctrine, marine resources belong to the State, and, pursuant to the first paragraph of Section 2, Article XII of the Constitution, their "exploration, development and utilization x x x shall be under the full control and supervision of the State." Moreover, their mandated protection, development and conservation x x x imply certain restrictions on whatever right of enjoyment there may be in favor of anyone. What must be borne in mind is the State policy enshrined in the Constitution regarding the duty of the State to protect and advance the right of the people to a balanced and healthful ecology in accord with Ithe rhythm and harmony of nature (Section 16, Article II). The ordinances in question are meant precisely to protect and conserve our marine resources to the end that their enjoyment may be guaranteed not only for the present generation, but also for the generations to come. The right to a balanced and healthful ecology carries with it a correlative duty to refrain from impairing the environment.

e. Priority

of education,

science,

technology,

arts,

culture

and sports

(ESTACS)

Art. II, Sec. 17. The State shall give priority to education. science. technology. arts. culture and sports to foster patriotism and nationalism, accelerate social programs, and promote total human liberation and development.

Art. XIV, Sec.!. The State shall protect and promote the right of all citizens to quality education at all levels and shall take appropriate steps to make such education accessible to all. Students have the constitutional right not only to education but to a quality education, up to the secondary level, for free. But this is subject to the right of the school to impose reasonable academic standards, and to make education available only on the basis of merit. In Villar v. Technological Institute of the Philippines, 135 SeRA 706 (1985), a case involving the denial of enrollment of student activists who took part in demonstrations and mass actions, and who, at the same time incurred scholastic deficiencies. The Court held that participation in mass actions per se is not a valid ground for dismissal, but that failure in academic subjects pursuant to school regulatio~s was a valid ground. For

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.o.P. College of Law. SY 2012-2013 Page 170f36

while the right to education is a social, economic and cultural right, it is available only "on the basis of merit." In Tagonan v Cruz Pano, 137 SCRA 245 (1985), a case of a nursing student who was denied readmission after she failed a subject during her previous provisional admission (and her inability to take this subject in another school after she tried to bribe the Dean of that school), the SC again upheld the right of schools of higher learning to choose the students which it thinks could best achieve their goal of .excellence and truth, while affirming the right of students to quality education.
Department of Education, Culture and Sports v. san Diego, 180 SCRA 533 (1989) FACTS: The private respondent is a graduate of UE with a degree of BS Zoology. The petitioner claims that
he tbok the NMAT 3 times and flunked it as many times. When he applied to take it again, the petitioner rejected his application on the basis of the rule allowing only 3 chances for a student to take the NMAT. He then went to the RTC-Valenzuela to compel Ilis admission to the test. By agreement of the parties, private respondent was allowed to take the NMAT on 4{16{89 subject to the outcome of his petition. After the hearing, the respondent judge rendered a decision declaring the challenged order invalid and granting the petition on the ground that the petitioner had been deprived of her right to pursue a medical education through an arbitrary exercise of the police power. HELD: We cannot sustain the respondent judge. Her decision must be re~ersed.

In Tablarin v. Gutierrez, 152 SeRA 730, this Court upheld the constitutionality of the NMAT as a measure intended to limit the admission to medical schools only to those who have initially proved their competence and preparation for a medical education. We ~ee no reason why the rationale in the Tablarin case cann~t apply to the case at bar. The issue raised in both cases is the academic preparation of the applicant. This may be gauged at least initially by the admission test and, indeed with more reliability, by the 3-f1unk rule. Exercise of Police Power.-- The power is validly exercised if (a) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (b) the means employed are reasonably necessary to the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. In other words, the proper exercise of the police power requires' the concurrence of a Jawfulsubjectand a lawful method. The subject of the challenged regulation is within the ambit of the police power. It is the right and indeed the responsibility of the State to insure that the medical profession is not infiltrated by incompetents.

The method employed by the regulation is not irrelevant to the purpose of the law nor is it arbitrary or oppressive. The 3-f1unk rule is intended to insulate the medical schools and ultimately the medical profession from the intrusion of those not qualified to be doctors. The right to quality education is not absolute. The Constitution also provides that "every citizen has the right to c~oose a profession or course of study, subject to fair, reasonable and equitable admission and academic requirements. The challenged regulation does not violate the equal protection clause. A law does not have to operate with equal force on all persons or things to be conformable to the equal protection clause. There can be no question that a substantial distinction exists between medical students and other students who are not subjected to the NMAT and the 3-flunk rule. The medical profession directly affects the very lives of the people, unlike other careers which, for this reason, do not require more vigilant regulation. There would be unequal protection if some applicants who have passed the tests are admitted and others who have also qualified are denied entrance. In other words, what the equal protection requires is equality among equals.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 180f36

f. Urban land reform and housing Art. XIII, Sec. 9. The State shall by law, and for the common good, undertake in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program, the State shall respect the rights of small property owners. Sec. 10. Urban or rural poor dwellers shall not be evicted nor their dwellings demolished. except in accordance with law and in a just and humane manner. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated. The limitations to the power of the State in this regard: 1. Respect for the rights of property owners. 2. In the case of resettlement, said program must be with the permission of the persons to be resettled, and the community to which they would be resettled.
I

g. Reform in agriculture and other natural resources Art. II, Sec. 21. The State shall promote comprehensive rural development and agrarian reform. Art. XIII, Sec. 4. The State shall, by law, undertake an agrarian
reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of agricultural lands, subject to such priorities and reasonable retention limits as Congress may prescribe, taking into account ecological, developmental, or equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall further provide incentives for voluntary land-sharing.

Sec. 5. The State shall recognize the right of farmers, farmworkers, and landowners, as well as cooperatives, and other independent farmers' organizations to participate in the planning, organization, and management of the program, and shall provide support to agriculture through appropriate technology and research, and adequate financial, production, marketing, and other support services. Sec. 6. The State shall apply the principles of agrarian reform or
stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resource~, including lands of the public domain under lease or concession suitable to

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 19 of 36 agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. The State may resettle landless farmers and farmworkers in its own agricultural estates which shall be distributed to them in the manner provided by law.

Sec. 7. The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labour in the utilization of marine and fishing resources. Sec. 8. The State shall provide incentives to landowners to invest
the proceeds of the agrarian reform program to promote industrialization, employment creation, and privatization of public sector enterprises. Financial instruments used as payment for their lands shall be honored as equity in enterprises of their choice.

The basic philosophy behind agrarian reform is "land to the tiller" if one is a regular farm worker and "profit sharing" in other cases. But "just compensation" and a "reasonable retention limit" are guaranteed the land owner. Common limitations to land reform (urban or agrarian): It must not impair the rights of small agricultural settlers, and small property owners; land owners, small homestead

The idea of reform is to benefit the poor and other peasants and the landless. It would therefore, be self-defeating for the Constitution to make no reservation in favor of small property owners and homestead settlers. The basic philosophy behind other natural resources is the principle of "stewardship" --anyone who is given the chance to cultivate public land must use in trust for the sucGeeding generations, and so must exercise prudence in its use.

h. Protection of labor
j

Art. II. Sec. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Art. XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self- organization, collective bargaining and negotiations, and peaceful concerted activities, including the right. to strike in accordance with law. They shall be entitle to security of tenure, hu'mane conditions of work, and living wage. They shall also participate in policy and

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 20 of 36

decision-making process affecting the rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall reaulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth.

The basic philosophy behind labor is shared responsibility and the preferential use of voluntary and peaceful for the settlement of disputes.

The right of government workers to form unions Art. III, Sec. 8. The right of people, including those employed in the public and private sectors, to form unions. associations or societies for purposes not contrary to law shall not be abr,idged. Art. IX, B, Sec. 2(5). The right of self-organization denied to government employees. shall not be

Sec. 2(1). The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. The right of government workers to form unions is undisputed under Art III, sec.8 of the Constitution. (This provision is even misplaced since the Bill of Rights only covers civil and political rights.) The problem is whether they have the right to strike. Those who hold the negative view say that the right to self- organization is mentioned in Art III(8) separately from the right to strike "in Art XIU(3). If it is included, there would be no need to explicate the two anymore. But those who hold the affirmative view say that although the Constitution does not explicitly grant it, Congress can always grant the right to government workers. The Co~stitution does not prohibit it in Art III(8) in the phrase "for purposes not contrary to law". Besides the right to self-organization is rendered nugatory without the coercive tool of strike (which is true because the strike at issue is only the economic strike, not the ULP strike). It must be noted that the SC ruled in Alliance o/Government Workers vs. Minister 0/ Labor (124 SeRA 1), under the 1973 Constitution, that government workers cannot negotiate for terms and condition of employment, for these are a matter of law. Their remedy is to report to their own heads and to convince Congress to enact the desired law. Said the Court: Civil servants are entitled to form societies for purposes not contrary to law. But to form an association is one thing, and to l:Ise such association for the coercive measure of going on strike and bargaining with the government so as to pressure it into complying with their'demands, is another.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 21 of36

In NHA v. Juco (134 SCRA 172), the SC held that those in the government service cannot bargain collectively as private workers because they are governed by the Civil Service Law. It also held that all govt-owned or controlled corporations regardless of their manner of-creation, were covered by the Civil Service. In interpreting the ruling in the above cases, we have to distinguish between two kinds of government corporations in accordance with Art. IX, B, Sec. 2(1): a) those which were organized with special charters, in case the employees are governed by the Civil Service Law and arguably by the SC ruling in Alliance, and b) those which were orgillnized pursuant to the general law (Corporation Code), in which case their employees can without doubt bargain collectively and go on strike. The grant of the right to form unions is a social economic right included for the first time in the Constitution. Previously, only political and civil rights were guaranteed government employees. Question: Does the right to self-organization given to govt. employees include the right to strike?
SSS Employees Assn vs. CA, 175 SCRA 686 (1989)

FACTS: SSSfiled with the RTC-QCa complaint for damages with a prayer for a writ of preliminary injunction against petitioners SSSEA,alleging that the officers and members of the latter staged an illegal strike and barricaded the entrances to the SSS building preventing non-striking employees from reporting to work and SSSmembers from transacting business with SSS. The Public sector Labor-Management Council ordered the strikers to return to work but the strikers refused to do so. The SSSEAwent on strike because SSSfailed to act dn the union's demands.

Petitioners filed a motion to dismiss the complaint for lack of jurisdiction, which motion -was denied. The restraining order which was previously issued was converted into an injunction after finding the strike illegal. Petitioners appealed the case to the CA. The latter held that since the employees of SSSare govt employees, they are not allowed to strike.
HELD: Employees in the Civil service may not resort to strikes, walkouts and other temporary work stoppages, like workers in the private sector, in order to pressure the Govt. to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exerciseof the Right of Govt. EEs to Self-Organization which took effect after the initial dispute arose, the terms and conditions of employment in the Govt, including any political subdivision or instrumentality thereof and govt. owned and controlied corporations with original charters, are governed by law and employees therein shall not strike for the purpose of securing changes thereof. .

The statement of the court in Alliance of Govt Workers v. Minister of Labor and Employment (124 SeRA 1) is relevant as it furnishes the rationale for distinguishing bet. workers in the private sector and govt employees with regard to the right to strike?
Since the terms and conditions of govt. employment are fixed by law, govt.' workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial

peace cannot be secured through compulsion of law. Relations bet. private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In govt employment, however, it is the legisiature and, where properly given delegated power, the administrative heads of govt wlc fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through CBA's EO 180, which provides guidelines for the exercise of the right to organize of govt employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among those fixed by law.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 22 of36
Govt employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are wlin the ambit of legislation or negotiate wi the appropriate govt agencies for the improvement of those wi are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor-Management Council for appropriate action.

Manila Public School Teachers Association v. Laguio, 200 SCRA 325 (1991) FACTS: On September 17, 1990, Monday, at least 800 public school teachers proceeded to the national office of the DECS and aired their grievances. The mass action continued into the week despite the DECS Secretary's RETURN TO WORK order. The Secretary filed administrative charges against the protesting teachers. The Secretary rendered the questioned decisions in the administrative proceeding. He dismissed some teachers and placed others in under suspension. Two separate petitions were filed to assail the validity of the return to work order and his decisions in the administrative proceeding. ISSUE: whether or not the mass actions are considered as strikes?

HELD: Yes. The mass actions constituted a concerted and unauthorized stoppage of, or absence from work, which it was the teachers' duty to perform, undertaken for essentially economic reasons. ISSUE: whether or not public school teachers can strike? HELD: No. Employees of the public service do not have the right to strike although they have the right to self organization and negotiate with appropriate government agencies for the i'T'provement of working conditions. ISSUE: whether or not due process was observed during the administrative proceedings?

I I I

HELD: This court is a court of last resort. It resolves questions of law where there is no dispute of the facts or that the facts have been already determined by the lower tribunals. It is not a trier of facts. It can not resolve the issue which requires the establishment of some facts. The remedy is for the petitioners to participate in the administrative proceedings. If they lost, they may appeal to the Civil Service Commission. If pending said administrative proceedings, immediate recourse to judicial authority was believed necessary, recourse is with the RTC where there would be opportunity to prove relevant facts.

i. Independent People's Organizations Art. II, Sec. 23. The State shall encourage non- governmental. community-based. or sectoral organizations that promote the welfare of the nation. Art. XIII, Sec. 15. The State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means. People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and ,with identifiable leadership, membership and structure. Sec. 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State, shall by law, facilitate the establishment of adequate consultation mechanisms. This is in reGognition of people's power, aside from the provision on initiative and referendum.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 . Page 23 of 36

3. FAMILY AS A BASIC AUTONOMOUS SOCIAL INSTITUTION Art. II, Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government. Thii provision seems to be the basis of an argument that abortion is prohibited by the Constitution. It might also be the basis of a stand against family planning. The root of the problem, of course, is the determination of when life begins. The right of parents to rear their children is the only natural right recognized by the Constitution. This is a declaration that the State does not espouse fascism which holds that the State owns the life of everyone. Art. XV, Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its development.

I I

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. Some cite this provision as the basis of a stand against divorce. And yet not really. l The phrase "inviolable social institution," was lifted from Art. 52 of the Civil code, and under that Code, divorce was part of the proposed draft submitted to Congress by the Code Commission and was almost approved if not for reasons other than compatibility with Art. 52. Sec. 3. The State shall defend: (1) The right of spouses to found a family according to their religious convictions and the demands of responsible parenthood; (2) The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development; (3) The right of the family to a family living wage and income; and
(4) The right of families or family associations to participate in the planning and implementation of policies and programs that affect them.

Sec. 4. The family has the duty to care for its elderly members but the State may also do so through just programs of social security. Art. II, Sec. 13. The State recognizes the vital role of youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civil affairs. Art. 52. Marriage is not a mere contract but an inviolable social institution. Its nature, consequence and incidents are governed by

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College of Law. SY 2012-2013 Page 25 of 36 and generalwelfareof the country and the regulationof foreign investmentsin accordance with nationalgoals and prioritiesare too explicit not to be noticedand understood. A petrochemical industry is not an ordinary investmentopportunity. The petrochemicalindustry is essentialto the national interst. The BOI committed a grave abuse of discretion when it approvedthe transfer of the petrochemicalplant from Bataanto Batangasand authorizedthe change'of feedstockfrom naphtha only to naphtha and/or LPG. No cogent advantage to the govt. has been shown by this transfer. This is a repudiationof the independentpolicy of the govt. expressedin numerouslaws and the Constitutionto run its own affairs the way it deemsbest for the nationalinterest.

S. COMMUNICATION

AND INFORMATION

IN NATION-BUILDING vital role of

Art. II, Sec. 24. The State recognizes the communication and information in nation-building.

Art. XVI, Sec. 10. The State shall the provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respect the freedom of speech and of the press. Sec. 11(1). The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly owned and managed by such citizens. The Congress shall regulate or prohibit monopolies in commercial mass media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be allowed. (2) The advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of general welfare. Only Filipino citizens or corporations or associations at least seventy per cent of the capital of which is owned by such citizens shall be allowed to engage in the advertising industry. The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in the capital thereof, and all the executive and managing officers of such entities must be citizens of the Philippines. Art. XVIII, Sec. 23. Advertising entities affected by paragraph 2, Section 11 of Article XVI of this Constitution shall have five years from its ratification to comply on a 'graduated and proportionate basis with the minimum Filipino ownership requirement therein. Both ownership and management of mass media must be in the hands of Filipinos,

100%.
While monopolies in mass media may be regulated or prohibited, combinations restraint of and unfair competition in information matters are absolutely prohibited. Commercial advertising is now defined as being vested with public thus be owned and managed only by 70% Filipino corporations. interest, in

and can

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College a/Law. SY 2012-2013 Page 26 0/36

6. AUTONOMY OF LOCAL GOVERNMENTS

Art. II, Sec. 25. The State shall ensure the autonomy of local
governments.
Art. X. LOCAL GOVERNMENT. GENERAL PROVISIONS

Sec. 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. Sec. 2. The territorial and political subdivisions shall enjoy local
autonomy.

Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through' a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, anct provide for the qualifications, elections, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.

I I I

Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. Sec. 5. Each local government unit shall have the power to create
its own sources of revenues and to levy taxes, fees. and charges subject to such guidelines and limitations as Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.

Sec. 6.

Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.

Sec. 7. Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits. Sec. 8.
The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected.

Sec. 9. Legislative bodies of local governments shall have sectoral

representation as may be prescribed by law.

Sec. 10.

No province, city, municipality, or barangay may be created. divided, merged, abolished. or its boundary substantially

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 27 of 36 altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

Sec. 11. The Congress may, by law, create special metropolitan

political subdivisions, subject to a plebiscite as set: forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local. executives and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination.

Sec. 12. Cities that are highly urbanized, as determined by law, and component. cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

Sec. 13. Local government units may group themselves, consolidate or coordinate their efforts, services, and resources for purposes commonly beneficial to them in accordance with law.. Sec. 14. The President shall provide for regional development
councils or other similar bodies composed of local government officials, regional heads of departments and other government offices, and representatives from non-governmental organizations with the regions for purposes of administrative decentralization to strengthen the autonomy of the units therein and to accelerate the economic and social growth and development of the units in the region.

AUTONOMOUS

REGIONS

There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics which the framework of this Constitution and the national sovereigl1ty as well as territorial integrity of the Republic of the Philippines.

Sec. 15.

I I

Sec. 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. Sec. 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government. Sec. 18.
The Congress shall. enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political un(ts. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws.

I I

Notes in Political Law Atty ..Rene Callanta, Jr. 1st Semester, P.u.P. College a/Law. SY 2012-2013 Page 28 0/36 The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. Sec. 19. The .first Congress elected under this Constitution shall, within eighteen months from the time of organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras. Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organizations; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. Sec. 21. The preservation of peace and order within the region shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the region shall be the responsibility of the National Government.

This topic will be thoroughly CORPORATIONS

be discussed in your subject of PUBLIC

I I I I

7. RECOGNITION

OF THE RIGHTS OF INDIGENOUS

CULTURAL COMMUNITIES

Art. II, Sec. 22. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.
Art. XII, Sec. 5. The State, subject to the provISions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to thei r ancestral lands to ensure their economic, social, and cultural wellbeing. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain. Art. XIII, Sec. 6. The State shall apply the principles of agrarian reform or stewardship whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or conce~sion suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands.

Notes in Political Law Atty. Rene Cal/anta, Jr. 1st Semester, P.U.P. Col/ege of Law. SY 2012-2013 Page 29 of 36

Art. XIV, Sec. 17. The State shall recognize, respect and protect
the rights of indigenous cultural communities to preserve and develop their cultures. traditions and institutions. It shall consider these rights in the formulation of national plans and policies. body to advise the President on policies affecting indigenous cultural communities, the majority of the members of which shall come from such communities.

Art. XVI, Sec. 12. The Congress may create a consultative

CrUz v. Sec. of DENR, 347 SCRA 128 (2000) 1. Enumerate the Constitutional provisions recognizing and protecting the rights and interests of the indigenous peoples.
HELD: The framers of the 1987 Constitution, looking back to the long destitution of our less fortunate brothers, fittingly saw the historic opportunity to actualize the ideals of people empowerment and social justice, and to reach out particularly to the marginalized sectors of society, including the indigenous peoples. They incorporated in the fundamental law several provisions recognizing and protecting the rights and . interests of the indigenous peoples, to wit: . .

Section 22. The State recognizes and promotes the rights of indigenous peoples within the framework of national unity and development. (Article II of the' Constitution, entitled State Principlesand Policies) Section 5. The State, subject to the provisions of the Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being.

The Congress may provide for the applicability of customary laws governing property rights and relations in determining the ownership and extent of ancestral domains. (Article XII of the Constitution, entitled National Economy and Patrimony) Section 1. The Congress shall give the highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural inequalities' by equitably diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use and disposition of property and its increments. (Article XIII of the Constitution, entitled Social Justice and Human Rights) Section 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition and utilization of other natural resources, including lands of the public domain under lease or concession, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands. Section 17. The State shall recognize, respect, and protect the rights of cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies. (Article A7V of the Constitution, entitled Education, SCience,Technology,Arts, Culture, and Sports) Section 12. The Congress may create a consultative body to advise the President on policies affecting indigenous cultural communities, the majority of the members of which shall come from such communities. (Article XVI of the Constitution, entitled General Provisions)

I
I I I

2. Discuss the Indigenous Peoples Rights Act (R.A. No. 8371).

HELD: Republic Act No. 8371 is entitled "An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/Indigenous Peoples, Creating a National Commission on Indigenous Peoples,

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 300f36 Establishing Implementing Mechanisms, Appropriating Funds Therefor, and for Other Purposes." It is simply known as "The Indigenous PeoplesRights Act of 1997" or the IPRA. The rPRArecognizesthe existence of the indigenous cultural communities or indigenous peoples (ICCs/IPs) as a distinct sector in Philippine society. It grants these people the ownership and possessionof their ancestral dom<linsand ancestral lands, and defines the extent of these lands and domains. The ownership given is the indigenous concept of ownership under customary law which traces its origin to native title. Within their ancestral domains and ancestral lands, the ICCs/IPs are given the right to self-governance and empjlwerment (Sections 13 to 20), social justice and human rights (sections 21 to 28), the right to preserve and ,'protect their culture, traditions, institutions and community intellectual rights, and the right to develop their own sciencesand technologies (sections 29 to 37).

3. Define "indigenous peoples/indigenous

cultural communities. "

HELD: 1. Drawing inspiration from both our fundamental law and international law, IPRA now employs the politically-correct conjunctive term "indigenous peoples/indigenous cultural communities" as follows:

Section 3. Definition of Terms. - For purposes of this Act, the following terms shall mean: (a) INDIGENOUS PEOPLES/INDIGENOUS CULTURALCOMMUNmES. - refer'to a group of people or homogenous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since 'time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions, and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the majority of Filipinos. Indigenous peoples shall likewise include peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country at the time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the establishment ,of present State boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or who may have resettled outside their ancestral domains x x x. 2. The IPRA is a law dealing with a specific group of people, i.e., the Indigenous Cultural Communities (ICCs) or the Indigenous Peoples (IPs). The term "ICCs" is used in the 1987 Constitution while that of "IPs" is the contemporary international language in the International labor Organization (IlO) Convention 169 and the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples. Indigenous Cultural Communities or Indigenous Peoples refer to a group of people or homogeneous societies who have continuously lived as an organized community on communally bounded and defined territory. These groups of people have actually occupied, possessed and utilized their territories under claim of ownership since time immemorial. They share common bonds of language, customs, traditions and other disti7ctive cultural traits, or, they, by their resistance to political, social and cultural inroads of colonization, non,mdigenous religions and cultures, became historically differentiated from the Filipino majority. ICCs/IPs also include descendants of ICCs/IPs who inhabited the country at the time of conquest or colonization, who retain some or all of their own social, economic, cultural and political institutions but who may have been displaced from their traditional territories or who may have resettled outside their ancestral domains.

a
I

4. Define "ancestral domains" and "ancestral lands." public domain?

HELD:

Do they constitute part of the land of the

Ancestral domains and ancestral lands are the private property of indigenous peoples and do not constitute part of the land of the public domain.

The IPRA grants to ICCs/IPs a distinct kind of ownership over ancestral domains and ancestral lands. Ancestral lands are not the same as ancestral domains. These are defined in Section 3(a) and (b) of the Indigenous PeoplesRights Act x x x. ANCESTRALDOMAINS are all areas belonging to ICCs/IPs held under a claim of ownership, occupied or possessed by ICCs/IPs by themselves or through their ancestors, communally or individually since time immemorial, continuously until the present, except when interrupted by war, force majeure or displacement

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law. SY 2012-2013 Page 31 of36 by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings with government and/or private individuals or corporations. Ancestral domains comprise lands, inland waters, coastal areas, and natural resources therein and includes ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable or not;, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources. They also include lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators (Section 3[aj, IPRA). ' ANCESTRAL LANDSare lands held by the ICCs/IPs under the same conditions as ancestral domains except that these are limited to lands' and that these lands are not merely occupied and possessed but are also utilized by the ICCs/IPs under claims of individual or traditional group ownership. These lands include but are not limited to residential lots, rice terraces or paddies, private forests, swidden farms and tree lots (Section
3[bj, IPRA).
I

5. How may ICCs/IPs acquire rights to their ancestral domains and ancestral lands?
HELD: The rights of the ICCs/IPs to their ancestral domains and ancestral lands may be acquired In two modes: (1) by native title over both ancestral lands and domains; or (2) by torrens title under the Public Land Act and the Land Registration Act with respect to ancestral lands only.

6. lYhat is the concept of "native title?" What is a Certificate of Ancestral Domain Title (CADT)?
NATIVE TITLE refers to ICCs/IPs preconquest rights to lands and domains held under a claim of private ownership as far back as memory reaches. These lands are deem'ed never to have been public lands and are indisputably presumed to have been held that way since before the Spanish Conquest. The rights of ICCsIPsto their ancestral domains (which also include ancestral lands) by virtue of native title shall be recognized and respected (Section 11, IPRA). Formal recognition, when solicited by ICCs/IPs concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the concerned ICCs/IPs over the territories identified and delineated.
HELD:

Like a torrens title, a CADT is evidence of private ownership of land by native title. Native title, however, is a right of private ownership peculiarly granted to ICCs/IPs over their ancestral lands and domains. The IPRA categorically declares ancestral lands and domains held by native title as never to have been public land. Domains and lands held under native title are, therefore, indisputably presumed to have never been public lands and are private. The concept of native title in the IPRA was taken from the 1909 case of carino v. Insular Government (41 Phil. 935 [1909j, 212 449, 53 L. Ed. S94). carino firmly established a conc:eptof private land title that existed irrespective of any royal grant from the State.

u.s.

7. Distinguish ownership of land under native title and ownership by acquisitive prescription against the State.
Ownership by virtue of native title presupposes that the land has been held by its possessor and his predecessor-In-interest in the concept of an owner since time immemorial. The land is not acquired from the State, that is, Spain or its successor-in-interest, the United States and the Philippine Government. There has been no transfer of title from the State as the land has been regarded as private in character as far back as memory goes. In contrast, ownership of land by acquisitive prescription against the State involves a conversion of the character of the property from alienable public land to private land, which presupposes a tra nsfer of title from the State to a private person.
HELD:

I I I

8. Discuss the concept of "jura regalia" and how it evolved in the Philippines. Does it negate native title to lands held inprivate ownership since time immemorial?
HELD: Generally, under the concept of jura regalia, private title to land must be traced to some grant, express or implied, from the Spanish Crown or its successors, the American Colonial government, and thereafter, the Philippine Republic. The belief that the Spanish Crown is the origin of all land titles in the Philippines has persisted because title to land must emanate from some source for it cannot issue forth from nowhere. '

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College a/Law. SY 2012-2013 Page 320/36
In its broad sense, the term ''jura regalia" refers to royal grants, or those rights which the King has by virtue of his prerogatives. In Spanish law, it refers to a right which the sovereign has over anything in which a subject has a right of property or propriedad These were rights enjoyed during feudal times by the king as the sovereign. . The theory of the feudal system was that title to all lands was originally held by the King, and while the use of lands was granted out to others who were permitted to hold them under certain conditions, the King theoretically retained the title. By fiction of law, the King was regarded as the original proprietor of all lands, and ,1thetrue and only source of title, and from him all lands were held. The theory of jura regalia was therefore nothing more than a natural fruit of conquest. The Regalian theory, however, does not negate native title to lands held in private ownership since time immemorial. In the landmark case of carino v. Insular Government (41 Phil. 935, 212 449, 53 L. Ed 594 [1909}), the United States Supreme Court, reversing the decision of the pre-war Philippine Supreme Court, made the following pronouncement:

u.s.

Every presumption is and ought to be taken against the Government in a case like the present. It might, perhaps, be proper and sufficient to say that when, as far back as testimony or memory goes, the land has been held by individuals under a claim of private ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been public land. (Carino v. Insular (jovernment, supra note 75, at 941) The above ruling institutionalized the recognition of the existence of native title to land, or ownership of land by Filipinos by virtue of possessionunder a claim of ownership since time immemorial and independent of any gran} from the Spanish Crown, as an exception to the theory of jura regalia.

Carino was decided by the U,S. Supreme Court in 1909, at a time when decisions of the U.S. Court were binding as precedent in our jurisdiction (Section 10, Philippine Bill of 1902). We applied the carino doctrine in the 1946 case of Oh Cho v. Director of Lands (75 Phil. 890 [1946}), where we stated that "[a]1I lands that were not acquired from the Government either by purchase or by grant, belong to the public domain, but [a]n exception to the rule would be any land that should have been in the possession of an occupant and of his predecessors in interest since time immemorial, for such possession would justify the presumption that the land had never been part of the public domain or that it had been private property even before the Spanish conquest.

9. Does R.A. 8371, otherwise known as "the Indigenous People's Rights Act" infringe upon the SlUte's ownership over the natural resources within the ancestral domains?
HELD: Petitioners posit that IPRA deprives the State of its ownership over mineral lands of the public domain and other natural resources, as well as the State's full control and supervision over the exploration, development and utilization of natural resources. Specifically, petitioners and the Solicitor General assail Sections 3[a], S, and 7 of IPRA as violative of Section 2, Article XII of the Constitution which states, in part, that 1'[a]1Ilands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State." (Section 2, Article XII, Constitution) They would have the Court declare as unconstitutional Section 3[a] of IPRA because the inclusion of natural resources in the definition of ancestral domains purportedly results in the abdication of State ownership over these resources.

Section 3[a] merely defines the coverage of ancestral domains, and describes the extent, limit and composition of ancestral domains by setting forth the standards and guidelines in determining whether a particular area is to be considered as part of and within the ancestral domains. In other words, Section 3[a] serves only as a yardstick which points out what properties are within the ancestral domains. It does not confer or recognize any right of ownership over the natural resources to the indigenous peoples. Its purpose is definitional and not declarative of a right or title. The specification of what areas belong to the ancestral domains is x x x important to ensure that no unnecessary encroachment on private properties outside the ancestral domains will result during the delineation process. The mere fact that Section 3[a] defines ancestral domains to include the natural resources .found therein does not ipso facto convert the character of such natural resources as private proPl"rty of the indigenous peoples. Similarly, Section S in relation to Section 3[a] cannot be construed as a sourCe of ownership rights of indigenous peoples over the natural resources simply because it recognizes ancestral domains as their "private but community property."

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College o/Law. SY 2012-2013 Page 330/36

The phrase "private but community property" is merely descriptive of the indigenous peoples' concept of ownership as distinguished from that provided in the Civil Code. x x x. I.n contrast, the indigenous peoples' concept of ownership emphasizes the importance of communal or group ownership. By virtue of the communal character of ownership, the property held in common "cannot be sold, disposed or destroyed" because it was meant to benefit the whole indigenous community and not merely the individual member. That/IPRA is not intended to bestow ownership over natural resources to the indigenous peoples is also clear fronn the deliberations of the bicameral conference committee on section 7 which recites the rights of indigenous peoples over their ancestral domains x x x. Further, Section 7 makes no mention of any right of ownership of the indigenous peoples over the natural resources. In fact, Section 7[a) merely recognizes the "right to claim ownership over lands, bodies of water traditionally and actually occupied by indigenous peoples, sacred places, traditional hunting and fishing grounds, and all improvements made by them at any time within the domains." Neither does Section 7[b), which enumerates certain rights of the indigenous peoples over the natural resources found within their ancestral domains, contain any recognition of ownership vis-a-vis the natural resources. What is evident is that the IPRA protects the indigenous peoples' rights and welfare in relation to the natural resources found within their ancestral domains, including the preservation of the ecological balance therein and the need to ensure that the indigenous peoples will not be unduly Glisplacedwhen the State-approved activities involving the natural resources located therein are undertaken.

10. Has the concept of native title to natural resources, like native title to land, been recognized in the Philippines?

!
The concept of native title to natural resources, unlike native title to land, has not been recognized in the Philippines. Nap and Flavier, et al. invoke the case of Reavies v. Fianza (40 Phil. 1017 [1909), 215 U5 16, 54 L Ed 72) in support of their thesis that native title to natural resources has been upheld in this jurisdiction. X x x. However, a judicious examination of Reavies reveals that, contrary to the position of NCIP and Flavier, et aI., the Court did not recognize native title to natural resources. Rather, it merely upheld the right of the indigenous peoples to claim ownership of minerals under the Philippine Bill of 1902.
HELD:

While native title to land or private ownership by Filipinos of land by virtue of time immemorial possession in the concept of an owner was acknowledged and recognized as far back during the Spanish colonization of the Philippines, there was no similar favorable treatment as regards natural resources.

11. TVhat is the underlying reason for the State's consistent assert/of! of ownership and control over 11a/uralresources from the Spanish regime up to the present?
The unique value of natural resources has been acknowledged by the State and is the underlying reason for its consistent assertion of ownership and control over said natural resources from the Spanish regiflle up to the present. Natural resources, especially minerals, were considered by Spain as an abundant source of revenue to finance its battle in wars against other nations. Hence, Spain, by asserting its ownership over minerals wherever these may be found, whether in public or private lands, recognized the separability of title over lands and that over minerals which may be found therein.
HELD:

On the other hand, the United States viewed natural resources as a source of wealth for its nationals. As the owner of natural resources over the Philippines after the latter's cession from Spain, the United States saw it fit to allow both Filipino and American citizens to explore and exploit minerals in public lands, and to grant patents to private mineral lands. Although the United States made a distinction between minerals found in public lands and those found in private lands, title in these minerals was in all cases sourced from the State. The framers of the 1935 Constitution found it necessary to maintain the State's ownership over natural resources to insure their conservation for future generations of Filipinos, to prevent foreign control of the country through economic domination; and to avoid situations whereby the Philippines would become a source of international conflicts, thereby posing danger to its internal security and independence.

12. 1/71Ot was the basis for the early Spanish decrees embracing the theory of jura regalia? Is this "Iso the basis of the declaration in Section 2, Article XII of the 1987 Constitution that all lands of public domain are owned by the State? Consequently, did Spain acquire title over all lands in the Philippines in the I 6th century?

'lie

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 3'1 of 36
HELD: Dominium was the basis for the early Spanishdecreesembracingthe theory of jura regalia. The declarationin section 2, ArticleXII of the 1987Constitutionthat all landsof the publicdomainare owned by the State is likewisefounded on dominium. If dominium, not imperium; is the basisof the theory of jura regaiia, then the landswhich Spainacquiredin the 16th century were limited to non-privatelands, becauseit could only acquire lands which were not yet privately-ownedor occupied by the Filipinos. Hence, Spain acquiredtitle only over landswhichwere unoccupied and unclaimed,i.e., publiclands.

! 8. HONEST PUBLIC SERVICE AND FULL PUBLIC DISCLOSURE The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. Art. III, Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, 'subject to such limitations as may be provided by law.
Honesty of Public Officials

Art. II, Sec. 27.

Sec. 28.

Art. XI, Sec. 17.

A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets. liabilities. and net worth. In the case of the President, Vice- President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.

Art. VI, Sec. 12. All. Members of the Senate and the House of
Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of potential conflict of interest that may arise from the filing of proposed legislation of which they are authors.

Sec. 20. The records and books of accounts of the Congress shall
be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses. incurred for each Member.

Art. IX, D, Sec. 4. The Commission (on Audit) shall submit to the
President and the Congress, within the time fixed by law, an annual report covering the financial condition and operation of the Government, its subdivisions, agencies, and instrumentalities, including government-owned or controlled corpor~tions, and nongovernmental entities subject to its audit and recommend measures necessary to improve their effectiveness and efficiency. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as nqw or hereafter may be provided by law.

