LEGISLATIVE DEPARTMENT
Q: What is legislative power?
A: It is the power or competence of the Legislature to propose, enact, amend and repeal laws. It
is vested by the Constitution in the Congress, except to the extent reserved to the people by the
provision on initiative and referendum.
Q: Are there others who can exercise legislative power?
A: Yes. There is what we call as original legislative power which is possessed by the sovereign
power and is based on the power of initiative to make laws reserved by the people in the
Constitution. Section 1 of Article VI of the Constitution denotes that legislative power shall be
exercised by the people as manifested in initiative and referendum.
*Initiative – the power of the people to propose amendments to the Constitution or to propose
and enact legislation through an election called for the purpose
Referendum – the power of the people to approve or reject a piece of legislation (e.g. statute,
resolution, ordinance) through an election called for the purpose
Difference between initiative and referendum – initiative is entirely the work of the electorate
or the people therefore without the participation of Congress while referendum is begun and
consented to by the law-making body and is merely approving or rejecting a piece of legislation.
Q: Can Congress exercise non-legislative power?
A: Yes. The Congress also discharges powers of a non-legislative nature, to wit:
(1) power to canvass the presidential elections;
(2) power to declare the existence of a state of war;
(3) power to give concurrence to treaties and amnesties;
(4) power to propose constitutional amendments or revisions;
(5) power to impeach
Q: What is Bicameral Congress?
A: It is composed of:
1. Senate; and
2. House of Representatives.
Q: What is Senate?
A: It is one of the chambers of Congress and it is composed of twenty-four (24) senators who are
elected at large by the qualified voters of the Philippines, as may be provided by law.
Q: Section 3 ,Art. VI of the Constitution provides that: “The Senate shall be composed of
twenty-four Senators and it is composed of twenty-four senators who shall be elected at
large by the qualified voters of the Philippines, as may be provided by law.” Does this mean
that the number of Senators may be increased by mere legislative enactment because of the
phrase “as may be provided by law?
A: No. The phrase as may be provided by law does not refer to the composition. It refers to the
manner on how the election shall be held or the mechanics for electing the Senators at large,
within the limits provided by the Constitution. Hence, it is only through constitutional
amendment that the number of Senators can be changed.
Q: What are the qualifications of a senator?
A: The following are the qualifications of a senator: (V-N3RY = vaginal entry)
1) Registered Voter;
2) Natural-born citizen of the Philippines;
3) At least thirty-five (35) years of age on the day of the election;
4) Able to Read and write; and
5) Resident of the Philippines for not less than two (2) Years immediately preceding the day
of the election (Sec. 3, Art. VI)
Q: Who is a natural-born citizen?
A: He is a citizen of the Philippines from birth without having to perform any act to acquire or
perfect his/her Philippine citizenship.
Q: What does the 35 year age requirement mean?
A: He must be 35 years old when the polls are opened and the votes are cast, and not on the day
of the proclamation.
Q: What is term of a Senator?
A: The term of a senator is for six (6) years, commencing at noon on the thirtieth (30th) day of
June next following his/her election, provided, that no senator shall serve for more than two (2)
consecutive terms.
Q: How are Senators elected?
A: They are elected at large. Senatorial candidates submit themselves to a vote of the entire
national electorate.
Q: May a person of dual citizenship run for Senate?
A: Yes, because what the law disallows is dual allegiance, which is inimical to national interest.
When a person has dual citizenship, he is a citizen of two different countries by virtue of two
different laws governing in said countries. For example, X has Filipino parents and was born in
the United States. By virtue of jus sanguinis (citizenship by blood), he is a citizen of the
Philippines. But since he was born in the United States, he is also considered as a citizen there
because the United States follows jus soli (citizenship by place of birth). It was never his fault to
be in that kind of situation. What the Constitution abhors is a situation wherein, a Filipino citizen
has made an oath of allegiance with a foreign country and has become a citizen of such country,
yet, maintains his or her Filipino citizenship. (See Edu Manzano Case)
Q: May the Congress provide additional qualifications?
A: No, because the list of qualifications provided in the Constitution is exclusive. Expressio
unius est exclusio alterius. The express mention of one thing excludes all the others.
Q: What is the difference between domicile and residence?
A: For purposes of Political Law, the term “residence” is synonymous with “domicile”. It is the
place where one habitually resides and to which, when he is absent, he has the intention of
returning. It imparts not only intention to reside in a fixed place but also personal presence in that
place adopted with conduct indicative of such intention.
In the case of Romualdez-Marcos vs COMELEC, it was held that:
1) Minor follows domicile of parents.
2) Wife does not automatically gain husband’s domicile.
3) Domicile of origin is lost only when there is:
a) Actual removal or change of domicile;
b) Bona fide intention of abandoning the former residence and establishing a new one;
and
c) Acts which corresponds with the purpose.
Q: In the passage of a bill into law, what do you mean by appropriate committee?
A: It refers to a Senate or House of Representatives specific committee which is tasked to handle
specific issues (e.g. Committee on Accountability, Committee on National Defense and Security,
Committee on Health, Senate Blue Ribbon Committee)
Q: What is apportionment?
A: It is done by the Congress every three (3) years following the return of every census in order
to insure each legislative district is composed of the required number of inhabitants mandated by
the Constitution. It shall be made in accordance with the number of respective inhabitants on the
basis of a uniform and progressive ratio. The Constitution provides that each city with a
population of at least two hundred fifty thousand (250,000), or each province, shall have at least
one (1) representative.
N.B.: If Congress enacts a statute creating for a certain province, let us say, Province Y. Then,
such province by virtue of the abovementioned provision is automatically entitled to one
representative.
Q: What is gerrymandering?
A: It is the creation of representative districts out of separate portions of territory in order to
favor a candidate. This is prohibited under the Constitution because each legislative district shall
comprise, as far as practicable, contiguous, compact and adjacent territory.
Q: What comprises the House of Representatives?
A: Sec. 5 (1), Art. VI provides that the House of Representatives(HOR) shall be composed of not
more than two hundred fifty (250) members, unless otherwise expressly provided by law. The
law referred to in this section is the apportionment law abovementioned. The HOR is composed
of district representatives, party-list representatives and sectoral representatives. (Atty. Bugayong
did not dwell so much on the difference of party-list representatives from sectoral representatives
and how the number of seats allocated for them is computed. This is for another subject, Election
Law)
Q: What are the qualifications?
A: The qualifications of a district representative are as follows:
1) Natural-born Filipino citizen;
2) At the day of election, at least twenty-five (25) years old;
3) Able to read and write;
4) Registered voter; and
5) Resident of the legislative district that he or she wishes to represent for not less than one
(1) year immediately preceding the day of elections.
A: (FUC-R) (Fucker)
(1) Filipino citizen
(2) Marginalized and underrepresented
(3) Lack of well-defined constituencies.
(4) There must be proportional representation
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
Lack of well-defined constituencies refers to the absence of a traditionally identifiable
electoral group, like voters of a congressional district or territorial unit of government. It points
again to those with disparate interests identified with the "marginalized or underrepresented."
(Ang Bagong bayani v. COMELEC)
Justice Leus: “I eexplain ko lang sa tagalog para hindi niyo na imememorize at mas
maintindihan.
Proportional Representation- Ibig sabihin niyo may representation ang mga under
represented, kung saan nationally, may mga members dun. Halimbawa mga matatanda.
Lack of well-defined constituencies – Ibig sabihin nito dapat hindi nakaenclose sa iisang
distrito lang. Kaya nga lack of well-defined constituencies. Halimbawa, mga matatanda, pasok
sila kasi hindi lang naman sa Las Pinas may matatanda. Unlike kapag isa kang Congressman,
ang constitutents mo ay ang nasa iisang distrito lang. Halimbawa nga ay sa Las Pinas lang. Dapat
hindi madefine ung constituencies mo at nagrerefer lang siya depende sa kung anu ang
nirerepresent mo. Halimbawa, Party-list representative ng mga may kapansanan sa bicol. Hindi
pwede dahil may defined constituency, mga nasa bicol.”
Inhibition and Prohibitions
Q: Incompatible office
A: It refers to any other office or employment in the government or any subdivision, agency, or
instrumentality thereof including government-owned-or-controlled corporations (GOCCs) and
their subsidiaries. Members of the Congress cannot hold an incompatible office.
Q: Is the prohibition absolute?
A: No. What is prohibited by the law is the simultaneous holding of the abovementioned office.
Forfeiture of the seat in Congress automatically occurs upon assumption of an incompatible
office.
Purpose: To prevent owing loyalty to other offices. You cannot serve two masters at the same
time.
Q: What is a forbidden office?
A: It is an office which has been created or the emoluments thereof increased during the term for
which a particular member of the Congress was elected. Said member of the Congress cannot
assume such office EVEN AFTER finishing his term. The prohibition is absolute in case of
forbidden offices.
Purpose: To prevent trafficking in public office. These are offices that would ensure a senator to
a public office after the termination of his tenure.
Q: What is the prohibition against personally appearing as a counsel?
A: (1) Not to personally appear as counsel before any court; (2) not to be directly, or indirectly,
interested financially in any contract with, or any franchise or special privilege granted by the
Government; (3) not to intervene in any matter before any office of the Government for his
pecuniary benefit or where he may be called upon to act on account of his office. (Section 14,
Article VI)
Exception: agent; firm
Q: What are the legislative privileges?
A:
(1) Privilege from arrest; and
(2) Privilege of speech and debate.
Q: What is privilege from arrest?
A: (Sec. 11) A Senator or Member of the House of Representatives shall, in all offenses
punishable more than six years imprisonment, be privileged from arrest while the Congress is in
session. No Member shall be question nor held liable in any other place for any speech or debate
in the Congress or in any committee thereof.
Ratio: To ensure representation of the constituents of the members of Congress by preventing
attempts to keep him from attending the session
Such immunity may be availed of when Congress is in session, whether regular or special
and whether or not such legislator is actually attending a session.
Q: What is privilege of speech and debate?
A: Privilege of speech and debate- Ratio: To enable a legislator to express views bearing upon
the public interest without fear of accountability outside the halls of the legislature for his
inability to support his statements with the usual evidence required in the courts of justice.
