NOTES ON POLITICAL LAW REVIEW

Kenneth and King C. Hizon _________________________________________________________________________________________________________________

UNIVERSITY OF SANTO TOMAS

Faculty of Civil Law
A.Y. 2013-2014

POLITICAL LAW REVIEW

Based on the Lectures of Atty. Edwin Sandoval

TABLE OF CONTENTS

TOPIC PAGE
RECENT JURISPRUDENCE
Three-Term Limit Rule: Aldovino v. COMELEC 2
Summary of other relevant jurisprudence on the Three-Term 4
Limit Rule
Disbursement Acceleration Fund case: Araullo v. Aquino 7
Main Decision
Separate Decision of Justice Brion 16
Cybercrime Prevention Act case: Disini v. Secretary of Justice 18
Constitutional Provisions
Unconstitutional Provisions 25
Party-List System case 29
Previous Relevant Jurisdiction
Atong Paglaum v. COMELEC 33
Political Law Revalida Questions 36
LECTURE NOTES 65

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Kenneth and King C. Hizon _________________________________________________________________________________________________________________

THREE-TERM LIMIT RULE

SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N. TALABONG v. COMMISSION ON ELECTIONS AND
WILFREDO F. ASILO
G.R. No. 184836, 23 December 2009, EN BANC (Brion, J.)

Asilo’s 2004-2007 term was not interrupted by the Sandiganbayan-imposed preventive suspension in 2005, as preventive
suspension does not interrupt an elective official’s term. Thus, the COMELEC refused to apply the legal command of Section 8, Article
X of the Constitution when it granted due course to Asilo’s certificate of candidacy for a prohibited fourth term.

Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three consecutive terms: for the 1998-2001, 2001-2004,
and 2004-2007 terms, respectively. In September 2005 or during his 2004-2007 term of office, the Sandiganbayan preventively
suspended him for 90 days in relation with a criminal case he then faced. This Court, however, subsequently lifted the
Sandiganbayan’s suspension order; hence, he resumed performing the functions of his office and finished his term.

In the 2007 election, Asilo filed his certificate of candidacy for the same position. The petitioners Simon B. Aldovino, Jr.,
Danilo B. Faller, and Ferdinand N. Talabong (the petitioners) sought to deny due course to Asilo’s certificate of candidacy or to cancel
it on the ground that he had been elected and had served for three terms; his candidacy for a fourth term therefore violated the
three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of RA 7160.

The COMELEC’s Second Division ruled against Aldovino, et al. It reasoned out that the three-term limit rule did not apply, as
Asilo failed to render complete service for the 2004-2007 term because of the suspension the Sandiganbayan had ordered. The
COMELEC en banc refused to reconsider the Second Division’s ruling.

ISSUES:

1. Whether preventive suspension of an elected local official is an interruption of the three-term limit rule; and
2. Whether preventive suspension is considered involuntary renunciation as contemplated in Section 43(b) of RA 7160

The Three-term Limit Rule: The Constitutional Provision Analyzed

Section 8, Article X of the Constitution states:

Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law,
shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he
was elected.

Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference in wording does not assume
any significance in this case. As worded, the constitutional provision fixes the term of a local elective office and limits an elective
official’s stay in office to no more than three consecutive terms. This is the first branch of the rule embodied in Section 8, Article X.

Significantly, this provision refers to a “term” as a period of time – three years – during which an official has title to office
and can serve. The word “term” in a legal sense means a fixed and definite period of time which the law describes that an officer
may hold an office. According to Mechem, the term of office is the period during which an office may be held. Upon expiration of
the officer’s term, unless he is authorized by law to holdover, his rights, duties and authority as a public officer must ipso
facto cease. In the law of public officers, the most and natural frequent method by which a public officer ceases to be such is by the
expiration of the terms for which he was elected or appointed.

The term means the time during which the officer may claim to hold office as of right, and fixes the interval after which the
several incumbents shall succeed one another. The “limitation” under this first branch of the provision is expressed in the negative –
“no such official shall serve for more than three consecutive terms.” This formulation – no more than three consecutive terms – is a
clear command suggesting the existence of an inflexible rule. While it gives no exact indication of what to “serve. . . three
consecutive terms” exactly connotes, the meaning is clear – reference is to the term, not to the service that a public official may
render. In other words, the limitation refers to the term. The second branch relates to the provision’s express initiative to prevent
any circumvention of the limitation through voluntary severance of ties with the public office; it expressly states that voluntary

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Kenneth and King C. Hizon _________________________________________________________________________________________________________________
renunciation of office “shall not be considered as an interruption in the continuity of his service for the full term for which he was
elected.” This declaration complements the term limitation mandated by the first branch.

A notable feature of the second branch is that it does not textually state that voluntary renunciation is the only actual
interruption of service that does not affect “continuity of service for a full term” for purposes of the three-term limit rule. It is a pure
declaratory statement of what does not serve as an interruption of service for a full term, but the phrase “voluntary renunciation,”
by itself, is not without significance in determining constitutional intent.

The word “renunciation” carries the dictionary meaning of abandonment. To renounce is to give up, abandon, decline, or
resign. It is an act that emanates from its author, as contrasted to an act that operates from the outside. Read with the definition of
a “term” in mind, renunciation, as mentioned under the second branch of the constitutional provision, cannot but mean an act that
results in cutting short the term, i.e., the loss of title to office. The descriptive word “voluntary” linked together with “renunciation”
signifies an act of surrender based on the surenderee’s own freely exercised will; in other words, a loss of title to office by conscious
choice. In the context of the three-term limit rule, such loss of title is not considered an interruption because it is presumed to
be purposely sought to avoid the application of the term limitation.

The framers’ intent apparently was to close all gaps that an elective official may seize to defeat the three-term limit rule, in
the way that voluntary renunciation has been rendered unavailable as a mode of defeating the three-term limit rule.

Conclusion Based on Law and Jurisprudence

From all the above, we conclude that the “interruption” of a term exempting an elective official from the three-term
limit rule is one that involves no less than the involuntary loss of title to office. The elective official must have involuntarily left
his office for a length of time, however short, for an effective interruption to occur. This has to be the case if the thrust of Section
8, Article X and its strict intent are to be faithfully served, i.e., to limit an elective official’s continuous stay in office to no more
than three consecutive terms, using “voluntary renunciation” as an example and standard of what does not constitute an
interruption.

Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective interruption of service
within a term, as we held in Montebon. On the other hand, temporary inability or disqualification to exercise the functions of an
elective post, even if involuntary, should not be considered an effective interruption of a term because it does not involve the loss of
title to office or at least an effective break from holding office; the office holder, while retaining title, is simply barred from
exercising the functions of his office for a reason provided by law.

An interruption occurs when the term is broken because the office holder lost the right to hold on to his office, and cannot
be equated with the failure to render service. The latter occurs during an office holder’s term when he retains title to the office but
cannot exercise his functions for reasons established by law. Of course, the term “failure to serve” cannot be used once the right to
office is lost; without the right to hold office or to serve, then no service can be rendered so that none is really lost.

To put it differently although at the risk of repetition, Section 8, Article X – both by structure and substance – fixes an elective
official’s term of office and limits his stay in office to three consecutive terms as an inflexible rule that is stressed, no less, by citing
voluntary renunciation as an example of a circumvention. The provision should be read in the context of interruption of term, not in
the context of interrupting the full continuity of the exercise of the powers of the elective position. The “voluntary renunciation” it
speaks of refers only to the elective official’s voluntary relinquishment of office and loss of title to this office. It does not speak of
the temporary “cessation of the exercise of power or authority” that may occur for various reasons, with preventive suspension
being only one of them.

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NOTES ON POLITICAL LAW REVIEW
Kenneth and King C. Hizon _________________________________________________________________________________________________________________
Relevant Jurisprudence on the Three-term Limit Rule

CASE ISSUE DECISION/DOCTRINE

Lonzanida v. whether the The clear intent of the framers of the constitution to bar any
Commission on disqualification on the basis attempt to circumvent the three-term limit by a voluntary
Elections of the three-term limit renunciation of office and at the same time respect the
applies if the election of the people’s choice and grant their elected official full service of a
public official (to be strictly term is evident in this provision. Voluntary renunciation of a
accurate, the proclamation term does not cancel the renounced term in the computation
as winner of the public of the three term limit; conversely, involuntary severance from
official) for his supposedly office for any length of time short of the full term provided by
third term had been law amounts to an interruption of continuity of service. The
declared invalid in a final petitioner vacated his post a few months before the next
and executory judgment mayoral elections, not by voluntary renunciation but in
compliance with the legal process of writ of execution issued by
the COMELEC to that effect. Such involuntary severance from
office is an interruption of continuity of service and thus, the
petitioner did not fully serve the 1995-1998 mayoral term.

It is severance from office, or to be exact, loss of title, that

renders the three-term limit rule inapplicable.
Ong v. Alegre whether there had been a Despite the ruling that Ong was never entitled to the office
completed term for (and thus was never validly elected), the Court concluded that
purposes of the three-term there was nevertheless an election and service for a full term in
limit disqualification as contemplation of the three-term rule based on the following
their final judgments in the premises: (1) the final decision that the third-termer lost the
electoral contest came election was without practical and legal use and value, having
after the term of the been promulgated after the term of the contested office had
contested office had expired; and (2) the official assumed and continuously
expired so that the elective exercised the functions of the office from the start to the end
officials in these cases were of the term. The Court noted in Ong the absurdity and the
never effectively unseated deleterious effect of a contrary view – that the official
(referring to the winner in the election protest) would, under
the three-term rule, be considered to have served a term by
virtue of a veritably meaningless electoral protest ruling, when
another actually served the term pursuant to a proclamation
made in due course after an election. This factual variation led
the Court to rule differently from Lonzanida.

Rivera v. COMELEC The Court in Rivera rejected the theory that the official who
finally lost the election contest was merely a “caretaker of the
office” or a mere “de facto officer.” The Court obeserved that
Section 8, Article X of the Constitution is violated and its
purpose defeated when an official fully served in the same
position for three consecutive terms. Whether as “caretaker”
or “de facto” officer, he exercised the powers and enjoyed the
perquisites of the office that enabled him “to stay on
indefinitely.”

Although the election requisite was not actually present, the

Court still gave full effect to the three-term limitation because
of the constitutional intent to strictly limit elective officials to
service for three terms. By so ruling, the Court signalled how
zealously it guards the three-term limit rule. Effectively, these
cases teach us to strictly interpret the term limitation rule in
favor of limitation rather than its exception.

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Kenneth and King C. Hizon _________________________________________________________________________________________________________________
Adormeo v. whether the the official was not elected for three (3) consecutive
COMELEC disqualification applies if terms. The Court reasoned out that for nearly two years, the
the official lost in the official was a private citizen; hence, the continuity of his
regular election for the mayorship was disrupted by his defeat in the election for the
supposed third term, but third term.
was elected in a recall
election covering that term
Socrates v. Recall vis-à-vis three-term Edward Hagedorn served three full terms as mayor. As he was
Commission on limit disqualified to run for a fourth term, he did not participate in
Elections the election that immediately followed his third term. In this
election, the petitioner Victorino Dennis M. Socrates was
elected mayor. Less than 1 ½ years after Mayor Socrates
assumed the functions of the office, recall proceedings were
initiated against him, leading to the call for a recall
election. Hagedorn filed his certificate of candidacy for mayor
in the recall election, but Socrates sought his disqualification
on the ground that he (Hagedorn) had fully served three terms
prior to the recall election and was therefore disqualified to
run because of the three-term limit rule.

HELD: After three consecutive terms, an elective local official

cannot seek immediate reelection for a fourth term. The
prohibited election refers to the next regular election for the
same office following the end of the third consecutive
term. Any subsequent election, like a recall election, is no
longer covered by the prohibition for two reasons. First, a
subsequent election like a recall election is no longer an
immediate reelection after three consecutive terms. Second,
the intervening period constitutes an involuntary interruption
in the continuity of service.

Clearly, what the Constitution prohibits is an immediate

reelection for a fourth term following three consecutive
terms. The Constitution, however, does not prohibit a
subsequent reelection for a fourth term as long as the
reelection is not immediately after the end of the third
consecutive term. A recall election mid-way in the term
following the third consecutive term is a subsequent election
but not an immediate reelection after the third term.

Neither does the Constitution prohibit one barred from seeking

immediate reelection to run in any other subsequent election
involving the same term of office. What the Constitution
prohibits is a consecutive fourth term.

Latasa v. whether a municipal During the third term, the municipality was converted into a
Commission on mayor who had fully served city; the cityhood charter provided that the elective officials of
Elections for three consecutive terms the municipality shall, in a holdover capacity, continue to
could run as city mayor in exercise their powers and functions until elections were held
light of the intervening for the new city officials. The Court ruled that the conversion
conversion of the of the municipality into a city did not convert the office of the
municipality into a city municipal mayor into a local government post different from
the office of the city mayor – the territorial jurisdiction of the
city was the same as that of the municipality; the inhabitants
were the same group of voters who elected the municipal
mayor for 3 consecutive terms; and they were the same
inhabitants over whom the municipal mayor held power and

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authority as their chief executive for nine years.
Montebon v. The highest-ranking municipal councilor succeeded to the
Commission on position of vice-mayor by operation of law. The question posed
Elections when he subsequently ran for councilor was whether his
assumption as vice-mayor was an interruption of his term as
councilor that would place him outside the operation of the
three-term limit rule.

HELD: an interruption had intervened so that he could again

run as councilor. This result seemingly deviates from the
results in the cases heretofore discussed since the elective
official continued to hold public office and did not become a
private citizen during the interim. The common thread that
identifies Montebon with the rest, however, is that the elective
official vacated the office of councilor and assumed the higher
post of vice-mayor by operation of law. Thus, for a time he
ceased to be councilor – an interruption that effectively placed
him outside the ambit of the three-term limit rule.

Preventive Suspension and the Three-Term Limit Rule

A. Nature of Preventive Suspension

[17]
Preventive suspension – whether under the Local Government Code, the Anti-Graft and Corrupt Practices Act, or the
Ombudsman Act – is aninterim remedial measure to address the situation of an official who have been charged administratively
or criminally, where the evidence preliminarily indicates the likelihood of or potential for eventual guilt or liability.

Preventive suspension is imposed under the Local Government Code “when the evidence of guilt is strong and given the
gravity of the offense, there is a possibility that the continuance in office of the respondent could influence the witnesses or pose a
threat to the safety and integrity of the records and other evidence.”
1. Under the Anti-Graft and Corrupt Practices Act, it is imposed after a valid information (that requires a finding of
probable cause) has been filed in court,
2. While under the Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the evidence of guilt is
strong; and (a) the charge involves dishonesty, oppression or grave misconduct or neglect in the performance of duty;
or (b) the charges would warrant removal from the service; or (c) the respondent’s continued stay in office may
prejudice the case filed against him.

Notably in all cases of preventive suspension, the suspended official is barred from performing the functions of his office
and does not receive salary in the meanwhile, but does not vacate and lose title to his office; loss of office is a consequence that
only results upon an eventual finding of guilt or liability. Protection of the service goes only as far as a temporary prohibition on
the exercise of the functions of the official’s office; the official is reinstated to the exercise of his position as soon as the preventive
suspension is lifted. Thus, while a temporary incapacity in the exercise of power results, no position is vacated when a public official
is preventively suspended. This was what exactly happened to Asilo.

B. Preventive Suspension and the Intent of the Three-Term Limit Rule

Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be considered an
interruption that allows an elective official’s stay in office beyond three terms. A preventive suspension cannot simply be a term
interruption because the suspended official continues to stay in office although he is barred from exercising the functions and
prerogatives of the office within the suspension period. The best indicator of the suspended official’s continuity in office is
the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists.

A serious extended illness, inability through force majeure, or the enforcement of a suspension as a penalty, to cite some
involuntary examples, may prevent an office holder from exercising the functions of his office for a time without forfeiting title to
office. Preventive suspension is no different because it disrupts actual delivery of service for a time within a term. Adopting such
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Kenneth and King C. Hizon _________________________________________________________________________________________________________________
interruption ofactual service as the standard to determine effective interruption of term under the three-term rule raises at least
the possibility of confusion in implementing this rule, given the many modes and occasions when actual service may be interrupted
in the course of serving a term of office. The standard may reduce the enforcement of the three-term limit rule to a case-to-case
and possibly see-sawing determination of what an effective interruption is.

DISBURSEMENT ACCELERATION PROGRAM

DAP- MAIN DECISION:

MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG MAKABAYAN, et al., v. BENIGNO SIMEON C. AQUINO III, PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, et al.
G.R. No. 209287, 1 July 2014, EN BANC (Bersamin, J.)

FACTUAL ANTECEDENTS (Brion, J.):

In a Memorandum dated October 12, 2011, Secretary Florencio Abad of the DBM secured a formal confirmation of the President’s approval of the
DAP for a total of P72.11 billion. This was followed by subsequent Memoranda requesting for the omnibus authority: 1. to consolidate
savings/unutilized balances in fiscal year (FY) 2011 corresponding to completed or discontinued projects and their realignment; 2. to consolidate
savings/unutilized balances in FY 2012 corresponding to unfilled positions and completed or discontinued projects; and 3. for the withdrawal and
pooling of the available and unobligated balances, for both continuing and current allotments, of national government agencies as of June 30,
2012.

After the approval of the requests, DBM subsequently issued National Budget Circular (NBC) No. 541 authorizing Sec. Abad. to withdraw the
unobligated allotments of agencies that had low level of obligations as of June 30, 2012. The DAP funds were sourced from: 1. “savings” generated
by the government, as well as 2. the Unprogrammed Fund.

In September 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege speech in the Senate to reveal that some Senators, including himself, had
been allotted an additional P50 Million each as “incentive” for voting in favor of the impeachment of Chief Justice Renato C. Corona.

DBM’s Explanation

1. Sec. Abad issued a public statement explaining that the funds released to the Senators had been part of the DAP, a program designed by
the DBM to ramp up spending to accelerate economic expansion.
2. He clarified that the funds had been released to the Senators based on their letters of request for funding; and that it was not the first
time that releases from the DAP had been made because the DAP had already been instituted in 2011 to ramp up spending after sluggish
disbursements had caused the growth of the gross domestic product (GDP) to slow down.
3. Abad explained that the funds under the DAP were usually taken from:
a. unreleased appropriations under Personnel Services;
b. unprogrammed funds;
c. carry-over appropriations unreleased from the previous year; and
d. budgets for slow-moving items or projects that had been realigned to support faster-disbursing projects.

4. The DBM claimed that the DAP releases had been sourced from savings generated by the Government, and from unprogrammed funds;
and that the savings had been derived from
a. the pooling of unreleased appropriations, like unreleased Personnel Services appropriations that would lapse at the end of the year,
unreleased appropriations of slow-moving projects and discontinued projects per zero-based budgeting findings; and
b. the withdrawal of unobligated allotments also for slow-moving programs and projects that had been earlier released to the agencies
of the National Government.

DBM’s legal bases for DAP:

1. Section 25(5), Article VI of the 1987 Constitution, which granted to the President the authority to augment an item for his office in the
general appropriations law;
2. Section 49 (Authority to Use Savings for Certain Purposes) and Section 38 (Suspension of Expenditure Appropriations), Chapter 5, Book VI
of Executive Order (EO) No. 292 (Administrative Code of 1987); and
3. the General Appropriations Acts (GAAs) of 2011, 2012 and 2013, particularly their provisions on the (a) use of savings; (b) meanings of
savings and augmentation; and (c) priority in the use of savings.

ISSUES:

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1. Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution, which provides: “No money shall be paid out of the Treasury
except in pursuance of an appropriation made by law.”
2. Whether or not the DAP, NBC No. 541, and all other executive issuances allegedly implementing the DAP violate Sec. 25(5), Art. VI of the
1987 Constitution insofar as:

a. They treat the unreleased appropriations and unobligated allotments withdrawn from government agencies as “savings” as the term is
used in Sec. 25(5), in relation to the provisions of the GAAs of 2011, 2012 and 2013;
b. They authorize the disbursement of funds for projects or programs not provided in the GAAs for the Executive Department; and
c. They “augment” discretionary lump sum appropriations in the GAAs.

3. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the system of checks and balances, and (3) the principle of public
accountability enshrined in the 1987 Constitution considering that it authorizes the release of funds upon the request of legislators.

4. Whether or not factual and legal justification exists to issue a temporary restraining order to restrain the implementation of the DAP, NBC
No. 541, and all other executive issuances allegedly implementing the DAP.

HELD:

I. The Philippine Budget Cycle

Four phases comprise the Philippine budget process, specifically:

1. Budget Preparation;
2. Budget Legislation;
3. Budget Execution; and
4. Accountability.

Each phase is distinctly separate from the others but they overlap in the implementation of the budget during the budget year.

A. Budget Preparation

1. The budget preparation phase is commenced through the issuance of a Budget Call by the DBM. The Budget Call contains budget
parameters earlier set by the Development Budget Coordination Committee (DBCC) as well as policy guidelines and procedures to aid
government agencies in the preparation and submission of their budget proposals.
2. The Budget Call is of two kinds, namely: (1) a National Budget Call, which is addressed to all agencies, including state universities and
colleges; and (2) a Corporate Budget Call, which is addressed to all government-owned and -controlled corporations (GOCCs) and
government financial institutions (GFIs).
3. Following the issuance of the Budget Call, the various departments and agencies submit their respective Agency Budget Proposals to the
DBM.
4. DBM bureaus thereafter review the Agency Budget Proposals and come up with recommendations for the Executive Review Board,
comprised by the DBM Secretary and the DBM’s senior officials.
5. The DBM next consolidates the recommended agency budgets into the National Expenditure Program (NEP) and a Budget of
Expenditures and Sources of Financing (BESF). The NEP provides the details of spending for each department and agency by program,
activity or project (PAP), and is submitted in the form of a proposed GAA.
6. The NEP and BESF are thereafter presented by the DBM and the DBCC to the President and the Cabinet for further refinements or re-
prioritization. Once the NEP and the BESF are approved by the President and the Cabinet, the DBM prepares the budget documents for
submission to Congress.
7. The budget documents consist of: (1) the President’s Budget Message, through which the President explains the policy framework and
budget priorities; (2) the BESF, mandated by Section 22, Article VII of the Constitution, which contains the macroeconomic assumptions,
public sector context, breakdown of the expenditures and funding sources for the fiscal year and the two previous years; and (3) the NEP
8. Public or government expenditures are generally classified into two categories, specifically: (1) capital expenditures or outlays; and
(2) current operating expenditures. Capital expenditures are the expenses whose usefulness lasts for more than one year, and which
add to the assets of the Government, including investments in the capital of government-owned or controlled corporations and their
subsidiaries. Current operating expenditures are the purchases of goods and services in current consumption the benefit of which does
not extend beyond the fiscal year. The two components of current expenditures are those for personal services(PS), and those
for maintenance and other operating expenses (MOOE).

B. Budget Legislation aka Budget Authorization Phase

1. The Budget Legislation Phase covers the period commencing from the time Congress receives the President’s Budget, which is inclusive
of the NEP and the BESF, up to the President’s approval of the GAA. This phase is also known as the Budget Authorization Phase, and
involves the significant participation of the Legislative through its deliberations.
2. Initially, the President’s Budget is assigned to the House of Representatives’ Appropriations Committee on First Reading.
The Appropriations Committee and its various Sub-Committees schedule and conduct budget hearings to examine the PAPs of the
departments and agencies. Thereafter, the House of Representatives drafts the General Appropriations Bill (GAB).
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3. The GAB is sponsored, presented and defended by the House of Representatives’ Appropriations Committeeand Sub-Committees in
plenary session. As with other laws, the GAB is approved on Third Reading before the House of Representatives’ version is transmitted to
the Senate.
After transmission, the Senate conducts its own committee hearings on the GAB. To expedite proceedings, the Senate may conduct its
committee hearings simultaneously with the House of Representatives’ deliberations. The Senate’s Finance Committee and its Sub-
Committees may submit the proposed amendments to the GAB to the plenary of the Senate only after the House of Representatives has
formally transmitted its version to the Senate. The Senate version of the GAB is likewise approved on Third Reading
4. The House of Representatives and the Senate then constitute a panel each to sit in the Bicameral Conference Committee for the purpose
of discussing and harmonizing the conflicting provisions of their versions of the GAB.
5. The “harmonized” version of the GAB is next presented to the President for approval.
6. If, by the end of any fiscal year, the Congress shall have failed to pass the GAB for the ensuing fiscal year, the GAA for the preceding fiscal
year shall be deemed re-enacted and shall remain in force and effect until the GAB is passed by the Congress.

C. Budget Execution

1. With the GAA now in full force and effect, the next step is the implementation of the budget. The Budget Execution Phase is primarily the
function of the DBM, which is tasked to perform the following procedures, namely: (1) to issue the programs and guidelines for the
release of funds; (2) to prepare an Allotment and Cash Release Program; (3) to release allotments; and (4) to issue disbursement
authorities.
2. The implementation of the GAA is directed by the guidelines issued by the DBM. T
3. The DBM prepares an Allotment Release Program (ARP) and a Cash Release Program (CRP). TheARP sets a limit for allotments issued in
general and to a specific agency. The CRP fixes the monthly, quarterly and annual disbursement levels.
4. Allotments, which authorize an agency to enter into obligations, are issued by the DBM. Allotments are lesser in scope
than appropriations, in that the latter embrace the general legislative authority to spend. Allotments may be released in two forms –
through a comprehensive Agency Budget Matrix (ABM), or, individually, by SARO.
5. Armed with either the ABM or the SARO, agencies become authorized to incur obligations on behalf of the Government in order to
implement their PAPs.
6. In order to settle the obligations incurred by the agencies, the DBM issues a disbursement authority so that cash may be allocated in
payment of the obligations.
7. Actual disbursement or spending of government funds terminates the Budget Execution Phase and is usually accomplished through
the Modified Disbursement Scheme under wehich disbursements chargeable against the National Treasury are coursed through the
government servicing banks.

D. Accountability

1. Accountability is a significant phase of the budget cycle because it ensures that the government funds have been effectively and
efficiently utilized to achieve the State’s socio-economic goals. It also allows the DBM to assess the performance of agencies during the
fiscal year for the purpose of implementing reforms and establishing new policies.
2. An agency’s accountability may be examined and evaluated through (1) performance targets and outcomes; (2)budget accountability
reports; (3) review of agency performance; and (4) audit conducted by the Commission on Audit (COA).

II. DAP

a. DAP was a program designed to promote economic growth

1. When he assumed office in the middle of 2010, President Aquino made efficiency and transparency in government spending a significant
focus of his Administration. Yet, although such focus resulted in an improved fiscal deficit of 0.5% in the gross domestic product (GDP)
from January to July of 2011, it also unfortunately decelerated government project implementation and payment schedules.
2. The economic situation prevailing in the middle of 2011 thus paved the way for the development and implementation of the DAP as a
stimulus package intended to fast-track public spending and to push economic growth by investing on high-impact budgetary PAPs to be
funded from the “savings” generated during the year as well as from unprogrammed funds.
3. The Administration would thereby accelerate government spending by: (1) streamlining the implementation process through the
clustering of infrastructure projects of the Department of Public Works and Highways (DPWH) and the Department of Education (DepEd),
and (2) frontloading PPP-related projects due for implementation in the following year.
4. The March 2012 report of the World Bank,revealed that the DAP was partially successful. The disbursements under the DAP contributed
[110]
1.3 percentage points to GDP growth by the fourth quarter of 2011. The continued implementation of the DAP strengthened growth
by 11.8% year on year while infrastructure spending rebounded from a 29% contraction to a 34% growth as of September 2013

b. DAP was not an appropriation measure; hence, no appropriation law was required to adopt or to implement it

1. The DAP was a government policy or strategy designed to stimulate the economy through accelerated spending. In the context of the
DAP’s adoption and implementation being a function pertaining to the Executive as the main actor during the Budget Execution
Stage under its constitutional mandate to faithfully execute the laws, including the GAAs, Congress did not need to legislate to adopt or
to implement the DAP.
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NOTES ON POLITICAL LAW REVIEW
Kenneth and King C. Hizon _________________________________________________________________________________________________________________
2. Congress could appropriate but would have nothing more to do during the Budget Execution Stage. Indeed, appropriation was the act by
which Congress “designates a particular fund, or sets apart a specified portion of the public revenue or of the money in the public
treasury, to be applied to some general object of governmental expenditure, or to some individual purchase or expense.”In a strict sense,
appropriation has been defined ‘as nothing more than the legislative authorization prescribed by the Constitution that money may be
paid out of the Treasury,’ while appropriation made by law refers to ‘the act of the legislature setting apart or assigning to a particular
[
use a certain sum to be used in the payment of debt or dues from the State to its creditors.’”
3. On the other hand, the President, in keeping with his duty to faithfully execute the laws, had sufficient discretion during the execution of
the budget to adapt the budget to changes in the country’s economic situation. He could adopt a plan like the DAP for the purpose. He
could pool the savings and identify the PAPs to be funded under the DAP. The pooling of savings pursuant to the DAP, and the
identification of the PAPs to be funded under the DAP did not involve appropriation in the strict sense because the money had been
already set apart from the public treasury by Congress through the GAAs. In such actions, the Executive did not usurp the power vested in
Congress under Section 29(1), Article VI of the Constitution.

c. Unreleased appropriations and withdrawn unobligated allotments under the DAP

were not savings, and the use of such appropriations contravened Section 25(5),
Article VI of the 1987 Constitution.

i. Although executive discretion and flexibility are necessary in the execution of the budget, any transfer of appropriated funds should
conform to Section 25(5), Article VI of the Constitution

1. Congress cannot anticipate all issues and needs that may come into play once the budget reaches its execution stage. Executive
discretion is necessary at that stage to achieve a sound fiscal administration and assure effective budget implementation. The heads of
offices, particularly the President, require flexibility in their operations under performance budgeting to enable them to make whatever
adjustments are needed to meet established work goals under changing conditions. In particular, the power to transfer funds can give
the President the flexibility to meet unforeseen events that may otherwise impede the efficient implementation of the PAPs set by
Congress in the GAA.
2. Congress has traditionally allowed much flexibility to the President in allocating funds pursuant to the GAAs, particularly when the funds
are grouped to form lump sum accounts. This flexibility comes in the form of policies that the Executive may adopt during the budget
execution phase. The DAP – as a strategy to improve the country’s economic position – was one policy that the President decided to carry
out in order to fulfill his mandate under the GAAs.
3. In contrast, by allowing to the heads of offices some power to transfer funds within their respective offices, the Constitution itself
ensures the fiscal autonomy of their offices, and at the same time maintains the separation of powers among the three main branches of
the Government.
4. In the case of the President, the power to transfer funds from one item to another within the Executive has not been the mere offshoot
of established usage, but has emanated from law itself. It has existed since the time of the American Governors-General Act No. 1902 (An
Act authorizing the Governor-General to direct any unexpended balances of appropriations be returned to the general fund of the Insular
Treasury and to transfer from the general fund moneys which have been returned thereto), passed on May 18, 1909 by the First Philippine
Legislature, was the first enabling law that granted statutory authority to the President to transfer funds. The authority was without any
limitation, for the Act explicitly empowered the Governor-General to transfer any unexpended balance of appropriations for any bureau
or office to another, and to spend such balance as if it had originally been appropriated for that bureau or office.
5. In Demetria v. Alba, however, the Court struck down the first paragraph of Section 44 for contravening Section 16(5) of the 1973
Constitution, ruling: Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the privilege granted under said Section 16. It
empowers the President to indiscriminately transfer funds from one department, bureau, office or agency of the Executive Department
to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its
enactment, without regard as to whether or not the funds to be transferred are actually savings in the item from which the same are
to be taken, or whether or not the transfer is for the purpose of augmenting the item to which said transfer is to be made. It does not
only completely disregard the standards set in the fundamental law, thereby amounting to an undue delegation of legislative powers, but
likewise goes beyond the tenor thereof. Indeed, such constitutional infirmities render the provision in question null and void.
6. It is significant that Demetria was promulgated 25 days after the ratification by the people of the 1987 Constitution, whose Section 25(5)
of Article VI is identical to Section 16(5), Article VIII of the 1973 Constitution, to wit:
Section 25. x x x
5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of
the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be
authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their
respective appropriations.

xxxx

7. Evidently, the Constitutional Commission included Section 25(5), supra, to keep a tight rein on the exercise of the power to transfer funds
appropriated by Congress by the President and the other high officials of the Government named therein. In the funding of current
activities, projects, and programs, the general rule should still be that the budgetary amount contained in the appropriations bill is the
extent Congress will determine as sufficient for the budgetary allocation for the proponent agency. The only exception is found in
Section 25 (5), Article VI of the Constitution, by which 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 are authorized to transfer
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UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth and King C. Hizon _________________________________________________________________________________________________________________
appropriations to augment any item in the GAA for their respective offices from the savings in other items of their respective
appropriations.
8. When the statute itself enumerates the exceptions to the application of the general rule, the exceptions are strictly but reasonably
construed. The exceptions extend only as far as their language fairly warrants, and all doubts should be resolved in favor of the general
provision rather than the exceptions. Where the general rule is established by a statute with exceptions, none but the enacting authority
can curtail the former. Not even the courts may add to the latter by implication, and it is a rule that an express exception excludes all
others, although it is always proper in determining the applicability of the rule to inquire whether, in a particular case, it accords with
reason and justice.

ii. Requisites for the valid transfer of appropriated funds under Section 25(5), Article VI of the 1987
Constitution

The transfer of appropriated funds, to be valid under Section 25(5), supra, must be made upon a concurrence of the following requisites, namely:

a. There is a law authorizing 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 the Constitutional Commissions to transfer funds within their respective offices;
b. The funds to be transferred are savings generated from the appropriations for their respective offices; and
c. The purpose of the transfer is to augment an item in the general appropriations law for their respective offices.

1. First Requisite –GAAs of 2011 and 2012 lacked valid provisions to authorize transfers of funds under the DAP; hence, transfers under
the DAP were unconstitutional

Section 25(5), supra, not being a self-executing provision of the Constitution, must have an implementing law for it to be operative. That law,
generally, is the GAA of a given fiscal year. To comply with the first requisite, the GAAs should expressly authorize the transfer of funds.

Did the GAAs expressly authorize the transfer of funds? In the 2011 GAA, the provision that gave the President and the other high officials the
authority to transfer funds was Section 59, as follows:
Section 59. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the
Ombudsman are hereby authorized to augment any item in this Act from savings in other items of their respective
appropriations.

In the 2012 GAA, the empowering provision was Section 53, to wit:

Section 53. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the
Ombudsman are hereby authorized to augment any item in this Act from savings in other items of their respective
appropriations.

In fact, the foregoing provisions of the 2011 and 2012 GAAs were cited by the DBM as justification for the use of savings under the DAP. The
aforequoted provisions of the GAAs of 2011 and 2012 were textually unfaithful to the Constitution for not carrying the phrase “for their
respective offices” contained in Section 25(5), supra. The impact of the phrase “for their respective offices” was to authorize only transfers of
funds within their offices (i.e., in the case of the President, the transfer was to an item of appropriation within the Executive). The provisions
carried a different phrase (“to augment any item in this Act”), and the effect was that the 2011 and 2012 GAAs thereby literally allowed the
transfer of funds from savings to augment any item in the GAAs even if the item belonged to an office outside the Executive. To that extent did
the 2011 and 2012 GAAs contravene the Constitution.

Apparently realizing the problem, Congress inserted the omitted phrase in the counterpart provision in the 2013 GAA, to wit:

Section 52. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the
Ombudsman are hereby authorized to use savings in their respective appropriations to augment actual deficiencies incurred for
the current year in any item of their respective appropriations.

Even had a valid law authorizing the transfer of funds pursuant to Section 25(5), supra, existed, there still remained two other requisites to be met,
namely: that the source of funds to be transferred were savings from appropriations within the respective offices; and that the transfer must be for
the purpose of augmenting an item of appropriation within the respective offices.

2. Second Requisite – There were no savings from which funds could

be sourced for the DAP

In ascertaining the meaning of savings, certain principles should be borne in mind:

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Kenneth and King C. Hizon _________________________________________________________________________________________________________________
1. Congress wields the power of the purse. Congress decides how the budget will be spent; what PAPs to fund; and the amounts of money
to be spent for each PAP.
2. The Executive, as the department of the Government tasked to enforce the laws, is expected to faithfully execute the GAA and to spend
[149]
the budget in accordance with the provisions of the GAA. The Executive is expected to faithfully implement the PAPs for which
Congress allocated funds, and to limit the expenditures within the allocations, unless exigencies result to deficiencies for which
augmentation is authorized, subject to the conditions provided by law.
3. In making the President’s power to augment operative under the GAA, Congress recognizes the need for flexibility in budget execution. In
so doing, Congress diminishes its own power of the purse, for it delegates a fraction of its power to the Executive. But Congress does not
thereby allow the Executive to override its authority over the purse as to let the Executive exceed its delegated authority.
4. Savings should be actual. “Actual” denotes something that is real or substantial, or something that exists presently in fact, as opposed to
something that is merely theoretical, possible, potential or hypothetical

The foregoing principles caution us to construe savings strictly against expanding the scope of the power to augment. It is then indubitable that the
power to augment was to be used only when the purpose for which the funds had been allocated were already satisfied, or the need for such
funds had ceased to exist, for only then could savings be properly realized. This interpretation prevents the Executive from unduly transgressing
Congress’ power of the purse.

The definition of “savings” in the GAAs, particularly for 2011, 2012 and 2013, reflected this interpretation and made it operational, viz:
Savings refer to portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance
which are: (i) still available after the completion or final discontinuance or abandonment of the work, activity or purpose for
which the appropriation is authorized; (ii) from appropriations balances arising from unpaid compensation and related costs
pertaining to vacant positions and leaves of absence without pay; and (iii) from appropriations balances realized from the
implementation of measures resulting in improved systems and efficiencies and thus enabled agencies to meet and deliver
the required or planned targets, programs and services approved in this Act at a lesser cost.

The three instances listed in the GAAs’ aforequoted definition were a sure indication that savings could be generated only upon the purpose of the
appropriation being fulfilled, or upon the need for the appropriation being no longer existent.

The phrase “free from any obligation or encumbrance” in the definition of savings in the GAAs conveyed the notion that the appropriation was at
that stage when the appropriation was already obligated and the appropriation was already released. This interpretation was reinforced by the
enumeration of the three instances for savings to arise, which showed that the appropriation referred to had reached the agency level. It could not
be otherwise, considering that only when the appropriation had reached the agency level could it be determined whether (a) the PAP for which the
appropriation had been authorized was completed, finally discontinued, or abandoned; or (b) there were vacant positions and leaves of absence
without pay; or (c) the required or planned targets, programs and services were realized at a lesser cost because of the implementation of
measures resulting in improved systems and efficiencies.

