PREAMBLE Q.
Why does the Constitution now say "Almighty God" instead of "Divine
WE, THE SOVEREIGN FILIPINO PEOPLE, IMPLORING THE AID OF
ALMIGHTY GOD, IN ORDER TO BUILD A JUST AND HUMANE SOCIETY
AND ESTABLISH A GOVERNMENT THAT SHALL EMBODY OUR IDEALSAND
ASPIRATIONS, PROMOTE THE COMMON GOOD, CONSERVE ANDDEVELOP
OUR PATRIMONY, AND SECURE TO OURSELVES AND OURPOSTERITYTHE
BLESSINGS OF INDEPENDENCE AND DEMOCRACY UNDER THE RULE OF
LAW AND A REGIME OF TRUTH, JUSTICE, FREEDOM, LOVE, EQUALITY
AND PEACE, DO ORDAIN AND PROMULGATE THIS CONSTITUTION.
Q. What is the function of the Preamble in the Constitution?
A. The Preamble is not a source of rights or of obligations. Jacobson v.
Massachussetts, 197 U.S. 11,22 (1905). Because, however, it sets down
the origin, scope, and purpose of the Constitution, it is useful as an aid in
ascertaining the meaning of ambiguous provisions in the body of the
Constitution. It is thus a source of light.
Q. What is the origin, scope and purpose of the Constitution as set out in the
Preamble?
A. Its origin, or authorship, is the will of the "sovereign Filipino people." Its scope
and purpose is "to build a just and humane society and to establish a
government that shall embody our ideals and aspirations, promote the
common good, conserve and develop our patrimony, and secure to
ourselves and our posterity the blessings of independence and
democracy under the rule of law and a regime of truth, justice, freedom,
love, equality and peace."
Q. What is the significance of the use of the grammatical first person "We?"
A. The use of the first person stresses the active and sovereign role of the
Filipino people as author of the Constitution. The language thus differs
from that of the 1935 Constitution which used the third person "The Filipino
people," thereby suggesting that another power was merely announcing that the
Filipinos were finally being allowed to promulgate a constitution.
Providence," as the 1935 and 1973 Constitutions did?
A. The phrase "Almighty God" is more personal and more consonant with
personalist Filipino religiosity.
Q. What is the meaning of "common good" and how does it differ from the
"general welfare" of the 1935 and 1973 Constitutions?
A. The phrase "common good" projects the idea of a social order that enables
every citizen to attain his or her fullest development economically,
politically, culturally, and spiritually. The phrase "general welfare" was
avoided because it could be interpreted as "the greatest good for the
greatest number" even if what the greater number wants does violence
to human dignity, as for instance when the greater majority might want
the extermination of those who are considered inferior.
Q. What is the significance of the specification of "equality?"
A. It emphasizes that a major problem in Philippine society is the prevalence of
gross economic and political inequalities.
Q. What other significant addition to previous preambles does the new version
have?
A. It adds the final phrase "under the rule of law and a regime of truth, justice,
freedom, love, equality and peace." "Love" is inserted as a monument to
the love that prevented bloodshed in the February Revolution. The
mention of "truth" is a protest against the deception which characterized
the Marcos regime. And "peace" is mentioned last as the fruit of the
convergence of truth, justice, freedom, and love.
Q. What is the import of "the rule of law?"
A. This expresses the concept that government officials have only the authority
given them by law and defined by law, and that such authority continues
only with the consent of the people. The statement is: "Ours is a rule of
law and not of men."

ARTICLE I
THE NATIONAL TERRITORY
SECTION 1.
THE NATIONAL -PERRITORY 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.
Q. What is the force of the-assertion of a territorial claim in a constitution?
A. It should be remembered that a constitution is municipal law. As such, it
binds only the nation promulgating it. Hence, a definition of national
territory in the constitution will bind internationally only if it is supported
by proof that can stand in international law.
Q. Why does the Constitution contain a definition of National Territory?
A. Like the 1935 and 1973 (^prostitutions, the new Constitution defines the
national territory of the Philippines. But the 1935 Constitution had a very
special reason for defining the National Territory. To be effective, the
1935 Constitution had to be accepted by the President of the United
States. Since at the time of the adoption of the 1935 Constitution there
was still some fear that the United States government might dismember
"Philippine territory, the delegates to the 1935 Constitution believed that
such dismemberment could be forestalled by including a definition of Philippine
territory in the Constitution. It was argued that acceptance of the Constitution by
the U.S. President would oblige the American government to keep the integrity of
Philippine territory as defined in the Constitution.
No such special reason compelled the inclusion of a definition of
National Territory in the 1973 Constitution. Some delegates, however,
argued that a definition of national territory should be placed in the
constitution for the preservation of the national wealth, for national
security, and as a manifestation of our solidarity as a people. Mor&
importantly, it was the wish of some to project in the Constitution
Philippine adherence to the "archipelagic principle" (which will be
discussed below).
The deliberations of the 1986 Constitutional Commission on the
subject repeated much of the discussion of the 1971 Constitutional
Convention. In the end there was recognition of the fact that an article
on national territory would have an educational value. Moreover, there
was apprehension that it would be difficult to explain why after the 1935
and 1973 provisions on the national territory the new Constitution
should fail to provide for one.
Q. Briefly, what is the scope of the national territory defined in Article I, Section
1?
A. It includes: (1) the Philippine archipelago; (2) all other territories over which
the Philippines has sovereignty or jurisdiction; and (3) the territorial sea,
the seabed, the subsoil, the insular shelves, and other submarine areas
corresponding to (1) and (2). Moreover, (1) and (2) consist of terrestrial,
fluvial, and aerial domains.
elf- •
Q. What is an archipelago? w
A. Ah archipelago is a body of water studded with islands.
Q. Where exactly is the Philippine archipelago situated?
A. The Philippine archipelago is that body of water studded, with islands which
is delineated in the Treaty of Paris of December 10,1898, as modified by
the Treaty of Washington of November 7,1900 and the Treaty with
Great Britain of January 2,1930. These are the same treaties that
delineated Philippine territory in Article I of the 1935 Constitution.
Sec. 1 ART. I - THE NATIONAL TERRITORY 5
Q. If these treaties delineate the Philippine archipelago, why are they not
mentioned in the Constitution?
A. The 1973 Constitution omitted specific mention of these treaties because
Constitutional Convention delegates wanted to erase every possible
.trace of our colonial history from the new organic document. The new
Constitution follows the lead of the 1973 Constitution.
Q. What is included by the clause "all other territories over which the
Philippines has sovereignty or jurisdiction?"
A.1 This includes any territory which presently belongs or might in the future
belong to the Philippines through any of the internationally accepted
modes of acquiring territory. Foremost among these territories are what
are referred to by the 1935 Constitution as "all territory over which the
present (1935) Government of the Philippine Islands exercises
jurisdiction.0 This had reference to the Batanes Islands which, although
indisputably belonging to the Philippines, apparently lay outside the lines
drawn by the Treaty of Paris.
It also includes what was referred to under the 1973 Constitution
as territories "belonging to the Philippines by historic right or legal title,"
that is, other territories which) depending on available evidence, might
belong to the Philippines {e.g., Sabah, the Marianas, Freedomland).
Q. By dropping the phrase "belonging to the Philippines by historic right or legal
title" has not the Constitution in effect dropped the Philippine claim to
Sabah?
A. No, it has not. It has, however, avoided the use of language historically
offensive to Malaysia and has used instead the clause "over which the
Philippines has sovereignty or jurisdiction." The clause neither claims nor
disclaims Sabah. It prescinds from an evaluation of the strength of the
Philippine claim. The formula is a recognition of the fact that unilateral
assertions in a constitution, which is municipal law, by themselves do not
^establish an international- right to a territory.
Q. Were the U.S. military bases in the Philippines still part of Philippine
territory?
A. Definitely. The precise reason why the Philippine government could
cede part of its authority over these bases to the United
6 THE 1987 PHILIPPINE CONSTITUTION: Sec. 1
A COMPREHENSIVE REVIEWER
States was the fact that they were part of the Philippine territory
over which the government exercised sovereign control. Reagan
v. Commissioner, 30 SCRA 968 (1969); People v. Gozo, 53 SCRA
476 (1973).
Q. What is the extent of the Philippine claim to its aerial domain, territorial sea,
the seabed, the subsoil, the insular shelves, and other submarine areas?
A. The Philippines lays claim to them to the extent recognized by international
law. The definition of these areas and right of the Philippines over these
areas are provided for in customary and conventional international law,
principally the 1982 Convention on the Law of the Sea and the Chicago
Convention on International Civil Aviation of 1944.
Q. What is the special claim made by the Philippines with respect to the
"waters around, between and connecting the islands of the
archipelago?"
A. The Philippines claims them as part of its "internal waters" irrespective of
their breadth and dimension. This is one of the elements of the
archipelagic principle which is now recognized by the 1982 Convention
on the Law of the Sea.
Q. What is the other element of the archipelagic principle?
A. The other element is the straight baseline method of delineating the
territorial sea. This consists of drawing straight lines connecting
appropriate points on the coast without departing to any appreciable
extent from the general direction of the coast. These baselines divide the
internal waters from the territorial waters of an archipelago.
Q. Does the 1982 Convention on the Law of the Sea accept the entirely of the
Philippine position on the archipelagic principle.
A. Not exactly. The vast areas of water between islands which the Philippines
considers internal waters (and therefore not subject to the right of
innocent passage) the 1982 Convention calls "archipelagic waters"
subject to the right of innocent passage through passages designated by
the archipelago concerned.
Q. Has the Philippines recognized this distinction?
A. No, because it is contrary to what Article I says about these waters being
internal. For this reason, the Philippines ratified
Sec. 1 ART. I - THE NATIONAL TERRITORY 7
the 1982 Convention on the Law of the Sea with reservations. However,
in practical terms the Philippines has designated sea lanes for foreign
vessels.
Q. What are baselines?
A. Baselines are lines drawn along the low water mark of an island or group of
islands which mark the end of the internal waters and the beginning of
the territorial sea. Each country must draw its own baselines according to
the provisions of the Law of the Sea.
Q. What is our Baseline Law?
A. R.A. 9522. This law provides for one baseline around the archipelago and
separate baselines for the "regime of islands" outside the archipelago.
It i.
ARTICLE II
DECLARATION OF PRINCIPLES
AND STATE POLICIES
Q. What is the function of the "Declaration of Principles and State Policies" in
the Constitution?
A. The "Declaration of Principles and State Policies" is a statement of the basic
ideological principles and policies that underlie the Constitution. As such,
the provisions shed light on the meaning of the other provisions of the
Constitution and they are a guide for all departments of the government
in the implementation of the Constitution.
PRINCIPLES
SECTION 1. THE PHILIPPINES IS A DEMOCRATIC AND REPUBLICAN
STATE. SOVEREIGNTY RESIDES IN THE PEOPLE AND ALL GOVERNMENT
AUTHORITY EMANATES FROM THEM.
Q. Define a "state" and enumerate its elements.
A. It is a community of persons more or less numerous, permanently
occupying a definite portion of territory, independent of external control,
and possessing an organized government to which the great body of
inhabitants render habitual obedience. Hence, commentators break
down tthe concept into the following four elements: people, territory,
sovereignty, government. (Montevideo Convention of 1933)
Q. Distinguish "state" from "nation."
A. Although for the purpose of political sociology a state, which is a legal
concept, may be distinguished from nation, which is an ethnic concept,
for the purpose of constitutional law the two terms are not distinct. The
Constitution uses them
8 exercise certain of these optional functions are: (1)
Sec. 1 ART. II - DECLARATION OP PRINCIPLES
AND STATE POLICIES
9 that a government should do for the public welfare those things which
interchangeably to designate the legal concept of state as defined above.
Q. Define "people."
A. As an element of a state, "people" simply means a community of persons
sufficient iiL number and capable of maintaining the continued existence
of the community and held together by a common bond of law. It is of no
legal consequence if they possess diverse racial, cultural, or economic
interests.
Q. Define sovereignty.
A. Legal sovereignty is the -shpreme power to affect legal interests either by
legislative, executive or judicial action. This is lodged in the people but is
normally exercised by state agencies. Stated in terms of auto-limitation,
sovereignty "is the properly of a state-force due to which it has the
exclusive capacity of legal self-determination and self-restriction."
(Jellinek).
Political sovereignty is the sum total of all the influences in a state,
legal and non-legal, which determine the course of law.
Q. Define "government."
A. Government, as an element of a state, is defined as "that institution or
aggregate of institutions by which an independent society makes and
carries out those rides of action which are necessary to enable men to
live in a social state, or which are imposed upon the people forming that
society by those who possess the power or authority of prescribing
them."
Q. How were the functions of government classified in Bacani v. Naeoco, 100
Phil. 468 (1956)?
A. The functions of governing were classified into constituent and ministrant
functions. The former are the compulsory functions which constitute the
very bonds of society. For example, the keeping of order and providing
for the protection of persons and property from violence and robbery, or
the fixing of the legal relations between man and wife and between
parents and r children are obligatory or constituent functions of
government. i ■ ■
Ministrant functions are the optional functions of government.
"The principles for determining whether or not a government shall
10 THE 1987 PHILIPPINE CONSTITUTION: Sec. 1
A COMPREHENSIVE REVIEWER
private capital would not naturally undertake and (2) that a government
should do those things which by its very nature it is better equipped to
administer for the public welfare than is any private individual or group
of individuals."
Q. Is this classification still valid? '
A. The conceptual definitions of constituent and ministrant function are still
acceptable. However, the growing complexities of modern society can
necessitate a realignment. ACCFA v. CUGCO, 30 SCRA 649 (1969).
Among more recent decisions, housing has been found to be a
governmental function since housing is considered an essential service.
PHHC v. Court of Industrial Relations, 150 SCRA 296, 310 (1987). But
undertaking to supply water for a price, as does the government
corporation National Irrigation Authority, is considered a trade and not a
governmental activity. Spouses Fontanilla v. Hon. Maliaman, G.R. Nos.
55963 & 61045, February 27,1991.
Q. How are governments classified according to their legitimacy?
A. According to legitimacy, governments are either de jure or de facto merely.
A government de jure is one established by authority of the legitimate
sovereign whereas a government de facto merely is one established in
defiance of the legitimate sovereign.
Q. Classify de facto governments.
A. There are several kinds oide facto governments.
The first is that government that gets possession and control of, or
usurps, by force or by the voice of the majority.
• The second is that whiqfcjis established and maintained by invading
military forces. .r
And the third is that established as an independent government by
the inhabitants of a country who rise in insurrection against the parent
state, such as the gpvernment of the Southern Confederacy in revolt
against the Union during the war of secession. Co Kim Cham v. Valdez
Tan Keh, 75 Phil. 113 (1945).
Q. Was the government under Cory Aquino and the Freedom Constitution a
dejure government?
Sec. 1 ART. n - DECLARATION OF PRINCIPLES 11
AND STATE POLICIES
A. Yes, because it was established by authority of the legitimate sovereign, the
people. It was a revolutionary government established in defiance of the
1973 Constitution. In re Letter of Associate Justice Puno, 210 SCRA
589,598 (1992).
Q. Was the government under Gloria Macapagal Arroyo established after the
ouster of President Estrada dejure or de facto merely?
A. De jure. See materials under Article VII, Section 8.
Q. What law governed ^.the revolutionary government under Aquino? . q fi f
A. The resulting government was indisputably a revolutionary government
bound by no constitution or legal limitations except treaty obligations
that the revolutionary government, as the dejure government in the
Philippines, assumed under international law. During the interregnum
from February 25, 1986 to March 24, 1986 before the Freedom
Constitution took effect by presidential proclamation, the Bill of Rights
under the 1973 Constitution was not operative. However, the protection
accorded to individuals under the Covenant on Civil and Political Rights
and the Universal Declaration remained in effect under international law
during the interregnum. Republic v. Sandiganbayan, G.R. No. 104768,
July 21, 2003.
Q. Describe the presidential form of government.
A. Its principal identifying feature is what is called the "separation of powers.''
Legislative power is given to the Legislature whose members hold office
for a fixed term; executive power is given to a separate Executive who
also holds office for a fixed term; and judicial power is held by an
independent Judiciary. The system is founded on the belieMat, by
establishing equilibrium among the three power holders, harmony will
result, power will not be concentrated, and thus tyranny will be avoided.
Because of the prominent position, however, which the system gives to
the President as chief executive, it is designated as a presidential form of
government.
Q. What are the essential' characteristics of a parliamentary form of
government?
A. They are the following: (1) The members of the government or cabinet or
the executive arm are, as a rule, simultaneously
12 THE 1987 PHILIPPINE CONSTITUTION: Sec. 1
A COMPREHENSIVE REVIEWER
members of the legislature; (2) the government or cabinet, consisting of
the political leaders of the majority party or of a coalition who are also
members of the legislature, is in effect a committee of the legislature;
(3) the government or cabinet has a pyramidal structure at the apex of
which is the Prime Minister or his equivalent; (4) the government or
cabinet remains in power only for as long as it enjoys the support of the
majority of the legislature; (5) both government and legislature are
possessed of control devices with which each can demand of the other
immediate political responsibility. In the hands of the legislature is the
vote of non-confidence (censure) whereby government may be ousted.
In the hands of government is the power to dissolve the legislature and
call for new elections.
Q. What constitutional forms of government have been experienced by the
Philippines since 1935?
A. Presidential and presidential only. Even the government of President
Marcos under the 1973 Constitution, as revised in 1981, had the
distinguishing marks of a presidential form of government: (1)
separation of powers and (2) the preeminence of the President. The
President was "head of state and chief executive" (VII, 1); he inherited
the powers of the President under the 1935 Constitution (VII, 16); he
was superior to the Prime Minister by the fact that he nominated the
Prime Minister (IX, 1), approved the program of government to be
administered by the Prime Minister (IX, 2), terminated the term of the
Prime Minister when he nominated the successor (IX, 4), and could
delegate powers to the Prime Minister. He also had control over the
ministries (VII, 7). Moreover, while there was closer relationship
between the executive and the legislature (an understatement!), thus
manifesting "features of parliamentarism," there Was separation
between them. Separation from the Judiciary also conceptually
remained. Free Telephone Workers Union v. Minister of Labor, 108 SCRA
757 (October 30,1981).
Q. What is a "republican state?"
A. A republican state is a state wherein all government authority emanates
from the people and is exercised by representatives chosen by the
people.
Sec. 2 ART. n - DECLARATION OF PRINCIPLES
AND STATE POLICIES
13
Q. Why is the Philippines also called a "democratic state" by the new
Constitution?
A. In the view of the new Constitution the Philippines is not only a
representative or republican state but also shares some aspects of direct
democracy such as "initiative and referendum" in Article VI, Section 32,
and Article XVII, Section 2. The word "democratic" is also a monument to
the February Revolution which re-won freedom through direct action of
the people.
Q. What is "constitutional authoritarianism" and is it compatible
with a "republican state? f 9ri
A. "Constitutional authoritarianism," as understood and practiced
in the Marcos regime under the 1973 Constitution, was the assumption
of extraordinary powers by the President, including legislative and
judicial and even constituent powers. Constitutional authoritarianism is
compatible with a republican state if the Constitution upon which the
Executive bases his assumption of power is a legitimate expression of
the people's will and if the Executive who assumes power received his
office through a valid election by the people.
Q. How do state, government and administration differ from each other?
A. State is the corporate entity; government is one of the elements of a state
and is the institution through which the state exercises power,
administration consists of the set of people currently running the
institution. Administrations change without a change in either state or
government.
Q. How are these affected by political changes?
A. The transitions from ,vthe 1935 Constitution to the 1973 Constitution, and
fromuthe 1973 Constitution to the 1987 Constitution involved changes
of government but not of state The transition from President Estrada to
President Arroyo did not involve a change of government but only of
administration.
SEC. 2. THE PHILIPPINES RENOUNCES WAR AS AN INSTRUMENT OF
NATIONAL POLICY, ADOPTS THE GENERALLY ACCEPTED PRINCIPLES OF
INTERNATIONAL LAW AS PART OF THE LAW OF THE LAND AND ADHERES
TO
THE POLICY OF PEACE, EQUALITY, JUSTICE, FREEDOM, COOPERATION,
AND
AMITY WITH ALL NATIONS.
14 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 13
Q. What kind of war is renounced by the Philippines?
A. Aggressive, not defensive, war.
Q. What are the generally accepted principles of international law?
A. Among the principles of international law acknowledged by the Court as
part of the law of the land are: the right of an alien to be released on bail
while awaiting deportation when his failure to leave the country is due to
the fact that no country will accept him, Mejoffv. Director of Prisons, 90
Phil. 70 (1951); the right of a country to establish military commissions to
try war criminals, Kuroda v. Jalandoni, 83 Phil. 171 (1949). Some
generally accepted principles have been incorporated in treaties. E.g.,
the Vienna Convention on Road Signs and Signals, Agustin v. Edu, 88
SCRA 195, 213 (1979); the duty to protect the premises of embassies and
legations, J.B.L. Reyes v. Bagatsing, G.R. No. 65366, October 25,1983.
Q. Does the affirmation of amity with all nations mean automatic diplomatic
recognition of all nations?
A. No. Amity with all nations is an ideal to be aimed at. Diplomatic recognition,
however, remains a matter of executive discretion.
SEC. 3. CIVILIAN AUTHORITY IS, AT ALL TIMES, SUPREME OVER THE
MILITARY. THE ARMED FORCES OF THE PHILIPPINES IS THE PROTECTOR
OF
THE PEOPLE AND THE STATE. ITS GOAL IS TO SECURE THE
SOVEREIGNTY OF
THE STATE AND THE INTEGRITY OF THE NATIONAL TERRITORY.
Q. How is the principle of civilian supremacy institutionalized?
A. The principle is institutionalized by the provision which makes the President,
a civilian and precisely as civilian, commander- in-chief of the armed
forces. But this does not mean that civilian officials are superior to
military officials. Civilian officials are superior to military officials only
when a law makes them so.
Q. What is the reason for the existence of the armed forces?
A. They exist in order to secure the sovereignty of the State, and to preserve
the integrity of the national territory. In extraordinary circumstances they
may also be called upon to protect the people when ordinary law and
order forces need assistance.
Sees. 4-7 ART. II - DECLARATION OP PRINCIPLES
AND STATE POLICIES
15
SEC. 4. THE PRIME DUTY OF THE GOVERNMENT IS TO SERVE AND
PROTECT THE PEOPLE. THE GOVERNMENT MAY CALL UPON THE
PEOPLE TO DEFEND THE STATE
AND, IN THE FULFILLMENT THEREOF, ALL CITIZENS MAY BE REQUIRED,
UNDER CONDITIONS
PROVIDED BY LAW, TO RENDER PERSONAL MILITARY OR CIVIL SERVICE.
Q. How does the first sentence differ from its counterpart in the 1973
Constitution?
A. The 1973 and the 1935 versions spoke of the "defense" of the State being a
prime duty of government. It therefore easily lent itself to interpretations
which justified a national security state offensive to the people. The
present version places the emphasis on service to and protection of the
people.
The phrase "under conditions provided by law" in the second
sentence also emphasizes the primacy of serving the interest of the
people and protecting their rights even when there is need to defend the
State.
Section 5, below, also has a similar emphasis.
SEC. 5. THE MAINTENANCE OF PEACE AND ORDER, THE PROTECTION OF
LIFE, LIBERTY,
AND PROPERTY, AND THE PROMOTION OF THE GENERAL WELFARE ARE
ESSENTIAL FOR THE
ENJOYMENT BY ALL THE PEOPLE OF THE
BLESSINGS OF DEMOCRACY.
SEC. 6. THE SEPARATION OF CHURCH AND STATE SHALL BE
INVIOLABLE.
Q. What is the meaning of the inviolability of the separation of Church and
State?
A. See Article III, Section 5.
130
STATFE POLICIES
SEC. 7. THE STATE SHALL PURSUE AN INDEPENDENT FOREIGN POLICY.
IN ITS RELATIONS
WITH OTHER STATES THE PARAMOUNT CONSIDERATION
SHALL BE NATIONAL SOVEREIGNTY, TERRITORIAL INTEGRITY, NATIONAL
INTEREST, AND THE
RIGHT TO SELF-DETERMINATION.
Q. What is the general characteristic of the provisions protecting rights in Article
II?
A. In general they are not self-executing provisions. They need implementing
acts of Congress. Thus, when some provisions
16 THE 1987 PHILIPPINE CONSTITUTION: Sec. 1
A COMPREHENSIVE REVIEWER
of the Health Sector Reform Agenda were challenged on the ground that
they violated 15, 18 of Article II; Section 1 of Article III; Sections 11 and 14
of Article XIII; and Sections 1 and 3(2) of Article XV, all of the 1987
Constitution, which directly or indirectly pertain to the duty of the State
to protect and promote the people's right to health and well-being, the
Court clarified that provisions are not self-executing. They require
implementing legislation.1
Q. In the conduct of the nation's foreign relations, what principles must guide
the government? "lT9Tfv
A. The government must maintain an independent foreign policy and give
paramount consideration to national sovereignty, territorial integrity,
national interest, and self-determination.
SEC. 8. THE PHILIPPINES, CONSISTENT WITH THE NATIONAL INTEREST,
ADOPTS AND
PURSUES A POLICY OF FREEDOM FROM NUCLEAR WEAPONS IN ITS
TERRITORY.
Q. What is the constitutional policy on nuclear weapons?
A. The Constitution prescribes a policy of freedom from nuclear weapons. The
policy includes the prohibition not only of the possession, control, and
manufacture of nuclear weapons but also nuclear arms tests.
Exception to this policy may be made by the political departments;
but it must be justified by the demands of the national interest,
("consistent with the national interest.") But the policy does not prohibit
the peaceful uses of nuclear energy.
Q. What is the implication of this, policy for the presence of American troops or
for any American military base that might be established in the
Philippines^
A. Any new agreement on bases or the presence of troops, if ever there is one,
must embody the basic policy of freedom from nuclear weapons.
Moreover, it would be well within the power of government to demand
ocular inspection and removal of nuclear arms.
'Tondo Medical Center Employees v. CA, G.R. No. 167324, July 17,2007.
Sees. 9-12 ART. n - DECLARATION OF PRINCIPLES
AND STATE POLICIES
17
SEC. 9. THE STATE SHALL PROMOTE A JUST AND DYNAMIC SOCIAL
ORDER THAT WILL ENSURE THE PROSPERITY AND INDEPENDENCE OF
THE NATION AND FREE THE
PEOPLE FROM POVERTY THROUGH POLICIES THAT PROVIDE ADEQUATE
SOCIAL SERVICES,
PROMOTE FULL EMPLOYMENT, A RISING STANDARD OF LIVING, IWD AN
IMPROVED QUALITY OF
LIFE FOR ALL.
SEC. 10. THE STATE SHALL PROMOTE SOCIAL JUSTICE IN ALL PHASES
OF NATIONAL
DEVELOPMENT.
Q. What are the underlying premises of Sections 9 and 10?
A. They derive from the premises that poverty and gross inequality are major
problems besetting the nation and that these problems assault the
dignity of the human person.
Q. What is social justice?
A. Social justice, in the sense it is used in the Constitution, simply means the
equalization of economic, political, and social opportunities with special
emphasis on the duty of the state to tilt the balance of social forces by
favoring the disadvantaged in life. In the language of the 1935
Convention, it means justice for the common tao; in the shibboleth of the
1973 Convention, those who have less in life must have more in law.
Q. What has been the special impact of the social justice provision in Philippine
jurisprudence?
A. The provision has been chiefly instrumental in the socialization of the state's
attitude to property rights thus gradually eradicating the vestiges oilaissez
faire in Philippine society.
Q. How is the promotion of. social justice to be carried out in all phases of
national development?
A. See Article XIII.
SEC. 11. THE STATE VALUES THE DIGNITY OF EVERY HUMAN PERSON
AND GUARANTEES FULL RESPECT > ' • ' • FOR HUMAN RIGHTS.
SEC. 12. 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. THE
NATURAL AND
PRIMARY RIGHT AND DUTY OF PARENTS IN THE REARING OF THE YOUTH
FOR
18 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 13
CIVIC EFFICIENCY AND THE DEVELOPMENT OF MORAL CHARACTER
SHALL
RECEIVE THE SUPPORT OF THE GOVERNMENT.
SEC. 13. THE STATE RECOGNIZES THE VITAL ROLE OF THE YOUTH
IN NATION-BUILDING AND SHALL PROMOTE AND PROTECT THEIR
PHYSICAL,
MORAL, SPIRITUAL, INTELLECTUAL, AND S^IAL WELL-BEING. IT SHALL
INCULCATE IN THE YOUTH PATRIOTISM AND NATIONALISM, AND
ENCOURAGE
THEIR INVOLVEMENT IN PUBLIC AND CIVIC AFFAIRS.
Q. What is the meaning of "family" in Section 12?
A. It simply means a stable heterosexual relationship.
Q. What effect does the declaration of family autonomy have?
A. It accepts the principle that the family is anterior to the State and is not a
creature of the State. It protects the family from instrumentalization by
the State.
Q. What is the legal meaning and purpose of the protection that is guaranteed
for the unborn?
A. First, this is not an assertion that the unborn is a legal person. Second, this is
not an assertion that the life of the unborn is placed exactly on the level
of the life of the mother. When necessary to save the life of the mother,
the life of the unborn may be sacrificed; but not when the purpose is
merely to save the mother from emotional suffering, for which other
remedies must be sought, or to spare the child from a life of poverty,
which can be attended to by welfare institutions.
Q. Why is the protection made to begin from the time of conception?
A. The overriding purpose in assertmg that the protection begins fronl the time
of conception^jL to prevent the State from adopting the doctrine in the
t^S. Supreme Court decision of Roe v. Wade, 410 U.S. 113 (19^) which
liberalized abortion laws up to the sixth month of pregnancy by allowing
abortion any time during the first six months of pregnancy provided it
can be done without danger to the mother. The understanding is that life
begins at conceptioiji, although the defimtioncfrf conception can be a
matter for science to specify.
Incidentally, the respect for life manifested by the provision
harmonizes with the abolition of the death penalty and the ban on
nuclear arms.
Sec. 14 ART. n - DECLARATION OF PRINCIPLES
AND STATE POLICIES
19
Q. In the matter of education, how do the respective rights of parents and of
the State compare?
