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POLITICAL AND INTERNATIONAL LAW

Bar Exam Reviewer

by

ATTY. JERICHO B. DEL PUERTO

Lawyer, Author, Mentor

Juris Doctor, Law College of Law

Order of the Purple Feather (2008-09) University of the Philippines, Diliman (2007-2011)

Cum Laude, A.B. Philosophy College of Social Sciences and Philosophy

University of the Philippines, Diliman (2003-2007)

©2021, BARMENTOR.PH. All rights reserved. www.barmentor.ph

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COPYRIGHT NOTICE

COPYRIGHT © 2021, JERICHO B. DEL PUERTO. All rights reserved. No portion of this book may be reproduced in any form or manner without the written permission from the author. For permissions, contact: info@barmentor.ph Book Cover by Shara Mae S. Aurellano. Printed in the Philippines, 2021 edition.

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DEDICATION

To

soon to be lawyers,

may your bar exam review

and bar exam

be meaningful and insightful.

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I. The 1987 Constitution

A. Nature and concept of a constitution 1. CONCEPT a. Fundamental law of the land A constitution is the “fundamental and paramount law of the nation. (Manila Prince Hotel v. GSIS, G.R. No. 122156, 03 February 1997) b. Body of rules and maxims A constitution is “[t]hat body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.” (Cooley, Constitutional Limitations 2nd ed., 1871, pp. 2, 38, cited in Corwin, Edward S., The Constitution as Instrument and as a Symbol, The American Political Science Review, pp. 1071, No. 6, Vol. XXX, December 1936.) c. System of fundamental laws 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 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. (Manila Prince Hotel v. GSIS, supra.) 2. DOCTRINE OF CONSTITUTIONAL SUPREMACY Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract. (Ibid.) 3. SELF-EXECUTORY v. NON-SELF EXECUTORY a. Self executory Unless the provisions clearly express the contrary, the provisions of the Constitution should be considered self-executory. There is no need for legislation to implement

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these self-executing provisions. (Imbong v. Ochoa, En Banc, G.R. No. 204819, 08 April 2014)

1) Presumption in favor of self-executory As a general rule, the provisions of the Constitution are considered self-executing, and do not require future legislation for their enforcement. For if they are not treated as self-executing, the mandate of the fundamental law can be easily nullified by the inaction of Congress. However, some provisions have already been categorically declared by this Court as non self-executing. (Tondo Medical Center Employees Association v. CA, En Banc, G.R. No. 167324, 17 July 2007) Unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has always been, that – in case of doubt, the Constitution should be considered self-executing rather than non-self-executing… 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. (Manila Prince Hotel v. GSIS, En Banc, G.R. No. 122156, 03 February 1997) b. Non-self executory

1) Specific sections of Article II, XIII, XIV, XV By its very title, Article II of the Constitution is a “declaration of principles and state policies.” These principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. 23 They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. (Tañada v. Angara, En Banc, G.R. No. 118295, 02 May 1997) In Tañada v. Angara, the Court specifically set apart the sections found under Article II of the 1987 Constitution as non self-executing and ruled that such broad principles need legislative enactments before they can be implemented: By its very title, Article II of the Constitution is a “declaration of principles and state policies.” … These principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. (Tondo Medical Center Employees Association v. CA, En Banc, G.R. No. 167324, 17 July 2007) Sections 11 (Personality Dignity) 12 (Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution are merely statements of principles and, policies. As such, they are basically not self-executing, meaning a law should be passed by Congress to clearly define and effectuate such principles. (Basco v. PAGCOR, G.R. No. 91649, 14 May 1991)

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2) No cause of action

As held in the leading case of Kilosbayan, Incorporated vs. Morato, the principles and state policies enumerated in Article II and some sections of Article XII are not “self-executing provisions, the disregard of which can give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional rights but guidelines for legislation.” Sections 11 and 14 of Article XIII and Sections 1 and 3 of Article XV, the State accords recognition to the protection of working women and the provision for safe and healthful working conditions; to the adoption of an integrated and comprehensive approach to health; to the Filipino family; and to the right of children to assistance and special protection, including proper care and nutrition are non self-executory as they are mere statements of principles and policies. As such, they are mere directives addressed to the executive and the legislative departments. If unheeded, the remedy will not lie with the courts; but rather, the electorate’s displeasure may be manifested in their votes. (Tondo Medical Center Employees Association v. CA, En Banc, G.R. No. 167324, 17 July 2007) In Basco v. Philippine Amusement and Gaming Corporation, this Court declared that Sections 11, 12, and 13 of Article II; Section 13 of Article XIII; and Section 2 of Article XIV of the 1987 Constitution are not self-executing provisions. In Tolentino v. Secretary of Finance, the Court referred to Section 1 of Article XIII and Section 2 of Article XIV of the Constitution as moral incentives to legislation, not as judicially enforceable rights. These provisions, which merely lay down a general principle, are distinguished from other constitutional provisions as non self-executing and, therefore, cannot give rise to a cause of action in the courts; they do not embody judicially enforceable constitutional rights. (Tondo Medical Center Employees Association v. CA, En Banc, G.R. No. 167324, 17 July 2007)

3) Exception: Right to a balanced and healthful ecology Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. (J. Feliciano, Concurring Opinion in Oposa v. Factoran, En Banc, G.R. No. 101083, 30 July 1993) 4. EFFECTIVITY The 1987 Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions. (Section 27, Article XVIII, 1987 Constitution) The 1987 Constitution was ratified in a plebiscite on February 2, 1987. (De Leon v. Esguerra, En Banc, G.R. No. 78059, 31 August 1987)

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B. Parts of a constitution 1. THE 3 PARTS OF A CONSTITUTION The 3 parts of a Constitution: 1) The Constitution of Liberty 2) The Constitution of Government 3) The Constitution of Sovereignty (Lambino v. COMELEC, G.R. No. 174153, 25 October 2006) a. Constitution of Liberty The Constitution of Liberty states the fundamental rights of the people. (Ibid.) b. Constitution of Government The Constitution of Government establishes the structure of government, its branches and their operation. (Ibid.) c. Constitution of Sovereignty The Constitution of Sovereignty provides how the Constitution may be changed. (Ibid.)

C. Amendments and revisions

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: amendment, revision, procedure, number of votes, ratification, plebiscite

1. CONCEPTS a. Amendment The significance of the term “amendment” implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed. (Lambino v. COMELEC, En Banc, G.R. No. 174153, 25 October 2006) An amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. (Ibid.)

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b. Revision Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. (Ibid.) c. Comparisons

1) General rule

a) Revision if several provisions b) Amendment if specific provision

Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended. (Ibid.) Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may generally be considered an amendment and not a revision. (Ibid.) For example, a change reducing the voting age from 18 years to 15 years is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100 percent to 60 percent is an amendment and not a revision. Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision. (Ibid.)

2) Exception

a) Revision if modification of specific provision results in substantial change However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. (Ibid.) For example, the substitution of the word “republican” with “monarchic” or “theocratic” in Section 1, Article II of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. (Ibid.) Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution. (Ibid.)

3) Tests whether amendment or revision

a) Quantitative test The quantitative test asks whether the proposed change is “so extensive in its provisions as to change directly the ‘substantial entirety’ of the constitution by the

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deletion or alteration of numerous existing provisions.” The court examines only the number of provisions affected and does not consider the degree of the change. (Ibid.)

b) Qualitative test The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will “accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision.” Whether there is an alteration in the structure of government is a proper subject of inquiry. (Ibid.) Thus, “a change in the nature of [the] basic governmental plan” includes “change in its fundamental framework or the fundamental powers of its Branches.” A change in the nature of the basic governmental plan also includes changes that “jeopardize the traditional form of government and the system of check and balances.” (Ibid.) d. Constituent Powers The powers provided in Article XVIII on Amendments or Revisions are called constituent powers. So when Congress acts under this provision, it acts not as a legislature exercising legislative powers. It acts as a constituent body exercising constituent powers. (J. Azcuna, Separate Opinion in Lambino v. COMELEC, G.R. No. 174153, 25 October 2006) The rules, therefore, governing the exercise of legislative powers do not apply, or do not apply strictly, to the actions taken under Article XVII. (Ibid.) Accordingly, since Article XVII states that Congress shall provide for the implementation of the exercise of the people's right directly to propose amendments to the Constitution through initiative, the act of Congress pursuant thereto is not strictly a legislative action but partakes of a constituent act. (Ibid.) As a result, Republic Act No. 6735, the act that provides for the exercise of the people of the right to propose a law or amendments to the Constitution is, with respect to the right to propose amendments to the Constitution, a constituent measure, not a mere legislative one. (Ibid.) 2. PROCEDURE The following is the procedure for amending or revising the Constitution: 1) Proposal for amendment or revision; and, 2) Ratifictaion via plebiscite. (Sections 1, 2, and Section 4, Article XVII, 1987 Constitution) a. Proposal for amendment or revision 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; 2) A constitutional convention; or 3) People’s initiative. (Section 1 and 2, Article XVII, Ibid.

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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. (Section 3, Article XVII, Ibid.)

1) Congress as a Constituent Assembly

a) 3/4 vote Where the Constitution says three-fourths (3/4) of all the members of the Senate and of the House of Representatives voting separately, it means an exact number, not susceptible of any more or less. All the members means that no single member should be excluded in the counting. It means not excluding three Senators and eight Representatives as respondents want us to do in order not to cause any inconvenience to the presiding officers and secretaries of both Houses of Congress who had the boldness of certifying that the three-fourth (3/4) rule had been complied within the adoption of the resolution in question, when such a certification is as false as any falsehood can be. (Mabanag v. Vito, En Banc, G.R. No. L-1123, 05 March 1947)

2) Constitutional Convention The Constitutional convention may be formed by either: 1) Congress through a 2/3 vote; or 2) The electorate through a referendum called by Congress through a majority vote. It is contrary to the “settled and well-understood parliamentary law (which requires that the) two houses are to hold separate sessions for their deliberations, and the determination of the one upon a proposed law is to be submitted to the separate determination of the other,” (Cooley, Constitutional Limitations, 7th ed., p. 187). (Miller v. Mardo, G.R. No. L-15138, 31 July 1961)

3) People’s initiative Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. (Section 2, Article XVII, 1987 Constitution)

a) Not self-executory The people’s initiative under Section 2, Article XVII of the 1987 Constitution is not self-executory. (Santiago v. COMELEC, G.R. No. 127325, 19 March 1997) R.A. No. 6735 (or “The Initiative and Referendum Act”) is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by “empowering” the COMELEC “to promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act.” (Ibid.)

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b) When a deliberative body and when a people’s initiative Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions. (Ibid.) NB: For more discussions, see: Part V. Legislative Department > I. Initiative and Referendum b. Ratification via plebiscite

1) Required number of votes

a) Congress as a Constituent Assembly, or a Constitutional Convention Any amendment to, or revision of, this Constitution under Section 1 (i.e. via Congress as a Constituent Assembly or Constitutional Convention) shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty (60) days nor later than ninety days after the approval of such amendment or revision. (Section 4, Article XVII, 1987 Constitution)

b) People’s Initiative Any amendment under Section 2 (i.e. People’s Initiaitive) shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty (60) days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition. (Paragraph 2, Section 4, Article XVII, Ibid.

2) Single election only It is the condition and limitation that all the amendments to be proposed by the same Convention must be submitted to the people in a single “election” or plebiscite. (Tolentino v. COMELEC, G.R. No. L-34150, 16 October 1971) The language of the constitutional provision says distinctly that either Congress sitting as a constituent assembly or a convention called for the purpose “may propose amendments to this Constitution,” thus placing no limit as to the number of amendments that Congress or the Convention may propose. (Ibid.) The same provision also as definitely provides that “such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification,” thus leaving no room for doubt as to how many “elections” or plebiscites may be held to ratify any amendment or amendments proposed by the same constituent assembly of Congress or convention, and the provision unequivocably says “an election” which means only one. (Ibid.)

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a) No piecemeal amendments

Since only one plebiscite/election is allowed, there can be no piecemeal amendments and them submit each to a plebiscite/election for ratification. (Ibid.)

3) Proper submission In order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole. (Ibid.) [A]mendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments, and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. The word “submitted” can only mean that the government, within its maximum capabilities, should strain every effort to inform citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent consent or rejection. (J. Sanchez, Dissent in Gonzales v. COMELEC, G.R. No. L-28224, 09 November 1967, cited in Tolentino v. COMELEC, supra.)

BAR EXAM QUESTION

(Question III, Political Law, 2018 Bar Exam) What and whose vote is required for the following acts: (2% each) (c) the amendment of a constitutional provision through a constituent assembly; Majority of the votes cast in a plebiscite involving the electorate

BAR EXAM QUESTION

(Question B.14, Political Law, 2019 Bar Exam) A proposal to change a provision of the 1987 Constitution has been put forth as follows:

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Original Text: "The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them" Proposed text: "The Philippines is a democratic and socialist State. Sovereignty resides in the party and all government authority emanates from it." (a) Is this an amendment or revision? Explain. (2.5%) (b) Briefly explain the process to revise the 1987 Constitution. (2.5%) Suggested Answer: (a) It is a revision since it will result in a change of the basic principles of Government from a republican State to a socialist State. Under jurisprudence, revision broadly implies a change that alters a basic principle in the constitution. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution (b) The following is the procedure for amending or revising the Constitution: 1) Proposal for amendment or revision; and, 2) Ratification via plebiscite. For the proposal for any revision of the Constitution, it may be proposed by: 1) The Congress, upon a vote of three-fourths of all its Members; 2) A constitutional convention; or 3) People’s initiative. (Section 1 and 2, Article XVII, 1987 Constitution) For the plebiscite, any revision of the Constitution to be ratified requires a majority of the votes cast.

BAR EXAM QUESTION

(Question I, Political Law, 2017 Bar Exam) A priority thrust of the Administration is the change of the form of government from unitary to federal. The change can be effected only through constitutional amendment or revision. (a) What are the methods of amending the Constitution? Explain briefly each method. (3%) (b) Cite at least three provisions of the Constitution that need to be amended or revised to effect the change from unitary to federal, and briefly explain why? (3%) Suggested Answer: (a) The following is the procedure for amending or revising the Constitution: 1) Proposal for amendment or revision; and, 2) Ratification via plebiscite.

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For the proposal for any revision of the Constitution, it may be proposed by: 1) The Congress, upon a vote of three-fourths of all its Members; 2) A constitutional convention; or 3) People’s initiative. (Section 1 and 2, Article XVII, 1987 Constitution) For the plebiscite, any revision of the Constitution to be ratified requires a majority of the votes cast. (b) The following should be amended or revised to effect a change from unitary to federal Government: 1) The provision describing the Philippines as a democratic and republic State to a democratic and federal State; 2) The provisions under Executive, Legislative, and Judiciary to align with a federal system of Government; and, 3) The provisions under Local Government Unit to increase its powers and functions to that of a federal system of Government. (Note: The answer requires application of a concept that is generally not taught in law schools as it is not part of current Philippine law – i.e., federal system of Government. Bar exam questions should be limited to concepts and principles under existing laws.)

3. LIMITATIONS a. Jus Cogens The Convention was legally free to postulate any amendment it may deem fit to propose – save perhaps what is or may be inconsistent with what is now known, particularly in international law, as Jus Cogens – not only because the Convention exercised sovereign powers delegated thereto by the people – although insofar only as the determination of the proposals to be made and formulated by said body is concerned - but, also, because said proposals cannot be valid as part of our Fundamental Law unless and until “approved by the majority of the votes cast at an election at which” said proposals “are submitted to the people for their ratification,” as provided in Section 1 of Art. XV of the 1935 Constitution. (Planas v. COMELEC, G.R. No. L-35925, 22 January 1973)

D. Methods of interpreting the Constitution 1. CONSTITUTIONAL CONSTRUCTION 1) Verba legis; 2) Ratio legis est anima; or 3) Ut magis valeat quam pereat

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a. Verba legis First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed. (Francisco v. House of Representative, G.R. No. 160261, 10 November 2003) We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are the cases where the need for construction is reduced to a minimum. (J.M. Tuason & Co., Inc. v. Land Tenure Administration, G.R. No. L-21064, 18 February 1970) b. Ratio legis est anima Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be interpreted in accordance with the intent of its framers. (Francisco v. House of Representative, supra.) A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose. (Civil Liberties Union v. Executive Secretary, G.R. No. 83896, 22 February 1991) The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers. (Nitafan v. Commissioner on Internal Revenue, G.R. No. 78780, 23 July 1987) c. Ut magis valeat quam pereat Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. (Francisco v. House of Representative, supra.)

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[T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution merely for the benefit of one person without considering that it could also affect others. When they adopted subsection 2, they permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document. (Chiongbian v. De Leon, G.R. No. L-2007, 31 January 1949) It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. (Civil Liberties Union v. Executive Secretary, G.R. No. 83896, 22 February 1991) In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory. (Civil Liberties Union v. Executive Secretary, supra.) If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. (Francisco v. House of Representative, supra.) While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention “are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face.” The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers’ understanding thereof. (Civil Liberties Union v. Executive Secretary, G.R. No. 83896, supra.)

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II. Basic Concepts

A. Declaration of principles and state policies 1. PRINCIPLES a. Democratic and republican state The Philippines is a democratic and republican State. (Section 1, Article II, 1987 Constitution)

1) To freely think The viability of a truly representative government depends upon the effective protection and exercise of the rights of the people to freely think, to freely discuss and to freely assemble for redress of their grievances; for these underlie the mechanisms of peaceful change in a democratic polity. There is ample authority in history for the belief that those who value freedom, but are frustrated in its exercise, will tend to resort to force and violent opposition to obtain release from their repression. So essential are these freedoms to the preservation and vitality of democratic institutions that courts have on numerous occasions categorized them as occupying a “preferred position” in the hierarchy of civil liberties. “That priority… gives these liberties a sanctity and a sanction not per permitting dubious instrusions.” (Gonzales v. COMELEC, G.R. No. L-27833, 18 April 1969) The democratic system provides for the accommodation of diverse ideas, including the unconventional and even the bizarre or eccentric. The will of the majority prevails, but it cannot regiment thought by prescribing the recitation by rote of its opinions or proscribing the assertion of unorthodox or unpopular views. (The Diocese of Bacolod v. COMELEC, G.R. No. 205728, 21 January 2015)

2) Self-determination thru voting in an election Fundamental to the idea of a democratic and republican state is the right of the people to determine their own destiny through the choice of leaders they may have in government. Thus, the primordial importance of suffrage and the concomitant right of the people to be adequately informed for the intelligent exercise of such birthright. (GMA Network, Inc. v. COMELEC, En Banc, G.R. No. 205357, 205374, 205592, 205852, 206360, 02 September 2014)

3) Representation Republicanism, in so far as it implies the adoption of a representative type of government, necessarily points to the enfranchised citizen as a particle of popular sovereignty and as the ultimate source of the established authority. He has a voice in his Government and whenever possible it is the solemn duty of the judiciary, when

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called upon to act in justifiable cases, to give it efficacy and not to stifle or frustrate it. This, fundamentally, is the reason for the rule that ballots should be read and appreciated, if not with utmost, with reasonable, liberality. (GMA Network, Inc. v. COMELEC, supra.) b. Sovereignty with the people Sovereignty resides in the people and all government authority emanates from them. (Section 1, Article II, 1987 Constitution)

1) Political speech Sovereignty resides in the people. Political speech is a direct exercise of the sovereignty. The principle of exhaustion of administrative remedies yields in order to protect this fundamental right. (The Diocese of Bacolod v. COMELEC, supra.) Political speech enjoys preferred protection within our constitutional order. (Ibid.)

2) No suspension of sovereignty during an enemy occupation in times of war If sovereignty is an essential attribute of our people, according to the basic philosophy of Philippine democracy, it could not have been suspended during the enemy occupation. Sovereignty is the very life of our people, and there is no such thing as “suspended life.” There is no possible middle situation between life and death. Sovereignty is the very essence of the personality and existence of our people. Can anyone imagine the possibility of “suspended personality” or “suspended existence” of a people? In no time during enemy occupation have the Filipino people ceased to be what they are. (Laurel v. Misa, G.R. No. L-409, 30 January 1947)

3) Property qualification to vote, unconstitutional That said property qualifications are inconsistent with the nature and essence of the Republican system ordained in our Constitution and the principle of social justice underlying the same, for said political system is premised upon the tenet that sovereignty resides in the people and all government authority emanates from them, and this, in turn, implies necessarily that the right to vote and to be voted for shall not be dependent upon the wealth of the individual concerned, whereas social justice presupposes equal opportunity for all, rich and poor alike, and that, accordingly, no person shall, by reason of poverty, be denied the chance to be elected to public office. (Maquera v. Borra, G.R. Nos. L-24761, L-24828, 07 September 1965) c. Renouncement of war; Adoption of international law The Philippines renounces war as an instrument of national policy, 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. (Section 2, Article II, 1987 Constitution)

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1) Renouncement of war As early as the 1935 Constitution, the Philippines has “renounced war as an instrument of national policy (Constitution, Article II, section 2), thus in consequence adopting the doctrine of the Briand-Kellogg Pact.” (J. Hilado, Concurring Opinion in Laurel v. Misa, G.R. No. L-409, 30 January 1947) When in World War I civilized humanity saw that war could be, as it actually was, employed for entirely different reasons and from entirely different motives, compared to previous wars, and the instruments and methods of warfare had been so materially changed as not only to involve the contending armed forces on well-defined battlefields or areas, on land, in the sea, and in the air, but to spread death and destruction to the innocent civilian populations and to their properties, not only in the countries engaged in the conflict but also in neutral ones, no less than 61 civilized nations and governments, among them Japan, had to formulate and solemnly subscribe to the now famous Briand-Kellogg Pact in the year 1928. (Ibid.)

2) Adoption of international law; Generally accepted principles of international law

Generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. (Mijares v. Ranada, G.R. No. 139325, 12 April 2005) “Generally accepted principles of international law” refers to norms of general or customary international law which are binding on all states, i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity, a person's right to life, liberty and due process, and pacta sunt servanda, among others. (Pharmaceutical and Health Care Association of the Philippines v. Duque, En Banc, G.R. No. 173034, 09 October 2007) d. Civilian authority supreme over military, whose duty is to serve and protect the people 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 the national territory. (Section 3, Article II, 1987 Constitution) 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, under conditions provided by law, to render personal military or civil service. (Section 4, Article II, Ibid.)

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The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. (Section 5, Article II, Ibid.)

1) The President as Commander-in-Chief: ceremonial, legal, administrative head of the AFP

While the President is still a civilian, Article II, Section 339 of the Constitution mandates that civilian authority is, at all times, supreme over the military, making the civilian president the nation’s supreme military leader. The net effect of Article II, Section 3, when read with Article VII, Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed forces. The Constitution does not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed forces to military experts; but the ultimate power is his. As Commander-in-Chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual. (Kulayan v. Tan, G.R. No. 187298, 03 July 2012)

2) Call-out powers That the power to call upon the armed forces is discretionary on the president. (Ibid.) When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President’s wisdom or substitute its own. However, this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis. (Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, 15 August 2000) There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. (Ibid.) 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. (Ibid.)

3) Authority over sentencing of erring military personnel The President also has the power to mitigate or remit a sentence under Article 49 of the Articles of War… Thus, the power of the President to confirm, mitigate and remit a sentence of erring military personnel is a clear recognition of the superiority of civilian

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authority over the military. (Garcia v. The Executive Secretary, G.R. No. 198554, 30 July 2012) e. Separation of the Church and State The separation of Church and State shall be inviolable. (Section 6, Article II, 1987 Constitution)

1) Inviolable The separation of Church and State shall be inviolable. (Re: Letter of Tony Q. Valenciano, Holding of Religious Rituals at the Halls of Justice Building in Quezon City, A.M. No. 10-4-19-SC, 07 March 2017)

2) Avoids weaponization by one of the other, and vice-versa The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for occasions might arise when the estate will use the church, and the church the state, as a weapon in the furtherance of their recognized this principle of separation of church and state in the early stages of our constitutional development; it was inserted in the Treaty of Paris between the United States and Spain of December 10, 1898, reiterated in President McKinley's Instructions of the Philippine Commission, reaffirmed in the Philippine Bill of 1902 and in the autonomy Act of August 29, 1916, and finally embodied in the constitution of the Philippines as the supreme expression of the Filipino people. It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere religious toleration. (Aglipay v. Ruiz, G.R. No. L-45459, 13 March 1937)

3) Freedom of religion The Filipino people in “imploring the aid of Almighty God” manifested their spirituality innate in our nature and consciousness as a people, shaped by tradition and historical experience. As this is embodied in the preamble, it means that the State recognizes with respect the influence of religion in so far as it instills into the mind the purest principles of morality. Moreover, in recognition of the contributions of religion to society, the 1935, 1973 and 1987 Constitutions contain benevolent and accommodating provisions towards religions such as tax exemption of church property, salary of religious officers in government institutions, and optional religious instructions in public schools. (Imbong v. Ochoa, G.R. No. 204819, 08 April 2014) When a case was filed to stop the holding of Catholic masses at the basement of the Hall of Justice of Quezon City, it was dismissed as the same was not considered to have violated the principle of separation of church and state – as this was aligned with the right to freedom of religion by the people. (Re: Letter of Tony Q. Valenciano, Holding of Religious Rituals at the Halls of Justice Building in Quezon City, supra.)

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Notwithstanding the principle of separation of church and state, the State still recognizes the inherent right of the people to have some form of belief system, whether such may be belief in a Supreme Being, a certain way of life, or even an outright rejection of religion. Our very own Constitution recognizes the heterogeneity and religiosity of our people. (Ibid.) Allowing religion to flourish is not contrary to the principle of separation of Church and State. In fact, these two principles are in perfect harmony with each other. (Ibid.) The State is aware of the existence of religious movements whose members believe in the divinity of Jose Rizal. Yet, it does not implement measures to suppress the said religious sects. Such inaction or indifference on the part of the State gives meaning to the separation of Church and State, and at the same time, recognizes the religious freedom of the members of these sects to worship their own Supreme Being. (Ibid.) As pointed out by Judge Lutero, “the Roman Catholics express their worship through the holy mass and to stop these would be tantamount to repressing the right to the free exercise of their religion. Our Muslim brethren, who are government employees, are allowed to worship their Allah even during office hours inside their own offices. The Seventh Day Adventists are exempted from rendering Saturday duty because their religion prohibits them from working on a Saturday. Even Christians have been allowed to conduct their own bible studies in their own offices. All these have been allowed in respect of the workers' right to the free exercise of their religion.” … Clearly, allowing the citizens to practice their religion is not equivalent to a fusion of Church and State. (Ibid.)

4) Compelling state interest

Religious freedom, however, is not absolute. It cannot have its way if there is a compelling state interest. To successfully invoke compelling state interest, it must be demonstrated that the masses in the QC Hall of Justice unduly disrupt the delivery of public services or affect the judges and employees in the performance of their official functions. (Ibid.) 2. STATE POLICIES a. Independent foreign policy 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. (Section 7, Article II, 1987 Constitution) NB: Connect with discussions under treaties, executive agreements, foreign military bases. b. No nuclear weapons The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory. (Section 8, Article II, Ibid.

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The charge that Enhanced Defense Cooperation Act (EDCA) allows nuclear weapons within Philippine territory is entirely speculative. It is noteworthy that the agreement in fact specifies that the prepositioned material shall not include nuclear weapons. Petitioners argue that only prepositioned nuclear weapons are prohibited by EDCA; and that, therefore, the U.S. would insidiously bring nuclear weapons to Philippine territory. The general prohibition on nuclear weapons, whether prepositioned or not, is already expressed in the 1987 Constitution. It would be unnecessary or superfluous to include all prohibitions already in the Constitution or in the law through a document like EDCA. (Saguisag v. Executive Secretary, En Banc, G.R. Nos. 212426, 212444, 12 January 2016) c. Social Justice 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. (Section 9, Article II, 1987 Constitution) The State shall promote social justice in all phases of national development. (Section 10, Article II, Ibid.)

1) Concept 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, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex. (J. Laurel in Calalang v. Williams, G.R. No. 47800, 02 December 1940) Social justice, therefore, must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest good to the greatest number." (Ibid.)

2) In relation to the underprivileged The policy of social justice is not intended to countenance wrongdoing simply because it is committed by the underprivileged. At best, it may mitigate the penalty but it certainly will not condone the offense. Compassion for the poor is an imperative of every humane society but only when the recipient is not a rascal claiming an undeserved privilege. Social justice cannot be permitted to be refuge of scoundrels any more than can equity be an impediment to the punishment of the guilty. Those who

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invoke social justice may do so only if their hands are clean and their motives blameless and not simply because they happen to be poor. This great policy of our Constitution is not meant for the protection of those who have proved they are not worthy of it, like the workers who have tainted the cause of labor with the blemishes of their own character. (Manila Water Company v. Del Rosario, G.R. No. 188747, 29 January 2014) d. Dignity of human person and full respect for human rights The State values the dignity of every human person and guarantees full respect for human rights. (Section 11, Article II, 1987 Constitution) e. Sanctity of family 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. (Section 12, Article II, Ibid.) 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. (Ibid.) f. Youth, Women in national building The State recognizes the vital role of the 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 civic affairs. (Section 13, Article II, Ibid.) The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men. (Section 14, Article II, Ibid.) The rearing of children (i.e., referred to as the “youth”) for civic efficiency and the development of their moral character are characterized not only as parental rights, but also as parental duties. This means that parents are not only given the privilege of exercising their authority over their children; they are equally obliged to exercise this authority conscientiously. (SPARK v. Quezon City, En Banc, G.R. No. 225442, 08 August 2017) While parents have the primary role in child-rearing, it should be stressed that “when actions concerning the child have a relation to the public welfare or the well-being of the child, the [Sltate may act to promote these legitimate interests.” Thus, “[i]n cases in which harm to the physical or mental health of the child or to public safety, peace, order, or welfare is demonstrated, these legitimate state interests may override the parents' qualified right to control the upbringing of their children.” (Ibid. citing Bykofsky v. Borough of Middletown, 401 F. Supp. 1242 (1975) U.S. Dist. LEXIS 16477)

1) Curfew ordinances The Curfew Ordinances are but examples of legal restrictions designed to aid parents in their role of promoting their children’s well-being. These ordinances further compelling State interests (particularly, the promotion of juvenile safety and the

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prevention of juvenile crime), which necessarily entail limitations on the primary right of parents to rear their children. Minors, because of their peculiar vulnerability and lack of experience, are not only more exposed to potential physical harm by criminal elements that operate during the night; their moral well-being is likewise imperiled as minor children are prone to making detrimental decisions during this time. (Ibid.)

a) Aligned with primary right of parents to rear their children Curfew Ordinances apply only when the minors are not – whether actually or constructively – accompanied by their parents. This serves as an explicit recognition of the State’s deference to the primary nature of parental authority and the importance of parents’ role in child-rearing. Parents are effectively given unfettered authority over their children’s conduct during curfew hours when they are able to supervise them. Thus, in all actuality, the only aspect of parenting that the Curfew Ordinances affects is the parents’ prerogative to allow minors to remain in public places without parental accompaniment during the curfew hours. In this respect, the ordinances neither dictate an over-all plan of discipline for the parents to apply to their minors nor force parents to abdicate their authority to influence or control their minors' activities. As such, the Curfew Ordinances only amount to a minimal - albeit reasonable - infringement upon a parent's right to bring up his or her child.

b) Reasonable limitation on rights of minors The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile safety and prevention of juvenile crime, inarguably serve the interest of public safety. The restriction on the minor’s movement and activities within the confines of their residences and their immediate vicinity during the curfew period is perceived to reduce the probability of the minor becoming victims of or getting involved in crimes and criminal activities. (Ibid.)

BAR EXAM QUESTION

(Question A.9, Political Law, 2019 Bar Exam) The unabated rise of criminality and the reported identification of delinquent children loitering in the wee hours of the night prompted City Z to implement a curfew ordinance. Minors unaccompanied or unsupervised on the streets by their parents or guardians between 10:00 P.M. to 5:00 A.M. may be apprehended by law enforcers subject to certain exclusive exceptions. These exceptions are: 1. minors running lawful errands, such as buying of medicines, using of telecommunications facilities for emergency purposes and the like; 2. night school students; and 3. minors working at night. Minors apprehended for violation of the curfew ordinance shall be required to undergo counseling, accompanied by their parents/guardians. (a) Does the curfew ordinance violative the primary right and duty of parents to rear their children? Explain. (2.5%)

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(b) Does the curfew ordinance infringe any of the minors’ fundamental rights? Explain. (2.5%) Suggested Answer: (a) No. Answer Under jurisprudence, the Curfew Ordinances are but examples of legal restrictions designed to aid parents in their role of promoting their children’s well-being. They apply only when the minors are not – whether actually or constructively – accompanied by their parents. This serves as an explicit recognition of the State’s deference to the primary nature of parental authority and the importance of parents’ role in child-rearing.. Rule In the case at bar, the curfew ordinance of City Z is consistent with jurisprudence as it applies only if the minors are unaccompanied or unsupervised on the streets by their parents or guardians between 10:00 om and 5:00 am. It also provides for exceptions. Apply Thus, the curfew ordinance does not violate the primary right and duty of parents to rear their children. Conclusion (b) No. Answer Under the jurisprudence, curfew ordinances further compelling State interest. Their purpose is the promotion of juvenile safety and prevention of juvenile crime, both of which serve the interest of public safety. Rule In the case at bar, the issuance of the curfew ordinance is aimed at reducing the criminality and protection of minors during the curfew period. There is compelling State interest given the unabated rise of criminality and the reported identification of delinquent children loitering in the wee hours of the night. Apply Thus, the curfew ordinance does not infringe on any of the minor’s fundamental rights. Conclusion

g. Right to health and healthful ecology The State shall protect and promote the right to health of the people and instill health consciousness among them. (Section 15, Article II, 1987 Constitution) 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. (Section 16, Article II, Ibid.) h. Priority to education, science, technology, arts, culture, sports The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development. (Section 17, Article II, Ibid.)

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i. Labor and private sector The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. (Section 18, Article II, Ibid.) The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments. (Section 20, Article II, Ibid.)

1) State’s duty to protect rights of workers In the 1987 Constitution, provisions on social justice and the protection of labor underscore the importance and economic significance of labor. Article II, Section 18 characterizes labor as a “primary social economic force,” and as such, the State is bound to “protect the rights of workers and promote their welfare.” Moreover, workers are “entitled to security of tenure, humane conditions of work, and a living wage.” (Philippine National Bank v. Padao, G.R. Nos. 180849 and 187143, 16 November 2011) The Labor Code declares as policy that the State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work. (Ibid.)

2) Recognition and protection of employer’s rights It is true the Constitution regards labor as “a primary social economic force.” But so does it declare that it “recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investment.” The Constitution bids the State to “afford full protection to labor.” But it is equally true that “the law, in protecting the right’s of the laborer, authorizes neither oppression nor self-destruction of the employer.” And it is oppression to compel the employer to continue in employment one who is guilty or to force the employer to remain in operation when it is not economically in his interest to do so. (Ibid.) j. Self-reliant and independent national economy The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. (Section 19, Article II, 1987 Constitution) k. Rural and agrarian reforms The State shall promote comprehensive rural development and agrarian reform. (Section 21, Article II, Ibid.) l. Indigenous cultural communities The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development. (Section 22, Article II, Ibid.)

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m. Non-governmental, community-based, sectoral organizations The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation. (Section 23, Article II, Ibid.) n. Communication and information in nation-building The State recognizes the vital role of communication and information in nation-building. (Section 24, Article II, Ibid.) o. Autonomy of local governments The State shall ensure the autonomy of local governments. (Section 25, Article II, Ibid.)

1) Concept Local autonomy signified “a more responsive and accountable local government structure instituted through a system of decentralization.” The grant of autonomy is intended to “break up the monopoly of the national government over the affairs of local governments not to end the relation of partnership and interdependence between the central administration and local government units...” Paradoxically, local governments are still subject to regulation, however limited, for the purpose of enhancing self-government. (Pimentel v. Aguirre, En Banc, G.R. No. 132988, 19 July 2000)

2) Right to self-determination in autonomous regions The grant of autonomy to the autonomous regions includes the right of self-determination-which in turn ensures the right of the peoples residing therein to the necessary level of autonomy that will guarantee the support of their own cultural identities, the establishment of priorities by their respective communities’ internal decision-making processes and the management of collective matters by themselves. (Mandanas v. Executive Secretary, G.R. Nos. 199802 and 208488, 03 July 2018)

3) Fiscal autonomy Under existing law, local government units, in addition to having administrative autonomy in the exercise of their functions, enjoy fiscal autonomy as well. Fiscal autonomy means that local governments have the power to create their own sources of revenue in addition to their equitable share in the national taxes released by the national government, as well as the power to allocate their resources in accordance with their own priorities. It extends to the preparation of their budgets, and local officials in turn have to work within the constraints thereof. They are not formulated at the national level and imposed on local governments, whether they are relevant to local needs and resources or not. Hence, the necessity of a balancing of viewpoints and the harmonization of proposals from both local and national officials, who in any case are partners in the attainment of national goals. (Pimentel v. Aguirre, supra.)

a) Includes power to tax Fiscal autonomy entails “the power to create… own sources of revenue. In turn, this power necessarily entails enabling local government units with the capacity to create

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revenue sources in accordance with the realities and contingencies present in their specific contexts. The power to create must mean the local government units’ power to create what is most appropriate and optimal for them; otherwise, they would be mere automatons that are turned on and off to perform prearranged operations. (Demaala v. COA, En Banc, G.R. No. 199752, 17 February 2015) Although the power to tax is inherent in the State, the same is not true for LGUs because although the mandate to impose taxes granted to LGUs is categorical and long established in the 1987 Philippine Constitution, the same is not all encompassing as it is subject to limitations as explicitly stated in Section 5, Article X of the 1987 Constitution, viz.: “SECTION 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.” (Batangas City v. Pilipinas Shell Petroleum Corporation, G.R. No. 187631, 08 July 2015) Per Section 5, Article X of the 1987 Constitution, “the power to tax is no longer vested exclusively on Congress; local legislative bodies are now given direct authority to levy taxes, fees and other charges.” Nevertheless, such authority is “subject to such guidelines and limitations as the Congress may provide”. (Pelizloy Realty Corporation v. The Province of Benguet, G.R. No. 183137, 10 April 2013)

4) Decentralization of administration only, not power Decentralization simply means the devolution of national administration, not power, to local governments. Local officials remain accountable to the central government as the law may provide. (Pimentel v. Aguirre, supra.) Autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments “more responsive and accountable,'” and “ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress.” At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises “general supervision” over them, but only to “ensure that local affairs are administered according to law.” He has no control over their acts in the sense that he can substitute their judgments with his own. (Limbona v. Mangelin, En Banc, G.R. No. 80391, 28 February 1989) Decentralization of power, on the other hand, involves an abdication of political power in the favor of local government units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to “self-immolation,” since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency. (Limbona v. Mangelin, supra.)