The DBM declares that part of the savings brought under the DAP came from “pooling of unreleased appropriations such as unreleased Personnel
Services appropriations which will lapse at the end of the year, unreleased appropriations of slow moving projects and discontinued projects per
Zero-Based Budgeting findings.”The declaration of the DBM by itself does not state the clear legal basis for the treatment of unreleased or
unalloted appropriations as savings. The fact alone that the appropriations are unreleased or unalloted is a mere description of the status of the
items as unalloted or unreleased. They have not yet ripened into categories of items from which savings can be generated. xxx

For us to consider unreleased appropriations as savings, unless these met the statutory definition of savings, would seriously undercut the
congressional power of the purse, because such appropriations had not even reached and been used by the agency concerned vis-à-vis the PAPs
for which Congress had allocated them.

The DBM’s Memorandum for the President dated June 25, 2012 (which became the basis of NBC No. 541) stated:
On the Authority to Withdraw Unobligated allotments

xxxx
9.0 It may be emphasized that the allotments to be withdrawn will be based on the list of slow moving
projects to be identified by the agencies and their catch up plans to be evaluated by the DBM.

It is apparent from the foregoing text that the withdrawal of unobligated allotments would be based on whether the allotments pertained to slow-
moving projects, or not. However, NBC No. 541 did not set in clear terms the criteria for the withdrawal of unobligated allotments. NBC No. 541
[151]
targeted the “withdrawal of unobligated allotments of agencies with low levels of obligations” “to fund priority and/or fast-moving
programs/projects.” But the fact that the withdrawn allotments could be “*r+eissued for the original programs and projects of the agencies/OUs
concerned, from which the allotments were withdrawn” supported the conclusion that the PAPs had not yet been finally discontinued or
abandoned. Thus, the purpose for which the withdrawn funds had been appropriated was not yet fulfilled, or did not yet cease to exist,
rendering the declaration of the funds as savings impossible.

Worse, NBC No. 541 immediately considered for withdrawal all released allotments in 2011 charged against the 2011 GAA that had remained
unobligated. Such withdrawals pursuant to NBC No. 541, the circular that affected the unobligated allotments for continuing and current

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Kenneth and King C. Hizon _________________________________________________________________________________________________________________
appropriations as of June 30, 2012, disregarded the 2-year period of availability of the appropriations for MOOE and capital outlay extended
under Section 65, General Provisions of the 2011 GAA, viz:

Section 65. Availability of Appropriations. — Appropriations for MOOE and capital outlays authorized in this Act shall be
available for release and obligation for the purpose specified, and under the same special provisions applicable thereto, for a
period extending to one fiscal year after the end of the year in which such items were appropriated: PROVIDED, That
appropriations for MOOE and capital outlays under R.A. No. 9970 shall be made available up to the end of FY 2011: PROVIDED,
FURTHER, That a report on these releases and obligations shall be submitted to the Senate Committee on Finance and the
House Committee on Appropriations.

and Section 63 General Provisions of the 2012 GAA, viz:

Section 63. Availability of Appropriations. — Appropriations for MOOE and capital outlays authorized in this Act shall be
available for release and obligation for the purpose specified, and under the same special provisions applicable thereto, for a
period extending to one fiscal year after the end of the year in which such items were appropriated: PROVIDED, That a report
on these releases and obligations shall be submitted to the Senate Committee on Finance and the House Committee on
Appropriations, either in printed form or by way of electronic document.

Thus, another alleged area of constitutional infirmity was that the DAP and its relevant issuances shortened the period of availability of the
appropriations for MOOE and capital outlays. Congress provided a one-year period of availability of the funds for all allotment classes in the 2013
GAA (R.A. No. 10352). Yet, in his memorandum for the President dated May 20, 2013, Sec. Abad sought omnibus authority to consolidate savings
and unutilized balances to fund the DAP on a quarterly basis. The validity period of the affected appropriations, already given the brief lifespan of
one year, was further shortened to only a quarter of a year under the DBM’s memorandum dated May 20, 2013.

The petitioners accuse the respondents of forcing the generation of savings in order to have a larger fund available for discretionary spending. The
respondents belie the accusation, insisting that the unobligated allotments were being withdrawn upon the instance of the implementing agencies.
Contrary to the respondents’ insistence, the withdrawals were upon the initiative of the DBM itself.

The withdrawal and transfer of unobligated allotments and the pooling of unreleased appropriations were invalid for being bereft of legal support.
Nonetheless, such withdrawal of unobligated allotments and the retention of appropriated funds cannot be considered as impoundment.
According to Philippine Constitution Association v. Enriquez: “Impoundment refers to a refusal by the President, for whatever reason, to spend
funds made available by Congress. It is the failure to spend or obligate budget authority of any type.” Impoundment under the GAA is
understood to mean the retention or deduction of appropriations. The 2011 GAA authorized impoundment only in case of unmanageable National
Government budget deficit. The withdrawal of unobligated allotments under the DAP should not be regarded as impoundment because it entailed
only the transfer of funds, not the retention or deduction of appropriations.

The respondents rely on Section 38, Chapter 5, Book VI of the Administrative Code of 1987 to justify the withdrawal of unobligated allotments. But
the provision authorized only the suspension or stoppage of further expenditures, not the withdrawal of unobligated allotments, to wit:

Section 38. Suspension of Expenditure of Appropriations. - Except as otherwise provided in the General Appropriations Act and
whenever in his judgment the public interest so requires, the President, upon notice to the head of office concerned, is
authorized to suspend or otherwise stop further expenditure of funds allotted for any agency, or any other expenditure
authorized in the General Appropriations Act, except for personal services appropriations used for permanent officials and
employees.

Moreover, the DBM did not suspend or stop further expenditures in accordance with Section 38, supra, but instead transferred the funds to other
PAPs. It is relevant to remind at this juncture that the balances of appropriations that remained unexpended at the end of the fiscal year were to be
reverted to the General Fund. This was the mandate of Section 28, Chapter IV, Book VI of the Administrative Code, to wit:

Section 28. Reversion of Unexpended Balances of Appropriations, Continuing Appropriations. - Unexpended balances of
appropriations authorized in the General Appropriation Act shall revert to the unappropriated surplus of the General Fund at
the end of the fiscal year and shall not thereafter be available for expenditure except by subsequent legislative enactment:
Provided, that appropriations for capital outlays shall remain valid until fully spent or reverted: provided, further, that
continuing appropriations for current operating expenditures may be specifically recommended and approved as such in
support of projects whose effective implementation calls for multi-year expenditure commitments: provided, finally, that the
President may authorize the use of savings realized by an agency during given year to meet non-recurring expenditures in a
subsequent year.

The balances of continuing appropriations shall be reviewed as part of the annual budget preparation process and the
preparation process and the President may approve upon recommendation of the Secretary, the reversion of funds no longer
needed in connection with the activities funded by said continuing appropriations.

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NOTES ON POLITICAL LAW REVIEW
Kenneth and King C. Hizon _________________________________________________________________________________________________________________
3. Third Requisite–No funds from savings could be transferred under the DAP to augment deficient items
not provided in the GAA

The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that the appropriation for the PAP item to be augmented must be deficient,
to wit: x x x Augmentation implies the existence in this Act of a program, activity, or project with an appropriation, which upon implementation, or
subsequent evaluation of needed resources, is determined to be deficient. In no case shall a non-existent program, activity, or project, be funded
by augmentation from savings or by the use of appropriations otherwise authorized in this Act.

In other words, an appropriation for any PAP must first be determined to be deficient before it could be augmented from savings. Note is taken
of the fact that the 2013 GAA already made this quite clear.

5. Third Requisite – Cross-border augmentations from savings were prohibited by the Constitution

By providing that 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 the Constitutional Commissions may be authorized to augment any item in the GAA “for their respective offices,” Section
25(5), supra, has delineated borders between their offices, such that funds appropriated for one office are prohibited from crossing over to another
office even in the guise of augmentation of a deficient item or items. Thus, we call such transfers of funds cross-border transfers or cross-border
augmentations.

To be sure, the phrase “respective offices” used in Section 25(5), supra, refers to the entire Executive, with respect to the President; the Senate,
with respect to the Senate President; the House of Representatives, with respect to the Speaker; the Judiciary, with respect to the Chief Justice; the
Constitutional Commissions, with respect to their respective Chairpersons.

Regardless of the variant characterizations of the cross-border transfers of funds, the plain text of Section 25(5),supra, disallowing cross-border
transfers was disobeyed. Cross-border transfers, whether as augmentation, or as aid, were prohibited under Section 25(5), supra.

d. Sourcing the DAP from unprogrammed funds despite the original revenue targetsnot having been exceeded was invalid

The BESFs for 2011, 2012 and 2013 uniformly defined “unprogrammed appropriations” as appropriations that provided standby authority to incur
additional agency obligations for priority PAPs when revenue collections exceeded targets, and when additional foreign funds are generated.
Contrary to the DBM’s averment that there were three instances when unprogrammed funds could be released, the BESFs envisioned only two
instances. The third mentioned by the DBM – the collection of new revenues from sources not originally considered in the BESFs – was not
included. This meant that the collection of additional revenues from new sources did not warrant the release of the unprogrammed funds.
Hence, even if the revenues not considered in the BESFs were collected or generated, the basic condition that the revenue collections should
exceed the revenue targets must still be complied with in order to justify the release of the unprogrammed funds.

The revenue targets stated in the BESF were intended to address the funding requirements of the proposed programmed appropriations. In
contrast, the unprogrammed funds, as standby appropriations, were to be released only when there were revenues in excess of what the
programmed appropriations required. As such, the revenue targets should be considered as a whole, not individually; otherwise, we would be
dealing with artificial revenue surpluses. The requirement that revenue collections must exceed revenue target should be understood to mean
that the revenue collections must exceed the total of the revenue targets stated in the BESF. Moreover, to release the unprogrammed funds
simply because there was an excess revenue as to one source of revenue would be an unsound fiscal management measure because it would
disregard the budget plan and foster budget deficits, in contravention of the Government’s surplus budget policy.

e. Equal protection, checks and balances, and public accountability challenges

This issue lacks merit.

f.Doctrine of operative fact was applicable

Article 7 of the Civil Code provides:

Article 7. 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.

Orthodox View

The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter an executive order or a municipal ordinance
likewise suffering from that infirmity, cannot be the source of any legal rights or duties.

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UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth and King C. Hizon _________________________________________________________________________________________________________________
Modern View

The actual existence of a statute, prior to such a determination [of unconstitutionality], is an operative fact and may have consequences which
cannot justly be ignored. The doctrine of operative fact recognizes the existence of the law or executive act prior to the determination of its
unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded. In short, it nullifies
the void law or executive act but sustains its effects. It provides an exception to the general rule that a void or unconstitutional law produces no
effect. But its use must be subjected to great scrutiny and circumspection, and it cannot be invoked to validate an unconstitutional law or executive
act, but is resorted to only as a matter of equity and fair play. It applies only to cases where extraordinary circumstances exist, and only when the
extraordinary circumstances have met the stringent conditions that will permit its application.

NOTE: The SC finds the doctrine of operative fact applicable to the adoption and implementation of the DAP. Its application to the DAP proceeds
from equity and fair play. The consequences resulting from the DAP and its related issuances could not be ignored or could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or unconstitutional executive act. The term executive act is broad enough to include
any and all acts of the Executive, including those that are quasi-legislative and quasi-judicial in nature. The operative fact doctrine is not
confined to statutes and rules and regulations issued by the executive department that are accorded the same status as that of a statute or
those which are quasi-legislative in nature.

Even assuming that De Agbayani initially applied the operative fact doctrine only to executive issuances like orders and rules and regulations,
said principle can nonetheless be applied, by analogy, to decisions made by the President or the agencies under the executive department. This
doctrine, in the interest of justice and equity, can be applied liberally and in a broad sense to encompass said decisions of the executive branch.
In keeping with the demands of equity, the Court can apply the operative fact doctrine to acts and consequences that resulted from the reliance
not only on a law or executive act which is quasi-legislative in nature but also on decisions or orders of the executive branch which were later
nullified. This Court is not unmindful that such acts and consequences must be recognized in the higher interest of justice, equity and fairness.

Significantly, a decision made by the President or the administrative agencies has to be complied with because it has the force and effect of law,
springing from the powers of the President under the Constitution and existing laws. Prior to the nullification or recall of said decision, it may
have produced acts and consequences in conformity to and in reliance of said decision, which must be respected. It is on this score that the
operative fact doctrine should be applied to acts and consequences that resulted from the implementation of the PARC Resolution approving
the SDP of HLI.

It is clear from the foregoing that the adoption and the implementation of the DAP and its related issuances were executive acts. The DAP itself, as
a policy, transcended a merely administrative practice especially after the Executive, through the DBM, implemented it by issuing various
memoranda and circulars. The pooling of savings pursuant to the DAP from the allotments made available to the different agencies and
departments was consistently applied throughout the entire Executive. With the Executive, through the DBM, being in charge of the third phase of
the budget cycle – the budget execution phase, the President could legitimately adopt a policy like the DAP by virtue of his primary responsibility as
the Chief Executive of directing the national economy towards growth and development. This is simply because savings could and should be
determined only during the budget execution phase.

To declare the implementation of the DAP unconstitutional without recognizing that its prior implementation constituted an operative fact that
produced consequences in the real as well as juristic worlds of the Government and the Nation is to be impractical and unfair. Unless the doctrine
is held to apply, the Executive as the disburser and the offices under it and elsewhere as the recipients could be required to undo everything that
they had implemented in good faith under the DAP. That scenario would be enormously burdensome for the Government. Equity alleviates such
burden

Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative fact does not always apply, and is not always
the consequence of every declaration of constitutional invalidity. It can be invoked only in situations where the nullification of the effects of
what used to be a valid law would result in inequity and injustice; but where no such result would ensue, the general rule that an
unconstitutional law is totally ineffective should apply.

In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the PAPs that can no longer be undone, and whose
beneficiaries relied in good faith on the validity of the DAP, but cannot apply to the authors, proponents and implementors of the DAP, unless
there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other
liabilities.

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SEPARATE OPINION:

MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG MAKABAYAN, et al., v. BENIGNO SIMEON C. AQUINO III, PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, et al.
G.R. No. 209287, 1 July 2014, (Brion, J.)

I. DAP violates the principles of separation of powers and checks and balances

DAP violates the principles of separation of powers and checks and balances on two (2) counts:
1. by pooling funds that cannot at all be classified as savings;
2. by using these funds to finance projects outside the Executive or for projects with no appropriation cover. The details behind these
transgressions and their constitutional status are further discussed below.

These violations – in direct violation of the “no transfer” proviso of Section 25(5) of Article VI of the Constitution – had the effect of allowing the
Executive to encroach on the domain of Congress in the budgetary process. By facilitating the use of funds not classified as savings to finance
items other than for which they have been appropriated, the DAP in effect allowed the President to circumvent the constitutional budgetary
process and to veto items of the GAA without subjecting them to the 2/3 overriding veto that Congress is empowered to exercise.

Additionally, this practice allows the creation of a budget within a budget: the use of funds not otherwise classifiable as savings disregards the
items for which these funds had been appropriated, and allows their use for items for which they had not been appropriated.

Worse, funds provided to finance appropriations in the Executive Department had been used for projects in the Legislature and other
constitutional bodies. In short, the violation allowed the constitutionally-prohibited transfer of funds across constitutional boundaries.

Through these violations of the express terms of Section 25(5), Article VI of the 1987 Constitution, the DAP directly contravened the principles of
separation of powers and checks and balances that the Constitution built into the budgetary process.

II. Applicability of the “Doctrine of Operative Fact”

Given the jurisprudential meaning of the operative fact doctrine, a first consideration to be made under the circumstances of this case is the
application of the doctrine:
1. to the programs, works and projects the DAP funded in relying on its validity;
2. to the officials who undertook the programs, works and projects; and
3. to the public officials responsible for the establishment and implementation of the DAP.

1. Programs are valid

With respect to the programs, works and projects, the DAP-funded programs, works and projects can no longer be undone; practicality and equity
demand that they be left alone as they were undertaken relying on the validity of the DAP funds at the time these programs, works and projects
were undertaken.

2. The officials who merely received or utilized the budgetary funds cannot be held liable

The persons and officials, on the other hand, who merely received or utilized the budgetary funds in the regular course and without knowledge of
the DAP’s invalidity, would suffer prejudice if the invalidity of the DAP would affect them. Thus, they should not incur any liability for utilizing DAP
funds, unless they committed criminal acts in the course of their actions other than the use of the funds in good faith.

3. The authors, implementers of DAP are liable

The doctrine, on the other hand, cannot simply and generally be extended to the officials who never relied on the DAP’s validity and who are
merely linked to the DAP because they were its authors and implementors. A case in point is the case of the DBM Secretary who formulated and
sought the approval of NBC No. 541 and who, as author, cannot be said to have relied on it in the course of its operation. Since he did not rely on
the DAP, no occasion exists to apply the operative fact doctrine to him and there is no reason to consider his “good or bad faith” under this
doctrine.

If these parties, for their own reasons, would claim the benefit of the doctrine, then the burden is on them to prove that they fall under the
coverage of the doctrine. As claimants seeking protection, they must actively show their good faith reliance; good faith cannot rise on its own
and self-levitate from a law or measure that has fallen due to its unconstitutionality. Upon failure to discharge the burden, then the general rule
should apply – the DAP is a void measure which is deemed never to have existed at all.

It is a basic rule under the law on public officers that public accountability potentially imposes a three-fold liability – criminal, civil and
administrative – against a public officer. A ruling of this kind can only come from a tribunal with direct or original jurisdiction over the issue of

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liability and where the good or bad faith in the performance of duty is a material issue. This Court is not that kind of tribunal in these proceedings
as we merely decide the question of the DAP’s constitutionality. If we rule beyond pure constitutionality at all, it is only to expound on the question
of the consequences of our declaration of unconstitutionality, in the manner that we do when we define the application of the operative fact
doctrine. Hence, any ruling we make implying the existence of the presumption of good faith or negating it, is only for the purpose of the question
before us – the constitutionality of the DAP and other related issuances.

NOTES ON R.A. 10175 (The Cybercrime Prevention Act of 2012)

JOSE JESUS M. DISINI, Jr., et al. v. THE SECRETARY OF JUSTICE, et al.
G.R. No. 203335, 11 February 2014, EN BANC (Abad, J.)

INTRODUCTION

I. Antecedent Facts

On September 12, 2012, the “Cybercrime Prevention Act of 2012” recorded as Republic Act 10175 was approved. Among the cybercrime
offenses are:
1. Cyber-squatting
2. Cybersex
3. Child pornography
4. Identity theft
5. Illegal access to data
6. libel

Disini, et al .filed a Petition for Certiorari and Prohibition under Rule 65 of the Rules of Civil Procedure seeking to nullify Sections 4(c)(4),
6, 7, 12 and 19 of RA 10175 for violating the fundamental rights protected under the Constitution. On October 9, 2012, the Court issued a
temporary restraining order against the implementation of RA 10175 for 120 days. On February 2012, the Court extended the TRO until further
order from the Court.

Noteworthily, on May 24, 2013, the Department of Justice announced that the provision of RA 10175 on “contentious on-line libel” has
been dropped together with those provisions that are punishable already under the Revised Penal Code, i.e., child pornography and cyber-
squatting.

II. RA 10175

a. Catch-all Clause

RA 10175 has 31 provisions divided into 8 chapters. RA 10175 also provides for a “catch-all” clause, wherein all offenses likewise
punishable under the Act when committed using a computer, with corresponding stricter penalties.

b. Universal Jurisdiction

RA 10175 also provides for a “universal jurisdiction”, i.e., its provisions apply to all Filipino nationals regardless of the place of
commission. Jurisdiction also lies when a punishable act is either committed within the Philippines, whether the erring device is wholly or partly
situated in the Philippines, or whether damage was done to any natural or juridical person who at the time of commission was within the
Philippines. Regional Trial Courts shall have jurisdiction over cases involving violations of the Act.

c. Takedown Clause

A takedown clause is included in the Act, empowering the Department of Justice to restrict and/or demand the removal of content found
to be contrary to the provisions of the Act, without the need for a court order. This provision, originally not included in earlier iterations of the Act
as it was being deliberated through Congress, was inserted during Senate deliberations. Complementary to the takedown clause is a clause
mandating the retention of data on computer servers for six months after the date of transaction, which may be extended for another six months
should law enforcement authorities request it.

d. Cybercrime unit of the NBI and PNP

The Act also mandates the National Bureau of Investigation and the Philippine National Police to organize a cybercrime unit, staffed by
special investigators whose responsibility will be to exclusively handle cases pertaining to violations of the Act, under the supervision of the
Department of Justice. The unit is empowered to, among others, collect real-time traffic data from Internet service providers with due cause,

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require the disclosure of computer data within 72 hours after receipt of a court warrant from a service provider, and conduct searches and seizures
of computer data and equipment.

e. Cybercrime courts

It also mandates the establishment of special "cybercrime courts" which will handle cases involving cybercrime offenses (offenses
enumerated in Section 4(a) of the Act).

III. Purpose of the Cybercrime Law

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person can connect to the
internet, a system that links him to other computers and enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study, amusement, upliftment, or pure
curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special audiences like associates,
classmates, or friends and read postings from them;
3. Advertise and promote goods or services and make purchase and payments;
4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges, trade houses, credit card
companies, public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail address or telephone.

IV. Government’s Exercise of Police Power

Because linking with the internet opens up a user to communications from others, the ill-motivated can use the cyberspace for
committing theft by hacking into or surreptitiously accessing his bank account or credit card or defrauding him through false representations. The
wicked can use the cyberspace, too, for illicit trafficking in sex or for exposing to pornography guileless children who have access to the internet.
For this reason, the government has a legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.

V. Decisive Case of Fermin v. People:

Annabelle Rama and Eddie Gutierrez filed 2 criminal informations for libel against Cristinelli S. Fermin, et al. A libel is defined as a public
and malicious imputation of a crime, or of a vice or defect, real or imaginary; or any act, omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. In determining whether a
statement is defamatory, the words used are to be construed in their entirety and should be taken in their plain and ordinary meaning as they
would naturally be understood by persons reading them, unless it appears that they were used and understood in another sense.

With respect to the penalty to be imposed for this conviction, we note that on January 25, 2008, the Court issued Administrative Circular
No. 08-2008, entitled Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases. The Circular expresses a
preference for the imposition of a fine rather than imprisonment, given the circumstances attendant in the cases. However, the Circular likewise
allows the court, in the exercise of sound discretion, the option to impose imprisonment as penalty, whenever the imposition of a fine alone would
depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice.

ISSUES:

Disini, et al., challenges the constitutionality of the following provisions of the cybercrime law that regard certain acts as crimes and
impose penalties for their commission as well as provisions that would enable the government to track down and penalize violators. These
provisions are:

a. Section 4(a)(1) on Illegal Access; l. Section 8 on Penalties;

b. Section 4(a)(3) on Data Interference; m. Section 12 on Real-Time Collection of Traffic Data;
c. Section 4(a)(6) on Cyber-squatting; n. Section 13 on Preservation of Computer Data;
d. Section 4(b)(3) on Identity Theft; o. Section 14 on Disclosure of Computer Data;
e. Section 4(c)(1) on Cybersex; p. Section 15 on Search, Seizure and Examination of
f. Section 4(c)(2) on Child Pornography; Computer Data;
g. Section 4(c)(3) on Unsolicited Commercial q. Section 17 on Destruction of Computer Data;
Communications; r. Section 19 on Restricting or Blocking Access to Computer
h. Section 4(c)(4) on Libel; Data;
i. Section 5 on Aiding or Abetting and Attempt in the s. Section 20 on Obstruction of Justice;
Commission of Cybercrimes; t. Section 24 on Cybercrime Investigation and Coordinating
j. Section 6 on the Penalty of One Degree Higher; Center (CICC); and
k. Section 7 on the Prosecution under both the Revised Penal u. Section 26(a) on CICC’s Powers and Functions
Code (RPC) and R.A. 10175;

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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________

RULING: CONSTITUTIONAL PROVISIONS

A. Section 4(a)(1) on Illegal Access;

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

STRICT SCRUTINY STANDARD- a legislative classification that impermissibly interferes with the exercise of fundamental right or operates to the
peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to prove that the classification is
necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest. Later, the strict scrutiny standard
was used to assess the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights, as expansion from
its earlier applications to equal protection.

Ruling: The Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutiny standard since no fundamental freedom, like
speech, is involved in punishing what is essentially a condemnable act – accessing the computer system of another without right. It is a
universally condemned conduct.

This will NOT violate the work of professional hackers, professionals who employ tools and techniques used by criminal hackers but would neither
damage the target systems nor steal information. Besides, a client’s engagement of an ethical hacker requires an agreement between them as to
the extent of the search, the methods to be used, and the systems to be tested. This is referred to as the “get out of jail free card.” Since the
ethical hacker does his job with prior permission from the client, such permission would insulate him from the coverage of Section 4(a)(1)

B. Section 4(a)(3) on Data Interference;

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(3) Data Interference. — The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or
electronic data message, without right, including the introduction or transmission of viruses.

Contention: It is contended that this provision is overbreadth, while it seeks to discourage data interference, it intrudes into the area of protected
speech and expression, creating a chilling and deterrent effect on these guaranteed freedoms.

OVERBREADTH DOCTRINE- a proper governmental purpose, constitutionally subject to state regulation, may not be achieved by means that
unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms.

Ruling: Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a form of vandalism, the act of willfully
destroying without right the things that belong to others, in this case their computer data, electronic document, or electronic data message. Such
act has no connection to guaranteed freedoms. There is no freedom to destroy other people’s computer systems and private documents

As for the alleged chilling effect of the provision, all penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem
effect or the fear of possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is proper.

But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the state powerless in addressing and
penalizing socially harmful conduct. Here, the chilling effect that results in paralysis is an illusion since Section 4(a)(3) clearly describes the evil
that it seeks to punish and creates no tendency to intimidate the free exercise of one’s constitutional rights.

C. Section 4(a)(6) on Cyber-squatting;

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(6) Cyber-squatting. – The acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others
from registering the same, if such a domain name is:

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(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain
name registration:

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

Contention: The contention that this provision violates the equal protection clause such that it will cause a user using his real name to suffer the
same fate as those who use aliases or take the name of another in satire, parody, or any other literary device is untenable. Allegedly, supposing
there exists a well known billionaire-philanthropist named “Julio Gandolfo,” the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another who registers the name because it happens to be his real name.
Petitioners claim that, considering the substantial distinction between the two, the law should recognize the difference. This is not true.

Ruling: There is no real difference whether he uses “Julio Gandolfo” which happens to be his real name or use it as a pseudo-name for it is the evil
purpose for which he uses the name that the law condemns. The law is reasonable in penalizing him for acquiring the domain name in bad faith to
profit, mislead, destroy reputation, or deprive others who are not ill-motivated of the rightful opportunity of registering the same.

D. Section 4(b)(3) on Identity Theft;

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(b) Computer-related Offenses:

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying
information belonging to another, whether natural or juridical, without right: Provided, That if no damage has yet been caused, the penalty
imposable shall be one (1) degree lower.

Contention: The contention that this provision violates the constitutional rights to due process and to privacy and correspondence and freedom of
the press has no basis.

ZONES OF PRIVACY: Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible unless
excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our
conviction that the right to privacy is a “constitutional right” and “the right most valued by civilized men,” but also from our adherence to the
Universal Declaration of Human Rights which mandates that, “no one shall be subjected to arbitrary interference with his privacy” and “everyone
has the right to the protection of the law against such interference or attacks.”

Two constitutional guarantees create these zones of privacy:

a. The right against unreasonable searches and seizures, which is the basis to be right alone
b. The right to privacy of communication and correspondence

In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court must determine whether a person has
exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion. The
usual identifying information regarding a person includes his name, his citizenship, his residence address, his contact number, his place and date of
birth, the name of his spouse if any, his occupation, and similar data.

Ruling:

a. Petitioners fail to show how government effort to curb computer-related identity theft violates the right to privacy and correspondence
as well as the right to due process of law. The charge of invalidity of this section based on the overbreadth doctrine will not hold water
since the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no fundamental right to acquire
another’s personal data.
b. On the alleged violation of the freedom of the press since journalists would be hindered from accessing the unrestricted user account of a
person in the news to secure information about him that could be published. But this is not the essence of identity theft that the law
seeks to prohibit and punish. Evidently, the theft of identity information must be intended for an illegitimate purpose.
c. INTENT TO GAIN- an internal act which can be established through the overt acts of the offender, and it may be presumed from the
furtive taking of useful property pertaining to another, unless special circumstances reveal a different intent on the part of the
perpetrator.
d. The press, whether in quest of news reporting or social investigation, has nothing to fear since a special circumstance is present to negate
intent to gain which is required by this Section.

E. Section 4(c)(1) on Cybersex;

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SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(c) Content-related Offenses:

(1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or
sexual activity, with the aid of a computer system, for favor or consideration.

Contention: Allegedly, this provision violates the freedom of expression. They express fear that private communications of sexual character
between husband and wife or consenting adults, which are not regarded as crimes under the penal code, would now be regarded as crimes when
done “for favor” in cyberspace.

Ruling:

a. The deliberations of the Bicameral Conference Committee show a lack of intent to penalize a “private showing x x x between and among
two private persons x x x although that may be a form of obscenity to some.”
b. The understanding of those who drew up the cybercrime law is that the element of “engaging in a business” is necessary to constitute
the illegal cybersex.. The Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration.
This includes interactive prostitution and pornography, i.e., by webcam.
c. Exercise of Police Power: The State can regulate materials that serve no other purpose than satisfy the market for violence, lust, or
pornography. Engaging in sexual acts privately through internet connection, perceived by some as a right, has to be balanced with the
mandate of the State to eradicate white slavery and the exploitation of women.

F. Section 4(c)(2) on Child Pornography;

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(c) Content-related Offenses:

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of
2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in
Republic Act No. 9775.

Contention: Petitioners allege that the provision of Anti-Child Pornography Act of 2009 (ACPA) making it unlawful for any person to “produce,
direct, manufacture or create any form of child pornography” clearly relates to the prosecution of persons who aid and abet the core offenses that
ACPA seeks to punish. They are wary that a person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally
liable for producing child pornography but one who formulates the idea on his laptop would be. This has no basis.

Ruling:

a. ACPA’s definition of child pornography already embraces the use of “electronic, mechanical, digital, optical, magnetic or any other
means.” Nobody questioned this.
b. The law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one can complain since the intensity
or duration of penalty is a legislative prerogative and there is rational basis for such higher penalty.
c. The potential for uncontrolled proliferation of a particular piece of child pornography when uploaded in the cyberspace is incalculable.

H. Section 4(c)(4) on Libel;

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(c) Content-related Offenses:

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a
computer system or any other similar means which may be devised in the future.

Contentions:

a. Petitioners allege that the libel provision of the RPC and in the cybercrime law carry with them the requirement of “presumed malice”
even when the latest jurisprudence already replaces it with the higher standard of “actual malice” as a basis for conviction. They argue
that inferring “presumed malice” from the accused’s defamatory statement by virtue of Article 354 of the penal code infringes on his
constitutionally guaranteed freedom of expression. They further contend that contend that the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence requiring “actual malice” could easily be overturned as the Court has done in Fermin v.
People.
b. Elements of libel:

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1. the allegation of a discreditable act or condition concerning another;
2. publication of the charge;
3. identity of the person defamed; and
4. existence of malice.

c. ACTUAL MALICE OR MALICE IN FACT- There is “actual malice” or malice in fact41 when the offender makes the defamatory statement
with the knowledge that it is false or with reckless disregard of whether it was false or not.42 The reckless disregard standard used here
requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion that the accused in
fact entertained serious doubts as to the truth of the statement he published. Gross or even extreme negligence is not sufficient to
establish actual malice.
d. The Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard of actual malice or malice in fact when
it found Cristinelli Fermin guilty of committing libel against complainants who were public figures. Actually, the Court found the presence
of malice in fact in that case. From her testimony, she had motive to make defamatory statements.
e. When the offender is a private individual: where the offended party is a private individual, the prosecution need not prove the presence
of malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement. For his
defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact true.
f. No violation of the International Covenant of Civil and Political Rights (ICCPR):
1. General Comment 34 of the U.N. Human Rights Committee (UNHRC) does not say that the truth of defamatory statement should
constitute an all-encompassing defense. Under Art. 361 which recognizes the truth as a defense, it is subject to the condition that
the accused has been prompted in making the statement by good motives and for justifiable ends.
2. The UNHRC did not enjoin the Philippines to decriminalize libel. It simply suggested that defamation laws be crafted with care to
ensure that they do not stifle freedom of expression. Free speech is not absolute. It is subject to restrictions as may be provided by
law.
g. Cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section
4(c)(4) above merely affirms that online defamation constitutes “similar means” for committing libel.

J. Section 6 on the Penalty of One Degree Higher;

SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of
information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed
shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

Ruling: Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the Solicitor General points out,
there exists a substantial distinction between crimes committed through the use of information and communications technology and similar crimes
committed using other means. In using the technology in question, the offender often evades identification and is able to reach far more victims or
cause greater harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes

L. Section 8 on Penalties;

SEC. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) up to a maximum amount commensurate to the
damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision mayor or a fine of not more
than Five hundred thousand pesos (PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a fine of at least Five hundred
thousand pesos (PhP500,000.00) up to maximum amount commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with imprisonment of prision
mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos (PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished with the penalties as enumerated
in Republic Act No. 9775 or the “Anti-Child Pornography Act of 2009″: Provided, That the penalty to be imposed shall be one (1) degree higher than
that provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with imprisonment of arresto mayor or a fine
of at least Fifty thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty thousand pesos (PhP250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment one (1) degree lower than that
of the prescribed penalty for the offense or a fine of at least One hundred thousand pesos (PhP100,000.00) but not exceeding Five hundred
thousand pesos (PhP500,000.00) or both.

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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
Legislative prerogative must be respected: The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here
the legislature prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. The power to determine penalties for
offenses is not diluted or improperly wielded simply because at some prior time the act or omission was but an element of another offense or
might just have been connected with another crime. Judges and magistrates can only interpret and apply them and have no authority to modify or
revise their range as determined by the legislative department. The courts should not encroach on this prerogative of the lawmaking body.

N. Section 13 on Preservation of Computer Data

SEC. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to communication services provided by
a service provider shall be preserved for a minimum period of six (6) months from the date of the transaction. Content data shall be similarly
preserved for six (6) months from the date of receipt of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once computer data preserved,
transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document
to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.

Contention: The provision constitutes undue deprivation of the right to property.

Ruling: By virtue of Section 13, however, the law now requires service providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the transaction and those relating to content data for at least six months from
receipt of the order for their preservation. Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so
minded. The service provider has never assumed responsibility for their loss or deletion while in its keep.

However, the data that service providers preserve on orders of law enforcement authorities are not made inaccessible to users by reason of the
issuance of such orders. The process of preserving data will not unduly hamper the normal transmission or use of the same.

O. Section 14 on Disclosure of Computer Data;

SEC. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an order requiring any person or
service provider to disclose or submit subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-two (72)
hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and
relevant for the purpose of investigation.

Contention: Whether there is usurpation of the judicial function of issuing subpoena?

Ruling: None. It is well-settled that the power to issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers. The prescribed procedure for disclosure would not constitute an unlawful search or seizure
nor would it violate the privacy of communications and correspondence. Disclosure can be made only after judicial intervention.

P. Section 15 on Search, Seizure and Examination of Computer Data;

SEC. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly issued, the law enforcement
authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and
the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking
of the search, seizure and examination.

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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to
make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court.

Contention: Whether or not the provision violates the right against illegal search and seizures?

Ruling: None. Section 15 merely enumerates the duties of law enforcement authorities that would ensure the proper collection, preservation, and
use of computer system or data that have been seized by virtue of a court warrant. The exercise of these duties do not pose any threat on the
rights of the person from whom they were taken. Section 15 does not appear to supersede existing search and seizure rules but merely
supplements them.

Q. Section 17 on Destruction of Computer Data;

SEC. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service providers and law enforcement
authorities, as the case may be, shall immediately and completely destroy the computer data subject of a preservation and examination.

Contention: Whether or not the provision violates the right of a person against deprivation of property without due process of law?

Ruling: No. It is unclear that the user has a demandable right to require the service provider to have that copy of the data saved indefinitely for him
in its storage system. If he wanted them preserved, he should have saved them in his computer when he generated the data or received it. He
could also request the service provider for a copy before it is deleted.

S. Section 20 on Obstruction of Justice;

SEC. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from law enforcement authorities
shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of prision correctional in its maximum period or a fine of
One hundred thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement authorities.

Contention: Whether or not Sec. 20 is a bill of attainder

Ruling: Thus, the act of non-compliance, for it to be punishable, must still be done “knowingly or willfully.” There must still be a judicial
determination of guilt, during which, as the Solicitor General assumes, defense and justifications for non-compliance may be raised. Thus, Section
20 is valid insofar as it applies to the provisions of Chapter IV which are not struck down by the Court.

T. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and Section 26(a) on CICC’s Powers and Functions

SEC. 24. Cybercrime Investigation and Coordinating Center. — There is hereby created, within thirty (30) days from the effectivity of this Act, an
inter-agency body to be known as the Cybercrime Investigation and Coordinating Center (CICC), under the administrative supervision of the Office
of the President, for policy coordination among concerned agencies and for the formulation and enforcement of the national cybersecurity plan.

SEC. 26. Powers and Functions. — The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance for the suppression of real-time commission of cybercrime
offenses through a computer emergency response team (CERT);

(b) To coordinate the preparation of appropriate and effective measures to prevent and suppress cybercrime activities as provided for in this
Act;

(c) To monitor cybercrime cases being bandied by participating law enforcement and prosecution agencies;

(d) To facilitate international cooperation on intelligence, investigations, training and capacity building related to cybercrime prevention,
suppression and prosecution;

(e) To coordinate the support and participation of the business sector, local government units and nongovernment organizations in cybercrime
prevention programs and other

related projects;

(f) To recommend the enactment of appropriate laws, issuances, measures and policies;

(g) To call upon any government agency to render assistance in the accomplishment of the CICC’s mandated tasks and functions; and

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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
(h) To perform all other matters related to cybercrime prevention and suppression, including capacity building and such other functions and
duties as may be necessary for the proper implementation of this Act.