Requirements for privilege of speech:
1.) The remarks must be made while the legislature or the legislative committee is
functioning (in session);
2.) They must be made in connection with the discharge of official duties.
**Privilege of speech is not absolute since he may be called to account for his remarks by his
colleagues in the Congress itself or punished for “disorderly behaviour”.
Justice Leus: Where does the power of Congress come from? Ibig sabihin paano nakuha yung
power na yun. Section 11 Art. 6 No member shall be questioned nor be held liable in any other
place for any speech or debate in the Congress or in any committee thereof.
**The phrase in any other place means that a member of the legislature cannot be made liable in
places other than Congress. Hence, it is only in Congress that its members can be punished.
NOTE: Two privileges are not available while the Congress is in recess.
Is intended to leave legislator unimpeded in the performance of his duties and free from fear of
harassment from outside.
Session- refers to the entire period from its initial convening until its final adjournment.
Final adjournment- this is the 30 days before the opening of next session.
Adjournment - The dismissal by court, legislative assembly or properly authorize officer, of the
business before them. To meet again another time appointed.
Q: When is the court in session?
A: (Sec. 15) Congress shall convene once every year on July 4 for its regular session, unless a
different date is fixed by law, and shall continue to be in session until such number of days as
may be determined by law until 30 days before the opening of the next regular session, exclusive
of Sat, Sun, and legal holidays.
President may call for a special session anytime.
Q: Can the privileges be applicable outside the session hall?
A: No. No member shall be questioned XXX for any speech or debate in Congress or in any
committee thereof. Based from this codal provision, the speech which is considered privileged is
one which is made inside the halls of Congress.
Q: When is there a regular session?
A: A regular session convenes on the 4th Monday of July until 30 days before the opening of the
next regular session.
Q: What is a special session?
A: A special session is one called by the President while the legislature is in recess.
Q: What is mandatory recess?
A: A mandatory recess is prescribed for the thirty-day period before the opening of the next
regular session, excluding Saturdays, Sundays and legal holidays.
Q: What is a quorum?
A: Any number sufficient to transact business (Javellana vs Tayo)
Q: Discipline of Members (Osmena vs Pendatun)
A: Rules of proceedings are within the discretion of each house to formulate, unless it violates
fundamental or individual rights.
There must be a concurrence of two thirds of all the members in suspending or expelling a
member.
Suspension must not be for more than 60 days.
Other modes of disciplinary measure are; deletion of unparliamentary remarks from the record,
fine, imprisonment and censure (Soft impeachment)
Disorderly behaviour- is the prerogative of the congress and cannot as a rule be judicially
reviewed.
Q: What is a journal?
A: It is a record of what is done and passed in a legislative assembly. It does not include those
which may affect national security, in the judgment of each House of Congress. The journal is
only a resume or the minutes if what transpired during a legislative session.
Q: Matters which under the Constitution are to be entered in the journal
A: (1) yeas and nays on 3rd and final reading of a bill; (2) veto message of the President; (3) yeas
and nays on the repassing of a bill vetoed by the President; (4) yeas and nays on any question at
the request of 1/5 of members present.
Q: What is an enrolled bill?
A: It is a final copy of the bill which, after both Houses have given final approval to a bill, shall
be printed, and certified as correct by the Secretary of the Senate and the Secretary General of
the House of Representatives. After which, it will be signed by the Speaker of the House and the
Senate President.
Q: Can the proper officers revoke their signatures in the enrolled bill?
A: Yes. It is only for the purpose for the authenticity of the bill, that is, that it has passed the
proper procedures.
Q: If there is a discrepancy between an enrolled bill and Journal, which would prevail?
A: In case of discrepancy between the two, the enrolled bill shall prevail.
Individual statements made by Members of the House, which are documented in the Journal, do
not necessarily reflect the view of the House. The enrolled bill is conclusive upon the courts as
regards the tenor of the measure passed by Congress and approved by the President. If there has
been any mistake in the printing of a bill, the remedy is by amendment or curative legislation,
not by judicial decree.
Q: What is Electoral Tribunal
A: (sec. 17) The Senate and the HOR shall each have an Electoral Tribunal which shall be the
sole judge of all contests relating to the election, returns, and qualifications of their respective
members.
Composition:
 3 SC Justices designated by CJ, the senior justice shall be the chairman
 6 members of the house, chosen on the basis of proportional representation from the
political parties registered.
Q: Electoral Tribunal v. COMELEC
A: Electoral Tribunal governs electoral protest against a candidate after his/her confirmation to a
respective position, while COMELEC take jurisdiction on election dispute prior being elected.
Election contest – relates only to statutory contest
Q: Congressman himself is being questioned, is he required to resign?
A: No, question lang naman eh bakit ka magreresign. Ahihihi
Q: What is Commission on Appointment (COA)
A: COA is a creature of the constitution which is executive in nature
(sec.18) There shall be a Commission on Appointments consisting of:
1.) Senate President (Chairman)
2.) 12 senators
3.) 12 members of HOR
**Senators and HOR shall be elected according to proportional representation
**Chairman will only vote if there is a tie
Q: What are the functions of COA?
A: acts as legislative check on the appointing authority of the President. For the effectively of the
appointment of key officials enumerated in the constitution, the consent of the commission on
appointments is needed.
Commission must act on the commission within thirty session days from their submission. This
is to prevent freezing appointments.
Ad interim appointments not acted upon at the time of adjournment of Congress even if the thirty
day period has not yet expired shall be deemed by-passed.
Q: What are the powers of Congress?
A: Legislative power
a. General plenary power
b. Specific power of appropriation
c. Taxation and expropriation
d. Legislative Investigation
e. Question hour
Non-legislative
a. Power to cavass
b. To declare the existence of state of war.
c. To give concurrence to treaties and amnesties
d. To propose amendments and to impeachment.
e. etc.
Q: What is the legislative power?
A: the power of law making, the framing and to enact, amend and repeal of laws. The power to
make laws includes the power to alter and repeal them.
Q: To whom is vested the legislative power?
A: (Sec.1) The legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of representatives, EXCEPT to the extent reserved the people by
the provision on initiative and referendum; (Sec. 32) “… whereby the people can directly
propose and enact laws or approve or reject any act of law or part thereof …“
Q: What is a bill?
A: A bill is a general measure, which if passed upon by Congress, becomes a law. It is an
incipient statute.
*incipient – beginning to come into being or to become apparent
Q: What are the bills exclusive in HoR? (APRIL)
A:
 Appropriation Bill – general or specific purposes;
 Private Bill - franchise;
 Revenue or Tariff Bill – taxes and Rate/duties;
 Bills authorizing increase in public debts - bonds;
 Bills of local application – purely local or municipal concern
Q: Why are these exclusive in the HoR?
A: Its members are presumed to be more familiar with the needs of the country in regard to the
enactment of the legislation involved.
Q: What is the process of passing of bill?
A:
 Introduction of Bill
 File in the dockets section (either from Senate/HR)
 1st reading -Reading of the number and title of the bill; the bill may be “killed” by the
committee or it may be recommended for approval
 2nd reading – reading entirely, scrutinized and debate.
 3rd reading - register their votes by yeas and nays
 Transfer to the other house which will under-go the same readings: 1st. 2nd, 3rd
 Bicameral Conference Committee shall harmonize, if any, the difference from the both
houses. Jurisdiction of the ConCom is not limited to resolving differences between both
versions of the bill. It may propose an entirely new provision.
Approval or Authentication by the President and return to the House where the bill
originated; the president may veto the bill for changes or suggestions.
Q: The bill should embrace the principle of “One title, one subject rule”, why?
A: (1) to prevent Hodgepodge or log rolling legislation –“any act containing several subject with
unrelated matters representing diverse interest.”
(2) to prevent fraud or surprise upon the legislative by means of provisions in bills which the title
gave no information and which might therefore be overlooked and carelessly/ unintentionally
adopted.
(3)To fairly appraise the people through such publication of legislative proceedings
Q: What are the substantive limitations of a bill
A: Ex post facto law; Bill of attainder; Impairment of contract; passage of irrepealable law.
Q: What is the most important stage? 1st, 2nd, or 3rd Reading?
A: It is the 1st Reading. The First Reading is the longest in time. Real examination happens in the
referral to the appropriate Committee. The bill may already be killed during the First Reading.
Thus, there would be no more Second Reading to speak of.
Q: What are the characteristics of ex post facto laws?
A:
1. Law makes criminal an act done before the passage of the law and which was innocent
when done, and punishes such act.
2. Law which aggravates a crime, makes it greater than it was
3. Law which changes the punishment and inflicts a greater punishment
4. Law which alters the legal rules of evidence, authorizes conviction upon less or different
testimony than the law required at the time of commission of offense.
5. Law which assumes to regulate civil rights and remedies only, but in effect imposes
penalty or deprivation of a right for something which when done was lawful
6. Law which deprives a person accused of a crime of some lawful protection to which he
has become entitled.
Q: What is pocket veto?
A: It is one in which the President does not act on a bill passed by Congress resulting in the
disapproval of the bill. It is not allowed under the Constitution. If the President does not
communicate his veto within thirty (30) days after the date of receipt of a bill, it shall become a
law as if he had signed it. (Section 27 (1), Article VI)
Q: What is an item?
A: refers to the particulars, the details, the distinct and severable parts of the bill.
Q: What is the power of Appropriation/ Appropriation Law?
A: Spending power called the “power of the purse” belongs to Congress subject only to the veto
power of president. A statute, primarily and specific purpose of which is to authorize the release
of public funds from the treasury.
Q: What are the limitations of appropriation?
A: Implied Limitation: (1) devoted to public purpose; (2) Sum authorized to be released must be
determinate or at least determinable.
Constitutional Limitation: (1) Congress may not increase the appropriations recommended by the
president ; (2) the form, content, and manner shall be prescribed by law; (3) Particular
operations; (4) procedure for approving appropriations for congress shall strictly follow the
procedure for approving appropriations for other departments and agencies; (5) doctrine of
Augmentation; (6) prohibition against sectarian benefit; (7) Automatic re-appropriation
Q: What is “sub-rosa appropriation”?