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Under the Philippine concept of local autonomy, the national government has not completely relinquished all its powers over local governments, including autonomous regions. Only administrative powers over local affairs are delegated to political subdivisions. The purpose of the delegation is to make governance more directly responsive and effective at the local levels. In turn, economic, political and social development at the smaller political units are expected to propel social and economic growth and development. But to enable the country to develop as a whole, the programs and policies effected locally must be integrated and coordinated towards a common national goal. Thus, policy-setting for the entire country still lies in the President and Congress. (Pimentel Jr. v. Aguirre, supra.) p. Public service The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. (Section 26, Article II, Ibid.) The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. (Section 27, Article II, Ibid.) 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. (Section 28, Article II, Ibid.)

B. Sovereignty 1. CONCEPT a. Absolute power The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. (Schooner Exchange v. M’Faddon, 7 Cranch 116, 136, cited in Reagan v. CIR, G.R. No. L-26379, 27 December 1969) Nothing is better settled than that the Philippines being independent and sovereign, its authority may be exercised over its entire domain. There is no portion thereof that is beyond its power. Within its limits, its decrees are supreme, its commands paramount. Its laws govern therein, and everyone to whom it applies must submit to its terms. That is the extent of its jurisdiction, both territorial and personal. Necessarily, likewise, it has to be exclusive. If it were not thus, there is a diminution of its sovereignty. (Reagan v. CIR, G.R. No. L-26379, 27 December 1969)

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b. Exceptions

1) Auto-limitation It is to be admitted that any state may, by its consent, express or implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of what otherwise is a power plenary in character. That is the concept of sovereignty as auto-limitation, which, in the succinct language of Jellinek, “is the property of a state-force due to which it has the exclusive capacity of legal self-determination and self-restriction.” A state then, if it chooses to, may refrain from the exercise of what otherwise is illimitable competence. (Reagan v. CIR, G.R. No. L-26379, 27 December 1969) The State’s laws may as to some persons found within its territory no longer control. Nor does the matter end there. It is not precluded from allowing another power to participate in the exercise of jurisdictional right over certain portions of its territory. If it does so, it by no means follows that such areas become impressed with an alien character. They retain their status as native soil. They are still subject to its authority. Its jurisdiction may be diminished, but it does not disappear. So it is with the bases under lease to the American armed forces by virtue of the military bases agreement of 1947. They are not and cannot be foreign territory. (Reagan v. CIR, G.R. No. L-26379, 27 December 1969) It is in the same spirit that we approach the specific question confronting us in this litigation. We hold, as announced at the outset, that petitioner was liable for the income tax arising from a sale of his automobile in the Clark Field Air Base, which clearly is and cannot otherwise be other than, within our territorial jurisdiction to tax. (Reagan v. CIR, G.R. No. L-26379, 27 December 1969)

2) Bill of rights The Constitution identifies the limitations to the awesome and near-limitless powers of the State. Chief among these limitations are the principles that no person shall be deprived of life, liberty, or property without due process of law and that private property shall not be taken for public use without just compensation. These limitations are enshrined in no less than the Bill of Rights that guarantees the citizen protection from abuse by the State. (DOTC v. Sps. Abecina, G.R. No. 206484, 29 June 2016) c. Resides in the people Sovereignty resides in the people and all government authority emanates from them. (Section 1, Article II, 1987 Constitution) 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 the national territory. (Section 3, Article II, Ibid.) Sovereignty is the very life of our people. (J. Perfecto, Concurring Opinion in Laurel v. Misa, G.R. No. L-409, 30 January 1947)

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1) Permanent allegiance A citizen or subject owes, not a qualified and temporary, but an absolute and permanent allegiance, which consists in the obligation of fidelity and obedience to his government or sovereign; and that this absolute and permanent allegiance should not be confused with the qualified and temporary allegiance which a foreigner owes to the government or sovereign of the territory wherein he resides, so long as he remains there, in return for the protection he receives, and which consists in the obedience to the laws of the government or sovereign. (Laurel v. Misa, G.R. No. L-409, 30 January 1947) d. Over and within national territory 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. (Article I, 1987 Constitution) e. Foreign policy 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. (Section 7, Article II, Ibid.) f. During enemy occupation The absolute and permanent allegiance of the inhabitants of a territory occupied by the enemy of their legitimate government or sovereign is not abrogated or severed by the enemy occupation, because the sovereignty of the government or sovereign de jure is not transferred thereby to the occupier. (Laurel v. Misa, G.R. No. L-409, 30 January 1947)

1) No suspension of sovereignty If it is not transferred to the occupant it must necessarily remain vested in the legitimate government; that the sovereignty vested in the titular government (which is the supreme power which governs a body politic or society which constitute the state) must be distinguished from the exercise of the rights inherent thereto, and may be destroyed, or severed and transferred to another, but it cannot be suspended because the existence of sovereignty cannot be suspended without putting it out of existence or divesting the possessor thereof at least during the so-called period of suspension; that what may be suspended is the exercise of the rights of sovereignty with the control and government of the territory occupied by the enemy passes temporarily to the occupant; that the subsistence of the sovereignty of the legitimate government in a territory occupied by the military forces of the enemy during the war, “although the former is in fact prevented from exercising the supremacy over them” is one of the “rules of international law of our times”; recognized, by necessary implication, in articles 23, 44, 45, and 52 of Hague Regulation; and that, as a corollary of the conclusion that the sovereignty itself is not suspended and subsists during the enemy occupation, the

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allegiance of the inhabitants to their legitimate government or sovereign subsists, and therefore there is no such thing as suspended allegiance. (Laurel v. Misa, G.R. No. L-409, 30 January 1947) 2. DE JURE SOVEREIGNTY v. DE FACTO SOVEREIGNTY a. Concepts A de jure Government is the legitimate government. On the other hand, a de facto Government is a government created by a usurper and all attributes of sovereignty are transferred from the previous legitimate government. The difference is material in times of war, particularly during an enemy occupation. b. A political question In deciding that the government established in these Islands by the Japanese military forces of occupation, under the name of Philippine Executive Commission and the Republic of the Philippines, were de facto governments, this Court attempted to exercise a power which exclusively belonged to the political departments of the United States and the Commonwealth Government; because according to the Supreme Court of the United States in the case of Jones vs. U.S. …, the question “Who is the sovereign, de jure or de facto of a territory is not a judicial, but a political question, the determination of which by the legislative and executive departments of any government conclusively binds, the judges, as well as other officers and subjects of the Government.” (Etorma v. Raveloi, En Banc, G.R. No. L-718, 24 March 1947) A government established in a territory under a sovereign de jure is a government de jure, but it is not true that a government established in a territory under a sovereign de jure cannot be a government de facto. (Etorma v. Raveloi, En Banc, G.R. No. L-718, 24 March 1947) c. The 3 classes of de facto Government The three classes of governments de facto set forth in the decision of this Court in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon and recognized by all the publicist and decisions of the Supreme Court of the United States, are governments de facto established in a territory which continued under the same sovereign de jure, or in which there was no change of sovereignty. (Etorma v. Raveloi, En Banc, G.R. No. L-718, 24 March 1947) The first, or government de facto in a proper legal sense, is that government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter, such as the government of England under the Commonwealth, first by Parliament and later by Cromwell as Protector. (Etorma v. Raveloi, En Banc, G.R. No. L-718, 24 March 1947) The second is 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 a government of paramount force, as the cases of Castine, in Maine, which was reduced to British possession in the war of 1812, and of Tampico, Mexico, occupied during the

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war with Mexico by the troops of the United States. (Etorma v. Raveloi, En Banc, G.R. No. L-718, 24 March 1947) And the third is that established as an independent government by the inhabitants of a country who rise in insurrection against the parent state, such as the government of the Southern Confederacy in revolt against the Union during the war of secession. (Etorma v. Raveloi, En Banc, G.R. No. L-718, 24 March 1947) d. Judicial decisions The validity of judicial acts which are not of political complexion of de facto governments established by the military occupant in an enemy territory, is based on the Regulations of the Hague Convention that contain the generally accepted principles of International Law, adopted as a part of the law of the Nation in section 3 of our Constitution, and is supported by Dr. Lauterpacht in his 6th edition of Oppenheim. (Etorma v. Raveloi, En Banc, G.R. No. L-718, 24 March 1947)

C. State immunity

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: State immunity, jure imperii v. jure gestonis, waiver or consent by the State, immunity for public officials, non-immunity of LGUs/agencies/etc., foreign State immunity, diplomatic immunity, immunity for international organizations

1. CONCEPT The State may not be sued without its consent. (Section 3, Article XVI, 1987 Constitution) No suit shall lie against the State except with its consent as provided by law. (Section 10, Chapter 3, Book I, E.O. 292, Administrative Code of 1987) Doctrine of sovereign immunity:The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability of the State, is expressly provided in Article XVI of the 1987 Constitution which states: Section 3. The State may not be sued without its consent. (Arigo v. Swift, G.R. No. 206510, 16 September 2014) Doctrine of the royal prerogative of dishonesty: The immunity of the State is also referred to as the doctrine of the royal prerogative of dishonesty” because it grants the state the prerogative to defeat any legitimate claim against it by simply invoking its non-suability. (Department of Agriculture v. NLRC, Salcedo, G.R. No. 104269, 11 November 1993) The rule that a state may not be sued without its consent, now embodied in Section 3, Article XVI of the 1987 Constitution, is one of the generally accepted principles of

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international law, which we have now adopted as part of the law of the land. (DOH v. Phil. Pharmawealth, Inc., G.R. No. 169304, 13 March 2007) The State may not be sued without its consent. This fundamental doctrine stems from the principle that there can be no legal right against the authority which makes the law on which the right depends. This generally accepted principle of law has been explicitly expressed in both the 1973 and the present Constitutions. (DOTC v. Sps. Abecina, G.R. No. 206484, 29 June 2016) In a republican state, like Philippines, government immunity from suit without its consent is derived from the will of the people themselves in freely creating a government “of the people, and for the people” – a representative government through which they have agreed to exercise the powers and discharge the duties of their sovereignty for the common good and general welfare. In so agreeing, the citizens have solemnly undertaken to surrender some of their private rights and interest which were calculated to conflict with the higher rights and larger interests of the people as a whole, represented by the government thus established by them all. One of those “higher rights,” based upon those “larger interests” is that government immunity. (METRAN v. Paredes, G.R. No. L-1232, 12 January 1948) b. The 2 concepts of sovereign immunity There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory, 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. (The Holy See v. Rosario, G.R. No. 101949, 01 December 1994)

1) For public acts or jure imperii: immunity applies Over the years, the State’s participation in economic and commercial activities gradually expanded beyond its sovereign function as regulator and governor. The evolution of the State’s activities and degree of participation in commerce demanded a parallel evolution in the traditional rule of state immunity. Thus, it became necessary to distinguish between the State’s sovereign and governmental acts (jure imperii) and its private, commercial, and proprietary acts (jure gestionis). Presently, state immunity restrictively extends only to acts jure imperii while acts jure gestionis are considered as a waiver of immunity. (DOTC v. Sps. Abecina, G.R. No. 206484, 29 June 2016) The fact that a non-corporate government entity performs a function proprietary in nature does not necessarily result in its being suable. If said non-governmental function, is undertaken as an incident to its governmental function, there is no waiver thereby of the sovereign immunity from suit extended to such government entity. (Mobil Philippines Exploration, Inc. vs. Customs Arrastre Service and Bureau of Customs, En Banc, G.R. No. L-231139, 17 December 1966) The Bureau of Customs, to repeat, is part of the Department of Finance, with no personality of its own apart from that of the national government. Its primary function is governmental, that of assessing and collecting lawful revenues from imported articles

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and all other tariff and customs duties, fees, charges, fines and penalties. To this function, arrastre service is a necessary incident. (Ibid.) Clearly, therefore, although said arrastre function may be deemed proprietary, it is a necessary incident of the primary and governmental function of the Bureau of Customs, so that engaging in the same does not necessarily render said Bureau liable to suit. For otherwise, it could not perform its governmental function without necessarily exposing itself to suit. Sovereign immunity, granted as to the end, should not be denied as to the necessary means to that end. (Ibid.) An unincorporated government agency without any separate juridical personality of its own enjoys immunity from suit because it is invested with an inherent power of sovereignty. Accordingly, a claim for damages against the agency cannot prosper; otherwise, the doctrine of sovereign immunity is violated. However, the need to distinguish between an unincorporated government agency performing governmental function and one performing proprietary functions has arisen. The immunity has been upheld in favor of the former because its function is governmental or incidental to such function; it has not been upheld in favor of the latter whose function was not in pursuit of a necessary function of government but was essentially a business. (Air Transportation Office v. Sps. Ramos, G.R. No. 159402, 23 February 2011)

2) For private acts or jure gestionis: no immunity Not all government entities, whether corporate or non-corporate, are immune from suits. Immunity from suits is determined by the character of the objects for which the entity was organized. (Ibid.) In our view, the CA thereby correctly appreciated the juridical character of the ATO as an agency of the Government not performing a purely governmental or sovereign function, but was instead involved in the management and maintenance of the Loakan Airport, an activity that was not the exclusive prerogative of the State in its sovereign capacity. Hence, the ATO had no claim to the State’s immunity from suit. (Ibid.)

a) Consent The doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen. (Santiago v. The Government of the Republic of the Philippines, G.R. No. L-48214, 19 December 1978) Case Law 1) In Santiago v. The Government of the Republic of the Philippines, the Governmennt’s alleged failure to abide by the conditions under which a donation was given should not prove an insuperable obstacle to a civil action, the consent likewise being presumed. The defense of immunity without the consent proves unavailing and is not material. (Ibid.)

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BAR EXAM QUESTION

(Question XV, Political Law, 2018 Bar Exam) Annika sued the Republic of the Philippines, represented by the Director of the Bureau of Plant Industry, and asked for the revocation of a deed of donation executed by her in favor of said Bureau. She alleged that, contrary to the terms of the donation, the donee failed to install lighting facilities and a water system on the property donated, and to build an office building and parking lot thereon, which should have been constructed and made ready for occupancy on or before the date fixed in the deed of donation. The Republic invoked state immunity and moved for the dismissal of the case on the ground that it had not consented to be sued. Should the Republic’s motion be granted? (2.5%) Suggested Answer: No. Answer Under jurisprudence, the doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen. Hence, the Government’s failure to abide by the conditions under which a donation was given should not prove an insuperable obstacle to a civil action, the consent likewise being presumed. The defense of immunity without the consent proves unavailing and is not material. Rule In the case at bar, Annika’s donation came with conditions that were presumably agreed up on by the Government when it accepted the donated land. Accordingly, the Government cannot invoke state immunity to defeat to defeat the conditions imposed by Annika resulting in an injustice. Apply Thus, the Republic’s motion should be denied. Conclusion

c. Waiver or consent by the State The State’s consent may be given either expressly or impliedly. (DOH v. Phil Pharma Wealth, Inc., G.R. No. 182235, 20 February 2013)

1) Expressly Express consent may be made through a general law or a special law. (Ibid.) Express consent is effected only by the will of the legislature through the medium of a duly enacted statute. (U.S. v. Guinto, En Banc, G.R. No. 76607, 26 February 1990) 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 claims involving liability arising from contract, express or implied,

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which could serve as a basis of civil action between private parties.” (DAR v. NLRC, G.R. No. 104269, 11 November 1993) Case Law 1) In Merritt v. Government of the Philippine Islands, a special law was passed to enable a person to sue the government for an alleged tort. (cited in U.S. v. Guinto, supra.) 2) In DAR v. NLRC, the claims of private respondents, i.e. for underpayment of wages, holiday pay, overtime pay and similar other items, arising from the Contract for Service, clearly constitute money claims. Act No. 3083, aforecited, gives the consent of the State to be sued upon any moneyed claim involving liability arising from contract, express or implied. (Supra.)

a) Monetary claim first brought to the Commissoin on Audit (COA) Pursuant, to C.A. No. 327, as amended by P.D. No. 1145, the money claim must first be brought to the Commission on Audit. (Ibid.)

b) Strictly construed Statutory provisions waiving State immunity are construed in strictissimi juris. For, waiver of immunity is in derogation of sovereignty. (DOH v. Phil Pharma Wealth, Inc., supra.)

2) Impliedly Implied consent 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. (Ibid.) QUALIFICATION: 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. (Ibid.)

a) When Government perpetrates injustice to a citizen The doctrine of state immunity cannot serve as an instrument for perpetrating an injustice to a citizen. (DOTC v. Sps. Abecina, G.R. No. 206484, 29 June 2016) It is unthinkable then that precisely because there was a failure to abide by what the law requires, the government would stand to benefit. 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. It is not too much to say that when the government takes any property for public use, which is conditioned upon the payment of just compensation, to be judicially ascertained, it makes manifest that it submits to the jurisdiction of a court. There is no thought then that the doctrine of immunity from suit could still be appropriately invoked. (Ministerio v. CFI of Cebu, En Banc, G.R. No. L-31635, 31 August 1971)

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Where the Department of Transportation and Communications (DOTC) mistakenly encroached on private properties when it constructed the local telephone exchange, it was held that the Department’s entry into and taking of possession of the respondents’ property amounted to an implied waiver of its governmental immunity from suit. (DOTC v. Sps. Abecina, supra.) The doctrine of sovereign immunity cannot be successfully invoked to defeat a valid claim for compensation arising from the taking without just compensation and without the proper expropriation proceedings being first resorted to of the plaintiffs’ property. (Air Transportation Office v. Sps. Ramos, supra.) The doctrine of sovereign immunity was not an instrument for perpetrating any injustice on a citizen. In exercising the right of eminent domain, the State exercised its jus imperii, as distinguished from its proprietary rights, or jus gestionis; yet, even in that area, where private property had been taken in expropriation without just compensation being paid, the defense of immunity from suit could not be set up by the State against an action for payment by the owners. (Ibid.)

b) Agreement to enter into arbitration The agreement to submit disputes to arbitration is construed as an implicit waiver of immunity from suit. (China National Machinery & Equipment Corp. [Group] v. Santamaria, G.R. No. 185572, 07 February 2012)

BAR EXAM QUESTION

(Question II-A, Political Law, 2017 Bar Exam) Under the doctrine of immunity from suit, the State cannot be sued without its consent. How may the consent be given by the State? Explain your answer. (3%) Suggested Answer: The State may give consent either expressly or impliedly. 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 claims involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties. Implied consent is conceded when the State itself commences litigation, thus opening itself to a counterclaim or when it enters into a proprietary 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. However, contract entered into in the exercise of its sovereign functions, the doctrine of state immunity applies. Further, should the Government perpetrate an injustice to a citizen, it amounts to an implied waiver of immunity as well.

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d. No automatic liability, in case of waiver There seems to be a failure to distinguish between suability and liability and a misconception that the two terms are synonymous. 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. (U.S.A. v. Guinto, supra.) e. Not applicable if suit is for preliminary injunction and mandamus The defense of state immunity from suit does not apply in causes of action which do not seek to impose a charge or financial liability against the State… As regards petitioner DOH, the defense of immunity from suit will not avail despite its being an unincorporated agency of the government, for the only causes of action directed against it are preliminary injunction and mandamus. Under Section 1, Rule 5823 of the Rules of Court, preliminary injunction may be directed against a party or a court, agency or a person. (DOH v. Phil. Pharmawealth, Inc., supra.) 2. PUBLIC OFFICIALS

1) General rule: covered by immunity 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. The suit is regarded as one against the state where satisfaction of the judgment against the officials will require the state itself to perform a positive act, such as the appropriation of the amount necessary to pay the damages awarded against them. (DOH v. Phil. Pharmawealth, Inc., G.R. No. 169304, 13 March 2007) The suability of a government official depends on whether the official concerned was acting within his official or jurisdictional capacity, and whether the acts done in the performance of official functions will result in a charge or financial liability against the government. (Ibid.)

2) Exception 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 plaintiff. 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 equity 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

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sued without its consent.’ The rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice. (Shauf v. Court of Appeals, G.R. No. 90314, 27 November 1990) Hence, the rule does not apply where the public official is charged in his official capacity for acts that are unauthorized or unlawful and injurious to the rights of others. 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. (DOH v. Phil. Pharmawealth, Inc., supra.) For an officer who exceeds the power conferred on him by law cannot hide behind the plea of sovereign immunity and must bear the liability personally. (Ibid.) 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 ordinary 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 or jurisdiction. (Arigo v. Swift, supra.)

BAR EXAM QUESTION

(Question II-B, Political Law, 2017 Bar Exam) The doctrine of immunity from suit in favor of the State extends to public officials in the performance of their official duties. May such officials be sued nonetheless to prevent or to undo their oppressive or illegal acts, or to compel them to act? Explain your answer. (3%) Suggested Answer: Yes. Under jurisprudence, the doctrine of State immunity extended to public officials does not apply where the public official is charged in his official capacity for acts that are unauthorized or unlawful and injurious to the rights of others. 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.

3. LGUS, AGENCIES, GOCCS, ETC. If the agency is incorporated, the test of its suability is found in its charter. The simple rule is that it is suable if its charter says so, and this is true regardless of the functions it is performing. (German Agency for Technical Cooperation v. CA, G.R. No. 152318 16 April 2009)

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Municipal corporations, for example, like provinces and cities, are agencies of the State when they are engaged in governmental functions and therefore should enjoy the sovereign immunity from suit. Nevertheless, they are subject to suit even in the performance of such functions because their charter provides that they can sue and be sued. (Ibid.) State immunity from suit may be waived by general or special law. The special law can take the form of the original charter of the incorporated government agency. Jurisprudence is replete with examples of incorporated government agencies which were ruled not entitled to invoke immunity from suit, owing to provisions in their charters manifesting their consent to be sued. These include the National Irrigation Administration, the former Central Bank, and the National Power Corporation, and the SSS. (Ibid.)

BAR EXAM QUESTION

(Question II-C, Political Law, 2017 Bar Exam) Do government-owned or -controlled corporations also enjoy the immunity of the State from suit? Explain your answer. (3%) Suggested Answer: No, if their charter provides that they can sue and be sued. If the agency is incorporated, the test of its suability is found in its charter. The simple rule is that it is suable if its charter says so, and this is true regardless of the functions it is performing.

4. FOREIGN STATE IMMUNITY a. Same immunity on jure imperii 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. (Minucher v. CA, Scalzo, G.R. No. 142396, 11 February 2003) Thus, the principles of state immunity for the Philippine Government likewise applies to foreign state, as well as the rules on jure imperii and juri gestonis. This Court has considered the following transactions by a foreign state with private parties as acts jure imperii: (1) the lease by a foreign government of apartment buildings for use of its military officers (Syquia v. Lopez [1949]; (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 [1988]).

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Case Law 1) In United States of America v. Judge Guinto, one of the consolidated cases therein involved a Filipino employed at Clark Air Base who was arrested following a buy-bust operation conducted by two officers of the US Air Force, and was eventually dismissed from his employment when he was charged in court for violation of R.A. No. 6425. In a complaint for damages filed by the said employee against the military officers, the latter moved to dismiss the case on the ground that the suit was against the US Government which had not given its consent. The RTC denied the motion but on a petition for certiorari and prohibition filed before this Court, we reversed the RTC and dismissed the complaint. We held that petitioners US military officers were acting in the exercise of their official functions when they conducted the buy-bust operation against the complainant and thereafter testified against him at his trial. 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. (Cited in Arigo v. Swift, supra.) b. Diplomatic Immunity

1) Political question It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General or other officer acting under his direction. (The World Health Organization v. Aquino, En Banc, G.R. No. L-35131, 29 November 1972)

2) Immunity from exercise of territorial jurisdiction In adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that in such cases the judicial department of (this) government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction. (Ibid.) In the case of diplomatic immunity, 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. (Arigo v. Swift, supra.)

3) Covers foreign representatives or agents

If the acts giving rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity 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

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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. (Minucher v. CA, Scalzo supra.) c. Procedure in case of foreign state immunity 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 the state where it is sued to convey to the court that said defendant is entitled to immunity. (The Holy See v. Rosario, G.R. No. 101949, 01 December 1994)

1) Executive endorsement in PH In the United States, the procedure followed is the process of “suggestion,” where the foreign state or the international organization sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a “suggestion” that the defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office issues a certification to that effect instead of submitting a “suggestion”. (Ibid.) 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. (Ibid.) In International Catholic Migration Commission v. Calleja (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 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon (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. (Ibid.) 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 [1945]; Miquiabas v. Philippine-Ryukyus Command [1948]; United States of America v. Guinto [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. (Ibid.) d. Guidelines 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 state is 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

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a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit. (Ibid.) 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. (Ibid.) In the case of The Holy See who sold a real estate, 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 5-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. (Ibid.) The property was acquired by The Holy See 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. (Ibid.) The decision by The Holy See to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. Petitioner did not sell Lot 5-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. (Ibid.)

BAR EXAM QUESTION

(Question XX, Political Law, 2018 Bar Exam) Andreas and Aristotle are foreign nationals working with the Asian Development Bank (ADS) in its headquarters in Manila. Both were charged with criminal acts before the local trial courts. Andreas was caught importing illegal drugs into the country as part of his “personal effects” and was thus charged with violation of Comprehensive Dangerous Drugs Act of 2002. Before the criminal proceedings could commence, the President had him deported as an undesirable alien. Aristotle was charged with grave oral defamation for uttering defamatory words against a colleague at work. In his defense, Aristotle claimed diplomatic immunity. He presented as proof a communication from the Department of Foreign Affairs stating that, pursuant to the Agreement between the Philippine Government and the ADS, the bank's officers and staff are immune from legal processes with respect to acts performed by them in their official capacity.

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(b) Is Aristotle’s claim of diplomatic immunity proper? (2.5%) Suggested Answer: No. Answer Under jurisprudence, the immunity granted to officers and staff of the Asian Development Bank is not absolute; it is limited to acts performed in an official capacity. Furthermore, the immunity cannot cover the commission of a crime such as slander or oral defamation in the name of official duty. Rule In the case at bar, Aristotle was charged with grave oral defamation, which act is not connected to the performance of his official duties. Apply Thus, Aristotle’s claim of diplomatic immunity is not proper. Conclusion

5. INTERNATIONAL ORGANIZATIONS Being a member of the United Nations and a party to the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations, the Philippine Government adheres to the doctrine of immunity granted to the United Nations and its specialized agencies. Both treaties have the force and effect of law. (Lasco v. United Nations Revolving Fund for Natural Resources Exploration (UNRFNRE), G.R. Nos. 109095-109107, 23 February 1995) Immunity is necessary to assure unimpeded performance of their functions. The purpose is “to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member States of the organization, and to ensure the unhampered performance of their functions”. Lasco v. United Nations Revolving Fund for Natural Resources Exploration (UNRFNRE), citing International Catholic Immigration Commission v. Calleja, G.R. Nos. 85750, 89331, 28 September 1990) a. Limitations The immunity granted to officers and staff of the Asian Development Bank is not absolute; it is limited to acts performed in an official capacity. Furthermore, the immunity cannot cover the commission of a crime such as slander or oral defamation in the name of official duty. (Liang v. People, G.R. No. 125865, 26 March 2001)

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D. Separation of powers

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: separation of powers, duty of Legislature/Executive/Judiciary, inter-branch courtesy, independence of each branch

1. ACTUAL DIVISION IN OUR CONSTITUTION The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. (Angara v. The Electoral Commission, G.R. No. L-45081, 15 July 1936) a. Legislature, Executive, Judiciary It is the duty of the Legislature to make the law; of the Executive to execute the law; and of the Judiciary to construe the law. The Legislature has no authority to execute or construe the law, the Executive has no authority to make or construe the law, and the Judiciary has no power to make or execute the law. Subject to the Constitution only, the power of each branch is supreme within its own jurisdiction, and it is for the Judiciary only to say when any Act of the Legislature is or is not constitutional. (The United States v. Ang Tang Ho, G.R. No. 17122, 27 February 1922)

1) Enforcement of national budget The enforcement of the national budget, as primarily contained in the General Appropriations Act (GAA), is indisputably a function both constitutionally assigned and properly entrusted to the Executive branch of government. (Belgica v. Ochoa, Jr., En Banc, G.R. No. 208566, 19 November 2013) Thus, unless the Constitution provides otherwise, the Executive department should exclusively exercise all roles and prerogatives which go into the implementation of the national budget as provided under the GAA as well as any other appropriation law. (Ibid.)

BAR EXAM QUESTION

(Question B.17, Political Law, 2019 Bar Exam)

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In 2014, Congress enacted an appropriation law containing a provision that gives individual legislators the discretion to determine, post-enactment, how much funds would go to a specific project or beneficiary which they themselves also determine. Consequently, disbursements were made in the interim pursuant thereto. Eventually, Mr. Z filed a petition questioning the constitutionality of the statutory provision on the grounds that it violates the separation of powers principle. On the other hand, certain Congressman argued that there was nothing wrong with the provision because, after all, the power to appropriate belongs to Congress. (a) Rule on the arguments of the parties. (2.5%) Suggested Answer: Petition should be granted. Answer Under the 1987 Constitution and jurisprudence, the separation of powers is a fundamental principle in our system of government. It is the duty of the Legislature to make the law; of the Executive to execute the law; and of the Judiciary to construe the law. Rule In the case at bar, the questioned law violates the separation of powers as it granted the Legislature the authority to enforce the law. However, such power to execute the law is exclusively with the Executive. Apply Thus, the petition should be granted on the ground that the law violates the principle of separation of powers. Conclusion

2. INTER-BRANCH COURTESY Inter-branch courtesy is but a consequence of the doctrine of separation of powers. (Kilusang Mayo Uno v. Aquino, G.R. No. 210500, 02 April 2019) The concept of separation of powers presupposes mutual respect by and between the three departments of the government. (Tecson v. Salas, G.R. No. L-27524, 31 July 1970) 3. INDEPENDENT OF EACH BRANCH The concept of the independence of the three branches of government, on the other hand, extends from the notion that the powers of government must be divided to avoid concentration of these powers in any one branch; the division, it is hoped, would avoid any single branch from lording its power over the other branches or the citizenry. To achieve this purpose, the divided power must be wielded by co-equal branches of government that are equally capable of independent action in exercising their respective mandates; lack of independence would result in the inability of one branch of government to check the arbitrary or self-interest assertions of another or others. (Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased

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by the Retired Chief/Associate Justices of the Supreme Court, En Banc, A.M. No. 11-7-10-SC, 31 July 2012) The Constitution expressly prohibits Congress from depriving the Supreme Court of its jurisdiction, as enumerated in Section 5, Article VII of the Constitution, or from passing a law that undermines the security of tenure of the members of the judiciary. The Constitution also mandates that the judiciary shall enjoy fiscal autonomy, and grants the Supreme Court administrative supervision over all courts and judicial personnel. Jurisprudence has characterized administrative supervision as exclusive, noting that only the Supreme Court can oversee the judges and court personnel's compliance with all laws, rules and regulations. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. (Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by the Retired Chief/Associate Justices of the Supreme Court, En Banc, A.M. No. 11-7-10-SC, 31 July 2012) 4. IN RELATION TO DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES In connection with acts of administrative agencies, ripeness is ensured under the doctrine of exhaustion of administrative remedies. Courts may only take cognizance of a case or controversy if the petitioner has exhausted all remedies available to it under the law. The doctrine ensures that the administrative agency exercised its power to its full extent, including its authority to correct or reconsider its actions. It would, thus, be premature for courts to take cognizance of the case prior to the exhaustion of remedies, not to mention it would violate the principle of separation of powers. (Kilusang Mayo Uno v. Aquino, G.R. No. 210500, 02 April 2019)

E. Checks and balances 1. CONCEPT The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. (Angara v. The Electoral Commission, G.R. No. L-45081, 15 July 1936) For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the the Legislature. The President has also the right to convene the the Legislature in special session whenever he chooses. (Ibid.) On the other hand, the the Legislature operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointments of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the Legislature controls the judicial department to a certain extent. The the Legislature also exercises the judicial power of trying impeachments. (Ibid.)

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And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. (Ibid.)

F. Delegation of powers 1. CONCEPT Our governmental structure rests on the principle of separation of powers. Under our constitutional order, the legislative branch enacts law, the executive branch implements the law, and the judiciary construes the law. In reality, however, the powers are not as strictly confined or delineated to each branch. The growing complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering the laws require the delegation of powers traditionally belonging to the legislative to administrative agencies. The legislature may likewise apportion competencies or jurisdictions to administrative agencies over certain conflicts involving special technical expertise. (The Provincial Bus Operators Association of the Philippines v. DOLE, En Banc, G.R. No. 202275, 17 July 2018)

G. Fundamental powers of the State The State has three fundamental powers: 1) Police power; 2) Eminent domain; and 3) Taxation. (Planters Products, Inc. v. Fertiphil Corporation, G.R. No. 166006, 14 March 2008)

1. Police power

BAR EXAM TIPS | Frequency: Occasional WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: police power, Congress as repository, limitations, due process and equal protection, comparison with other fundamental powers

a. CONCEPT Police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property. It is the most pervasive, the least limitable, and the most demanding of the three fundamental powers of the State. The justification is found in the Latin maxim salus populi est suprema lex (the welfare of the people is the supreme law) and sic utere tuo ut alienum non laedas (so use your property as not to injure the property of others). As an inherent attribute of sovereignty which virtually extends to all public needs, police power grants a wide panoply of instruments through

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which the State, as parens patriae, gives effect to a host of its regulatory powers. We have held that the power to “regulate” means the power to protect, foster, promote, preserve, and control, with due regard for the interests, first and foremost, of the public, then of the utility and of its patrons. (Gerochi v. Department of Energy, En Banc, G.R. No. 159796, 17 July 2007) In the exercise of police power, “property rights of private individuals are subjected to restraints and burdens in order to secure the general comfort, health, and prosperity of the State.” Even then, the State's claim of police power cannot be arbitrary or unreasonable. After all, the overriding purpose of the exercise of the power is to promote general welfare, public health and safety, among others. It is a measure, which by sheer necessity, the State exercises, even to the point of interfering with personal liberties or property rights in order to advance common good. To warrant such interference, two requisites must concur: (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 lawful subject and a lawful method. The legislature may also grant rights and impose additional burdens: It may also regulate industries, in the exercise of police power, for the protection of the public. R.A. Nos. 9257 and 9442 are akin to regulatory laws, the issuance of which is within the ambit of police power. The minimum wage law, zoning ordinances, price control laws, laws regulating the operation of motels and hotels, laws limiting the working hours to eight, and the like fall under this category. (Southern Luzon Drug Corporation v. DSWD, En Banc, G.R. No. 199669, 25 April 2017) Indeed, regulatory laws are within the category of police power measures from which affected persons or entities cannot claim exclusion or compensation. For instance, private establishments cannot protest that the imposition of the minimum wage is confiscatory since it eats up a considerable chunk of its profits or that the mandated remuneration is not commensurate for the work done. The compulsory nature of the provision for minimum wages underlies the effort of the State; as R.A. No. 6727 expresses it, to promote productivity-improvement and gain-sharing measures to ensure a decent standard of living for the workers and their families; to guarantee the rights of labor to its just share in the fruits of production; to enhance employment generation in the countryside through industry dispersal; and to allow business and industry reasonable returns on investment, expansion and growth, and as the Constitution expresses it, to affirm labor as a primary social economic force. (Southern Luzon Drug Corporation v. DSWD, En Banc, G.R. No. 199669, 25 April 2017) Similarly, the imposition of price control on staple goods in R.A. No. 7581 is likewise a valid exercise of police power and affected establishments cannot argue that the law was depriving them of supposed gains. The law seeks to ensure the availability of basic necessities and prime commodities at reasonable prices at all times without denying legitimate business a fair return on investment. It likewise aims to provide effective and sufficient protection to consumers against hoarding, profiteering and cartels with respect to the supply, distribution, marketing and pricing of said goods, especially during periods of calamity, emergency, widespread illegal price manipulation and other

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similar situations. (Southern Luzon Drug Corporation v. DSWD, En Banc, G.R. No. 199669, 25 April 2017) It is within the bounds of the police power of the state to impose burden on private entities, even if it may affect their profits, such as in the imposition of price control measures. There is no compensable taking but only a recognition of the fact that they are subject to the regulation of the State and that all personal or private interests must bow down to the more paramount interest of the State. (Southern Luzon Drug Corporation v. DSWD, En Banc, G.R. No. 199669, 25 April 2017)

1) Congress, repository of police power The legislature, which is the constitutional repository of police power and exercises the prerogative of determining the policy of the State, is by force of circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated in the exercise of the police power, or of the measures adopted to implement the public policy or to achieve public interest. (Lao Ichong v. Hernandez, G.R. No. L-7995, 31 May 1957) b. LIMITATIONS ON POLICE POWER

1) Due process and equal protection The basic limitations of due process and equal protection are found in the following provisions of our Constitution: SECTION 1. (1) No person shall be deprived of life, liberty or property without due process of law, nor any person be denied the equal protection of the laws (Article III, Phil. Constitution). (Lao Ichong v. Hernandez, G.R. No. L-7995, 31 May 1957) The power to regulate is not the power to destroy useful and harmless enterprises, but is the power to protect, foster, promote, preserve, and control with due regard for the interest, first and foremost, of the public, then of the utility and of its patrons. Any regulation, therefore, which operates as an effective confiscation of private property or constitutes an arbitrary or unreasonable infringement of property rights is void, because it is repugnant to the constitutional guaranties of due process and equal protection of the laws. (Philippine Communications Satellite Corporation v. Alcuaz, En Banc, G.R. No. 84818, 18 December 1989)

2) Reasonableness in regulation, particularly rate-fixing The regulatory power of the State does not authorize the destruction of the business. While a business may be regulated, such regulation must be within the bounds of reason, i.e., the regulatory ordinance must be reasonable, and its provision cannot be oppressive amounting to an arbitrary interference with the business or calling subject of regulation. A lawful business or calling may not, under the guise of regulation, be unreasonably interfered with even by the exercise of police power. After all, regulation only signifies control or restraint, it does not mean suppression or absolute prohibition. (Southern Luzon Drug Corporation v. DSWD, En Banc, G.R. No. 199669, 25 April 2017) Hence, the inherent power and authority of the State, or its authorized agent, to regulate the rates charged by public utilities should be subject always to the requirement that

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the rates so fixed shall be reasonable and just. A commission has no power to fix rates which are unreasonable or to regulate them arbitrarily. This basic requirement of reasonableness comprehends such rates which must not be so low as to be confiscatory, or too high as to be oppressive. (Philippine Communications Satellite Corporation v. Alcuaz, En Banc, G.R. No. 84818, 18 December 1989) c. COMPARISON TO OTHER INHERENT POWERS

1) Police power v. Eminent domain The power being exercised by the State in the imposition of senior citizen discount is its police power. Unlike in the exercise of the power of eminent domain, just compensation is not required in wielding police power. This is precisely because there is no taking involved, but only an imposition of burden. (Southern Luzon Drug Corporation v. DSWD, En Banc, G.R. No. 199669, 25 April 2017)