In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the completeness test and the
sufficient standard test. 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 to enforce it. The second test mandates adequate guidelines or limitations in the law to
determine the boundaries of the delegate’s authority and prevent the delegation from running riot.

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national cyber security plan. Also, contrary
to the position of the petitioners, the law gave sufficient standards for the CICC to follow when it provided a definition of cyber security.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best practices, assurance and technologies
that can be used to protect cyber environment and organization and user’s assets. This definition serves as the parameters within which CICC
should work in formulating the cybersecurity plan.

RULING: UNCONSTITUTIONAL PROVISIONS

G. Section 4(c)(3) on Unsolicited Commercial Communications;

SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

(c) Content-related Offenses:

(3) Unsolicited Commercial Communications. — The transmission of commercial electronic communication with the use of computer system which
seek to advertise, sell, or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers
or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject. receipt of further commercial
electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and

(cc) The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the
recipients to read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as “spam.” The term “spam” surfaced in
early internet chat rooms and interactive fantasy games. One who repeats the same sentence or comment was said to be making a “spam.”

Contention: The OSG points out that spams are nuisance. Transmitting spams amounts to trespass to one’s privacy since the person sending out
spams enters the recipient’s domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.
a. the government presents no basis for holding that unsolicited electronic ads reduce the “efficiency of computers.”
b. people, before the arrival of the age of computers, have already been receiving such unsolicited ads by mail. These have never been
outlawed as nuisance since people might have interest in such ads. What matters is that the recipient has the option of not opening or
reading these mail ads. That is true with spams. Their recipients always have the option to delete or not to read them.
c. To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited commercial ads
addressed to him.
d. Commercial speech is a separate category of speech which is not accorded the same level of protection as that given to other
constitutionally guaranteed forms of expression but is nonetheless entitled to protection.

I. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

SEC. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses
enumerated in this Act shall be held liable.
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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be
held liable.

Contention: According to the petitioners, this provision suffers from overbreadth, creating a chilling and deterrent effect on protected expression.

Actors in the cyberworld:

1. Blogger who originates the assailed statement

2. Blog service provider like Yahoo
3. Internet service provider like PLDT, Smart, Globe, or Sun
4. The internet café that may have provided the computer used for posting the blog
5. The person who makes a favorable comment on the blog
6. The person who posts a link to the blog site

Illustration: One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair with a movie star.
Linda, one of Maria’s friends who sees this post, comments online, “Yes, this is so true! They are so immoral.” Maria’s original post is then multiplied
by her friends and the latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda,
comes across this blog, finds it interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s “Followers”
then “Retweet” the link to that blog site. Pamela, a Twitter user, stumbles upon a random person’s “Retweet” of Nena’s original tweet and posts
this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments on the assailed posting. A lot of them
even press the Share button, resulting in the further spread of the original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as “Liking” an openly defamatory statement, “Commenting” on it, or “Sharing” it with others, to be
regarded as “aiding or abetting?”
a. In libel in the physical world, if Nestor places on the office bulletin board a small poster that says, “Armand is a thief!,” he could certainly
be charged with libel.
b. If Roger, seeing the poster writes on it, “I like this!,” that could not be libel since he did not author the poster.
c. If Arthur, passing by and noticing the poster, writes on it, “Correct!,” would that be libel? No, for he merely expresses agreement with the
statement on the poster. He still is not its author.

Ruling: A governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a person’s reputation
and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the area of protected freedoms. If such means are
adopted, self-inhibition borne of fear of what sinister predicaments await internet users will suppress otherwise robust discussion of public issues.

Penal laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary and discriminatory
enforcement. The terms “aiding or abetting” constitute broad sweep that generates chilling effect on those who express themselves through
cyberspace posts, comments, and other messages.. Hence, Section 5 of the cybercrime law that punishes “aiding or abetting” libel on the
cyberspace is a nullity. When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness
doctrine is acceptable.

GR: “AS APPLIED CHALLENGE”- the petitioner who claims a violation of his constitutional right can raise any constitutional ground – absence of due
process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here , one can challenge the constitutionality of a statute
only if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely on the violation of the
rights of third persons not before the court. This rule is also known as the prohibition against third-party standing.

XPN: “OVERBREADTH DOCTRINE or VAGUENESS OF THE STATUTE DOCTRINE- A petitioner may for instance mount a “facial” challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on grounds of
overbreadth or vagueness of the statute. The rationale for this exception is to counter the “chilling effect” on protected speech that comes from
statutes violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or vague law may simply
restrain himself from speaking in order to avoid being charged of a crime. The overbroad or vague law thus chills him into silence.

Cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any government threat of punishment regarding certain
uses of the medium creates a chilling effect on the constitutionally-protected freedom of expression of the great masses that use it. In this case,
the particularly complex web of interaction on social media websites would give law enforcers such latitude that they could arbitrarily or selectively
enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens are not given “fair notice” or
warning as to what is criminal conduct and what is lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s
comment aided and abetted a cybercrime while another comment did not? Of course, if the “Comment” does not merely react to the original
posting but creates an altogether new defamatory story against Armand like “He beats his wife and children,” then that should be considered an
original posting published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory publications.

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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
ADDRESSED TO THE LEGISLATURE: When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly
or unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user downloads the Facebook mobile
application, the user may give consent to Facebook to access his contact details. In this way, certain information is forwarded to third parties and
unsolicited commercial communication could be disseminated on the basis of this information.70 As the source of this information, is the user
aiding the distribution of this communication? The legislature needs to address this clearly to relieve users of annoying fear ofpossible criminal
prosecution.

SEC. 5 STILL APPLIES TO THE FOLLOWING CASES: But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be
permitted to apply to the following sections for these offenses do not border on the exercise of the freedom of expression:
1. Section 4(a)(1) on Illegal Access,
2. Section 4(a)(2) on Illegal Interception,
3. Section 4(a)(3) on Data Interference,
4. Section 4(a)(4) on System Interference,
5. Section 4(a)(5) on Misuse of Devices,
6. Section 4(a)(6) on Cyber-squatting,
7. Section 4(b)(1) on Computer-related Forgery,
8. Section 4(b)(2) on Computer-related Fraud,
9. Section 4(b)(3) on Computer-related Identity Theft, and
10. Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the freedom of expression.

K. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

SEC. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the
Revised Penal Code, as amended, or special laws.

a. There is double jeopardy with regard to line libel. Online libel is different. There should be no question that if the published material on
print, said to be libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175 involve
essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself claims that online libel under Section
4(c)(4) is not a new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes the computer system as
another means of publication. Charging the offender under both laws would be a blatant violation of the proscription against double
jeopardy.
b. There is double jeopardy with regard the Child pornography provision. The same is true with child pornography committed online.
Section 4(c)(2) merely expands the ACPA’s scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s
definition of child pornography in fact already covers the use of “electronic, mechanical, digital, optical, magnetic or any other means.”
Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional
prohibition against double jeopardy.

M. Section 12 on Real-Time Collection of Traffic Data;

SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical
or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content,
nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or
affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the
crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to
believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for obtaining such evidence

a. Is there a proper governmental purpose that will require disclosure of matters normally considered privilege? Is there rational relation
to the purpose of the law? Is there a compelling State interest behind the law?

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to the tremendous activities in
cyberspace for public good. But, not evidence of “yesterday’s traffic data” like the scene of the crime after it has been committed where real-time
data is superfluous for that purpose. In this digital age, the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from
kindred places that provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphones under pre-paid

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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
arrangements and with unregistered SIM cards do not have listed addresses and can neither be located nor identified. Evidently, it is only realtime
traffic data collection or recording and a subsequent recourse to court issued search and seizure warrant that can succeed in ferreting them out.

b. Two categories of privacy:

DECISIONAL PRIVACY INFORMATIONAL PRIVACY

involves the right to refers to the interest in avoiding
independence in making certain disclosure of personal matters
important decisions,
This is the right which is sought to
be protected by those who
oppose government collection or
recording of traffic data in real-
time

c. 2 aspects of informational privacy:

1. The right not to have private information disclosed
2. Right to live freely without surveillance and intrusion

d. Two-fold test in determining whether a matter is entitled to privacy:

1. Subjective test- one claiming the right must gave an actual or legitimate expectation of privacy over a certain matter
2. Objective test- where the person’s expectation of privacy be one society is prepared to accept as objectively reasonable.

Transmitting communications is akin to putting a letter in an envelope properly addressed, sealing it closed, and sending it through the postal
service. Those who post letters have no expectations that no one will read the information appearing outside the envelope. However, when
seemingly random bits of traffic data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used
to create profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a person’s close associations,
religious views, political affiliations, even sexual preferences. Such information is likely beyond what the public may expect to be disclosed, and
clearly falls within matters protected by the right to privacy.

Section 12 empowers law enforcement authorities, “with due cause,” to collect or record by technical or electronic means traffic data in real-time.
The Court cannot draw this meaning since Section 12 does not even bother to relate the collection of data to the probable commission of a
particular crime. It just says, “with due cause,” thus justifying a general gathering of data. It is akin to the use of a general search warrant that the
Constitution prohibits. Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement agencies
use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case against an identified suspect? Can the data be
used to prevent cybercrimes from happening? The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint.
Nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their sender or receiver and what
the data contains. This will unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad elements in these
agencies.

The grant of the power to track cyberspace communications in real time and determine their sources and destinations must be narrowly drawn to
preclude abuses.

NOTE: The void-for-vagueness doctrine and overbreadth doctrine is not applicable in this case because Section 12 neither regulates nor punishes
any free speech.

R. Section 19 on Restricting or Blocking Access to Computer Data;

SEC. 19. Restricting or Blocking Access to Computer Data. — When a computer data is prima facie found to be in violation of the provisions of
this Act, the DOJ shall issue an order to restrict or block access to such computer data.

Contention: Whether or not the provision violates the freedom of expression and the right against unreasonable search and seizures of a person?

Ruling:

COMPUTER DATA- may refer to entire programs or lines of code, including malware, as well as files that contain texts, images, audio, or video
recordings. This is also protected from the unreasonable search and seizures. secure in one’s papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable. Further, it states that no search warrant shall issue except upon probable
cause to be determined personally by the judge. Here, the Government, in effect, seizes and places the computer data under its control and
disposition without a warrant. The Department of Justice order cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on the freedom of expression over
cyberspace. Certainly not all forms of speech are protected. Legislature may, within constitutional bounds, declare certain kinds of expression as

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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
illegal. But for an executive officer to seize content alleged to be unprotected without any judicial warrant, it is not enough for him to be of him
judge, jury, and executioner all rolled into one. Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on one of or a
combination of three tests: the dangerous tendency doctrine, the balancing o interest test, and the clear and present danger rule. Section
19, however, merely requires that the data to be blocked be found prima facie in violation of any provision of the cybercrime law. Taking Section
into consideration, this can actually be made to apply in relation to any penal provision. It does not take into consideration any of the three tests
mentioned above.

NOTES ON THE PHILIPPINE PARTY-LIST SYSTEM

VETERANS FEDERATION PARTY, et al. v. COMMISSION ON ELECTIONS
G.R. No. 136781, 6 October 2000, EN BANC (Panganiban, J.)

To determine the winners in a Philippine-style party-list election, the Constitution and Republic Act (RA) No. 7941 mandate at least four inviolable
parameters. These are:

First, the twenty percent allocation - the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of
the House of Representatives, including those elected under the party list.

Second, the two percent threshold - only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are
“qualified” to have a seat in the House of Representatives;

Third, the three-seat limit - each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that
is, one “qualifying” and two additional seats.

Fourth, proportional representation - the additional seats which a qualified party is entitled to shall be computed “in proportion to their total
number of votes.”

Our 1987 Constitution introduced a novel feature into our presidential system of government -- the party-list method of representation—
embodied in Section 5, Article VI of the Constitution. Hence, a voter is given two (2) votes for the House -- one for a district congressman and
another for a party-list representative. Republic Act 7941 was enacted to implement the Constitution and accordingly, the Comelec en banc
promulgated Resolution No. 2847, prescribing the rules and regulations governing the election of party-list representatives through the party-list
system. The first election for party-list representation was held on May 11, 1998. A total of 123 parties, organizations and coalitions participated.
COMELEC proclaimed 14 party-list representatives from 12 parties which obtained at least 2% of the total number of votes cast for the party-list
system. APEC garnered 5.5% of votes, hence, they were entitled to 2 representatives.

People’s Progressive Alliance for Peace and Good Government Towards Alleviation of Poverty and Social Advancement (PAG-ASA) alleged
that he filling up of the twenty percent membership of party-list representatives in the House of Representatives, as provided under the
Constitution, was mandatory. It further claimed that the literal application of the two percent vote requirement and the three-seat limit under RA
7941 would defeat this constitutional provision.

ISSUES:

a. Is the twenty percent allocation for party-list representatives mentioned in Section 5 (2), Article VI of the Constitution, mandatory or is it
merely a ceiling? In other words, should the twenty percent allocation for party-list solons be filled up completely and all the time?
b. Are the two percent threshold requirement and the three-seat limit provided in Section 11 (b) of RA 7941 constitutional?
c. Is the 3-seat limit constitutional?
d. If the answer to Issue 2 is in the affirmative, how should the additional seats of a qualified party be determined?

HELD:

I. The 20% allocation for party-list need not be filled up completely; it is a mere ceiling

Sec. 5 conveys the message that Congress was vested with the broad power to define and prescribe the mechanics of the party-list
system of representation. Through R.A. 7941, the Congress deemed it necessary to require parties, organizations and coalitions participating in the
system to obtain at least two percent of the total votes cast for the party-list system in order to be entitled to a party-list seat. Those garnering
more than this percentage could have "additional seats in proportion to their total number of votes.” Furthermore, no winning party, organization
or coalition can have more than three seats in the House of Representatives. Hence, Section 5 (2), Article VI of the Constitution is not mandatory. It
merely provides a ceiling for party-list seats in Congress.

The 2% threshold is constitutional

Facultad de Derecho Civil 29

UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
In imposing a two percent threshold, Congress wanted to ensure that only those parties, organizations and coalitions having a sufficient
number of constituents deserving of representation are actually represented in Congress. The two percent threshold is consistent not only with the
intent of the framers of the Constitution and the law, but with the very essence of "representation." Under a republican or representative state, all
government authority emanates from the people, but is exercised by representatives chosen by them. But to have meaningful representation, the
elected persons must have the mandate of a sufficient number of people. Otherwise, in a legislature that features the party-list system, the result
might be the proliferation of small groups which are incapable of contributing significant legislation, and which might even pose a threat to the
stability of Congress. Thus, even legislative districts are apportioned according to "the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio" to ensure meaningful local representation.

The three-seat-per-party limit is constitutional

Consistent with the Constitutional Commission's pronouncements, Congress set the seat-limit to three (3) for each qualified party,
organization or coalition. "Qualified" means having hurdled the two percent vote threshold. Such three-seat limit ensures the entry of various
interest-representations into the legislature; thus, no single group, no matter how large its membership, would dominate the party-list seats, if not
the entire House.

THE 4 INVIOLABLE PARAMETERS:

First, the twenty percent allocation - the combined number of all party-list congressmen shall not exceed twenty percent of the total membership
of the House of Representatives, including those elected under the party list.

Second, the two percent threshold - only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system
are “qualified” to have a seat in the House of Representatives;

Third, the three-seat limit - each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats;
that is, one “qualifying” and two additional seats.

Fourth, proportional representation - the additional seats which a qualified party is entitled to shall be computed “in proportion to their total
number of votes.”

Steps for additional seats:

1. Rank all the participating parties, organizations and coalitions from the highest to the lowest based on the number of votes they each
received. Then the ratio for each party is computed by dividing its votes by the total votes cast for all the parties participating in the
system. All parties with at least two percent of the total votes are guaranteed one seat each. Only these parties shall be considered in the
computation of additional seats. The party receiving the highest number of votes shall thenceforth be referred to as the “first” party.
2. The next step is to determine the number of seats the first party is entitled to, in order to be able to compute that for the other parties.
Since the distribution is based on proportional representation, the number of seats to be allotted to the other parties cannot possibly
exceed that to which the first party is entitled by virtue of its obtaining the most number of votes.

For example, the first party received 1,000,000 votes and is determined to be entitled to two additional seats. Another qualified party
which received 500,000 votes cannot be entitled to the same number of seats, since it garnered only fifty percent of the votes won by the
first party. Depending on the proportion of its votes relative to that of the first party whose number of seats has already been
predetermined, the second party should be given less than that to which the first one is entitled.

The other qualified parties will always be allotted less additional seats than the first party for two reasons: (1) the ratio between said
parties and the first party will always be less than 1:1, and (2) the formula does not admit of mathematical rounding off, because there is
no such thing as a fraction of a seat. Verily, an arbitrary rounding off could result in a violation of the twenty percent allocation. An
academic mathematical demonstration of such incipient violation is not necessary because the present set of facts, given the number of
qualified parties and the voting percentages obtained, will definitely not end up in such constitutional contravention.

3. The next step is to solve for the number of additional seats that the other qualified parties are entitled to, based on proportional
representation.

Facultad de Derecho Civil 30

UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________

ANG BAGONG BAYANI-OFW LABOR PARTY v. COMELEC

G.R. No. 147589, 26 June 2001, EN BANC (Panganiban, J.)

With the onset of the 2001 elections, the Comelec received several Petitions for registration filed by sectoral parties, organizations and
political parties. Ang Bagong Bayani, et al. challenged the Comelec’s Omnibus Resolution No. 3785, which approved the participation of 154
organizations and parties, including those herein impleaded, in the 2001 party-list elections. Petitioners sought the disqualification of private
respondents, arguing mainly that the party-list system was intended to benefit the marginalized and underrepresented; not the mainstream
political parties, the non-marginalized or overrepresented.

ISSUE: Whether or not olitical parties may participate in the party-list elections

HELD: Yes. Section 5, Article VI of the Constitution provides that members of the House of Representatives may “be elected through a party-list
system of registered national, regional, and sectoral parties or organizations.” Indeed, Commissioner Monsod stated that the purpose of the party-
list provision was to open up the system, in order to give a chance to parties that consistently place third or fourth in congressional district
elections to win a seat in Congress.

For its part, Section 2 of RA 7941 also provides for “a party-list system of registered national, regional and sectoral parties or organizations or
coalitions thereof, x x x.” Section 3 expressly states that a “party” is “either a political party or a sectoral party or a coalition of parties.” More to
the point, the law defines “political party” as “an organized group of citizens advocating an ideology or platform, principles and policies for the
general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of
its leaders and members as candidates for public office.”

Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of political parties in the party-list system. Indubitably, therefore,
political parties – even the major ones -- may participate in the party-list elections.
That political parties may participate in the party-list elections does not mean, however, that any political party -- or any organization or group for
that matter -- may do so. The requisite character of these parties or organizations must be consistent with the purpose of the party-list system, as
laid down in the Constitution and RA 7941.

The foregoing provision mandates a state policy of promoting proportional representation by means of the Filipino-style party-list system, which
will “enable” the election to the House of Representatives of Filipino citizens,

1. who belong to marginalized and underrepresented sectors, organizations and parties; and

2. who lack well-defined constituencies; but

3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.

The key words in this policy are “proportional representation,” “marginalized and underrepresented,” and “lack *of+ well-defined constituencies.”

“Proportional representation” here does not refer to the number of people in a particular district, because the party-list election is national in
scope. Neither does it allude to numerical strength in a distressed or oppressed group. Rather, it refers to the representation of the “marginalized
and underrepresented” as exemplified by the enumeration in Section 5 of the law; namely, “labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.”

However, it is not enough for the candidate to claim representation of the marginalized and underrepresented, because representation is easy to
claim and to feign. The party-list organization or party must factually and truly represent the marginalized and underrepresented constituencies
mentioned in Section 5. Concurrently, the persons nominated by the party-list candidate-organization must be “Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and parties.”

Finally, “lack of well-defined constituenc*y+” refers to the absence of a traditionally identifiable electoral group, like voters of a congressional
district or territorial unit of government. Rather, it points again to those with disparate interests identified with the “marginalized or
underrepresented.”

Facultad de Derecho Civil 31

UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________

BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT) PARTY-LIST v. COMMISSION ON ELECTIONS
G.R. No. 179271, 21 April 2009, EN BANC (Carpio, J.)

ISSUE: Whether or not the application of the 2% threshold in the distribution of additional seat is constitutional?

HELD: No.

The formula mandated by the Constitution:

Section 5(1), Article VI of the Constitution states that the "House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law." The House of Representatives shall be composed of district representatives and party-list
representatives. The Constitution allows the legislature to modify the number of the members of the House of Representatives. We compute the
number of seats available to party-list representatives from the number of legislative districts. On this point, we do not deviate from the first
formula in Veterans, thus:

Number of seats available to number of seats available to

legislative districts x. 0.20 = party-list representatives
0.80

This formula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative district is
created by law. Since the 14th Congress of the Philippines has 220 district representatives, there are 55 seats available to party-list representatives.
Hence:

220 x 0.20 = 55
0.80

Section 11. Number of Party-List Representatives. — x x x

In determining the allocation of seats for the second vote,22 the following procedure shall be observed:

(a) 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.

(b) 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.

Section 12. 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.

in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as
found in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it
mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50.
The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling
that 20% of the members of the House of Representatives shall consist of party-list representatives.

To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100 participants in the party list elections. A
party that has two percent of the votes cast, or one million votes, gets a guaranteed seat. Let us further assume that the first 50 parties all get one
million votes. Only 50 parties get a seat despite the availability of 55 seats. Because of the operation of the two percent threshold, this situation
will repeat itself even if we increase the available party-list seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if the
maximum number of parties get two percent of the votes for every party, it is always impossible for the number of occupied party-list seats to
exceed 50 seats as long as the two percent threshold is present.

The Court strikes down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of
Section 11(b) of R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI
of the Constitution and prevents the attainment of "the broadest possible representation of party, sectoral or group interests in the House of
Representatives."

In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be observed:

Facultad de Derecho Civil 32

UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
a. 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.

b. 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 guaranteed seat each.

c. Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled to additional seats in proportion to
their total number of votes until all the additional seats are allocated.

d. Each party, organization, or coalition shall be entitled to not more than three (3) seats.

In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one seat each, to
every two-percenter. Thus, the remaining available seats for allocation as "additional seats" are the maximum seats reserved under the Party List
System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of
fractional seats.

In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional seats to the two-percenters. The percentage
of votes garnered by each party-list candidate is arrived at by dividing the number of votes garnered by each party by the total number of votes
cast for party-list candidates.

There are two steps in the second round of seat allocation:

1. The percentage is multiplied by the remaining available seats, which is the difference between the maximum seats reserved under the
Party-List System and the guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of the
remaining available seats corresponds to a party’s share in the remaining available seats.
2. Assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. The Court distributed all of
the remaining seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine the number of seats each
qualified party-list candidate is entitled.

ISSUE: Whether or not major political parties may participate in the party-list elections?

HELD: Yes.

Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in the party-list system. On the contrary, the framers
of the Constitution clearly intended the major political parties to participate in party-list elections through their sectoral wings. In fact, the
members of the Constitutional Commission voted down, 19-22, any permanent sectoral seats, and in the alternative the reservation of the party-
list system to the sectoral groups.

In defining a "party" that participates in party-list elections as either "a political party or a sectoral party," R.A. No. 7941 also clearly intended that
major political parties will participate in the party-list elections. Excluding the major political parties in party-list elections is manifestly against the
Constitution, the intent of the Constitutional Commission, and R.A. No. 7941. This Court cannot engage in socio-political engineering and judicially
legislate the exclusion of major political parties from the party-list elections in patent violation of the Constitution and the law.

Atong Paglaum v. COMELEC

G.R. No. 203766, 02 April 2013

Much like a swinging pendulum, the decision of the Supreme Court on which parties compose the party list system swings from one side to the
other. Previously, the Supreme Court limited the party list system to representatives of marginalized and underprivileged sectors. In Atong Paglaum
v. COMELEC (G.R. Nos. 203766, et al., April 2, 2013), the latest in the series of party list cases, the pendulum now points to the opposite side.

The New Ruling

Atong Paglaum involved 54 Petitions for Certiorari and Petitions for Certiorari and Prohibition filed by 52 party-list groups against COMELEC for
disqualifying them from participating in the May 13, 2013 party-list elections. One of the main reasons for the disqualification was their failure to
represent the marginalized and underrepresented.

Two issues were presented:

(1) Whether COMELEC committed grave abuse of discretion in disqualifying the petitioners from participating in the May 2013 elections; and

(2) Whether the criteria for participating in the party-list system laid down in Ang Bagong Bayani v. COMELEC (ABB) and BANAT v. COMELEC
(BANAT) should be applied by the COMELEC in the coming May 2013 elections.

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UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
The Supreme Court ruled that COMELEC did not commit grave abuse of discretion because it merely followed the rulings laid down in ABB and
BANAT. However, the Court decided to abandon these rulings and adopted new parameters for the upcoming elections; thus, it remanded the case
to COMELEC so the latter can determine the status of the petitioners based on the following new guidelines:

1. 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.

2. 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.

3. 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. A political party, whether major or not, that fields candidates in legislative district elections can participate in partylist 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.

4. 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. 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.

5. 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. Similarly, a majority of the members of sectoral parties or organizations that lack
“well-defined political constituencies” must belong to the sector they represent. The nominees of sectoral parties or organizations that represent
the “marginalized and underrepresented,” or that represent those who lack “well-defined political constituencies,” either must belong to their
respective sectors, or must have a track record of advocacy for their respective sectors. The nominees of national and regional parties or
organizations must be bona-fide members of such parties or organizations.

6. 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.

It is clear from the foregoing that a new rule has been set: not all parties in the party-list system have to represent a sector that is marginalized and
underrepresented.

According to the Supreme Court, the framers of the Constitution never intended the party-list system to be reserved for sectoral parties. The latter
were only part of the party-list system not the entirety of it. There were two more groups composing the system — national and regional parties.
This is evident from the phrasing of Section 5, Article VI of the Constitution, which states that:

The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be
elected from legislative districts…and those who, as provided by law, shall be elected through a party-list system of registered national, regional,
and sectoral parties or organizations. (emphasis supplied)

National and regional parties are different from sectoral parties such that the former need not organize along sectoral lines and represent a
particular sector. Hence, it is not necessary for these parties to be representative of the marginalized and underrepresented. In fact, Republic Act
No. 7941, the enabling law of the party-list elections under the Constitution, does not require these parties to fall under this criterion. The Supreme
Court emphasized that the phrase ‘marginalized and underrepresented’ appeared only once in R.A. No. 7941, particularly in the Declaration of
Policy. The section provides:

The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system
of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute
to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible
representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the
legislature, and shall provided the simplest scheme possible.

The oft-quoted phrase neither appeared in the specific implementing provisions of R.A. No. 7941 nor did it require sectors, organizations, or parties
to fall under the criterion as well. In this regard, how then should the broad policy declaration in Section 2 of R.A. No. 7941 be harmonized with its
specific implementing provisions, bearing in mind the applicable provisions of the 1987 Constitution on the matter?

The Supreme Court answered in this wise:

The phrase “marginalized and underrepresented” should refer only to the sectors in Section 5 that are, by their nature, economically “marginalized
and underrepresented.” These sectors are: labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans,
overseas workers, and other similar sectors. For these sectors, a majority of the members of the sectoral party must belong to the “marginalized
Facultad de Derecho Civil 34
UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
and underrepresented.” The nominees of the sectoral party either must belong to the sector, or must have a track record of advocacy for the
sector represented…

The recognition that national and regional parties, as well as sectoral parties of professionals, the elderly, women and the youth, need not be
“marginalized and underrepresented” will allow small ideology-based and cause-oriented parties who lack “well-defined political constituencies” a
chance to win seats in the House of Representatives. On the other hand, limiting to the “marginalized and underrepresented” the sectoral parties
for labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, overseas workers, and other sectors that by
their nature are economically at the margins of society, will give the “marginalized and underrepresented” an opportunity to likewise win seats in
the House of Representatives.

This interpretation will harmonize the 1987 Constitution and R.A. No. 7941 and will give rise to a multi-party system where those “marginalized and
underrepresented,” both in economic and ideological status, will have the opportunity to send their own members to the House of
Representatives. This interpretation will also make the party-list system honest and transparent, eliminating the need for relatively well-off party-
list representatives to masquerade as “wallowing in poverty, destitution and infirmity,” even as they attend sessions in Congress riding in SUVs.

Based on the Court’s ratiocination, only sectoral parties for labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped,
veterans, overseas workers, and other sectors that by their nature are economically at the margins of society must comply with the criterion of
representing the marginalized and underrepresented. For national, regional, and sectoral parties of professionals, the elderly, women and the
youth, it is sufficient that they consist of “citizens who advocate the same ideology or platform, or the same governance principles and policies,
regardless of their economic status as citizens.”

Consequently, since political parties are essentially national and regional parties, the Supreme Court categorically stated that they may participate
in the party-list elections. The rules for their participation are found under guideline number three.

Evolution of Party-List Cases

ABB and BANAT were the prevailing jurisprudence prior to Atong Paglaum.

In ABB, the Supreme Court recognized that even major political parties may join the party list elections. However, the Supreme Court went on
saying that although they may participate, it does not mean that any political party — or group for that matter — may do so. It is essential for these
parties to be consistent with the purpose of the party-list system, as laid down in the Constitution and R.A. No. 7941.

According to the Supreme Court, the purpose of the party-list system is clear: “to give genuine power to the people, not only by giving more law to
those who have less in life, but more so by enabling them to become veritable lawmakers themselves.” Essentially, the goal is to give voice to the
voiceless — to enable Filipino citizens belonging to the marginalized and underrepresented to become members of Congress.

Hence, only parties representing the marginalized and underrepresented may join the party-list elections. The Supreme Court stressed that the
party-list system cannot be exclusive to marginalized and underrepresented because if the rich and overrepresented can participate, it would
desecrate the spirit of the party-list system.

In BANAT where the Supreme Court again had the opportunity to deal with the matter, it categorically declared, by a vote of 8-7, that major
political parties are barred from participating either directly or indirectly from the party-list elections.

Clearly, the doctrine in Atong Paglaum is in stark contrast with the former interpretation of the party-list system. The Supreme Court’s reasoning in
both decisions also sits at opposite sides of the scale. In ABB and BANAT, the Supreme Court concentrated on the spirit and purpose of the party-
list system while in Atong Paglaum, it focused on the letter of the law and the intent of the Constitution’s framers and Congress.

Facultad de Derecho Civil 35

UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
shall originate exclusively in the House of
Representatives, but the Senate may propose
REVALIDA QUESTIONS: or concur with amendments.
Batch 1
Q: What bills must originate exclusively from the House of
Representatives?
RIGHT OF THE PEOPLE TO A BALANCED AND HEALTHFUL ECOLOGY
A: (APRIL)
Q: The Right of the people to a balanced and healthful ecology is
found under Art. 2, sec. 16. It is embodied under the Declaration of
a. appropriation
Principles and State Policies. In general, provisions of Article II are
b. revenue
not self-executing. They are mere principles and policies that will
c. tariff bills
aid the congress. Is this provision self-executing?
d. bills authorizing increase of the public debt,
e. bills of local application, and
A: Unless it is expressly provided that a legislative act is necessary to
f. private bills
enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing. If the
NOTE: An example of a private bill is one which grants Philippine
constitutional provisions are treated as requiring legislation instead
citizenship to an alien. As a private bill, it must originate exclusively
of self-executing, the legislature would have the power to ignore
from the House of Representatives.
and practically nullify the mandate of the fundamental law (Manila
Prince Hotel v. GSIS, 1997).
PARLIAMENTARY IMMUNITY; BAIL
Q: That provision of Sec. 16, Art. 2 states that “The State shall
Q: Congressman Jalosjos was charged with statutory rape. At that
protect and advance the right of the people to a balanced and
time, can he invoke his privilege from arrest under Section 11 of
healthful ecology in accord with the rhythm and harmony of
Article 6?
nature.” This speaks of a right. Remember, the rights are found
under the Bill of Rights. Does it mean it is less important than any
A: No.
of the rights under the Bill of Rights?
Section 11. A Senator or Member of the House
A: While the right to a balanced and healthful ecology is to be found
of Representatives shall, in all offenses
under the Declaration of Principles and State Policies and not under
punishable by not more than six years
the Bill of Rights, it does not follow that it is less important than any
imprisonment, be privileged from arrest while
of the civil and political rights enumerated in the latter. Such a right
the Congress is in session. No Member shall be
belongs to a different category of rights altogether for it concerns
questioned nor be held liable in any other place
nothing less than self-preservation and self-perpetuation — aptly
for any speech or debate in the Congress or in
and fittingly stressed by the petitioners — the advancement of
any committee thereof.
which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even
Q: What are the limitations on the parliamentary immunity?
be written in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned in the
A:
fundamental charter, it is because of the well-founded fear of its
framers that unless the rights to a balanced and healthful ecology
1. Crime has a maximum penalty of not more than 6 years;
and to health are mandated as state policies by the Constitution
2. Congress is in session, whether regular or special;
itself, thereby highlighting their continuing importance and imposing
3. Prosecution will continue independent of arrest;
upon the state a solemn obligation to preserve the first and protect
4. Will be subject to arrest immediately when Congress
and advance the second, the day would not be too far when all else
adjourns
would be lost not only for the present generation, but also for those
to come — generations which stand to inherit nothing but parched
Q: After trial, he was convicted by the RTC. During pendency of his
earth incapable of sustaining life (Oposa v. Factoran, 1993).
appeal, should he be allowed to post bail?
LEGISLATIVE DEPARTMENT
A: No.
Q: The Philippines will be participating in FIBA in Spain. There are
Q: When is bail considered as a matter of right?
certain athletes there who are not Filipinos. The Congress wants to
grant Philippine citizenship to NBA players like Ja Vale Mc Gee and
A:
Andray Blatche. Question, assuming that you are a Congressman
and you want to sponsor a bill to grant these athletes Philippine
ART. 3, SEC. 13: All persons, except those
citizenship. What kind of bill is this? Where should it originate?
charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall,
A: It is a private bill.
before conviction, be bailable by sufficient
sureties, or be released on recognizance as may
Section 24. All appropriation, revenue or tariff
be provided by law. The right to bail shall not be
bills, bills authorizing increase of the public
impaired even when the privilege of the writ of
debt, bills of local application, and private bills,

Facultad de Derecho Civil 36

UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
habeas corpus is suspended. Excessive bail shall (d) That the circumstances of his case
not be required. indicate the probability of flight if released on
bail; or
All persons in custody shall be admitted to bail as a matter of right, (e) That there is undue risk that he may
with sufficient sureties, or be released on recognizance as commit another crime during the pendency of
prescribed by law: the appeal.