Art. XI, Sec. 4.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 35 of36

Sec. 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as the Tanodbayan, one overall Deputy and at least one.Deputy each for Luzon, Visayas and Mindanao. A separate Deputy for the military establishment may likewise be appointed. Sec. 7. The existing Tanodbayan shall hereafter be known as the
Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution.

Sec. 12. The Ombudsman and his Deputies. as protectors of the

people, shall act promptly on complaints filed in any form or manner against public officials or employees of the govt., or any subdivision, agency or instrumentality thereof, including govt. owned or controlled corporations and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.

Art. XI, Sec. 13. The Office of the Ombudsman shall have the
following powers, functions. duties: (1) Investigate on its own or on complaint any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter; to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (4) Direct the officer concerned in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation .circumstances so warrant and with due prudence. when

(7)

Determine the causes of inefficiency, red tape, mismanagement, fraud and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.

Sec. 15. The right of the State to recover properties unlawfully

acquired by public officials or employees, from them or their

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 36 of 36 nominees, or transferees, shall not be barred by prescription, laches, or estoppel. Foreign Loans

Art. VII, Sec. 20.

The President may contract or guarantee foreign loans on behalf of the Republic with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days form the end of every quarter of the calendar year, submit to Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the government or government-owned and controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law.

Art. XII, Sec. 21.

Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public. Executive Agreements on Natural Resources

Art. XII, Sec. 2.

xxx The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for laroe-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. (pars. 4 and 5 thereof.)

HAND OUT NO.4 - LEGISLATIVE D;EPT. part I

By: Atty. Rene Calhinta, .)r.
Constitutional Law I, 1st Semester, SY 2012-2013 P.U.P. College of La:w
\

STRUCTURE AND POWERS OF THE NATIONAL GOVERNMENT

THE SEPARATION OF POWERS Cruz: Purpose.-The doctrine of separation of powers is intended to prevent a concentration of authority in one person or group of persons that might lead to an irreversible error or abuse in its exercise to the detriment of our republican institutions. More specifically, according to J. Laurel, the doctrine is intended to secure action. to forestall overaction, to prevent depotism and to obtain effiCiency. xxx Blending of Powers.-- There are instances under the Constitution when powers are not confined exclusively within one department but are in fact assigned to or shared by several departments. As a result of this blending of powers, there is some difficulty now in classifying some of them as definitely legislati've, executive or judicial. The powers of government may not at all times be contained with mathematical precision in wijlter-tight compartments because of their ambiguous nature, e.g., the power of appointment, which can rightfully be exercised' by each department over its own administrative personnel. xxx

A. LEGISLATIVE DEPARTMENT (Article VI)

INTRODUCTION LEGISLATIVE POWER - Authority to make laws and to alter and repeal them Advantages of BICAMERALISM . 1. Allows for a body with a national perspective .to check the parochial tendency of representatives elected by district; 2. Allows a more careful study of legislation; 3. Makes the legislature less susceptible to control by the executive; and .4) Serves as a training ground for national leaders Advantages of UNICAMERALISM 1. Simplicity of organization resulting in economy and efficiency; 2. Facility in pinpointing responsibility for legislation; and 3. Avoidance of duplicatio~ Kinds of Legislative power 1. ORIGINAL - possessed by the sovereign people 2. DERIVATIVE - that which has been delegated by the sovereign people to legislative bodies (Congress) and is subordinate to the original power of the people also
,

1. CONSTITUENT - power to amend and revise the constitution 2) ORDINARY - power to pass ordinary laws . The people, through the amendatory process, exercise constituent power, and, through initiative and referendum, ordinary legislative power

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 2 of41

Kinds of limits on legislative power 1. SUBSTANTIVE LIMITS - curtail the contents of the law Ex. " No law may be passed which impairs freedom of speech" 2 PROCEDURALLIMITS - curtail the manner of passing laws Ex. A bill must g"enerally be approved by the President before it becomes a law The power of congress to legislate is PLENARY,that is it may legislate on any subject matter Congress may not pass irrepealable legislatures must remain plenary laws, the power of present and future

Legislative power may be delegated either by a specific constitutional provision or by the immemorial practice of it being delegated to local governments

1. COMPOSITION, QUALIFICATIONS, AND TERM OF OFFICE A. SENATE Sec. 2. The Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law. Sec. 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election. Sec. 4. The term of office of the Senators shall be six years and shall commence, unless otherwise provided by. law; at noon on " the thirtieth day of June next following their election. No Senator shall serve for more than Voluntary renunciation of the office for I not be considered as an interruption service for the full term of which he was two consecutive terms. any length of time shall in the continuity of his elected.

COMPOSITION 24 Senators elected at large by qualified voters OUALIFICATIONS Citizenship: Age on the day of election: " Education: Registered voter: Residence: Natural-born citizen

35
Able to read and write In the Philippines 2 years (immediately preceding the election)

TERM OF OFFICE Six (6) years

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College o/Law. SY 2012-2013 Page 3 0/41

To commence unless otherwise provided by law, at noon on June 30 next following the election. (Art. VI, Sec. 4) Of the senators elected in the election of 1992, the first 12 obtaining the highest number of votes shall serve for 6 years and the remaining 12 for 3 years. Thereafter, 12 senators will be elected every 3 years, to serve a term of 6 years. (Art. XVIII, Sec. 2) No Senator shall serve for more than 2 consecutive terms, and for this purpose, no voluntary renunciation of the office for any length of time shall be considered for the purpose of interrupting the continuity of his service for the full term for which he was elected. (Art. VI, Sec. 4)

B. HOUSE OF REPRESENTATIVES DISTRICT REPRESENTATIVES

,

. Art. VI, Sec. 5 (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the ! Metropolitan Manila area in accordance with the number of their '~respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. (4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standard provided in this Section. Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less then one year immediately preceding the day of the election. Sec. 7. The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.o.P. College of Law. SY2012-2013 Page 4 of 41

COMPOSITION Not more than 250 Members (*unless otherwise fixed by law) elected from: a) Legislative districts (80% of the seats shall be allotted to district representatives.) b) ~arty-list system of registered national, regional, and sectoral parties .organizations. {Sec. 5(2)] .

or

The districts are to be determined according to the following rules: [200

80%]

districts

or

1. The districts {Sec.5(1)}

are to be apportioned

among

the provinces,

cities,

and Metro

Manila.

2. The apportionment must be based on the number of inhabitants, using a uniform and progressive ratio. Within 3 years following the return of every census, Congress shall make a reapportionment of legislative districts, based on the standards herein provided (to make it representative and more responsive to 1;he people). {Sec. 5 (4)]
3. Each legislative district must comprise as far as practicable, contiguous, compact, and adjacent territory (to avoid gerrymandering, or putting together of areas where a candjdate is strong, even if these are not contiguous). {Sec. 5 (3)] 4.
Each city representative. with a population {Sec. 5(3)] regardless of at least 250,000 must have at least one

5. Each province, 5(3)}

of population.

must

have at least one representative.

{Sec.

Aquino vs. COMELEC, GR No. 189793, Apri/7, 2010 FACTS: Petitioners seek the nullification as unconstitutional of Republic Act No. 9716, entitled "An Act Reapportioning the Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of camarines Sur and Thereby Creating a New Legislative District From Such Re;apportionment." Petitioners contend that the reapportionment introduced by Republic Act No. 9716, runs afoul of the explicit constitutional standard that requires a minimum population of two hundred fifty thousand (250,000) for the creation of a legislative district. The petitioners claim that the reconfiguration by Republic Act No. 9716 of the fir$t and second districts of camarines Sur is unconstitutional, becausethe proposed first district will end up with a population of less than 250,000 or only 176,383. Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as basis for the cited 250,000 minimum population standard.
HELD: Petition Denied. There is no specific provision in the Constitution that fixes a 250,000 minimum

population that must compose a legislative district. The petitioners rely on the second sentence of Section 5(3), Article VI of the 1987 Constitution, coupled with what they perceive to be the intent of the framers of the Constitution to adopt a minimum population of 250,000 for each legislative district. The second sentence of Section 5(3), Article VI of the Constitution, suCcinctly provides: "Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative." The provision draws a plain and clear distinction between the entitlement of a city to a district on one hand. and tbe entitlement of a province to a district on the other. For while a province is entitled to at least a representative, with nothing mentioned about population, a city must first meet a population minimum of 250,000 in order to be similarly entitled. .

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, pu.P. College of Law. SY 2012-2013 PageSof41

The use by the subject provision of a comma to separate the phrase "each city with a population of at least two hundred fifty thousand" from the phrase "or each province" point to no other conclusion than that the 250,000 minimum population is only required for a city, but not for a province. Plainly read, Section 5(3) of the Constitution requires a 250.000 minimum population only for a citv to be entitled to a representative. but not so for a province.

!
The 250,000 minimum population requirement for legislative districts in cities was, in turn, the subject of interpretation by this Court in Mariano, Jr. v. COMELEC (242 SCRA211). In Mariano, the issue presented was the constitutionality of Republic Act No. 7854, which was the law that converted the Municipality of Makati into a Highly Urbanized City. As it happened, Republic Act No. 7854 created an additional legislative district for Makati, which at that time was a lone district. The petitioners in that case argued that the creation of an additional district would violate Section 5(3), Article VI of the Constitution, because the resulting districts would be supported by a population of less than 250,000, considering that Makati had a total population of only 450,000. The Supreme Court sustained the constitutionality of the law and the validity of the newly created district, explaining the operation of the Constitutional phrase "each city with a population of at least two hundred fifty thousand," to wit: Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with section 5(3), Article VI of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only four hundred fifty thousand (450,000). Said section provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one representative. Even granting that the pdoulation of Makati as of the 1990 census stood at four hundred fifty thousand (450,000). its legislative district may still be increased since it has met the minimum population reguirement of two hundred fifty thousand (250,000). In fact. Section 3 of the Ordinance appended to the Constitution provides that a citv whose population has increased to more than two hundred fiftv thousand (250,000) shall be entitled to at least one congressional reoresentative.28 (Emphasis supplied) The Mariano case limited the application of the 250,000 minimum population requirement for cities only to . its initial legislative district. In other words. while section 5(3). Article VI of the Constitution requires a citv to have a minimum population of 250,000 to be entitled to a representative. it does not have to increase its population by another 250,000 to be entitled to an additional district.

There is no reason why the Mariano case, which involves the creation of an additional district within a city, should not be applied to additional districts in provinces. Indeed, if an addjtionallegislative district created within a city is not required to represent a population of at least 250,000 in order to be valid, neither should such be needed for an additional district in a province, considering moreover that a province is entitled to an initial seat by the mere fact of its creation and regardless of its population. Apropq>s for discussion is the provision of the Local Government Code on the creation of a province which, by virtue.' of and upon creation, is entitled to at least a legislative district. Thus, section 461 of the Local Government Code states: Requisites for Creation. - (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites: (i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office. Notably, the requirement of population is not an indispensable requirement, but is merely an alternative addition to the.indispensable income requirement. Mariano, it would turn out, is but a reflection of the pertinent ideas that ran through the deliberations on the words' and meaning of Section 5 of Article VI.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page6of41

OUALIFICATIONS Citizenship: Age on the day of election: Education: Registered voter: Residence: Natural-born citizen

25
Able to read and write In the district, if district representative 1 year in the district (immediately preceding the election)

TERM OF OFFICE 3 years To commence (unless otherwise provided by law) at noon of June 30 next following the election. (Art. VI, Sec. 7) No Member of the House shall serve for more than 3 consecutive terms. No voluntary renunciation of the office for any length of time shall be considered an interruption in the continuity of his service for the full term for which he was elected for the purpose of circumventing this 3-term limitation. (Art. VI, Sec. 7)

I
Romualdez-Marcos v. COMELEC, 248 SCRA 300 (1995)
HELD: The 1987 Constitution mandates that an aspirant for election to the House of Representatives be "a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the election." The mischief which this provision seeks to prevent is the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community." A perusal of the Resolution of the COMELEC's second Division reveals a startling confusion in the application of settled concepts of "Domicile' and "Residena!' in election law. While the COMELEC seems to be in agreement with the general proposition that for the purposes of election law, residence is synonymous with domicile, the Resolution reveals a tendency to substitute or mistake the. concept of domicile for actual residence, a conception not intended for the purpose of determining a candidate's qualifications for election to the House of Representatives as required by the 1987 Constitution. As it were, residence, for the purpose of meeting the qualification for an elective position, has a settled meaning in our jurisdiction. Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is their place of habitual residence." In Ong vs. Republic (19 seRA 966) this court, took the concept of domicile to mean an individual's "permanent home", "a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent." Based on the foregoing, domicile includes the twin elements of "the fact of residing or ohvsical presence in a fixed place" and animus manendi. or the intention of returning there oermanent/v. Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a person's intent be to remain. it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence. It is thus, quite perfectly normal fOF an individual to have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic (95 Phil. 890), we laid this distinction quite clearly: "There is a difference between domicile and residence. Residence is used to indicate a place of abode, whether permanent or temporary; 'domicile denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile. but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile

II I

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 70f41

for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any means necessarilyso since no length of residence without intention of remaining will constitute domicile." For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. fs these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residencefor election purposes is used synonymously with domicile. In Nuval vs. Guray (52 Phil. 645), the Court held that "the term residence ... is synonymous with domicile which imports not reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such intention." Larena vs. Teves (61 Phil. 36) reiterated the same doctrine in a case involving the qualifications of the respondent therein to the post of Municipal President of Dumaguete, Negros Oriental. Faypon vs. Quirino (96 Phil. 294), held that the absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected does not . constitute loss of residence. So settled is the concept (of domicile) in our election law that in these and other election law cases, this Court has stated that the mere absence of an individual from his permanent residence without the intention to abandon it does not result in a loss or change of domicile. The deliberations of the 1987 Constitution on the residence qualification for certain elective positions have placed. beyond doubt the principle that when the Constitution speaks of "residence" in election law, it actually means only "domicile" to wit:
Mr. Nolledo: With respect to section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of the elections. So my question is: What is the Committee's concept of residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile or constructive residence? Mr. Davide Madame President., insofar as the regular members of the National Assembly are concerned, the proposed section merely provides, among others, 'and a resident thereof, that is, in the district for a period of not less than one year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the interpretation given to it was domicile. xxx xxx xxx Mrs. Rosario Braid: The next question is on Section 7 page 2. I think Commissioner Nolledo has raised the same point that "resident" has been interpreted at times as a matter of intention rather than actual residence. Mr. De los Reyes. Domicile Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to actual residence rather than mere intention to reside? Mr. De los Reyes. But we might encounter some difficulty especially considering that a

II I

provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept that it should be by domicile and not physical residence. 30 . 1n Co vs. Electoral Tribunal of the House of Representatives (199 5CRA 692), this Court concluded that the framers of the 1987 Constitution obviously adhered to the definition given to the term residence in election law, regarding it as having the same meaning as domicile.
Domino Y. COMELEC, 310 SCRA 546 (1999) HELD: It is doctrinally settled that the term "residence." as used in the law prescribing the qualifications for suffrage and for elective office. means the same thing as "domicile," which imports not only an intention to reside in a fixed place but also personal presence in that place. coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent residenceto which, whenever absent for business, pleasure, or sOrTIe other reasons, one intends to return. "Domicile" is a question of intention and circumstances. In the consideration of circumstances, three rules must be borne in mind, namely: (1) that a man must have a residence or domicile somewhere; (2) when once established it remains until a new one is acquired; and (3) a man can have but one residence or domicile at a time.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page8of41

Records show that petitioner's domicile of origin was candon, Ilocos Sur pnd that sometime in 1991, he acquired a new domicile of choice at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as shown by his certificate of candidacy for the position of representative of the 3rd District of Quezon City in the May 1995 election. Petitioner is now claiming that he had effectively abandoned his "residence" in Quezon City and has established a new "domicile" of choice at the Provinceof sarangani. A person's "domicile" once established is considered to continue and will not be deemed lost until a new one ;s established. To successfully effect a change of domicile one must demonstrate an actual removal or an actual change of domicile: a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with the purpose. In other words, there must basically 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 residenceat the place chosen for the new domicile must be actual. It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since December 1996 was sufficiently established by the lease of a house and lot located therein in January 1997 and by the affidavits and certifications under oath of the residents of that place that they have seen petitioner and his family residing in their locality. While this may be so, actual and physical is not in itself sufficient to show that from said date he had transferred his residence in that place. To establish a new domicile of choice, personal presence in the place must be coupled with conduct indicative of that intention. While "residence" simply requires bodily presence in a given place, "domicile" requires not only such bodily presence in that place but also a declared and proba~le intent to make it one's fixed and permanent place of abode, one's home. As a general rule, the principal elements of domicile, physical presence in the locality involved and intention to adopt it as a domicile, must concur in order to establish a new domicile. No change of domicile will result if either of these elements is absent. Intention to acquire a domicile without actual residence in the locality does not result in acquisition of domicile, nor does the fact of physical presence without intention. The lease contract entered into sometime in January 1997, does not adequately support a change of domicile. The lease contract may be indicative of DOMINO's intention to reside in sarangani but it does not engender the kind of permanency required to prove abandonment of one's original domicile. The mere absence of individual from his permanent residence, no matter how long, without the intention to abandon it does not result in loss or change of domicile. Thus the date of the contract of lease of a house and lot located in the province of Sarangani, i.e., 15 January 1997, cannot be used, in the absence of other circumstances,as the reckoning period of the one-year residence requiremel1t. . Further, Domino's lack of intention to abandon his residence in Quezon City is further strengthened by his act of registering as voter in one of the precincts in Quezon City. While voting is not conclusive of residence, it does give rise to a strong presumption of residence especially in this case where DOMINO registered in his forme/ barangay. Exercising the right of election franchise is a deliberate public assertion of the fact of reside'nce,and is said to have decided preponderance in a doubtful case upon the place the elector claims as, or believes to be, his residence. The fact that a party continuously voted in a particular locality is a strong factor in assisting to determine the status of his domicile. His claim that his registration in Quezon City was erroneous and was caused by events over which he had no control cannot be sustained. The general registration of voters for purposes of the May 1998 elections was scheduled for two (2) consecutive weekends, viz.: June 14, 15, 21, and 22. While, Domino's intention to establish residence in Sarangani can be gleaned from the fact that be bought the house he was renting on November 4, 1997, that he sought cancellation of his previous registration in Quezon City on 22 October 1997, 34 and that he applied for transfer of registration from Quezon City to sarangani by reason of change of residence on 30 August 1997, 35 DOMIN\=> still falls short of the one year residency requirement under the Constitution. In showing compliance with the residency requirement, both intent and actual presence in the district one intends to represent must satisfy the length of time prescribed by the fundamental law. Domino's failure to do so rendered him ineligible and his election to office null and void.
I

II

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 90f41

Dimaporo v. Mitra, 202 SCRA 779 (1991) FACTS: Petitioner Mohammad Ali Dimaporo was elected Representative for the 2nd Legislative District of Lanao del Sur during the 1987 congressional elections. In Jan., 1990, petitioner filed with the COMELECa Certificate of candidacy for the position of Regional Governor of the Autonomous Region in Muslim Mindanao. Upon being informed of such development by the COMELEC,respondents Speaker and Secretary of the House of Reps. excluded petitioner's name from the Roll of Members of the House of Reps. pursuant to Sec. 67, Article IX of the Omnibus Election Code (B.P. Big. 881) Having lost in the elections, petitioner then tried but failed in his bid to regain his seat in Congress. Hence, this petition. He maintains that he did not lose his seat as congressman because Sec. 67, Art. IX of B.P. Big. 881 is not operative under the present Constitution, being contrary thereto, and therefore not applicable to the present members of Congress. ISSUE: Whether Sec. 67, Art. IX of B.P. Big. 881 is operative under the present Constitution
HELD: YES. Sec. 67, Art. IX of B.P. Big. 881 reads: "Any elective official whether national or local running for any office other than the one which he is holding in a permanent capacity except for President and VicePresident shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy."

II

Petitioner failed to discern that rather than cut short the term of office of elective public officials, this statutory provision seeks to ensure that such officials serve out their entire term of office and thereby cutting short their tenure by making it clear that should they fail in their candidacy, they cannot go back to their former position. This is in consonant with the constitutional edict that all public officials must serve the people with utmost loyalty and not trifle with the mandate which they have received from their constituents. In theorizing that the provision under consideration cuts short the term of office of a Member of Congress, petitioner seems to confuse "term" with "tenure" of office. "The term of office prescribed by the Constitution may not be extended or shortened by the legislature, but the period during which an officer actually holds the office (tenure), may be affected by circumstances within or beyond the power of said officer. These situations will not change the duration of the term of office." Under the questioned provision, when an elective official covered thereby files a cert. of candidacy for another office, he is deemed to have voluntarily cut short his tenure, not his term. The term remains and his successor,if any, is allowed to serve its unexpired portion. The fdct that the ground cited in Sec. 67, Art. IX of B.P. Big. 881 is not mentioned in the Constitution itself as a mode of shortening the tenure of office of the members of Congressdoes not preclude its application to present members of Congress. sec. 2, Art. IX of the Constitution provides that "xxx All other public officers and employees may be removed from office as provided by law, but not by impeachment." Such constitutional expression clearly recognizesthat the 4 grounds found in Art. VI of the Constitution by which the tenure of a Congressmanmay be shortened are NOTexclusive. Moreover, as the mere act of filing the certificate of candidacy for another office produces automatically the permanent forfeiture of the elective position being presently held, it is not necessarythat the other position be actually held. The ground for forfeiture in Sec. 13, Art. VI of the Constitution is different from the forfeiture decreed in sec. 67, Art. IX of B.P. Big. 881, which is actually a mode of voluntary renunciation of office under Sec. 7, par. 2 of Art. VI of the Constitution.

PARTY LIST REPRESENTATIVES

Art. VI, Sec. 5 (2) The party-list representatives shall constitute

twenty per centum of the total number or including those under the party list. xxx representatives

Art IX-C.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, pu.P. College of Law. SY 2012-2013 Page 100f41

Sec. 6. A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article. Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution. Sec. 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters' registration boards, boards of election inspectors, board of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law.

READ: Republic Act No. 7941- "PARTY-LIST SYSTEM ACT." What is the Party-List System? The party-list system is a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to beco,h1everitable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them. It intends to make the marginalized and the underrepresented not merely passive recipients of the State's benevolence, but active participants in the mainstream of representative democracy. Thus, allowing all individuals and groups, including those which now dominate district elections, to have the same opportunity to participate in party-list elections would desecrate this lofty objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics. (Ang Bagong Bayan; - OFW Labor Party v. COMELEC, G.R. No. 147589, June
26,2001)

What is the State policy with regards to the Party-Llist System? The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and' underrepresented sectors, orgar'lizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interest in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. (Sec. 2, RA 7941) How mayan System? organized group of persons participate under the Party-List

II

Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELECnot later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or orga~ization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELECmay require: Provided, That the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 11 of41

communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals. The COMELECshall publish the petition in at least two (2) national newspapers of general circulation. The COMELECshall, after due notice and hearing, resolve the petition within fifteen (15) days from the date it was submitted for decision but in no case not later than sixty (60) days before the election. (Sec. 5, RA 7941) Does a registered elections? Party-List group need to register again before every

Any party, organization, or coalition already registered with the Commission need not register anew. However, such party, organization, or coalition shall file with the Commission, not later than ninety (90) days before the election, a manifestation of its desire to participate in the party-list system. (Sec 4, RA 7941) What are the grounds for refusal or cancelation of any application of any group in the Party-List System? The COMELECmay, motu proprio, or upon verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds: (1) It is a religious sect or denomination, organization or association organized for religious purposes; (2) It advocates violence or unlawful means to seek its goal; (3) It is a foreign party or organization; (4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or though any of its officers or member or indirectly though third parties for partisan election purposes. (5) It violates or fails to comply with laws, rules or regulations relating to elections; It declares untruthful statements in its petition; It has ceased to exist for at least one (1) year; or

(6) (7)

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two percentum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered. (Sec. 6, Rf. 7941) Who may be a Party-list Nominees? No person shall be nominated as party-list representative unless he is a natural-born citize!n of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.

.1

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 120f41

In case of a nominee of the youth sector, he must be at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to contitlUe in office until the expiration of his term. (Sec. 9, RA 7941) . What is the procedure for the nomination of Party-List Representatives? Each registered party, organization, or coalition shall submit to the COMELECnot later than forty-five (45) days before the election a list of names, not less than five (5), from which party-list representatives shall be chosen in case it obtains the required number of votes. A person may be nominated in one (1) list only. Only persons who have given their consent in writing may be named in the list. The list shall not include any candidate for any elective office or a person who has lost his bid fo~ an elective office in the immediately preceding election. No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC except in cases where the nominee dies, or withdraws in writing his nomination, becomes incapacitated in which case the name of the substitute nominee shall be placed in the list. Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned. (Sec. 8, RA 7941) What are the guidelines for screening Party-List participants In this light, the Court finds it appropriate to lay down the following guidelines, culled from the law and the Constitution, to assist the Comelec in its work. First, the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941. In other words, it must show - through its constitution, article~ of incorporation, bylaws, history, platform of government and track record - that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its membership should belong to the marginalized and underrepresented. And it must demonstrate that in a conflict of interest, it has chosen or is likely to choose the interest of such sectdrs. Second. while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must comply with the declared statutory policy of enabling "Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the House of Representatives." In other words, while they are not disqualified merely on the ground that they are political parties, they must show, however, that they represent the interests of the marginalized and underrepresented. X x x

=1

II
II
\
,/

Third. in view of the objections directed against the registration of Ang Buhay Hayaang Yumabong, which is allegedly a religious group, thli! Court notes the express constitutional provision that the religious sector may not be represented in the partylist system. x x x Furthermore, the Constitution provides that "religious denominations and sects shall not ije registered." (Sec. 2 {5{, Article IX {CJ) The prohibition was explained by a member of the Constitutional Commission in this wise: "[T]he prohibition is on any religious organization registering as a political party. I do not see any prohibition here against a priest running as a candidate. That is not prohibited here; it is the registration of a religious sect as a political party."

1st Semester,

Notes in Political Law Atty. Rene Callanta, Jr: P.U.P. College of Law. SY 2012-2013 Page 130f41

Fourth. a party or an organization must not be disqualified under Section 6 of RA 7941, which enumerates the grounds for disqualification as follows: 1) It is a religious sect or denomination, organization or association organized for religious purposes; 2) It advocates violence or unlawful means to seek its goal; 3) It is a foreign party or organization; 4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes; 5) It violates or fails to com.ply with laws, rules or regulations relating to elections; 6) It declares untruthful statements in its petition; 7) It has ceased to exist for at least one (1) year; or 8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it had registered." Note/should be taken of paragraph 5, which disqualifies a party or group for violation of or failure to comply with election laws and regulations. These laws include Section 2 of RA 7941, which states that the party-list system seeks to "enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties x x x to become members of the House of Representatives." A party or organization, therefore, that does not comply with this policy must be disqualified. Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government. By the very nature of the party-list system, the party or organization must be a group of citizens, organized by citizens and operated by citizens. It must be independent of the government. The participation of the government or its officials in the affairs of a party-list candidate is not only illegal and unfair to other parties, but also deleterious to the objective of the law: to enable citizens belonging to marginalized and underrepresented sectors and organization to be elected to the House of Representatives. SixtH, the party must not only comply with the requirements of the law; its nominees must likewise do so. x x x Seventh, not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA 7941, the nominees must be Filipino citizens "who belong to marginalized and underrepresented sectors, organizations and parties." Surely, the interests of the youth cannot be fully represented by a retiree; neither can those of the urban poor or the working class, by an industrialist. To allow otherwise is to betray the State policy to give genuine representation to the marginalized and underrepresented. Eighth, x x x while lacking a well-defined political constituency, the nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. (Ang Bagong Bayan; - OFW Labor Party v. COMELEC, G.R. No. 147589, June 26,2001) What is the duty of the COMELEC with regards to Party-List groups qualified to participate in a election? The COMELEC shall, not later than sixty (60) days before election, prepare a certified list of national, regional, or sectoral parties, organizations or coalitions which have

.-

1st Semester,

Notes in Political Law Atty. Rene Callanta, Jr. P.U.P. College a/Law. SY 2012-2013 Page 140/41

applied or who have manifested their desire to participate under the party-list system and distribute copies thereof to all precints for posting in the polling places on election day. The names of the party-list nominees shall not be shown on the certified list. What are the four (4) inviolable parameters Philippine-style Party-List election? to determine the winners in a

To determine the winners in a Philippine-style party-list election, the Constitution and Republic Act No. 7941 mandate at least four inviolable parameters. These are: First the twenty percent allocation - the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list. Second, the two percent threshold - only those garnering a minimum of two percent of the total valid votes cast for the party-list system are "qualified" to have a seat ih the House of Representatives .. Third. the three seat limit - each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and tlwoadditional seats. Fourth. proportional representation - the additional seats which a qualified party is entitled to shall be computed "in proportion to their total number of votes." (VFP vs.
COMELEC, G.R. No. 136781, Oct. 6, 2000 and affirmed by BANAT April 29, 2009) vs. COMELEC, GR No. 179271,

How do you determine the number of Party-List Representatives? The party-list representatives shall constitute twenty percentum (20%) of the total number of the members of the House of Representatives including those under the party-list. (Art. VI, Sec. 5 (2) & Sec. 11, RA 7941) FORMULA FOR DETERMINING NO. OF PARTY LIST REPRESENTATIVES:

Number of District Representatives = No. of Party List Representatives 4 What is the procedure in allocating seats for Party-List Representatives? The COMELECshall tally all the votes for the parties, organizations, or coalitions on a. nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the total nationwide votes cast for the party-list system. (Sec 12, RA 7941) How do you determine the allocation of the "guaranteed seat" for the PartyList Representatives? FIRST ROUND OF ALLOCATION Section l1(a) of R.A. No. 7941 prescribes the ranking of the participating parties from the ~ighest to the lowest based on the number of votes they garnered during the elections. X x x The first clause of Section l1(b) of R.A. No. 7941 states that "parties. organizations. and coalitions receiving at least two percent (2%) of the total votes cast for the party"

1st Semester,

Notes in Political Law Atty. Rene Callanta, Jr. P.U.P. College of Law. SY 2012-2013 Page 150f41

list system shall be entitled to one seat each." This clause guarantees a seat to the two-percenters. X x x The percentage of votes garnered by each party is arrived at by dividing the number of votes garnered by each party by the total number of votes cast for all party-list candidates. (BANATvs. COMELEC, GR No. 179271, April 29,2009) I Is the two percent threshold still applicable in the allocation of additional seats for the Party-List Representatives? We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section ll(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Repr~sentatives shall consist of party-list representatives. X x x We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Section l1(b) of R.A. No. t 7941', The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of "the broadest possible representation of party, sectoral or group interests in the House of Representatives." (BANAT vs. COMELEC, GR No. 179271, April 29,
2009)

How do you determine the allocation of additional seat for the Party-List Representatives? In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for allocation as "additional seats" are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats. The percentage of votes garnered by each party-list candidate is arrived at by dividing the number of votes garnered by each party by the total number of votes cast for party-list candidates. There are two steps in the second round of seat allocation. First, the percentage is multiplied by the remaining available seats, which is the difference between the maximum seats reserved under the Party-List System and the guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of the remaining available seats corresponds to a party's share in the remaining available seats. Second, we assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the remaining seats in the second round of seat allocation. Finally, we aJlply the three-seat cap to . determine the number of seats each qualified party-list candidate is entitled. (BAN AT vs. COMELEC, GR No. 179271, April 29,2009) NOTE: Based on the BANAT Formula, all Party-List groups receiving more than 2% are ~ntitled to 2 additional seats, while those receiving 1-2% received 1 additional seat and those receiving less than 1% shall receive the remaining available seats according to their ranking until all seats allocated are filled up.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law. SY 2012-2013 Page 16of41

How are Party-List Representatives chosen? Party-list representatives shall be proclaimed by the COMELECbased on the list of names submitted by the respective parties, organizations, or coalitions to the COM.ELEC according to their ranking in said list. (Sec. 13, RA 7941) What is their Term of Office? Party-list representatives shall be elected for a term of three (3) years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No party-list representatives shall serve for more than three (3) consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. (Sec. 14, RA 7941) What is the effect of change of affiliation of a Party-List Representative?' Any elected party-list representative who changes his political party or sectoral affiliation during his term of office shall forfeit his seat: Provided, That if he changes his political party or sectoral affiliation within six (6) months before an election, he shall)not be eligible for nomination as party-list representative under his new party or organization. (Sec. 15, RA 7941) What is the rule on vacancy? In case of vacancy in the seats reserved for party-list representatives, the vacancy shall be automatically filled by the next representative from the list of nominees in the order submitted to the COMELECby the same party, organization, or coalition, who shall serve for the unexpired term. If the list is exhausted, the party, organization, or coalition concerned shall submit additional nominees. (Sec. 16, RA 7941)

C. SYNCHRONIZED TERMS OF OFFICE

Art. XVIII, Sec. 1. The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May, 1987. The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area. Sec. 2. The Senators, Members of the House of Representatives, and the local officials first elected under this Constitution shall . serve until noon of June 30, 1992. 2. ELECTION A. REGULARELECTION Art. VI, Sec. a.Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College o/Law. SY 2012-2013 Page 170/41

2nd Monday of May, every 3 years, starting 1992 (unless otherwise provided by law). The term of office begins on the following June 30.,

B. SPECIAL ELECTION Art. VI, Sec. 9. In case of vacancy in the Senate or in the House or Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.

READ: Republic Act No. 6645 - AN ACT PRESCRIBING THE MANNER OF FILLING A VACANCY IN THE CONGRESS OF THE PHILIPPINES.

Art. IX-C, Sec. 11. Funds certified by the Commission as necessary to defray the expenses for holding regular and special elections, plebiscites, initiatives, referenda, and recalls, shall be provided in the regular or special appropriations and, once approved, shall be released automatically upon certification by the Chairman of the Commission.

The law that governs and lays down the details concerning the special congressional elections is Rep. Act No. 6645(December 28,1987). Under the law, no special election will be called if the vacancy occurs (i) less than 18 months before the next regular election in the case of the Senate, or (ii) less than 1 year before the next regular election in the case of the House; in these cases, we will just have to wait for the next regular election, for practical reasons. (Sec. 1, RA 6645) When the vacancy occurs during the period when special elections are allowed to be conducted (18 or 12months or more before the next regular election), the particular House of Congress must pass either a resolution by the House concerned, if Congress is in pession, or a certification by the Senate President or the Speaker of the House, if Congress is not in session, (a) declaring the existence of the vacancy and (b) calling fora special election to be held within 45 to 90 days from the date of calling of the special election (that is, from the date of the resolution or certification). (Sec. 2, RA 6645) But the Senator or Member of the House thus elected shall serve only for the unexpired portion of the term. (Art. VI, Sec. 9) Funds certified by the COMELEC as necessary to defray the expenses for holding reguiar and special elections, plebiscites, initiatives, referenda, and recalls, shall be provided in the regular or special appropriations and, once approved, shall be released automatically upon certification by the Chairman of the COMf:LEC. (Art.IX-C, Sec. 11)
Lozada \(. COMELEC, 120 SCRA 337 (1983) FACT!ii: This is a pet. for mandamus filed by Lozada and Igot as representative suit for and in behalf of thoselNho wish to participate in the election irrespective of party affiliation, to compel the resp. COMELEC to call a special election to fill up existing vacancies numbering 12 in the Interim BP. The petition is based on Sec. S,(2), Art. VIII of the 1973 Consti. which reads:

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 18 of 41

"In case a vacancy arises in the BP 18 months or more before a regular election, the COMELEC shall call a special election to be held within 60 days after the vacancy occurs to elect the Member to serve the unexpired term." Petitioner Lozada claims that he is a Tax Payer (TP) and a bona fide elector of Cebu City and a transient voter of QC, MM, who desires to run for the position in the BP; while petitioner Igot alleges that, as TP, he has standing to petition by mandamus the calling of a special election as mandated by the 1973 Consti. HELD: I. a. As taxypayers, petitioners may not file the instant petition, for nowhere therein is it alleged that tax money is being illegally spent. xxx b. As voters, neither have petitioners the requisite interest or personality to qualify them to maintain and prosecute the present petition. Petitioners' standing to sue may not be predicated upon an interest of the kind alleged here, which is held in common by all members of the public because of the necessarily abstract nature of the injury supposedly shared by all citizens. II. a. The SC'sjurisdiction over the COMELEC is only to review by certiorari the latter's decision, orders or rulings. xxx There is in this case no decision, order or ruling of the COMELECwhich is sought to be reviewed by this Court under its certiorari jurisdiction xxx. b. Mandamus does not lie. There is total absence that COMELEC has unlawfully neglected the performance of a rllinisterial duty or has refused on being demanded, to discharge such a duty. xxx The holding of special elections in several regional districts where vacancies exist. would entail huge expenditure of money. Only the BP can make the necessarvappropriation for the puroose. and this power of the BP may neither be subject to mandamus by the courts much less may COMELECcompel BP to exercise its power of appropriation. III. Perhaps the strongest reason why the said provision is not intended to apply to the Interim National Assembly is the fact that as passed by the Con Con, the Interim NA was to be composed by the delegates to the Con Con, as well as the then incumbent President and VP, and the members of the Senate and House of Rep. of Congress under the 1935 Constitution. With such number of representatives representing each congressional district, or a province, not to mention the Senators, there was felt absolutely no need for filling up vacanciesoccurring in the Interim NA, considering the uncertainty of the duration of its existence.