2) Police power v. Power of taxation Police power and the power of taxation are inherent powers of the State. These powers are distinct and have different tests for validity. Police power is the power of the State to enact legislation that may interfere with personal liberty or property in order to promote the general welfare, while the power of taxation is the power to levy taxes to be used for public purpose. The main purpose of police power is the regulation of a behavior or conduct, while taxation is revenue generation. The “lawful subjects” and “lawful means” tests are used to determine the validity of a law enacted under the police power. The power of taxation, on the other hand, is circumscribed by inherent and constitutional limitations. (Planters Products, Inc. v. Fertiphil Corporation, G.R. No. 166006, 14 March 2008) If generation of revenue is the primary purpose and regulation is merely incidental, the imposition is a tax; but if regulation is the primary purpose, the fact that revenue is incidentally raised does not make the imposition a tax. (Gerochi v. Department of Energy, En Banc, G.R. No. 159796, 17 July 2007) It is in the exercise of its police power that the Congress enacted R.A. Nos. 9257 and 9442, the laws mandating a 20% discount on purchases of medicines made by senior citizens and PWDs. It is also in further exercise of this power that the legislature opted that the said discount be claimed as tax deduction, rather than tax credit, by covered establishments. (Southern Luzon Drug Corporation v. DSWD, En Banc, G.R. No. 199669, 25 April 2017) The imposition of a levy is an exercise by the State of its taxation power. While it is true that the power of taxation can be used as an implement of police power, the primary purpose of the levy is revenue generation. If the purpose is primarily revenue, or if revenue is, at least, one of the real and substantial purposes, then the exaction is properly called a tax. (Planters Products, Inc. v. Fertiphil Corporation, G.R. No. 166006, 14 March 2008) The imposition of a vehicle registration fee is not an exercise by the State of its police power, but of its taxation power. (Planters Products, Inc. v. Fertiphil Corporation, G.R. No. 166006, 14 March 2008)

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Taxation may be made the implement of the state's police power. If the purpose is primarily revenue, or if revenue is, at least, one of the real and substantial purposes, then the exaction is properly called a tax. Such is the case of motor vehicle registration fees. (Philippine Airlines, Inc. v. Edu, En Banc, G.R. No. L-41383, 15 August 1988)

2. Eminent domain

BAR EXAM TIPS | Frequency: Occasional WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: eminent domain, requisites, limitation, public use, just compensation, expropriation, compared to other fundamental powers

a. CONCEPT The power of eminent domain is an inherent competence of the state. It is essential to a sovereign. Thus, the Constitution does not explicitly define this power but subjects it to a limitation: that it be exercised only for public use and with payment of just compensation. Whether the use is public or whether the compensation is constitutionally just will be determined finally by the courts. (National Corporation v. Posada, G.R. No. 191945, 11 March 2015) The power of eminent domain is an inherent and indispensable power of the State. Also called the power of expropriation, it is described as “the highest and most exact idea of property remaining in the government” that may be acquired for some public purpose through a method “in the nature of a compulsory sale to the State.” By virtue of its sovereign character, the exercise of the power prevails over the non-impairment clause, and is clearly superior to the final and executory judgment rendered by a court in an ejectment case. (Manapat v. CA, National Housing Authority, G.R. No. 110478, 15 October 2007) Eminent domain is the right or power of a sovereign state to appropriate private property to particular uses to promote public welfare. It is an indispensable attribute of sovereignty; a power grounded in the primary duty of government to serve the common need and advance the general welfare. The power of eminent domain is inseparable in sovereignty being essential to the existence of the State and inherent in government. (National Transmission Corporation v. Oroville Development Corporation, G.R. No. 223366, 01 August 2017)

1) Requirements for validity Over the years and in a plethora of cases, this Court has recognized the following requisites for the valid exercise of the power of eminent domain: (1) the property taken must be private property; (2) there must be genuine necessity to take the private property; (3) the taking must be for public use; (4) there must be payment of just compensation; and (5) the taking must comply with due process of law. (Manapat v. CA, National Housing Authority, G.R. No. 110478, 15 October 2007)

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2) Delegation, allowed

Just like its two companion fundamental powers of the State, the power of eminent domain is exercised by the Legislature. However, it may be delegated by Congress to the President, administrative bodies, local government units, and even to private enterprises performing public services. (Manapat v. CA, National Housing Authority, G.R. No. 110478, 15 October 2007) When the power of eminent domain is exercised by the Legislature, the question of necessity is essentially a political question. (Manapat v. CA, National Housing Authority, G.R. No. 110478, 15 October 2007) The legislature, in providing for the exercise of the power of eminent domain, may directly determine the necessity for appropriating private property for a particular improvement for public use, and it may select the exact location of the improvement. In such a case, it is well-settled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the consequent necessity of taking the land selected for its site, are all questions exclusively for the legislature to determine, and the courts have no power to interfere, or to substitute their own views for those of the representatives of the people. (The City of Manila v. Chinese Community of Manila, G.R. No. L-14355, 31 October 1919) b. LIMITATION ON EMINENT DOMAIN The power of eminent domain is an inherent competence of the state. It is essential to a sovereign. Thus, the Constitution does not explicitly define this power but subjects it to a limitation: that it be exercised only for public use and with payment of just compensation. Whether the use is public or whether the compensation is constitutionally just will be determined finally by the courts. (National Corporation v. Posada, G.R. No. 191945, 11 March 2015) Being inherent, the power need not be specifically conferred on the government by the Constitution. Section 9, Article III of the Constitution, which mandates that “private property shall not be taken for a public use without just compensation,” merely imposes a limit on the government’s exercise of the power and provides a measure of protection to the individual’s right to property. (Manapat v. CA, National Housing Authority, G.R. No. 110478, 15 October 2007)

1) Public use Art. 435. No person shall be deprived of his property except by competent authority and for public use... (Civil Code) Public use, as an eminent domain concept, has now acquired an expansive meaning to include any use that is of “usefulness, utility, or advantage, or what is productive of general benefit [of the public].” If the genuine public necessity—the very reason or condition as it were—allowing, at the first instance, the expropriation of a private land ceases or disappears, then there is no more cogent point for the government’s retention of the expropriated land. The same legal situation should hold if the government

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devotes the property to another public use very much different from the original or deviates from the declared purpose to benefit another private person. It has been said that the direct use by the state of its power to oblige landowners to renounce their productive possession to another citizen, who will use it predominantly for that citizen’s own private gain, is offensive to our laws. (Vda. de Ouano, et al. v. Republic, G.R. Nos. 168770 and 168812, 09 February 2011) The “public use” requisite for the valid exercise of the power of eminent domain is a flexible and evolving concept influenced by changing conditions. (The City of Manila v. Chinese Community of Manila, G.R. No. L-14355, 31 October 1919)

2) Just compensation Art. 435. No person shall be deprived of his property except by competent authority and for public use and always upon payment of just compensation. Should this requirement be not first complied with, the courts shall protect and, in a proper case, restore the owner in his possession. (Civil Code) Just compensation means the value of the property at the time of the taking. It means a fair and full equivalent for the loss sustained. All the facts as to the condition of the property and its surroundings, its improvements and capabilities, should be considered. (Export Processing Zone Authority v. Dulay, G.R. No. L-59603, 29 April 1987)

a) Legal interest on just compensation Section 9, Article III of the 1987 Constitution provides that “no private property shall be taken for public use without just compensation.” Just compensation in expropriation cases has been held to contemplate just and timely payment, and prompt payment is the payment in full of the just compensation as finally determined by the courts. Thus, just compensation envisions a payment in full of the expropriated property. Absent full payment, interest on the balance would necessarily be due on the unpaid amount. (Evergreen Manufacturing Corporation v. Republic, G.R. No. 218628, 218631, 06 September 2017) Interest on the unpaid compensation becomes due if there is no full compensation for the expropriated property, in accordance with the concept of just compensation. (Ibid., citing Republic v. Mupas, En Banc, G.R. No. 181892, 08 September 2015)

Republic v. Mupas (2015) The reason is that just compensation would not be “just” if the State does not pay the property owner interest on the just compensation from the date of the taking of the property. Without prompt payment, the property owner suffers the immediate deprivation of both his land and its fruits or income. The owner’s loss, of course, is not only his property but also its income-generating potential. Ideally, just compensation should be immediately made available to the property owner so that he may derive income from this compensation, in the same manner that he would have derived income from his expropriated property.

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However, if full compensation is not paid for the property taken, then the State must pay for the shortfall in the earning potential immediately lost due to the taking, and the absence of replacement property from which income can be derived. Interest on the unpaid compensation becomes due as compliance with the constitutional mandate on eminent domain and as a basic measure of fairness. Thus, interest in eminent domain cases “runs as a matter of law and follows as a matter of course from the right of the landowner to be placed in as good a position as money can accomplish, as of the date of taking.”

c. MAY BE DELEGATED VIA POWER TO CONDEMN The manner of the exercise of the power of eminent domain such as which government instrumentality can be delegated with the power to condemn, under what conditions, and how may be limited by law. Republic Act No. 8974 does these, but it should not be read as superseding the power of this court to promulgate rules of procedure. Thus, our existing rules should be read in conjunction with the law that limits and conditions the power of eminent domain. (National Corporation v. Posada, G.R. No. 191945, 11 March 2015) d. EXPROPRIATION PROCEDURE Expropriation, the procedure by which the government takes possession of private property, is outlined primarily in Rule 67 of the Rules of Court. It undergoes two phases. The first phase determines the propriety of the action. The second phase determines the compensation to be paid to the landowner. (National Corporation v. Posada, G.R. No. 191945, 11 March 2015)

1) First phase The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends with an order, if not of dismissal of the action, “of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint.” An order of dismissal, if this be ordained, would be a final one, of course, since it finally disposes of the action and leaves nothing more to be done by the Court on the merits. So, too, would an order of condemnation be a final one, for thereafter, as the Rules expressly state, in the proceedings before the Trial Court, “no objection to the exercise of the right of condemnation (or the propriety thereof) shall be filed or heard.” (Municipality of Biñan v. Garcia, G.R. No. 69260, 22 December 1989) The first phase of expropriation commences with the filing of the complaint. It ends with the order of the trial court to proceed with the expropriation and determination of just compensation. During the pendency of the complaint before the trial court, the state may already enter and possess the property subject to the guidelines in Rule 67 of the Rules of Court. (National Corporation v. Posada, G.R. No. 191945, 11 March 2015)

a) Public use/purpose, required to be alleged

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In esse, expropriation is forced private property taking, the landowner being really without a ghost of a chance to defeat the case of the expropriating agency. In other words, in expropriation, the private owner is deprived of property against his will. Withal, the mandatory requirement of due process ought to be strictly followed, such that the state must show, at the minimum, a genuine need, an exacting public purpose to take private property, the purpose to be specifically alleged or least reasonably deducible from the complaint. (Vda. de Ouano, et al. v. Republic, G.R. Nos. 168770 and 168812, 09 February 2011) A condemnor should commit to use the property pursuant to the purpose stated in the petition for expropriation, failing which it should file another petition for the new purpose. If not, then it behooves the condemnor to return the said property to its private owner, if the latter so desires. The government cannot plausibly keep the property it expropriated in any manner it pleases and, in the process, dishonor the judgment of expropriation. This is not in keeping with the idea of fair play. (Vda. de Ouano, et al. v. Republic, G.R. Nos. 168770 and 168812, 09 February 2011)

b) Burden of proof on the State It is the state that bears the burden of proving that the taking of private property is for a public purpose. If it fails in discharging this burden, it must return the property to the private owner, subject to whatever damages were incurred in the course of the taking. (National Corporation v. Posada, G.R. No. 191945, 11 March 2015)

c) When public use ceases, reconveyance allowed A constructive trust is created when public use ceases in the middle of the expropriation proceedings and the property owners have not been fully paid. In such a case, the property owners may seek for a reconveyance of their properties. Considering that eminent domain is the taking of private property for public use, no expropriation proceeding can continue if the property to be expropriated will not be for public use. (National Corporation v. Posada, G.R. No. 191945, 11 March 2015)

National Corporation v. Posada (2015) In Heirs of Moreno v. Mactan-Cebu International Airport Authority, private property was expropriated for the proposed expansion of Lahug Airport in 1949. The property owners were assured that they would be given a right to repurchase once Lahug Airport is closed or its operations are transferred to Mactan Airport. In 1991, Lahug Airport ceased operations when Mactan Airport became fully operational. The former owners filed a Complaint for Reconveyance to compel the repurchase of the expropriated properties. This court considered the case “difficult” as it called for “a difficult but just solution.” In allowing the reconveyance, this court stated: Mactan-Cebu International Airport Authority[v. Court of Appeals] is correct in stating that one would not find an express statement in the Decision in Civil Case No. R-1881 to the effect that “the [condemned] lot would return to [the landowner] or that [the landowner] had a right to repurchase the same if the purpose for which it was expropriated is ended or abandoned or if the property was to be used other than as the Lahug Airport.” This omission

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notwithstanding, and while the inclusion of this pronouncement in the judgment of condemnation would have been ideal, such precision is not absolutely necessary nor is it fatal to the cause of petitioners herein. No doubt, the return or repurchase of the condemned properties of petitioners could be readily justified as the manifest legal effect or consequence of the trial court’s underlying presumption that “Lahug Airport will continue to be in operation” when it granted the complaint for eminent domain and the airport discontinued its activities. The predicament of petitioners involves a constructive trust, one that is akin to the implied trust referred to in Art. 1454 of the Civil Code, “If an absolute conveyance of property is made in order to secure the performance of an obligation of the grantor toward the grantee, a trust by virtue of law is established. If the fulfillment of the obligation is offered by the grantor when it becomes due, he may demand the reconveyance of the property to him.” In the case at bar, petitioners conveyed Lots Nos. 916 and 920 to the government with the latter obliging itself to use the realties for the expansion of Lahug Airport; failing to keep its bargain, the government can be compelled by petitioners to reconvey the parcels of land to them, otherwise, petitioners would be denied the use of their properties upon a state of affairs that was not conceived nor contemplated when the expropriation was authorized. Although the symmetry between the instant case and the situation contemplated by Art. 1454 is not perfect, the provision is undoubtedly applicable. For, as explained by an expert on the law of trusts: "The only problem of great importance in the field of constructive trusts is to decide whether in the numerous and varying fact situations presented to the courts there is a wrongful holding of property and hence a threatened unjust enrichment of the defendant." Constructive trusts are fictions of equity which are bound by no unyielding formula when they are used by courts as devices to remedy any situation in which the holder of the legal title may not in good conscience retain the beneficial interest.

2) Second phase

The second phase of the eminent domain action is concerned with the determination by the Court of “the just compensation for the property sought to be taken.” This is done by the Court with the assistance of not more than three (3) commissioners. The order fixing the just compensation on the basis of the evidence before, and findings of, the commissioners would be final, too. It would finally dispose of the second stage of the suit, and leave nothing more to be done by the Court regarding the issue. Obviously, one or another of the parties may believe the order to be erroneous in its appreciation of the evidence or findings of fact or otherwise. Obviously, too, such a dissatisfied party may seek a reversal of the order by taking an appeal therefrom. (Municipality of Biñan v. Garcia, G.R. No. 69260, 22 December 1989)

a) Just compensation Various factors can come into play in the valuation of specific properties singled out for expropriation. The values given by provincial assessors are usually uniform for very wide areas covering several barrios or even an entire town with the exception of the poblacion. Individual differences are never taken into account. The value of land is based on such generalities as its possible cultivation for rice, corn, coconuts, or other crops. Very often land described as "cogonal" has been cultivated for generations.

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Buildings are described in terms of only two or three classes of building materials and estimates of areas are more often inaccurate than correct. Tax values can serve as guides but cannot be absolute substitutes for just compensation. (Export Processing Zone Authority v. Dulay, G.R. No. L-59603, 29 April 1987) Once the amount of just compensation has been determined, it stands to reason that this is the amount that must be paid to the landowner as compensation for his or her property. In the exercise of the power of eminent domain, taking of private property necessarily includes its possession. Government, then, must pay the proper amount of just compensation, instead of the provisional value in order to enter and take the private property. (National Corporation v. Posada, G.R. No. 191945, 11 March 2015)

b) Judicial function The determination of “just compensation” in eminent domain cases is a judicial function. The executive department or the legislature may make the initial determinations but when a party claims a violation of the guarantee in the Bill of Rights that private property may not be taken for public use without just compensation, no statute, decree, or executive order can mandate that its own determination shall prevail over the court’s findings. Much less can the courts be precluded from looking into the “just-ness” of the decreed compensation. (Export Processing Zone Authority v. Dulay, G.R. No. L-59603, 29 April 1987)

c) Immediate payment required for writ of possession Republic Act No. 8974 “provides for a procedure eminently more favorable to the property owner than Rule 67” since it requires the immediate payment of the zonal value and the value of the improvements on the land to the property owner before the trial court can allow the government to take possession. In contrast, Rule 67 only requires the government to deposit the assessed value of the property for it to enter and take possession. (National Corporation v. Posada, G.R. No. 191945, 11 March 2015) The law also requires the immediate payment of the value of the improvements and/or structures on the land before the trial court can issue the Writ of Possession. (National Corporation v. Posada, G.R. No. 191945, 11 March 2015) Without such direct payment, no writ of possession may be obtained. (National Corporation v. Posada, G.R. No. 191945, 11 March 2015) There are, of course, instances when immediate payment cannot be made even if the implementing agency is willing to do so. The owner of the property is not precluded from contesting the power of the implementing agency to exercise eminent domain, the necessity of the taking, the public character of its use, or the proffered value by the implementing agency. In these instances, the implementing agency may deposit the proffered value with the trial court having jurisdiction over the expropriation proceedings. (National Corporation v. Posada, G.R. No. 191945, 11 March 2015)

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3. Taxation

BAR EXAM TIPS | Frequency: Occasional WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: taxation, local taxation, limitation, public purpose

a. CONCEPT

1) State 1) Inherent power, attribute of sovereignty The power to tax is inherent in the State. (Batangas City v. Pilipinas Shell Petroleum Corporation, G.R. No. 187631, 08 July 2015) The power to tax “is an attribute of sovereignty,” and as such, inheres in the State. (Pelizloy Realty Corporation v. The Province of Benguet, G.R. No. 183137, 10 April 2013)

2) Local Government Units

a) Not inherent in LGUs It is settled that a municipal corporation unlike a sovereign state is clothed with no inherent power of taxation. The charter or statute must plainly show an intent to confer that power or the municipality, cannot assume it. (Icard v. The City Council of Baguio, G.R. No. L-1281, 31 May 1949) The power to tax “is an attribute of sovereignty,” and as such, inheres in the State. Such, however, is not true for provinces, cities, municipalities and barangays as they are not the sovereign; rather, there are mere “territorial and political subdivisions of the Republic of the Philippines.” (Pelizloy Realty Corporation v. The Province of Benguet, G.R. No. 183137, 10 April 2013)

b) 1987 Constitution Although the power to tax is inherent in the State, the same is not true for LGUs because although the mandate to impose taxes granted to LGUs is categorical and long established in the 1987 Philippine Constitution, the same is not all encompassing as it is subject to limitations as explicitly stated in Section 5, Article X of the 1987 Constitution, viz.: “SECTION 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.” (Batangas City v. Pilipinas Shell Petroleum Corporation, G.R. No. 187631, 08 July 2015)

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Per Section 5, Article X of the 1987 Constitution, “the power to tax is no longer vested exclusively on Congress; local legislative bodies are now given direct authority to levy taxes, fees and other charges.” Nevertheless, such authority is “subject to such guidelines and limitations as the Congress may provide”. (Pelizloy Realty Corporation v. The Province of Benguet, G.R. No. 183137, 10 April 2013)

c) R.A. 7160, Local Government Code The LGUs’ power to tax is subject to the limitations set forth under Section 133 of the LGC. Thus: It is already well-settled that although the power to tax is inherent in the State, the same is not true for the LGUs to whom the power must be delegated by Congress and must be exercised within the guidelines and limitations that Congress may provide. (Batangas City v. Pilipinas Shell Petroleum Corporation, G.R. No. 187631, 08 July 2015)

d) Strict interpretation The power when granted is to be construed in strictissimi juris. Any doubt or ambiguity arising out of the term used in granting that power must be resolved against the municipality. Inferences, implications, deductions – all these – have no place in the interpretation of the taxing power of a municipal corporation. (Icard v. The City Council of Baguio, G.R. No. L-1281, 31 May 1949) Indisputably, the power of LGUs to impose business taxes derives from Section 143 of the LGC. However, the same is subject to the explicit statutory impediment provided for under Section 133(h) of the same Code which prohibits LGUs from imposing “taxes, fees or charges on petroleum products.” It can, therefore, be deduced that although petroleum products are subject to excise tax, the same is specifically excluded from the broad power granted to LGUs under Section 143(h) of the LGC to impose business taxes. (Batangas City v. Pilipinas Shell Petroleum Corporation, G.R. No. 187631, 08 July 2015) Strictly speaking, as long as the subject matter of the taxing powers of the LGUs is the petroleum products per se or even the activity or privilege related to the petroleum products, such as manufacturing and distribution of said products, it is covered by the said limitation and thus, no levy can be imposed… On the contrary, Section 143 of the LGC defines the general power of LGUs to tax businesses within its jurisdiction. Thus, the omnibus grant of power to LGUs under Section 143(h)of the LGC cannot overcome the specific exception or exemption in Section 133(h) of the same Code. This is in accord with the rule on statutory construction that specific provisions must prevail over general ones. A special and specific provision prevails over a general provision irrespective of their relative positions in the statute. Generalia specialibus non derogant. Where there is in the same statute a particular enactment and also a general one which in its most comprehensive sense would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment. (Batangas City v. Pilipinas Shell Petroleum Corporation, G.R. No. 187631, 08 July 2015) b. LIMITATION ON TAXATION

1) Public purpose

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An inherent limitation on the power of taxation is public purpose. Taxes are exacted only for a public purpose. They cannot be used for purely private purposes or for the exclusive benefit of private persons. The reason for this is simple. The power to tax exists for the general welfare; hence, implicit in its power is the limitation that it should be used only for a public purpose. It would be a robbery for the State to tax its citizens and use the funds generated for a private purpose. As an old United States case bluntly put it: “To lay with one hand, the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is nonetheless a robbery because it is done under the forms of law and is called taxation.” (Planters Products, Inc. v. Fertiphil Corporation, G.R. No. 166006, 14 March 2008) The term “public purpose” is not defined. It is an elastic concept that can be hammered to fit modern standards. Jurisprudence states that “public purpose” should be given a broad interpretation. It does not only pertain to those purposes which are traditionally viewed as essentially government functions, such as building roads and delivery of basic services, but also includes those purposes designed to promote social justice. Thus, public money may now be used for the relocation of illegal settlers, low-cost housing and urban or agrarian reform. (Planters Products, Inc. v. Fertiphil Corporation, G.R. No. 166006, 14 March 2008)

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III. National Territory 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. (Article I, 1987 Constitution) 1. Composition The 1987 Constitution defines the “national territory” to include not only islands or rocks above water at high tide but also the seabed, subsoil and other submarine areas “over which the Philippines has sovereignty or jurisdiction.” (J. Carpio, Concurring Opinion in Saguisag v. Executive Secretary, En Banc, G.R. Nos. 212426 and 212444, 12 January 2016) The Philippine “national territory” refers to areas over which the Philippines has “sovereignty or jurisdiction.” The Constitution mandates: “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.” (J. Carpio, Concurring Opinion in Saguisag v. Executive Secretary, En Banc, G.R. Nos. 212426 and 212444, 12 January 2016) In short, under international law and in particular under the UNCLOS, the Philippines has jurisdiction over its EEZ and ECS. Thus, under domestic law, the Philippines’ EEZ and ECS form part of Philippine “national territory” since the Constitution defines “national territory” to include areas over which the Philippines has "jurisdiction," a term which means less than sovereignty. However, under international law, the Philippine “national territory” refers to the areas over which the Philippines has sovereignty, referring to the Philippines' land territory, archipelagic waters and territorial sea, excluding areas over which the Philippines exercises only jurisdiction like its EEZ and ECS. (J. Carpio, Concurring Opinion in Saguisag v. Executive Secretary, En Banc, G.R. Nos. 212426 and 212444, 12 January 2016) 1.1 The 2 main groups in national territory Both the 1973 and 1987 constitutions divide the national territory into two main groups: (1) the Philippine archipelago and (2) other territories belonging to the Philippines. (J. Velasco, Concurring Opinion in Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011) a. Philippine archipelago 1) Archipelagic principle As may be noted both the 1973 and 1987 constitutions speak of the “Philippine archipelago,” and, via the last sentence of their respective provisions, assert the

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country’s adherence to the “archipelagic principle.” (J. Velasco, Concurring Opinion in Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011) The “Philippine archipelago” of the 1987 Constitution is the same “Philippine archipelago” referred to in Art. I of the 1973 Constitution which in turn corresponds to the territory defined and described in Art. 1 of the 1935 Constitution, which pertinently reads: “Section 1. The Philippines comprises all the territory ceded to the [US] by the Treaty of Paris concluded between the [US] and Spain on the tenth day of December, [1898], the limits of which are set forth in Article III of said treaty, together with all the islands in the treaty concluded at Washington, between the [US] and Spain on November [7, 1900] and the treaty concluded between the [US] and Great Britain…”(J. Velasco, Concurring Opinion in Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011) While the Treaty of Paris is not mentioned in both the 1973 and 1987 Constitutions, its mention, so the nationalistic arguments went, being “a repulsive reminder of the indignity of our colonial past,” it is at once clear that the Treaty of Paris had been utilized as key reference point in the definition of the national territory. (J. Velasco, Concurring Opinion in Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011) b. All other territories The phrase “all other territories over which the Philippines has sovereignty or jurisdiction,” found in the 1987 Constitution, which replaced the deleted phrase “all territories belonging to the Philippines by historic right or legal title” found in the 1973 Constitution, covers areas linked to the Philippines with varying degrees of certainty. Under this category would fall: (a) Batanes, which then 1971 Convention Delegate Eduardo Quintero, Chairperson of the Committee on National Territory, described as belonging to the Philippines in all its history; (b) Sabah, over which a formal claim had been filed, the so-called Freedomland (a group of islands known as Spratleys); and (c) any other territory, over which the Philippines had filed a claim or might acquire in the future through recognized modes of acquiring territory. As an author puts it, the deletion of the words “by historic right or legal title” is not to be interpreted as precluding future claims to areas over which the Philippines does not actually exercise sovereignty. (J. Velasco, Concurring Opinion in Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011) 2. Territory via Treaties Philippine territory has been drawn through these treaties: 1) Treaty of Paris 2) Treaty of Washington 3) Treaty between United States and Great Britain (See R.A. 3046 on Baselines, as amended by R.A. 5446)

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3. Baselines Law a. R.A. 9552, delineating baselines, is valid Baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. (Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011) Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77). (Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011) It cannot be over-emphasized enough that RA 9522 is a baseline law enacted to implement the 1982 LOSC, which in turn seeks to regulate and establish an orderly sea use rights over maritime zones. Or as the ponencia aptly states, RA 9522 aims to mark-out specific base points along the Philippine coast from which baselines are drawn to serve as starting points to measure the breadth of the territorial sea and maritime zones.21 The baselines are set to define the sea limits of a state, be it coastal or archipelagic, under the UNCLOS III regime. By setting the baselines to conform to the prescriptions of UNCLOS III, RA 9522 did not surrender any territory, as petitioners would insist at every turn, for UNCLOS III is concerned with setting order in the exercise of sea-use rights, not the acquisition or cession of territory. And let it be noted that under UNCLOS III, it is recognized that countries can have territories outside their baselines. Far from having a dismembering effect, then, RA 9522 has in a limited but real sense increased the country’s maritime boundaries. (J. Velasco, Concurring Opinion in Magallona v. Ermita, En Banc, G.R. No. 187167, 16 August 2011)

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IV. Citizenship

A. Kinds of citizenship, purpose of distinguishing citizenship and kinds of citizenship Citizenship is a treasured right conferred on those whom the state believes are deserving of the privilege. It is a “precious heritage, as well as an inestimable acquisition,” that cannot be taken lightly by anyone - either by those who enjoy it or by those who dispute it. (Tecson v. COMELEC, En Banc, G.R. Nos. 161434, 161634, 161824, 03 March 2004) Citizenship is personal and, more or less a permanent membership in a political community. It denotes possession within that particular political community of full civil and political rights subject to special disqualifications. Reciprocally, it imposes the duty of allegiance to the political community. The core of citizenship is the capacity to enjoy political rights, that is, the right to participate in government principally through the right to vote, the right to hold public office and the right to petition the government for redress of grievance. (Republic v. Karbasi, G.R. No. 210412, 29 July 2015) 1. KINDS OF CITIZENSHIP

BAR EXAM TIPS | Frequency: Occasional WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: natural-born, naturalized, purpose of distinction, public offices requiring natural-born

a. Natural-born Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens. (Section 2, Article IV, 1987 Constitution) NB: They do not need to do any positive act to acquire or perfect their Philippine citizenship.

2) No judicial declaration of citizenship Under our laws, there can be no action or proceeding for the judicial declaration of the citizenship of an individual. Courts of justice exist for the settlement of justiciable controversies, which imply a given right, legally demandable and enforceable, an act or omission violative of said right, and a remedy granted or sanctioned by law, for said

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breach of right. As an incident only of the adjudication of the rights of the parties to a controversy, the court may pass upon, and make a pronouncement relative to, their status. Otherwise, such a pronouncement is beyond judicial power. Thus, for instance, no action or proceeding may be instituted for a declaration to the effect that plaintiff or petitioner is married, or single, or a legitimate child, although a finding thereon may be made as a necessary premise to justify a given relief available only to one enjoying said status. At times, the law permits the acquisition of a given status, such as naturalization, by judicial decree. But, there is no similar legislation authorizing the institution of a judicial proceeding to declare that a given person is part of our citizenry. (Danilo Channie Tan v. Republic, En Banc, G.R. No. L-14159, 18 April 1960)

3) Natural-born allowed to run public office after reacquiring citizenship Natural-born citizens of the Philippines who have lost their citizenship by reason of their naturalization as citizens of a foreign country may qualify to run for public office upon taking the Oath of Allegiance and making a sworn renunciation of their foreign citizenship. (Arnado v. COMELEC, En Banc, G.R. No. 210164, 18 August 2015) b. Naturalized NB: They are those who acquired or elected to become Filipino citizens via the legal process of naturalization. NB: For more discussions, see Part IV – Citizenship > D. Modes of acquiring citizenship > b. Naturalization 2. PURPOSE OF DISTINCTION a. Natural-born required in certain Government positions Under the 1987 Constitution, certain Government positions require natural-born citizenship: 1) President; 2) Vice-President; 2) Senator; 3) Member of the House of Representative; 4) Member of the Supreme Court, Chairman; 5) Commissioners of the Civil Service Commission; 6) Chairman and Commissioners of the Commission on Elections; 7) Chairman and Commissioners of the Commission on Audit; 8) Ombudsman and Deputies of the Office of the Ombudsman; 9) Members of the Central Monetary Authority / Banko Sentral ng Pilipinas; and, 10) Chairman and Members of the Commission on Human Rights. b. Natural-born who lost citizenship may be transferee of private properties Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain. (Section 7, Article XII, 1987 Constitution)

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Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law. (Section 8, Article XII, Ibid.)

BAR EXAM QUESTION

(Question B.19, Political Law, 2019 Bar Exam) Candidate X, a naturalized Filipino citizen, ran for Congressman for the Lone District of Batanes. After a close electoral contest, he won by a slim margin of 500 votes. His sole opponent, Y, filed an election protest before the Commission on Election (COMELEC), claiming that X should be disqualified to run for said position because he is not a natural-born citizen. While the case was pending, X was proclaimed by the Provincial Election Supervisor of Batanes as the duly elected Congressman of the province. (a) Distinguish between natural-born and naturalized citizen under the 1987 Constitution, (2%) (b) Is X qualified to run for Congress? Explain. (1%) Suggested Answer: (a) Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. On the other hand, naturalized citizens are those who acquired or elected to become Filipino citizens via the legal process of naturalization. (b) No. Answer Under the 1987 Constitution, only a natural-born Filipino citizen may run and hold office as a Member of the House of Representatives. Rule In the case at bar, X is a naturalized citizen and not a natural-born Filipino. Accordingly, he is disqualified from running and holding office as a Members of the House of Representative. Apply Thus, X is not qualified to run for Congress. Conclusion

B. Who are citizens

BAR EXAM TIPS | Frequency: Occasional WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: Who are Filino citizens, after marrying foreigners

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1. CITIZENS Who are citizens: 1) Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution; 2) Those whose fathers or mothers are citizens of the Philippines; 3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and 4) Those who are naturalized in accordance with law. (Section 1, Article IV, 1987 Constitution) a. Citizenship retained after marrying foreigners, unless renounced GENERAL RULE: Citizens of the Philippines who marry aliens shall retain their citizenship. (Section 4, Article IV, Ibid.) EXCEPTION: … unless by their act or omission they are deemed, under the law, to have renounced it. (Ibid.)

C. Who can be citizens 1. FOREIGNERS WHO UNDERGO NATURALIZATION NB: For more discussions, see Part IV – Citizenship > D. Modes of acquiring citizenship > b. Naturalization 2. FOREIGN SPOUSES OF FILIPINOS WHO WERE NATURALIZED Any woman who is now or may hereafter be married to a citizen of the Philippines, and who might herself be lawfully naturalized shall be deemed a citizen of the Philippines. (Paragraph 1, Section 15, C.A. 473) a. Requisites Under Section 15, C.A. 473, for the wife of a naturalized Filipino to be considered to have followed the citizenship of her husband, it must be shown that she herself is capable of being naturalized. (Co Pek v. Vivo, G.R. No. L-21775, 17 December 1966) The phrase “who might herself be lawfully naturalized”, used in the law, has been construed to mean that the said wife is not disqualified to become a Filipino citizen, and that she possesses all the qualifications for acquisition of Philippine citizenship. (Ibid.) Case Law 1) Although it may be true that petitioner Lim Wun Chee is not disqualified to become a Filipino citizen, there is no proof that she also possesses all the qualifications for citizenship in this country. The naturalization of her husband did not therefore, ipso facto make her a citizen of the Philippines. (Co Pek v. Vivo, G.R. No. L-21775, 17 December 1966)

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3. MINORS WHOSE PARENT/S WERE NATURALIZED INTO FILIPINOS Minor children of persons naturalized who have been born in the Philippines shall be considered citizens thereof. (Paragraph 2, Section 15, C.A. 473) a. If dwelling in the Philippines at time of naturalization of parent A foreign-born minor child, if dwelling in the Philippines at the time of the naturalization of the parent, shall automatically become a Philippine citizen. (Paragraph 3, Section 15, C.A. 473) Referring again to Section 15 of the Revised Naturalization Law a foreign-born minor child automatically becomes a Philippine citizen, if said child is “dwelling in the Philippines at the time of the naturalization of the parent.” It must be remembered that this provision confers on a person a primary right, a status, the Philippine citizenship. The term “dwelling” used in the law could not, therefore, be referring to mere physical presence in this country. That the law must have intended none other than domicile can also be inferred from the requirement of permanent residence before foreign-born minors, who are not in the Philippines at the time of the naturalization of their parents, can acquire the unqualified status of a Filipino citizen. (Co Pek v. Vivo, G.R. No. L-21775, 17 December 1966) b. If not dwelling in the Philippines at time of naturalization of parent GENERAL RULE: A foreign-born minor child, who is not in the Philippines at the time the parent is naturalized, shall be deemed a Philippine citizen only during his minority. (Paragraph 3, Section 15, C.A. 473) EXCEPTION: … unless he begins to reside permanently in the Philippines when still a minor, in which case, he will continue to be a Philippine citizen even after becoming of age. (Ibid.) A child born outside of the Philippines after the naturalization of his parent, shall be considered a Philippine citizen, unless within one (1) year after reaching the age of majority, he fails to register himself as a Philippine citizen at the American Consulate of the country where he resides, and to take the necessary oath of allegiance. (Paragraph 4, Section 15, C.A. 473)

D. Modes of acquiring citizenship

BAR EXAM TIPS | Frequency: Occasional WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: jus sangguini v. jus soli, foundlings, res judicata

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1. CONCEPT The following are the modes of acquiring citizenship: 1) Jus Sanguinis; 2) Naturalization; 3) Res Judicata; and, 4) Jus Soli. (Tecson v. COMELEC, En Banc, G.R. Nos. 161434, 161634, 161824, 03 March 2004) Case Law 1) In Tecson v. COMELEC, the date, month and year of birth of Fenando Poe Jr. (FPJ) appeared to be 20 August 1939 during the regime of the 1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization, jus soli, res judicata and jus sanguinis – had been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a “natural-born” citizen of the Philippines. Jus soli did not last long. With the adoption of the 1935 Constitution and the reversal of Roa in Tan Chong vs. Secretary of Labor (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth. (Ibid.) a. Jus Sangguini The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a child follows the nationality or citizenship of the parents regardless of the place of his/her birth, as opposed to the doctrine of jus soli which determines nationality or citizenship on the basis of place of birth. (Valles v. COMELEC, En Banc, G.R. No. 137000, 09 August 2000) The principle of jus sanguinis, which confers citizenship by virtue of blood relationship, was subsequently retained under the 1974 and 1987 Constitutions. (Valles v. COMELEC, En Banc, G.R. No. 137000, 09 August 2000)

1) Foundlings: The Senator Grace Poe Case

a) Considered as natural-born Filipino Generally accepted principles of international law are based not only on international custom, but also on “general principles of law recognized by civilized nations,” as the phrase is understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against discrimination, which are fundamental principles underlying the Bill of Rights and which are “basic to legal systems generally,” support the notion that the right against enforced disappearances and the recognition of foreign judgments, were correctly considered as “generally accepted principles of international law” under the incorporation clause. (Poe-Llamanzares v. COMELEC, En Banc, G.R. Nos. 221697 and 221698-700, 08 March 2016) Petitioner's evidence shows that at least sixty countries in Asia, North and South America, and Europe have passed legislation recognizing foundlings as its citizen. Forty-two (42) of those countries follow the jus sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961 Convention on Statelessness; twenty-six (26) are not signatories to the Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments pointed out that in 166 out of 189 countries surveyed (or 87.83%),

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foundlings are recognized as citizens. These circumstances, including the practice of jus sanguinis countries, show that it is a generally accepted principle of international law to presume foundlings as having been born of nationals of the country in which the foundling is found. (Ibid.) Current legislation reveals the adherence of the Philippines to this generally accepted principle of international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption, expressly refer to “Filipino children.” In all of them, foundlings are among the Filipino children who could be adopted. Likewise, it has been pointed that the DFA issues passports to foundlings. Passports are by law, issued only to citizens. This shows that even the executive department, acting through the DFA, considers foundlings as Philippine citizens. (Ibid.) Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on Statelessness is rational and reasonable and consistent with the jus sanguinis regime in our Constitution. The presumption of natural-born citizenship of foundlings stems from the presumption that their parents are nationals of the Philippines. As the empirical data provided by the PSA show, that presumption is at more than 99% and is a virtual certainty. (Ibid.) In sum, all of the international law conventions and instruments on the matter of nationality of foundlings were designed to address the plight of a defenseless class which suffers from a misfortune not of their own making. We cannot be restrictive as to their application if we are a country which calls itself civilized and a member of the community of nations. (Ibid.) b. Naturalization No less than the 1987 Constitution enumerates who are Filipino citizens. Among those listed are citizens by naturalization. Naturalization refers to the legal act of adopting an alien and clothing him with the privilege of a native-born citizen. Under the present laws, the process of naturalization can be judicial or administrative. (Republic v. Karbasi, G.R. No. 210412, 29 July 2015) Judicially, the Naturalization Law provides that after hearing the petition for citizenship and the receipt of evidence showing that the petitioner has all the qualifications and none of the disqualifications required by law, the competent court may order the issuance of the proper naturalization certificate and its registration in the proper civil registry. (Ibid.) On the other hand, Republic Act (R.A.) No. 9139 provides that aliens born and residing in the Philippines may be granted Philippine citizenship by administrative proceeding by filing a petition for citizenship with the Special Committee, which, in view of the facts before it, may approve the petition and issue a certificate of naturalization. In both cases, the petitioner shall take an oath of allegiance to the Philippines as a sovereign nation. (Ibid.)