A. The primary and natural right belongs to the parents. The Constitution
affirms the primary right of parents in the rearing of children to prepare
them for a productive civic and social life and at the same time it affirms
the secondary and supportive role of the State. The principle is also
rooted in the basic philosophy of liberty guaranteed by the due process
clause.
Q. May the state prohibit the teaching of foreign langtiages to
children before they reach a certain age?
A. Such restriction does violence to both the letter and the spirit of
the Constitution, Meyer v. Nebraska, 262 US 390 (1922).
Q. May the State require children to attend only public schools
before they reach a certain age?
A. The fundamental theory of liberty upon which the government
under the Constitution reposes excludes any general power of the State
to standardize its children by forcing them to accept instruction from
public teachers only. The child is not the mere creature of the State;
those who nurture him and direct his destiny have the right coupled with
the high duty, to recognize and prepare him for additional obligations.
Pierce v. Society of Sisters, 262 U.S. 510 (1925).
Q. May the State require children to continue schooling beyond a
certain age even against the honest and sincere claim of parents that
such schooling would be harmful to their religious upbringing?
A. No. Only those interests of the state "of the highest order and
those not otherwise served can overbalance" the primary interest of
parents in the religious upbringing of their children. Wisconsin v. Yoder,
40 LW 4476 (May 15,1972).
Q. Does all this mean that the State cannot intervene in the
relation of parent and child?
A. No. As parens patriae the State has the authority and duty to
step in where parents fail to or are unable to cope with their duties to
their children.
SEC. 14. THE STATE RECOGNIZES THE ROLE OF WOMEN IN
NATIONBUILDING,
AND SHALL ENSURE THE FUNDAMENTAL EQUALITY BEFORE THE LAW
OF WOMEN
AND MEN.
20 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 15-17
Q. Does this provision repeal the inequalities that are found in the Civil Code?
A. The provision is so worded as not to automatically dislocate the Civil Code
and the civil law jurisprudence on the subject. What it 4pes is to give
impetus to the removal, through statutes, of existing inequalities. The
general idea is for the law to ignore sex where sex is not a relevant factor
in determining rights and duties. Nor is the provision meant to ignore
customs and traditions.
SEC. 15. THE STATE SHALL PROTECT AND PROMOTE THE RIGHT TO
HEALTH OF THE PEOPLE AND INSTILL HEALTH CONSCIOUSNESS AMONG
THEM.
SEC. 16. THE STATE SHALL PROTECT AND ADVANCE THE RIGHT OF
THE PEOPLE TO A BALANCED AND HEALTHFUL ECOLOGY IN ACCORD
WITH
THE RHYTHM AND HARMONY OF NATURE.
Q. Does Section 16 provide for enforceable rights?
A. Yes. This provision, as worded, recognizes an enforceable "right." Hence,
appeal to it has been recognized as conferring "standing" on minors to
challenge logging policies of the government. Oposa v. Factoran, Jr., 224
SCRA 792 (1993).
On this basis too the Supreme Court upheld the empowerment of
the Laguna Lake Development Authority to protect the inhabitants of
the Laguna Lake Area from the deleterious effects of pollutants coming
from garbage dumping and the discharge of wastes in the area as against
the local autonomy claim of local governments in the area. Laguna Lake
Development Authority v. Court of Appeals, G.R. No. 12086511,
December 7,1995.
Significantly, too, by authority of Section 16 embodying the
people's right to a balanced ecology and under various statutes, several
government agents were required by mandamus to undertake the
cleaning of Manila Bay and its surroundings. MMDA v. Residents of
Manila Bay, G.R. No. 171947-48, December 18,2008.
SEC. 17. THE STATE SHALL GIVE PRIORITY TO EDUCATION, SCIENCE
AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS TO FOSTER
PATRIOTISM
AND NATIONALISM, ACCELERATE SOCIAL PROGRESS, AND PROMOTE
TOTAL
HUMAN LIBERATION AND DEVELOPMENT.
Sees. 18-22 ART. H - DECLARATION OF PRINCIPLES
AND STATE POLICIES
21
NOTE: This does not mean that the government is not free to
balance the demands of education against other competing and urgent
demands.
SEC. 18. THE STATE AFFIRMS LABOR AS A PRIMARY SOCIAL ECONOMIC
FORCE. IT SHALL
PROTECT THE RIGHTS OF WORKERS AND PROMOTE THEIR WELFARE.
Q. What is meant when labor is called "a primary social economic force?"
A. It means that the human factor has primacy over the non- human factors in
production.
NOTE: The rights of labor are discussed under Article
XIII.
SEC. 19. THE STATE SHALL DEVELOP A SELF-RELIANT AND
INDEPENDENT NATIONAL
ECONOMY EFFECTIVELY CONTROLLED BY FILIPINOS.
Q. How is this provision related to the article on the National Economy and
Patrimony?
A. This is a guide for interpreting provisions on the national economy and
patrimony. Any doubt must be resolved in favor of self-reliance and
independence and in favor of Filipinos.
SEC. 20. THE STATE RECOGNIZES THE INDISPENSABLE ROLE OF THE
PRIVATE SECTOR,
ENCOURAGES PRIVATE ENTERPRISE, AND PROVIDES INCENTIVES TO
NEEDED INVESTMENTS.
SEC. 21. THE STATE SHALL PROMOTE COMPREHENSIVE RURAL
DEVELOPMENT AND
AGRARIAN REFORM. U
ff
Q. How comprehensive must rural development be? ,
A. It includes not only agrarian reform. It also encompasses a broad spectrum
of social, economic, human, cultural, political, and even industrial
development.
NOTE: Agrarian reform is discussed under Article XIII.
SEC. 22. THE STATE RECOGNIZES AND PROMOTES THE RIGHTS OF
INDIGENOUS
CULTURAL COMMUNITIES WITHIN THE FRAMEWORK OF NATIONAL UNITY
AND DEVELOPMENT.
22 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 23-28
NOTE: Indigenous cultural communities are discussed
under the National Economy and Patrimony and under Local
Governments. . i
SEC. 23. THE STATE SHALL ENCOURAGE NON-GOVERNMENTAL,
COMMUNITY-BASED,
OR SECTORAL ORGANIZATIONS THAT PROMOTE THE WELFARE OF THE
NATION.
SEC. 24. THE STATE RECOGNIZES THE VITAL ROLE OF COMMUNICATION
AND
INFORMATION IN NATION-BUILDING.
&SC. 25. THE STATE SHALL ENSURE THE AUTONOMY OF LOCAL
GOVERNMENTS.
NOTE: See Article X.
SEC. 26. THE STATE SHALL GUARANTEE EQUAL ACCESS TO
OPPORTUNITIES FOR PUBLIC
SERVICE, AND PROHIBIT POLITICAL DYNASTIES AS MAY BE DEFINED BY
LAW.
Q. What is the purpose of this provision?
A. Its purpose is to give substance to the desire for the equalization of political
opportunities. However, the definition of "political dynasties" is left to
the legislature.
Q. Does this provision mean that everyone has a right to be a candidate for
President?
A. No. First of all, this provision is not self-executory. The provision does not
contain any judicially enforceable constitutional right but merely
specifies a guideline for legislative or executive action. Secondly, it is
within the power of the state to limit the . .jwmber of qualified
candidates only to those who can afford to i wage a nationwide
campaign and/or are nominated by political ^parties. Pamatong v.
Comelec, G.R. No. 161872, April 13,2004.
SEC. 27. THE STATE SHALL MAINTAIN HONESTY AND INTEGRITY IN
PUBLIC SERVICE AND TAKE POSITIVE AND EFFECTIVE MEASURES
AGAINST GRAFT AND
CORRUPTION. . V
NOTE: See Article XI.
SEC. 28. SUBJECT TO REASONABLE CONDITIONS PRESCRIBED BY LAW,
THE STATE
ADOPTS AND IMPLEMENTS A POLICY OF FULL PUBLIC
DISCLOSURE OF ALL ITS TRANSACTIONS INVOLVING PUBLIC INTEREST.
ARTICLE III
BILL OF RIGHTS
SECTION 1. No PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY OR
PROPERTY WITHOUT DUE PROCESS OF LAW, NOR SHALL ANY PERSON
BE
DENIED THE EQUAL PROTECTION OF THE LAWS.
Q. What is the significance of the Bill of Rights?
A. Government is powerful. When unlimited, it becomes tyrannical. The Bill of
Rights is a guarantee that there are certain areas of a person's life, liberty,
and property which governmental power may not touch.
Q. What powers of government are limited by the Bill of Rights?
A. All the powers of government are limited by the Bill of Rights.
Q. What in general are these powers?
A. The totality of governmental power is contained in tliree great powers:
police power, power of eminent domain, and power of taxation.
Q. Why are these powers considered inherent powers?
A. Because they belong to the very essence of government and without them
no government can exist. A constitution^ can only define and delimit
them and allocate their exercise among various government agencies. A
constitution does not grant them.
Q. Name one major difference between the guarantees of the Bill of Rights and
the guarantees that are found in Article XIII on Social Justice.
A. The Bill of Rights focuses on civil and political rights, whereas Article XIII
focuses on social and economic rights. Moreover,
23
24 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 13
the guarantees in the Bill of Rights are generally self-implementing, i.e.,
they can be appealed to even in the absence of implementing legislation.
On the other hand, the social and economic rights guaranteed in Article
XIII as also recognized in Article II generally require implementing
legislation.
Police power
Q. What is "police power?"
A. Police power has been characterized as "the most essential, insistent and
the least limitable of powers, extending as it does to all the great public
needs." Negatively, it has been defined as "that inherent and plenary
power in the State which enables it to prohibit all that is hurtful to the
comfort, safely, and welfare of society." Ermita-Malate Hotel and Motel
Operators Association Inc. v. Mayor of Manila, L-24693, July 31,1967.
Q. What is the scope of police power?
A. Police power rests upon public necessity and upon the right of the State and
of the public to self-protection. For this reason, its scope expands and
contracts with changing needs. Churchill v. Rafferty, 32 Phil. 580, 602-603
(1915).
Q. Who exercises police power?
A. The national government, through the legislative department, exercises
police power. But police power is also delegated, within limits, to local
governments.
Q. Does Metro Manila Development Authority (MMDA) possess
police power?
. J Li
9' A. No. Not being a political subdivision but merely an executive
authority it has no police pow$r. Police power in Metro Manila is
exercised by the cities and municipalities. MMDA v. Bel-Air Village
Assoc., G.R. No. 135962, March 27,2000.
Q. May a municipality be prevented by COA from giving burial
assistance to indigents?
A. Police power is a broad concept covering efforts to contribute
to the comfort of the public. Moreover, the fact that not all receive the
dole out does not make it less public because the drift of the law is in
the direction of public welfare and social justice. Binay v. Domingo, G.R.
No. 92389, September 11,1991.
Sec. 1 ART. Ill - BILL OF RIGHTS 25
Q. May the state prohibit gambling?
A. The state may do so, if it so chooses, and make violation a
criminal offense. But gambling is not immoral per se. Magtajas v. Price
Properties, 234 SCRA 255 (1994).
Q. Is the law ordering the closure of commercial ttfoodbanks
valid?
A. Yes. It is a valid exercise police power to protect public health.
Beltran v. Secretary of Health, G.R. No. 133640, November 25, 2005.
Q. ABS-CBN has a legislative franchise to operate!£elevision
stations. It broadcasts from its Channel 2 and Channel 23. Philippine
Multi Media System Inc. (PMSI) also has a legislative franchise which
authorizes it to do Direct to Home service. Moreover, its franchise
includes a mandatory duty to carry the television signals of the
authorized television broadcast stations. For that reason it carries
Channels 2 and 23 OF ABS-CBN. ABS-CBN contends that PMSrs
unauthorized rebroadcasting of Channels 2 and 23 is a taking of
property for public use without just compensation.
A. Franchises are subject to police power and the mandatory rule
is not a form of taking but a form of police power regulation. ABS-CBN
Broadcasting Corporation v. PMSI, G.R. Nos. 175769-70, January
19,2009.
Protected rights; life
Q. What rights are protected by the Bill of Rights?
A. In veiy general terms, the right to life, liberty and property. The manner of
protecting these is elucidated in subsequent Sections.
Q. What is the right to "life?"
A. The constitutional protection of the right to life is not just a protection of the
right to be alive or to the security of one's Hmb against physical harm.
The right to life is the right to a good life. The emphasis on the quality of
living is found in Article II where Section 6 commands the State to
promote <a life of "dignity" and where Section 7 guarantees "a decent
standard of living."
Q. Do the unborn have a constitutional right to life?
A. See Article II, Section 12.
26 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 13
Right to property
Q. What does "property" include?
A. Protected property includes all kinds of properly found in
the Civil Code. It has been deemed to include vested rights
such as a perfected mining claim, or a perfected homestead,
or a final judgment. It also includes the right to work and
the right to earn a living. A license to operate a cockpit is not
considered protected properly. It is deemed merely a privilege
withdrawable when public interest require its withdrawal.
In Tike manner it has been ruled that a certificate of public
COTlviiiience granted to a transportation company confers no
property right on the route covered thereby.
A mere privilege, however, may evolve into some form of
property right protected by due process, as for instance when
a privilege, in this case an export quota, has been enjoyed for
so long, has been the subject of substantial investment and
has become the source of employment for thousands. American
Inter-Fashion Corporation v. Office of the President, 197 SCRA
409(1991).
' Q. Is one's employment, profession, or trade "property" protected
by the Constitution?
. A. Yes. Thus, an order of preventive suspension without
opportunity for hearing at all violates property right. Crespo v.
Provincial Board, 160 SCRA 66 (1988).
Q. A law limiting deployment of overseas workers to skilled
workers only was challenged as violative of the right to work. Decide.
A. No right is absolute, and the proper regulation of a profession,
calling, business or trade has always been upheld as a legitimate
f violated this rule by marrying an employee of Astra, a competitor
ct of a valid exercise of the police power by the state particuwhen
their conduct affects either the execution of legitimate govental
functions, the preservation of the State, the public health
ana welfare and public morals. Executive Secretary v. CA, G.R. No.
131719, May 25,2004.
Q. May the license of harbor pilots be cancelled without a
hearing?
A. No. Corona v. United Harbor Pilots Association of the
Phils., G.R. No. 111953,283 SCRA 31,43.
Q. When property is classified into historical treasures or
landmarks, should such classification be done with both procedural
and substantive due process?
Sec. 1 ART. Ill - BILL OF RIGHTS 27
A. Yes, when classification "will involve imposition of limits
on ownership." Army and Navy Club of Manila, Inc. v. Court of
Appeals, G.R. No. 110223, April 8,1997.
Q. Do life and property enjoy identical protection from the Constitution?
A. No. The primacy of human rights over property rights is
recognized. In the hierarchy of civil liberties, the rights of free
expression and of assembly occupy a preferred position as they
are essential to the preservation and vitality of our civil and
political institutions.
"The superiority of these freedoms over property rights
is underscored by the fact that a mere reasonable or rational
relation between the means employed by the law and its
object or purpose — that the law is neither arbitrary nor
discriminatory nor oppressive — would suffice to validate a law
which restricts or impairs property rights. On the other hand,
a constitutional or valid infringement of human rights requires
a more stringent criterion, namely existence of a grave and
immediate danger of a substantive evil which the State has
the right to prevent." Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co. Inc., 50 SCRA
189,202-3(1973).
Q. Glaxo Wellcome has a policy against employees marrying
employees of competitor companies. This is well known to and is
accepted by employees. An employee who, after repeated warnings,
company, was dismissed. He challenges the policy as a violation of the
right to marry. Decide.
A. Glaxo has a right to guard its trade secrets, manufacturing
: formulas, marketing strategies and other confidential programs and
information from competitors. Glaxo and Astra are rival companies in
the highly competitive pharmaceutical industry. Duncan Association
of Employees Employees v. Glaxo Wellcome, G.R. No. 162994,
September 17,2004. Where, however, there is no reasonable necessity
for the prohibition, it is illegal. Star Paper v. Simbol, G.R. No. 164774,
April 12, 2006.
Q. What is the nature of the right to collect from a pension
plan?
A. In a pension plan where employee participation is mandatory,
the prevailing view is that employees have contractual or vested
28 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 13
rights in the pension where the pension is part of the terms of employment.
Thus, where the employee retires and meets the eligibility
requirements, he acquires a vested property right to benefits that is
protected by the due process clause. GSIS v. Montesclaros, G.R. No.
146494, July 14,2004.
A law that orders discontinuance of a pension of a retired military
officer if he becomes a citizen of another country was held not to violate
equal protection. Pension of military retirees is purely gratuitous.
Parreno c. COA, G.R. No. 162224, June 7,2007.
Right to liberty
Q. The military detainees question the correctness of the
restriction on contact visits.
A. Block v. Rutherford, 468 U.S. 576 (1984), which reiterated Bell v.
Wolfish, upheld the blanket restriction on contact visits as this practice
was reasonably related to maintaining security. Contact visits make it
possible for the detainees to hold visitors and jail staff hostage to effect
escapes. Contact visits also leave the jail vulnerable to visitors smuggling
in weapons, drugs, ;and other contraband. The security consideration in
the imposition of blanket restriction on contact visits was ruled to
outweigh the sentiments of the detainees. In the Matter of the Petition
for Habeas Corpus, G.R. No. 160792, August 25, 2005.
Moreover, where the only limitation imposed upon police officers
is that their movements within the premises of the camp shall be
monitored, that they have to be escorted whenever the circumstances
warrant that they leave the camp, and that their estimated time of
departure and arrived shall be entered in a logbook, there is no deprivation
of liberty. Manalo v. PNP Chief, G.R. No. 178920, October 15,
2007.
Q. Do people have the right to bear arms?
A. No. Only those authorized by law may bear arms. Even the
provision in the American Constitution has reference only to a collective
right of militia to bear arms. No similar provision is found in our
Constitution. United States vs. Villareal, 28 Phil. 390 (1914). Chavez v.
Executive Secretary, G.R. No. 157036, June 9,2004.
Two kinds of due process
Q. What are the two aspects of due process?
A. Due process has both a procedural and a substantive aspect.
As a substantive requirement, it is a prohibition of arbitrary laws;
because, if all that the due process clause
Sec. 1 ART. Ill - BILL OF RIGHTS 29
required were proper procedure, then life, liberty, or property could be
destroyed arbitrarily provided proper formalities are observed.
As a procedural requirement, it relates chiefly to the mode of
procedure which government agencies must follow in the enforcement
and application of laws. It is a guarantee of procedural fairness. Its
essence was expressed by Daniel Webster as a law which hears before it
condemns."
Procedural due process in courts in non-criminal cases
Q. What are the essential requirements of procedural due process in courts?
A. These are: (1) These must be a court or tribunal clothed with judicial power
to hear and determine the matter before it; (2) jurisdiction must be
lawfully acquired over the person of the defendant or over the property
which is the subject of the proceedings; (3) the defendant must be given
an opportunity to be heard; and (4) judgment must be rendered upon
lawful hearing. Banco EspaHol Filipino v. Palanca, 37 Phil. 921, 934 (1918).
Procedural due process in criminal cases is treated in Section 14
below.
The details of procedural due process for both criminal and non
criminal cases are spelled out in the Rules of Court.
Q. Does an extraditee have a right of access to the evidence
against him?
A. During the executive phase of an extradition proceeding an
extraditee does not have the right of access to evidence in the hands of
government. But during the judicial phase he has. Secretary v. Judge
Lantion, G.R. No. 139465, October 17,2000.
Q. Does a teacher in a school administrative proceeding have a
right to be assisted by counsel?
A. Yes. Due process demands this. Gonzales v. NLRC and Ateneo de
Davao, G.R. No. 125735, August 26, 1999. {Compare this with due
process for students in Judge Dames.)
Q. When is a law so "vague" as not to satisfy the due process need
for notice?
A. It is vague when it lacks comprehensible standards that men "of
common intelligence must necessarily guess as to its meaning
30 THE 1987 PHILIPPINE CONSTITUTION:
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Sec. 13
and differ as to its application." It is repugnant to the Constitution in two
respects: (1) it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle.
But to be unconstitutional the law must be utterly vague on its
face, that is to say, it cannot be clarified by either a saving clause or by
construction. People v. Nazario, 165 SCRA186 (1988); People v. de la
Piedra, G.R. No. 121777, January 24,2001.
A statute is not rendered uncertain and void merely because
general terms are used therein, or because of the employment of terms
without defining them; much less do we have to define every word we
use. Besides, there is no positive constitutional or statutory command
requiring the legislature to define each and eveiy word in an enactment.
The Plunder Law under which former resident Estrada is being
prosecuted is not vague. The words "series" and "combination" of
crimes can be understood in their ordinary meaning. Estrada v.
Sandiganbayan, G.R. No. 148560, November 19,2001.
Q. Article 202 of the Penal Code defines vagrants thus: "Any
person found loitering about public or semi-public buildings or places or
tramping or wandering about the countiy or the streets without visible
means of support..." The law prohibiting vagrancy is challenged as
vague.
A. The void-for-vagueness doctrine holds that a law is facially
invalid if men of common intelligence must necessarily guess at its
meaning and differ as to its application. This is not such a law.
Romualdez v. Comelec, G.R. No. 167011, December 11, 2008.
Procedural due process in administrative cases
Q. What are the essential requirements of procedural due process before
administrative agencies?
A. Briefly, the following are required: "(1) the right to actual or constructive
notice of the institution of proceedings which may affect a respondent's
legal rights; (2) a real opportunity to be heard personally or with the
assistance of counsel, to present witnesses and evidence in one's favor,
and to defend one's rights; (3) a tribunal vested with competent
jurisdiction and so constituted as to afford a person charged
administratively a reasonable guarantee of honesty as well as
impartiality; and
Sec. 1 ART. Ill - BILL OF RIGHTS 31
(4) a finding by said tribunal which is supported by substantial evidence
submitted for consideration during the hearing or contained the records
or made known to the parties affected." Fabella v. Court of Appeals, G.R.
No. 110379, November 28, 1997, 282 SCRA 256, 267 (citing Air Manila,
Inc. v. Balatbat, 38 SCRA 489, 492 [1971]); Ang Tibay v. Court of Industrial
Relations, 69 Phil. 635 (1940).
Q. Is publication a requirement of due process?
A. Yes. The rule that requires publication for the effectivity of laws
applies not only to statutes but also to presidential decrees : and
executive orders promulgated by the President in the exercise of
legislative powers whenever the same are validly delegated by the
legislature or, at present, directly conferred by the Constitution.
Administrative rules and regulations must also be published if their
purpose is to enforce or implement existing law pursuant also to a valid
delegation. Republic u. Filipinos Shell, G.R. No. 173918, April 8, 2008.
Q. Is a respondent in an administrative case entitled to be
informed of the findings and recommendations of an investigating
committee created to inquire into charges filed?
A. No. He is entitled only to the administrative decision based on
substantial evidence made of record, and a reasonable opportunity to
meet the charges and the evidence presented against him during the
hearing of the investigation committee. It is the administrative
resolution, not the investigation report, which should be the basis of any
further remedies that the losing party in an administrative case might
wish to pursue. Pefianco v. Moral, G.R. No. 132248, January 19, 2000.
Q. What quantum of proof is need in administrative proceedings?
A. In administrative proceedings, the quantum of proof required is
only substantial evidence. Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.
Q. Are notice and hearing always required in administrative proceedings?
A. In quasi-judicial proceedings, yes; but in the performance of executive or
legislative functions, such as issuing internal rules and regulations, an
administrative body need not comply with the requirements of notice
and hearing.
32 THE 1987 PHILIPPINE CONSTITUTION:
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Sec. 13
Q. Without conducting any hearing the National Telecommunications
Commission ordered PHILCOMSAT to reduce its rates by
15%. Valid?
A. Changing existing rates is quasi-judicial in nature. Hence, it
must be preceded by a hearing. The fact of the order being merely
interlocutory does not alter the situation because for all practical
purposes it is final as to the period covered. PHILCOMSAT v. Alcuaz, G.R.
No. 84818, December 18,1989.
Q. Police officer Torcita was charged on twelve counts of conduct
unbecoming an officer. The twelve counts were dismissed but he was
convicted of Simple Irregularity in the Performance of Duty of having
alcohol in his breath. Proper?
A. No. While the definition of the more serious offense is broad,
and almost all-encompassing, a finding of guilt for an offense, no matter
how light, for which one is not properly charged and tried cannot be
countenanced without violating the rudimentary requirements of due
process. Summary Dismissal Board v. Torcita, G.R. No. 130442, April
6,2000.
NOTE: See also cases on schools under Article XIV, Section 4.
Q. What kind of due process is required in deportation
proceedings?
A. Although deportation proceedings are not criminal in nature,
the consequences can be as serious as those of a criminal prosecution.
The provisions in the Rules of Court for criminal cases are applicable.
Lao Gi alias Chia, Jr. v. Court of Appeals, G.R. No. 81789, December
29,1989.
Substantive due process
Q. When do laws which interfere with life, liberty, or property satisfy
substantive due process?
A. To justify the State in interposing its authority in behalf of the public, it must
appear, (1) that the interests of the public generally, as distinguished
from those of a particular class, require such interference; and, (2) that
the means are reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon individuals. The legislature
may not, under the guise of protecting the public interest, arbitrarily
interfere with private business or impose unusual and unnecessary
restrictions upon lawful occupations. United States v. Toribio, 15 Phil. 85
(1910).
Sec. 1 ART. Ill - BILL OF RIGHTS 33
Q. Is the requirement of substantive due process a rigid concept?
A. Definitely not. The heart of substantive due process is the requirement of
"reasonableness," or absence of exercise of arbitrary power. These are
necessarily relative concepts which depend on the circumstances of
every case.
Q. What is the presumption when the State acts to interfere with life, liberty, or
property?
A. Generally, the presumption is that the action is valid. (In rare cases, however,
as in the imposition of "prior restraint," to be discussed under Section 4,
there is a presumption of invalidity).
Q. Is the allowable scope of reasonable interference with property the same as
that with life or liberty?
A. No. See Philippine Blooming Mills Employees Organization v. Philippine
Blooming Mills, supra. Rarely has a law interfering merely with property
rights been declared unconstitutional.
Q. Ordinance No. 4964 of Manila reads: "It shall be prohibited for
any operator of any barber shop to conduct the business of massaging
customers or other persons in any adjacent room or rooms of said
barber shop, or in any room or rooms within the same building where
the barber shop is located as long as the operator of the barber shop
and the rooms where massaging is conducted is the same person." Does
this amount to deprivation of property without due process?
A. No. This is valid exercise of police power, under the general
welfare clause, for the protection of morals. Velasco v. Mayor Villegas,
G.R. No. 24153, February 14,1983.
Q. In an effort to curb immorality, the city of Manila passed an ordinance
which disallows "the operation of sauna parlors, massage : parlors,
karaoke bars, beerhouses, night clubs, day clubs, super clubs,
discotheques, cabarets, dance halls, motels and inns in the Ermita- Malate
area. Valid?
A. Conceding for the nonce that the Ermita-Malate area teems
with houses of ill-repute and establishments of the like which the City
Council may lawfully prohibit, it is baseless and insupportable to bring
within that classification sauna parlors, massage parlors, karaoke bars,
night dubs, day clubs, super clubs, discotheques, cabarets, dance halls,
motels and inns. This is not warranted under the accepted definitions of
these terms. The enumerated establishments are lawful pursuits which
are not per se offensive to the moral welfare
34 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 13
of the community. City of Manila v. Judge Laguio, G.R. No. 118127, April
12,2005.
A Manila ordinance prohibits motels, etc. from offering shorttime
admission, as well as pro-rated or "wash up" rates for such
abbreviated stays. The ordinance was invalidated as violative of the
right to property of motel operators (as in the Laguio case) and of liberty
of potential clients. The hotel operators were allowed to raise the issue
of liberty of clients by appealing to "third party standing." White Light
Corp v. City of Manila, G.R. No. 122846, January 20, 2009.
Q. An Executive Order issued by President Marcos read:
"Executive Order No. 626 is hereby amended such that henceforth,
no carabao regardless of age, sex, physical condition or purpose
and no carabeef shall be transported from one province to another. The
carabao or carabeef transported in violation of this Executive Order as
amended shall be subject to confiscation and forfeiture..
The original Executive Order was for prohibiting the slaughter of
carabaos, except under certain conditions, for the purpose of preserving
them for the benefit of small farmers. Is the amendment valid?
A. No. Outright confiscation is not reasonably related to the
purpose. Moreover, it is unduly oppressive. The owner of the property
is denied the opportunity to be heard and the property is immediately
confiscated and distributed. Ynot v. Intermediate Court of Appeals, 148
SCRA 659 (1987).
Q. May the state prohibit candidates for board examinations from
attending review classes or similar exercises?
A. The Court said that the rule of the Professional Regulatory
Commission which restricts reviewees from attending review classes,
briefing conferences or the like, and receiving any hand out, review
material, etc. was unreasonable and arbitrary and violative of the
academic freedom of schools. Lupangco v. Court of Appeals, 160 SCRA
848(1988).
Q. The City of Butuan issues an ordinance prescribing that
children between the ages of 7 and 12 should be charged only half the
admission price in movie houses. Is this a valid exercise of police power?
A. No. For the benefit of parents then the cost is passed on to
cinema owners. There is no discernible relation between the ordinance
and the promotion of public health, safety, morals, and the general
welfare. Balacuit v. Court of First Instance, 163 SCRA 182 (1988).
Sec. 1 ART. Ill - BILL OF RIGHTS 35
NOTE: A Texas statute making it a crime for two persons of the
same sex to engage in certain intimate sexual conduct was held to
violate the Due Process Clause. Petitioners were free as adults to engage
in private conduct in the exercise of their liberty under the Due Process
Clause. Lawrence v. Texas, Decided June 26,2003.
Equal protection
Q. What is the meaning of "equal protection of the law?"
A. The equal protection clause is a specific constitutional guarantee of the
Equality of the Person. The equality it guarantees is legal equality or, as it
is usually put, the equality of all persons before the law. Under it, each
individual is dealt with as an equal person in the law, which does not treat
the person differently because of who he is or what he is or what he
possesses. The goddess of justice is portrayed with a blindfold, not
because she must be hindered in seeing where the right lies, but that she
may not discriminate against suitors before her, dispensing instead an
even handed justice to all."
