POLITICAL LAW

Pre-week Notes

Atty. Cecilio D. Duka, Ed.D.

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Amendment
It refers to an addition or change within the lines of the original constitution as will effect an
improvement, or better carry out the purpose for which it was framed. It refers to a change that adds,
reduces or deletes without altering the basic principles involved. It affects only the specific provision
being amended. [Lambino v. Comelec, October 25, 2006]

Revision
Broadly implies a change that alters a basic principle in the constitution, like altering the
principle of separation of powers or the system of checks-and-balances. There is also revision if the
change alters the substantial entirety of the constitution, as when the change affect substantial
provisions of the constitution (Lambino v. Comelec, October 25, 2006)

The Quantitative Test

It asks whether the proposed change is “so extensive in its provisions as to change directly
the ‘substantial entirety’ of the constitution by the deletion or alteration of numerous existing
provisions.” The court examines only the number of provisions affected and does not consider the
degree of the change. [Lambino v. Comelec, October 25, 2006]

The Qualitative Test

Thus, “a change in the nature of the basic governmental plan” includes “change in its
fundamental framework or the fundamental powers of its Branches.” A change in the nature of the
basic governmental plan also includes changes that “jeopardize the traditional form of government
and the system of check and balances.” [Lambino v. Comelec, October 25, 2006]

Santiago v. Comelec, March 19, 1997

R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar
as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter
are fatal and cannot be cured by “empowering” the COMELEC “to promulgate such rules and
regulations as may be necessary to carry out the purposes of the Act. Insofar as initiative to propose
amendments to the Constitution is concerned, R.A. No. 6735 miserably failed to satisfy both
requirements in subordinate legislation. The delegation of the power to the COMELEC is then
invalid.

No Need to Revisit Santiago vs. COMELEC

There is no need to revisit this Court's ruling in Santiago declaring RA 6735 "incomplete,
inadequate or wanting in essential terms and conditions" to cover the system of initiative to amend
the Constitution. Thus, this Court must decline to revisit Santiago which effectively ruled that RA

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6735 does not comply with the requirements of the Constitution to implement the initiative clause
on amendments to the Constitution. (Lambino vs. COMELEC, Oct. 25, 2006)

Nuisance Candidate
The Commission may motu proprio or upon a verified petition of an interested party, refuse
to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been
filed to put the election process in mockery or disrepute or to cause confusion among the voters by
the similarity of the names of the registered candidates or by other circumstances or acts which
clearly demonstrate that the candidate has no bona fide intention to run for the office for which the
certificate of candidacy has been filed and thus prevent a faithful determination of the true will of
the electorate. (Sec. 69, B.P. 881)
The COMELEC cannot conflate the bona fide intention to run with a financial capacity
requirement. A simple door-to-door campaign and the airing of political advertisements on the radio
and television, while varied in scope, both require candidates to spend money. The difference lies
only in how much money a candidate is willing, able, and allowed to spend. Hence, for equating the
perceived inability of Marquez to mount an election campaign-with his supposed absence of bona
fide intention to run for office, the COMELEC indirectly violated the proscription against conflating
a candidate’s financial capacity with bona fide intention to run. Further, declaring one a nuisance
candidate simply because he or she is not known to the entire country reduces the electoral process-
a sacred instrument of democracy -to a mere popularity contest. The matter of the candidate being
known (or unknown) should not be taken against that candidate but is best left to the electorate. As
it is, our democratic and republican state is based on effective representation. Thus, the electorate's
choices must be protected and respected. (Marquez v. COMELEC, June 28, 2022)

Constitution
A constitution is a system of fundamental laws for the governance and administration of a
nation. It is supreme, imperious, absolute and unalterable except by the authority from which it
emanates. It has been defined as the fundamental and paramount law of the nation. It prescribes
the permanent framework of a system of government, assigns to the different departments their
respective powers and duties, and establishes certain fixed principles on which government is
founded. (Manila Prince Hotel vs. Government Service Insurance System, G.R. No. 122156, February
3, 1997)

Doctrine of Constitutional Supremacy

If a law or contract violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into by private persons for
private purposes is null and void and without any force and effect. Thus, since the Constitution is
the fundamental, paramount and supreme law of the nation, it is deemed written in every statute
and contract. (Manila Prince Hotel vs. Government Service Insurance System, February 3, 1997)

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State Immunity
Article XVI, Section 3, 1987 Constitution- The State may not be sued without its consent.

The state may not be sued without its consent is not absolute
The state may not be sued without its consent is not really absolute for it does not say that the
state may not be sued under any circumstance. On the contrary, as correctly phrased, the doctrine
only conveys, 'the state may not be sued without its consent'; its clear import then is that the State
may at times be sued. The States' consent may be given either expressly or impliedly.
Express consent may be made through a general law or a special law. In this jurisdiction, the
general law waiving the immunity of the state from suit is found in Act. No. 3083, where the
Philippine government consents and submits to be sued upon any money claim involving liability
arising from contract, express or implied, which could serve as a basis of civil actions between
private parties.
Implied consent, on the other, is conceded when the State itself commences limitation, thus
opening itself to a counterclaim, or when it enters into a contract (Republic vs. NLRC, October 17,
1996).
Implied consent, on the other hand, is conceded when the State itself commences litigation,
thus opening itself to a counterclaim or when it enters into a contract. In this situation, the
government is deemed to have descended to the level of the other contracting party and to have
divested itself of its sovereign immunity. (DOH vs. Phil. Pharma Wealth, Feb. 20, 2013)