1) Qualifications Subject to rules on special qualifications, any person having the following qualifications may become a citizen of the Philippines by naturalization:

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1) He must be not less than twenty-one years of age on the day of the hearing of the petition; 2) He must have resided in the Philippines for a continuous period of not less than ten years; 3) He must be of good moral character and believes in the principles underlying the Philippine Constitution, and must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relation with the constituted government as well as with the community in which he is living; 4) He must own real estate in the Philippines worth not less than five thousand pesos, Philippine currency, or must have some known lucrative trade, profession, or lawful occupation; 5) He must be able to speak and write English or Spanish and any one of the principal Philippine languages; and 6) He must have enrolled his minor children of school age, in any of the public schools or private schools recognized by the Office of Private Education of the Philippines, where the Philippine history, government and civics are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him prior to the hearing of his petition for naturalization as Philippine citizen. (Section 3, C.A. 473, Revised Naturalization Law)

a) Special qualifications The ten (10) years of continuous residence required shall be understood as reduced to five (5) years for any petitioner having any of the following qualifications: 1) Having honorably held office under the Government of the Philippines or under that of any of the provinces, cities, municipalities, or political subdivisions thereof; 2) Having established a new industry or introduced a useful invention in the Philippines; 3) Being married to a Filipino woman; 4) Having been engaged as a teacher in the Philippines in a public or recognized private school not established for the exclusive instruction of children of persons of a particular nationality or race, in any of the branches of education or industry for a period of not less than two years; and 5) Having been born in the Philippines. (Section 3, Ibid.)

2) Disqualifications The following cannot be naturalized as Philippine citizens: 1) Persons opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments; 2) Persons defending or teaching the necessity or propriety of violence, personal assault, or assassination for the success and predominance of their ideas; 3) Polygamists or believers in the practice of polygamy; 4) Persons convicted of crimes involving moral turpitude; 5) Persons suffering from mental alienation or incurable contagious diseases; 6) Persons who, during the period of their residence in the Philippines, have not mingled socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the Filipinos; 7) Citizens or subjects of nations with whom the United States and the Philippines are at war, during the period of such war;

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8) Citizens or subjects of a foreign country other than the United States whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof. (Section 4, Ibid.)

3) Requirements and procedure Any person desiring to acquire Philippine citizenship shall file with the competent court, a petition in triplicate, accompanied by two photographs of the petitioner, setting forth his name and surname; his present and former places of residence; his occupation; the place and date of his birth; whether single or married and the father of children, the name, age, birthplace and residence of the wife and of each of the children; the approximate date of his or her arrival in the Philippines, the name of the port of debarkation, and, if he remembers it, the name of the ship on which he came; a declaration that he has the qualifications required by this Act, specifying the same, and that he is not disqualified for naturalization under the provisions of this Act; that he has complied with the requirements of Sec. five of this Act; and that he will reside continuously in the Philippines from the date of the filing of the petition up to the time of his admission to Philippine citizenship. The petition must be signed by the applicant in his own handwriting and be supported by the affidavit of at least two credible persons, stating that they are citizens of the Philippines and personally know the petitioner to be a resident of the Philippines for the period of time required by this Act and a person of good repute and morally irreproachable, and that said petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way disqualified under the provisions of this Act. The petition shall also set forth the names and post-office addresses of such witnesses as the petitioner may desire to introduce at the hearing of the case. The certificate of arrival, and the declaration of intention must be made part of the petition. (Section 7, R.A. 473, Revised Naturalization Law)

a) Strict compliance with requirements An applicant for naturalization must show full and complete compliance with the requirements of the naturalization law; otherwise, his petition for naturalization will be denied. (Republic v. Huang Te Fu, G.R. No. 200983, 18 March 2015) To repeat, strict compliance with all statutory requirements is necessary before an applicant may acquire Philippine citizenship by naturalization. The absence of even a single requirement is fatal to an application for naturalization. (Ibid.) It is a well-entrenched rule that Philippine citizenship should not easily be given away. All those seeking to acquire it must prove, to the satisfaction of the Court, that they have complied with all the requirements of the law. The reason for this requirement is simple. Citizenship involves political status; hence, every person must be proud of his citizenship and should cherish it. Naturalization is not a right, but one of privilege of the most discriminating, as well as delicate and exacting nature, affecting, as it does, public interest of the highest order, and which may be enjoyed only under the precise conditions prescribed by law therefor. (Republic v. Karbasi, G.R. No. 210412, 29 July 2015)

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b) Proceedings imbued with highest public interest Naturalization proceedings are imbued with the highest public interest. Naturalization laws should be rigidly enforced and strictly construed in favor of the government and against the applicant. (Republic v. Huang Te Fu, supra.)

c) Burden on proof on applicant The burden of proof rests upon the applicant to show full and complete compliance with the requirements of law. (Ibid.)

4) Good moral character Section 2 of the Revised Naturalization Law or CA 473 requires, among others, that an applicant for naturalization must be of good moral character and must have some known lucrative trade, profession, or lawful occupation. (Ibid.)

5) Lucrative trade, profession, lawful occupation Based on jurisprudence, the qualification of “some known lucrative trade, profession, or lawful occupation” means “not only that the person having the employment gets enough for his ordinary necessities in life. It must be shown that the employment gives one an income such that there is an appreciable margin of his income over his expenses as to be able to provide for an adequate support in the event of unemployment, sickness, or disability to work and thus avoid one’s becoming the object of charity or a public charge.” His income should permit “him and the members of his family to live with reasonable comfort, in accordance with the prevailing standard of living, and consistently with the demands of human dignity, at this stage of our civilization.” (Ibid.) Moreover, it has been held that in determining the existence of a lucrative income, the courts should consider only the applicant’s income; his or her spouse’s income should not be included in the assessment. The spouse’s additional income is immaterial “for under the law the petitioner should be the one to possess ‘some known lucrative trade, profession or lawful occupation’ to qualify him to become a Filipino citizen.” Lastly, the Court has consistently held that the applicant’s qualifications must be determined as of the time of the filing of his petition. (Ibid.) The economic qualification for naturalization may be seen to embody the objective of ensuring that the petitioner would not become a public charge or an economic burden upon society. The requirement relates, in other words, not simply to the time of execution of the petition for naturalization but also to the probable future of the applicant for naturalization. (Republic v. CA, Chua, En Banc, G.R. No. 77028, 08 November 1988) In one case, the Court assessed the prevailing circumstances of an applicant for naturalization who was a medical student at the time of the filing of her petition. The Court rejected the Republic’s argument that the applicant’s status as a subsequent passer of the Board Examinations of 1985 for Doctors of Medicine could not by itself be equated with “gainful employment or tangible receipts.” The Court held that this interpretation of the income requirement in the law is “too literal and restrictive.” The public policy underlying the lucrative income requirement is as follows: The Court must

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be satisfied that there is reasonable assurance not only that the applicant will not be a social burden or liability but that he is a potential asset to the country he seeks to adopt for himself and quite literally, for his children and his children’s children. (Republic v. Karbasi, supra.)

6) Certificate of Arrival Section 7 of the Revised Naturalization Law or CA 473 requires, among others, that an applicant for naturalization must attach a Certificate of Arrival to the Petition for Naturalization. (Republic v. Huang Te Fu, supra.) The failure to attach a copy of the applicant’s certificate of arrival to the petition as required by Section 7 of CA 473 is fatal to an applicant’s petition for naturalization. (Ibid.) Respondent came to the country sometime in 1973; thus, he should have attached a Certificate of Arrival to his Petition for Naturalization.1âwphi1 This is mandatory as respondent must prove that he entered the country legally and not by unlawful means or any other manner that is not sanctioned by law. Because if he entered the country illegally, this would render his stay in the country unwarranted from the start, and no number of years' stay here will validate his unlawful entry. (Ibid.) c. Res judicata

1) Citizenship proceedings, suis generis Cases involving issues on citizenship are sui generis, meaning; they are in a class of their own. Thus, in cases where the citizenship of a person is material or indispensable in a judicial or administrative case and whatever the corresponding court or administrative authority decides therein, citizenship is not considered as res judicata and can be retried again and again. (Go v. Bureau of Immigration, G.R. No. 191810, 22 June 2015)

2) If citizenship is not primary issue, no res judicata The said judicial declaration was merely an incident to the adjudication of the rights of the parties to the controversy over land ownership. Their citizenship was not the thing adjudicated in the judgment and the declaration that they are Filipinos was but a necessary premise for the court to arrive at a conclusion that the sale of the realty was valid as between the parties. Not being the thing directly adjudicated, their declared citizenship is not res judicata, and cannot become conclusive. (In Re: Florencio Mallare, En Banc, A.M. No. 533, 29 April 1968)

3) Res judicata if citizenship is primary issue Res judicata may only be applied in cases of citizenship when the following concur: 1) A person’s citizenship must be raised as a material issue in a controversy where said person is a party; 2) The Solicitor General or his authorized representative took active part in the resolution thereof; and 3) The finding or citizenship is affirmed by this Court. (Go v. Bureau of Immigration, supra.)

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NB: This form of re judicata pertains to the application for naturalization. It does not cover petitions for cancellation as discussed hereunder.

4) Res judicata, not a defense against petition for cancellation The judgment directing the issuance of a certificate of citizenship in naturalization proceedings is a mere grant of a political privilege conferred by the government upon the petitioning alien. It is subjected to the right of the government to ask for the cancellation of such certificate if found to have been illegally or fraudulently procured. Neither estoppel nor res judicata may be set up to bar the State from instituting appropriate proceedings directed at striking down a certificate of citizenship so issued. (Republic v. Reyes, En Banc, G.R. No. L-22550, 19 May 1966) A decision or order granting citizenship to the applicant does not really become executory and a naturalization proceeding not being a judicial adversary proceeding, the decision rendered therein is no res judicata as to any of the reasons or matters which would support a judgment cancelling the certificate of naturalization for illegal or fraudulent procurement. As a matter of fact, it is settled in this jurisdiction that a certificate of naturalization may be cancelled upon grounds or conditions subsequent to the granting of the certificate o naturalization. (Republic v. Go Bon Lee, G.R. No. L-11499, 29 April 1961) d. Jus Soli

1) Pre-1935 Constitution: Organic Laws Before the 1935 Constitution, what served as the Constitution of the Philippines were the principal organic acts by which the United States governed the country. These were the Philippine Bill of July 1, 1902 and the Philippine Autonomy Act of August 29, 1916, also known as the Jones Law. (Valles v. COMELEC, En Banc, G.R. No. 137000, 09 August 2000) Among others, these laws defined who were deemed to be citizens of the Philippine islands. The Philippine Bill of 1902 defined Philippine citizens as: SEC. 4... all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in the Philippine Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain signed at Paris December tenth, eighteen hundred and ninety-eight. (Ibid.) The Jones Law, on the other hand, provides: SEC. 2 That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninety-eight, and except such others as

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have since become citizens of some other country: Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who cannot come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States if residing therein. (Ibid.) Under both organic acts, all inhabitants of the Philippines who were Spanish subjects on April 11, 1899 and resided therein including their children are deemed to be Philippine citizens. (Ibid.)

2) 1935 Constitution The signing into law of the 1935 Philippine Constitution has established the principle of jus sanguinis as basis for the acquisition of Philippine citizenship. (Ibid.)

E. Modes of losing and reacquiring citizenship

BAR EXAM TIPS | Frequency: Moderate WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: renunciation of citizenship, reacquisition of citizenship, repatriation, requirements and procedure

1. LOSING CITIZENSHIP Philippine citizenship may be lost or reacquired in the manner provided by law. (Section 3, Article II, 1987 Constitution) When a person loses citizenship, therefore, the State sees to it that its reacquisition may only be granted if the former citizen fully satisfies all conditions and complies with the applicable law. Without doubt, repatriation is not to be granted simply based on the vagaries of the former Filipino citizen. (Tabasa v. CA, G.R. No. 125793, 29 August 2006) a. Renunciation Renunciation or the relinquishment of one’s citizenship requires a voluntary act for it to produce any legal effect. This willingness to disassociate from a political community is manifested by swearing to an oath. If we were to consider the words in the Oath of Allegiance as meaningless, the process laid out under the law to effect naturalization would be irrelevant and useless. Thus, to give effect to the legal implications of taking an Oath of Allegiance, we must honor the meaning of the words which the person declaring the oath has sworn to freely, without mental reservation or purpose of evasion. (Tan v. Crisologo, G.R. No. 193993, 08 November 2017)

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NB: Once Filipinos renounce their citizenship to be naturalized in a foreign country, they lose and do not retain their Filipino citizenship, per Tan v. Crisologo.

1) Express renunciation, required In order that citizenship may be lost by renunciation, such renunciation must be express. (Valles v. COMELEC, En Banc, G.R. No. 137000, 09 August 2000) All Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions laid out by the law. (Tan v. Crisologo, G.R. No. 193993, 08 November 2017)

2) No express renunciation

a) Application for alien certificate of registration b) Holding of foreign passport

An application for an alien certificate of registration does not amount to an express renunciation or repudiation of one’s citizenship. (Valles v. COMELEC, supra.) The application for an alien certificate of registration and holding of a foreign passport are mere acts of assertion of one’s foreign citizenship before a person effectively renounced the same. Thus, at the most, he had dual citizenship. (Ibid.) Case Law 1) In Aznar v. COMELEC, the mere fact that respondent Osmena was a holder of a certificate stating that he is an American did not mean that he is no longer a Filipino, and that an application for an alien certificate of registration was not tantamount to renunciation of his Philippine citizenship. (Ibid.) 2) In Mercado vs. Manzano and COMELEC, the fact that respondent Manzano was registered as an American citizen in the Bureau of Immigration and Deportation and was holding an American passport on April 22, 1997, only a year before he filed a certificate of candidacy for vice-mayor of Makati, were just assertions of his American nationality before the termination of his American citizenship. (Ibid.) 3) In Valles v. COMELEC, the mere fact that private respondent Rosalind Ybasco Lopez was a holder of an Australian passport and had an alien certificate of registration are not acts constituting an effective renunciation of citizenship and do not militate against her claim of Filipino citizenship. For renunciation to effectively result in the loss of citizenship, the same must be express. (Ibid.)

c) Children of Filipinos born in another country Under Commonwealth Act 63, the fact that a child of Filipino parent/s was born in another country has not been included as a ground for losing one’s Philippine citizenship. (Ibid.) 2. REACQUISITION OF CITIZENSHIP R.A. No. 9225 was enacted to allow natural-born Filipino citizens, who lost their Philippine citizenship through naturalization in a foreign country, to expeditiously reacquire Philippine citizenship. Under the procedure currently in place under R.A. No.

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9225, the reacquisition of Philippine citizenship requires only the taking of an oath of allegiance to the Republic of the Philippines. (Tan v. Crisologo, G.R. No. 193993, 08 November 2017) a. Naturalization in a foreign country Once Philippine citizenship is renounced because of naturalization in a foreign country, we cannot consider one a Filipino citizen unless and until his or her allegiance to the Republic of the Philippines is reaffirmed. Simply stated, right after a Filipino renounces allegiance to our country, he or she is to be considered a foreigner. (Ibid.)

1) Considered a foreigner from renunciation until reacquisition To consider that the reacquisition of Philippine citizenship retroacts to the date it was lost would result in an absurd scenario where a Filipino would still be considered a Philippine citizen when in fact he had already renounced his citizenship. (Ibid.) 3. REPATRIATION UNDER R.A. 8171 Repatriation is not a matter of right, but it is a privilege granted by the State. This is mandated by the 1987 Constitution under Section 3, Article IV, which provides that citizenship may be lost or reacquired in the manner provided by law. The State has the power to prescribe by law the qualifications, procedure, and requirements for repatriation. It has the power to determine if an applicant for repatriation meets the requirements of the law for it is an inherent power of the State to choose who will be its citizens, and who can reacquire citizenship once it is lost. (Tabasa v. CA, G.R. No. 125793, 29 August 2006) a. Who are qualified The only persons entitled to repatriation under RA 8171 are the following: a) Filipino women who lost their Philippine citizenship by marriage to aliens; and, b) Natural-born Filipinos including their minor children who lost their Philippine citizenship on account of political or economic necessity. (Ibid.) The privilege of repatriation under RA 8171 is available only to natural-born Filipinos who lost their citizenship on account of political or economic necessity, and to the minor children of said natural-born Filipinos. This means that if a parent who had renounced his Philippine citizenship due to political or economic reasons later decides to repatriate under RA 8171, his repatriation will also benefit his minor children according to the law. This includes a situation where a former Filipino subsequently had children while he was a naturalized citizen of a foreign country. (Ibid.) The repatriation of the former Filipino will allow him to recover his natural-born citizenship and automatically vest Philippine citizenship on his children of jus sanguinis or blood relationship: the children acquire the citizenship of their parents who are natural-born Filipinos. To claim the benefit of RA 8171, however, the children must be of minor age at the time the petition for repatriation is filed by the parent. This is so because a child does not have the legal capacity for all acts of civil life much less the capacity to undertake a political act like the election of citizenship. On their own, the

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minor children cannot apply for repatriation or naturalization separately from their parents. (Tabasa v. CA, G.R. No. 125793, 29 August 2006) b. Procedure The applicant has to file his petition for repatriation with the Special Committee on Naturalization (SCN), which was designated to process petitions for repatriation pursuant to Administrative Order No. 285 (A.O. No. 285) dated August 22, 1996. (Ibid.) In the Amended Rules and Regulations Implementing RA 8171 issued by the SCN on August 5, 1999, applicants for repatriation are required to submit documents in support of their petition such as their birth certificate and other evidence proving their claim to Filipino citizenship. 19 These requirements were imposed to enable the SCN to verify the qualifications of the applicant particularly in light of the reasons for the renunciation of Philippine citizenship. (Ibid.) c. Requirements The applicant has to prove that his parents relinquished their Philippine citizenship on account of political or economic necessity as provided for in the law. Nowhere in his affidavit of repatriation did he mention that his parents lost their Philippine citizenship on account of political or economic reasons. It is notable that under the Amended Rules and Regulations Implementing RA 8171, the SCN requires a petitioner for repatriation to set forth, among others, “the reason/s why petitioner lost his/her Filipino citizenship, whether by marriage in case of Filipino woman, or whether by political or economic necessity in case of [a] natural-born Filipino citizen who lost his/her Filipino citizenship. In case of the latter, such political or economic necessity should be specified.” (Ibid.) d. Effects of repatriation Repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino. (Bengson III v. HRET, En Banc, G.R. No. 142840, 07 May 2001)

BAR EXAM QUESTION

(Question IX, Political Law, 2018 Bar Exam) In 1990, Agripina migrated to Canada and acquired Canadian citizenship. In 2008, Agripina retired and returned to the Philippines to permanently reside in her hometown of Angeles, Pampanga. A month after returning to the Philippines, Agripina took her oath of allegiance and executed a sworn renunciation of her Canadian citizenship in accordance with R.A. No. 9225. In 2009, Agripina filed her certificate of candidacy for Congress for the 2010 elections. Agripina’s political rivals lost no time in causing the filing of various

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actions to question her candidacy. They questioned her eligibility to run as member of Congress. Since Agripina had to take an oath under R.A. No. 9225, it meant that she needed to perform an act to perfect her Philippine citizenship. Hence, they claimed that Agripina could not be considered a natural-born citizen. Agripina raised the defense that, having complied with the requirements of R.A. No. 9225, she had reacquired, and was deemed never to have lost, her Philippine citizenship. Is Agripina disqualified to run for Congress for failing to meet the citizenship requirement? (2.5%) Suggested Answer: No. Answer Under the law and jurisprudence, repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino. Rule In the case at bar, Agripina was repatriated after she took her oath of allegiance and executed a sworn renunciation of her Canadian citizenship in accordance with R.A. 9225. Accordingly, she regained her former status as a natural-born Filipino. Apply Thus, Agripina is not disqualified to run for Congress. Conclusion

F. Dual citizenship and dual allegiance

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: dual citizenship v. dual allegiance, use of foreign passport, filing of certificate of candidacy

1. DUAL CITIZENSHIP a. Concept Dual citizenship – arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. (Mercado v. Manzano, En Banc, G.R. No. 135083, 26 May 1999) For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the

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doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. (Ibid.)

1) Involuntary act Dual citizenship is involuntary and arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. Thus, like any other natural-born Filipino, it is enough for a person with dual citizenship who seeks public office to file his certificate of candidacy and swear to the oath of allegiance contained therein. (Cordora v. COMELEC, En Banc, G.R. No. 176947, 19 February 2009) 2. DUAL ALLEGIANCE a. Concept Dual allegiance – refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual’s volition. (Mercado v. Manzano, supra.) Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. (Section 5, Article IV, 1987 Constitution)

1) Active participation Dual allegiance is brought about by the individual’s active participation in the naturalization process. (Cordora v. COMELEC, En Banc, G.R. No. 176947, 19 February 2009)

2) 1987 Constitution and the Local Government Code Dual citizenship as used in the Local Government Code and reconciled the same with Article IV, Section 5 of the 1987 Constitution refer to dual allegiance. Recognizing situations in which a Filipino citizen may, without performing any act, and as an involuntary consequence of the conflicting laws of different countries, be also a citizen of another state, the Court explained that dual citizenship as a disqualification must refer to citizens with dual allegiance. (Valles v. COMELEC, En Banc, G.R. No. 137000, 09 August 2000) Consequently, persons with mere dual citizenship do not fall under this disqualification. (Ibid.) 3. DUAL CITIZENS WHO INTEND TO SEEK OR HOLD PUBLIC OFFICE a. Elective positions

1) Those who retain or re-acquried Philippine citizenship a) Personal and sworn renunciation, required with certificate of candidacy

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NB: Those who retain or re-acquire Philippine citizenship under R.A. 9255 are required to comply with legal requirements before exercising certain civil and political rights. The objective is to avoid dual allegiance. For instance, those seeking elective public [office] in the Philippines shall meet the qualification for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath (Section 5[2], R.A. 9225). The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those who reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized to administer an oath simultaneous with or before the filing of the certificate of candidacy. (Jacot v. COMELEC, En Banc, G.R. No. 179848, 27 November 2008) What the oath of renunciation simply does is to make express what natural-born Filipino citizens have already implicitly renounced. The requirement of express renunciation highlights the implication that it is not the exclusive means by which natural-born Filipino citizens may renounce their foreign citizenship. In reality, the oath of renunciation is a requirement simply for the purpose of running for elective public office, apparently to ensure that foreign citizenship and mixed loyalties are kept out of the elective public service. (Arnado v. COMELEC, En Banc, G.R. No. 210164, 18 August 2015)

b) Use of foreign passport after renunciation; Recants oath of reunciation The use of foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of representation as to one’s nationality and citizenship; it does not divest Filipino citizenship regained by repatriation but it recants the Oath of Renunciation required to qualify one to run for an elective position. (Maquiling v. COMELEC, En Banc, G.R. No. 195649, 16 April 2013)

BAR EXAM QUESTION

(Question VII, Political Law, 2018 Bar Exam) The 2016 mayoralty race in the City of Ardania included Arnaldo and Anacleto as contenders. Arnaldo filed a petition with the Comelec to cancel Anacleto's Certificate of Candidacy (CoC) for misrepresenting himself as a Filipino citizen. Arnaldo presented as evidence a copy of Anacleto's Spanish passport and a certification from the Bureau of Immigration (Bl) showing that Anacleto used the same passport several times to travel to and from Manila and Madrid or Barcelona. In his Comment, Anacleto claimed that, a year prior to filing his CoC, he had complied with all the requirements of R.A. No. 9225 (Citizenship Retention and Re-acquisition Act of 2003) to reacquire his Philippine citizenship by taking an oath of allegiance and executing a sworn renunciation of his Spanish citizenship. He defended the use

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of his Spanish passport subsequent to taking his oath of allegiance to the Philippines as a practical necessity since he had yet to obtain his Philippine passport despite reacquiring his Philippine citizenship. Even after he secured his Philippine passport, he said he had to wait for the issuance of a Schengen visa to allow him to travel to Spain to visit his wife and minor children. (a) Based on the allegations of the parties, is there sufficient ground to cancel Anacleto's CoC? (2.5%) Suggested Answer: (a) Yes. Answer Under jurisprudence, the use of foreign passport after renouncing one’s foreign citizenship is a positive and voluntary act of representation as to one’s nationality and citizenship; it does not divest Filipino citizenship regained by repatriation but it recants the Oath of Renunciation required to qualify one to run for an elective position. Rule In the case at bar, Anacleto used his foreign passport after renunciation of his foreign citizenship. Accordingly, he disqualified himself as such act amounted to recantation of his oath of renunciation. Apply Thus, there is sufficient ground to cancel Anacleto’s certificate of candidacy. Conclusion

2) Those who are dual citizen by circumstance a) Filing of certificate of candidacy, sufficient

Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, persons with mere dual citizenship (due to circumstances) elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. (Mercado v. Manzano, supra.) b. Appointive positions NB: Those who retain or re-acquire Philippine citizenship under R.A. 9255 are required to comply with legal requirements before exercising certain civil and political rights. The objective is to avoid dual allegiance. For instance, those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath (Section 5[3], R.A. 9255).

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BAR EXAM QUESTION

(Question B.20, Political Law, 2019 Bar Exam) H, a naturalized American citizen who later became a dual citizen under Republic Act No. 9225 (the Citizenship Retention and Re-acquisition Act), decided to run for Congress and thus, filed a certificate of candidacy (CoC). A citizen argued that H is ineligible for the position because of his status as a dual citizen. H responded that his act of filing a CoC amounted to his renunciation of foreign citizenship, rendering him eligible for the position. (a) Was H’s filing of a CoC sufficient to renounce foreign citizenship? Explain. (2.5%) (b) Assuming that H is a dual citizen because his parents are Filipino citizens and he was born in California, USA, was filing of a CoC sufficient to renounce his foreign citizenship? Explain. (2.5%) Suggested Answer: (a) No. Answer Under R.A. 9225 and jurisprudence, the law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those who reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized to administer an oath simultaneous with or before the filing of the certificate of candidacy. Rule In the case at bar, H did not expressly renounce his American citizenship through a person and sown renunciation simultaneous with or before the filing of his certificate of candidacy. Apply Thus, H’s filing of a CoC was not sufficient to renounce foreign citizenship. Conclusion

(b) Yes. Answer Under jurisprudence, it is sufficient that dual citizens, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. Rule In the case at bar, if H was a dual citizen by circumstance having Filipino parents and being born in the United Stated, he is not required to make a personal and sworn renunciation simultaneous with or before the filing of his certificate of candidacy. Apply Thus, his filing a certificate of candidacy is sufficient to renounce his foreign citizenship. Conclusion

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V. Legislative Department

A. Legislative power 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. (Section 1, Article VI, 1987 Constitution)

1. Scope and limitations a. 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. (Macalintal v. Commission on Elections, En Banc, G.R. No. 157013, 10 July 2003) Clearly, oversight concerns post-enactment measures undertaken by Congress: 1) To monitor bureaucratic compliance with program objectives; 2) To determine whether agencies are properly administered; 3) To eliminate executive waste and dishonesty; 4) To prevent executive usurpation of legislative authority; and 5) To assess executive conformity with the congressional perception of public interest. (Ibid.) 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. (Ibid.)

1) 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: 1) Scrutiny; 2) Investigation; and, 3) Supervision. (Ibid.)

a) Scrutiny Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations. Its primary purpose is to determine economy and efficiency of the operation of government activities. In the exercise of legislative scrutiny, Congress may request information and report from the other branches of government. It can give recommendations or pass resolutions for consideration of the agency involved. (Ibid.)

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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. (Ibid.)

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 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. (Ibid.)

(1) Legislative veto Congress exercises 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 Congress affirmatively approves it. (Ibid.) Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed 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 Congress a direct role in enforcing, applying or implementing its own laws. (ABAKADA Guro Party List Officers/Members v. Purisima, En Banc, G.R. No. 166715, 14 August 2008)

(a) No authority to approve implementing rules and regulations From the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional. Under this principle, a provision that requires Congress or its members to approve the implementing rules of a law after it has already taken effect shall be unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling

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made by the members of the executive branch charged with the implementation of the law. (ABAKADA Guro Party List Officers/Members v. Purisima, En Banc, supra.) Administrative regulations enacted by administrative agencies to implement and interpret the law which they are entrusted to enforce have the force of law and are entitled to respect. Such rules and regulations partake 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 presumption of constitutionality and legality until they are set aside with finality in an appropriate case by a competent court. Congress, in the guise of assuming the role of an overseer, may not pass upon their legality by subjecting them to its stamp of approval without disturbing the calculated balance of powers established by the Constitution. (Ibid.)

2. Principle of non-delegability; exceptions a. CONCEPT Congress has two options when enacting legislation to define national policy within the broad horizons of its legislative competence: 1) It can itself formulate the details; or 2) It can assign to the executive branch the responsibility for making necessary managerial decisions in conformity with those standards. (ABAKADA Guro Party List Officers/Members v. Purisima, En Banc, G.R. No. 166715, 14 August 2008) 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-making) or ascertain facts necessary to bring the law into actual operation (contingent rule-making). (Ibid.) Power should be delegated where there is agreement that a task must be performed and it cannot be effectively performed by the legislature without the assistance of a delegate or without an expenditure of time so great as to lead to the neglect of equally important business. Delegation is most commonly indicated where the relations to be regulated are highly technical or where their regulation requires a course of continuous decision. (Trade Unions of the Philippines and Allied Services (TUPAS-WFTU vs. Ople, En Banc, G.R. No. L-67573, 19 June 1985) b. SCOPE

1) Applicable to all branches The principle of non-delegation of powers is applicable to all the three major powers of the Government but is especially important in the case of the legislative power because of the many instances when its delegation is permitted. The occasions are rare when executive or judicial powers have to be delegated by the authorities to which they legally certain. In the case of the legislative power, however, such occasions have become more and more frequent, if not necessary. This had led to the observation that

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the delegation of legislative power has become the rule and its non-delegation the exception. (Eastern Shipping Lines, Inc. v. POEA, G.R. No. 76633, 18 October 1988)

2) Delegation to another branch Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law for the reasons stated above. Nevertheless, it is essential, to forestall a violation of the principle of separation of powers, that said law: 1) Be complete in itself — it must set forth therein the policy to be executed, carried out or implemented by the delegate and; 2) Fix a standard — the limits of which are sufficiently determinate or determinable — to which the delegate must conform in the performance of his functions. (Ibid.) c. NO FURTHER DELEGATION GENERAL RULE: What has been delegated, cannot be delegated. Potestats delegata non delegari potest. (Rodrigo v. Sandiganbayan, supra.) This doctrine is based on the ethical principle that such a delegated power constitutes not only a right but a duty to be performed by the delegate by the instrumentality of his own judgment acting immediately upon the matter of legislation and not through the intervening mind of another. (Ibid.) EXCEPTIONS: 1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution; 2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution; 3) Delegation to the people at large; 4) Delegation to local governments; and 5) Delegation to administrative bodies. (BOCEA v. Teves, G.R. No. 181704, 06 December 2011)

1) What cannot be delegated

a) Legislative discretion on substantive contents of the law Legislative discretion as to the substantive contents of the law cannot be delegated. What can be delegated is the discretion to determine how the law may be enforced, not what the law shall be. The ascertainment of the latter subject is a prerogative of the legislature. This prerogative cannot be abdicated or surrendered by the legislature to the delegate. (Eastern Shipping Lines, Inc. v. POEA, supra.)

b) Power to tax to the Cabinet Not even Congress could constitutionally delegate to the Cabinet its power to tax. (Marc Donnelly and Associates, Inc. v. Agregado, En Banc, G.R. No. L-4510, 31 May 1954)

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d. ADMINISTRATIVE AGENCIES Administrative agencies possess two kinds of powers, the quasi-legislative or rule-making power, and the quasi-judicial or administrative adjudicatory power. (The Chairman and the Executive Director, Palawan Council for Sustainable Development v. Lim, G.R. No. 183173, 24 August 2016) The first is the power to make rules and regulations that results in delegated legislation that is within the confines of the granting statute and the doctrine of non-delegability and separability of powers. (Ibid.) The second is the power to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance with the standards laid down by the law itself in enforcing and administering the same law. The administrative body exercises its quasi-judicial power when it performs in a judicial manner an act that is essentially of an executive or administrative nature, where the power to act in such manner is incidental to or reasonably necessary for the performance of the executive or administrative duty entrusted to it. (Ibid.)

1) Rationale for allowing delegation to administrative bodies The reason is the increasing complexity of the task of government and the growing inability of the legislature to cope directly with the myriad problems demanding its attention. The growth of society has ramified its activities and created peculiar and sophisticated problems that the legislature cannot be expected reasonably to comprehend. Specialization even in legislation has become necessary. To many of the problems attendant upon present-day undertakings, the legislature may not have the competence to provide the required direct and efficacious, not to say, specific solutions. These solutions may, however, be expected from its delegates, who are supposed to be experts in the particular fields assigned to them. (Eastern Shipping Lines, Inc. v. POEA, G.R. No. 76633, supra.) With the growing complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater powers by the legislature, and toward the approval of the practice by the courts. (Rodrigo v. Sandiganbayan, G.R. No. 125498, 02 July 1999). In the face of the increasing complexity of modern life, delegation of legislative power to various specialized administrative agencies is allowed as an exception to this principle. Given the volume and variety of interactions in today’s society, it is doubtful if the legislature can promulgate laws that will deal adequately with and respond promptly to the minutiae of everyday life. Hence, the need to delegate to administrative bodies — the principal agencies tasked to execute laws in their specialized fields — the authority to promulgate rules and regulations to implement a given statute and effectuate its policies. All that is required for the valid exercise of this power of subordinate legislation is that the regulation be germane to the objects and purposes of the law and that the regulation be not in contradiction to, but in conformity with, the standards prescribed by the law. These requirements are denominated as the completeness test and the sufficient standard test. (Gerochi v. Department of Energy, G.R. No. 159796, 17 July 2007)

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2) Power of subordinate legislation

The reasons given above for the delegation of legislative powers in general are particularly applicable to administrative bodies. With the proliferation of specialized activities and their attendant peculiar problems, the national legislature has found it more and more necessary to entrust to administrative agencies the authority to issue rules to carry out the general provisions of the statute. This is called the “power of subordinate legislation.” (Eastern Shipping Lines, Inc. v. POEA, supra.) With this power, administrative bodies may implement the broad policies laid down in a statute by “filling in” the details which the Congress may not have the opportunity or competence to provide. This is effected by their promulgation of what are known as supplementary regulations, such as the implementing rules issued by the Department of Labor on the new Labor Code. These regulations have the force and effect of law. (Ibid.) e. THE 2 TESTS TO A VALID DELGATION Two (2) tests determine the validity of delegation of legislative power: 1) The completeness test; and 2) The sufficient standard test. (BOCEA v. Teves, G.R. No. 181704, 06 December 2011) Both tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative. (Eastern Shipping Lines, Inc. v. POEA, supra.)

1) The completeness test A law is complete when it sets forth therein the policy to be executed, carried out or implemented by the delegate. It lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the delegate’s authority and prevent the delegation from running riot. (BOCEA v. Teves, supra.) Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the delegate the only thing he will have to do is enforce it. (Eastern Shipping Lines, Inc. v. POEA, supra.) Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to sufficient standards established in the said law, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature. And it may be deemed to have left the hands of the legislature when it becomes effective because it is only upon effectivity of the statute that legal rights and obligations become available to those entitled by the language of the statute. Subject to the indispensable requisite of publication under the due process clause, the determination as to when a law takes effect is wholly the prerogative of Congress. As such, it is only upon its effectivity that a law may be executed and the executive branch acquires the duties and powers to execute the said law. Before that point, the role of the executive branch, particularly of the President, is limited to approving or vetoing the law. (ABAKADA Guro Party List Officers/Members v. Purisima, En Banc, supra.)

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2) The sufficiency standard test

To be sufficient, the standard must specify the limits of the delegate’s authority, announce the legislative policy and identify the conditions under which it is to be implemented. (BOCEA v. Teves, supra.) Under the sufficient standard test, there must be adequate guidelines or stations in the law to map out the boundaries of the delegate's authority and prevent the delegation from running riot. (Eastern Shipping Lines, Inc. v. POEA, supra.)

B. Chambers of Congress; composition; qualifications 1. BICAMERAL / 2 CHAMBERS OF CONGRESS The legislative power shall be vested in the Congress of the Philippines which shall consist of a: 1) a Senate; and 2) a House of Representatives … except to the extent reserved to the people by the provision on initiative and referendum. (Section 1, Article VI, 1987 Constitution)

1. Senate a. 24 SENATORS The Senate shall be composed of twenty-four (24) Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law. (Section 2, Article VI, Ibid.)f b. QUALIFICATIONS OF A SENATOR No person shall be a Senator unless: 1) S/he is a natural-born citizen of the Philippines; 2) At least thirty-five (35) years of age, on the day of the election; 3) Able to read and write; 4) A registered voter; and 5) A resident of the Philippines for not less than two (2) years immediately preceding the day of the election. (Section 3, Article VI, Ibid.)

1) Natural-born; Repatriation Repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a natural-born

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citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural-born Filipino. (Bengson III v. HRET, En Banc, G.R. No. 142840, 07 May 2001)

2) Residence For election law purposes, residence is used synonymously with domicile. (Romualdez-Marcos v. COMELC, En Banc, G.R. No. 119976, 18 September 1995) 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. (Ibid.)

a) Domicile For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. (Article 50, Civil Code) Domicile – means 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 physical presence in a fixed place” and animus manendi, or the intention of returning there permanently. (Romualdez-Marcos v. COMELC, supra.)

3) Statutes cannot add or modify constitutional requirements Sec. 36(g) of R.A. 9165 (Comprehensive Dangerous Drugs Act of 2002) – which requires mandatory drug testing of candidates for public office, such as senators – was declared unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution. In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed. (Social Justice Society v. Dangerous Drugs Board, En Banc, G.R. Nos. 157870, 158633, 161658, 03 November 2008) c. TERM OF OFFICE: 6 YEARS 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. (Section 4, Article VI, 1987 Constitution.)

1) Ban against more than 2 consecutive terms No Senator shall serve for more than two consecutive terms. (Paragraph 2, Section 4, Article VI, Ibid.) 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. (Ibid.)