A: It is an appropriation in which the public is unable to ascertain the purposes and exact
amounts of the outlay for the operations of the Congress and the allowances of its Members
because these were agreed upon among themselves only. “Subrosa” is a Latin term which means
“secretly”. “Sub” means under and “rosa” refers to roses which, in olden times, stood as a
symbol of secrecy or silence.
Q: Legislative Investigation v. Question Hour
A:
Note: IAL is mandatory because refusal of such could hold a person in contempt, which is
punishable.
Limitations of IAL:
(1) in aid of legislation; (2) in accordance with duly published rules of procedure; (3) rights
of persons appearing in or affected by such inquiry shall be respected.
EXECUTIVE DEPARTMENT
Q: To whom the executive power vested
A: (Art.7 Sec.1) The executive power shall be vested in the president
Q: What is the executive power?
A: The power to enforce and administer laws
Q: Qualifications of a President
A: (sec.2)
 Natural born citizen of the Phil.
 Registered voter
 Able to read and write
 At least 40 years of age at the day of election
 Resident of the Phil of at least 10 years immediately preceding the next election
Q: Who is a natural born citizen?
A: one who is a citizen of the Philippines from birth without having any act to acquire perfection
to his citizenship
Q: who is a naturalized citizen?
A: acquire citizenship after birth through any modes allowed by law
Q: What is an executive privilege?
A: Case of David vs Arroyo. (Ilagay niyo yung ruling dito)
Q: How is the President elected?
A: Through direct vote of the people
Q: Term of Pres.
A: 6 years
Q: What are the powers of Vice-President?
A: He will assume the presidency in case the president is unable to discharge the functions of his
office. He can also appointed as a member of the cabinet. Such appointment does not need
confirmation from the Commission on Appointments.
Q: What are the privileges of the President?
A: Immunity from suit – immune from civil liability (Estrada v Desierto)
Q: Question hour vs. Inquiry on aid of legislation.
A: Question hour is enshrined in Section 22, Article VI of the Constitution. It is an exercise of
the legislature’s oversight function. It covers department heads only and their attendance is
merely discretionary. On the other hand, inquiry in aid of legislation is enshrined in Section 21,
Article VI. It covers not only department heads but all individuals who can provide vital pieces
of information to the Congress which can be used in making laws. The attendance of persons in
inquiries in aid of legislation is mandatory because it goes to the very heart and soul of the work
of Congress. Without which, the Congress cannot perform its primary duty of making laws.
Q: What are the requirements for executive privilege?
A: Senate vs. Ermita
Q: What are the prohibitions of the president?
A:
1. Not receive any other emoluments from the government or nay other sources;
2. Not hold any or office or employment, unless provided in this Constitution;
3. Not directly or indirectly practice any other profession, participate in any business or be
financially ; Interested in any contract, franchise or special privilege.
4. Strictly avoid conflict of interest in the conduct of their office;
5. May not appoint spouse or relatives by consanguinity or affinity within the fourth civil degree
as members of constitutional commissions, office of the ombudsman, secretaries,
undersecretaries, chairman/head/bureaus/offices/GOCCs/Subsidiaries;
Q: What are the powers of the President?
A:
1. Executive Power
2. Power of Appointment
3. Power of Control
4. Military Powers
5. Pardoning Power
6. Borrowing Power
7. Diplomatic Power
8. Budgetary Power
9. Informing Power
10. Others
a. Call Congress to special session
b. Power to approve or veto bills
c. Consent to deputation of government personnel by COMELEC
d. Discipline such deputies
e. Emergency powers, by delegation from Congress
f. General supervision over LGs and autonomous regional governments.
(Justice Leus: Laging tandaan, may tinatawag tayong residual power of the President.)
Justice Leus again: The President, upon whom the executive power is vested, has unstated
residual powers other than those expressly stated in the Constitution and which are implied from
the grant of executive power and which is necessary for her to comply with the duties of the
Constitution. The powers of the President are not limited to what are expressly enumerated in the
article on the Executive Department and in the scattered provisions of the Constitution. (Marcos
vs ManglapuS)
Justice Leus ulit: Tandaan ulit! All powers that are neither Legislative or Judicial are presumed
to be Executive.
Q: What is the appointing power?
A: It is the selection, by the authority vested with power, of an individual who is to exercise the
function of a given office.
Q: Who can be appointed by the president?
A:
1. The heads of the executive departments (requires confirmation from the COA)
2. Ambassadors, other public ministers and consuls. (requires confirmation from the COA)
3. Officers of the armed forces from the rank of colonel or naval captain (requires confirmation
from the COA)
4. Those other officers whose appointments are vested in him by the Constitution. (requires
confirmation from the COA)
5. All other officers of the government whose appointments are not provided for by law (NO
confirmation from the COA)
6. Those whom he may be authorized by law to appoint. (NO confirmation from the COA)
Q: What are the usual steps in the appointing process?
A:
1. Nomination, which is made by the president
2. The confirmation, which is the prerogative of the Commission on Appointment and the
issuance of the commission done by the President
3. The issuance of the commission, also done by the President.
(This is only when the appointment is regular)
Q: What is ad interim appointment?
A: It is made during the recess and becomes effective then, subject to confirmation or rejection
later, during the next legislative session.
Q: What are the differences of regular and ad interim appointment?
A:
1. Regular appointment is made during the legislative session; ad interim appointment is made
during the recess
2. The regular appointment is made only after the nomination is confirmed by the commission on
appointments; the ad interim appointment is made before such confirmation
3. The regular appointment, once confirmed by the commission on appointment, continues until
the end of the term of the appointee; ad interim appointment shall cease to be valid if
disapproved by the commission on appointments or upon the next adjournment of the congress.
Q: What is the purpose of ad interim appointment?
A: It is intended to prevent a hiatus in the discharge of official duties.
Q: Can the congress limit the President’s power of appointment?
A: Yes, by prescribing qualifications for public office.
Q: What is the concept of removal power?
A:
The President possesses the power of removal by implication from other powers expressly vested
in him.
1. It is implied from his power to appoint
2. Being executive in nature, it is implied from the constitutional provision vesting the executive
power in the President.
3. It may be implied from his function to take care that laws be properly executed; for without it,
his orders for law enforcement might not be effectively carried out.
4. The power may be implied from the President’s control over the administrative departments,
bureaus, and offices of the government. Without the power to remove, it would not be always
possible for the President to exercise his power of control.
Q: Is the removal powers of the president absolute?
A: As a general rule, the power of removal may be implied from the power of appointment.
However, the President cannot remove officials appointed by him where the Constitution
prescribes certain methods for separation of such officers from public service, e.g., Chairmen
and Commissioners of Constitutional Commissions who can be removed only by impeachment,
or judges who are subject to the disciplinary authority of the Supreme Court. In the cases where
the power of removal is lodged in the President, the same may be exercised only for cause as
may be provided by law, and in accordance with the prescribed administrative procedure.
Members of the career service. Members of the career service of the Civil Service who are
appointed by the President may be directly disciplined by him. (Villaluz v. Zaldivar) provided
that the same is for cause and in accordance with the procedure prescribed by law.
Members of the Cabinet. Members of the Cabinet and such officers whose continuity in office
depends upon the President may be replaced at any time. (Legally speaking, their separation is
effected not by removal but by expiration of term.) (See Alajar v. CA)
Q: To what extent is the removal power?
A:
(1) Officers exercising purely executive functions where tenure is not fixed by law. (members of
the cabinet;
(2) officers exercising quasi-legislative (members of SEC);
(3) Removal only by impeachment;
(4) civil service officers – remove only for cause as provided by law.
Q: What is the Power to Control?
A: (sec.17) President shall have control of all: Executive Departments, Bureaus, Offices.
Control – power of an officer to alter, modify, set aside, or nullify what a subordinate had
done in the performance of his duties and to substitute the judgment of the former for that of the
latter.
Supervision – “overseeing or the power or authority of an officer to see that subordinate
officers perform their duties, and if the latter fail or neglect to fulfil them, then the former may
take such action or steps as prescribed by law; To ensure that the laws have been faithfully
executed.
Q: Control over what?
A: The power of control is exercisable by the President over the acts of his subordinates and not
necessarily over the subordinate himself. (Ang-angco v. Castillo) It can be said that the while the
Executive has
control over the “judgment” or “discretion” of his subordinates, it is the legislature which has
control over their “person.”
Q: Doctrine of Qualified Political Agency
A: All executives and administrative organizations are adjuncts of the Executive department; the
heads of the various executive departments are assistant and agent of the Chief Executive; and
the acts of the secretaries, performed and promulgated in the regular course of business are,
unless disapproved or probated are presumptively the acts of the Chief Executive.
Q: Military powers:
A: (sec.18) Section 18 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
the privilege of the writ of habeas corpus, and the power to declare martial law. (Sanlakas v.
Executive Secretary)
The power of the sword makes the President the most important figure in the country in times of
war or other similar emergency.336 It is because the sword must be wielded with courage and
resolution that the President is given vast powers in the making and carrying out of military
decisions.
The military power enables the President to:
1. Calling out power: Command all the armed forces of the Philippines;
Conditions:
(a) actual invasion or rebellion;
(b) public safety requires it .
**The only criterion is that “whenever it becomes necessary”
CASE: DAVID VS GMA
2. Suspend the privilege of the writ of habeas corpus
Grounds for suspension: invasion or rebellion, when public safety requires it.
Effects:
(a) proclamation does not affect the right to bail
(b) applies only to persons facing charges of rebellion
(c) persons arrested must be charged within 3 days; if not, they must be released
(d) Proclamation does not supersede civilian authority.
3. Declare martial law; What is martial law?
Grounds for declaration: Invasion or rebellion
Effects:
(a) does not suspend operation of the Constitution
(b) does not supplant the functioning of civil courts or legislative assemblies
(c) does not authorize conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function
(d) does not automatically suspend the privilege of the writ.
Q: Limitations of Military Power
A:
(1) He may call out the armed forces to prevent or suppress lawless violence, invasion or
rebellion only.
(2) The grounds for the suspension of the privilege of the writ of habeas corpus and the
proclamation of martial law are now limited only to invasion or rebellion.