1. Before or after conviction by the MTC; and The appellate court may, motu proprio or on
2. Before conviction by the RTC of an offense not punishable motion of any party, review the resolution of
by death, reclusion perpetua or life imprisonment. the Regional Trial Court after notice to the
3. The evidence of guilt is not strong. adverse party in either case. (5a)

NOTE: After conviction but pending appeal, the right to appeal is no For Jalosjos, Sec. 5 may not even apply. The penalty imposed upon
longer a matter of right. Sec. 13 finds application only before Jalosjos is reclusion perpetua. Even section 5 will not apply. Hence,
conviction. pending appeal, he can no longer apply for bail. Bail here is not even
a matter of discretion. Since he was convicted of a crime which is
Before conviction, bail is a matter of right only when the imposable penalized by law by imprisonment of more than 6 years, reclusion
penalty is lower than reclusion perpetua. It is a matter of discretion, perpetua, simply means that the evidence of guilt is strong. The 2
when the imposable penalty is reclusion perpetua or higher. In such circumstances for the denial of the application for bail are already
a case, it is mandatory for the court to conduct a hearing. The present. Here, bail is not even a matter of discretion.
purpose of the hearing is to determine whether the certainty of guilt
is strong or not. In case of Jalosjos, it is already after conviction. Sec. Under Section 13 of Art. 3, the most important phrase was “before
13 will no longer find application. Most probably, the provision of conviction”. After conviction but pending appeal, Sec.1 3 will not
the Rules of Court will apply: find application anymore. Chances are, Sec. 5 of Rule 114 will come
into play. Under Sec. 4 of Rule 114:
RULE 114, SEC. 5: Bail, when discretionary. —
Upon conviction by the Regional Trial Court of Section 4. Bail, a matter of right;
an offense not punishable by death, reclusion exception. — All persons in custody shall be
perpetua, or life imprisonment, admission to admitted to bail as a matter of right, with
bail is discretionary. The application for bail sufficient sureties, or released on recognize as
may be filed and acted upon by the trial court prescribed by law or this Rule (a) before or after
despite the filing of a notice of appeal, provided conviction by the Metropolitan Trial Court,
it has not transmitted the original record to the Municipal Trial Court, Municipal Trial Court in
appellate court. However, if the decision of the Cities, or Municipal Circuit Trial Court, and (b)
trial court convicting the accused changed the before conviction by the Regional Trial Court of
nature of the offense from non-bailable to an offense not punishable by death, reclusion
bailable, the application for bail can only be perpetua, or life imprisonment. (4a)
filed with and resolved by the appellate court.
The ratio for Sec 4 is obvious. The jurisdiction of the MTC covers
Should the court grant the application, the crimes not punishable by imprisonment of more than 6 years. There
accused may be allowed to continue on can even be a mere recognizance.
provisional liberty during the pendency of the
appeal under the same bail subject to the INTERNATIONAL CRIMINAL COURT
consent of the bondsman.
Q: A development in international law is the creation of the
If the penalty imposed by the trial court is International Criminal Court of which we are a signatory. The
imprisonment exceeding six (6) years, the treaty which created such was the Rome Statute. Rome Statute is a
accused shall be denied bail, or his bail shall be treaty. What are the offenses under its jurisdiction?
cancelled upon a showing by the prosecution,
with notice to the accused, of the following or A: The Rome Statute established the International Criminal Court
other similar circumstances: which “shall have the power to exercise its jurisdiction over persons
for the most serious crimes of international concern xxx and shall be
(a) That he is a recidivist, quasi-recidivist, complementary to the national criminal jurisdictions.” Its
or habitual delinquent, or has committed the jurisdiction covers the crime of:
crime aggravated by the circumstance of 1. genocide,
reiteration; 2. crimes against humanity,
(b) That he has previously escaped from 3. war crimes and
legal confinement, evaded sentence, or violated 4. crime of aggression as defined in the Statute (Pimentel, Jr.
the conditions of his bail without valid v. Office of the Executive Secretary, 2005)
justification;
(c) That he committed the offense while Q: What is “genocide”?
under probation, parole, or conditional pardon;
A: It is the deliberate destruction or annihilation of a racial, ethnic or
religious group.
Facultad de Derecho Civil 37
UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
commission whose members were not elected by the
Q: What is the “Principle of Complementarity” in the Statute of the people but were appointed by then President Cory Aquino.
International Criminal Court?
2 ways of calling a con-con:
A: The International Criminal Court shall be complementary to the
national criminal jurisdictions. So that, if a court of one state already 1. Congress may directly call by 2/3 votes of its
assumes jurisdiction over a person accused of having committed of members
any of those crimes falling within its jurisdiction, the ICC shall no 2. By the congress instead of directly calling may
longer assume jurisdiction. The ICC shall be complementary to the submit the issue calling the constitutional
national criminal jurisdictions. convention by a vote of majority

XPN: If the purpose of the trial in such state is to protect the c. People's initiative – a petition signed by at least 12% of
accused from criminal liability, or if it is not being conducted registered voters provided that at least 3% of each
independently or impartially, the ICC may still assume jurisdiction. legislative district signed the same (Sec. 2 of article 17).
This is limited to proposing amendment not revisions.
Batch 2:
Section 2. Amendments to this Constitution
REVISIONS AND AMENDMENTS may likewise be directly proposed by the
people through initiative upon a petition of at
Section 1. Any amendment to, or revision of, least twelve per centum of the total number of
this Constitution may be proposed by: registered voters, of which every legislative
district must be represented by at least three
The Congress, upon a vote of three-fourths of per centum of the registered voters therein. No
all its Members; or amendment under this section shall be
authorized within five years following the
A constitutional convention. ratification of this Constitution nor oftener than
once every five years thereafter.
Section 2. Amendments to this Constitution
may likewise be directly proposed by the The Congress shall provide for the
people through initiative upon a petition of at implementation of the exercise of this right.
least twelve per centum of the total number of
registered voters, of which every legislative Q: Can revisions be done through initiative?
district must be represented by at least three
per centum of the registered voters therein. No A: No.
amendment under this section shall be
authorized within five years following the THE VOID FOR VAGUENESS DOCTRINE AND OVERBREADTH
ratification of this Constitution nor oftener than DOCTRINE
once every five years thereafter.
Q: A development under the Bill of Rights: “the void for vagueness
The Congress shall provide for the doctrine and overbreadth doctrine”.
implementation of the exercise of this right.
A:
Section 3. The Congress may, by a vote of two-
thirds of all its Members, call a constitutional SOUTHERN HEMISPHERE ENGAGEMENT NETWORK v. ANTI-
convention, or by a majority vote of all its TERRORISM COUNCIL
Members, submit to the electorate the G.R. No. 178552, 5 October 2010, EN BANC (Carpio-Morales, J.)
question of calling such a convention.
HELD:
Q: Under Art 17 of the Constitution, what are the ways of
proposing amendments and revision? The Court stated that “the overbreadth and the vagueness
doctrines have special application only to free-speech cases,” and
A: are “not appropriate for testing the validity of penal statutes.”

a. Constituent assembly: 3/4 votes of all its members where FACIAL CHALLENGE- A facial challenge is allowed to be made to a
the congress will act as a “constituent assembly” to vague statute and to one which is overbroad because of possible
propose amendments or revisions "chilling effect" upon protected speech. The theory is that "when
b. Constitutional convention: a body separate and distinct statutes regulate or proscribe speech and no readily apparent
from the congress itself whose members shall be elected construction suggests itself as a vehicle for rehabilitating the
by the people in their legislative districts. The congress statutes in a single prosecution, the transcendent value to all society
cannot convert itself to a constitutional convention. of constitutionally protected expression is deemed to justify
Historically, the 1935 Constitution was drafted and allowing attacks on overly broad statutes with no requirement that
proposed by a constitutional convention. Same with the the person making the attack demonstrate that his own conduct
1973 Constitution. The 1987 Constitution, it was drafted could not be regulated by a statute drawn with narrow specificity."
and proposed not by a convention but by a constitutional The possible harm to society in permitting some unprotected speech
Facultad de Derecho Civil 38
UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
to go unpunished is outweighed by the possibility that the protected protected
speech of others may be deterred and perceived grievances left to By its nature, the overbreadth
fester because of possible inhibitory effects of overly broad statutes. doctrine has to necessarily apply a
facial type of invalidation in order
This rationale does not apply to penal statutes. Criminal statutes to plot areas of protected speech,
have general in terrorem effect resulting from their very existence, inevitably almost always under
and, if facial challenge is allowed for this reason alone, the State situations not before the court,
may well be prevented from enacting laws against socially harmful that are impermissibly swept by
conduct. In the area of criminal law, the law cannot take chances as the substantially overbroad
in the area of free speech. regulation. Otherwise stated, a
statute cannot be properly
NOTE: Indeed, "on its face" invalidation of statutes results in striking analyzed for being substantially
them down entirely on the ground that they might be applied to overbroad if the court confines
parties not before the Court whose activities are constitutionally itself only to facts as applied to the
protected. It constitutes a departure from the case and controversy litigants.
requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract contexts. Facial Challenge v. As Applied Challenge

For these reasons, "on its face" invalidation of statutes has been FACIAL CHALLENGE AS APPLIED CHALLENGE
described as "manifestly strong medicine," to be employed an examination of the entire law, considers only extant facts
"sparingly and only as a last resort," and is generally disfavored. In pinpointing its flaws and defects, affecting real litigants
determining the constitutionality of a statute, therefore, its not only on the basis of its actual
provisions which are alleged to have been violated in a case must be operation to the parties, but also
examined in the light of the conduct with which the defendant is on the assumption or prediction
charged that its very existence may cause
others not before the court to
The Doctrine of void for vagueness is different from the refrain from constitutionally
overbreadth doctrine protected speech or activities

VOID FOR VAGUENESS OVERBREADTH DOCTRINE NOTE: The allowance of a facial challenge in free speech cases is
A statute or act suffers from Decrees that a governmental justified by the aim to avert the “chilling effect” on protected
the defect of vagueness when purpose to control or prevent speech, the exercise of which should not at all times be abridged.
it lacks comprehensible activities constitutionally subject to
standards that men of state regulations may not be The void for vagueness affects the substantive due process.
common intelligence must achieved by means which sweep
necessarily guess at its unnecessarily broadly and thereby Q: What are the 2 aspects of due process?
meaning and differ as to its invade the area of protected
application. freedoms A:
It is repugnant to the SANDOVAL: It fails to delineate the
Constitution (it is vague) in boundary between those a. Procedural- method or manner by which law is enforced;
two respects: constitutionally permissible and its essence is notice and hearing or opportunity to be
a. it violates due the constitutionally impermissible heard.
process for failure to application of the statute. It will b. Substantive - the law itself is fair, reasonable and just
accord persons, even intrude to those freedoms
especially the affirmatively protected by the Q: In view of the worsening traffic in Manila, the Congress passed a
parties targeted by Constitution like the freedom of law which mandates the apprehension of traffic violators and
it, fair notice of the expression, freedom of religion. providing for the penalty of reclusion perpetua. Is this valid?
conduct to avoid; Take note that the SC said that the
and act must be utterly vague on its A: No, the law is unfair and unjust. The penalty is disproportionate
b. it leaves law face to be declared such, meaning to the offense. The violators are deprived of life, liberty of property
enforcers unbridled it may not be qualified by a: without substantive due process of law.
discretion in a. saving clause, or a
carrying out its b. statutory construction THE JUDICIAL DEPARTMENT: RULE-MAKING POWER OF THE
provisions and SUPREME COURT
becomes an
arbitrary flexing of Q: What is the basis of the promulgation of the supreme court of
the Government the writ of kalikasan?
muscle.
The overbreadth doctrine assumes A: Rule making power of the Supreme Court under Art. 8, section 5
that individuals will understand (par.5). The same rationale is involved in the promulgation of the
what a statute prohibits and will writ of amparo and writ of habeas data:
accordingly refrain from that
behavior, even though some of it is

Facultad de Derecho Civil 39

UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
Section 5. The Supreme Court shall have the parties or organizations, and (3) sectoral parties or
following powers: organizations.
2. National parties or organizations and regional parties or
Xxx organizations do not need to organize along sectoral lines
and do not need to represent any “marginalized and
Promulgate rules concerning the protection and underrepresented” sector.
enforcement of constitutional rights, pleading, 3. Political parties can participate in party-list elections
practice, and procedure in all courts, the provided they register under the party-list system and do
admission to the practice of law, the integrated not field candidates in legislative district elections. A
bar, and legal assistance to the under- political party, whether major or not, that fields
privileged. Such rules shall provide a simplified candidates in legislative district elections can participate in
and inexpensive procedure for the speedy partylist elections only through its sectoral wing that can
disposition of cases, shall be uniform for all separately register under the party-list system. The
courts of the same grade, and shall not sectoral wing is by itself an independent sectoral party,
diminish, increase, or modify substantive rights. and is linked to a political party through a coalition.
Rules of procedure of special courts and quasi- 4. Sectoral parties or organizations may either be
judicial bodies shall remain effective unless “marginalized and underrepresented” or lacking in “well-
disapproved by the Supreme Court. defined political constituencies.” It is enough that their
principal advocacy pertains to the special interest and
Batch 3 concerns of their sector. The sectors that are
“marginalized and underrepresented” include labor,
LEGISLATIVE DEPARTMENT: PARTY LIST SYSTEM peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, and overseas
Q: Can the Liberal Party participate in the party list elections? workers. The sectors that lack “well-defined political
constituencies” include professionals, the elderly, women,
A: Yes. Political parties can participate in party-list elections and the youth.
provided they register under the party-list system and do not field 5. A majority of the members of sectoral parties or
candidates in legislative district elections. A political party, whether organizations that represent the “marginalized and
major or not, that fields candidates in legislative district elections underrepresented” must belong to the “marginalized and
can participate in partylist elections only through its sectoral wing underrepresented” sector they represent. Similarly, a
that can separately register under the party-list system. The sectoral majority of the members of sectoral parties or
wing is by itself an independent sectoral party, and is linked to a organizations that lack “well-defined political
political party through a coalition constituencies” must belong to the sector they represent.
The nominees of sectoral parties or organizations that
Q: Who may participate in the party-list elections? represent the “marginalized and underrepresented,” or
that represent those who lack “well-defined political
A: There are 3 groups: constituencies,” either must belong to their respective
sectors, or must have a track record of advocacy for their
1. National respective sectors. The nominees of national and regional
2. Regional parties or organizations must be bona-fide members of
3. Sectoral: such parties or organizations.
a. Marginalized and underrepresented sector including 6. National, regional, and sectoral parties or organizations
labor, peasant, fisherfolk, urban poor, indigenous shall not be disqualified if some of their nominees are
cultural communities, handicapped, veterans, and disqualified, provided that they have at least one nominee
overseas workers who remains qualified.
b. Those who lack well-defined political constituencies
including professionals, the elderly, women, and the It is clear from the foregoing that a new rule has been set: not all
youth. parties in the party-list system have to represent a sector that is
marginalized and underrepresented.
NOTE: Thus, the party-list system is composed of three different
groups: (1) national parties or organizations; (2) regional parties or Q: How many should be the party list representatives?
organizations; and (3) sectoral parties or organizations. National and
regional parties or organizations are different from sectoral parties A: Section 5, paragraph 2 of Article VI:
or organizations. National and regional parties or organizations need
not be organized along sectoral lines and need not represent any 2. The party-list representatives shall constitute
particular sector. twenty per centum of the total number of
representatives including those under the party
ATONG PAGLAUM, INC., et al. v. COMMISSION ON ELECTIONS list. For three consecutive terms after the
G.R. No. 203766, 2 April 2013, EN BANC, (Carpio, J.) ratification of this Constitution, one-half of the
seats allocated to party-list representatives
Rules: shall be filled, as provided by law, by selection
or election from the labor, peasant, urban poor,
1. Three different groups may participate in the party-list indigenous cultural communities, women,
system: (1) national parties or organizations, (2) regional
Facultad de Derecho Civil 40
UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
youth, and such other sectors as may be maximum of 3 seats; that is, one (1) qualifying and two (2)
provided by law, except the religious sector. additional seats.

Q: May the Iglesia Ni Cristo participate in the party-list election? Ratio: The congress found it necessary to include the 3
seat limit rule to avoid concentration of powers to only 1
A: No. Section 5, paragraph 2 of Article VI: party.

The party-list representatives shall constitute d. The Proportional Representation—the additional seats
twenty per centum of the total number of which a qualified party is entitled to shall be computed “in
representatives including those under the party proportion to their total number of votes”. (Veterans
list. For three consecutive terms after the Federation Party vs. COMELEC, G.R. No. 136781, October
ratification of this Constitution, one-half of the 6, 2000)
seats allocated to party-list representatives
shall be filled, as provided by law, by selection PDAF: VIOLATION OF THE PRINCIPLE OF NON-DELEGATION OF
or election from the labor, peasant, urban poor, POWERS
indigenous cultural communities, women,
youth, and such other sectors as may be Q: One of the reasons why the court declared the PDAF as
provided by law, except the religious sector unconstitutional is because it violates the principle of non-
delegation of powers as expressed in the maxim: potestas delegata
Article IX-C, Sec. 2, paragraph C: non delegare potest. What are the instances of 5 permissible
delegation of powers?
Register, after sufficient publication, political
parties, organizations, or coalitions which, in A: PETAL
addition to other requirements, must present
their platform or program of government; and 1. Delegation to the people through plebiscite and
accredit citizens' arms of the Commission on referendum (Sec. 1, Art. 6)
Elections. Religious denominations and sects
shall not be registered. Those which seek to Section 1. The legislative power shall be vested
achieve their goals through violence or in the Congress of the Philippines which shall
unlawful means, or refuse to uphold and consist of a Senate and a House of
adhere to this Constitution, or which are Representatives, except to the extent reserved
supported by any foreign government shall to the people by the provision on initiative and
likewise be refused registration. referendum.

Financial contributions from foreign 2. Emergency powers delegated by the congress (may by
governments and their agencies to political law) to the president (Sec. 23 (2), Art. 6)
parties, organizations, coalitions, or candidates
related to elections, constitute interference in In times of war or other national emergency,
national affairs, and, when accepted, shall be the Congress may, by law, authorize the
an additional ground for the cancellation of President, for a limited period and subject to
their registration with the Commission, in such restrictions as it may prescribe, to exercise
addition to other penalties that may be powers necessary and proper to carry out a
prescribed by law. declared national policy. Unless sooner
withdrawn by resolution of the Congress, such
Q: May a priest be a representative of a party-list group? powers shall cease upon the next adjournment
thereof.
A: Yes.
3. Tariff powers to the president (Sec. 28 (2), Art. 6)
Q: What are the parameters in determining who are the winners in
a party-list poll? The Congress may, by law, authorize the
President to fix within specified limits, and
A: subject to such limitations and restrictions as it
may impose, tariff rates, import and export
a. The Twenty Percent (20%) Allocation—the combined quotas, tonnage and wharfage dues, and other
number of all party-list congressmen shall not exceed duties or imposts within the framework of the
twenty percent (20%) of the total membership of the national development program of the
House of Representative, including those elected under Government
the party-list;
b. The Two Percent (2%) Threshold—only those garnering a 4. Delegation to Administrative agencies
minimum of 2% of the total valid votes cast for the party- 5. Delegation to Local government.
list system are qualified to have a seat in the HOR;
c. The Three (3) Seat Limit—each qualified party, regardless Q: What are the 2 kinds of pork barrel?
of the number of votes it actually obtained, is entitled to a
A:
Facultad de Derecho Civil 41
UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________

1. Presidential pork barrel The Court agrees with petitioners that the phrase "and for such
a. Malampaya funds other purposes as may be hereafter directed by the President"
b. Presidential social funds (PSF) under Section 8 of PD 910 constitutes an undue delegation of
2. Congressional pork barrel legislative power insofar as it does not lay down a sufficient
standard to adequately determine the limits of the President‘s
Q: How was the principle of non-delegation of powers violated by authority with respect to the purpose for which the Malampaya
the PDAF? Funds may be used. As it reads, the said phrase gives the President
wide latitude to use the Malampaya Funds for any other purpose he
A: may direct and, in effect, allows him to unilaterally appropriate
public funds beyond the purview of the law. That the subject phrase
GRECO ANTONIOUS BEDA B. BELGICA, et al. v. HON. EXEC. SEC. may be confined only to "energy resource development and
PAQUITO N. OCHOA, JR. exploitation programs and projects of the government" under the
G.R. No. 208566, 19 November 2013, En Banc (Perlas-Bernabe, J.) principle of ejusdem generis, meaning that the general word or
phrase is to be construed to include – or be restricted to – things
As an adjunct to the separation of powers principle, legislative akin to, resembling, or of the same kind or class as those specifically
power shall be exclusively exercised by the body to which the mentioned, is belied by three (3) reasons: first, the phrase "energy
Constitution has conferred the same. In particular, Section 1, Article resource development and exploitation programs and projects of
VI of the 1987 Constitution states that such power shall be vested in the government" states a singular and general class and hence,
the Congress of the Philippines which shall consist of a Senate and a cannot be treated as a statutory reference of specific things from
House of Representatives, except to the extent reserved to the which the general phrase "for such other purposes" may be limited;
people by the provision on initiative and referendum. Based on this second, the said phrase also exhausts the class it represents, namely
provision, it is clear that only Congress, acting as a bicameral body, energy development programs of the government;250 and, third,
and the people, through the process of initiative and referendum, the Executive department has, in fact, used the Malampaya Funds
may constitutionally wield legislative power and no other. for non-energy related purposes under the subject phrase, thereby
contradicting respondents‘ own position that it is limited only to
In the cases at bar, the Court observes that the 2013 PDAF Article, "energy resource development and exploitation programs and
insofar as it confers post-enactment identification authority to projects of the government." Thus, while Section 8 of PD 910 may
individual legislators, violates the principle of non-delegability since have passed the completeness test since the policy of energy
said legislators are effectively allowed to individually exercise the development is clearly deducible from its text, the phrase "and for
power of appropriation, which – as settled in Philconsa – is lodged in such other purposes as may be hereafter directed by the President"
Congress. That the power to appropriate must be exercised only under the same provision of law should nonetheless be stricken
through legislation is clear from Section 29(1), Article VI of the 1987 down as unconstitutional as it lies independently unfettered by any
Constitution which states that: "No money shall be paid out of the sufficient standard of the delegating law. This notwithstanding, it
Treasury except in pursuance of an appropriation made by law." To must be underscored that the rest of Section 8, insofar as it allows
understand what constitutes an act of appropriation, the Court, in for the use of the Malampaya Funds "to finance energy resource
Bengzon v. Secretary of Justice and Insular Auditor (Bengzon), held development and exploitation programs and projects of the
that the power of appropriation involves (a) the setting apart by law government," remains legally effective and subsisting. Truth be told,
of a certain sum from the public revenue for (b) a specified purpose. the declared unconstitutionality of the aforementioned phrase is but
Essentially, under the 2013 PDAF Article, individual legislators are an assurance that the Malampaya Funds would be used – as it
given a personal lump-sum fund from which they are able to dictate should be used – only in accordance with the avowed purpose and
(a) how much from such fund would go to (b) a specific project or intention of PD 910.
beneficiary that they themselves also determine. As these two (2)
acts comprise the exercise of the power of appropriation as FREEDOM OF EXPRESSION: CONTENT NEUTRAL AND CONTENT
described in Bengzon, and given that the 2013 PDAF Article BASED REGULATIONS
authorizes individual legislators to perform the same, undoubtedly,
said legislators have been conferred the power to legislate which the Q: One of the rights enshrined under our Constitution is the
Constitution does not, however, allow. Thus, keeping with the Freedom of Expression which includes the Freedom of Assembly.
principle of non-delegability of legislative power, the Court hereby The Congress enacted B.P 880 (The Public Assembly Act of 1985).
declares the 2013 PDAF Article, as well as all other forms of In Bayan v. Ermita, the Court upheld the constitutionality of B.P
Congressional Pork Barrel which contain the similar legislative 880. In fact it was merely a content-neutral regulation. Expound on
identification feature as herein discussed, as unconstitutional. this. What are content-based and content-neutral regulation when
we think of freedom of expression, particularly the freedom of
Q: What power of congress is relative to this? assembly.

A: The power of appropriation. A:

Q: With regard the Malamapaya Funds, what was violated? CONTENT-BASED RESTRICTIONS- are imposed because of the
content of the speech and are, therefore, subject to the clear-and-
A: Petitioners contend that Section 8 of PD 910 constitutes an undue present danger test. For example, a rule such as that involved in
delegation of legislative power since the phrase "and for such other Sanidad v. COMELEC, prohibiting columnists, commentators, and
purposes as may be hereafter directed by the President" gives the announcers from campaigning either for or against an issue in a
President "unbridled discretion to determine for what purpose the plebiscite must have compelling reason to support it, or it will not
funds will be used. pass muster under strict scrutiny. These restrictions are censorial
Facultad de Derecho Civil 42
UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
and therefore they bear a heavy presumption of constitutional expression; and (4) if the incidental restriction on alleged First
invalidity. In addition, they will be tested for possible overbreadth Amendment freedoms (of speech, expression and press) is no
and vagueness. greater than is essential to the furtherance of that interest. This is so
far the most influential test for distinguishing content-based from
Atty. Sandoval: If it is content-based, you restrict the very content of content-neutral regulations and is said to have “become canonical in
the speech or a particular category of speech. For example, political the review of such laws.” It is noteworthy that the O’ Brien test has
view point speech, if that is restricted, that is content-based been applied by this Court in at least two cases.
restriction. They are presumptively invalid and because of such
presumption, the courts apply strict scrutiny on content-based Under this test, even if a law furthers an important or substantial
restrictions. There are 3 levels of scrutiny: governmental interest, it should be invalidated if such governmental
interest is “not unrelated to the suppression of free expression.”
1. Strict scrutiny Moreover, even if the purpose is unrelated to the suppression of
2. Intermediate scrutiny free speech, the law should nevertheless be invalidated if the
3. Reasonable or lenient scrutiny restriction on freedom of expression is greater than is necessary to
achieve the governmental purpose in question. (Social Weather
CONTENT-NEUTRAL RESTRICTIONS- on the other hand, like Sec. Stations, Inc. v. Comelec, G.R. No. 147571, May 5, 2001, En Banc
11(b) of R.A. No. 6646, which prohibits the sale or donation of print [Mendoza])
space and air time to political candidates during the campaign
period, are not concerned with the content of the speech. These Q: At the height of the “Hello Garci” controversy, the Arroyo
regulations need only a substantial governmental interest to support Administration adopted the so-called “calibrated preemptive
them. A deferential standard of review will suffice to test their response” policy. What is this CPR?
validity. The clear-and-present danger rule is inappropriate as a test
for determining the constitutional validity of laws, like Sec. 11 (b) of A: It simply means the strict enforcement of the no permit, no rally
R.A. No. 6646, which are not concerned with the content of political policy.
ads but only with their incidents. To apply the clear-and-present
danger test to such regulatory measures would be like using a Q: Is this CPR valid? What was the ruling in Bayan v. Ermita?
sledgehammer to drive a nail when a regular hammer is all that is
needed. A:
Bayan v. Executive Secretary Ermita
Atty. Sandoval: These restrictions are imposed regardless of the G.R. No. 169838, April 25, 2006
speech. These usually involve restrictions on the time, place, and
manner of speech. Example of this: B.P 880 or the Public Assembly HELD: The Calibrated Pre-emptive Response (CPR) serves no valid
Act. purpose if it means the something else. Accordingly, what is to be
followed is and should be that mandated by the law itself, namely,
NOTE: B.P 880 is content-neutral. maximum tolerance, which specifically means “the highest degree
of restraint that the military, police and other peace keeping
Q: Are all content-based regulations prohibited? authorities shall observe during a public assembly or in dispersal
of the same. The CPR is superfluous, after all the policy has already
A: No. Content based restrictions are allowed only when there is a been defined by law. It will only confuse the public. However, if CPR
present and substantial evil which the state is mandated to protect is more than maximum tolerance, then such policy is
or suppress. unconstitutional, violative of the freedom of assembly.

It is in content-based restrictions that the court will apply the clear EXTRADITION AND DEPORTATION
and present danger test. It will resolve the problem in freedom of
expression. If it is content-neutral, we do not apply the present Q: What is extradition? What are the fundamental rules?
danger test, but we apply the _____________ (Chavez vs. Secretary
Gonzales) A: It is the surrender of a person by one state to another state
where he is wanted for prosecution or if already convicted, for
NOTE: The test for this difference in the level of justification for the punishment. It is based on:
restriction of speech is that content-based restrictions distort public
debate, have improper motivation, and are usually imposed because a. Treaty, or in its absence
of fear of how people will react to a particular speech. No such b. The local state may grant asylum to the fugitive
reasons underlie content-neutral regulations, like regulation of time, c. If surrender is made, the same is merely a gesture of
place and manner of holding public assemblies under B.P. Blg. 880, comity
the Public Assembly Act of 1985.(Osmena v. COMELEC, 288 SCRA
447, March 31, 1998 [Mendoza]) Q: How is it different from deportation?

Q: What is the most influential test for distinguishing content- A:

based from content-neutral regulations?
EXTRADITION DEPORTATION
A: A governmental regulation is sufficiently justified (1) if it is within it is effected at the request of deportation is the unilateral act
the constitutional power of the government; (2) if it furthers an the state of origin of the local state of expelling an
important or substantial governmental interest; (3) if the alien from its territory;
governmental interest is unrelated to the suppression of free It is based on offenses generally whereas deportation is based on
Facultad de Derecho Civil 43
UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
committed in the state of origin causes arising in the local state; Opinion) been brought to trial; to those who have
it calls for the return of the whereas an undesirable alien been tried and convicted and have
fugitive to the state of origin may be deported to a state subsequently escaped from custody; and
other than his own or the state those who have been convicted in
of origin absentia.
For the benefit of the requesting For the benefit of the expelling b. It does not apply to persons merely
state state suspected of having committed an
Always in connection with a As long as undesirable alien, he offense but against whom no charges has
criminal offense may be expelled even though it been laid or to a person whose presence
is not in connection with an is desired as a witness or for obtaining or
offense (Harvey v. Santiago: The enforcing a civil judgment.
pedophile from Laguna who was Secretary of
asked to be deported even in Justice v. Sui Generis nature
the absence of the pedophile Lantion, Oct.
law then, because he was an 27, 2000 An extradition proceeding is sui generis. It is not a
undesirable alien.) (Puno) criminal proceeding which will call into
Can only be returned to the May be sent back not only to the operation all the rights of an accused as
requesting state state of his origin but to any guaranteed by the Bill of Rights. To begin with, the
other state that will be willing to process of extradition does not involve the
admit him. determination of the guilt or innocence of an
accused. His guilt or innocence will be adjudged in
NOTE: Extradition is required only if there is a treaty between the the court of the state where he will be
state of refuge and the state of origin. In the absence of such treaty, extradited. Hence, as a rule, constitutional rights
the local state has every right to grant asylum to the fugitive and to that are only relevant to determine the guilt or
refuse even if there to deliver himself back to the latter state even if innocence of an accused cannot be invoked by an
he is its national. extraditee especially by one whose extradition
papers are still undergoing evaluation.
Q: What are the Fundamental Principles governing extradition?
Extradition v. Criminal proceeding
A:
As to nature of proceeding
1. Based on the consent of the State of asylum as expressed
in a treaty or manifested as an act of goodwill; 1. An extradition proceeding is summary in
2. Principle of Specialty – a fugitive who is extradited may be nature while criminal proceedings
tried only for the crime specified in the request for involve a full-blown trial.
extradition and included in the list of offenses in the
extradition treaty. If he is charged with any other offense As to application of Rules of Evidence
committed before his escape, the state of refuge—and not
the accused--has the right to object; nevertheless the 2. In contradistinction to a criminal
prosecution will be allowed if the extraditing state agrees proceeding, the rules of evidence in an
or does not complain; extradition proceeding allow admission
3. Any person may be extradited, whether he be a national of of evidence under less stringent
the requesting State, of the State of refuge or of another standards.
State. He need not be a citizen of the requesting State. The
practice of many states now, however, is not to extradite As to Quantum of evidence required
their own nationals but to punish them under their own
laws in accordance with the nationality principle of 3. In terms of the quantum of evidence to
criminal investigation. be satisfied, a criminal case requires
4. Political or religious offenders are generally not subject to proof beyond reasonable doubt for
extradition. As held, to constitute an offense of a political conviction while a fugitive may be
character, there must be 2 or more parties in the state, ordered extradited "upon showing of the
each seeking to impose the government of their own existence of a prima facie case."
choice on the other.
5. Sandoval: Extradition cannot be effected without a treaty As to when the judgment becomes executory

Jurisprudence 4. Finally, unlike in a criminal case where

judgment becomes executory upon being
Secretary of Extradition is the process by which persons rendered final, in an extradition
Justice v. charged with or convicted of crime against the law proceeding, our courts may adjudge an
Lantion, Jan. of a State and found in a foreign State are returned individual extraditable but the President
18, 2000 by the latter to the former for trial or punishment. has the final discretion to extradite him.
(Puno, a. It applies to those who are merely The United States adheres to a similar
Dissenting charged with an offense but have not practice whereby the Secretary of State
exercises wide discretion in balancing the
Facultad de Derecho Civil 44
UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
equities of the case and the demands of no justification why it should not also be allowed in
the nation's foreign relations before extradition cases. Likewise, considering that the
making the ultimate decision to extradite Universal Declaration of Human Rights applies to
Gov’t f USA v. deportation cases, there is no reason why it cannot
Purganan,, Purpose of extradition be invoked in extradition cases. After all, both are
Sept. 24, 2002 administrative proceedings where the innocence
(Panganiban) The ultimate purpose of extradition proceedings in or guilt of the person detained is not in issue.
court is only to determine whether the extradition
request complies with the Extradition Treaty, and Clearly, the right of a prospective extraditee to
whether the person sought is extraditable. apply for bail in this jurisdiction must be viewed in
the light of the various treaty obligations of the
Nature of extradition Philippines concerning respect for the promotion
and protection of human rights. Under these
Extradition proceedings are not equivalent to a treaties, the presumption lies in favor of human
criminal case in which guilt or innocence is liberty.
determined.
Batch 4:
An extradition case is not one in which the
constitutional rights of the accused are necessarily PUBLIC INTERNATIONAL LAW: THE STOCKHOLM DECLARATION
available.
Q: What is the so-called ‘Stockholm Declaration”?
Extradition is essentially an executive, not a
judicial, responsibility arising out of the A: The Stockholm Declaration, or the Declaration of the United
presidential power to conduct foreign relations Nations Conference on the Human Environment, was adopted on
and to implement treaties. June 16, 1972 in Stockholm, Sweden. It contains 26 principles and
109 recommendations regarding the preservation and enhancement
Rights of an extradite of the right to a healthy environment.

Potential extraditees are entitled to the rights to The State have, in accordance with the Chapter of the UN and the
due process and to fundamental fairness. Due principle of International Law:
process does not always call for a prior opportunity
to be heard. A subsequent opportunity is sufficient 1. the sovereign right to exploit their own resources
due to the flight risk involved. Indeed, available pursuant to their own resources pursuant to their own
during the hearings on the petition and the answer resources pursuant to their environmental policies, and
is the full chance to be heard and to enjoy 2. the responsibility to ensure that activities within their
fundamental fairness that is compatible with the jurisdiction or control do not cause damage to the
summary nature of extradition. environment of other States or areas beyond the limits of
Gov’t of Hong national jurisdiction.
Kong v. Modern trend in PIL: On human dignity
Olalia, April Q: What is Principle 21 of the Stockholm Declaration?
19, 2007 The modern trend in public international law is the
(Sandoval- primacy placed on the worth of the individual A: This is one of the 26 principles contained in the Stockholm
Gutierrez) person and the sanctity of human rights. Slowly, Declaration on the Human Environment which was adopted by
the recognition that the individual person may acclamation f 113 states in the United Nations Conference on the
properly be a subject of international law is now Human Environment in 1972. This is a landmark in the development
taking root. The vulnerable doctrine that the of international law on the protection of the environment.
subjects of international law are limited only to
states was dramatically eroded towards the second Q: What does Principle 21 of the Stockholm Declaration provide?
half of the past century. For one, the Nuremberg
and Tokyo trials after World War II resulted in the A: This declares that States have
unprecedented spectacle of individual defendants
for acts characterized as violations of the laws of 1. The sovereign right to exploit their own resources
war, crimes against peace, and crimes against pursuant to their own environmental policies, and
humanity. 2. The responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the
The Philippines, along with the other members of environment of other States or of areas beyond the limits
the family of nations, committed to uphold the of national jurisdiction.
fundamental human rights as well as value the
worth and dignity of every person. FREEDOM OF EXPRESSION: CONTENT NEUTRAL AND CONTENT
BASED REGULATIONS
Right to bail
Q: What is B.P. 880?
If bail can be granted in deportation cases, we see

Facultad de Derecho Civil 45

UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
A: It is the Public Assembly Act. 1.
irst, to prevent the establishment of political dynasties is
Q: What is the policy of the law in dealing with mass not the only policy embodied in the constitutional
demonstrations? provision in question.
2.
A: he other policy is that of enhancing the freedom of choice
of the people.
Section 2. Declaration of policy - The constitutional right of the
people peaceably to assemble and petition the government for Q: X was first elected as mayor in May 2001, then in the May 2004
redress of grievances is essential and vital to the strength and elections he won again. He also won again in May 2007 elections.
rd
stability of the State. To this end, the State shall ensure the free Before his 3 term ended, he was again placed under preventive
exercise of such right without prejudice to the rights of others to life, suspension because of an administrative case filed in the DILG.
liberty and equal protection of the law. Thereafter, in connection with the 2010 elections, he again run for
the office of the mayor. Is he qualified again to run or not?
NOTE: The law enforcers must apply the policy of maximum
tolerance which specifically means “the highest degree of restraint A: No, pursuant to Aldovino v. COMELEC, preventive suspension is
that the military, police and other peace keeping authorities not an effective interruption in his term.
shall observe during a public assembly or in dispersal of the same.
Preventive suspension does not involve loss of title. To constitute
Q: Is B.P 880 content-based or content-neutral? interruption, it must involve loss of title.

A: It is content-neutral. SIMEON ALDOVINO, Jr., et al., v. COMMISSION ON ELECTIONS

G.R. No. 184836, 23 December 2009, EN BANC (Brion, J.I)
Q: What is content-neutral as distinguished from content-based?
HELD: Strict adherence to the intent of the three-term limit rule
A: See Batch 3 answers. demands that preventive suspension should not be considered an
interruption that allows an elective official’s stay in office beyond
Q: Are all content-based restrictions unconstitutional? three terms. A preventive suspension cannot simply be a term
interruption because the suspended official continues to stay in
A: No. Content based restrictions are allowed only when there is a office although he is barred from exercising the functions and
present and substantial evil which the state is mandated to protect prerogatives of the office within the suspension period. The best
or suppress. indicator of the suspended official’s continuity in office is the
absence of a permanent replacement and the lack of the authority
LAW ON PUBLIC OFFICERS: TERM OF OFFICE to appoint one since no vacancy exists.

Q: Under Sec. 8 of Article 10, it states: To allow a preventively suspended elective official to run for a fourth
and prohibited term is to close our eyes to this reality and to allow a
Section 8. The term of office of elective local constitutional violation through sophistry by equating the temporary
officials, except barangay officials, which shall inability to discharge the functions of office with the interruption of
be determined by law, shall be three years and term that the constitutional provision contemplates. To be sure,
no such official shall serve for more than three many reasons exist, voluntary or involuntary – some of them
consecutive terms. Voluntary renunciation of personal and some of them by operation of law – that may
the office for any length of time shall not be temporarily prevent an elective office holder from exercising the
considered as an interruption in the continuity functions of his office in the way that preventive suspension does. A
of his service for the full term for which he was serious extended illness, inability through force majeure, or the
elected. enforcement of a suspension as a penalty, to cite some involuntary
examples, may prevent an office holder from exercising the
In Borja vs. COMELEC, what are the 2 conditions for the functions of his office for a time without forfeiting title to office.
disqualification to apply? Preventive suspension is no different because it disrupts actual
delivery of service for a time within a term. Adopting such
A: interruption of actual service as the standard to determine effective
interruption of term under the three-term rule raises at least the
1. possibility of confusion in implementing this rule, given the manyA
n individual has served three consecutive terms in an modes and occasions when actual service may be interrupted in the
elective local office course of serving a term of office. The standard may reduce the
2. enforcement of the three-term limit rule to a case-to-case andh
e must also have been elected to the same position for the possibly see-sawing determination of what an effective interruption
same number of times is.

Q: What are the 2 policies embodied under Sec. 8 of Art. 10? Preventive Suspension and Voluntary Renunciation

A: Preventive suspension, because it is imposed by operation of law,

does not involve a voluntary act on the part of the suspended
official, except in the indirect sense that he may have voluntarily
Facultad de Derecho Civil 46
UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
committed the act that became the basis of the charge against him. Q: What is the constitutional basis of the right to information?
From this perspective, preventive suspension does not have the
element of voluntariness that voluntary renunciation embodies. A: Art. III, Sec. 7:
Neither does it contain the element of renunciation or loss of title to
office as it merely involves the temporary incapacity to perform the Section 7. The right of the people to information on matters of
service that an elective office demands. Thus viewed, preventive public concern shall be recognized. Access to official records, and
suspension is – by its very nature – the exact opposite of voluntary to documents and papers pertaining to official acts, transactions,
renunciation; it is involuntary and temporary, and involves only the or decisions, as well as to government research data used as basis
actual delivery of service, not the title to the office. The easy for policy development, shall be afforded the citizen, subject to
conclusion therefore is that they are, by nature, different and non- such limitations as may be provided by law.
comparable.
Q: What is the scope of this right to information?
But beyond the obvious comparison of their respective natures is
the more important consideration of how they affect the three-term A: It covers information on matters of public concern. This is a
limit rule. collective right.

