Political law
and Public International Law
Review
GUILLER B. ASIDO, LL.M.
GENERAL OUTLINE AND COVERAGE
CONSTITUTIONAL LAW
ADMINISTRATIVE LAW
ELECTION LAW
LOCAL GOVER NMENTS
PUBLIC INTERNATIONAL LAW
What is POLITICAL LAW
Branch of public law
Deals with the organization and operations of the
governmental organs of the State
Defines the relations of the State with the inhabitants of
its territory (Macariola vs. Asuncion, 114 SCRA)
What is a Constitution
It is through the Constitution that the fundamental powers of government
are established, limited and defined, and by which these powers are
distributed among the several department. The Constitution is the basic
and paramount law to which a all other laws must conform and to which
all persons, including the highest officials of the land, must defer.Constitutional doctrines must remain steadfast no matter what may be
the tides of time. It cannot be simply made to sway and accommodate
the call of situations and much more tailor itself to the whims and
caprices of government and the people who run it. (Biraogo vs.
Philippine Truth Commission [2010])
How many constitutions has PH had
Biak
na Bato Constitution
1935
Constitution
1941
Constitution
1973
Constitution
1987
Constitution
Doctrine of Constitutional Supremacy
A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and
unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation. It
prescribes the permanent framework of a system of government, assigns
to the different departments their respective powers and duties, and
establishes certain fixed principles on which government is founded. The
fundamental conception in other words is that it is a supreme law to
which all other laws must conform and in accordance with which all
private rights must be determined and all public authority
administered).
Doctrine of Constitutional
Supremacy
Under the doctrine of constitutional supremacy, if a law or
contract violates any norm of the constitution that law or
contract whether promulgated by the legislative or by the
executive branch or entered into by private persons for private
purposes is null and void and without any force and effect.
Thus, since the Constitution is the fundamental paramount and
supreme law of the nation, it is deemed written in every statute
and contract. Manila Prince Hotel vs. GSIS [1997]}
Does the constitution limit or confer
powers?
Both
a conferment and a limitation of
powers. The constitution allocates powers
to the three departments of the
government. It also provides for limitations
on the exercise of such powers, such as
the Bill of Rights.
How many parts are the Constitution?
PART
Constitution of
Liberty/Rights
PROVISION AND IMPORTANCE
PROVISION IN THE 1987
CONSTITUTION
The series of provisions setting forth the
fundamental rights of citizens and imposing
limitations on the powers of government as a
means of securing the enjoyment
of these rights
ARTICLE III
Civil and Political Rights
Constitution of
Government
The series of provisions outlining the organization
of government enumerate ting its powers, laying
down certain rules relative to its administration
and defining the electorate
ARTICLE VI, VI I, VI 1 1,
IX, XI
Constitution of
Sovereignty
The provisions containing the mode PREAMBLE,
ARTICLE 1 1, XVI I or procedure in accordance
with
which formal changes in the fundamental law
may be brought about
PREAMBLE, ARTICLE 1 1,
XVII
•Freedom of Belief
•Personal Freedom
Is the constitution a contract?
Yes.
It is a social contract where the
people have surrendered their sovereign
powers to the State for the common
good. Sovereignty resides in the people
and all government authority emanates
from them [section 1, Article II, 1987
Constitution].
What are the Civil and Political Rights
Civil
Are those rights which the
law will enforce at the
instance of individuals for
the purpose of securing to
them enjoyment of their
happiness.
Political Rights
Are those rights which
enables us to participate
in running the affairs of
the government either
directly or indirectly.
How to
interpret
the
constitution
Should be interpreted in such a way
as to give effect to the intent of the
framers. It is discoverable either
through the document itself or the
use of extrinsic aids such as the
records of the Constitutional
Commission.
Should be considered self executing
rather than non-self executing;
mandatory rather than directory;;
and prospective rather than
retrospective.
How many parts are the Constitution?
PART
Constitution of
Liberty/Rights
PROVISION AND IMPORTANCE
PROVISION IN THE 1987
CONSTITUTION
The series of provisions setting forth the
fundamental rights of citizens and imposing
limitations on the powers of government as a
means of securing the enjoyment
of these rights
ARTICLE III
Civil and Political Rights
Constitution of
Government
The series of provisions outlining the organization
of government enumerate ting its powers, laying
down certain rules relative to its administration
and defining the electorate
ARTICLE VI, VI I, VI 1 1,
IX, XI
Constitution of
Sovereignty
The provisions containing the mode PREAMBLE,
ARTICLE 1 1, XVI I or procedure in accordance
with
which formal changes in the fundamental law
may be brought about
PREAMBLE, ARTICLE 1 1,
XVII
•Freedom of Belief
•Personal Freedom
AMENDMENTS
AND REVISION
(Constitution of
Sovereignty)
Historical Evolution under
the 1935, 1973 Constitution
Article XVII, 1987
Constitution
Distinction between
amendment and revision
Revision in light of "initiative
and referendum
Two step procedure for amending or
revising
Proposal
Ratification
• Either by Congress or Constitutional Convention
• Amendment or Revision
• Initiative by the People on amendments
• Section 4 of Article XVII
• Ratified by a majority of the votes cast in a plebiscite,
which shall be held not earlier than 60 days nor later
than 90 days after approval of amendment or revision
DISTINCTIONS
•Source: Constitutional
Commission Records
Amendment
Envisions an alteration of one
or more specific and
separable provisions.
The intention of an act to
amend is not the change of
the entire constitution, but
only the improvement of
specific parts or the addition
of provisions deemed
essential as a consequence
of new conditions or
elimination of parts already
considered obsolete or
unresponsive to the needs of
the times.
Revision
A re-examination of the
entire document, to
determine how and to
what extent ,or of
provisions of the document
which have over-aII
implications for the entire
document, to determine
how and to what extent
they should be altered.
Revision may involve rewriting the entire
constitution
Key
Questions
Move to change from bicameral to unicameral
system? REVISION
Move to change from presidential to
parliamentary or federal system? REVISION
Importance
of distinction
Important in light of limited scope of initiative
and referendum
If the change made de hors (outside) of the
Constitution is made by the sovereign people,
the resultant alteration is not unconstitutional but
extra-constitutional. (Bernas J "The1987
Constitution of the Republic of the Philippines/ J
[2009])
Revolution and Revision {1973 Ratification
Cases)
Proposal of
Amendments
and Revision
Article XVII, SECTION 1. Any amendment to, or
revision of, this Constitution may be proposed
by:
1.
The Congress, upon a vote of three-fourths of all its
Members; or
2.
A constitutional convention
Key
Questions:
Joint Session or Voting separately?
Nothing is said about a joint session, each house
may separately formulate amendments by a
vote of % of all its members, and then pass it on
to the other house for a similar process.
Disagreements to be settled through a
conference committee.
Alternatively, Congress may decide to come
together in joint session and vote separately on
proposed amendments and revisions. Both
houses must vote separately. Why?
Congress Is bicameral and not unicameral.
Initiative and
Referendum
Defined
INITIATIVE
- Method whereby the people
directly propose amendments to the constitution.
Article XV II, SECTION 2. Amendments to this
Constitution may likewise be directly proposed by
the people through initiative upon a petition of at
least twelve per centum of the total number of
registered voters, of which every legislative district
must be represented by at least three per centum
of the registered voters therein. No amendment
under this section shall be authorized within five
years following the ratification of this Constitution
nor oftener than once every five years thereafter.
The Congress shall provide for the implementation
of the exercise of this right.
Initiative and
Referendum
A people's initiative to change the Constitution
applies only to an amendment of the Constitution
and not to its revision. In contrast, Congress or a
constitutional convention can propose both
amendments and revisions to the Constitution.
(Lambino vs. COMELEC [2006])
The Constitution entrusts to the people the power
to directly propose amendments to the
Constitution. The Court trusts the wisdom of the
people even if the members of this Court do not
personally know the people who sign the petition.
However, this trust emanates from a fundamental
assumption: the full text of the proposed
amendment is first shown to the people before
they sign the petition, not after they have
signed the petition.
What is
Logrolling in
people's
initiative to
amend?
Logrolling - when the initiative petition
incorporates an unrelated subject matter in the
same petition. This puts the people in a dilemma
since they can answer only either yes or no to
the entire proposition, forcing them to sign a
petition that effectively contains two
propositions, one of which they may find
unacceptable.
Under American jurisprudence, the effect of
logrolling is to nullify the entire proposition and
not only the unrelated subject matter.
CONSTITUTIONAL CONVENTION
Article XVII,SECTION 3. The Congress may, by a
vote of two-thirds of all its Members, call a
constitutional convention, or by a majority vote
of all its Members, submit to the electorate the
question of calling such a convention.
Question: Voting separately?
RATIFICATION
Article XVII, SECTION 4. Any amendment to, or revision of
this Constitution under Section 1hereof shall be valid
when ratified by a majority of the votes cast in a
plebiscite which shall be held not earlier than sixty days
nor later than ninety days after the approval of such
amendment or revision.
Any amendment under Section 2 hereof shall be valid
when ratified by a majority of the votes cast in a
plebiscite which shall be held not earlier than sixty days
nor later than ninety days after the certification by the
Commission on Elections of the sufficiency of the petition.
TESTS TO DETERMINE Amendment or
Revision
Qualitative
Quantitative
Whether the change will
accomplish such far reaching
changes in the nature of our basic
governmental plan as to amount
to a revision. Whether there will be
an alteration in the structure of
government.
Whether the proposed change is
so extensive in its provisions as to
change directly the substantial
entirety of the constitution by the
deletion or alteration of its
existing provisions.
Voting requirements
SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members; or
(2) A constitutional convention.
SECTION 2. Amendments to this Constitution may likewise be directly proposed by the people
a petition of at least twelve per centum of the total number of registered voters, of which every
be represented by at least three per centum of the registered voters therein. No amendment
be authorized within five years following the ratification of this Constitution nor oftener than once
thereafter.
The Congress shall provide for the implementation of the exercise of this right.
SECTION 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional
majority vote of all its Members, submit to the electorate the question of calling such a
SECTION 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be
a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later
after the approval of such amendment or revision.
Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes
shall be held not earlier than sixty days nor later than ninety days after the certification by the
Elections of the sufficiency of the petition.
Proposal
Ratification
What
majority
means
Qualified
absolute majority
under sections 1 (1) and 3,
Article XVII
NATIONAL TERRITORY GENERAL
CONSIDERATIONS
National Territory
Archipelagic Doctrine
Maritime Baselines Law
Jurisprudence
Decision of Arbitral Tribunal in PH vs. China
Elements
of a
state
PEOPLE
TERRITORY
GOVERNMENT
SOVEREIGNTY
Territory,
defined,
modes
ACQUISITION
DISCOVERY, OCCUPATION,
PRESCRIPTION, CESSION,
ACCRETION, SUBJUGATION
LOSS
CESSION,
ABANDONMENT OR
DERELICTION,
PRESCRIPTION,
EROSION,
REVOLUTION,
NATURAL CAUSES
AND SUBJUGATION
Components
Terrestial
Land Mass on which
people live. It may be
integrated, or
dismembered or partly
bounded by water, or
composed of several
islands.
Maritime
Bodies of water within
the land mass, and the
waters adjacent to the
coasts of a state to
specified limit, and
includes internal waters
and territorial waters.
Aerial
The airspace
above the
terrestrial domain,
the maritime and
fluvial domain to
an unlimited
altitude but not
including outer
space.
Dominium vs. imperium
Dominium
Imperium
Capacity of the State to own
or acquire property, including
those held in its proprietary
capacity.
Authority of the State
embraced in the concept of
sovereignty.
WHAT IS THE
STATUS OF
THE OPEN
SEAS AND
OUTER
SPACE
Res Communes.
Owned by one and
subject to the use of
all.
NATIONAL TERRITORY
ARTICLE I: NATIONAL TERRITORY
The national territory comprises the Philippine archipelago, with fill the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial fluvial and aerial domains, including its territorial sea,
the seabed, the subsoil, the insular shelves, and other submarine areas. The waters
around, between, and connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the Philippines .
NATIONAL TERRITORY UNDER THE 1973 AND 1987 CONSTIUTIONS, ANY DIFFERENCE?
Both the 1973 and the 1987 constitutions divide the national territory into two main
groups:
(1) the Philippine archipelago, and
(2) other territories belonging to the Philippines
WHAT IS THE ARCHIPELAGIC PRINCIPLE?
........The waters around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal waters of the
Philippines.
Archipelago is defined as a unit of water studded with islands. Based on this
definition the land area is everything that comes within the water area
BASELINES CASE: MAGALONA VS. ERMITA [2011] – WHAT ARE IMPORTANT
FACTS?