(3) The duration of such suspension or proclamation shall not exceed sixty days, following which
it shall be automatically lifted.
(4) Within forty-eight hours after such suspension or proclamation, the President shall personally
or in writing report his action to the Congress. If not in session, Congress must convene within
24 hours.
(5) The Congress may then, by majority votes of all its embers voting jointly, revoke his action.
The revocation may not set aside by the President.
(6) By the same vote and in the same manner, the Congress may, upon initiative of the President,
extend his suspension or proclamation for a period to be determined by the Congress if the
invasion or rebellion shall continue and the public safety requires extension.
(7) The action of the President and the Congress shall be subject to review by the Supreme Court
which
shall have the authority to determine the sufficiency of the factual basis of such action. This
matter is no longer considered a political question and may be raised in an appropriate
proceeding by any citizen. Moreover, the Supreme Court must decide the challenge within thirty
days from the time it is filed.
(8) Martial law does not automatically suspend the privilege of the writ of habeas corpus or the
operation of the Constitution. The civil courts and the legislative bodies shall remain open.
Military courts and agencies are not conferred jurisdiction over civilians where the civil courts
are functioning.
(9) The suspension of the privilege of the writ of habeas corpus shall apply only to persons
facing charges of rebellion or offenses inherent in or directly connected with invasion.
(10) Any person arrested for such offenses must be judicially charged therewith within three
days. Otherwise shall be released.
Q: Way to lift the proclamation or suspension?
A: (a) lifting by the President himself
(b) Revocation by Congress
(c) Nullification by the Supreme Court
(d) By operation of law after 60 days
The distinction must be drawn between the Presidents’ authority to declare “a state of national
emergency” and to exercise emergency powers. The exercise of emergency powers, such as
taking of privately-owned public utility or business affected with public interest under Art. 12
sec. 17, requires a delegation from Congress (David v. Arroyo)
Q: What is Pardoning power?
A: (Sec.19) except in cases of impeachment, or as otherwise provided in this Constitution, the
president may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.
“He shall also have the power to grant amnesty with the concurrence of a majority of all
the Members of the Congress.”
Q: What are the acts of clemency?
A:
(1) Pardon – act of grace which exempts the individual from punishment that the law inflicts
upon the crime he has committed.
(2) Commutation – reduction or mitigation of penalty
(3) Reprieve – postponement of sentence/ stay of execution
(4) Parole – release from imprisonment but still in custody of law although not in confinement
(5) Amnesty – act of grace, with concurrence of legislature, usually extended to group of puts
into oblivion the offense itself
** Discretionary exercise by the President
** Cannot be controlled by the legislature or reversed by courts unless there is a
constitutional violation.
Limitations:
1. Cannot be granted in cases of impeachment
2. Cannot be granted in cases of violation of election offenses without favourable
recommendation of COMELEC
3. Cannot be granted in cases of legislative contempt or civil contempt
4. Cannot absolve civil liability
5. Cannot restore public offices forfeited
Exceptions: On consideration of justice and equity, entitled to reinstatement
6. Only after conviction of final judgement
Q: What are the effects of pardon?
A:
1. Removes penalties and disabilities and restores him to his full civil and political rights.
2. It does not discharge the civil liability.
3. It does not restore offices, property or rights vested in other in consequence at the conviction.
Q: What are the classification of pardon?
A:
1. Plenary- Extinguish all the penalties imposed upon the offender, including accessory
disabilities
2. Partial- Does not extinguish the penalties imposed
3. Absolute pardon- is one extended without any strings attached, so to speak. The pardonee has
no option at all and must accept it whether he likes it or not.
4. Conditional Pardon- Is one under which the convict is required to comply with certain
requirements. The offender has the right to reject it since he may feel that the condition imposed
is more onerous than the penalty sought to be remitted.
Q: What is borrowing power?
A: According to section 20. The President may contract or guarantee foreign loans on behalf of
the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to
such limitation as may be provided by law.
Q: What is diplomatic power?
A: According to section 21. No treaty or international agreement shall be valid and effective
unless concurred in by at least 2/3 of all the members of the senate.
Q: What is budgetary power?
A: According to section 22. The President shall submit to the Congress within 30 days from the
opening of every regular session, as the basis of the general appropriation bill, a budget of
expenditures and sources of financing, including receipts from existing and proposed revenue
measures.
Q: What is informing power?
A: According to section 23. The President shall address the Congress at the opening of its regular
session. He may also appear before it any other time.
SUPPLEMENTAL NOTES
Limpot Notes in Constitutional Law 1
Executive Department and Powers of the President
Q: What are the prohibitions/inhibitions applicable to the President?
A: 1. Prohibition against the change of the President’s salary either by reduction or increase
during his/her term
- “The salaries of the President and Vice-President shall be determined by law and shall
not be decreased during their tenure. No increase in said compensation shall take effect
until after the expiration of the term of the incumbent during which such increase was
approved.” (Art. VII, Sec. 6)
2. Prohibition against receiving emoluments from the government or any other source during
the President’s tenure
- emolument – refers to any compensation received for services rendered or from possession
of an office
- This means that the President cannot accept other employment elsewhere, whether in the
government or in the private sector, and must confine himself/herself to the duties of his/her
office. (Note that the Vice-President may be appointed to the Cabinet but he/she may not
receive additional compensation in his/her capacity as Member of the Cabinet because of the
ABSOLUTE prohibition in Art. VII, Sec. 6.
3. Prohibition against holding any other office or employment during his/her tenure
- “The President, Vice-President, the Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution, hold any other office or employment
during their tenure.” (Art. VII, Sec. 13)
- This inhibition is in line with the principle that a public office is a public trust and should
not be abused for personal advantage.
- - Except for the Vice-President who may be appointed to the Cabinet, and the Secretary of
Justice who is made ex officio member of the Judicial and Bar Council, the officials
enumerated in Section 13 may not hold another office. But they may be given additional
functions which are intimately related to their primary office. Such conferment of additional
functions does not constitute a new appointment. Congress may increase the power and
duties of an existing office without thereby rendering it necessary that the incumbent should
again be nominated and appointed. Incidentally, when an Undersecretary sits for a Secretary
in a function for which the Secretary may not receive additional compensation, the
prohibition on the Secretary also applies to the Undersecretary. It should also be noted that
the stricter prohibition is imposed on “Members of the Cabinet”. It therefore applies not just
to department secretaries, but to anyone who is a Member of the Cabinet even if he/she is not
a head of a department.
4. Prohibition against practicing any other profession, participating in any business, or being
financially interested in any contract with, or in any franchise, or special privilege granted by
the Government
- “They shall not, during said tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.” (Art.
VII, Sec. 13)
- This will discontinue the lucrative practice of Cabinet members occupying seats in the
boards of directors of affluent corporations owned or controlled by the government from
which they derive substantial income in addition to their regular salaries.
- Prohibited participation in a contract with the government can include being a member of a
family corporation which has dealings with the government
- Reasons for the prohibition:
(1) to avoid conflict of interest; and
(2) to force the officials to devote full time to their official duties.
5. Prohibition against nepotism
- “The spouses and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not during his tenure be appointed as Members of the Constitutional
Commission, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen
or heads of bureaus or offices, including government-owned or controlled corporations and
their subsidiaries.” (Art. VII, Sec. 13)
- This is essentially an anti-nepotism provision which even in statutes normally goes up to
the fourth degree of consanguinity or affinity. If fourth degree relatives, however, are already
in office when a President assumes office, the relatives are not thereby ousted from their
positions. What is prohibited is appointment or reappointment and not uninterrupted
continuance in office.
6. Prohibition against conflict of interest
- “They shall strictly avoid conflict of interest in the conduct of their office.” (Art. VII, Sec.
13)
*Beyond the constitutional prohibitions there also is the rule on incompatible offices. Thus,
since the Chief Presidential Legal Counsel has the duty of giving independent and impartial
legal advice on the actions of the heads of various executive departments and agencies and to
review investigations involving other presidential appointees, he may not occupy a position
in any of the offices whose performance he must review. Such would involve occupying
incompatible positions. Thus, he cannot be Presidential Commission on Good Government
(PCGG) Chairman and at the same time head of the PCGG since the PCGG answers to the
President.
Q: What is a Cabinet?
A: It is an extra-constitutionally created institution which essentially consists of the heads of
departments who through usage have formed a body of presidential advisers who meet regularly
with the President. Although they are the principal officers through whom the President executes
the law, the President, through his/her power of control over them and his/her power to remove
them at will, remains the chief of administration. Cabinet members as individuals and the
Cabinet as institution possess no authority over the President. They serve at the behest and
pleasure of the President.
Q: What do you mean by ex-officio?
A: The term ex-officio means “from office; by virtue of office.” It refers to an “authority derived
from official character merely, not expressly conferred upon the individual character, but rather
annexed to the official position.” Ex-officio likewise denotes an “act done in an official character,
or as a consequence of office, and without any other appointment or authority than that conferred
by the office.” An ex-officio member of a board is one who is a member by virtue of his title to a
certain office, and without further warrant or appointment. (Example: By express provision of
law, the Secretary of Transportation and Communications is the ex-officio Chairman of the
Board of the Philippine Ports Authority, and the Light Rail Transit Authority.
The prohibition against holding any other office must not be construed as applying to posts
occupied by the executive officials without additional compensation in an ex-officio capacity as
provided by law and as required by the primary functions of the said official’s office. The reason
is that the posts do not comprise “any other office” within the contemplation of the constitutional
prohibition, but properly an imposition of additional duties and functions on said officials. To
illustrate, the Secretary of Transportation and Communications is the ex officio Chairman of the
Board of Philippine Ports Authority. The ex officio position being actually and in legal
contemplation part of the principal office, it follows that the official concerned has no right to
receive additional compensation for his services in said position. The reason is that these services
are already paid for and covered by the compensation attached to the principal office. (National
Amnesty Commission v. COA, 2004)
Q: Distinguish executive privilege (presidential immunity from suit) from legislative
privilege (privilege from arrest and privilege of speech and debate).
A: The President is immune from suit during his/her tenure while Congressmen have the
privilege from arrest and the privilege of speech and debate while the Congress is in session.