Q. Does equal protection prohibit classification?
A. No, but the classification must be reasonable. And the classification, to be
reasonable, (1) must rest on substantial distinctions; (2) must be germane
to the purpose of the law; (3) must not be limited to existing conditions
only; and (4) must apply equally to all members of the same class. People
v. Cayat, 68 Phil. 12,18 (1939).
Q. R.A- 7227 is challenged as violative equal protection because it
grants tax and duty incentives only to businesses and residents within
the "secured area" of the Subic Special Economic Zone and denying
them to those who live within the Zone but outside such "fenced-in"
territory. Decide.
A. The Constitution does not require absolute equality among
residents. The real concern of RA 7227 is to convert the lands formerly
occupied by the US military bases into economic or industrial areas. In
furtherance of such objective, Congress deemed it necessary to extend
economic incentives to attract and encourage investors, both local and
foreign. Tiu v. court of Appeals, G.R. No. 127410, January 20,1999.
Q. Filipino teachers in the International School challenge the
legality of the school's practice of giving higher pay for foreign hires than
Fililipinos of equal rank. Is the practice constitutional?
36 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 13
A. No. The principle of "equal pay for equal work" requires that
persons who work with substantially equal qualifications, skill, effort
and responsibility, under similar conditions, should be paid similar
salaries. While we recognize the need of the School to attract foreignhires,
salaries should not be used as an enticement to the prejudice of
local-hires. The dislocation factor and limited tenure affecting foreignhires
are adequately compensated by certain benefits accorded them
which are not eqjoyed by local-hires, such as housing, transportation,
shipping costs, taxes and home leave travel allowances. International
School Alliance of Educators v. Quisumbing, G.R. No. 128845, June 1,
2000.
Q. Petitioners theorize that Section 44 of RA 8189 is violative of
the "equal protection clause" because it singles out the City and
Municipal Election Officers of the COMELEC as prohibited from holding
office in the same city or municipality for more than four (4) years.
Valid?
A. Yes. The singling out of election officers in order to "ensure the
impartiality of election officials by preventing them from developing
familiarity with the people of their place of assignment" justifies the
distinction. De Guzman, Jr., et al. v. Comelec, G.R. No. 129118, July 19,
2000.
Q. A law prescribes that an appointive official who files a
certificate of candidacy is considered resigned. The law does not apply
to elective officials. Valid?
A. Yes. Appointive officials and elective officials do not belong to
the same class. Farinas et al. v. Executive Secretary, G.R. No. 147387,
December 10, 2003; Quinto v. Comelec, G.R. No. 189698, December 1,
2009.
Q. A law provides that "In case of termination of overseas
employment without just, valid or authorized cause as defined by law or
contract, the workers shall be entitled to the full reimbursement of his
placement fee with interest of twelve percent (12%) per annum, plus
his salaries for the unexpired portion of his employment contract or for
three (3) months for every year of the unexpired term, whichever is
less." Other employees, however, are given full coverage for the
unexpired term. Valid?
A. It is discriminatory against overseas workers in a matter
involving fundamental right. Serrano v. Gallant Maritime Service, G.R.
No. 167614, March 24,2009.
Q. Executive Order No. 1 created the Truth Commission with
power to investigate graft and corruption committed during the Arroyo
administration. Valid.
Sec. 1 ART. Ill - BILL OF RIGHTS 37
A. No. It violates equal protection for focusing only of what
happened during the arroyo administration. Biraogo v. Truth
Commission, G.R. No. 192935, December 7,2010. See dissents.
NOTE: A different tax treatment for new brands of cigarettes was
justified on the basis of practicality and efficiency. That is, since the new
brands were not yet in existence at the time of the passage of RA 8240,
then Congress needed a uniform mechanism to fix the tax bracket of a
new brand. It is argued that the freeze provision violates the equal
protection and uniformity of taxation clauses because other brands are
taxed based on their 1996 net retail prices while new cigarette brands
are taxed based on their present day net retail prices. The Court said
that since this is not a case which involves suspect classification nor
impinges on fundamental rights, the rational test basis is what is
applicable. It has been held that "in the areas of social and economic
policy, a statutory classification that neither proceeds along suspect lines
nor infringes constitutional rights must be upheld against equal
protection challenge if there is any reasonably conceivable state of facts
that could provide a rational basis for the classification." British American
Tobacco v. Camacho, G.R. No. 163583, April 15,2009. Reconsideration.
Q. Can a provision of law, initially valid, become subsequently
unconstitutional, on the ground that its continued operation would
violate the equal protection of the law?
A. Yes. E.g., with the passage of the subsequent laws amending
the charter of seven (7) other governmental financial institutions (GFIs)
removing limitations on employees, the continued operation of the
limitation on Central Bank employees under Section 15(c), Article II of
the Central Bank law constitutes invidious discrimination on the 2,994
rank-and-file employees of the Bangko Sentral ng Pilipinas (BSP). This is a
case of relative unconstitutionality. Central Bank Employees v. Bangko
Sentral. G.R. No. 148208, December 15, 2004 (See dissents).
Q. What does the new Constitution say about equal rights for
women?
A. See Article II, Section 14.
Q. Does PT&Ts company policy of not accepting or considering as
disqualified from work any woman worker who contracts marriage
violate women's right against discrimination afforded by the
Constitution?
A. Yes. Philippine Telegraph and Telephone Company v. NLRC, G.R.
No. 118978, May 23,1997,272 SCRA 596.
38 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 13
Q. The following disqualification for local elective office found in
Batas Big. 52, section 4, is challenged as discriminatory:
Any retired elective provincial, city or municipal official who has
received payment of retirement benefits to which he is entitled under
the law and who shall have been 65 years of age at the commencement
of the term of office to which he seeks to be elected, shall not be
qualified to run for the same elective local office from which he has
retired.
A. The provision satisfies all the requirements of valid
classification. Dumlao v. COMELEC, 95 SCRA 392, January 22,1980.
Q. A law is passed prohibiting women from becoming licensed
bartenders. Valid?
A. The object of the law is to protect the morals of women. The
physical and psychological differences between men and women make
the distinction reasonably related to the valid purpose. Goesart v.
Cleary, 335 U.S. 464 (1948).
Q. A law is passed prohibiting women from becoming teachers.
Valid?
A. No. The distinction between men and women serves no valid
purpose.
Q. A law is passed requiring courts to give free transcript of
records to indigent litigants. Valid?
A. Yes. The classification serves to equalize opportunities in courts
between rich and poor.
Q. A law is passed prohibiting indigents from running for public
office. Valid?
A. No. The discrimination against indigents serves no valid
purpose.
Q. Ormoc City imposes a tax on Ormoc Sugar Central by name.
Ormoc Sugar Central is the only sugar central in Ormoc City. Valid?
A. No. Should another sugar centred arise in Ormoc City, the
ordinance would be discriminatory against Ormoc Sugar Central which
alone comes under the ordinance. Ormoc Sugar Central v. Ormoc City,
L-23794, February 17,1968.
Q. P.D. 1486 creating the Sandiganbayan is challenged as violative
of the equal protection clause because rights under it, such as the right
to appeal to the Supreme Court, are less than in other proceedings.
Decide.
A. The question here is whether those coming under the special
compass of the Sandiganbayan merit special classification. The
Sec. 1 ART. Ill - BILL OF RIGHTS 39
constitutional call for the creation of the Sandiganbayan is a call for a
special solution to a special problem. It is already a recognition that
dishonesty in public service is a valid basis for classification. The
Constitution's call for this special court prevails over general provisions
of the Bill of Rights. Nunez v. Sandiganbayan, 111 SCRA 433, Januaiy 30,
1982. Makasiar, J. filed an extensive dissent which is worth studying.
Q. A law provides that a police officer under investigation may be
preventively suspended beyond the usual 90 days and until the case is
decided. Does the law deny equal protection to police officers?
A. The special law for police officers is justified by their status. In
upholding the provision the Court said that the "reason why members
of the PNP are treated differently from the other classes of persons
charged criminally or administratively insofar as the application of the
rule on preventive suspension is concerned is that policemen carry
weapons and the badge of the law which can be used to harass or
intimidate witnesses against them, as succinctly brought out in the
legislative discussions." Himagan v. People, 237 SCRA 538, 551 (1994).
Q. Does the equal protection clause merely prohibit the State
from passing discriminatory laws?
A. No. The clause also commands the State to pass laws which
positively promote equality or reduce existing inequalities.
SEC. 2. THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,
HOUSES, PAPERS, AND EFFECTS AGAINST UNREASONABLE SEARCHES
AND SEIZURES OF
WHATEVER NATURE AND FOR ANY PURPOSE SHALL BE INVIOLABLE,
AND NO SEARCH WARRANT
OR WARRANT OF ARREST SHALL ISSUE EXCEPT UPON PROBABLE
CAUSE TO BE DETERMINED
PERSONALLY BY THE JUDGE AFTER EXAMINATION UNDER OATH OR
AFFIRMATION OF THE
COMPLAINANT AND THE WITNESSES HE MAY PRODUCE, AND
PARTICULARLY DESCRIBING THE
PLACE TO BE SEARCHED AND THE PERSONS OR THINGS TO BE SEIZED.
Q. What is the purpose of this provision?
A. The purpose of the provision is to protect the privacy and sanctity of the
person and of his house and other possessions against arbitrary
intrusions by State officers.
Q. Does the provision prohibit all searches and seizures? A. No. What it
prohibits are Unreasonable searches and seizures."
40 THE 1987 PHILIPPINE CONSTITUTION: Sec. 1
A COMPREHENSIVE REVIEWER
Q. When are searches and seizures unreasonable?
A. Searches and seizures are normally unreasonable unless authorized by a
validly issued search warrant or warrant of arrest. Thus, the fundamental
protection given by the search and seizure clause is that between person
and police must stand the protective authority of a magistrate clothed
with power to issue or refuse to issue search warrants or warrants of
arrest.
Q. Is there a presumption of regularity in search cases?
A. No. To prevent stealthy encroachment upon, or gradual depreciation
of the right to privacy, a liberal construction in search and seizure
cases is given in favor of the individual. Sony Music v. Judge
Espanol, G.R. No. 156804, March 14, 2005.
Q. Does Section 2 of the Bill of Rights protect citizens from unreasonable
searches and seizures perpetrated by private individuals?
A. No. "The constitutional proscription against unlawful searches and
seizures . .. applies as a restraint directed only against the
government and its agencies tasked with enforcement of the
law..People v. Marti, G.R. No. 81561, January 18,1991. However, it
may be possible to find a remedy in the Civil Code.
Q. When does an inquiry become a search such that it comes under the
rule of Section 2? Are "check points,0 for instance, "search points?"
Are checkpoints constitutional?
A. "Not all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be
determined by any fixed formula but is to be resolved according to
the facts of each case." Valmonte v. General de Villa, G.R. No.
83988, September 29,1989.
Q. When are checkpoints allowed?
A. Checkpoints are not illegal per se. Thus, under exceptional
circumstances, as where the survival of organized government is
on the balance, or where the lives and safety of the people are in
grave peril, checkpoints may be allowed and installed by the
government. Routine
Sec. 1 ART. Ill - BILL OF RIGHTS 41
inspection and a few questions do not constitute unreasonable
searches. If the inspection becomes more thorough to the extent of
becoming a search, this can be done when there is deemed to be
probable cause. In the latter situation, it is justifiable as a
warrantless search of a moving vehicle. Valmonte v. General de
Villa, G.R. No. 83988, May 24,1990.
Q. Must checkpoints be announced?
A. We see no need for checkpoints to be announced. Not only would it
be impractical, it would also forewarn those who intend to violate
the ban. Even so, badges of legitimacy of checkpoints may still be
inferred from their fixed location and the regularized manner in
which they are operated. People v. Escano, G.R. Nos. 129756-58,
January 28, 2000.
Q. Is every warrantless search or seizure unreasonable?
A. No. As will be shown later, there are exceptions to the rule.
Q. What are the essential requisites of a valid warrant?
A. The following are the requisites: (1) it must be issued upon "probable cause;"
(2) probable cause must be determined personally by a judge; (3) such
judge must examine under oath or affirmation the complainant and the
witnesses he may produce; (4) the warrant must particularly describe the
place to be searched and the person or things to be seized.
Probable cause
Q. What is "probable cause?"
A. Probable cause means such facts and circumstances antecedent to the
issuance of a warrant that are in themselves sufficient to induce a
cautious man to rely upon them. Specifically, probable cause must be
defined in relation to the action which it justifies. Probable cause for the
issuance of a warrant of arrest would mean such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that
an offense has been committed by the person sought to be arrested.
Probable cause for a search would mean such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that
an offense has been committed and that the objects sought in
connection with the offense are
42 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 13
in the place sought to be searched. Henry v. United States, 361 U.S.
98,102 (1959).
Q. What kind of evidence is needed to establish probable cause?
A. As implied by the words themselves, "probable cause" is concerned with
probability, hot absolute or even moral certainty. The prosecution need
hot present at this stage proof beyond reasonable doubt. The standards
of judgment are those of a reasonably prudent man, hot the exacting
calibrations of a judge after a full-blown trial. Microsoft Corporation v.
Maxicorp, G.R. No. 140946, September 13,2004.
NOTE: To establish probable cause of illegal possession of firearms
the witness must have personal knowledge of the existence of the
firearms and of the absence of license for such firearms. Betoy v. Judge,
A.M. No. MTJ-05-1608, February 26, 2006.
Q. The affidavit of Col. Castillo stated that in several issues of the
Philippine Times:
.. we found that the said publication in fact foments distrust
and hatred against the government of the Philippines and its duly
constituted authorities, defined and penalized by Article 142 of the
Revised Penal Code ..
and the affidavit of Lt. Ignacio read:
. . the said periodical published by Rommel Corro, contains
articles tending to incite distrust and hatred for the Government of the
Philippines or any of its duly constituted authorities."
Do the affidavits establish probable cause?
A. No. They are nothing but conclusions of law. Corro v. Using, 137
SCRA 541 (July 15,1985).
Q. A search warrant for the newspaper WE Forum is issued on the
basis of a broad statelnent of the military that Burgos, Jr. "is in
possession or has in his control printing equipment and other
paraphernalia, news publications and other documents which were
used and are all continuously being used as a means of committing the
offense of subversion." Is such allegation sufficient to establish probable
cause?
A. No. It is a mere conclusion of law unsupported by particulars.
Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA 800 (December 26, 1984).
Sec. 1 ART. Ill - BILL OF RIGHTS 43
Q. Must proof of probable cause for a warrant point to a specific
offender?
A. For a search warrant for things, no; for warrants of arrest, yes.
Webb v. de Leon, G.R. No. 121234, August 23,1995.
Q. Who may detehnine probable cause for the purpose of issuing a warrant?
A. Only a judge.
Q. Who determines probable cause for the purpose of filing an
information?
A. The prosecution. The determination of probable cause during a
preliminary investigation is an executive function. Its correctness is a
matter that the trial court itself does not and may not be compelled to
pass upon. People v. Court of Appeals, G.R. No. 126005, January 21,1999.
Q. An anonymous caller tipped off police officers that a man and a
woman were repacking prohibited drugs at a certain house. The officers
immediately proceeded to the house. When they reached the house
they "peeped (inside) through a small window and ... saw one man
and a woman repacking suspected marijuana." They entered the house
and confiscated the tea bags and some drug paraphernaliA. Subsequent
examination of the tea bags by NBI confirmed the suspicion that the tea
bags contained marijuana. Ws there a valid search and seizure?
A. No. The State cannot in a cavalier fashion intrude into the
persons of its citizens as well as into their houses, papers and effects.
The constitutional provision protects the privacy and sanctity of the
person himself against unlawful arrests and other forms of restraint, and
prevents him from being irreversibly "cut off from that domestic
security which renders the lives of the most unhappy in some measure
agreeable." People v. Bolasa, G.R. No. 125754, December 22,1999.
Q. May the Commissioner on Immigration issue warrants of
arrest?
A. Since the Commissioner on Immigration is not a judge, he may
not issue warrants of arrest in aid merely of his investigatory power.
However, he may order the arrest of an alien for the purpose of carrying
out a deportation order that has already become final. Qua Chee Gan v.
Deportation Board, 9 SCRA 27 (1963); Dalamal v. Deportation Board, 9
SCRA 382 (1963); Calacday v. Vivo, 33 SCRA 413 (1970); Board of
Commissioners (CID) v. de la Rosa, 197 SCRA 853,879 (1991).
44 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 13
Q. Where the PCGG issues a search and seizure order which
has all the features of a search warrant, is such order valid?
A. No, because only a judge may issue a search warrant.
(Besides, in this case, there was no probably cause.) Republic v.
Sandiganbayan, G.R. Nos. 112708-09, March 29,1996.
Q. What is needed in order to show probable cause of
infringement of copyright by renting agencies of cassette tapes? Is the
presentation of master tapes required?
A. Not all the time. It is needed only where there is doubt
as to the true nexus between the master tape and the pirated copies.
Columbia Pictures v. CA, G.R. No. 110318, August 28,1996.
Personal examination
Q. What is the meaning of "personally" in the search and seizure
clause?
A. What the Constitution underscores is the exclusive and
personal responsibility of the issuing judge to satisfy himself
of the existence of probable cause. In satisfying himself of
the existence of probable cause for the issuance of a warrant
of arrest the judge is not required to personally examine the
complainant and his witnesses and on the basis thereof, issue
a warrant of arrest. He may also rely on the fiscal's report
or if on the basis thereof he finds no probable cause he may
disregard the fiscal's report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause. This means
that what is required is personal determination and not
personal examination. Sound policy dictates this procedure;
otherwise judges would be unduly laden with the preliminary
examination and investigation of criminal complaints. Note
that in the text the adverb "personally" modifies "determined."
Soliven u. Judge Makasiar, Beltran v. Makasiar, G.R. No. 8287,
November 14,1988.
NOTE: A judge is not required to personally examine
the complainant and his witnesses or to await the submission
of counter affidavits from an accused. Following established
doctrine and procedure, the judge shall (1) personally evaluate
the report and the supporting documents submitted by the
prosecutor regarding the existence of probable cause, and on the
basis thereof, he may already make a personal determination
of the existence of probable cause; and (2) if he is not satisfied
Sec. 1 ART. Ill - BILL OF RIGHTS 45
that probable cause exists, he may disregard the prosecutor's report and
require the submission of supporting affidavits of witnesses to aid him in
arriving at a conclusion as to the existence of probable cause. Borlongan,
Jr. v. Pefia, G.R. No. 143591, November 23, 2007. To establish probable
cause of illegal possession of firearms the witness must have personal
knowledge of the existence of the firearms and of the absence of license
for such firearms. Betoy v. Judge, A.M. No. MTJ-05- 1608, February 26,
2006.
NOTE: Compare this with Bache and Co. case, infra.
Q. What procedure must be followed in determining probable
cause?
A. The judge must examine the complainant and his witnesses
under oath or affirmation. This has been interpreted as requiring a
personal and not merely delegated examination by the judge or by the
proper officer, because the purpose of the examination is to convince
the judge or officer himself and not any other individual. Alvarez v.
Court, 64 Phil. 33 (1922); Bache and Co. v. Ruiz, 37 SCRA 823 (1971).
Q. For the purpose of satisfying the requirement that the judge examine under
oath the complainant and the witnesses, are affidavits of the
complainant and of the witnesses sufficient?
A. No. The examining Judge has to take depositions in writing of the
complainant and the witnesses he may produce and to attach them to
the record. Such written deposition is necessary in order that the Judge
may be able to properly determine the existence or non-existence of the
probable cause, to hold liable for perjury the person giving it if it will be
found later that his declarations are false. People v. Mamaril, G.R. No.
147607, January 22, 2004. [But the actual taking of deposition, etc.
maybe done by the prosecutor but it is the judge who evaluates the
evidence.]
Q. Can a judge rely solely on the certification or recommendation
of a prosecutor that probable cause exists in issuing a warrant of surest?
A. No. By itself, the Prosecutor's certification of probable cause is
ineffectual. The judge must look at the report, the affidavits, the
transcripts of stenographic notes (if any), and all other supporting
documents behind the Prosecutor's certification. Lirn v. Felix, G.R. No.
94054-57,19 February 1991.
46 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 13
Particularity of description
Q. What is the meaning of particularity of description?
A. A search warrant may be said to particularly describe the things to be seized
when the description therein is as specific as the circumstances will
ordinarily allow and by which the warrant officer may be guided in
making the search and seizure. Backe & Co. v. Ruiz, 37 SCRA 823,835
(1971).
Q. What is the purpose of requiring particularity of description?
A. Its purpose is to prevent abuse by the officer enforcing the warrant by
leaving to him no discretion as to who or what to search or seize.
Q. Where the warrant describes what is to be seized as "an
undetermined amount of marijuana," is it sufficient?
A. Yes. It is not required that technical precision of description be
required , particularly where, by the nature of the goods to be seized,
their description must be rather general, since the requirement of a
technical description would mean that no warrant could issue. People v.
Tee, G.R. Nos. 140546-47, January 20, 2003.
Q. Does a "John Doe" warrant satisfy the requirement of particularity of
description?
A. Yes, provided that it contains a descriptio personae such as will enable the
officer to identify the accused. People v. Veloso, 48 Phil. 169 (1925).
But a warrant of arrest against 50 John Does is of the nature of a
general warrant clearly violative at least of the requirement of
particularity of description. Pangandaman v. Casar, 159 SCRA 599,611
(1988).
Q. Is the following description sufficient?
"Books of accounts, financial records, vouchers, journals, correspondence,
receipts, ledgers, portfolios, credit journals, typewriters,
and other documents and/or papers showing all business transactions
including disbursement receipts, balance sheets and related profit and
loss statements."
A. No. This amounts to a general warrant authorizing the officer to
pick up anything he pleases. Stonehill v. Diokno, L-19550, June 19,1967.
See also Microsoft Corporation v. Maxicorp, Inc., G.R. No. 140946,
September 13,2004.
Sec. 1 ART. Ill - BILL OF RIGHTS 47
Q. The search warrant described the articles sought to be seized
as: "All printing equipment, typewriters, cabinets, tables,
communications, recording equipment used or connected in the
printing of the "WE FORUM" newspaper and any other documents/
communications, letters and facsimile of prints related to the "WE
FORUM" newspaper." Is this description adequate?
A. No. The sweeping tenor of the description makes the document
a general warrant. Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA 800
(December 26,1984).
Q. The military applied for a search warrant for two addresses of
the newspaper WE Forum: 728 Units C & D, RMS Building, Quezon
Avenue, Q.C. and No. 19, Road 3, Project 6, Q.C. Two warrants were
issued both of them referring to the Project 6 address. Search
nonetheless was made of the RMS Building address. The search of the
latter is sought to be invalidated on the ground that the place was not
sufficiently described. Decide.
A. The defect pointed out is obviously a typographical error. In
determining the sufficiency of the description of the address, the
executing officer's prior knowledge of the place intended in the warrant
is relevant. In this case the executing officer was also the affiant on
whose affidavit the warrant had issued. He therefore knew what
addresses were referred to. Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA
800 (December 26,1984).
Q. If in a warrant for the search of the place there is a mistake in
the identification of the owner of the place, does it invalidate the
warrant?
A. Not if the place is properly described. Frank Uy v. BIR, G.R. No.
129651, October 20,2000.
Q. What could be referred to by the phrase searches and seizures
"of whatever nature and for whatever purpose?"
A. It is submitted that the phrase effectively extends the search
and seizure clause to at least two penumbral areas. The first is the sub
poena duces tecum under Rule 27 of the Rules of Court. See Material
Distributors v. Judge, 84 Phil. 127 (1949) and Oklahoma Press v. Walling,
327 U.S. 186, 208-9 (1948). The second, as yet untouched by Philippine
jurisprudence, is building inspection by administrative officers. See
Camara v. Municipal Court, 387 U.S. 523 (1967), overruling Frank v.
Maryland, 359 U.S. 360 (1959).
Q. What is the rule on examination of bank deposits?
A. An examination of the secrecy of bank deposits law (R. A. No.
1405) would reveal the following allowable exceptions:
48 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Where the depositor consents in writing;
Impeachment case;
By court order in bribery or dereliction of duty cases against
public officials;
Deposit is subject of litigation;
Sec. 8, R.A. No. 3019, in cases of unexplained wealth as held in
the case of PNB vs. Gancayco. Marquez v. Desierto, G.R. No. 135882,
June 27,2001.
Q. Are warrantless drug tests in public schools allowable?
A. In the criminal context, reasonableness usually requires a showing of
probable cause. The probable-cause standard, however, is peculiarly
related to criminal investigations and may be unsuited to determining
the reasonableness of administrative searches where the Government
seeks to prevent the development of hazardous conditions. The
American Court has held that a warrant and finding of probable cause
are unnecessary in the public school context because such requirements
would unduly interfere with the maintenance of the swift and informal
disciplinary procedures [that are] needed. Vernonia Sch. Dist. 47J v.
Acton, Decided June 26,1995; Board of Education v. Earls, No. 01332,
Decided June 27,2002.
Republic Act No. (RA) 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002, requires mandatory drug
testing of candidates for public office, students of secondary and tertiary
schools, officers and employees of public and private offices, and
persons charged before the prosecutor's office with certain offenses,
among other personalities.
As applied to candidates for national office, the requirement is
unconstitutional because it adds to the exclusive qualifications for such
offices prescribed by the Constitution.
As applied to students, following US jurisprudence, the Court upheld the
law for the reasons that: (1) schools and their administrators stand in
loco parentis with respect to their students; (2) minor students have
contextually fewer rights than an adult, and are subject to the custody
and supervision of their parents, guardians, and schools; (3) schools,
acting in loco parentis, have a duty to safeguard the health and wellbeing
of their students and may adopt such measures as may
Sec. 10 ART. Ill - BILL OP RIGHTS 49
reasonably be necessary to discharge such duty; and (4) schools have the
right to impose conditions on applicants for admission that are fair, just,
and non-discriminatory. Essentially this is the reasonable test.
As to employees, the reasonable test was applied.
As to candidates for local office, the mandatory character was
found to be unreasonable ad oppressive to privacy. Similarly it was
declared unconstitutional for people charged before the prosecutor's
office. Social Justice Society v. Dangerous Drugs Board, G.R. Nos.
157870,158633,161658, November 03,2008.
NOTE: The Constitution and the Rules of Court prescribe particular
requirements attaching to search warrants. These are not imposed by
the AMLA with respect to bank inquiry orders. A constitutional warrant
requires that the judge personally examine under oath or affirmation the
complainant and the witnesses he may produce such examination being
in the form of searching questions and answers. Those are impositions
which the legislative did not prescribe as to the bank inquiry order under
the AMLA. Simply put, a bank inquiry order is not a search warrant or
warrant of arrest as it contemplates a direct object but not the seizure of
persons or property. Republic v. Eugenio, G.R. No. 174629, February 14,
2008.
Exclusionary rule
Q. What is the consequence of a search or seizure without a warrant or by
authority of an invalid warrant?
A. Any evidence obtained in such search or seizure, "shall be inadmissible for
any purpose in any proceeding." Article III, ! Section 3 (2). The Constitution
explicitly follows the exclusionary rule.
Q. Does an application for bail have the effect of waiver of the
right to challenge the validity of a warrant?
A. No. Section 26, Rule 114 of the Revised Rules on Criminal
Procedure is a new one, intended to modify previous rulings of this
Court that an application for bail or the admission to bail by the accused
shall be considered as a waiver of his right to assail the warrant issued
for his arrest on the legalities or irregularities thereon. The new rule has
reverted to the ruling of this Court in People v. Red, [55 Phil. 706
50 THE 1987 PHILIPPINE CONSTITUTION: Sec. 11
A COMPREHENSIVE REVIEWER
(1931)]. The new rule is curative in nature because precisely, it was
designed to supply defects and curb evils in procedural rules. Okabe v.
Judge de Leon, G.R. No. 150185, May 27,2004.
Q. Are firearms which have been illegally seized in a "zona"
admissible in evidence?
A. No. "Pending determination of the legality of such articles,
however, they shall remain in custodia legis, subject to such appropriate
disposition as the corresponding courts may decide." Alih v. Castro, 151
SCRA 279 (1987).
Q. Must goods illegally seized be returned?
A. Yes, unless the possession of such goods is prohibited by law.
Castro v. Judge Pabalan, L-28642, April 30,1976.
Q. Petitioner was the owner of a motorcycle suspected to be the
get-away vehicle of the assailant of the late Moises Espinosa. It was
seized two days after the killing in the house of petitioner. There was no
warrant for the seizure. When petitioner sought to recover the vehicle,
police claimed that it was needed for the prosecution. Comment.
A. It must be returned. The fact that it might be needed for the
prosecution of an important crime is no exception to the rule on
warrants. Bagalihog v. Fernandez, G.R. No. 96356, June 27,1991.
Q. Who may avail of the defense of an unlawful search or seizure?
A. The objection to an unlawful search or seizure and to evidence obtained
thereby is purely personal and cannot be availed of by third parties.
Stonehill v. Diokno, 20 SCRA (June 19,1967); Nasiad v. Court of Tax
Appeals, 61 SCRA 238 (November 29, 1974).
Q. Is it required that the property to be searched should be owned by the
person against whom the search warrant is directed?
A. No. It is sufficient that the property is under the control or possession of the
person sought to be searched. Burgos, Sr. v. Chief of Staff, AFP, 133 SCRA
800 (December 26,1984).
Allowable warrantless searches
Q. Is every warrantless search an illegal search?
A. No. According to People v. Aruta, G.R. No. 120915, April 3, 1998.
Sec. 10 ART. Ill - BILL OP RIGHTS 51
1. Warrantless search incidental to a lawful arrest recognized
under Section 12, Rule 16 of the Rules of Court and by prevailing
jurisprudence.
But the tests for a valid warrantless search incidental to a lawful
arrest are:
(1) "the item to be searched was within the
arrestee's custody or area of immediate control" (United
States v. Tarazon, 989 F2d 1045,1051 [1993]) and
(2) "the search was contemporaneous with the
arrest" (Shipley v. California, 395 U.S. 818, 819 [1969]).
Padilla v. Court of Appeals, G.R. No. 121917, March 12,
1997, 269 SCRA 402,421.
2. Seizure of evidence in "plain view." The requisites for this are
the elements of which are: (1) a prior valid intrusion in to a place; (2) the
evidence was inadvertently discovered by the police who had the right to
be where they are; (3) the illegality of the evidence must be immediately
apparent; and, (4) and is noticed without further search. People v.