Voluntary renunciation, while involving loss of office and the total Q: What are the recognized restrictions as against this law?
incapacity to render service, is disallowed by the Constitution as an
effective interruption of a term. It is therefore not allowed as a A:
mode of circumventing the three-term limit rule.
1. National security matters and intelligence
Preventive suspension, by its nature, does not involve an effective information—this jurisdiction recognizes the common
interruption of a term and should therefore not be a reason to avoid law holding that there is a governmental privilege
the three-term limitation. It can pose as a threat, however, if we against public disclosure with respect to state secrets
shall disregard its nature and consider it an effective interruption of regarding military, diplomatic and other national security
a term. Let it be noted that a preventive suspension is easier to matters;
undertake than voluntary renunciation, as it does not require 2. Trade or industrial secrets—(pursuant to the
relinquishment or loss of office even for the briefest time. It merely Intellectual Property Code, RA 8293 and other related
requires an easily fabricated administrative charge that can be laws and banking transactions—pursuant to the Secrecy of
dismissed soon after a preventive suspension has been imposed. In Bank Deposits Act, RA 1405);
this sense, recognizing preventive suspension as an effective 3. Criminal matters, such as those relating to the
interruption of a term can serve as a circumvention more potent apprehension, the prosecution and the detention of
than the voluntary renunciation that the Constitution expressly criminals, which courts may not inquire into prior to such
disallows as an interruption. arrest, detention and prosecution; and
4. Other confidential information. The Ethical Standards
Q: What if it is a 6-month suspension as a penalty for an offense Act further prohibits public officials and employees from
for which he was found guilty. Will the principle apply? using or divulging “confidential or classified information
to the public.” *Section 7 (c), RA 6713+ Other
A: It is still the same, there is no interruption. Although Aldovino acknowledged limitations to information access include:
involves preventive suspension, the same ruling is also applicable. It a. diplomatic correspondence,
will not make a difference. When he was suspended as a penalty, he b. closed door Cabinet meetings and
did not lose his title as a mayor. Whether it be preventive c. executive sessions of either House of congress,
suspension or suspension as a penalty, he remains to be a mayor d. internal deliberations of the SC. (Chavez vs. PCGG,
until his term ends. Logically, there was no interruption. Interruption 299 SCRA 744)
must involve loss of title. The vice-mayor will have to assume the
office, not as mayor, but as an acting mayor. EXTRADITION AND DEPORTATION

However, if the penalty was removal, then it is an interruption of his Q: What is extradition?
term of office. The vice-mayor now has to assume the office, no
longer as an acting vice-mayor, but as a mayor. Administrative A: See answers on Batch 3.
penalties can either be suspension or removal.
Q: May extradition be effected unilaterally?
Batch 5:
A: No.
THE VOID FOR VAGUENESS DOCTRINE AND OVERBREADTH
DOCTRINE Q: Distinguish extradition and deportation.

Q: What is this void for vagueness doctrine? What is the A: See answers on Batch 3.
overbreadth doctrine? How do they differ in process?
Q: According to Secretary of Justice v. Lantion, the Oct. 17, 2000
A: See answers on Batch 2. decision, an extradition proceeding is a sui generis, a class of itself.
It is not a criminal proceeding which will bring into operation all
RIGHT TO INFORMATION the rights of an accused under the Bill of Rights. How will you

Facultad de Derecho Civil 47

UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
distinguish a criminal proceeding now from an extradition evidence (an evidence lower
proceeding. than proof beyond reasonable
doubt in criminal cases but
A: higher than preponderance of
evidence in civil cases; it is a new
SECRETARY OF JUSTICE v. HON. RALPH LANTION and MARK B. standard which is somewhere in
JIMENEZ between).
G .R. No. 139465, 17 October, 2000, EN BANC (Puno, J.) As to finality and execution
in an extradition proceeding, our judgment becomes executory
An extradition proceeding is sui generis. It is not a criminal courts may adjudge an upon being rendered final
proceeding which will call into operation all the rights of an accused individual extraditable but the
as guaranteed by the Bill of Rights. To begin with, the process of President has the final discretion
extradition does not involve the determination of the guilt or to extradite him
innocence of an accused. His guilt or innocence will be adjudged in
the court of the state where he will be extradited. Hence, as a rule, NOTE: As an extradition proceeding is not criminal in character and
constitutional rights that are only relevant to determine the guilt or the evaluation stage in an extradition proceeding is not akin to a
innocence of an accused cannot be invoked by an extraditee preliminary investigation, the due process safeguards in the latter do
especially by one whose extradition papers are still undergoing not necessarily apply to the former. This we hold for the procedural
evaluation due process required by a given set of circumstances "must begin
with a determination of the precise nature of the government
An extradition proceeding is not a criminal prosecution, and the function involved as well as the private interest that has been
constitutional safeguards that accompany a criminal trial in this affected by governmental action." The concept of due process is
country do not shield an accused from extradition pursuant to a flexible for "not all situations calling for procedural safeguards call
valid treaty."[ for the same kind of procedure.

There are other differences between an extradition proceeding and Q: Is an extraditee entitled to bail?
a criminal proceeding.
A: Initially, in Government of USA v. Purganan, the Court applied the
EXTRADITION PROCEEDINGS CRIMINAL PROCEEDINGS “no bail rule” in extradition. However, it was re-examined in
As to determination of guilt or innocence Government of Hong Kong v. Olalia. He may now apply for bail as
Does not involve the Involves the determination of long as the 2 conditions in Purganan are satisfied:
determination of the guilt or the guilt or innocence of the
innocence of the extradite; the accused Bail may be applied for and granted as an exception, only upon a
determination will only follow at clear and convincing showing
the requesting state; hence, the 1.
constitutional rights of the hat, once granted bail, the applicant will not be a flight risk
accused do not find application or a danger to the community; and
Nature of proceedings 2.
summary in nature involve an adversarial hat there exist special, humanitarian and compelling
proceeding that will require a circumstances] including, as a matter of reciprocity, those
full-blown trial cited by the highest court in the requesting state when it
On the application of the rules on evidence grants provisional liberty in extradition cases therein.
In contradistinction to a criminal The rules on evidence are
proceeding, the rules of strictly followed Q: What is the problem in the Olalia ruling?
evidence in an extradition
proceeding allow admission of A: SANDOVAL: The ruling in Olalia is problematic. The ruling in
evidence under less stringent Olalia is incongruous. In the main proceeding, which is extradition,
standards. the evidence required is a low kind of evidence, mere prima facie
As to quantum of evidence required evidence. In petition for bail in extradition, a mere incident to the
a fugitive may be ordered a criminal case requires proof main action for extradition, higher kind of evidence is required (clear
extradited "upon showing of the beyond reasonable doubt for and convincing evidence).
existence of a prima facie case”; conviction
mere prima facie evidence will PREVENTIVE SUSPENSION
suffice, not even substantial
evidence Q: Under the Civil Service Law, what is the maximum duration of
preventive suspension to be imposed upon the public official?
NOTA BENE:
SANDOVAL: In Gov’t of Hong A: Under P.D. 807:
Kong v. Olalia, the issue is a
petition for bail in extradition. It Section 42. Lifting of Preventive Suspension Pending
is not the extradition itself. The Administrative Investigation. When the administrative case against
quantum of evidence used here the officer of employee under preventive suspension is not finally
was clear and convincing decided by the disciplining authority within the period of ninety
(90) days after the date of suspension of the respondent who is not
Facultad de Derecho Civil 48
UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
a presidential appointee, the respondent shall be automatically Section 24. Preventives Suspension. — The Ombudsman or his
reinstated in the service: Provided, That when the delay in the Deputy may preventively suspend any officer or employee under
disposition of the case is due to the fault, negligence or petition of his authority pending an investigation, if in his judgment the
the respondent, the period of delay shall not be counted in evidence of guilt is strong, and (a) the charge against such officer
computing the period of suspension herein provided. or employee involves dishonesty, oppression or grave misconduct
or neglect in the performance of duty; (b) the charges would
Q: Under the Local Government Code, with respect to appointed warrant removal from the service; or (c) the respondent's
officials of local government, what is the maximum duration of continued stay in office may prejudice the case filed against him.
preventive suspension?
The preventive suspension shall continue until the case is
A: Under the Local Government Code: terminated by the Office of the Ombudsman but not more than six
(6) months, without pay, except when the delay in the disposition
Section 85. Preventive Suspension of Appointive Local Officials and of the case by the Office of the Ombudsman is due to the fault,
Employees. - negligence or petition of the respondent, in which case the period
of such delay shall not be counted in computing the period of
(a) suspension herein provided. T
he local chief executives may preventively suspend for a
period not exceeding sixty (60) days and subordinate Q: What is the maximum period of prevention under the Anti Graft
official or employee under his authority pending and Corrupt Practices Act (R.A. 3019)?
investigation if the charge against such official or
employee involves dishonesty, oppression or grave A: None is indicated. The law is silent.
misconduct or neglect in the performance of duty, or if
there is reason to believe that the respondent is guilty of Section 13. Suspension and loss of benefits. Any public officer
the charges which would warrant his removal from the against whom any criminal prosecution under a valid information
service. under this Act or under the provisions of the Revised Penal Code
(b) on bribery is pending in court, shall be suspended from office. x
xx Should he be convicted by final judgment, he shall lose all
retirement or gratuity benefits under any law, but if he is
Q: How about under Sec. 63 of the LGC, what is the maximum acquitted, he shall be entitled to reinstatement and to the salaries
period of preventive suspension for local elected officials? and benefits which he failed to receive during suspension, unless in
the meantime administrative proceedings have been filed against
A: him.

Section 63. Preventive Suspension. - The Court, following the ruling in Gonzaga v. Sandiganbayan, since
the law is silent, applying the provision of the Civil Service Law, the
(a) Preventive suspension may be imposed: maximum period of preventive suspension is 90 days.

(1) By the President, if the respondent is an elective official of a Batch 6:

province, a highly urbanized or an independent component city;
INQUIRIES IN AID OF LEGISLATION AND QUESTION HOUR
(2) By the governor, if the respondent is an elective official of a
component city or municipality; or Q: Under Art. 6 of the Constitution, there are 2 kinds of
Congressional inquest. What are these?
(3) By the mayor, if the respondent is an elective official of the
barangay. A:

(b) Preventive suspension may be imposed at any time after the INQUIRIES IN AID OF LEGISLATION
issues are joined, when the evidence of guilt is strong, and given
the gravity of the offense, there is great probability that the Section 21. The Senate or the House of Representatives or any of
continuance in office of the respondent could influence the its respective committees may conduct inquiries in aid of
witnesses or pose a threat to the safety and integrity of the records legislation in accordance with its duly published rules of procedure.
and other evidence: Provided, That, any single preventive The rights of persons appearing in or affected by such inquiries
suspension of local elective officials shall not extend beyond sixty shall be respected.
(60) days: Provided, further, That in the event that several
administrative cases are filed against an elective official, he cannot QUESTION HOUR
be preventively suspended for more than ninety (90) days within a
single year on the same ground or grounds existing and known at Section 22. The heads of departments may, upon their own
the time of the first suspension. initiative, with the consent of the President, or upon the request of
either House, as the rules of each House shall provide, appear
Q: Under R.A. 6770 (The Ombudsman Act), what is the maximum before and be heard by such House on any matter pertaining to
period of preventive suspension? their departments. Written questions shall be submitted to the
President of the Senate or the Speaker of the House of
A: Representatives at least three days before their scheduled
appearance. Interpellations shall not be limited to written
Facultad de Derecho Civil 49
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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
questions, but may cover matters related thereto. When the JEAN ARNAULT v. LEON NAZARENO, et al.
security of the State or the public interest so requires and the G.R. No. L-3820, 18 June 1950, EN BANC (Ozaeta, J.)
President so states in writing, the appearance shall be conducted
in executive session. A legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the
NOTE: There are two provisions on legislative hearing, Sections 21 legislation is intended to effect or change; and where the legislative
and 22. Section 21 is about legislative investigations in aid of body does not itself possess the requisite information — which is
legislation. not infrequently true — recourse must be had to others who do
possess it. Experience has shown that mere requests for such
QUESTION HOUR LEGISLATIVE INVESTIGATION information are often unavailing, and also that information which is
volunteered is not always accurate or complete; so some means of
As to persons who may appear
compulsion is essential to obtain what is needed.
Only a department head Any person
As to who conducts the investigation NOTE: Arnault v. Nazareno was decided under the 1935
Entire body Committees Constitution. Under the 1935 Constitution, there was no provision
As to subject matter similar to Section 21 of Art. 6. Yet, as early as this case, the Supreme
Matters related to the Any matter for the purpose of Court recognized that the power to conduct inquiries in aid of
department only legislation legislation is intrinsic in the grant of the legislative powers.

SENATE OF THE PHILIPPINES v. EDUARDO ERMITA, et al.

Q: In the recent hearing involving Cunanan, is that an inquiry in aid G.R. No. 169777, 20 April 2006, EN BANC (Carpio-Morales, J.)
of legislation or a question hour?
Ultimately, the power of Congress to compel the appearance of
A: It is an inquiry in aid of legislation. executive officials under Section 21 and the lack of it under Section
22 find their basis in the principle of separation of powers. While the
Q: What is “question hour”? executive branch is a co-equal branch of the legislature, it cannot
frustrate the power of Congress to legislate by refusing to comply
A: The heads of departments may, upon their own initiative, with with its demands for information.
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 Q: With respect to consular immunities and privileges and
by such House on any matter pertaining to their departments. diplomatic immunities and privileges, which is more extensive?

Q: Can a cabinet secretary refuse to appear in an inquiry in aid of A:

legislation?
DIPLOMATS CONSULS
A: No. 1. There is absolute immunity They are only immuned if they
in criminal matters. If a are in connection with the
Q: How about in a “question hour”? Is it inherent in the grant of diplomat commit a criminal performance of their duties.
legislative powers to the Congress? Is this an original concept? offense in the receiving Otherwise, they are not
state, he cannot be immuned, in fact they can be
A: No. It is merely a borrowed concept. It is not a regular feature in a prosecuted. Even if the arrested and prosecuted.
Presidential form of government. It is an integral in a parliamentary offense is not in connection
government. with the performance of his The exception only is with
duties, they may neither be respect to minor offenses
SANDOVAL: Part of the workings and dynamics of a parliamentary arrested nor prosecuted.
form of government. As held in Senate v. Ermita, you cannot compel The only thing that you can
the cabinet members to attend during question hour. do is to declare him as a
persona non grata, so that
Q: How about inquiries in aid of legislation? they will be recalled by his
own government. You
A: It is inherent. The power of oversight has been held to be intrinsic cannot deport a diplomat.
in the grant of legislative power itself and integral to the checks and 2. In civil and administrative
balances inherent in a democratic system of government. jurisdiction, the general
rule is that they are
SANDOVAL: In Senate v. Ermita, the Court held that inquiries in aid immuned from the
of legislation is an integral part of the legislative power. receiving state.

In Arnault v. Nazareno, the Court said intrinsic in the grant of But there are exceptions:
legislative powers to the Congress to the power to conduct inquiries a. If they entered into a
in aid of legislation for you cannot expect the Congress to enact contract involving real
good laws if it is denied that power. Hence, as held in Senate v. property in the
Ermita, you can compel cabinet members to attend during this kind receiving state and it
of inquiry. does not fall to their
diplomatic mission
Facultad de Derecho Civil 50
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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
b. Questions involving Q: Is a de-facto officer lawfully entitled to the salary of the office
succession where they he is occupying?
are an heir, legatee,
administrator, or A:
executor
c. With respect to the GR: No, when he assumed office knowing that their title is
exercise of their imperfect, he run the risk of not receiving salary; he is not supposed
profession or career in to benefit from his acts. It is against public policy. Otherwise, it will
their receiving state encourage other people to be a de facto officer that will result to
chaos.
Q: What are the classifications of heads of diplomatic missions?
XPNs:
A:
a. If there is no de-jure officer claiming for the same salary;
1. Ambassadors or Nuncios b. If the assumption/act was done in good faith.
2. Envoys, ministers, inter-nuncios who are all accredited by
the Head of States Q: What are the legal effects of the acts of a de facto officer?
3. Charge d'affaires which is really accredited to the
Secretary of Foreign Affairs A: Valid, binding and with full legal effect insofar as they affect the
public. It is intended for the protection of the public and individuals
Q: May a diplomat be appointed as a consul at the same time so he who get involved in the official acts of persons discharging the duties
will have 2 functions in the same state? of a public office. But they are not supposed to benefit from their
own acts (Monroy vs. CA, 20 SCRA 620).
A: Yes.
NOTE: The acts of a de jure officer is valid.
DE FACTO v. DE JURE OFFICERS
General Manager, PPA v. Monsarate
Q: Who are de facto officers? G.R. No. 129616, April 17, 2002

A: One who has reputation of being an officer that he assumes to A rightful incumbent of a public office may recover from a de facto
be, and yet is not an officer in point of law. officer the salary received by the latter during the time of his
wrongful tenure, even though he (the de facto officer) occupied the
Q: Distinguish among de facto, de jure officers and a usurper? office in good faith and under color of title.

A: Q: What are the requisites to be considered as de facto officers ?

DE FACTO OFFICER DE JURE OFFICER USURPER/ A:

INTRUDER
The person is in He has lawful title to He is in actual 1. A valid existing office;
actual hold possession 2. Actual physical possession of said office;
possession of office office although he of the office without 3. Color of title to the office, either by:
but he may be title or
merely has a color of unlawfully deprived colorable title a. Reputation or acquiescence;
title of his b. Known or valid appointment or election but
office officer failed to conform with legal
requirements;
Acts are valid insofar His acts are valid His acts are entirely c. Known appointment or election but void
as 3rd void because of ineligibility of officer or want of
parties and the authority of appointing or electing authority or
general public is irregularity in appointment or election not
concern but he is known to the public; and
not suppose to d. Known appointment of election pursuant to
benefit fromhis unconstitutional law before declaration of
acts—against unconstitutionality.
publicpolicy.
DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES AND
Challenged in a Challenged in a Can be attacked DOCTRINE OF PRIMARY JURISDICTION (OR PRIOR RESORT)
direct proceeding direct proceeding Collaterally
where the title will thru quowarranto; Q: Explain the Doctrine of Primary Jurisdiciton?
be the principal cannot be attacked
issue collaterally A: Courts cannot and will not resolve a controversy involving a
question which is within the jurisdiction of an administrative
tribunal, especially where the question demands the exercise of
sound administrative discretion requiring the special knowledge,
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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
experience and services of the administrative tribunal to determine
technical and intricate matters of fact. DOCTRINE OF PRIMARY DOCTRINE OF EXHAUSTION OF
JURISDICITON OR PRIOR ADMINISTRATIVE REMEDIES
In recent years, it has been applied to matters that demand RESORT
the special competence of administrative agencies even if the Both can be dismissed but based on different grounds:
question involved is also judicial in character. It applies “where a Lack of jurisdiction cannot be Lack of Cause of action;
claim is originally cognizable in the courts, and comes into play waived; jurisdiction is conferred waivable
whenever enforcement of the claim requires the resolution of issues by the law;
which, under a regulatory scheme, have been placed within the premature resort to the courts
special competence of an administrative body; in such case, the necessarily
judicial process is suspended pending referral of such issues to the becomes fatal to the cause of
administrative body for its view.” action.

In cases where the doctrine of primary jurisdiction is clearly Q: What is the effect in case of non-compliance with the 2
applicable, the court cannot arrogate unto itself the authority to doctrines? For example X, a factory worker, was dismissed from
resolve a controversy, the jurisdiction over which is lodged with an employment. What he did was he went to the RTC and filed an
administrative body of special competence. (Villaflor vs. CA, 280 illegal dismissal case against his employer. What will be the action
SCRA 287) of the RTC?

Q: What is the Doctrine of Exhaustion of Administrative remedies? A: It will be dismissed because of the lack of jurisdiction. It is the
Labor Arbiter who has primary jurisdiction. Non-observance of such
A: Before a party is allowed to seek the intervention of the court, it doctrine will lead to dismissal of the action on the ground of lack of
is a pre-condition that he should have availed of all the means of jurisdiction. Lack of jurisdiction cannot be waived. It is conferred by
administrative processes afforded him. law.

Hence, if a remedy within the administrative machinery can still be Q: X applied under the Public Land Act. He cultivated the land.
resorted to by giving the administrative officer concerned every Eventually, the land was awarded to Y. Y made a representation
opportunity to decide on a matter that comes within his before the Administrator of Lands. Thus, X went to the regular
jurisdiction then such remedy should be exhausted first before courts questioning the issuance by the Administrator of Lands to Y.
the court’s judicial power can be sought. The premature invocation X alleged that he was in the actual possession of the land. He
of court’s jurisdiction is fatal to one’s cause of action. cultivated the land.

NOTE: Sec. 187, LGC—expressly provides that A: The case will be dismissed on the ground of non-exhaustion of
administrative remedies must be exhausted first before the administrative remedies. Under the Public Land Act, from the
constitutionality or legality of a tax ordinance may be decision of the Secretary of Lands, you need to elevate that to the
challenged in court. Secretary of Natural Resources. This is an administrative remedy
provided by the law. The case should be dismissed on the ground of
Philippine Coconut Desiccators vs. PhilCoA, lack of cause of action. His cause of action is premature. His action
G.R. No. 110526, 10 February 1998 has not yet ripened. He failed to exhaust the administrative
remedies. And, lack of cause of action is waivable.
Only decisions of administrative agencies made in the exercise
of quasi-judicial powers are subject to the rules of exhaustion of NOTE:
administrative remedies.
GR: Exhaustion of administrative remedies must first be made
In like manner, the doctrine of primary administrative jurisdiction before resorting to court actions. Failure to exhaust will not affect
applies only where the administrative agency exercises quasi- the jurisdiction of the court but the complainant is deprived of a
judicial or adjudicatory powers. cause of action which is a ground for a motion to dismiss.

NOTE: Thus, where what is assailed is the validity or However, if no motion to dismiss is filed on this ground, there is
constitutionality of a rule or regulation issued by the deemed to be a waiver.
administrative agency in the performance of its quasi-legislative
function, the regular courts have jurisdiction to pass upon the XPNs:
same (Smart Communications vs. NTC, G.R. No. 151908, August 12,
2003). 1. If the issue involves a pure question of law—useless to
exhaust. Only the courts can declare with finality what are
Q: Up to what level must he exhaust the administrative remedies? purely legal question.

A: Up to the highest level which could mean the Office of the In Castro vs. Secretary Gloria, G.R. No. 132174, August 20,
President. 2001, the SC said that there is a question of law when the
doubts or differences arise as to what the law is on a
Q: Distinguish between the Doctrines of Primary jurisdiction and certain state of facts. There is question of fact when the
the exhaustion of administrative remedies. doubts or differences arise as to the truth or falsity of
alleged facts.
A:
Facultad de Derecho Civil 52
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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
2. If the law does not provide for an administrative remedy—
just go to the regular courts. In Estuerte vs. CA, 193 SCRA The enforcement of the national budget, as primarily contained in
541, the SC said that in a civil action for damages, the the GAA, is indisputably a function both constitutionally assigned
court’s concern is whether or not damages, personal and properly entrusted to the Executive branch of government. Xxx
to the plaintiff, were caused by the acts of the
defendants; it can proceed independently of the Aside from the area of project identification, legislators have also
administrative action. Accordingly, the doctrine of been accorded post-enactment authority in the areas of fund
exhaustion of administrative remedy does not apply. release and realignment.

3. Doctrine of Qualified Political Agency—ALTER EGO Clearly, these post-enactment measures which govern the areas of
DOCTRINE. In Nazareno vs. CA, 267 SCRA 589, the SC project identification, fund release and fund realignment are not
held that when the Undersecretary of DENR denied the related to functions of congressional oversight and, hence, allow
motion for reconsideration, he was acting on behalf of the legislators to intervene and/or assume duties that properly belong
Secretary of DENR; accordingly, administrative remedies to the sphere of budget execution. Indeed, by virtue of the
had been exhausted. foregoing, legislators have been, in one form or another, authorized
to participate in – as Guingona, Jr. puts it – "the various operational
4. Where there is unreasonable delay or official inaction. aspects of budgeting," including "the evaluation of work and
financial plans for individual activities" and the "regulation and
In Republic vs. Sandiganbayan, 255 SCRA 438, the inaction release of funds" in violation of the separation of powers principle.
of the PCGG on the motion filed by the respondent and co- The fundamental rule, as categorically articulated in Abakada,
respondent [it took 7 years before the PCGG filed its cannot be overstated – from the moment the law becomes
motion to dismiss based on failure to exhaust effective, any provision of law that empowers Congress or any of its
administrative remedies] gave rise to unreasonable delay. members to play any role in the implementation or enforcement of
the law violates the principle of separation of powers and is thus
5. The administrative action is patently illegal amounting unconstitutional. That the said authority is treated as merely
to lack or excess of jurisdiction. recommendatory in nature does not alter its unconstitutional tenor
since the prohibition, to repeat, covers any role in the
In Cabada vs. Alunan, 260 SCRA 838, the SC said that the implementation or enforcement of the law. Towards this end, the
Commissioner of the NAPOLCOM who denied petitioners’ Court must therefore abandon its ruling in Philconsa which
appeal to the Secretary of DILG acted in a patently illegal sanctioned the conduct of legislator identification on the guise that
manner, because only the Secretary of DILG could act on the same is merely recommendatory and, as such, respondents‘
the appeal and the NAPOLCOM, being a collegial body, reliance on the same falters altogether.
cannot be bound by the act of an individual
Commissioner. Qualifications of a voter

6. When there is irreparable injury or threat thereof, ARTICLE V

unless judicial recourse is immediately made. SUFFRAGE

7. When it would amount to a nullification of the claim. Section 1. Suffrage may be exercised by all citizens of the
Philippines, not otherwise disqualified by law, who are at least
8. When the subject matter is a private land in land case eighteen years of age, and who shall have resided in the
proceeding. Philippines for at least one year and in the place wherein they
propose to vote, for at least six months immediately preceding the
9. When there are circumstances indicating the urgency of election. No literacy, property, or other substantive requirement
judicial intervention. shall be imposed on the exercise of suffrage.

10. When due process of law is clearly violated. Jus cogens v. Erga omnes

11. When there is estoppel on the part of the administrative Q: What is jus cogens (“compelling law”) norm?
agency concerned
A: A jus cogens norm is a norm accepted and recognized by the
international community of States as a whole as a norm from which
no derogation is permitted and which can be modified only by a
TOPICS FROM 4B: subsequent norm of general international law having the same
character.
2 kinds of pork barrel
a. Presidential E.g. the prohibition against the use of force under the UN Charter
b. Congressional (Outlawing of acts of aggression); Outlawing of genocide; Basic
human rights, including protection from slavery and racial
Q: How did PDAF violate the doctrine of separation of powers discrimination; principle of self-determination, crimes against
humanity, prohibition against slavery and slave trade, and piracy
GRECO ANTONIOUS BEDA B. BELGICA, et al. v. HON. EXEC. SEC. (Magallona, p. 26, 2005).
PAQUITO N. OCHOA, JR.
G.R. No. 208566, 19 November 2013, En Banc (Perlas-Bernabe, J. Q: What is erga omnes (“in relation to everyone”)?
Facultad de Derecho Civil 53
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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________

A: It is an obligation of every State towards the international Q: What are the instances of a valid warrantess arrest?
community as a whole. All states have a legal interest in its
compliance, and thus all States are entitled to invoke responsibility A:
for breach of such an obligation.
a. When a person to be arrested has committed, is
Requisites for a valid search warrant and warrant of arrest actually committing, or is attempting to commit an
offense;
Q: What are the requisites for a valid warrant? b. When an offense has just been committed and he has
probable cause to believe based on personal knowledge of
A: facts or circumstances that the person to be arrested has
committed it; and
1. It must be based upon probable cause c. When the person to be arrested is an escapee or a
detention prisoner [Arrest while escaping]. (Section 5, Rule
Q: What is probable cause in case of issuance of a warrant of 113, Rules of Criminal Procedure)
arrest?
ELECTORAL TRIBUNALS
A: Such facts and circumstances antecedent to the issuance
of the warrant that in themselves are sufficient to induce a Section 17. The Senate and the House of Representatives shall each
cautious man to rely on them and act in pursuance thereof. It have an Electoral Tribunal which shall be the sole judge of all
consists of a reasonable ground of suspicion supported by contests relating to the election, returns, and qualifications of their
circumstances sufficiently strong in themselves to warrant a respective Members. Each Electoral Tribunal shall be composed of
cautious man in believing accused to be committing the offense or nine Members, three of whom shall be Justices of the Supreme
to be guilty of the offense. Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or the House of Representatives,
2. The probable cause must be determined by the judge as the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the
NOTE: The judge shall: parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal
a. Personally evaluate the report and the supporting shall be its Chairman
documents submitted by the public prosecutor regarding
the existence of probable cause and on the basis thereof, Q: What is the composition of the electoral tribunals?
issue a warrant of arrest; or
b. If the basis thereof he finds no probable cause, he may A: Each electoral tribunal shall be composed of 9 members. 3 from
disregard the prosecutor’s report and require the the SC (to be designated by the CJ) and 6 from the respective House.
submission of supporting affidavits of witnesses to aid him
in arriving at a conclusion as to the existence of probable NOTE: The senior Justice in the Electoral Tribunal shall be its
cause. chairman. Members chosen enjoy security of tenure and cannot be
removed by mere change of party affiliation.
3. The determination must be made after examination
under oath or affirmation of the complainant and the Q: What is the jurisdiction of the Electoral Tribunals?
witnesses he may produce.
A: Each electoral tribunal shall be the sole judge of all contests
The examination conducted by the judge takes the form of relating to the election, returns, and qualifications of their
searching questions. respective members (Sec. 17, Art. VII, 1987 Constitution). This
includes determining the validity or invalidity of a proclamation
4. Identify the person to be arrested declaring a particular candidate as the winner.

Q: What are the requisites for the issuance of a search warrant? ELECTION PROTEST AND QUO WARRANTO

A: Q: Distinguish Election Protest from Petition for Quo Warranto.

1. There must be probable cause; A: In Samad v. COMELEC, we explained that a petition for quo
2. The presence of probable cause is to be determined by the warranto under the Omnibus Election Code raises in issue the
judge personally; disloyalty or ineligibility of the winning candidate. It is a proceeding
3. The determination by the judge must be made only after to unseat the respondent from office but not necessarily to install
an examination under oath or affirmation of the the petitioner in his place. An election protest is a contest between
complainant and the witnesses he may produce; and the defeated and winning candidates on the ground of frauds or
4. The warrant must specifically describe the place to be irregularities in the casting and counting of the ballots, or in the
searched and the things to be seized which may be preparation of the returns. It raises the question of who actually
anywhere in the Philippines. obtained the plurality of the legal votes and therefore is entitled to
hold the office. (Dumayas, Jr. v. COMELEC, G.R. Nos. 141952-53,
NOTE: The absence of these requisites for a search warrant’s validity April 20, 2001, En Banc [Quisumbing])
will cause its downright nullification.
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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
PREVENTIVE SUSPENSION EXECUTIVE PRIVILEGE

See discussion above It is the power of the government to withhold information from
the public, the courts, and the Congress. (Schwartz)
PUBLIC ASSEMBLY ACT
It is also the right of the President and high-level executive branch
See discussion above officers to withhold information from Congress, the courts, and
ultimately the public. (Rozell)
DOCTRINE OF CONDONATION
1. State secret privilege—invoked by Presidents on the
ground that the information is of such nature that its
A:It means that when the people have elected a man to office, it disclosure would subvert crucial military or diplomatic
must be assumed that they did this with knowledge of his life and objective.
character, and that they disregarded or forgave his faults or 2. Informer’s privilege—privilege of the government not to
misconduct, if he had been guilty of any. It is not for the court, by disclose the identity of persons who furnish information in
reason of such faults or misconduct to practically overrule the will of violations of law to officers charged with the enforcement
the people. of the law.
3. Generic privilege—for internal deliberations has been said
Aguinaldo vs. Santos, 212 SCRA 768 to attach to intra-governmental documents reflecting
advisory opinions, recommendations and deliberations
A public official cannot be removed for administrative conduct comprising part of a process by which governmental
committed during a prior term, since his re-election to office decisions and policies are formulated.
operates as a condonation of the officer’s previous conduct to the
extent of cutting off the right to remove him therefor. The foregoing In determining the validity of a claim of privilege, the question that
rule, however, finds no application to criminal cases pending against must be asked is not only whether the requested information falls
petitioner. within one of the traditional privileges, but also whether that
privilege should be honored in a given procedural setting.
Mayor Alvin Garcia vs. Hon. Mojica, et al., G.R. No. 139043,
September 10, 1999 Senate vs. Ermita,
G.R. No. 169777, April 20, 2006
A re-elected local official may not be held administratively
accountable for misconduct committed during his prior term of Executive privilege, whether asserted against Congress, the
office. The rationale for this holding is that when the electorate put courts, or the public, is recognized only in relation to certain
him back into office, it is presumed that it did so with full knowledge types of information of a sensitive character. While executive
of his life and character, including his past misconduct. If, armed privilege is a constitutional concept, a claim thereof may be valid or
with such knowledge, it still reelects him, such re-election is not depending on the ground invoked to justify it and the context
considered a condonation of his past misdeeds. in which it is made. Noticeably absent is any recognition that
executive officials are exempt from the duty to disclose information
ADMINISTRATIVE JURISDICTION OF OMBUDSMAN by the mere fact of being executive officials. Indeed, the
extraordinary character of the exemptions indicates that the
Q: Who are covered by the administrative disciplinary authority of presumption inclines heavily against executive secrecy and in favor
the Office of the Ombudsman? of disclosure.

A: All elective and appointive officials of the government and its NERI v. SENATE COMMITTEE
subdivisions, instrumentalities and agencies, including Members of G.R. No. 180643, 4 September 2008
the Cabinet, local governments, government-owned or controlled
corporations and their subsidiaries are subject to the disciplinary During the hearings, former NEDA head Romulo Neri refused to
authority of the Office of the Ombudsman. answer certain questions involving his conversations with President
Arroyo on the ground they are covered by executive privilege. When
Q: Are there public officials not covered by the disciplinary the Senate cited him in contempt and ordered his arrest, Neri filed a
authority of the Office of the Ombudsman? case against the Senate with the Supreme Court. On March 25,
2008, the Supreme Court ruled in favor of Neri and upheld the claim
A: Yes, excepted from the coverage of the disciplinary authority of of executive privilege.
the Ombudsman are Members of Congress, the Judiciary, and
officials removable only by impeachment. ISSUE: Did the Senate Committees commit grave abuse of discretion
in citing Neri in contempt and ordering his arrest?
BAIL IN EXTRADITION
HELD: Yes. The Supreme Court said that the Senate Committees
See discussion above committed grave abuse of discretion in citing Neri in contempt. The
following were the reasons given by the Supreme Court:
INQUIRY IN AID OF LEGISLATION
a. There was a legitimate claim of executive privilege.
See discussion above b. Senate Committees did not comply with the requirement
laid down in Senate v. Ermita that the invitations should
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contain the “possible needed statute which prompted the
need for the inquiry” alongwith “usual indication of the Q: The House of Representatives’ House Committee conducted an
subject of inquiry and the questions relative to and in inquiry on the Japan-Philippines Economic Partnership Agreement
furtherance thereof.” (JPEPA), then being negotiated by the Philippine Government. The
c. A reading of the transcript of the Committees’ proceeding House Committee requested DTI Usec. Aquino to furnish it with a
reveals that only a minority of the member of the Senate copy of the latest draft of the JPEPA. Aquino replied that he shall
d. Blue Ribbon Committee was present during the provide a copy thereof once the negotiations are completed.
deliberations Thus, there is a cloud of doubt as to the
validity of the contempt order A petition was filed with the SC which seeks to obtain a copy of the
e. The Senate Rules of Procedure in aid of legislation were Philippine and Japanese offers submitted during the negotiation
not duly published in accordance to Section 21 of Article VI process and all pertinent attachments and annexes thereto.
f. The contempt order is arbitrary and precipitate because Aquino, et al. invoked executive privilege based on the ground that
the Senate did not first rule on the claim of executive the information sought pertains to diplomatic negotiations then in
privilege and instead dismissed Neri’s explanation as progress. On the other hand, Akbayan, et al. for their part invoke
unsatisfactory. This is despite the fact that Neri is not an their right to information on matters of public concern.
unwilling witness. Are matters involving diplomatic negotiations covered by
executive privilege?
Hence, the Senate order citing Neri in contempt and ordering his
arrest was not valid. A. Yes. It is clear that while the final text of the JPEPA may not be
kept perpetually confidential, the offers exchanged by the parties
Senate v. Ermita, G.R. Nos. 169777, 20 April 2006 during the negotiations continue to be privilege even after the JPEPA
is published. Disclosing these offers could impair the ability of the
Q: Who may invoke executive privilege? Philippines to deal not only with Japan but with other foreign
governments in future negotiations (AKBAYAN Citizen’s Action Party
A. It is only the President who has the power to invoke the privilege. v. Aquino, et al., G.R No. 170516, July 16, 2008).
She may of course authorize the Executive Secretary to invoke the
privilege on her behalf, in which case the Executive Secretary must NOTE: Such privilege is only presumptive.
state that the authority is “By order of the President”.
FLAG STATE v. FLAGS OF CONVENIENCE
Q: How is the claim of executive privilege properly invoked?
Q: Distinguish the flag state and the flag of convenience
A: There must be a formal claim of privilege, lodged by the Head of
the department which has control over the matter. A formal and A. Flag state means a ship has the nationality of the flag of the state
proper claim of executive privilege requires “a precise and certain it flies, but there must be a genuine link between the state and the
reason” for preserving their confidentiality (Neri v. Senate, G.R. No. ship. (Article 91 of the Convention on the Law of the Sea)
180643, March 25, 2008).
Flag of convenience refers to a state with which a vessel is registered
Q: Can Congress require the executive to state the reasons for the for various reasons such as low or non-existent taxation or low
claim with particularity? operating costs although the ship has no genuine link with the state.
(Harris, Cases and Materials on International Law, 5th ed., 1998, p.
A. No. Congress must not require the executive to state the reasons 425)
for the claim with such particularity as to compel disclosure of the
information which the privilege is meant to protect (Senate v. FREEDOM OF RELIGION
Ermita, G.R. No. 169777, 20 April 2006).
Section 5. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free exercise
Q: What are the elements of presidential communications and enjoyment of religious profession and worship, without
privilege? discrimination or preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
A:
IMPORTANT CLAUSES:
1. The protected communication must relate to a
“quintessential and non-delegable presidential power”. 1. Non-Establishment Clause
2. The communication must be authored or “solicited and 2. Free Exercise Clause
received” by a close advisor of the President or the 3. Religion Test Clause
President himself. The judicial test is that an advisor must
be in “operational proximity” with the President. Q: Discuss the Non-Establishment clause.
3. The presidential communications privilege remains a
qualified privilege that may be overcome by a showing of A: The Government cannot establish any official religion. The
adequate need, such that the information sought “likely Government cannot infuse public funds into religion or any religious
contains important evidence” and by the unavailability of activity.
the information elsewhere by an appropriate investigating
authority (Neri v. Senate, G.R. No. 180643, March 25,
2008).
Facultad de Derecho Civil 56
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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
XPN: Chaplains inside military camps, orphanages, penal institutions Q: Discuss why the Gerona ruling (justifying the expulsion from
and leprosarium. The reason for this is public policy so that they will public schools of children of Jehovah’s Witnesses who refuse to
not insist anymore of going out of these places. salute the flag and sing the national anthem during flag ceremony
as prescribed by the Flag Salute Law) should be abandoned.
Q: What is the scope of the non-establishment clause?
A: It is somewhat ironic however, that after the Gerona ruling had
A: received legislative cachet by its incorporation in the Administrative
Code of 1987, the present Court believes that the time has come to
a. State cannot set-up church; reexamine it. The idea that one may be compelled to salute the flag,
b. Cannot pass laws which aid one religion, all religions sing the national anthem, and recite the patriotic pledge, during a
or prefer one over another; flag ceremony on pain of being dismissed from one’s job or of being
c. Nor influence a person to go to or remain away from expelled from school, is alien to the conscience of the present
church against his will; nor generation of Filipinos who cut their teeth on the Bill of Rights which
d. Force him to profess a belief or disbelief in any religion guarantees their rights to free speech (The flag salute, singing the
national anthem and reciting the patriotic pledge are all forms of
Q: Discuss the two aspects of freedom of religion. utterances.) and the free exercise of religious profession and
worship. Religious freedom is a fundamental right which is entitled
A: The right to religious profession and worship has a two-fold to the highest priority and the amplest protection among human
aspect, viz., freedom to believe and freedom to act on one's belief. rights, for it involves the relationship of man to his Creator.
The first is absolute as long as the belief is confined within the realm
of thought. The second is subject to regulation where the belief is We are not persuaded that by exempting the Jehovah’s Witnesses
translated into external acts that affect the public welfare. (Iglesia Ni from saluting the flag, singing the national anthem and reciting the
Cristo v. CA, 259 SCRA 529, July 26, 1996 [Puno]). patriotic pledge, this religious group which admittedly comprises a
“small portion of the school population” will shake up our part of
The constitutional inhibition of legislation on the subject of religion the globe and suddenly produce a nation “untaught and
has a double aspect. On the one hand, it forestalls compulsion by uninculcated in and unimbued with reverence for the flag,
law of the acceptance of any creed or the practice of any form of patriotism, love of country and admiration for national heroes.
worship. Freedom of conscience and freedom to adhere to such After all, what the petitioners seek only is exemption from the flag
religious organization or form of worship as the individual may ceremony, not exclusion from the public schools where they may
choose cannot be restricted by law. On the other hand, it study the Constitution, the democratic way of life and form of
safeguards the free exercise of the chosen form of religion. Thus, government, and learn not only the arts, sciences, Philippine history
the Constitution embraces two concepts, that is, freedom to believe and culture but also receive training for a vocation or profession and
and freedom to act. The first is absolute but, in the nature of things, be taught the virtues of “patriotism, respect for human rights,
the second cannot be. Conduct remains subject to regulation for the appreciation for national heroes, the rights and duties of citizenship,
protection of society. The freedom to act must have appropriate and moral and spiritual values (Sec. 3[2], Art. XIV,1987 Constitution)
definitions to preserve the enforcement of that protection. In every as part of the curricula. Expelling or banning the petitioners from
case, the power to regulate must be so exercised, in attaining a Philippine schools will bring about the very situation that this Court
permissible end, as not to unduly infringe on the protected freedom. had feared in Gerona. Forcing a small religious group, through the
iron hand of the law, to participate in a ceremony that violates their
Q: What is an “ecclesiastical affair” to which the State cannot religious beliefs, will hardly be conducive to love of country or
meddle? respect for duly constituted authorities.