The Constitution does not expressly provide for the immunity of the President. It is a necessary
corollary of the fact that in a presidential system, the presidency includes many other functions
than just being executive. The president is the [symbolic and] ceremonial head of the
government of the [Philippines].
*session – refers to the entire period from the Congress’ initial convening until its final
adjournment
Rules on Immunity during Tenure
1. The President is immune from suit during his/her tenure.
2. An impeachment complaint may be filed against the President.
3. The President may not be prevented from instituting suit.
4. The President may waive the presidential immunity.
5. Heads of departments cannot invoke the presidential immunity.
Rules on Immunity after Tenure
Once out of office, even before the end of the six year term, immunity for non-official acts is
lost. Such was the case of Joseph Estrada. (See Bernas Commentary, p 804 (2003 ed.) It could
not be used to shield a non-sitting President from prosecution for alleged criminal acts done
while sitting in office. (Estrada v. Disierto; See Romualdez v. Sandiganbayan)
Note: In David v. Arroyo, the Court held that it is improper to implead President Arroyo as
respondent. However, it is well to note that in Rubrico v. Arroyo, Min. Res., GR No, 180054,
October 31, 2007, the Supreme Court ordered the respondents, including President Arroyo, to
make a return of the writ: “You, respondents President Macapagal Arroyo….are hereby required
to make a return of the writ before the Court of Appeals…”
Reasons for the Presidential Immunity
1. Separation of powers
- The separation of powers principle is viewed as demanding the executive’s independence from
the judiciary, so that the President should not be subject to the judiciary’s whim.
2. Public convenience
- By reason of public convenience, the grant is to assure the exercise of presidential duties and
functions free from any hindrance or distraction, considering that the Chief Executive is a job
that, aside from requiring all of the office-holder’s time, also demands undivided attention.
(Soliven v. Makasiar)
* “The President during his tenure of office or actual incumbency, may not be sued in ANY civil
or criminal case. It will degrade the dignity of the high office of the President, the Head of State,
if he can be dragged into court litigations while serving as such.” (David vs. Ermita)
Q: What is executive power?
A: It is the power to enforce and administer the laws.
Q: To whom is executive power vested?
A: It is vested in the President of the Philippines.
Q: What are the characteristics of executive power?
A: It is plenary and complete.
Q: What are the powers of the president (powers vested by the Constitution)?
A: (1) Appointing power
(2) Removal power
(3) Control power
(4) Power to take care that the laws be faithfully executed
(5) Military power
(6) Pardoning power
(7) Borrowing power
(8) Diplomatic power
(9) Budgetary power
(10) Informing power
(11) Other powers – power to call the Congress to special session, power to approve or veto
bills, power to consent to the deputization of government personnel by the Commission on
Elections and to discipline its deputies, power to exercise emergency and tariff powers
Q: What are those powers of the President not vested by the Constitution?
A: Residual powers which are those which are implicit in and correlative to the paramount duty
residing in that office to safeguard and protect general welfare. (See the case of Marcos vs.
Manglapus)
Q: What is the appointing power?
A: Appointment is the selection, by the authority vested with the power, of an individual who is
to exercise the functions of a given office.288 It is distinguished from designation in that the
latter simply means the imposition of additional duties, usually by law, on a person already in the
public service. It is also different from the commission in that the latter is the written evidence of
the appointment.
Q: What are the limitations on the appointing power?
A:
Section 14. Appointments extended by an Acting President shall remain effective, unless
revoked by the elected President within ninety days from his assumption or reassumption of
office.
Section 15. Two months immediately before the next presidential elections and up to the end of
his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety.
Special Limitations
1. (Anti-Nepotism Provision) The President may not appoint his spouse and relatives by
consanguinity or affinity within the fourth civil degree as Members of the Constitutional
Commission, as Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of Bureaus
or offices, including government owned-or-controlled corporations. (Section 13)
2. Appointments extended by an acting President shall remain effective unless revoked by the
elected President within 90 days from his assumption of office. (Section 14)
3. (Midnight Appointments) Two months immediately before the next presidential elections and
up to the end of his term, a President or acting President shall not make appointments except for
temporary appointments to executive positions when continued vacancies therein will prejudice
public service or endanger public safety. (Section 15)
4. The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until disapproval
by the CA or until the next adjournment of Congress. (Section 16 par. 2)
Rule [Section 15] applies in the appointments in the Judiciary. Two months immediately
before the next presidential elections and up to the end of his term, a President or Acting
President shall not make appointments, except temporary appointments to executive positions
when continued vacancies therein will prejudice public service or endanger public safety. Since
the exception applies only to executive positions, the prohibition covers appointments to the
judiciary.305 During this period [2 months immediately before the next presidential elections…],
the President is neither required to make appointments to the courts nor allowed to do so. Section
4(1) and 9 of Article VIII simply mean that the President is required by law to fill up vacancies
in the courts within the same time frames provided therein unless prohibited by Section 15 of
Article VII. While the filing up of vacancies in the judiciary is undoubtedly in the public interest,
there is no showing in this case of any compelling reason to justify the making of the
appointments during the period of the ban. (In Re Appointment of Mateo Valenzuela, 1998)
Provision applies only to presidential appointments. The provision applies only to presidential
appointments. There is no law that prohibits local executive officials from making appointments
during the last days of their tenure. (De Rama v. CA)
Other Limitations:
1. The presidential power of appointment may also be limited by Congress through its power to
prescribe qualifications for public office.
2. The judiciary may annul an appointment made by the President if the appointee is not
qualified or has not been validly confirmed.
Q: Is the appointing power vested exclusively in the Executive Department?
A: No. The Legislature and the Judiciary can also appoint but only over their own personnel, that
is, within their department.
Q: Who among those appointed do not need confirmation from the Commission on
Appointments?
A: Other officers lower in rank (Art. VII, Sec. 16, third sentence of first paragraph)
Significance of the phrase “the President alone”. Alone means to the exclusion of the courts,
the heads of departments, agencies, commissions or boards. Appointing authority may also be
given to other officials. Thus, Section 16 says: “The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the courts, or in the heads
of departments, agencies, commissions, or boards.” In Rufino vs. Endriga this was interpreted to
mean that, when the authority is given to collegial bodies, it is to the chairman that the authority
is given. But he can appoint only officers “lower in rank,” and not officers equal in rank to him.
Thus a Chairman may not appoint a fellow member of a Board. (SEE SARMIENTO VS.
MISON FOR SIGNIFICANCE OF THE WORD “ALONE”)
Q: Who need consent from the Commission on Appointments?
A:
1. Heads of executive departments
2. Ambassadors, other public ministers and consuls
3. Officers of the armed forces from rank of colonel or naval captain
4. Those other officers whose appointments are vested in him in the Constitution. (Sarmiento v.
Mison) (Note: Although the power to appoint Justices, judges, Ombudsman and his deputies is
vested in the President, such appointments do not need confirmation by the Commission on
Appointments)
Why from rank of colonel. The provision hopefully will have the effect of strengthening
civilian supremacy over the military. To some extent, the decision of the Commission was
influenced by the observation that coups are generally led by colonels.
Military officers. The clause “officers of the armed forces from the rank of colonel or naval
captain” refers to military officers alone. Hence, promotion and appointment of officers of
Philippine Coast Guard which is under the DOTC (and not under the AFP), do not need the
confirmation of Commission on Appointments. (Soriano v. Lista, 2003) Also, promotion of
senior officers of the PNP is not subject to confirmation of CA. PNP are not members of the
AFP. (Manalo v. Sistoza, 1999)
Chairman of Commission on Human Rights (CHR). The appointment of the Chairman of the
CHR is not provided for in the Constitution or in the law. Thus, there is no necessity for such
appointment to be passed upon by the Commission on Appointments. (Bautista v. Salonga)
Q: What is the concept of removal power?
A:
The President possesses the power of removal by implication from other powers expressly vested
in him.
1. It is implied from his power to appoint
2. Being executive in nature, it is implied from the constitutional provision vesting the executive
power in the President.
3. It may be implied from his function to take care that laws be properly executed; for without it,
his orders for law enforcement might not be effectively carried out.
4. The power may be implied from the President’s control over the administrative departments,
bureaus, and offices of the government. Without the power to remove, it would not be always
possible for the President to exercise his power of control.
As a general rule, the power of removal may be implied from the power of appointment.
However, the President cannot remove officials appointed by him where the Constitution
prescribes certain methods for separation of such officers from public service, e.g., Chairmen
and Commissioners of Constitutional Commissions who can be removed only by impeachment,
or judges who are subject to the disciplinary authority of the Supreme Court. In the cases where
the power of removal is lodged in the President, the same may be exercised only for cause as
may be provided by law, and in accordance with the prescribed administrative procedure.
Members of the career service. Members of the career service of the Civil Service who are
appointed by the President may be directly disciplined by him. (Villaluz v. Zaldivar) provided
that the same is for cause and in accordance with the procedure prescribed by law.
Members of the Cabinet. Members of the Cabinet and such officers whose continuity in office
depends upon the President may be replaced at any time. (Legally speaking, their separation is
effected not by removal but by expiration of term.) (See Alajar v. CA)
Cases:
1. Marcos vs. Manglapus (Residual powers)
2. Sarmiento vs. Mison (Significance of the word “alone” in the third sentence of the first
paragraph of Art. VII, Sec. 16)
*Memorize Art. VII, Sec. 16
Judicial Department
Q: If the President, upon seeing an open man-hole on the road, can he call the Secretary of
Department of Public Works and Highways (DPWH) to fix it?
A: No. the judiciary is a passive branch of the government. It will not require an action not only
against the government but as well as against private individuals without a complaint or petition
that is found meritorious.
Q: On the other hand, can the Chief Justice of the Supreme Court (SC), upon seeing a
person stabbing another, and upon reaching the SC she wrote a decision convicting the
person of murder, can he do that?
A: No, because that the judiciary is a passive branch of the government.
Q: What is judicial power?
A: It is the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable (traditional concept) and to determine whether or not there
has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government (broadened/expanded concept).
Q: Why is it called broadened concept?