When the State enters into a Contract

The traditional rule of immunity exempts a State from being sued in the courts of another
State without its consent or waiver. This rule is a necessary consequence of the principle of
independence and equality of States.
However the rules of International Law are not petrified; they are constantly evolving. And
because these activities by the State it has been necessary to distinguish them:
Jure imperii – sovereign and governmental acts – there is immunity
Jure gestionis – private, commercial and proprietary acts – there is waiver of immunity
The restrictive application of State immunity is proper only when the proceedings arise out
of commercial transactions of the foreign sovereign, its commercial activities and economic affairs.
Stated differently, a State may be said to have descended to the level of an individual and can
thus be deemed to have tacitly given its consent to be sued only when it enters into a business
contracts. It does not apply when the contracts relate to the exercise of its sovereign functions.
(Department of Agriculture vs. NLRC, November 11, 1993)

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Suability does not necessarily mean liability
Suability does not necessarily mean liability on the part of the particular instrumentality or
agency of the government. When the State gives its consent to be sued, it does not thereby necessarily
consent to an unrestrained execution against it. Tersely put, when the State waives its immunity, all
it does, in effect, is to give the other party an opportunity to prove, if it can, that the State has a
liability. Disbursements of public funds must be covered by the corresponding appropriation as
required by law. The functions and public services rendered by the State cannot be allowed to be
paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as
appropriated by law (Republic vs. NLRC, G.R. No. 120385).

The Suit is deemed against the State when:

a) The Republic is sued by its name; b) The suit is against an unincorporated government
agency; c) The suit is on its face against a government officer, but the case is such that the ultimate
liability will belong not to the officer but to the government (Republic vs. Sandoval, March 19, 1993)

Immunity from suit by the State cannot be used to institutionalize irresponsibility

This doctrine of immunity from suit by the State cannot be used to institutionalize
irresponsibility and non – accountability nor grant a privileged status not claimed by any other official of
the Republic. xxx the principle of state immunity from suit does not apply, as in this case, when the relief
demanded by the suit requires no affirmative discharge of any obligation which belongs to the State, even
though the officers or agents who are made defendants claim to hold or act not only by virtue of a
title of the state and as its agents and servants. This Court has made it quite clear that even a “high
position in the government does not confer a license to persecute or recklessly injure another” (Chavez vs.
Sandiganbayan January 24, 1991)

Diplomatic Immunity and Privileges

Diplomatic immunity is a form of legal immunity and a policy held between governments,
which ensures that diplomats are given safe passage and are considered not susceptible to lawsuits
or prosecution under the host country's laws (although they can be expelled). It was agreed as
international law in the Vienna Convention on Diplomatic Relations (1961), though there is a much
longer history in international law. Many principles of diplomatic immunity are now considered to
be customary law. Diplomatic immunity as an institution developed to allow for the maintenance
of government relations, including during periods of difficulties and even armed conflicts. When
receiving diplomats - formally, representatives of the sovereign (head of state) - the receiving head
of state grants certain privileges and immunities to ensure that they may effectively carry out their
duties, on the understanding that these will be provided on a reciprocal basis.

Separation of Powers
Separation of powers is a term coined by French political Enlightenment thinker Baron de
Montesquieu is a model for the governance of democratic states. Under this model, the state is

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divided into branches, and each branch of the state has separate and independent powers and areas
of responsibility. The normal division of branches is into the Executive, the Legislative, and the
Judicial. Our governmental structure rests on the principle of separation of powers. Under our
constitutional order, the legislative branch enacts law, the executive branch implements the law, and
the judiciary construes the law. (PBOAP vs. DOLE, July 17, 2018)

Purpose
Its purpose is to prevent the concentration of authority in one person or group of persons that might
lead to irreparable error or abuse in its exercise to the detriment of republican institutions
(Pangasinan Transportation Co. v. Public Service Commission, June 26, 1940).

Blending of Powers
Our governmental structure rests on the principle of separation of powers. Under our
constitutional order, the legislative branch enacts law, the executive branch implements the law, and
the judiciary construes the law. In reality, however, the powers are not as strictly confined or
delineated to each branch. (PBOAP vs. DOLE, July 17, 2018)

Checks and Balances

The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. For example, the Chief
Executive under our Constitution is so far made a check on the legislative power that this assent is
required in the enactment of laws. (Angara v. Electoral Commission, July 15, 1936)

Delegation of Powers
Potestas delegata non delegare potest (what has been delegated cannot be delegated)
It is premised on the ethical principle that delegated power constitutes not only a right but
also a duty to be performed by the delegate through the instrumentality of his own judgment and
not through the intervening mind of another.

Exceptions - Permissible Delegation (PETAL)

1. Delegation to the people (Sec. 32, Art. VI; Sec. 10, Art. X; Sec. 2, Art. XVII; RA 6735); 2.
Emergency powers Of the President (Art. VI, Sec. 23 [2]); 3. Tariff powers of the President (Art. VI,
Sec. 28 [2]); 4. Delegation to administrative bodies (power of subordinate legislation); and 5.
Delegation to Local Government units (Art X; RA7160)

Tests for Valid Delegation:

(1) the completeness test and (2) the sufficient standard test. (Bureau of Customs vs. Teves,
Dec. 6, 2011)

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 1. Completeness test — To determine completeness, all of the terms and provisions of the law
must leave nothing to the delegate except to implement it. "What only can be delegated is not the
discretion to determine what the law shall be but the discretion to determine how the law shall be
enforced."(KMU vs. Benigno Aquino, III, April 2, 2019)
2. Sufficient standard test — The sufficient standard test, mandates that there should be
adequate guidelines or limitations in the law to determine the boundaries of the delegate's authority
and prevent the delegation from running riot. (KMU vs. Benigno Aquino, III, April 2, 2019)