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2) Elections a) Regular election

Unless otherwise provided by law, the regular election of the Senators shall be held on the second Monday of May. (Section 8, Article VI, 1987 Constitution)

b) Special election In case of vacancy in the Senate, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator elected shall serve only for the unexpired term. (Section 9, Article VI, Ibid.) d. SALARIES The salaries of Senators 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 approving such increase. (Section 10, Article VI, Ibid.)

2. House of Representatives

a. District representatives and questions of apportionment

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: qualifications of a Member of the House of Representatives, apportionment, term of office

1) 250 MEMBERS OF THE HOUSE OF REPRESENTATIVES

The House of Representatives shall be composed of not more than two hundred and fifty (250) members, unless otherwise fixed by law. (Section 5[1], Article VI, Ibid.) The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. (Section 11, R.A. 7941, Party-List System Act)

2) Elected from legislative districts and the Metropolitan area, and via party-list system

They 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,

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regional, and sectoral parties or organizations. (Section 5[1], Article VI, 1987 Constitution)

a) Legisative district: contiguous, compact, and adjacent territory Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory.

b) Party-list system NB: For more discussions, see below.

3) Appportionment Legislative apportionment – is the determination of the number of representatives which a State, county or other subdivision may send to a legislative body. It is the allocation of seats in a legislative body in proportion to the population; the drawing of voting district lines so as to equalize population and voting power among the districts. (Bagabuyo v. COMELEC, En Banc, G.R. No. 176970, 08 December 2008, citing Black’s Law Dictionary) Reapportionment – is the realignment or change in legislative districts brought about by changes in population and mandated by the constitutional requirement of equality of representation. (Ibid.)

a) 1 representative: city with at least 250,000.00 or province Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative. (Section 5[3], Article VI, Ibid.)

b) Reapportionment within 3 years after census Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section. (Section 5[4], Article VI, Ibid.)

c) No plebiscite requirement The Constitution and the Local Government Code expressly require a plebiscite to carry out any creation, division, merger, abolition or alteration of boundary of a local government unit. In contrast, no plebiscite requirement exists under the apportionment or reapportionment provision. (Bagabuyo v. COMELEC, supra.)

d) Gerryamdering, prohibited Gerrymandering – is a term employed to describe an apportionment of representative districts so contrived as to give an unfair advantage to the party in power. Fr. Joaquin G. Bernas, a member of the 1986 Constitutional Commission, defined “gerrymandering” as the formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party. The Constitution proscribes gerrymandering, as it mandates each legislative district to comprise, as far as practicable, a contiguous,

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compact and adjacent territory. (Navarro v. Ermita, En Banc, G.R. No. 180050, 10 February 2010)

4) Qualifications of a Member of the House of Representative No person shall be a Member of the House of Representatives unless: 1) S/he is a natural-born citizen of the Philippines; 2) At least twenty-five years of age, on the day of the election 3) Able to read and write; 4) A registered voter in the district in which he shall be elected, except the party-list representatives, a; and, 5) A resident thereof for a period of not less than one year immediately preceding the day of the election. (Section 6, Article VI, Ibid.)

5) Term of office: 3 years 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. (Section 7, Article VI, Ibid.)

a) Ban against more than 3 consecutive terms No member of the House of Representatives shall serve for more than three consecutive terms. (Paragraph 2, Section 7, Article VI, Ibid.) 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. (Ibid.)

6) Elections a) Regular election

Unless otherwise provided by law, the regular election of the Members of the House of Representatives shall be held on the second Monday of May. (Section 8, Article VI, Ibid.)

b) Special election In case of vacancy in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Member of the House of Representatives thus elected shall serve only for the unexpired term. (Section 9, Article VI, Ibid.)

7) Salaries The salaries of 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 House of Representatives approving such increase. (Section 10, Article VI, Ibid.)

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BAR EXAM QUESTION

(Question V, Political Law, 2018 Bar Exam) State whether or not the following acts are constitutional: (2% each) (b) A law requiring all candidates for national or local elective offices to be college degree holders; Suggested Answer: The law is unconstitutional with respect to national elective offices. Such a law is inconsistent with the 1987 Constitution which does not require a college degree as a qualification to run for national elective offices. However, for local elective offices, such law is constitutional as qualifications for these positions are provided for by Statute via the Local Government Code. Accordingly, the Legislature may pass such a law to require such additional qualification.

b. Party-list system

BAR EXAM TIPS | Frequency: Occasional WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: party-list system, nominations and qualifications, allocation of seatss

1. CONCEPT Members of the House representatives 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. (Section 5[1], Article VI, 1987 Constitution) The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections (COMELEC). (Section 3 R.A. 7941) a. Sectoral representation For three consecutive terms after the ratification of this Constitution, one-half (1/2) of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural

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communities, women, youth, and such other sectors as may be provided by law, except the religious sector. (Section 5[2], Article VI, Ibid.) A sectoral party – refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and concerns of their sector. (Section 3[d], R.A. 7941) A sectoral organization – refers to a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns. (Section 3[e], Ibid.) A coalition – refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes. (Section 3[f], Ibid.) b. COMELEC Registration Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not 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 organization 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 COMELEC may require: Provided, That the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals. (Section 5, Ibid.)

1) Manifestation to Participate in the Party-List System 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. (Section 4, Ibid.)

2) Refusal and/or Cancellation of Registration The COMELEC may, motu propio 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 through any of its officers or members or indirectly through third parties for partisan election purposes; 5) It violates or fails to comply 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

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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 has registered. (Section 6, Ibid.)

3) Certified List of Registered Parties 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 applied or who have manifested their desire to participate under the party-list system and distribute copies thereof to all precincts for posting in the polling places on election day. The names of the part y-list nominees shall not be shown on the certified list. (Section 7, Ibid.) 2. PARTY-LIST

a. Nomination of Party-List Representatives Each registered party, organization or coalition shall submit to the COMELEC not 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. (Section 8, Ibid.)

1) Nominated in one (1) list only 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 for 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 last in the list. Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned. (Paragraph 2, Section 8, Ibid.) b. Qualifications of Party-List Nominees No person shall be nominated as party-list representative unless he is a: 1) Natural-born citizen of the Philippines; 2) A registered voter; 3) A resident of the Philippines for a period of not less than one (1)year immediately preceding the day of the election; 4) Able to read and write; 5) 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. (Section 9, Ibid.) In case of a nominee of the youth sector, he must 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 continue in office until the expiration of his term. (Paragraph 2, Section 9, Ibid.)

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c. Manner of Voting Every voter shall be entitled to two (2) votes: the first is a vote for candidate for member of the House of Representatives in his legislative district, and the second, a vote for the party, organizations, or coalition he wants represented in the house of Representatives: Provided, That a vote cast for a party, sectoral organization, or coalition not entitled to be voted for shall not be counted: Provided, finally, That the first election under the party-list system shall be held in May 1998. (Section 10, Ibid.) The COMELEC shall undertake the necessary information campaign for purposes of educating the electorate on the matter of the party-list system. (Paragraph 2, Section 10, Ibid.) d. 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 his service for the full term for which he was elected. (Section 14, Ibid.) e. Change of Affiliation; Effect 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. (Section 15, Ibid.) f. 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 COMELEC by the same party, organization, or coalition, who shall serve for the unexpired term. If the list is exhausted, the party, organization coalition concerned shall submit additional nominees. (Section 16, Ibid.) g. Rights of Party-List Representatives. Party-List Representatives shall be entitled to the same salaries and emoluments as regular members of the House of Representatives. (Section 17, Ibid.) 3. ALLOCATION OF SEATS a. Number of party-list: 20% of Members of House of Representative The party-list representatives shall constitute twenty per centum (20%) of the total number of representatives including those under the party list. (Section 5[2], Article VI, 1987 Constitution)

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The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. (Section 11, R.A. 7941) b. Procedure for seat allocation In determining the allocation of seats for the second vote, the following procedure shall be observed: 1) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. 2) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. (Paragraph 3, Section 11, Ibid.) c. COMELEC procedure

1) Procedure in allocating seats for Party-List Representatives The COMELEC shall 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. (Section 12, Ibid.)

2) How Party-List Representatives are chosen Party-list representatives shall be proclaimed by the COMELEC based on the list of names submitted by the respective parties, organizations, or coalitions to the COMELEC according to their ranking in said list. (Section 13, Ibid.) d. SECTORAL REPRESENTATION

1) The 3 different groups Three different groups may participate in the party-list system: 1) National parties or organizations; 2) Regional parties or organizations; and 3) Sectoral parties or organizations. (Atong Paglaum Inc. v. COMELEC, En Banc, G.R. Nos. 203766 etc., 02 April 2013)

a) National and regional parties v. sectoral parties National parties or organizations and regional parties or organizations do not need to organize along sectoral lines and do not need to represent any “marginalized and underrepresented” sector. (Ibid.)

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a) No disqualification if some nominees are disqualified National, regional, and sectoral parties or organizations shall not be disqualified if some of their nominees are disqualified, provided that they have at least one nominee who remains qualified. (Ibid.)

2) Political parties

a) Required to register Political parties can participate in party-list elections provided they register under the party-list system and do not field candidates in legislative district elections. (Ibid.)

b) Participation is via sectoral wing A political party, whether major or not, that fields candidates in legislative district elections can participate in party-list elections only through its sectoral wing that can separately register under the party-list system. The sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition. (Ibid.)

3) Sectoral parties

a) Marginalized or underrepresented, or lacking in well-defined political constituencies

Sectoral parties or organizations may either be “marginalized and underrepresented” or lacking in “well-defined political constituencies.” It is enough that their principal advocacy pertains to the special interest and concerns of their sector. (Ibid.) The sectors that are “marginalized and underrepresented” include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors that lack “well-defined political constituencies” include professionals, the elderly, women, and the youth. (Ibid.)

b) Majoritiy of members must belong to sector being represented A majority of the members of sectoral parties or organizations that represent the “marginalized and underrepresented” must belong to the “marginalized and underrepresented” sector they represent. (Ibid.) Similarly, a majority of the members of sectoral parties or organizations that lack “well-defined political constituencies” must belong to the sector they represent. (Ibid.)

4) Qualifications of Nominee

The nominees of sectoral parties or organizations that represent the “marginalized and underrepresented,” or that represent those who lack “well-defined political constituencies,” either: 1) Must belong to their respective sectors; or 2) Must have a track record of advocacy for their respective sectors. (Ibid.)

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The nominees of national and regional parties or organizations must be bona-fide members of such parties or organizations. (Ibid.)

C. Legislative privileges, inhibitions, and disqualifications

BAR EXAM TIPS | Frequency: Occasional WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: immunity from arrest, parliamentary immunity, disqualifications and prohibitions

1. LEGISLATIVE PRIVILEGE a. Immunity from arrest A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six (6) years imprisonment, be privileged from arrest while the Congress is in session. (Section 11, Article VI, 1987 Constitution)

1) Restrictive sense 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 privilege has always been granted in a restrictive sense. (People v. Jalosjos, G.R. No. 132875-76, 03 February 2000)

a) When arrest is allowed For offenses punishable by more than six (6) years imprisonment, there is no immunity from arrest. (Ibid.) The provision granting an exemption as a special privilege cannot be extended beyond the ordinary meaning of its terms. It may not be extended by intendment, implication or equitable considerations. (Ibid.)

2) Confinement allowed 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. (Ibid.)

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b. Parliamentary immunity for speech 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. (Section 11, Article VI, 1987 Constitution) Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in every legislative assembly of the democratic world. Its purpose “is to enable and encourage a representative of the public to discharge his public trust with firmness and success” for “it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom exercise of that liberty may occasion offense.” (Osmeña v. Pendatun, En Banc, G.R. No. L-17144, 28 October 1960)

1) Extends to lawyers sitting as legislators For the above reasons, the plea of Senator Santiago for the dismissal of the complaint for disbarment or disciplinary action is well taken. Indeed, her privilege speech is not actionable criminally or in a disciplinary proceeding under the Rules of Court. (Pobre v. Sen. Defensor-Santiago, A.C. No. 7399, 25 August 2009) 2. INHIBITION

1) Full disclosure 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. (Section 12, Article VI, 1987 Constitution)

2) Conflict of interest; Inhibition 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. (Section 12, Article VI, Ibid.) 3. DISQUALIFICATIONS AND PROHIBITIONS

1) No holding of any other office or employment in the Government No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. (Section 13, Article VI, Ibid.)

a) Automatic forfeiture Forfeiture is automatic and permanently effective upon the filing of the certificate of candidacy for another office. Only the moment and act of filing are considered. Once the certificate is filed, the seat is forever forfeited and nothing save a new election or appointment can restore the ousted official. (Quinto v. COMELEC, En Banc, G.R. No. 189698, 01 December 2009)

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2) No appointment to any office created or emoluments increased during term

Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected. (Section 13, Article VI, 1987 Constitution)

3) No appearance as counsel 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. (Section 14, Article VI, Ibid.) This includes any form of intervention, whether direct or indirect. (Puyat v. De Guzman, En Banc, G.R. No. L-51122, 25 March 1982)

4) No financial interests nor special privilege 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. (Section 14, Article VI, 1987 Constitution)

5) No intervention in any matter 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. (Ibid.)

D. Quorum and voting majorities 1. SESSIONS a. Sessions

1) 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 (30) days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal holidays. (Section 15, Article VI, Ibid.)

2) Special Sessions When special sessions may be called: 1) The President may call a special session at any time. (Section 15, Article VI, Ibid.) 2) Congress may call a special election in case of vacancies of the Office of the President and Vice-President. (Section 10, Article VII, Ibid.)

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3) Congress may convene and by a 2/3 vote of both houses, voting separately, determine whether the President is able to discharge the powers and duties of his office. (Paragraph 4, Section 11, Article VII, Ibid.) 4) If not in session, Congress shall, within twenty-four hours following the proclamation of Martial Law or suspension of writ of habeas corpus, convene to vote, voting jointly, whether to revoke or extend the same. (Section 18, Article VII, Ibid.) In a special session, the Congress may "consider general legislation or only such as he (President) may designate." (Section 9, Article VI of the Constitution.) In a regular session, the power Congress to legislate is not circumscribed except by the limitations imposed by the organic law. b. Quorum 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. (Section 16[2], Article VI, Ibid.)

1) Majority, defined Majority of each House – can mean only majority of the members of each House, and the number of said members cannot be reduced upon any artificial or imaginary basis not authorized by the context of the Constitution itself or by the sound processes of reason. (Avelino v. Cuenco, En Banc, G.R. No. L-2821, 04 March 1949) c. Voting of the Senate and House and Representative

1) Separately 1) Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately. (Section 9, Article VI, Ibid.) 2) Congress may convene and by a 2/3 vote of both houses, voting separately, determine whether the President is able to discharge the powers and duties of his office. (Paragraph 4, Section 11, Article VII, Ibid.) 3) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (Section 23[1], Article VI, Ibid.) 4) Proclamation of president-elect after national elections. (Paragraph 5, Section 4, Article VII, Ibid.) 5) Any amendment to, or revision of, this Constitution may be proposed by the Congress, upon a vote of three-fourths of all its Members. (Section 1, Article XVII, Ibid.)

2) Jointly 1) Revoking or extending Proclamation of Martial Law; (Section 18, Article VII, Ibid.) 2) Revoking or extending of suspension of writ of habeas corpus. (Ibid.)

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2. OFFICERS a. Election of Senate President and Speaker of the House The Senate shall elect its President and the House of Representatives its Speaker, by a majority vote of all its respective Members. (Section 16[1], Article VI, Ibid.)

1) Election of other officers Each House shall choose such other officers as it may deem necessary. (Paragraph 2, Section 16[1], Article VI, Ibid.) 3. JOURNAL, RECORDS, BOOOKS OF ACCOUNTS a. Journal of proceedings 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. (Section 16[4], Article VI, Ibid.) b. Record of proceedings Each House shall also keep a Record of its proceedings. (Paragraph 2, Section 16[4], Article VI, Ibid.) c. Records and books of accounts 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. (Section 20, Article VI, 1987 Constitution) 4. ADJOURNMENT Neither House during the sessions of the Congress shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting. (Section 16[5], Article VI, Ibid.)

E. Discipline of members 1. PARLIAMENTARY (INTERNAL) RULES Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds (2/3) of all its Members, suspend or expel a Member. (Section 16[3], Article VI, Ibid.) A penalty of suspension, when imposed, shall not exceed sixty days. (Ibid.)

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a. Disciplinary action A disciplinary action, including suspension or dismissal, is the exclusive power of the House of Representatives, to which the courts have no jurisdiction to interfere. (Osmeña v. Pendatun, En Banc, G.R. No. L-17144, 28 October 1960) For unparliamentary conduct, members of Congress have been, or could be censured, committed to prison, even expelled by the votes of their colleagues. (Ibid.) Each department, it has been said, has exclusive cognizance of matters within its jurisdiction and is supreme within its own sphere. (Ibid.) 2. PROCEDURAL 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 requisited number of members have agreed to a particular measure. (Ibid.)

F. Process of law-making

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: law-making process, one-subject rule, three-readings rule, enrolled bill doctrine, general appropriations bill and its limitations

1. HOUSE OF REPRESENTATIVES a. Origin of bills GENERAL RULE: All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives. (Section 24, Article VI, 1987 Constitution) QUALIFICATION: …but the Senate may propose or concur with amendments. (Ibid.) b. One-subject rule Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. (Section 26[1], Article VI, Ibid.)

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c. Three-readings rule GENERAL RULE: 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. (Section 26[2], Article VI, Ibid.) EXCEPTION: … except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. (Ibid.)

BAR EXAM QUESTION

(Question X-B, Political Law, 2017 Bar Exam) Sec. 26(2), Art. VI of the Constitution provides that no bill passed by either House of Congress shall become a law unless it has passed three readings on separate days and printed copies of it in its final form have been distributed to the Members of the House three days before its passage. Is there an exception to the provision? Explain your answer. (3%) Suggested Answer: Yes. Under the 1988 Constitution, the exception the three-reading rule is when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency.

1) Last reading and vote

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. (Section 26[2], Article VI, Ibid.)

2) Enrolled bill doctrine Under the enrolled bill doctrine, the signing of a bill by the Speaker of the House and the Senate President and the certification of the Secretaries of both Houses of Congress that it was passed are conclusive of its due enactment. (ABAKADA Guro Party List v. Ermita, En Banc, G.R. No. 168056 01 September 2005)

a) Withdrawal of the signatures of the Senate President and the President In one case involving the withdrawal of the signature of the Senate President and President on a bill which then passed into law, it was held to be valid resulting in the bill being not duly enacted and therefore did not become law. (Astorga v. Villegas, En Banc, En Banc, G.R. No. L-23475 30 April 1974) Such a bill was not duly enacted and therefore did not become law. Both the President of the Senate and the Chief Executive did withdrew their signatures therein. In the face of the manifest error committed and subsequently rectified by the President of the

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Senate and by the Chief Executive, for this Court to perpetuate that error by disregarding such rectification and holding that the erroneous bill has become law would be to sacrifice truth to fiction and bring about mischievous consequences not intended by the law-making body. (Ibid.)

b) Not absolute

The Court emphasized that no claim has been made that the “enrolled bill” rule is absolute. In fact in one case the Court “went behind” an enrolled bill and consulted the Journal to determine whether certain provisions of a statute had been approved by the Senate in view of the fact that the President of the Senate himself, who had signed the enrolled bill, admitted a mistake and withdrew his signature, so that in effect there was no longer an enrolled bill to consider. But where allegations that the constitutional procedures for the passage of bills have not been observed have no more basis than another allegation that the Conference Committee "surreptitiously" inserted provisions into a bill which it had prepared, we should decline the invitation to go behind the enrolled copy of the bill. To disregard the "enrolled bill" rule in such cases would be to disregard the respect due the other two departments of our government. (Ibid.)

c) Conclusive upon the courts The enrolled bill is conclusive upon the courts as regards the tenor of the measure passed by Congress and approved by the President. If there has been any mistake in the printing of the bill before it was certified by the officers of Congress and approved by the Executive – on which the Court cannot speculate, without jeopardizing the principle of separation of powers and undermining one of the cornerstones of our democratic system – the remedy is by amendment or curative legislation, not by judicial decree. (Casco Philippine Chemical Co., Inc. v. Gimenez, En Banc, G.R. No. L-17931, 28 February 1963) The enrolled bill doctrine, as a rule of evidence, is well established. (Arroyo v. De Venecia, En Banc, G.R. No. 127255, 14 August 1997)

d) Separation of powers It may be noted that the enrolled bill theory is based mainly on “the respect due to coequal and independent departments,” which requires the judicial department “to accept, as having passed Congress, all bills authenticated in the manner stated.” Thus it has also been stated in other cases that if the attestation is absent and the same is not required for the validity of a statute, the courts may resort to the journals and other records of Congress for proof of its due enactment. (Astorga v. Villegas, En Banc, En Banc, G.R. No. L-23475 30 April 1974)

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BAR EXAM QUESTION

(Question X-A, Political Law, 2017 Bar Exam) Under the enrolled bill doctrine, the signing of a bill by both the Speaker of the House of Representatives and the President of the Senate and the certification by the secretaries of both Houses of Congress that the bill was passed on a certain date are conclusive on the bill’s due enactment. Assuming there is a conflict between the enrolled bill and the legislative journal, to the effect that the enrolled bill signed by the Senate President and eventually approved by the President turned out to be different from what the Senate actually passed as reflected in the legislative journal. (a) May the Senate President disregard the enrolled bill doctrine and consider his signature as invalid and of no effect? (2.5%) (b) May the President thereafter withdraw his signature? Explain your answer. (2.5%) Suggested Answer: (a) Yes. Under jurisprudence, in one case involving the withdrawal of the signature of the Senate President in an enrolled bill which then passed into law after signing by the President, it was held to be valid resulting in the bill being not duly enacted and therefore did not become law.

(b) Yes. Under the same jurisprudence earlier mentioned, the withdrawal of the signature of the President on a bill which became a law was held to be valid resulting in the same not having passed and thus did not become a law. It was stated therein that perpetuating the error would be to sacrifice truth to fiction and bring about mischievous consequences not intended by the law-making body.

d. Presentation of bill to the President Every bill passed by the Congress shall, before it becomes a law, be presented to the President. (Section 27[1], Article VI, 1987 Constitution)

1) Approve or veto If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. (Ibid.) 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. (Section 27[2], Article VI, Ibid.)

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a) 2/3 vote to override veto If, after such reconsideration, two-thirds (2/3) 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. (Section 27[1], Article VI, Ibid.) In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (Ibid.) 2. GENERAL APPROPRIATIONS BILL

1) Limitations a) Exclusively originates in the House of Representative

All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. (Section 24, Article VI, Ibid.)

a) No increase of proposed National Budget by the President

The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law. (Section 25[1], Article VI, Ibid.) 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. (Section 22, Article VI, Ibid.)

b) Provision should relate to some particular appropriation 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. (Section 25[2], Article VI, Ibid.)

c) Follows procedure for other departments and agencies The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. (Section 25[3], Article VI, Ibid.)

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d) Special appropriation bill to specify purpose A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposed therein. (Section 25[4], Article VI, Ibid.)

e) No transferring of appropriations – with exception GENERAL RULE: No law shall be passed authorizing any transfer of appropriations. (Section 25[5], Article VI, Ibid.) EXCEPTION: … 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. (Ibid.)

BAR EXAM QUESTION

(Question VI-B, Political Law, 2017 Bar Exam) The Executive Department has accumulated substantial savings from its appropriations. Needing ₱3,000,000.00 for the conduct of a plebiscite for the creation of a new city but has no funds appropriated soon by the Congress for the purpose, the COMELEC requests the President to transfer funds from the savings of the Executive Department in order to avoid a delay in the holding of the plebiscite. May the President validly exercise his power under the 1987 Constitution to transfer funds from the savings of the Executive Department, and make a cross-border transfer of ₱3,000,000.00 to the COMELEC by way of augmentation? Is your answer the same if the transfer is treated as aid to the COMELEC? Explain your answer. (4%) Suggested Answer: (a) No. Answer Under the 1987 Constitution, transferring of appropriations is prohibited. However, by way of exception, the President, and other certain officials, by law, is authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. Rule In the case at bar, the President intends to transfer appropriations outside of the Executive Department and into a Constitutional Commission – the COMELEC. This is not permitted under the 1987 Constitution. Apply Thus, the president may not validly exercise his power under the 1987 Constitution to transfer funds from savings of the Executive Department to the COMELEC by way of augmentation. Conclusion

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(b) My answer is the same even if it is treated as aid to the COMELEC. This is because such cross-border transfer of funds is expressly prohibited by the 1987 Constitution.

f) Discretionary funds disbursed only for public purpose

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. (Section 25[6], Article VI, Ibid.)

g) Re-enactment if no General Appropriations bill is passed 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. (Section 25[7], Article VI, Ibid.)

h) Payment by Treasury only pursuant to appropriation by law No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. (Section 29[1], Article VI, Ibid.)

i) No establishment of religion with public funds 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 government orphanage or leprosarium. (Section 29[2], Article VI, Ibid.)

BAR EXAM QUESTION

(Question VII, Political Law, 2017 Bar Exam) Give the limitations on the power of the Congress to enact the General Appropriations Act? Explain your answer. (5%) Suggested Answer: 1) The General Appropriations Act should exclusively originate in the House of Representative. Under the 1987 Constitution, all general appropriations bill shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. 2) The Congress may not increase of proposed National Budget by the President. Under the 1987 Constitution, the Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law.

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3) A provision should relate to some particular appropriation. Under the 1987 Constitution, 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. 4) The procedure for approving appropriations by Congress should follow procedure for other departments and agencies. Under the 1987 Constitution, the procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. 5) Special appropriation bills should specify intended purpose. Under the 1987 Constitution, a special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposed therein. 6) There should be no transferring of appropriations Under the 1987 Constitution, 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. 7) Discretionary funds should be disbursed only for public purposes. Under the 1987 Constitution, 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. 8) The previous General Appropriations Act shall be re-enacted if no new bill is passed. Under the 1987 Constitution, 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. 9) Payment by the Treasury shall only be pursuant to appropriation made by law. Under the 1987 Constitution, no money shall be paid out of the Treasury except in pursuance of an appropriation made by law. 10) No public funds should be used for establishment of religion. Under the 1987 Constitution, 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 government orphanage or leprosarium.

3. TAX BILLS

1) Uniform and equitable; Progressive system of taxation The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. (Section 28[1], Article VI, Ibid.)

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2) Tax rate fixing ma be delegated to the President 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. (Section 28[2], Article VI, Ibid.)

3) Institutions exclusive for religious, charitable, or educational purposes 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. (Section 28[3], Article VI, Ibid.)

a) Non-establishment clause 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 government orphanage or leprosarium. (Section 29[2], Article VI, Ibid.)

4) Tax exemption No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress. (Section 28[4], Article VI, Ibid.)

5) Special fund 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. (Section 29[3], Article VI, Ibid.))

BAR EXAM QUESTION

(Question III, Political Law, 2018 Bar Exam) What and whose vote is required for the following acts: (2% each) (a) the repeal of a tax exemption law; Majority of all members of Congress

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G. Electoral tribunals and the Commission on Appointments

1. Nature

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: HRET jurisdiction v. COMELEC jurisdiction, commission on appointments

a. ELECTORAL TRIBUNALS 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. (Section 17, Article VI, 1987 Constitution) NB: For the Senate, it is the Senate Electoral Tribunal or (SET). For the House of Representatives, it is the House of Representatives Electoral Tribunal (HRET)

1) Composition Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. (Ibid.) The senior Justice in the Electoral Tribunal shall be its Chairman. (Ibid.)

2) How constituted The Electoral Tribunals shall be constituted within thirty (30) days after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. (Ibid.)

3) Jurisdiction

a) HRET Jurisdiction DISTRICT REPRESENTATIVES: To be considered a Member of the House of Representatives, there must be a concurrence of the following requisites: 1) A valid proclamation; 2) A proper oath, and, 3) Assumption of office. (Reyes v. COMELEC, En Banc, G.R. No. 207264, 25 June 2013)

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After proclamation, taking of oath and assumption of office of a Member of the House of Representatives, jurisdiction over the matter of his qualifications, as well as questions regarding the conduct of election and contested returns – are transferred (from the COMELEC) to the HRET as the constitutional body created to pass upon the same. (Gonzalez v. COMELEC, G.R. No. 192856, 08 March 2011) PARTY-LIST REPRESENTATIVES: Section 17, Article VI of the 1987 Constitution endows the HRET with jurisdiction to resolve questions on the qualifications of members of Congress. In the case of party-list representatives, the HRET acquires jurisdiction over a disqualification case upon proclamation of the winning party-list group, oath of the nominee, and assumption of office as member of the House of Representatives. (Lico v. COMELEC, G.R. No. 205505, 29 September 2015)

BAR EXAM QUESTION

(Question B.19, Political Law, 2019 Bar Exam) Candidate X, a naturalized Filipino citizen, ran for Congressman for the Lone District of Batanes. After a close electoral contest, he won by a slim margin of 500 votes. His sole opponent, Y, filed an election protest before the Commission on Election (COMELEC), claiming that X should be disqualified to run for said position because he is not a natural-born citizen. While the case was pending, X was proclaimed by the Provincial Election Supervisor of Batanes as the duly elected Congressman of the province. (c) Did X’s proclamation divest the COMELEC of its jurisdiction to decide the case and vest the House of Representatives Electoral Tribunal (HRET) jurisdiction to hear the case? Explain. (2%) Suggested Answer: No. Answer Under jurisprudence, HRET has jurisdiction of an election contest against a Member of the House Representatives if once all of the following requisites are met: (1) a valid proclamation; (2) a proper oath, and, (3) assumption of office. Rule In the case at bar, X has not yet taken oath and assumed office. Accordingly, COMELEC still has jurisdiction. Apply Thus, the proclamation of X did not divest COMELEC of its jurisdiction to decide the case. Conclusion

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BAR EXAM QUESTION

(Question VI, Political Law, 2018 Bar Exam) Ang Araw, a multi-sectoral party-list organization duly registered as such with the Commission on Elections (Comelec), was proclaimed as one of the winning party-list groups in the last national elections. Its first nominee, Alejandro, assumed office as the party-list representative. About one year after Alejandro assumed office, the Interim Central Committee of Ang Araw expelled Alejandro from the party for disloyalty and replaced him with Andoy, its second nominee. Alejandro questioned before the Comelec his expulsion and replacement by Andoy. The Comelec considered Alejandro’s petition as an intra-party dispute which it could resolve as an incident of its power to register political parties; it proceeded to uphold the expulsion. Is the Comelec’s ruling correct? (5%) Suggested Answer: No. Answer Under jurisprudence, in the case of party-list representatives, the HRET acquires jurisdiction over a disqualification case upon proclamation of the winning party-list group, oath of the nominee, and assumption of office as member of the House of Representatives. Rule In the case at bar, Alejandro has already assumed office for a year and thus presumably have already been proclaimed and took oath. He is thus a Member of the House of Representatives. Accordingly, the HRET has jurisdiction over the issue of his qualification or disqualification. Apply Thus, COMELEC’s ruling is not correct. Conclusion

BAR EXAM QUESTION

(Question XI, Political Law, 2017 Bar Exam) Sec. 17, Art. VI of the Constitution establishes an Electoral Tribunal for each of the Houses of Congress, and makes each Electoral Tribunal “the sole judge of all contests relating to the election, returns, and qualifications of their respective Members.” On the other hand, Sec. 2(1), C (Commission on Elections), Art. IX of the Constitution grants to the COMELEC the power to enforce and administer all laws and regulations “relative to the conduct of an election, plebiscite, initiative, referendum, and recall.”

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Considering that there is no concurrence of jurisdiction between the Electoral Tribunals and the COMELEC, state when the jurisdiction of the Electoral Tribunals begins, and the COMELEC’s jurisdiction ends. Explain your answer. (4%) Suggested Answer: The jurisdiction of the Electoral Tribunal begins after concurrence of the following: (1) a valid proclamation; (2) a proper oath, and, (3) assumption of office. Prior to completion of these requisites, jurisdiction is with the Commission on Elections.

b. COMMISSION ON APPOINTMENTS The Commission on Appointments shall act on all appointments submitted to it within thirty (30) session days of the Congress from their submission. (Section 18, Article VI, 1987 Constitution)

1) Composition 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. (Ibid.)

2) Voting The Chairman of the Commission shall not vote, except in case of a tie. (Ibid.) The Commission shall rule by a majority vote of all the Members. (Ibid.)

3) How constituted The Commission on Appointments shall be constituted within thirty days (30) after the Senate and the House of Representatives shall have been organized with the election of the President and the Speaker. The Commission on Appointments shall meet only while the Congress is in session, at the call of its Chairman or a majority of all its Members, to discharge such powers and functions as are herein conferred upon it. (Section 19, Article VI, Ibid.)

2. Powers a. ELECTORAL TRIBUNALS The Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. (Section 17, Article VI, 1987 Constitution)

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b. COMMISSION ON APPOINTMENTS The Commission on Appointments shall act on all appointments submitted to it within thirty (30) session days of the Congress from their submission. (Section 18, Article VI, Ibid.)

H. Powers of Congress

1. Legislative inquiries and oversight functions

BAR EXAM TIPS | Frequency: Moderate WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: legislative inquiries, oversight functions, limitations

a. CONCEPT The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. (Section 21, Article VI, 1987 Constitution) 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. (Section 22, Article VI, Ibid.) Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. (Ibid.)

1) Via a Committee of either Chamber of a Conrgress Once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make, the investigating committee has the power to require a witness to answer any question pertinent to that inquiry, subject of course to his constitutional right against self-incrimination. (Arnault v. Nazareno, En Banc, G.R. No. L-3820, 18 July 1950) If the subject of investigation before the committee is within the range of legitimate legislative inquiry and the proposed testimony of the witness called relates to that

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subject, obedience, to its process may be enforced by the committee by imprisonment. (Ibid.)

2) Legislative investigation v. Court proceedings A legislative investigation in aid of legislation and court proceedings has different purposes. On one hand, courts conduct hearings or like adjudicative procedures to settle, through the application of a law, actual controversies arising between adverse litigants and involving demandable rights. (Romero v. Estrada, En Banc, G.R. No. 174105, 02 April 2009) Inquiries in aid of legislation are, inter alia, undertaken as tools to enable the legislative body to gather information and, thus, legislate wisely and effectively; and to determine whether there is a need to improve existing laws or enact new or remedial legislation, albeit the inquiry need not result in any potential legislation. On-going judicial proceedings do not preclude congressional hearings in aid of legislation. (Ibid.) b. LIMITATIONS Despite the constitutional grant, the power of both the House of Representatives and the Senate to conduct investigations in aid of legislation is not absolute. (Calida v. Trillanes, En Banc, G.R. No. 240873, 03 September 2019) An investigation in aid of legislation must comply with: 1) The rules of procedure of each House of Congress; and, 2) Not violate the individual rights enshrined in the Bill of Rights. (Ibid.)

BAR EXAM QUESTION

(Question A.6, Political Law, 2019 Bar Exam) A committee of the Senate invited Mr. X and Mr. Y, the Secretary of Foreign Affairs and Secretary of Energy, respectively, as resource speakers for an inquiry in aid legislation. Mr. X refused to attend, arguing that the Senate, not its committee, has the power to compel attendance. Meanwhile, Mr. Y attended the committee hearing but upon being asked about discussions made during a closed-door cabinet meeting, he refused to answer invoking executive privilege. The committee members insisted that Mr. Y answer the question pursuant to the right of Congress to information from the executive branch. (a) Based on his argument, is Mr. X’s non-appearance permissible? Explain. (2.5%) Suggested Answer: No. Answer Under jurisprudence, once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make, the investigating committee has the power to compel attendance and require a witness to answer any question pertinent to that inquiry. Rule

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In the case at bar, it appears that the Senate investigating committee was duly constituted pursuant to an inquiry in aid of legislation. Accordingly, it has the power to compel the attendance of Mr. and to answer questions that may be asked pertinent to the inquiry. Apply Thus, the non-appearance of Mr. X is not permissible. Conclusion

2. Non-legislative

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: impeachment, requirements and procedure, one-year limitation, power to declare existence of war, emergency powers

a. Informing function NB: The legislative’s informing function refers to its responsibility in informing and educating the public.

b. Power of impeachment

1) Who may be impeached The following may be impeached: 1) The President; 2) The Vice-President; 3) The Members of the Supreme Court; 4) The Members of the Constitutional Commissions; and, 5) The Ombudsman. (Section 2, Article XI, 1987 Constitution)

2) Grounds The above-mentioend impeachable officers may be removed from office, on impeachment for, and conviction of: 1) Culpable violation of the Constitution; 2) Treason; 3) Bribery 4) Graft and corruption; 5) Other high crimes; or, 6) Betrayal of public trust. (Ibid.)

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3) Procedure

a) Verified Complaint filed before House of Representatives The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (Section 3[1], Article XI, Ibid.) A verified complaint for impeachment may be filed: 1) By any Member of the House of Representatives; or, 2) By any citizen upon a resolution of endorsement by any Member thereof. (Section 3[2], Article XI, Ibid.) The verified complaint which shall be included in the Order of Business within ten (10) session days, and referred to the proper Committee within three (3) session days thereafter. (Ibid.)

b) House Resolution The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty (60) 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. (Ibid.)

c) 1/3 vote to endorse impeachment A vote of at least one-third (1/3) of all the Members of the House shall be necessary either: 1) To affirm a favorable resolution with the Articles of Impeachment of the Committee; or, 2) To override its contrary resolution. (Section 3[3], Article XI, Ibid.) The vote of each Member shall be recorded. (Ibid.)

d) Trial before the Senate In case the verified complaint or resolution of impeachment is filed by at least one-third (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. (Section 3[4], Article XI, Ibid.) 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. (Section 3[6], Article XI, Ibid.) When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. (Ibid.)

e) 2/3 vote for conviction No person shall be convicted without the concurrence of two-thirds (2/3) of all the Members of the Senate. (Ibid.)

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BAR EXAM QUESTION

(Question B.13, Political Law, 2019 Bar Exam) Who are the impeachable officers under the 1987 Constitution? Briefly explain the process of impeaching them thereunder. (5%) (a) The following may be impeached: 1) The President; 2) The Vice-President; 3) The Members of the Supreme Court; 4) The Members of the Constitutional Commissions; and, 5) The Ombudsman. (b) Procedure: 1) Verified Complaint filed before House of Representatives The House of Representatives shall have the exclusive power to initiate all cases of impeachment. A verified complaint for impeachment may be filed: 1) By any Member of the House of Representatives; or, 2) By any citizen upon a resolution of endorsement by any Member thereof. 2) House Resolution The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty (60) 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) 1/3 vote to endorse impeachment A vote of at least one-third (1/3) of all the Members of the House shall be necessary either: 1) To affirm a favorable resolution with the Articles of Impeachment of the Committee; or, 2) To override its contrary resolution. 4) Trial before the Senate In case the verified complaint or resolution of impeachment is filed by at least one-third (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. 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.

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When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. 5) 2/3 vote for conviction No person shall be convicted without the concurrence of two-thirds (2/3) of all the Members of the Senate.