In March 2009, Congress amended RA 3046 by enacting RA 9522, the
statute now under scrutiny. The change was prompted by the need to
make RA 3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS Ill}, which the Philippines
ratified on 27 February 1984. Among others, UNCLOS III prescribes the
water-land ratio, length and contour of baselines of archipelagic
States like the Philippines-and sets the deadline for the filing of
application for the extended continental shelf.-Complying with these
requirements, RA 9522 shortened one baseline, optimized the location
of some basepoints around the Philippine archipelago and classified
adjacent territories, namely, the Kalayaan Island Group (KIG) and the
Scar borough Shoal, as regimes of islands whose islands generate their
own applicable maritime zones
MAGALONA VS. ERMITA [2011]
Petitioners, professors of law, law students and a legislator, in
their respective capacities as citizens, taxpayers or x x x
legislators, as the case may be, assail the constitutionality of
RA 9522 on two principal grounds, namely: (1) RA 9522
reduces Philippine maritime territory, and logically, the reach
of the Philippine states sovereign power in violation of Article
1of the 1987 Constitution embodying the terms of the Treaty
of Paris and ancillary treaties, and (2) RA 9522 opens the
country's waters landward of the baselines to maritime
passage by all vessels and aircrafts, undermining Philippine
sovereignty and national security, contravening the country's
nuclear-free policy, and damaging marine resources, in
violation of relevant constitutional provisions
MAGALONA VS. ERMITA [2011] DECISION
UNCLOS Ill has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e.,
the territorial waters 12 nautical miles from the baselines], contiguous zone [24
nautical miles from the baselines], exclusive economic zone 200 nautical miles from
the baselines]), and continental shelves that UNCLOS Ill delimits. UNCLOS Ill was the
culmination of decades-long negotiations among United Nations members to
codify norms regulating the conduct of States in the worlds oceans and submarine
areas, recognizing coastal and archipelagic States graduated authority over a
limited span of waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS Ill
States parties to mark-out specific basepoints along their coasts from which
baselines are drawn either straight or contoured to serve as geographic starting
points to measure the breadth of the maritime zones and cont1nentaf shelf
MAGALONA VS. ERMITA [2011] BASELINE LAW
Baselines laws are nothing but statutory mechanisms for UNCLOS Ill
States parties to delimit with precision the extent of their maritime zones
and continental shelves. In turn this gives notice to the rest of the inter
national community of the scope of the maritime space and
submarine areas within which States parties exercise treaty-based rights,
namely, the exercise of sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration, and sanitation laws
in the contiguous zone (Article 33), and the right to exploit the living
and non-living resources in the exclusive economic zone (Article 56)
and continental shelf (Article 77)
MAGALONA VS. ERMITA [2011] DECISION
Whether referred to as Philippine internal waters under Article
I of the Constitution or as archipelagic waters under UNCLOS
Ill (Article 49 [1] ), the Philippines exercises sovereignty over
the body of water lying landward of the baselines, including
the air space over it and the submarine areas underneath.
UNCLOS Ill affirms this
“Article 49. Legal status of archipelagic waters, of the air space over
archipelagic waters and of their bed and subsoil.
1. The sovereignty of an archipelagic State extends to the waters
enclosed by the archipelagic baselines drawn in accordance with
article 47,described as archipelagic waters, regardless of their depth
or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic
waters, as well as to their bed and subsoil, and the resources
contained therein.
xxx
4. The regime of archipelagic sea lanes passage established in this Part
shall not in other respects affect the status of the archipelagic waters,
including the sea lanes, or the exercise by the archipelagic State of its
sovereignty over such waters and their air space, bed and subsoil,and
the resources contained therein. (Emphasis supplied)”
NATIONAL TERRITORY
ARTICLE I: NATIONAL TERRITORY
The national territory comprises the Philippine
archipelago, with all the islands and waters
embraced therein, and all other territories over
which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial fluvial and aerial domains,
including its territorial sea, the seabed, the subsoil,
the insular shelves, and other submarine areas. The
waters around, between, and connecting the
islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal
waters of the Philippines.
NATIONAL TERRITORY
Archipelagic states instead of drawing normal
baselines have drawn "straight baselines. "The
straight lines are drawn connecting selected
points on the coast without applicable
departure from the general shape of the coast
Also referred to as inland waters. Internal or
inland waters consist of all parts of the sea
landwards from the baseline as well as inland
rivers and lakes. All of them are subject to the
sovereignty of the state to the same extent that
the land domain is. Unlike territorial waters, they
are not subject to the right of innocent passage
by other states
INSULAR SHELF
ARTICLE I: NATIONAL TERRITORY
1.
The sea bed and subsoil of the submarine
areas adjacent to the coastal state but
outside the territorial sea, to a depth of
two hundred meters or, beyond that limit,
to where the depth allows exploitation
The national territory comprises the
Philippine archipelago, with fill the
islands and waters embraced
therein, and all other territories
2. The sea bed and subsoil of areas
over which the Philippines has
adjacent to islands. The coastal state has
sovereignty or jurisdiction,
consisting of its terrestrial fluvial
the right to explore and exploit its natural
and aerial domains, including its
resources, to erect installations needed,
territorial sea, the seabed, the
and to erect a safety zone over its
subsoil, the insular shelves, and
other submarine areas. The waters
installations with a radius of 500 meters.
around, between, and connecting
The right does not extend to nonthe islands of the archipelago,
resource material in the shelf area such
regardless of their breadth and
dimensions, form part of the
as wrecked ship and their cargoes
internal waters of the Philippines.
National Territory
ARTICLE I: NATIONAL TERRITORY
The national territory comprises the
Philippine archipelago, with fill the
islands and waters embraced therein,
and all other territories over which the
Philippines has sovereignty or
jurisdiction, consisting of its terrestrial
fluvial and aerial domains, including
its territorial sea, the seabed, the
subsoil, the insular shelves, and other
submarine areas. The waters around,
between, and connecting the islands
of the archipelago, regardless of their
breadth and dimensions, form part of
the internal waters of the Philippines
Question: Does this include the
claim of the Philippines over
Sabah?
Yes. Under Article 1, the national
territory includes all other
territories over which the PH has
sovereignty or jurisdiction
OTHER TERRITORIES OVER WHICH THE PH HAS SOVEREIGNTY OR
JURISDICTION
Covers islands over which the PH has historic or legal title.
It includes as well territory should temporarily be controlled by an
invading force, and any other territory over which the Philippines
might establish sovereignty or jurisdiction in the future.
* WHAT IS THE SIGINIFICANCE OF THE DECISION OF THE ARBITRAL
TRIBUNAL IN THE CASE OF THE PHILIPPINES VS. CHINA?
WHAT IS THE RIGHT TO INNOCENT PASSAGE?
A state exercises sovereignty over its territorial sea subject
to the right of innocent passage by other states.
Innocent passage is understood as passage not prejudicial
to the interests of the coastal state nor contrary to
recognized principles of international al law. Note Art. 19
(2) of UNCLOS
May the
state
exercise
jurisdiction
over open
seas
1. Over its vessels
2. Over pirates
3. In the exercise of the right
to visit and search
4. Doctrine of Hot Pursuit
Elements of the Doctrine Of Hot Pursuit
1. The pursuit must be commenced when the ship is within the internal
waters, territorial sea or the contiguous zone of the pursuing State, and
may only be continued outside if the pursuit has not been interrupted;
2. It is continuous and unabated; and
3. Pursuit conducted by a warship, military aircraft, or government ships
authorized to that effect. (UNCLOS, Art. 111
LEGAL VALUE OF THE DECLARATION OF PRINCIPLES AND STATE POLICIES ?
....As the Court explained in Tanada v. Angara, the provisions of Article II of the 1987
Constitution, the declarations of principles and state policies, are not selfexecuting. Legislative failure to pursue such policies cannot give rise to a cause of
action in the courts. (Espina vs. Zamora [2010] .
Do they have usefulness in litigation?
They obligate the judiciary to be guided by the provisions in the exercise of the
power of judicial review
JURISPRUDENCE (TONDA MEDICAL EMPLOYEES ASSOCIATION, ET., VS.
COURT OF APPEALS [2007])
In Tanada v. Angara, the Court specifically set apart the sections found
under Article II of the 1987 Constitution as non self-executing and
ruled that such broad principles need legislative enactments before
they can be implemented:
By its very title, Article II of the Constitution is a declaration of principles
and state policies. x x x. These principles in Article II are not intended to
be self-executing principles ready for enforcement through the courts.
They are used by the judiciary as aids or as guides in the exercise of its
power of judicial review and by the legislature in its enactment of laws
JURISPRUDENCE (TONDA MEDICAL EMPLOYEES
ASSOCIATION, ET., VS. COURT OF APPEALS [2007])
In Basco v. Philippine Amusement and Gaming
Corporation this Court declared that Sections
11, 12, and 13 of Article II; Section 13 of Article
XIII; and Section 2 of Article XIV of the 1987
Constitution are NOT self-executing provisions.
JURISPRUDENCE (TONDA MEDICAL EMPLOYEES ASSOCIATION, ET., VS.
COURT OF APPEALS [2007])
In Tolentino v. Secretary of Finance the Court referred to Section 1 of
Article XIII and Section 2 of Article XIV of the Constitution as moral
incentives to legislation, not as judicially enforceable rights. These
provisions, which merely lay down a general principle, are
distinguished f rom other constitutional provisions as non self
executing and, therefore, cannot give rise to a cause of action in the
courts; they do not embody judicially enforceable constitutional
rights.
JURISPRUDENCE (TONDA MEDICAL EMPLOYEES ASSOCIATION, ET., VS. COURT OF APPEALS
[2007])
In the remaining provisions, Sections 11 and 14 of Article XIII and Sections 1 and 3 of
Article XV, the State accords recognition to the protection of working women and the
provision for safe and healthful working conditions; to the adoption of an integrated
and comprehensive approach to health; to the Filipino family; and to the right of
children to assistance and special protection, including proper care and nutrition
JURISPRUDENCE (TONDA MEDICAL EMPLOYEES ASSOCIATION, ET., VS. COURT OF
APPEALS [2007])
WHAT IS THE REMEDY OF THE PEOPLE IF THE PRINCIPLES ARE NOT ACTED UPON BY THE
EXECUTIVE AND LEGISLATIVE?
Like the provisions that were declared as non self-executory in the cases of Basco v.
Philippine Amusement and Gaming Corporation [ and Tolentino v. Secretary of
Finance, they are mere statements of principles and policies. As such they are mere
directives addressed to the executive and the legislative departments. If unheeded
the remedy will not lie with the courts but rather the electorates displeasure may be
manifested in their votes
Art.II, Section 1
Distinction between a State and a Nation.
Legal Doctrines of Parens Patriae, Separation of Powers, Principle
of blending of powers, Principle of Checks and Balances
….
Philippines
as a
republican
state
A republic is a
representative
government.
Essence of republicanism
is representation and
renovation
… sovereignty
resides in the
people and all
government
authority
emanates
from them.
Sovereignty is the supreme and
uncontrollable power inherent in a State
by which that State is governed.
Legal Sovereignty is the authority which
has the power to issue final commands.
Political Sovereignty is the power behind
the legal sovereign.
Internal Sovereignty refers to the power
of the State to control its domestic
affairs. External Sovereignty is the power
of the State to direct its relations with
other States, is also known as
independence.
ARTICLE 11, SECTION 2
Renunciation of war
Incorporation of international law
Adheres to the policy of peace, equality, justice,
freedom of cooperation and amity with all
nations
WHAT DO WE MEAN BY RENUNCIATION OF WAR?
As a signatory to the UN Charter we do not merely
renounce war we also adhere to Article 2 (4) that says, "all
members shall refrain in their international relations from the
threat or use of force against the territorial integrity or
political independence of any state, or in any other manner
inconsistent with the purposes of the United Nations.”
WHAT DO WE MEAN BY INCORPORATION OF INTERNATIONAL LAW?
Generally accepted principles of international law, by virtue of the
incorporation clause of the Constitution form part of the laws of the
land even if they do not derive from treaty obligations. The classical
formulation in international law sees those customary rules accepted
as binding result from the combination [of] two elements: the
established, widespread, and consistent practice on the part of States;
and a psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory
by the existence of a rule of law requiring it. (Pharmaceutical Health
Care Association vs. Duque [2007])
HOW IS INTERNATIONA LAW INCORPORATED?
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation.
The transformation method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local legislation. The
incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law.
Treaties become part of the law of the land through transformation pursuant to
Article VII, Section 21 of the Constitution which provides that [n]o treaty or
international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the members of the Senate. Thus, treaties or conventional
international law must go through a process prescribed by the Constitution for it to
be transformed into municipal law that can be applied to domestic conflicts
GENERALLY ACCEPTED PRINCIPLES OF LAW
Generally accepted principles of international law refers to norms of
general or customary international law which are binding on all states,
i.e., renunciation of war as an instrument of national policy, the
principle of sovereign immunity, a person's right to life, liberty and due
process, and pacta sunt servanda
Note case of Knights of Rizal vs. DMCI [2018]
Venice Charter as a guideline and not as law.
SIGNIFICANCE OF ANG LADLAD CASE
We refer now to the petitioner "s invocation of the Yogyakarta
Principles (the Application of International Human Rights Law In
Relation to Sexual Orientation and Gender Identity), which petitioner
declares to reflect binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta
Principles contain norms that are obligatory on the Philippines. There
are declarations and obligations outlined in said Principles which are
not reflective of the current state of international law and do not find
basis in any of the sources of international law enumerated under
Article 38(1) of the Statute of the International Court of Justice. x x x
Using
even the most liberal of lenses, these Yogyakarta
Principles, consisting of a declaration formulated by
various international law professors, are - at best - de
lege refenda - and do not constitute binding
obligations on the Philippines. x x x (Ang LADLAD LGBT
Party v. COMELEC, G.R. No. 190582, 618 SCRA 32, April
8, 2010, En Banc [Del Castillo])
ARTICLE 11, SECTION 2
What do we mean by Civilian Supremacy?
Pursuant to the maintenance of civilian supremacy over the military,
the Constitution has allocated specific roles to the legislative and
executive branches of government in relation to military affairs.
Military appropriations, as with all other appropriations, are
determined by Congress, as is the power to declare the existence of
a state of war. Congress is also empowered to revoke a proclamation
of martial law or the suspension of the writ of habeas corpus. The
approval of the Commission on Appointments is also required before
the President can promote military officers from the rank of colonel or
naval captain. Otherwise, on the particulars of civilian dominance
and administration over the military, the Constitution is silent, except
for the commander-in-chief clause which is fertile in meaning and
implication as to whatever inherent martial authority the President
may possess. (Bautista vs. Senga [2006])
CIVILIAN SUPREMACY
Protector of the people. Military has no political role?
Guardian of the state sovereignty.
Can military exercise of political power be justified as a last resort?