Both Tests are Needed

Both tests are intended to prevent a total transference of legislative authority to the delegate,
who is not allowed to step into the shoes of the legislature and exercise a power essentially
legislative. (Eastern Shipping Lines vs. POEA, Oct. 18, 1988)
Police Power
Police power is not capable of an exact definition but has been purposely veiled in general
terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an
efficient and flexible response to conditions and circumstances, thus assuring the greatest benefits.
Accordingly, it has been described as "the most essential, insistent and the least limitable of powers,
extending as it does to all the great public needs.” (Southern Luzon Drug Corp. vs. DSWD, April 25,
2017)

Elements of Police Power

Police power has been defined as the “state authority to enact legislation that may interfere
with personal liberty or property in order to promote the general welfare.” It consists of two essential
elements. First, it is an imposition of restraint upon liberty or property. Second, the power is
exercised for the benefit of the common good. (Agan, Jr. vs. Philippine International Air Terminals
Co., Inc., January 21, 2004)

Power of Eminent Domain

The power of eminent domain is an inherent competence of the state. It is essential to a
sovereign. Thus, the Constitution does not explicitly define this power but subjects it to a limitation:
that it be exercised only for public use and with payment of just compensation. Whether the use is
public or whether the compensation is constitutionally just will be determined finally by the courts.
[NAPOCOR vs. Posada, March 11, 2015]

Power of Taxation
The power of taxation is the power to levy taxes to be used for public purpose. The main
purpose taxation is revenue generation. The power of taxation, on the other hand, is circumscribed
by inherent and constitutional limitations. (Planters Products vs. Fertiphil Corp. March 14, 2008)

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Archipelago Doctrine
The water around, between and connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the Philippines. All the islands of the
archipelago are considered as a single unit for purposes of determining its territorial waters and
internal waters. The measurement is based on the straight baseline method.

Straight Baseline Method

In defining the internal waters of the archipelago straight baseline should be drawn to connect
appropriate points of the outermost islands without departing radically from the general direction
of the coast so that the entire archipelago shall be encompassed as one whole territory. The waters
inside these baselines shall be considered internal and thus not subject to entry by foreign vessels
without consent of the local state.

Territorial Sea
The belt of the sea located between the coast and internal waters of the coastal state on the
other hand, and the high seas on the other, extending up to 12 nautical miles from the low water
mark or in the case of the archipelagic states, from the baselines.

Right of Innocent Passage

Vessels of all states enjoy the right of innocent passage through the territorial sea. The passage
must be continuous and expeditious except in cases of force majeure. Submarines and underwater
craft are required to navigate on the surface and to show their flag.

Internal waters
Covers all water and waterways on the landward side of the baseline. The coastal nation is
free to set laws, regulate any use, and use any resource. Foreign vessels have no right of passage
within internal waters. Bodies of water within the land mass, such as rivers, lakes, canals, gulfs, bays
and straits. The UN Convention on the Law of the Sea defines internal waters as all waters on the
landward side of the baselines of the territorial sea.

Contiguous zone
It extends up to 12 nautical miles from the territorial sea. The coastal state may exercise
limited jurisdiction over the contiguous zone to prevent infringement of customs, fiscal, immigration
or sanitary laws.

Exclusive Economic Zone

Extends up to 200 nautical miles from the low water mark or the baseline. Technically, the
area beyond the territorial sea is not part of the territory of the state, but the coastal state may exercise

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sovereign rights over economic resources of the sea, seabed, subsoil although other states shall have
freedom of navigation and over flight, to lay submarine rabbles and pipelines and other lawful uses.
States with overlapping exclusive economic zones are enjoined to enter into the appropriate treaty
for the joint exploitation and utilization of the resources in the area.

Magallona vs. Ermita, August 16, 2011

The baselines cannot be drawn from the boundaries or other portions of the rectangular area
delineated in the Treaty of Paris, but from the “outermost islands and drying reefs of the
archipelago.” The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago,
took pains to emphasize the foregoing during the Senate deliberations: What we call the Kalayaan
Island Group or what the rest of the world call the Spratlys and the Scarborough Shoal are outside
our archipelagic baseline because if we put them inside our baselines we might be accused of
violating the provision of international law which states: The drawing of such baseline shall not
depart to any appreciable extent from the general configuration of the archipelago.” So sa loob ng
ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin
masasabing malapit sila sa atin although we are still allowed by international law to claim them as
our own.”

International Tribunal on the Laws of the Sea (ITLOS)

The Tribunal is composed of 21 independent members elected by secret ballot by the States
Parties to the Convention. Each State Party may nominate up to two candidates from among persons
enjoying the highest reputation for fairness and integrity and of recognized competence in the field
of the law of the sea.

RP vs. PROC
On 22 January 2013, the Republic of the Philippines instituted arbitral proceedings against
the People’s Republic of China under Annex VII to the United Nations Convention on the Law of
the Sea (the “Convention”), “with respect to the dispute with China over the maritime jurisdiction
of the Philippines in the West Philippine Sea.” On 19 February 2013, China presented a Note Verbale
to the Philippines in which it described “the Position of China on the South China Sea issues,”
rejected and returned the Philippines’ Notification. The Arbitral Tribunal in Philippines v. China, L
to R: Judge Jean-Pierre Cot (France), Judge Stanislaw Pawlak (Poland), Judge Thomas A. Mensah
(President, Ghana), Judge Rüdiger Wolfrum (Germany), Professor Alfred H. A. Soons
(Netherlands). The Permanent Court of Arbitration (PCA) at The Hague, Netherlands, released on
October 29, 2015 rejected China's strongest argument against the Philippines. It ruled that the
tribunal has the right to hear the Philippines' case.