A: : An ecclesiastical affair is “one that concerns doctrine, creed, or Q: What are religious tests?
form of worship of the church, or the adoption and enforcement
within a religious association of needful laws and regulations for the A: The constitutional prohibition against religious tests is aimed
government of the membership, and the power of excluding against clandestine attempts on the part of the government to
from such associations those deemed not worthy of prevent a person from exercising his civil or political rights because
membership.” It involves the relationship between the church and of his religious beliefs.
its members and relates to matters of faith, religious doctrines,
worship and governance of the congregation to which the state RECALL
cannot meddle.
Q: What is recall?
Q: Explain the doctrine of “Benevolent Neutrality.”
A: Recall is a mode of removal of a public officer by the people
A: It recognizes that government must pursue its secular goals and before the end of his term of office.
interest but at the same time strive to uphold religious liberty
to the greatest extent possible within flexible constitutional limits. Q: What is the ground for recall? Is this subject to judicial inquiry?
Thus, although the morality contemplated by laws is secular,
benevolent neutrality could allow for accommodation of morality A: “There is only one ground for recall of local government officials:
based on religion, provided it does not offend compelling state loss of confidence.
interests.
Q: What is “loss of confidence”?

Facultad de Derecho Civil 57

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
A: This means that the people may petition or the Preparatory Recall
Assembly may resolve to recall any local SEC. 74. Limitations on Recall. - (a) Any elective local official may be
elective official without specifying any particular ground except loss the subject of a recall election only once during his term of office for
of confidence. There is no need for them to bring up any charge of loss of confidence.
abuse or corruption against the local elective officials who are
subject of any recall petition. (b) No recall shall take place within one (1) year from the date of
the official’s assumption to office or one (1) year immediately
NOTE: In the case of Evardone v. Commission on Elections, et al., preceding a regular local election.
204 SCRA 464, 472 (1991), the Court ruled that ‘loss of confidence’
as a ground for recall is a political question. In the words of the 423. Section 74 of the Local Government Code provides that “no
Court, 'whether or not the electorate of the municipality of Sulat has recall shall take place within one year x x x immediately preceding a
lost confidence in the incumbent mayor is a political question.’” regular local election.”
(Garcia v. COMELEC, 227 SCRA 108, Oct. 5, 1993, En Banc [Puno])
Q: The members of the Preparatory Recall Assembly (PRA) of
Q: The members of the Preparatory Recall Assembly (PRA) of the Puerto Princesa City met and adopted a resolution calling for the
province of Bataan adopted a resolution calling for the recall of recall of incumbent Mayor Dennis Victorino M. Socrates on the
Governor Garcia. It was admitted, however, by the ground of loss of confidence on July 2, 2002. Mayor Socrates
proponents of the recall resolution that only those members of the argued that they have no authority to adopt said Recall Resolution
assembly inclined to agree were notified of the meeting where said because a majority of PRA members were seeking a new electoral
resolution was adopted “as a matter of strategy and security.” mandate in the barangay elections scheduled on July 15, 2002.
They justified these selective notices on the ground that the law Should his contention be sustained?
(Local Government Code) does not specifically mandate the
giving of notice. Should this submission be sustained? A: This argument deserves scant consideration considering that
when the PRA members adopted the Recall Resolution their terms
A: We reject this submission of the respondents. The due process of office had not yet expired. They were all de jure sangguniang
clause of the Constitution requiring notice as an element of fairness barangay members with no legal disqualification to participate in the
is inviolable and should always be considered part and parcel of recall assembly under Section 70 of the Local Government Code.
every law in case of its silence. The need for notice to all the (Victorino Dennis M. Socrates v. The Commission on Elections, G.R.
members of the assembly is also imperative for these members No. 154512, Nov. 12, 2002, En Banc [Carpio])
represent the different sectors of the electorate of Bataan. To the
extent that they are not notified of the meeting of the assembly, to Q: Whether or not a local elective official who became City Mayor
that extent is the sovereign voice of the people they represent by legal succession can be the subject of a recall election by virtue
nullified. The resolution to recall should articulate the majority will of a Preparatory Recall Assembly Resolution which was passed or
of the members of the assembly but the majority will can be adopted when the she was still the Vice-Mayor.
genuinely determined only after all the members of the assembly
have been given a fair opportunity to express the will of their A: The specific purpose of the Preparatory Recall Assembly was to
constituents. Needless to stress, the requirement of notice is remove Amelita S. Navarro as the elected Vice-Mayor of Santiago
mandatory for it is indispensable in determining the collective City since PRA Resolution No. 1 dated July 12, 1999 expressly states
wisdom of the members of the Preparatory Recall Assembly. Its that “ x x x it is hereby resolved to invoke the rescission of the
non-observance is fatal to the validity of the resolution to recall electoral mandate of the incumbent City Vice-Mayor Amelita S.
petitioner Garcia as Governor of the province of Bataan. (Garcia v. Navarro for loss of confidence through a recall election to be set by
COMELEC, G.R. No. 111511, Sept. 21, 1993; 227 SCRA 100, Oct. 5, the Commission on Election as provided for under Section 71 of the
1993, En Banc [Puno]) Local Government Code of 1991.” However, the said PRA Resolution
No. 1 is no longer applicable to her inasmuch as she had already
Q: Will it be proper for the Commission on Elections to act on a vacated the office of Vice-Mayor on October 11, 1999 when she
petition for recall signed by just one person? assumed the position of City Mayor of Santiago City.

A: A petition for recall signed by just one person is in violation of the

statutory 25% minimum requirement as to the number of signatures Even if the Preparatory Recall Assembly were to reconvene to adopt
supporting any petition for recall. Sec. 69(d) of the Local another resolution for the recall of Amelita Navarro, this time as
Government Code of 1991 expressly provides that 'recall of any Mayor of Santiago City, the same would still not prosper in view of
elective x x x municipal x x x official may also be validly initiated Section 74 (b) of the Local Government Code of 1991 which provides
upon petition of at least twenty-five percent (25%) of the total that “No recall shall take place within one (1) year from the date of
number of registered voters in the local government unit concerned the official’s assumption of office or one (1) year immediately
during the election in which the local official sought to be recalled preceding a regular election.” There is no more allowable time in
was elected.' The law is plain and unequivocal as to what the light of that law within which to hold recall elections for that
constitutes recall proceedings: only a petition of at least 25% of the purpose. The then Vice-Mayor Amelita S. Navarro assumed office as
total number of registered voters may validly initiate recall Mayor of Santiago City on October 11, 1999. One year after her
proceedings. (Angobung v. COMELEC, G.R. No. 126576, March 5, assumption of office as Mayor will be October 11, 2000 which is
1997) already within the one (1) year prohibited period immediately
preceding the next regular election in May 2001. (Afiado v.
Q: What are the limitations on recall? Commission on Elections, 340 SCRA 600, Sept. 18, 2000, En Banc [De
Leon]
A: Section 74, Local Government Code, provides:
Facultad de Derecho Civil 58
UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
Q: May the Punong Barangay validly appoint or remove the
barangay treasurer, the barangay secretary, and other appointive Q: What are the grounds for impeachment?
barangay officials without the concurrence of the majority of all
the members of the Sangguniang Barangay? A:

A: The Local Government Code explicitly vests on the punong 1. Culpable violation of the constitution
barangay, upon approval by a majority of all the members of the 2. Treason
sangguniang barangay, the power to appoint or replace the 3. Bribery
barangay treasurer, the barangay secretary, and other appointive 4. Betrayal of public trust
barangay officials. Verily, the power of appointment is to be 5. Graft and corruption
exercised conjointly by the punong barangay and a majority of all 6. Other high crimes
the members of the sangguniang barangay. Without such conjoint
action, neither an appointment nor a replacement can be effectual. PRIVILEGE FROM ARREST

Applying the rule that the power to appoint includes the power to See discussion above
remove x x x the questioned dismissal from office of the barangay
officials by the punong barangay without the concurrence of the FREEDOM OF SPEECH
majority of all the members of the Sangguniang Barangay cannot be
legally justified. To rule otherwise could also create an absurd See discussion above
situation of the Sangguniang Barangay members refusing to give
their approval to the replacements selected by the punong barangay CUSTODIAL INVESTIGATION RIGHTS
who has unilaterally terminated the services of the incumbents. It is
likely that the legislature did not intend this absurdity to follow from 1. Right to remain silent;
its enactment of the law. (Ramon Alquizola, Sr. v. Gallardo Ocol, G.R. 2. Right to have a competent and independent counsel
No. 132413, Aug. 27, 1999, 3rd Div. [Vitug]) preferably of his own choice at all stages of the
investigation;
POLITICAL PARTIES THAT ARE DISQUALIFIED
Q: What do you mean by Independent and competent
Q: What groups are disqualified for registration? counsel?

A: A: bOne who is willing to safeguard the constitutional

rights of the accused.
a. Religious denominations or sects
b. Those who seek to achieve their goals through violence or 3. Right to be informed of such rights;
unlawful means
c. Those who refuse to uphold and adhere to the Rationale:
Constitution and
d. If it is receiving support from any foreign government, a. to make him aware of it;
foreign political party, foundation, organization, whether b. to overcome the inherent pressure o the
directly or through any of its officers or members or interrogating atmosphere; and
indirectly through third parties for partisan election c. to show the individual that his interrogators
purposes; are prepared to recognize his privilege should
e. Violates or fails to comply with laws, rules or regulations he choose to invoke it.
relating to elections
f. If it declares untruthful statements in its petition; 4. Right to be provided with counsel, if the person cannot
g. If it has ceased to exist for at least one (1) year; afford one;
h. Fails to participate in the last two (2) preceding elections NOTE: These rights cannot be waives except in writing and
or fails to obtain at least two per centum (2%) of the votes in the presence of counsel; it is not required in a police-
cast under the party-list system in the two (2) preceding line up as the latter is not part of a custodial inquest.
elections for the constituency in which it has registered.
5. No torture, force, etc. which vitiate free will shall be used;
RIGHTS OF STATE UNDER INTERNATIONAL LAW (SPEED) 6. Secret detention places are prohibited; and
7. Confession/admissions obtained in violation of rights
Q: What are the fundamental rights of a State? are inadmissible in evidence.

A: It consists of the Right of: CALLING OUT POWER, MARTIAL LAW

1. Existence and self‐preservation COMMANDER-IN-CHIEF CLAUSE/ CALLING-OUT POWER

2. Sovereignty and independence
3. Equality Three powers under Art. VII, Sec. 18
4. Property and jurisdiction
5. Diplomatic intercourse 1. Calling out power as commander-in-chief of AFP
2. Declare Martial Law
GROUNDS FOR IMPEACHMENT 3. Suspend the privilege of the writ of habeas corpus
Facultad de Derecho Civil 59
UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
4. Congress may, by majority vote of all its members voting
Section 18. The President shall be the Commander-in-Chief of all jointly, revoke the proclamation, and the President cannot
armed forces of the Philippines and whenever it becomes set aside the revocation;
necessary, he may call out such armed forces to prevent or 5. By the same vote and in the same manner, upon initiative
suppress lawless violence, invasion or rebellion. In case of invasion of the President, Congress may extend the proclamation if
or rebellion, when the public safety requires it, he may, for a the invasion or rebellion continues and public safety
period not exceeding sixty days, suspend the privilege of the writ requires it;
of habeas corpus or place the Philippines or any part thereof under 6. The Supreme Court may review, in an appropriate
martial law. Within forty-eight hours from the proclamation of proceeding filed by any citizen, the sufficiency of the
martial law or the suspension of the privilege of the writ of habeas factual basis of the proclamation of martial law or the
corpus, the President shall submit a report in person or in writing suspension of the privilege of the writ of habeas corpus or
to the Congress. The Congress, voting jointly, by a vote of at least a the extension thereof, and must promulgate its decision
majority of all its Members in regular or special session, may thereon within 30 days from its filing;
revoke such proclamation or suspension, which revocation shall 7. It does not suspend the operation of the Constitution, nor
not be set aside by the President. Upon the initiative of the supplant the functioning of the civil courts or legislative
President, the Congress may, in the same manner, extend such assemblies, nor authorize the confinement of jurisdiction
proclamation or suspension for a period to be determined by the on military courts and agencies over civilians where civil
Congress, if the invasion or rebellion shall persist and public safety courts are able to function, nor automatically suspend the
requires it. privilege of the writ.

The Congress, if not in session, shall, within twenty-four hours NOTE: Supreme Court cannot rule upon the correctness of the
following such proclamation or suspension, convene in accordance President’s actions but only upon its arbitrariness.
with its rules without need of a call.
While the suspension of the privilege of writ and the proclamation
The Supreme Court may review, in an appropriate proceeding filed of martial law is subject to judicial review, the actual use by the
by any citizen, the sufficiency of the factual basis of the President of the armed forces is not. Thus, troop deployments in
proclamation of martial law or the suspension of the privilege of times of war are subject to the President’s judgment and discretion.
the writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing. RANDOLF DAVID v. GLORIA ARROYO
GR 171396, 3 May 2006
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or PGMA issued Proclamation 1017 declaring a State of National
legislative assemblies, nor authorize the conferment of jurisdiction Emergency. Randolph David along with others, were arrested
on military courts and agencies over civilians where civil courts are without warrants. Holding of rallies were prohibited. There was
able to function, nor automatically suspend the privilege of the continuing threat to the media and threat to take over public
writ. utilities.

The suspension of the privilege of the writ shall apply only to HELD: The conditions for the exercise of emergency powers were
persons judicially charged for rebellion or offenses inherent in or present but there was no law authorizing the President to exercise
directly connected with invasion. such powers. The petitioners failed to rebut the factual bases of PP
1017; hence its constitutionality must be upheld.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days, GR: Calling out power is a political question not subject to judicial
otherwise he shall be released. review

Calling out power- The ability of the President to require a military XPN: If it can be shown that the president has gravely abused his
official to secure prior consent before appearing before Congress discretion in exercise of that power
pertains to a wholly different and independent specie of presidential
authority—the commander-in-chief powers of the President. By Q: Why the difference in treatment?
tradition and jurisprudence, the commander-in-chief powers of the
President are not encumbered by the same degree of restriction as A: Calling out power is the lesser and more benign power while the
that which may attach to executive privilege or executive control. power to declare martial law and to suspend the privilege of the writ
of habeas corpus are the greater powers which involve direct
Q: What are the Constitutional safeguards on the exercise of the curtailment of civil liberties thereby necessitating safeguards of
power of the President to proclaim martial law? Congress and judicial review of the Court. (IBP v. Zamora)

A: PGMA exercised the calling out power when she issued GO 5 and PP
1017, not the martial law power. The acts taken purportedly to carry
1. There must be actual invasion or rebellion; out the issuances were ultra vires, hence, unconstitutional. The
2. The duration of the proclamation shall not exceed 60 days; exercise of the calling out power does not involve the direct
3. Within 48 hours, the President shall report his action to curtailment and suppression of civil liberties and individual
Congress. If Congress is not in session, it must convene freedoms. However GO 5 and PP1017 are constitutional. Petitioners
within 24 hours; failed to counteract the factual bases therefore as alleged by the
Solgen. (David v. PGMA)
Facultad de Derecho Civil 60
UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
Q: What are the effects of the filing of COCs?
Q: Why not the martial law powers?
A: Candidates holding appointive office or position shall be
A: There was no case of invasion or rebellion. President will be considered ipso facto resigned from his office. (Sec. 66, OEC)
required to submit report to Congress within 48 hours from Candidates holding elective office shall not be considered
proclamation of martial law. (Article VII, section18) resigned from his office. (Sec. 67 of OEC repealed by Section 14 of
RA 9006).
Q: Why not the emergency powers?
COMELEC Resolution No. 3636, promulgated March 1, 2001,
A: The President cannot motu proprio exercise emergency power implementing the Fair Election Act (R.A. No. 9006) provides in
because such power is vested in Congress. (Article VI, section 23) Section 26 thereof: “any elective official, whether national or local,
who has filed a certificate of candidacy for the same or any other
SUSPENSION OF THE PRIVILEGE OF HABEAS CORPUS office shall not be considered resigned from his office.”

Q: What are the grounds for the suspension of the privilege of the Note that Section 67 of the Omnibus Election Code and the first
writ of habeas corpus? proviso in the third paragraph of Section 11 of Republic Act No. 8436
which modified said Section 67, were expressly repealed and
A: rendered ineffective, respectively, by Section 14 (Repealing Clause)
of The Fair Election Act (R.A. No. 9006).
1. invasion or rebellion,
2. when public safety requires it RA 7438, MIRANDA RIGHTS

Q: How long is the duration of the suspension? Section 2. Rights of Persons Arrested, Detained or Under Custodial
Investigation; Duties of Public Officers. –
A: It shall not to exceed 60 days, following which it shall be lifted
unless extended by Congress (a) Any person arrested detained or under custodial investigation
shall at all times be assisted by counsel.
Q: What are the Four Ways to Lift the Suspension?
(b) Any public officer or employee, or anyone acting under
A: his order or his place, who arrests, detains or investigates any
person for the commission of an offense shall inform the latter, in
1. Lifting by the President himself a language known to and understood by him, of his rights to
2. Revocation by Congress remain silent and to have competent and independent counsel,
3. Nullification by the Supreme Court preferably of his own choice, who shall at all times be allowed to
4. By operation of law after 60 days confer privately with the person arrested, detained or under
custodial investigation. If such person cannot afford the services of
Q: What is the Duty of the President in case of the suspension? his own counsel, he must be provided with a competent and
independent counsel by the investigating officer.lawphi1Ÿ
A: To report action to Congress within 48 hours, personally or in
writing (c) The custodial investigation report shall be reduced to
writing by the investigating officer, provided that before such
NOTE: The Congress may revoke or extend, on request of the report is signed, or thumbmarked if the person arrested or
President, the effectivity of proclamation by a majority vote of all its detained does not know how to read and write, it shall be read and
Members, voting jointly. adequately explained to him by his counsel or by the assisting
counsel provided by the investigating officer in the language or
The suspension applies only to persons judicially charged for dialect known to such arrested or detained person, otherwise, such
rebellion or offenses inherent in or directly connected with invasion. investigation report shall be null and void and of no effect
whatsoever.
During the suspension of the privilege of the writ of habeas corpus,
any person thus arrested or detained shall be judicially charged (d) Any extrajudicial confession made by a person arrested,
within three (3) days, otherwise he shall be released. detained or under custodial investigation shall be in writing and
signed by such person in the presence of his counsel or in the
EXCLUSIONARY RULE latter's absence, upon a valid waiver, and in the presence of any of
the parents, elder brothers and sisters, his spouse, the municipal
Section 3. The privacy of communication and correspondence shall mayor, the municipal judge, district school supervisor, or priest or
be inviolable except upon lawful order of the court, or when public minister of the gospel as chosen by him; otherwise, such
safety or order requires otherwise, as prescribed by law. extrajudicial confession shall be inadmissible as evidence in any
proceeding.
Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding. (e) Any waiver by a person arrested or detained under the
provisions of Article 125 of the Revised Penal Code, or under
ELECTION LAW: DEEMED RESIGNED WHEN SUBMITTED COC ONLY custodial investigation, shall be in writing and signed by such
ELECTIVE OFFICERS person in the presence of his counsel; otherwise the waiver shall
be null and void and of no effect.
Facultad de Derecho Civil 61
UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________

(f) Any person arrested or detained or under custodial A: Republic Act No. 4200 entitled "An Act to Prohibit and Penalize
investigation shall be allowed visits by or conferences with any Wire Tapping and Other Related Violations of the Privacy of
member of his immediate family, or any medical doctor or priest or Communication, and For Other Purposes" expressly makes such tape
religious minister chosen by him or by any member of his recordings inadmissible in evidence. x x x.
immediate family or by his counsel, or by any national non-
governmental organization duly accredited by the Commission on Clearly, respondent trial court and Court of Appeals failed to
Human Rights of by any international non-governmental consider the afore-quoted provisions of the law in admitting in
organization duly accredited by the Office of the President. The evidence the cassette tapes in question. Absent a clear showing
person's "immediate family" shall include his or her spouse, fiancé that both parties to the telephone conversations allowed the
or fiancée, parent or child, brother or sister, grandparent or recording of the same, the inadmissibility of the subject tapes is
grandchild, uncle or aunt, nephew or niece, and guardian or ward. mandatory under Rep. Act No. 4200.

As used in this Act, "custodial investigation" shall include the Additionally, it should be mentioned that the above-mentioned
practice of issuing an "invitation" to a person who is investigated Republic Act in Section 2 thereof imposes a penalty of imprisonment
in connection with an offense he is suspected to have committed, of not less than six (6) months and up to six (6) years for violation of
without prejudice to the liability of the "inviting" officer for any said Act. (Salcedo-Ortanez v. Court of Appeals, 235 SCRA 111, Aug. 4,
violation of law. 1994 [Padilla])

RA 4200 (ANTI-WIRE TAPPING) OBJETCS AND SUBJECTS OF INTERNATIONAL LAW

It prohibits any person not being authorized by all parties to

any private communication or spoken word, to tap any wire or 1. Traditional concept- Only States are considered subjects
cable, or by using any other device or arrangement to secretly of international law.
overhear, intercept or record the same, or to communicate the 2. Contemporary concept- Individuals and international
content thereof to any person. organizations are also subjects because they have rights
and duties under international law.
The use of said record may be permitted in the following instances:

1. In civil or criminal proceedings involving certain specified

offenses principally affecting national security; and
2. When authorized by the court which may be issued under Subjects of international law
the following conditions:
a. The constitutional requirements for the issuance of a Q: What is a “subject” of international law?
warrant should be complied with; and
b. The authority shall be effective only for sixty (60) days. A: A Subject is an entity that has an international personality. An
entity has an international personality if it can directly enforce
Any evidence obtained in violation of this law is not admissible in its rights and duties under international law. Where there is no
any proceeding. direct enforcement of accountability and an intermediate
agency is needed, the entity is merely an object not a subject of
RA 4200 clearly and unequivocally makes it illegal for any person, international law.
not authorized by all parties to any private communication, to
secretly record such communications by means of a tape recorder. It is an entity with capacity of possessing international rights and
duties and of bringing international claims (Magallona, p. 33,
The law does not make any distinction. A telephone extension
2005).
is not among the devices covered by this law. (Gaanan vs. IAC, 145
SCRA 112)
Q: When does an entity acquire international personality?
Salcedo Ordoñez v. Court of Appeals
A: When it has right and duties under international law; can
“The Philandering Wife”
directly enforce its rights; and may be held directly accountable for
its obligations.
Q: Private respondent Rafael S. Ortanez filed with the Regional
Trial Court of Quezon City a complaint for annulment of marriage Q: Distinguish between general or objective international
with damages against petitioner Teresita Salcedo-Ortanez, on personality from particular or special international personality?
grounds of lack of marriage license and/or psychological incapacity
of the petitioner. Among the exhibits offered by private A: As to the first, rights and obligations are conferred by general
respondent were three (3) cassette tapes of alleged telephone international law and such personality is binding erga omnes. As to
conversations between petitioner and unidentified persons. The the second, personality binds only those which give consent. It is
trial court issued the assailed order admitting all of the evidence brough about by their agreement and is recognized only among
offered by private respondent, including tape recordings of themselves as parties to that agreement.
telephone conversations of petitioner with unidentified persons.
These tape recordings were made and obtained when private GENERAL SPCEIAL
respondent allowed his friends from the military to wire tap his Right and obligations are Personality binds only those
home telephone. Did the trial court act properly when it admitted conferred by general which give consent:
in evidence said tape recordings? international law and such a. Express
Facultad de Derecho Civil 62
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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________
personality is binding erga b. tacit Private respondent can ask the Philippine government, through the
omnes Foreign Office, to espouse its claims against the Holy See. Its first
task is to persuade the Philippine government to take up with the
Q: If an entity is not a subject of international law, can it still Holy See the validity of its claims. Of course, the Foreign Office shall
assume certain characteristics of international personality? first make a determination of the impact of its espousal on the
relations between the Philippine government and the Holy See.
A: Yes, but in a special or restricted context such as that defined by Once the Philippine government decides to espouse the claim, the
agreement, recognition or acquiescence. latter ceases to be a private cause.

Q: How is the State regarded as a subject of international law? According to the Permanent Court of International Justice, the
forerunner of the International Court of Justice by taking up the
A: The State is regarded as subject of international law or an case of one of its subjects and by reporting to diplomatic action or
international legal person in that it has, in other words, the capacity international judicial proceedings on his behalf, a State is in reality
to be bearer of rights and duties under international law. asserting its own rights — its right to ensure, in the person of its
subjects, respect for the rules of international law.
The status of the State as subject of law or an international person is
conferred by customary or general international law. It possesses Objects of international law
erga omnes or objective personality not merely by virtue of
recognition on the part of particular states. Q: What is an object of international law?

Q: How is the primacy of states as subjects of international law A: An Object is a person or thing in respect of which rights are held
explained? and obligations assumed by the Subject. Thus, it is not directly
governed by the rules of international law. There is no direct
A: The States are the repositories of legitimated authority over enforcement and accountability. An intermediate agency—the
peoples and territories. It is only in terms of State powers, Subject—is required for the enjoyment of its rights and for the
prerogatives, jurisdictional limits and law-making capabilities that discharge of its obligations.
territorial limits and jurisdiction, responsibility for official actions,
and a host of other questions of co-existence between nations can Q: Distinguish subjects from objects of international law.
be determined.
A:
A: Are international organizations considered as subjects of
international law? SUBJECTS OF INTENATIONAL OBJECTS OF INTENATIONAL
LAW LAW
A: Yes, if their legal personality is established by their constituent Entity that has rights and Person or thing in respect of
instrument or charter. Their status is determined by agreement and responsibilities which rights are held and
not by general or customary international law. Their personality is obligations assumed by the
derivative of the collective will of the states creating it. subject
Has international personality Not directly governed by the
Q: What is the criterion for legal personality to be met? that it can directly assert rights rules of international law
and can be held responsible
A: under the law of nations
1. A permanent association of states, with lawful objects, It can be a proper party in Its rights are received and its
equipped with organs transactions involving the responsibilities imposed
2. A distinction, in terms of legal powers and purposes, application of the law of nations indirectly through the
between the organization and its member states among members of instrumentality of an
3. The existence of legal powers exercisable on the international communities intermediate agency
international plane and not solely within the national
system of one or more states
RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES
Q: May individuals assume the status of subjects of international (SEC 2)
law?
Section 2. The right of the people to be secure in their persons,
A: Yes, but on the basis of the agreement by states and in specific houses, papers, and effects against unreasonable searches and
context, not in accordance with general or customary international seizures of whatever nature and for any purpose shall be
law. inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
HOLY SEE v. ROSARIO (1994) judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
Under both Public International Law and Transnational Law, a describing the place to be searched and the persons or things to be
person who feels aggrieved by the acts of a foreign sovereign can seized.
ask his own government to espouse his cause through diplomatic
channels. This refers to the personal security of an individual. It protects
persons and not places. Not all searches are prohibited. Only those
which are unreasonable are prohibited by the Constitution.
Facultad de Derecho Civil 63
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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________

Q: What is the scope of the right?

A: The protection is available to all persons, including aliens,

whether accused of crime or not. Artificial persons are also entitled
to the guarantee, although they may be required to open their
books of accounts for examination by the State in the exercise of
police and taxing powers.

Q: Explain the nature of the right.

A: The right is personal; it may be invoked only by the person

entitled to it. As such, the right may be waived either expressly
or impliedly, but the waiver must be made by the person
whose right is invaded, not by one who is not duly authorized
to effect such waiver.

2 TYPES OF ELECTORAL TRIBUNAL, COMPOSITION

See above discussion.

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Kenneth & King Hizon (4A)- UST Faculty of Civil Law ___________________________

Lecture Proper:
Doctrine of Condonation

Q: What is the doctrine of condonation? Clear then, the rule is that a public official can not be
removed for administrative misconduct committed during a
A: Doctrine of condonation- the “re-election” of an elected prior term, since his re-election to office operates as a
officer serves as a condonation of any administrative case condonation of the officer's previous misconduct to the
(Aguinaldo v. Santos). extent of cutting off the right to remove him therefor. The
foregoing rule, however, finds no application to criminalcases
-applies only in re-election: same post/position pending against petitioner for acts he may have committed
-applies only to administrative cases, never in criminal case during the failed coup.
where there is no condonation
-section 40 (b) of LGC: disqualified for running in any elective POLI REV
post -Poli and PIL (15%)

Q: What is the effect of the removal from office by such 7 Components

public officer?
Q: What are the 7 components of Political Law?
A: Section 40(b) of the Local Government Code is clear that
any person removed from office by reason of an A:
administrative case is disqualified from running for any 1. Political law-fundamental principles and structure of
elective local office. the government
2. Constitutional law- Bill of rights, inherent powers of
SEC. 40. Disqualifications. - The following persons are state
disqualified from running for any elective local position: 3. Administrative law
4. Law on Public officers, Civil Service, Sandiganbayan,
(a) Those sentenced by final judgment for an offense modes of termination of administrative relations
involving moral turpitude or for an offense punishable by 5. Election laws
one (1) year or more of imprisonment, within two (2) years 6. Public corporation, local government
after serving sentence; (b) Those removed from office as a 7. PIL
result of an administrative case;
(c) Those convicted by final judgment for violating the oath Fundamental Principles
of allegiance to the Republic; History of the Constitution
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases History- since 1935, we had 4 consti:
here or abroad; 1. 1935
(f) Permanent residents in a foreign country or those who 2. 1973
have acquired the right to reside abroad and continue to 3. Freedom constitution
avail of the same right after the effectivity of this Code; and 4. 1987
cralaw
(g) The insane or feeble-minded For 77 years, we had 4 constitutions already. We do not has a
strong sense of constitutionalism. Unlike, U.S. which was
RODOLFO E. AGUINALDO v. HON. LUIS SANTOS, as Secretary made by the forefathers of US Constitution on 1787. They
of the Department of Local Government, and MELVIN merely amend but they do not change. They have high
VARGAS, as Acting Governor of Cagayan respect. Renders biblical in significance. More than 200 years,
G.R. No. 94115 August 21, 1992 the American Constitution has survived the test of time.

Q: What is the basis of this doctrine? 1-18 Articles of consti

Sections 1-22 of bill of rights
A: The underlying theory is that each term is separate from
other terms, and that the reelection to office operates as a Written constitution
condonation of the officer's misconduct to the extent of
cutting off the right to remove him therefor. Q: What are the 3 parts of a written constitution?