Evaristo, 216 SCRA 413 [1992]).
3. Search of a moving vehicle. Highly regulated by the
government, the vehicle's inherent mobility reduces expectation of
privacy. But there must be a highly reasonable suspicion amounting to
probable cause that the occupant committed a criminal activity.
4. Consented warrantless search. De Garcia v. Locsin, 65 Phil.
689, 694-5 (1938) says: But it must appear first, that the right exists;
secondly, that the person involved had knowledge, either actual or
constructive, of the existence of such right; lastly, that said person had an
actual intention to relinquish the right." Thus, where the accused has
voluntarily surrendered his gun, he cannot claim illegality of the seizure.
People v. Agbot, 106 SCRA 325,331 (L-376541, July 31,1981).
5. Customs search or Seizure of goods concealed to avoid
duties. Uykheytin v. Villareal, 116 U.S. 746 (1886); Papa v. Mago, 22 SCRA
857 (February 28,1968); Pacis v. Pamaran, 56 SCRA 16 (March 15,1974).
6. Stop and Frisk; situations (see below).
7. Exigent and Emergency Circumstances. (See below).
52 THE 1987 PHILIPPINE CONSTITUTION: Sec.
11
A COMPREHENSIVE REVIEWER
Q. What is the "stop and frisk" rule?
A. The U.S. Supreme Court laid down stop-and-frisk as an instance of a valid
warrantless search in Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d.
889 (1968). The Philippine Supreme Court adopted it in Posadas v. Court
of Appeals, G.R. No. 89139, August 2,1990,188 SCRA 288. Subsequently,
the Court notably applied it in the following cases: People v. Solayao, G.R.
No. 119220, September 20,1996,262 SCRA 255; and, Malacat v. Court of
Appeals, G.R. No. 123595, December 12,1997,283 SCRA 159.
The rule is stated thus by Terry: "[Wjhere a police officer observes
unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the person with
whom he is dealing may be armed and presently dangerous, where in
the course of investigation of this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where nothing in the
initial stages of the encounter serves to dispel his reasonable fear for his
own or others' safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might
be used to assault him. Such a search is reasonable search under the
Fourth Amendment..." Malacat, 283 SCRA at 176 (quoting Terry , 20
L.Ed.2d at 911); Solayao, 262 SCRA at 261.
In Malacat, the Court discussed the ^justification for and allowable
scope of a 'stop-and-frisk' as a limited protective search of outer clothing
for weapons. Thus, the Court said that: "...while probable cause is not
required to conduct a 'stop and frisk,' it nevertheless holds that mere
suspicion or a hunch will not validate a 'stop and frisk.' A genuine reason
must exist, in light of the police officer's experience and surrounding
conditions, to warrant the belief that the person detained has weapons
concealed about him. Finally, a 'stop-and-frisk' serves a two-fold interest:
(1) the general interest of effective crime prevention and detection,
which underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner, approach a
person for purposes of investigating possible criminal behavior even
without probable cause; and (2) the more pressing interest of safety and
self- preservation which permit the police officer to take steps to
Sec. 10 ART. Ill - BILL OP RIGHTS 53
assure himself that the person with whom he deals is not armed
with a deadly weapon that could unexpectedly and fatally be
used against the police officer." Malacat, 283 SCRA at 176-77.
Q. Illustrate the warrantless search arising from exigent circumstance.
A. This was applied in People v. De Gratia, G.R. Nos. 102009-
10, July 6,1994, 233 SCRA 716 where there were intelligence
reports that the building was being used as headquarters by
the RAM during the 1989 coup d'itat. Surveillance indicated
rebel activities in the building. Nearby courts were closed and
general chaos and disorder prevailed. Under the situation
then prevailing, the raiding team had no opportunity to apply
for and secure a search warrant from the courts. Under such
urgency and exigency of the moment, a search warrant should
lawfully be dispensed with." De Gratia, 233 SCRA at 729.
Q. Police operatives went to Zamora and Pandacan Streets,
Manila to confirm reports of drug pushing in the area.
They saw E selling "something" to another person.
After the latter had left, they approached E, introduced
themselves as policemen, and frisked him. The search
yielded 2 plastic cellophane tea bags of marijuana. When
asked if he had more, E replied that there were more
in his house. The policemen went to his house where
they found 10 more cellophane tea bags of marijuana. E
charged with and convicted of possession of prohibited
drugs. E assails the admissibility in evidence of the seized
tea bags. Decide.
A. "The articles seized from [E] during his arrest were
valid under the doctrine of search made incidental to a
lawful arrest. The warrantless search made in his house,
however, which yielded ten cellophane bags of marijuana
became unlawful since the police officers were not armed
with a search warrant at the time. Moreover, it was
beyond the reach and control of [E]." Espano v. Court of
Appeals, G.R. No. 120431, April 1,1998, 288 SCRA 558,
567.
Q. Do these exceptions declare a field day for searching officers?
A. No, because "[t]he essential requisite of probable cause [except
in stop and frisk] must still be satisfied before a warrantless
54 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
search and seizure can be lawfully conducted." People v. Aruta, G.R. No.
120915, April 3,1998, 288 SCRA 626, 638. "Probable cause, in these
cases, must only be based on reasonable ground of suspicion or belief
that a crime has been committed or is about to be committed as
determined by the searching officer/'
Q. May a fishing vessel found to be violating fishery laws be seized
without a warrant?
A. Yes, on two grounds: (1) because they are usually equipped
with powerful motors that enable them to elude pursuit, and (2)
because the seizure would be incidental to the lawful arrest of the crew.
Roldan, Jr. v. Area, 65 SCRA 336 (July 25,1975).
Q. Convicted by the RTC of illegal fishing, petitioners contend that
the NBI finding of sodium cyanide in the fish specimens should not have
been admitted because the fish samples were seized from their fishing
vessel without a search warrant. Decide.
A. This is a case of search of moving vehicle. Hizon v. Court of
Appeals, G.R. No. 119619, December 13,1996,265 SCRA 517,527-28.
Q. Twenty meters away from the gate of the Batasan, a truck was
stopped and searched. The motorists had not given any evidence of
suspicious behaviour nor had the searching officers received any
confidential information about the car. Could the search be justified as a
warrantless search of a moving vehicle?
A. No. There was no probable cause. Aniag, Jr. v. Commission on
Elections, 237 SCRA 424 (1994).
Q. On the basis of a tip, accused was arrested and searched upon
disembarking from M/V Wilcon in Hoilo City. The detention and search
yielded marijuana. The officers were not armed with a warrant
although the officers had at least two days to obtain a warrant. Was the
search and seizure valid?
A. No. The officers had all the. time to obtain a warrant. People v.
Amminudin, 163 SCRA 402.
Q. Accused, Malmstedt, was a passenger on a bus from Sagada to
Baguio City which was stopped at a checkpoint in Camp Dangwa. The
checkpoint was set up on the basis of reports that vehicles from Sagada
were being used to transport marijuana. Moreover, information had
been received that a Caucasian coming from Sagada had prohibited in
his possession. During the inspection, officers noticed a bulge in
accused's waist. When accused refused to comply with the request for
identification papers, he was made to show what
.2 ART. m - BILL OF RIGHTS 55
he had on his waist. It was found to contain hashish. On stepping
outside, accused stopped to pick up two traveling bags which, upon
being opened, were also found to contain prohibited drugs. Accused
claimed illegal search. Decide.
A. The search was made as an incident to his arrest when he was
found in possession of illegal drugs. The arrest was made on probable
cause that he was committing a crime. The warrantless search of the
bus was a valid search of a moving vehicle. People v. Malmstedt, G.R. No.
91107, June 19,1991. (See dissents and compare Math People v.
Amminudin, 163 SCRA 402.)
Q. Upon arrival at the NAIA and after boarding a taxi, defendants'
vehicle was stopped by the PC after a tip from a "deep penetration
agent" of the arrival of the defendants with metamphetamine
hydrochloride ("shabu"). Defendants allege that it is an illegal search as
the PC knew two days in advance of their arrival and yet did not obtain a
search warrant.
A. It is a legal search falling under the exception of search of a
moving vehicle. People v. Lo Ho Wing, et al., G.R. No. 88017, 21 January
1991.
Q. Upon a warrantless search of a hotel room, consent was given
and voluntary surrender of papers belonging to the registered but
absent occupant was given by a woman identified as the wife of the
occupant but who in fact was a "mere manicurist." Was such consent
sufficient to justify a warrantless search?
A. Yes. The officers of the law cannot be blamed if they would act
on the appearances. There was a person inside who from all indications
was ready to accede to their request. Even ordinary courtesy would
preclude them from inquiring too closely as to why she was there. Lopez
v. Commissioner of Customs, 68 SCRA 320 (December 12, 1975)
(Comment: If the right against unreasonable search and seizure is a
personal right, may it be waived by somebody other than the person
himself?)
NOTE: A permission granted for officers to enter a house to look
for rebel soldiers does not include permission for a room to room search
for firearms. Spouses Veroy v. Layague, G.R. No. 95632, June 18,1992.
NOTE: Where marijuana sticks fall before the eyes of a police
officer from an object a person is carrying, seizure of the sticks would
not require a warrant. They are evidence "in plain view." People v. Tabar,
222 SCRA 144 (1993). Where, however, police officers find an object
only after making some search, the "plain view" rule cannot be applied.
Roan v. Gonzales, 145 SCRA 687 (November 25,1986).
56 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Warrantless arrests
Q. Is every warrantless arrest illegal?
A. No. Rule 113, Section 5, Rules of Court, summarizes the exceptions thus:
A peace officer or a private person may, without warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or attempting to commit an offense;
(b) When an offense has in fact been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
Q. Appellant assails as unconstitutional the manner in which the
so-called buy-bust operation is conducted in order to enforce the
Dangerous Drugs Act. He stigmatizes it as no different from seizure of
evidence from one's person or abode without a search warrant.
Comment.
A. A buy-bust operation is a form of entrapment. The method is for
an officer to pose as a buyer. He, however, neither instigates nor induces
the accused to commit a crime because in these cases the "seller" has
already decided to commit a crime. And since the offense happens right
before the eyes of the officer, there is no need for a warrant either for
the seizure of the goods or for the apprehension of the offender. People
v. de la Cruz, G.R. No. 83260, April 18,1990.
Q. What is entrapment and when is it allowed?
A. "It is recognized that in every arrest, there is a certain amount of
entrapment used to outwit the persons violating or about to violate the
law. Not every deception is forbidden. The type of entrapment the law
forbids is the inducing of another to violate the law, the 'seduction' of an
otherwise innocent person into a criminal career. Where the criminal
intent originates in the mind of the entrapping person and the accused is
lured into the commission of the offense charged in order to prosecute
him, there is entrapment and no conviction may be had. Where,
however, the criminal intent originates in the mind of the accused and
the criminal offense is
Sec. 10 ART. Ill - BILL OP RIGHTS 57
completed, the fact that a person acting as a decoy for the state, or
public officials furnished the accused an opportunity for commission of
the offense, or that the accused is aided in the commission of the crime
in order to secure the evidence necessary to prosecute him, there is no
entrapment and the accused must be convicted. The law tolerates the
use of decoys and other artifices to catch a criminal." People v. Doria,
G.R. No. 125299, January 22,1999.
Q. A surveillance team of police officers saw two men "looking
from side to side," and one of them holding his abdomen. When
approached, the two men ran away but were caught. When searched,
they yielded a .38 caliber Smith and Wesson revolver with six live bullets
in the chamber. The weapons were taken, given to the police who used
it as evidence in a prosecution for possession of an unlicensed firearm.
Was the warrantless arrest and search valid?
A. The Court ruled the evidence inadmissible saying that no
offense was involved in "looking from side to side" and holding the
abdomen. People v. Mengote, G.R. No. 87059, June 22, 1992. (Is this not
a "stop and frisk situation?")
Q. From a report, a police officer hears of the recent commission
of a crime. Does such knowledge justify a warrantless arrest?
A. No. Regarding Section 5(b), "it is not enough that there is
reasonable ground to believe that the person to be arrested has committed
a crime. A crime must in fact or actually have been committed
first. That a crime has been committed is an essential precondition."
And the arresting officer must have personal knowledge of the
commission of the crime. Go v. Court of Appeals, 206 SCRA 138,150
(1992). Moreover, an arrest made nineteen hours after the offense has
been committed cannot be of one whose crime "in fact has just been
committed." People v. Manlulu, 231 SCRA 701 (1994). See also People v.
Rodrigueza, 205 SCRA 791, 796-797 (1992) and People u. Enrile, 222
SCRA 586 (1993).
Q. While patrolling in their car, policemen received a radio
message from their camp directing them to proceed to "Ihaw-Ihaw"
where there had been a shooting. They went to the place and there saw
the victim. Bystanders pointed to the accused as the assailant. The
accused by then was fleeing but had not gone very far from the place.
The police officers arrested the accused and seized the gun from him.
Valid warrantless arrest and search?
A Valid warrantless arrest under Rule 113, §5(b): an offense has in
fact just been committed, and the officers had personal knowledge of
the facts indicating that the accused has committed it. Valid warrantless
search under Rule 126, §12: search incidental to a lawful arrest. People
v, Jayson, G.R. No. 120330, November 18, 1997, 282 SCRA 166.
THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
73 Sec. 10
Q. Must a police officer who mistakenly arrests a person on the
ground of being in flagrante delicto be made liable?
A. For the arrest of one in flagrante delicto to be valid under Rule
112, Section 5(a), the law tilts in favor of authority. Thus, speech which
in an officer's estimation is criminally seditious can justify warrantless
arrest in flagrante delicto even if upon prosecution the officer is proved
wrong. The criminal character of speech is something that is not easily
determined and must await court estimation. Espiritu v. Lim, G.R. No.
85727, October 3,1991. But see dissents.
Q. May a person charged with rebellion, subversion, conspiracy or
proposal to commit such crimes, and crimes or offenses committed in
furtherance thereof be arrested without a warrant?
A. Yes, since these are continuing offenses and therefore the
accused are assumed to be always continuing the offense. Umil and
Dural v. Fidel Ramos, G.R. No. 81567, July 9,1990. (The decision was a
reaffirmation of the notorious Garcia-Padilla v. Enrile, 121 SCRA 472
[April 20, 1983]). Reaffirmed on reconsideration in In re Umil, October
3,1991.
Q. Armed with a search warrant elements of PC/INP conducted a
raid at a residence where they found several people in conference who
scampered in different directions leaving behind subversive materials of
various kinds, a .38 caliber revolver, assorted ammunition, money,
medicine, and printing paraphernalia. The persons there and then were
arrested. Was the arrest legal?
A. Yes. This is arrest of persons actually committing a crime
justified, even without warrant, under Rule 113, Section 6(a). Garcia-
Padilla v. Enrile, G.R. No. 61388, April 20,1983.
Q. The accused raised the issue of the irregularity of his arrest only
during trial. Will it prosper?
A. No. "Any objection involving a warrant of arrest or procedure in
the acquisition by the court of jurisdiction over the person of the
accused must be made before he enters his plea, otherwise the
objection is deemed waived." People v. Cabiles, G.R. No. 112035,
January 16,1998,284 SCRA 199,210 (citingPeople v. Lopez, Jr., 245 SCRA
95 [1995], People v. Rivera, 245 SCRA 421 [1995]).
Q. When is the accused estopped from assailing the illegality of his
arrest?
A. "[J]urisprudence is settled that an accused is estopped from
assailing the illegality of his arrest if he fails to move for the quashing of
the Information against him before his arraignment." People v.
Hernandez, G.R. No. 117624, December 4, 1997, 282 SCRA 387, 402
(citing People v. Lopez, Jr., 245 SCRA 95, 105-06 [1995];
Sec. 10 ART. Ill - BILL OP RIGHTS 59
People v. Samson, 244 SCRA 146, 150 [1995]; People v. Compil, 244 SCRA
135,144 [1995]).
SEC. 3. (1) THE PRIVACY OF COMMUNICATION AND CORRESPONDENCE
SHALL BE INVIOLABLE EXCEPT UPON LAWFUL ORDER OF THE COURT,
OR
WHEN PUBLIC SAFETY OR ORDER REQUIRES OTHERWISE AS
PRESCRIBED BY
LAW.
(2) ANY EVIDENCE OBTAINED IN VIOLATION OF THIS OR THE
PRECEDING SECTION SHALL BE INADMISSIBLE FOR ANY PURPOSE IN
ANY
PROCEEDING.
Q. What is the reason for Section 3(1)?
A. When the 1935 Constitution was being formulated, the controlling doctrine
was that the search and seizure clause did not prohibit non-trespassory
wiretaps. This was the doctrine established in 1928 in Olmstead v. United
States, 277 U.S. 438 (1928). Briefly, the argument in Olmstead was that
where there is no physical trespass there is no search, and where the
object is not tangible it cannot be seized. The "tangibles only" rule was
anchored on the text of the Fourth Amendment which enumerates
tangibles: house, person, papers, effects. Id. at 464-465. The framers of
the 1935 Constitution were quite aware of the Olmstead doctrine and
their realization of the inadequacy of the search and seizure clause as a
protection for personal privacy must have at least partly motivated the
adoption of the privacy provision. It has no counterpart in the American
Constitution nor in earlier Philippine organic law. In effect, the privacy
provision anticipated future development of American jurisprudence, for
in 1967 Katz v. United States, 389 U.S. 347 (1967) overruled the Olmstead
doctrine and placed wiretapping, with or without physical trespass, under
the ban of the search and seizure clause.
Q. What forms of correspondence and communication are covered by this
provision?
A. It covers letters, messages, telephone calls, telegrams, and the like.
Q. When is intrusion into the privacy of communication and correspondence
allowed?
A. It is allowed "upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law."
60 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. Upon what grounds may a court allow intrusion?
A. The text does not give any ground. It is submitted that the requirement of
probable cause in the preceding section should be followed. After all, as
may be seen in the development of American jurisprudence on the
subject, the privacy right is but an aspect of the right to be secure in one's
person. Cf. Material Distributor Inc. v. Natividad, 84 Phil. 127,136 (1949).
Q. Should the order also particularly describe the communication or
correspondence sought to be seized?
A. When the correspondence soiight is written correspondence, it would seem
that there should be no inconvenience in requiring particularity of
description. But if the intrusion is to be done through wiretaps, how is
the description to be made? Evidently, it would be impossible to describe
the contents of a communication that has not yet been made. Hence, it
would be unreasonable to require a description of the contents of the
communication. But the identity of the person or persons whose
communication is to be intercepted, and the identity of offense or
offenses sought to be prevented, and the period of the authorization
given can be specified. In fact, an attempt in this direction is made by
Section 3 of R.A. 4200, the Anti- Wiretapping Law, and similar safeguards
are also found in Title III of the Omnibus Crime Control and Safe Streets
Act, 18 U.S.C. Section 2518, which was discussed in the wiretapping case
of United States v. U.S. Districts Ct., Eastern Michigan, 40 LW 4761
(1972).
Q. What are the requisites when intrusion is made without judicial order?
Gii
A. When intrusion is made without a judicial order, it would have to be based
upon a government official's assessment that public safety and order
demand such intrusion. In addition to what has been said about what
transpired at the 1935 Convention, it was also made clear in the 1972
Convention that an executive officer can order intrusion when in his
judgment and even without prior court approval he believes that public
safety or order so requires. And public order and safety were defined as
'the security of human lives, liberty and property against the activities of
invaders, insurrectionists, and rebels." 1971 Constitutional Convention,
Session of November 25,1972. The
Sec. 10 ART. Ill - BILL OP RIGHTS 61
discretion of the public officer, moreover, must be exercised "as
prescribed by law." This is a phrase added to the 1973 version by the
new Constitution. It should also be added that the exercise of this power
by an executive officer is subject to judicial review. Moreover, other than
the President who may be deemed to have this power because under
the Constitution he is charged with the exercise of executive power,
other executive officers should first be properly authorized. To hold
otherwise would be to opt for a government of men and not of laws.
Every police agent would feel authorized to snoop.
Q. Is there any implementing statute covering this subject?
A. Yes. R.A. 4200 known as the Anti-Wiretapping Law provides penalties
for specific violations of private communication. Note that Section
3 of the Act allows court- authorized taps, under specific
conditions, for the crimes of "treason, espionage, provoking war
and disloyalty in case of war, piracy, mutiny in the high seas,
rebellion, conspiracy and proposal to commit rebellion, inciting rebellion,
sedition, conspiracy to commit sedition, inciting to
sedition, kidnapping."
Q. What is the effect of violation of Sections 2 and 3(1)?
A. "Any evidence obtained . . . shall be inadmissible for any purpose in any
proceeding." As already discussed in the preceding section, however,
this defense is purely personal.
Q. Mr. Job Reyes, proprietor of Manila Packing and Export Forwarders, a
private firm, opened boxes of Andre Martin for final inspection as part of
standard operating procedure before delivery to the Bureau of Posts or
Bureau of Customs. Reyes found dried marijuana leaves inside and took
samples to the NBI, who verified thai'the dried leaves were marijuana
leaves. An information was filed against Martin for violation of RA 6425,
or the Dangerous Drugs Act. Martin says that the marijuana leaves are
fruits of an illegal search and therefore under the exclusionary rule of
Section 3(2) of the Bill of Rights. Can an act of a private individual,
allegedly in violation of appellant's constitutional rights, be invoked
against the State?
A. No. In the absence of governmental interference, the constitutional right
against unreasonable search and seizure cannot be invoked against the
State. "[T]he protection against
62 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
unreasonable search and seizure cannot be extended to acts committed
by private individuals so as to bring it within the ambit of alleged
unlawful intrusion by the government." People v Andre Marti, G.R. No.
81561,18 January 1991.
Q. Are firearms which have been illegally seized in a"zona" admissible in
evidence?
A. No. "Pending determination of the legality of such articles, however, they
shall remain in custodia legis, subject to such appropriate disposition as
the corresponding courts may decide." Alih v. Castro, 151 SCRA 279
(1987).
NOTE: Section 26, Rule 114 of the Revised Rules in Criminal
Procedure says that an application for bail or the admission to bail by an
accused is not considered a waiver of his right to assail the warrant
issued for his arrest or the legalities or irregularities thereof. This is a new
rule intended to modify previous rulings of this Court. The new rule is
curative in nature because precisely, it is designed to supply defects and
curb evils in procedural rules. Okabe v. Judge de Leon, G.R. No. 150185,
May 27,2004.
But it is long settled that where the accused, by his voluntary
submission to the jurisdiction of the court, as shown by the
counsel-assisted plea he entered during the arraignment and his active
participation in the trial thereafter, voluntarily waives his constitutional
protection against illegal arrests and searches. We have consistently
ruled that any objection concerning the issuance or service of a warrant
or a procedure in the acquisition by the court of jurisdiction over the
person of the accused must be made before he enters his plea,
otherwise, the objection is deemed waived. People v. Rivera, G.R.
No.177741, August 27^009.
SEC. 4. No LAW SHALL BE PASSED ABRIDGING THE FREEDOM OF
SPEECH, OF EXPRESSION, OR OF THE PRESS, OR THE RIGHT OF THE
PEOPLE
PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR
REDRESS
OF GRIEVANCES.
Q. What do "speech," "expression," and "press" include?
A. Speech, expression, and press include every form of expression, whether
oral, written, tape or disc recorded. It also includes movies as well as
what is referred to as symbolic speech such
Sec. 10 ART. Ill - BILL OP RIGHTS 63
as the wearing of an armband as a symbol of protest. Peaceful picketing has
also been included within the meaning of speech.
No prior restraint
Q. What is the first prohibition of the free speech and press clause?
A. The first prohibition of the constitutional provision is a prohibition of prior
restraint. Prior restraint means official government restrictions on the
press or other forms of expression in advance of actual publication or
dissemination. Its most blatant form is a system of licensing administered
by an executive officer. Movie censorship, although not placed on the
same level as press censorship, also belongs to this type of prior restraint.
Also similar to the licensing system is judicial prior restraint which takes
the form of an injunction against publication. Equally objectionable as
prior restraint are license taxes measured by gross receipts for the
privilege of engaging in the business of advertising in any newspaper or
flat license fees for the privilege of selling religious books.
Q. The offices of the WE FORUM , were searched and closed on the basis of an
invalid warrant. Comment.
A. "Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the
fundamental law, and constitutes virtual denial of petitioners' freedom
to express themselves in dissent." Burgos, Sr. v. Chief of Staff, AFP, 133
SCRA 800 (1984) See also Corro v. Lising, 137 SCRA 541 (July 15,1985).
NOTE: Another case of violation of freedom of expression through
the harassment of media was the summons the military sent to several
women in media. The Court, however, did not pass judgment on the
case but instead considered it moot since the military had discontinued
the interviews. See Babst v. National Intelligence Board, 132 SCRA 316
(September 28,1984).
The warning on media against airing the alleged wiretapped
conversation between the President and other personalities constitute
unconstitutional prior restraint on the exercise of freedom of speech
and of the press. Chavez v. Gonzales, G.R. No. 168338, February 15,
2008.
Q. Is the prohibition of "prior restraint" absolute?
A. No. Although any system of prior restraint comes to court bearing a heavy
presumption against its constitutionality, New
64 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
York Times v. United States, 403 U.S. 713 (1971), there are exceptions to
the rule. Near v. Minnesota, 283 U.S. 697 (1931), enumerates them thus:
"When a nation is at war, many things that might be said in time of
peace are such a hindrance to its effort that their utterance will not be
endured so long as men fight and that no court could regard them as
protected by any constitutional right." No one would question but that
government might prevent actual obstruction to its recruiting service or
the publication of the sailing dates of transports or the number and
location of troops. On similar grounds, the primary requirements of
decency may be enforced against obscene publications. The security of
the community life may be protected against incitements to acts of
violence and the overthrow by force of orderly government.
Q. Does the Comelec's power, under IX, C, 4, to regulate time in broadcast
media and space in the papers violate freedom of expression?
A. No. The effect of the provision is to create "an exception to
freedom-of-speech-and-press clause on account of considerations more
paramount for the general welfare and public interest, which exceptions
after all would operate only during limited periods, that is, during the
duration of the election campaign filed in the charter itself and/or by
law." UNIDO v. Comelec, 104 SCRA 17,38 (April 3,1981); National Press
Club v. Commission on Elections, 207 SCRA 1 (1992)
Q. As a measure of electoral reform, Republic Act 6646, Section
11(b) made it unlawful "for any newspaper, radio broadcasting or
television station, other mass media, or any person making use of the
mass media to sell or to give-free of charge print space or air time for
campaign or other political purposes except to the Commission as
provided under Section 90 and 92 of Batas Pambansa Big. 881." Batas
Big. 881 had also commanded the Commission to procure print space
and broadcast time to be allocated impartially among the candidates. Is
such law valid?
A. This law has since been repealed. But the reasoning behind the
decision which upheld it remains valid. In upholding the reasonableness
of the provisions National Press Club v. Commission on Elections, 207
SCRA 1 (1992), said that the objective of the prohibition was the
equalizing, as far as practicable, of the situation of rich and poor
candidates by preventing the former from enjoying
Sec. 10 ART. Ill - BILL OP RIGHTS 65
undue advantage offered by huge campaign "war chests." The Court
said that the provision on freedom of expression must be read in
conjunction with the power given to the Commission on Elections to
supervise and regulate media during elections as well as with the various
provisions in the Constitution which place a high premium on
equalization of opportunities.
Q. Relying on Section 11 of Republic Act 6646, the Comelec
prohibited the posting of decals and stickers of candidates on "mobile"
places, public or private. Valid?
A. Adiong v. Commission on Elections, 207 SCRA 712 (1992)
declared Section 11 invalid ,f<?r infringing freedom of speech and for
being an undue delegation of rule making authority. The prohibited acts
were found to present no substantial danger to government interest.
The prohibition therefore did not satisfy the requirements of the clear
and present danger rule. Moreover, the prohibition was found to suffer
from over "breadth." It encompassed the use of privately owned
property such as a vehicle. It therefore was an unreasonable restriction
on the use of property. Finally, the constitutional objective to give rich
and poor candidates equal opportunity was not seen as served by the
prohibition of decals.
Q. In the exercise of its authority to regulate the holders of media
franchises during the election period the Comelec banned "exit polls." It
contends that "an exit poll has the tendency to sow confusion
considering the randomness of selecting interviewees, which further
make[s] the exit poll highly unreliable. The probability that the results of
such exit poll may not be in harmony with the official count made by the
Comelec... is ever present.." Valid?
A. Exit polls, i.e., random polling of voters as the come out of the
booths, and the dissemination of their results through mass media
constitute an essential part of the freedoms of speech and of the press.
Hence, the Comelec cannot ban them totally in the guise of promoting
clean, honest, orderly and credible elections. The ban does not satisfy
the clear and present danger tale because the evils envisioned are
merely speculative. ABS-CBN v. Comelec, G.R. No. 133486, January
28,2000.
Q. Section 1 of R.A. 9006, the Fair Election Act, says: "Surveys
affecting national candidates shall not be published fifteen (15) days
before an election and surveys affecting local candidates shall not be
published seven (7) days before an election." The provision as well as the
implementing resolution of the Comelec is challenged as violative of
freedom of expression. The Comelec, however, justifies the rule as
necessary to prevent the manipulation and corruption of electoral
process by unscrupulous and erroneous surveys just before election.
Decide.
THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
81 Sec. 10
A. As prior restraint, the rule is presumed to be invalid. The power
of the Comelec over media franchises is limited to ensuring "equal
opportunity, time, space and the right to reply" as well as to reasonable
rates of charges for the use of media facilities for "public information
and forums among candidates." Here the prohibition of speech is
direct, absolute and substantial. Nor does the rule pass the &Brien test
for content related regulation because (1) it suppresses one type of
expression while allowing other types such as editorials, etc. and (2) the
restriction is greater than what is needed to protect government
interest because the interest can be protected by narrower restriction
such as subsequent punishment. SWS v. Comelec, G.R. 147571, May 5,
2001.
Q. Newsounds had been operating a radio station in Cauayan,
Isabela. When renewal of the permit was sought to continue operation
in the same place, he was denied on the basis of a zoning ordinance.
Was this a form of regulation of speech?
A. Jurisprudence distinguishes between a content-neutral
regulations, i.e., merely concerned with the incidents of the speech, or
one that merely controls the time, place or manner, and under welldefined
standards; and a content-based restraint or censorship, i.e., the
restriction based on the subject matter of the utterance or speech.