A: The courts of justice can now review what was before forbidden territory, to wit, the
discretion of the political departments of the government. Otherwise stated, the courts of justice
can now decide on political questions.
Q: What is a political question?
A: 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 Legislature or executive branch of the Government.
Q: Political question VS. Justiciable Question
A: Generally, political questions are not entertained by the courts (see the case of David v GMA
for exceptions.) Political questions issues regarding matters within the full discretionary
authority of a branch of government. Justiciable questions are issues where there has been a
grave abuse of discretion on the part of a branch of government.
Q: What is grave abuse of discretion?
A: It is abuse of discretion that is too patent and gross as to amount to an evasion of a positive
duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where
the power is exercised in an arbitrary and despotic manner by reason of passion and persona
hostility.
Q: What are lower courts?
A: They are all other courts below the SC. They are:
(1) Court of Appeals (CA);
(2) Regional Trial Court (RTC);
(3) Metropolitan Trial Court;
(4) Municipal Trial Court; and
(5) Municipal Circuit Trial Court (MCTC)
Q: What are the special courts?
A: (1) Court of Tax Appeals;
(2) Sandiganbayan; and
(3) Sharia courts
Q: Can there be a temporary Supreme Court?
A: No. As the Constitution speaks only of one Supreme Court, it is not competent for the
Legislature to create even a temporary Supreme Court to sit in special cases.
Q: What are the manifestations of the independence of the Judiciary?
A: S3IRA5-DJ3
(1) The Supreme Court now has administrative supervision over all lower courts and their
personnel
(2) (8) The members of the Supreme Court and all lower courts have security of tenure,
which cannot be undermined by a law reorganizing the Judiciary.
(3) The salaries of judges may not be reduced during their continuance in office.
(4) The members of the Supreme Court may not be removed except by impeachment.
(5) The Supreme Court alone may initiate rules of court.
(6) The Supreme Court is a constitutional body. It cannot be abolished nor may its
membership or the manner of its meetings be changed by mere legislation.
(7) The members of the Supreme Court shall not be designated to any agency performing
quasi-judicial or administrative functions.
(8) The Judiciary shall enjoy fiscal autonomy.
(9) Only the Supreme Court may order the temporary assignment of judges.
(10) Supreme Court can appoint all officials and employees of the Judiciary.
(11) The Supreme Court has exclusive power to discipline judges of lower courts.
(12) The appellate jurisdiction of the Supreme Court may not be increased by law
without its advice and concurrence.
(13) The Supreme Court may not be deprived of its minimum original and appellate
jurisdiction.
(14) Appointees to the Judiciary are now nominated by the Judicial and Bar Council
(JBC) and no longer subject to confirmation by the Commission on Appointments
(COA)
(5) (7) (14) Q: What is the jurisdiction of the Supreme Court?
A: It is that which is prescribed and apportioned by the Congress. But the Congress may not
deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5.
Q: How are members of the Judiciary appointed?
A: The members of the Supreme Court and judges of lower courts shall be appointed by the
President from a list of at least three (3) nominees prepared by the Judicial and Bar Council for
every vacancy. Such appointments need no confirmation from the Commission on Appointments
(COA).
Q: What is the reason for requiring at least three nominees for every vacancy?
A: To give the President enough leeway in the exercise of his discretion when he makes his
appointment. If the nominee were limited to only one, the appointment would in effect be made
by the Judicial and Bar Council, with the President performing only the mechanical act of
formalizing the commission.
Q: What are the qualifications required for members of the Supreme Court or any lower
collegiate court?
A:
The general qualification is that every member of the Judiciary be a person of proven
competence, integrity, probity, and independence.
The specific qualifications are:
(1) He/she is a natural-born citizen of the Philippines;
(2) He/she must be at least forty (40) years of age; and
(3) He/she must have been for fifteen (15) years or more a judge of a lower court or engaged
in the practice of law in the Philippines.
These qualifications, having been enumerated in an exclusive manner, may not be reduced or
increased by the Congress through ordinary legislation. Thus, a statute requiring that the
members shall hold a doctorate degree in law, while calculated to improve the stature of the
Supreme Court, would still be unconstitutional.
But in the case of the judges of the other lower courts, it is expressly permitted for the Congress
to add to the constitutional qualifications, the same being only minimum requirements. Thus, it is
competent for the Legislature to provide for age or practice qualifications for such judges in
addition to the citizenship and professional qualification.
Q: What is Judicial and Bar Council?
A: The Judicial and Bar Council, which took the place of the Commission on Appointments in
the matter of judicial appointments, is the Council that will screen such appointments and not the
Commission. It is composed of the Chief Justice as ex officio Chairman, the Secretary of Justice,
and a representative of the Congress as ex officio Members, a representative of the Integrated
Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the
private sector.
Q: What are the two (2) important characteristics of the Judiciary?
A:
(1) It is the only non-political department among the three (3) branches. Justices/judges are
not elected but appointed.
(2) It is a passive agency. It means that someone must invoke its jurisdiction. Someone must
file a complaint so that the court may exercise its power.
Q: What are the requisites of judicial inquiry?
A: (APEN)
(1) Actual case/controversy;
(2) Proper party/locus standi/legal personality;
(3) Earliest opportunity; and
(4) Necessity of decision to the constitutional inquiry/necessity of deciding the constitutional
issue
Q: Who is the proper party?
A: He/she is the one who has sustained, or will sustain, a direct injury as a result of the operation
of a statute.
Q: What is the test to an eligible proper party?
A:Direct injury test
Q: When is the earliest possible opportunity of raising the constitutional question?
A: It is in the pleading.
Q: What if you did not raise the constitutional question in the pleading, can the
constitutional question still be considered in the trial?
A: It depends. There are cases when you can still raise the constitutional question during the trial
and vice-versa.
(1) In criminal cases, the constitutional question can be raised at any time in the discretion of
the court.
(2) In civil cases, the constitutional question can be raised at any stage if it is necessary to the
determination of the case itself.
(3) In every case, except where there is estoppel, the constitutional question may be raised at
any stage if it involves the jurisdiction of the court.
*estoppel – an act, admission or representation which is rendered conclusive upon the
person making it, who, therefore, cannot deny or disprove such act, admission or
representation against the person relying thereon. (Art. 1431, Civil Code)
Q: What are the cases not considered as actual cases?
A: (HRM)
(1) Hypothetical problems;
(2) Requests for opinion/advice; and
(3) Moot and academic
Q: Is a moot and academic case an actual case? Why or why not?
A: No. It ceases to present a justiciable controversy so that a declaration on the issue would be of
no practical use or value.
Q: What are the instances when the court can inquire into, or take cognizance of, a moot
and academic issue?
A:
(1) There is a grave violation of the Constitution;
(2) The issue involved is of paramount interest/transcendental importance;
(3) Need for jurisprudence/when the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; and
(4) The case is capable of repetition yet evading review.
*Proper party
Test – Direct Injury Test
Concerned citizen
Taxpayer
Voter
Legislator
*Supervening event
*Other important points in Cruz’ book
SUPPLEMENTAL NOTES
Limpot Notes in Constitutional Law 1
Judicial Department
Q: What is the power of the judiciary?
A: It is the right to determine actual controversies arising between adverse litigants, duly
instituted in courts of proper jurisdiction. It is the authority to settle justiciable controversies or
disputes involving rights that are enforceable and demandable before the courts of justice or the
redress of wrongs for violation of such rights.
Pursuant to the Constitution, judicial power is vested in the Supreme Court and the lower courts.
It includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Q: Why is judicial power non-political?
A: It is non-political because political questions are beyond the pale of judicial review. For
instance, the internal discipline within Congress is a matter which only the Congress may act
upon.
Q: What is jurisdiction?
A: It is the authority by which courts take cognizance of and decide cases, the legal right by
which judges exercise their authority. Otherwise stated, it is the power and authority of the court
to hear, try and decide a case.
Q: What is the jurisdiction of the Supreme Court?
A: It has both original and appellate jurisdiction.
As to original jurisdiction, it has the power to exercise original jurisdiction over cases affecting
ambassadors, other public ministers, and consuls, and over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus.
As to appellate jurisdiction, it has the power to review, revise, reverse, modify, or affirm on
appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of
lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question of law is involved.
Q: How is the independence of the Judiciary manifested?
A: It is manifested through the following safeguards embodied in the Constitution:
(1) The Supreme Court is a constitutional body. It cannot be abolished nor may its
membership or the manner of its meetings be changed by mere legislation.
(2) The members of the Supreme Court may not be removed except by impeachment.
(3) The Supreme Court may not be deprived of its minimum original and appellate
jurisdiction as prescribed in Article VIII, Section 5, of the Constitution.
(4) The appellate jurisdiction of the Supreme Court may not be increased by law without
its advice and concurrence.
(5) Appointees to the judiciary are now nominated by the Judicial and Bar Council and
no longer subject to confirmation by the Commission on Appointments.
(6) The Supreme Court now has administrative supervision over all lower courts and their
personnel.
(7) The Supreme Court has exclusive power to discipline judges of lower courts.
(8) The members of the Supreme Court and all lower courts have security of tenure,
which cannot be undermined by a law reorganizing the judiciary.
(9) They shall not be designated to any agency performing quasi-judicial or
administrative functions.
(10) The salaries of judges may not be reduced during their continuance in office.
(11) The judiciary shall enjoy fiscal autonomy.
(12) The Supreme Court alone may initiate rules of court.
(13) Only the Supreme Court may order the temporary detail of judges.
(14) The Supreme Court can appoint all officials and employees of the judiciary.
Q: What is the fiscal autonomy of the judiciary?
A: It means that appropriations for the judiciary may not be reduced by the legislature below the
amount appropriated for the previous year and, after approval, shall be automatically and
regularly released.
This grant of fiscal autonomy contemplates a guarantee of full flexibility to allocate and utilize
the judiciary’s resources with the wisdom and dispatch that its needs require.
Q: Discuss the impeachment proceedings within the Supreme Court.
A: The Members of the Supreme Court are removable only by impeachment. They can be said to
have failed to satisfy the requirement of “good behavior” only if they are guilty of the offenses
which are constitutional grounds of impeachment.