3. SALARIES, PRIVILEGES AND DISQUALIFICATIONS A. SALARIES The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after ,the expiration of the full term of all the Members of the Senate and the House of Representatives approving such increase.

Art. VI, Sec. 10.

Art. XVIII, Sec. 17. Until the Congress provides otherwise, the xxx
President of the Senate, the Speaker of the House of Representatives xxx (shall receive an annual salary of) two hundred forty thousand pesos each; the Senators, the Members of the House of Representatives, xxx two hundred four thousand . pesos each; xxx

While it is Congress, through a salary law, that determines the salary to be received by its members, the Constitution mandates that no increase in said compensation shall Itake effect until after the expiration of the full term of all the members of the two hous'es approving such increase. Philconsa v. Mathay, 18 SCRA 300 (1966) FACTS: PHILCONSAhas filed in this Court a suit against the Auditor General of the Phils., and the Auditor of the Congress, seeking to permanently enjoin the aforesaid officials from authorizing or passing in audit

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law. SY 2012-2013 Page 190f41

the payment of the increased salaries authorized by RA 4134 (approve~ 6/10/64) to the Speaker and members of the HRep before 12/30/69. Sec. 1, par. 1 of RA 4134 provided, inter alia, that the annual salary of the Senate Pres. and of the Speaker of the HRep shall be P40,000 each; that of the Senators and members of the HRep, P32,000 each (thereby increasing their present compensation of P16T .and P7,200 pa for the Presiding officers and members respedtively.) The 1965-1966 Budget implemented the increase in salary of the Speaker and members of the HRep set by RA4134. The petitioners contend that such implementation is violative of Art VI, Sec. 14 of the 1935 Constitution, which provided that: "xxx No increase in said compensation shall take effect until after the expiration of the full term of all the Members of the senate and of the House of Representatives approving such increase. xxx" The reason given being that the term of the 8 senators elected in 1963, and who took part in the approval of RA 4134, will expire only on 12/30/69; while the term of the members of the House who participated in the approval of the said Act expired on 12/30/65.
HELD:

The Court agrees with petitioners that the increased compensation provided is not operative until 12/30/69, when the full term of all members of the Senate and House that approved it will have expired.
Purpo.ye of the provision.--

The reason for the this rule, the Court said, is to place a "legal bar to the legislators yielding to the natural temptation to increase their salaries. Not that the power to provide for higher compensation is lacking, but with the length of time that has to elapse before an increase becomes effective, there is a deterrent factor to any such measure unless the need for it is clearly felt." Significantly, in establishing what might be termed a waiting period, the constitutional provision refers to "all members of the Senate and of the House or Rep." in the same sentence, as a single unit, without distinction or separation between them. This unitary treatment is emphasized by the fact that the provision speaks of the "expiration of the full term' xxx using the singular form, and not the plural, despite the difference in the terms of office, xxx thereby rendering more evident the intent to consider both houses for the purpose as indivisible components of one single Legislature. The use of the word "term" in the singular, when combined with the following phrase "all the members of the Senate and of the House," underscores that in the application of said provision. the fundamental consideration is that the terms of office of all members of the Legislature that enacted the measure must have expired before the increase in compensation can become operative.
Term of all the members of the Congress, instead of all the members of the Senate and of the House," This is a distinction w/o a difference, since the Senate and the House together constitute the Congress.

The use of the phrase "of the Senate and of the House" when it could have employed the shorter expression "of the Senate and the House" is grammatically correct. To speak of "members of the senate and the House" would imply that the members of the Senate also held membership in the House.

Illustration:
. If a salary law is passed in 2010 increasing the salary of members of Congress, the same law can only take effect for the term that begins at noon of 30 June 2016; But if a salary is passed in 2010 decreasing the law can take effect right away, since increase . the salary'of members of Congress, the Constitution prohibits only the

If another salary law is passed in 2013 to increase the salary, the same can take effect not in the term beginning at noon of 30 June 2016; the top twelve senators elected on the 2nd Monday of May, 2013 would still be holding office then. It can only take effect in 2019. Effectively, therefore, such law can take

1st

Notes in Political Law Atty. Rene Callanta, Jr. Semester, P.U.P. College o/Law. SY 2012-2013 Page 20 0/41

effect only after the expiration of the longest term of a Senator, which is six years, even if the term of the Representative who voted for the law is only 3 years.
Ligot

Mathay, 56 SCRA 823 (1974)

FACTS: Petitioner served as a member of the HRep of Congressfor 3 consecutive 4-yr terms covering a 12yr span from 12/30/57 to 12/30/69. During his 2nd term in office, RA 4134 was enacted into law. Petitioner was reelected to a 3rd term (12/30/65 to 12/30/69) but was held not entitled to the salary increase of P32,000 during such third term by virtue of this Court's unanimous decision in Philconsa v. Mathay. Petitioner lost his bid for a consecutive 4th term in the 1969 elections and his term having expired on 12/31/69, filed a claim for retirement under CA 186; Sec. 12 (c), as amended. The HRep thus issued a treasury warrant in petitioner's favor as his retirement gratuity, using the increased salary of P32,000 p.a. Respondent Congress Auditor did not sign the warrant pending resolution by the Auditor Gen. of a similar claim filed by Cong Singson: When the Auditor Gen.'s adverse decision on Singson's claim came out, resp Auditor requested petitioner to return the warrant for recomputation. Petitioner's request for recon having been denied by the Auditor Gen. he filed the present petition for review. HELD: 1. [T]he "rate of pay as provided by law" for members of Congress retiring on 12/30/69, such as petitioner, must necessarily be P7,200 p.a., the compensation they received "as provided by law" and the Consti;during their term of office. 2. To grant retirement gratuity to members of Congresswhose terms expired on 12/30/69 computed on the basis of an increased salary of P32,000 p.a. would be to pay them prohibited emoluments w/c in effect' increase the salary beyond that w/c they were permitted by the Constitution to receive during their incumbency. This would be a subtle way of going around the constitutional prohibition and increasing in effect their compensation during their term of office and of doing indirectly what could not be done directly. 3. Petitioners' contention that since the increased salary of P32T p.a. was already operative when his retirement took effect on 12/30/69, his retirement gratuity should be based on such increased salary cannot be sustained as far as he and other members of Congress similarly situated are concerned for the simple reason that a retirement or benefit is a form of comoensation within the purview of the Constitutional provision limiting their comoensation and "other emoluments" to their salarv as provided bv law.

B. FREEDOM FROM ARREST

Art. VI, Sec. 11.

A Senator or Member of the House shall, in all offenses punishable by not more than six (6) years imprisonment (prision correciona/), be privileged from arrest while Congress is in session. xxx Elements of the privilege: 1) Congress must be in session, whether regular (sec. 15) or special (supra). It does not matter where the member of Congress may be found (attending the session, socializing in a private party, or sleeping at home), so long as Congress is in session, freedom from arrest holds; 2) The crime for which the member is to be arrested is punishable by 6 years of imprisonment or less. "Pun.ishable" refers to the maximum possible penalty which a penal statute attaches to the offense. It follows too that if the crime is punishable by 6 years and 1 day of prision mayor or more, the member can be arrested, even if he is se~sion in the halls of Congress.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College a/Law. SY 2012-2013 Page 21 0/41

People v. Jalosjos, 324 SCRA 689 (2000) .

HELD: The immunity from arrest or detention of Senators and members of the House of Representatives, the latter customarily addressed as Congressmen, arises from a provision of the Constitution. The history of the provision shows that the privilege has alwavs been granted in a restrictive sense. The provision granting an ex~mption as a special privilege cannot be extended beyond the ordinary meaning of its terms. It may not b~ extended by intendment, implication or equitable considerations.

The 1935 Constitution provided in its Article VI on the Legislative Department: SECTION15. The Senators and Members of the House of Representatives shall in all cases except treason, felony, and breach of the peace be privileged from arrest during their attendance at the sessionsof Congress,and in going to and returning from the same; .. Becauseof the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. A congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal Code could not claim parliamentary immunity from arrest. He was subject to the same general laws governing all persons still to be tried or whose convictions were pending appeal. The 1973 Constitution broadened the privilege of immunity as follows: Article VIII, Sec. 9. A Member of the Batasang Pambansashall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest during his attendance at its sessionsand in going to and returning from the same. For offenses punishable by more than six years imprisonment, there was no immunity from arrest. The restrictive interpretation of immunity and the intent to confine it within carefully defined parameters is illustrated by the concluding portion of the provision, to wit: ... but the Batasang Pambansashall surrender the member involved to the custody of the law within twenty four hours after its adjournment for a recess or for its next session, . otherwise such privilege shall cease upon its failure to do so. The present Constitution adheres to the same restrictive rule minus the obligation of Congress to surrender the subject Congressmanto the custody of the law. The requirement that he should be attending sessionsor committee meetings has also been removed. For relatively minor offenses, it is enough that Congress is in session. .

C. SPEECH AND DEBATE CLAUSE

Art VI, Sec. 11.

xxx No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.

This privilege protects the member concerned from any libel suit that may be filed against him for a speech made "in" the halls of Congress or in any of its committees. Speech is not confined to traditional speech but even to the casting of votes, the making of reports, a debate or discussion, even communicative actions, and any other' form of expression. The speech, Thus, however, must be made "in" Congress in the discharge . 17 SeRA 876 (1966) of legislative duty.

Jimenez v.Cabangbang,

FACTS: This is an ordinary civil action for the recovery by plaintiffs Jimenez, et aI., of several sums of money, by way of damages for the publication of an allegedly libelous letter of defendant Bartolome cabangbang. An open letter of the President, published in several newspapers of general circulation saying that certain members of the Armed Forces of the Philippines had been preparing for a coup and working for the candidacy of the Secretary of Defensefor the Presidency.

,
1st Semester,

Notes in Political Law Atty. Rene Callanta, Jr. P.U.P. College of Law. SY 2012-2013 Page 22 of41

Upon being summoned, the Cabangbang moved to dismiss the complaint upon the ground that the letter in question is not libelous, and that, even if it were, said letter is a privileged communication.
ISSUES:

Whether the publication in question is a privileged communication; and, if not, whether it is libeloUsor not.

HELD: (1) The determination of the first issue depends on win the publication falls w/in the purview of the

phrase "speech or debate therein"-- that is to say, in Congress-- used in this provision.
SCope of ParliamentaIY Freedom of Speech and Debate. -- "Said expression refers to utterances made by Congressmen in the performance of their official functions, such as speeches delivered, statements made, or votes cast in the halls of Congress, while the same is in session, as well as bills introduced in Congress, whether the same is in session or not, and other acts performed by Congressmen, either in Congress or outside the premises housing its offices, in the official discharge of their duties as members of Congress and of Congressional Committees duly authorized to perform its functions as such, at the time of the performance of the acts in question."

The publication involved in this case does not belong to this category. According to the complaint herein, it was an open letter to the President dated 11/14/58, when Congress presumably was not in session, and defendant caused said letter to be published in several newspapers of general circulation in the PhiIs., on or about said date. It is obvious that, in thus causing the communication to be so published, he was not perforring his official duty, either as a member of Congressof as officer or any Committee thereof.
Letter was not libelous.-- The letter was not libelous because it mentions that herein appellants as possibly "unwitting tools of a plan of which they have absolutely no knowledge." In other words, the very document upon which plaintiffs' action is based explicitly indicates that they might be absolutely unaware of the alleged operation plans, and that they may be unwitting tools of the planners. The statement is not derogatory to the plaintiffs to the point of entitling them to recover damages. (2)

* The prOVIsionprotects the Member of Congress only from being held liable outside of Congress ("in any other place"); it does not protect him from liability "inside" Congress, i.e., from possible disciplinary measures that his peers may impose upon him. For as mentioned above, his speech may constitute disorderly behavior as in Osmeilll v. Pendatun (109 Phi/863), and this may be penalized with censure, suspension for 60 days, or expulsion, the latter two upon concurrence of 2/3 of the membership.
It is important to note that this privilege is not absolute. The rule provides that the legislator may not be questioned "in any other place," which means that he may be called to account for his remarks by his own colleagues in Congress itself, and when warranted, punished for disorderly behaviour. Thus, in the case of Osmena v. Pendatun, the President himself who had been vilified by the petitioner could not file any civil or criminal action against him because of this immunity. Nonetheless, the majority of the members of the House of Representatives in which the questioned speech was delivered were not precluded from demonstrating their loyalty to the chief executive by declaring Osmena guilty of disorderly behaviour and suspending him in the exercise of their disciplinary power [now Art. VI, Sec. 16(3)f.
Osmena v. Pendatun, 109 Phil 863 (1960)
FACTS: In 1960, CongoOsmena delivered a privilege speech in Congress'entitled "A Message to Garcia," maliciously denouncing and charging the administration of Pres. Garcia. As a result of this, the House of Representativesthrough House Resolution No. 59 created a special committee to investigate the veracity of the charges and for him to show cause why he should not be punished by the House if he failed to substantiate his charges. On his side, Osmena contended in his petition that: (1) the Constitution gave him compl~te parliamentary immunity, and so, for words spoken in the House, he ought not to be questioned; (2) that his speech constituted no disorderly behaviour for which he could be punished; (3) supposing he could be questioned and disciplined therefor, the House had lost the power to do so because it had taken up other business before approving House Resolution No. 59; (4) that the House has no power, under the Constitution, to suspend one of its members.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law. SY 2012-2013 Page 23 of41

Resolution No. 175 found Osmena guilty of serious disorderly behaviour. He was suspended for 15 months.
HELD: 1. Sec. 1S, Art. VI of the 1935 Constitution provides that "for any speech or debate" in Congress, the Serators or Members of the HRep "shall not be questioned in any other place." Observe that "they shall not be questioned in any other place" than Congress. But they may. nevertheless. be questioned in Congress itself.

Furthermore, the Rules of the House which petitioner himself has invoked recognize the House's power to hold a member responsible "for words spoken in debate." The provision guarantees the legislator complete freedom of expression without fear of being made responsible in criminal or civil actions before the courts or any other forum outside of the Congressional Hall. But it does not protect him from responsibility before the legislative body itself whenever his words and conduct are considered by the latter disorderly or unbecoming a member thereof. For unparliamentarv conduct. members of Congress have been, or could be censured. committed to prison, suspended, even expelled by the votes of their colleagues. 2. On the third point of petitioner that the House may no longer take action against him, because after his speech and before approving the Resolution No. 59, it had taken up other business. Cou~ have declared that "the rules adopted by deliberative bodies are subject to revocation, modification or waiver at the pleasure of the body appointing them." And it has been said that "Parliamentary rules are merely procedural and with their observance, the courts have no concern. They may be waived or disregarded by the legislative body." 3. On the question whether or not delivery of speeches attacking the President constitutes disorderly conduct for which Osmena may be disciplined, we believe that the House is the judge of what constitutes disorderly behaviour. not only because the Constitution has conferred jurisdiction upon it, but also because the matter depends mainly on factual circumstances of which the House knows best but which can not be depicted in black and white for presentation to, and adjudication by the Courts.

Illustration: If Congressman X makes an oral abuse against Congressman Y in the halls of Congress, he cannot be arrested nor prosecuted for slander because of the speech clause. But he can be punished by his peers for disorderly behavior. But if Congressman X, in the course of heated debate, assaults Congressman Y and inflicts physical injuries, he can be criminally prosecuted (for direct assault with grave or less grave physical injuries) because although a verbal assault is immune, a physical assault is not immune. But although he can be prosecuted, he cannot be arrested while Congress is in session, because while he is not immune from prosecution, he is immune from arrest, assuming the penalty does not exceed prision correctional. The court must thus wait for the recess of Congress before it can order his arrest.

Q. Does the privilege extend to agents of congressmen or senators? A. YES, provided that the "agency" consists precisely in assisting the legislator in the performance of "legislative action" (Bernas citing Gravel v. US, 90 LW 5053)

D. DISQUALIFICATIONS ! (1) Incompatible Offices and Forbidden Offices

Art. VI, Sec. 13.

No Senator or Member of the House of Representatives may hold any other office or employment in the

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 24 of 41

Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat.

xxx
An INCOMPATIBLE OFFICE is a post which a member cannot accept unless he waives or forfeits his seat in Congress. A sensu contrario, if he waives or forfeits his seat, he may accept the other post, since the incompatibility arises only because of his simultaneous membership in both. Adaza v. Pacana, Jr., 135 SCRA 431 (1985) FACTS: Petitioner Homobono Adaza was elected governor of Misamis Oriental in the 1/30/80 elections. Elected vice-gov. for said province in the same elections was resp. Fernando Pacana,Jr. Both qualified and assumed their respective offices. Both Adaza and Pacana filed their certificates of candidacy for the 5/14/84 BP elections. elections, petitioner won while respondents lost. In the said

On 7/23/84, respondent took his oath of office as governor of Misamis Oriental and started to perform the duties of governor. Claiming to be the lawful occupant of the governor's office, petitioner has brought this petitiqh to exclude respondent therefrom. He argues that he was elected to said office for a term of 6 yrs., that he remains to be the governor of the province until his term expires on 3/23/86 as provided by law, and that within the context of the parliamentary system, a local elective official can hold the position to which he had been elected and simultaneously be an elected member of Parliament.
HELD: 1. The constitutional prohibition against a member of the BP from holding any other office of employment in the government during his tenure is clear and unambiguous. sec. 10, Art. VIII of the 1973 Constitution provides that:

"sec. 10. A member of the National Assembly shall not hold any other office or employment in the government xxx except that of prime minister or member of the cabinet. xxx It is of no avail to petitioner that the system of govt in other states allows a local elective official to act as an elected member of the parliament at the same time. The dictate of the people in whom legal sovereignty lies is explicit. xxx [T]he incompatibility herein present is one created by no less than the constitution itself. 2. The second proposition advanced by petitioner is that resp. Pacana, as a mere private citizen, had no right tp assume the governorship left vacant by petitioner's election to the BP. He maintains that resp. should be considered as having abandoned or resigned from the vice-governorship when he filed his cert. of candidacy. The point pressed runs afoul of BP 697, Sec. 13 (2) of w/c provides that governors, mayors, members of the various sangguniang or barangay officials shall, upon filing a cert. of candidacy, be considered on forced leave of absence from office." Respondent falls within the coverage of this provision considering that he was a member of the 5angguniang Panlalawigan.

NOTE: No forfeiture shall take place if the member of congress holds the other government office in an "ex officio capacity" e.g. membership in the board of regents of U.P. or a member of the Judicial Bar Council.

Art. VI, Sec. 13. xxx Neither shall he be appointed to any office
which may have been created or the emoluments increased during the term for which he was elected. thereof

A FORBIDDEN OFFICE is one to which a member cannot be appointed even if he is willinig to give up his seat in Congress. The effect of his resignation from the Congress is the loss of his seat therein but his disqualification for the forbidden office nevertheless remains. The prohibition lies in the "fiduciary" nature of the relationship involved.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 25 of41

Such a member cannot resign in anticipation of the passage of the law creating such office or increasing its emolument as a way of circumventing the prohibition. However, the prohibition is not forever (as in the Jones Law); it is for the term for. whic~ he was elected.

(2) Other prohibitions Art. VI, Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office. ! OTHERPROHIBITIONS: (i) Personally appearing as counsel before any court of justice, the Electoral Tribunal, quasi-judicial bodies, and other administrative bodies. (ii) Being interested financially in any (a) contract with, or (b) franchise or special privilege granted by, the Government, its subdivision, agency or instrumentality, a government-owned or controlled corporation, or its subsidiary. The prohibition is for the duration of his term of office. (iii) Intervening in any matter before any office of the government for his pecuniary benefit. .

(iv) Intervening in any matter where he may be called upon to act on account of his office. !
What the Constitution prohibits in the case of members of Congress who are also members of the bar is their personal appearance before any of these bodies. This is not a prohibition against, the practice of law in any court. Thus, a member may still sign and file his pleadings, give legal advice, continue as partner, and have a partner or associate appear for him in court. Under the 1973 Constitution, the prohibition against personal appearance covered only courts inferior to a court of appellate jurisdiction (RTC down), courts in a civil case wherein the government is the adverse party, and administrative bodies. Now, the prohibition is against "any" court, thus including the SC and the CA, regardless of the action.
Puyat v. De Guzman,

Jr., 113 SCRA 32 (1982)

FACTS: On 5/14/79, an election for the 11 Directors of the International Pipe Industries Corp. (IPI) was held. ,Therewere two groups, the Puyat Group and the Acero Group. The Puyat Group would be in control of the'Board and of the management of IPI. On 5/25/79, the Acero Group instituted at the SEC quo warranto proc. questioning the 5/14/79 election. The said group claimed that the votes were not properly counted.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College a/Law. SY 2012.2013 Page 26 0/41

May 25-31, 1979, the Puyat Group claims that at the conferences of the parties with respondent SEC Commissioner, Justice Estanislao A. Fernandez, then a member of the Interim BP, orally entered his appearance as counsel for resp. Acero to which the Puyat Group objected on Constitutional grounds. Sec. 11, AI'):. VIII of the 1973 Constitution provided that no Assemblyman could "appear as counsel before xxx any administrative body," and SECwas an administrative body. On 7/17/79, the SECgranted leave to intervene on the basis of Atty. Fernandez' ownership of ten shares. It is this Order allowing intervention that precipitated the instant petition for Certiorari and Prohibition w/ Prel. Inj. On 9/4/79, the Court en bane issued a TRO enjoining resp SECCommissionerfrom allowing the participation as an intervenor, of respondent Fernandezat the proceedings in the SECcase.
HELD: The intervention of Assemblyman Fernandez in the SECcase falls w/in the ambit of the prohibition contained in the Constitution. There has been an indirect "appearance as counsel before xxx an administrative body."

Ordinarily, by virtue of the Motion of Intervention, Assemblyman Fernandez cannot be said to be appearing as counsel. Ostensibly, he is not appearing on behalf of another, although he is joining the cause of the private respondents. His appearance could theoretically be for the protection of his ownership of 10 shares of IPI in respect of the matter in litigation. However, certain salient circumstances militate against the intervention of Assemblyman F. in the SECcase. He had acquired a mere P200 worth of stocks in IPI. He acquired them "after the fact," that is, on 5/30/79, after the contested election of Directors on 5/14/79, after the quo warranto suit had been filed on 5/25/79 before SECand one day before the scheduled hearing of the case before the SECon 5/31/79. And what is more, before he moved to intervene, he had signified his intention to appear as counsel for resp. Acero, but w/c was objected to by petitioners. Realizing, perhaps, the validity of the objection, he decided, instead to "intervene" on the ground of legal interest in the matter under litigation.

E. DUTY TO DISCLOSE
. Art. XI, 17.

A public officer or employee shall, upon assumption of . office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.
Art.

All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests. They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors.
VI, Sec. 12.

The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member.
Sec. 20. In general, a public officer or employee shall, upon assuming office and as often thereafter as may be, required by law, submit a declaration under oath of his assets, liabilities and net worth (SALN). But in the case of members of Congress and other high government officials (as enumerated), the disclosure must be made public (Art.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 27of41

XI, See. 17).

Furthermore, all members of Congress shall, upon assumption of office make a full disclosure of their financial and business interests (Art. VI, Sec. 12).

The law governing this financial disclosure by public officers and employees is RA 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Every public officer shall submit to (a) the Office of the Department Head, or (b) the Office of the President in case of a head of department or chief of an independent office, the following: 1. A true, detailed, and sworn statement of assets and liability; 2. A statement of the amounts and sources of his income; 3. The amount of personal and family expenses, and 4. The amount of income taxes paid the previous year, on the following occasions: (a) within 30 days after assuming office (b) on or before April 15 after the close of the calendar year, and (c) upon the expiration of their term of office, or upon resignation or separation from office When a member of Congress authors a proposed legislation, he must notify the House concerned of any "potential conflict of interest" that may arise from his filing of such bill (Art. VI, Sec. 12.) Furthermore, the records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit, which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member (Art. VI, See. 20.) The purpose of public disclosure of a member's financial status and official expenses is to make him visible to the rest, and thus give him a deterrent from committing graft and corruption. The public has a right to know how much it is spending for its government, 4. INTERNAL GOVERNMENT OF CONGRESS A. ELECTION OF OFFICERS Art. VI, Sec. 16 (1) The Senate shall elect its President and the House of Representatives its Speaker, by a majority vote of all its respective Members. Each House shall choose such other officers as it may deem necessary.

First order of business - election by each house of the President of the Senate and the Speaker of the House, and such other officers that the rules of each house may provide. A majority vote of all the respective members is required to elect these two officers. Upon the election of the President and the Speaker, the Constitution deems the Houses "organized." (Art. Vl, sec. 19)

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 28of41

Santiago v. Guingona, 298 SeRA 756 (1998)

HELD: While the Constitution is explicit on the manner of electing a Senate President and a House Speaker, it is, ~owever, dead silent on the manner of selecting the other officers in both chambers of Congress. All that the Charter says is that "[e]ach House shall choose such other officers as it may deem necessary," To our mind, the method of choosing who will be such other officers is merely a derivative of the exercise of the prerogative conferred by the aforequoted constitutional provision. Therefore, such method must be prescribed by the Senate itself, not by this Court. In this regard, the Constitution vests in each house of Congress the power "to determine the rules of its proceedings," Pursuant thereto, the senate formulated and adopted a set of rules to govern its internal affairs. Pertinenfto the instant case are Rules I and II thereof, which provide: "Rule I ELECTlVE OFFICERS "SEC. 1. The Senate shall elect, in the manner hereinafter provided,.a . Pro Tempore, a Secretary, and a Sergeant-at-Arms. "These officers shall take their oath of office before entering duties. RULE II ELECTlON OF OFFICERS "SEC. 2. The officers of the Senate shall be elected by the majority vote of all its Members. Should there be more than one candidate for the same office, a nominal vote shall be taken; otherwise, the elections shall be by viva voce or by resolution," Notably, the Rules of the Senate do not provide for the positions of majority and minority leaders. Neither is there an open clause providing specifically for such offices and prescribing the manner of creating them or of choosing the holders thereof. At any rate, such offices, by tradition and long practice, are actually extant. But, in the absence of constitutional or statutory guidelines or specific rules, this Court is devoid of any basis upon which to determine the legality of the acts of the Senate relative thereto. On grounds of respect for the basic concept of separation of powers, courts may not intervene in the interhal affairs of the legislature; it is not within the province of courts to direct Congress how to do its work. Paraphrasing the words o(Justice Florentino P. Feliciano, this Court is of the opinion that where no specific, operable norms and standards are shown to exist, then the legislature must be given a real and effective opportunity to fashion and promulgate as well as to implement them, before the courts may intervene. President, a President

into the discharge of their

I
Needless to state, legislative rules, unlike statutory laws, do not have the imprints of permanence and obligatoriness during their effectivity. In fact, they "are subject to revocation, modification or waiver at the pleasure of the body adopting them," Being merely matters of procedure, their observance are of no concern to the courts, for said rules may be waived or disregarded by the legislative body at will, upon the concurrence of a majority. In view of the foregoing, Congress verily has the power and prerogative to provide for such officers as it may deem. And it is certainly within its own jurisdiction and discretion to prescribe the parameters for the exercise of this prerogative. This Court has no authority to interfere and unilaterally intrude into that exclusive realm, without running afoul of constitutional principles that it is bound to protect and uphold the very duty that justifies the Court's being. Constitutional respect and a becoming regard for the sovereign acts of a coequal branch prevents this Court from prying into the internal workings of the Senate. To repeat, this Coort will be neither a tyrant nor a wimp; rather, it will remain steadfast and judicious in upholding the rule and majesty of the law. To accede, then, to the interpretation of petitioners would practically amount to judicial legislation, a clear breac~ of the constitutional doctrine of separation of powers. If for this argument alone, the petition would easily Jail.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College of Law. SY 2012-2013 Page 29 of41

B. QUORUM
Id., Sec. 16(2) A majority of each House shall constitute a quorom to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide. The quorum required to conduct business is a majority (1/2 + 1) of all the members. But to pass a law, only the votes of the majority of those present in the session, there being a quorum, are required. This is known as the "shifting majority". To illustrate: 13 members of the Senate are sufficient to constitute a quorum. If only 13 members are present, a vote by 7 in favor of a bill is sufficient to pass it. But as the number of those present increases, the number of votes needed to pass a bill would correspondingly increase, i.e., shift. When a quorum cannot be had, a smaller number may adjourn from day to day, and compel the attendance of the absent (recalcitrant) members by the means of arrest or such/other measures and penalties as the House may provide in its rules.
Avelino v. Cuenco, 83 Phil 17 (1949) FACTS: Jose Avelino was Senate President in 1949. On 2/21/49, Senators Tanada and 5anidad filed a resolution (Resolution 68) against Avelino calling for an investigation. During the session, Avelino and 6 others walked out leaving 12 senators behind. The 12 senators continued the session and passed resolution no. 67 declaring the Senate President seat vacant. Senator Cuenco was eventually elected as the acting President of the Senate. By his petition in this quo warranto proceeding petitioner asks the Court to declare him the rightful President of the Philippine Senate and oust respondent, Senator Cuenco. ISSUE:S: a. Does the Court have jurisdiction over the subject-matter? b. It if has, were resolutions Nos. 68 and 67 validly approved? c. Should the petition be granted? a. To the first question, the answer is in the negative, in view of the separation of powers, the political nature of the controversy and the constitutional grant to the Senate of the power to elect its own president, which power should not be interfered with, nor taken over, by the judiciary. xxx b. The second question depends upon these sub-questions: (1) Was the session of the so-called rump senate a continuation of the session validly assembled w/ 22 senators (2 were absent-- one was abroad; the other was confined in a Manila hospital) in the morning of 2/21/49? (2) Was there a quorom in that session? (1) Supposing that the Court has jurisdiction, there is unanimity in the view that the session under Senator Arranz was a continuation of the morning session and that a minority of 10 senators may not, by leaving the Hall, prevent the other 12 senators from passing a resolution that met w/ their unanimous resolution. (2) If the rump session was not a continuation of the morning session, was it validly constituted? Justices Paras, Feria, Pablo and Bengzon say there was for the following reasons: (i) the minutes say so, (ii) at the beginning of such session there were at least 14 senators including senators Pendatun and Lopez, and (iii) in view of the absence from the country of Senator Confessor, 12 senators constitute a majority of the Senate of 23 senators. When the Constitution declares that a majority of "each House" shall constitute a quorom, "the House" does not mean "all" the members. Even a majority of all the members constitute the "Housl!." There is a difference bet. a majority of "all the members of the House" and a majority of "the House," the latter requiring less number than the first. Therefore, an absolute majority (12) of all the members of the Senate less one (23) constitutes constitutional majority of the Senate for the purpose of the quorom. J. Pablo believes further that even if the 12 did not constitute a quorom, they could have ordered the arrest of one, at least, of the absent members xxx.

HELD,

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College of Law. SY 2012-2013 Page 300f41

In Avelino v. Cuenco, supra., the ruling then was: The quorum was computed on the number of Senators over whom the Senate has jurisdiction at the time of session.
peoplk v. lalosjos, 324 SCRA 689 (2000) The accused-appellant argues that a member of Congress' function to attend sessions is underscored by Section 16 (2), Article VI of the Constitution which states that(2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide. However, the accused-appellant has not given any reason why he should be exempted from the operation of Section 11, Article VI of the Constitution. The members of Congress cannot compel absent members to attend sessions if the reason for the absence is a legitimate one. The confinement of a Congressman charged with a crime punishable by imprisonment of more than six months is not merely authorized by law, it has constitutional foundations.

C. RULES OF PROCEEDINGS Id., Sees. 16(3) Each House may determine the rules of its proceedings, punish its Members for disorderly behaviour, and with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty.days.

Sec. 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.
Each House or its committees may determine the rules of its proceedings. These rules include the procedure to be followed in "inquiries in aid of legislation." The House may set aside the rules it adopted as it sees fit, because these rules are only bf a temporary nature.
Pacete v. Sec. of the Commission on Appointments, 40 SCRA 58 (1971) DOCTRINE: The rules of the' Commission on Appointments concerning its internal business could be reviewed by the Courts, that is, it is a justiciable matter, when a certain construction of such rules would defeat the right of the individual to a public office.

Q. May the SC intervene in the implementation of the rules of either house of Congress? A. On matters affecting only internal operation of the legislature, the legislature's formulation and implementation of its rules is beyond the reach of the courts. When, However, the legislative rule affects private rights, the courts cannot altogether be excluded (Bernas citing US v. Smith, 286US 6)
Arroyp v. De Venecia, 277 SCRA 268 (1997)
HELD: It is clear from the foregoing facts that what is alleged to have been violated in the enactment of R.A. No. 8240 are merely internal rules of procedure of the House rather than constitutional requirements for the enactment of a law, i.e., Art. VI, 9926-27. Petitioners do not claim that there was no quorum but only that, by some maneuver allegedly in violation of the rules of the House, Rep. Arroyo was effectively prevented from questioning the presence of a quorum.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 31 of41

Petitioners contend that the House rules were adopted pursuant to the constitutional provision that "each House may determine the rules of its proceedings" and that for this reason they are judicially enforceable. To begin with, this contention stands the principle on its head. In the decided cases, the constitutional provision that "each House may determine the rules of its proceedings" was invoked by parties, although not successfully, precisely to support claims of autonomy of the legislative branch to conduct its business free from interference by courts. Here petitioners cite the provision for the opposite purpose of invoking judicial review. But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that. in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals. In Osmeiia v. Pendatun (109 Phi!. 870), it was held: "At any rate, courts have declared that 'the rules adopted by deliberative bodies are subject to revocation, modification or waiver at the pleasure of the bOdy adopting them.' And it has been said that 'Parliamentary rules are merely procedural, and with their observance, the courts have no concern. They may be waived or disregarded by the legislative body.' Consequently, 'mere failure to conform to parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisite number of members have agreed to a particular measure.''' In Umted States v. Ballin, Joseph & Co. (144 US S), the rule was stated thus: ''The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation'between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribuna!." In Crawford v. Gilchrist (64 Fla. 41), it was held: ''The provision that each House shall determine the rules of its proceedings does not restrict the power given to a mere formulation of standing rules, or to the proceedings of the body in ordinary legislative matters; but in the absence of constitutional restraints, and when exercised by a majority of a constitutional quorum, such authority extends to. a determination of the propriety and effect of any action as it is taken by the body as it proceeds 'in the exercise of any power, in the transaction of any business, or in the performance of any duty conferred upon it by the Constitution." In State ex reI. City Loan & savings Co. v. Moore (124 Ohio St. 256), the Supreme Court of Ohio stated: ''The Wovision for reconsideration is no part of the Constitution and is therefore entirely within the control of the G~neral Assembly. Having made the rule, it should be regarded, but a failure to regard it is not the subject-matter of judicial inquiry. It has been decided by the courts of last resort of many states, and also by the United States Supreme Court, that a legislative act will not be declared invalid for noncompliance with rules." In State v. savings Bank (79 Conn. 141), the Supreme Court of Errors of Connecticut declared itself as follows: ''The Constitution declares that each house shall determine the rules of its own proceedings and shall have all powers necessary for a branch of the Legislature of a free and independent state. Rules of proceedings are the servants of the House and subject to its authority. This authority may be abused, but when the House has acted in a matter clearly within its power, it would be an unwarranted invasion of the independence of the legislative department for the court to set aside such action as void because it may think that the House has misconstrued or departed from its own rules of procedure." In McDonald v. State (80 Wis. 407), the Wisconsin Supreme Court held: "When it appears that an act was so passed, no inquiry will be permitted to ascertain whether the two houses have or have not complied strictly with their own rules in their procedure upon the bill, intermediate its introduction and final passage. The presumption is conclusive that they have done so. We think no court has ever declared an act of the legisla~urevoid for non-compliance with the rules of procedure made by itself, or the respective branches thereof, and which it or they may change or suspend at will. If there are any such adjudications, we decline to follow them."
Schweizer v. Territory (5 Ok!. 297) is illustrative of the rule in these cases. The 1893 Statutes of Oklahoma provided for three readings on separate days before a bill may be passed by each house of the legislature, with the proviso that in case of an emergency the house concerned may, by two-thirds vote, suspend the

IL I
! ~

r'

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College a/Law. SY 2012-2013 Page 320/41

,[
I[
,[
i [

operation of the rule. Plaintiff was convicted in the district court of violation of a law punishing gambling. He appealed contending that the gambling statute was not properly passed by the legislature because the suspensionof the rule on three readings had not been approved by the requisite two-thirds vote. Dismissing this cdntention, the State Supreme Court of Oklahoma held: We have no constitutional provision requiring that the legislature should read a bill in any particular manner. It may, then, read or deliberate upon a bill as it sees fit, either in accordance with its own rules, or in violation thereof, or without making any rules. The provision of section 17 referred to is merely a statutory provision for the direction of the legislature in its action upon proposed measures. It receives its entire force from legislative sanction, and it exists only at legislative pleasure. The failure of the legislature to properly weigh and consider an act, its passage through the legislature in a hasty manner, might be reasons for the governor withholding his signature thereto; but this alone, even though it is shown to be a violation of a rule which the legislature had made to govern its own proceedings, could be no reason for the court's refusing its enforcement after it was actually passed by a majority of each branch of the legislature, and duly sign~ by the governor. The courts cannot declare an act of the legislature void on account of noncompliance with rules of procedure made by itself to govern its deliberations. McDonald v. State, 80 Wis. 407, 50 NW. 185; In re Ryan, 80 Wis. 414, 50 NW. 187; State v. Brown, 33 S.c. 151, 11 S.E. 641; Railway Co. v. Gill, 54 Ark. 101, 15 S.W. 18. We c6nclude this survey with the useful summary of the rulings by former Chief Justice Fernando, commenting on the power of each House of Congressto determine its rules of proceedings. He wrote: Rules are hardly permanent in character. The prevailing view is that they are subject to revocation, modification or waiver at the pleasure of the body adopting them as they are primarily procedural. Courts ordinarily have no concern with their observance. They may be waived or disregarded by the legislative body. Consequently, mere failure to conform to them does not have the effect of nullifying the act taken if the requisite number of members have agreed to a particular measure. The above principle is subject, however, to this qualification. Where the construction to be given to a rule affects persons other than members of the legislative bOdythe question presented is necessarilyjudicial in character. Even its validity is open to question in a case where private rights are involved. In this case no rights of private individuals are involved but only those of a member who, instead of seeking redress in the House, chose to transfer the dispute to this Court. We have no more power to look into the internal proceedings of a House than members of that House have to look over our shoulders, as long as no violation of constitutional provisions is shown.