When civilian supremacy has lost its legitimacy
Role of the Armed Forces
a. Protector of the people and the State
b. Secure the sovereignty of the State and the integrity of the national territory
ARTICLE 11, SECTIONS 7 AND 8
Independent Foreign Policy
Freedom from Nuclear Weapons
Right of self- determination (Internal and External) – note case
of Province of North Cotabato vs. Government, 586 SCRA 402)
FILIPINO FIRST POLICY
In
the grant of rights, privileges and concessions
covering the national economy and patrimony, the
State shall give preference to qualified Filipinos
(Sec. 10, 2nd par., Art. XII of the Constitution)
IMPORTANCE OF THE MANILA PRINCE HOTEL CASE
Manila Prince Hotel v. GSIS,267 SCRA 408 (1997) (Bellosillo)
In this case, the SC ruled that this provision is self-executing. It was also
in this case w here the Court clarified that the rule now is that all
provisions of the Constitution are presumed to be self-executing,
rather than non-self executing. Elaborating, the Court explained that
if a contrary presumption is adopted, the whole Constitution shall
remain dormant and be captives of Congress, which could have
disastrous consequences.
Also, in this case the SC held that "patrimony" simply means
"heritage.“ Thus, when we speak of "national patrimony," we refer not
only to the natural resources of the Philippines but as well as the
cultural heritage of the Filipino people.
LIFE OF THE UNBORN
Article
II, Section 12 of the Constitution states: "The
State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic
autonomous social institution. It shall equally protect
the life of the mother and the life of the unborn from
conception.".
SIGNIFICANCE OF THE IMBONG VS. OCHOA (2014) CASE?
In its plain and ordinary meaning (a canon in statutory construction),
the traditional meaning of "conception" according to reputable
dictionaries cited by the ponente is that life begins at fertilization.
Medical sources also support the view that conception begins at
fertilization.
The framers of the Constitution also intended for (a) "conception" to
refer to the moment of "fertilization" and (b) the protection of the
unborn child upon fertilization. In addition, they did not intend to ban
all contraceptives for being unconstitutional; only those that kill or
destroy the fertilized ovum would be prohibited. Contraceptives that
actually prevent the union of the male sperm and female ovum, and
those that similarly take action before fertilization should be
deemed non-abortive, and thus constitutionally permissible.
IMBONG VS. OCHOA (2014)
The intent of the framers of the Constitution for protecting the life of
the unborn child was to prevent the Legislature f rom passing a
measure prevent abortion. The Court cannot interpret this otherwise.
The RH Law is in line with this intent and actually prohibits abortion. By
using the word "or" in defining abortifacient (Section 4(a)), the RH Law
prohibits not only drugs or devices that prevent implantation but also
those that induce abortion and induce the destruction of a fetus
inside the mother 's womb. The RH Law recognizes that the fertilized
ovum already has life and that the State has a bounded duty to
protect it.
ARTICLE II, SECTION 16
Right to a balanced and healthful ecology
Intergenerational responsibility
Linked with the right to health
Writ of Kalikasan
Remedy against violation or threat of violation of constitutional right to a balanced
and healthful ecology by an unlawful act or omission of a public official or employee,
or private individual or entity, involving environmental damage of such magnitude as
to prejudice the life, health or property of inhabitants in two or more cities or province
Requisites for the Issuance of the
Writ
a.
There is an actual or threatened violation of the constitutional right
to a balanced and healthful ecology;
b.
The actual or threatened violation arises from an unlawful act or
omission of a public official or employee, or private individual or
entity; and
c.
The actual or threatened violation involves or will lead to an
environmental damage of such magnitude as to prejudice the life,
health or property of inhabitants in two or more cities or provinces
[Segovia v. Climate Change Commission, G.R. No. 211010 (2017)]
PRECAUTIONARY PRINCIPLE
Precautionary principle states that when human activities may lead to threats of
serious and irreversible damage to the environment that is scientifically plausible
but uncertain, actions shall be taken to avoid or diminish that threat.
It is notable x x x that the precautionary principle shall only be relevant if there is
concurrence of three elements, namely: uncertainty, threat of environmental
damage
and serious or irreversible harm. In situations where the threat is
relatively certain, or that the causal link between an action and environmental
damage can be established, or the probability of occurrence can be calculated,
only preventive, not precautionary measures, may be taken. Neither will the
precautionary principle apply if there is no indication of a threat of environmental
harm or if the threatened harm is trivial or easily reversible.(MosquedaI et al. v.
Pilipino Banana Growers & Exporters Association Inc. et al. G.R. No. 189185I August
16I 2016}
PRECAUTIONARY PRINCIPLE
In Mosqueda, et al. v. Pilipino Banana Growers & Exporters
Association, Inc., et aI., (G.R. No. 189185, August 16, 2016, En
Banc[Bersamin]), it was argued that the Ordinance enacted by the
City of Davao prohibiting aerial spraying of pesticides is justified
since it will protect the health of residents and the environment
against the risks posed by aerial drift of chemicals applying the
precautionary principle. The Court did not find the presence of the
elements for this principle to apply.
PRECAUTION
ARY
PRINCIPLE
We should not apply the precautionary
approach in sustaining the ban against
aerial spraying if little or nothing is known
of the exact or potential dangers that
aerial spraying may bring to the health
of the residents within and near the
plantations and to the integrity and
balance of the environment. It is
dangerous to quickly presume that the
effects of aerial spraying would be
adverse even in the absence of
evidence.
MAMMALS CASE
Are these marine mammals the proper parties to file the
petition ? In this case, actually the SC did not rule squarely
on this issue. The Court ruled instead that the issue of
whether these marine mammals have locus standi to file
the petition had been eliminated because of Section 5,
Rules for the Enforcement of Environmental Laws, which
allows any citizen to file a petition for the enforcement of
environmental laws (Citizen "s Suit) and, in their petition,
these marine mammals were joined by human beings as
"stewards of nature."
MAMMALS CASE
Resident Marine Mammals of the Protected
Seascape Tanon Strait vs. Secretary Angelo
Reyes, GR no. 180771, April 21, 2015
Mammals do not have legal standing, but
human beings as stewards of the environment
have.
PRESIDENTIAL SYSTEM
In a presidential form of government, there is the
observance of the doctrine of separation of powers; in a
parliamentary government, instead of separation of powers,
there is the union of the executive and legislative branches.
In a presidential for m of government, the President is
elected by the people at large; in a parliamentary
government, the Prime Minister is elected not by the people
at large but by members of Parliament.
STATE IMMUNITY FROM SUIT
There are two conflicting concepts of sovereign immunity,
each widely held and firmly established. According to the
classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the courts of another
sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to
public acts or acts jure imperii of a state, but not with
regard to private acts or acts jure gestionis. (Holy See vs.
Rosario [1994]) The Philippines adopts the restrictive view.
JUSMAG VS. NLRC [1994]
The doctrine of state immunity from suit has undergone further
metamorphosis. The view evolved that the existence of a contract
does not, per se, mean that sovereign states may at all times, be
sued in local courts. The complexity of relationships between
sovereign states brought about by their increasing commercial
activities, mothered a more restrictive application of the doctrine.
xxx
As it stands now, the application of the doctrine of immunity. from
suit has been restricted to sovereign or governmental activities (Jure
imperii). The mantle of state immunity can not be extended to
commercial, private and proprietary acts (Jure gestionis)
The rule, in any case, is not really absolute for it does not say that
the state may not be sued under any circumstances. On the
contrary x x x the doctrine only conveys, "the state may not be
sued without its consent;" its clear import then is that the State
may at times be sued. The State's consent may be given either
expressly or impliedly. Express consent may be made through a
general law (i.e., Commonwealth Act No. 327, as amended by
Presidential Decree No. 1445 [Sections 49-50], which requires
that all money claims against the government must first be filed
with the Commission on Audit which must act upon it within sixty
days. Rejection of the claim will authorize the claimant to
elevate the matter to the Supreme Court on certiorari and, in
effect, sue the State thereby) or a special law.
In this jurisdiction, the general law waiving the immunity of the state
from suit is found in Act No. 3083, where the Philippine government
"consents and submits to be sued upon any money claim involving
liability arising from contract, express or implied, which could serve as
a basis of civil action between the private parties." Implied consent,
on the other hand, is conceded when the State itself commences
litigation, thus opening itself to a counterclaim or when it enters into
a contract. In this situation, the government is deemed to have
descended to the level of the other contracting party and to have
divested itself of its sovereign immunity. (Department of Agriculture v.
NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug])
NOT ALL CONTRACTS
This rule is not without qualification. Not all contracts
entered into by the government operate as a waiver of its
non-suability; distinction must still be made between one
which is executed in the exercise of its sovereign function
and another which is done in its proprietary capacity.
The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign sovereign, its
commercial activities or economic affairs. Stated differently, a State may be
said to have descended to the level of an individual and can thus be deemed
to have tacitly given its consent to be sued only when it enters into business
contracts. It does not apply w here the contracts relate to the exercise of its
sovereign functions. In this case the projects are an integral part of the naval
base which is devoted to the defense of both the United States and the
Philippines, indisputably a function of the government of the highest order; they
are not utilized for nor dedicated to commercial or business purposes."
(Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug]
DOES NOT APPLY
Neither does it apply where the public official is
clearly being sued not in his official capacity but
in his personal capacity, although the acts
complained of may have been committed
while he occupied a public position. (Amado J .
Lansang v. CA, G.R. No. 102667, Feb. 23, 2000,
2nd Div. [Quisumbing])
ARIGO VS. SWIFT (2014) TUBBATATAHA CASE
A petition filed for the issuance of a Writ of Kalikasan directed against
the Commander of the US Pacific Fleet for the destruction of our corrals
in Tubbataha reef (a protected area system under the NIPAS [National
Integrated Protected Areas System] and a UN declared World Heritage
Site because of its rich marine bio-diversity) in the Sulu Sea caused by
the USS Guardian, an American naval vessel when it ran aground there
in the course of its voyage to Indonesia f rom its base in Okinawa,
Japan, will not prosper for lack of jurisdiction following the doctrine of
sovereign equality of all States. In effect, the suit is a suit against the US
government and, therefore, should be dismissed.
The waiver of immunity from suit of the US under the Visiting Forces
Agreement (VFA) applies only to waiver from criminal jurisdiction, so
that if an American soldier commits an offense in the Philippines, he
shall be tried by Philippine courts under Philippine laws. The waiver did
not include the special civil action for the issuance of a Writ of
Kalikasan.
Also, the demand for compensation for the destruct ion of our corrals in
Tubbataha reef has been rendered moot and academic. After all, the
US already signified its intention to pay damages, as expressed by the
US embassy officials in the Philippines, the only request is that a panel of
experts composed of scientists be constituted to assess the total
damage caused to our corrals there, which request is not
unreasonable.
NORTHRAIL CASE (CHINA NATONAL RAILWAY VS. JUDGE STA.MARIA
(2014)
In Holy See, this Court reiterated the oft-cited doctrine that the
determination by the Executive that an entity is entitled to sovereign
or diplomatic immunity is a political question conclusive upon the
courts, to wit:
In Public International Law, when a state or international agency
wishes to plead sovereign or diplomatic immunity in a foreign court, it
requests the Foreign Office of the state where it is sued to convey to
the court that said defendant is entitled to immunity.
IMMUNITY FROM SUIT
The question now is whether any agency of the Executive Branch can make a
determination of immunity from suit, which may be considered as conclusive upon
the courts. This Court, in Department of Foreign Affairs (DFA} v. National Labor
Relations Commission (NLRC},emphasized the DFAs competence and authority to
provide such necessary determination, to wit:
The DFAs function includes, among its other mandates, the determination of persons
and institutions covered by diplomatic immunities, a determination which, when
challenge, {sic) entitles it to seek relief from the court so as not to seriously impair the
conduct of the country's foreign relations. The DFA must be allowed to plead its
case whenever necessary or advisable to enable it to help keep the credibility of
the Philippine government before the international community. When international
agreements are concluded, the parties thereto are deemed to have likewise
accepted the responsibility of seeing to it that their agreements are duly regarded.
In our country, this task falls principally of {sic) the DFA as being the highest executive
department with the competence and authority to so act in this aspect of the
international arena.
An agreement to submit any dispute to arbitration may be
construed as an implicit waiver of immunity from suit.
In the United States, the Foreign Sovereign Immunities Act of
1976 provides for a waiver by implication of state immunity. In
the said law, the agreement to submit disputes to arbitration
in a foreign country is construed as an implicit waiver of
immunity from suit. Although there is no similar law in the
Philippines, there is reason to apply the legal reasoning
behind the waiver in this case
SEPARATION OF POWERS
The principle of separation of powers ordains that each of the three
great branches of government has exclusive cognizance of and is
supreme in matters falling within its own constitutionally allocated
sphere.