The members of the Supreme Court may be removed from office on impeachment for, and
conviction of: (1) culpable violation of the Constitution; (2) treason; (3) bribery; (4) graft and
corruption; (5) other high crimes; and (6) betrayal of public trust (Article XI, Section 2)
A Supreme Court Justice cannot be charged in a criminal case or a disbarment proceeding,
because the ultimate effect of either is to remove him from office, and thus circumvent the
provision on removal by impeachment thus violating his security of tenure.
Q: What is the administrative supervision of the Supreme Court?
A: The power of administrative supervision of the Supreme Court includes the power [sitting en
banc] to discipline judges of lower courts, or order their dismissal by a vote of a majority of the
Members who actually took part in the deliberations on the issues in the case and voted thereon.
It is the Supreme Court that is tasked to oversee the judges and court personnel and take the
proper administrative action against them if they commit any violation of the laws of the land.
No other branch of government may intrude into this power, without running afoul of the
independence of the judiciary and the doctrine of separation of powers.
Q: What are the concepts of judicial power?
A: Traditional Concept: Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable. (Art. VIII, Section
1, 2nd sentence)
Broadened Concept: Duty to determine whether [or not] there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the party of any branch or
instrumentality of the Government. (Art. VIII, Section 1, 2nd sentence)
Q: What is judicial review?
A: Judicial review is the power of the courts to test the validity of governmental acts in light of
their conformity to a higher norm (e.g. the Constitution)
The power of judicial review is the Supreme Court’s power to declare a law, treaty, international
or executive agreement, presidential decree, proclamation, order, instruction, ordinance, or
regulation unconstitutional. This power is explicitly granted by Section 5(2), (a) and (b). Judicial
Review is an aspect of Judicial Power.
Theory of Judicial Review. The Constitution is the supreme law. It was ordained by the people,
the ultimate source of all political authority. It confers limited powers on the national
government. x x x If the government consciously or unconsciously oversteps these limitations
there must be some authority competent to hold it in control, to thwart its unconstitutional
attempt, and thus to vindicate and preserve inviolate the will of the people as expressed in the
Constitution. This power the courts exercise. This is the beginning and the end of the theory of
judicial review.
Judicial Review in Philippine Constitution. Unlike the US Constitution which does not
provide for the exercise of judicial review by their Supreme Court, the Philippine Constitution
expressly recognizes judicial review in Section 5(2) (a) and (b) of Article VIII of the
Constitution.
Principle of Constitutional Supremacy
Judicial review is not an assertion of superiority by the courts over the other departments, but
merely an expression of the supremacy of the Constitution. Constitutional supremacy produced
judicial review, which in turn led to the accepted role of the Court as “the ultimate interpreter of
the Constitution.”
Functions of Judicial Review
1. Checking- invalidating a law or executive act that is found to be contrary to the Constitution.
2. Legitimating- upholding the validity of the law.
Rule on the Double Negative- Uses the term “not unconstitutional”; the court cannot
declare a law constitutional because it already enjoys a presumption of constitutionality
3. Symbolic - to educate the bench and the bar as the controlling principles and concepts on
matters of great public importance.
In a Separate Opinion in Francisco v. HR, Mr. Justice Adolf Azcuna remarked: “The function of
the Court is a necessary element not only of the system of checks and balances, but also of a
workable and living Constitution. For absent an agency, or organ that can rule, with finality, as to
what the terms of the Constitution mean, there will be uncertainty if not chaos in governance...
This is what… Hart calls the need for a Rule of Recognition in any legal system…”
Who May Exercise
1. Supreme Court
2. Inferior Courts
Q: What are the requisites of judicial review?
A:
(1) There must be an actual case or controversy calling for the exercise of judicial power. The
question involved must be ripe for adjudication.
(2) The person challenging the act must have “standing” to challenge. He/she 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 possible opportunity.
(4) The issue of constitutionality must be the very lis mota of the case. (The decision of the
constitutional question must be necessary to the determination of the case itself)
Actual Case
Actual Case or controversy involves a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial determination.
The case must not be:
1. Moot or academic or
2. Based on extra-legal or other similar consideration not cognizable by courts of justice.
3. A request for advisory opinion.
4. Hypothetical or feigned constitutional problems
5. Friendly suits collusively arranged between parties without real adverse interests
Moot Case. A moot case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value.
Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness.
However, courts will decide cases, otherwise moot and academic, if:
1. There is a grave violation of the Constitution;
2. The exceptional character of the situation and the paramount public interest is involved;
3. When the constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and
4. The case is capable of repetition yet evading review. (Province of Batangas vs. Romulo, 429
SCRA 736; David v. Arroyo (2006) Quizon v. Comelec, G.R. No. 177927, February 15, 2008.)
The requirement of actual controversy encompasses concepts such as ripeness, standing, and the
prohibition against advisory judicial rulings (BP Chemicals v. UCC, 4 F.3d 975)
Ripeness Doctrine. The requirement that a case be ripe for judgment before a court will decide
the controversy. Ripeness refers to readiness for adjudication.
Rationale. To prevent the courts, through premature adjudication, from entangling themselves in
abstract disagreements.
When Not Ripe. A claim is not ripe for adjudication if it rests upon contingent future events that
may not occur as anticipated, or indeed may not occur at all.
Ripeness and Standing. A simple description of the requirements of standing and ripeness is
found in the words of Justice Stone in Nashville v. Wallace. In that opinion he referred to:
“valuable legal rights… threatened with imminent invasion.” The valuable legal rights constitute
the standing and the threat of imminent invasion constitute the ripeness.
Standing/Proper Party
Proper Party- A proper party is one who has sustained or is in immediate danger of sustaining an
injury in result of the act complained of.
Locus Standi - refers to the right of appearance in a court of justice on a given question.
General Rule
Direct Interest Test: The persons who impugn the validity of a statute must have a personal and
substantial interest in the case such that he has sustained or will sustain, direct injury as a result.
Exceptions:
1. Cases of transcendental importance or of paramount public interest or involving an issue of
overarching significance.
2. Cases of Proclamation of martial law and suspension of the privilege of the writ of habeas
corpus where any citizen may challenge the proclamation of suspension.
3. The right to information on matters of public concern and the right to access to public
documents has been recognized as accruing to mere citizenship. (Legaspi v. CSC, 150 SCRA
530 (1987)
4. Facial Challenge
Requisites of Standing:
A citizen can raise a constitutional question only when:
1. Injury: He can show that he has personally suffered some actual or threatened injury because
of the allegedly illegal conduct of the government;
2. Causation: The injury is fairly traceable to the challenged action; and
3. Redressability: A favorable action will likely redress the injury. (Francisco v. Fernando GR
166501, 2006)
In a public suit, where the plaintiff asserts a public right in assailing an allegedly illegal official
action, our Court adopted the “direct injury test” in our jurisdiction. (David v. Arroyo)
Direct Injury Test: The persons who impugn the validity of a statute must have a personal and
substantial interest in the case such that he has sustained or will sustain, direct injury as a result.
(David v. Arroyo) [See People v. Vera, 65 Phil 58, 89 (1937)].
By way of summary, the following rules may be culled from the cases decided by the Supreme
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:
1. the cases involve constitutional issues
2. for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax
measure is unconstitutional;
3. for voters, there must be a showing of obvious interest in the validity of the election law in
question;
4. for concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early;
5. for legislators, there must be a claim that the official action complained of infringes upon their
prerogatives as legislators [David v. Arroyo G.R. No. 171396 (2006)]
Transcendental Importance. Being a mere procedural technicality, the requirement of locus
standi may be waived by the Court in the exercise of its discretion. Thus, the Court has adopted a
rule that even where the petitioners have failed to show direct injury, they have been allowed to
sue under the principle of "transcendental importance." [David v. Arroyo G.R. No. 171396
(2006)]
When an Issue Considered of Transcendental Importance: An issue is of transcendental
importance because of the following:
(1) the character of the funds or other assets involved in the case;
(2) the presence of a clear disregard of a constitutional or statutory prohibition by an
instrumentality of the government; and
(3) the lack of any other party with a more direct and specific interest in raising the question.
[Francisco vs. House of Representatives, 415 SCRA 44; Senate v. Ermita G.R. No. 169777
(2006)]
Facial Challenge. The established rule is that a party can question the validity of a statute only
if, as applied to him, it is unconstitutional. The exception is the so-called “facial challenge.” But
the only time a facial challenge to a statute is allowed is when it operates in the area of freedom
of expression. In such instance, the “overbreadth doctrine” permits a party to challenge to a
statute even though, as applied to him, it is not unconstitutional, but it might be if applied to
others not before the Court whose activities are constitutionally protected. Invalidation of the
statute “on its face”, rather than “as applied”, is permitted in the interest of preventing a “chilling
effect” on freedom of expression (Justice Mendoza’s concurring opinion in Cruz v. DENR, G.R.
No. 135395, December 06, 2000) A facial challenge to a legislative act is the most difficult
challenge to mount successfully since the challenge must establish that no set of circumstances
exists under which the act would be valid. (Estrada v. Sandiganbayan, G.R. No. 148560,
November 19, 2001)
Earliest Opportunity
General Rule: Constitutional question must be raised at the earliest possible opportunity, such
that if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered
in trial, cannot be considered on appeal.
Exceptions:
1. In criminal cases, the constitutional question can be raised at any time in the discretion of the
court.
2. In civil cases, the constitutional question can be raised at any stage if it is necessary to the
determination of the case itself.
3. In every case, except where there is estoppel, the constitutional question may be raised at any
stage if it involves jurisdiction of the court.
Necessity/Lis Mota
Rule: The Court will not touch the issue of unconstitutionality unless it really is unavoidable or
is the very lis mota.
Reason: The reason why courts will as much as possible avoid the decision of a constitutional
question can be traced to the doctrine of separation of powers which enjoins upon each
department a proper respect for the acts of the other departments. The theory is that, as the joint
act of the legislative and executive authorities, a law is supposed to have been carefully studied
and determined to be constitutional before it was finally enacted. Hence, as long as there is some
other basis that can be used by the courts for its decision, the constitutionality of the challenged
law will not be touched and the case will be decided on other available grounds.