,[
r ,

L
I'

I
I
I

I D. DISCIPLINE OF MEMBERS
I

I
r i

VI, Sec. 15 (3) Each House may determine the rules of its proceedings, punish its Members for disorderly behaviour, and with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days. Art. Each house may punish it members for "disorderly behaviour." What constitutes "disorderly behaviour" is solely within the discretion of the h~use concerned. Although a member of either house cannot be held accountable in any other place for any speech he make in the Congress or in any committee thereof, he can be found guilty of disorderly behaviour by his own peers, so ruled the Court in Osmena v. Pendatun. 1(19Phil. 863 (1960).

l.
I_I

house,

The penalty may consist of (i) censure; or upon a 2/3 vote of all the members (ii) suspension, not exceeding 50 days, or (iii) expulsion.

of the

The history behind the 50-day limitation on the period of suspension could be traced to the early case of Alejandrino v. Quezon, infra. In a dictum, the SC said that it was not

Notes in Political Law

1st Semester, Atty. Rene Callanta, Jr. P.U.P. College of Law. SY 2012-2013

Page 330f41

within the power of the legislature to sU,spendits member, since suspension deprived the constituents of the member suspended of the right to be represented by a repr~sentative that they really had. In effect, suspension punished the constituents. In the case of expulsion, the constituents could at least elect someone else to substitute the member represented. If the only disciplinary measures were limited to expulsion and censure, however, there might not be a penalty appropriate enough for a disorderly behaviour that merited something more than censure but less than expulsion. It was this dilemma, that the Court precisely faced in Osmena v. Pendatun, which made it upheld the suspension of 15 months despite the Alejandrino ruling. Thus, the 1973 Constitution devised a system of allowing suspension as a penalty but limited its period to 60 days {Art. VII, Sec. 7(3)f. This was carried over in the 1987 Constitution. {Art. VI, Sec. I6(3)f
Alejandrino v. Quezon, 46 Phil. 83 (1924) FACT~: The petitioner in this original petition for mandamus and injunction is Jose Alejandrino, a senator appointed by the Governor General to represent the 12th senatorial District. The casus belli is a resolution adopted by the Philippine Senate composed of the respondent Senators, on 2/5/24, depriving Alejandrino of all the prerogatives, privileges, and emoluments of his office for the period of 1 yr from 1/24 having been declared guilty of disorderly conduct and flagrant violation of the privileges of the Senate for having treacherously assaulted Senator de Vera on the occasion of certain phrases being uttered by the latter in the course of the debate regarding the credentials of Mr. Alejandrino. The burden of petitioner's complaint is that the resolution is unconstitutional and entirely of no effect.
HELD: The Organic Act authorizes the Governor-General to appoint 2 senators and 9 representatives to represent the non-Christian regions in the Legislature. These senators and representatives "hold office until removed by the Governor-General" They may not be removed by the Legislature. However, to the Senate and the House of Representatives respectively, is granted the power to "punish its members for disorderly behavior, and, with the concurrence of 2/3, expel an elective member." xxx. The Constitution has purposely withheld from the 2 Houses of the Legislature and the Governor General alike the power to suspend an appointive member. The reason is obvious. Punishment by way of reprimand or fine vindicates the outraged dignitv of the House without depriving the constituency of representation: expulsion, when permissible, likewise vindicates the honor of the legislative body while giving to the constituency an o 0 uni to elect anew' but sus ension de rives the electoral district of re resentation without that distri, being afforded any means by which to fill the vacancy. By suspension. the seat remains filled but the occupant is silenced. Suspensionfor 1 yr. is equivalent to qualified expulsion or removal.

However, the writ prayed for cannot. issue, for the reason that the SC does not possess the power of coercion to make the Philippine Senate take any particular action. Osmena v. Pendatun, 109 Phil. 863 (1960)-supra. (Speech and Debate Clause)

Compared with Alejandrino v. Quezon: It is true that in Alejandrino an obiter dictum that "suspension deprives the electoral district of representation without that district being afforded any means by which to fill that vacancy." But the remark should be understood to refer particularly to the appointive senator who was then the affected party and who was then the affected party and who was by the same Jones Law charged with the duty to represent the 12th District xxx. It must be observed, however, that at that time the Legislature had only those powers which were granted to it by the Jones Law; whereas now the Congress has the full legislative powers and prerogatives of a sovereign nation, except as restricted by the Constitution. xxx Now, the Congress has the inherent legislii;tive prerogative of suspension which the Constitution did not impair. ''The Legislative power of Congress is plenary, subject only to such limitations as are found in the Constitution So that any power deemed to be legislative by usage or tradition, is necessarily possessed by the Congress, unlessthe Constitution provides otherwise." (Vera v. Avelino, 77 Phil. 192.)

Expulsion compared with exclusion under Art. VI. Sec. 17

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 . Page 34 of 41

Expulsion under Art. VI, Sec. 16(3) should be distinguished VI, skc. 17,

from exclusion under Art.

Art. VI, Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. xxx Under the latter, Electoral Tribunals of the Senate and the House, determine election contests. They shall be the sole judges of the elections, returns, and qualifications of their elective members. Each Electoral Tribunal is independent of the other; this emphasizes the exclusive character of the jurisdiction conferred upon each House. However, each Tribunal cannot add to the qualifications or.disqualifications found in the Constitution. Thus, the Electoral Tribunal is without power to exclude any member-elect who meets all the Constitution's requirements for membership.

E. JdURNAL AND CONGRESSIONAL RECORDS r Art. VI, 16(4) Each House shall keep a Journal of its proceedings and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered in the Journal. r Each House shall also keep a Record of its proceedings. The tournaI is only a resume of minutes of what transpired during a legislative session. The record is the word-for-word transcript of the proceedings taken during the session.

n
! (1) The Enrolled Bill Doctrine

Once a bill has been approved by both houses (the procedure will be discussed later), the bill is engrossed or enrolled, and this "Enrolled Copy of the Bill" bears the certification of the Presiding Officer of the house (either Senate President or Speaker of the House) that this bill as enrolled is the version passed by each house. The purpose of the certification is to prevent attempts at smuggling in "riders". The enrolled copy is then sent to the President for his action. What happens if there is a discrepancy between the enrolled copy of the bill, and any other copy of the bill? The enrolled bill prevails, says the SC in the following cases.
Mabanag v. Lopez Vito, 78 Phil. 1 (1947)

Three of the plaintiff senatorsand 8 of the plaintiff representativeshad been proclaimedby a majorityvote of the COMELEC as havingbeenelectedsenatorsand representatives in the electionsheld on 4/23/46. The 3 senatorswere suspendedby the senate shortly after the opening of the first session followingthe elections,on accountof allegedirregularitiesin their election. The 8 representatives sincetheir electionhad not beenallowedto sit in the lower House,exceptto take part in the electionof Speaker,for the samereason,althoughthey hadnot beenformallysuspended.
FACTS:

As a consequence, these3 senatorsand 8 representatives did not take part in the passage of the questioned resolution,nor was their membershipreckonedin the computationof the necessary3/4 vote which is requiredin proposingan amendmentto the Constitution(the ParityRightsAmendment.) If thesemembers

-' --~~-~~~~----_._--_.-

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College o/Law. SY 2012-2013 Page 350/41

had been counted, the affirmative votes in favor of the proposed amendment would have been short of the necesflry 3/4 vote in either branch of Congress. HELD: 1. Jurisdiction.-Both notions of jurisdiction and conclusiveness of legislative enactment are synonymous in that both are founded upon the regard which the judiciary accords a co-equal, coordinate, and independent branch of Govt. If a political question conclusively binds the judges out of respect to the political departments, a duly certified law or resolution also binds the judges under the "enrolled bill rule" born of that respect. 2. Enrolled Bill T77eory,-- The respondent's other chief reliance is on the contention authenticated bill or resolution imports absolute verity and is binding on the courts. Sec. 313 of the old Code of Civil Procedure, as amended, provides: . "Official documents may be proved as follows: ***(2) the proceedings of the xxx Congress, by the journals of those bodies or of either house thereof, or by published. statutes or resolutions, or by copies certified by the clerk or secretary, or printed by their order; Provided, that in the case of Acts of xxx the Phil. Leg., when there is an existence of a copy signed by the presiding officers and secretaries of said bodies, it shall be conclusive proof of the provisions of such Acts and of the due enactment thereof." Reasons in support of enrollment: Sec. 150. Reasons for Conclusiveness.-- xxx [T]he rule against going behind the enrolled bill is required by the respect due to a co-equal and independent dept of govt, and it would be an inquisition into the conduct of the members of the legislature, a very delicate power, the frequent exercise of w/c must lead to endless confusion in the admin. of the law. The rule is also one of convenience, bec. courts could not rely on the published session laws, but would be required to look beyond these to the journals of the legislature and often to any printed bills and amendments w/c might be found after the adjournment of the legislature. (Am. Jur.) 3. Compared wi US v. Pons,-- The Court looked into the journals in US v. 'Pons because, in all probability, those were the documents offered in evidence. It does not appear that a duly authenticated copy of the Act was in existence or was placed bef. the Court; and it has not been shown that if that had been done, this Court would not have held the copy conclusive proof of the due enactment of the law. Cascq Chemical Co. v. Gimenez, 7 SCRA 347 (196~) that a duly

FACTS: Pursuant to the provisions of RA 2609 (For-Ex Margin Fee Law), the CB issued Circular No. 95, fixing a uniform margin fee of 25% on for-ex transactions. xxx Several times in Nov. and Dec. 1959, petitioner Casco, w/c is engaged in the manufacture of synthetic resin glues xxx, bought for-ex for the importation of urea and formaldehyde-- w/c are the main RM in the production of said glues and paid the corresponding margin fee. Petitioner had sought the refund claiming that the separate importation of urea and formaldehyde is exempt from said fee. Although the CB issued the vouchers for the refund, the Auditor of the Bank refused to pass in audit and approve said vouchers upon the ground that the exemption granted by the MB for petitioner's separate importations of urea and formaldehyde is not in accord w/ the provisions of sec. 2, par. XVIII of RA 2609. Petitioner maintains that the term "urea formaldehyde" appearing in the provision should be construed as "urea and formaldehyde" and that the resps herein have erred in holding otherwise. xxx "Urea formaldehyde" is a finished product, w/c is patently distinct and different from "urea" and "formaldehyde," as separate articles used in the manufacture of the synthetic resin known as "urea formaldehyde." Petitioner contends that the bill approved in Congress contained the copulative conjunction "and" bet. the terms "urea" and "formaldehyde" and that the members of Congress intended to exempt "urea" and "formaldehyde" , separately as essential elements in the manufacture of the synthetic resin glue xxx citing the statements made on the floor of the senate, during the consideration of the bill bef. the House xxx. HELD: Said individual statements do not neces~arily refiect the view of the Senate. Much less do they indicate the intent of the HRep. Further, the enrolled bill-- w/c uses the term "urea formaldehyde" instead of "urea and formaldehyde,"-is conclusive upon the courts as regards the tenor of the measure passed by Congress and adopted by the Pres. If there has been any mistake in the printing of the bill before it was

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 360f41

certified by the officers of Congress and approved by the Pres., the remedy is by amendment or curative legisla~ion . In Morales v Subido, infra., the SC, in upholding the enrolled bill, explained that its basis is the separation of powers, so that the remedy of an aggrieved party is not a judicial decree but a legislative amendment or curative legislation. In this case, the phrase, "who has served the police department of city or " was omitted from the engrossed copy of the Police Act of 1966, thereby changing the qualifications required by the law of a chief of a city police agency. It was clear from the records and journal that the omission took place not any stage of the legislative proceedings, but only during its enrollment. It was further clear that the change was made not by Congress, but only by an employee. And yet the SC refused to go behind the enrolled Act to discover what really happened, because of the respect due the other qepartments. The case was different in Astorga v Villegas, infra., because here, upon being informed that the enrolled bill did not contain the amendment proposed by Senator Tolentino (regarding the powers of the Vice-Mayor of Manila) when the house bill was raised to the Senate, the Senate President, withdrew his signature and notified the President of the mistake, who then likewise withdrew his signature. There was no occasion, then, to apply the enrolled bill theory.

(2)

Probative Value of the Journal

The journal is conclusive on the courts as to its contents, so the SC ruled in US v. Pons, 34 Pllil. 729 (1916). Pons, in this case was prosecuted under a criminal statute. He contended, however, that the statute was passed past the midnight after February 28, 1914, the last day of session of the legislative body, but that the members stopped the clock at mid-night, to pass the law. The SC rejected ~his claim, ruling that the probative value of the journal could not be questioned, otherwise proof of legislative action would be uncertain and would now have to depend on the imperfect memory of men.

us v. !pons,

34 Phil. 729 (1916)

FACTS: Juan Pons was accused of violating Act 2381 w/c prohibits the illegal importation of opium. In his motion for the reversal of his conviction, counsel contented that the last day of the special sessions of the Legislature for 1914 was 2/28; that Act 2381, under which Pons must be punished if found guilty, was not passed or approved on 2/28 but on 3/1 of that yr; and that, therefore, the same is null and void. The validity of the Act is not otherwise disputed. As it is admitted that the last day of the special session was, under the Gov-Gen's proclamation, 2/28 and that the appellant is charged w/ having violated Act 2381, the vital question is the date of the adjournment of the Leg., and this reduces itself to 2 others, namely, (1) how that is to be proved, whether by the legislative journals or extraneous evidence, and (2) whether the court can take judicial notice of the journals.
HELD:

A. While there are no adjudicated cases in this jurisdiction upon the exact question win the courts may take judicial notice of the legislative journals, it is well settled in the us that such journals may be noticed by courts in determining the question win a particular bill became a law or not. And these journals show, w/ absolute certainty, that the Leg. adjourned sine die at 12 o'clock on 2/28/14. B. We will inquire win the courts may go behind the legislative journals for the purpose of determining the date of adjournment when such journals are clear and explicit. Counsel for appellant, in order to establish his contention, must necessarily depend upon the memory or recollection of witnesses, while the legislative journals are the acts of the Govt or the sovereign itself. From their very nature and object the records of the Leg are as important as those of the judiciary, and to inquire into the veracity of the journals of the Leg., when they are clear and explicit, would be to violate both the letter and spirit of the organic laws by w/c the Phil. Govt was brought into existence, to invade a coordinate and independent dept of the Govt, and to interfere w/ the legitimate powers and functions of the Leg. xxx If the clock, was, in fact stopped, as here suggested, "the resultant evil might be slight as compared w/ that

1st Semester,

Notes in Political Law . .Atty. Rene Callanta, Jr. P.U.P. College of Law. SY 2012.2013 Page 370f41

of altering the probative force and character of legislative records, and making the proof of legislative action depenb upon uncertain oral evidence, liable to Joss by death or absence, and so imperfect on account of the treachery of memory xxx.

(3)

Matters Required to be Entered in the Journal

The Constitution requires that the following matters be contained in the journal: (a) The yeas and nays on third and final reading of a bill [Art. VI, Sec. 26(2)[; .(b) Veto message of the President (i.e., his objection to a bill when he vetoes it) [Art.
VI, Sec. 27(1)};

(e) The yeas and nays on the repassing of a bill vetoed by the President (Art. VI, Sec.
27(1)[;

(d) The yeas and nays on any question at the request of 1/5 of the members present
fArt. VI, Sec. 16(4)[

In addition, the journal contains the summary of the proceedings. ! A record, on the other hand, contains the verbatim transcript of all proceedings of the house or its committees. The Constitution is silent as to what the record must contain. However, in Art. XI, Sec. 3(3), ~he Constitution speaks of the vote of each member of the House either affirming a favorable or overriding its contrary resolution of the impeachment complaint to be "recorded."

(4)

Journal Entry Rule vs. Enrolled Bill Theory

In the Astorga v. Villegas case, the SC, by way of obiter, indicated that the journal might really prevail over the enrolled bill, since a journal is required by the Constitution while the enrollment of a bill is just a legislative practice that is not even mentioned in the Constitution. Further, enrollment does not add to the validity of the bill, for what makE!sit valid are the votes of the members. But this view is mere dictum. It contradicts the ruling in Morales v. Subido that the enrolled copy prevails over the journal. It also contradicts the ratio in Marshall Field & Co. v Clark, 143 US 649 (1891) that the parties were not competent to show from the journal that the bill in the custody of the Secretary of State was against the contents of the journal, because journals are just kept by clerks who could .be mistaken, while the certified bill is made by the highest officer of the chamber.

* To reconcile these two views, it may be said that, as to matters required by the Constitution to be placed in the journal. the journal is conclusive. But aside from these 4 matters, any other matter does not enjoy such conclusiveness.
Astorga v. Villegas, 56 SCRA 714 (1974)
FACTS: House Bill No. 9266, wfc was filed in the HRep., passed on 3rd reading wlo amendments. It was sent the Senate for concurrence. It was referred to the appropriate senate Committee, wfc recommended approval wf a minor amendment recommended by Sen. Roxas. When the bill was discussed on the Senate floor, substantial amendments to Sec. 1 were introduced by Sen. Tolentino, wfc amendments were approved in toto by the Senate. xxx On 5/21/54, the Sec. of the senate sent a letter to HRep that the House bill had been passed by the Senate w/ amendments. Attached was a certification of the amendment, w/c was the one recommended by sen. Roxas, and not the Tolentino amendments w/c were the ones actually approved by the Senate. The HRep signified approval as sent back to it. The printed copies were then certified and attested to by the Secretaries of the Senate and of the HRep, the Speaker of the HRep, and the Senate Pres.

'0

Notes in Political Law .Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College o/Law. SY 2012-2013 Page 380f41

It was/later made public by Sen. Tolentino that the enrolled copy of House bill no. 9266 signed into law by the Pres. was a wrong version of the bill actually passed by the Senate and approved on the Senate floor. The Senate Pres. admitted this mistake in a letter to the Pres. As a result, the Pres. sent a message to the presiding officers of both Houses informing them that in view of the circumstances he was officially withdrawing his signature on House Bill no. 9266. Upon the foregoing facts, the Mayor of Mia. issued circulars ordering the disregard of the provisions of RA 4605. He also issued an order recalling 5 members of the city police force who had been assigned to the Vice-Mayor presumably under authority of RA 4065. Reacting to these steps, the then V-Mayor Astorga, filed a pet. RA 4065. Respondents' position is that RA 4065 never became law since it was not the bill actually passed by the Senate, and that the entries in the journal of that body and not the enrolled bill itself should be decisive in the resolution of the issue. HELD,! 1. Petitioner's argument that the attestation of the presiding officers of Congress is conclusive proof of a bill's due enactment, required, it is said, by the respect due to a co-equal dept of the govt, is neutralized in this case by the fact that the Senate Pres. declared his signature on the bill to be invalid and issued a subsequent clarification that the invalidation of his signature meant that the bill he had signed had never been approved by the Senate. Obviously this declaration should be accorded even greater respect than the attestation it invalidated, wlc it did for a reason that is undisputed in fact and indisputable in logic. As far as Congress itself is concerned, there is nothing sacrosanct in the certification made by the presiding officers. It is merely a mode of authentification. It is the approval by Congress and not the signatures of the presiding officers that is essential. 2. Petitioner agrees that the attestation in the bill is not mandatory but argues that the disclaimer thereof by the Senate Pres., granting it to have been validly made, would only mean that there was no attestation at all, but would not affect the validity of the statute. xxx This arguments begs the question. It would limit the court's inquiry to the presence or absence of the attestation and to the effect of its absence upon the validity of the statute. The inquiry, however, goes farther. Absent such attestation as a result of the disclaimer, and consequently there being no enrolled bill to speak of, what evidence is there to determine wIn the bill had been duly enacted? In such a case, the entry in the journal should be consulted.

wI

this Court for "Mandamus, Injunction

andlor Prohibition wI Prel Mandatory and Prohibitory Injunction" to compel compliance wI the provisions of

Marshall Field 8<Co. v. Clark, 143 US 649 (1891)

It is not competent for the appellant to show from the Journals that the enrolled bill contained a section that does not appear in the enrolled Act in the custody of the State Department

FACTS: In accordance wI the Tariff Act of Oct. 1, 1890, duties were assessed and collected on woollen dress goods, woollen wearing apparel, and silk embroideries imported by Field & Co.; on silk and cotton laces imported by Sutton & Co.; and on colored cotton cloths imported by Sternbach & Co. The importers severally protested against the assessment upon the ground that the Act was not a law of the US. It was contended, among others, that the Tariff Act was a nullity bec. "it is shown by congressional records of proceedings, reports of committees of conference, and other papers printed by authority of Congress, and having reference to House Bill 9416, that a section of the bill as it finally passed, was not in the bill authenticated by the signatures of the presiding officers of the respective houses of Congress, and approved by the Pres." HELD: The signing by the House Speaker and by the Senate Pres. of an enrolled bill is an official attestation by thEitwo Houses that such bill is the one that has passed Congress. It is a declaration by the 2 houses, through their presiding officers, to the Pres. that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the govt, and that it is delivered to him in obedience to the constitutional requirement that all bills wlc pass Congress shall be presented to him. And when the bill thus attested is signed by the Pres. and deposited in the archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable. Morales v. Subido, 27 SCRA 131 (1969.)

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College of Law. SY 2012-2013 Page 390f41

FACT!ji: The present insistence of the petitioner is that the version of the provision (Sec. 10 of the PoliceAct of 19(6), as amended at the behest of Sen. Rodrigo, was the version approved by the Senate on 3rd reading, and that when the bill emerged from the conference committee, the only change made in the provision was the insertion of the phrase "or has served as chief of police wi exemplary record." In support of this assertion, the petitioner submitted certified photostatic copies of the different drafts of House Bill 6951 showing the various changes made. It is unmistakable that the phrase "who has served the police dept of a city or," was still part of the provision, but according to the petitioner the House bill division deleted the entire provision and substituted what is now Sec. 10 of the Act wlc did not carry such phrase.
It would thus appear that the omission of the phrase "who has served the police dept of a city of', was made not at any stage of the legislative proceedings but only in the course of engrossment of the bill, more specifically in the proofreading thereof; that the change was not made by Congress but only by an employee thereof xxx.
HELD: The petitioner wholly misconceives the function of the judiciary under our system of govt. [T]he enrolled Act in the office of the legislative secretary of the Pres. of the Phils. shows that sec. 10 is exactly as it is in the statute as officially published in slip form by the Bureau of Printing. We cannot go behind the enrolled Act to discover what really happened. The respect due to the other branches of Govt demands that we adl upon the faith and credit of what the officers of the said branches attest to as the official acts of their respective departments. Otherwise, we would be cast in the unenviable and unwanted role of a sleuth trying to determine what actually did happen in the labyrinth of law-making, wi consequent impairment of the integrity of the legislative process. The investigation wlc the petitioner would like this Court to make can be better done in Congress.

[W]e are not to be understood as holding that in all cases the journals must yield to the enrolled bill. To be sure, there are certain matters wlc the Const. expressly requires must be entered on the journal of each house. xxx [W]ith respect to matters not expressly required to be entered on the journal, the enrolled bill prevails in the event of any discrepancy.

F. SESSIONS

(l) Regular sessions The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine, until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays and legal holidays. xxx
Art. VI, Sec. 15.

Neither house during the session of the Congress shall, without the consent of the other house, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.
Sec. 16(5)

* "Place"
Houses

as here used refers may be sitting.

not to the building

but to the political

unit where

the two

(2) Special sessions

Art. VI, Sec. 15. xxx

The President may call a special session at

any time. Special sessions are held in the following instances:

a) When the President

calls for a special

session

at any time

(Art. VI, Sec. 15)

due to a vacancy in the offices of President and VicePresident (Art. VII, Sec. 10) in which Congress shall convene at 10 a.m. of the third day after the vacancy, without need of a call.

b) To call a special election

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law. SY 2012-2013 Page40of41

C) To decide on the disability of the President because the Cabinet (majority)

has "disputed" his assertion that he is able to dispose his duties and powers. (This takes place not when the Cabinet first sends a written declaration about the inability of the President, but after the President has disputed this initial declaration.) (Art. VII, Sec. 11.) > Congress shall convene, if it is not in session, within 48 hours, without need of call.

d) To revoke or extend the Presidential Proclamation of Martial Law or suspension of

the writ of habeas corpus (Art. VII, Sec. 18). > Congress, if not in session, shall, within 24 hours following such proclamation or suspension, convene, without need of a call.

* In the last three cases, Congress convenes without need of a call. These are exceptions to the general rule in the 1st case that when Congress is not in session, it can only meet in special session call by the President.
(3) Joint session When both houses meet jointly, they generally vote separately. The reason is obvious: there are only 24 senators, while there are at least 250 representatives. It would be bad policy to give one vote to a Senator, who was elected "at large", and the same weight of vote to a representative, who is either elected only by one legislative district or a party-list. Joint session and separate voting take place in the following instances:

(a) Voting Separately

a) When Congress, while acting as the canvasser of votes for the President and VicePresident, has to break the tie between two or more candidates for either position having an equal and the highest number of votes (Art. VII, Sec. 4,par. 5). b) When it decides (by 2/3 vote) on the question of the President's inability to discharge the powers and duties of his office (Art. VII, Sec. 11,par. 4).

c) Whenever there is a vacancy in the Office of the VP, when it confirms the
nomination of a VP by the President from among the members of Congress; such person shall assume office upon confirmation by a majority vote of all the members of both Houses, voting separately (Art. VII, Sec. 9). d) When it declares (by 2/3 vote) the existence of a state of war {Art. VI, Sec, 23(1)J.

e) When it proposes to amend the Constitution (3/4 vote of the members) {Art. XVII, Sec. 1(P/.
(b) Voting Jointly

But there is one exceptional instance when the two houses meet and vote jointly: Whe~, there has been a proclamation of Martial law or a suspension of the writ by the President, and Congress has to decide whether to revoke or to extend such proclamation or suspension (majority vote of all members, voting jointly) (Art. VII, Sec. 18).

* There is an illogical inconsistency here. To declare a state of war, the vote is taken separately. But to decide on an internal disorder (which is short of war) which spurred the proclamation of Martial Law or suspension of the writ, the vote is taken jointly. If the voting is made "joint" due to the emergency character of the situation brought about by the invasion or rebellion, there is no reason why it should not be so

I I I I I I I I I

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 . Page 41 of 41

to d~clare the existence of war (which among others, empowers the President to extend the tour of duty of the Chief of Staff), the danger to national security and the emergency nature being the same, if not graver.

HAND OUT NO.5 - LEGISLATIVE DEPT. part II

By: Atty. Rene Callanta, Jr.
Constitutional Law I, 1st Semester, SY 2012-2013 P.U.P. College of La~
S. ELECTORALTRIBUNALS Art. VI, Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of !nine Members, three of whom shall !>e Justices of the Supreme .Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. [d., Sec. 19. The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speake~. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its Members, to discharge such powers and functions as herein conferred upon it ..

A. COMPOSITION The Senate and the House shall each have an Electoral Tribunal, to be composed of 9 members, 3 shall be justices of the SC to be designated by the Chief Justice, and the. remaining 6 shall be members of the respective houses chosen on the basis of "proportional representation" from the political parties, and the parties or organizations registered under the party-list system. The senior justice shall be the Chairman. The use of proportional representation to fill up the 6 slots reserved for members of the particular house is different from the rule under the 1935 Constitution, which reserved 3 seats for the majority party and another 3 seats for the mjnority party. In Tanada v. Cuenca. 103 Phil. 1051 (1957), the SC ruled that the slot reserved for the minority party should not be filled up by the majority party, even if there was only one member from the minority party (in the person of Tanada). For to fill it up would offset the balance of the tribunai, and this would defeat its neutrality when acting as the sole judge of all electidn contests. This could not be done under the present set-up of the lower house because of the party-list system, which makes a fixed representation impossible. On the other hand, by making the composition proportional, the very nature of the Electoral Tribunal as a neutral judge of election contests has been destroyed. In the Senate, for instance, if only one senator comes from the minority party, there is no way that he would be represented in the tribunal. At least, 2 senators are required of the 24 members of the Senate in order to have one representative in the tribunal. And even if this single representative vote together with the 3 justices, there is no way for them outvote the 5 from the majority party. The case then is one of a majority preserving its advantage. Under the system in the 1935 Constitution, so long as there is one minority senator, there is always a clause that he could outvote the majority, and that is when the 3 justices vote with him. In Abbas v. Senate Electoral Tribunal, 166SCRA 651,the petitioners who were protestants in ! contest before the respondent body, sought the disqualification of all the legislative . members thereof on the ground that they were among the protestees in the said contest, along with the other majority members of the Senate. (The original opposition'

'" .

..,

,
. i

a.,

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College a/Law. SY 2012-2013 Page 2 0/65

member, Senator Estrada, later joined the majority and was replaced by Senator Enrile, who voluntarily inhibited himself.) In dismissing the petition, the SC said: It seems clear that in providing for a Tribunal to be staffed by both Justices of the Supreme Court and members of the Senate, the Constitution intended that both those judicial and legislative components commonly share the duty and authority of deciding all contests relating to the election, 'returns and qualifications of Senators. Said intent is more clearly signalled .by the fact that the proportion of Senators to Justices is 2 to 1 -- an unmistakable indication that the legislative and judicial components cannot be totally excluded from participation in the resolution of senatorial election contests. Where a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his other colleagues in the Senate without inviting the same objections to the substitute's competence, the proposed mass disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other court or body can perform, but which it cannot lawfully discharge is shorr) of the participation of its entire membership of Senators. The overriding consideration should be that the Tribunal be not prevented from discharging a duty which it alone has the power to perform, the Iperformance of which is in the highest interest of the people. It should be noted that the framers of the Constitution could not have been unaware of the possibility of an election contest that would involve all 24 Senators-elect, some of whom would inevitably have to sit in judgment thereon.
Pimentel v. HRET, 393 SCRA 227 (2002)
HELD: The Constitution expressly grants to the House of Representatives the prerogative, within constitutionally defined limits, to choose from among its district and party-list representatives those who may occupy the seats allotted to the House in the HRET and the CA. Section 18, Article VI of the Constitution explicitly confers on the Senate and on the House the authority to elect among their members those who would fill the 12 seats for Senators and 12 seats for House members in the Commission on Appointments. Uncler Section 17, Article VI of the Constitution, each chamber of Congress exercises the power to choose, within constitutionally defined limits, who among their members would occupy the allotted 6 seats of each chamber's respective electoral tribunal.
I

Thus, even assuming that party-list representatives comprise a sufficient number and have agreed to designate common nominees to the HRET and the CA, their primary recourse clearly rests with. the House of Representatives and not with this Court. Under Sections 17 and 18, Article VI of the Constitution, party-list representatives must first show to the House that they possessthe required numerical strength to be entitled to seats in the HRET and the CA. Only if the House fails to comply with the directive of the Constitution on proportional representation of political parties in the HRETand the CA can the party-list representatives seek recourse to this Court under its power of judicial review. Under the doctrine of primary jurisdiction, prior recourse to the House is necessary before petitioners may bring the instant case to the court. Consequently, petitioners' direct recourse to this Court is premature. The discretion of the House to choose its members to the HRETand the CA is not absolute, being subject to the mandatory constitutional rule on proportional representation. However, under the doctrine of separation of powers,' the Court may not interfere with the exercise by the House of this constitutionally mandated duty, absent a clear violation of the Constitution or grave abuse of discretion amounting to lack or excess of jurisdiction. Otherwise, the doctrine of separation of powers calls for each branch of government to be left alone to discharge its duties as it sees fit. Neither can the Court speculate on what action the House may take if party-Iis!trepresentatives are duly nominated for membership in the HRETand the CA. The instant petitions are bereft of any allegation that respondents prevented the party-list groups in the I'jouse from participating in the election of members of the HRETand the CA. Neither does it appear that after the May

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College a/Law. SY 2012-2013 Page 3 0/65

11, 1998 elections, the House barred the party-list representatives from seeking membership in the HRETor the CA. Rather, it appears from the available facts that the party-list groups in the House at that time simply refrained from participating in the election process. The party-list representatives did not designate their nominees even up to the time they filed the instant petitions, with the predict:3bleresult that the House did not consider any party-list representative for election to the HRETor the CA. As the primary recourse of the partylist representatives lies with the House of Representatives, the Court cannot resolve the issues presented by petitioners at this time.

B. NATURE OF FUNCTION
The Electoral Commission is a constitutional creation, invested with the necessary authority in the performance and execution of the limited and specific function assigned to it by the Constitution. Though its composition is constituted by a majority of members of the legislature, it is a body separate from and independent of the legisiature. The grant of power to the Electoral Commission to judge all contests relating election, returns and qualifications of members of the legislature, is intended compl~te and unimpaired. (Angara vs Electoral Commission, 63 Phil 134) to the to be

Request of Justices Melencio Herrera, Cruz and Feliciano to be relieved as members of the HRET (Res. March 19,1991) This resolution should be read in connection with Bondoc vs Pineda, which is discussed under Independence of the Electoral Tribunals. In said request, the three justices asked to be relieved from membership in the HRET. According to them, political factors which have nothing to do with the merits of the case, were blocking the accomplishment of their constitutionally mandated task. They therefore suggested that there should be a provision in the Constitution that upon designation to membership in the Electoral Tribunal, those so designated should divest themselves of affiliation with their respective political parties, to insure their independence and objectivity as they sit in Tribunal deliberations. The SC resolved to direct them to return to their duties in the Tribunal. According to the court, in view of the sensitive constitutional functions of the Electoral Tribunals as the "sole judge" of all contests relating to the election, returns and qualifications of the members of Congress, all members of ,these bodies should be guided only be purely legal considerations in the decision of the cases before them arid that in the contemplation of the Constitution, the members-legislators, thereof, upon assumption of their duties therein, sit in the Tribunal no longer as representatives of their respective political parties but as impartial judges. To further bolster the independence of the Tribunals, the term of office of every member thereof should be considered co-extensive with the corresponding legislative term and may not be legally terminated except only by death, resignation, perman&nt disability, or removal for valid cause, not including political disloyalty. '

Status
In Angara v. Electoral Commission, supra, the SC held that the then an independent body, although attached to Congress, Electoral Commission was

In Suares v. Chief Accountant, the Commission on Audit, (then under the 1935 Constitution) as adjunct of Congress, was ruled to be an independent body, although attached to Congress, and so the salary of its staffers need not be the same as those of the Senate.