A:
Facultad de Derecho Civil 65
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Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
the first time in our nation's constitutional history, is
a. Constitution of government solemnly incorporated in the fundamental law. Section 16,
b. Constitution of Sovereignty Article II of the 1987 Constitution explicitly provides:
c. Constitution of liberty (2012 Bar Examination)
Sec. 16. The State shall protect and advance the right of the
 Bill of rights (liberty) people to a balanced and healthful ecology in accord with the
 Method of amendment (government) rhythm and harmony of nature.
 Governmental organizational powers (sovereignty)
This right unites with the right to health which is provided for
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER in the preceding section of the same article:
WITH 6,327,952 REGISTERED VOTERS v. THE COMMISSION
ON ELECTIONS Sec. 15. The State shall protect and promote the right to
G.R. No. 174153, October 25, 2006 health of the people and instill health consciousness among
them.
The well-regarded political scientist, Garner, says that a good
constitution should contain at least three (3) sets of While the right to a balanced and healthful ecology is to be
provisions: the constitution of liberty which sets forth the found under the Declaration of Principles and State Policies
fundamental rights of the people and imposes certain and not under the Bill of Rights, it does not follow that it is
limitations on the powers of the government as a means of less important than any of the civil and political rights
securing the enjoyment of these rights; the constitution of enumerated in the latter. Such a right belongs to a different
government which deals with the framework of government category of rights altogether for it concerns nothing less
and its powers, laying down certain rules for its than self-preservation and self-perpetuation — aptly and
administration and defining the electorate; and, the fittingly stressed by the petitioners — the advancement of
constitution of sovereignty which prescribes the mode or which may even be said to predate all governments and
procedure for amending or revising the constitution.49 It is constitutions. As a matter of fact, these basic rights need not
plain that the proposed changes will basically affect only the even be written in the Constitution for they are assumed to
constitution of government. The constitutions of liberty and exist from the inception of humankind. If they are now
sovereignty remain unaffected. Indeed, the proposed explicitly mentioned in the fundamental charter, it is because
changes will not change the fundamental nature of our state of the well-founded fear of its framers that unless the rights
as "x x x a democratic and republican state."50 It is self- to a balanced and healthful ecology and to health are
evident that a unicameral-parliamentary form of government mandated as state policies by the Constitution itself, thereby
will not make our State any less democratic or any less highlighting their continuing importance and imposing upon
republican in character. Hence, neither will the use of the the state a solemn obligation to preserve the first and protect
qualitative test resolve the issue of whether the proposed and advance the second, the day would not be too far when
changes are "simple" or "substantial." all else would be lost not only for the present generation, but
also for those to come — generations which stand to inherit
Q: What is the nature of the rights embodied in the Bill of nothing but parched earth incapable of sustaining life.
Rights?
Q: What is the right invoked by the petitioners in this case?
A: The Bill of rights consist of civil and political rights. They
involve the limitation on powers of state/government. A: The right of people to a balance and healthful ecology in
accordance with the rhythm and harmony of nature (Art. 2,
OPOSA v. FACTORAN Sec. 16).
G.R. No. 101083 July 30, 1993 -state must protect in advance.
-foreign jurisdictions are taking cognizance of this much
In a broader sense, this petition bears upon the right of celebrated case.
Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts of Section 16. The State shall protect and advance the right of
"inter-generational responsibility" and "inter-generational the people to a balanced and healthful ecology in accord
justice." Specifically, it touches on the issue of whether the with the rhythm and harmony of nature.
said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests Q: Yet the right to a balance and healthful ecology is not in
and "arrest the unabated hemorrhage of the country's vital the Bill of rights (Art. 3). Is it less important?
life support systems and continued rape of Mother Earth."
A: No. The reason why it is not in art. 3 is that bill o rights
The complaint focuses on one specific fundamental legal right involve civil and political rights. The right to a balance and
— the right to a balanced and healthful ecology which, for healthful ecology belongs to a different category altogether

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UNIVERSITY OF SANTO TOMAS
NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
for it involves self-preservation and self-perpetuation. This dictates, reserve to citizens of the Philippines or to
might even protect future constitution and future corporations or associations at least sixty per centum of
governments. This right need not be even written. It is whose capital is owned by such citizens, or such higher
presumed to exist even at the inception of men. percentage as Congress may prescribe, certain areas of
investments. The Congress shall enact measures that will
Inter-generational responsibility concept. This case is a class encourage the formation and operation of enterprises
suit. Since parties are too numerous that it is impossible to whose capital is wholly owned by Filipinos.
bring them all to the court.
In the grant of rights, privileges, and concessions covering
2 kinds of provisions in a written const: the national economy and patrimony, the State shall give
preference to qualified Filipinos.
1. Self-executing
2. Non self-executing The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in
Doctrine of constitutional supremacy- Manila prince Hotel accordance with its national goals and priorities.
vs. GSIS- privatization of Manila Hotel. If a law or contract
violates a norm of constitution, such is null and void and 1. A provision which lays down general principles - non
without any force and effect. Constitution is the fundamental self-executing
and supreme law of nation, it is deemed written in every law
and contract. Example: Art. 2 of Constitution and Art. 12 (National economy
and patrimony), 14. (broad principles that will guide the
DOCTRINE OF CONSTITUTIONAL SUPREMACY congress in enacting statutes; judiciary in …..)
MANILA PRINCE HOTEL v. GOVERNMENT SERVICE -qualified Filipinos must be preferred.
INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE Presumption of self-executing provisions of the constitution
GOVERNMENT CORPORATE COUNSEL
G.R. No. 122156. February 3, 1997 Manila Prince Hotel, SC: Unless expressly provided that a
legislative act is necessary… the presumption now is that all
A constitution is a system of fundamental laws for the provisions are self-executing. Otherwise, the legislature will
governance and administration of a nation. It is supreme, just ignore and practically nullify the mandate of the
imperious, absolute and unalterable except by the authority constitution which is catastrophic. The constitution will
from which it emanates. It has been defined as the become a captive of the Congress.
fundamental and paramount law of the nation.[10] It
prescribes the permanent framework of a system of PRESUMPTION OF SELF-EXECUTING PROVISIONS
government, assigns to the different departments their MANILA PRINCE HOTEL v. GOVERNMENT SERVICE
respective powers and duties, and establishes certain fixed INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
principles on which government is founded. The COMMITTEE ON PRIVATIZATION and OFFICE OF THE
fundamental conception in other words is that it is a supreme GOVERNMENT CORPORATE COUNSEL
law to which all other laws must conform and in accordance G.R. No. 122156. February 3, 1997
with which all private rights must be determined and all
public authority administered.[11] Under the doctrine of The penchant to try to whittle away the mandate of the
constitutional supremacy, if a law or contract violates any Constitution by arguing that the subject provision is not self-
norm of the constitution that law or contract whether executory and requires implementing legislation is quite
promulgated by the legislative or by the executive branch or disturbing. The attempt to violate a clear constitutional
entered into by private persons for private purposes is null provision - by the government itself - is only too distressing.
and void and without any force and effect. Thus, since the To adopt such a line of reasoning is to renounce the duty to
Constitution is the fundamental, paramount and supreme law ensure faithfulness to the Constitution. For, even some of
of the nation, it is deemed written in every statute and the provisions of the Constitution which evidently need
contract. implementing legislation have juridical life of their own and
can be the source of a judicial remedy. We cannot simply
Filipino first policy-Section 10 (2), Art. 12. This is self- afford the government a defense that arises out of the failure
executing. This is an exception. This is a mandatory and to enact further enabling, implementing or guiding
positive command which is complete in itself. It does not legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J.,
need legislative action. It is per se judicially enforceable. on constitutional government is apt - The executive
department has a constitutional duty to implement laws,
Section 10. The Congress shall, upon recommendation of the including the Constitution, even before Congress acts -
economic and planning agency, when the national interest provided that there are discoverable legal standards for

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
executive action. When the executive acts, it must be guided The policies and principles of the Constitution invoked by
by its own understanding of the constitutional command and petitioner read:
of applicable laws. The responsibility for reading and
understanding the Constitution and the laws is not the sole Art. II, §5. The maintenance of peace and order, the protection life, liberty,
and property, and the promotion of the general welfare are essential for the
prerogative of Congress. If it were, the executive would have
enjoyment by all the people of the blessings of democracy.
to ask Congress, or perhaps the Court, for an interpretation
every time the executive is confronted by a constitutional Id., §12. The natural and primary right and duty of parents in the rearing of
command. That is not how constitutional government the youth for civic efficiency and the development of moral character shall
receive the support of the Government.
operates.
Id., §13. The State recognizes the vital role of the youth in nation-building
Tanada vs. Angara (GATT treaty)- created the WTO which and shall promote and protect their physical, moral, spiritual, intellectual,
was ratified by the Philippines. Art. 2 of the Constitution are and social well-being. It shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in public and civic affairs.
not intended to be self-executing ready for enforcement
through the courts. Id., §17. The State shall give priority to education, science and technology,
arts, culture, and sports to foster patriotism and nationalism, accelerate
Kilos bayan v. Morato social progress, and promote total human liberation and development.

2. A provision which is complete in itself- nature and As already stated, however, these provisions are not self-
extent of right and liability imposed-self-executing executing. They do not confer rights which can be enforced in
the courts but only provide guidelines for legislative or
Examples: Some provisions in Bill of rights (freedom of executive action.
religion, freedom of the press, expression, speech, rights of
an accused, due process) OPERATIVE FACT DOCTRINE

Section 16 of Art. 2 (right to a balance ecology)- self- Under the operative fact doctrine, the law is recognized as
executing. An express declaration of the sc. This is more of an unconstitutional but the effects of the unconstitutional law,
exception since in general provisions in art. 2 are not self- prior to its declaration of nullity, may be left undisturbed as a
executing. matter of equity and fair play.

Declaration of Principles Not Self-Executing As a general rule, any act declared by the court to be
WIGBERTO E. TAÑADA v. EDGARDO ANGARA unconstitutional has no legal effect whatsoever – “it confers
G.R. No. 118295. May 2, 1997 no rights; it imposes no duties; it affords no protection; it
creates no office; It is, in legal contemplation, as inoperative
By its very title, Article II of the Constitution is a “declaration as though it had never been passed.”
of principles and state policies.” The counterpart of this
article in the 1935 Constitution is called the “basic political The "operative fact" doctrine realizes that in declaring a law
creed of the nation” by Dean Vicente Sinco. These principles or rule null and void, undue harshness and resulting
in Article II are not intended to be self-executing principles unfairness must be avoided.
ready for enforcement through the courts. They are used by
the judiciary as aids or as guides in the exercise of its power The doctrine of operative fact, as an exception to the general
of judicial review, and by the legislature in its enactment of rule, only applies as a matter of equity and fair play. It
laws. As held in the leading case of Kilosbayan Incorporated nullifies the effects of an unconstitutional law by recognizing
vs. Morato, the principles and state policies enumerated in that the existence of a statute prior to a determination of
Article II and some sections of Article XII are not “self- unconstitutionality is an operative fact and may have
executing provisions, the disregard of which can give rise to a consequences which cannot always be ignored. The past
cause of action in the courts. They do not embody judicially cannot always be erased by a new judicial declaration.
enforceable constitutional rights but guidelines for
legislation.” The doctrine is applicable when a declaration of
unconstitutionality will impose an undue burden on those
KILOSBAYAN, INCORPORATED, et al. v. MANUEL L. who have relied on the invalid law. Thus, it was applied to a
MORATO, in his capacity as Chairman of the Philippine criminal case when a declaration of unconstitutionality would
Charity Sweepstakes Office, and the PHILIPPINE GAMING put the accused in double jeopardy or would put in limbo the
MANAGEMENT CORPORATION acts done by a municipality in reliance upon a law creating it.

G.R. No. 118910 November 16, 1995 Operative fact doctrine- applies when a law is declared
unconstitutional. A law declared as unconstitutional:

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
a. Orthodox- did not create any right nor impose any deletes without altering the basic principle involved. Revision
obligation. Deemed as never enacted at all. Stricken generally affects several provisions of the constitution, while
out of books amendment generally affects only the specific provision being
b. Modern- not stricken out of the books although it amended.
did not create any right nor impose any obligation.
Presumption of constitutionality. There may be In California where the initiative clause allows amendments
parties who relied on the provision of such law, such but not revisions to the constitution just like in our
is an operative fact which cannot be denied by the Constitution, courts have developed a two-part test: the
court. As to them, such law remains to be valid. quantitative test and the qualitative test. The quantitative
Prospective application, never retroactive test asks whether the proposed change is "so extensive in its
application. Otherwise, no end to litigation. provisions as to change directly the 'substantial entirety' of
the constitution by the deletion or alteration of numerous
Amendments or revisions (Article 17)- constitution of existing provisions." The court examines only the number of
sovereignty: provisions affected and does not consider the degree of the
change.
-involves a process which has stages as a process (2 process):
a. proposal stage The qualitative test inquires into the qualitative effects of the
b. ratification stage- done through a plebiscite to be proposed change in the constitution. The main inquiry is
ratified by the majority of the people. whether the change will "accomplish such far reaching
-election law is also a process like recall: changes in the nature of our basic governmental plan as to
amount to a revision." Whether there is an alteration in the
a. initiatory structure of government is a proper subject of inquiry. Thus,
b. recall election which completes the process "a change in the nature of [the] basic governmental plan"
includes "change in its fundamental framework or the
Q: What are the 2 tests to determine whether it is an fundamental powers of its Branches." A change in the nature
amendment or revision? of the basic governmental plan also includes changes that
"jeopardize the traditional form of government and the
A: system of check and balances."
a. quantitative test-how many provisions will be
affected? Under both the quantitative and qualitative tests, the
b. qualitative test- What kind of change is sought to be Lambino Group's initiative is a revision and not merely an
effected? amendment. Quantitatively, the Lambino Group's proposed
changes overhaul two articles - Article VI on the Legislature
Ex: presidential to parliamentary proposal- revision and Article VII on the Executive - affecting a total of 105
(Arts. 6,7,8 of Constitution) (doctrine of separation provisions in the entire Constitution.40 Qualitatively, the
of powers will also be affected in case of shift to proposed changes alter substantially the basic plan of
parliament) government, from presidential to parliamentary, and from a
bicameral to a unicameral legislature.
Parliament- the legislative body. PM is greatly
accountable to them. Vote of no confidence A change in the structure of government is a revision of the
concept. Constitution, as when the three great co-equal branches of
government in the present Constitution are reduced into two.
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER This alters the separation of powers in the Constitution. A
WITH 6,327,952 REGISTERED VOTERS v. THE COMMISSION shift from the present Bicameral-Presidential system to a
ON ELECTIONS Unicameral-Parliamentary system is a revision of the
G.R. No. 174153, October 25, 2006 Constitution. Merging the legislative and executive branches
is a radical change in the structure of government.
Q: What is the difference between revision and
amendment? The abolition alone of the Office of the President as the locus
of Executive Power alters the separation of powers and thus
A: Revision broadly implies a change that alters a basic constitutes a revision of the Constitution. Likewise, the
principle in the constitution, like altering the principle of abolition alone of one chamber of Congress alters the system
separation of powers or the system of checks-and-balances. of checks-and-balances within the legislature and constitutes
There is also revision if the change alters the substantial a revision of the Constitution.
entirety of the constitution, as when the change affects
substantial provisions of the constitution. On the other hand, By any legal test and under any jurisdiction, a shift from a
amendment broadly refers to a change that adds, reduces, or Bicameral-Presidential to a Unicameral-Parliamentary system,

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
involving the abolition of the Office of the President and the -limited to proposing amendment not revision of the
abolition of one chamber of Congress, is beyond doubt a consti (Santiago v. COMELEC)
nd
revision, not a mere amendment. On the face alone of the -2 paragraph of Sec, 2 provides that the congress shall
Lambino Group's proposed changes, it is readily apparent make an implementing law. This is not self-executing. As
that the changes will radically alter the framework of of now, the congress has enacted (RA 6735, Initiative and
government as set forth in the Constitution. Father Joaquin referendum law).
Bernas, S.J., a leading member of the Constitutional
Commission, writes: Section 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
An amendment envisages an alteration of one or a few specific and petition of at least twelve per centum of the total number of
separable provisions. The guiding original intention of an amendment is to
registered voters, of which every legislative district must be
improve specific parts or to add new provisions deemed necessary to meet
new conditions or to suppress specific portions that may have become represented by at least three per centum of the registered
obsolete or that are judged to be dangerous. In revision, however, the voters therein. No amendment under this section shall be
guiding original intention and plan contemplates a re-examination of the authorized within five years following the ratification of this
entire document, or of provisions of the document which have over-all
Constitution nor oftener than once every five years
implications for the entire document, to determine how and to what extent
they should be altered. Thus, for instance a switch from the presidential thereafter.
system to a parliamentary system would be a revision because of its over-all
impact on the entire constitutional structure. So would a switch from a The Congress shall provide for the implementation of the
bicameral system to a unicameral system be because of its effect on other
exercise of this right.
important provisions of the Constitution.

Q: Can revisions be done through initiative?

Q: What are the stages by which the Constitution may be
amended or revised? A: No.
A: RA 6735 has 3 kinds of initiative
1. Proposal; and a. constitution –supposedly the implementing provisions of
2. Ratification the Sec.2 but this was declared as unconstitutional by the
SC. Thus, as an implication, Sec. 2 remains to be as non-
Proposal stage (Art. 17 of Constitution)- 3 ways self-executing. We cannot validly propose
b. statutes
a. Congress may directly propose amendment or revision c. local legislation
by a vote of ¾ of all its members acting as Constituent
Assembly. In this case, congress acts not as a legislative NOTE: Thus, there are only 2 remaining initiatives (statutes
body but as a constituent assembly which is one of the and local legislation). Partial declaration of
non-legislative powers of congress. unconstitutionality of the law. Only those which can stand
b. Constitutional convention- separate from congress but alone provisions remain to be valid and are unaffected by the
elected by the people. Historically, the 1935 Constitution declaration of unconstitutionality.
was drafted by the con-con elected by the people of their
respective districts. Same with 1973. Article 1 (National territory)
1987- Constitutional commission- appointed by Pres. Cory Q: What are the elements of state?
and not elected by the people. Art. 17 has no such provision
of Con Com under the 1987 Constitution. This is very A:
significant 1. people
2. government
Q: What are the ways of calling a con-con? 3. territory
4. sovereignty
A:
NOTE: Article 1 has no section 1. It is direct. It is the only
1. congress may directly call by vote of 2/3 of all its provision which has no article 1.
members;
2. congress instead of directly calling may submit the Q: What are the 2 parts of this Article?
issue calling con-con by a vote of majority.
A:
c. people’s initiative (Sec. 2, Art. 17)- a petition is required
to be signed by 12% of the resident voters, provided that a. Philippine archipelago
in each legislative district at least 3% votes
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b. All other territories over which the Philippines has kindergarten school which is a governmental function. An
sovereignty or jurisdiction evidence of an effective local government there. We are not
concerned with the claims of other territories. As far as our
Q: What are the components of territory of state? constitution is concerned, Spratly’s is part of our territory
(Art. 1, second part). Only 5 islands in Spratly’s is occupied by
A: the Philippines. The largest is the Pag-asa Island where the
municipality is built.
1. Land
2. Aerial -situated in the West Philippine Sea (Pres. Aquino’s
3. water Proclamation). Similarly, Vietnam calls it as East Vietnam Sea.

NOTE: Our constitution is very verbose. Doctrine of effective occupation- discovery alone is not
enough. It only gives inchoate right to the discoverer. There
Philippine Archipelago- The main treaty of Paris (history and must be effective occupation:
legally speaking): only those ceded by Spain to U.S.:
International name: Scarborough shoal: Panatag Shoal:
a. Luzon Spanish maps: Bajo de Masinloc: Masincloc is one of the
b. Visayas province of the province of Zambales: 124 nautical miles from
c. Mindanao Masinloc. Within the 200 mile exclusive economic zone.

However, certain territories like Sulu and Sibuto were Shoal- not an island. Narrow/shallow portion of the sea or of
excluded. As such, another treaty was entered in Washington the river. Usually surfaces during low tide and is submerged
(November 7, 1900). January 1, 1930 Great Britain and during high tide. Not habitable.
U.S.: ceded Turtle and Mangse islands in Palawan and Cebu
islands which used to be British territories. In 1935 The Spratlys Group of Islands
Constitution, the national territory there pertains to the
national archipelago. Q: Do you consider the Spratlys Group of Islands as part of
Philippine Archipelago?
Philippine Archipelago
A. Spratlys Group of Islands is not part of the Philippine
1. Treaty of Paris, December 10, 1898 Cession of the Archipelago because it is too far away from the three main
Philippine Islands by Spain to the United States; islands of the Philippines. It is found, geographically, almost in
2. Treaty between Spain and US at Washington, November the middle of the South China Sea. It is not part of the
7, 1900—inclusion of Cagayan, Sulu and Sibuto; Philippine Archipelago. Historically, when we talk about
3. Treaty between US and GB, January 2, 1930—inclusion of Philippine Archipelago, we refer to those islands and waters
Turtle and Mangsee Islands that were ceded by the Spain to the United States by virtue of
Treaty of Paris in 1898. And that did not include the Spratlys
Main Treaty: Group of Islands yet. Under the treaty, the islands that were
ceded by Spain were identified—the main islands—Luzon,
1. Treaty of Paris Visayas and Mindanao. Clearly, it did not include the Spratlys
Group of Islands.
Ancillary treaties
a. Washington treaty Spratlys Group of Islands was only discovered sometime in
b. Great Britain the 1950’s by a Filipino, Tomas Cloma. The latter waived his
rights over the islands in favor of the Philippine Government.
NOTE: The Spratly’s or Parassel’s islands (Now Kalayaan In effect, the government stepped into the shoes of the
group of islands) are not yet included in 1935. They are not discoverer. By then President Marcos, what he did the
yet recovered: tera nullus (land belonging to no one) moment Tomas Cloma waived his rights over the Spratlys
Group of Islands, is to have the islands immediately occupied
Thomas Cloma from Bohol who calls himself Admiral by Philippine troops. He then issued PD 1596, constituting the
although he is not commissioned. We stepped into his shoes Spratlys Group of Islands as a regular municipality claiming it
when he waived his rights in favor of the Philippine the Municipality of Kalayaan placing it under the Province of
government. Marcos had the islands occupied by the Palawan. And then he had the elections immediately held in
marines. PD 1596 constituting Spratly’s as a municipality of the islands so from that time on until now, we continue to
Kalayaan under the province of Kalayaan. And also he held hold elections there. The Philippine exercises not only
elections there. PD 1596 is the charter of the Spratly’s. Until jurisdiction but also sovereignty over the Spratlys Group of
now, we have troops and officials there. There is also a Islands, yet it is not part of the Philippine Archipelago.

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Geographically, it is too far away from the Philippine c. Connecting the islands of the archipelago regardless
Archipelago. of the breadth and dimensions shall form part of the
internal waters which form part of the land or
On May 20, 1980, the Philippines registered its claim with the terrestrial domain. Thus, international vessels may
UN Secretariat. The Philippine claim to the islands is justified not claim right of innocent passage.
by reason of history, indispensable need, and effective
occupation and control. Thus, in accordance with the -this is an adherence to the archipelago principle: unity of
international law, the Spratlys Group of islands is subject to islands and waters.
the sovereignty of the Philippines.
ARTICLE II
Q: Do you consider the Spratlys group of Islands as part of DECLARATION OF PRINCIPLES AND STATE POLICIES
our National Territory? PRINCIPLES

A. Yes. Article I of the Constitution provides: “The national -there are 28 sections under Art. 2 of the constitution.
territory comprises the Philippine archipelago, x x x, and all
other territories over which the Philippines has sovereignty or Sections 1-6: Principles
jurisdiction, x x x.” The Spratlys Group of islands falls under Sections 7-28: Policies
the second phrase “and all other territories over which the
Philippines has sovereignty or jurisdiction”. It is part of our Section 28: Policy on transparency-often disregarded
national territory because Philippines exercise sovereignty
(through election of public officials) over Spratlys Group of Section 1. The Philippines is a democratic and republican
Islands. State. Sovereignty resides in the people and all government
authority emanates from them.
Q: What was the basis of the Philippines’ claim over the
Spratlys? Senate vs. Ermita: In a republican state like government, the
general rule is transparency in view of section 7 of bill of
A. Through discovery of Tomas Cloma and occupation. rights: right of people to information on matters of public
concern, not secrecy policy.
Magallona v. Exec. Sec. Ermita (2010): RA 9522: Baselines
law: compliance with our commitment under the UNCLOS of SENATE OF THE PHILIPPINES v. EDUARDO R. ERMITA
1982. From baselines, where we measure territorial sea, G.R. No. 169777 April 20, 2006
contiguous zone and exclusive economic zone.
A transparent government is one of the hallmarks of a truly
Q: Significance of RA 9522 republican state. Even in the early history of republican
thought, however, it has been recognized that the head of
A: When congress enacted RA 9522, this is a notice to the government may keep certain information confidential in
whole world that it is our territory so that foreign countries pursuit of the public interest. Explaining the reason for
cannot claim ignorance over our territories. vesting executive power in only one magistrate, a
distinguished delegate to the U.S. Constitutional Convention
Q: Did it diminished our baselines? said: "Decision, activity, secrecy, and dispatch will generally
characterize the proceedings of one man, in a much more
A: No. It is not a mode of acquiring or diminishing our eminent degree than the proceedings of any greater number;
territory. It merely defined our baselines. and in proportion as the number is increased, these qualities
will be diminished."
Thus, with the enactment of RA 9522, other countries like
Malaysia and Indonesia should also define. The possibility of 1. Philippines is a democratic and republican state: a.
overlapping claims over portions of the sea arises. How do sovereignty resides the people and
you resolve? Through the ITCLOS to resolve international b. all government powers, authority emanate from
conflicting claims. them;
2. The constitution prescribes the kind of government:
Panatag shoal: bring to ITCLOS but China wants bilateral democratic and republican. No way to establish
talks. military junta or dictatorship unless you want to do
away with the constitution;
nd
2 sentence of ART 1 3. In international law, the kind of government does
not matter. It is not concerned with that. What it
a. Around concerns is: as long as there is a government.
b. Between

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Philippines is a democratic and republican state
A:
ARTICLE XI
ACCOUNTABILITY OF PUBLIC OFFICERS 1. President
2. Vice president- highest elective officials of the land
Section 1. Public office is a public trust. Public officers and 3. Members of the Supreme court
employees must, at all times, be accountable to the people, 4. Members of Constitutional commissions
serve them with utmost responsibility, integrity, loyalty, and a. COMELEC
efficiency; act with patriotism and justice, and lead modest b. Commission on audit
lives. c. Civil service commission (2012 Bar)

Q: What are the characteristics of public office in a CHR is not a constitutional commission
democratic and republican state?
5. Ombudsman- highest appointive officials of the land
A:
Note: Administrator of the SC are not impeachable
1. Public office is a public trust, it is not a privilege. officers.
Sense of public accountability is very important.
Thus, comingling of funds has no room under our All other officials may be removed by means
concept of public office; provided by law, except by impeachment
2. Public office cannot be inherited. We are not under Thus, this list is exclusive.
monarchy. It is not a hereditable position. Even SK is
corrupted. Anti-political dynasty bill is still pending Section 2. The President, the Vice-President, the Members
despite clear mandate of the constitution; of the Supreme Court, the Members of the Constitutional
3. Public office is outside the commerce of man- thus, Commissions, and the Ombudsman may be removed from
it cannot be a subject of a valid contract. Recently, office on impeachment for, and conviction of, culpable
the term sharing agreement among party-list violation of the Constitution, treason, bribery, graft and
became an issue. Such is a contract. Such is not corruption, other high crimes, or betrayal of public trust. All
enforceable in court because the subject matter is other public officers and employees may be removed from
public office; office as provided by law, but not by impeachment.
4. Public office is not a property, thus, it is not Q: Who has the Exclusive power to initiate impeachment?
protected by the due process clause (Art.3, section
1 of Constitution). The abolishment of an office will A: House of Representatives has the exclusive power
not deprive the officer of due process. Congress may
abolish an office in good faith as part of its power to Q: Who shall try?
create an office.
A: Senate. Section 3, par. 6
Abolishment of office vs. removal of the officer
The senate has to take an oath, not as senators but as judges.
Q: What is the distinction between abolition of office and That is why, we address them as senator-judges.
removal of the officer?
The impeachment of corona is not a bill of attainder
A: (administrative act without judicial trial). Such is fallacious.
The impeachment was a judicial trial applying the rules of
Abolition of office Removal of the officer evidence.
the office is abolished the office remains, the
occupant is the one removed Section 3. The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
NOTE: Impeachment- not found in Arts. 6, 7, or 8. But it is
found in art.11, section 2. after all, impeachment is about A verified complaint for impeachment may be filed by any
public accountability esp. by high government officials since Member of the House of Representatives or by any citizen
public office is a public trust. upon a resolution or endorsement by any Member thereof,
which shall be included in the Order of Business within ten
IMPEACHABLE OFFICERS AND GROUNDS session days, and referred to the proper Committee within
three session days thereafter. The Committee, after hearing,
Q: Who are the impeachable officers under the and by a majority vote of all its Members, shall submit its
Constitution? report to the House within sixty session days from such

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referral, together with the corresponding resolution. The b. Removal from office
resolution shall be calendared for consideration by the c. Party convicted shall nevertheless be held liable for
House within ten session days from receipt thereof. prosecution, trial and punishment according to law:
no double jeopardy
A vote of at least one-third of all the Members of the House
shall be necessary either to affirm a favorable resolution NOTE: Finding of probable cause of HoR: cannot be done. The
with the Articles of Impeachment of the Committee, or HoR has the exclusive power to initiate. The senate cannot
override its contrary resolution. The vote of each Member question the finding of probable cause by the house of
shall be recorded. representatives. As long as it is signed by 1/3 of the house of
representatives, the same shall constitute as the articles of
In case the verified complaint or resolution of impeachment impeachment and trial shall proceed.
is filed by at least one-third of all the Members of the
House, the same shall constitute the Articles of -“by verified complaint and resolution” (2012 Bar)
Impeachment, and trial by the Senate shall forthwith
proceed. Q: Pardon to corona by PNOY?

No impeachment proceedings shall be initiated against the A: No. Section 19 of Art. 7: except in cases of impeachment.
same official more than once within a period of one year.
Q: After being impeached, tax evasion?
The Senate shall have the sole power to try and decide all
cases of impeachment. When sitting for that purpose, the A: Yes, he can be pardoned by the president on criminal trial
Senators shall be on oath or affirmation. When the on tax evasion.
President of the Philippines is on trial, the Chief Justice of
the Supreme Court shall preside, but shall not vote. No ARTICLE II
person shall be convicted without the concurrence of two-
thirds of all the Members of the Senate. Section 2. The Philippines renounces war as an instrument
of national policy, adopts the generally accepted principles
Judgment in cases of impeachment shall not extend further of international law as part of the law of the land and
than removal from office and disqualification to hold any adheres to the policy of peace, equality, justice, freedom,
office under the Republic of the Philippines, but the party cooperation, and amity with all nations.
convicted shall nevertheless be liable and subject to
prosecution, trial, and punishment, according to law. a. Renunciation of war as instrument of national policy
b. Adopts the/Adherence to the generally accepted
The Congress shall promulgate its rules on impeachment to principles of international law
effectively carry out the purpose of this section.
Renunciation of war as instrument of national policy
Q: What are the grounds in case of impeachment?
This is consistent with our membership to the UN. This is one
A: of the fundamental principles behind the establishment of
UN. The world cannot afford another war of such magnitude
1. culpable violation of the Constitution, of the second world war.
2. treason,
3. bribery, Q: Who has the power to declare war?
4. graft and corruption,
5. other high crimes, or A: None. Such power to declare war has been withheld by the
6. betrayal of public trust. constitution since we already renounced war as instrument of
national policy.
Q: What are the grounds under US:
The only power vested by constitution to congress is the sole
1. Treason power to declare the existence of state of war. The kind of
2. Other High crimes war renounced is offensive war. Defensive war is one of our
3. Betrayal of public trust rights under PIL—Right to self-defense.

Section 3, paragraph 7: ARTICLE VI

a. Disqualification to whatever office, appointive or Section 23. The Congress, by a vote of two-thirds of both
elective Houses in joint session assembled, voting separately, shall

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Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
have the sole power to declare the existence of a state of A: No. they are neither under colonial rule nor under foreign
war. domination or exploitation outside colonial context.

In times of war or other national emergency, the Congress NOTE: This right belongs to minorities within the state only. It
may, by law, authorize the President, for a limited period does not belong to all of us.
and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a Ex: Muslims, Ifugao, Igorot, Mangyans, Tagbanua, Tibolis,
declared national policy. Unless sooner withdrawn by Lumads, Manobos
resolution of the Congress, such powers shall cease upon
the next adjournment thereof. This is a collective right. They are usually called as indigenous
peoples or indigenous cultural community. Remember IPRA:
NOTE: The constitution is specific when it said: separately. Indigenous people rights act.

Doctrine of incorporation Right to self-determination of the peoples

Article 2, 1987 Constitution
Affirmation of our adherence to this doctrine is Art. 2, Sec. 2:
The Philippines adopts the generally accepted principles of Section 7. The State shall pursue an independent foreign
international law: policy. In its relations with other states, the paramount
consideration shall be national sovereignty, territorial
a. Doctrine of state immunity from suit: state may not integrity, national interest, and the right to self-
be sued without its consent; determination.
USA v. Guinto: even if not express under Sec.3 of Art.
16 of the Constitution: the state may not be sued Q: What is the right to self-determination of the peoples?
without its consent—still, we are bound by this
doctrine since we are bound by the generally A: The right of peoples everywhere to freely determine their
accepted principles of international law political status and pursue their economic, social and cultural
development.
b. Par in parem non habet imperium: all state are
sovereign equal: an equal may not exercise It is a new concept in international law. It is understood as
jurisdiction over a co-equal; the right to internal self-determination of the people in
c. Tanada vs. Angara: Pacta sunt servanda: treaties pursuit to their social, economic and political development
must be observed in good faith: one of the oldest within the framework of an existing state.
generally accepted principles of international law;
d. Right to self-determination Q: What are the 2 classification of rights?

Right to self-determination A:
1. individual
North Cotabato case: proposed MOA-AD is unconstitutional: Ex: Bill of rights
right to self-determination of peoples: gone beyond mere
treaty or convention, in fact, it is now elevated to a generally 2. collective
accepted principle of international law. As an implication, this Ex: Right to self-determination, right of the people to
is now incorporated to our laws. balanced and healthful ecology

1. Internal- as what the right is usually understood,: NOTE: The right to self-determination has now grown and is
people’s pursuit of his own political, cultural, elevated into a generally accepted principle in international
economic, or social development “within the law.
framework of an existing state”
Q: Who may claim the right to self-determination?
2. External- assertion of unilateral right of secession
can be invoked in extreme cases: A: It refers to the:
a. People under colonial rule
b. People under foreign domination or exploitation a. right of indigenous peoples and
outside colonial context b. indigenous cultural communities

Q: May bangsamoro validly invoke this right to self- and in extreme cases, of people:
determination to secede from the Philippines?
a. under colonial rule

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b. from other foreign domination or exploitation introduced formally to the United Nations (UN) system,
outside the colonial context translated into the six official UN languages and launched in
several countries.
Q: What are the 2 kinds of right to self-determination?
The Yogyakarta Principles ensure the full enjoyment of all
A: human rights by all persons regardless of sexual orientation
1. external and gender identity. They were put together by a
2. internal distinguished group of human rights experts in November
2006 at Yogyakarta , Indonesia and have since been
Province of North Cotabato introduced formally to the United Nations (UN) system,
translated into the six official UN languages and launched in
Q: What is the scope of the right to self-determination? several countries.

A: The recognized sources of international law establish that Using even the most liberal of lenses, these Yogyakarta
the right to self-determination of a people is normally fulfilled Principles, consisting of a declaration formulated by various
through internal self-determination - a people's pursuit of its international law professors, are – at best – de lege ferenda –
political, economic, social and cultural development within and do not constitute binding obligations on the Philippines.
the framework of an existing state. A right to external self- Indeed, so much of contemporary international law is
determination (which in this case potentially takes the form characterized by the “soft law” nomenclature, i.e.,
of the assertion of a right to unilateral secession) arises in international law is full of principles that promote
only the most extreme of cases and, even then, under international cooperation, harmony, and respect for human
carefully defined circumstances. External self-determination rights, most of which amount to no more than well-meaning
can be defined the establishment of a sovereign and desires, without the support of either State practice or opinio
independent State, the free association or integration with an juris.
independent State or the emergence into any other political
status freely determined by a people constitute modes of Q: Is the Yogyakarta Principles accepted under our
implementing the right of self-determination by that people. jurisdiction?

Indeed, the right to self-determination of the people is now A: We are not prepared to declare that these Yogyakarta
elevated into a generally accepted principle. However, it is Principles contain norms that are obligatory on
only limited to internal right to self-determination. the Philippines. There are declarations and obligations
outlined in said Principles which are not reflective of the
Isagani Cruz v. DENR: proper term is IP. ICC is employed by current state of international law, and do not find basis in any
the constitution, but other than that they are the same. They of the sources of international law enumerated under Article
refer to same minority group in a state. These terms are 38(1) of the Statute of the International Court of Justice (Ang
always used in their plural form. Ladlad LGBT Party v. COMELEC).

Yogyakarta principles- Ang Ladlat Party list (LGBT) vs. Q: What is the concept ex aequo et bono?
COMELEC
-not yet a generally accepted principle under international A: It is a judgment based on considerations of fairness, not on
law considerations of existing law, that is, to simply decide the
-application of international human rights law in connection case based upon a balancing of the equities. (Brownlie, 2003)
with sexual orientation and gender identity.
Structure of our government
SC: We are not prepared to declare that the Yogyakarta
principles contain norms that are binding and obligatory to 1. Presidential form of government
the Philippines. They are at best de lege ferenda. 2. Democratic and republican kind
3. Adherence to the doctrine Separation of powers
Yogyakarta Principles
a. Legislative: power of the purse/appropriation
Q: What are the Yogyakarta Principles? b. Executive: power of the sword
c. Judiciary: judicial review
A: The Yogyakarta Principles ensure the full enjoyment of all
human rights by all persons regardless of sexual orientation Legislative- there must be a corresponding appropriation
and gender identity. They were put together by a before the government can disburse funds
distinguished group of human rights experts in November
2006 at Yogyakarta, Indonesia and have since been

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Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
Executive and legislative are the political branches of the Thus, the Congress must enact a law first.
government.
Q: Is another law required for purpose of revocation or
The judiciary is not. Thus, from there arose the political withdrawal of such?
question doctrine: question of policy: wisdom, necessity
A: No. the Constitution used the word resolution by congress.
4. Checks and balances: each branch is a check on the 2 Such will suffice. This provision is based on emergency
other branches and vice-versa. Power may not be powers cases during the time of Quirino.
concentrated to one branch of the government,
otherwise corruption and tyranny HISTORY: 1950 Philippines: Huk rebellion held by Luis Taruc:
5. GR: Non-delegation of power: potestas delegatas Pres. QUIRINO exercised emergency power via a law enacted
non delegari potest- what has been delegated by the congress. 4 years later, the situation was stabilized and
cannot be re-delegated. the congress wants to revoke. Congress enacted a bill to
revoke submitted to the President for signature. Quirino
XPNS: Permissible delegation of powers (PETAL) vetoed. Hence, a constitutional crisis. Hence, the emergency
powers cases. A mere resolution will suffice. To override veto,
a. Delegation to the people through plebiscite and 2/3 is required. If congress wants to revoke, another law is
referendum (Sec. 1, Art. 6); not required. The framers of our constitution deemed it
b. Emergency powers delegated by congress (may proper to include such statement: “unless sooner revoked by
by law) to the president (Sec. 23 (2), Art. 6); the resolution of congress.”
c. Tariff powers to the president
d. Administrative agencies Delegation to administrative agencies
e. Local government
Quasi-legislative power: power of an administrative agency
Delegation of powers to promulgate rules and regulations to implement a given law
or administrative policy.
NOTE: This is merely a delegated power to the President.
President cannot exercise such power motu proprio (on its Other equivalent terms:
own).
1. Power of subordinate legislation
Prof. David vs. GMA: February 2006, Proclamation 1017 2. Rule-making power
declaring state of national emergency: warrantless arrest
against David and rallyists and permitted no bail. This is merely a delegated power. Hence, an admin agency
cannot exercise such power unless such power is delegated
This is not emergency power but an exercise of calling-out to it.
power since there was no law enacted by the congress
authorizing her to exercise emergency power. President Q: When an administrative agency exercises quasi-
cannot exercise such power motu proprio. legislative power, what exactly does it do?

HISTORY: 1950 Philippines: Huk rebellion held by Luis Taruc: A: It merely promulgates these administrative regulations.
Pres. QUIRINO exercised emergency power via a law enacted Thus, usually called as IRR-implementing rules and
by the congress. Thus, the exercise is valid unlike the case of regulations. They are pieces of subordinate legislation.
PGMA.
In case of conflict between law and the subordinate
Q: What are the requisites for exercise of emergency legislation, the former prevails. The legislative power is
powers? vested to Congress. The source of the power is the law: the
spring cannot rise above its own source.
A:
Rules implementing the LABOR CODE was promulgated by
1. There must be War or national emergency; (DOLE) Sec. Ople by the authority of provision in the code
2. Delegation must be for a limited period only; delegating the promulgation of the rules and regulations. He
3. Subject to limitations prescribed by the Congress; acted in his capacity: quasi-legislative authority not as
and secretary of labor.
4. Must always be pursuant to declared national policy.
LOCAL GOVERNMENT CODE: There is a provision delegating
Essence: Emergency powers cases to an Oversight committee the promulgation of such rules
and regulations.