Content-based laws are generally treated as more suspect than
content-neutral laws because of judicial concern with discrimination in
the regulation of expression. Content-neutral regulations of speech or
of conduct that may amount to speech, are subject to lesser but still
heightened scrutiny. Ostensibly, the ordinance was a content neutral
zoning ordinance. However, under the circumstances of the case, the
real purpose of the ordinance was to silence the station which had been
a strong critic of the local administration. The ordinance therefore must
be viewed as a content-based regulation. Newsounds Broadcasting v.
Dy, G.R. Nos. 170270 & 179411, April 2,2009.
NOTE: Section 79(a) of the Omnibus Election Code defines a
"candidate" as "any person aspiring for or seeking an elective public
office, who has filed a certificate of candidacy x x x." The second
sentence, third paragraph, Section 15 of RA 8436, as amended by
Section 13 of RA 9369, provides that "[a]ny person who files his
certificate of candidacy within [the period for filing] shalLoniy be
considered as a candidate at the start of tfift period
for which he filed his certificate of candidacy." The immediately
succeeding proviso in the same third paragraph states that "unlawful
acts or omissions applicable to a candidate shall take effect only upon
the start of the aforggnifl campaign period." These two provisions
determine the resolution of this case. This means that outside of these
conditions a person's right to campaign is protected by the freedom of
speech clause. Penera v. Comelec, G.R. No. 181613, November 25,
2009, reversing an earlier decision.
.4 ART. Ill - BILL OF RIGHTS 67
Q. Since movie censorship is a form of prior restraint, how can it
escape unconstitutionality?
A. The U.S. Supreme Court ruled in Freedman u. Maryland, 380
U.S. 51 (1965):
[W]e hold that a non-criminal process which requires prior
submission of a film to a censor avoids constitutional infirmity only
if it takes place under procedural safeguards designed to obviate
dangers of a censorship system. First, the burden of proving that
the film is unprotected expression must rest on the censor...
Second,... the requirement cannot be administered in a manner
which would lend an effect of finality to the censor's
determination... The teaching of our cases is that, because only a
judicial determination in an adversary proceeding ensures the
necessary sensitivity to freedom of expression, only a procedure
requiring a judicial determination suffices to impose a valid fined
restraint... To this end, the exhibitor must be assured, by statute
or authoritative judicial construction, that the censor will, within a
specified brief period, either issue a license or go to court to
restrain showing the film. Any restraint imposed in advance of a
final judicial determination on the merits must similarly be limited
to preservation of the status quo for the shortest fixed period
compatible with sound judicial resolution. Moreover,... the
procedure must also assure a prompt judicial decision, to
minimize the deterrent effect of an interim and possibly
erroneous denial of a license.
Q. Do we follow Freedman v. Maryland?
A. Our Court, has held that, while Freedman has a lot to commend
itself, "we are not ready to hold that it is unconstitutional for Congress to
grant an administrative body quasi-judicial power to preview and
classify TV programs and enforce its decision subject to review by our
courts." Iglesia ni Kristo v. Court of Appeals, G.R. 119673, July 26,1996.
Q. Respondents claim that the television program "The Inside
Story" is a "public affairs program, news documentary and socio-political
editorial," the airing of which is protected by the constitutional provision
on freedom of expression and of the press and therefore not subject to
prior review before showing.
A. Albeit, respondent's basis is not freedom of religion, as in Iglesia
ni Crista, but freedom of expression and of the press, the ruling in Iglesia
ni Cristo applies squarely to the instant issue. It is significant to note that
in Iglesia ni Cristo, this Court declared that freedom of religion has been
accorded a preferred status by the framers of our fundamental laws,
past and present, "designed to protect the broadest
68 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
possible liberty of conscience, to allow each man to believe as his conscience
directs x x x." Yet despite the fact that freedom of religion has
been accorded a preferred status, still this Court, did not exempt the
Iglesia ni Cristo's religious program from petitioner's review power.
MTRCB v. ABS-CBN, G.R. No. 155282, January 17,2005.
Q. May live tv coverage of a criminal trail be prohibited?
A. With the possibility of losing not only the precious liberty but
also the very life of an accused, it behooves all to make absolutely
certain that an accused receives a verdict solely on the basis of a just
and dispassionate judgment, a verdict that would come only after the
presentation of credible evidence testified to by unbiased witnesses
unswayed by any kind of pressure, whether open or subtle, in
proceedings that are devoid of histrionics that might detract from its
basic aim to ferret veritable facts free from improper influence, and
decreed by a judge with an unprejudiced mind, unbridled by running
emotions or passions. Re: request for Radio-TV Coverage of the Estrada
Trial, AM. No. 01-4-03-SC. June 29,2001
Q. Does every form of speech enjoy the same degree of
protection?
A. No. The doctrine on freedom of speech was formulated primarily
for the protection of "core" speech, i.e., speech which communicates
political, social or religious ideas. These enjoy the same degree of
protection. Commercial speech, however, does not.
Commercial speech
Q. What is the meaning of commercial speech?
A. It is communication which "no more than proposes a commercial
transaction." Advertisement of goods or of services is an example.
Q. In order for government to curtail commercial speech what must be
shown? 0J
A. To enjoy protection, commercial speech must not be false or misleading
Friedman v. Rogers, 440 U.S. 1 (1979) and should not propose an illegal
transaction. Pittsburgh Press Co. v. Human Relations Commission, 413
U.S. 376 (1973). However, even truthful and lawful commercial speech
may be regulated if (1) government has a substantial interest to protect;
(2) the regulation directly advances that interest; and (3) it is not more
extensive than is necessary to protect that interest. Central Hudson Gas
& Electric Corp. v. Public Service Commission of NY, 447 U.S. 557 (1980).
Sec. 10 ART. Ill - BILL OP RIGHTS 69
NOTE: The advertising and promotion of breast milk substitutes
falls within the ambit of the term commercial speech, a separate
category of speech which is not accorded the same level of protection as
that given to other constitutionally guaranteed forms of expression but is
nonetheless entitled to protection. An absolute ban on advertising is
unduly restrictive and is more than necessary to further the avowed
governmental interest of promoting the health of infants and young
children. Pharmaceutical v. Secretary of Health, G.R. No. 173034, October
9, 2007.
' "V '
Subsequent punishment
Q. What is the second basic prohibition of the free speech and press clause?
A. The free speech and press clause also prohibits systems of subsequent
punishment which have the effect of unduly curtailing expression. For,
indeed, if prior restraint were all that the constitutional guarantee
prohibited and government could impose subsequent punishment
without restraint, freedom of expression would be a mockery and a
delusion.
Q. What are the standards for allowable subsequent punishment of
expression?
A. Since freedom of expression ranks in the hierarchy of constitutional rights
higher than property, Salonga v. Pano, 134 SCRA 438 (February 18,1985),
the norms for the regulation of expression place more stringent limits on
state action. Jurisprudence has evolved three tests: (1) the dangerous
tendency test; (2) the clear and present danger test; (3) the balancing of
interests test. Of these, the second and third are in favor.
Q. What is the dangerous tendency rule?
A. In the early stages of Philippine jurisprudence, the accepted rule was that
speech may be curtailed or punished when it "creates a dangerous
tendency which the State has the right to prevent." This standard has
been labeled the "dangerous tendency" rule. All it requires, for speech to
be punishable, is that there be a rational connection between the speech
and the evil apprehended.
70 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. Give an example of the application of the dangerous tendency
rule.
A. In a political discussion held at a town municipio, citizen Perez
made this remark: "And the Filipinos, like myself, must use . bolos for
cutting off Wood's head for having recommended a bad thing for the
Philippines." Prosecuted for seditious speech, Perez was convicted.
"Criticism," Justice Malcolm said for the Court, "no matter how severe,
on the Executive, the Legislature, and the Judiciary, is within the range of
liberty of speech, unless the intention and effect be seditious." Such
apparently, in the judgment of the Court were the intention and effect
of Perez' remarks. Malcolm found in them "a seditious tendency" which
could easily produce disaffection among the people and a state of
feeling incompatible with a disposition to remain loyal to the
Government and obedient to the laws." People v. Perez, 45 Phil. 599
(1923).
Q. Espiritu, in a gathering of drivers and sympathizers at the corner
of Valencia Street and Magsaysay Boulevard, said, among others: "Bukas
tuloy ang welga natin . . . hanggang sa magkagulo na." Later, at a
conference at the National Press Club he called for a nationwide strike.
He was arrested, without warrant, for inciting to sedition. Was the arrest
valid?
A. Yes. People may differ as to the criminal character of the
speech, which at any rate will be decided in court. But for purposes of
the arrest, not for conviction, there was sufficient ground for the officer
to believe that Espiritu was in the act of committing a crime. For
purposes of arrest, the law tilts in favor of authority. Espiritu v. General
Lim, G.R. No. 85727, October 3,1991. But see dissents.
Q. State and explain the clear and present danger rule.
A. The rule was formulated by Justice Holmes in Schenck v. United States, 249
U.S. 47 (1919) thus: "The question in every case is whether the words
used are used in such circumstances and are of such a nature as
to'fereate a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of
proximity and degree." As the Supreme Court was later on to explain in
Dennis v. United States, 341 U.S. 494,509 (1951):
Obviously, the words cannot mean that before the Government
may act, it must wait until the putsch is about to be
executed, the plans have been laid and the signal is awaited. If the
Government is aware that a group aiming at its overthrow is
attempting to indoctrinate its members and to commit them to a
course whereby they will strike when the leaders feel the cir
Sec. 10 ART. Ill - BILL OP RIGHTS 71
cumstances permit, action by the Government is required. The
argument that there is no need for Government to concern itself,
for Government is strong, it possesses ample powers to put down
a rebellion, it may defeat the revolution with ease, needs no
answer. For that is not the question. Certainly an attempt to
overthrow the government by force, even though doomed from
the outset because of inadequate numbers or power of the revolutionists,
is a sufficient evil for Congress to prevent. The damage
which such attempts create both physically and politically to a
nation makes it impossible to measure the validity in terms of the
probability of success, or the immediacy of a successful attempt ...
We must therefore reject the contention that success or
probability of success Is the criterion.
Citing Justice Learned Hand, the Supreme Court summarized the
rule thus: "In each case [courts] must ask whether the gravity of the 'evil,'
discounted by its improbability, justified such invasion of free speech as is
necessary to avoid the danger." Id.
Q. Explain the balancing of interests test.
A. Professor Kauper explained the rule thus:
The theory of balance of interests represents a wholly pragmatic
approach to the problem of First Amendment freedom, indeed, to the
whole problem of constitutional interpretation. It rests on the theory
that it is the Court's function in the case before it when it finds public
interests served by legislation on the one hand and First Amendment
freedoms affected by it on the other, to balance the one against the
other and to arrive at a judgment where the greater weight shall be
placed. If on balance it appears that the public interest served by
restrictive legislation is of such a character that it outweighs the
abridgment of freedom, then the Court will find the legislation valid. In
short, the balance-of-igjterests theory rests on the basis that
constitutional freedoms are nqt absolute, not even those stated in the
First Amendment, and that they may be abridged to some extent to
serve appropriate and important interests. Cited in Gonzales v. Comelec,
27 SCRA 835,899 (1969).
Q. What is the special usefulness of the balancing of interests
test?
A. The dangerous tendency rule and the clear and present danger
rule were evolved in the context of prosecution for seditious speech.
They are thus couched in terms of degree of evil and proximity of the
evil. But not all evils easily lend themselves, like sedition, to
measurement of proximity and degree. For legislation therefore whose
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object is not the prevention of evil measurable in terms of proximity
and degree, another test had to be evolved. The balancing of interests
test serves the purpose. It is used, for instance, for commercial speech.
Q. Give an example of the application of the balancing of .
interests test.
A. Republic Act No. 4880 among other things prohibits the too
early nomination of political candidates and limits the period for
partisan political activity. Its purpose is to prevent the debasement of
the political process. In determining the validity of the law, free speech
as a social value must be weighed against the political process as a social
value. Castro Gonzales v. Comelec, 27 SCRA 835 (1969).
Similarly, in the case of Lagunzad v. Soto Vda. de Gonzales, 92
SCRA 476,488-9 (L-32066, August 6,1979), where there was conflict
between the right of the family of the late Moises Padilla to have their
privacy protected and the right of a writer to write about a public figure
like Moises Padilla, the Court applied the balancing of interests test and
held in favor of the family's right to have their privacy protected. Hence,
the licensing agreement which required compensation to the family
was upheld as valid.
Q. Which test has found preference with the Supreme Court?
A. It should be noted that between the dangerous tendency rule and the clear
and present danger rule, the difference is chiefly one of degree. Hence, it
is difficult to speak of preferences independently of the factual context.
This much, however, may be said, that in early speech cases involving
incitement to sedition, an analysis of Supreme Court decisions yields a
language that favors the more restrictive dangerous tendency rule. See
People v. Perez, 45 Phil. 599 (1923); People v. Feleo, 57 Phil. 451 (1932);
People v. Evangelista, 57 Phil. 354 (1932); Espuelas v. People, 90 Phil. 524
(1951).
In cases of contempt of the Supreme Court, the only test
conclusively established by the Supreme Court is the "dangerous
tendency" rule; however, in certain cases involving contempt of inferior
courts, the "clear and present danger" rule has also been given at least a
nodding assent. Bernas, CONSTITUTIONAL RIGHTS AND DUTIES,
181-192.
With the restoration of democracy, the clear and present danger
test is again coming into favor. Eastern Broadcasting Corp. v. Dans, Jr.,
137 SCRA 628 (July 19,1985).
Sec. 10 ART. Ill - BILL OP RIGHTS 73
Q. Enrile seeks to enjoin the movie company from producing "The
Four Day Revolution," a dramatization of the February 1986 revolution,
for public showing, on the ground that it would violate his right to privacy.
Decide.
A. Motion pictures are protected medium for the communication
of ideas and the expression of the artistic impulse. This freedom is
available to both local and foreign owned production companies even if
they are commercial. Indeed there is such a thing as the right to privacy.
But this cannot be invoked to resist publication of matters of public
interest. What the right to privacy protects is the right against
unwarranted intrusions and wrongful publication of the private affairs
and activities of individuals which are outside the sphere of legitimate
public concern. Enrile's role in that revolution is a matter of public interest
because he was a principal figure in that event. Ayer Productions Pty. Ltd.
v. Judge Capidong, 160 SCRA 861 (1988).
Q. On the occasion of the ratification campaign for the Autonomy
Act for the Cordillera, the COMELEC issued a resolution prohibiting
columnists, commentators, and announcers from using their columns or
radio or television time to campaign for or against the plebiscite during
the period of the campaign. Valid?
A. The resolution is unconstitutional. The authority given by the
Constitution is over holders of franchises. The purpose is to assure
candidates equal opportunity and equal access to media. Sanidad is not a
candidate and in fact in a plebiscite there are no candidates. Plebiscite
issues are matters of public concern and the people's right to be
informed must be preserved. Moreover, the people's choice of forum for
discussion should not be restricted. Sanidad v. COMELEC, G.R. No. 90878,
January 29,1990.
Symbolic speech
Q. O'Brien burned his Selective Service registration certificate before a sizable
crowd in order to influence others to adopt his anti-war beliefs. He was
indicted, tried, and convicted for violating 50 U.S.C.App. § 462(b), a part
of the Universal Military Training and Service Act. O'Brien argued that the
law violated his freedom of speech. Decide.
A. When "speech" and "nonspeech" elements are combined in the same
course of conduct, a sufficiently important governmental interest in
regulating the nonspeech element can justify incidental limitations on
free speech. A governmental regulation is sufficiently justified if (1) it is
within the constitutional power of the Government and (2) furthers an
important or substantial governmental interest unrelated to the
suppression
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of free expression, and (3) if the incidental restriction on alleged freedom
is no greater than is essential to that interest. The law meets this test.
U.S. v. O'Brien, 391 U.S. 367,20 L. Ed. 2d 672 (1968).
Unprotected speech
Q. Are there any forms of speech which are not protected by the Constitution?
A. "There are certain well defined and narrowly limited classes of speech, the
prevention and punishment of which has never been thought to raise
any constitutional problems." Chaplinsky v. New Hampshire, 315 U.S.
568, 571-2 (1942). These are libel and obscenity. "It has been well
observed that such utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the
social interests in order and morality." Chaplinsky v. New Hampshire, 315
U.S. 572 (1942).
Libel
Q. Define libel.
A. Article 353 of the Revised Penal Code defines libel thus:
A libel is a public and malicious imputation of a crime, or of a vice
or a defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a
natural or juridical person, or to blacken the memory of one who is
dead.
Q. What are the elements of libel?
A. To be liable for libel, the following elements must be shown to exist: (a) the
allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d)
existence of malice.
Q. When is a defamatory imputation malicious?
A. 'There is malice when the author of the imputation is prompted by ill-will or
spite and speaks not in response to duty but merely to injure the
reputation of the person who claims to have been defamed." Alonzo v.
Court of Appeals, G.R. No. 110088, February 1, 1995, 241 SCRA 51, 59-60
(reiterated in
Sec. 10 ART. Ill - BILL OP RIGHTS 75
Ledesma v. Court of Appeals, G.R. No. 113216, September 5, 1997, 278
SCRA 656,685.)
Q. What does publication in libel mean?
A. It means "making the defamatory matter, after it has been written, known to
someone other than the person to whom it has been written. The reason
for such rule is that 'a communication of the defamatory matter to the
person defamed cannot injure his reputation though it may wound his
self-esteem. A man's reputation is not the good opinion he has of
himself, but the estimation in which others hold him."' Ledesma v. Court
of Appeals, G.R. No. 113216,"September 5,1997, 278 SCRA 656, 686-87.
Q. What is the rule on privileged communications in the Revised Penal Code?
A. Article 354:
Every defamatory imputation is presumed to be malicious, even if
it be true if no good intention and justifiable motive for making it is
shown, except in the following cases:
1. A private communication made by any person to another in
the performance of any legal, moral, or social duty; and
2. A fair and true report, made in good faith, without any
comments or remarks, of any juridical, legislative, or other official
proceedings which are not of confidential nature, or of any statement,
report, or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.
Q. Explain the rule further.
A. In order to prove that a statement falls within the purview of a qualifiedly
privileged communication under Article 354, No. 1, the following
requisites must concur: (1) the person who made the communication
had a legal, moral, or social duty to make the communication, or at least,
had an interest to protect, which interest may either be his own or of the
one to whom it is made; (2) the communication is addressed to an officer
or a board, or superior, having some interest or duty in the matter, and
who has the power to furnish the protection sought; and (3) the
statements in the communication are made in good faith and without
malice.
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Q. Does Article 354(2) cover the total scope of privileged communication?
A. No, the enumeration under Art. 354 is not an exclusive list of
qualifiedly privileged communications since fair commentaries on
matters of public interest are likewise privileged. The concept of
privileged communications is implicit in the freedom of the press. Fair
commentaries on matters of public interest are privileged and constitute
a valid defense in an action for libel or slander. Borjal v. Court of Appeals,
G.R. No. 126466, January 14,1999; Flor v. People, G.R. No. 139987,
March 31,2005.
Q. In a suit for collection of money owed, the answer of
defendants attributed "usurious loan transaction" to the plaintiff, called
plaintiff "scheming," and accused plaintiff of "fraudulent distortions." Can
such an answer be a ground for damages?
A. No. The prevailing rule is that parties, counsel, and witnesses are
exempted from liability in libel or slander for words otherwise
defamatory published in the course of judicial proceedings, provided the
statements are relevant to the case. The statements are relevant to the
defense of usury. Armovit, et al. v. Judge Purisima, G.R. No* 39258,
November 15,1982.
Q. Is the publication of a complaint filed with the Securities and
Exchange Commission before any judicial action is taken thereon
privileged as a report of a judicial proceeding?
A. Yes. Cuenco v. Cuenco, 70 SCRA 212,234-5 (1976). Santos v.
Court of Appeals, G.R No. 45031, October 21,1991. (Note, however, that
the privilege is merely from the presumption of malice. The privilege
disappears when actual malice is proved.)
Q. When are derogatory remarks in newspapers etc. immune
from punishment?
A. Newspapers may publish news items relative to judicial,
legislative, or other official proceedings, which are not of a confidential
nature, because the public is entiled to know the truth with respect to
such proceedings, which, being official and non-confidential, are open to
public consumption. But to enjoy immunity, a publication containing
derogatory information must be not only true but also, fair, and it must
be made in good faith and without comments or remarks. Policarpio v.
Manila Times Publishing Co., L-16027, May 30, 1962; Lopez v. Court of
Appeals, 34 SCRA 116 (1970).
Libel of public officials and public figures
Q. What is the rule in the United States regarding defamatoiy imputation
against a public official?
Sec. 10 ART. Ill - BILL OP RIGHTS 77
A. The constitutional guarantee requires a federal rule that prohibits a public
official from recovering damages for a defamatory falsehood relating to
his official conduct unless he proves that the statement was made with
'actual malice.'
Q. What does actual malice mean?
A. It means with knowledge that it was false or with reckless disregard of
whether it was false or not. New York Times v. Sullivan, 376 U.S. 254
(1964).
This rule was later extended to defamation of private sector public
figures. Rddenblatt v. Boer, 383 U.S. 75 (1966); Gertz v. Robert Welch,
Inc., 418 U.S. 323 (1974); Hustler Magazine v. Falwell, 485 U.S. 46 (1988).
Q. Do we follow this rule?
A- Yes. We have even extended it to defamatory imputation against a barangay
official. A PCGG Commissioner also comes under this rule. Jalandoni v.
Drilon, G.R. Nos. 115239-40, March 2, 2000; Borjal v. Court of Appeals,
G.R. No. 126466, January 14,1999; Flor v. People, G.R. No. 139987,
March 31, 2005. For this purpose, Japan Airlines is treated as a public
figure. JAL v. Simangan, G.R. No. 170141, April 22,2008.
However, public figures are not unprotected. If the utterances are
false, malicious or unrelated to a public officer's performance of his
duties or irrelevant to matters of public interest involving public figures,
the same may give rise to criminal and civil liability. While personalities in
the entertainment business, media people, including gossip and intrigue
writers and commentators, do not have the unbridled license to malign
their honor and dignify by indiscriminately airing fabricated and
maSfcious comments, Fermin v. People, G.R. No. 157643, March
28,2008.
Obscenity and indecency
Q. What is the test for obscenity?
A. The basic guidelines for the trier of facts must be: "(a) whether the average
person, applying contemporary community standards would find that
the work, taken as a whole, appeals to the prurient interest... (b)
whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined
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by the applicable state law, and (c) whether the work, taken as a whole
lacks serious literary, artistic, political, or scientific value." Miller v.
California, 37 L. Ed. 2nd 419,431 (1973).
This was substantially followed for movies in Gonzales v. Kalaw
Katigbak, 137 SCRA 717 (July 22,1985), but the Court noted that stricter
rules could be followed for television.
NOTE: Stricter rules have also been allowed for radio especially
because of its pervasive quality and because of the interest in the
protection of children. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
Likewise, stricter rules have teen allowed for speech in schools
because of the nature of the community that is involved and the
relationship between school and parents. Bethel Sch. Dist. v. Fraser, 478
U.S. 675 (1986); Hazelwood Sch. Dist. v. Kulmeier, 484 U.S. 260 (1988).
See also allowable zoning regulations which affect indecent
shows, e.g., Renton v. Playtime Theaters, 475 U.S. 41 (1986).
NOTE: Relative obscenity: The host of Ang Dating Daan was found
to have used on television language which Movie and Television
Classification Board found to be unsuitable for television. Hence a three
month suspension was imposed on the program. Was there
unconstitutional prior restraint? The Court found that the language used
could "be treated as obscene, at least with respect to the average child.
Hence, it is, in that context, unprotected speech." The Court noted that
there was "no perfect definition of obscenity" and that ultimately
therefore "obscenity is an issue proper for judicial determination and
should be treated on a case to case basis and on the judge's sound
discretion." The Court admitted that the language in question "may not
appeal to the prurient interests of an adult" but that tike problem with
the challenged statements was that "they were uttered in a TV program
that is rated 'G' or for general viewership, and in a time slot that would
likely reach even the eyes and ears of children." Soriano v. Laguardia,
G.R. No. 164785, April 29, 2009. Affirmed on reconsideration March 15,
2010. See dissent.
Q. May sex in the internet be banned?
A. It depends. Obscenity may be banned. But attempts to
regulate sex, which does not come under the definition of obscenity for
the purpose of protecting minors, have failed on the argument that
Sec. 10 ART. Ill - BILL OP RIGHTS 79
the regulations deprive adults of shows, which do not come under the
definition of obscenity and are therefore legitimate for adults. Reno
v. American Civil Liberties Union, No. 96-511. Decided June 26,
1997;Ashcroft v. Free Speech Coalition, Decided April 16, 2002; US v.
American Library Association, et al., Decided June 23, 2003.
Assembly and petition
Q. What is the right of assembly and petition?
A. Historically, the right of petition is the primary right, the right
peaceably to assemble a subordinate and instrumental right,
as if the provision read: The right of the people peaceably to
assemble" in order to "petition the government." In de Jonge v.
Oregon, 299 U.S. 353,364 (1937), the Supreme Court affirmed,
"The right of peaceable assembly is a right cognate to those of
free speech and free press and is equally fundamental."
It is therefore more than just the right to form associations
found in Article III, Section 8. Hence, since the right of
assembly and petition is equally as fundamental as freedom of
expression, the standards for allowable impairment of speech
and press are also used for assembly and petition.
Q. What is the extent of the authority of the state to regulate
public assemblies?
A. In Navarro v. Villegas, 31 SCRA 731 (1970), where the
petitioner wanted the use of Plaza Miranda whereas the Mayor would
allow only the use of the Sunken Gardens, the Supreme Court ruled
that the Mayor possessed "reasonable discretion to determine or
specify the streets or public places to be used for the assembly in order
to secure convenient use thereof by others and provide adequate and
proper policing to minimize the risks of disorder and maintain public
safety and order." Navarro v.pilegas, 31 SCRA 721 (1970).
A later case, Philippine Blooming Mills Employees Organization
v. Philippine Blooming Mills Co. Inc., 51 SCRA 189 (1973), started
when the petitioner labor unions, against the wishes of management
and in order to be able to stage a mass demonstration against alleged
abuses of local police, did not report for work. The Court of Industrial
Relations adjudged their "concerted act and the occurrence of a
temporary stoppage of work" a violation of the collective bargaining
agreement and upheld the dismissal of some union leaders. The
Supreme Court reversed saying through Justice Makasiar that:
"As heretofore stated, the primacy of human rights — freedom
of expression, of peaceful assembly and of petition for redress of
80 THE 1987 PHILIPPINE CONSTITUTION: Sec.
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A COMPREHENSIVE REVIEWER
grievances — over property rights has been sustained. Marsh v.
Alabama, 326 U.S. 501; Tucker v. Texas, 326 U.S. 517."
Q. Retired Justice J.B.L. Reyes, in behalf of the Anti-Bases
Coalition, sought a permit from the Mayor of Manila for the use of the
empty field in front of the Luneta Grandstand and Roxas Boulevard in
front of the U.S. Embassy on October 26, 1983, from 2 to 5 p.m. The
petitioners were sponsoring an International Conference for General
Disarmament, World Peace, and the Removal of All Foreign Military
Bases and proposed a March for Philippine Sovereignty and
Independence, participated in by foreign and Philippine delegates. The
march was to proceed from the Luneta to the gate of the U.S. Embassy
where a short program $6uld be held. The Mayor refused the permit (1)
because his office was "in receipt of police intelligence reports which
strongly militate against the advisability of issuing such permit at this
time at the place applied for" and (2) because Ordinance No. 7295, in
accordance with the Vienna Convention, prohibits rallies or
demonstrations within a radius of500 feet from any foreign mission or
chancery. Should permit be granted?
A. Permit should be granted. (1) To justify limitations on freedom
of assembly there must be proof of sufficient weight to satisfy the "clear
and present danger test." (2) There is no showing that the distance
between the chancery and the gate is less than 500 feet. And even if it
were, the ordinance would not be conclusive because it still must be
measured against the requirement of the Constitution. Resolution, J.B.L.
Reyes v. Mayor Bagatsing, G.R. No. L-65366, October 25,1983.
Extended opinion, November 9,1983.
Q. Summarize the rules on assembly and petition enunciated in
J.B.L. Reyes v. Bagatsing.
A. The applicant for a permit to hold an assembly should inform
the licensing authority of the date, the public place where and the time
when it will take place. (If it is a private place, only the consent of the
owner or of the^one entitled to its legal possession is required.) Such
application should be filed well ahead in time to enable the public
official concerned to appraise whether there may be valid objections to
the grant of the permit or to its grant but to another public place. It is an
indispensable condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached. The
presumption must be to incline the weight of the scales of justice on the
side of liberty. If public authority is of the view that there is such an
imminent and grave danger of a substantive evil, the applicants must be
heard on the matter. Thereafter, the decision of public authority,
whether favorable or adverse, must be transmitted to the applicants at
the earliest opportunity. Thus, if so minded, they can have recourse to
the proper judicial authority. Id.
Sec. 10 ART. Ill - BILL OP RIGHTS 81
(Reiterated in Ruiz v. Gordon, G.R. No. 65695, December 19, 1983. The
concurring opinion of Teehankee, J. is worth reading.)
Q. But what of the Philippine obligation under the Vienna
Convention to protect the premises of embassies?
A. This must be honored because the Philippines adheres to the
generally accepted principles of international law as part of the law of
the land. However, observance of the obligation under the Convention
does not preclude application of the clear and present danger rule
(which precisely is a way of measuring the degree of protection needed
for safeguarding the premises of embassies).
NOTE: What was called by the government as "calibrated
preemptive response" to demonstration and rallies has no place in the
constitutional system. The proper response is "maximum tolerance"
prescribed in Batas Pambansa 880 which is a codification of the JBL
Reyes case. Moreover, BP 880 also orders political units set up freedom
parks. Bayan v. Ermita, G.R. No. 169659, February 14,2006.