Necessarily imbedded in this doctrine is the principle of nondelegation of powers, as expressed in the Latin maxim potestas
delegata non delegari potest which means what has been
delegated, cannot be delegated. This doctrine is based on the
ethical principle that such delegated power constitutes not only a
right but a duty to be performed by the delegate through the
instrumentality of his own judgment and not through the intervening
mind of another. However, this principle of non-delegation of powers
admits of numerous exceptions, lone of which is the delegation of
legislative power to various specialized administrative agencies like
the Board in this case. (Bureau of Customs Employees vs. Teves [
2011]}
SEPARATION OF POWERS
The doctrine of separation of powers is not absolute in its
application; rather, it should be applied in accordance with the
principle of checks and balances. The removal from office of
elective officials must not be tainted with partisan politics and used
to defeat the will of the voting public. Congress itself saw it fit to vest
that power in a more impartial tribunal, the court. Furthermore, the
local government units are not deprived of the right to discipline
local elective officials; rather, they are prevented from imposing the
extreme penalty of dismissal. (Sangguniang Barangay Mariano
Marcos vs. Punong Barangay Severino Martiniez [2007])
DELEGATION OF POWERS
The principle of separation of powers ordains that each of the three great branches
of government has exclusive cognizance of and is supreme in matters falling within its
own constitutionally allocated sphere. Necessarily imbedded in this doctrine is the
principle of non-delegation of powers, as expressed in the Latin maxim potestas
delegata non delegari potest which means what has been delegated, cannot be
delegated. This doctrine is based on the ethical principle that such delegated power
constitutes not only a right but a duty to be performed by the delegate through the
instrumentality of his own judgment and not through the intervening mind of
another. However, this principle of non delegation of powers admits of numerous
exceptions one of which i s the delegation of legislative power to various
specialized administrative agencies. (Bureau of Customs Employees vs. Teves [2011)
Permissible delegations
PROVISION
SCOPE OF POWER
Art. VI, section 28 (2) Tariff Powers
Art. VI, section 23 (2) Emergency Powers
Art. VI, section 32
Delegation to the
People
THREE BRANCHES
Legislative
Executive
Judiciary
Powers and Limitations
Attributes
Exercise
LEGISLATIVE POWER
The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people
by the provision on initiative and referendum. (Section
1,Article VI, 1987 Constitution)
Legislative power is not exclusive to Congress.
Section 1 in relation to Section 32 reserved for the people
ordinary legislative power through "initiative and
referendum."
BICAMERAL SYSTEM
The Principle of Bicameralism
The Bicameral Conference Committee
It is a mechanism for compromising differences between the Senate
and the House of Representatives. By the nature of its f unction, a
Bicameral Conference Committee is capable of producing
unexpected results - results which sometimes may even go beyond its
own mandate. (Philippine Judges Association v. Secretary Prado;
Tolentino v. Secretary of Finance)
COMPOSITION OF THE
HOUSE OF REPRESENTATIVES
District Representatives
Party-list Representatives
DISTRICT REPRESENTATIVES
Section 5 (1) prescribes that district representatives shall be elected
from legislative districts apportioned among the provinces, cities, and
the Metropolitan Manila area in accordance with the number of their
respective inhabitants and on the basis of a uniform and progressive
ratio.
Equality of representation
CONSTITUTIONAL FRAMEWORK (ART. VI, SECTION 5) ON THE FOUR
RULES OF APPORTIONMENT
Section 5 (1) The House of Representatives shall be composed of
not more than two hundred and fifty members, unless otherwise
fixed by law, who s all be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective
inhabitants, and on the basis o a uniform and progressive ratio,
and those who, as provided by law, shall be elected through a
party-list system of registered national, regional, and sectoral
parties or organizations.
CONSTITUTIONAL FRAMEWORK (ART. VI, SECTION 5) ON THE FOUR RULES
OF APPORTIONMENT
Section 5. (2) The party-list representatives shall constitute twenty per
centum of the total number of representatives including those under
the party list. For three consecutive terms after the ratification of this
Constitution, one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or
election from the labor, peasant, urban poo r, indigenous cultural
communities, women, youth, and such other sectors as may be prov
id ed by law, except the religious sector.
Each legislative district shall comprise, as far as practicable,
contiguous, compact and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each province,
shall have at least one representative .
CONSTITUTIONAL FRAMEWORK (ART. VI, SECTION 5)
ON THE FOUR RULES OF APPORTIONMENT
Section 5. (3) Within three years following the
return of every census, the Congress shall make
a reapportionment of legislative districts based
on the standards provided in this section..
AQUINO VS. COMELEC [2010]
The use by the subject provision of a comma to separate the phrase
each city with a population of at least two hundred fifty thousand from
the phrase or each province point to no other conclusion than that the
250,000 minimum population is only required for a city, but not for a
province.
Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum
population only for a city to be entitled to a representative, but not so
for a province.
AQUINO VS. COMELEC [2010]
The Mariano case limited the application of the 250,000 minimum
population requirement for cities only to its initial legislative district. In
other words, while Section 5(3), Article VI of the Constitution requires
a city to have a minimum population of 250,000 to be entitled to a
representative it does not have to increase its population by another
250,000 to be entitle to an additional district.
There is no reason why the Mariano case, which involves the creation
of an additional district within a city, should not be ap plied to
additional districts in provinces. Indeed, if an additional legislative
district created within a city is not required to represent a population
of at least 250,000 in order to be valid, neither should such be
needed for an additional district in a province, considering moreover
that a province is entitled to an initial seat by the mere fact of its
creation and regardless of its population.
DIFFERENCE BETWEEN LEGISLATIVE APPORTIONMENT AND REAPPORTIONMENT
(BAGABUYO VS. COMELEC [2008]
Article VI entitled Legislative Department of the 1987 Constitution lays down the
rules on legislative apportionment under its Section 5 which provides:
Sec. 5 (1) The House of Representatives shall be composed of not more than two
hundred fifty members unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective inhabitants, and on
the basis of a uniform and progressive ratio, and those who, as provided by law
shall be elected through a party-list system of registered national, regional and
sectoral parties or organizations.
xxx
(3) Each legislative district shall comprise as far as practicable, continuous,
compact, and adjacent territory. Each city with a population of at least two
hundred fifty thousand or each province, shall have at least one representative.
(4) Within three years following the return of every census, the Congress shall make
a reapportionment of legislative districts based on the standards provided in this
section.
DIFFERENCE BETWEEN LEGISLATIVE APPORTIONMENT AND
REAPPORTIONMENT (BAGABUYO VS. COMELEC [2008]
Legislative apportionment does not mean, and does not
even imply, a division of a local government unit where the
apportionment takes place.
Thus, the plebiscite requirement that applies to the division of
a province, city, municipality or barangay under the Local
Government Code should not apply to and be a requisite for
the validity of a legislative apportionment or reapportionment
SECTORAL REPRESENTATIONS
Three different groups may participate in the party-list system: (1)
national parties or organizations, (2) regional parties or organizations,
and (3) sectoral parties or organizations.
National parties or organizations and regional parties or organizations
do not need to organize along sectoral lines and do not need to
represent any "marginalized and underrepresented" sector.
SECTORAL REPRESENTATIONS
Political parties can participate in party-list elections
provided they register under the party-list system and do
not field candidates in legislative district elections. A
political party, whether major or not, that fields
candidates in legislative district elections can participate
in party-list elections through its sectoral wing that can
separately register under the party-list system.
SECTORAL REPRESENTATIONS
Sectoral parties or organizations may either be "marginalized and
underrepresented" or lacking in "well-defined political
constituencies." It is enough that their principal advocacy pertains to
the special interest and concerns of their sector. The sectors that are
"marginalized and underrepresented" include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities,
handicapped, veterans, and overseas workers. The sectors that lack
"well-defined political constituencies" include professionals, the
elderly women and the youth.
SECTORAL REPRESENTATIONS
A majority of the members of sectoral parties or organizations t hat
represent t he "marginalized and underrepresented" must belong to
the "marginalized and underrepresented" sector t hey represent.
Similarly, a majority of the members of sectoral parties or
organizations that lack "well-defined political constituencies" must
belong to t he sector they represent. The nominees of sectoral parties
or organizations that represent t he "marginalized and
underrepresented ' or t hat represent those who lack "well-defined
political constituencies either must belong to their respective sectors,
or must have a t rack record of advocacy for their respective sectors.
The nominees of national and regional parties or organizations must
be bona fide members of such parties or organizations.
Political law
and Public International Law
Review
GUILLER B. ASIDO, LL.M.
BULACAN STATE UNIVERSITY
COLLEGE OF LAW
TWO QUESTIONS ON PARTY-LIST
1.
How many votes must an organization receive in
order to qualify for a seat in House of
Representatives?
2.
Whether the allocated 20% of the total
membership in the House of Representatives must
be filled up?
FIRST QUESTION
Parties, organizations, and coalitions participating in the
system to obtain at least 2% of the total votes cast for the
party list system in order to be entitled to a party list seat.
Those garnering more than this percentage may have
additional seats in proportion to their total number of votes.
No winning party, organization or coalition may have more
than 3 seats in the House of Representatives.
PARAMETERS
the twenty (20) percent allocation;
the two (2) percent threshold;
the three (3) - seat limit; and
proportional representation
How
1. Determine the percentage of votes garnered by each party by
dividing the number of votes garnered by each party by the total
number of votes cast for all party list candidates. The two
percenters.
2. In determining the additional seats, the continued operation of
the 2% threshold is not allowed. The guaranteed seats shall no
longer be included. The remaining available seats for allocation are
the maximum seats reserved under the Party List system less the
guaranteed seats. Fractional seats are disregarded.
3. Allocate the additional seats
SECOND QUESTION
Whether the allocated 20% of the total membership in the House of
Representatives must be filled up?
The 20% prescription of the Constitution was merely a maximum limit to the
number of party list representatives but the maximum need not be filled.
(Veterans Federation Party vs. COME LEC; reiterated in the case of Partido vs.
COME LEC [2000])
QUALIFICATIONS AND PRIVILEGES
Once elected, both the district representatives and the party-list representatives
are treated in like manner. They have the same deliberative rights, salaries, and
emoluments. They can participate in the making of laws that will directly benefit
their legislative districts or sectors. They are also subject to the same term limitation
of three years for a maximum of three consecutive terms. (Daryl Grace J . Abayon
v. The Honorable House of Representatives Electoral Tribunal, et al., G.R. Nos.
189466 and 189506, 612 SCRA 375, 11February 2010, En Banc [Abad])
RESIDENCE REQUIREMENT
The constitution does not use the word domicile, but residence.
Residence means a place of abode, whether permanent or temporary.
Domicile means permanent residence to which one when absent, has the
intention to return. Residence, in other words, is not necessarily domicile; but
domicile necessarily residence.
The enumeration of qualifications in Section 6, Article VI is exclusive. Congress
may not add anything to it.
PRIVILEGE FROM ARREST
Section 11,Article VI
Limited only to offenses punishable by not more than 6 years
imprisonment.
The immunity applies for as long as Congress is in session, whether or
not the legislator involved is actually attending it.
Popular sovereignty is not a ground to evade arrest.
PRIVILEGE OF SPEECH AND DEBATE
It is a guarantee of immunity from answerability before an
outside forum, but not answerability to the disciplinary
authority of Congress itself.
The speech or debate must be one made in Congress or in
any committee thereof
QUESTIONS ON OFFICERS OF CONGRESS
Avelino vs. Cuenca [1949]; Santiago vs. Guingona
[1998]
Question is political in nature. In the absence of
any constitutional or statutory guidelines or
specific rules, the High Court is devoid of any basis
upon which to determine the legality of acts of
the Senate relative thereto.
INQUIRIES IN AID
OF LEGISLATION
Section 21, Article
VI
Rights and
principles that may
be validly invoked
Rights and principles
1.
President’s Executive Privilege, but only in relation to certain types of
information of a sensitive character and which would not serve to
automatically exempt executive officials from the duty to disclose
information by the mere fact of their being executive officials. (Senate vs.
Ermita, GR no.169777, April 20, 2006)
2. The fiscal autonomy and constitutional independence of the Judiciary
3. Sub-judice rule
4. Right to Privacy , except when the subject matter of inquiry pertains to
the witness’ discharge of his official functions (Sabio vs. Gordon, GR
no.174340, October 17, 2006)
5. Right against Self incrimination
6. President may validly prohibit a Military General from appearing in a
legislative inquiry, although legislature is not precluded from seeking judicial
relief to compel attendance (Gudani vs. Senga, 498 SCRA 671)
WHEN JOURNAL CONFLICTS WITH ANOTHER OFFICIAL ACT OF
CONGRESS?
Enrolled Bill
The enrolled bill is the duly authenticated copy of a bill or
resolution bearing the signature of the Speaker and the Senate
President and the certification of the secretaries of both houses
that such bill was passed.
It is the certification of the officers of both houses that gives
probative weight to an enrolled bill..
ELECTORAL TRIBUNALS
Sect ion 17 Article VI of t he Constitution provides that the HRET shall be the sole
judge of all contests relating to among other things the qualifications of the
members of the House of Representatives. Since party-list nominees are
"elected members" of the House of Representatives the HRET has jurisdiction to
hear and pass upon their qualifications. By analogy wit h t he cases of district
representatives once the party or organization of the party-list nominee has
been proclaimed and the nominee has taken his oath and assumed office as
member of the House of Representatives, the COMELEC "s jurisdiction over
election contests relating to his qualification ends and the HRET"s own
jurisdiction begins. ( Daryl Grace J . Abayon v. The Honorable House of
Representatives Electoral Tribunal et al., G.R. Nos. 189466 and 189506, 612
SCRA 375, 11 February 2010, En Banc [Abad])
IS THE DECISION OF HRET OR SET SUBJECT TO
REVIEW?
No. HRET/SET is the sole judge of all contests
relating to among other things the
qualifications of the members of the House of
Representatives/Senate.
Exception: Grave abuse of discretion
amounting to lack or excess of jurisdiction.
CAN THE SET DETERMINE ISSUES ON
TERRORISM AND FRAUD IN AN
ELECTION?
Yes, it has jurisdiction to determine
acts of terror ism.
It can annul the election results in
precint to remain faithful to its
constitutional mandate.
POWER OF APPROPRIATION
No money shall be paid out of the Treasury except in
pursuance of an appropriations made by law.
(Section 29 [1], Article VI, 1987 Constitution)
Under the Constitution the power of appropriation is
vested in the Legislature subject to the requirement
that appropriations bills originate exclusively in the
House of Representatives with the option of the
Senate to propose or concur with amendments.
PORK BARREL SYSTEM
The Court defines the Pork Barrel System as the collective
body of rules and practices that govern the manner by
which lump-sum, discretionary funds, primarily intended for
local projects, are utilized through the respective
participations of the Legislative and Executive branches of
government including its members. The Pork Barrel System
involves two (2) kinds of lump-sum discretionary funds:.