Organization (Art. VI, Sec. 19)

The Electoral Tribunal shall be constituted within 30 days after the 2 houses been organized with the election of the President and the Speaker. shall have

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College o/Law. SY 2012-2013 Page 4 0/65

Functions (id, Sec. 17) The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sale judge of all contests relating to the (i) election, (ii) returns, and (iii) qualifications of their respective members. Under Vera v. Avelino, supra, the house may conduct "exclusion proceedings," and by a vote of thel majority deny admission to a member-elect pending the resolution of complaints concerning his election. Even if the Constitution vests in the Electoral Tribunal the power to decide the election, returns and qualifications of member-elect, there may be no electoral contest, and so no occasion for the Electoral Tribunal to exercise its jurisdiction. If, for instance, 5 is the only candidate and he suffers from a disqualification, e.g., citizenship, there would be no election contest since there would be no protestant, and so the jurisdiction of the tribunal could not be invoked. In this case, the house could not be denied the power to pass on this member-elect's qualifications. The opposite is an "expulsion proceeding" where a sitting member is ousted for disorderly behavior by a vote of 2/3 pf all the members of the particular house.
Guerrero v. COMELEC, 336 SCRA 458 (2000) HELD: In the present case, we find no grave abuse of discretion on the part of the COMElECwhen it held that its jurisdiction over case No. SPA 98-277 had ceased with the assumption of office of respondent Farinas as Representative for the first district of lIocos Norte. While the COMElECis vested with the power to declare valid or invalid a certificate of candidacy, its refusal to exercise that power following the proclamation and assumption of the position by Farinas is a recognition of the jurisdictional. boundaries separating the COMElEC and the Electoral Tribunal of the House of Representatives (HRET). Under Article VI, Section 17 of the Constitution, the HRET has sole and exclusive jurisdiction over all contests relative to the election, returns, and qualifications of members of the House of Representatives. Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a member of the House of Representatives, COMElEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRITs own jurisdiction begins. Thus, the COMElEC's decision to discontinue exercising jurisdiction over the case is justifiable, in deference to the HRITs own jurisdiction and functions. Lazatinv. COMELEC, 157 SCRA 337 (1988) HELD: The petition is impressed with merit because petitioner has been proclaimed winner of the Congressional elections in the first district of Pampanga, has taken his oath of office as such, and assumed his duties a Congressman. For this Court to take cognizance of the electoral protest against him would be to usurp the functions of the House Electoral Tribunal. The alleged invalidity of the proclamation (which had been previously ordered by the COMElECitself) despite alleged irregularities in connection therewith, and despite the pendency of the protests of the rival candidates, is a matter that is also addressed, considering the premises, to the sound judgment of the Electoral Tribunal.

C. INDEPENDENCE

OF THE ELECTORAL TRIBUNALS

Although the Electoral Tribunals are predominantly legislative in membership and the provision creating them is found in Article VI on the Legislative Department, it is not correct to say that they are mere adjuncts of the Congress of the Philippines. In fact, in the discharge of their constitutional duties, they are independent of the legislature, and also of the other departments for that matter. In the case Bondoc vs Pineda, 201 SeRA 792, the question raised was whether the House of Representatives could, at the request of the dominant political party therein, change its representative in the HRET, presumably to thwart the promulgation of a decision freely reached by the Tribunal. While acknowledging the independence of the Tribunal as the "sole Judge" of election contests involving the members of the House of Representatives, the SC assumed jurisdiction, precisely to protect that independence. The SC held that

Notes in Political Law Atty. Rene Col/onto, Jr. 1st Semester, P.U.P. Col/ege of Law. SY 2012-2013 Page 5 of 65

the independence of the HRET would become a myth and its proceedings a farce if the House of Representatives of the majority party therein, may shuffle and manipulate the politica) (as distinguished from the judicial) component or the HRET, to serve the interests of the party in power. The resolution of the House of Representatives removing Congressman Camasura from the Hf'ET for disloyalty to the LDP, because he cast his vote in favor of the NP's candidate, Bondoc, is a clear impairment of the constitutional prerogative of the HRETto be the sole judge of the election contest between Bondoc and Pineda. To sanction such interference by the House of Representative in the work of the HRET would reduce the Tribunal to a mere tool for the aggrandizement of the party in power which the three SC justices and the lone minority member would be powerless to stop. A minority party candidate may as well abandon all hope at the threshold of the Tribunal. . As judges, the members of the HRET must be non-partisan. They must discharge their functions with complete detachment, impartiality and independence even independence from the political party to which they belong.
Bondoc v. Pineda, 201 SCRA 792 (1991)

FACTS: Pineda (LDP) and Bondoc (NP) both ran as congressional reps for the 4th district of Pampanga. Pineda won but Bondoc filed a protest in the House of Reps Electoral Tribunal (HRET), which is composed of 9 members, 3 of whom are SCjustices, and the remaining 6 are members of the House chosen on the basis of proportional representation from the political parties & the parties or organizations registered under the partylist system represented therein. The HRETdecided in favor of Bondoc. Cong. camasura, an LDP,voted in favor of Bondoe. Before Bondoc could be proclaimed, the LDP expelled camasura as member of the party. The 3 justices who also voted for Bondoc asked to be relieved from their assignment in the HRET because the withdrawal of camasura as HRETrep of LDP in effect was a way of aborting the proclamation of Bondoc (NP). [Request of Justices Melencio Herrera, Cruz and Feliciano to be relieved as members of the HRET(Res. March 19,1991)] ISSUES: 1. May the House of Reps at the request of the dominant political party therein, change the party's representation in the HRETto thwart the promulgation of a decision freely reached by the tribunal in an election contest pending therein? 2. May the Supreme Court review and annul that action of the House?
HELD: as to Issue #1:

1. No. The use of the word "SOLE"in both Sec. 17 of Art. VI of the 1987 Consti & Sec. 11 of Art. VI of the 1935 Consti underscores the EXCLUSIVE jurisdiction of the HRET as judge of contests relating to the ELECTION, RETURNS& QUAUFICATIONSof the members of the House (Robles v. HRET, GR 88647,1990). The tribunal was crebted to function as a NON-PARTISANcourt although 2/3 of its members are politicians. It is a NONPOUTICAL body in a sea of politicians x x x. To be able to exercise exclusive jurisdiction, the HRET must be INDEPEN DENT. Its jurisdiction to hear and decide congressional election contests is not shared by it with the Legislature nor with the courts. 2. As judges, the members of the tribunal must be NON-PARTISAN. They must discharge their functions with complete detachment, impartiality, & independence- even independence from the political party to which they belong. Hence, DISLOYALTYTO PARTY & BREACHOF PARTYDISCIPUNE are NOT VAUD grounds for the expulsion of a member of the tribunal. In expelling Congo camasura from the HRET for having cast a "conscience vote" in favor of Bondoc, based strictly on the result of the examination & appreciation of the ballots & the recount of the votes by the tribunal, the house committed a grave abuse of discretion, an injustice, and a violation of the Constitution. Its resolution of expulsion against camasura is null & void. As to issue #2: Yes. The power & duty of the courts to nullify, in appropriate cases, the actions of the executive & legislative branches of the Govt., does not mean that the courts are superior to the President & the legislature. It does mean though that the judiciary may not shirk the "irksome task" of inquiring into the constitutionality & legality of legislative or executive action when a justiciable controversy is brought before the courts 'iy someone who has been aggrieved or prejudiced by such action, as in this case. It is "a plain exercise. of the judicial power, that power to hear and dispose of a case or controversy properly brought before the court, to the determination of which must be brought the test & measure of the law (Vera II. Ave/ino, 77 Phil 192). .

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 6 of 65

D. POWERS
In the earlier case of Angara v. Electoral Commission (63 respondent body had the exclusive right to prescribe against those earlier adopted by the legislature itself, contests under its jurisdiction. This ruling was recently House Electoral Tribunal, 168 SCRA 391. The SC held that:

Phil 139), it was held that the its own rules of procedure, as in connection with the election affirmed by the SC in Lazatin v.

!
-The power of the HRET, as the sole judge of all contests relating to the election, returns and qualifications of the Members of the House of Representatives, to promulgate rules and regulations relative to matters within its jurisdiction, including the period for filing election protests before . it, is beyond dispute. Its rule making power necessarily flows from the general power granted to it by the Constitution. This is the import of the case Angara vs Electoral Commission. In such case, the SC held that the creation of the Electoral Commission carried with it ex necesitate rei the power regulative in character to limit the time within which protests intrusted to its cognizance should be filed. Where a general power is conferred, every particular power necessary for the exercise of the one or the performance of the other is also conferred. In 'the absence of any further constitutional provision relating to the procedure to be followed in filing protests before the Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the proper exercise of its !exclusive power to judge all contests relating to the election, returns and qualifications of the members of the legislature, must be deemed by necessary implication to have been lodged also in the Electoral Commission. Vilando vs. HRET, GR Nos. 192147 & 192149, August 23, 2011 HELD: Citizenship, being a continuing requirement for Members of the House of Representatives, however, may be questioned at anytime. The HRET has jurisdiction over quo warranto petitions, specifically over cases challenging ineligibility on the ground of lack of citizenship.

E. JUDICIAL REVIEW OF DECISIONS OF ELECTORAL TRIBUNALS

Co v. HRET, 199 SCRA 692 (1991) FACTS: Co, Balinquit & Ong ran for representative of the 2nd legislative district of Northern samar in the May 11, 1987 elections. Ong won but pets (Co & Balanquit) protested Ong's election on the ground of noncitizenship. The HRETfound for Ong. HELD:' 1. Judgments of electoral tribunal are beyond judicial interference save only in the exercise of the Court's so-called extraordinary jurisdiction, x x x upon a determination that the tribunal's decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or upon a clear showing of such arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated ERROR, manifestly constituting such grave abuse of discretion that there has to be a remedy for such abuse. 2. In the absence of a showing that the HRET has committed grave abuse of discretion amounting to lack of jurisdiction, the Court cannot exercise its corrective power. Vilando vs. HRET, GR Nos. 192147 & 192149, August 23, 2011 HELD: Well-settled is the principle that the judgments of the HRETare beyond judicial interference. The only instance where this Court may intervene in the exercise of its so-called extraordinary jurisdiction is upon a determination that the decision or resolution of the HRETwas rendered without or in excess of its jurisdiction, or with grave abuse of discretion or upon a clear showing of such arbitrary and improvident use of its power to constitute a denial of due processof law, or upon a demonstration of a very clear unmitigated error, manifestly constituting such grave abuse of discretion that there has to be a remedy for such abuse.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law. SY 2012-2013 Page 7 of 65

6. COMMISSION ON APPOINTMENTS Art. VI, Sec. 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex: officio Chairman, twelve senators, and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented ,!therein. The Chairman of the Commission shall not vote, except in .case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority votes of all the Members.

Id., Sec. 19.

The Electoral Tribunals and the Commission on Appointments shall be constituted within thirty days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all. its Members, to discharge such powers and functions as herein conferred upon it.

Composition by proportional representation has always been the rule even under the 1935 Constitution. And rightly so. For unlike the Electoral Tribunal which performs the essentlially neutral function of adjudication, the Commission on Appointments performs the essentially political function of appointment. The distribution of political parties in the two Houses must thus be reflected proportionately in the Commission. Since membership in the Commission on Appointments is based on party affiliation, then a defection from one party to another changes the proportion in the respective houses (which) is a valid ground for the reorganization of the commission .. However, a mere temporary alliance, an agreement between and among members coming from different parties to act in a concerted manner only on some issues, but without a change in party affiliation, does not justify a call to reorganize the commission on the ground that there is no longer proportional represen.tation. So the SC ruled in
Cunallllll v. Tan, 115 Phil 7 (1962).

In DlIza v. Singson, 180 SCRA 496, the petitioner questioned his replacement in the Commission on Appointments, insisting that his designation thereto as a representative of thel Liberal Party was permanent and could not be withdrawn. For his part, the respondent contended that he could be validly be named in the petitioner's place in view of the political realignment in the House following the reorganization of the LDPto which he belonged. Both invoked the earlier Cunanan vs Tan case, where the SC had held that the political affiliations in the two Houses of Congress should be reflected in their respective representations in the Commission of Appointments. The petitioner claimed that the formation of the LDP was merely a temporary development whereas the respondent claimed that it had permanently altered the political composition of the House. Ruling in favor of the respondent, the SC declared that petitioner's argument is based on the non-registration of the LDP, which he claims has not provided the permanent political realignment to justify the questioned reorganization. However, the COMELECthen granted the petition of the LDP for registration as a political party. Petitioner then claims that registration is not sufficient and that the political party must pass the test of time. Under this theory, a registered party obtaining the majority of the seats will not be entitled to representation in the Commission on Appointments as long

Notes in Political Law Atty. Rene Callanta, Jr. 1s, Semester, P.u.P. College a/Law. SY 2012-2013 Page 8 0/65

as it was organized only recently and has not yet aged. followed, only the Liberal Party shall pass such test.

If such argument is to be

The House of Representatives therefore has the authority to change its representation in the Commission of Appointments to reflect at any time the changes that may transpire in .the political alignments of its membership. It is understood that such changes must be permanent and do not include the temporary alliances or factional divisions not involving severance of political loyalties or formal disaffiliation and permanent shifts of allegiance from one political party to another. .
Coseteng v. Mitra, 187 SCRA 377 (1990) FACTS: During the 1987 Congressional elections, Coseteng was the only candidate elected under the KAIBA 1 party. "Of the 12 elected to the Commission on Appointments, Roque Ablan of the KBL, represented the Coalesced Minority. When the LDP was organized a year later, the House Committees including the House representation in the Commission on Appointments had to be reorganized. Coseteng requested Mitra that she be appointed a member of the CA as a representative of KAIBA. Ablan was however retained as the 12th member representing the House minority. Coseteng filed a petition to declare null and void the appointment of the members of the CA on the theory that their election to the CAviolated the constitutional mandate of proportional representation.
HELD : The petition should be dismissed not because it raises a political question, which it does not, but because the revision of the House representation in the CA is based on proportional representation of the political parties therein.

The issue is justiciable. The legality, and not the wisdom, of the manner of filling the CA, is justiciable. Even if it were a political question, such would still come within judicial review on the issue of whether there was grave abuse of discretion amounting to excess or lack of jurisdiction. The cOfllPosition was based on proportional representation of the political parties therein. The other minority parties 'are bound by the majority's choices. Even if KAIBA were an opposition party, its lone member represents only .4% of the House, thus she is not entitled to one of the 12 seats. The other representatives to the CA were duly elected by the House (not by their party) as provided in Art. VI, Sec. 18. The validity of their election to the CA - eleven from the CoalescedMajority and one from the coalesced Minority - is unassailable. Guingona v. Gonzales, 214 SCRA 789 (1993) FACTS: As a result of the 1992 senatorial elections, the LDPwas entitled to 7.S seats in the CA, the NPCto 2.5, the LAKAS-NUCD to 1.5 and the LP-PDP-LABAN to .5. The problem arose as to what to with the 1/2 to which each of the parties is entitled. The LDP majority converted a fractional half-membership to a whole membership (7.5 + .5) to be able to elect senator Romulo. In so doing, one other party's fractional representation in the CA was reduced. This is clearly a violation of Sec. 18, Art. VI because it is no longer based on proportional representation of the political parties. Senator Tanada claimed that he has a right to be elected as member of the CA because of the physical impossibility of dividing a person (need to round off.5 to one senator) and because as the sale representative of his party, his party is entitled to representation.

!
HELD: The provision of Section 18 on proportional representation is mandatory in character and does not leave

any discretion to the majority party in the senate to disobey or disregard the rule on proportional representation. No party can claim more than what it is entitled to under such rule. section 18 also assures representation in the CA of any political party who succeeds in electing members to the Senate, provided that the number of senators so elected enables it to put a representative in the CA. Therefore, in the senate, a political party must at least have 2 duly elected senators for every seat in the C4. The SC does not agree that it is mandatory to elect 12 Senators to the CA. What the Constitution requires is that there be at least a majority of the entire membership. The Constitution does not require the election and presence of 12 senators and 12 members of the House in order that the Commission may function. Do away with the fractional differences! Do not round off ! The election of Senator Romulo and Tanada as members of the CA was clearly a violation of Art. VI, Sec. 18.

1st Semester,

Notes in Political Law Atty. Rene Callanta, Jr. P.U.P. College of Law. SY 2012-2013 Page 9 of 65

Function (Art. VII, Sec. 16) The Commission shall confirm or approve nominations made by the President of certain public officers named by the Constitution or by law: 1. heads of the executive departments 2. ambassadors, other public ministers, and consuls 3. officers of the Armed Forces from the rank of colonel or naval captain 4. other officers whose appointments are vested in him in this Constitution a. Chairman and members of 3 Constitutional Commissions b. regular members of the Judicial and Bar Council c. members of the Regional Consultative council . Sessions and Procedure (Sees. 18 & 19) The Cfpmmission on Appointments shall meet to discharge its powers and functions only while the Congress is in session. The meeting may be called by (a) the Chairman, or (b) a majority of all its members. The Chairman of the Commission does not vote, except to break a tie. The Commission shall act on all appointments submitted to it within 30 session days of the Congress from their submission. The Commission rules by a majority vote of all its members. Regular appointment Regular appointment takes place when the President appoints an officer whose appoinment requires confirmation by.the Commission, while Congress is in session. The officer -so appointed cannot assume office at once. The President must first nominate him to the Commission. Then, the Commission shall act on all appointments submitted to it within 30 session days of the Congress from their submission (Art. VI, sec. 18). Failure to act within the period is tantamount to disapproval of the nomination, since the Constitution requires positive action by the Commission. If the Congress or the Commission itself adjourns without taking any action on the nomination, again it is deemed disapproved (or bypassed). If the Commission approves the nomination, the Office of the President makes an "issuance of commission." Only then can the appointeeassume office. Recess appointment On the other hand, recess appointment takes when Congress is not in session. (This is also known as ad-interim appointment, but the latter term is equivocal because it can be used in 2 senses: (i) midnight appointment, which happens when the President makes an appointment before his term expires, whether or not this is confirmed by the Commission on Appointments, and (ii) recess appointment; which happens when the President makes appointment while Congress is in recess, whether or not his term is about to expire.) Unlike regular appointment, the ad-interim appointment made by the President is complete in itself, and thus effective at once, even without confirmation. But t~is appointment has only temporary effect. When Congress convenes, the Commission would have to act on the ad interim appointment by confirming it (in which case the appointment becomes permanent) or disapproving it by means of a positive failure to act on the appointment (in which case the appointment is immediately terminated). According to the Constitution, the President shall have the power to make appointment during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments (which can only be done when Congress is in session (Art. VI, Sec. 19) or until the

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, pu.p College o/Law. SY 2012-2013 Page 100/65

next adjournment of the Congress (if the Commission fails to act earlier). (Art. VII, Sec. 16,
par. 2).

7. LEGISLATIVE POWER AND PROCESSOF CONGRESS A. GENERAL PLENARY POWERS Art. VI, Sec. 1. The legislative power shall be vested in the Congress of the Philippines, which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

B. LIMITATIONS ON THE LEGISLATIVE POWER (1) Substantive limitations

:l.~
,
.

(a) Express substantive limitations

1) The Bill of Rights Art. III. Bill of Rights.

The freedom of individuals are addressed as limitations to the power of Congress to legislate. Thus, the provisions of the Bill of Rights begin with the phrase "No law shall be passed".

2) Appropriation Laws IArt. VI, Sec. 29. (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. Art. VI, Sec. 25. (1) The Congress may not increase the appropriation recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law.
(2) No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriations therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates . . (3)

The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for ,other departments and agencies. (4) A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein.
(5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 11 of65

appropriations law for their respective offices from savings in other items of their respective appropriations. (6) Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law. (7) If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the e!"suing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress. General Principle No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. (Art. VI, Sec. 29(1)]. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in the House, but the Senate may propose or concur with amendments (Sec. 24). (The reason is that the House is the more popular chamber of Congress.) General Appropriation The President shall submit to Congress, within 30 days from the opening of its regular session, as the basis of the general appropriations bill, a budget of (a) expenditures, and (b) sources of financing, including receipts from existing and proposed revenue measures. (Art. VII, Sec. 22).
1

The form, content, and manner of preparation of the budget shall be prescribed by law.
(Art. VI, Sec. 25(1), 2nd sentence{.

The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. No provision or enactment shall be embrace in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates. (Art.
VI, Sec. 25(2)]

The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. If, by the end of the fiscal year, the Congress shall have failed to pass the general approiDriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted, and shall remain in force and effect until the general appropriations bill is passed by the Congress. (Art. VI, Sec. 25(7)] Special Appropriation A special appropriations bill shall (a) specify the purpose for which it is intended, and (b) supported by funds, actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein. (Art. VI, Sec. 25(4)] (A special appropriations bill may be proposed to supply a lack or meet a new need, like a special election. In the case of a special law to elect the Pr~sident and Vice-President,

I I

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 12 of 65

however, the requirements of the sections are specifically exempted by the Constitution in Art. VII, Sec. 10.) Transfer of funds already appropriated No law shall be passed authorizing any transfer of appropriations. However, the President, President of the Senate, Speaker of the House, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commission may, by law, be authorized to "augment" any item in the general appropriatiqns law for their respective offices, from "savings" in other items of their respective appropriations. {Art. VI, Sec. 25(5)] Discretionary funds appropriated for particular officials shall be disbursed only for public purposes, to be supported by appropriate vouchers, and subject to such guidelines as may b.eprescribed by law. {Art. VI, Sec. 25(6)] In Demetria v Alba, supra, it was held that Sec. 44 of the Budget Act of 1977 (BP 1177) granting the President the blanket authority to transfer funds from one department to another, with or without savings, is unconstitutional. Prohibited appropriation to enforce the Separation of Church and State No public money or or indirectly, for the sectarian institution, religious teacher, or property shall be appropriated (applied, paid, or employed), directly use, benefit, or support of any religion (sect, church, denomination, or any system of religion) or of any priest (preacher, minister, other religious dignitary).

Exception: When such priest, et. aI., is assigned to (a) the AFP; (b) any penal institution; (c) any government orphanage; or (d) any leprosarium. {Art. VI, Sec .. 29(2)] Appropriations laws (the spending powers of Congress (ido, Sec. 25) are tied up with Tax laws (the power to raise revenues (id., Sec. 28). They are two indispensable sides of a coin. They are tied up by the principle that no money shall be paid out of the Treasury except in pursuance of an appropriation made by law (ido,Sec. 29(1).

3) Tax laws Id., Sec. 28. (1) The rule of taxation shall be unifOrm and equitable. The Congress shall evolve a progressive system of taxation.
Cruz: Uniformity in taxation means that persons or things b~longing to the same class shall be taxed at the same rate. It is distinguished from equality in taxation in that the latter requires the tax imposed to be determined on the basis of the value of the property. The present Constitution adds that the rule of taxation shall also be equitable, which means that the tax burden must be imposed according to the taxpayer's capacity to payl.

Id., Sec. 28 (2) The Congress may, by law, authorize the President to fix, within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (3) . Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly;, and exclusively

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, PU.P. College of Law. SY 2012-2013 Page 13 of 65

used for religious, charitable, exempt from taxation.

or educational

purposes shall be

(4) No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress.

Art. XIV, Sec. 4 (3) All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes. and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law. iProprietary educational institutions, including those cooperatively 'owned, may likewise be entitled to such exemptions subject to the limitations provided by law including restrictions on dividends and provisions for reinvestment.

rJ

Art. VI, Sec. 29. (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. (2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or governmen,t orphanage or leprosarium.
!

(3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government.

4) Jurisdiction of the Supreme Court Art. VI, Sec. 30. No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided i.., this Constitution without its advice and concurrence. Cruz: The purpose is to prevent further additions to the present tremendous case load of the SC which includes the backlog of the past 2 decades. ! 5) Title of royalty Art. VI, Sec. 31. No law granting a title of royalty or nobility shall be enacted. Cruz: The purpose of this prohibition is to preserve the republican and democratic nature of our society by prohibiting the creation of privileged classes with special perquisites not available to the rest of the citizenry.

f.

'.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 14 of65

(b) Implied substantive limitations

(i) Non-delegation of legislative powers As a general rule, legislative powers cannot be delegated, what can be delegated is the execution of the laws under acceptable standards limiting discretion of the executive. The Constitution, however, provides certain specific exemptions.

A. Delegation to the President 1) Emergency powers: Art. VI, Sec. 23. xxx (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period, and subject to such restrictions as it may prescribe, to exercise powers necessary . and proper to carry out a declared national policy. Unless sooner. withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof ..

2) Certain taxing powers [Art. VI, Sec. 28(2)]

Powers)

(see Delegation of Tax

Art. VI, Sec. 28. xxx (2) The Congress may, by law, authorize the President to fix, within specified limits, and subject to such limitations and restrictions as it !may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.

B. Delegation to Local Governments Tax powers: Art. X, Sec. 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.
pelaez.v. Auditor General, 15 5CRA 569 (1965)
FACTS: At issue here was the validity of Sec. 68 of the RevisedAdministrative Code empowering the President of the Philippines to create, merge, divide, abolish or otherwise alter the boundaries of municipal corporations. Pelaez contended that it was an invalid delegation of legislative power. The govt. argued that it was not, invoking the earlier case of cardona vs Binangonan, 36 Phil 547, where the power of the governor-general to transfer territory from one municipality to another was sustained. HELD: The SC upheld Pelaez. It ruled that the completeness test and the sufficient standard test must be applied together or concurrently. The SC declared that the cardona case involved not the creation of a new municipality but merely the transfer of territory from one municipality to another. The power to fix such boundaries of existing municipalities may partake of an administrative nature but the creation of municipal corporations is strictly legislative in nature.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law. SY 2012-2013 Page 15 of 65

Although Congress may delegate to another branch of the Govt. the power to fill details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself-- it must set forth therein the policy to be executed, carried out or implemented by the delegate -- and (b) to fix a standard -- the limits of which are sufficiently determinate or determinable-- to which the delegate must conform in the performance of his functions. Indeed, without a statutory declaration of policy, which is the essence of every law, and without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. Sec. 68 of the RACdoes not meet these well settled requirements for a valid tlelegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects of undue delegation.

Ic. Delegation to the People

Initiative and referendum powers: Art. VI, Sec. 32. The Congress, shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws, or approve or reject any act or law or part thereof, passed by the Congress or local legislative body, after the registration of a petition therefore, signed by at least ten per centum of the total number of registered voters with every legislative district represented by at least three per centum of the registered voters thereof.

(ii) Prohibition against passage of irrepealable laws It is akiomatic that all laws, even the Constitution itself, may be repealed or amended. No one can bind future generations to a law.

C. QUESTION HOUR Art. VI, Sec. 22. The heads of departments may upon their own initiative with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the Isecurity of the State or the public interest so requires and the .President so states in writing, the appearance shall be conducted in executive session. The heads of department shall appear before, and be heard, by any house, on any matter pertaining to their departments: (i) upon their own initiative, with the consent of the President; or (ii) upon request of either house, as the rules of that house shall provide. (This is a carryover of the 1973 Constitution, a feature of a parliamentary system.)

1st

Notes in Political Law Atty. Rene Callanta, Jr. Semester, P.U.P. College o/Law. SY 2012-2013 Page 160/65

Written questions shall be submitted to the presiding officer of the house at least 3 days before the scheduled appearance. The purpose is to enable the cabinet member to prepare. Interpellations shall not be limited to written questions, but may cover matters related thereto. It is submitted that a member of the Cabinet may not refuse to appear before the house. If he refuses a summons, he can be cited for contempt. If the President forbids his appearance, still he must appear if asked by Congress. Under' 1935, it was an excuse for the President to certify that the interest of public security justifies the refusal; under 1987, the remedy is an executive session not refusal to appear. Whentthe security of the State or the public interest so requires, and the President so states in writing, the appearance shall be conducted in executive session. (It must be noted then that the President cannot disallow the appearance but can only ask for a closed door session) ..
senate of the Philippines v. Ermita, GR No. 169777, April 20, 2006
FACTS: In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the executive department, bureaus, and offices including those employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP). On September 21 to 23, 200S, the Committee of the Senate as a whole issued invitations to various officials of the Executive Department for them to appear on September 29, 200S as resource speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group (hereinafter North Rail Project). On September 28, 200S, the President issued E.O. 464, "ENSURING OBSERVANCE OF THE PRINOPLE OF SEPARATION OF POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER PURPOSES." Section 1 states among others that "all heads of
I

departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress"
On October 11, 200S, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained the same with its continued enforcement since it directly interferes with and impedes the valid exercise of the Senate's powers and functions and conceals information of great public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional. HELD: Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of the President prior to appearing before Congress. There are significant differences between the two provisions, however, which constrain this Court to discuss the validity of these provisions separately.

!
Section' 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by any official whether they are covered by E.O. 464. The President herself has, through the challenged order, made the determination that they are. Further, unlike also Section 3, the coverage of department heads under Section 1 is not made to depend on the department heads' possession of any information which might be covered by executive privilege. In fact, in marked contrast to Section 3 vis-a-vis Section 2, there is no reference to executive privilege at all. Rather, the required prior consent under Section 1 is grounded on Article VI, Section 22 of the Constitution on what has been referred to as the question hour. X x x Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of Article VI. Section 22 which provides for the question hour must be interpreted vis-a-vis Section 21 which provides for the power of either House of Congress to "conduct inquiries in aid of legislation." X x x

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law. SY 2012-2013 Page 170f65

A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of leoislation. X x x In the context of a parliamentary system of qovernment. the "question hour"has a definite meaning. It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts and the operation of the government, corresponding to what is known in Britain as the question period. There was a specific provision for a question hour in the 1973 Constitution which made the appearance of ministers mandatory. The same perfectly conformed to the parliamentary system established by that Constitution, where the ministers are also members of the legislature and are directly accountable to it. An essential feature of the parliamentary system of government is the immediate accountability of the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the National Assembly for the program of government and shall determine the guidelines of national policy. Unlike in the presidential system. where the tenure of office of all elected officials cannot be terminated before their term expired, the Prime Minister! and the Cabinet remain in office only as long as they enjoy the confidence of the National Assembly. The moment this confidence is lost the Prime Minister and the Cabinet may be changed. The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour in the present Constitution so as to conform more fully to a system of separation of powers. To that extent, the question hour, as it is presently understood in this jurisdiction, departs from the question period of the parliamentary system. That department heads may not be required to appear in a question hour does not. however. mean that the legislature is rendered powerless to elicit information from them in all circumstances. In fact, in light of the absence of a mandatory question period, the need to enforce Congress' right to executive information in the performance of its legislative function becomes more imperative. As Schwartz observes: Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that the Congress has the right to obtain information from any source - even from officials of departments and agencies in' the executive branch. In the United States there is, unlike the situation which prevails in a parliamentary system such as that in Britain, a clear separation between the legislative and executive branches. It is this

very separation that makes the congressional right to obtain information from the executive so essential, if the functions of the Congress as the elected !representatives of the people are adequately to be carried out. The absence of close
. rapport between the legislative and executive branches in this country. comparable to those which exist under a parliamentary system, and the nonexistence in the Congress of an institution such as the British guestion period have perforce made reliance by the Congress upon its right to obtain information from the executive essential. if it is intelligently to perform its legislative tasks. Unless the Congress possesses the right to obtain executive information, its power of oversight of administration in a system such as ours becomes a power devoid of most of its practical content, since it depends for its effectiveness solely upon information parceled out ex gratia by the executive. Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One soecifically relates to the oower to conduct inquiries in aid of legislation. the aim of which is to elicit information that may be used for legislation, while the other pertailis to the power to conduct a question hour. the objective of which is to obtain information in pursuit of Congress' oversight function. When Congress merely seeks to be informed on how department heads are implementing the statutes which it has iss4ed, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory for the same reasons stated in Arnault. In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deiiberations of the Constitutional Commission. Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22 find their basis in the winciole of separation of powers. While the executive branch is a co-equal branch of the legislature, It cannot frustrate the power of Congress to legislate bv refusing to complv with its demands for information.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College of Law. SY 2012-2013 Page 18 of 65

When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power - the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment It is based on her being the highest official of the executive branch, and the due respect accorded to a co-equal branch of government which is sanctioned by a long-standing custom. By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the Presidency,judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis not only of separation of powers but also on the fiscal autonomy and the constitutional independence of the judiciary. This point is not in dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief Justice. Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now proceeds to pass on the constitutionality of Section 1 of E.O. 464. Section 1. in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of anv reference to inquiries in aid of legislation. must be construed as limited in its application to appearances of deoartment heads in the question hour contemplated in the provision of said Section 22 of Article 1IT. The reading is dictated by the basic rule of construction that issuancesmust be interpreted, as much as possible, in a way that will render it constitutional. The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the question hour, is valid on its face. For under Section 22, Article VI of the Constitution, the appearance of department heads in the question hour is discretionary on their part. Section 1 cannot however. be applied to appearances of department heads in inquiries in aid of legislation. Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary. validi~of Sections 2 and 3 Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP,and all senior national security officials who, in the judgment of the heads of offices designated in the same section (i.e. department heads, Chief of Staff.of the AFP, Chief of the PNP,and the National Security Adviser), are "covered by the executive privilege." The enumeration also includes such other officers as may be determined by the President. Given the title of Section.2 - "Nature, Scope and Coverageof Executive Privilege" _., it is evident that under the rule of ejusdem generis, the determination by the President under this provision is intended to be based on a similar finding of coverage under executive privilege. . En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that j!xecutive privilege actually covers persons: Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to specific categories of information and not to categories of persons. In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive privilegEj,the reference to persons being "covered by the executive privilege" may be read as an abbreviated way of ,'sayingthat the person is in possession of information which is, in the judgment of the head of office concerned, privileged as defined in Section 2(a). The Court shall thus proceed on the assumption that this is the intention of the challenged order. Upon a determination by the designated head of office or by the President that an official is "covered by the executive privilege," such official is subjected to the requirement that he first secure the consent of the President prior to appearing before Congress. This requirement effectively bars the appearance of the official concerned unless the same is permitted by the President. Theproviso allowing the President to give its consent means nothing more than that the President may reverse a prohibition which already exists by virtue of E.O. 464. Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the President under E.O. 464, or by the President herself, that such official is in' possession of information that is

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 190f65

covered by executive privilege. This determination then becomes the basis for the official's not showing up in the legislative investigation. In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be construed as a declaration to Congress that the President, or a head of office authorized by the President, has determined that the requested information is privileged, and that the President has not reversed such determination. Such declaration, however, even without mentioning the term "executive privilege:' amounts to an implied claim that the information is being withheld by the executive branch, by authoritY of the President, on the basis of executive privilege. Verily, there is an implied claim of privilege. The letter dated September 28, 200S of respondent Executive Secretary Ermita to Senate President Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads: In connection with the inquiry to be conducted by the Committee of the Whole regarding the 'Northrail Project of the North Luzon Railways Corporation on 29 September 200S at 10:00 a.m., .please be informed that officials of the Executive Department invited to appear at the meeting wiil not be abie to attend the same without the consent of the President. pursuant to Executive Order No. 464 (s. 200S). entitled "Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public Officials Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes". Said officials have not secured the required consent from the President. (Underscoring supplied) The letter does not explicitly invoke executive privilege or that the matter on which these officials are being requested to be resource persons falls under the recognized grounds of the privilege to justify their absence. Nor does it expressly state that in view of the lack of consent from the President under E.O. 464, they cannot attend the hearing. Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the order means that a determination has been made, by the designated head of office or the President, that the invited official possessrs information that is covered by executive privilege. Thus, although it is not stated in the letter that such determination has been made, the same must be deemed implied. Respecting the statement that the invited officials have not secured the consent of the President, it only means that the President has not reversed the standing prohibition against their appearance before Congress. Inevitably, Executive Secretary Ermita's letter leads to the conclusion that the executive branch, either through the President or the heads of offices authorized under E.O. 464, has made a determination that the information required by the Senate is privileged, and that, at the' time of writing, there has been no contrary pronouncement from the President. In fine, an implied claim of privilege has been made by the executive. While there is no Philippine case that directly addressesthe issue of whether executive privilege may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in the possessionof the executive may validly be claimed as privileged even against Congress. Thus, the case holds: There is no claim by PEAthat the information demanded by petitioner is privileged information rooted in the separation of powers. The information does not cover Presidential conversations, correspondences, or discussions during closed-door cabinet meetings which, like. internaldeliberations of the Supreme Court and other collegiate courts, or executive sessions of either ,house of Congress, are recognized as confidential. This kind of information cannot be pried 'open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments,free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the instant case.
Section 3 of EO. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions claims of executive privilege. This Court must look further and assessthe claim of privilege authorized by the

Order to determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis, examining the ground invoked therefor and the particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated by the letter of respondent Executive

Secretary quoted above, the implied claim authorized by Section 3 of E.O: 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the information demanded involves military or diplomatic

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 20 of 65

secrets, closed-door cabinet meetings, etc.). While Section 2(a) enumerates the types of information that are covered by the privilege under the challenged order, Congress is left to speculate as to which among them is being referred to by the executive. The enumeration is not even intended to be comprehensive, but a mere statement of what is included in the phrase "confidential or classified information between the President and the public officers covered by this executive order." Certainly, Congress has the right to know why the executive considers the requested information privileged. It does not suffice to merely declare that the President. or an authorized head of office, has determined that it is so, and that the President has not overturned that determination. Such declaration leaves Congress in the dark on how the requested information could be classified as privileged. That the message is couched in terms that, on first impression, do not seem like a claim of privilege only makes it more pernicious, It threatens to make Congress doubly blind to the question of why the executive branch is not providing it with the information that it has requested.