4) Limitations

a) Once a year only

No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (Section 3[5], Article XI, Ibid.) The initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one-year period. (Francisco, Jr. v. House of Representatives, En Banc, G.R. Nos. 160261, 10 November 2003)

BAR EXAM QUESTION

(Question XV-C, Political Law, 2017 Bar Exam) Sec. 3, Art. XI of the Constitution states that "[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year." What constitutes initiation of impeachment proceedings under the provision? (3%) Suggested Answer: The initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one-year period.

b) Limited to removal and disqualification from holding office

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. (Section 3[7], Article XI, Ibid.)

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c. Power to declare existence of warAdded The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (Section 23[1], Article VI, 1987 Constitution)

BAR EXAM QUESTION

(Question B.16, Political Law, 2019 Bar Exam) Under the 1987 Constitution, to whom does each duty /power /privilege /prohibition /disqualification apply: (d) The sole power to declare the existence of state of war. (1%) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately

d. Emergency powersAdded 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. (Section 23[2], Article VI, 1987 Constitution) In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. (Section 17, Article XII, Ibid.)

1) Congress as repository of emergency powers Generally, Congress is the repository of emergency powers. (David v. Macapagal-Arroyo, G.R. No. 171396, 03 May 2006)

a) May be delegated to the President Under Section 23 (2), Article VI, 1987 Constiution, it authorizes delegation of emergency powers to the President. (Ibid.)

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I. Initiative and referendum

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: initiative, referendum, requirements, procedure

1. CONCEPT The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereof. (Section 32, Article VI, 1987 Constitution) Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. (Section 2, Article XVII, Ibid.) Thru an initiative, the people were given the power to amend the Constitution itself. Likewise, thru an initiative, the people were also endowed with the power to enact or reject any act or law by congress or local legislative body. (Garcia v. COMELEC, En Banc, G.R. No. 111230, 30 September 1994) a. Original legislation v. Derivative legislation Section 1 of Article VI of the Constitution recognizes the distinction between original and derivative legislative power by declaring that “legislative power shall be vested in the Congress… except to the extent reserved to the people by the provision on initiative and referendum.” The italicized clause pertains to the original power of legislation which the sovereign people have reserved for their exercise in matters they consider fit. Considering that derivative legislative power is merely delegated by the sovereign people to its elected representatives, it is deemed subordinate to the original power of the people. (Marmeto v. COMELEC, En Banc, G.R. No. 213953, 26 September 2017) 2. WHO MAY EXERCISE The power of initiative and referendum may be exercised by all registered voters of the country, autonomous regions, provinces, cities, municipalities and barangays. (Section 4, Ibid.)

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a. Requirements

1) Required votes a) Initiative and referendum – in general

To exercise the power of initiative or referendum, at least ten per centum (10%) of the total number of the registered voters, of which every legislative district is represented by at least three per centum (3%) of the registered voters thereof, shall sign a petition for the purpose and register the same with the Commission. (Section 5[a], Ibid.)

b) Initiative on the 1987 Constitution A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. (Section 5[b], Ibid.) R.A. 6735 requires that the “petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories.” Further, Section 5(b) of RA 6735 requires that the people must sign the “petition… as signatories.” (Lambino v. COMELEC, supra.)

(1) Referendum or initiative on local laws, resolution, ordinance by autonomous region, province, or city

Initiative on the Constitution is confined only to proposals to amend. The people are not accorded the power to “directly propose, enact, approve, or reject, in whole or in part, the Constitution” through the system of initiative. They can only do so with respect to “laws, ordinances, or resolutions.” (Santiago v. COMELEC, En Banc, G.R. No. 127325, 19 March 1997)

c) Referendum or initiative on local laws, resolution, ordinance by autonomous region, province, or city

A referendum or initiative affecting a law, resolution or ordinance passed by the legislative assembly of an autonomous region, province or city is deemed validly initiated if the petition thereof is signed by at least ten per centum (10%) of the registered voters in the province or city, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein; Provided, however, That if the province or city is composed only of one (1) legislative district, then at least each municipality in a province or each barangay in a city should be represented by at least three per centum (3%) of the registered voters therein. (Section 5[d], R.A. 6735)

d) Referendum or initiative on ordinance by municipality A referendum of initiative on an ordinance passed in a municipality shall be deemed validly initiated if the petition therefor is signed by at least ten per centum (10%) of the

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registered voters in the municipality, of which every barangay is represented by at least three per centum (3%) of the registered voters therein. (Section 5[e], Ibid.)

e) Referendum or initiative on barangay resolution or ordinance A referendum or initiative on a barangay resolution or ordinance is deemed validly initiated if signed by at least ten per centum (10%) of the registered voters in said barangay. (Section 5[f], Ibid.)

2) Petition The petition shall state the following: 1) Contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; 2) The proposition; 3) The reason or reasons therefor; 4) That it is not one of the exceptions provided herein; 5) Signatures of the petitioners or registered voters; and 6) An abstract or summary in not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition. (Section 5[c], Ibid.) Petition – is the written instrument containing the proposition and the required number of signatories. It shall be in a form to be determined by and submitted to the Commission on Elections, hereinafter referred to as the Commission. (Section 3[f], Ibid.) Proposition – is the measure proposed by the voters. (Section 3[d], Ibid.)

3) Special Registration The Commission on Election shall set a special registration day at least three (3) weeks before a scheduled initiative or referendum. (Section 6, Ibid.)

4) Verification of Signatures The Election Registrar shall verify the signatures on the basis of the registry list of voters, voters' affidavits and voters identification cards used in the immediately preceding election. (Section 7, Ibid.) 3. NATIONAL INITIATIVE AND REFERENDUM a. Conduct and Date of Initiative or Referendum The Commission shall call and supervise the conduct of initiative or referendum. (Section 8, Ibid.) Within a period of thirty (30) days from receipt of the petition, the Commission shall, upon determining the sufficiency of the petition, publish the same in Filipino and English at least twice in newspapers of general and local circulation and set the date of the initiative or referendum which shall not be earlier than forty-five (45) days but not later than ninety (90) days from the determination by the Commission of the sufficiency of the petition. (Section 8, Ibid.)

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1) Initiative

Initiative – is the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose. (Section 3[a], R.A. 6735, The Initiative and Referendum Act) Initiative has been described as an instrument of direct democracy whereby the citizens directly propose and legislate laws. As it is the citizens themselves who legislate the laws, direct legislation through initiative (along with referendum) is considered as an exercise of original legislative power, as opposed to that of derivative legislative power which has been delegated by the sovereign people to legislative bodies such as the Congress. (Marmeto v. COMELEC, En Banc, supra.)

a) The 3 Systems of Initiative There are three (3) systems of initiative, namely: 1) Initiative on the Constitution which refers to a petition proposing amendments to the Constitution; 2) Initiative on statutes which refers to a petition proposing to enact a national legislation; and 3) Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance. (Section 3[a], R.A. 6735)

2) Referendum Referendum – is the power of the electorate to approve or reject a legislation through an election called for the purpose. (Section 3[c], Ibid.)

a) The 2 Classes of Referendum Referendum may be of two classes, namely: 1) Referendum on statutes – which refers to a petition to approve or reject an act or law, or part thereof, passed by Congress; and 2) Referendum on local laws – which refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies. (Ibid.) b. Majority vote The Proposition of the enactment, approval, amendment or rejection of a national law shall be submitted to and approved by a majority of the votes cast by all the registered voters of the Philippines. (Section 9, Ibid.) If, as certified to by the Commission, the proposition is approved by a majority of the votes cast, the national law proposed for enactment, approval, or amendment shall become effective fifteen (15) days following completion of its publication in the Official Gazette or in a newspaper of general circulation in the Philippines. If, as certified by the Commission, the proposition to reject a national law is approved by a majority of the votes cast, the said national law shall be deemed repealed and the repeal shall become

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effective fifteen (15) days following the completion of publication of the proposition and the certification by the Commission in the Official Gazette or in a newspaper of general circulation in the Philippines. (Paragraph 2, Section 9[a], Ibid.) However, if the majority vote is not obtained, the national law sought to be rejected or amended shall remain in full force and effect. (Paragraph 3, Section 9[a], Ibid.) c. Effectivity of Initiative or Referendum Proposition

1) 1987 Constitution: Effective as to the day of the plebiscite The proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. (Section 9[b], Ibid.) Plebiscite – is the electoral process by which an initiative on the Constitution is approved or rejected by the people. (Section 3[e], Ibid.)

2) National or local initiative: 15 days after certification and proclamation A national or local initiative proposition approved by majority of the votes cast in an election called for the purpose shall become effective fifteen (15) days after certification and proclamation by the Commission. (Section 9[c], Ibid.) d. Prohibited Measures The following cannot be the subject of an initiative or referendum petition: 1) No petition embracing more than one (1) subject shall be submitted to the electorate; and 2) Statutes involving emergency measures, the enactment of which are specifically vested in Congress by the Constitution, cannot be subject to referendum until ninety (90) days after its effectivity. (Section 10, Ibid.) e. Indirect Initiative Indirect initiative – is exercise of initiative by the people through a proposition sent to Congress or the local legislative body for action. (Section 3[b], Ibid.) Any duly accredited people's organization, as defined by law, may file a petition for indirect initiative with the House of Representatives, and other legislative bodies. The petition shall contain a summary of the chief purposes and contents of the bill that the organization proposes to be enacted into law by the legislature. (Section 11, Ibid.) The procedure to be followed on the initiative bill shall be the same as the enactment of any legislative measure before the House of Representatives except that the said initiative bill shall have precedence over the pending legislative measures on the committee. (Paragraph 2, Section 11, Ibid.)

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f. Appeal The decision of the Commission on the findings of the sufficiency or insufficiency of the petition for initiative or referendum may be appealed to the Supreme Court within thirty (30) days from notice thereof. (Section 12, Ibid.) 4. LOCAL INITIATIVE AND REFERENDUM a. Procedure in Local Initiative

1) Required votes Not less than two thousand (2,000) registered voters in case of autonomous regions, one thousand (1,000) in case of provinces and cities, one hundred (100) in case of municipalities, and fifty (50) in case of barangays, may file a petition with the Regional Assembly or local legislative body, respectively, proposing the adoption, enactment, repeal, or amendment, of any law, ordinance or resolution. (Section 13[a], Ibid.)

2) Legislative action; Power of initiative If no favorable action thereon is made by local legislative body within (30) days from its presentation, the proponents through their duly authorized and registered representative may invoke their power of initiative, giving notice thereof to the local legislative body concerned. (Section 13[b], Ibid.)

a) Numbered serially The proposition shall be numbered serially starting from one (1). The Secretary of Local Government or his designated representative shall extend assistance in the formulation of the proposition. (Section 13[c], Ibid.)

b) Two or more propositions Two or more propositions may be submitted in an initiative. (Section 13[d], Ibid.)

3) Period to collect required number of signatures Proponents shall have one hundred twenty (120) days in case of autonomous regions, ninety (90) days in case of provinces and cities, sixty (60) days in case of municipalities, and thirty (30) days in case of barangays, from notice mentioned in subsection (b) hereof to collect the required number of signatures. (Section 13[e], Ibid.)

4) Signed before Election Registrar The petition shall be signed before the Election Registrar, or his designated representative, in the presence of a representative of the proponent, and a representative of the regional assemblies and local legislative bodies concerned in a public place in the autonomous region or local government unit, as the case may be. Signature stations may be established in as many places as may be warranted. (Section 13[f], Ibid.)

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5) COMELEC Certification on required number of votes Upon the lapse of the period herein provided, the Commission on Elections, through its office in the local government unit concerned shall certify as to whether or not the required number of signatures has been obtained. Failure to obtain the required number is a defeat of the proposition. (Section 13[g], Ibid.)

a) If votes are obtained, set date for initiative If the required number of the signatures is obtained, the Commission shall then set a date for the initiative at which the proposition shall be submitted to the registered voters in the local government unit concerned for their approval within ninety (90) days from the date of certification by the Commission, as provided in subsection (g) hereof, in case of autonomous regions, sixty (60) days in case of the provinces and cities, forty-five (45) days in case of municipalities, and thirty (30) days in case of barangays. The initiative shall then be held on the date set, after which the results thereof shall be certified and proclaimed by the Commission on Elections. (Section 13[h], Ibid.) b. Effectivity of Local Propositions If the proposition is approved by a majority of the votes cast, it shall take effect fifteen (15) days after certification by the Commission as if affirmative action thereon had been made by the local legislative body and local executive concerned. If it fails to obtain said number of votes, the proposition is considered defeated. (Section 14, Ibid.) c. Limitations on Local Initiatives 1) The power of local initiative shall not be exercised more than once a year. (Section 15[a], Ibid.) 2) Initiative shall extend only to subjects or matters which are within the legal powers of the local legislative bodies to enact. (Section 15[b], Ibid.) 3) If at any time before the initiative is held, the local legislative body shall adopt in toto the proposition presented, the initiative shall be cancelled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided. (Section 15[c], Ibid.) d. Limitations Upon Local Legislative Bodies Any proposition or ordinance or resolution approved through the system of initiative and referendum as herein provided shall not be repealed, modified or amended, by the local legislative body concerned within six (6) months from the date therefrom, and may be amended, modified or repealed by the local legislative body within three (3) years thereafter by a vote of three-fourths (3/4) of all its members: Provided, however, that in case of barangays, the period shall be one (1) year after the expiration of the first six (6) months. (Section 16, Ibid) NB: Similar provision is found in Section 125, R.A. 7160, Local Government Code.

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e. Local Referendum Notwithstanding the provisions of Section 4 hereof, any local legislative body may submit to the registered voters of autonomous region, provinces, cities, municipalities and barangays for the approval or rejection, any ordinance or resolution duly enacted or approved. (Section 17, Ibid.) Said referendum shall be held under the control and direction of the Commission within sixty (60) days in case of provinces and cities, forty-five (45) days in case of municipalities and thirty (30) days in case of barangays. (Paragraph 2, Section 17, Ibid.) The Commission shall certify and proclaim the results of the said referendum. (Paragraph 3, Section 17, Ibid.) f. Authority of Courts Nothing in this Act shall prevent or preclude the proper courts from declaring null and void any proposition approved pursuant to this Act for violation of the Constitution or want of capacity of the local legislative body to enact the said measure. (Section 18, Ibid.) 5. COMELEC a. Conduct election The COMELEC cannot defeat the exercise of the people’s original legislative power for lack of budgetary allocation for its conduct. (Marmeto v. COMELEC, supra.) b. Power to review The COMELEC has the power to review whether the propositions in an initiative petition are within the power of the concerned Sanggunian to enact. (Marmeto v. COMELEC, supra.) It is the COMELEC which has the power to determine whether the propositions in an initiative petition are within the powers of a concerned Sanggunian to enact. (Ibid.) While regular courts may take jurisdiction over “approved propositions” per said Sec. 18 of R.A. 6735, the COMELEC in the exercise of its quasi-judicial and administrative powers may adjudicate and pass upon such proposals insofar as their form and language are concerned and it may be added, even as to content, where the proposals or parts thereof are patently and clearly outside the “capacity of the local legislative body to enact.” (Subic Bay Metropolitan Authority v. Commission on Elections, En Banc, G.R. No. 125416, 26 September 1996) The COMELEC's power to review the substance of the propositions is also implied in Section 12 of RA No. 6735, which gives this Court appellate power to review the COMELEC's “findings of the sufficiency or insufficiency of the petition for initiative or referendum.” (Marmeto v. COMELEC, supra.)"

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1) Ultra vires initiative referendum Nothing in the LGC allows the creation of another local legislative body that will enact, approve, or reject local laws either through the regular legislative process or through initiative or referendum. (Ibid.)

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VI. Executive Department

A. Qualifications, election, and term of the President and Vice-President

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: qualification, disqualification, succession, term of office

1. EXECUTIVE POWER The executive power shall be vested in the President of the Philippines. (Section 1, Article VII, 1987 Constitution) 2. QUALIFICATIONS a. President No person may be elected President unless he is: 1) A natural-born citizen of the Philippines; 2) A registered voter; 3) Able to read and write; 4) At least forty (40) years of age on the day of the election; and 5) A resident of the Philippines for at least ten (10) years immediately preceding such election. (Section 2, Article VII, Ibid.) b. Vice-President

1) Same qualification, term of office, and removal as President There shall be a Vice-President who shall have the same qualifications and term of office and be elected with and in the same manner as the President. He may be removed from office in the same manner as the President. (Section 3, Article VII, Ibid.)

2) May be a member of the Cabinet The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation. (Paragraphg 2, Section 3, Article VII, Ibid.)

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BAR EXAM QUESTION

(Question VI-A, Political Law, 2017 Bar Exam) The President appoints the Vice President as his Administration’s Housing Czar, a position that requires the appointee to sit in the Cabinet. Although the appointment of the members of the Cabinet requires confirmation by the Commission on Appointment (CA), the Office of the President does not submit the appointment to the CA. May the Vice President validly sit in the Cabinet? (2.5%) Suggested Answer: Yes. Answer Under the 1987 Constitution, the Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation. Rule In the case at bar, the President appointed the Vice-President as the Administration’s Czar resulting in the Vice-President becoming a Member of the Cabinet. As provided in the Constitution, the appointment does not require confirmation by the Commission on Appointments. Apply Thus, the Vice President may validly sit in the Cabinet. Conclusion

3. ELECTION a. Direct vote

1) Term: 6 years The President and the Vice-President shall be elected by direct vote of the people for a term of six (6) years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date six years thereafter. (Section 4, Article VII, Ibid.) The President-elect and the Vice-President-elect shall assume office at the beginning of their terms. (Section 7, Article VII, Ibid.)

2) Election day: 2nd Monday of May Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May. (Paragraph 3, Section 4, Article VII, Ibid.) b. Limitations on reelection

1) President a) No re-election

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The President shall not be eligible for any reelection. (Ibid.)

b) Prohibition applies if service is more than 4 years No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time. (Ibid.)

BAR EXAM QUESTION

XIX (Question XIX, Political Law, 2018 Bar Exam)

President Alfredo died during his third year in office. In accordance with the Constitution, Vice President Anastasia succeeded him. President Anastasia then nominated the late President Alfredo’s Executive Secretary, Anna Maria, as her replacement as Vice President. The nomination was confirmed by a majority of all the Members of the House of Representatives and the Senate, voting separately. (b) Can Anastasia run as President in the next election? (2.5%) Suggested Answer: Yes. Answer Under 1987 Constitution, no person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time. Rule In the case at bar, Anastacia will be serving less than four years as President as she assumed office for the remaining three years of office of the previous president. Apply Thus, Anastasia can run as President in the next election. Conclusion

2) Vice-President a) Limits: 2 consecutive terms

No Vice-President shall serve for more than two consecutive terms.

b) Voluntary renunciation Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected. (Paragraph 2, Section 4, Article VII, Ibid.)

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c. Election returns

1) Certified and transmitted to Congress The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. (Paragraph 4, Section 4, Article VII, Ibid.)

2) Senate President: Open certificates Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty (30) days after the day of the election, open all certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes. (Ibid.)

3) Congress: Proclaim elected President and Vice-President The person having the highest number of votes shall be proclaimed elected. (Ibid.)

a) In case of equal and highest number of votes In case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately. (Paragraph 5, Section 4, Article VII, Ibid.) The Congress shall promulgate its rules for the canvassing of the certificates. (Paragraph 6, Section 4, Article VII, Ibid.)

4) Supreme Court en banc as sole judge of all contests The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose. (Last paragraph, Section 4, Article VII, Ibid.)

BAR EXAM QUESTION

(Question III, Political Law, 2018 Bar Exam) What and whose vote is required for the following acts: (2% each) (d) the resolution of a tie in a presidential election; Majority vote of all members of Congress, voting separately

4. OATH OF OFFICE / AFFIRMATION Before they enter on the execution of their office, the President, the Vice-President, or the Acting President shall take the following oath or affirmation:

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“I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God.” (In case of affirmation, last sentence will be omitted.) (Section 5, Article VII, Ibid.)

B. Privileges, inhibitions, and disqualifications

1. Presidential immunity

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: presidential immunity, in relation to impeachment

a. CONCEPT The presidential immunity from suit exists only in concurrence with the president’s incumbency. (Saez v. Arroyo, En Banc, G.R. No. 183533, 25 September 2012) The President enjoys immunity from suit during his or her tenure of office or actual incumbency. Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president even for acts committed during his or her tenure. (Lozada, Jr. v. Arroyo, En Banc, G.R. Nos. 184379-80, 24 April 2012) Case Law 1) In Lozada v. Arroyo, since her tenure of office has already ended, former President Arroyo can no longer invoke the privilege of presidential immunity as a defense to evade judicial determination of her responsibility or accountability for the alleged violation or threatened violation of the right to life, liberty and security of Lozada. (Ibid.)

1) Scope Case Law 1) In Estrada v. Desierto, the cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts

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illegally is not acting as such but stands in the same footing as any trespasser. (Estrada v. Desierto, En Banc, G.R. No. 146710-15, 02 March 2001)

2) Impeachment, not a pre-requisite for accountability When impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him. (Estrada v. Desierto, En Banc, G.R. No. 146710-15, 02 March 2001)

BAR EXAM QUESTION

(Question II, Political Law, 2018 Bar Exam) Agnes was allegedly picked up by a group of military men headed by Gen. Altamirano, and was brought to several military camps where she was interrogated, beaten, mauled, tortured, and threatened with death if she would not confess her membership in the New People’s Army (NPA) and point to the location of NPA camps. She suffered for several days until she was released after she signed a document saying that she was a surenderee, and was not abducted or harmed by the military. After she was released, and alleging that her rights to life, liberty and security had been violated and continued to be threatened by violation of such rights, she filed with the Supreme Court (the Court) a Petition for the Writs of Amparo and Habeas Data with prayers for Temporary Protection Orders, Inspection of Place, and Production of Documents and Personal Properties. The case was filed against President Amoyo (who was the President of the Philippines when the abduction, beating, mauling and life threats were committed), General Altamirano, and several military men whom Agnes was able to recognize during her ordeal. The Court, after finding the petition to be in order, issued the writ of amparo and the writ of habeas data and directed the respondents to file a verified return on the writs, and directed the Court of Appeals (CA) to hear the petition. The respondents duly filed their return on the writs and produced the documents in their possession. After hearing, the CA ruled that there was no more need to issue the temporary protection orders since the writ of amparo had already been issued, and dismissed the petition against President Amoyo on the ground that he was immune from suit during his incumbency as President. Agnes appealed the CA ruling to the Court. The appeal was lodged after President Amoyo’s term had ended. (a) Was the CA correct in saying that the writ of amparo rendered unnecessary the issuance of the temporary protection order? (2.5%) (b) Will the President's immunity from suit continue even after his term has ended, considering that the events covered by the Petition took place during his term? (2.5%) Suggested Answer: (a) Yes. Under the Rule on the Writ of Amparo and jurisprudence, the privilege of the writ of amparo, once granted, necessarily entails the protection of the aggrieved party. Thus, once the privilege of the writ of amparo is granted, there is no need to issue a temporary protection order independently of the former. The order

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restricting respondents from going near petitioner is subsumed under the privilege of the writ. (b) No. Under jurisprudence, the President enjoys immunity from suit during his or her tenure of office or actual incumbency. Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president even for acts committed during his or her tenure.

2. Presidential privilege

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: executive privilege, exclusivity to the President, procedure for valid invocation

a. EXECUTIVE PRIVILEGE

1) Concept Executive privilege – means the power of the President to withhold certain types information from the courts, the Congress, and ultimately the public. Apart from diplomatic and military secrets and the identity of government informers, another type of information covered by executive privilege relates to information about internal deliberations comprising the process by which government decisions are reached or policies formulated. (Neri v. Senate Committee on Accountabilty of Public Officers and Investigations, En Banc, G.R. No. 180643, 25 March 2007) Executive privilege 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 doctrine 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. (Senate v. Ermita, En Banc, G.R. Nos. 169777, 169569. 169660, etc., 20 April 2006)

a) Exclusive and limited to the President 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

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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. (Ibid.) 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 provide 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 reasonable 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 Congress and may then opt to avail of the necessary legal means to compel his appearance. (Ibid.)

b) Adheres to the Office of the President Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists to protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure that the nation will receive the benefit of candid, objective and untrammeled communication and exchange of information between the President and his/her advisers in the process of shaping or forming policies and arriving at decisions in the exercise of the functions of the Presidency under the Constitution. (Neri v. Senate Committee on Accountabilty of Public Officers and Investigations, En Banc, G.R. No. 180643, 04 September 2008) The confidentiality of the President’s conversations and correspondence is not unique. It is akin to the confidentiality of judicial deliberations. It possesses the same value as the right to privacy of all citizens and more, because it is dictated by public interest and the constitutionally ordained separation of governmental powers. (Ibid.)

b) Rooted on separation of powers Executive privilege is rooted on the doctrine of separation of powers, a basic postulate that forbids one branch of government to exercise powers belonging to another co-equal branch; or for one branch to interfere with the other's performance of its constitutionally-assigned functions. It is partly in recognition of the doctrine that “presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court… or executive sessions of either house of Congress… cannot be pried open by a co-equal branch of government.” (Neri v. Senate Committee on Accountabilty of Public Officers and Investigations, 2007 case, supra.)

2) Steps to follow in claiming executive privilege The steps to follow in claiming executive privilege. Foremost of these are: 1) It must be clearly asserted and by the Government to which the privilege belongs; 2) there must be a formal claim of privilege, lodged by the head of the department having control over the matter; and, 3) the statement of the claim must be specific and the claim must state the reasons for withholding the information. (Ibid.)

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The Senate cannot require the executive to state the reasons for the claim with such particularity as to veritably compel disclosure of the information which the privilege is designed to protect in the first place. (Ibid.)

BAR EXAM QUESTION

(Question A.6, Political Law, 2019 Bar Exam) A committee of the Senate invited Mr. X and Mr. Y, the Secretary of Foreign Affairs and Secretary of Energy, respectively, as resource speakers for an inquiry in aid legislation. Mr. X refused to attend, arguing that the Senate, not its committee, has the power to compel attendance. Meanwhile, Mr. Y attended the committee hearing but upon being asked about discussions made during a closed-door cabinet meeting, he refused to answer invoking executive privilege. The committee members insisted that Mr. Y answer the question pursuant to the right of Congress to information from the executive branch. (b) Is Mr. Y’s refusal to answer based on executive privilege valid? Explain. (2.5%) Suggested Answer: No. Answer Under jurisprudence, it is only the President who can invoke executive privilege. 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. Rule In the case at bar, there is no indication that Mr. Y consulted with the President and was thereafter directed to invoke executive privilege on behalf of the President. Apply Thus, Mr. Y’s refusal to answer based on executive privilege was not valid. Conclusion

3. Disqualifications Added a. ABSOLUTE PROHIBITION

1) Holding any other office or employment The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. (Section 13, Article VII, 1987 Constitution)

2) Practicing any profession 3) Participating in any business 4) Be financially interested in any Government transaction

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They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. (Section 13, Article VII, Ibid.) b. AVOID CONFLICT OF INTEREST They shall strictly avoid conflict of interest in the conduct of their office. (Section 13, Article VII, Ibid.)

C. Powers of the President

1. General executive and administrative powers a. CONTROL OVER EXECUTIVE DEPARTMENT The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. (Section 17, Article VII, 1987 Constitution) b. ADDRESS CONGRESS The President shall address the Congress at the opening of its regular session. He may also appear before it at any other time. (Section 23, Article VII, Ibid.)

2. Power of appointment

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: appointments by the President, limitations, midnight appointments, types of appointment

a. In general a. NOMINATE AND APPOINT The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. (Section 16, Article VII, Ibid.)

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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. (Section 16, Article VII, Ibid.) 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. (Section 16, Article VII, Ibid.) The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until after disapproval by the Commission on Appointments or until the next adjournment of the Congress. (Paragraph 2, Section 16, Article VII, Ibid.) b. APPOINTMENTS BY ACTING PRESIDENT Appointments extended by an Acting President shall remain effective, unless revoked by the elected President within ninety (90) days from his assumption or reassumption of office. (Section 14, Article VII, Ibid.)

b. Limitations on the exercise/power a. PROHIBITION AGAINST NEPOTISM The spouse and relatives by consanguinity or affinity within the fourth (4th ) civil degree of the President shall not during his tenure be appointed as members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. (Paragraph 2, Section 13, Article VII, Ibid.) b. BAN AGAINST MIDNIGHT APPOINTMENTS Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. (Section 15, Article VII, Ibid.)

c. Types of appointment a. CONCEPT The President shall exercise the power to appoint such officials as provided for in the Constitution and laws. (Section 16, E.O. 292, Administrative Code)

1) Permanent Appointment A permanent appointment shall be issued to a person who meets all the requirements for the positions to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated

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in pursuance thereof. (Section 25[a], P.D. 807, Civil Service Decree; Amores v. CSC, G.R. No. 170093, 29 April 2009)

2) Temporary appointments GENERAL RULE: The power to appoint vested in the President includes the power to make temporary appointments. (General v. Urro, supra.) EXCEPTIONS: 1) He is otherwise specifically prohibited by the Constitution or by the law; or, 2) Where an acting appointment is repugnant to the nature of the office involved. (Ibid.) An appointment is temporary where the appointee meets all the requirements for the position except only the appropriate civil service eligibility. (Amores v. CSC, supra.) NB: For more discussions, see: Part X – Law on Public Officers > C. Modes and Kinds of Appointment b. PROHIBITED APPOINTMENTS GENERAL RULE: Two (2) months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments. (Section 15, Article II, 1987 Constitution) EXCEPTIONS: 1) Temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety; and, 2) Appointments to the judiciary. (Ibid.)

3. Power of control and supervision

a. Doctrine of qualified political agency

1) Concept Under the doctrine of qualified political agency, department secretaries are alter egos or assistants of the President and their acts are presumed to be those of the latter unless disapproved or reprobated by him. (Manubay v. Garilao, G.R. No. 140717, 16 April 2009) The doctrine of qualified political agency is also known as the alter ego doctrine. (Manalang-Demigillo v. TIDCORP, En Banc, G.R. Nos. 168613 and 185571, 05 March 2013) GENERAL RULE: The doctrine of qualified political agency essentially postulates that the heads of the various executive departments are the alter egos of the President, and, thus, the actions taken by such heads in the performance of their official duties are deemed the acts of the President. (Ibid.)

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EXCEPTIONS: 1) Unless the President himself should disapprove such acts.(Ibid.); or 2) Where the Chief Executive is required by the Constitution or law to act in person on the exigencies of the situation demand that he act personally. (Carpio v. Executive Secretary, En Banc, G.R. No. 96409, 14 February 1992) There are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any other person. Such, for instance, is his power to suspend the writ of habeas corpus and proclaim martial. (Kulayan v. Tan, supra.) Case Law 1) In Villena v. The Secretary of Interior, the Department of Justice, upon the request of the Secretary of Interior, investigated Makati Mayor Jose D. Villena and found him guilty of bribery, extortion, and abuse of authority. The Secretary of Interior then recommended to the President the suspension from office of Mayor Villena. Upon approval by the President of the recommendation, the Secretary of Interior suspended Mayor Villena. Unyielding, Mayor Villena challenged his suspension, asserting that the Secretary of Interior had no authority to suspend him from office because there was no specific law granting such power to the Secretary of Interior; and that it was the President alone who was empowered to suspend local government officials. The Court disagreed with Mayor Villena and upheld his suspension, holding that the doctrine of qualified political agency warranted the suspension by the Secretary of Interior. (Ibid.)

a) Purpose This doctrine is in recognition of the fact that in our presidential form of government, all executive organizations are adjuncts of a single Chief Executive; that the heads of the Executive Departments are assistants and agents of the Chief Executive; and that the multiple executive functions of the President as the Chief Executive are performed through the Executive Departments. The doctrine has been adopted here out of practical necessity, considering that the President cannot be expected to personally perform the multifarious functions of the executive office. (Manalang-Demigillo v. TIDCORP, supra.)

b) Appointment as ex officio member by law The doctrine of qualified political agency does not apply if Cabinet members seat as ex officio member on a Board of Director of a Government Body or GOCC as it is the law that required them to hold such position and not the President. (Ibid.) Case Law 1) In Manalang-Demigillo v. TIDCORP, the doctrine of qualified political agency could not be extended to the acts of the Board of Directors of TIDCORP despite some of its members being themselves the appointees of the President to the Cabinet. Under Section 10 of Presidential Decree No. 1080, as further amended by Section 6 of Republic Act No. 8494, the five ex officio members were the Secretary of Finance, the Secretary of Trade and Industry, the Governor of the Bangko Sentral ng Pilipinas, the Director-General of the National Economic and Development Authority, and the Chairman of the Philippine Overseas Construction Board, while the four other members of the Board

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were the three from the private sector (at least one of whom should come from the export community), who were elected by the ex officio members of the Board for a term of not more than two consecutive years, and the President of TIDCORP who was concurrently the Vice-Chairman of the Board. Such Cabinet members sat on the Board of Directors of TIDCORP ex officio, or by reason of their office or function, not because of their direct appointment to the Board by the President. Evidently, it was the law, not the President, that sat them in the Board… Under the circumstances, when the members of the Board of Directors effected the assailed 2002 reorganization, they were acting as the responsible members of the Board of Directors of TIDCORP constituted pursuant to Presidential Decree No. 1080, as amended by Republic Act No. 8494, not as the alter egos of the President. (Supra.)

b. Executive departments and offices

1) Concept

a) Administrative relationships Unless otherwise expressly stated in the Administrative Code or in other laws defining the special relationships of particular agencies, administrative relationships shall be categorized and defined as follows: 1) Supervision and control; 2) Administrative supervision. (Section 38, Chapter 7, Book IV, E.O. 290, Administrative Code) In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer has done in the performance of his duties and to substitute the judgment of the former for that of the latter. (Mondano v. Silvosa, G.R. No. L-7708, 30 May 1955) Supervision and control – shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs. (Section 38[1], Chapter 7, Book IV, Ibid.)

Unless a different meaning is explicitly provided in the specific law governing the relationship of particular agencies, the word "control" shall encompass supervision and control as defined in this paragraph. (Ibid.)

Administrative supervision – which shall govern the administrative relationship between a department or its equivalent and regulatory agencies or other agencies as may be provided by law, shall be limited to the authority of the department or its equivalent to generally oversee the operations of such agencies and to insure that they are managed effectively, efficiently and economically but without interference with day-to-day activities; or require the submission of reports and cause the conduct of

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management audit, performance evaluation and inspection to determine compliance with policies, standards and guidelines of the department; to take such action as may be necessary for the proper performance of official functions, including rectification of violations, abuses and other forms of maladministration; and to review and pass upon budget proposals of such agencies but may not increase or add to them. (Section 38[2][a], Chapter 7, Book IV, Ibid.)

Such authority shall not, however, extend to: 1) Appointments and other personnel actions in accordance with the decentralization of personnel functions under the Administrative Code, except appeal is made from an action of the appointing authority, in which case the appeal shall be initially sent to the department or its equivalent, subject to appeal in accordance with law; 2) Contracts entered into by the agency in the pursuit of its objectives, the review of which and other procedures related thereto shall be governed by appropriate laws, rules and regulations; and, 3) The power to review, reverse, revise, or modify the decisions of regulatory agencies in the exercise of their regulatory or quasi-judicial functions (Section 38[2][b], Chapter 7, Book IV, Ibid.)

Unless a different meaning is explicitly provided in the specific law governing the relationship of particular agencies, the word “supervision” shall encompass administrative supervision as defined in this paragraph. (Section 38[2][c], Chapter 7, Book IV, Ibid.)

Attachment – refers to the lateral relationship between the department or its equivalent and the attached agency or corporation for purposes of policy and program coordination. The coordination may be accomplished by having the department represented in the governing board of the attached agency or corporation, either as chairman or as a member, with or without voting rights, if this is permitted by the charter; having the attached corporation or agency comply with a system of periodic reporting which shall reflect the progress of programs and projects; and having the department or its equivalent provide general policies through its representative in the board, which shall serve as the framework for the internal policies of the attached corporation or agency; (Section 38[3][a], Chapter 7, Book IV, Ibid.)

c. Local government units

1) Concept The President shall exercise general supervision over local governments. (Section 18, Chapter 6, Book III. E.O. 292, Administrative Code) The Constitution vests the President with the power of supervision, not control, over local government units (LGUs). (Pimentel, Jr. v. Aguirre, En Banc, G.R. No. 132988, 19 July 2020)

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a) Supervision, not control Such power enables the President to see to it that LGUs and their officials execute their tasks in accordance with law. While he may issue advisories and seek their cooperation in solving economic difficulties, he cannot prevent them from performing their tasks and using available resources to achieve their goals. He may not withhold or alter any authority or power given them by the law. Thus, the withholding of a portion of internal revenue allotments legally due them cannot be directed by administrative fiat. (Ibid.) The Chief Executive wielded no more authority than that of checking whether local governments or their officials were performing their duties as provided by the fundamental law and by statutes. He cannot interfere with local governments, so long as they act within the scope of their authority. “Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body.” (Ibid.)

b) Cabinet Members v. Local Chief Executives Under our present system of government, executive power is vested in the President. The members of the Cabinet and other executive officials are merely alter egos. As such, they are subject to the power of control of the President, at whose will and behest they can be removed from office; or their actions and decisions changed, suspended or reversed. (Ibid.) In contrast, the heads of political subdivisions are elected by the people. Their sovereign powers emanate from the electorate, to whom they are directly accountable. By constitutional fiat, they are subject to the President’s supervision only, not control, so long as their acts are exercised within the sphere of their legitimate powers. By the same token, the President may not withhold or alter any authority or power given them by the Constitution and the law. (Ibid.)

4. Emergency powers

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: emergency powers, power to declare state of national emergency v. power to exercise emergency powers

a. CONCEPT 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. (Section 23[2], Article VI, 1987 Constitution) In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take

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over or direct the operation of any privately-owned public utility or business affected with public interest. (Section 17, Article XII, Ibid.)

1) Emergency Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity, variety, and perception. Emergencies have been occasioned by a wide range of situations, classifiable under three (3) principal heads: 1) Economic; 2) Natural disaster; and, 3) National security. “Emergency,” as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect. (David v. Macapagal-Arroyo, G.R. No. 171396, 03 May 2006)

2) Congress as repository of emergency powers Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. (Ibid.)

a) Limitations of the grant of emergency powers to the President However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus: 1) There must be a war or other emergency. 2) The delegation must be for a limited period only. 3) The delegation must be subject to such restrictions as the Congress may prescribe. 4) The emergency powers must be exercised to carry out a national policy declared by Congress. (Ibid.)

3) Power to declare state of national emergency v. Power to exercise emergency powers

A distinction must be drawn between the President’s authority to declare “a state of national emergency” and to exercise emergency powers. To the first, Section 18, Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues arise. (Ibid.) The President can validly declare the existence of a state of national emergency even in the absence of a Congressional enactment… But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress. (Ibid.)

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a) Take over of private business affected with public interest Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the “the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest,” it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. (Ibid.) While the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress. (Ibid.)