TWO KINDS OF LUMP SUM
First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum, discretionary
fund wherein legislators, either individually or collectively organized into committees, are able to
effectively control certain aspects of the fund’s utilization through various post-enactment measures
and/or practices; and
Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum, discretionary
f und which allows the President to deter mine the manner of its utilization. x x x the Court shall delimit
the use of such term to refer only to the Malampaya Funds and the Presidential Social Fund. (Belgica
v. Ochoa, G.R. No. 208566, 710 SCRA 1, 105-106, Nov. 19, 2013, En Banc [Perlas-Ber nabe])
QUESTION HOUR
The Question Hour (Section 22, Article VI, 1987
Constitution)
As explained by the Court in Senate v. Ermita,
this question hour is not really a regular feature
of a presidential government, but is merely a
borrowed concept from a parliamentary
government.
RIGHT TO INFORMATION
The right to information does not extend to matters
recognized as privileged information" under the
separation of powers, by which the Court meant
Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings.
PRESIDENTIAL COMMUNICATIONS PRIVILEGE
Thus, if what is involved is the presumptive privilege of presidential
communications when invoked by the President on a matter clearly
within the domain of the Executive the said presumption dictates
that the same be recognized and be given preference or priority in
the absence of proof of a compelling or critical need for disclosure
by the one assailing such presumption. Any construction to the
contrary will render meaningless the presumption accorded by
settled jurisprudence in favor of executive privilege. In fact, Senate v.
Ermita reiterates jurisprudence citing "the considerations justifying a
presumptive privilege for Presidential communications."
INQUIRIES
Congressional Investigations
There are two (2) kinds of congressional
investigations, i.e., inquiry in aid of legislation
(Section 21, Article VI, 1987 Constitution); and
the question hour (Section 22,Article VI,987
Constitution)
INQUIRY
In ArnauIt v. Nazareno, the Court held that intrinsic in the grant
of legislative power itself to Congress by the Constitution is the
power to conduct inquiries in aid of legislation, for Congress
may not be expected to enact good laws if it will be denied the
power investigate.
Note that Arnault was decided in the 1950"s under the 1935
Constitution, and in that Constitution there was no provision
similar to that which is expressly provided in the present
Constitution. Yet, as early as that case, the Court already
recognized that this power is intrinsic in the grant of legislative
power itself to Congress by the Constitution.
RELEVANT QUESTIONS
In Bengzon Jr. v. Senate Blue Ribbon Committee,
two (2) relevant questions were raised.
First, is this power of each House of Congress to
conduct inquiries in aid of legislation absolute or
are there limitations?
Second, is this power subject to judicial review or is
it a political question?
NOT ABSOLUTE
As to the first question, the Court clarified that a mere
reading of Section 21,Article VI of the Constitution will
show that the power is not really absolute; in fact
there are three (3) important limitations imposed
therein, and these are:
•The inquiry must be in aid of legislation;
•It must be conducted in accordance with the duly published rules
of procedure of a
•House of Congress conducting such inquiry; and
•The rights of persons appearing in or affected by such inquiry shall
be respected.
SUBJECT TO JUDICIAL REVIEW
As to the second, the Court held that since it had already
been shown that the power is not really absolute, in fact,
there are important limitations, it follows, therefore, that
such is subject to judicial review especially i n view of the
expanded power of the Court to determine whether or
not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government.
COMMISSION ON A PPOINTMENTS
Section 18,Article VI
Composition
Proportional Representation of all political parties and parties and
organizations registered under the party list system.
Total number of representatives divided by number of
representatives in the Commission (complement). The full
complement of 12 was not mandatory.
Independent body; can promulgate its own rules; the Supreme Court
cannot pass upon the correctness of the interpretation placed by
the Commission of its own rules.
COMMISSION ON APPOINTMENTS
CA can only meet when Congress is in session.
Intended to serve as check and balance
Should act on all appointments submitted to within 30
"session" days of Congress from their submission and
that the Commission should rule by majority vote.
POWER TO DECLARE WAR
Who exercises power and what kind of war is covered ?
Congress by a vote of 2/3 of both houses in joint session assembled,
voting separately shall have the sole power to declare the existence
of a state of war (section 23, article VI)
War is defined as armed hostilities between two states; Emphasize
Article 11, section 2 renouncing aggressive war as an instrument of
national policy.
Does not prohibit the waging of a defensive war even in the absence
of a declaration of war or of a declaration of the existence of a state
of war.
The actual power to make war is an executive power. It may make
war even in the absence of a declaration of war.
DELEGATION OF EMERGENCY POWERS
Section 26, Article VI
War or other national emergency
Congress may authorize the president to exercise powers necessary
and proper to carry out a declared national policy. A delegation of
real legislative power.
Subject to two restrictions: (1) For a limited period. Unless sooner
withdrawn by resolution of the congress, such powers shall cease upon
the next adjournment thereof; (2) Subject to such restrictions as the
Congress may provide.
THE EXECUTIVE POWER
The executive power shall be vested in the President of the Philippines.
(Section 1, Article VI I,1987 Constitution)
Nature of the Executive Power in relation to Separation of Powers; Checks
and Balances
It has already been established that there is one repository of executive
powers, and that is the President of the Republic. This means that when Sect
ion 1,Art icle VI I of the Constitution speaks of executive power it is granted to
the President and no one else. Corollary it is only the President, as Chief
Executive, w ho is authorized to exercise emergency powers as provided
under Section 23, Article VI, of the Constitution, as well as w hat became
known as the calling- out powers under Sect ion 18, Article VII thereof.(Jamar
Kulayan v. Gov. Ab dusakur Tan, G.R. No. 187298,July 3, 2012)
POWER OF THE EXECUTIVE
The duty to protect the State and its people must be carried
out earnestly and effectively throughout the whole territory of
the Philippines in accordance with constitutional provision on
national territory. Hence, the President of the Philippines, as the
sole repository of executive power is the guardian of the
Philippine archipelago, including all the islands and waters
embraced therein and all other territories over which the
Philippines and sovereignty or jurisdiction. x x x
POWER TO CALL OUT
To carry out this important duty the President is equipped with authority over
the Armed Forces of the Philippines (AFP), which is the protector of the
people and the state. x x x. In addition, the Executive is constitutionally
empowered to maintain peace and order, protect life, liberty, and
property, and promote the general welfare. In recognition of these powers,
Congress has specified that the President must oversee, ensure, and
reinforce our defensive capabilities against external and internal threats
and, in the same vein ensure that the country is adequately prepared for all
national and local emergencies arising from natural and man- made
disasters.
To be sure, this power is limited by the Constitution itself. X x x (Rene A.V.
Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, J r., et al., G.R. No.
212426, Jan . 12, 2016, En Banc [Sereno,CJ])
FAITHFUL EXECUTION CLAUSE
The Court has interpreted the faithful execution clause as an
obligation imposed on the President and not a separate grant of
power. Section 17, Article VII of the Constitution, expresses this duty
in no uncertain terms and includes it in the provision regarding the
President’s power of control over the executive department
In light of this constitutional duty, it is the President’s prerogative to
do whatever is legal and necessary for Philippine defense interests.
FAITHFUL EXECUTION CLAUSE
• ITs no coincidence that the constitutional provision on the faithful
execution clause was followed by that on the President’s commanderin-chief powers, which are specifically granted during extraordinary
events of lawless violence, invasion, or rebellion. And this duty of
defending the country is unceasing even in times when there is no
state of lawless violence, invasion or rebellion. At such times, the
President has full powers to ensure the faithful execution of the laws.
• It would therefore be remiss for the President and repugnant to the
faithful-execution clause of the Constitution to do nothing when the
call of the moment requires increasing the military "s defensive
capabilities, which could include forging alliances with states that hold
a common interest with the Philippines or bringing an international suit
against an offending state.
DEFERENCE TO THE PRESIDENTIAL INITIATIVE
This approach of giving utmost deference to presidential initiatives in respect
of foreign affairs is not novel to t he Court. The President "s act of treating
EDCA as an executive agreement is not the principal power being analyzed x
x x. Rather, the preliminary analysis is in reference to the expansive power of
foreign affairs. We have long treated this power as something the Courts must
not unduly restrict.
xxx
Understandably, this Court must view t he instant case with the same
perspective and understanding, knowing full well t he constitutional and legal
repercussions of any judicial overreach. (Rene A.V. Saguisag, et al. v.
Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426,Jan. 12, 2016,
En Banc [Sereno, CJ])
DOCTRINE OF QUALIFIED POLITICAL AGENCY or ALTER EGO PRINCIPLE
Under this doctrine, which recognizes the establishment of a single executive, all
executive and administrative organizations are adjuncts of the Executive
Department, the heads of the various executive departments are assistants and
agents of the Chief Executive and except in cases where the Chief Executive is
required by the Constitution or law to act in person or the exigencies of the situation
demand that he act personally, the multifarious executive and administrative
functions of the Chief Executive are performed by and
through the executive
departments, and the actsof the Secretaries of such
departments, performed
and promulgated in the regular course of business are, unless disapproved or
reprobated by the Chief Executive presumably the acts of the Chief Executive.
(Resident Marine Mammals of the Protected Seascape Tanon Strait, et al. v.
Secretary Angelo Reyes, et al., GR Nos. 180771 and 181527, April 21,2015, En Banc
[Leonardo-De Castro])
APPOINTING POWER
Conformably, as consistently interpreted and ruled in the leading case of Sarmiento 11 1 v.
Mison, and in the subsequent cases of Bautista v. Salonga, Quintos-Deles v. Constitutional
Commission, and Calderon v. Carale, under Sect ion 16, Article VII, of the Constitution, there
are four groups of officers of the government to be appointed by the President:
First, the heads of the executive departments, ambassadors ,other public ministers and
consuls, officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution;
Second, all other officers of the Government whose appointments are not otherwise
provided for by law;
APPOINTING POWER
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank whose appointments the Congress may by law
vest in the President alone.
It is well-settled that only presidential appointees belonging to the first group
require the confirmation by the Commission on Appointments. (Manalo v.
Sistoza, 312 SCRA 239, Aug. 11, 1999, En Banc [Purisima])
AD INTERIM APPOINTMENT; NATURE AND CHARACTER
An ad interim appointment is a permanent appointment because it takes effect
immediately and can no longer be withdrawn by the President once the appointee
has qualified into office. The fact that it is subject to confirmation by the Commission
on Appointments does not alter its permanent character.
The Constitution itself makes an ad interim appointment permanent in character by
making it effective until disapproved by the Commission on Appointments or until the
next adjournment of Congress. x x x Thus, the ad interim appointment remains
effective until such disappr oval or next adjournment, signifying that it can no longer
be withdrawn or revoked by the President.
AD INTERIM APPOINTMENT; NATURE AND CHARACTER
The Constitution imposes no condition on the effectivity of an ad interim appointment
and thus an ad interim appointment takes effect immediately. The appointee can at
once assume office and exercise, as a de jure officer all the powers pertaining to the
office.
Thus, the term "ad interim appointment", as used in letters of appointment signed by the
President, means a permanent appointment made by the President in the meantime
that Congress is in recess. It does not mean a temporary appointment that can be
withdrawn or revoked at any time. The term although not found in the text of the
Constitution, has acquired a definite legal meaning under Philippine jurisprudence.
LIMITATIONS ON POWER TO APPOINT
Two months immediately before the next presidential
elections and up to the end of his term, a President or
Acting President shall not make appointments, except
temporary appointments to executive positions when
continued vacancies therein will prejudice public service
or endanger public safety. (Section 15, Article VII, 1987
Constitution)
MAY A SOLICITOR GENERAL BE APPOINTED AS SOJ?
Section 7 (2), Article IX-B of the 1987 Constitution; Section 13,Article VII
Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in the Constitution hold any other office or
employment during their tenure.
The prohibition against dual or multiple offices being held by one official
must be construed as to apply to all appointments or designations,
whether permanent or temporary.
EXCEPTIONS TO PROHIBITION AGAINST MULTIPLE POSITIONS
One, those provided under the 1987 Constitution such as Article VI I,
section 3 authorizing the Vice President to become a member of the
cabinet.
Two, posts occupied by Executive Officials specified in Section
13,Article VII without additional compensation in ex oficio capacities
as provided by law and required by the primary functions of the
officials' offices
CALLING OUT POWER AS COMMANDER IN CHIEF
While the President is still a civilian, Article 1 1, Sect ion 3 of the
Constitution mandates that civilian authority is at all times, supreme
over the military, making the civilian president the nation’s supreme
military leader. The net effect of Article 1 1, Sect ion 3, when read wit h
Article VI I, Section 18, is that a civilian President is the ceremonial, legal
and administrative head of the armed forces.
The Constitution does not require that the President must be possessed
of military training and talents, but as Commander-in-Chief, he has the
power to direct military operations and to determine military strategy.
Normally, he would be expected to delegate the actual command of
the armed forces to military experts, but the ultimate power is his.
(Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En
Banc [Sereno, CJ])
Political law
and Public International Law
Review
GUILLER B. ASIDO, LL.M.
SUBJECT TO JUDICIAL REVIEW OR POLITICAL QUESTION?
When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary
power solely vested in his wisdom.