!
A claim of privilege, being a claim of exemption from an obligation to disclose information, clearly asserted. As U,S, v. Reynolds teaches: must, therefore, be

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party, It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a . disclosure of the very thing the privilege is designed to protect, (Underscoring supplied) Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether It falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected. X x x . Due respect for a co-equal branch of government, stating the grounds therefor. X x x moreover, demands no less than a claim of privilege clearly

Upon tHe other hand, Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect, A useful analogy in determining the requisite degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v. u.s. declares: The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself - his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, and to require him to answer if 'it clearly appears to the court that he is mistaken,' However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the priVilege is designed to guarantee. To sustain the privilege. it need on Iv be evident from the

implications of the guestion. in the setting in which it is asked. that a responsive answer to the guestion or an explanation of whv it cannot be answered might be dangerous because injurious disclosure could result." x x.x (Emphasis and underscoring
supplied)
I

The claim of privilege under Section 3 of E.O, 464 in relation to Section 2(b) is thus invalid per se, It is not asserteo. It is merely implied, Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled with an announcement that the President has not given her consent, It is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case. It severely frustrates the power of inquiry of Congress. In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated. No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusiVe on the other branches of government. It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of executive privilege. Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful delegation of authority to the heads of offices in Section 2(b), Petitioner Senate of the Philippines, in particular,

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law. SY 2012-2013 Page 21 of65

cites the case of the United States where, so it claims, only the President can assert executive privilege to withhold information from Congress. Section"2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged, such determination is presumed to bear the President'sauthority and has the effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to
authorize claims of privilege by mere silence. "

Such presumptive authorization, however, is contrary to the exceptional" nature of the privilege. Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The dottrine of executive privilege is thus premised on the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is ''By order of the President, " which means that he personally consulted with her. The privilege being an extraordinary power, it must be

wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score. It follows, therefore, that when an official is being summoned by Congress on a matter which. in his own judgment. might be covered by executive privilege. he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provi~e the President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If. after the lapse of that reasonabie time. neither the President nor the Executive Secretary invokes the privilege. Congress is no longer bound to respect the failure of the official to appear before Congressand may then opt to avail of the necessarylegal means to compel his appearance.

Right to Information
E.G 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern. Petitioners are not amiss in claiming, "however, that what is involved in the present controversy is not merely the legislative power of inquiry, but the right of the people to information. There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congressand not to an inllividual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highiy qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuancetending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be,a matter of public concern. The citizens are thereby denied accessto information which they can use in formulating their own opinions on the matter before Congress - opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression. Thus holds
Valmonte v. Belmonte:

Notes in Political Law Atty. Rene Callanta, Jr . . 1" Semester, P.U.P. College o/Law. SY 2012-2013 Page 22 0/65

. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people's will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issuesand have accessto information relating thereto can such bear fruit. The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense explained above, just as direct as its violation of the legislature's power of inquiry.
Conclusion

Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislatiqm. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must be respected. The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. That is impermissible. For [w]hat republican theory did accomplish...was to reverse the old presumption in favor of secrecy, based on the divine right of kings and nobles, and replace it with a presumption in favor of publicitv, based on the doctrine of popular sovereignty. Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations of government, but we shall have given up something of much greater value - our right as a people to take part in government.

D. LEGISLATIVE INVESTIGATIONS The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid or legislation in accordance with its duly published rules or procedure. The rights of persons appearing in or affected by such inquiries shall be respected.
Art. VI, Sec. 21. Each house or any of its committees may conduct according to its duly published rules of procedures. "inquiries in aid of legislation"

To enforce this right, the SC upheld the power of Congress to hold in contempt a person required to appear before Congress or its committee and answer questions relevant to a matter of legislative interest in the Amault cases. In ATllou/t v. Nozareno, 87 Phil 29 (1950). Arnault was cited for contempt for persistently refusing, after taking the stand, to reveal the name of the person to whom gave the P440,OOO. In connection with the legislative investigation of the Buenavista and Tambobong Real Estates whereby a certain Bert was able to sell the land to the government and realized P1.5 million. The second case of Arnau/t v. Ba/agtas, 97 Phil 350 (1955) arose when he persisted in not giving information, this time about an affidavit which purportedly gave the details surrounding the acquisitions of the estates by Bert and the supposed circumstances under which he gave the amount to a Jess Santos. The Court in both cases, upheld the authority of the Senate to cite him in contempt, and thus dismissed the habeas corpus petitions. When so held in contempt, since the Senate is a continuing body, the contempt seems to be effective even beyond the session during which the contempt was made, held the SC in Arnault, overruling the case of Lopez v. de/os Reyes, 55 Phil 170 (1930), where the Court held

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College of Law. SY 2012-2013 Page 23 of65

that the contempt lasted only for the session and could not be revived in the next session by a mere reapproval of the previous contempt. However, the rights of the persons (a) appearing in, or (b) affected by such inquiries shall be respected. Notable among these rights is the right against "self- incrimil')ation". is granted to those who are compelled to appear. Usually, immunity

Bengzon v. Senate Blue Ribbon Committee, 203 SCRA 767 (1991)

!
Held: In this case, the petitioners sought to restrain the respondent from investigating their participation in the
alleged misuse of govt. funds and the illicit acquisition of properties being claimed by the PCGG for the Republic of the Philippines. The SC granted the petition, holding that the petitioners are impleaded as defendants in a case before the Sandiganbayan, which involves issues intimately related to the subject of contemplated inquiry before the respondent Committee, and that no legislation was apparently being contemplated in connection with the said investigation.

However, the decision failed to consider that the proceeding before the Sandiganbayan was criminal in nature and that the purpose of the legislative investigation was to ascertain the disposition of funds and properties claimed to be public in nature. Its 'findings on this matter could be the subject of legislation although it may not have been expressly stated that such was the purpose of the inquiry .. As observed in the earlier case of Arnault vs Nazareno, 87 Phil 29, the SC is bound to presume that the action of the legislative body was with a legitimate object if it was capable of being so construed, and it has no right to assume that the contrary was intended. ' Menddza, The Use of Legislative Purpose as a Limitation on the Congressional Power of Investigation, 46 PHIL L.J. 707 (1971) A determination that the inquiry is for a "legislative purpose" is not the end, but only the beginning, of the complexity. xxx The idea that Congress has a right to be fully informed in order that it may legislate wisely underlies the exercise of the power to investigate, wi coercive power to compel disclosure. At the same time concern for the fact that unless limited to a "legislative purpose" the power to investigate may be used to harass individuals and invade fundamental rights very early led the US SC to insist on a showing that investigations be "in aid of legislation. " xxx
NORECO v. Sang. Panlunsod of Dumaguete, 155 SCRA 421 (1987)

!
HELD: 'A line should be drawn between the powers of Congress as the repository of the legislative power under the Constitution, and those that may be exercised by the legislative bodies of local government unit, e.g. the Sangguniang Panlungsod of Dumaguete which, as mere creatures of law, possess delegated legislative power. While the Constitution does not expressly vest Congress with the power to punish non-members for legislative contempt, the power has neVertheless been invoked by the legislative body as a means of preserving its authority and dignity (Arnault v. Nazareno, 87 Phil. 29 [1950}); Arnault v. Balagtas, 97 Phil. 358 [1955}), in the same way that courts wield an inherent power to "enforce their authority, preserve their integrity, maintain their dignity, and ensure the effectiveness of the administration of justice." (Commissioner v. Claribel, 127 Phil. 716, 723 [1967); In re Kelly, 35 Phil. 944, 950 [1916}, and other cases). The exercise by Congress of this awesome power was questioned for the first time in the leading case of Arnault v. Nazareno, (87 Phil. 29 [1950}) where this Court held that the legislative body indeed possessed the contempt power. That case arose from the legislative inquiry into the acquisition by the Philippine Government of the Buenavista and Tambobong estates sometime in 1949. Among the witnesses called to examined by the special committee created by a Senate resolution was Jean L. Arnault, a lawyer who delivered a partial of the purchase price to a

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College of Law. SY 2012-2013 Page 24 of 65

representative of the vendor. During the Senate investigation, Arnault refused to reveal the identity of said representative, at the same time invoking his constitutional right against self-incrimination. The Senate adopted a resolution committing Arnault to the custody of the Sergeant-at-Arms and imprisoned "until he shall have purged the contempt by revealing to the Senate ... the name of the person to whom he gave the P440,OOO, as well as answer other pertinent questions in connection therewith." (Arnault v. Nazareno, 87 Phil. 29,43 [1950}). Arnault petitioned for a writ of HabeasCorpus. In upholding the power of Congressto punish Arnault for contumacy, the Coart began with a discussion of the distribution of the three powers of government under the 1935 Constitution. Cognizant of the fact that the Philippines system of government under the 1935 Constitution was patterned after the American system, the Court proceeded to resolve the issue presented, partly by drawing from American precedents, and partly by . acknowledging the broader legislative power of the Philippine Congress as compared to the U.s. Federal Congre!Jswhich shares legislative power with the legislatures of the different states of the American union (Id., pp. 44-45). The Court held: xxx xxx xxx ... (T)he power of inquiry - with process to enforce it - is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which is not infrequently true - recourse must be had to others who possessit. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed. (McGrain vs. Daugherty, 273 U.5., 135; 71 L. ed, 580; 50 A.L.R., 1) The fact that the Constitution expressly gives to Congress the power to punish its Members for disorderly behavior, does not by necessary implication exclude the power to punish for contempt by any person. (Anderson vs. Dunn, 6 Wheaton, 204; 5 L. ed, 242) But no person can be punished for contumacy as a witness before either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire. (Kilbourn vs. IThompson, 26, L. ed., 377.) The Court proceeded to delve deeper into the essence of the contempt power of the Philippine Congress in a subsequent decision (Arnault v. Balagtas, 97 Phil. 358 [1955]) arising from the same factual antecedents: The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative power. How could a legislative body obtain the knowledge and information or, which to base intended legislation if it cannot require and compel the disclosure of such knowledge and information, if it is impotent to punish a defiance of its power and authority? When the framers of the Constitution adopted the principle of separation of powers, making each branch supreme within the realm of its respective authority, it must have intended each department's authority to be full and complete, independently of the other's authority or power. And how could the authority and power become complete if for every act of refusal, /overyact of defiance, every act of contumacy against it, the legislative body must resort to the judicial 'department for the appropriate remedy, because it is impotent by itself to punish or deal therewith, with the affronts committed against its authority or dignity ... (Arnault v. Balagtas, [-6749, July 30,1955; 97 Phil. 358, 370 [1955]). The aforequoted pronouncements in the two Arnault cases, supra, broke ground in what was then an unexplored area of jurisprudence, and succeeded in supplying the raison d'etre of this power of Congress even in the absence of express constitutional grant. Whether or not the reasons for upholding the existence of said power in Congress may be applied mutatis mutandis to a questioned exercise of the power of contempt by the respondent committee of a city council is the threshold issue in the present controversy. The exercise by the legislature of the contempt power is a matter of self-preservation as that branch of the government vested with the legislative power, independently of the judicial branch, asserts its authority and punishes contempts thereof. The contempt power of the legislature is, therefore, sui generis, and local legislative bodies cannot correctly claim to possess it for the same reasons that the national legislature does. The power attaches not to the discharge of legislative functions per se but to the character of the legislature as one of the three independent and coordinate branches of government. The same thing cannot be said of local legislative bodies which are creations of law. To begin with, there is no express provision either in the 1973 Constitution or in the Local Government Code (Batas Pambansa BIg. 337) granting local legislative bodies, the power to subpoena witnesses and the power to
I

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 25 of 65

punish non-members for contempt. Absent a constitutional or legal provision for the exercise of these powers, the only possible justification for the issuance of a subpoena and for the punishment of non-members for contumacious behavior would be for said power to be deemed implied in the statutory grant of delegated legislative power. But, the contempt power and the subpoena power partake of a judicial nature. They cannot be implied in the grant of legislative power. Neither can they exist as mere incidents of the performance of legislative functions. To allow local legislative bodies or ijdministrative agencies to exercise these powers without express statutory basis would run afoul of the doctrine of separation of powers. Senate of the Phil. v. Ermita, GR No. 169777, April 20, 2006
HELD: E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress of the information in the possession of these officials. To resolve the question of whether such withholding of information violates the Constitution, consideration of the general power of Congress to obtain information, otherwise known as the power of inquiry, is in order.

The power of inquiry The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads: SECTION21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation In accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution .except that, in the latter, it \lests the power of inquiry In the unicameral legislature established therein - the Batasang Pambansa - and its committees. The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno, a case decided in 1950junder that Constitution, the Court already recognized that the power of inquiry is inherent in the power to legislate.
Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong Estates by the Rural ProgressAdministration. Arnault, who was considered a leading witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to answer the questions of the senators on an important point, he was, by resolution of the Senate, detained for contempt. Upholding the Senate's power to punish Arnault for contempt, this Court held:

Although there is no provision in the Constitution expressiy investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry - with orocess to enforce jj; - is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information - which is not infrequently true - recourse must be had to others who do possess it. Experience has shown that mere requests for such linformation are often unavailing, and also that information which is volunteered is not always 'accurate or complete; so some means of compulsion is essential to obtain what is needed. That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power. to legislate. The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one. It foHows that the operation of government, being a legitimate subject for legislation, is a proper subjectfor investigation. Thus, the Court found that the Senate investigation of the government transaction involved in Arnaultwas a proper exercise of the power of inquiry. Besides being related to the expenditure of public funds of which Congress is the guardian, the transaction, the Court held, "also involved government agencies created by Congressand officers whose positions it is within the power of Congressto regulate or even abolish."

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.o.P. College of Law. SY 2012-2013 Page 26 of 65

Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold that the power of inquiry does not extend to executive officials who are the most familiar with and informed on executive operations. As discussed in Amault, the power of inquiry. "with process to enforce it." is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof. As evidenced by the American experience during the so-called "Mccarthy era," however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Court's certiorari powers under Section 1, Article VIII of the Constitution. For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress, Such inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation, Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or House's duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing In or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights. These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if they belong to the executive branch. Nonetheless, there may be exceptional circumstances, none appeari~g to obtain at present, wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting in palpable violations of the rights guaranteed to members of the executive department under the Bill of Rights. In such instances, depending on the particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction. Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of "executive privilege." Since this term figures prominently in the challenged order, it being mentioned in its provisions, its preambular clauses, and in its very titie, a discussion of executive privilege is crucial for determining the constitutionality of E.O, 464.

Executive privile'ge
The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States. Schwartz defines executive privilege as "the power of the Government to withhold information from the public"the courts, and the Congress." Similarly, Rozell defines it as "the right of the President and highlevel executive branch officers to withhold information from Congress, the courts, and ultimately the public." Executive privilege is, nonetheless, not a clear or unitary concept. It has encompassed claims of varying kinds. Tribe, in fact, comments that while it is customary to employ the phrase "executive privilege," it may be more accurate to speak of executive privileges "since presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations." One variety of the privilege, Tribe explains, is the state secrets privilege invoked by u.s. Presidents, beginning with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informer's privilege, or the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations "has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.

Notes in Political Law Atty. Rene Callanta, Jr. 1,t Semester, P.U.P. College of Law. SY 2012-2013 Page 27of65

Tribe's comment is supported by the ruling in In re Sealed case, thus: Since the beginnings of our nation, executive officials have claimed a variety of privileges to .resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our government. Courts ruled early that the executive had a right to withhold documents that might reveal military or state secrets. The courts have also granted the executive a right to withhold the identity of government informers in some circumstances and a qualified right to withhold information related to pending investigations. x x x" . The entry in Black's Law Dictionary on "executive privilege" is similarly instructive regarding the scope of the doctrine. .

!
This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations, and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive' domestic decisional and policy making functions, that is, those documents reflecting the frank expression necessaryin intra-governmental advisory and deliberative communications. That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting. The leading case on executive privilege in the United States is U.s. v. Nixon, decided in 1974. In issue in that case was the validity of President Nixon's claim of executive privilege against a subpoena issued by a district court requiring the production of certain tapes and documents relating to the Watergate investigations. The claim of, privilege was based on the President's general interest in the confidentiality of his conversations and correspondence. The U.s. Court held that while there is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a President's powers. The Court, nonetheless, rejected the President's claim of privilege, ruling that the privilege must be balanced against the public interest in the fair administration of criminal justice. Notably, the Court was careful to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against congressionaldemands for information. Cases in the U.S. which involve claims of executive privilege against Congress are rare. Despite frequent assertion of the privilege to deny information to Congress, beginning with President Washington's refusal to turn over treaty negotiation records to the House of Representatives,the u.s. Supreme Court has never adjudicated the issue. However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year as. Nixon, recognized the President's privilege over his conversations against a congressional subpoena. Anticipating the balancing approach adopted by the u.s. Supreme Court in Nixon, the Court of Appealsweighed the public interest protected by the claim of privilege against the interest that would be served by disclosure to the Committee. Ruling that the balance favored the President, the Court declined to enforce the subpoena. In this jurisdiction, the doctrine of executive privilege was recognized by this Court in A/monte v. Vasquez. A/monte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege: "The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the processof shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x " .
A/monte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not

involve, as expressly stated in the decision, the right of the people to information. Nonetheless, the Court .

Notes in Political Lp.w Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 28 of 65

recognized that there are certain types of information which the government may withhold from the public, thus acknowledging, in substance if not in name, that executive privilege may be claimed against citizens' demands for information. In Chavez v. PCGG, the Court held that this jurisdiction recognizes the common law holding that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters." The same case held that closed-door Cabinet meetings are also a recognized limitation on the right to information. Similarly, in Chavez v. Public Estates Authority, the Court ruled that the right to information does not extend to matters recognized as "privileged information under the separation of powers," by which the Court meant Preside~tial conversations, correspondences, and discussions in closed-door cabinet meetings. It also held that information on military and diplomatic secrets and those affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused were exempted from the right to information. . From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure.

Notes on Legislative Inquiries:

The power of Congress to conduct investigations exists for the primary purpose of enabli~g it to discharge its legislative functions wisely and effectively-to guide and aid Congress in the enactment of laws, their amendments and as well as their repeal. Legislative investigations are carried out in order to ascertain (a) what new legislation is needed (b) the existing law to be repealed and (e) whether a new legislation is effectively accomplishing its purpose with a view of amending it. But in addition to obtaining facts that may be useful in enacting laws, the power of inquiry may be utilized by Congress for the scrutiny of executive action as well as the formation of public opinion. Congressional investigations have the salutary effect of keeping the public informed of what is happening in their government since congressional investigations are given wide publicity by media. Congressional investigative function may be justified under certain prOVIsions of the Constitution which are judicial and executive in nature. In the exercise of the power to confirm appointments, information concerning the qualifications of the appointee may be investigated. The Senate may conduct an investigation into all matters pertinent to the possible ratification of a treaty. The power to inquire is also implied in the authority to impeach officials. Investigatory power is also available when Congress is considering constitutional a,!,endments, or the declaration of the existence of a state of war. The general power of Congress in conducting investigations may be roughly divided into two parts, one being its inquisitorial power and the other its punitive power. The inquisitorial powers of Congress, on the one hand, consists of its authority to summon witnesses, to extract testimony from them, and compel the production of papers, documents and other information. The' punitive power of the Legislature, on the other hand, consists of its authority deal directly, by way of contempt proceedings, with acts which inherently obstruct prevent the discharge of its legislative duties. The correlative the legislature .power to punish a prevaricating witness for contempt rests on the right to self-preservation and is founded on "the right to prevent acts which, to or

of in

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 29 of65

and of themselves, inherently obstruct or prevent the discharge' of legislative duties, or refusal to do that which there is an inherent legislative power to compel in order that legislative functions may be performed." This punitive power, however, terminates when the legislative body ceases to exist upon its final adjournment. Thus, unlike the Senate which is a continuing body, the term of whose members expire at different times, the life of the House of Representatives terminates upon its final adjol,Jrnment.

LIMITATIONS 1) !The investigation must be in aid of legislation. Congress cannot conduct an investigation merely for the purpose of investigation. No inquiry is an end in itself; it must be related to and in furtherance of a legitimate task of Congress. Investigation of purely private affairs of people cannot be made, as Congress cannot legislate on them. However Congress can inquire into private affairs if they affect matters on which Congress can legislate. Moreover, Congress cannot conduct an investigation to find out if someone should be prosecuted criminally, or to determine if someone is guilty or innocent of a crime, or to decide what are the rights of parties to a controversy. Congress is not a law enforcement agency or a court. Unfortunately, however, the determination of what is ;'in aid of legislation" is not the end but only the beginning of the complexity. If a claim is made by Congress that an investigation is in aid of legislation, how will the court prove otherwise? More often than not, courts are compelled to take the statement of "in aid of Jlegislation" at face value and render it conclusive upon themselves. It is difficult to define any limits by which the subject matter of its inquiry can be circumscribed. It is n<;>t necessary that every question propounded to a witness must be material to a proposed legislation. Materiality of the question must be . determined by its direct relation to the subject of inquiry and not by its indirect relation to any proposed or possible legislation. In determining the propriety of the question propounded to a witness, thus, the following matters are to be considered: (1) the definition of the inquiry found in the authorizing resolution or statute; (2) the opening remarks of the committee chair; (3) the nature of the proceedings; (4) the q~estion itself; and (5) the response of the committee to a pertinency objection. 2) The investigation must be in accordance with duly published rules of procedure of Congress.
I

.These rules of procedure are subject to change or even suspension by Congress at any time except if it will affect the substantive rights of the witness and other persons involved. 3) The Constitution further mandates that the rights of witnesses appearing in or affected by such inquiries must be respected. Like all other forms of governmental actions, the Bill of Rights is applicable to congressional investigations. Witnesses at such investigations, hence, cannot be compelled to give evidence against themselves, they cannot be subjected to unreasonable search and seizure, and their freedoms o~speech, press, religion and political belief and association cannot be abridged. The right against self-incrimination applies to any witness in any proceeding, whether civil, criminal, or investigative, who is being compelled to give testimony
I

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College a/Law. SY 2012-2013 Page 30 0/65

that may be used against them in a subsequent criminal case. The privilege against self-incrimination not only extends to answers that will, in themselves support a conviction but likewise, embrace "those which would furnish a link in the chain of evidence to prosecute the claimant for a (crime)." The privilege, nevertheless, is operative and available only where the compelled testimony or communication possesses a potential for incrimination, For potential incrimination to exist, there must be a showing that (1) there is a threat of criminal liability; (2) that such threat of criminal liability concerns the witness himself; and (3) that such threat is real and appreciable and not imaginary and unsubstantial. In a legislative investigation, a witness cannot. claim his right against self-incrimination ,lin refusing to answer before any question is propounded on him. He must wait until he is asked an incriminatory question. A witness can attempt to avoid answering particular questions by claiming an infringement of his freedom of speech, or freedom of association, belief, or religion. To be meaningful, freedom of speech and freedom of association must allow citizens to express ideas, even unpopular ones, and to join associations, even infamous ones, without fear of ultimate sanction for doing so. To the extent that testifying before a legislative committee forces one to publicly reveal beliefs and associations when disclosure can lead to being blacklisted, socially ostracized, or losing one's job, compelling such testimony infringes upon one's constitutional rights. A legislative investigation may create what is called a "chilling effect" on the exercise of these rights. A witness can remain silent and ultimately avoid possible sanction for a contempt citation if he or she (1) makes a proper claim to the constitutional protection !against self-incrimination, (2) validly alleges an infringement of freedom of religion, speech, or of the press and association and (3) validly claims questions asked are not pertinent. However, it is apparent that but for a limited and proper claim, none of these options is free of a substantial risk that the witness may be wrong and have to suffer for the miscalculations. Indeed, the legislative power of inquiry and the auxiliary power to compel testimony are limited in theory only, but invariably unrestricted in practice. The 1987, as well as in the 1973 Constitution directly conferred the power of investigation upon congressional committees. This is a significant development since under the 1935 Constitution, the investigatory powers of the committees were conferred by the legislature. There is a need for defining with "sufficient particularity" the jurisdiction and purpose of investigating committees (1) as a way of insuring the responsible exercise of delegated power and (2) as a basis for determining the relevance of the questions asked. The scope of the powers of the committee must, therefore, be delimited in order to enable the witness to know whether the subject of investigation is propef, and, ultimately whether the questions asked are pertinent to the subject of inquiry. In delineating this powers, the following propositions have been made: (1) the authority of an investigating committee to act must be determined from the rule or resolution creating it; (2) a valid legislative purpose as distinct from a purpose merely of exposure, must be shown; and (3) the witness must be informed as to the pertinency of the particular question in relation to the legislative purpose.

AVAILABILITY

OF JUDICIAL

REVIEW

Art. VIII Section 1 of the 1987 Constitution provides: 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

Notes in Political Law Atty. Rene Callanta, Jr. 1,t Semester, P.o.P. College a/Law. SY 2012-2013 Page 310/65

amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The courts can review whether or not the questions propounded to a witness is relevant to the subject matter of legislative investigation. Whether the alleged immateriality of the information 'sought by the legislative body from a witness is relied upon to contest its jurisdiction, the court is in duty bound to pass upon the contention. When a claim to the constitutional right against self-incrimination, freedom of speech, press, religion and association is asserted to bar governmental interrogation, the resolurion of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown. It cannot be simply assumed, however, that every congressional investigation is justified by a public need that over-balances any private rights affected. To do so is to abdicate the responsibility placed by the Constitution upon the judiciary to insure that Congress does not unjustifiably encroach upon an individual's right to privacy nor abridge his liberty of speech, press, religion or assembly. The legislative purpose served by the inquiry will still have to be weighed against the right of the witness. Legislative purpose serves best, not as a limitation on the power of investigation but rather, as a counterweight to the interest in civil liberties. To presume that the purpose is lawmaking when, in fact, it is not is to place an undue weight on one side.of th.e scale. Question Hour (Art. VI, Sec. 22) and Legislative Investigation a. As to persons who may appear: ! .22: Only a department head 21: Any person b. As to who conducts the investigation 22: Entire body 21: Committees c. As to subject-matter 22: Matters related to the department only 21: Any matter for the purpose of legislation. JOINT CONGRESSIONAL OVERSIGHT COMMITEE
ABAKAPA GURO VS. Purisima, GR No. 166715, August 14, 2008
FACTS: This petition for prohibition seeks to prevent respondents from implementing and enforcing Republic Act (RA) 9335 (Attrition Act of 2005). RA 9335 was enacted to optimize the revenue-generation capability and coilection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC offjcials and employees to exceed their revenue targets by providing a system of rewards and sanctions through the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board). It covers ail officials and employees of the BIR and the BOC with at least six months'o~service, regardless of employment status.

(id., Sec. 21)

Section 12 of RA 9335 provides: SEC. 12. Joint Congressional Oversight Committee. - There is hereby created a Joint Congressional Oversight Committee composed of seven Members'from the Senate and seven Members from the House of Representatives.The Members from the Senate shail be appointed by the Senate President, with at least two senators representing the minority. The Members from the House of Representatives shail be appointed by the Speaker with at least two members representing the minority. After the Oversight

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, PU.P. College of Law. SY 2012-2013 Page 32 of 65

Committee will have approved the implementing rules and regulations thereafter become functus officio and therefore cease to exist.

(IRR) it shall

Petitioners assail the creation of a congressional oversight committee on the ground that it violates the doctrine of separation of powers. While the legislative function is deemed accomplished and completed upon the enactment and approval of the law, the creation of the congressional oversight committee permits legislative participation in the implementation and enforcement of the law. The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, it became functus officio and ceased to exist. Hence, the issue of its alleged encroachment on the executive function of implementing and enforcing the law may be considered moot arid academic. This notwithstanding, this might be as good a time as any for the Court to confront the issue of the constitutionality of the Joint Congressional Oversight Committee created under RA 933S (or other similar laws for that matter). HELD: The scholarly discourse of Mr. Justice (former Chief Justice) Puno on the concept of congressional oversight in Macalintal v. Commission on Elections (453 Phil. 586) is illuminating: Concept and bases of congressional oversight Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: (a) to' monitor bureaucratic compliance with program objectives, (b) to determine whether agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess executive conformity with the congressional perception of public interest. }The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks and balances inherent in a democratic system of government. x x x x x x x x x Over the years, Congress has Invoked its oversight power with increased frequency to check the perceived "exponential accumulation of power" by the executive branch. By the beginning of the 20th century, Congress has delegated an enormous amount of legislative authority to the executive branch and the administrative agencies. Congress, thus, uses its oversight power to make sure that the administrative agencies perform their functions within the authority deiegated to them. x x x x x x x x x Categories of congressional oversight functions The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three categories, namely: scrutiny, investigation and supervision. a. Scrutiny Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. tIts primary purpose is to determine economy and efficiency of the operation of government activities . .'In the exercise of legislative scrutiny, Congress may request information and report. from the other branches of government. It can give recommendations or pass resolutions for consideration of the agency involved. xxx xxx xxx b. Congressional investigation While congressional scrutiny is regarded as a passive process of looking at the facts that are readily available, congressional investigation involves a more intense digging of facts. The power of Congress to conduct Investigation is recognized by the 1987 Constitution under section 21, Article VI, xxx xxx

xxx
c. Legislative supervision The third and most encompassing form by which Congress exercises its oversight power is thru legislative supervision. "Supervision" connotes a continuing and informed awareness on the part of a

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College a/Law. SY 2012-2013 Page 33 0/65

congressional committee regarding executive operations in a given administrative area. While both congressional scrutiny and investigation involve inquiry into past executive branch actions in order to influence future executive branch performance, congressional supervision allows Congress to scrutinize the exercise of delegated law-making authority, and permits Congress to retain part of that delegated authority. Congressexercises supervision over the executive agencies through its veto power. It typically utilizes veto provisions when granting the President or an executive agency the power to promulgate regulations with the force of law. These provisions require the President or an agency to present the proposed regulations to Congress, which retains a "right" to approve or disapprove any regulation before it takes effect. Such legislative veto provisions usually provide that a proposed regulation will become a law after the expiration of a certain period of time, only if Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently, the statute provides that a proposed regulation will become law if Congressaffirmatively approves it.

In Macalintal, given the concept and configuration of the power of congressional oversight and considering the nature and powers of a constitutional body like the Commission on Elections, the Court struck down the provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee. The committee was tasked not only to monitor and evaluate the implementation of the said law but also to review, revise, amend and approve the IRR promulgated by the Commission on Elections. The Court held that these functions infringed on the constitutional independenceof the Commissionon Elections. With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it neither necessarily constitutes an encroachment on the executive power to implement laws nor undermines the constitutional separation of powers. Rather, it is integral to the checks and balances inherent in a democratic system of government. It may in fact even enhance the separation of powers as it prevents the overaccumui<ltionof power in the executive branch. . However, to forestall the danger of congression<ll encroachment "beyond the legisl<ltive sphere," the Constitution imposestwo b<lsicand related constraints on Congress.It may not vest itself, any of its committees or its members with either executive or judicial power. And, when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified under the Constitution, including the procedure for enactment of laws and presentment. Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In p<lrticular, congressional oversight must be confined to the following: (1) scrutiny based primarily on Congress' power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houseson any matter pertaining to their departments and its power of confirmation and (2) investigation <lnd monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation. Any action or step beyond that will undermine the separation of powers' guaranteed by the Constitution. Legislative vetoes fall in this class. Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposep implementing rules and regulations of a law to Congress which, by itself or through a committee formed by it, retains a "right" or "power" to approve or disapprove such regulations before they take effect. As such, a legislative veto in the form of a congressional oversight committee is in the form of an inward-turning delegation designed to attach a congressional leash (other than through scrutiny and investigation) to an agency to which Congress has by law initially delegated broad powers. It radically changes the design or structure of the Constitution's diagram of power as it entrusts to Congressa direct role in enforcing, applying or implementing its own laws. Congress has two options when enacting legislation to define national policy within the broad horizons of its legislative competence. It can itself formulate the details or it can assign to the executive branch the responsibility for making necessary managerial decisions in conformity with those standards. In the latter case, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature. Thus, what is left for the executive branch or the concerned administrative agency when it formulates rules and regulations implementing the law is to fill up details (supplementary rule-makicg) or ascertain facts necessaryto bring the law into actual operation (contingent rule-making).

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 34 of 65

Administrative regulations enacted by administrative agenciesto implement and interpret the law which they are entrusted to enforce havethe force of law and are entitled to respect.Suchrules and regulationspartake of the nature of a statute and are just as binding as if they have been written in the statute itself. As such, they have the force and effect of law and enjoy the presumptionof constitutionality and legality until they are set aside with finality in an appropriate case by a competent court. Congress,in the guise of assumingthe role of an overseer,may not passupon their legality by subjectingthem to its stamp of approval without disturbing the calculatedbalanceof powers establishedby the Constitution. In exercisingdiscretion to approve or disapprove the IRR basedon a determination of whether or not they conformed with the provisionsof RA 9335, Congress arrogatedjudicial power unto itself, a power exclusivelyvested in this Court by the Constitution.

E. ACT AS BOARD OF PRESIDENTIAL ELECTIONS

CANVASSERS FOR

PRESIDENTIAL

AND

VICE

.'Art. VII, Sec. 4. xxx

The returns of every election for President and Vice- President, duly certified by the board of canvassers of each provinces or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of election (w/c is the 2nd Tuesday of June), open all the certificates in the presence of the Senate and House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass (i.e., tally the certificates of canvass) the votes. The persons having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes (tie), one of them shall forthwith be chosen by the ,vote of a majority of all the members of Congress, voting separately. . The Congress shall promulgate its rules for the canvassing of the certificates.

RA 7166

An Act Providing for Synchronized National and Local Elections and for Electoral Reforms
Sec. 30. Congress as the National Board of Canvassers for the Election of President and Vice-President: Determination of Authenticity and Due Execution .of Certificates of Canvass.-Congress shall determine the authenticity and due execution of the certificates of canvass for President and Vice-President as accomplished and transmitted to it by the local boards of canvassers, on a showing that: (1) each certificate of canvass was executed, signed and thumbrT]arked by the chairman and members of the board of canvassers and transmitted or caused} to be transmitted to Congress by them; (2) each certificate of canvass contains the names of all of the candidates for President and Vice-President and their corresponding votes in words and in figures; and (3) there exists no discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes of any candidate in words and figures in the same certificate. When the certificate of canvass, duly certified by the board .of canvassers of each province, city or district, appears to be incomplete, the Senate President shall require the board of canvassers concerned to transmit by personal delivery, the election returns from polling places that were not included in the certificate of canvass and supporting statements. Said election returns shall be submitted by personal delivery within two (2) days from receipt of notice. When it appears that any certificate of canvass or supporting statement of votes by precinct bears erasures or alterations which may cast doubt as to the veracity of the number of votes stated therein and may affect the result of the election, upon' request of the Presidential or

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 35 of 65

Vice-Presidentialcandidate concerned or his party, Congressshall, for the sole purpose.of verifying the actual number of votes cast for Presidentand Vice-President,count the votes as they appearin the copiesof the electionreturns submittedto it.