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Ruling of the Arbitral Tribunal
1. Historic Rights and the ‘Nine-Dash Line’
China had historic rights to resources in the waters of the South China Sea, such rights were
extinguished to the extent they were incompatible with the exclusive economic zones provided for
in the Convention. There was no evidence that China had historically exercised exclusive control
over the waters or their resources. The Tribunal concluded that there was no legal basis for China to
claim historic rights to resources within the sea areas falling within the ‘nine-dash line’.

2. Status of Features
The reefs have been heavily modified by land reclamation and construction, recalled that the
Convention classifies features on their natural condition, and relied on historical materials in
evaluating the features. The Spratly Islands cannot generate maritime zones collectively as a unit.
Having found that none of the features claimed by China was capable of generating an exclusive
economic zone, it could—without delimiting a boundary—declare that certain sea areas are within
the exclusive economic zone of the Philippines, because those areas are not overlapped by any
possible entitlement of China.

3. Lawfulness of Chinese Actions

Certain areas are within the exclusive economic zone of the Philippines, the Tribunal found
that China had violated the Philippines’ sovereign rights in its exclusive economic zone by (a)
interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and
(c) failing to prevent Chinese fishermen from fishing in the zone. The Tribunal also held that
fishermen from the Philippines (like those from China) had traditional fishing rights at Scarborough
Shoal and that China had interfered with these rights in restricting access. The Tribunal further held
that Chinese law enforcement vessels had unlawfully created a serious risk of collision when they
physically obstructed Philippine vessels.

4. Harm to Marine Environment

China had caused severe harm to the coral reef environment and violated its obligation to
preserve and protect fragile ecosystems and the habitat of depleted, threatened, or endangered
species. Chinese authorities were aware that Chinese fishermen have harvested endangered sea
turtles, coral, and giant clams on a substantial scale in the South China Sea (using methods that inflict
severe damage on the coral reef environment) and had not fulfilled their obligations to stop such
activities.

5. Aggravation of Dispute
It lacked jurisdiction to consider the implications of a stand-off between Philippine marines
and Chinese naval and law enforcement vessels at Second Thomas Shoal, holding that this dispute
involved military activities and was therefore excluded from compulsory settlement. The Tribunal
found, however, that China’s recent large-scale land reclamation and construction of artificial

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islands was incompatible with the obligations on a State during dispute resolution proceedings,
insofar as China has inflicted irreparable harm to the marine environment, built a large artificial
island in the Philippines’ exclusive economic zone, and destroyed evidence of the natural condition
of features in the South China Sea that formed part of the Parties’ dispute.

Extraterritoriality
It is the immunity of persons and property from local jurisdictions on the bases of
international customs.

Par in parem non habet imperium – all sovereign states are equal

Elements of the State

Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the
Montevideo Convention, namely, a permanent population, a defined territory, a government, and a
capacity to enter into relations with other states. (Province of North Cotabato v. Govt. of the Phils.,
Oct. 14, 2008)

Sovereignty is not absolute

While sovereignty has traditionally been deemed absolute and all - encompassing on the
domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the
Philippines, expressly or impliedly, as a member of the family of nation. (Tañada vs. Angara, May
2, 1997)

Direct or pure democracy - It is one in which the will of the State is formulated or expressed
directly through the people in a mass meeting or assembly
Indirect, representative or republican democracy - one in which the will of the State is
formulated through a relatively small and select body of persons chosen by the people to act as their
representatives.
Unitary ‑ the control of national and local affairs is exercised by the national government.
Federal ‑ the power of the government is divided between two agencies, one for national
affairs and the other for local affairs, each organ being supreme within its own jurisdiction.
Parliamentary ‑ the State confers upon the legislature the power to terminate the tenure of
the executive. Under this system, the Cabinet or Ministry is immediately and legally responsible to
the legislature and politically responsible to the electorate.
Presidential ‑ where the executive is independent of the legislative as to tenure, policies and
acts. The president and the members of the legislative department are directly elected by the people
De Jure ‑ the administration may or may not have the support of the people but it is founded
on existing constitutional laws of the State.

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 De Facto ‑ is founded not on existing constitutional laws of the State but it has the support of
the majority of the people.

Effect of Change of Government

The rule is that where the new government was organized by virtue of a constitutional reform
duly ratified in a plebiscite, the obligations of the replaced government are also completely assumed
by the former. Conversely, as by a revolution, it may lawfully reject the purely personal or political
obligations of the predecessor government but not those contracted by it in the ordinary course of
official business.

Gerrymandering
The word gerrymander (originally written Gerry-mander) was used for the first time in the
Boston Gazette on 26 March 1812. The word was created in reaction to a redrawing of Massachusetts
state senate election districts under the then governor Elbridge Gerry (1744–1814). In 1812, Governor
Gerry signed a bill that redistricted Massachusetts to benefit his Democratic-Republican Party.
When mapped, one of the contorted districts in the Boston area was said to resemble the shape of a
salamander.

Only Congress may create a province

The power to apportion legislative districts is textually committed to Congress by the
Constitution. Thus, it cannot be validly delegated to the ARMM Regional Assembly (Sema v.
COMELEC, G.R. No. 177597, July 16, 2008).

Party-List System Act - R.A. 7941

The party-list representatives shall constitute twenty per centum (20%) of the total number of
the members of the House of Representatives including those under the party-list.
the parties, receiving at least two percent (2%) of the total votes cast for the party-list system shall
be entitled to one seat each those garnering more than two percent (2%) of the votes shall be entitled
to additional seats in proportion to their total number of votes; each party, organization, or coalition
shall be entitled to not more than three (3) seats.