This is clear from the intent of the framers and from the text of the
Constitution itself. The Court, thus, cannot be called upon to overrule the
President’s wisdom or substitute its own. However, this does not prevent
an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting
grave abuse of discretion. In view of the constitutional intent to give the
President full discretionary power to determine the necessity of calling
out the armed forces, it is incumbent upon the petitioner to show that
the President 1s decision is totally bereft of factual basis.. ( Integrated Bar
of the Philippines v. Hon. Ronalda B. Zamora, G.R. No. 141284,Aug. 15,
2000, En Banc lKapunan])
BASIS FOR THE FULL DISCRETIONARY POWER ON CALL OUT POWER BY
THE PRESIDENT
Full discretionary power under section 18, Article VII
Call out such Armed Forces to prevent or suppress lawless violence,
invasion or rebellion
Reinforced by Article VII, section 18 - no such power on Congress to
revoke or review the President's action to call out the Armed Forces
TWO CONDITIONS TO EXERCISE THE POWE R TO SUSPEND THE
PRIVILEGE OF HABEAS CORPUS OR IMPOSE MARTIAL LAW
One, there must be actual invasion or rebellion; and
Two, public safety must require it.
These two conditions are not required in the power to call out the
AFP. The only criterion is that "whenever it becomes necessary".
PRESIDENT'S AUTHORITY TO DECLARE A STATE OF
NATIONAL EMERGENCY (ARTICLE VII)
EXERCISE OF EMERGENCY POWER
(ART.VI)
Section 18. The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any part
thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of
the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting jointly,
by a vote of at least a majority of all its Members irregular or
special session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President. Upon
the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to
be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
Section 23. The Congress, by a vote of twothirds of both Houses in joint session assembled,
voting separately, shaII have the sole power to
declare the existence of a state of war.
In times of war or other national emergency,
the Congress may by law authorize the
President, for a limited period and subject to
such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a
declared national policy. Unless sooner
withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment
thereof.
NOTE ARTICLE XII
Section 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under reasonable
terms prescribed by it, temporarily take over or direct the operation of
any privately-owned public utility or business affected with public interest.
Requires delegation of power from Congress
EMERGENCY CONSTRUED
• Economic
• Natural Disaster
• National Security
It may include economic crisis, epidemic,
typhoon, flood or other similar catastrophe
of nationwide proportions
PARDONING POWER
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 all
the Members of the Congress. (Section 19, 1987 Constitution)
The 1987 Constitution specifically Section 19 of Article VII and Section 5 of
Article IX-C, provides that the President of the Philippines possesses the
power to grant pardons, along with other acts of executive clemency.
PARDONING POWER
It is apparent that the only instances in which the President may not extend pardon remain to
be: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3)
cases involving violations of election laws, rules and regulations in which there was no favorable
recommendation coming from the COME LEC. Therefore, it can be argued that any act of
Congress by way of statute cannot operate to delimit the pardoning power of the President.
It is unmistakably the long-standing position of this Court that the exercise of the pardoning
power is discretionary in the President and may not be interfered wit h by Congress or the Court,
except only when it exceeds the limits provided for by the Constitution.
PARDONING POWER
This
doctrine of non-diminution or non-impairment of the
President "s power of pardon by acts of Congress,
specifically through legislation, was strongly adhered to by
an overwhelming majority of the framers of the 1987
Constitution w hen they finally rejected a proposal to carve
out an except ion from the pardoning power of the
President in the form of "offenses involving graft and corrupt
ion" that would be enumerated and defined by Congress
through the enactment of a law. (Atty.Alicia Risos Vidal v.
COMELEC, G.R. No. 206666,January 21, 2015, En Banc
[Leonardo De Castro])
PARDON
AMNESTY
Infraction of laws of the state or ordinary offenses
Addressed to Political Offenses
Granted to individuals
Granted to a class or classes of persons
Must be accepted
Need to be accepted
No need for concurrence of Congress
Requires the concurrence of Congress
Looks backward and relieves pardonee of the
consequences of the offenses
Looks forward
DIPLOMATIC AND TREATY MAKING POWER
No treaty or inter national agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of
the Senate. (Section 21,Article VII, 1987 Constitution)
After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the Senate and, when the Congress
so requires ratified by a majority of the votes cast by the people in
a national referendum held for that purpose, and recognized as a
treaty by the other contracting State. (Section 25, Article XVIII,
1987 Constitution)
DIPLOMATIC AND TREATY MAKING POWER
The President also carries the mandate of being the sole organ in the
conduct of foreign relations. Since every state has the capacity to
interact with and engage in relations wit h other sovereign states, it is
but logical that every state must vest in an agent the authority to
represent its interests to those other sovereign states.
xxx
The role of the President in foreign affairs is qualified by the Constitution
in that the Chief Executive must give paramount importance to the
sovereignty of the nation, the integrity of its territory, its interest, and the
right of the sovereign Filipino people to self-determination. x x x (Rene
A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et
al., G.R. No. 212426,Jan. 12,2016, En Banc [Sereno, CJ])
POWER TO RATIFY TREATY
In
our jurisdiction, the power to ratify is vested in the
President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to
giving or withholding its consent, or concurrence, to
the ratification. (BAYAN [Bagong Alyansang
Makabayan] v. Executive Secretary Ronalda
Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc
[Buena])
GENERAL RULE
Section 21,Article VII deals with treaties or inter national agreements in general, in which case,
the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to
make the subject treaty, or inter national agreement valid and binding on the part of the
Philippines.
This provision lays down the general rule on treaties or international agreements and applies to
any for m of treaty with a wide variety of subject matter such as, but not limited to, extradition
or tax treaties or those economic in nature. All treaties or international agreements entered into
by the Philippines, regardless of subject matter, coverage, or particular designation or
appellation, requires the concurrence of the Senate to be valid and effective.
SPECIAL RULE
In contrast, Section 25, Article XVIII is a special provision that applies to
treaties which involve the presence of foreign military bases troops or
facilities in the Philippines.
Under this provision, the concurrence of the Senate is only one of the
requisites to render compliance w ith the constitutional requirements
and to consider the agreement binding on the Philippines.
Sect ion 25, Article XVIII further requires that "foreign military bases,
troops or facilities" may be allowed in the Philippines only by virtue of a
treaty duly concurred in by the Senate, ratified by a majority of the
votes cast in a national referendum held for that purpose if so required
by Congress and recognized as such by the other contracting State.
SPECIAL RULE
It is a finely-imbedded principle in statutory
construction that a special provision or law
prevails over a general one. Lex specialis
derogat generali. (BAYAN [ Bagong Alyansang
Makabayan] v. Executive Secretary Ronalda
Zamora, G.R. No. 138570 and Companion
Cases, Oct. 10, 2000, 342 SCRA 449, 481-492, En
Banc [Buena])
EDCA
Despite the President’s roles as defender of the State and sole
authority in foreign relations, the 1987 Constitution expressly limits
his ability in instances when it involves the entry of foreign military
bases, troops or facilities. The initial limitation is found in Sect ion
21 of the provisions on the Executive Department x x x. The
specific limitation is given by Section 25 of the Transitory
Provisions x x x.
It is quite plain that the Transitory Provisions of the 1987
Constitution intended to add to the basic requirements of a
treaty under Sect ion 21 of Article VII. This means that both
provisions must be read as additional limitations to the President
"s overarching executive functions in matters of defense and
foreign relations. (Rene A.V. Saguisag, et al. v. Executive
Secretary Paquito N. Ochoa, Jr., G.R. No. 212426,January 12,
2016, En Banc [Sereno, CJ])
POWER TO ENTER INTO EXECUTIVE AGREEMENTS
As the sole organ of our foreign relations, and the
constitutionally assigned chief architect of our
foreign policy, the President is vested with the
exclusive power to conduct and manage the
country’s interface with other states and
governments. Being the principal representative of
the Philippines, the Chief Executive speaks and
listens for the nation; initiates, maintains, and
develops diplomatic relations with other states and
governments; negotiates and enters into
international agreements; promotes trade,
investments, tour ism and other economic
relations; and settles international disputes with
other states
POWER TO ENTER INTO EXECUTIVE AGREEMENTS
As previously discussed, this constitutional
mandate emanates from the inherent power of
the President to enter into agreements with
other stats, including the prerogative to
conclude binding executive agreements that
do not require further Senate concurrence. The
existence of this presidential power is so wellentrenched that Section 5(2)(a), Article VIII of
the Constitution, even provides for a check on
its exercise
DEFINED
In Commissioner of Customs v. Easter n Sea Trading
(113 Phil. 333 [1961]) executive agreements are
defined as "international agreements embodying
adjustments of detail carrying out well established
national polices and traditions and those involving
arrangements of a more or less temporary nature."
In Bayan Muna v. Romulo, this Court further
clarified that executive agreements can cover a
wide array of subjects that have various scopes
and purposes. They are no longer limited to the
traditional subjects that are usually covered by
executive agreements as identified in Easter n Sea
Trading.
DEFINED
One of the distinguishing features of executive
agreements is that their validity and effectivity
are not affected by a lack of Senate
concurrence. This distinctive feature was
recognized as early as in Easter n Sea Trading
(1961) x x x (Rene A.V. Saguisag, et al. v.
Executive Secretary Paquito N. Ochoa, J r., G.R.
No. 212426, January 12, 2016, En Banc [Sereno,
CJ])
BINDING EFFECT OF EXECUTIVE AGREEMENTS
In international law there is no difference
between treaties and executive agreements in
their binding effect upon states concerned, as
long as the functionaries have remained within
their powers. International law continues to
make no distinction between treaties and
executive agreements: they are equally
binding obligations upon nations. (BAYAN
[Bagong Alyansang Makabayan] v. Executive
Secretary Ronalda Zamora, G.R. No. 138570,
Oct. 10, 2000, En Banc[ Buena])
POWERS RELATIVE TO APPROPRIATION
The President shall submit to the Congress within thirty days from the opening
of every regular session, as the basis of the general appropriations bill, a
budget of expenditures and sources of financing, including receipts f rom
existing and proposed revenue measures. (Sec. 22, Art. VII, 1987 Constitution)
The Congress may not increase the appropriations recommended by the
President for the operation of the Government as specified in the budget. The
form, content, and manner of preparation of the budget shall be prescribed
by law. (Sec. 25[1], Art. VI, 1987 Constitution)
JUDICIAL DEPARTMENT
The
judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to deter mine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government. (Section 1, Article VIII, 1987 Constitution)
JUDICIAL DEPARTMENT
The Constitution states that judicial power includes the duty of the
courts of justice not only "to settle actual controversies involving rights
which are legally demandable and enforceable" but also "to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." It has thereby expanded the
concept of judicial power which up to then was confined to its
traditional ambit of settling actual controversies involving rights that
were legally demandable and enforceable.
JUDICIAL POWER AND POLITICAL
QUESTION
In Tanada v. Cuenco, we held that political questions refer "to those
questions which, under the Constitution, are to be decided by the
people in their sovereign capacity or in regard to which full
discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure."
(Vinuya, et al. v. The Honorable Executive Secretary Alberto G. Romulo,
et al., G.R. No. 162230, Apr il 28. 2010, En Banc [Del Castillo])
MARCOS BURIAL CASE
In sum, there is no clear constitutional or legal basis to hold that there
was a grave abuse of discretion amounting to lack or excess of
jurisdiction which would justify the Court to interpose its authority to
check and override an act entrusted to the judgment of another
branch. Truly the President’s discretion is not totally unfettered. x x x. At
bar President Duterte x x x acted within the bounds of the law and
jurisprudence, Notwithstanding the call of human rights advocate, the
Court must uphold what is legal and just. And that is not to deny
Marcos of his rightful place at the LNMB. For even the Framers of our
Constitution intend that full respect for human rights is available at any
stage of a persons development, from the time he or she becomes a
person to the time he or she leaves this earth.
MARCOS BURIAL CASE
There are certain things that are better left for history - not this Court to adjudge. The Court could only do so much in accordance with
clearly established rules and principles. Beyond that, it is ultimately for
the people themselves, as the sovereign, to decide, a task that may
require the better perspective that the passage of time provides.
Saturnina C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al.,
G.R. No. 225973, November 8, 2016, En Banc (Peralta)
COMFORT WOMEN
The SC may not compel the President to take up the cause of the
petitioners (comfort women du ring World War II) against Japan. That
will violate the doctrine of separation of powers for that is a political
quest ion - a question in regard to which full discretionary authority has
been delegated by the Constitution to the President as the chief
architect of our foreign policy and as the spokesman of the nation in
matters of foreign relations. The most that the SC may do is to exhort
her to urge her to take up petitioners cause - but not to compel her.
In matters of foreign policy the Executive and the Judiciary must speak
with just one voice to avoid serious embarrassments and st rained
relations with foreign countries. (Vinuya, et. al. v. The Honorable
Executive Secretary Alberto G. Romulo, et. al., G. R. No. 162230,April 28.
2010, En Banc ( Del Castillo)
REQUISITES TO EXERCISE JUDICIAL REVIEW
The prevailing rule in constitutional litigation is that no question involving the
constitutionality or validity of a law or governmental act may be heard and
decided by the Court unless there is compliance with the legal requisites for
judicial inquiry, namely: (a) there must be an actual case or controversy
calling for the exercise of judicial power; (b) the person challenging the act
must have the standing to question the validity of the subject act or issuance;
(c) the question of constitutionality must be raised at the earliest opportunity;
and (d) the issue of constitutionality must be the very lis mota of the case. Of
these requisites, case law states that the first two are the most important.
(Belgica, et al. v. Exec. Sec. Paquito N. Ochoa, et al., G.R. No. 208566, 710
SCRA 1, 89, Nov. 19, 2013, En Banc [Perlas-Bernabe])
REQUISITES TO EXERCISE JUDICIAL REVIEW
It is well-settled that no question involving the constitutionality or validity of a
law or governmental act may be heard and decided by the Court unless the
following requisites for judicial inquiry are present: (a) there must be an actual
case of controversy calling for the exercise of judicial power; (b) the person
challenging the act must have the standing to question the validity of the
subject or issuance; (c) the question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of constitutionality must be the very lis
mota of the case. In this case, the absence of the first two, which are the
most essential, renders the discussion of the last two superfluous. (Saturnina C.
Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No. 225973,
November 8, 2016, En Banc [Peralta])
ACTUAL CASE OR CONTROVERSY
An "actual case or controversy" is one which involves a conflict of legal
rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished f rom a hypothetical or abstract difference
or dispute. There must be contrariety of legal rights that can be
interpreted and enforced on the basis of existing law or jurisprudence.
Related to the requisite of an actual case or controversy is the requisite
of "ripeness," which means that something had been accomplished or
performed by either branch before a court may come into the picture,
and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action.
ACTUAL CASE OR CONTROVERSY
Moreover, the limitation on the power of judicial review to actual cases
and controversies carries the assurance that the courts will not intrude
into areas committed to the other branches of the government. Those
areas pertain to questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative
or executive branch of the government. As they are concerned with
questions of policy and issues dependent upon the wisdom, not
legality of a particular measure, political questions used to be beyond
the ambit of judicial review.
ACTUAL CASE OR CONTROVERSY
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination not conjectural or anticipatory lest the
decision of the court would amount to an advisory opinion. (Republic
Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 91-92 [2001]) The
rule is that courts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging. The controversy must be
justiciable - definite and concrete, touching on the regal relations of parties
having adverse legal interests. In other words, the pleadings must show an
active antagonistic assertion of a legal right, on the one hand and a denial
thereof, on the other; that is it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature,
as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. (Information Technology Foundation of the
Philippines v. Commission on Elections,499 Phil. 281, 304-305 [2005])
ACTUAL CASE OR CONTROVERSY
However, the scope of the political question doctrine has been limited
by Section 1of Article VIII of the 1987 Constitution when it vested in the
judiciary the power to deter mine 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. (Saturnina C.
Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No.
225973, November 8, 2016, En Banc [Peralta])
RIPENESS OF ACTUAL CASE
Corollary to the requirement of an actual case or controversy is the
requirement of ripeness (Lawyers against Monopoly and Poverty [LAMP] v.
The Secretary of Budget and Management, GR No. 164987, April 24, 2012, 670
SCRA 373, 383). A question is ripe for adjudication when the act being
challenged has had a direct adverse effect on the individual challenging it.
For a case to be considered ripe for adjudication, it is a prerequisite that
something has then been accomplished or performed by either branch
before a court may come into the picture, and the petitioner must allege the
existence of an immediate or threatened injury to himself as a result of the
challenged action. He must show that he has sustained or is immediately in
danger of sustaining some direct injury as a result of the act complained of
(The Province of North Cotabato v. The Government of the Republic of the
Philippines,589 Phil. 387,481 [2008]). (James M. Imbong, et al. v. Hon. Paquito
N. Ochoa, Jr., et al., GR No. 204819,April 8,2014
MOOT AND ACADEMIC
An action is considered "moot" w hen it no longer presents a justiciable
controversy because the issued involved have become academic or dead,
or w hen the matter in dispute has already been resolved and hence, one is
not entitled to judicial intervention unless the issue is likely to be raised again
between the parties (Santiago v. Court of Appeals, 348 Phil. 792, 800 [1998]).
Time and again, courts have refrained from even expressing an opinion in a
case where the issues have become moot and academic, there being no
more justiciable controversy to speak of, so that a determination thereof
would be of no practical use or value (Barbieto v. Court of Appeals, GR No.
184646, October 30,2009,604 SC RA 825, 840). (International Service for the
Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia (
Philippines), et al., GR No. 209271, December 8, 2015, En Banc [VilIarama])
EXCEPTIONS TO MOOT AND
ACADEMIC
Even on the assumption of mootness, jurisprudence dictates that "the
moot and academic" principle is not a magical formula that can
automatically dissuade the Court in resolving a case.,, The Court will
decide cases, otherwise moot, if first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and
the paramount public interest is involved; third, when the constitutional
issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and fourth, the case is capable of
repetition yet evading review. (Belgica, et al. v. Exec. Sec. Paquito N.
Ochoa, et al., G.R. No. 208566, 710 SCRA 1, 93, Nov. 19, 2013, En Banc
[Perlas-Bernabe])
LEGAL STANDING
Defined as a right of appearance in a court of justice on a given
question locus standi requires that a party alleges such personal stake
in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the
court depends for illumination of difficult constitutional questions.
Unless a person has sustained or is in imminent danger of sustaining an
injury as a result of an act complained of, such party has no standing.
(Saturnina C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al.,
G.R. No. 225973, November 8, 2016, En Banc [Peralta])
LEGAL STANDING
LOCUS STANDI is "a right of appearance in a court of justice on a given question
(Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011,641 SCRA 244, 254, citing
David v. Macapagal-Arroyo,522 Phil. 705, 755 [2006]).
Specifically, it is "a party’s personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result" of the act being challenged, and
"calls for more than just a generalized grievance." (Id, citing Jumamilv. Cafe,507 Phil.
455, 465 [2005], citing Integrated Bar of the Philippines v. Zamora, 392 Phil. 618,632633 [2000]) However, the rule on standing is a procedural matter which this Court has
relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and legislator s
when the public interest so requires, such as when the subject matter of the
controversy is of transcendental importance of overreaching significance to society,
or of paramount public interest. (Biraogo v. Philippine Truth Commission of 2010, G.R.
Nos. 192935 & 193036, December 7,2010,637 SCRA 78151 citing Social Justice Society
[SJSl v. Dangerous Drugs Board, et a l.,591 Phil. 393404 [2008]; Tatad v. Secreta ry of
tne Department of Energy,346 Phil. 321 [1997] and De Guia v. COMELEC, G.R. No.
104712, May 6, 1992, 208 SCRA 420,422.)
STANDARD ON INTEREST
Lawyers against Monopoly and Poverty vs. Secreta ry of Budget and
Management, et al., G.R. No. 164987,April 24, 2012
In the determination of the degree of interest essential to give the
requisite standing to attack the constitutionality of a statute the genera
l rule is that not only persons individually affected, but also taxpayers
have sufficient interest in preventing the illegal expenditures of moneys
raised by taxation and may therefore question the constitutionality of
statutes requiring expenditure of public moneys.
MAMMALS CASE
had been suggested by animal rights advocates and environmentalists that
not only natural and juridical persons should be given legal stan ding
because of the difficulty for persons, w ho cannot show that they by
themselves are real parties-in-interests, to bring actions in representation of
these animals or inanimate objects. For this reason, many environmental
cases have been dismissed for failure of the petitioner to show that he/she
would be directly injured or affected by the outcome of the case
However, in our jurisdiction, locus standi in environmental cases has been
given a more liberalized approach. While developments in Philippine legal
theory and jurisprudence have not progressed as far as Justice Douglas's
paradigm of legal standing for inanimate objects, the current trend moves
towards simplification of procedures and facilitating court access i n
environmental cases.
GUIDELINES ON NON-TRADITIONAL
PARTIES
1.
For taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
2.
For voters, there must be a showing of obvious interest in the validity of
the election law in question;
3.
For concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled early; a nd
4.
For legislators, there must be a claim that the official action
complained of infringes their prerogatives as legislators.
FACIAL CHALLENGE
James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr.,et al.,(GR No.
204819,April 8, 2014, En Banc [Mendoza])
In United States (US) constitutional law a facial challenge, also known
as a First Amendment Challenge, is on that is launched to assail the
validity of statutes concerning not only protected speech, but also all
other rights in the First Amendment (See United States v. Salerno, 481
U.S. 739 [1987]). These include religious freedom, freedom of the press
and the right of the people to peaceably assemble, and to petition
the Government for a redress of grievances. After all, the fundamental
right to religious freedom, freedom of the press and peaceful assembly
are but component rights of the right to one’s freedom of expression,
as they are modes which one’s thoughts are externalized.
FACIAL CHALLENGE
In this jurisdiction, the application of doctrines originating from the U.S. has
been generally maintained, albeit with some modifications. While this Court
has withheld the application of facial challenges to strictly penal statutes
(Romualdez v. Commission on Elections,576 Phil. 357 [2008]; Romualdez v.
Sandiganbayan, 479 Phil. 265 [2004]; Estrada v. Sandiganbayan ,421 Phil. 290
[2001]),
It has expanded its scope to cover statutes not only regulating free speech
but also those involving religious freedom, and other fundamental rights
(Resolution, Romualdez v. Commission on Elections,594 Phil. 305, 316 [2008]).
The underlying reason for this modification is simple. For unlike its counterpart
in the U.S., this Court, under its expanded jurisdiction, is mandated by the
Fundamental Law not only to settle actual controversies involving rights which
are legally demandable and enforceable, but also to determine whet tier or
not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government.
Verily, the framers of Our Constitution envisioned a proactive Judiciary ever
vigilant with its duty to maintain the supremacy of the Constitution.
FACIAL CHALLENGE
Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,.
203335, Feb. 11, 2014, En Banc (Abad)
When a penal statute encroaches upon the freedom of speech, a
facial challenge grounded on the void-for-vagueness doctrine is
acceptable. The inapplicability of the doctrine must be carefully
delineated. As Justice Antonio T. Carpio explained in his dissent in
Romualdez v. Commission on Elections, "we must view these
statements of the Court on the inapplicability of the over breadth and
vagueness doctrines to penal statutes as appropriate only insofar as
these doctrines are used to mount "facial" challenges to penal statutes
not involving free speech."
VOID FOR VAGUENESS AND
OVERBREADTH
Southern Hemisphere Engagement Network, Inc., et al. v. Anti-Terrorism
Council, et al. (G.R. Nos. 178552, 178581, 178890, 179157, & 179461, 5
October 2010, En Banc (Carpio- Morales)
In addition, a statute or act suffers from the defect of vagueness when
it lacks comprehensible standards that men of common intelligence
must necessarily guess at its meaning and differ as to its application.
VOID FOR VAGUENESS AND
OVERBREADTH
The overbreadth doctrine, meanwhile, decrees that a governmental
purpose to control or prevent activities constitutionally subject to state
regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms. Distinguished from an as-applied challenge which considers
only extant facts affecting real litigants, a facial invalidation is an
examination of the entire law, pinpointing its flaws and defects, not
only on the basis of its actual operation to the parties, but also on the
assumption or prediction that its very existence may cause others not
before the court to refrain from constitutionally protected speech or
activities.
VOID FOR VAGUENESS AND
OVERBREADTH
The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or
her. Moreover challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests.
In overbreadth analysis, those rules give way; challenges are permitted to
raise the rights of third parties; and the court invalidates the entire statute "on
its fact," not merely "as applied for" so that the overbreadth law becomes
unenforceable until a properly authorized court construes it more narrowly.
The factor that motivates courts to depart from the normal adjudicatory rules
is the concern with the "chilling" deterrent effect of the overbreadth statute
on third parties not courageous enough to bring suit. The Court assumes that
an overbreadth law’s "very existence may cause others not before the court
to refrain from constitutionally protected speech or expression." An
overbreadth ruling is designed to remove that deterrent effect on the speech
of those third parties.
VOID FOR VAGUENESS AND
OVERBREADTH
The rule establish ed in our jurisdiction is, only statutes on free speech,
religious freedom and other fundamental rights may be facially
challenged. Under no case may ordinary penal statutes be subjected
to a facial challenge. Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial challenge is allowed for
this reason alone, the State may well be prevented from enacting laws
against socially harmful conduct. In the area of criminal law the law
cannot take chances as in the area of free speech.
RULE MAKING POWER
ARTICLE VIII, SECTION 5(5) Promulgate rules concerning the protection
and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the
integrated bar, an d legal assistance to the under-privileged. Such
rules shall provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all courts of the same
grade, and shall not diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court
RULE MAKING POWER
The 1987 Constitution took away the power of Congress to repeal alter or
supplement rules concerning pleading practice, and procedure; and that
the power to promulgate these rules is no longer shared by the Court with
Congress and the Executive, thus:
Since the payment of legal fees is a vital component of the rules
promulgated by this Court concerning pleading practice and procedure, it
cannot be validly annulled, changed or modified by Congress. As one of the
safeguards of this Courts institutional independence, the power to
promulgate rules of pleading, practice and procedure is now the Courts
exclusive domain. That power is no longer shared by this Court with Congress,
much less the Executive. (In re: Exemption of the National Power Corporation
A.M. no.05-10-2010 SC March 10 2010; reiterated in the case of In re:
Exemption of Perpetual Health Cooperative [2012])
CITIZENSHIP
Value
Citizenship is not a matter of convenience. It is a badge of identity that
comes with attendant civil and political rights accorded by the State
to its citizens. It likewise demands the concomitant duty to maintain
allegiance to one"s flag and country. (Casan Macode Maquiling v.
COMELEC, et al., G.R. No. 195649, Apr il 16,2013, En Banc [Sereno,CJ])
ADHERENCE TO JUS SANGUINIS
The Philippine law on citizenship adheres to the principle of jus
sanguinis. Thereunder, a child follows the nationality or citizenship of
the parents regardless of the place of his/her birth, as opposed to the
doctrine of jus soli which determines nationality or citizenship on the
basis of place of birth. (Valles v. COMELEC, 337 SCRA 543, Aug. 9, 2000,
En Banc [ Purisima])
ACQUIRING CITIZENSHIP
There are two ways of acquiring citizenship: (1) by birth, and (2) by
naturalization. These ways of acquiring citizenship correspond to the
two kinds of citizens: the natural-born citizen, and the naturalized
citizen. A person who at the time of his birth is a citizen of a particular
country is a natural-born citizen thereof.
As defined in the Constitution, natural-born citizens "are those citizens
of the Philippines from birth without having to perform any act to
acquire or perfect his Philippine citizenship.