3) Exercise of emergency powers solely with the President It is only the President, as Executive, who is authorized to exercise emergency powers as provided under Section 23, Article VI, of the Constitution, as well as what became known as the calling-out powers under Section 7, Article VII thereof. (Kulayan v. Tan, En Banc, G.R. No. 187298, 03 July 2012)

5. Commander-in-chief powers

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: calling out powers, martial law, suspension of writ of habeas corpus and its extension, limitations, Congress, Supreme Court

a. Calling out powers

1) Concept 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. (Section 18, Article VII, 1987 Constitution)

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a) Solely exercised by the President By constitutional fiat, the calling-out powers, which is of lesser gravity than the power to declare martial law, is bestowed upon the President alone. (Kulayan v. Tan, supra.) Case Law 1) Kulayan v. Tan, respondent provincial governor is not endowed with the power to call upon the armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his authority when he declared a state of emergency and called upon the Armed Forces, the police, and his own Civilian Emergency Force. The calling-out powers contemplated under the Constitution is exclusive to the President. An exercise by another official, even if he is the local chief executive, is ultra vires, and may not be justified by the invocation of Section 465 of the Local Government Code. (Supra.)

b) Fully discretionary The power to call is fully discretionary to the President; the only limitations being that he acts within permissible constitutional boundaries or in a manner not constituting grave abuse of discretion. In fact, the actual use to which the President puts the armed forces is not subject to judicial review. (Lagman v. Medialdea, En Banc, G.R. Nos. 231658, 231771, 231774 etc., 04 July 2017)

c) Civilian authority supreme at all times over the military While the President is still a civilian, Article II, Section 3 of the Constitution mandates that civilian authority is, at all times, supreme over the military, making the civilian president the nation’s supreme military leader. The net effect of Article II, Section 3, when read with Article VII, Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed forces. (Kulayan v. Tan, supra.) The Constitution does not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed forces to military experts; but the ultimate power is his. As Commander-in-Chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual. (Ibid.)

b. Declaration of martial law and suspension of the privilege of the writ of habeas corpus; extension

1) President a) Requisites

In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty (60) days, suspend the privilege of the writ of habeas corpus or place

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the Philippines or any part thereof under martial law. (Section 18, Article VII, 1987 Constitution) The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or declaring martial law may be exercised only when: 1) There is actual invasion or rebellion; and, 2) Public safety requires it. (Lagman v. Medialdea, supra.)

b) Limitations The 1987 Constitution imposed the following limits in the exercise of these powers: 1) A time limit of sixty (60) days; 2) Review and possible revocation by Congress; and, 3) Review and possible nullification by the Supreme Court. (Ibid.)

c) Graduation of powers The 1987 Constitution gives the President, as Commander-in- Chief, a “sequence” of “graduated powers.” From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law. It must be stressed, however, that the graduation refers only to hierarchy based on scope and effect. It does not in any manner refer to a sequence, arrangement, or order which the Commander-in-Chief must follow. This so-called “graduation of powers” does not dictate or restrict the manner by which the President decides which power to choose. (Ibid.) These extraordinary powers are conferred by the Constitution with the President as Commander-in-Chief; it therefore necessarily follows that the power and prerogative to determine whether the situation warrants a mere exercise of the calling out power; or whether the situation demands suspension of the privilege of the writ of habeas corpus; or whether it calls for the declaration of martial law, also lies, at least initially, with the President. The power to choose, initially, which among these extraordinary powers to wield in a given set of conditions is a judgment call on the part of the President. As Commander-in-Chief, his powers are broad enough to include his prerogative to address exigencies or threats that endanger the government, and the very integrity of the State. (Ibid.)

d) Scope of extent of martial law Under a valid declaration of martial law, the President as Commander-in-Chief may order the: (a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) takeover of news media and agencies and press censorship; and (d) issuance of Presidential Decrees. (Ibid.)

2) Congress

a) President to report to Congress Within forty-eight (48) 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. (Section 18, Article VII, 1987 Constitution)

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a) Congress to decide revocation or extension

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. (Section 18, Article VII, Ibid.) 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. (Section 18, Article VII, Ibid.) The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call. (Paragraph 2, Section 18, Article VII, Ibid.)

3) Supreme Court 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 (30) days from its filing. (Paragraph 3, Section 18, Article VII, Ibid.) The power to declare a state of martial law is subject to the Supreme Court’s authority to review the factual basis thereof. (Kulayan v. Tan, supra.)

4) Limitations of Martial Law 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. (Paragraph 3, Section 18, Article VII, Ibid.)

a) Suspension of writ of habeas corpus The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion. (Paragraph 4, Section 18, Article VII, Ibid.)

b) Charged within 3 days or released During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three (3) days, otherwise he shall be released. (Last paragraph, Section 18, Article VII, Ibid.)

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BAR EXAM QUESTION

(Question A.7, Political Law, 2019 Bar Exam) The continuing threat to the security of the State in various parts of the country prompted the National Security Adviser of the President to adopt a “Comprehensive National Security Strategy (CNSS)” with the following components: Component 1: During a state of emergency, the President, in the exercise of his power of general supervision, may delegate to the heads of local government units (LGUs), through an administrative issuance, the power to call-out the Armed Forces of the Philippines (AFP) for a more effective and immediate response to the ground situation; and, Component 2: In declaring Martial Law, the President, in a preemptive action and without waiting for the recommendation of the Secretary of National Defense and the AFP, may rely upon any intelligence information he may have gathered through other sources. Disturbed by the strategy’s supposed infirmities, a concerned citizens’ organization raised the constitutionality of the two (2) components of the CNSS before the Supreme Court. (a) Is component 1 of the CNSS constitutional? Explain. (2.5%) (b) Is component 2 of the CNSS constitutional? Explain. (2.5%) Suggested Answer: (a) No. Answer Under the 1987 Constitution and jurisprudence, the calling-out powers may only be exercised solely by the President and may not be delegated. Rule In the case at bar, Component 1 violates the requirement that President alone shall exercise the calling-out powers and the same cannot be delegated to anyone, such as to heads of the local government units (LGUs). Apply Thus, Component 1 is not constitutional. Conclusion (b) Yes. Answer Under the1987 Constitution and jurisprudence, the power to declare Martial law is an extraordinary power are conferred by the Constitution with the President as Commander-in-Chief. It therefore necessarily follows that the power and prerogative to determine whether the situation warrants a for the declaration of martial law, also lies, at least initially, with the President. Rule In the case at bar, Component 2 is consistent with the President’s exclusive prerogative whether to declare Martial Law. There is no legal requirement that the President has to be wait for any recommendation from the Secretary of National Defense and the AFP. Apply

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Thus, Component 2 of the CNSS is constitutional. Conclusion

BAR EXAM QUESTION

(Question III, Political Law, 2018 Bar Exam) (b) a declaration of the existence of a state of war; 2/3 vote of all members of Congress, voting separately (e) the extension of the period for the suspension of the privilege of the writ of habeas corpus? Majority vote of all members of Congress, voting jointly

6. Executive clemency

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: calling out powers, martial law, suspension of writ of habeas corpus and its extension, limitations, Congress, Supreme Court, pardon v. amnesty, effects

a. Nature and limitations

1) Concept GENERAL RULE: The President may grant reprieves, commutations and pardons, and remit fines and forfeitures, after conviction by final judgment. (Section 19, Article VII, 1987 Constitution) He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. (Paragraph 2, Section 19, Article VII, Ibid.) EXCEPTIONS: 1) Impeachment cases; 2) Cases that have not yet resulted in a final conviction; and, 3) Cases involving violations of election laws, rules and regulations in which there was no favorable recommendation coming from the COMELEC. (Risol-Vidal v. COMELEC, En Banc, G.R. No. 206666, 21 January 2015)

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a) Absolute discretion on the President The pardoning power of the President cannot be limited by legislative action. (Ibid.)

BAR EXAM QUESTION

(Question IV-A, Political Law, 2017 Bar Exam) What is the pardoning power of the President under Art. VIII, Sec. 19 of the Constitution? Is the exercise of the power absolute? (4%) Suggested Answer: 1) Under the Constitution, 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. 2) The exercise of such power is absolute in the sense that the pardoning power of the President cannot be limited by legislative action: Provided, that the exercise thereof is consistent with the 1987 Constitution.

2) Application

Executive clemency may be extended to both: 1) Administrative cases; and 2) Criminal cases. (Llamas v. Orbos, En Banc, G.R. No. 99031, 15 October 1991) The President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses. (Ibid.) However, executive clemency in administrative cases refer only to all administrative cases in the Executive branch, not in the Judicial or Legislative branches of the government. (Ibid.)

a) No notice required Notice to the recipient of the pardon is not necessary. (Ibid.) Pardon has been defined as “the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended and not communicated officially to the court.” (Ibid. citing Bernas, The Constitution of the Philippines, Vol. II, First Ed. 1988, pp. 239-240, citing U.S. v. Wilson, 7 Pet. 150 [U.S. 1833]).

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b) Cannot be delegated Since the Chief Executive is required by the Constitution to act in person, he may not delegate the authority to pardon prisoners under the doctrine of qualified political agency. (Tiu v. Dizon, G.R. No. 211269, 15 June 2016)

b. Forms of executive clemency

1) Pardon

a) Absolute pardon An absolute pardon not only blots out the crime committed but removes all disabilities resulting from the conviction. (Monsanto v. Factoran, Jr., En Banc, G.R. No. 78239, 09 February 1989) Full pardon, at least one not based on the offender's innocence, relieves the party from all the punitive consequences of his criminal act, including the disqualifications or disabilities based on the finding of guilt. But it relieves him from nothing more. “To say, however, that the offender is a ‘new man’, and’"as innocent as if he had never committed the offense;’ is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it places no restraints upon him following his conviction.” (Ibid.) A pardon looks to the future. It is not retrospective. It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. “Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required.” (Ibid.) Case Law 1) In Monsanto v. Factoran, Jr., the pardon was not based on the innocence of the pardonee. Thus, this would explain why the pardonee, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits (Ibid.)

b) Conditional pardon Conditional pardon – is “a contract between the sovereign power or the Chief Executive and the convicted criminal to the effect that the former will release the latter subject to the condition that if he does not comply with the terms of the pardon, he will be recommitted to prison to serve the unexpired portion of the sentence or an additional one. By the pardonee’s consent to the terms stipulated in this contract, the pardonee has thereby placed himself under the supervision of the Chief Executive or his delegate who is duty-bound to see to it that the pardonee complies with the terms and conditions of the pardon.” (Risol-Vidal v. COMELEC, supra.)

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The individual pardon papers contain the terms and conditions of the contract of pardon, the compliance of which is essential to the pardonee’s freedom from recommitment to prison. (Ibid.) The grant of pardon and the determination of the terms and conditions of a conditional pardon are purely executive acts which are not subject to judicial scrutiny. (Ibid.)

b) Effects of pardon

(1) Forgiveness, not forgetfulness While a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness . It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. (Garcia v. COA Chairman, G.R. No. 75025, 14 September 1993) Unless expressly grounded on the person’s innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But ssince pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages. (Ibid.) But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent; as if he had not been found guilty of the offense charged. When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt. (Ibid.) Case Law 1) In Garcia v. COA Chairman, the pardonee was granted clemency based on his innocence. The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This signifies that petitioner need no longer apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of the clemency… Petitioner’s automatic reinstatement to the government service entitles him to back wages. (Ibid.)

(2) Civil indmenity A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. (Paragraph 2, Article 36, Ibid.)

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(3) Right to hold public office and suffrage A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon. (Article 36, Revised Penal Code) The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Article 41, Ibid.) Under Articles 36 and 41 of the Revised Penal Code, the pardon of the principal penalty does not carry with it the remission of the accessory penalties unless the President expressly includes said accessory penalties in the pardon. It still recognizes the Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the principal penalty while excluding its accessory penalties or to pardon both. Thus, Articles 36 and 41 only clarify the effect of the pardon so decided upon by the President on the penalties imposed in accordance with law. (Risol-Vidal v. COMELEC, supra.) For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that will give full effect to the executive clemency granted by the President, instead of indulging in an overly strict interpretation that may serve to impair or diminish the import of the pardon which emanated from the Office of the President and duly signed by the Chief Executive himself/herself. The said codal provisions must be construed to harmonize the power of Congress to define crimes and prescribe the penalties for such crimes and the power of the President to grant executive clemency. (Ibid.) Case Law 1) In Riso-Vidal v. COMELEC, a close scrutiny of the text of the pardon extended to former President Estrada shows that both the principal penalty of reclusion perpetua and its accessory penalties are included in the pardon. The first sentence refers to the executive clemency extended to former President Estrada who was convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The latter is the principal penalty pardoned which relieved him of imprisonment. The sentence that followed, which states that “(h)e is hereby restored to his civil and political rights,” expressly remitted the accessory penalties that attached to the principal penalty of reclusion perpetua. (Ibid.) 2) In U.S. v. Guarin, there is nothing in the provisions of the Penal Code touching the crime of adultery, as amended by Act No. 1773, which would justify us in holding that the power of the Chief Executive to pardon one of two offenders who have been convicted of adultery is limited by any rule by virtue of which such pardon must inure to the benefit of the other. (U.S. v. Guarin, En Banc, G.R. No. L-9900, 15 March 1915)

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2) Amnesty

a) Pardon v. Amnesty

Pardon Amnesty Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof.

Amnesty is by Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act of which the courts should take judicial notice.

Pardon is granted to one after conviction.

Amnesty is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction.

Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolished or forgives the punishment, and for that reason it does “not work the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon,” and it “in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence”.

Amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense.

(Barrioquinto v. Fernandez, G.R. No. L-1278, 21 January 1949)

BAR EXAM QUESTION

(Question VI-B, Political Law, 2017 Bar Exam) Distinguish pardon from amnesty. (4%) 1) Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof. On the other hand, amnesty is by Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act of which the courts should take judicial notice. 2) Pardon is granted to one after conviction. On the other hand, amnesty is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. 3) Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolished or forgives the punishment, and for that reason it does “not work the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored

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by the terms of the pardon,” and it “in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence”. On the other hand, amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense.

3) Commutations

The reduction of a prisoner’s sentence is a partial pardon, and our Constitution reposes in the President the power and the exclusive prerogative to extend the same. The 1987 Constitution, specifically under Section 19, Article VII thereof, provides that the President possesses the power to grant pardons, along with other acts of executive clemency. (Ibid.)

4) Reprieves Reprieve – is the postponement of a sentence of death. Webster defines the word reprieve as “the temporary suspension of the execution of a sentence, especially of a sentence of death,” and there are not lacking those who maintain that this word ought to be applied only to postponement of a sentence of death. (Director of Prisons v. Judge of CFI Cavite, En Banc, G.R. No. L-10543, 23 January 1915)

5) Remit fines and forfeitures NB: The President may remit fines and forfeitures, which have been imposed as penalties for the commission of a crime and/or as part of disciplinary action in an admimistrative case.

7. Diplomatic power

BAR EXAM TIPS | Frequency: Frequent WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: diplomatic power, treaty-making and its process, treaty v. executive agreement

a. CONCEPT 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. (Section 21, Article VII, 1987 Constitution) In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is

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vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. (Pimentel, Jr. v. Romulo, En Banc, G.R. No. 158088, 06 July 2005) b. TREATY-MAKING

1) President as sole authority In the realm of treaty-making, the President has the sole authority to negotiate with other states. (Ibid.)

a) Subject to restriction: 2/3 concurrence of Senate for validity Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. (Ibid.) Section 21, Article VII of the 1987 Constitution provides that “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.” (Ibid.)

a) Purpose The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations. By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nation’s pursuit of political maturity and growth. (Ibid.)

2) Process of treaty-making “The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.” (Pimentel, Jr. v. Romulo, supra, citing Justice Isagani Cruz, International Law)

a) Negotiation “Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even ‘collapse’ in case the parties are unable to come to an agreement on the points under consideration.” (Ibid.)

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b) Signature “If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state.” (Ibid.) The Philippines is not bound under treaty law and international law to ratify the treaty which it has signed. The signature does not signify the final consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof. (Pimentel, Jr. v. Romulo, supra.)

c) Ratification “Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them.” (Ibid.) The signing of the treaty and the ratification are two separate and distinct steps in the treaty-making process. The signature is primarily intended as a means of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed by the state’s authorized representative in the diplomatic mission. (Pimentel, Jr. v. Romulo, supra.) Ratification, on the other hand, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an executive act, undertaken by the head of the state or of the government. (Ibid.) It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the state’s representative, the President, being accountable to the people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. (Ibid.) The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries. There

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is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in taking offense. (Ibid.) Under the 1987 Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. (Ibid.) Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached by the Court via a writ of mandamus. (Ibid.) Case Law 1) Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the negotiation of international agreements and its ratification. It mandates that after the treaty has been signed by the Philippine representative, the same shall be transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare the ratification papers and forward the signed copy of the treaty to the President for ratification. After the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply with the provisions of the treaty to render it effective. (Ibid.)

d) Exchange of the instruments of ratification “The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.” (Pimentel, Jr. v. Romulo, supra, citing Justice Isagani Cruz, International Law)

BAR EXAM QUESTION

(Question B.16, Political Law, 2019 Bar Exam) Under the 1987 Constitution, to whom does each duty /power /privilege /prohibition /disqualification apply: (e) The power to ratify treaties and international agreements. (1%) The President with the concurrence of the Senate

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c. EXECUTIVE AGREEMENT Executive agreements may be validly entered into without the Senate’s concurrence. (Intellectual Property Association of the Philippines v. Ochoa, En Banc, G.R. No. 204605, 19 July 2016)

1) Treaty v. Executive Agreement International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements. (Commissioner of Customs v. Eastern Sea Trading, No. L-14279, 31 October 1961)

BAR EXAM QUESTION

(Question IX-C, Political Law, 2017 Bar Exam) The President signs an agreement with his counterpart in another country involving reciprocity in the treatment of each country's nationals residing in the other's territory. However, he does not submit the agreement to the Senate for concurrence. Sec. 21, Art. VII of the Constitution provides that no treaty or international agreement shall be valid and effective without such concurrence. Is the agreement signed by the President effective despite the lack of Senate concurrence? Explain your answer. (4%) Suggested Answer: Yes. Answer Under jurisprudence, executive agreements may be validly entered into without the Senate’s concurrence. Rule In the case at bar, the President entered into an executive agreement and not a treat. Accordingly, Senate concurrence is not necessary. Apply Thus, the agreement signed by the President is effective despite the lack of Senate concurrence. Conclusion

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8. Powers relative to appropriation measures a. BUDGET OF EXPENDITURES AND SOURCES OF FINANCING The President shall submit to the Congress within thirty (30) 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. (Section 22, Article VII, 1987 Constitution) b. FOREIGN LOANS The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. (Section 20, Article VII, Ibid.) The Monetary Board shall, within thirty (30) days from the end of every quarter of the calendar year, submit to the 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. (Section 20, Article VII, Ibid.)

9. Delegated powers

1) Emergency powers 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. (Section 23[2], Article VI, Ibid.)

2) Power to fix tax rates 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. (Section 28[2], Article VI, Ibid.)

3) Power to reorganize offices and agencies The President has the power to reorganize the offices and agencies in the executive department in line with the President’s constitutionally granted power of control over executive offices and by virtue of previous delegation of the legislative power to reorganize executive offices under existing statutes. (Banda v. Ermita, En Banc, G.R. No. 166620, 20 April 2010)

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To be very clear, this delegated legislative power to reorganize pertains only to the Office of the President and the departments, offices and agencies of the executive branch and does not include the Judiciary, the Legislature or the constitutionally-created or mandated bodies. Moreover, it must be stressed that the exercise by the President of the power to reorganize the executive department must be in accordance with the Constitution, relevant laws and prevailing jurisprudence. (Ibid.) Case Law 1) In Banda v. Ermita, the issuance of Executive Order No. 378 by President Arroyo was held to be a validexercise of a delegated legislative power granted by Section 31, Chapter 10, Title III, Book III of the Administrative Code of 1987, which provides for the continuing authority of the President to reorganize the Office of the President, “in order to achieve simplicity, economy and efficiency.” (Supra.) Case Law The rule which forbids delegation of legislative power is not absolute. It admits of exceptions as when the Constitution itself authorizes such delegation. In the present case, our Constitution expressly authorizes such delegation. (Article VI, section 22 [2].) This is so because the royalty rates may take the form of tariff rates. At any rate, Commonwealth Act No. 728 confers upon the President authority to regulate, curtail, control, and prohibit the exportation of scrap metals, and in this authority is deemed included the power to exact royalties for permissive or lawful use of property right. (Raytheon Mfg. Co. vs. Radio Corporation of America, 190, N. E. 1, 5, 286 Mass. 84, cited in Words and Phrases, Vol. 37, p. 810.)

4) Power to create ad hoc investigating bodies The Chief Executive’s power to create the Ad Hoc Investigating Committee cannot be doubted. Having been constitutionally granted full control of the Executive Department, to which respondents belong, the President has the obligation to ensure that all executive officials and employees faithfully comply with the law. (DOH v. Camposano, En Banc, G.R. No. 157684, 28 April 2005) The purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into matters which the President is entitled to know so that he can be properly advised and guided in the performance of his duties relative to the execution and enforcement of the laws of the land. (Biraogo v. The Philippine Truth Commission of 2010, En Banc, G.R. No. 192935, 07 December 2010)

a) Funding On the charge that Executive Order No. 1 (creating The Philippine Truth Commission of 2010) transgresses the power of Congress to appropriate funds for the operation of a public office, suffice it to say that there will be no appropriation but only an allotment or allocations of existing funds already appropriated. Accordingly, there is no usurpation on the part of the Executive of the power of Congress to appropriate funds. (Ibid.) Further, there is no need to specify the amount to be earmarked for the operation of the commission because, in the words of the Solicitor General, “whatever funds the

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Congress has provided for the Office of the President will be the very source of the funds for the commission.” (Ibid.) Moreover, since the amount that would be allocated to the PTC shall be subject to existing auditing rules and regulations, there is no impropriety in the funding. (Ibid.)

10. Residual powers a. CONCEPT The President shall exercise such other powers as are provided for in the Constitution. (Section 19, Chapter 7, Title I, Book III, E.O. 292, Administrative Code) Unless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law. (Section 20, Chapter 7, Title I, Book III, Ibid.) Executive power – is the power to enforce the laws, for the President is head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of the powers of the President. It also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the country’s foreign relations. (Marcos v. Manglapus, En Banc, G.R. No. 88211, 15 September 1989) On these premises, although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of “executive power.” Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. (Ibid.) Whatever power inherent in the government that is neither legislative nor judicial has to be executive. (Ibid.) Case Law 1) In Dalamal v. Board, as an act of state, the President has the inherent power to order the deportation of an alien and as incident thereof, his arrest, while at the same time that power may be deemed vested in him thru delegation by the Legislature thru the enactment of an appropriate statute via Section 69, Revised Administrative Code. (G.R. No. L-16812, En Banc, 31 October 1963) 2) In Biraogo v. The Philippine Truth Commission of 2010, En Banc, the power of control is entirely different from the power to create public offices. The former is inherent in the Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully execute the laws. (Supra.)

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1) Implied The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. (Marcos v. Manlapus, En Banc, G.R. No. 88211, 27 October 1989) The President, upon whom executive power is vested, has unstated residual powers which are implied from: 1) The grant of executive power; and, 2) Which are necessary for her to comply with her duties under the Constitution. (Ibid.)

11. Veto powers a. CONCEPT Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same, he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. (Section 27[1], Article VI, 1987 Constitution)

1) Reconsideration If, after such reconsideration, two-thirds (2/3) 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. (Ibid.) In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal.

2) Lapse into law after 30 days of inaction The President shall communicate his veto of any bill to the House where it originated within thirty (30) days after the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (Ibid.)

3) Specific items/s 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. (Section 27[2], Article VI, Ibid.)

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D. Rules of succession

BAR EXAM TIPS | Frequency: Occasional WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: grounds for succession, of the Vice-President, Senate President, Speaker of the House

1. PRESIDENT a. Vice-President

1) Issues with the election of the President a) If President-elect fails to qualify

If the President-elect fails to qualify, the Vice-President-elect shall act as President until the President-elect shall have qualified. (Paragraph 2, Section 7, Article VII, 1987 Constitution)

b) If a President shall not have been chosen If a President shall not have been chosen, the Vice-President-elect shall act as President until a President shall have been chosen and qualified. (Paragraph 3, Section 7, Article VII, Ibid.)

c) If a President-elect dies or becomes permanently disabled If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled, the Vice-President-elect shall become President. (Paragraph 4, Section 7, Article VII, Ibid.)

2) Issues with the sitting President

a) President’s death, permanent disability, removal from office, resignation In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. (Section 8, Article VII, Ibid.)

b) President’s written declaration of inability to discharge powers and duties Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President. (Section 11, Article VII, Ibid.)

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b) Cabinet’s written declaration of inability to discharge powers and duties Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President. (Paragraph 2, Section 11, Article VII, Ibid.)

(1) Contested by the President Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. (Paragraph 3, Section 11, Article VII, Ibid.)

(2) Re-affirmation by majority of the Cabinet Meanwhile, should a majority of all the Members of the Cabinet transmit within five (5) days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. (Paragraph 3, Section 11, Article VII, Ibid.) For that purpose, the Congress shall convene, if it is not in session, within forty-eight (48) hours, in accordance with its rules and without need of call. (Paragraph 3, Section 11, Article VII, Ibid.)

(3) Resolution by Congress, voting separately If the Congress, within ten (10) days after receipt of the last written declaration, or, if not in session, within twelve (12) days after it is required to assemble, determines by a two-thirds (2/3) vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as the President; otherwise, the President shall continue exercising the powers and duties of his office. (Last paragraph, Section 11, Article VII, Ibid.)

3) Serious illness of the President In case of serious illness of the President, the public shall be informed of the state of his health. The Members of the Cabinet in charge of national security and foreign relations and the Chief of Staff of the Armed Forces of the Philippines, shall not be denied access to the President during such illness. (Section 12, Article VII, Ibid.) b. Senate President; then, Speaker of the House

1) Issues with the election of the President and/or Vice-President Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives shall act

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as President until a President or a Vice-President shall have been chosen and qualified. (Paragraph 5. Section 7, Article VII, Ibid.) The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph. (Paragraph 6, Section 7, Article VII, Ibid.)

1) Issues with the sitting President and Vice-President In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified. (Section 8, Article VII, Ibid.) The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the Vice-President shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President. (Paragraph 2, Section 8, Article VII, Ibid.) 2. VICE-PRESIDENT Whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately. (Section 9, Article VII, Ibid.)

BAR EXAM QUESTION

(Question XIX, Political Law, 2018 Bar Exam) President Alfredo died during his third year in office. In accordance with the Constitution, Vice President Anastasia succeeded him. President Anastasia then nominated the late President Alfredo’s Executive Secretary, Anna Maria, as her replacement as Vice President. The nomination was confirmed by a majority of all the Members of the House of Representatives and the Senate, voting separately. (a) Is Anna Maria's assumption as Vice President valid? (2.5%) Suggested Answer: No. Answer Under the 1987 Constitution, whenever there is a vacancy in the Office of the Vice-President during the term for which he was elected, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately. Rule

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In the case at bar, Anna Maria as the Executive Secretary is disqualified since he is not a Member of the Senate nor the House of Representatives. Apply Thus, Anna Maria’s assumption as Vice President is not valid. Conclusion

3. CONGRESS

1) Special election The Congress shall, at ten o’clock in the morning (10:00 am) 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 (7) 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 (45) days nor later than sixty (60) days from the time of such call. (Section 10, Article VII, Ibid.)

a) Bill calling special election, deemed certified 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. (Section 10, Article VII, Ibid.) 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. (Section 10, Article VII, Ibid.) 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 (18) months before the date of the next presidential election. (Section 10, Article VII, Ibid.)

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VII. Judicial Department

A. Concepts

1. Judicial power a. CONCEPT Judicial power – includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Paragraph 2, Section 1, Article VIII, 1987 Constitution) b. VESTED IN THE SUPREME COURT The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. (Section 1, Article VIII, Ibid.)

2. Judicial review

BAR EXAM TIPS | Frequency: Moderate WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: judicial review, requisites, coverage, operative fact doctrine, political question doctrine

a. Requisites Requisites for the exercise of the power of judicial review: 1) There must be an actual case or justiciable controversy before this Court; 2) The question before this Court must be ripe for adjudication; 3) The person challenging the act must be a proper party; and, 4) The issue of constitutionality must be raised at the earliest opportunity and must be the very litis mota of the case. (Kilusang Mayo Uno v. Aquino III, En Banc, G.R. No. 210500, 02 April 2019)

1) Concept The power of judicial review is the power of the courts to test the validity of executive and legislative acts for their conformity with the Constitution. Through such power, the judiciary enforces and upholds the supremacy of the Constitution. (Garcia v. Executive Secretary, En Banc, G.R. No. 157584, 02 April 2009)

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The 1987 Constitution has expanded the scope of judicial power from its traditional understanding. As such, courts are not only expected to settle actual controversies involving rights which are legally demandable and enforceable, but are also empowered to determine if any government branch or instrumentality has acted beyond the scope of its powers, such that there is grave abuse of discretion. (Kilusang Mayo Uno v. Aquino, En Banc, G.R. No. 210500, 02 April 2019)

a) Rule 65 of the Rules of Court Rule 65, Sections 1 and 2 of the Rules of Court provides remedies to address grave abuse of discretion by any government branch or instrumentality. (Ibid.) While Rule 65 pertain to a tribunal’s, board’s, or an officer’s exercise of discretion in judicial, quasi-judicial, or ministerial functions, such rule still applies to invoke the expanded scope of judicial power. (Ibid.) Rule 65 is the remedy to set right, undo, and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial, or ministerial functions. (Ibid.)

BAR EXAM QUESTION

(Question XII, Political Law, 2018 Bar Exam) Section 9 of P.O. No. 1606, as amended, provides that the Sandiganbayan may adopt internal rules governing the allotment of cases among its divisions, the rotation of justices among them, and other matters relating to the internal operations of the court. Section 6 of Article IX-A of the Constitution allows each of the Constitutional Commissions “en bane [to] promulgate its own rules concerning pleadings and practice before it or before any of its offices. Such rules however shall not diminish, increase, or modify substantive rights.” Section 16(3) of Article VI of the Constitution states that “Each House may determine the rules of its proceedings.” Section 21, Article VI of the Constitution further provides that “The Senate or the House of Representatives or any of its respective committees may conduct inquiries… in accordance with its duly published rules of procedure.” Finally, Section 3(8) of Article XI of the Constitution declares that “The Congress shall promulgate its rules on impeachment to effectively carry out the purposes of this section.” Are the rules promulgated pursuant to these provisions subject to review and disapproval by the Supreme Court? (5%) Suggested Answer:

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Yes via judicial review. The power of judicial review is the power of the courts to test the validity of executive and legislative acts for their conformity with the Constitution. Under jurisprudence, the 1987 Constitution has expanded the scope of judicial power from its traditional understanding. As such, courts are not only expected to settle actual controversies involving rights which are legally demandable and enforceable, but are also empowered to determine if any government branch or instrumentality has acted beyond the scope of its powers, such that there is grave abuse of discretion.

b. Operative fact doctrine

1) Concept GENERAL RULE: The general rule is that a void law or administrative act cannot be the source of legal rights or duties. (CIR v. San Roque Power Corporation, En Banc, G.R. Nos. 187485, 196113, and 197156, 08 October 2013) Article 7 of the Civil Code enunciates this general rule, as well as its exception: “Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.” (Ibid.) EXCEPTION: The doctrine of operative fact is an exception to the general rule, such that a judicial declaration of invalidity may not necessarily obliterate all the effects and consequences of a void act prior to such declaration. (Ibid.) Under the operative fact doctrine, the law is recognized as unconstitutional but the effects of the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter of equity and fair play. In fact, the invocation of the operative fact doctrine is an admission that the law is unconstitutional. (League of Cities of the Philippines v. COMELEC, En Banc, G.R. No. 176951, 24 August 2010) A legislative or executive act, prior to its being declared as unconstitutional by the courts, is valid and must be complied with. (Film Development Council of the Philippines v. Colon Heritage Realty Corporation, En Banc, G.R. No. 203754, 16 June 2015) A void act though in law a mere scrap of paper nonetheless confers legitimacy upon past acts or omissions done in reliance thereof. Consequently, the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal consequences are attached. It would indeed be ghastly unfair to prevent private respondent from relying upon the order of suspension in lieu of a formal leave application. (City Government of Makati City v. Civil Service Commission, G.R. No. 131392, 06 February 2002)

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2) Requisites Requisites for application of the operative act doctrine: 1) The existence of a legislative act or measure; and 2) Equity and fair play demands application to protect those who relied in good faith on the invalid law. (CIR v. San Roque Power Corporation, supra. cf. Film Development Council of the Philippines v. Colon Heritage Realty Corporation, supra.)

a) Existence of a legislative act or measure For the operative fact doctrine to apply, there must be a “legislative or executive measure,” meaning a law or executive issuance, that is invalidated by the court. From the passage of such law or promulgation of such executive issuance until its invalidation by the court, the effects of the law or executive issuance, when relied upon by the public in good faith, may have to be recognized as valid. (CIR v. San Roque Power Corporation, supra.)

b) Equity and fair play The doctrine of operative fact applies as a matter of equity and fair play. This doctrine nullifies the effects of an unconstitutional law or an executive act by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences that cannot always be ignored. It applies when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. (Film Development Council of the Philippines v. Colon Heritage Realty Corporation, supra.) Therefore, in applying the doctrine of operative fact, courts ought to examine with particularity the effects of the already accomplished acts arising from the unconstitutional statute, and determine, on the basis of equity and fair play, if such effects should be allowed to stand. It should not operate to give any unwarranted advantage to parties, but merely seeks to protect those who, in good faith, relied on the invalid law. (Ibid.)

BAR EXAM QUESTION

(Question B.17, Political Law, 2019 Bar Exam) In 2014, Congress enacted an appropriation law containing a provision that gives individual legislators the discretion to determine, post-enactment, how much funds would go to a specific project or beneficiary which they themselves also determine. Consequently, disbursements were made in the interim pursuant thereto. Eventually, Mr. Z filed a petition questioning the constitutionality of the statutory provision on the grounds that it violates the separation of powers principle. On the other hand, certain Congressman argued that there was nothing wrong with the provision because, after all, the power to appropriate belongs to Congress.

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(b) Assuming that the provision is declared unconstitutional, should the disbursements made pursuant thereto be returned in light of the doctrine of operative fact? Explain. (2.5%) Suggested Answer: (b) No. Answer Under the operative fact doctrine, a legislative or executive act, prior to its being declared as unconstitutional by the courts, is valid and must be complied with. Accordingly, the effects of the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter of equity and fair play. Rule In the case at bar, disbursements were already made in the interim and hence a fait accompli. Such effects need not be disturbed following the operative fact doctrine. Apply Thus, the disbursement made need not be returned. Conclusion

c. Political question doctrine

1) Concept Political questions refer to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government. Thus, if an issue is clearly identified by the text of the Constitution as matters for discretionary action by a particular branch of government or to the people themselves then it is held to be a political question. (Garcia v. Executive Secretary, En Banc, G.R. No. 157584, 02 April 2009) Political questions are concerned with issues dependent upon the wisdom, not the legality, of a particular act or measure being assailed. Moreover, the political question being a function of the separation of powers, the courts will not normally interfere with the workings of another co-equal branch unless the case shows a clear need for the courts to step in to uphold the law and the Constitution. (IBP v. Zamora, En Banc, G.R. No. 141284, 15 August 2000) In short, the term “political question” connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum, it refers to “those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government.” It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. (Tañada v. Cuenco, En Banc, G.R. No. L-10520, 28 February 1957)

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2) When challenged: limited to grave abuse of discretion When political questions are involved, the Constitution limits the determination as to whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. (IBP v. Zamora, supra.) Thus, a political question will not be considered justiciable if there are no constitutionally imposed limits on powers or functions conferred upon the political bodies Nonetheless, even in cases where matters of policy may be brought before the courts, there must be a showing of grave abuse of discretion on the part of any branch or instrumentality of the government before the questioned act may be struck down. “If grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter alone to decide." (J. Mendoza, Separate Opinion in Ocampo v. Enriquez, En Banc, G.R. Nos. 225973, 225984, 226097, etc., 08 November 2016)

B. Judicial independence and autonomy

BAR EXAM TIPS | Frequency: Moderate WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: judicial independence, institutional v. individual, fiscal autonomy

1. JUDICIAL INDEPENDENCE Recognizing the vital role that the Judiciary plays in our system of government as the sole repository of judicial power, with the power to determine whether any act of any branch or instrumentality of the government is attended with grave abuse of discretion, no less than the Constitution provides a number of safeguards to ensure that judicial independence is protected and maintained. (Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by the Retired Chief/Associate Justices of the Supreme Court, En Banc, A.M. No. 11-7-10-SC, 31 July 2012) a. Concept There are two (2) concepts of judicial independence: 1) Institutional judicial independence; and 2) Individual judicial independence. (Ibid.) A truly independent judiciary is possible only when both concepts of independence are preserved - wherein public confidence in the competence and integrity of the judiciary is maintained, and the public accepts the legitimacy of judicial authority. (Ibid.)

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1) Institutional judicial independence Institutional judicial independence – focuses on the independence of the judiciary as a branch of government and protects judges as a class. (Ibid.)

a) Limitation on the legislative branch No law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence. (Section 30, Article VI, 1987 Constitution) The Constitution expressly prohibits Congress from depriving the Supreme Court of its jurisdiction, as enumerated in Section 5, Article VII of the Constitution, or from passing a law that undermines the security of tenure of the members of the judiciary. (Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by the Retired Chief/Associate Justices of the Supreme Court, supra.) The Constitution also mandates that the judiciary shall enjoy fiscal autonomy. (Ibid.) The Constitution protects as well the salaries of the Justices and judges by prohibiting any decrease in their salary during their continuance in office, and ensures their security of tenure by providing that “Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office.” With these guarantees, justices and judges can administer justice undeterred by any fear of reprisals brought on by their judicial action. They can act inspired solely by their knowledge of the law and by the dictates of their conscience, free from the corrupting influence of base or unworthy motives. (Ibid.)

BAR EXAM QUESTION

(Question X, Political Law, 2018 Bar Exam) Ascertain the constitutionality of the following acts: (2.5% each) (c) A law prohibiting any appeal from the decision or final order of the Ombudsman in an administrative proceeding, except through a petition for review on certiorari filed before the Supreme Court. Suggested Answer: It is unconstitutional if the law was passed without the advice and concurrence of the Supreme Court. Under the 1987 Constitution, no law shall be passed increasing the appellate jurisdiction of the Supreme Court as provided in this Constitution without its advice and concurrence.

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b) Limitation on the executive branch in relation to administration of courts and personnel

The Constitutution grants the Supreme Court administrative supervision over all courts and judicial personnel. Jurisprudence has characterized administrative supervision as exclusive, noting that only the Supreme Court can oversee the judges and court personnel’s compliance with all laws, rules and regulations. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers. (Ibid.)