Veterans Federation v. COMELEC, October 6, 2000

20% Allocation- the combined number of all party-list congressmen shall not exceed 20% of
the total membership of the House of Representatives. 2% threshold – only those parties garnering
a minimum of 2% of the total votes cast for the party-list system are qualified to have a seat in the
House. Three seat limits – each qualified party, regardless of the number of votes it actually obtained
is entitled to a maximum of three seats (1 qualifying and 2 additional seats) Proportional
representation – the additional seats which a qualified party is entitled to shall be computed “in
proportion to their total number of votes.”

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Banat vs. Comelec, April 21, 2009
We cannot allow the continued existence of a provision in the law which will systematically
prevent the constitutionally allocated 20% party-list representatives from being filled. The three-
seat cap, as a limitation to the number of seats that a qualified party-list organization may occupy,
remains a valid statutory device that prevents any party from dominating the party-list elections.
Seats for party-list representatives shall thus be allocated in accordance with the procedure used in
Table 3 above.

Atong Paglaum vs. Comelec, April 2, 2013

Three different groups may participate in the party-list system: 1) national parties or
organizations, 2) regional parties or organizations, 3) sectoral parties or organizations. 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. 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.

Incompatible Office
May not hold any other office or employment in the government during his term without
forfeiting his seat. (Art VI Sec 13) Forfeiture of the seat in Congress shall be automatic upon the
member’s assumption of such office deemed incompatible. (Adaza vs. Pacana, March 18, 1985)

Liban vs. Gordon, July 15, 2009

The office of the Chairman of the Philippine National Red Cross is not a government office or
an office in a government-owned or controlled corporation for purposes of the prohibition in Section
13, Article VI of the 1987 Constitution.

Forbidden Office
May not be appointed to any office created or the emoluments thereof were increase during
the term for which he was elected. (Art VI Sec 13) He cannot validly take the office even if he is
willing to give up his seat.

Term vs. Tenure

The term means the time during which the officer may claim to hold the office as of right and
fixes the interval after which the several incumbents shall succeed one another. The tenure
represents the term during which the incumbent actually holds the office. The term of office is not
affected by the hold over. (Guekeko vs. Santos, March 2, 1946)

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Disciplining Members
The suspension contemplated in the above constitutional provision is a punitive measure that
is imposed upon determination by the Senate or the House of Representatives, as the case may be,
upon an erring member. Each House of Congress inter alia to 'punish its Members for disorderly
behavior, and suspend or expel a Member by a vote of two-thirds of all its Members subject to the
qualification that the penalty of suspension, when imposed, should not exceed sixty days (Santiago
vs. Sandiganbayan, April 18, 2001)

Senate vs. Ermita, April 20, 2006

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the
Constitution which reads: Section 21 The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in accordance with its duly
published rules of procedure. The rights of persons appearing in or affected by such inquiries shall
be respected.
That this power of inquiry is broad enough to cover officials of the executive branch may be
deduced from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the
power to legislate. The matters which may be a proper subject of legislation and those which may
be a proper subject of investigation are one. It follows that the operation of government, being a
legitimate subject for legislation, is a proper subject for investigation.

Three readings on separate days

The purpose for which three readings on separate days is required is said to be two-fold: (1)
to inform the members of Congress of what they must vote on and (2) to give them notice that a
measure is progressing through the enacting process, thus enabling them and others interested in
the measure to prepare their positions with reference to it. (Tolentino v. Secretary of Finance, October
30, 1995)

Enrolled Bill
Enrolled bill is the final copy of a bill or joint resolution that has passed both houses of a
legislature and is ready for signature. Under the enrolled bill doctrine, the signing of the bill by the
Speaker of the House and the President of the Senate and the certification by the secretaries of both
Houses of Congress that it was passed are conclusive of its due enactment. (Arroyo v. De Venecia,
Aug. 14, 1997)

Executive Power
The executive power shall be vested in the President of the Philippines. Under our
constitutional scheme, executive power is vested in the President of the Philippines (Secretary of
Justice, vs. Lantion, G.R. No. 139465. October 17, 2000).

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Poe vs. Arroyo, March 29, 2005
Acting on the protest and considering the Notice of the Death, submitted by counsel of
protestant RONALD ALLAN POE, a.k.a. FERNANDO POE, JR., we also resolve that Presidential
Electoral Tribunal Case No. 002, entitled Ronald Allan Poe a.k.a. Fernando Poe, Jr. v. Gloria
Macapagal-Arroyo, should be as it is hereby DISMISSED on the ground that no real party in interest
has come forward within the period allowed by law, to intervene in this case or be substituted for
the deceased protestant.

Immunity of the President

It is equally elementary that incumbent Presidents are immune from suit or from being
brought to court during the period of their incumbency and tenure. (In re Bermudez, October 24,
1986)

Immunity of the President may be waived

Moreover, there is nothing in our laws that would prevent the President from waiving the
privilege. Thus, if so, minded the President may shed the protection afforded by the privilege and
submit to the court’s jurisdiction. The choice of whether to exercise the privilege or to waive it, is
solely the President’s prerogative. It is a decision that cannot be assumed and imposed by any other
person. (Soliven v. Makasiar, November 14, 1988)

Immunity of a Former President

The Court also stresses the rule that the presidential immunity from suit exists only in
concurrence with the president’s incumbency. Conversely, this presidential privilege of immunity
cannot be invoked by a non-sitting president even for acts committed during his or her tenure. (Saez
vs. Macapagal – Arroyo, September 25, 2012)