F. CALL A SPECIAL ELECTION IN CASE OF VACANCY IN THE OFFICES OF PRESIDENT AND VICE-PRESIDENT Art. VII, Sec. 10. The Congress shall, at ten o'clock in the morning of the third day after the vacancy in the offices of .the President and Vice-President occurs, convene in accordance with its rules without need of a call and within seven days enact a law calling for a special election to elect a President and a Vice-President to be held not earlier than forty-five days nor later than sixty days from the time fof such call. The bill calling such special election shall be deemed certified under paragraph 2, Section 26, Article VI of this Constitution and shall become law upon its approval on third reading by the Congress. Appropriations for the special election shall be charged against any current appropriations and shall be exempt from the requirements of paragraph 4, Section 25, Article VI of this Constitution. The convening of the Congress cannot be suspended nor the special election postponed. No special election shall be called if the vacancy occurs within eighteen months before the date of the next presidential election. When a vacancy occurs iii the offices of the President and Vice-President, more than 18 months before the date of the next regular presidential election, the Congress shall convene at 10 AM of the 3rd day after the vacancy, in accordance with its rules, without need of call. The convening of Congress cannot be suspended. Within' 7 days after it convenes, it shall enact a law calling for a special election to elect a President and Vice- President, to be held between 45 to 60 days from the day of such call. The holding of the special election cannot be postponed. Not later than 30 days after the election, Congress shall again act as Board of Canvassers (see infra), since Art. VII, Sec. 4 par. a talks of every election for President and Vice-President. Thus, the timetable is: Day 0 - vacancy occurs Day 3 - Congress convenes without need of call Day 10 - Congress passes the special election law, if it has not passed before this date Day 55 to 70 - election is held Day 85 to 100 - as the case may be - canvassing by Congress, if it has not done so earlier. ! Under the Constitution then a vacancy is filled by the 100th day from the vacancy at the latest. The law so passed is exempted from the following: a) Certification under Art. VI, sec. 26, par. 2. Thus, the three readings can be done all on the same day. b) Approval by the President (for obvious reasons). The bill automatically becomes a law, then, upon its approval on 3rd and final reading.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 36 of 65

c) Certification by the NationalTreasurer of the availability of funds, or revenue raising measure under Art. VI, Sec. 25(4). Appropriations for the special election shall be chargedagainst any current appropriations. .

G. REVOKEOR EXTEND SUSPENSION OF PRIVILEGE OF HABEAS CORPUS OR DECLARATIONOF MARTIAL LAW Art. VII, Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines, and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of !habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. the Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. !The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. the suspension of the privilege shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. iDuring the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. When the President suspends the privilege of the writ or proclaims martial law, then Congress shall convene within 24 hours from the proclamation or suspension in accordancewith its rules, without need of a call, if it is not in session.The Presidentshall then submit a report in person or in writing to Congress,within 48 hours from the proclamation or suspension. By a joint majority vote of all the members of both houses in a joint Congress has 2 possible courses of action: meeting, the

Notes in Political Law Atty. Rene Calianta, Jr. 1" Semester, P.o.P. College of Law. SY 2012-2013 Page 37of65

1) To revoke (or disapprove) the proclamation or suspension, which revocation cannot be set aside (vetoed) by the President, or 2) To extend the proclamation after 60 days, for a period to be determined by Congress, if the causes persist. It must be noted that the Congress does not approve the proclamation or suspension, but either disapproves it or extends it, because the proclamation or suspension is valid in itself for 60 days already, and so does not require the approval of Congress for its effectivity. What it needs is the extension that may be granted by Congress beyond the 60-day period when it expires, which extension need not be for another 60 days only.

H. APPROVE PRESIDENTIAL AMNESTIES Art. VII, Sec. 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. The President has the power to grant amnesty with the concurrence of a majority of all the members of Congress. I. CONFIRM CERTAIN APPOINTMENTS
I

;(1) Art. VII, Sec. 9 (By Congress) Art. VII, Sec. 9. Whenever there is a vacancy in the Office of the VicePresident during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of Congress, voting separately. (2) Id., Sec. 16 (By the Commission on Appointments) Art. VII, Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or maval captain, and other officers whose appointments are vested in ;him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided. for by law, and those whom, he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions or boards. The President shall have the power to make appointments during the recess of Congress, whether voluntary or compulsory, but such appointment shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. .

1st Semester,

Notes in Political Law Atty. Rene Callanta, Jr. P.U.P. College o/Law. SY 2012.2013 Page 380/65

The following officers appointed by the President require confirmation

a. Heads of departments b. Ambassadors, (Art. VII, sec. 16) and consuls (Art. VII, sec.16)

by the CA:

public ministers,

c. Officers of the AFP from the rank of colonel and naval captain (Art. VII, sec. 16) d. Chairman and members of the Constitutional Commissions (Art. IX, B, C, & D, sec. 1[21)

e. Members of the Judicial and Bar Council (Art. VIII, sec. B[21)

! In Sarmiento vs Mison, 156 SCRA 549, the Commissioner

of Customs was held not to be subject to confirmation, being of the rank of the bureau director, who was purposely deleted from the listing of those whose appointments had to be approved by the Commission on Appointments. It was the clear and express intent of the framers of the Constitution to exclude presidential appointments from confirmation by the CA, except appointments to offices expressly mentioned in Art. VII, Sec. 16. The power to appoint is already vested in the President, without need of confirmation by the CA. Sarmiento v. Mison, 156 SCRA 549 (1987)

FACTS: Petitioners brought this suit for prohibition in their capacity !'Istaxpayers, members of the Bar and law professors, to enjoin respondent Commissioner of Customs from performing his functions on the ground that his appointment, wlo confirmation by the CA, is unconstitutional. HELD: Art. VII, Sec. 16, as orginally proposed by the Committe on Executive Power of the 1986 Con Co,mread:
I

Sec. 16. The President shall nominate and, with the consent of a Commission on Appointment, shall appoint the heads of executive departments and bureaus, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain and all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may by law vest the appointment of inferior officers in the President alone, in the courts, or in the heads of departments. However, on motion of Comm. Foz, 2 changes were approved in the text of the provision. The first was to delete the phrase "and bureaus," and the second was to place a period (.) after the word "captain" and substitute the phrase "and all" wi the phrase "HE SHALLALSOAPPOINTANY." The first amendment was intended to exempt the appointment of bureau directors from the requirement of confirmation on the ground that this position is low and to require confirmation would subject bureau directors to political influence. On the other hand, the 2nd amendment was intended to subject to confirmation only those mentioned in the frist sentence, namely:

!
'The heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in the Consti, i.e., (1) Regular members of the Judicial and Bar Council [Art. VIII, Sec. 8(2)] (2) Chairman and Commissioners of the Civil Service Commission [Art. IXB, Sec. 1 (2)]; (3) Chairman and Commissioners of the COMELEC [Art. IX-C, Sec. 1 (2)]; (4) Chairman and Commissioners of the COA [Art. IX-D, Sec. 1 (2)]; (5) Members of the regional consultative commission (Art. X, Sec. 18.) The rest of the appointments mentioned in sec. 16 are not subject to confirmation. These are: (1) all other officers of the Govt whose appointments are not other:wise provided for by law; (2)

\ I'

I , II \
,

1st Semester,

Notes in Political Law Atty. Rene Col/onto, Jr. PU.P. Col/ege of Law. SY 2012-2013 Page 39 of 65

those whom the Pres.may be authorized by law to appoint; and (3) officers lower in rank whose appointmentsCongressmay by law vest in the Pres.alone.

J. CONCUR IN TREATIES Art. VII, Sec. 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate. This is true, although it is the President who is the chief spokesman in foreign relations. Executive agreements do not need concurrence.

K. DECLARATION OF WAR AND DELEGATION OF EMERGENCYPOWERS Art. VI, Sec. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint sessions assembled, voting separately, shall have the sole power to declare the existence of a state of war. (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. The Congress, by a vote of 2/3 of both houses in joint session assembled but voting separqtely shall have the sole power to declare the existence of a state of war. {Art. VI,
Sec. 23(1)j

In times of war or other national emergency, the Congress may authorize the President, for a limited period and subject such restrictions as the law may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Such powers shall cease upon the next adjournment of Congress, unless sooner withdrawn by its resolution. {Art. VI, Sec. 23(2).{ Although the tour of duty of the Chief of Staff of the AFP should not exceed 3 years, the President may extend such tour of duty in times of war or other national emergency declared by Congress. {Art. XVI, Sec. 5(7).{

L. BE JUDGE OF THE PRESIDENT'S PHYSICAL FITNESS

rArt. VII, Sec. 11, par. 4. If the Congress, within ten days after receipt of the last written declaration, or if not in session, within twelve days after it is required .to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President. shall continue exercising the powers and duties of his office. There are 3 ways in which the President may be declared unable to discharge his functions under this article: (1) Upon his own written declaration (2) Upon the first written declaration by majority of his Cabinet

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 40 of 65

(3) Upon determination by Congress by 2/3 vote of all its members voting separately
acting on the 2nd written declaration by the Cabinet ' When the President himself transmits to the Senate President and Speaker of the House his written declaration that he is unable to discharge the powers and duties of his office, there is no problem. The Vice-President shall discharge such powers and duties as Acting President, until the President transmit to the Senate President and Speaker a written declaration that he is no longer unable to discharge his powers and duties. The problem arises when a majority of all members of Cabinet transmit to the Senate President and Speaker their written declaration that the President is unable to discharge his office .. Upon such transmittal, the Vice-President shall "immediately" assume the office as Acting President.
I

The President can contest this by transmitting to the Senate President and Speaker his written declaration that no inability exists. Upon such transmittal, he shall reassume his office. But if the majority of all the members of the Cabinet really believe otherwise, they can contest this "declaration of non- inability" by again sending a second written declaration to the Senate President and Speaker, within 5 days from the time the President transmitted his written declaration of non-inability. . It is this second cabinet written "declaration of inability" that brings in the Congress as judge of the President's ability to discharge his office. (The Vice-President in this second instance does not act as President: the having spoken as against his Cabinet, his declaration entitles him to stay until says otherwise. But if the Cabinet submits the declaration more than 5 days Presid~nt reassumes office, this may be viewed as a new declaration, and so President can immediately act as President.) President Congress after the the Vice-

Congress must convene (a) within 10 days after receipt of the 2nd written declaration
by the Cabinet, if it is in session, or (b) within 12 days after it is required to assemble by its respective presiding officer, if it is not in session. In a joint session, the Congress shall decide the President's ability. Two-thirds vote by each house, voting separately, is required to declare the President's inability. In other words, if 2/3 of each house vote that the President must step down, the Vice-President shall act as President. But if less than 2/3 of each House vote that the President is unable, the President shall continue in office.

M. POWER OF IMPEACHMENT '(1) Who are subject to impeachment Art. XI, Sec. 2

Art. XI, Sec. 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal or public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. The following are subject to impeachment; a. President b. Vice-President

1st

Notes in Political Law Atty. Rene Callanta, Jr. Semester, P.u.P. College a/Law. SY 2012-2013 Page 41 0/65

c. Justicesof the SupremeCourt d. Membersof the ConstitutionalCommissions e. Ombudsman Section 1, PO 1606 - Creation of the SANOIGANBAYAN
The Presiding Justice and the Associate Justices of the Sandiganbayan shall not be removed from office except on impeachment upon the grounds and in the manner provided for in Sections 2, 3 and 4 of Article XIII of the 1973 Constitution.

(2) Grounds for impeachment a) Culpableviolation of the Constitution b) Treason(RPC) c) Bribery (RA 3019) d) Graft and corruption (RA 3019) e) Other high crimes f) Betrayal of public trust Limitation: No impeachment proceedings shall be initiated against the same official more than once within a period of one year. {Art. Xl, Sec. 3(5)J Forum: The Houseof Representatives shall have the exclusive power to initiate all cases of impeachment.{Art. Xl, Sec. 3(l)J (3) Procedure for impeachment

Art. XI, Sec. 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. 1(2) A verified complaint for impeachment may be filed by any .Member of the House of Representatives or by any citizen upon resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Mem!lers of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. I(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court. shall preside, but

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 42 of 65

shall not vote. No person shall be convicted. without concurrence of two-thirds of all the Members of the Senate.

the

A) Initiation stage
1) If initiated by less than 1/3 {Sees. 3(2)-(4)]

(a) A verified complaint for impeachment is filed with tbe House of Representative by: (i) a member of the House of Representatives, or (ii) any citizen upon a resolution of endorsement by any member of the House.
(b) The complaint must be included in the Order of Business within 10 session days upon receipt thereof. (the purpose is to prohibit any delay) (c) Not later than 3 session days after, including the complaint in the Order of Business, it must be referred (by the Speaker) to the proper committee (usually, the Committee on Justice and Order). (d) The Committee has 60 session days from receipt of the referral to conduct hearings (to see if there is probable cause), to vote by an absolute majority, and to submit report and its resolution to the House. (e) The resolution shall be calendared for consideration anq general discussion by the House within 10 session days from receipt thereof. (f) After the discussion, a vote is taken, with the vote of each member recorded. A vote of at least 1/3 of all the members of the House is needed to "affirm a favorable resolution with the Articles of Impeachment of the Committee, or to override its contrary resolution." If the Committee made a favorable recommendation (i.e., it recommended that the complaint be sent over to the Senate), 1/3 of all the members are needed to approve such recommendation. If the Committee made a contrary recommendation (i.e., it recommended the dismissal of the complaint), 1/3 of all the members are needed to disapprove or override this report. In other words, so long as 1/3 of the lower house votes to proceed with the trial, then the case would be sent to the Senate, regardless of the committee recommendation, and regardless of the number who vote (which, could even be as high as 66% of the entire House), that it should not be sent to the Senate for trial. The reason is that the initiation stage does not determine the guilt or innocence of the officer! being impeached. It merely determines whether there is a prima facie case against the officer that merits a full blown trial in the Senate. It is similar to a preliminary investigation.

2) If initiated by 1/3 {Art.XI, Sec. 3(4)]

If the verified complaint or resolution of impeachment is filed by at least 1/3 of all the members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 43 of 65

This means that the entire process is cut short. There is no need for a Committee report and discussion anymore, since the end result is that 1/3 of the members of the House have decided to send the case for trial.

B) Trial Stage a) The Articles of Impeachment of the Committee is forwarded to the Senate, which has
the sole power to try and decide all cases of impeachment, for trial.

b) When sitting for the purpose of trying an impeachment case, the Senators shall be on oath or affirmation. c) As la general rule, the President of the Senate presides over an impeachment trial.
But when it is the President of the Philippines who is on trial, the Chief Justice of the Supreme Court shall be the presiding officer, but he shall not vote. d) To carry out a conviction, the vote of 2/3 of all the members of the Senate (16 Senators) is required. If less than 2/3 vote that the officer is guilty, the effect is acquittal. e) The judgment of the Senate (like the judgment of the House on whether to initiate) is a political question that cannot be reviewed by the court. (Unlike a law that can be reviewed by the courts because of the existence of constitutional standards, this judgment cannot be reviewed, for the Constitution itself has granted the discretion to this cocequal branch to appreciate the case as presented.) .

(4)
I

Consequences of Impeachment

Art. XI, Sec. 3(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law.

In case of acquittal

The President continues in office, because pending the impeachment trial, he remains in office. Acquittal does not only mean the dismissal of the impeachment case, but also a bar from any criminal action on the same offense that may be filed later on.
In case of conviction
I

[Art. XI, Sec.3(7)[

Judgment in cases of impeachment shall not extend further than (i) removal from office and (ii) disqualification to hold any office under RP. . But a person convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law (RPC, Anti-Graft and Corrupt Practices Act, and other penal laws). (The courts cannot review the judgment on the impeachment case, and ultimately the removal from office and the disqualification, because these are political questions. But it can review the judgment in the criminal case.)

(5)

Must impeachment precede filing of criminal case?

1st Semester,

Notes in Political Law Atty. Rene Callanta, Jr. P.U.P. College of Law. SY 2012-2013 Page 44 of 65

In Lecllroz v. Sandiganbayan, 128 SCRA 324, the SC said that the broad power of the Constitution vests the respondent court with jurisdiction over public officers and employees, including those in GOOCs. There are exceptions, however, like the constitutional officers, particularly those declared to be removable by impeachment. In their case, the Constitution proscribes removal from office by any other method; otherwise, to allow a public officer who may be removed solely by impeachment to be charged criminally while holding his office with an offense that carries the penalty of removal from office, would be violative of the clear mandat'e of the fundamental law. Judgment in cases of impeachment shall be limited to removal from office and disqualification to hold any office of honor, trust or profit under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to proseqution trial, and punishment, in accordance with law. The effect of impeachment is limited to the loss of position and disqualification to hold any office of honor, trust or profit under the Republic of the Philippines. The party thus convicted may be proceeded against, tried and thereafter punished in accordance with law. The clear implication is, the party convicted in the impeachment proceeding shall nevertheless be liable and subject to prosecution, trial and punishment according to law; and that if the same does not result in conviction and the official is not thereby removed, the filing of a criminal action in accordance with law may not prosper. Constitutional officers are not entitled to immunity from liability for possible criminal acts. But there is a fundamental procedural requirement that must be observed before such liability may be determined and enforced. They must first be removed from office via the constitutional route of impeachment (Art. XI, Sees, ~ and 3). Should they be impeached, they may then be held to answer either criminally or administratively for any wrong or misbehavior that may be proven against them in appropriate proceedings. Therefore a fiscal or prosecuting officer should forthwith and motu proprio dismiss any chargElSbrought against constitutional officers. The remedy of a person with a legitimate grievance is to file impeachment proceedings.

N. POWER WITH REGARDTO THE UTILIZATION OF NATURAL RESOURCES Art. XII, Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens or corporations or associations at ,least sixty per centum of whose capital is owned by such citizens . .Such agreement may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant. The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. l'he Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming,

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 45 of 65

with priority to subsistence fishermen lakes, bays, and lagoons.

and fishworkers

in rivers,

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. 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 accordingto the general terms and conditions provided by law... The President shall notify the Congress of every contract entered into in accordancewith this provision, within 30 days from its execution. (Art. XII, Sec. 2, pars. 4 & 5).

O. AMENDMENTOF THE CONSTITUTION

Art. XVII, Sec. 1. Any amendment to, or revision of, this Constitution ,may be proposed by: .(1) The Congress, upon a vote of three-fourths of all its Members;

or
(2) A constitutional convention. Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters of which every legislative district must be represented by at least three per centum of the registered votes therein. No amendment under this section shall be authorised within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. 'Sec. 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention. Sec. 4. Any amendment to, or revision of this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision. Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.iJ.P. College of Law. SY 2012-2013 Page 46 of 65

earlier than sixty days nor certification by the Commission petition. Constituent

later than ninety days after the on Elections of the sufficiency of the

Power (Art. XVII, Sees. 1 and 2)

The constituent power, or the power to amend or revise the Constitution, is different from the law-making power of Congress, said the SC in Gonzales v. Comelee, infra. Amendment or revision of the Constitution may be proposed in 3 ways: 1. By Congress acting as a constituent body (Art. XVII, sec. 1)

A vote of 3/4 of all its members is required.

2. Bya constitutional convention (Art. XVII, sec. 1) a) Congress calls a Con Con by a vote of 2/3 of all its members, or b) Congress submits to the electorate the question of calling such convention, by an absolute majority vote. 3. By the people (Art. XVII, Sec. 2)

Through initiative upon petition by 12% of all registered voters, of whichever legislative district is represented by at least 3% of its registered voters. But this cannot be resorted to (i) within 5 years from February 2, 1987, nor (ii) more often than once every five years.

Any amendment or revision shall be valid when ratified by a majority of the votes cast in a plebiscite to be held between 60 to 90 days from, the approval of the amendment or revision in the case of Congress or the Constitutional Convention, or the certification by COMELEC of the sufficiency of the petition in the case of the people.

8. LEGISLATIVE PROCESS .A. REQUIREMENTS AS TO BILLS (1) As to titles of bills

Art. VI, Sec. 26. (1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. One title, One Subject. The pwrpose is to prevent "log-rolling" or the smuggling in of "riders", that is, items that are unrelated to the bill itself and would not have been passed had they not been sneaked into the bill. Cruz: The purposes of this rule are: (1) To prevent hodgepodge or log-rolling legislation. This is defined as "any act containing several subjects dealing with unrelated matters representing diverse interests, the main object of such combination being to unite the members of the legislature who favor anyone of the subjects in support of the whole act."

(2) To prevent surprise or fraud upon the legislature.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College of Law. SY 2012-2013 Page 47 of 65 (3) To fairly apprise the people, through
such publications of its proceedings as are usually made, of the subjects of legislation that are being considered in order that they may have opportunity of being heard thereon, by petition or otherwise, if they should so desire. need not be a complete catalogue of a bill.

But the title

In any case, a title must not be ~'so uncertain that the average person reading it would not be informed of the purpose of the enactment or put on in.quiry as to its contents, or which is misleading, either in referring to or indicating one subject where another or different one is really embraced in the act, or in omitting any expression or indication of the real subject or scope of the act." The tittle could Code). be specific

(A bill to create

the municipality

of Bagoda)

or as broad

(Civil

Tio v. VRB, 151 SCRA 208 (1987)

HELD: The Constitutional requirement that "every bill shall embrace only one subject which shall be expressed

in the title thereof" is sufficiently complied with if the title be comprehensive enough to include the general purpose which a statute seeks to achieve. It is not necessarythat the title express each and every end that the statute .wishes to accomplish. The requirement is satisfied if all the parts of the statute are related, and are germane to the subject matter expressed in the title, or as long as they are not inconsistent with or foreign to the general subject and title. An act having a single general subject, indicated in the title, may contain any number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out the general object." The rule also is that the constitutional requirement as to the title of a bill should not be so narrowly construed as to cripple or impede the power of legislation. It should be given a practical rather than technical construction. Tested ~y the foregoing criteria, petitioner's contention that the tax provision of the DECREE is a rider is without merit. That section reads, inter alia: "Section10. Tax on sale, Lease or Disposition of Videograms.- Notwithstanding any provision of law to the contrary, the province shall collect a tax of thirty percent (30%) of the purchase price or rental rate, as the case may be, for every sale, lease or disposition of a videogram containing a reproduction of any motion picture or audiovisual program. Fifty percent (50%) of the proceeds of the tax collected shall accrue to the province, and the other fifty percent (50%) shall accrue to the municipality where the tax is collected; PROVIDED,That in Metropolitan Manila, the tax shall be shared equally by the City/Municipality and the Metropolitan Manila Commission. xxx xxx xxx The foregoing provision is allied and germane to, and is reasonably necessary for the accomplishment of, the general object of the DECREE, which is the regulation of the video industry through the Videogram Regulatory Board as expressed in its title. The tax provision is not inconsistent with, nor foreign to that general subject and' title. As a tool for regulation it is simply one of the regulatory and control mechanisms scattered throughout the DECREE. The express purpose of the DECREE to include taxation of the video industry in order to regulate and rationalilZethe heretofore uncontrolled distribution of videograms is evident from Preambles 2 and 5, supra. Those preambles explain the motives of the lawmaker in presenting the measure. The title of the DECREE, which is the creation of the Videogram Regulatory Board, is comprehensive enough to include the purposes expressed in its Preamble and reasonably covers all its provisions. It is unnecessary to express all those objectives in the title or that the latter be an index to the body of the DECREE. Phil. Consti. Assn. v. Gimenez, 15 SCRA 479 (1965)
HELD: It is to be observed that under Republic Act 3836, amending the first paragraph of section 12, subsection (c) of Commonwealth Act 186, as amended by Republic Act Nos. 660 and 3096, the retirement benefits are granted to members of the Government Service Insurance System, who have rendered at least twenty years of service regardless of age. This paragraph is related and germane to the subject of Commonwealth Act No. 186.

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 48 of 65

On the other hand, the su'cceeding paragraph of Republic Act 3836 refers to members of Congress and to elective officers thereof who are not members of the Government Service Insurance System. To provide retirement benefits, therefore, for these officials, would relate to subject matter which is not germane to Commonwealth Act No. 186. In other words, this portion of the amendment (re retirement benefits for Members of Congress and elected officers, such as the Secretary and Sergeant-at-arms for each House) is not related in any manner to the subject of Commonwealth Act 186 establishing the Government Service Insurance System and which provides for both retirement and insurance benefits to its members. Parenthetically, it may be added that the purpose of the requirement that the subject of an act should be expressed in its title is fully explained by Cooley, thus: (1) to prevent surprise or fraud upon the Legislature; and (2) to fairly apprise the people, through such publication of legislation that are being considered, in order that they may have the opportunity of being heard thereon by petition or otherwise, if they shall so desire. (Cooley; Constitutional Limitations, 8th ed, Vol. I, p. 162; see ,also Martin, Political Law Reviewer, Book One [1965] p. 119) With re~pect to sufficiency of title this Court has ruled in two cases: "The Constitutional requirements with respect to titles of statutes as sufficient to reflect their contents is satisfied if all parts of a law relate to the subject expressed in its title, and it is not necessary that the title be a complete index of the content." (People v. Carlos, 78 Phil. 535) "The Constitutional requirement that the subject of an act shall be expressed in its title should be reasonably construed so as not to interfere unduly with the enactment of necessary legislation. It should be given a practical, rather than technical, construction. It should be a sufficient compliance with such requirement if the title expresses the general subject and all the provisions of the statute are germane to that general subject." (5umulong v. The Commission on Elections, 73 Phil. 288, 291) The requirement that the subject of an act shall be expressed in its title is wholly illustrated and explained in Central Capiz v. Ramirez, 40 Phil. 883. In this case, the question raised was whether Commonwealth Act 2784, known as the Public Land Act, was limited in its application to lands of the public domain or whether its provisions also extended to agricultural lands held in private ownership. The Court held that the act was limited to lands, of the public domain as indicated in its title, and did not include private agricultural lands. The Court further stated that this provision of the Constitution expressing the subject matter of an Act in its title, is not a mere rule of legislative procedure, directory to Congress, but it is mandatory. It is the duty of the Court to declare void any statute not conforming to this constitutional provision. (See Walker v. State, 49 Alabama 329; Cooley; Constitutional Limitations, pp. 162-164 S; see also Agcaoili v. Suguitan, 48 Phil. 676; Sutherland on Statutory Construction, sec. 111.) In the light of the history and analysis of Republic Act 3836, We conclude that the title of said Republic Act 3836 is void as it is not germane to the subject matter and is a violation of the aforementioned paragraph 1, section 21, Article VI of the Constitution. Lidasan v. COMElEC, 21 SCRA 496.(1967)

HELD: It may be well to state, right at the outset, that the constitutional provision contains dual limitations upon legislative power. First Congress is to refrain from conglomeration, under one statute, of heterogeneous subjects. Second. The title of the bill is to be couched in a language sufficient to notify the legislators and the public and those concerned of the import of the single subject thereof. Of relevance here is the second directive. The subject of the statute must be "expressed in the title" of the bill. This constitutional requirement "breathes the spirit of command." Compliance is imperative, given the fact that the Constitution does not exact of Congress the obligation to read during its deliberations the entire text of the bill. In fact, in the case of House Bill 1247, which became Republic Act 4790, only its title was read from its introduction to its final approval in the House of Representatives, where the bill, being of local application, originated. Of course, the Constitution does not require Congress to employ in the title of an enactment, language of such precision as to mirror, fully index or catalogue all the contents and the minute details therein. It suffices if the title should serve the purpose of the constitutional demand that it inform the legislators, the persons interested in the su bject of the bill, and the public, of the nature, scope and consequences of the proposed law and its operation. And this, to lead them to inquire into the body of the bill, study and discuss the same, take appropriate action thereon, and, thus, prevent surprise or fraud upon the legis!ators.

,1st Semester,

Notes in Political Law Atty. Rene Callanta, Jr. P.U.P. College of Law. SY 2012-2013 Page 49 of 65

Tatad v. Sec. of Dept. of Energy, 281 SCRA 330 (1997) HELD: In G.R. No. 124360 where petitioner is Senator Tatad, it is contended that section 5(b) of R.A. No. 8180 on tariff differential violates the provision of the Constitution requiring every law to have only one subject which should be expressed in its title. We do not concur with this contention. As a policy, this Court has adopted a liberal construction of the one title - one subject rule. We have consistently ruled that the title need not mirror, fully index or catalogue all contents and minute details of a law. A law having a single general subject indicated in the title may contain any number of provisions, no matter how 'diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out the general subject. We hold that section 5(b) providing for tariff differential is germane to the subject of R.A. No. 8180 which is the deregulation of the downstream oil industry. The section is supposed to sway prospective investors to put up refineries in our country and make them rely less on imported petroleum.

Lacson,v. Executive secretary, 301 SCRA 298 (1999)

HELD: The challenged law does not violate the one-title-one-subject prOVISionof the Constitution. Much emphasis is placed on the wording in the title of the law that it "defines" the 5andiganbayan jurisdiction when what it allegedly does is to "expand" its jurisdiction. The expansion in the jurisdiction of the Sandiganbayan, if it can be considered as such, does not have to be expressly stated in the title of the law because such is the necessary consequence of the amendments. The requirement that every bill must only have one subject expressed in the title is satisfied if the title is comprehensive enough, as in this case, to include subjects related to the general purpose which the statute seeks to achieve. Such rule is liberally interpreted and should be given a practical rather than a technical construction. There is here sufficient compliance with such requirement, since the title of R.A. 8249 expresses the general subject (involving the jurisdiction of the 5andiganbayan and the amendment of P.D. 1606, as amended) and all the provisions of the law are germane to that general subject. The Congress, in employing the word "define" in the title of the law, acted within its powers since Section 2, Article VIII of the Constitution itself empowers the legislative body to "define, prescribe, and apportion the jurisdiction of various courts."

Q. Which should control, the title or the text of the statute?

In Crill: v. Paras, infra. the SC referred to the title of the bill to fix the meaning of the text or the substantive portion of the bill. The title provided for the "regulation" of nightclubs and other places for entertainment, while the text, as amended, gave local governments the authority to "prohibit" these places altogether. The Court ruled that Bocaue, could not, under this law, prohibit these places but only regulate them, first because the title was controlling over the text (w: the Court stood the principle on its head), and second, because the nightclubs were not nuisances per se that could be summarily evicted. To construe the amendatory act as granting municipal corporations the power to prohibit the operation of nightclubs would be to construe it in a way that it violates the constitutional provision that "every bill shall embrace only one subject which shall be expressed in the title thereof."
Cruz v. Paras, 123 SCRA 569 (1983) FACTS: The petitioners are operators or nightclubs in Bocaue, Bulacan. they filed prohibition suits to stop the Municipality of Bocaue from enforcing an ordinance prohibiting the operation of nightclubs, cabarets, and dance halls in that mun. or the renewal of licensesto operate them. The CFI upheld the validity of the ordinance and dismissed the petition. Hence, this petition for certiorari. HELD: A municipal corporation cannot prohibit the operation of nightclubs. Nightclubs may be regulated but not prevented from carrying on their business. RA 938, as orginally enacted, granted municipalities the power to regulate the establishment, maintenance and operation of nightclubs and the like. While it is true that On 5/21/54, the law was amended by RA 979 which purported to give municipalities the power not only to regulate but likewise to prohibit the operation of nightclubs, the fact is that the title of the law remained the same so 'that the power granted to municipalities remains that of regulation, not prohibition. To construe the amendatory act as granting municipal corporations the power to prohibit the operation of nightclubs would be to construe it in a way that it violates the constitutional provision that "every bill shall embrace only one subject which shall be expressed in the title thereof." Moreover, the recentyly-enacted LGC(BP 337) speaks simply of the power to regulate the establishment, and operation of billiard pools, theatrical performances, circuses and other founs of entertainment. Certiorari granted. .

1st Semester,

Notes in Political Law Atty. Rene Callanta, Jr. P.U.P. College of Law. SY 2012-2013 Page 50 of 65

(2)

Requirements as to certain laws (a) Appropriation laws

Art. VII, Sec. 22. The President shall submit to the Congress within thirty days from the opening of every regular session, as the basis .of the general appropriations bill, a budget of .expenditures and sources of financing, including receipts from existing and proposed revenue measures. Art. VI. Sees. 24-25 I Art. VI, Sec. 24. All appropriations, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments.

,.....

Cruz:

The above-mentioned bills are supposed to be initiated by the House or Representatives because it is more numerous in membership and therefore also more representative of the people. Moreover, its members are presumed to be more familiar with the needs of the country in regard to the enactment of the legislation involved. An apPropriation bill is one the primary and specific purpose of which is to authorize the release of funds from the public treasury.

A revenue bill is one that levies taxes and raises funds for the government, while a tariff bill spkifies the rates or duties to be imposed on imported articles. A bill increasing the public debt is illustrated by one floating bonds for public subscription redeemable after a certain period. A bill of local application is one involving purely local or municipal matters, like a charter of a city. Private bills are illustrated foreigner. by a bill granting honorary citizenship to a distinguished

Tolentino v. sec. of Finance, 235 SCRA 632 (1994)

HELD: To begin with, it is not the law - but the revenue bill - which is required by the Constitution to "originate exclusively" in the House of Representatives. It is important to emphasize this, because a bill originating in the House may undergo such extensive changes in the Senate that the result may be a rewriting of the l'ihole. The possibility of a third version by the conference committee will be discussed later. At this point, what is."important to note is that, as a result of the Senate action, a distinct bill may be produced. To insist that a revenue statute - and not only the bill which initiated the legislative process culminating in the enactment of the law - must substantially be the same as the House bill would be to deny the Senate's power not only to "concur with amendments" but also to " propose amendments." It would be to violate the coequality of legislative power of the two houses of Congress and in fact make the House superior to the Senate. It is insisted, however, that 5. No. 1630 was passed not in substitution of H. No. 11197 but of another Senate bill (5. No. 1129) earlier filed and that what the Senate did was merely to "take [H. No. 11197] into consideration" in enacting 5. No. 1630. There is really no difference between the Senate preserving H. No. 11197 up to the enacting clause and then writing its own version following the enacting clause (which, it would seem, petitioners admit is an amendment by substitution), and, on the other hand, separately presenting a bill of its own on the same subject matter. In either case the result are two bills on the same subject.

r
r
I

,l
-----_ , .. -l'-,----< ~

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 51 of65
Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax bills, bills authorizing an increase of the public debt, private bills and bills of local application must come from the House of Representativeson the theory that, elected as they are from the districts, the members of the House can be expected to be more sensitive to the local needs and problems. On the other hand, the senators, who are elected at large, are expected to approach the same problems from the national perspective. Both views are thereby made to bear on the enactment of such laws. Nor does the Constitution prohibit the filing in the senate of a substitute bill in anticipation of its receipt of the bill from the House, so long as action by the senate as a body is withheld pending receipt of the House bill.

25. (1) The Congress may not increase the appropriation recommended by the President for the operation of the Government as specified in the budget. The form, content, and !manner of preparation of the budget shall be prescribed by law. (2) No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriations therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates. (3) The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. (4) A special appropriations bill shall specify the 'purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein. !(5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. (6) Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by

Art. VI, Sec.

law.
(7) If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be !deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress.
Demetria v. Alba, 148 SeRA 208 (1987) Budget Law, Authorizing the Transfer of Items Appropriated for One Government Office to Another is Unconstitutional. FACTS: Petitioners, as concerned citizens, and members of the SP, filed a petition for prohibition, contesting the validity of PD 1177, Sec. 44, authorizing the President of the Phils. "to transfer any fund, appropriated for. the different departments, bureaus, offices and agencies of the Executive Department ... to any program, project or activity of any department, bureau or office...."

1--"

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College a/Law. SY 2012-2013 Page 520/65

HELD: Par. 1 of Sec. 44 of PD 1177 unduly extends the privilege granted under Art. VIII, Sec. 16 (5) of the
1973 Constitution. It empowers the Pres. to indiscriminately transfer funds from one dept. bureau, office or agency of the Executive Dept. to any program, project or activity of any dept. bureau or office included in the General Appropriations Act or approved after its enactment, wlo regard as to wIn the funds to be transferred are actually savings in the item from wlc the same are to be taken, or wIn the transfer is for the purpose of augmenting the item to wlc said transfer is to be made. It does not completely disregard the standards set in the fundamental law, thereby amounting to an undue delegation of legislative powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional infirmities render the provision in question null and void.