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OMNIBUS ELECTION CODE: The COMELEC was authorized to A: Undue delegation of powers. This is no longer delegation
promulgate the rules and regulations. but an abdication of power in favor of the delegate which
cannot be allowed by the rule—a delegation running riot not
Local governments canalized at all. This will tilt the balance of separation of
powers.
ARTICLE X
LOCAL GOVERNMENT a. Completeness test- the law must be complete in all
GENERAL PROVISIONS essential terms and conditions when it leaves the
legislature so that when it reaches the delegate,
Section 1. The territorial and political subdivisions of the nothing more will be left for the delegate but to
Republic of the Philippines are the provinces, cities, implement the law.
municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as -So that the delegate will not fill in the gaps of the law. When
hereinafter provided. the law is not sufficient, the remedy is for congress to amend
its own act. Not even the SC may fill in the gaps of the law
Local governments: referred to as: (judicial legislation).

a. territorial and You cannot expect the congress to anticipate the…

b. political subdivision of the Philippines (Art. 10, Sec.1)
in the Constitution b. Sufficiency standard test- as long as there are
standards that will limit the authority of the delegate
Hence, as such, they exercise governmental or sovereign or that will guide him in the exercise of such
powers. delegated power

Section 15: dual nature and function of the local government: STRUCTURE OF GOVERNMENT
1. body politic- governmental or sovereign functions
2. body corporate-exercises proprietary or private ARTICLE VI
functions THE LEGISLATIVE DEPARTMENT

LOCAL GOVERNMENT CODE Section 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate
SEC. 15. Political and Corporate Nature of Local Government and a House of Representatives, except to the extent
Units. - Every local government unit created or recognized reserved to the people by the provision on initiative and
under this Code is a body politic and corporate endowed referendum.
with powers to be exercised by it in conformity with law. As
such, it shall exercise powers as a political subdivision of the NOTE: This is a cross-over provision.
national government and as a corporate entity representing
the inhabitants of its territory. Section 32. The Congress shall, as early as possible, provide
for a system of initiative and referendum, and the
Q: Do they have inherent powers? exceptions therefrom, whereby the people can directly
propose and enact laws or approve or reject any act or law
A: Since they are mere creations of the congress or legislature or part thereof passed by the Congress or local legislative
unlike the state. They may only exercise such power which body after the registration of a petition therefor signed by
has been delegated to them or those which can be implied at least ten per centum of the total number of registered
from the delegated power. voters, of which every legislative district must be
represented by at least three per centum of the registered
Tests of a valid delegation voters thereof.

Q: What are the tests for valid delegation? LEGISLATIVE POWER OF CONGRESS

A: Q: What is legislative power?

1. completeness test A: It is the power to make, amend, repeal laws and to alter or
2. sufficiency standard test change laws vested in the Congress.

Q: What is sought to be avoided? Q: Is it exclusively vested in congress?

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Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
G.R. No. 105371 November 11, 1993
A: No. “except to the extent reserved to the people by
provision initiative and referrendum”. The people expressly While it is true that a conference committee is the
made a reservation, to directly enact, and propose laws, mechanism for compromising differences between the
unlike in the 1973 constitution. Senate and the House, it is not limited in its jurisdiction to
this question. Its broader function is described thus:
“except to the extent reserved to the people by provision
initiative and referendum”- not self-executing A conference committee may, deal generally with the subject
matter or it may be limited to resolving the precise
Section 32, Art. 6-mandate for congress to enact an initiative differences between the two houses. Even where the
and referendum law. The congress has already complied conference committee is not by rule limited in its jurisdiction,
under RA 6735. legislative custom severely limits the freedom with which
new subject matter can be inserted into the conference bill.
RA 6735 has 3 kinds of initiative: But occasionally a conference committee produces
unexpected results, results beyond its mandate, These
a. constitution –supposedly the implementing excursions occur even where the rules impose strict
provisions of the Sec.2 but this was declared as limitations on conference committee jurisdiction. This is
unconstitutional by the SC. Thus, as an implication, symptomatic of the authoritarian power of conference
Sec. 2 remains to be as non- self-executing. We committee (Davies, Legislative Law and Process: In a Nutshell,
cannot validly propose. 1986 Ed., p.81).
b. statutes
c. local legislation ARTURO M. TOLENTINO, vs.
THE SECRETARY OF FINANCE and THE COMMISSIONER OF
NOTE: Thus, there are only 2 remaining initiatives (statutes INTERNAL REVENUE
and local legislation unaffected by the ruling under Santiago G.R. No. 115455 October 30, 1995
v. COMELEC). Partial declaration of unconstitutionality of the
law. Only those which can stand alone provisions remain to Nor is there any doubt about the power of a conference
be valid and are unaffected by the declaration of committee to insert new provisions as long as these are
unconstitutionality. germane to the subject of the conference. As this Court held
in Philippine Judges Association v. Prado, 227 SCRA 703
BICAMERAL CONGRESS: (1993), in an opinion written by then Justice Cruz, the
jurisdiction of the conference committee is not limited to
a. senate resolving differences between the Senate and the House. It
b. house of representatives may propose an entirely new provision. What is important is
that its report is subsequently approved by the respective
Thus, we must know the Bicameral conference committee. houses of Congress. This Court ruled that it would not
entertain allegations that, because new provisions had been
Ex: E-VAT had go through the BCC, Anti-cybercrime law, RH added by the conference committee, there was thereby a
Bill violation of the constitutional injunction that "upon the last
reading of a bill, no amendment thereto shall be allowed."
BICAMERAL CONFERENCE COMMITTEE
XXX
Q: What is the so-called Bicameral Conference Committee?
It is interesting to note the following description of
A: It is a mechanism for compromising differences between conference committees in the Philippines in a 1979 study:
the senate and house of representatives. If what we have is a
unilateral congress, there is no need for a BCC. Conference committees may be of two types: free or
instructed. These committees may be given instructions by
By the nature of its functions, a BCC is capable of producing their parent bodies or they may be left without instructions.
unexpected results which might even go beyond its own Normally the conference committees are without
mandate. This is unavoidable. It will go through compromises instructions, and this is why they are often critically referred
and reconciliations. Thus, US authorities considered it, in to as "the little legislatures." Once bills have been sent to
effect, as the “third house of congress.” them, the conferees have almost unlimited authority to
change the clauses of the bills and in fact sometimes
THE PHILIPPINE JUDGES ASSOCIATION v. HON. PETE PRADO, introduce new measures that were not in the original
in his capacity as Secretary of the Department of legislation. No minutes are kept, and members' activities on
Transportation and Communications conference committees are difficult to determine. One

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
congressman known for his idealism put it this way: "I killed a tenure of its members. The power of Congress does not end
bill on export incentives for my interest group [copra] in the with the finished task of legislation. Concomitant with its
conference committee but I could not have done so principal power to legislate is the auxiliary power to ensure
anywhere else." The conference committee submits a report that the laws it enacts are faithfully executed. As well
to both houses, and usually it is accepted. If the report is not stressed by one scholar, the legislature “fixes the main lines
accepted, then the committee is discharged and new of substantive policy and is entitled to see that administrative
members are appointed. policy is in harmony with it; it establishes the volume and
purpose of public expenditures and ensures their legality and
NOTE: Please also see Arroyo v. De Venecia. propriety; it must be satisfied that internal administrative
controls are operating to secure economy and efficiency; and
NON-LEGISLATIVE POWERS AND FUNCTIONS it informs itself of the conditions of administration of
remedial measure.”
Q: What are the non-legislative powers and functions of
Congress? Concept and bases of congressional oversight

A: The work of congress is not limited to such enacting of Q: What is power of oversight?
laws, namely:
A: Broadly defined, the power of oversight embraces all
a. impeachment cases as prosecutorial body or activities undertaken by Congress to enhance its
impeachment court (Sec.2, Art. XI); understanding of and influence over the implementation of
b. constituent assembly: sovereign function of the legislation it has enacted. Clearly, oversight concerns post-
highest function; enactment measures undertaken by Congress:
c. Power to declaration of existence of state of war
(sec.23 (1) of art. VI); (a) to monitor bureaucratic compliance with program
d. Power to act as board of canvassers for votes for objectives,
president and vice president. It will proclaim the duly (b) to determine whether agencies are properly
elected: It will act as national board of canvassers administered,
(Sec.10, Art, VII); (c) to eliminate executive waste and dishonesty,
e. Amnesty proclamation by the president: (d) to prevent executive usurpation of legislative
concurrence of majority of all the members of authority, and
Congress (Sec. 19, Art. VI); (e) to assess executive conformity with the
f. Treaties or international agreements; concurrence of congressional perception of public interest.
at least 2/3 of all the members of the Senate (Sec.
21, Art. VII); The power of oversight has been held to be intrinsic in the
g. power to conduct inquiries in aid of legislation grant of legislative power itself and integral to the checks
(investigatorial power); and and balances inherent in a democratic system of
h. question hour government. [Thus, you cannot deny such power to
congress]. Among the most quoted justifications for this
J. Puno dissenting opinion in Makalintal case: Congressional power are the writings of John Stuart Mill and Woodrow
oversight powers and functions. Wilson. In his Consideration of Representative Government,
Mill wrote that the duty of the legislature is “to watch and
Congressional oversight powers and functions: the work of control the government; to throw the light of publicity on its
congress does not end in the enactment of the law. It has acts; to compel a full exposition and justification of all of
continuing interest to see to it that the laws that it enacted them which any one considers objectionable; and to censure
are properly implemented and administered them if found condemnable.” Wilson went one step farther
and opined that the legislature’s informing function should be
ATTY. ROMULO B. MACALINTAL v. preferred to its legislative function. He emphasized that
COMMISSION ON ELECTIONS “*E+ven more important than legislation is the instruction and
G.R. No. 157013 July 10, 2003 guidance in political affairs which the people might receive
CONCURRING AND DISSENTING OPINION (Puno, J.) from a body which kept all national concerns suffused in a
broad daylight of discussion.”
Congress checks the other branches of government primarily
through its law making powers. Congress can create Over the years, Congress has invoked its oversight power
administrative agencies, define their powers and duties, fix with increased frequency to check the perceived “exponential
the terms of officers and their compensation. It can also accumulation of power” by the executive branch. By the
create courts, define their jurisdiction and reorganize the beginning of the 20th century, Congress has delegated an
judiciary so long as it does not undermine the security of enormous amount of legislative authority to the executive

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
branch and the administrative agencies. Congress, thus, uses
its oversight power to make sure that the administrative Q: Why is inquiry in aid of legislation important under the
agencies perform their functions within the authority separation of powers?
delegated to them.
A: Under the separation of powers, Congress has the right to
The oversight power has also been used to ensure the obtain information from any source even from officials of
accountability of regulatory commissions like the Securities departments and agencies in the executive branch. It is this
and Exchange Commission and the Federal Reserve Board, very separation that makes the congressional right to obtain
often referred to as representing a “headless fourth branch of information from the executive so essential, if the functions
government.” Unlike other ordinary administrative agencies, of the Congress as the elected representatives of the people
these bodies are independent from the executive branch and are adequately to be carried out.
are outside the executive department in the discharge of
their functions. Q: Is the Supreme Court covered by the Congressional
power of inquiry?
Categories of congressional oversight functions
A: No. Members of the Supreme Court are exempt from this
Q: What are the categories of congressional oversight power of inquiry on the basis not only of separation of
functions? powers but also on the fiscal autonomy and the constitutional
independence of the judiciary.
A: (SIS)
SCRUTINY:
a. legislative Scrutiny
b. legislative Investigation 1. budget hearing
c. legislative supervision 2. question hour
3. confirmation power of Commission on
The acts done by Congress purportedly in the exercise of its Appointments
oversight powers may be divided into three categories,
namely: (1) supervision, which connotes a continuing and Budget hearing- power of appropriation belongs to congress
informed awareness on the part of a congressional but the President through the DBM prepares the budget. He
committee regarding executive operations in a given transmits the same to congress and such becomes basis of
administrative area; (2) scrutiny, primarily intended to the appropriations bill. There is an interplay of powers.
determine economy and efficiency of the operation of
government activities, exercised through budget hearings, Then, congress conducts budget hearings. The heads of
the “question hour” and the power of confirmation; and (3) department may even be required to attend. It may reduce
investigation, which is also known as the “inquiry in aid of the budget, if not defended.
legislation“.
QUESTION HOUR (Sec.22 of Art. 6)
Q: What is the basis the power of inquiry in aid of
legislation? Senate vs. Ermita- a borrowed/imported concept from
parliamentary government. It is not a feature of a presidential
A: The Congressional power of inquiry is expressly recognized government. This is non-existent under 1935 Constitution.
in Section 21 of Article VI of the Constitution: The PM is elected by the parliamentary members. He is
directly accountable to members of parliament. Anytime his
SECTION 21. The Senate or the House of Representatives or presence is required by the parliament, this is question hour.
any of its respective committees may conduct inquiries in Otherwise, there may be vote of no confidence and the entire
aid of legislation in accordance with its duly published rules parliament will be abolished. The people would have to elect
of procedure. The rights of persons appearing in or affected new representatives.
by such inquiries shall be respected.
CONFIRMATION PROCESS UNDER COMMISSION OF
Even without this express Constitutional provision, the power APPOINTMENTS
of inquiry is inherent in the power to legislate. The power of
inquiry, with process to enforce it, is grounded on the -Acts on presidential appointments
necessity of information in the legislative process. If the -12 senators and 12 congressmen, senate president as ex
information possessed by executive officials on the operation officio chairman
of their offices is necessary for wise legislation on that -through the Commission, congress acts as a check on the
subject, by parity of reasoning, Congress has the right to that appointing power of congress
information and the power to compel the disclosure thereof. -may even intrude on private lives

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
Congressmen
-if disapproved, Matibag vs. Benipayo, may not even be re-
approved. Such is a judgment on the merits an qualifications. Common:
If by-passed, not a judgment on merits and qualifications,
may still be re-appointed. 1. natural born Citizen
2. Able to read and write
Legislative investigation (Sec. 21 of Art. 6) 3. Resident voter

Power of congress to conduct “Inquiries in aid of legislation” Differences:

-an investigatorial power of congress
1. Age
Arnault vs. Nazareno- 1950s case. Intrinsic in the grant of a. 40
legislative power by the constitution to is the power to b. 35
conduct inquiries in aid of legislation. How can you expect c. 25
congress to conduct good laws if you deny such power? Thus,
even if there is no constitutional provision or under Art. 6, NOTE: The age qualification must be possessed at the latest,
you cannot deny such power to congress. on the day of the election not on the day of the promulgation

-no provision under 1935 Constitution but as early as 1950s, 2. Residency

this is already recognized. a. 10 before the elections
b. 2 years before the elections
Legislative supervision c. 1 year in the district

J.Puno: Most encompassing power by which congress RA 9165- Comprehensive Dangerous Drugs act of 2003
exercises legislative powers
SJS vs. Dangerous Drugs Board (2008): drug-testing
Supervision connotes… requirement provision for the application to run for senate.
Mandatory drug testing is unconstitutional. In effect, it
Allows congress to scrutinize the exercise of such delegated prescribes another qualification for the aspiring senators
quasi-legislative power to administrative agency and retains which is not found in the constitution.
part of such power.
Term of office
Administrative agencies cannot exercise such power if not
granted by the congress. Such is subject to review power of a. Senators: 6 years, 2 consecutive terms
congress b. Congressmen: 3 years, 3 consecutive terms
c. President: 6 years, no re-election by express
“subject to review by congress or an oversight committee of provision of the law
congess” d. Vice president: 6 years; 2 consecutive terms

Legislative veto- a disapproval by congress of an Senate

administrative regulation promulgated by admin. agency
-an entirely new concept House of representatives

Abakada guro vs. Sec. Purisima (2008) a. Districts

b. Party-list “marginalized sector”
-declared a legislative veto as unconstitutional. Any post- 1. Labor
enactment congressional measures should be limited to 2. Peasant
scrutiny. Any action beyond that ndermines separation of 3. Urban poor
powers. Such includes legislative veto. 4. Indigenous community
5. Women
Separate concurring opinion of Justice Tinga: 6. Youth

Qualifications: Enumeration is not exclusive.

President The party-list becomes a back-door for the politicians. APEC

Vice-president and AKO-BICOL are not sectors.
Senators

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
Congressmen: “not more than 250 members”—functus
officio provision because as of now we already have 283 Not to open our political system to the Traditional politicians
congressmen both district and party list during the but to those who are not yet part of the system before have
impeachment proceedings of Corona. no chance because they are poor or are marginalized. In a
sense, it is similar to an open house in a ladies’ dorm.
“Unless otherwise provided by law”
Guidelines for screening party-list participants:
Section 5 (Art. 6) census
Ang Ladlad LGBT vs. COMELEC: COMELEC disallowed and
Section 5 (par.3) each provice shall have at least 1 Ladlad’s application because according to them, they are
representative and a city with a population of 250k shall have immorals. SC: COMELEC grave abuse of discretion because it
1 representative violated the non-establishment of clause of religion of the
constitution. They should not use the bible or quoran.
nd
Section 5 (par.3) 2 sentence
Veterans federation party v. comelec (October 2000): first
Power of congress to re-apportion legislative districts party list election in 1998 elections. There were 123 political
parties which participated. The district representatives were
Sema vs. COMELEC- creation of new province of sharif 208. Supposedly, 52 for the party-list representatives. Of the
kabungsuan in ARMM in the regular assembly (known as the 123, only 13 qualified: 2% rule.
legislative body of the ARMM): SC declared such as
unconstitutional. 13 as qualifying seats
39 vacant seats
S. Barangay
s. bayan The highest got 5%: 1 additional seat.
s. panglungsod
s. panlalawigan 38 vacant seats. How will you fill this up?
regular assembly for ARMM
Comelec allocate the 38 seats to the other parties that did no
Power to create a city is never delegated to the regular qualify. The 13 complained. Comelec said they are more
assembly by the congress. At most, a regular assembly can democratic. SC: Grave abuse of discretion. The law is clear of
only create a barangay or municipality. Since, a new the 2% threshold. The question of whether a measure of
legislative must be created, this is absurd. An inferior more democratic or not should be addressed to the congress.
legislative body cannot change the composition of a superior Let congress determine that. Legislative power is vested to
body is absurd. The position of congressmen is not a local the congress not to the comelec. Comelec is only tasked to
position. It is a national position. implement the Party-list law. Comelec is merely an
administrative body. It should not amend the law.
Section 10, article 10 of Constitution:
The 13 now wants to allocate the 38 seats among them
Requisites for creation of new LGU: proportionately. Otherwise, violation of the proportional
representation. They will be over-represented.
a. Criteria established by the LGC
b. Plebiscite on the people affected The remaining 38 seats: 20% allocation is merely a ceiling. It is
c. Must not contravene the constitution (added in not mandatory that the 20% allocation shall be filled up all
Sema) the time.

Party-list 4 inviolable parameters:

Ang bagong bayani v. comelec (June 2001) 1. 20% allocation

-nature of party-list system: social justice rule intended to 2. 2% threshold
benefit marginalized and underrepresented sectors of society 3. 3 seat limit
-borrowed concept from parliamentary governments in 4. Proportional representation
Europe.
20% allocation (Sec. 5, par. 2)
RA 7941 or Party-list law:
“including those under the party-list”
-the law wants to open up our political system. We have a
close system open to those who have economic resources. Formula: 2OO districts /80% x 20%

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
mathematically impossible to achieve the maximum number
Ex: 200/4= 50 of available party list seats when the number of available
party list seats exceeds 50. The continued operation of the
Ratio: 4 district representatives: 1 party-list representative two percent threshold in the distribution of the additional
seats frustrates the attainment of the permissive ceiling that
Simple formul/a: automatically, divide by 4 20% of the members of the House of Representatives shall
consist of party-list representatives.
Mixed number fraction: do not round-off because such will
invalidate the constitution. Simply, disregard the fraction. To illustrate: There are 55 available party-list seats.
Fractional representation is not allowed: Suppose there are 50 million votes cast for the 100
participants in the party list elections. A party that has two
203/4= 50.75 percent of the votes cast, or one million votes, gets a
51/4= will exceed 20% guaranteed seat. Let us further assume that the first 50
parties all get one million votes. Only 50 parties get a seat
2% threshold despite the availability of 55 seats. Because of the operation
of the two percent threshold, this situation will repeat itself
to be entitled to one seat, the qualifying seat, must receive at even if we increase the available party-list seats to 60 seats
least 2% of the votes cast under the party-list system. and even if we increase the votes cast to 100 million. Thus,
even if the maximum number of parties get two percent of
Ex: 10 million: 200k (2%): automatically entitled to 1 seat the votes for every party, it is always impossible for the
number of occupied party-list seats to exceed 50 seats as long
3 seat limit as the two percent threshold is present.

A qualified party, regardless of the actual number of votes We therefore strike down the two percent threshold
shall be entitled to 3 seats: only in relation to the distribution of the additional seats as
1. One qualifying seat found in the second clause of Section 11(b) of R.A. No. 7941.
2. 2 additional seats The two percent threshold presents an unwarranted obstacle
Ex: 10 million; party X=10 million votes: 3 seat limit, but to the full implementation of Section 5(2), Article VI of the
supposedly 5 seats. Constitution and prevents the attainment of “the broadest
possible representation of party, sectoral or group interests
A single political party can be so strong that it can dominate in the House of Representatives.”*30+
the party list system. Such will defeat the purpose of the
party-list In determining the allocation of seats for party-list
representatives under Section 11 of R.A. No. 7941, the
Proportional representation following procedure shall be observed:

Additional seat in proportion to the actual number of votes 1. The parties, organizations, and coalitions shall be
ranked from the highest to the lowest based on the
Banat vs. comelec (July 2009) number of votes they garnered during the elections.
2. The parties, organizations, and coalitions receiving at
The 2% threshold was not declared as unconstitutional. Such least two percent (2%) of the total votes cast for the
is a misreading. What was declared unconstitutional was the party-list system shall be entitled to one guaranteed
continued use or application of the 2% threshold in the seat each.
distribution of the additional seats. This is against the 3. Those garnering sufficient number of votes,
“Panganiban formula” used in the Veterans case. according to the ranking in paragraph 1, shall be
entitled to additional seats in proportion to their
1. List down the participating parties total number of votes until all the additional seats
2. Check who got the 20% are allocated.
3. Give one seat to each of the qualifying parties 4. Each party, organization, or coalition shall be
4. Do not use the 2% threshold in distributing the entitled to not more than three (3) seats.
additional seats
In computing the additional seats, the guaranteed seats
We rule that, in computing the allocation of additional seats, shall no longer be included because they have already been
the continued operation of the two percent threshold for the allocated, at one seat each, to every two-percenter. Thus,
distribution of the additional seats as found in the second the remaining available seats for allocation as “additional
clause of Section 11(b) of R.A. No. 7941 is unconstitutional. seats” are the maximum seats reserved under the Party List
This Court finds that the two percent threshold makes it System less the guaranteed seats. Fractional seats are

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
disregarded in the absence of a provision in R.A. No. 7941
allowing for a rounding off of fractional seats. Immunities and privileges (Sec. 11, Art. 6)

Signing of the Bangsamoro framework: Privilege from arrest of members of congress:

Bernas and Pangalanan: 1. Imprisonment for an offense with a penalty of not

a. asymmetric relationship between bangsamoro and more than 6 years while congress is in session
govt (entire duration of session from the opening to the
b. Extent of territorial claims final adjournment)
c. Relationship between the PNP and the armed forces.
Q: When is the opening?
See case of MOA-AD (Province of North Cotabato v. GRP)
A: Sec. 15: Fourth Monday of July: the President shall deliver
concept of associated state his State Of the Nation Address:
under international concept
2. Freedom of speech and debate of members of
right to self-determination congress
bill of rights: right to information of matter of public concern:
the people were not informed/consulted? May not be questioned nor held liable “in any other place”
-includes the court
Ang bagong bayani (June 2003)-what to do with the votes -does not include the Senate
cast on a disqualified party? Osmena vs. Pendatun: maligned Garcia then he was expelled
by the Senate: power of the senate to punish its members for
a. Stray votes-deduct from the votes cast under the disorderly behavior and order their suspension or expulsion
party-list: do not include in the 2% threshold as the case may be (Section 16 (Par. 3): File an administrative
b. If not, still included in the 2% threshold case of disorderly behavior before the House Ethics
committee
MAD won a seat but was disqualified because it did not
follow certain guidelines: was funded by the government Section 13 of Art. 6:
which is prohibited
st
1 sentence: Incompatible office- senator as member of the
SC: Labo doctrine under Election laws: Mayor Labo of Baguio cabinet of president: he can be validly appointed but he
city. He was removed by the SC because he is a stateless forfeits his seat in the office the moment he accepts and he
person. Public office is reserved only for citizens of the can no longer return. What happened later on is of no
Philippines. The other candidate said that the votes in favor moment
of Labo shall be considered as stray vote. The votes cast in -a prohibition
nd
favor of disqualified shall not be considered as valid, 2 sentence: forbidden office- an office which is created or
otherwise, there will be disenfranchisement of the voters. emoluments thereof is increased during the term of the
The same is still valid, only that the candidate is disqualified elected member of congress. He may not be validly appointed
thereof even if he is willing to forfeit his seat.
XPN: if the people had knowledge as to bring into notorierty: -an inhibition
considered as protest votes: considered stray votes
Section 14: lawyer-member of congress
nd
The 2 placer is just that. He lost the election. The crown of May not “appear personally” as counsel in any court of
victory cannot be transferred from disqualified candidate to justice, electoral tribunal or …
the repudiated candidate. (Doctrine of rejection of the
second placer) -a special prohibition

The Labo doctrine is not applied because of section 10 of the BODIES ATTACHED
Party-list law. The votes shall not be counted: express
provision of the law. 1. COA (Secs. 18 and 19)- act on presidential
appointments. A check on the appointing power of
Reaffirmed in Grego vs. COMELEC the president

Another reason for not applying Labo and Grego doctrine is Composition:
that the cases involve a single elective post while this involves
a number of congressional seats… 12 senators

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
12 congressmen 1. Is this power to conduct inquiries in aid of legislation
Senate president as ex officio chairman absolute? Or are there limitations
2. Is it subject to judicial review? Or is it a political
Chosen on the basis of proportional representation on the question
political parties having members on the senate of HOR as the
case may be. Arnault: . Intrinsic in the grant of legislative power by the
constitution to is the power to conduct inquiries in aid of
legislation. How can you expect congress to conduct good
-meets only when the congress is in session, otherwise it laws if you deny such power?
cannot meet. -decided in 1950s under the 1935 Constitution. The 1935 had
no such provision but as early as 1950s…
Section 16 (2), Art. 7: Ad interim appointment: appointment
made during the recess whether voluntary or compulsory. So Bengzon v. Senate Blue ribbon committee
that there will be no hiatus in the government service
1. A mere reading of section 21, not absolute. 3
2. Electoral tribunal (Sec. 17): important limitations:
a. The Inquiry must always be in aid of legislation
a. Senate whether in connection with a pending bill in the
b. House of rep congress or a bill which is expected to be filed
before the congress
Composition: 9 members each: b. Conducted in accordance with the duly
published rules of procedure of the house of
a. 3 members of the judiciary: the most senior before congress conducting such inquiry
whom automatically becomes chairman c. The right of the persons appearing or affected
b. 6 from congress or senate as the case may be chosen by such the inquiry shall be respected including
on the basis of the proportional representation on right against self-incrimination
the political parties having members on the senate
of HOR as the case may be. The inquiry here was not in aid of legislation. During Aquino
time, Sen. Enrile delivered a speech where he said that
Note that in case of electoral tribunals there is the judicial properties subject to pending case of the cronies of Marcos
component. The 6 are the legislative component of the landed on the hands of relatives of Pres. Cory.
Electoral tribunal
Inquiry to determine whether there is violation of the
Q: Appeal of the Decision of the electoral tribunal? Philippine criminal laws which is not in aid of legislation. Such
is an encroachment of the judicial prerogative function of the
A: no appeal because they shall be the SOLE JUDGE of all courts. Only the courts can determine whether or not there
contests relating to election….. No appeal lies. has been a violation of the Philippine criminal laws. Also,
what if the senate ribbon committee later on said…
Appeal is not a constitutional right. it is not provided for in there will be a constitutional crisis.
the constitution. The bill of rights contains no right of appeal.
From articles 1-18, no such thing as right to appeal. It is Standard charter banks vs. senate committee on banks (2008,
merely statutory, thus in the absence of the law which grants Nachura)- a foreign bank allowed to do business in the
such right to appeal, he cannot appeal and you cannot even Philippines. Enrile again delivered a speech saying some
alleged violation of the right to due process. Filipinos were defrauded by Standard. Inquiry to determine
whether or not there are loopholes in our laws on the matter
Q: Remedy: of allowing foreign banks to do business in the Philippines so
that remedial legislation can be enacted to protect the public.
A: Certiorari (Rule 65, not rule 45 because such is a mode of This is in aid of legislation
appeal on pure questions of law) rule 65 is a special civil
action based on grave abuse of discretion. Rule 65 is an 2. This is not a political question. It is a judicial question
original action. especially under the extended power of judicial
review. The courts may validly determine whether or
Section 21 of art. 6: not:
a. The Inquiry is in aid of legislation
Arnault vs. Nazareno b. Conducted in accordance with the duly
Bengzon vs. Senate Blue ribbon committee. published rules of procedure of the house of
congress conducting such inquiry

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
c. The right of the persons appearing or affected on the information but it attaches to the information. How
by such the inquiry is respected can you know that the information being asked by congress
will subvert crucial military matters
Legislative contempt
a. State secrets
Arnault vs. Nazareno: . Intrinsic in the grant of legislative b.
power by the constitution to is the power to conduct c. Generic privilege
inquiries in aid of legislation with the process to enforce it. d. Internal deliberations

Contempt is a process. Section 22: question hour which is imported concept from
parliamentary governments. Here members may validly
Congress is helpless to conduct attendance. Such is absurd. refuse to appear. After all, the question hour is not a regular
GR: Contempt, in general, is an inherent nature of the courts. feature of presidential form of government but a borrowed
concept from parliamentary form of government.
XPN: legislative contempt
Neri vs. Senate committee on public accountability: diluted
You may even be imprisoned. How long shall you remain in the doctrine under Senate vs. Ermita.
prison? You hold the key to your freedom according to
Arnault. You remain as long as you do not cooperate. Talo pa How does a bill become a law: Process in law-making
ang corned beef!
Section 24: Bills required to originate from the HoR (APREL):
You cannot be validly granted pardon by the president in 1. Appropriations
view of the separation of powers. This is one important 2. Private bills
limitation on the pardoning power of president. The 3. Revenue bill
pardoning power does not extend to legislative contempt.
Last phrase: but the senate may propose or concur or with
Senate vs. Ermita: PO: 464: prohibiting them from appearing the amendments.
during congressional inquiry without her consent
-legacy of Justice Conchita-Morrales Tolentino v. sec. of finance:

Section 21 v. section 22 VAT- a revenue bill

Section 21: intrinsic Amendments here may include amendment by substitution.

-may not validly refuse to attend by invoking 464, otherwise, The law only requires that the bill must originate from
it will impair the work of congress. How do you expect congress, not the law itself
congress to enact good laws if you will deny information they
need. Logically, the information will come from the executive- Section 26
the branch tasked with the implementation and enforcement
of laws. Their non-appearance or non-attendance: contempt 2 Rules:
st
The members of the congress are duly elected by the people: 1 paragraph: One subject, one title rule
denial of such: denial of the collective right of the people to
information on matters of public concern through their duly Objectives:
elected representatives from congress.
1. prevent hodge-podge or log-rolling legislation
Only the 2. prevent surprises
1. President or 3.
2. Executive secretary acting under his authority to
refuse -to go away with riders (2012 Bar)- ____
Court has adopted a liberal interpretation rule. It need not be
Executive privilege must be asserted. The privilege must be a complete index of the contents. There is substantial
claimed. It cannot be implied. Section 1 of Art. 2 states that compliance: various provisions are germane
we are a republican and democratic state: hence, the general
rule is disclosure of information not secrecy. Policy of Otherwise, there will be a kilometric title
transparency. Executive privilege is merely an exception, thus
must be invoked or claimed. It cannot be implied. Also, there Ex: Revised Penal Code
can be no blanket invocation of the privilege. It attaches not

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
nd
2 paragraph: 3 readings on separate days rule d. X

6 readings all in all- since we have a bicameral congress. This -they become conclusive upon the court.
is very costly. 3 readings on each house.
Last stage: President for his signature: Rule on the
XPN: When the president certifies the necessity of the presentment of bills to the President
enactment of the bill to meet an existing emergency:
a. Need not comply with the 3 readings on separate Options:
days rule a. Signs the bill and bill becomes a law
b. Need not to comply with.. b. President vetoes it and the bill does not become a
law. He must return to the house with his objections.
What constitutes a public calamity or emergency which will The congress may over-turn the veto by votes of 2/3
certify the necessity of the enactment is a political question c. Inaction on the part of the president: bill
which is not within judicial power. automatically becomes a law

Section 26: Bicameral house of congress: It is a mechanism Pocket veto- no such thing in the Philippines. Present in U.S.
for compromising differences between the senate and house because of express provision of their constitution.
of representatives. If what we have is a unilateral congress,
there is no need for a BCC. Veto of the president (Sec. 27, Art. 6)

By the nature of its functions, a BCC is capable of producing -there are 2 paragraphs:
unexpected results which might even go beyond its own
mandate. This is unavoidable. It will go through compromises a. General veto of the president
and reconciliations. Thus, US authorities considered it, in b. Item or line veto of the president
effect, as the “third house of congress.”
The president may not veto a specific provision in the bill
NOTE: From the BCC, the bill has to be sent back to both without vetoing the entire bill. No such thing as selective
houses of congress to be subjected to votation. No more 3 veto.
readings on separate days requirement. If the yes prevails
over the nays, the senate president or the speaker Bengzon v. Drilon: veto in its entirety or not at all. He cannot
…otherwise, the nays prevents over the yes, the bill is not act as an editor crossing out specific line or provision which
killed. If that happens, then it is about time that another BCC he dislikes. It is all or nothing. Take it or leave it basis.
convenes until such time that it crafts a version which is Package deal.
acceptable to both houses of congress.
nd
XPN: 2 paragraph: item veto (ART)
Enrolled bill doctrine- once a bill becomes enrolled bill it
becomes conclusive upon the courts of its due enactment. a. Appropriations bill
Thus, the court cannot inquire into whether that bill has been b. Revenue
duly and regularly enacted. c. Tariff bills but will not affect the provision which it
does not object
-conclusive of its due enactment because of the doctrine of -Expressly allowed by the law. But this is only limited to 3
separation of powers. The bill contains signature of speaker kinds of bills.
and senate president as well as certification of the respective
secretaries of the houses as to its due enactment. Courts Gonzales vs. Macaraeg
must give respect to the signature of speaker and senate
president as well as certification of the respective secretaries Court invoked the doctrine of inappropriate provision (Sec.
of the houses. 25 of Art. 6): no provision….

Between the enrolled bill and journal, the enrolled bill -must relate to some particular appropriation therein.
prevails because of the enrolled bill doctrine. Otherwise, then it becomes an inappropriate provision. It
may now be treated as an item subject to item veto. Veto will
XPN: Arroyo vs. Devenecia: Matters which the constitution not affect the item/s he does not object.
has required to be entered in the journal:
1989: general appropriations bill. But there is a violation
a. Yes and nays of third and bilateral reading of the ill which Cory found to be objectionable: provision prohibiting
b. X her from augmenting savings from other department items
c. President’s objection over the bill which it vetoed. which are trimmed down by the congress…. There is selective

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
nd
veto. The congress said that Cory vetoed the entire bill itself. Faithful execution clause-Section 17 (2 sentence): the
Hence, automatic enactment of the previous year’s budget. president shall ensure that the laws are faithfully executed.
The Sol Gen said that this is an appropriations bill which
means it can be subject to item veto. Veto should not affect Doctrine of qualified political agency/ alter ego doctrine- the
the items which she did not object. The congress said that president has so many functions. He has an official family:
Art. 6, Section 27: only an item can be vetoed without members of the cabinet: alter ego of the president. Their acts
affecting the entire bill not a PROVISION. Item is different or their decisions performed in the course of their functions
from a provision. are deemed to be the acts of the president unless
disapproved by him.
The SC used Section 25 (par. 2), Art. 6: Doctrine of
Inappropriate provisions: it must relate to some particular Section 8: instances when a permanent vacancy is created in
appropriation therein. Otherwise, it becomes an the office of the pres (DDRR)
inappropriate provision which may now be treated as an item
subject to the item veto. 1. Death
2. Permanent disability
The vetoed provision is more of a rider because it can be a 3. Removal from office
subject of a separate legislation. 4. Resignation

LOC GOV’T: Local chief executives (Punong Barangay) have VP shall assume office not merely as acting President.
NO veto power. But the governor and the mayor has veto
power. ERAP: The president can only be removed via impeachment.
He was impeached but not removed via impeachment.
Punong Barangay has no vice. He presides during the session Similar to Clinton, he was impeached but he was not removed
of the s. baranggay. He cannot veto his own act. He is part of via impeachment
the law-making process there.
SC: Erap did resign (Erap v. Desierto). Constructive resignation
Punong barangay should not be belittled. He is the most doctrine.
powerful person in our system of our government. He has
executive power as well as legislative and judicial power Elements:
(lupon), military power (tanod). He is also a person in 1. Intent to resign
authority. More powerful than a policeman. All the powers of 2. Act of relinquishment
the government are concentrated on this person. He is a
virtual dictator in the baranagay. Predicates: not governed by any provision as to form. As long
as clear, can be given legal effect:
Sangguniang bgy. members are persons in authority. Section
388 of the LGC: The title is “persons in authority.” Same as Determined from the acts: totality of prior contemporaneous
the members of the lupon tagapamayapa, for purposes of the posterior facts and circumstances
RPC, in their respective jurisdiction.
Totality of circumstances test:
Grounds for vetoing an ordinance (Section 55-A)
1. Expose of Singson
1. Ultra vires 2. Walk-out
2. Prejudicial to public welfare 3. Edsa Dos
4. Mass resignation
Local chief executive veto (Governor and Mayor) also has 5. Withdrawal of support by AFP and PNP
item veto (Section 55-B): 6. Angara entry on his diary *“pagod na pagod na ko…
gusto ko na lang linisin ang pangalan ko”+
a. Appropriations ordinance
b. X Section 16-23
c. X
16-appointing power
These are actually parallel functions.
17-control power: exercised over all executive departments
Article 7 and bureaus (power of control). In the LGU, he exercises
general supervision only: POLICY ON LOCAL AUTONOMY
-Executive power shall be vested to the President.
18-

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NOTES ON POLITICAL LAW REVIEW
Kenneth & King Hizon (3A)- UST Faculty of Civil Law ___________________________
a. Calling-out power
b. Martial law
c. Suspend the privilege of the writ of habeas corpus

19-
a. Pardoning power
b. Reprieves
c. Commutation
d. Remit fines and forfeitures
e. amnesty

20- borrowing power of the president- much abused power

21- treaty-making power:

NOTE: correlate with Section 25, Art. 18: special provision

which applies to treaty involving military bases

22-budgetary power

23- informing power

NOTE: Not exclusive enumeration of list

Examples:

1. veto power (Art.6)

2. general supervision to local government
3. power to call congress for special session

Marcos vs. Manglapus: Unstated Residual powers or

reserved powers- not mentioned in the constitution but
which nevertheless the President may validly exercise

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