Q. Are demonstrations allowed in the vicinity of courts?
A. In re: Petition to Annul 98-7-02 SC involved the rule promulgated
by the Supreme Court governing demonstrations in the vicinity of
courts. Among the prescriptions of the rule was the following:
Demonstrators, picketers, rallyists and all other similar
persons are enjoined from holding any activity on the sidewalks
and streets adjacent to, in front of, or within a radius of two
hundred (200) meters from, the outer boundary of the Supreme
Court Building, any Hall of Justice, and any other building that
houses at least one (1) court sala. Such activities unquestionably
interrupt and hamper the working conditions in the salas, offices
and chambers of the courts.
The validity of the resolution was upheld on the basis of the power
of the Court to promulgate rules for the protection of rights. [NOTE: See
contrary rule in United States v. Grace, 461 U.S. 171 (1983)]
Q. During a strike against PNB, employees displayed during a
peaceful picket a placard saying: "PCIB BAD ACCOUNTS TRANSFERRED
TO PNB-NIDC?" PCIB sued for libel. Decide.
A Peaceful picketing is constitutionally protected. The offending
question in the placard and the reaction of the PCIB both illustrate the
strong emotional undertones of labor disputes. In the continuing
confrontation between management and labor "it is far from likely that
the language employed would be both courteous and polite." The
guarantee of free speech protects the strikers. PCIB v. Philnabank
Employees, 105 SCRA 314 (July 2,1981).
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Q. After having obtained a permit from university authorities,
students of the Gregorio Araneta University Foundation held a rally but
in places around the university other than that specified by the permit.
The speeches and other activities resulted in the disturbance of classes
and of other activities in the university. After due hearing, a suspension
of one year was imposed on the student leaders. The students
appealed on the ground that the suspension was violative of their right
of assembly and of speech. Decide.
A. Disciplinary action may be taken against students for conduct
which "materially disrupts class work or involves substantial disorder or
invasion of the rights of others." Such was the conduct of the students
in this case. However, considering the importance of the right of
assembly and petition, the penalty imposed is too severe. A lighter
penalty is proper. Malabanan v. Ramento, 129 SCRA 359 (G.R. No.
62270, May 21,1984). See also Villar v. Technological Institute of the
Philippines, 134 SCRA 706 (April 17,1985) and Areza v. Gregoria Araneta
University Foundation, 137 SCRA 94 (June 19,1985).
SEC. 5. No LAW SHALL BE MADE RESPECTING AN ESTABLISHMENT
OF RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF. THE FREE
EXERCISE AND ENJOYMENT OF RELIGIOUS PROFESSION AND WORSHIP,
WITHOUT DISCRIMINATION OR PREFERENCE, SHALL FOREVER BE
ALLOWED.
NO RELIGIOUS TEST SHALL BE REQUIRED FOR THE EXERCISE OF CIVIL
OR
POLITICAL RIGHTS.
Q. What are the two principal parts of Section 5?
A. They are (1) the non-establishment clause and (2) the free exercise clause.
The first prohibits the establishment of any religion and the second
guarantees the free exercise of religion.
Q. Are there other provisions in the Constitution expressing the
non-establishment principle?
A. Yes. Article VI, Section 29(2) says: "No public money or property shall be
appropriated, applied, paid, or employed, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher, minister, or
other religious teacher or dignitary as such, except when such priest,
preacher minister, or dignitary is assigned to the Armed Forces, or to any
penal institution, or government orphanage or leprosarium." And Article
II, Section 6 says: "The separation of Church and State shall be
inviolable." Along this line too is the provision which prohibits religious
denominations and sects from being
Sec. 10 ART. Ill - BILL OP RIGHTS 83
registered as political parties or organizations. Article IX, C, Section 2(5).
Q. What is the purpose of the non-establishment clause?
A. While there is no unanimity in the interpretation of non- establishment as a
political principle, there is substantial agreement on the values
non-establishment seeks to protect. These are two: voluntarism and
insulation of the political process from interfaith dissension.
Voluntarism as a value is both personal and social. As a personal
value, it is nothing more than the inviolability of the human conscience
which is also protected by the free exercise clause. As a social value,
protected by the non-establishment clause, it means that the growth of a
religious sect as a social force must come from the voluntary support of
its members because of the belief that both spiritual and secular society
will benefit if religions are allowed to compete on their own intrinsic
merit without benefit of official patronage. Such voluntarism cannot be
achieved unless the political process is insulated from religion and unless
religion is insulated from politics. Non-establishment assures such
insulation and thereby prevents interfaith dissention.
Non-establishment of religion
Q. What is the meaning of the non-establishment clause?
A. Board of Education v. Everson, 330 U.S. 1, 15-16 (1946) interpreted the
clause thus:
Neither a State nor the Federal Government can set up a church.
Neither can pass laws which aid one religion, aid all religions, or prefer
one religion over another... Neither... can, openly or secretly, participate
in the affairs of riiiy religious organizations or groups and vice versa. In
the words of Jefferson, the clause against establishment of religion by
law was intended to erect "a wall of separation between Church and
State."
Yet, despite this absolutist language, the Everson Court upheld a
statute authorizing local districts to reimburse parents of Catholic school
children for the cost of bus transportation to and from parochial school.
Q. If, as jurisprudence indicates, the non-establishment clause does not prohibit
all government aid that might redound to
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the benefit of religion, how does one distinguish allowable from
non-allowable aid?
A. To be allowable, government aid (1) must have a secular legislative purpose;
(2) must have a primary effect that neither advances nor inhibits religion;
(3) must not require excessive entanglement with recipient institutions.
Thus, state sponsored Bible readings and prayers in public schools
have been invalidated for violation of (1) and (2). School District v.
Schempp, 374 U.S. 203 (1963). On the other hand, the lending of secular
textbooks to parochial school children and the grant of construction aid
for science buildings have been allowed as satisfying (1) and (2). Board of
Education v. Allen, 392 U.S. 236 (1968); Lemon v. Kurtzman, 403 U.S. 602
(1971); Tilton v. Richardson, 403 U.S. 672 (1971). Similarly, our Court has
allowed the issuance of religious commemorative stamps as giving
merely incidental benefits to religion. Aglipay v. Ruiz, 64 Phil. 201 (1937).
However, in the same Lemon case; supra, salary payments and
reimbursements for secular textbooks and other instructional materials
under a system involving close government supervision were invalidated
as not satisfying (3). Also Committee for Public Education v. Nyquist, 413
U.S. 756 (1973).
NOTE: The expropriation of the birthplace of Felix Y. Manalo,
founder of Iglesia ni Kristo, for the purpose of preserving it as a historical
landmark, was upheld as for "public use" under the broadened
definition of public use. Moreover, the non-establishment objection
was answered by the argument that whatever benefits the adherents
of Iglesia would reap would only be incidental to the public historical
purpose. Manosca v. Court of Appeals, G.R. No. 106440, January
29,1996.
Q. The barangay council, through funds obtained by solicitations
and donations from residents, purchased a statue of San Vicente Ferrer
and placed it under the care of the hermano mayor. On the occasion of
the fiesta, the statue was lent to the church. Subsequently, the parish
priest refused to return the statue. The council passed a number of
resolutions towards taking steps to recover the statue. The validity of
these resolutions was challenged on the ground, among others, of
violating the non-establishment clause and the prohibition against the
use of public money for religious purposes. Decide.
A. The Court answered this problem thus:
That contention is glaringly devoid of merit. The questioned
resolutions do not directly or indirectly establish any religion,
Sec. 10 ART. Ill - BILL OP RIGHTS 85
nor abridge religious liberty, nor appropriate public money or
property for benefit of any sect, priest or clergyman. The image
was purchased with private funds, not with tax money...
The wooden image was purchased in connection with the
celebration of the barrio fiesta honoring the patron saint, San
Vicente Ferrer, and not for the purpose of favoring any religion
nor interfering with religious matters or the religious beliefs of the
barrio residents. One of the highlights of the fiesta was the mass.
Consequently, the image of the patron saint had to be placed in
the church when the mass was celebrated.
If there is nothing unconstitutional or illegal in holding a
fiesta and having a patron saint for the barrio, then any activity
intended to facilitate the worship of the patron saint (such as the
acquisition and display of his image) cannot be branded as illegal.
As noted in the first resolution, the barrio fiesta is socioreligious
affair. Its celebration is an ingrained tradition in rural
communities. The fiesta relieves the monotony and drudgery of
the lives of the masses. Garces v. Estenzo, 104 SCRA 510, 516-8
(L-53487, May 25,1981).
Q. In a dispute over property belonging to a voluntary religious
organization (a cofradia) strictly independent of the church, what
rule is followed?
A. The use of properties of a "religious congregation" in case of schism
"is controlled by the numerical majority of the members. The
minority in choosing to separate themselves into a distinct body,
and refusing to recognize the authority of the government body,
can claim no rights in the properly from the fact that they once
had been members." Cafiete v. Court of Appeals, G.R. No. 45330,
March 7,1989 (citing Fonacier v. C.A., 96 Phil. 442-443 (1955).
NOTE: Is the dual character of municipal corporations
relevant at all in this case?
Q. Pastor Austria has been a pastor of the Seventh Day Adventist
for 28 years. An investigation by the congregation authorities revealed
that Austria could not account for church tithes and offerings collected
by his wife. He was dismissed and the dismissal was upheld by the NLRC,
Austria challenges the jurisdiction of the NLRC saying that the matter
was an ecclesiastical affair outside the jurisdiction of the NLRC. Decide.
The case does not concern an ecclesiastical or purely religious
affair. An ecclesiastical affair is "one that concerns doctrine, creed
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or form or worship of the church, or the adoption and enforcement
within a religious association of needful laws and regulations for the
government of the membership, and the power of excluding from such
associations those deemed unworthy of membership. Simply stated,
what is involved here is the relationship of the church as an employer
and the minister as an employee. It is purely secular and has no relation
whatsoever with the practice of faith, worship or doctrines of the
church. Austria v. NLRC, G.R. No. 124382, August 16,1999.
" . . . in matters purely ecclesiastical the decisions of the proper
church tribunals are conclusive upon the civil tribunals. A church
member who is expelled from the membership by the church
authorities, or a priest or minister who is by them deprived of his sacred
office, is without remedy in the civil courts, which will not inquire into
the correctness of the decisions of the ecclesiastical tribunals." Long
andAlmeria v. Basa et al., G.R. Nos. 134963-64, September 27,2001.
Q. Is certification of food as halal, that is, suitable for consumption
by Muslims according to their religious belief, a religious exercise?
A. Yes. Hence, it may not be performed by a government agency.
Islamic Da'wah Council v. Executive Secretary, G.R. No. 153888, July
9,2003.
Q. Does the Court have jurisdiction to entertain a complaint about
an expulsion or excommunication from a church?
A. No. We agree with the Court of Appeals that the expulsion/
excommunication of members of a religious institution/organization is a
matter best left to the discretion of the officials, and the laws and
canons, of said institution/organization. It is not for the courts to
exercise control over church authorities in the performance of their
discretionary and official functions. Rather, it is for the members of
religious institutions/organizations to conform to just church
regulations. Taruc, et al. v. Bishop, G.R. No. 144801, March 10,2005.
Q. Are there constitutionally created exceptions to the non- establishment
clause?
A. Yes. Article VI, Section 28(3) says: "Charitable institutions, churches,
parsonages or convents appurtenant thereto, mosques, and non-profit
cemeteries, and all lands, buildings, and improvements actually, directly,
and exclusively used for religious, charitable, or educational purposes
shall be exempt from taxation."
Article VI, Section 1(2) says: "No public money or property shall
ever be appropriated, applied, paid, or employed, directly
Sec. 10 ART. Ill - BILL OP RIGHTS 87
or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, or other religious teacher or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to the
Armed Forces, or to any penal institution, or government orphanage or
leprosarium."
Article XIV, Section 3(3) says: "At the option expressed in writing by
the parents or guardians, religion shall be allowed to be taught to their
children or wards in public elementary and high schools within the
regular class hours by instructors designated orapproved by the religious
authorities of the religion to which the children or wards belong, without
additional cost to the Government."
Free exercise
Q. What is the meaning of free exercise of religion?
A. Cantwell v. Connecticut, 310 U.S. 296,303-4 (1940), put it thus:
The constitutional inhibition on legislation on the subject of
religion has a double aspect. On the one hand, it forestalls compulsion
by law of the acceptance of any creed or the practice of any form of
worship. Freedom of conscience and freedom to adhere to such
religious organization or form of worship as the individual may choose
cannot be restricted by law. On the other hand, it safeguards the free
exercise of the chosen form of religion. Thus the amendment embraces
two concepts, — freedom to believe and freedom to act. The first is
absolute, but in the nature of things, the second cannot be.
Q. Explain further this double aspect of freedom of religion.
A. The absoluteness of the freedom to believe carries with it the corollary that
the government, while it may look into the good faith of a person, cannot
inquire into a person's religious pretensions. "Heresy trials are foreign to
our Constitution. Men may believe what they cannot prove. They may
not be put to the proof of their religious doctrines or beliefs." United
States v. Ballard, 322 U.S. 78, 86 (1944). The moment, however, belief
flows over into action, it becomes subject to government regulation. It
does not follow that "because no mode of worship can be established or
religious tenets enforced in this country, therefore . . . any tenet,
however, destructive of society, may be held and advocated if asserted
to be part of the religious doctrine of those advocating and practising
them . . . Whilst
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legislation for the establishment of religion is forbidden, and its free
exercise is permitted, it does not follow that everything which may be so
called can be tolerated. Crime is not the less odious, because sanctioned
by what any particular sect may designate as religion." Davis v. Beason,
133 U.S. 333, 345 (1890) (polygamy). Also Reynolds v. United States, 98
U.S. 145 (1879). Or again: "Whether an act is immoral within the
meaning of statute is not to be determined by the accused's concept of
morality. Congress has provided the standard. The offense is complete if
the accused intended to perform, and did in fact perform, the act which
the statute condemns." Cleveland v. United States, 329 U.S. 14,20^1946).
Q. How does one tell whether a case is a free exercise case or a
non-establishment case?
A One simple guide is this: every violation of the free exercise
clause involves compulsion whereas a violation of the non-establishment
clause need not involve compulsion.
Q. Would it be proper for a public officer to make derogatory
remarks about a religious group?
A Where a judge in his decision referred to the interest of Iglesia
ni Kristo members in a case as "gimmickry," the court saw violation of
free exercise. "Freedom of religion implies respect for every creed. No
one, much less a public official, is privileged to characterize the
actuation of its adherents in a derogatory sense. Iglesia ni Kristo v.
Gironella, 106 SCRA 1,4 (July 25,1981). [But compare this with some of
the language of the Court in Pamil v. Teleron, L-34854, November
20,1978 and Garcia v. Faculty Admissions Committee, 68 SCRA 277
(November 28,1975).]
Q. May the State require a license for the dissemination of
religious literature?
A Unless the dissemination is done as a business operation for
profit, no license may be required. "The constitutional guarantee of the
free exercise and enjoyment of religious, profession and worship carries
with it the right to disseminate religious information. Any restraint of
such right can only be justified like other restraints of freedom of
expression on the grounds that there is a clear and present danger of
any substantive evil which the State has the right to prevent." American
Bible v. City of Manila, 101 Phil. 398 (1957).
NOTE: In Tolentino v. Secretary of Finance, 234 SCRA 630 (1994),
the Philippine Bible Society questioned the validity of the registration
provisions of the Value Added Tax Law, Republic Act
.5 ART. m - BILL OF RIGHTS 89
7716, as a prior restraint. The Court prefaced its discussion by saying
that "as the U.S. Supreme Court unanimously held in Jimmy Swaggart
Ministries v. Board of Equalization, 493 U.S. 378, 107 L. Ed.2d 796 (1990),
the Free Exercise of Religion Clause does not prohibit imposing a
generally applicable sales and use tax on the sale of religious materials
by a religious organization." 235 SCRA at 680. As to the registration
requirement itself, the Court distinguished the earlier American Bible
Society case thus:
. . . in this case, the fee in B 107, although a fixed amount
(PI,000), is not imposed for the exercise of a privilege but only for
the purpose of defraying part of the cost of registration. The
registration requirement is a central feature of the VAT system. It
is designed to provide a record of tax credits because any person
who is subject to the payment of the VAT pays an input tax, even
as he collects an output tax on sales made or services rendered.
The registration fee is thus a mere administrative fee, one not
imposed on the exercise of a privilege, much less a constitutional
right.
Likewise, in an obiter dictum in Centeno v. Villalon-PornUlos, 235
SCRA 197, 207 (1994). the Court ruled that solicitation of contributions
in general, which may include contributions for religious purposes, may
be regulated by general law for the protection of the public:
. . . even the exercise of religion may be regulated, at some
slight inconvenience, in order that the State may protect its
citizens from iqjury. Without doubt, a State may protect its citizens
from fraudulent solicitation by requiring a stranger in the
community, before permitting him publicly to solicit funds for any
purpose, to establish his identity and his authority to act for the
cause which he purports to represent. The State is likewise free to
regulate the time and manner of solicitation generally, in the
interest of public safety, peace; convert or convenience.
The Court, however, also ruled that the law in question did not
prohibit solicitation for religious purposes but only solicitation of
contributions for charitable or general welfare purposes.
Q. Does the Flag Salute Law requiring compulsory participation by
public school students in flag ceremonies violate either the free exercise
or the non-establishment clause?
A. Yes. Earlier, Gerona v. Secretary of Education, 106 Phil. 11 (1969)
had upheld the validity of the law saying: "The flag is not an image but a
symbol of the Republic of the Philippines, an emblem of national
sovereignty, of national cohesion and of freedom and liberty which it
and the Constitution guarantee and protect. Considering the
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complete separation of church and state in our system of government,
the flag is utterly devoid of any religious significance. Saluting the flag
consequently does not involve any religious ceremony." However,
following the doctrine in West Virginia State Board v. Barnette, 319 U.S.
624 (1943), the Supreme Court reversed Gerona in Ebralinag v. Division
Superintendent of Schools ofCebu, 219 SCRA 256 (1993) saying that
freedom of religion requires that protesting members be exempted
from the operation of the law.
Q. Where a religious sect has a system of informal education
which ensures the physical and mental welfare of the child and
prepares him to discharge the duties and responsibilities of citizenship,
may it decline to send its children $o public or private high school on
the contention that high school attendance is contrary to their religion
and way of life and will endanger the salvation of the children?
A. Yes. "The essence of all that has been said and written on the
subject is that only those interests of the highest order and those not
otherwise served can overbalance legitimate claims to the free exercise
of religion. We can accept it as settled, therefore, that however strong
the State's interest in universal compulsory education, it is by no means
absolute to the exclusion or subordination of all other interests."
Wisconsin v. Yoder, 40 LW 4476 (May 15,1972).
Q. Smith and black were fired by a private drug rehabilitation
organization because they ingested peyote, a hallucinogenic drug, for
sacramental purposes at a ceremony for their Native American Church.
Sacramental peyote use is proscribed by the State's controlled
substance law, which makes it a felony to knowingly or intentionally
possess the drug. Their application for unemployment compensation
was denied by the State of Oregon under a state law disqualifying
employees discharged for work related "misconduct." Did this denial
violate religious liberty of the respondents?
A. No. The Free Exercise clause permits the state to prohibit
peyote use, and thus to deny unemployment benefits to persons
discharged for such use. The religion clause does not relieve an
individual of the obligation to 'Comply with a law that incidentally
forbids (or requires) the performance of an act that his religious belief
requires (or forbids) if the law is not specifically directed to religious
practice and is otherwise constitutional as applied to those who engage
in the specific act for religious reasons. Employment Division v. Smith,
494 U.S. 872 (1990).
Q. Where a clerk of court is living with a man without benefit of
marriage but in accordance with her religion, is that ground for
disciplinary action?
A. The Supreme Court remanded the case to the Office of the
Court Administrator, and the Solicitor General was ordered to
Sec. 10 ART. Ill - BILL OP RIGHTS 91
intervene in the case. He was instructed (a) to examine the sincerity and
centrality of respondent's claimed religious belief and practice; (b) to
present evidence on the state's "compelling interest" to override
respondent's religious belief and practice; and (c) to show that the
means the state adopts in pursuing its interest is the least restrictive to
respondent's religious freedom. On reconsideration, the clerk of court's
right was upheld on the basis of "benevolent neutrality." Estrada v.
Escritor, AM. No. P-02-1651, August 4,2003, Reconsidered June 22,
2006.
Q. What is the purpose of the prohibition of religious tests?
A. The purpose of this provision, which is but a corollary Of the freedom and
non-establishment clause, is to render the government powerless "to
restore the historically and constitutionally discredited policy of probing
religious beliefs by test oaths or limiting public offices to persons who
have, or perhaps more properly, profess to have a belief in some
particular kind of religious concept." Torcaso v. Watkins, 367 U.S. 488
(1961). For, indeed, to allow religious tests would have the effect of
"formal or practical 'establishment' of particular religious faiths . . . with
consequent burdens imposed on the free exercise of the faiths of
non-favored believers." Id. at 490.
Q. Section 2175 of the Revised Administrative Code (1917)
disqualifies an "ecclesiastic" from being elected or appointed to a
municipal office. Is this consistent with the religion clause of the
Constitution?
A. Seven Justices voted to consider this a prohibited "religious
test." Five Justices said it is not a religious test but a safeguard against
the constant threat of union of Church and State that has marked
Philippine history. (Hence, since the majority vote needed under the
1973 Constitution to nullify a statute was not reached, the
disqualification remains enforceable.) Pamil v. Teleron, L-34854,
November 20,1978.
NOTE: In McDaniel v. Patty, 435 U.S. 618 (1978), in the same year
the U.S. Supreme Court declared a similar law to be violative of the free
exercise clause.
Q. Ang Ladlad is an association of gays and lesbians. May it be
excluded from participation in the party-list system on the ground,
among others, that the group holds principles contrary to accepted
norms of morality that have seeped into Philippine culture after 500
years of Muslim and Christian teaching?
A. Reliance by the Comelec on religious justification violates the
constitutional teaching on religious neutrality. As a matter of fact,
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Philippine law has not criminalized homosexual conduct and much less
homosexual preferences. Nor has any overt immoral conduct been
identified by the Comelec. Nor is sexual preference a valid basis for
classification. Ang Ladlad v. Comelec, G.R. No. 190582, April 8,2010.
Q. The Constitution imposes the duty to defend the state. The
1973 Constitution also imposed the duty to register and vote. May the
State allow exemptions on religious grounds?
A. Yes. It should be noted, however, that when the State exempts
a person from military service on religious grounds, the State in effect
gives preferential treatment to religious affiliations which object to war
over religious affiliations which do not object to war.
' "Ts not such an exemption then contrary to the non-establishment
clause? Gillete v. United States, 401 U.S. 437 (1971) dealt with this
question and answered that the exemption could violate neutrality only
if it is religiously motivated on its face. Id. at 450 (1971), or when it is
religiously discriminatory. Id. at 452. This was not the case in Gillete
because the Court found that the exemption in question was supported
by valid reasons, neutral with respect to religion, such as the need to
insure a fair and uniform system for deciding, who will and will not be
forced to serve. Id. at 461. ..........
Moreover, the duty to register and vote is not as compelling as
the duty to defend the state. Nor is it as ancient as religious freedom.
Hence, in the hierarchical balancing of values, the duty.to. vote, when
that is constitutionally imposed, may well be made to yield to free
exercise of religion.
Q. Republic Act 3350 amended the Industrial Peace Act to exclude
from the application and coverage of a closed shop agreement
employees belonging to any religious sect which prohibits affiliation of
their members with any labor organization. Does the amendment
violate the contract clause? the equal protection clause?
A. No. Victoriano v. Elizalde Rope Workers Union, 59 SCRA 54, 72
(September 12,1974), said:
ll£ "It may not be amiss to point out here that the free exercise of religious
profession or belief is superior to contract rights. In case of conflict, the
latter must, therefore, yield to the former. . . See also Basa v. Federation
Obrera, 61 SCRA 93 (November 19,1974) and Gonzalez v. Central
Azucarera de Tarlac Labor Union, 139 SCRA 30 (October 3,1985).
SEC. 6. THE LIBERTY OF ABODE AND OF CHANGING THE SAME WITHIN
THE LIMITS PRESCRIBED BY LAW SHALL NOT BE IMPAIRED EXCEPT
UPON LAWFUL ORDER OF THE
COURT. NEITHER SHALL THE RIGHT TO TRAVEL BE IMPAIRED EXCEPT IN
THE INTEREST OF
NATIONAL SECURITY, PUBLIC SAFETY, OR PUBLIC HEALTH, AS MAY BE
PROVIDED BY LAW.
Sec. 10 ART. Ill - BILL OP RIGHTS 93
Q. What rights are protected by Section 6?
A. The right to choose a person's abode and the right to travel both at home
and going out of the country.
Q. How are these rights limited?
A. The liberty of abode may be limited only upon lawful order of a court
whereas the right to travel may be limited by administrative authorities
as may be provided by law in the interest of national security, public
safety or public health.
■o
SEC. 7. THE RIGHT OF THE PEOPLE TO INFORMATION ON MATTERS
OF PUBLIC CONCERN SHALL BE RECOGNIZED. ACCESS TO OFFICIAL
RECORDS, AND TO DOCUMENTS AND PAPERS PERTAINING TO OFFICIAL
ACTS,
TRANSACTIONS, OR DECISIONS, AS WELL AS TO GOVERNMENT
RESEARCH
DATA USED AS BASIS FOR POLICY DEVELOPMENT, SHALL BE AFFORDED
THE
CITIZEN, SUBJECT TO SUCH LIMITATIONS AS MAY BE PROVIDED BY LAW.
Q. What rights are guaranteed by Section 7?
A. They are (1) the right to information on matters of public concern and (2) the
corollary right of access to official records and documents. These are
political rights available to citizens only.
Q. What are the limits on these rights?
A. They are "subject to such limitations as may be provided by law."
Q. What are the limits on the authority to curtail these rights?
A. It is submitted that the standards that have been developed for the
regulation of speech and press and of assembly and petition and of
association are applicable to the right of access to information.
Q. Petitioner had requested respondent for information on the eligibility of
certain sanitary inspectors. (1) Is such information a matter of public
concern? (2) Does petitioner have standing to assert the right to
information? (3) If denied, what remedy does he have?
A. (1) "Public concern," like "public interest," eludes exact definition. They
embrace a broad spectrum of subjects which the
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public may want to know, either because these directly affect their lives
or simply because such matters arouse the interest of an ordinary
citizen. Each case must be examined separately. In this particular case, it
must be said that a public official must be accountable to the people for
his eligibility.
(2) This is a matter of "public right" where the real party in
interest is the people. Any citizen therefore has "standing."
(3) The remedy is mandamus. Legaspi v. Civil Service
Commission, 150 SCRA 530 (1987); Tafiada, et al. v. Tuvera, 136 SCRA 27
(1985).
NOTE: The refusal of the Comelec to reveal the names of the
nominees for party-list seats violates the right of the people to
information on matters of public concern. It also violates the rule on
transparency in Article II, Section 27. Ba-Ra 7941 v. Comelec, G.R. No.
177271, May 4,2007.
However, that trade secrets are of a privileged nature is beyond
quibble.
Q. May the government, through the PCGG, be required to reveal
the proposed terms of a compromise agreement with the Marcos heirs
as regards their alleged ill-gotten wealth? {i.e., does the right to
information include access to the terms of government negotiations
prior to their consummation or conclusion?)
A. It is incumbent upon the PCGG, and its officers, as well as other
government representatives, to disclose sufficient public information on
any proposed settlement they have decided to take up with the
ostensible owners and holders of ill-gotten wealth. Such information,
though, must pertain to definite propositions of the government, not
necessarily to intra-agency or inter-agency recommendations or
communications during the stage when common ' assertions are still in
the process of being formulated or are in the 'explorator/ stage." Chavez
v. Presidential Commission on Good Government, G.R. No. 130716,
December 9,1998.
Information, for instance, on on-going evaluation or review of bids
or proposals being undertaken by the bidding or review committee is
not immediately accessible under the right to information. While the
evaluation or review is still on-going, there are no "official acts,
transactions, or decisions" on the bids or proposals. However, once the
committee makes its official recommendation, there arises a "definite
proposition" on the part of the government. From this moment, the
public's right to information attaches, and any citizen can access all the
non-proprietary information leading to such definite proposition.
Chavez v. PEA andAMARl, G.R. No. 133250, July 9,2002.
Sec. 10 ART. Ill - BILL OP RIGHTS 95
Q. Are court records covered by the right to information?
A. A distinction must be made. Decisions and opinions of a court
are, of course, matters of public concern or interest. Unlike court orders
and decisions, however, pleadings and other documents filed by parties
to a case need not be matters of public concern or interest. They are
filed for the purpose of establishing the basis upon which the court may
issue an order or a judgment affecting their rights and interests. In fine,
access to court records may be permitted at the discretion and subject
to the supervisory and protective powers of the court, after considering
the actual use or purpose for which the request for access is based and
the obvious prejudice to any of the parties. Hilado, et al. v. Judge, G.R.
No. 163155, July 21, 2006.
Q. What are some of the recognized limitations to the exercise of the right to
information and the state policy of public disclosure?
A. 1) National security matters.
2) Trade secrets and banking transactions.
3) Criminal matters or classified law enforcement matters, "such as
those relating to the apprehension, the prosecution and the
detention of criminals, which courts may not inquire into prior to
such arrest, detention and prosecution." Otherwise, efforts at
effective law enforcement would be seriously jeopardized.
4) Other confidential matters. The Ethical Standards Act (R. A. No.
6713) prohibits public officials and employees from using or
divulging "confidential or classified information officially known to
them by reason of their office and not made available to the
public." Other acknowledged limitations include diplomatic
correspondence, closed door Cabinet meetings and executive
sessions of wither house of Congress, and the internal
deliberations of the Supreme Court. Chavez v. President
Commission on Good Government, G.R. No. 130716, December
9,19£3.
SEC. 8. THE RIGHT OF THE PEOPLE, INCLUDING THOSE EMPLOYED IN
THE PUBLIC AND PRIVATE SECTORS, TO FORM UNIONS, ASSOCIATIONS,
OR
SOCIETIES FOR PURPOSES NOT CONTRARY TO LAW SHALL NOT BE
ABRIDGED.
Q. What is the meaning of this provision?
A. All it means is that the right to form associations shall not be impaired
except through a valid exercise of police power. It is therefore an aspect
of the general right of liberty. More
96 THE 1987 PHILIPPINE CONSTITUTION:
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specifically, it is an aspect of freedom of contract; and in so far as
associations may have for their object the advancement of beliefs and
ideas, freedom of association is an aspect of freedom of expression and
of belief.