Art. VI, Sec. 29. (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. (2) No public money or property shall be appropriated, applied, Ipaid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. (3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government.
Pascual v. Sec. of Public Works, 110 Phil. 331 (1960) HELD: "It is a general rule that the legislature is without power to appropriate public revenues for anything but a publici purpose .... It is the essential character of the direct object of the expenditure which must determine its validity as justifying a tax and not the magnitude of the interests to be affected nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefited by their promotion. Incidental advantage to the public or to the state, which results from the promotion of private interests, and the prosperity of private enterprises or business, does not justify their aid by the use of public money." (23 R. L. C pp. 398-450).
Generally, under the express or implied provisions of the constitution, public funds may be used only for a public purpose. The right of the legislature to appropriate public funds is correlative with its right to tax, and, under constitutional provisions against taxation except for public purposes and prohibiting the collection of a tax for one purpose and the devotion thereof to another purpose, no appropriate of state funds can be made for other than a public purpose. (81 CJ.S. p. 1147). The test of the constitutionality of a statute requiring the use of public funds is whether the statute is designed to promote the public interests, as opposed to the furtherance of the advantage of individuals, although such advantage to individuals might incidentally serve the public. (81 CJ.5. p. 1147). The validity of a statute depends upon the powers of Congress at the time of its passage or approval, not upon events bccurring, or acts penfonmed, subsequently thereto, unless the latter consist of an amendment of the organic 'Iaw, removing, with retrospective operation, the constitutional limitation infringed by said statute. Where the land on which projected feeder roads are to be constructed belongs to a private person, an appropriation made by Congress for that purpose is null and void, and a donation to the Government, made over five (5) months after the approval and effectivity of the Act for the purpose of giving a "semblance of legality" to the appropriation, does not cure the basic defect. Consequently, a judicial nullification of said donation need not precede the declaration of unconstitutionality of said appropriation.

COMELECv. Quijano-Padilla, 389 SCRA 353 (2002) HELD: Enshrined in the 1987 Philippine Constitution
Treasury except in pursuance of an appropriation is the mandate that "no money shall be paid out of the made by law." Thus, in the execution of government

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 53 of 65

contracts, the precise import of this constitutional restriction is to require the various agencies to limit their expenditures within the appropriations made by law for each fiscal year. Complementary to the foregoing constitutional injunction are pertinent provisions of law and administrative issuances that are designed to effectuate the above mandate in a detailed manner. 48 Sections 46 and 47, Chapter 8, Subtitle B, Title 1, Book V of Executive Order No. 292, otherwise known as "Administrative Code of 1987," provide:
"SEC 46. Appropriation Before Entering into Contract. - (1) No contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefor, the unexpended balance of which, free of other obligations, is sufficieot to cover the proposed expenditure; and ... "SEC. 47. Certificate Showing Appropriation to Meet Contract. - Except in the case of a contract for personal service, for supplies for current consumption or to be carried in stock not jE!xceedingthe estimated consumption for three (3) months, or banking transactions of 'government-owned or controlled banks, no contract involving the expenditure of public funds by any government agency shall be entered into or authorized unless the proper accounting official of the agency concerned shall have certified to the officer entering into the obligation that funds have been duly appropriated for the purpose and that the amount necessary to cover the proposed contract for the current calendar year is available for expenditure on account thereof, subject to verification by the auditor concerned. The certificate signed by the proper accounting official and the auditor who verified it, shall be attached to and become an integral part of the proposed contract, and the sum so certified shall not thereafter be available for expenditure for any other purpose until the obligation of the government agency concerned under the contract is fully extinguished.

It is quite evident from the tenor of the language of the law that the existence of appropriations and the availability of funds are indispensable pre-requiSites to or conditions sine qua non for the execution of government contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of the proposed contract. Using this as our premise, we cannot accede to PHOTOKINA'scontention that there is already a perfected contract. While we held in Metropolitan Manila Development Authority vs. Jancom Environmental Corporation that "the effect of an unqualified acceptance of the offer or proposal of the bidder is to perfilct a contract, upon notice of the award to the bidder," however, such statement would be inconsequential in a government where the acceptance referred to is yet to meet certain conditions. To hold otherwise is to allow a public officer to execute a binding contract that would obligate the government in an amount in excess of the appropriations for the purpose for which the contract was attempted to be made. This is a dangerous precedent. Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINAon account of its bid in the amount of P6.588 Billion Pesos. However, under Republic Act No. 8760, the only fund appropriated for the project was Pl Billion Pesos and under the Certification of Available Funds (CAF) only P1.2 Billion Pesos was available. Clearly, the amount appropriated is insufficient to cover the cost of the entire VRIS Project. There is no way that the COMELEC could enter into a contract with PHOTOKINAwhose accepted bid was way beyond the amount appropriated by law for the project. This being the case, the BACshould have rejected the bid for being excessive or should have withdrawn the Notice of Award on the ground that in the eyes of the law, the sa[l1eis null and void. . Guingona v. Gar.ague, 196 SeRA 221 (1991)
FACTS: Petitioners question the constitutionality of the automatic appropriation for debt service in the 1990
I

budget.;

HELD: While it is true that under Sec. 5(5), Article XIV of the Constitution, Congress is mandated to assign the

highest budgetary priority to education, it does not thereby follow that the hands of Congress are so hamstrung as to deprive it the power to respond to the imperatives of the national interest and for the attainment of other state policies or objectives. In this case, the budget for education has tripled and the compensation for teachers has doubled. This is a clear compliance with the constitutional mandate giving highest priority to education. Having ,faithfully complied therewith, Congress is certainly not without any power, guided only by its good judgment, to provide an appropriation, that can reasonably service our enormous debt. It is not only a matter of honor and to protect the credit standing of our country. More especially, the very survival of our economy is at stake. If in the process Congressappropriated an amount for debt service bigger than the share allocated to education, the SCfinds that such appropriation is constitutional.

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 54 of 65

It was also argued that the Presidential Decrees authorizing automatic appropriation is violative of sec. 29(1) : No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. They assert that there must be definiteness, certainty, and exactness in an appropriation, otherwise it is an undue delegation of legislative power to the President who determines in advance the amount appropriated for the debt service. The SCwas not persuaded by such arguments. The transitory provisions provide that all existing laws not inconsistent with the Constitution shall remain operative until amended, repealed or revoked. In this case, the automatic appropriation provides the flexibility for the effective execution of debt management policies. It was argued that the PDs did not meet the requirement that all appropriations authorizing increase of debt must be passed by Congress and approved by the President (VI, 24 and 27). This refers only to appropriation measures still to be passed by Congress. In this case, the PDshave been considered as passed. As to whether there was undue delegation of legislative power, the Court finds that in this case, the questioned laws arE!complete in all their essential terms and conditions and sufficient standards are indicated therein. In this case, the legislative intention is clear and that is the amount needed should be automatically set aside in order to enable the country to pay the principal, interest, taxes and other charges when they shall become due without the need to enact a separate law appropriating funds therefor as the need arises. Although the amounts are not stated specifically, such amounts are limited to the principal, interest, taxes and other charges.

(b) Tax laws

Art. VI, Sec. 28.

equitable. taxation.

(1) The rule of taxation shall be uniform and The Congress shall evolve a progressive system of

(2) The Congress may, by law, authorize the President to fix, within /Specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. (3) Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.
(4) No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of th'e Congress.

Art. XIV, Sec. 4 (3) All revenues and assets of non-stock, non-profit leducational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law.
Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions subject to the limitations provided by law including restrictions on dividends and provisions for reinvestment. (4) Subject to conditions prescribed by law, all grants, endowments, donations, or contributions used' actually, directly, and exclusively for educational purposes shall be exempt from tax.

1st Semester,

Notes in Political Law Atty. Rene Callanta, Jr. P.U.P. College of Law. SY 2012-2013 Page 55 of 65

Norms of Taxation The rule of taxation shall be uniform and equitable. progressive system of taxation. (Art. VL Sec. 28(1)] Delegation of Tax Powers As a general rule, the power to tax, being an essential aspect of sovereignty, is inherently legislative and therefore is non-delegable, unless the Constitution itself allows the delegation. There are 2 sets of specific exceptions:
!

The Congress shall evolve a

1. The Congress, may, by law, authorize the President to fix, within specified limits, and subject to such limitations and restrictions as it may impose, (i) tariff rates, (ii) import and export quotas, (iii) tonnage and wharfage dues, and (iv) other duties and imposts, within the framework of the national development program of the Government. rid, Sec. 28(2)] 2. Each local government unit shall have the power to create its own sources of revenues, and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. (Art. X, Sec. 5)

The taxing power may also be exercised by the President as an incident of the emergency powers that Congress may grant to him, under Art. V1, Sec. 23(2). Burde~ of Taxation Taxation being the source of revenue of gOl(ernment and its very lifeblood, "no law granting any tax exemption shall be passed without the concurrence of a majority of all the members of Congress." rid, Sec. 28(4)] According to jurisprudence, any question regarding the constitutionality of a tax measure must be resolved in favor of its validity. But any doubt regarding the taxability of any person under a valid tax law must be resolved in favor of that person and against the taxing power. However, any doubt as to the applicability of a tax exemption granted to a person must be resolved against the exemption. Proceeds of taxes All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance if any, shall be transferred to the general funds of the Government. rid, Sec. 29(3)] Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. (Art. X, Sec. 6). Taxation of religious and charitable institutions Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and "all lands, buildings .and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes, shall be exempt from taxation." (Art. V1, Sec. 28(3)] In Ahra v. Hernando, 107 SeRA 104 (1981), the SC held that one who claims exemption from' taxes on the ground that the property sought to be taxed by the government is

INotes in Political Law

Atty. Rene Callanta, Jr.

1st Semester, P.U.P. College a/Law. SY 2012-2013 Page 560/65

"actually, directly, and exclusively used for religious purposes" (must prove it.) This cannot simply be presumed on the basis of a declaration to that effect. In YMCA v. Collector, 33 Phil 217 (1916), the buildings and grounds of the YMCA devoted to religious, charitable and educational ends, and not founded and conducted for profit, were held to be tax-exempt. (As now, the exemption is not limited to religious institutions. ) In Bishop of Nueva Segovia v. Provincial Board, 67 Phil 352 (1927), the SC exempted from taxation (1) a piece of land that used to be a cemetery but was no longer used for burial where the faithful would congregate before and after mass, and (2) a tract garden near the conve~t where vegetables were planted for the use of the priest. It is submitted that under 'the 1973 and 1987 Constitutions, this case would be overruled, and the dissenting opinion of Justice Malcolm followed. For the former cemetery and the vegetable tract are not "actually and directly" used for religious purposes. Under the 1935 Constitution, the provision read "exclusively for religious, charitable or educational purposes"; in 1973 actually, directly, and exclusively for religious or charitable purposes"; and, in 1987, "actually, directly, and exclusively used for religious, charitable or educational purposes." At any rate, the exemption applies only to taxes. Thus, a "special assessment" (the amount assessed resulting from the appreciation of value of realty due to public works constructed nearby) under the Real Property Tax Code (or the recently enacted Local Government Code), not being a tax, does not fall under the exemption. As in Apostolic Prefecl v. City Treasurer, 71 Phil 347 (1941), property owned by a religious institution and used for religious and educational purposes is liable for special assessments. Taxation of Educational Institutions All lands, buildings, and improvements, actually, directly, and exclusively used for ... educational purposes shall be exempt from taxation. {Art. VI, Sec. 28(3)f All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties... Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions, subject to the limitations provided by law, including restrictions on dividends and provisions for reinvestment. {Art. XlV, Sec. 4(3)f. Subject to the conditions prescribed by law, all grants, endowments, donations or contributions actually, directly, and exclusively for educational purposes shall be exempt from tax. {Art. XlV, Sec. 4(4)f. Under/these provisions, it is clear that (1) sectarian schools {Art. VI, Sec. 28(3) and Art. XIV, Sec. 4(3)j construed together as well as (2) non-stock. non-profit secular schools [Art. XIV, Sec. 4(3)j are exempt from the following taxes: a} all real property tax ("assets" and Hodges v. Municipal Board of Iloilo City, 19 SCRA 28 (1967), b} income tax [Art. XIV, Sec. 4(3)j for #2 and a fortiori for #1 for income actually, directly, and exclusively used for educational purposes and even c} estate and gift tax [Art. XIV, Sec. 4(4)j. Proprietary schools on the other hand, are granted only limited exemption. B. PROCEDURE FOR THE PASSAGE OF BILLS Art. VI, Sec. 26. (2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President
1

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College of Law. SY 2012-2013 Page 570f65

certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal. Three Readings on separate days: .No bill passed by either House shall become a law unless it has passed three readings ...
{Art. VI. Sec. 26(2).J

On "first reading," the title of the bill, without the provisions, is read before the body. The presiding officer then refers the bill to the proper committee e.g., "To the Committee on Local Governments". (Congress generally works through its committees, not as one body.) After consideration of the bill or resolution, together with its amendments, objections favorable, the bill is placed on the proper matter shall be laid on the table, unless the the Committee returns the same to the body or recommendations. Where the report is calendar. If the report is unfavorable, the body on the whole decides otherwise.

On "second reading", the bill or resolution is read in full before the floor, with such amendments as the committee may have proposed. Then,. it is subjected to debate, discussion and amendments. When this is through, a motion to close the general debate is made, then a vote is taken by the membership on whether to pass the bill or not on the basis of the amendments or discussions. The bi.11 as amended and approved is the "printed in final form" and its copies are, as a general rule, distributed to the members at least 3 days before its passage. (Sec. 26(2)] [The purpose of the 3-day requirement is to enable the members to check if the bill reflects the text and amendments approved on second reading, and to see if riders have been introduced.] As an exception, however, the Constitution allows the 3-day and printed copy requirement to be dispensed with when the President certifies to the necessity of the immediate enactment of the bill to meet a public calamity or emergency. (Sec. 26(2).J In this case, therefore, the three readings may be made in less than 3 days without the bill being printed.
Tolentino v. sec. of Finance, 235 SeRA 632 (1994)
HELD: The presidential certification dispensed with the requirement not only of printing but also that of reading the bill on separate days. The phrase "except when the President certifies to the necessity of its immediate enactmlnt, etc." in Art. VI, 9 26(2) qualified the two stated conditions before a bill can become a law: (i) the bill has passedthree readings on separate days and (ii) it has been printed in its final form and distributed three days before it is finally approved.

In other words, the "unless" clause must be read in relation to the "except" clause, because the two are really coordinate clauses of the same sentence. To construe the "except" clause as simply dispensing with the second requirement in the "unless" clause (i.e., printing and distribution three days before final approval) would not only violate the rules of grammar. It would also negate the very premise of the "except" clause: the necessity of securing the immediate enactment of a bill which is certified in order to meet a public calamity or emergency. For if it is only the printing that is dispensed with by presidential certification, the time saved would be so negligible as to be of any use in insuring immediate enactment. It may well be doubted whether doing away with the necessity of printing and distributing copies of the bill three days before the third reading would insure speedy enactment of a law in the face of an emergency requiring the calling of a special election for President and Vice-President. Under the Constitution such a law is required to be .made within seven days of the convening of Congress in emergency session.

Notes in Political Law Atty. Rene Col/onto, Jr. 1st Semester, P.u.P. College a/Law. SY 2012-2013 Page 580/65

'That upon the certification of a bill by the President the requirement of three readings on separate days and of printing and distribution can be dispensed with is supported by the weight of legislative practice. For example, the bill defining the certiorari jurisdiction of this Court which, in consolidation with the Senate version, became Republic Act No. S440, was passed on second and third readings in the House of Representatives on the same day (May 14, 1968) after the bill had been certified by the President as urgent. There is, therefore, no merit in the contention that presidential certification di~pensesonly with the requirement for the printing of the bill and its distribution three days before its passage but not With the requirement of three readings on separate days, also.

On the "third and final reading", the bill is called by its, name or title, then a vote is taken right away, with the "yeas" and "nays" entered in the Journal. No more amendment is allowed.
{Sec. 26(2).{

As a general rule, the three readings must be conducted on separate days, {Sec. 26(2).{ The exception is found in Art. VII, Sec. 10: When Congress convenes to call a special election to elect the President and Vice-President, "the bill calling such special election shall be deemed certified under par. 2, Sec. 26,Art. VI', meaning, the three readings can be done on the same day.

Bicameral Conference Committee A bill can be passed jointly (when it is a joint session, supra), or separately. In the latter case, it can be passed simultaneously (when a bill is taken up by both houses separately but at!the same time, or sequentially (when a bill originates form one house and goes to the other house). There is no problem if the bill is passed jointly. But if it is passed separately, the bill approved by one house goes to the other house, which can amend such bill. Once the other house approves the bill, this is called the other house's version of the bill. A Bicameral Conference Committee is then, organized, composed of equal number of members from the Senate and the House, to make recommendations to the respective chambers on how to reconcile the two versions of the bill. The respective members are usually granted blanket authority to negotiate and reconcile the bills. At the end of the process, the committee comes up with a "Conference Committee Report", which is then submitted to the respective chambers for approval.
Tolentino v. sec. of Finance, 235 SCRA 632 (1994)
HELD: As to the possibility of an entirely new bill emergency out of a Conference Committee, it has been explain~d:

Under congressional rules of procedure, conference committees are not expected to make any material change in the measure at issue, either by deleting provisions to which both houses have already agreed or by inserting new provisions. But this is a difficult provision to enforce. Note the problem when one house amends a proposal originating in either house by striking out everything following the enacting clause and substituting provisions which make it an entirely new bill. The versions are now altogether different, permitting a conference committee to draft essentially a new bill ... The result is a third version, which is considered an "amendment in the nature of a substitute," the only requirement for which being that the third version be germane to the subject of the House and Senate bills. Indeed, this Court recently held that it is within the power of a conference committee to include in its report an entirely new provision that is not found either in the House bill or in the Senate bill. 17 If the committee can propose an amendment consisting of one or two provisions, there is no reason why it cannot propose several provisions, collectively considered as an "amendmentin the nature of a substitute," so long as such amendment is germane to the subject of the bills before the committee. After all, its report was not final but needed the

,I

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.U.P. College of Law. SY 2012-2013 Page 59 of 65

approval of both houses of Congressto become valid as an act of the legislative department. The charge that in this case the Conference Committee acted as a third legislative chamber is thus without any basis. '

Nor is there any reason for requiring that the Committee's Report in these cases must have undergone three readings in each of the two houses. If that be the case, there would be no en,dto negotiation since each house may seek modifications of the compromise bill. The nature of the bill, therefore, requires that it be acted upon by each house on a "take it or leave it" basis, with the only alternative that if it is not approved by both houses, another conference ,committee must be appointed. But then again the result would still be a compromise measure that may not be wholly satisfying to both houses. Art. VI,' ~ 26(2) must, therefore, be construed as referring only to bills introduced for the first time in either house of Congress, not to the conference committee report. For if the purpose of requiring three readings is to give members of Congresstime to study bills, it cannot be gainsaid that H. No. 11197 was passed in the House after three reading; that in the Senate it was considered on first reading and then referred to a committee of that body; that although the Senate committee did not report out the House bill, it submitted a version (S. No. 1630) which it had prepared by "taking into consideration" the House bill; that for its part the Conference Committee consolidated the two bills and prepared a compromise version; that the Conference Committee Report was thereafter approved by the House and the Senate, presumably after appropriate study by their members. We cannot say that, as a matter of fact, the members of Congress were not fully informed of the provisions of the bill. The allegation that the Conference Committee usurped the legislative power of Congress is, in our view, without warrant in fact and in law.
I

Engrossment or Enrollment of the Bill Once the bill is approved by both houses, the bill is engrossed or enrolled (see supra). The Enrolled copy of the Bill bears the certification by the presiding officers (Senate Presidj=nt and Speaker of the House) that this enrolled copy is the version passed by each house. (The effects of this enrolled bill are discussed above.) Approval by the President Art. VI, Sec. 27 (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objection to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In such cases, the votes of each House shall be determined by yeas or nays, and the Inames of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law i!lS if he had signed
it.

(2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object. The bill as approved by Congress and certified by its presiding officers is then presented to the President. Generally, there are 3 ways for the bill to become a law: 1) When it is approved by the President;

1" Semester,

Notes in Political Law Atty. Rene Callanta, Jr. P.U.P. College of Law. SY 2012-2013 Page 60 of 65

2) When the vote of the President is overridden by 2/3 vote. of all the members of both houses; 3) Upon failure of the President to veto the bill and to return it with his objections, to the House where it originated, within 30 days after the date of receipt. [Sec. 27(1).] But there are 2 cases when a bill becomes a law without the sIgnature of the President: 1) When the veto of the President is overridden by 2/3 vote of all the members of both houses; and 2) When the bill is one calling a special election for President and Vice-President I under Art. VII, Sec. 10. Here the bill becomes law upon 3rd and final reading . . The Acting President is not required to sign, for he may have an interest in the question.

C. THE PRESIDENT'S VETO POWER Qualified versus Absolute Veto Veto Power of the President Message Veto versus Pocket Veto.-- There is only one way for the President to veto a,bill: By disapproving it, and returning it to the house where the bill originated, together with his "veto message" (explaining his objections to the bill, which message shall be entered in the Journal within 30 days after receipt (Sec. 27(1)] .No "pocket veto" in the Philippines.-the Philippines. What is a pocket veto? Compare with Art. I, Sec. 7 of US Constitution: If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return in which case it shall not be a law. (The United States Constitution.) A pocket veto, as in the US requires two concurring elements, (1) failure to act on the bill and (2) the reason he does not return the bill to Congress is that Congress is not in session. Thus, if the US Congress is in session, failure by the President to act will not result the veto of the bill. In this regard, there is no "pocket veto" in

Art. If Sec. 7.

in

In the Philippines, there is no such provision. Inaction by the President for 30 dilYS never produced a veto. If Congress is not in session, the President must still act in order to veto the bill. Only he needs to communicate the veto to Congress without need of returning the vetoed bill with his veto message. Veto Message: When the President vetoes a measure, he should return the measure to the House of origin, indicating his objections thereto in what is commonly known as a "veto message" so that the same can be studied by the members for possible overriding of his veto. Is partial veto allowed under the Constitution? The general' rule is that the President must approve entirely or disapprove in toto. The exception applies to appropriation, revenue and tariff bills, any particular item or items of which may be disapproved without affecting the item or items to which he does not object.
I

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College a/Law. SY 2012-2013 Page 610/65

Cruz: In Bolinao Electronics Corp. v. Valencia, 11 SCRA 486, a public works bill contained an item appropriating a certain sum for assistance to television stations, subject to the condition that the amount would not be available in places where there were commercial television stations in operation. President Macapagal approved the appropriation but vetoed the condition. When his act was subsequently challenged in the SC, it was held that the veto was ineffectual and that the approval of the item carried with it the approval of the condition attached to it. xxx In this case, the SC further held that the veto power is "destructive" in nature, not creati'1e, and so the President is limited to approving or disapproving the bill, in toto. He cannot choose only the parts that he likes and vetoes the rest. Thus, in this case, the President was prohibited from vetoing only the part prohibiting the Philippine Broadcasting System from operating outside a certain radius, while approving the rest of the appropriation for this government radio station. Thus, when the President approves one part and vetoes another, the veto is ineffective: it is as though there is no veto. But in the case of appropriations, revenue or tariff bills, the President shall have the power to veto any particular item or items, without vetoing the other item or items to which he does not object. The reason is, these items are really independent of each other, and so every item is deemed a bill in itself. But as to each item, he cannot approve part and disapprove the other part.
I

In Gonzales v. Macaraig, 191 SCRA 452, the President of the Philippines vetoed a provision in the 1989 General Appropriations Bill and later a similar provision in the 1990 General Appropriations Bill [providing for a prohibition against the restoration or increase of recommended appropriations disapproved and/or reduced by Congress]. In her veto message, President Aquino said that such provision violates Art. VI Sec. 25(5) and that it nullifies her power and that of the Senate President, Speaker, Chief Justice and Heads of Constitutional Commissions, to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations, even in cases of calamity or in the event of urgent need to accelerate the implementation of essential public services. In rejecting the challenge to the veto, the SC declared that the restrictive interpretation urged by the petitioners that the President may not veto a provision without vetoing the entire bill not' only disregards the basic principle that a distinct and severable part of a bill may be subject of a separate veto but also overlooks the Constitutional mandate that any provision in the general appropriations bill shall relate specifically to some particular appropriation therein and that aflV such provision shall be limited in its operate to the appropriation to which it relates fArt. V1, Sec. 25(5).J In other words, a provision in an appropriation bill is limited in its operation to some particular appropriation to which it relates, and does not relate to the entire bill. In this case, the challenged prOVISionsdo not relate to any particular or distinctive appropriation. They apply generally to all items disapproved or reduced by Congress in the Appropriations Bill. Also, such provisions are more of an expression of Congressional policy rather than a budgetary appropriation. They should be treated as items for the purpose of the President's veto power. Bengzon v. Drilon 208 seRA 133 (1992)
FACTS: The issue here is the constitutionality of the veto by the President of certain provisions in the 1992 General Appropriations Act relating to the payment of adjusted pensions to retired justices of the SC and the CA. According to Pres. Aquino, the payment of such adjusted pensions (adjusted with respect to the peso

'lsI

Notes in Political Law Atty. Rene Callanta, Jr. Semester, P.U.P. College of Law. SY 2012-2013 Page 62 of 65

purchasing power) would erode the govt's collective effort to enforce the policy of standardization of compensation and that govt. should not grant distinct privileges to select groups of officials over those of the vast majority of civil service servants. The retired justices asserted that such subject veto is not an item veto.
HELD: The veto power of the President is not absolute. The Executive must veto a bill in its entirety or not at all. However when it comes to appropriation, revenue or tariff bills, the Administration needs the money to run the machinery of govt. and it can not veto the entire bill even if it may contain objectionable features. This is the reason for the item veto power. .

The Constitution provides that only a particular item or items may be vetoed. The power to disapprove any item or items in an appropriate bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item.
I

The terms "item" and "provision" are different. An item refers to the particulars, the details, the distinct and severable parts of the bill. It is an indivisible sum of money dedicated to a stated purpose. An item obviously means an item which in itself is a specific appropriation of money, and not some general provision of law. In this case, the President did not veto an item. She vetoed the methods or systems placed by Congress to insure that permanent and continuing obligations to certain officials will be paid when they fall due. In this case, the vetoed portions are not items but are provisions. The augmentation of specific appropriations found inadequate to pay retirement payments, by transferring savings from other items of appropriations is a provision and not an item. It gives the SC Chief Justice the power to transfer funds from one item to another. There is no specific appropriation of money involved. Neither may the veto power be exercised as a means of repealing existing Iilws. This is arrogating unto the Presidencylegislative powers which are beyond its authority.
CIR v. eTA, 185 SCRA 329 (1990) HELD: An "item" in a revenue bill does not refer to an entire section imposing a particular kind of tax, but

rather to the subject of the tax and the tax rate. In the portion of a revenue bill which actually imposes a tax, a section identifies the tax and enumerates the persons liable therefor with the corresponding tax rate. To construe the word "item" as referring to the whole section would tie the President's hand in choosing either to approve the whole section at the expense of also approving a provision therein which he deems unacceptable or veto the entire section at the expense of foregoing the collection of the kind of tax altogether. The evil which was sought to be prevented in giving the President the power to disapprove items in a revenue bill would be perpetrated rendering that power inutile (see Commonwealth ex reI. Elkin v. Barnett, 199 Pa. 161, 55 LRA 882 [1901]).

Overriding the Veto Upon consideration of the objections raised by the Presiden~ in his veto message, the House from which the bill originated shall reconsider the bill. If after such reconsideration, 2/3 of all the members of such house shall agree to pass the bill, it shall be sent together with the objections of the President, to the other house by which it shall likewise be reconsidered. If approved by 2/3 of all the members of that house, it shall become a law. In all such cases, the votes of each house shall be determined by "yeas" or "nays", and the names of the members voting for or against shall be entered in the Journal. [VI, 27(1)]
PHILCONSA v. Enriquez, 235 SCRA 506 (1994)

HELD: We rule that a member of the Senate, and of the House of Representatives for that matter, has the

legal standing to question the validity of a presidential veto or a condition imposed on an item in an appropriation bill. Where the veto is claimed to have been made without or in excess of the authority vested on the President by the Constitution, the issue of an impermissible intrusion of the Executive into the domain of the Legislature arises (Notes: Congressional Standing To Challenge Executive Action, 122 University of Pennsylvania Law Review 1366 [1974]).

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.U.P. College a/Law. SY 2012-2013 Page 63 0/65

To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution (Coleman v. Miller, 307 U.s. 433 [1939); Holtzman v. Schlesinger, 484 F. 2d 1307 [1973}). An act of the Executive which injures the institution of Congresscauses a derivative but nonetheless substantial injury, which can be questioned by a member of Congress (Kennedy v. Jones, 412 F. Supp. 3S3 [1976}). In such a case, any member of Congresscan have a resort to the courts. Former Chief Justice Enrique M. Fernando, as Amicus Curiae, noted; ''This is, then, the clearest case of the Senate as a whole or individual Senators as such having ,substantial interest in the question at issue. It could likewise be said that there was requisite 'injury to their rights as Senators. It would then be futile to raise any locus standi issue. Any intrusion into the domain appertaining to the Senate is to be resisted. Similarly, if the situation were reversed, and it is the Executive Branch that could allege a transgression, its officials could likewise file the corresponding action. What cannot be denied is that a Senator has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office" (Memorandum, p. 14). It is true that the Constitution provides a mechanism for overriding a veto (Art. VI, Sec. 27 [1]). said remedy, however, is available only when the presidential veto is based on policy or political considerations but not when the veto is claimed to be ultra vires. In the latter case, it be<;omesthe duty of the Court to draw the dividing line where the exercise of executive power ends and the bounds of legislative jurisdiction begin.
HELD: The veto power, while exercisable by the President, is actually 11 part of the legislative process (Memorandum of Justice Irene Cortes as Amicus Curiae, pp. 3-7). That is why it is found in Article VI on the

Legislative Department rather than in Article VII on the Executive Department in the Constitution. There is, therefore, sound basis to indulge in the presumption of validity of a veto. The burden shifts on those questioning the validity thereof to show that its use is a violation of the Constitution.

Under his general veto power, the President has to veto the entire bill, not merely parts thereof (1987 Constitution, Art. VI, sec. 27[1}). The exception to the general veto power is the power given to the President to veto any particular item or items in a general appropriations bill (1987 Constitution, Art. Iff, Sec. 27 [2}). In so doing, the President must veto the entire item. A general appropriations bill is a special type of legislation, whose content is limited to specified sums of money dedicated to a specific purpose or a separate fiscal unit (Beckman, The Item Veto Power of the Executive, 31 Temple Law Quarterly 27 [19S7}). The item veto was first introduced by the Organic Act of the Philippines passed by the U.S. Congress on August 29, 1916. The concept was adopted from some State Constitutions. Cognizant of the legislative practice of inserting provisions, including conditio"ns, restrictions and limitations, to items in appropriations bills, the Constitutional Convention added the following sentence to Section 20 (2), Article VI of the 1935 Constitution: "When a provision of an appropriation bill affects one or more items of the same, the President 'cannot veto the provision without at the same time vetoing the particular item or items to which it relates." In short, under the 1935 Constitution, the President was empowered to veto separately not only items in an appropriations bill but also "provisions." While the 1987 Constitution did not retain the aforementioned sentence added to section 11 (2) of Article VI of the 1935 Constitution, it included the following provision: "No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates" (Art. VI, Sec. 25 [2]). In Gonzales v. Macaraig (191 SCRA 4S2), we made it clear that the omission of that sentence of Section 16 (2) of the 1935 Constitution in the 1987 Constitution should not be interpreted to mean the disallowance of the power of the President to veto a "provision."

Notes in Political Law Atty. Rene Callanta, Jr. 1st Semester, P.u.P. College of Law. SY 2012-2013 Page 64 of 65

As the Constitution is explicit that the provision which Congresscan include in an appropriations bill must "relate specifically to some particular appropriation therein" and "be limited in its operation to the appropriation to which it relates," it follows that any provision which does not relate to any particular item, or which extends in its operation beyond an item of appropriation, is considered "an inappropriate provision" which can be vetoed separately from an item. Also to be included in the category of "inappropriate provisions" are unconstitutional provisions and provisions which are intended to amend other laws, because clearly these kind of laws have no . place in an appropriations bill. These are matters of general legislation more appropriately dealt with in separate enactments. Former Justice Irene Cortes, as Amicus Curiae, commented that Congress cannot by law establish conditions for and regulate the exercise of powers of the President given by the Constitution for that would be an unconstitutional intrusion into executive prerogative. The doctrine of "inappropriate provision" was well elucidated in Henry v. Edwards, supra., thus: "Just as the President may not use his item-veto to usurp constitutional powers conferred on the legislature, neither can the legislature deprive the Governor of the constitutional powers conferred on him as chief executive officer of the state by including in a general appropriation bill matters more properly enacted in separate legislation. The Governor's constitutional power to veto bills of general legislation ... cannot be abridged by the careful placement of such measures in a general appropriation bill, thereby forcing the Governor to choose between approving unacceptable substantive legislation or vetoing items' of expenditures essential to the operation of government. The legislature cannot by location of a bill give it immunity from executive veto. Nor can it circumvent the Governor's veto power over substantive legislation by artfully drafting general law measures so that they appear to be true conditions or limitations on an item of appropriation. Otherwise, the legislature would be. permitted to impair the constitutional responsibilities and functions of a co-equal responsibilities and functions of a coequal branch of government in contravention of the separation of powers doctrine ... We are no more willing to allow the legislature to use its appropriation power to infringe on the Governor's constitutional right to veto matters of substantive legislation than we are to allow Ithe Governor to encroach on the constitutional powers of the legislature. In order to avoidthis .'result, we hold that, when the legislature inserts inappropriate provisions in a general appropriation bill, such provisions must be treated as 'items' for purposes of the Governor's item veto power over general appropriation bills. xxx xxx xxx "... Legislative control cannot be exercised in such a manner as to encumber the general appropriation bill with veto-proof 'logrolling measures,' special interest provisions which could not succeed if separately enacted, or 'riders,' substantive pieces of legislation incorporated in a bill to insure passage without veto.... "

D. LEGISLATIVE VETOES The Congress cannot deem a draft submitted by an executive 'agency passed as law by it mere inaction within a certain period. It must go through the 3 readings and the submission of the bill to the President, as required by the Constitution. In Miller v Mardo, 2 SeRA 298(1961),the SC struck down as unconstitutional Sec. 6 of RA 997, which provided that the reorganization plan drafted by the Department of Labor and submitted to President for approval shall be deemed as approved by Congress after its adjournment, unless in the meantime, Congress by resolution disapproved the plan. It struck down as well the Reorganization Plan drafted pursuant to this law. In so holding, the Court ruled that the approval of a bill cannot be made by Congress by mere silence, adjournment or concurrent resolution. The Constitution requires the two houses to hold separate session for deliberation, and to submit the determination of one to the separate determination of the other, unless a joint session is provided for. This method of passing a law amounts to an abdication by Congress of its legislative prerogatives to the Executive.

E. EFFECTIVITY OF LAWS

Notes in Political Law Atty. Rene Callanta, Jr. 1" Semester, P.u.P. College o/Law. SY 2012-2013 Page 650/65

Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. xxx (Civil Code) When a bill becomes a law through any of the 3 means mentioned above, the law does not become effective at once. According to the ruling upon reconsideration in Tanada v. Tuvera, 136 SCRA 27 (1985), in addition to the date fixed either by the effectivity clause of the statute, or, in its absence, by Art. 2 of the Civil (15 days after its publication), there must first be a publication of the law either in the Official Gazette or in a newspaper of generCjlI circulation [EO 200]. Otherwise, there is a violation of due process. This requirement for publication applies to any kind of law, even laws which are not of general application, private laws (e.g. law granting citizenship to X), laws of local application, and rules and regulations of substantive character. In People v. Que Po Lay, 94 Phil 640 (1956), a CB circular governing the remittance of dollars with corresponding forfeiture in case of violation, was held to require publication, since it had the nature of a penal rule. Executive Order No. 200, June 18, 1987 Art. 2. Laws shall take effect after fifteen (lays following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. (as amended by EO 200.)
I

9. INITIATIVE

AND REFERENDUM,

Initiative is the power of the people to propose bills and laws, and to enact or reject them at the polls, independent of the legislative assembly. It is the right of a group of citizens to introduce a matter for legislation either to the legislature or directly to the voters. Referendum is the right reserved to the people to adopt or reject any act or measure which has been passed by a legislative body and which in most cases would without action on the part of the electors become a law, It is a method of submitting an impt, legislative measure to a direct vote of the whole people, the submission of a law passed by the legislature for their approval or rejection. '