2) Individual judicial independence Individual judicial independence – focuses on each particular judge and seeks to insure his or her ability to decide cases with autonomy within the constraints of the law. A judge has this kind of independence when he can do his job without having to hear – or at least without having to take it seriously if he does hear – criticisms of his personal morality and fitness for judicial office. (Ibid.) Judicial Independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects. b. Jurisdiction GENERAL RULE: The Congress shall have the power to define, prescribe, and apportion the jurisdiction of various courts. (Section 2, Article VIII, 1987 Constitution) EXCEPTIONS: 1) Congress may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof. (Ibid.) 2) No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members. (Paragraph 2, Section 2, Article VIII, Ibid.) c. Prohibition The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. (Section 12, Article VIII, 1987 Constitution) 2. AUTONOMY a. Fiscal autonomy The Judiciary shall enjoy fiscal autonomy. (Section 3, Article VIII, Ibid.) One of the most important aspects of judicial independence is the constitutional grant of fiscal autonomy. Just as the Executive may not prevent a judge from discharging his or her judicial duty (for example, by physically preventing a court from holding its hearings) and just as the Legislature may not enact laws removing all jurisdiction from courts, the courts may not be obstructed from their freedom to use or dispose of their funds for purposes germane to judicial functions. (Re: COA Opinion on the Computation

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of the Appraised Value of the Properties Purchased by the Retired Chief/Associate Justices of the Supreme Court, supra.) While, as a general proposition, the authority of legislatures to control the purse in the first instance is unquestioned, any form of interference by the Legislative or the Executive on the Judiciary’s fiscal autonomy amounts to an improper check on a co-equal branch of government. If the judicial branch is to perform its primary function of adjudication, it must be able to command adequate resources for that purpose. This authority to exercise (or to compel the exercise of) legislative power over the national purse (which at first blush appears to be a violation of concepts of separateness and an invasion of legislative autonomy) is necessary to maintain judicial independence and is expressly provided for by the Constitution through the grant of fiscal autonomy. (Ibid.)

1) Scope and extent of fiscal autonomy As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions. (Bengzon v. Drilon, G.R. No. 103524, 15 April 1992) Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100 typewriters but DBM rules we need only 10 typewriters and sends its recommendations to Congress without even informing us, the autonomy given by the Constitution becomes an empty and illusory platitude. (Ibid.) The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based. (Ibid.)

BAR EXAM QUESTION

(Question XV-A, Political Law, 2017 Bar Exam) According to Sec. 3, Art. VIII of the Constitution, the Judiciary shall enjoy fiscal autonomy. What does the term fiscal autonomy signify? Explain your answer. (3%) Suggested Answer: Fiscal autonomy contemplates a guarantee of full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes

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the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions. Fiscal autonomy means freedom from outside control. The Judiciary must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based.

2) No reduction below previous year

Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year. (Section 3, Article VIII, Ibid.)

3) Automatically released After approval, appropriations for the Judiciary shall be automatically and regularly released. (Section 3, Article VIII, Ibid.)

C. Appointments to the judiciary

1. Qualifications of members of the judiciary

BAR EXAM TIPS | Frequency: Moderate WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: qualifications and disqualifications, term, retirement

a. QUALIFICATIONS

1) In general A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence. (Section 7[3], Article VIII, 1987 Constitution)

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2) Supreme Court No person shall be appointed Member of the Supreme Court unless he is: 1) A natural-born citizen of the Philippines; 2) At least forty years of age; and 3) Must have been for fifteen (15) years or more a judge of a lower court or engaged in the practice of law in the Philippines. (Section 7[1], Article VIII, Ibid.)

3) Lower collegiate courts No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines. (Section 7[1], Article VIII, Ibid.)

4) Lower courts The Congress shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is: 1) A citizen of the Philippines; and 2) A member of the Philippine Bar. (Section 7[2], Article VIII, Ibid.)

a) Regional Trial Courts No person shall be appointed Regional Trial Judge or Regional Trial Judge-at-Large unless that person is: 1) A natural-born citizen of the Philippines; 2) At least thirty-five (35) years of age; and 3) Has been engaged in the practice of law in the Philippines or has held a public office in the Philippines requiring admission to the practice of law as an indispensable requisite, for at least ten (10) years. (Section 15, B.P. Blg. 129, as amended by R.A. 11459)

b) Metropolitan, Municipal, and Municipal Trial Courts No person shall be appointed judge of a Metropolitan Trial Court, Municipal Trial Court, Municipal Circuit Trial Court, or a Municipal Trial Judge-at-Large unless that person is: 1) A natural-born citizen of the Philippines; 2) At least thirty (30) years of age; and 3) Have been engaged in the practice of law in the Philippines, or has held a public office in the Philippines requiring admission to the practice of law as an indispensable requisite, for at least five (5) years. (Section 26, Ibid.) b. TERM The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until: 1) They reached the age of seventy (70) years old; or 2) Become incapacitated to discharge the duties of their office. (Section 11, Article VIII, 1987 Constitution)

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BAR EXAM QUESTION

(Question V, Political Law, 2018 Bar Exam) State whether or not the following acts are constitutional: (2% each) (a) A law prescribing as qualifications for appointment to any court lower than the Supreme Court, Philippine citizenship, whether natural-born or naturalized, 35 years of age on the date of appointment, and at least eight years as a member of the Philippine Bar; Suggested Answer: The law is unconstitutional. Such a law is inconsistent with the 1987 Constitution which requires that justices and/or judges of should be natural-born citizens.

2. Judicial and Bar Council

a. Composition

1) Composition The Judicial and Bar Council shall be composed of: 1) The Chief Justice as ex officio Chairman; 2) The Secretary of Justice; and 3) A representative of the Congress as ex officio Members; 4) A representative of the Integrated Bar; 5) A professor of law; 6) A retired Member of the Supreme Court; and 7) A representative of the private sector. (Section 8[1], Article VIII, 1987 Constitution)

a) SC Clerk of Court as Secretary ex officio The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings. (Section 8[3], Article VIII, Ibid.)

2) Supreme Court supervision A Judicial and Bar Council is hereby created under the supervision of the Supreme Court. (Section 8[1], Article VIII, Ibid.)

3) Presidential appointment for regular members The regular Members of the Council shall be appointed by the President for a term of four (4) years with the consent of the Commission on Appointments. (Section 8[2], Article VIII, Ibid.)

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3) Emoluments The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court. (Section 8[4], Article VIII, Ibid.) The Supreme Court shall provide in its annual budget the appropriations for the Council. (Section 8[4], Article VIII, Ibid.)

b. Powers

1) Principal function The Council shall have the principal function of recommending appointees to the Judiciary. (Section 8[5], Article VIII, Ibid.)

a) SC Members and Lower Court Judges The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three (3) nominees prepared by the Judicial and Bar Council for every vacancy. (Section 9, Article VIII, Ibid.) Such appointments need no confirmation. (Section 9, Article VIII, Ibid.)

1) Lower Court Judges For the lower courts, the President shall issue the appointments within ninety days (90) from the submission of the list. (Paragraph 2, Section 9, Article VIII, Ibid.)

2) Ancillay function It may exercise such other functions and duties as the Supreme Court may assign to it. (Section 8[5], Article VIII, Ibid.)

D. The Supreme Court

1. Composition a. 1 CHIEF JUSTICE, 14 ASSOCIATE JUSTICES The Supreme Court shall be composed of a Chief Justice and fourteen (14) Associate Justices. It may sit en banc or in its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof. (Section 4[1], Article VIII, 1987 Constitution) b. SALARIES The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts shall be fixed by law. During their continuance in office, their salary shall not be decreased. (Section 10, Article VIII, Ibid.)

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2. Powers and functions

BAR EXAM TIPS | Frequency: Moderate WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: exclusive original jurisdiction, promulgate rules of procedure, administrative supervision of courts

a. JUDICIAL POWERS The Supreme Court shall have the following powers: 1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. 2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. c) All cases in which the jurisdiction of any lower court is in issue. d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. e) All cases in which only an error or question of law is involved.

3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. 4) Order a change of venue or place of trial to avoid a miscarriage of justice. 5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. 6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. (Section 5, Article VIII, Ibid.)

1) Promulgate rules of procedure The Supreme Court, under its sole prerogative and authority over all matters of procedure, deems it proper to declare as ineffective the prohibition against courts other than the Supreme Court from issuing provisional injunctive writs to enjoin investigations conducted by the Office of the Ombudsman, until it is adopted as part of the rules of procedure through an administrative circular duly issued therefor. (Carpio-Morales v. CA, En Banc, G.R. No. 217126-27, 10 November 2015)

a) Visiting Forces Agreement (VFA)

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The rule in international law is that a foreign armed forces allowed to enter one’s territory is immune from local jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions, according to the situation of the parties involved, and reflect their bargaining power. But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties. (Sombilon v. Romulo, En Banc, G.R. No. 175888, 11 February 2009) As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including rules of procedure) of one State do not extend or apply – except to the extent agreed upon – to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces. (Ibid.) Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign State allowed to enter another State’s territory. On the contrary, the Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of the land. (Art. II, Sec. 2). (Ibid.)

BAR EXAM QUESTION

(Question X, Political Law, 2018 Bar Exam) Ascertain the constitutionality of the following acts: (2.5% each) (b) A law prohibiting any court, other than the Supreme Court, from issuing a writ of injunction against an investigation being conducted by the Ombudsman. Suggested Answer: It is unconstitutional. Under jurisprudence, the Supreme Court, under its sole prerogative and authority over all matters of procedure, deemed it proper to declare as ineffective the prohibition against courts other than the Supreme Court from issuing provisional injunctive writs to enjoin investigations conducted by the Office of the Ombudsman.

BAR EXAM QUESTION

(Question XI, Political Law, 2018 Bar Exam) Under Section 6 of Article V (on Criminal Jurisdiction) of the Visiting Forces Agreement (VFA), the custody of a United States (US) personnel who becomes subject to criminal prosecution before a Philippine court shall be with the US military authorities, if the latter so requests. The custody shall begin from the

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commission of the offense until the completion of all judicial proceedings. However, when requested, the US military authorities shall make the US personnel available to Philippine authorities for any investigative or judicial proceeding relating to the offense with which the person has been charged. In the event that the Philippine judicial proceedings are not completed within one year, the US shall be relieved of any obligation under Section 6. The constitutionality of Section 6, Article V of the VFA is challenged on two grounds: (1) it nullifies the exclusive power of the Supreme Court to adopt rules of procedure for all courts in the Philippines; and (2) it violates the equal protection clause to the extent that it allows the transfer of the custody of an accused to a foreign power as providing a different rule of procedure for that accused. Rule on the challenge. (5%) Suggested Answer: 1) On the first ground: It is without merit. Under jurisprudence, the situation involved in the Visiting Forces Agreement on criminal jurisdiction is not one in which the power of this Court to adopt rules of procedure is curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including rules of procedure) of one State do not extend or apply – except to the extent agreed upon – to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces. Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State, diplomats and members of the armed forces contingents of a foreign State allowed to enter another State’s territory. On the contrary, the Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of the land. 2) On the second ground: It is also without merit. Under jurisprudence, the VFA provision on criminal jurisdiction does not violate equal protection. This is because there is a substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter our territory and all other accused.

B. IN GENERAL

1) Consultation The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court. (Section 13, Article VIII, 1987 Constitution)

a) Certification A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties.

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Any Member who took no part, or dissented, or abstained from a decision or resolution must state the reason therefor. (Section 13, Article VIII, Ibid.) The same requirements shall be observed by all lower collegiate courts. (Section 13, Article VIII, Ibid.)

2) Decision; Constiutional requirements No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. (Section 14, Article VIII, Ibid.)

3) Refusal of petition for review or motion for reconsideration

No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor. (Paragraph 2, Section 14, Article VIII, Ibid.) c. EN BANC The following shall be heard by the Supreme Court en banc: 1) All cases involving the constitutionality of a treaty, international or executive agreement, or law; (Section 4[2], Article VIII, Ibid.) 2) All other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations; (Ibid.) 3) When the required number is not obtained when cases or matters are heard by a division, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc. (Section 4[3], Article VIII, Ibid.)

a) Decided by majority who actually took part in deliberations The cases for En Banc resolution shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (Section 4[2], Article VIII, Ibid.) d. DIVISION Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such Members. (Section 4[3], Article VIII, Ibid.) e. ADMINISTRATIVE SUPERVISION OVER ALL COURTS The Supreme Court shall have administrative supervision over all courts and the personnel thereof. (Section 6, Article VIII, Ibid.)

1) Power to discipline judges of lower courts

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The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon. (Section 11, Article VIII, Ibid.)

2) Periods to decide or resolve cases All cases or matters must be decided or resolved: 1) Within twenty-four (24) months from date of submission for the Supreme Court; 2) Within twelve (12) months for all lower collegiate courts; and 3) Within three (3) months for all other lower courts. (Section 15[1], Article VIII, Ibid.) The periods for lower collegiate courts and lower courts may be reduced by the Supreme Court. (Ibid.)

a) Upon expiration of periods Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period. (Section 15[3], Article VIII, Ibid.) Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay. (Section 15[4], Article VIII, Ibid.)

b) When deemed submitted for decision or resolution A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pending, brief, or memorandum required by the Rules of Court or by the court itself. (Section 15[2], Article VIII, Ibid.) f. REPORT TO THE PRESIDENT AND CONGRESS The Supreme Court shall, within thirty (30) days from the opening of each regular session of the Congress, submit to the President and the Congress an annual report on the operations and activities of the Judiciary. (Section 16, Article VIII, Ibid.)

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VIII. Constitutional Commissions

A. Common provisions 1. INDEPENDENT The Constitutional Commissions, which shall be independent, are: 1) The Civil Service Commission (CSC); 2) The Commission on Elections (COMELEC); and 3) The Commission on Audit (COA). (Section 1, Part A, Article IX, 1987 Constitution) a. No reapointments The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. (Section 1[2], Part B, C, D, Article IX, Ibid.) Civil Service Commission: The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. (Section 1[2], Part B, Ibid.) Commission on Elections: The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. (Section 1[2], Part C, Ibid.) Commission on Audit: The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, one Commissioner for five years, and the other Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. (Section 1[2], Part D, Article IX, Ibid.)

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1) The 4 situations where prohibition is applicable There are four situations where this provision will apply: 1) The first situation is where an ad interim appointee to the COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year term. Such person cannot be reappointed to the COMELEC, whether as a member or as a chairman, because he will then be actually serving more than seven years. 2) The second situation is where the appointee, after confirmation, serves a part of his term and then resigns before his seven-year term of office ends. Such person cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. 3) The third situation is where the appointee is confirmed to serve the unexpired term of someone who died or resigned, and the appointee completes the unexpired term. Such person cannot be reappointed, whether as a member or chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. 4) The fourth situation is where the appointee has previously served a term of less than seven years, and a vacancy arises from death or resignation. Even if it will not result in his serving more than seven years, a reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution. This provision refers to the first appointees under the Constitution whose terms of office are less than seven years, but are barred from ever being reappointed under any situation. (Matibag v. Benipayo, En Banc, G.R. No. 149036, 02 Aprl 2002)

2) Prohibition on re-appointment of “any kind” GENERAL RULE: The phrase “without reappointment” appears twice. The first phrase prohibits reappointment of any person previously appointed for a term of seven years. The second phrase prohibits reappointment of any person previously appointed for a term of five or three years pursuant to the first set of appointees under the Constitution. In either case, it does not matter if the person previously appointed completes his term of office for the intention is to prohibit any reappointment of any kind. (Ibid.) EXCEPTION: However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral action could start and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile the confirming power of the Commission on Appointments. (Ibid.)

a) Prohibition applies only if confirmed by the Commission on Appointment The phrase “without reappointment” applies only to one who has been appointed by the President and confirmed by the Commission on Appointments, whether or not such person completes his term of office. There must be a confirmation by the Commission on Appointments of the previous appointment before the prohibition on reappointment can apply. To hold otherwise will lead to absurdities and negate the President’s power to make ad interim appointments. (Ibid.)

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In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad interim appointments first issued to appointees. If such ad interim appointments can no longer be renewed, the President will certainly hesitate to make ad interim appointments because most of her appointees will effectively be disapproved by mere inaction of the Commission on Appointments. This will nullify the constitutional power of the President to make ad interim appointments, a power intended to avoid disruptions in vital government services. This Court cannot subscribe to a proposition that will wreak havoc on vital government services. (Ibid.)

b) Reasons for prohibition The prohibition on reappointment is common to the three constitutional commissions. The framers of the present Constitution prohibited reappointments for two reasons: 1) The first is to prevent a second appointment for those who have been previously appointed and confirmed even if they served for less than seven years. 2) The second is to insure that the members of the three constitutional commissions do not serve beyond the fixed term of seven years. (Ibid.)

c) Prohibition against re-appointment v. Prohibition on temporary appointments The prohibition on reappointment is intended to insure that there will be no reappointment of any kind. On the other hand, the prohibition on temporary or acting appointments is intended to prevent any circumvention of the prohibition on reappointment that may result in an appointee’s total term of office exceeding seven years. The evils sought to be avoided by the twin prohibitions are very specific –reappointment of any kind and exceeding one’s term in office beyond the maximum period of seven years. (Ibid.) In one case involving the renewal of ad interim appointments of COMELEC commisisoners due to non-action by the Commission on Appointments, it was held that the ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not violate the prohibition on reappointments because there were no previous appointments that were confirmed by the Commission on Appointments. A reappointment presupposes a previous confirmed appointment. The same ad interim appointments and renewals of appointments will also not breach the seven-year term limit because all the appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed term expiring on February 2, 2008. Any delay in their confirmation will not extend the expiry date of their terms of office. Consequently, there is no danger whatsoever that the renewal of the ad interim appointments of these three respondents will result in any of the evils intended to be exorcised by the twin prohibitions in the Constitution. The continuing renewal of the ad interim appointment of these three respondents, for so long as their terms of office expire on February 2, 2008, does not violate the prohibition on reappointments in Section 1 (2), Article IX-C of the Constitution. (Ibid.) 2. INTERNAL RULES Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or before any of its offices. (Section 6, Part A, Article IX, 1987 Constitution)

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Such rules however shall not diminish, increase, or modify substantive rights. (Section 6, Part A, Article IX, Ibid.) 3. DECISION a. Majority vote Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty (60) days from the date of its submission for decision or resolution. (Section 7, Part A, Article IX, Ibid.) b. When deemed submitted for decision or resolution A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. (Section 7, Part A, Article IX, Ibid.) Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty (30) days from receipt of a copy thereof. (Section 7, Part A, Article IX, Ibid.) 4. ANCILLARY FUNCTIONS Each Commission shall perform such other functions as may be provided by law. (Section 8, Part A, Article IX, Ibid.) 5. APPOINTMENT a. By the President with consent of Commission on Appointments The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven (7) years without reappointment. (Section 1[2], Part B, C, and D, Article IX, Ibid.) b. Vacancy appointment only for unexpired term Appointment to any vacancy shall be only for the unexpired term of the predecessor. (Section 1[2], Part B, C, and D, Article IX, Ibid.) c. No appointment or designation in temporary/acting capacit In no case shall any Member be appointed or designated in a temporary or acting capacity. (Section 1[2], Part B, C, and D, Article IX, Ibid.)

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d. Ban on appointment

1) Election candidate No candidate who has lost in any election shall, within one (1) year after such election, be appointed to any office in the Government or any government-owned or controlled corporations or in any of their subsidiaries. (Section 6, Part B, Article IX, Ibid.)

2) Elective official No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. (Section 7, Part B, Article IX, Ibid.)

3) Appointive official Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. (Paragraph 2, Section 7, Part B, Article IX, Ibid.)

B. Institutional independence safeguards

BAR EXAM TIPS | Frequency: Moderate WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: independence, qualifications and disqualifications, security of appointment and impeachment, no temporary or acting capacity appointment, vacancy

1. CREATED BY THE CONSTITUTION The Constitutional Commissions are created by the 1987 Constitution. (Article IX, 1987 Constitution) 2. INDEPENDENT The Constitutional Commissions are expressly described as independent in the 1987 Constitution. (Section 1, Part A, Article IX, Ibid.) Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as “independent.” Although essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions. Each of these Commissions conducts its own proceedings under the applicable laws and its own rules and in the exercise of its own discretion. Its decisions, orders and rulings are subject only to review on Certiorari by this Court as provided by

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the Constitution in Article IX-A, Section 7. (Brillantes, Jr. v. Yorac, En Banc, 18 December 1990) 3. POWERS AND FUNCTIONS DERIVED FROM THE CONSTITUTION The powers and functions of the Constitutional Commissions are derived from the 1987 Constitution. (Part B, C, and D, Article IX, Ibid.) 4. QUALIFICATIONS AND DISQUALIFICATIONS The Chairperson and the Members are subject to qualifications and disqualifiactions under the 1987 Constitution. (Part B, C, and D, Article IX, Ibid.) 5. SECURITY OF TENURE AND IMPEACHMENT The Chairperson and the Members may only be removed by impeachment under the 1987 Constitution. (Part B, C, and D, Article IX, Ibid.) 6. LONG AND GUARANTEED TERM OF OFFICE The term of office of the Chairperson and the Members is guaranteed and long at seven (7) years under the 1987 Constitution. (Paragraph 2, Section 1, Part B, C, and D, Article IX, Ibid.) 7. STAGGERED TERMS OFFICE The terms of office of the Chairperson and the Members are staggered to avoid appointment of the majority by the same President. (Paragraph 2, Section 1, Part B, C, and D, Article IX, Ibid.) 8. NO REAPPOINTMENT The Chairperson and the Members may not be reappointed. (Ibid.) 9. NO APPOINTMNENT OR DESIGNATION IN TEMPORARY OR ACTING CAPACITY The Chairperson and the Members may not be appointed or designated in a temporary or acting capacity. (Ibid.) Each of the Constitutional Commissions conducts its own proceedings under the applicable laws and its own rules and in the exercise of its own discretion… The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That discretion cannot be exercised for it, even with its consent, by the President of the Philippines. (Brillantes, Jr. v. Yorac, supra.) A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established to justify its revocation. (Ibid.) In the choice of the Acting Chairman, the members of the Commission on Elections would most likely have been guided by the seniority rule as they themselves would

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have appreciated it. In any event, that choice and the basis thereof were for them and not the President to make. (Ibid.)

BAR EXAM QUESTION

(Question V, Political Law, 2018 Bar Exam) State whether or not the following acts are constitutional: (2% each) (c) The designation by the President of an acting Associate Commissioner of the Civil Service Commission; Suggested Answer: It is unconstitutional. The 1987 Constitution prohibits appointment or designation of a Commissioner of the Civil Service Commission in a temporary or acting capacity.

10. VACANCY APPOINTMNENT FOR UNEXPIRED TERM ONLY Appointment to any vacancy shall be only for the unexpired term of the predecessor. (Ibid.) An ad interim appointment is characterized “as a permanent appointment that takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office.” Notwithstanding, it has also ben positively ruled that “an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office.” (Calderon v. COMELEC, En Banc, G.R. No. 191890, 04 December 2012) An ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral action could start and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile the confirming power of the Commission on Appointments. (Matibag v. Benipayo, G.R. No. 149036, 02 April 2002) 11. SALARIES ARE FIXED BY LAW AND MAY NOT BE DECREASED DURING TENURE The salary of the Chairman and the Members shall be fixed by law and shall not be decreased during their tenure. (Section 3, Part A, Article IX, Ibid.) 12. OFFICIALS AND EMPLOYEES The Constitutional Commissions shall appoint their officials and employees in accordance with law. (Section 4, Part A, Article IX, Ibid.)

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13. FISCAL AUTONOMY The Constitutional Commissions shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released. (Section 5, Part A, Article IX, Ibid.) As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions. (Bengzon v. Drilon, G.R. No. 103524, 15 April 1992) Fiscal autonomy means freedom from outside control. (Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by the Retired Chief/Associate Justices of the Supreme Court, En Banc, A.M. No. 11-7-10-SC, 31 July 2012) 14. INTERNAL RULES OF PROCEDURE Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or before any of its offices. Such rules however shall not diminish, increase, or modify substantive rights. (Section 6, Part A, Article IX, Ibid.) 15. MAJORITY VOTE IN DECISION-MAKING Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty (60) days from the date of its submission for decision or resolution. (Section 7, Part A, Article IX, Ibid.) A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. (Ibid.) Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. (Ibid.) a. Majority of all members, not just those who participated It is the majority vote of all its members and not only those who participated and took part in the deliberations. (Estrella v. COMELEC, G.R. No. 160465, 27 May 2004) b. Decision, binding only after promulgation A decision becomes binding only after its promulgation. If at the time it is promulgated, a judge or member of the collegiate court who had earlier signed or registered his vote

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has vacated office, his vote on the decision must automatically be withdrawn or cancelled. (Dumayas v. COMELEC, G.R. Nos. 141952-53, 20 April 2001)

C. Powers and functions

BAR EXAM TIPS | Frequency: Moderate WHAT CONCEPTS AND PRINCIPLES TO FOCUS ON: CSC/COMELEC/COA powers and functions, administration

1. CIVIL SERVICE COMMISSION (CSC) a. Civil Service The Civil Service shall be administered by the Civil Service Commission. (Section 1[1], Part B, Article IX, 1987 Constitution)

1) All parts of the Government, including GOCCs with original charters The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. (Section 2[1], Part B, Article IX, Ibid.)

2) Merit and fitness Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy-determining, primarily confidential, or highly technical, by competitive examination. (Section 2[2], Part B, Article IX, Ibid.)

3) Due process No officer or employee of the civil service shall be removed or suspended except for cause provided by law. (Section 2[3], Part B, Article IX, Ibid.)

a) Temporary employees Temporary employees of the Government shall be given such protection as may be provided by law. (Section 2[6], Part B, Article IX, Ibid.)

4) No electioneering or partisan political campaign No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. (Section 2[4], Part B, Article IX, Ibid.)

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5) Right to self-organization The right to self-organization shall not be denied to government employees. (Section 2[5], Part B, Article IX, Ibid.) While the right to self-organization is absolute, the right of government employees to collective bargaining and negotiation is subject to limitations. (GSIS Family Bank Employees Union v. Villanueva, G.R. No. 210773, 23 January 2019)

a) No bargaining on employment terms and conditions fixed by law In contrast with the private sector, the terms and conditions of employment of government workers are fixed by the legislature; thus, the negotiable matters in the public sector are limited to terms and conditions of employment that are not fixed by law. (Ibid.) Instead of a collective bargaining agreement or negotiation, government employees must course their petitions for a change in the terms and conditions of their employment through the Congress for the issuance of new laws, rules, or regulations. (Ibid.)

a) No right to strike At present, in the absence of any legislation allowing government employees to strike, recognizing their right to do so, or regulating the exercise of the right, they are prohibited from striking, by express provision of Memorandum Circular No. 6 and as implied in E.O. No. 180. (SSS v. CA, G.R. No. 85279, 28 July 1989)

6) Career Service The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. (Section 3, Part B, Article IX, 1987 Constitution)

a) Merit and Rewards System It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. (Section 3, Part B, Article IX, Ibid.)

b) Annual Reports to the President and Congress It shall submit to the President and the Congress an annual report on its personnel programs. (Section 3, Part B, Article IX, Ibid.)

7) Oath or affirmation to defend the Constitution All public officers and employees shall take an oath or affirmation to uphold and defend this Constitution. (Section 4, Part B, Article IX, Ibid.)

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8) Standardization of Compensation The Congress shall provide for the standardization of compensation of government officials and employees, including those in government-owned or controlled corporations with original charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for their positions. (Section 5, Part B, Article IX, Ibid.)

a) No double compensation No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. (Section 8, Part B, Article IX, Ibid.) Pensions or gratuities shall not be considered as additional, double, or indirect compensation. (Paragraph 2, Section 8, Part B, Article IX, Ibid.)

b) Separation pay and retirement benefits, not allowed Absent clear and unequivocal statutory authority, the grant of both separation pay and retirement benefits violates the constitutional proscription on additional compensation. (Herrera v. NPC, G.R. No. 166570, 18 December 2009)

BAR EXAM QUESTION

(Question B.16, Political Law, 2019 Bar Exam) Under the 1987 Constitution, to whom does each duty/ power/ privilege/ prohibition / disqualification apply: (c) The authority to provide for the standardization of compensation of government officials and employees. (1%) The Congress

2. COMMISSION ON ELECTIONS (COMELEC) a. Powers and functions The Commission on Elections shall exercise the following powers and functions: 1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. 2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

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Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. 3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. 4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. 5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens’ arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law. 6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. 7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies. 8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision. 9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall. (Section 2, Part C, Article IX, Ibid.) b. En Banc or 2 Divisions The Commission on Elections may sit en banc or in two divisions. (Section 3, Part C, Article IX, Ibid.)

1) Division All such election cases shall be heard and decided in division. (Section 3, Part C, Article IX, Ibid.)

2) En banc Motions for reconsideration of decisions shall be decided by the Commission en banc. (Section 3, Part C, Article IX, Ibid.)

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a) Quasi-judicial functions Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a petition for the denial or cancellation of a certificate of candidacy must be heard summarily after due notice. It is thus clear that cancellation proceedings involve the exercise of the quasi-judicial functions of the COMELEC which the COMELEC in division should first decide. (Bautista v. COMELEC, En Banc, G.R. No. 154796-97, 23 October 2003) A “quasi-judicial function” is a term which applies to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action and to exercise discretion of a judicial nature. (Villarosa v. COMELEC, En Banc, G.R. No. 133927, 29 November 1999)

b) Administrative functions The constitutional provision requiring a motion for reconsideration before the COMELEC En Banc may take action is confined only to cases where the COMELEC exercises its quasi-judicial power. It finds no application, however, in matters concerning the COMELEC’s exercise of administrative functions. (Jalosjos v. COMELEC, En Banc, G.R. No. 205033, 18 June 2013) The term “administrative” connotes, or pertains, to “administration, especially management, as by managing or conducting, directing or superintending, the execution, application, or conduct of persons or things. It does not entail an opportunity to be heard, the production and weighing of evidence, and a decision or resolution thereon.” (Villarosa v. COMELEC, supra.) The COMELEC’s denial of due course to and/or cancellation of a CoC in view of a candidate’s disqualification to run for elective office based on a final conviction is subsumed under its mandate to enforce and administer all laws relating to the conduct of elections. Accordingly, in such a situation, it is the COMELEC’s duty to cancel motu proprio the candidate’s CoC, notwithstanding the absence of any petition initiating a quasi-judicial proceeding for the resolution of the same. (Jalosjos v. COMELEC, supra.)

BAR EXAM QUESTION

VIII (Question VIII, Political Law, 2018 Bar Exam)

Two petitions for the cancellation of Certificate of Candidacy (CoC)/Denial of Due Course were filed with the Comelec against two candidates running as municipal mayors of different towns. The first petition was against Anselmo. Years ago, Anselmo was charged and convicted of the crime of rape by final judgment, and was sentenced to suffer the principal penalty of reclusion perpetua which carried the accessory penalty of perpetual absolute disqualification. While Anselmo was in prison, the President commuted his sentence and he was discharged from prison.

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The second petition was against Ambrosio. Ambrosio’s residency was questioned because he was allegedly a “green card holder,” i.e., a permanent resident of the US, as evidenced by a certification to this effect from the US Embassy. Acting on the recommendations of its Law Department, the Comelec en banc motu proprio issued two resolutions granting the petitions against Anselmo and Ambrosio. Both Anselmo and Ambrosio filed separate petitions with the Supreme Court assailing the resolutions cancelling their respective CoCs. Both claimed that the Comelec en banc acted with grave abuse of discretion amounting to lack or excess of jurisdiction because the petitions should have first been heard and resolved by one of the Comelec’s Divisions. Are Anselmo and Ambrosio correct? (5%) Suggested Answer: Both Anselmo and Ambrosio are correct. Answer Under jurisprudence and COMELEC Rules of Procedure, a petition for the denial or cancellation of a certificate of candidacy must be heard summarily after due notice. It is thus clear that cancellation proceedings involve the exercise of the quasi-judicial functions of the COMELEC which the COMELEC in division should first decide. Rule However, if the COMELEC En Banc may also motu proprio exercise its administrative functions to deny due course and/or to a certificate of candidacy in view of a candidate’s disqualification to run for elective office based on a final conviction. Rule The key is knowing which of the function and power was exercised by COMELEC. In the case at bar, it appears from the facts that the COMELEC exercised its quasi-judicial function and power when it resolved the petitions against Anselmo and Ambrosio. The resolution of the COMELEC was a ruling on the petitions, which is involved deciding on the merits of the case as evidenced by the fact that it was based on the recommendation of the Law Department which presumably evaluated the case. Apply Thus, Anselmo and Ambrosio are correct. Conclusion

c. INTERNAL RULES It and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. (Ibid.)

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d. SPECIAL POWER TO SUPERVISE OR REGULATE DURING ELECTION The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. (Section 4, Part C, Article IX, Ibid.) Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. (Section 4, Part C, Article IX, Ibid.)

1) Does not extend to ownership per se Section 4, Article IX-C of the Constitution only grants COMELEC supervisory and regulatory powers over the enjoyment or utilization “of all franchises or permits for the operation,” inter alia, of transportation and other public utilities. The COMELEC’s constitutionally delegated powers of supervision and regulation do not extend to the ownership per se of PUVs and transport terminals, but only to the franchise or permit to operate the same. (1-United Transport Koalisyon [1-UTAK] v. COMELEC, En Banc, G.R. No. 206020, 14 April 2015) e. RECOMMENDATION FOR ELECTION-RELATED OFFENSES No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission. (Section 5, Part C, Article IX, Ibid.) f. FREE AND OPEN PARTY SYSTEM A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of Article IX of the Constitution – Constitutional Commissions. (Section 6, Part C, Article IX, Ibid.)

1) Votes cast only for party-list

a) Political parties, organizations, coalitions, party-list GENERAL RULE: No votes cast in favor of a political party, organization, or coalition shall be valid. (Section 7, Part C, Article IX, Ibid.) EXCEPTION: … except for those registered under the party-list system as provided in this Constitution. (Section 7, Part C, Article IX, Ibid.)

b) Party-list system Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters’ registration boards, boards of election

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inspectors, boards of canvassers, or other similar bodies. (Section 8, Part C, Article IX, Ibid.) However, they shall be entitled to appoint poll watchers in accordance with law. (Section 8, Part C, Article IX, Ibid.) g. ELECTION PERIOD Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety (90) days before the day of the election and shall end thirty days (30) after. (Section 9, Part C, Article IX, Ibid.)

1) Non-harassment, non-discrimination Bona fide candidates for any public office shall be free from any form of harassment and discrimination. (Section 10, Part C, Article IX, Ibid.)

2) Election funds 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. (Section 11, Part C, Article IX, Ibid.) 3. COMMISSION ON AUDIT (COA) a. Powers and functions The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters, and on a post-audit basis: 1) Constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; 2) Autonomous state colleges and universities; 3) Other government-owned or controlled corporations and their subsidiaries; and 4) Such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by law or the granting institution to submit to such audit as a condition of subsidy or equity. (Section 2[1], Part D, Article IX, Ibid.)

1) Internal control system of audited agencies However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. (Ibid.)

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2) General accounts, vouchers, supporting documents It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto. (Section 2[1], Part D, Article IX, Ibid.) b. Exclusive Authority The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties. (Section 2[2], Part D, Article IX, Ibid.) c. No law exempting Government entity from audit No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit. (Section 3, Part D, Article IX, Ibid.)

BAR EXAM QUESTION

(Question XII, Political Law, 2017 Bar Exam) The Congress establishes by law Philippine Funds, Inc., a private corporation, to receive foreign donations coming from abroad during national and local calamities and disasters, and to enable the unhampered and speedy disbursements of the donations through the mere action of its Board of Directors. Thereby, delays in the release of the donated funds occasioned by the stringent rules of procurement would be avoided. Also, the releases would not come under the jurisdiction of the Commission on Audit (COA). (b) Can the Congress pass the law that would exempt the foreign grants from the jurisdiction of the COA? Explain your answer. (3%) Suggested Answer: No. Congress cannot pass such a law since it violates the Constitutional prohibition that no law shall be passed exempting any entity of the Government or its subsidiary in any guise whatever, or any investment of public funds, from the jurisdiction of the Commission on Audit.

d. Annual Report to the President and Congress The Commission 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 corporations, and non-governmental entities subject to its audit,

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and recommend measures necessary to improve their effectiveness and efficiency. (Section 4, Part D, Article IX, Ibid.) It shall submit such other reports as may be required by law. (Section 4, Part D, Article IX, Ibid.)

BAR EXAM QUESTION

(Question B.16, Political Law, 2019 Bar Exam) Under the 1987 Constitution, to whom does each duty/power/privilege/ prohibition/disqualification apply: (a) The authority to keep the general accounts of the Government and for such period provided by law, preserve the vouchers and other supporting documents pertaining thereto. (1%) The Commission on Audit (COA)

D. Composition and qualifications of members 1. CIVIL SERVICE COMMISSION (CSC) a. Composition The Civil Service Commission shall be composed of a Chairman and two (2) Commissioners. (Section 1[1], Part B, Article IX, 1987 Constitution) b. Qualifications They shall be: 1) Natural-born citizens of the Philippines; 2) At least thirty-five (35) years of age, at the time of their appointment; 3) With proven capacity for public administration; and, 4) Must not have been candidates for any elective position in the elections immediately preceding their appointment. (Section 1[1], Part B, Article IX, Ibid.) 2. COMMISSION ON ELECTIONS (COMELEC) a. Composition There shall be a Commission on Elections composed of a Chairman and six (6) Commissioners. (Section 1[1], Part C, Article IX, Ibid.) A majority thereof, including the Chairman, shall be Members of the Philippine Bar who have been engaged in the practice of law for at least ten (10) years. (Ibid.)

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b. Qualifications They shall be: 1) Natural-born citizens of the Philippines; 2) At least thirty-five (35) years of age, at the time of their appointment; 3) Holders of a college degree; and 4) Must not have been candidates for any elective position in the immediately preceding elections. (Section 1[1], Part C, Article IX, Ibid.) 3. COMMISSION ON AUDIT (COA) a. Composition There shall be a Commission on Audit composed of a Chairman and two (2) Commissioners. (Section 1[1], Part D, Article IX, Ibid.) At no time shall all Members of the Commission belong to the same profession. (Section 1[1], Part D, Article IX, Ibid.) b. Qualifications They shall be: 1) Natural-born citizens of the Philippines; 2) At least thirty-five (35) years of age, at the time of their appointment; 3) Certified public accountants with not less than ten (10) years of auditing experience, or members of the Philippine Bar who have been engaged in the practice of law for at least ten (10) years;’ and 4) Must not have been candidates for any elective position in the elections immediately preceding their appointment. (Section 1[1], Part D, Article IX, Ibid.)

E. Prohibited offices and interests 1. ABSOLUTE PROHIBITION a. Holding any other office or employment No Member of a Constitutional Commission shall, during his tenure, hold any other office or employment. (Section 2, Part A, Article IX, 1987 Constitution) b. Practicing any profession No Member of a Constitutional Commission shall he engage in the practice of any profession. (Ibid.) c. Active management or control of any business No Member of a Constitutional Commission shall be in the active management or control of any business which in any way be affected by the functions of his office. (Ibid.)

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d. Be financially interested in any Government transaction No Member of a Constitutional Commission shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries. (Ibid.)