Motu Propio Exercise of Judicial Review. While courts will not ordinarily pass upon
constitutional questions which are not raised in the pleadings, a court is not precluded from
inquiring into its own jurisdiction or be compelled to enter a judgment that it lacks jurisdiction to
enter. Since a court may determine whether or not it has jurisdiction, it necessarily follows that it
can inquire into the constitutionality of a statute on which its jurisdiction depends. (Fabian v.
Desierto, 295 SCRA 470)493
Q: What is a political question?
A: It is a question of policy, that question which under the constitution is 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 the government. It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure. (e.g. interpretation of phrases
such as “other high crimes”, “disorderly behaviour”, etc.)
Guidelines for determining whether a question is political.
Textual Kind
1. A textually demonstrable constitutional commitment of the issue to a political department;
Functional Kind
2. Lack of judicially discoverable and manageable standards for resolving it;
3. Impossibility of deciding a case without an initial determination of a kind clearly for nonjudicial discretion; [Baker v. Carr, 369 US 186 (1962)]
Prudential Type
4. Impossibility of a court’s undertaking independent resolution without expressing lack of the
respect due coordinate branches of the government;
5. An unusual need for unquestioning adherence to a political decision already made;
6. Potentiality of embarrassment from multifarious pronouncements by various departments.
[Baker v. Carr, 369 US 186 (1962)]
Q: What is a justiciable question?
A: It implies a given right, legally demandable and enforceable, an act or omission, violative of
such right, and a remedy granted and sanctioned by law for said breach of right. (e.g. compliance
with a voting requirement; qualifications of an appointee of the President)
Q: What is grave abuse of discretion?
A: By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as
is equivalent to lack of jurisdiction. The abuse of discretion must be 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.
There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or
jurisprudence; or (2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill
will or personal bias.
Accountability of Public Officers
Q: What is accountability of public officers?
A: The basic idea of government in the Philippines is that of a representative government the
officers being mere agents and not rulers of the people… where every officer accepts office
pursuant to the provisions of law and holds the office as a trust for the people whom he
represents. Therefore, accountability of public officers means holding oneself responsible for any
act/omission of the public officers.
Q: Why do we have this as a republican government?
A: Public trust is something preserved for the benefit of another person (in this case, the
electorate body). Public office is not something that can be claimed because it is not a right but a
privilege granted by the people, exercised only insofar as the electorate wills it to be exercised. It
is not a job (which may be considered a property right - means of livelihood) in a sense that one
cannot demand security of tenure. As an illustrative example, an elected president stays a
president only for as long as he/she is allowed to by the people. When they impeach him/her,
he/she cannot go to the court and demand mandamus in order to be reinstated. Public office
belongs to the public, not the public official. At best, a public official is merely an agent of the
people, an elected representative.
Q: What is impeachment?
A: It is a method of national inquest into the conduct of public men. It is an extraordinary means
of removal exercised by the Legislature over a selected number of officials, the purpose being to
ensure the highest care in their indictment and conviction and the imposition of special penalties
in case of a finding guilt, taking into account the degree or nature of the offense committed and
the high status of the wrongdoers.
Q: What are the grounds for impeachment?
A:
(1) Culpable violation of the Constitution – wrongful, intentional or willful disregard or
flouting of the Constitution. The act must deliberate and motivated by bad faith to
constitute a ground for impeachment. Mere mistakes in the proper construction of the
Constitution cannot be considered a valid ground for impeachment.
(2) Treason – committed by any person who, owing allegiance to the Government of the
Philippines, levies war against it or adheres to its enemies, giving them aid and comfort.
(3) Bribery – committed by any public officer who shall agree to perform an act, whether or
not constituting a crime, or refrain from doing an act which he is officially required to do
in consideration of any offer, promise, gift or present received by him personally or
through the mediation of another, or who shall accept gifts offered to him by reason of
his office.
(4) Other high crimes – those offenses which, like treason and bribery, are of so serious and
enormous a nature as to strike at the very life or the orderly workings of the government.
Therefore, they exclude such offenses such as rape and murder which, although as
serious as treason and bribery, will not necessarily strike at the orderly workings, let
alone the life, of the government.
(5) Graft and corruption – to be understood in the light of the prohibited acts enumerated in
the Anti-Graft and Corrupt Practices Act.
(6) Betrayal of public trust – a catch-all to cover all manner of offenses unbecoming a public
functionary but not punishable by the criminal statutes, such as inexcusable negligence of
duty, tyrannical abuse of authority, breach of official duty by malfeasance or,
misfeasance, cronyism, favoritism, obstruction of justice.
Q: Who are impeachable officers?
A:
(1) President of the Philippines;
(2) Vice-President;
(3) Members of the Supreme Court;
(4) Members of the Constitutional Commissions; and
(5) Ombudsman.
Q: Is the list of impeachable officers absolute?
A: The list is exclusive and may not be increased or reduced by legislative enactment, following
the principle of expresio unius est exclusio alterius or “the express mention of one thing excludes
all others”.
Q: Is the non-declaration of assets in Statement of Assets, Liabilities and Net Worth
(SALN) a ground for impeachment?
A:
Q: What is the purpose of impeachment?
A:
Q: If the official resigns, will the impeachment stop?
A: Yes. Impeachment’s purpose is to remove a person from his office. Who is there to remove if
he already resigned.
Q: What are the limitations on impeachment?
A: No impeachment proceedings shall be initiated against the same official more than once
within a period of one year.
Q: When is the period counted?
A: It is counted upon the initiation of proceedings.
Q: When is the complaint initiated?
A: Case of Francisco
Q: Can an ordinary man initiate impeachment?
A: Yes, provided that there is an endorsement by a member of the House of Representatives.
Q: What is the appropriate committee for cases of impeachment?
A:
Q: Where do you file impeachment cases?
A:
Q: What is the importance of the one-third (1/3) of the members of the House of
Representatives?
A: In case the verified complaint or resolution of impeachment is filed by at least 1/3 of all the
Members of the House, the same shall constitute the Articles of Impeachment, and trial by the
Senate shall forthwith proceed.
Q: What shall the Senators do before the start of the trial?
A: They shall recite an oath or affirmation because they are performing a non-legislative
function. When they took their oath or affirmation as Senators, such oath or affirmation pertained
to them as legislators. In impeachment cases, their oath or affirmation pertains to them being
judges.
Q: What is the role of the Chief Justice in impeachment cases?
A: He shall preside when the President is on trial.
Q: What is the quantum of evidence needed for the conviction of guilt?
A: None. Only the concurrence of 2/3 of all the members of Senate is required because
impeachment is a political question.
Q: Can the Senate propose penalty and imprisonment if the official on trial is found guilty
of a crime like treason?
A: Yes provided that the official is criminally prosecuted. When criminally prosecuted for the
offense which warranted his conviction on impeachment, the officer cannot plead the defense
of double jeopardy.
Q: Can the impeached official appeal to the Supreme Court?
A: Generally, no. Impeachment proceedings are normally not subject to judicial review. But the
court may annul the proceedings if there is a showing that there is grave abuse of discretion or
non-compliance with the procedure for impeachment.
Q: Who is or what is the Ombudsman?
A: The Ombudsman or the Office of the Ombudsman is the protector of the people who shall act
promptly on complaints filed in any form or manner against public officials or employees.
Q: Are the Tanodbayan and the Ombudsman the same?
A: Yes. The old Tanodbayan is now the Special Prosecutor who is limited to and charged with
the prosecution.
Q: What is Sandiganbayan?
A: The term is a Tagalog word meaning “support of the nation” or “sandigan ng bayan”. Implicit
in the name is the idea that the people can rely on this body for the attainment of the specific
goals addressed to its attention. It is the present anti-graft court.
Q: What is the relation of the Ombudsman, Sandiganbayan, and special prosecutors?
A: The case is filed in Sandiganbayan, after the investigation of the Ombudsman. Then the
special prosecutor will be the one to prosecute the case from the Office of the Ombudsman. All
the evidence comes from the Ombudsman.
Q: In general, what is the function of the office of Ombudsman?
A: To investigate whether there is probable cause.
Current Events
Is PDAF constitutional?
Option #1: Yes, the PDAF is constitutional as enunciated by the SC in the in the landmark cases
of PHILCONSA vs. Enriquez and LAMP vs. Secretary of Department of Budget and
Management. In that former case, the SC held that the CDF (the predecessor of PDAF) is
constitutional because the actions of the congressmen and senators are limited only to
recommending or proposing projects. The implementation and execution are still done by the
executive department. On the latter case, the SC held that PDAF is constitutional because there
was no evidence to establish the fact that individual members of Congress received and
thereafter spend funds out of PDAF.
Option #2: No, the PDAF is unconstitutional because Section 25(6), Article VI provides that
discretionary funds appropriated for particular officials shall be disbursed only for public
purposes, to be supported by appropriate vouchers and subject to such guidelines as may be
prescribed by law. The PDAF was used in contravention of the mentioned constitutional
provision because in went to the pockets of private individuals, senators and congressmen.
Furthermore, the vouchers used in liquidating the projects are all simulated because it was issued
by bogus non-government organizations.
Is DAP constitutional?
Option #1: Yes, the DAP is constitutional because the President is authorized under Section
25(5), Article VI to augment any item in the appropriations for the executive branch using
savings from other items of the appropriations of the said branch. What the Senators did was
merely to recommend existing projects which are yet to be implemented. Full discretion is still
within the executive department.
Option #2: No, the DAP is unconstitutional because the authority of the President under Section
25(5), Article VI to realign savings is limited only to existing appropriations in the executive
branch. It does not authorize him to augment items in the appropriations of the legislative branch
using the savings of the executive branch. Furthermore, there is no law which authorizes the
release of such funds. Section 29(1), Article VI provides that no money shall be paid out of the
Treasury except in pursuance of an appropriation made by law. The intention of the President to
spur the economy using the DAP may be noble but the same is not authorized under the law.
Ours is a government of laws and not of men.
Dissenting Opinion of Justice Leus:
Is PDAF Constitutional. Yes, the jurisprudence has provided for it. PDAF is Constitutional and
will always be constitutional. What will vary is the Constitutionality of how the law was
implemented.