Ad interim appointment
An ad interim appointment is a permanent appointment because it takes effect immediately
and can no longer be withdrawn by the President once the appointee has qualified into office. The
fact that it is subject to confirmation by the Commission on Appointments does not alter its
permanent character. (Matibag vs. Benipayo, April 2, 2002)

Ad – interim vs. Acting Appointment

Moreover ad-interim appointments are submitted to the Commission on Appointments for
confirmation or rejection; acting appointments are not submitted to the Commission on
Appointments. Acting appointments are a way of temporarily filling important offices but, if
abused, they can also be a way of circumventing the need for confirmation by the Commission on
Appointments. (Pimentel vs. Ermita, October 13, 2005)

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PNP Chief Not Subject to CA Confirmation
Thereunder, the police force is different from and independent of the armed forces and the
ranks in the military are not similar to those in the Philippine National Police. Thus, directors and
chief superintendents of the PNP, such as the herein respondent police officers, do not fall under the
first category of presidential appointees requiring the confirmation by the Commission on
Appointments. (Manalo vs. Sistoza, Aug. 11, 1999)

De Castro vs. JBC, March 17, 2010

As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists
the powers vested by the Constitution in the President. The presidential power of appointment is
dealt with in Sections 14, 15 and 16 of the Article. Article VIII is dedicated to the Judicial Department
and defines the duties and qualifications of Members of the Supreme Court, among others. Had the
framers intended to extend the prohibition contained in Section 15, Article VII to the appointment
of Members of the Supreme Court, they could have explicitly done so. They could not have ignored
the meticulous ordering of the provisions. They would have easily and surely written the prohibition
made explicit in Section 15, Article VII as being equally applicable to the appointment of Members
of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition against the President or Acting President
making appointments within two months before the next presidential elections and up to the end of
the President’s or Acting President’s term does not refer to the Members of the Supreme Court.

Power of Control
Control is essentially the power to alter or modify or nullify or set aside what a subordinate
officer had done in the performance of his duties and to substitute the judgment of the former with
that of the latter. Clearly, the power of control is entirely different from the power to create public
offices. The former is inherent in the Executive, while the latter finds basis from either a valid
delegation from Congress, or his inherent duty to faithfully execute the laws. (Biraogo vs. Truth
Commission of 2010, December 7, 2010)

Doctrine of Qualified Political Agency

All executive and administrative organizations are adjuncts of the Executive Department
The acts of the head of Executive departments when performed and promulgated in the regular
course of business or unless disapproved or reprobated by the Chief Executive, are presumptively
the acts of the Chief Executive. (Villena vs. Secretary of Interior, April 21, 1939)

David v. Arroyo, May 3, 2006

The Constitution grants the President, as Commander-in-Chief, a “sequence” of graduated
powers. From the most to the least benign, these are: the calling-out power, the power to suspend

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the privilege of the writ of habeas corpus, and the power to declare Martial Law. Owing to her
Office’s vast intelligence network, she is in the best position to determine the actual condition of the
country.

IBP v. Zamora, August 15, 2000

When the President calls the armed forces to prevent or suppress lawless violence, invasion
or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear
from the intent of the framers and from the text of the Constitution itself. The full discretionary
power of the President to determine the factual basis for the exercise of the calling out power is also
implied and further reinforced in the rest of Section 18, Article VII

Lagman vs. Medialdea, Feb. 19, 2019

The Congress has the prerogative to extend the martial law and the suspension of the
privilege of the writ of habeas corpus as the Constitution does not limit the period for which it can
extend the same. This Court in the case of Lagman v. Medialdia (July 4, 2017) explained the only
limitations to the exercise of congressional authority to extend such proclamation or suspension: a)
the extension should be upon the President’s initiative; b) it should be grounded on the persistence
of the invasion or rebellion and the demands of public safety; and c) it is subject to the Court's
review of the sufficiency of its factual basis upon the petition of any citizen. The records of the
Constitutional Commission show that Commissioner Suarez's proposal to add a similar 60-day
limitation to the extension of an initial proclamation of martial law was not adopted by a majority
of the members of the Commission. The framers evidently gave enough flexibility on Congress to
determine the duration of the extension

Pardon, Amnesty and Parole

Except in cases of impeachment, or as otherwise provided in this Constitution, the President may
grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by
final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of
all the Members of the Congress.

Garcia vs. COA, Sept. 14, 1993

Unless expressly grounded on the person's innocence, it cannot bring back lost reputation for
honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to
public office which was forfeited by reason of the conviction of the offense. But since pardon does
not generally result in automatic reinstatement because the offender has to apply for reappointment,
he is not entitled to back wages.

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Executive Agreements Need No Senate Concurrence
The right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. The power of the President
to enter into binding executive agreements without Senate concurrence is already well-established
in this jurisdiction. (Saguisag vs. Ochoa, January 12, 2016)

Pangilinan v. Cayetano, March 16, 2021

While the Philippine Constitution provides that a vote of 2/3 of all the members of the Senate is
required in ratifying a treaty, there is no similar specification for withdrawal from a treaty, thus,
vesting the power to withdraw in the President alone. The President, as primary architect of foreign
policy, is subject to the Constitution and existing statute as there were provisions in a prior law,
Republic Act No. 9851, which amended the Rome Statute.

Kilosbayan vs. Ermita, July 3, 2007

Gregory S. Ong, is hereby ENJOINED from accepting an appointment to the position of
Associate Justice of the Supreme Court or assuming the position and discharging the functions of
that office, until he shall have successfully completed all necessary steps, through the appropriate
adversarial proceedings in court, to show that he is a natural-born Filipino citizen and correct the
records of his birth and citizenship.