On the other hand, naturalized citizens are those who have become
Filipino citizens through naturalization, generally under Commonwealth
Act No. 473, otherwise known as the Revised Naturalization Law, which
repealed the former Naturalization Law (Act No. 2927), and by
Republic Act No. 530. Antonio Bengson Ill v. HRET,G.R. No. 142840, May
7,2001, En Banc Kapunan])
NATURAL BORN CITIZENS
Natural-born citizens are those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their
Philippine citizenship. Those who elect Philippine citizenship in
accordance with paragraph (3), Section 1hereof shall be deemed
natural-born citizens. (Section 2,Article IV, 1987 Constitution)
In general, there are only two (2) kinds of Filipino citizens, i.e., naturalborn and naturalized. There is no third category. If one did not have to
undergo the cumbersome process of naturalization, it means that he is
natural-born. (Antonio Bengson Ill v. HRET, G.R. No. 142840, May 7,2001,
En Banc [Kapunan])
FOUNDLING AS A CITIZEN
To deny full Filipino citizenship to all foundlings and render them
stateless just because there may be a theoretical chance that one
among the thousands of these foundlings might be the child of not just
one, but two foreigners is downright discriminatory, irrational, and
unjust. It just doesn’t make any sense.
Given the statistical certainty 99.9% - that any child born in the
Philippines would be a natural-born citizen, a decision denying
foundlings such status is effectively a denial of their birthright. There is
no reason why this Honorable Court should use an improbable
hypothetical to sacrifice the fundamental political rights of an entire
class of human beings.
FOUNDLING AS A CITIZEN
As a matter of fact, foundlings are as a class, natural-born citizens.
While the 1935 Constitution’s enumeration is silent as to foundlings,
there is no restrictive language which would definitely exclude found
lings either
Domestic laws on adoption also support the principle that foundlings
are Filipinos. These laws do not provide that adoption confers
citizenship upon the adoptee. Rather, the adoptee must be a Filipino
in the first place to be adopted. x x x
Foundlings are likewise citizens under international law. Under the 1987
Constitution, an international law can become part of the sphere of
domestic law either by transformation or incorporation
FOUNDLING AS A CITIZEN
The common thread of the UDHR (Universal Declaration of Human
Rights), UNCRC (UN Convention on the Rights of the Child) and ICCPR
(International Covenant on Civil and Political Rights) is to obligate the
Philippines to grant nationality f rom birth and ensure that no child is
stateless.
This grant of nationality must be at the time of birth, and it cannot be
accomplish ed by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of
which require the applicant to be at least eighteen (18) years old .
(Mary Grace Natividad S. Poe-Llamanzares v. COME LEC,G R. No.
221697, March 8,2016, En Banc [Perez])
LOSS OR REACQUISITION OF
CITIZENSHIP
Philippine citizenship may be lost or reacquired in the manner provided
by law (Section 3, Article IV, 1987 Constitution)
There are three (3) ways by which Philippine citizenship may be
reacquired, namely: (1) by naturalization; (2) by repatriation; and (3)
by direct act of Congress
EFFECT OF MARRIAGE
Citizens of the Philippines who marry aliens shall retain their citizenship,
unless by their act or omission they are deemed, under the law, to
have renounce d it. (Section 4,Article IV, 1987 Constitution)
DUAL CITIZENSHIP VS. DUAL
ALLEGIANCE
Dual allegiance of citizens is inimical to the national interest and shall
be dealt with by law. (Section 5, Article IV, 1987 Constitution)
This provision is not self-executing. The word employed by Section 5 is
"shall." The law referred to is a future law
DUAL CITIZENSHIP VS. DUAL
ALLEGIANCE
Dual citizenship arises when, as a result of the concurrent application
of the different laws of two or more states, a person is simultaneously
considered a national by the said states. For instance, such a situation
may arise when a person whose parents are citizens of a state which
adheres to the principle of jus sanguinis is born in a state which follows
the doctrine of jus soli. Such a person, ipso facto and without any
voluntary act on his part, is concurrently considered a citizen of both
states.
DUAL CITIZENSHIP VS. DUAL
ALLEGIANCE
Dual allegiance, on the other hand, refers to a situation in which a
person simultaneously owes, by some positive act, loyalty to two or
more states. While dual citizenship is involuntary, dual allegiance is the
result of an individual’s volition. (Mercado v. Manzano, 307 SCRA 630,
May 26, 1999, En Banc [Mendoza])
ARE PERSONS WITH MERE DUAL CITIZENSHIP
DISQUALIFIED TO RUN FOR ELECTIVE LOCAL POSITIONS
UNDER SECTION 40(D) OF THE LOCAL GOVERNMENT
CODE?
The phrase "dual citizenship" in R.A. No. 7160, Section 40( d) (Local
Government Code) must be understood as referring to "dual allegiance."
Consequently, persons with mere dual citizenship do not fall under this
disqualification. Unlike those with dual allegiance, who must be subject to
strict process with respect to the termination of their status, for candidates
with dual citizenship, it should suffice if, upon the filing of their certificate of
candidacy, they elect Philippine citizenship to terminate their status as
persons with dual citizenship considering that their condition is the
unavoidable consequence of conflicting laws of different states.
ARE PERSONS WITH MERE DUAL CITIZENSHIP
DISQUALIFIED TO RUN FOR ELECTIVE LOCAL
POSITIONS UNDER SECTION 40(D) OF THE LOCAL
GOVERNMENT CODE?
By electing Philippine citizenship, such candidates at the same time
forswear allegiance to the other country of which they are also citizens
and thereby terminate their status as dual citizens. It may be that from
the point of view of the foreign state and of its laws, such an individual
has not effectively renounced his foreign citizenship. That is of no
moment. (Mercado v. Manzano, G.R. No. 135083, 307 SCRA 630, May
26, 1999 [Mendoza])
INSTANCES WHEN A CITIZEN OF THE PHILIPPINES MAY
POSSESS DUAL CITIZENSHIP CONSIDERING THE
CITIZENSHIP CLAUSE (ARTICLE IV) OF THE
CONSTITUTION.
1.
Those born of Filipino fathers and/or mothers in foreign countries which follow
the principle of jus soli;
2.
Those born in the Philippines of Filipino mothers and alien fathers if by the
laws of their father "s country such children are citizens of that country;
3.
Those who marry aliens if by the laws of the latter’s country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship. (Mercado v. Manzano, G.R. No. 135083,
307 SCRA 630, May 26, 1999 [ Mendoza])
DUAL CITIZENSHIP LAW (RA 9225)
The law applies to: (1) former natural-born citizens of the Philippines
who have already become citizens of a foreign country through
naturalization; and (2) natural-born citizens of the Philippines who may
wish to become a citizen of a foreign country through naturalization
after the effectivity of this Act.
In both cases, they are given the opportunity to either reacquire
(reacquisition) or retain (retention) their Philippine citizenship. Thus, in
effect they will possess dual citizenship.
DUAL CITIZENSHIP LAW (RA 9225)
Casan Macode Maquiling v. COMELEC, et al., G.R. No. 195649, April
16, 2013, En Banc (Sereno, CJ)
FACTS: When after renouncing his American citizenship upon his filing
of certificate of candidacy for mayor it was established that he
travelled several times to the US using his American passport, that was
an effective recantation of his renunciation of his foreign citizenship.
Thus, he reverted to his prior status as a person having dual citizenship
and, therefore, disqualified to run for mayor pursuant to Sec. 40 (d) of
the Local Government Code (R.A. No. 7061).
DUAL CITIZENSHIP LAW (RA 9225)
Sect ion 5( 2) of The Citizenship Retention and Re-acquisition Act of
2003 provides:
Those who retain or re-acquire Philippine citizenship under this Act shall
Enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and
the following conditions: x x x
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the
Constitution and existing laws and, at the time of the filing of the
certificate of candidacy, make a personal and sworn renunciation of
any and all foreign citizenship before any public officer authorized to
ad minister an oath.
DUAL CITIZENSHIP LAW (RA 9225)
We agree with the pronouncement of the COMELEC First Division that
Arnado’s act of continuous y using his US passport effectively negated
his Affidavit of Renunciation." This does not mean that he failed to
comply with the twin requirements under R.A. No. 9225, for he in fact
did. It was after complying with the requirements that he performed
positive acts which effectively disqualified him from running for an
elective public office pursuant to Section 40( d) of the Local
Government Code of 1991.
DUAL CITIZENSHIP LAW (RA 9225)
Besides, Arnado’s subsequent use of his Philippine passport does not
correct the fact that after he renounced his foreign citizenship and
prior to filing his certificate of candidacy, he used his US passport. In
the same way that the use of his foreign passport does not undo his
Oat h of Renunciation, his subsequent use of his Philippine passport
does not undo his earlier use of his US passport.
We therefore hold that Arnado, by using his US passport after
renouncing his Ameri can citizenship, has recanted the same Oath of
Renunciation he took. Section 40(d) of the Local Government Code
applies to his situation. He is disqualified not only from holding the
public office but even from becoming a candidate in the May
2011elections.
NATURALIZATION
Naturalization signifies the act of formally adopting a foreigner into the
political body of a nation by clothing him or her with the privileges of a
citizen. (Edison So v. Republic of the Philippines, G.R. No. 170603,
January 29, 2007, 3rd Div., [Callejo, Sr.])
WAYS TO BECOME A PH CITIZEN
Under current and existing laws, there are three ways by which an
alien may become a citizen by naturalization:
a)
administrative naturalization pursuant to R.A. No. 9139;
b)
judicial naturalization pursuant to C.A. No. 473, as amended; and
c)
legislative naturalization in the form of a law enacted by Congress
bestowing Philippine citizenship to an alien. (Edison So v. Republic of the
Philippines, G.R. No. 170603,January 29, 2007, 3rd Div., [Callejo, Sr.])
WAYS TO BECOME A PH CITIZEN
R.A. No. 9139 may be availed of only by native-born aliens who lived here in
the Philippines all their lives, who never saw any other country and all along
thought that they were Filipinos; who have demonstrated love and loyalty to
the Philippines and affinity to the customs and traditions of the Filipino
people.
To reiterate, the intent ion of the legislature in enacting R.A. No. 9139 was to
make the process of acquiring Philippine citizenship less tediousless technical
and more encouraging which is administrative rather than judicial in nature.
What the legislature had in mind was merely to prescribe another mode of
acquiring Philippine citizenship which may be availed of by native born
aliens. The only implication is that, a native born alien has the choice to apply
for judicia or administrative naturalization, subject to the prescribed
qualifications and disqualifications. ( Edison So v. Republic of the Philippines,
G.R. No. 170603, January 29,2007,3rd Div.,[Callejo, Sr.]
CONSTITUTIONAL COMMISSIONS
Legal Framework : Article IX- A, 1987 Constitution
Civil Service Commission
Commission on Audit
Commission on Elections
Declared as "independent by the constitution”.
INHIBITIONS
1.
Cannot hold any other office or employment
2.
Cannot engage in the practice of any profession
3.
Cannot take part in the active management or control of any
business which are affected by the functions of their office
4.
Shall not be financially interested directly or indirectly, in any contract
with, or in any franchise or privilege granted by the Government any
of its subdivisions, agencies or instrumentalities including GOCCs.
EVIDENCE OF INDEPENDENCE PRINCIPLE
1.
Salaries of their Commissioners are fixed by law and shall not be
decreased during their tenure (section 3,Article IX-A)
2.
Enjoy Fiscal Autonomy (section 5)
3.
Commissioners can be removed by impeachment only (Art. XI,
section 2)
4.
President cannot designate an Acting Chairman, like the Chairman of
the Comelec (Brillantes vs. Yorac [1990])
FISCAL AUTONOMY
The agencies which the Constitution has vested with fiscal autonomy
shouId be given priority in the release of their approved appropriations
against all other agencies not similarly vested when there is a revenue
shortfall. (CSC vs. DBM [2005])
Mandamus may be availed of to enforce fiscal autonomy.
PROMOTIONAL APPOINTMENT
There is nothing in section 1[2], Article IX-D that explicitly precludes a
promotional appointment f rom Commissioner to Chairman, provided
it is made under the condition - as long as the commissioner has not
served a full term of 7 years, and that the appointment to any
vacancy shall be only for the unexpired portion of the term of the
predecessor. In addition, the aggregate service of the Commissioner in
said position and the term to which he shall be appointed to the
position of Chairman must not exceed 7 years so as not to disrupt the
rotational system in the Commission.
CIVIL SERVICE COMMISSION
The civil service embraces all branches, subdivisions, intrumentalities,
and agencies of the Government including Government Owned and
Controlled Corporations with original charters.
Appointments in the civil service shall be made only according to merit
and fitness to be determined as far as practicable, by competitive
examination. (section 2[2], Article IX-B)
Exempt from competitive examination - Positions which are policy
determining, primarily confidential and highly technical.
LIMITATIONS/RESTRICTIONS
An officer or employee of the civil service may be removed or
suspended only for cause provided by law. (section 2 [3], Article IX-B)
No officer or employee in the civil service shall engage directly or
indirectly in any electioneering or partisan political campaign. (section
2 [4], Article IX-B)
Not allowed to engaged in strike, but entitled to right to self
organization
LIMITATIONS/RESTRICTIONS
No candidate who has lost in any election shall, within one yea r after
such election be appointed to any office in the Government, or in any
GOCC, or any of its subsidiaries. (Article IX-B, section 6)
No elective official shall be eligible for appointment or designation in
any capacity to any public office or position during his tenure. (section
7, Article IX-B)
No elective or appointive officer or employee shall receive additional
double or indirect compensation unless specifically authorized by law.
(section 8, Article IX-B)
No elective or appointive public officer or employee shall accept
without the consent of the Congress, any present, emolument or title of
any kind from any foreign government. (section 8, Article IX-B)
WHAT IS THE ONLY ACT THAT A CIVIL
SERVICE EMPLOYEE MAY DO WHICH IS
NOT PARTISAN POLITICAL ACTIVITY?
Vote
Section 79 (B) of the Omnibus Election Code - any act that is designed
to elect or promote the election of a candidate is an electioneering or
partisan political activity.