The guarantee also covers the right not to join an association.
Q. A land buyer buys a lot with an annotated lien that the lot
owner becomes an automatic member of the homeowner's
association. Does such an annotation violate the right freely to join or
not to join associations?
A. No. The fact that the obligation is annotated in the title does
not make it a government act forcing one to join an association. Rather,
the buyer freely buys the lot knowing that the purchase will entail an
obligation. Bel air Village Association v. Dionisio, 174 SCRA 589,597
(1989).
Q. The first sentence of Article 245 of the Labor Code provides
that: "Managerial employees are not eligible to join, assist or form any
labor organization.0 The Petitioner-Union contends that this provision
contravenes the constitutional right to form associations. Decide.
A. The Article 245 ban is valid because the "right guaranteed in
Art. Ill, §8 is subject to the condition that its exercise should be for
purposes 'not contrary to law.' In the case of Art. 245, there is a rational
basis for prohibiting managerial employees from forming or joining
labor organizations." Id. Philips Industrial Development, Inc. v. NLRC, 210
SCRA 399 (1992) stated the rationale thus: "because if these managerial
employees would belong to or be affiliated with a Union, the latter
might not be assured of their loyalty to the Union in view of evident
conflict of interest. The Union can also become company-dominated
with the presence of managerial employees in the Union membership."
Id. at 45. (See also the separate opinions)." United Pepsi-Cola Supervisory
Union (UPSU) v. Laguesma, G.R. No.
JO122226, March 25,1998.
Q. Batas Big. 222 prohibits any candidate in the Barangay election
of May 17, 1982 from representing or allowing himself to be
represented as a candidate of any political party and prohibits a political
party, political group, political committee from giving aid or support,
directly or indirectly, material or otherwise, favorable to or against a
barangay candidate's campaign for election. Does this violate the right
to form associations?
A No. The right is not absolute and the prohibition found in the
law is couched in very narrow terms. The law is intended to meet a clear
and imminent danger of the debilitation of the electoral process
Sec. 10 ART. Ill - BILL OP RIGHTS 97
and also the danger of disenabling barangay officials from adequately
performing their function as agents of a neutral community. Occefia v.
COMELEC, 127 SCRA 404 (G.R. No. 60258, January 31,1984).
Q. Do all societies and associations enjoy the same constitutional
protection?
A. As already seen, under Section 1, the Constitution recognizes
a hierarchy of values. Philippine Blooming Mills Employees
v. Philippine Blooming Mills, 51 SCRA 189, 2200-3 (1973). Hence,
the degree of protection an association enjoys depends on the
position which the association's objective or activity occupies in the
constitutional hierarchy of values. Thus, for instance, where theobject
of an association is the advancement of a common political belief
such as racial equality, any law that either has the effect of limiting
membership in such association or blunting its effectivity must satisfy
the more stringent standards for allowable limitation of expression
and belief. NAACP v. Alabama, 357 U.S. 449 (1958); NAACP v. Button,
371 U.S. 415 (1963). In the latter cases, the standards discussed in
Section 4 are applicable.
Q. Is the Communist Party of the Philippines, otherwise
known as Partido Komunista ng Pilipinas, a subversive association
as defined in R.A. 1700 as amend by E.O 276?
A. No. It is distinct from the CPP-NPA. Dizon v. Bautista,
Jr., G.R; No. 84355-56, March 21,1989.
Q. Do government employees have the right to form unions?
A. Yes. This right is guaranteed by Article III, Section 8, Article
IX,B, Section 2(5) and Article Xni, Section 3. Trade Union of
the Philippines v. NHC, G.R. No. 49677, May 4,1989. [See also
cases reported under Article XIII, Section 3.]
Q. Do government employees have the right to strike? ■ >
A. The right to strike may be limited by law. The Supreme Court
has definitively ruled that employees of the Social Security
System, Social Security System v. the Court of Appeals, G.R.
No. 85279, July 28, 1989, and public school teachers, Manila
Public School Teachers Association v. Secretary of Education,
G.R. No. 95445, August 6, 19£)1, do not have a constitutional
right to strike. But the current ban on them against strikes is
statutory and may be lifted by statute.
(The dissenting justices in the public school teachers' case
argued that the right to strike could be deduced from freedom
of speech.)
98 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
SEC. 9. PRIVATE PROPERTY SHALL NOT BE TAKEN FOR PUBLIC USE
WITHOUT JUST COMPENSATION.
Q. What is the power of eminent domain?
A. It is the power of the state to take private property for public use upon
payment of just compensation.
Q. What are the constitutional provisions on eminent domain?
A. They are Article III, Section 9, which sets down the limits on the inherent
power; and Article XII, Sections 18 (public utilities), Article XIII, Section 4
(land reform), and Article XVIII, Section 22 (idle or abandoned
agricultural lands), which are specific examples of the uses to which the
power of eminent domain may be put.
Q. Where does the power of eminent domain reside?
A. Inherently, it is possessed by the State and is exercised by the national
government
Q. What is the scope of the power of eminent domain?
A. In the hands of Congress the scope of the power is, like the scope of
legislative power itself, plenary. Barlin v. Ramirez, 7 Phil. 41,56 (1906).
Q. What are the elements of the exercise of the power of eminent domain?
A. The elements are: (1) there is "taking" of private property; (2) the taking
must be for needed "public use;" (3) there must be
"just compensation."
<\■
TaWing
Q. What circumstances constitute "taking" for purposes of eminent domain?
A. The following circumstances must concur: (1) The expropriator must enter
upon the private property; (2) The entrance must not be for a
momentary period, that is, the entrance must be permanent; (3) The
entry must be under warrant or color of legal authority; (4) The property
must be devoted to public use . or otherwise informally appropriated or
injuriously affected; (5) The utilization of the property must be in such a
way as to
Sec. 10 ART. Ill - BILL OP RIGHTS 99
oust the owner and deprive him of all beneficial enjoyment of the
property. Republic v. Vda. de Castellvi, 58 SCRA 336, 350352 (August
15,1974).
Q. Give other examples of taking?
A. Where the entry into private property is not just a simple
right-of-way, which is Didipio Earth Savers, et al. v. Secretary, G.R. No.
157882, March 30,2006.
So also, where the nature and effect of the installation of the 230
KV Mexico-Limay transmission lines results in the imposition of
limitation against the use of the land for an indefinite period, there is
compensable taking. NPC v. San Pedro, G.R. No. 170945, September 26,
2006.
Q. ABS-CBN has a legislative franchise to operate television
stations. It broadcasts from its Channel 2 and Channel 23. Philippine
Multi Media System Inc. (PMSI) also has a legislative franchise which
authorizes it to do Direct to Home service. Moreover, its franchise
includes a mandatory duty to carry the television signals of the
authorized television broadcast stations. For that reason it carries
Channels 2 and 23 OF ABS-CBN. ABS-CBN contends that PMSrs
unauthorized rebroadcasting of Channels 2 and 23 is a taking of
property for public use without just compensation.
A. The Court ruled that franchises are subject to police power and
the mandatory rule is not a form of taking but a form of police power
regulation. The Court also said that ABS-CBN did not prove that PMSI
was profiting from the broadcast of Channels 2 AND 23. ABS-CBN
Broadcasting Corporation v. PMSI, G.R. Nos. 175769-70, January
19,2009.
Q. Distinguish the manner in which police power and eminent domain affect
the right of private property.
A. Police power regulates or may even destroy private property but there is no
transfer of ownership nor compensation; emiijpnt domain transfers
ownership and must be compensated.
Q. When injurious private property is destroyed in the public interest is there
compensable taking?
A. No.
Q. When municipal property is taken by the State, is there compensable
taking?
A. It depends on the nature of the property. If it is patrimonial property of the
municipality, yes. Otherwise, no.
100 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Public use
Q. What is "public use?"
A. Time was when "public use" was understood to mean "use by the public."
It is equivalent to "public welfare" in police power. Expropriation
for socialized housing, for instance, is for public use.
Q. What happens if the expropriator does not use the property
for a public purpose but sells it to a private user?
. T.-Ilf
A. The predominant precept is that upon abandonment of real
property condemned for public purpose, the party who originally
condemned the property recovers control of the land if the
condemning party continues to use the property for public purpose;
however, if the condemning authority ceases to use the property for a
public purpose, property reverts to the owner in fee simple. Heirs of
Moreno v. Mactan- Cebu International Airport, G.R. No. 156273, August
9, 2005.
The requirement of public use means that the expropriator must
use the property for the purpose specified in the petition. If this is not
done, the expropriator must return the property, even if there was no
agreement for reversal. But the owner must return to the expropriator
the compensation it had received with legal interest and must pay the
expropriator for benefits the lot may have obtained. Mactan Cebu
International Airport v. Lozada, Jr., G.R. No. 176625, February 25,2010.
NOTE: As a rule, the determination of whether there is genuine
necessity for the exercise of eminent domain is a justiciable question.
However, when the power is exercised by Congress, the question of
necessity is essentially a political question. Manapat v. CA, G.R. No.
110478, October 15,2007.
Juatcompensation
Q. What is just compensation?
A. Just compensation has been described as "the just and complete
equivalent of the loss which the owner of the thing expropriated has to
suffer by reason of the expropriation." It means payment that matches
"market value."
Just compensation includes not only the correct determination of
the amount to be paid to owner of the land but also the payment for
the land within a reasonable period of time from its taking. Municipality
ofMakati v. Court of Appeals, 190 SCRA 206,213 (1990).
Sec. 10 ART. Ill - BILL OP RIGHTS 101
Q. When eminent domain is exercised, who are entitled to just
compensation?
A. All whose rights might be affected by the taking by the state.
Q. The contract for the construction of the NAIA International
Airport was nullified for being contrary to law and public policy but after
the construction of the building had almost been completed. What
remedy does the contractor have?
A. Since the state is taking over the property, the contractor is
entitled to just compensation. Under RA 8974 the government must
make a direct payment (not just a deposit under Rule 67) of the
proffered value of tibte property before it can enter and exercise
proprietary rights. Republic v. Judge Gingoyon, G.R. No. 166429,
December 19,2005. NOTE: Carpio and Puno dissented from the order to
make direct payment saying that a statute may not amend a Rule of
Court.
Q. In terms of time, what is the point of reference for valuating a
piece of property?
A. The general rule is that the value must be that as of the time of
the filing of the complaint for expropriation. (Section 4, Rule 67, Rules of
Court). Moreover, the filing of the case generally coincides with the
taking. When, however, the filing of the case comes later than the time
of taking and meanwhile the value of the property has increased
because of the use to which the expropriator has put it, the value is that
of the time of the earlier taking. Otherwise the owner would gain
undeserved profit. But if the value increased independently of what the
expropriator did, then the value is that of the later filing of the case.
National Power Corporation v. Court of Appeals, G.R. No. 113194, March
11,1996; NPC v. Lucman Ibrahim, G.R. No. 168732, June 29, 2007;
Republic v. Sarabia, G.R. No. 157847, August 25,
2005. The general rule in the Rules of Court for determining ^just
compensation" in eminent domain is the value of the property tea of
the date of the filing of the complaint.
Where the government occupied a piece of private land for the
airport runway but without expropriating it and after lapse of many
years the owner seeks compensation and rental, for purposes of compensation
the value of the land should be based on what it was worth at
the time of entry and not its value after many years. Beyond the
payment for the value of the land the owner is entitled to legal interest,
not rental. MIAA v. Rodriguez, G.R. No. 16183, February 28,
2006.
Q. Is just compensation required in agrarian reform?
A. Yes.
102 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. What does just compensation include?
A. The concept of just compensation embraces not only the
correct determination of the amount to be paid to the owners of the
land, but also payment within a reasonable time from its taking.
Q. May entry into the property be made before just compensation?
A. Yes. For purposes of entry into the property prior to full
payment, Section 10 of R.A. No. 7160 requires a deposit with the
proper court of at least fifteen percent (15%) of the fair market value of
the property based on the current tax declaration of the property to be
expropriated. Knecht v. Municipality of Cainta, G.R. No. 145254, July
20,2006; City oflloilo v. Legaspi, G.R. No. 154614, November 25, 2004.
However, where the expropriation is public works, R.A. 8974
requires prior full payment. Republc v. Judge Gingoyon, G.R. No.
166429, December 19, 2005. NOTE: Carpio and Puno dissented from
the order to make direct payment saying that a statute may not amend
a Rule of Court.
Q. Are commissioners required for determining just compensation?
A. Yes. For purposes of determining just compensation, trial by
commissioners is a substantive right which a judge may not dispense
with. Manila Electric Co. v. Pineda, 206 SCRA 196, 204 (1992).
Q. Must compensation be in money?
A. No. However, it must be in some form that embodies certainty
of value and of payment, such as government bonds.
Judicial review
OAQ.
Is the exercise of the powers of eminent domain subject to judicial review?
A. (1) the adequacy of the compensation, (2) the necessity of the taking, and
(3) the "public use" character of the purpose of the taking.
Q. Can there be any instance or aspect of the exercise of the power of eminent
domain which is not subject to judicial review?
A. Yes, when it is exercised directly by Congress and not through subordinate
bodies.
Sec. 10 ART. Ill - BILL OP RIGHTS 103
Q. When is res judicata applicable in expropriation cases?
A. "While the principle of res judicata does not denigrate the right
of the State to exercise eminent domain, it does apply to specific issues
decided in a previous case. For example, a final judgment dismissing an
expropriation suit on the ground that there was no prior offer precluded
another suit raising the same issue; it cannot, however, bar the State or
its agent form thereafter complying with this requirement, as prescribed
by law, and subsequently exercising its power of eminent domain over
the same property." Municipality of Paranaque v. V.M. Realty
Corporation, G.R. No. 127820, July 20, 1998,292 SCRA 678,693 (citing
National Power Corporation v. Court of Appeals, 254 SCRA 577 [1996]).
Q. Is expropriation proper as a substitute for the enforcement of a
valid contract?
A. No. Expropriation lies only when it is made necessary by the
opposition of the owner to the sale or by the lack of any agreement as
to price. Where there is a valid and subsisting contract, between the
owners of the property and the expropriating authority, there is no
reason for the expropriation. Noble v. City of Manila, 67 Phil. 1, 6 (1938).
Q. May the state enter into a contract which in effect binds it not
to exercise the power of eminent domain?
A. No, the state may not waive its right to exercise an inherent
power.
Q. What are the essential requisites for a local government unit to
validly exercise eminent domain?
A. An ordinance must authorize it. Thus, a local government may
not expropriate on the strength of a sanggunian resolution alone. Heirs
ofSuguitan v. City ofMandaluyong, G.R. No. 135087, March 14, 2000;
Municipality ofParanaque v. V.M. Realty Corporation, G.R. No. 127820,
July 20,1998,292 SCRA 678.
Q. What other limitation are there on the eminent domain
powers of local governments?
A. Since local governments possess only delegated power of
eminent domain, it is subject to limitations specified by law on the
delegated power. Thus there are mandatory limits with respect to
(1) the order of priority in acquiring land for socialized housing and
(2) the resort to expropriation proceedings as a means to acquiring it.
Private lands rank last in the order of priority for purposes of socialized
housing. In the same vein, expropriation proceedings may be resorted
to only after the other modes of acquisition are exhausted. Compliance
with these conditions is mandatory because these are the only
safeguards of often times helpless owners of private property against
what may be a tyrannical violation of due process when their
104 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
property is forcibly taken from them allegedly for public use. Estate
ofJBL Reyes v. City of Manila, G.R. No. 132431, February 13, 2004;
Lagcao v. Judge, G.R. No. 155746, October 13,2004.
NOTE: For the Water District to exercise its power of eminent
domain, two requirements should be met, namely: first, its board of directors
passed a resolution authorizing the expropriation, and; second,
the exercise of the power of eminent domain was subjected to review
by the LWUA In this case, petitioner's board of directors approved on 27
February 2004, Board Resolution No. 015-2004 authorizing its general
manager to file expropriation and other cases. Moreover, the LWUA did
review and give its stamp of approval to the filing of a • 'complaint for
the expropriation of respondent's lot. Metropolitan Cebu Water v. J.
King & Sons, G.R. No. 175983, April 16, 2009.
SEC. 10. No LAW IMPAIRING THE OBLIGATION OF CONTRACTS SHALL
BE PASSED.
Q. When may a law be said to have impaired the obligation of contracts?
A. A law which changes the terms of a legal contract between parties, either in
the time or mode of performance, or imposes new conditions, or
dispenses with those expressed, or authorizes for its satisfaction
something different from that provided in its terms, is a law which
impairs the obligation of a contract and is null and void. Clemens v.
Nolting, 42 Phil. 702 (1922).
Q. A & B enter into a contract for the sale of cigars. Before delivery is made a
law is passed imposing a sales tax on the seller. Does the law impair the
obligation of the contract?
A. No, since it does not change the relation between the parties to the
contract.
'i
Q.rr, Does every impairment of the substance of a contract violate the
Constitution?
A. No. Jurisprudence has established that a valid exercise of police power is
superior to the obligation of contracts.
Q. Does a rehabilitation plan violate the contract clause?
A. A rehabilitation plan approved by statute which merely suspends the actions
for claims does not violate the contract clause. GSIS v. Kapisanan, G.R.
No. 170132, December 6,2006; PNB v. CA, G.R. No. 165571, January
20,2009. It is a different matter, however, if the amount of rental is
changed. The
Sec. 10 ART. Ill - BILL OP RIGHTS 105
amount of rental is an essential condition of any lease contract. Needless
to state, the change of its rate in the Rehabilitation Plan is not justified as
it impairs the stipulation between the parties. Leca Realty v. Manuela
Corporation, G.R. No. 166800, September 25, 2007.
Q. In 1981, while Philippine Airlines was still Owned by the Philippine
government, the government entered into a Commercial agreement
with Kuwait Airways about flights and revenue sharing between the two
countries. The Agreement had this preambular "Whereas" clause:.
"NOW, it is hereby agreed, subject to and without prejudice to any
existing or future agreements between the Government Authorities of
the Contracting Parties hereto ..." In 1992, after PAL had been privatized,
a government panel entered into a Confidential Memorandum of
Understanding with the Government of Kuwait effectively revoking
significant provision of the Commercial Agreement to the prejudice of
PAL. Was it right?
A. No. The government cannot prejudice private rights without due process.
True, CAB has extensive regulatory authority over airlines; but the
authority must be exercised by CAB (which was not true in this case) and
with due process. Kuwait Airways v. Philippine Airlines, G.R. No. 156087,
May 8, 2009. [What is the international law implication of this case?]
Q. Does the contract clause protect public contracts?
A. Yes, the clause protects contracts with the government. Moreover,
franchises are contracts and therefore are covered by the clause.
However, the obligation arising from franchises are subject to
modification by police power. Besides, with reference to public utilities,
Article XII, Section 11 says: "Neither shall any such franchise or right be
granted except under the condition that it shall be subject to
amendment, alteration, or repeal by the Congress when the common
good so requires."
Q. Petitioner contends that the cancellation of its timber license constitutes an
impairment of the obligation of its contract. Decide.
A. "Timber licenses, permits and license agreements are the principal
instruments by which the State regulates the utilization and disposition
of forest resources to the end that public welfare is promoted. And it can
hardly be gainsaid that they merely evidence a privilege granted by the
State to qualified entities,
106 THE 1987 PHILIPPINE CONSTITUTION: Sec. 11
A COMPREHENSIVE REVIEWER
and do not vest in the latter a permanent or irrevocable right to the
particular concession area and the forest products therein. They may be
validly amended, modified, replaced or rescinded by the Chief Executive
when national interests so require. Thus, they are not deemed contracts
within the purview of the due process of law clause." C & M Timber
Corporation v. Alcala, G.R. No. 111088, June 13,1997, 273 SCRA 402,
418 (quoting Felipe Ysmael, Jr. & Co., Inc. v. Deputy Executive Secretary,
190 SCRA 673, 682-84 [1990]).
Q. Is a license protected by the contract clause?
A It is one of the first principles in the field of administrative law
that a license or a permit is not a contract between the sovereignty and
the licensee or permitee, and is not a property in any constitutional
sense, as to which the constitutional prescription against impairment of
the obligation of contracts may extend. A license is rather in the nature
of a special privilege, or a permission or authority to do what is within its
terms. It is not in any way vested, permanent, or absolute. A license
granted by the State is always revocable. As a necessary consequence of
its main power to grant license or permit, the State or its
instrumentalities have the correlative power to revoke or recall the
same. And this power to revoke can only be restrained by an explicit
contract upon good consideration to that effect. The absence of an
expiry date in a license does not make it perpetual. Notwithstanding
that absence, the license cannot last beyond the life of the basic
authority under which it was issued." Gonzalo Sy v. Central Bank,
L-41480, April 30,1976.
This is also affirmed in Oposa v. Factoran, Jr., 224 SCRA 792 (1993).
But the distinction between license and contract is really unnecessary
because even contracts yield to police power.
Q. Is the obligation of contracts superior to religious freedom?
A. As to freedom of religion, in Victoriano v. Elizalde Rope Union, 59 SCRA 54
(1974) the Court also ruled that the free exercise of religion is superior to
contract rights. See supra under Section 5.
SEC. 11. FREE ACCESS TO THE COURTS AND QUASI-JUDICIAL BODIES
AND ADEQUATE LEGAL ASSISTANCE SHALL NOT BE DENIED TO ANY
PERSON
BY REASON OF POVERTY.
Q. What is the significance of this provision?
A. Under the 1973 Constitution the counterpart of this provision simply read:
"Free access to the courts shall not be denied to
Sec. 10 ART. Ill - BILL OP RIGHTS 107
any person by reason of poverty." This constitutional provision is the
basis for the provision of Section 17, Rule 5 of the New Rules of Court
allowing litigation in forma pauperis. Those protected include low paid
employees, domestic servants and laborers. Cabangis v. Almeda Lopez,
70 Phil. 443 (1940). They need not be persons so poor that they must be
supported at public expense. "It suffices that plaintiff is indigent... And
the difference between 'paupers' and 'indigent' persons is that the latter
are 'persons who have no property or sources of income sufficient for
their support aside from their own labor though self-supporting when
able to work and in employment.'" Acar v. Rosal, L-21707, March
18,1967.
The new Constitution has expanded the right so that in addition to
giving free access to courts it now guarantees free access also to "quasi
judicial bodies" and to "adequate legal assistance" as well.
SEC. 12. (1) ANYPERSONUNDERINVESTIGATIONFORTHE COMMISSION OF
AN OFFENSE
SHALL HAVE THE RIGHT TO BE INFORMED OF HIS RIGHT TO REMAIN
SILENT AND TO HAVE
COMPETENT AND INDEPENDENT COUNSEL PREFERABLY OF HIS OWN
CHOICE. IF THE PERSON
CANNOT AFFORD THE SERVICES OF COUNSEL, HE MUST BE PROVIDED
WITH ONE. THESE RIGHTS
CANNOT BE WAIVED EXCEPT IN WRITING AND IN THE PRESENCE OF
COUNSEL.
(2) NO TORTURE, FORCE, VIOLENCE, THREAT, INTIMIDATION OR ANY
OTHER
MEANS WHICH VITIATES THE FREE WILL SHALL BE USED AGAINST
HIM. SECRET DETENTION PLACES, SOLITARY, INCOMMUNICADO, OR
OTHER
SIMILAR FORMS OF DETENTION ARE PROHIBITED.
(3) ANY CONFESSION OR ADMISSION OBTAINED IN VIOLATION OF THIS
OR SECTION
17 HEREOF SHALL BE INADMISSIBLE IN EVIDENCE AGAINST HIM.
(4) THE LAW SHALL PROVIDE FOR PENAL AND CIVIL SANCTIONS FOR
VIOLATIONS OF
THIS SECTION AS WELL AS COMPENSATION TO AND REHABILITATION OF
VICTIMS OF TORTURE
OR SIMILAR PRACTICES, AND THEIR
FAMILIES.
General matters
Q. What rights are made available to a person under investigation?
A. They are (1) the right to remain silent; (2) the right to competent and
independent counsel preferably of his own choice; (3) the right to be
informed of such rights.
108 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. What is the reason for making the rule applicable to investigations?
A. It is but a recognition of the fact that the psychological if
not physical atmosphere of custodial investigations, in the
absence of proper safeguards, is inherently coercive. Miranda
v. Arizona, 384 U.S. 436 (1966).
Q. Is the right to have counsel present during investigation
intended Jo stop the accused from saying anything that may incriminate
him?
tii A. No. "The right to counsel is intended to preclude the
slightest coercion as would lead the accused to admit something false.
The lawyer, however, should never prevent an accused from freely
and voluntarily telling the truth." People v. Layuso, G.R. No. 69210,
July 5,1989.
Q. Accused was made to undergo a paraffin test of his hands
to determine whether he had recently fired a gun. Accused claims
violation of his constitutional right as it was not conducted in the
presence of his lawyer.
A. This constitutional right extends only to testimonial
compulsion and not when the body of the accused is proposed to be
examined as in this case. People v. Gamboa, G.R. No. 91374, February
25,1991.
Q. When did these guarantees in favor of a person under investigation
take effect?
A. They took effect only upon the effectivity of the 1973 Constitution
on January 17,1973. In Magtoto v. Manguera, L-37201-
02, March 3,1975, the Supreme Court ruled that the provision
has no retroactive effect.
I lis
Q. »T<What is the immediate jurisprudential antecedent of this
provision?
A. In Miranda v. Arizona, 384 U.S. 436 (1966), the United
States Supreme Court said that the following constitutional
requirements must be observed in custodial investigations: (1)
The person in custody must be informed at the outset in clear
and unequivocal terms that he has a right to remain silent.
(2) After being so informed, he must be told that anything he
says can and will be used against him in court. (3) He must be
clearly informed that he has the right to consult with a lawyer
Sec. 10 ART. Ill - BILL OP RIGHTS 109
and to have the lawyer with him during the interrogation. He does not
have to ask for a lawyer. The investigators should tell him that he has the
right to counsel at that point. (4) He should be warned that not only has
he the right to consult with a lawyer but also that if he is indigent, a
lawyer will be appointed to represent him. (5) Even if the person
consents to answer questions without the assistance of counsel, the
moment he asks for a lawyer at any point in the investigation, the
interrogation must cease until an attorney is present. (6) If the foregoing
protections and warnings are not demonstrated during the trial to have
been observed by the prosecution, no evidence obtained as a result of
the interrogation can be used against him.
Q. Does the presumption of regularity of official acts apply to "in
custody confessions?"
A. No. Hence, for in-custody confessions to be admissible, the
prosecution must show that the constitutional safeguards were
observed in obtaining the confession. People v. Tolentino, 145 SCRA 597
(1986).
When and in what circumstances the rights are available
Q. When do the above rights begin to be available?
A. These rights begin to be available where "the investigation is no longer a
general inquiry into an unsolved crime but has begun to focus on a
particular suspect, the suspect has been taken into police custody, the
police carry out a process of interrogation that lends itself to eliciting
incriminating statements." Escobedo v. Illinois, 378 U.S. 478 (1964). As
our Supreme Court has put it, these rights are available "after a person
has been taken into custody or otherwise deprived of his freedom of
action in any significant way." People v. Loveria, G.R. No. 79138, July 21,
1990, citing People v. Caguioa, 95 SCRA 2,9 (1980).
The rights enumerated are not available before police investigators
become involved. Thus the protection is not available to a person
undergoing audit because an audit examiner is not a law enforcement
officer. Navallo v. Sandiganbayan, 234 SCRA 175 (1994). Nor for that
matter does it apply to a situation where a person, not being under
investigation, presents himself to the police and in the process makes
his admissions. People v. Taylaran, 108 SCRA 373,378-9 (1981).
110 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
The accepted rule is that the rule covers only situations when the
person is already in custody, for which reason Escobedo refers to them
as rights "under custodial investigation." People v. Caguioa, 95 SCRA 2, 9
(1980).
Q. Was there ever a departure from this rule?
A. Yes, in the solitary case of Galman v. Pamaran, 138 SCRA 294,
319 (August 30, 1985). The Court there sustained the contention of
General Ver that the provision covered even persons not yet in custody
but already under investigation because the 1973 text did not speak of
"custodial" investigation but only of "person under investigation."
without the word "custodial."
Jurisprudence under the 1987 Constitution, however, has
consistently held, following Escobedo, the stricter view, that the rights
begin to be available only when the person is already in custody. As
Justice Regalado emphasized in People v. Marra: 236 SCRA 565, 573
(1994).
Custodial investigation involves any questioning initiated by
law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant way. It is only after the investigation ceases to be a
general inquiry into an unsolved crime and begins to focus on a
particular suspect, the suspect is taken into custody, and the police
carries out a process of interrogations that lends itself to eliciting
incriminating statements that the rule begins to operate.
NOTE: R.A. No. 7438 has extended the constitutional guarantee to
situations in which an individual has not been formally arrested but has
merely been "invited" for questioning. People v. Domantay, G.R. No.
130612, May 11,1999; People v. Tan, G.R. No. 117321, February
11,1998,286 SCRA 201,213; People v. Rapeza, G.R. No. 169431, April
3,2007. >rt i
Q. Does the rule apply to a reenactment of a crime?
A. Yes. "This constitutional privilege has been defined as a
protection against testimonial compulsion, but this has since been
extended to any evidence 'communicative in nature' acquired under
circumstances of duress. . . . Thus, an act, whether testimonial or
passive, that would amount to disclosure of incriminatory facts is
covered by the inhibition of the Constitution." People v. Olvis, 154 SCRA
525-526 (1987).
Likewise, photos of reenactment are not admissible where
accused was not provided with counsel. People v. Jungco, 186 SCRA 714
(1990).
Sec. 10 ART. Ill - BILL OP RIGHTS 111
Cicumstances not covered
Q. Is a person in a police line-up entitled to the right to counsel?
A. No, if not questions are asked. However, "the moment there is a move or
even an urge of investigators to elicit^admissions or confessions or even
plain information which ma^\appear innocent or innocuous at the time,
from said suspect, he should then and there be assisted by counsel,
unless he waives the right; but the waiver shall be made in writing and in
the presence of counsel." Gamboa v. Judge Cruz, 162 SCRA 642 (1988).