Non-filing of SALN Affects Integrity

And as will be extensively demonstrated hereunder, respondent's failure to file her SALNs
and to submit the same to the JBC go into the very qualification of integrity. In other words, when
Member of the Supreme Court transgresses the SALN requirement prior to his or her appointment
as such, he or she commits violation of the Constitution and belies his or her qualification to hold
the office. (Republic vs. Sereno, May 11, 2018)

Expanded Power of Judicial Review

Under the Court's expanded jurisdiction, a petition for certiorari is a proper remedy to
question the act of any branch or instrumentality of the government on the ground of grave abuse
of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the
government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions.
(Padilla v. Congress of the Phils. July 25, 2017)

Ifurung v. Morales, April 24, 2018

Under the 1987 Constitution, judicial power includes the duty of the courts of justice not only
"to settle actual controversies involving rights which are legally demandable and enforceable," but
also “to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.”

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Francisco Jr. v. House of Representatives, Nov. 10, 2003
Again, this Court reiterates that the power of judicial review includes the power of review
over justiciable issues in impeachment proceedings. The exercise of judicial restraint over justiciable
issues is not an option before this Court. Nor can jurisdiction be renounced as there is no other
tribunal to which the controversy may be referred. Otherwise, this Court would be shirking from its
duty vested under Art. VIII, Sec. 1(2) of the Constitution.

Grave Abuse of Discretion

Jurisprudence has defined grave abuse of discretion to mean the capricious or whimsical
exercise of judgment that is so patent and gross as to amount to an evasion of positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where
the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. (Land
Bank of the Philippines v. Court of Appeals, 25 August 2003)

Political Question
Political questions refer "to those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of government." Thus, if an issue is clearly identified
by the text of the Constitution as matters for discretionary action by a particular branch of
government or to the people themselves then it is held to be a political question. (Tañada v. Cuenco,
February 28, 1957)

Justiciable Question
A justiciable controversy is a definite and concrete dispute touching on the legal relations of
parties having adverse legal interests, which may be resolved by a court of law through the
application of a law. - (Bayan Telecommunications vs. Republic, January 31, 2007)

Requisites of Judicial Review

(1) there must be an actual case or controversy calling for the exercise of judicial power; (2)
the person challenging the act must have the standing to question the validity of the subject act or
issuance; otherwise stated, he must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must
be the very lis mota of the case. (LAMP vs. Sec of DBM, April 24, 2012)

Class Suit
The necessary elements for the maintenance of a class suit are: 1) the subject matter of
controversy is one of common or general interest to many persons; 2) the parties affected are so

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numerous that it is impracticable to bring them all to court; and 3) the parties bringing the class suit
are sufficiently numerous or representative of the class and can fully protect the interests of all
concerned. (Juana Complex I Homeowners Association, Inc. vs. Fil – Estate Land, March 5, 2012)

Adjudicative Pragmatism
As another parameter of judicial review, adjudicative pragmatism entails deciding a case with
regard to the "present and the future, unchecked by any felt duty to secure consistency in principle
with what other officials have done in the past. The pragmatist judge thus regards precedent,
statutes, and constitutions both as sources of potentially valuable information about the likely best
result in the present case and as signposts that must not be obliterated or obscured gratuitously,
because people may be relying upon them. (Kilusang Mayo Uno vs. Aquino III, April 2, 2019)

Purposeful Hesitation
It is also emphasized that every court, including this Court, is charged with the duty of a
purposeful hesitation before declaring a law unconstitutional, on the theory that the measure was
first carefully studied by the executive and the legislative departments and determined by them to
be in accordance with the fundamental law before it was finally approved. To doubt is to sustain.
(Drilon v. Lim, August 4, 1994)

Operative Fact Doctrine

Under the operative fact doctrine, the law is recognized as unconstitutional but the effects of
the unconstitutional law, prior to its declaration of nullity, may be left undisturbed as a matter of
equity and fair play. In fact, the invocation of the operative fact doctrine is an admission that the law
is unconstitutional. The operative fact doctrine is a rule of equity. As such, it must be applied as an
exception to the general rule that an unconstitutional law produces no effects. It can never be
invoked to validate as constitutional an unconstitutional act. (League of Cities vs. Comelec, August
24, 2010)

Republic vs. Sereno, May 11, 2018

The SC have concurrent jurisdiction with the CA and RTC to issue the extraordinary writs,
including quo warranto. A direct invocation of the SC’s original jurisdiction to issue such writs is
allowed when there are special and important reasons therefor, and in this case, direct resort to SC
is justified considering that the action is directed against the Chief Justice. Quo warranto proceedings
are essentially judicial in character – it calls for the exercise of the Supreme Court’s constitutional
duty and power to decide cases and settle actual controversies. This constitutional duty cannot be
abdicated or transferred in favor of, or in deference to, any other branch of the government including
the Congress, even as it acts as an impeachment court through the Senate.

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Constitutional Commissions
The Constitutional Commissions which are independent are the Civil Service Commission,
the Commission on Election and the Commission on Audit. Their creation is established in the
Con-stitution because of the extraordinary importance of their functions and the need to insulate
them from undesired political interference or pressure. Their independence cannot be assured if
they were to be created merely by statute.

Appeals from the Decisions of CSC

As provided by Rule 43 of the Rules of Court, the proper mode of appeal from the decision
of a quasi-judicial agency, like the CSC, is a Petition for Review filed with the CA. The special civil
action of certiorari under Rule 65 of the Rules of Court may be resorted to only when any tribunal,
board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its/his
jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there
is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law. (Mahinay vs.
Court of Appeals, April 30, 2008)

Sambajon vs. PAO, Sept. 6, 2017

Thus, under the present legal milieu, disciplining authorities have the right to appeal CSC
decisions which have modified the penalty originally meted against erring government personnel.
If it were otherwise, the government would be deprived of its right to weed out undeserving public
servants. Consequently, the PAO had legal standing to appeal the decision reinstating Atty. Recto-
Sambajon to her former post, whom it previously found unfit to continue as a public attorney.

Antonio vs. COMELEC, Sept. 22, 1999

The COMELEC is the proper appellate court clothed with jurisdiction to hear the appeal from
the MTC, which appeal must be filed within five days after the promulgation of the MTC’s decision.

Villarosa vs. Festin, Aug. 5, 2014

Under Sec. 3, Art. IX - C, 1987 Constitution, the Commission on Elections may sit en banc or
in two divisions and shall promulgate its rules of procedure in order to expedite disposition of
election cases, including pre-proclamation controversies. All such election cases shall be heard and
decided in division, provided that motions for reconsideration of decisions shall be decided by the
Commission en banc.

The Diocese of Bacolod vs. Comelec, Jan. 21, 2015

Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable
especially to raise objections relating to a grave abuse of discretion resulting in the ouster of
jurisdiction. As a special civil action, there must also be a showing that there be no plain, speedy,
and adequate remedy in the ordinary course of the law.

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Fortune Life Insurance vs. COA, Jan. 27, 2015
The petition for certiorari under Rule 64 is similar to the petition for certiorari under Rule 65,
and assails a judgment or final order of the Commission on Elections (COMELEC), or the
Commission on Audit (COA). The petition is designed to correct only errors of jurisdiction, not
errors of judgment. Questions of fact cannot be raised except to determine whether the COMELEC
or the COA were guilty of grave abuse of discretion amounting to lack or excess of jurisdiction.

Impeachment Proceeding
Impeachment proceeding is not a single act. It is a complexus of acts consisting of a beginning,
a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The
middle consists of those deliberative moments leading to the formulation of the articles of
impeachment. The beginning or the initiation is the filing of the complaint and its referral to the
Committee on Justice. (Francisco vs. House of Representatives, Nov. 10, 2003)

Initiation in One Year

The Having concluded that the initiation takes place by the act of filing of the impeachment
complaint and referral to the House Committee on Justice, the initial action taken thereon, the
meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been
initiated in the foregoing manner, another may not be filed against the same official within a one
year period following Article XI, Section 3(5) of the Constitution. (Francisco vs. House of
Representatives, Nov. 10, 2003)

The Ombudsman (Tanodbayan)

Estrada v. Desierto, Dec. 9, 2004
The remedy of aggrieved parties from resolutions of the Office of the Ombudsman finding
probable cause in criminal cases or non-administrative cases, when tainted with grave abuse of
discretion, is to file an original action for certiorari with this Court and not with the Court of Appeals.
In cases when the aggrieved party is questioning the Office of the Ombudsman’s finding of lack of
probable cause, as in this case, there is likewise the remedy of certiorari under Rule 65 to be filed
with this Court and not with the Court of Appeals.

Ombudsman v. Vda De Ventura, Nov. 5, 2009

The Court of Appeals has jurisdiction over orders, directives and decisions of the Office of
the Ombudsman in administrative disciplinary cases only. It cannot, therefore, review the orders,
directives or decisions of the Office of the Ombudsman in criminal or non-administrative cases.

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Gatchalian v. Ombudsman, Aug. 1, 2018
The Court thus held that "appeals from decisions of the Office of the Ombudsman in
administrative disciplinary cases should be taken to the Court of Appeals under the provisions of
Rule 43.” Section 27 of Republic Act No. 6770 (R.A. 6770), which provides that all "orders, directives,
or decisions in administrative cases of the Office of the Ombudsman may be appealed to the
Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written
notice of the order, directive or decision or denial of the motion for reconsideration in accordance
with Rule 45 of the Rules of Court," was unconstitutional for it increased the appellate jurisdiction
of the Supreme Court without its advice and concurrence.

Ombudsman vs. Pacuribut, Sept. 26, 2018

The Ombudsman's decision imposing the penalty of suspension for one year is immediately
executory pending appeal. It cannot be stayed by the mere filing of an appeal to the CA.

Republic Act No. 9225 does not recognize dual allegiance

It is clear that the intent of the legislature in drafting Rep. Act No. 9225 is to do away with the
provision in Commonwealth Act No. 63 which takes away Philippine citizenship from natural-born
Filipinos who become naturalized citizens of other countries. What Rep. Act No. 9225 does is allow
dual citizenship to natural-born Filipino citizens who have lost Philippine citizenship by reason of
their naturalization as citizens of a foreign country. (Advocates and Adherents of Social Justice for
School Teachers and Allied Workers [AASJS] vs. Datumanong, May 11, 2007)

Dual Citizens Must Expressly Renounce Foreign Citizenship in Filing Cert. of Candidacy
Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of
Republic Act (R.A.) No. 9225 renders a dual citizen ineligible to run for and thus hold any elective
public office. Unless she executes a sworn renunciation of her Australian citizenship, she is ineligible
to run for and hold any elective office in the Philippines. (Condon v. COMELEC, August 10, 2012)

References:
1. Duka, Cecilio D. Constitutional Law 1, Rex Bookstore 2021
2. Duka, Cecilio D. Constitutional Law 2, Rex Bookstore 2019
3. Duka, Cecilio D. International Law Simplified, Rex Bookstore, 2021

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