But a person already under custodial investigation who is placed in a
police line-up is entitled to Section 12 rights. People v. Macam, 238 SCRA
566 (1994).
Q. Does the protection apply to one who presents himself to the
police to surrender?
A. No. It can hardly be said that under such circumstance, the
surrenderee is already 'under investigation', within the meaning of the
constitutional provision. People v. Taylaran, 108 SCRA 373, 378-9
(October 30,1981).
NOTEs Sections 12, pars. (1) and (3), Art. Ill, of the Constitution do
not cover the verbal confessions to a radio announcer. What the
Constitution bars is the compulsory disclosure of incriminating facts or
confessions. People v. Ordono, G.R. No. 132154, June 29,2000.
Q. Accused made his admission to Prosecutor Zarate not in the
course of an investigation, but in connection with Maqueda's plea to be
utilized as a state witness. Admissible?
A. Yes.
Q. The accused talked with the mayor as confidant and not as a
law enforcement officer. Is his uncounselled admission admissible?
A. Yes. People v. Zuela, G.R. No. 112177, January 28,2000.
Q. Does the rule on custodial investigations apply when the
confession is made not to a public officer but to a private individual?
A. No, because the situation then would not be one of custodial
investigation. People v. Tawat, 129 SCRA 431 (G.R. No. 62871, May
25,1985).
Q. Is investigation by an administrative body covered by Section
12?
112 THE 1987 PHILIPPINE CONSTITUTION:
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A. No. Such inquiries are conducted merely to determine whether
there are facts that merit disciplinary measures against
erring public officers and employees, with the purpose of
maintaining the dignity of government service. Sebastian, Jr.
v. Garchitorena, G.R. No. 114028, October 18. 2000; Manuel
o. N.C. Construction Supply, G.R. No. 127553, November 28,
1997;
Q. While in police custody, the accused verbally and spontaneously
admitted his guilt and pointed out the mastermind of the
robbery. Admissible?
A. Yes, because "constitutional procedures on custodial investigation
do not apply to a spontaneous statement, not elicited
through questioning by the authorities, but given in an ordinary manner
whereby the accused orally admitted having committed the crime
— as in the case at bar." People v. Cabiles, G.R. No. 112035, January
16,1998, 284 SCRA 199, 211.
Q. An interview was recorded on video and it showed accusedappellant
unburdening his guilt willingly, openly and publicly in the
presence of newsmen. Admissible?
A. Yes. Such confession does not form part of custodial investigation
as it was not given to police officers but to media men in an
attempt to elicit sympathy and forgiveness from the public. People v.
Endino, G.R. No. 133026, February 20,2001.
Q. Is a confession to a "bantay bayan" covered by Section 12?
A. Yes. In People of the Philippines v. Buendia, this Court
had the occasion to mention the nature of a "bantay bayan," that is, "a
group of male residents living in [the] area organized for the purpose
of keeping peace in their community[, which is] an accredited auxiliary
of the x x x PNP." People v. LaugayPina, G.R. No. 186228, March 15,
2010.
Right to be informed of his rights
Q. The extrajudicial confession was obtained on May 28, 1973.
The opening paragraph of the confession contains the following
vague statement: "The affiant has been informed of his rights
under the Constitution of the Republic of the Philippines,
and under the state of Martial Law, and the nature of the
investigation, and without violence, intimidation, force or
reward the affiant declared as follows:" Was there adequate
compliance with the law?
A. No. There is no sufficient indication that the specific rights
guaranteed were communicated to the accused. People
Sec. 10 ART. Ill - BILL OP RIGHTS 113
v. Rojas, 147 SCRA 169 (1987). "When the Constitution requires a person
under investigation 'to be informed' of his right to remain silent and to
counsel, it must be presumed to contemplate the transmission of a
meaningful information rather than just the ceremonial and perfunctory
recitation of an abstract constitutional principle. As a rule, therefore, it
would not be sufficient for a police officer just to repeat to the person
under investigation the provisions of the Constitution. He is not only
duty-bound to tell the person the rights to which the latter is entitled; he
must also explain their effects in practical terms, (See People v. Ramos,
122 SCRA 312; People v. Caguioa, 95 SCRA 2). In other words, the right of
a person under investigation to be informed' implies a correlative
obligation on the part of the police investigator to explain, and
contemplates an effective communication that results in understanding
what is conveyed. Short of this, there is a denial of the right, as it cannot
truly be said that the person has been 'informed' of his rights. People v.
Nicandro, 141 SCRA 289; People v. Pinlac, 165 SCRA 674 (1988).
Q. After being informed of his rights the accused was asked:
"Matapos mong mabasa at mabatid itong mga karapatan mo ikaw ba
ay kusang loob na magbibigay ng isang salaysay at sasagot ng buong
katotohanan lamang sa lahat ng itatanong sa iyo sa inbestigasyon na
ito f* The accused briefly answered: "Opo magsasabi lamang po ako ng
pawang katutuhanan lamang." Does this satisfy the requirements of
Section 12(1)?
A. No. There was no clear reply that he was waiving his right to
counsel. People v. Broquesa, G.R. No. L-62467, October 31, 1983. See
also People v. Galit, 135 SCRA 465 (March 20, 1985) where the question
was very involved but asked for a monosyllabic answer.
Right to competent and independent counsel
Q. What is the significance of the specification that the person has the right to
"competent and independent counsel preferably of his own choice?"
A. This specification is a product of experience under the Marcos regime when
the military authorities used to make available to detainees only counsel
of the military's choice, and presumably working also for the interest of
the military.
Q. When is a lawyer provided by the investigators deemed engaged by the
accused?
114 THE 1987 PHILIPPINE CONSTITUTION:
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Sec. 10
A. When the accused "never raised any objection against the [lawyer's]
appointment during the course of the investigation and the accused
thereafter subscribes to the veracity of his statement before the
swearing officer." People v. Jerez, G.R. No. 114385, January 29,1998,285
SCRA 393,401 (citing People v. Suarez, 267 SCRA 119 [1997]).
Q. What does the phrase "preferably of his own choice" mean?
A. It does not convey the message that the choice of a lawyer by ja person
under investigation is exclusive as to preclude other equally competent
and independent attorneys from handling the defense; otherwise the
tempo of custodial investigation will be solely in the hands of the
accused who can impede, nay, obstruct the progress of the interrogation
by simply selecting a lawyer who, for one reason or another, is not
available to protect his interest. Thus, while the choice of a lawyer in
cases where the person under custodial interrogation cannot afford the
services of counsel — or where the preferred lawyer is not available — is
naturally lodged in the police investigators, the suspect has the final
choice as he may reject the counsel chosen for him and ask for another
one. A lawyer provided by the investigators is deemed engaged by the
accused when he does not raise any objection against the counsel's
appointment during the course of the investigation, and the accused
thereafter subscribes to the veracity of the statement before the
swearing officer. People v. Mojello, G.R. No. 145566, March 9, 2004.
Q. Who are not deemed independent counsel?
A. (1) Special counsel, public or private prosecutor, counsel of the police, or a
municipal attorney whose interest is adverse to that of the
accused. People v. Fabro, G.R. No. 95089, August 11,1997,277
SCRA 19.
(2) A mayor. People v. Taliman, G.R. No. 109143, October 11, 2000. ^
(3) A barangay captain. People v. Tomaquin, G.R. No. 133188, July 23,
2004.
(4) Any other whose interest may be adverse to that of the accused.
Sec. 10 ART. Ill - BILL OP RIGHTS 115
Q. Is the right to counsel imperative in administrative investigations?
A. No, Lumiqued v. Exevea, G.R. No. 117565, November 18,1997,
282 SCRA 125,140, "because such inquiries are conducted merely to
determine whether there are facts that merit disciplinary measures
against erring public officers and employees, with the purpose of
maintaining the dignify of government service." Id. at 141.
Q. A former judge came to assist a person under investigation and
told the person "I am here because I was summoned to assist you and I
am going to assist you." The former judge was the choice of the police
and not of the accused; she did not ask the accused if he wanted her to
represent him. Was accused properly represented during investigation?
A. No, this does not satisfy the standard of "competent and
independent counsel preferably of [the accused's] own choice." People
v. Jimenez, G.R. No. 82604, December 10,1991.
Q. Where an extrajudicial confession is made in the absence of
counsel but where at the closing stage of the interrogation counsel
arrives and has the opportunity to read the statement and discuss it with
the client who subsequently signs it, is there compliance with the
constitutional requirement of the presence of counsel for purposes of
the validity of waiver?
A. In Estocio v. Sandiganbayan, G.R. No. 75362, March 6, 1990, the
Court ruled that there was substantial compliance. This, however, and a
similar case, People v. Rous, G.R. No. 103803-04, March 27,1995, was
corrected in People v. Lucero, where in the middle of the investigation
the lawyer had left to attend a wake, came back when the accused had
already signed his statement and affirmed that he did it voluntarily. The
Court ruled that the right to counsel was a right to effective counsel from
the first moment of questioning and all throughout. G.R. No. 97936,
May 29, 1995. Also People v. de Jesus, G.R. No. 91535, September
2,1992 and People v. Bandula, 232 SCRA 566 (1994). '
Q. When accused made the extra-judicial confession, he "was not
informed that if he [could] not get a lawyer, the State [would] provide
him one, to assist him in the investigation." Is his confession admissible?
A. No. People v. Pascual, Jr., 109 SCRA 197 (November 12, 1981).
Q. Before being questioned, accused was told that he had the
right to avail of the services of counsel. Without even asking whether the
accused wanted to avail of the right, the investigators proceeded to ask
questions. Is this adequate procedure?
116 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
A. No. People v. Felipe, L-54335, December 14,1981.
Q. Accused claimed that he made his extrajudicial confession
without counsel. During the trial, however, accused admitted that he
had voluntarily signed the extrajudicial statement. Is the statement
admissible?
A. Yes. Accused's admission in open court removes the case from
the in-custody rule. People v. Marcos, 147 SCRA 204 (1987).
Q. Does a lawyer who assisted a person to make an extrajudicial
confession have to be presented by the prosecution to attest to the fact
that counsel was given?
A. No. What is stated in the confession and what others testified
to about such fact can sustain the conclusion that the rights were
respected. People v. Alberca, G.R. No. 117106, June 26,1996.
Q. On Oct. 11, 1983, at the Narcom office in City Hall, accused was
told of his constitutional right to remain silent, and to have counsel of
his choice, and that the statement he would give might be used as
evidence against him. Accused stated that he needed no counsel and
that he was going to tell the truth, and did not ask for a lawyer. Is the
confession admissible?
A. No. The authorities failed to apprise him of his right to counsel
when he wrote his confession. The accused's waiver of his rights and
signification of willingness to make a confession are ceremonies that
require the presence of counsel. (Citing Morales v. Moncupa, 121 SCRA
538 [1983]; People v. Galit, 135 SCRA 465 [1985]); Demaisip v. Court of
Appeals, G.R. No. 89393, January 25, 1991.
Q. Accused signed without objection a Receipt of Seized Property.
Proper?
A, No. "That receipt was in reality an admission which the
accused-appellant was forced to make without assistance of counsel
wand without first being informed of the constitutional rights of a
person facing custodial investigation. That evidence was totally
inadmissible under the Bill of Rights [Sec. 12 (3)] and the consistent
rulings of this court since People v. Galit [135 SCRA 465]." People v. cfe
Guzman, G.R. No. 86172, March 4,1991; People v. de las Marinas, G.R.
No. 87215, April 30,1991.
Where appellant was not informed of his right to counsel etc.
before he affixed his signature to bundles containing marijuana, such
bundles are not admissible in evidence. People v. Bagano, 181 SCRA
747, 761 (1990).
Q. While in custody for violation of the Dangerous Drugs Act,
accused, unassisted by counsel, wrote his name on the rolled
Sec. 10 ART. Ill - BILL OP RIGHTS 117
marijuana cigarettes that had been seized from him. Are the marked
cigarettes admissible in evidence?
A. No. Appellant's act of writing his name on the cigarettes
amounted to an admission of his culpability without the assistance of
counsel. The cigarettes are inadmissible. People v. Enrique, Jr., G.R. No.
90738, December 8,1991.
Q. What is the legal effect of the violation of the rights in custodial
investigations?
A. "Any confession or admission obtained in violation of this or Section 17
(provision against self-incrimination) hereof shall be inadmissible in
evidence against him." Section 12 (3).
Waiver of rights
Q. May the rights under custodial investigation be waived?
A. Yes, but the Constitution says: "These rights cannot be waived except in
writing and in the presence of counsel." This makes explicit the rule
already adopted in People v. Galit, 135 SCRA 465 (March 20, 1985) and
Morales v. Enrile, 121 SCRA 538 (April 26,1983).
Admissible and inadmissible evidence
Q. Convicted by the RTC of robbery with homicide, M argues that
the victim's wallet should be inadmissible because the investigating
policemen did not inform him of his constitutional rights during the
custodial investigation wherein he pointed out to the them the place
where he hid the wallet. Decide.
A Infractions of the so-called "Miranda rights" render inadmissible
"only the extrajudicial confession or admission made during custodial
investigation. The admissibility of other evidence, provided they are
relevant to the issue and is not otherwise excluded by law or rules, is not
affected even if obtained or taken in the course of custodial
investigation." People v. Malimit, G.R. No. 109775, November 14,
1996,264 SCRA 167,177.
Q. Where a bloodstained knife is found as a consequence of an
uncounseled extrajudicial confession, may the knife be admitted in
evidence?
A No, because it is the fruit of a constitutionally infirm interrogation.
Aballe v. People, G.R. No. 64086, March 15,1990.
Q. In a case of mail pilferage, accused were asked to sign the envelopes
purportedly for purposes of identifying the envelopes
118 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
taken from them. This was done in custody without the assistance of
counsel. Admissible?
A. No. The envelopes would be evidence of guilt. Marcelo v.
Sandiganbayan, 6.R. No. 109242, January 26,1999.
NOTE: Urine sample is admissible. "What the Constitution prohibits
is the use of physical or moral compulsion to extort communication
from the accused, but not an inclusion of his body in evidence,
when it may be material. In fact, an accused may validly be compelled
to be photographed or measured, or his garments or shoes removed or
replaced, or to move his body to enable the foregoing things to be
done,
without running afoul of the proscription against testimonial compulsion."
Gutang v. People, G.R. No. 135406, July 11,2000.
Q. May a receipt for property seized signed by the accused,
without proof that he was assisted by counsel at the time of signing,
be admissible in evidence against the accused?
A. No, "for this is tantamount to an extra-judicial confession
for the commission of the offense." People v. Lacbanes, G.R. No. 88684,
March 20,1997,270 SCRA 193,203.
Confessions and admissions
Q. Does the law cover both "confessions" and "admissions?"
A. Yes. The 1987 text covers both "confessions" and "admissions."
The difference between confession and admission is found
in Rule 130 of the Ruses of Court. Admission is the "act,
declaration or omission of party as to a relevant fact" (Rule
130, Section 26) whereas confession is the "declaration of an
accused acknowledging his guilt of the offense charged, or of
any offense necessarily included therein." (Rule 130, Section
33).
Confessions or admissions covered by the provision, however,
need not be explicit; they can be merely implicit in any
evidence that is communicative in nature. Thus, the signature
of an accused on a receipt for seized property (People v.
de Guzman, G.R. No. 86172, March 4, 1991; People v. de las
Marinas, G.R. No. 87215, April 30, 1991; People v. Bandin,
September 10, 1993) or marijuana cigarettes where the accused
wrote his name is not admissible. People v. Enriquez,
Jr., G.R. No. 90738, December 8,1991.
A signature in the Booking Sheet and Arrest Report,
however, is not an admission of guilt but only of the fact of
booking and arrest. People v. Bandin, September 10,1993.
Sec. 10 ART. Ill - BILL OP RIGHTS 119
Q. What are the fundamental requisites for an extrajudicial confession to be
admissible in evidence?
A. "1) the confession must be voluntary; 2) the confession must be made with
the assistance of competent and independent counsel; 3) the confession
must be express; and 4) the confession must be in writing." 5) Signed, or
if the confessant does not know how to red and write, thumbmarked by
him. People v. Deniega, G.R. No. 103499, December 29,1995, 251 SCRA
626, 637 (reiterated in People v. Calvo, Jr., 269 SCRA 683 [1997] and in
People v. Cabiles, 284 SCRA 199 [1998]). People v. Olivarez, Jr., G.R. No.
77865, December 4,1998.
Q. Accused claims that the advice of his police-provided counsel
during custodial investigation that he execute an extrajudicial confession
if he really committed the crime taints the confession with
involuntariness. Decide.
A. "A confession is not rendered involuntary merely because
defendant was told that he should tell the truth or that it would be
better for him to tell the truth." People v. Calvo, Jr., G.R. No. 91694,
March 14,1997,269 SCRA 676, 683-84.
Q. Against whom are illegal confessions and admissions
inadmissible?
A. The text makes them inadmissible "against him," that is, against
the source of the confession or admission. And it is he alone who can
ask for exclusion. People v. Balisteros, 237 SCRA 499 (1994). However,
where there has been no collusion with reference to several
confessions, the facts that statements are in all material respects
identical, is confirmatory of the confession of the co-defendants and is
admissible against other persons implicated therein. People v. Lising,
G.R. Nos. 106210-11, January 30, 1998, 285 SCRA 595, 624 (citing People
v. Encipido, 146 SCRA 478 [1986]; People v. Domondon, 43 SCRA 486
[1972]; People v. Sta. Maria, 15 SCRA 222 [1965]).
Termination of Section 12(1) rights
Q. When does the protection of Section 12(1) end?
A. The criminal process includes the investigation prior to the filing of charges,
the preliminary examination and investigation after charges are filed, and
the period of trial. The Miranda rights or the Section 12(1) rights were
conceived for the first of these three phases, that is, when the enquiry is
under the control of police officers. It is in this situation that the
psychological if not physical atmosphere of custodial investigations, in
the
120 THE 1987 PHILIPPINE CONSTITUTION: Sec. 13
A COMPREHENSIVE REVIEWER
absence of proper safeguards, is inherently coercive. Miranda v. Arizona,
384 U.S. at 448-58. Outside of this situation, Section 12(1) no longer
applies. But Sections 14 and 17 come into play.
Conceivably, however, even after charges are filed, the police
might still attempt to extract confessions or admissions from the accused
outside of judicial supervision. In such situation, Section 12(1) should still
apply. But outside of such situation, the applicable provisions are Section
14 and Section 17. It is for this reason that an extrajudicial confession
sworn to before a judge even without assistance of counsel enjoys the
mark of voluntariness. People v. Pamon, 217 SCRA 501 (1993); People v.
Baello, 224 SCRA 218 (1993); People v. Parajinog, 203 SCRA 673 (1993)
People v. Marcos, 147 SCRA 204 (1987).
Section 12(2)
Q. What other rights are guaranteed in Section 12(2)?
A. (1) "No torture, force, violence, threat, intimidation or any other means
which vitiate the free will shall be used against him. Secret detention
places, solitary, incommunicado, or other similar forms of detention are
prohibited."
(2) "The law shall provide for penal and civil sanctions for violations
of this section as well as compensation to and rehabilitation of victims of
torture or similar practices, and their families."
Q. Why are torture, force, etc. prohibited?
A. (1) Because they vitiate truth, and (2) because they are an assault on the
dignity of the person.
; This provision has been deliberately separated from the c
self-incrimination clause in Section 17 in order to emphasize the need to
protect the sacredness of the person.
Protection of the sacredness of the person is also the purpose of
the prohibition of secret detention places, etc. and of the command to
provide for penal and civil sanctions. Moreover, reference to families has
in mind psychological damage done to minor children of detainees.
SEC. 13. ALL PERSONS, EXCEPT THOSE CHARGED WITH OFFENSES
PUNISHABLE BY RECLUSION PERPETUA WHEN EVIDENCE OF GUILT IS
STRONG,
Sec. 10 ART. Ill - BILL OP RIGHTS 121
SHALL, BEFORE CONVICTION, BE BAILABLE BY SUFFICIENT SURETIES,
OR BE
RELEASED ON RECOGNIZANCE AS MAY BE PROVIDED BY LAW. THE
RIGHT TO
BAIL SHALL NOT BE IMPAIRED EVEN WHEN THE PRIVILEGE OF THE WRIT
OF
HABEAS CORPUS IS SUSPENDED. EXCESSIVE BAIL SHALL NOT BE
REQUIRED.
Q. What is bail?
A. Bail is a mode short of confinement which would, with reasonable certainty,
insure the attendance of the accused at his trial. It usually takes the form
of a deposit of money or its equivalent 88 a of such attendance and
which deposit is forfeited
upon failure to appear.
Q. Why is bail awarded to the accused?
A. (1) "to honor the presumption of innocence until his guilt is proven beyond
reasonable doubt;" and (2) "to enable him to prepare his defense
without being subject to punishment prior to conviction." Cortes v.
Catral, A.M. No. RTJ-97-1387, September 10,1997,279 SCRA 1,10 (citing
Stack v. Boyle, 342 U.S. 1, 96 L Ed 3, 72 S Ct 1; Dudley v. US, 242 F2d 656).
Q. Who have a constitutional right to bail?
A. All persons actually detained, except those charged with offenses punishable
by reclusiort perpetua or death when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties.
One is under the custody of the law either when he has been
arrested or has surrendered himself to the jurisdiction of the court, as in
the case where through counsel petitioner for bail who was confined in a
hospital communicated his submission to the jurisdiction of the court.
Paderanga v. Cpurt of Appeals, G.R. No. 115407, August 28,1995.
Q. Does a soldier under court martial enjoy the right to bail?
A. No. Because of the disciplinary structure of the military and
because soldiers are allowed the fiduciary right to bear arms and can
therefore cause great havoc, tradition has recognized the nonexistence
of the right to bail. Nor can appeal be made to the equal protection
clause because equal protection applies only to those who are equally
situated. Comendador, et al. v. de Villa, G.R. No. 93177, August 2,1991.
122 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. Charged with rebellion, a bailable offense, Salas nevertheless
agreed "to remain in legal custody during the pendency of the trial of
his criminal case." Does he have the right to bail?
A. No. By his act he has waived his right. People v. Donato, G.R.
No. 79269, June 5, 1991. (Query: Assuming valid waiver, may he not
take it back?)
Q. When is there no constitutional right to bail?
A. When the following conditions concur: (1) the accused is charged with an
offense punishable by reclusion perpetua; (2) the evidence against him
is strong. Magno v. Abbas, 13 SCRA 233 (1965). Moreover, after
conviction for any offense, bail is discretionary while the case is on
appeal.
Q. Does a person lose his constitutional right to bail upon the filing of a
reclusion perpetua case against him?
A. No. Since the loss of the right depends upon the quantum of evidence
against him, the loss of the right can be determined only after hearing.
Marcos v. Cruz, 67 Phil. 83 (1939).
Q. What are the duties of the trial judge in case an application for bail is filed
by an accused charged with a capital offense?
A. "(1) Notify the prosecutor of the hearing of the application for bail or
require him to submit his recommendation (Section 18, Rule 114
of the Rules of Court as amended);
(2) Conduct a hearing of the application for bail regardless of
whether or not the prosecution refuses to present evidence to
show that the guilt of the accused is strong for the purpose of
enabling the court to exercise its sound discretion (Sections 7 and
8, supra);
(3) Decide whether the evidence of guilt of the accused is strong
based on the summary of evidence of the prosecution (Baylon v.
Sison, 243 SCRA 284 [1995]);
(4) If the guilt of the accused is not strong, discharge the accused
upon the approval of the bailbond. (Section 19, supra). Otherwise,
petition should be denied." Basco v. Rapatalo, A.M. No.
RTJ-96-1335, March 5, 1997, 269 SCRA 220, 243-44.
Q. Describe further what should be done in capital cases.
A. If the accused is charged with a capital offense, a hearing, mandatory in
nature and which should be summary or otherwise
Sec. 10 ART. Ill - BILL OP RIGHTS 123
in the discretion of the court, is required with the participation of both
the defense and a duly notified representative of the prosecution, this
time to ascertain whether or not the evidence of guilt is strong. The
burden of proof is on the prosecution to show that the evidence meets
the required quantum. The prosecution must be given an opportunity to
present, within a reasonable time, all the evidence that it may want to
introduce before the court may resolve the application, since it is equally
entitled as the accused to due process. Likewise, the petitioner has the
right to cross-examine the witnesses and present his own evidence in
rebuttal When, eventually, the court ig&ttes an order either granting or
refusing bail, the same should contain a summary of the evidence for the
prosecution, followed by its conclusion as to whether or not the evidence
of guilt is strong. The court, though, cannot rely on mere affidavits or
recitals of their contents, if timely objected to, for these represent only
hearsay evidence, and thus are insufficient to establish the quantum of
evidence that the law requires. Marzan-Gelacio v. Flores, A.M. No.
RTJ-99-1488, June 20, 2000.
Q. What is the meaning of strong evidence of guilt for purposes of denying bail?
A. This means "proof evident" or "presumption great." "Proof evident" or
"Evident proof" in this connection means clear, strong evidence which
leads a well-guarded dispassionate judgment to the conclusion that the
offense has been committed as charged, that accused is the guilty agent,
and that he will probably be punished capitally if the law is administered.
"Presumption great" exists when the circumstances testified to are such
that the inference of guilt naturally to be drawn therefrom is strong,
clear, and convincing to an unbiased judgment and excludes all
reasonable probability of any 6&her conclusion. Even though there is a
reasonable doubt as to the guilt of accused, if on an examination of the
entire record the presumption is great that accused is guilty of a capital
offense, bail should be refused. In other words, the test is not whether
the evidence establishes guilt beyond reasonable doubt but rather
whether it shows evident guilt or a great presumption of guilt. As such,
the court is ministerially bound to decide which circumstances and
factors are present which would show evident guilt or presumption of
guilt as defined above. People v. Judge Cabral, G.R. No. 131909, February
18,1999.
124 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. What is the duty of the judge if the prosecution does not present
evidence?
A. Even where the prosecutor refuses to adduce evidence in
opposition to the application to grant and fix bail, the court
may ask the prosecution such questions as would ascertain
the strength of the stated evidence or judge the adequacy of
the amount of bail. Tolentino v. Judge Camanao, Jr., A.M. No.
RTJ-00-1522, January 20,2000.
Q. May a judge require a strictly cash bond and disallow
petitioner's attempt to post a surety bond for his provisional liberty?
A. No. Such a requirement is abhorrent to the nature of bail.
The sole purpose of bail is to insure the attendance of the accused. It
has neither punitive nor revenue raising purpose. Cash bond is allowed
in this jurisdiction only because our rules expressly allow it. Were this
not the case, cash bond could not be countenanced because the nature
of bail presupposes the attendance of sureties to whom the body of the
prisoner can be delivered. Moreover, the burden imposed by requiring
a cash bond can make the bail constitutionally "excessive." Almeda v.
Villaluz, 66 SCRA 38 (August 6,1975).
Q. Are "life imprisonment" and Preclusion perpetua" the same?
A. A distinction must be made between the penalty of "life
imprisonment" and reclusion perpetua. (1) Life imprisonment
is a penalty in special laws while reclusion perpetua is imposed
by the Revised Penal Code; (2) life imprisonment does not
carry accessory penalties, whereas reclusion perpetua does;
(3) life imprisonment is indefinite, whereas reclusion perpetua
is for 30 years after which the convict is eligible for pardon.
The distinction is important because under the 1985 Rules
^h Criminal Procedure a person charged with an offense
npunishable by "life imprisonment" was entitled to bail as a
matter of right. However, effective October 1, 1994, Rule 114
was amended placing "life imprisonment" on the same level as
death and reclusion perpetua. Cardines v. Rosete, 242 SCRA
557, 562 (1995).
Q. For purposes of the right to bail, what is the criterion for
determining whether the offense is bailable or not?
A. "The criterion to determine whether the offense charged is
capital is the penalty provided by the law regardless of the attendant
circumstances." To require more will entail consideration not only
of evidence showing commission of the crime but also evidence of
Sec. 10 ART. Ill - BILL OP RIGHTS 125
the aggravating and mitigating circumstances. In effect, this would
already be requiring a complete trial thus defeating the purpose of
bail, which is to entitle the accused to provisional liberty pending
trial. People v. Intermediate Appellate Court, 147 SCRA 219 (1987).
NOTE: But the grant of new trial does not negate strong evidence
of guilt as found by the lower court. Nor is humanitarian ground on
the mere claim of illness or old age a ground for discretionary grant
of bail. This is specially so were there is a finding on record that the
accused may repeat the offense (pedophilia). People v. Fitzgerald, G.R.
No. 149723, October 27,2006.
Q. May a person who does not have a constitutional right°£b bail
be released on bail?
A. Yes. The matter is discretionary with the court for good and
valid reasons, unless there is a statutory prohibition against it.
Q. What are the implicit limitations on the right to bail?
A. (1) The person claiming the right must be under actual
detention. Mendoza v. CFI, 51 SCRA 369 (1973).
(2) The constitutional right is available only in criminal
cases, not, e.g., in deportation proceedings.
Q. Is there a right to bail in extradition cases?
A. The Court has had occasion to rule that, since bail is available
only in criminal proceedings, a respondent in an extradition
proceeding is not entitled to bail. He should apply fors bail
in the court where he will be tried. United states v. Judge
Puruganan, G.R. No. 148571, September 24,2002.
However, there have been later developments. If after his
arrest and if the trial court finds that an extraditee is fnot a
flight risk, the court may grant him bail. (In this case the grant
of bail presupposed that a co-petitioner, the wife, had already
presented evidence to prove her right to be on bail, that she
was no flight risk, and the trial court had already exercised
its sound discretion and had already determined that under
the Constitution and laws in force, co-petitioner was entitled
to provisional release.) The Court emphasized that bail may
be granted to a possible extraditee only upon a clear and
convincing showing (1) that he will not be a flight risk or a
danger to the community, and (2) that there exist special,
126 THE 1987 PHILIPPINE CONSTITUTION: Sec. 13
A COMPREHENSIVE REVIEWER
humanitarian and compelling circumstances. Rodriguez v. Judge, G.R.
No. 157977, February 27,2006.
In a later case the Court said that it could not ignore the following
trends in international law: (1) the growing importance of the individual
person in public international law who, in the 20th century, has gradually
attained global recognition; (2) the higher value now being given to
human rights in the international sphere; (3) the corresponding duty of
countries to observe these universal human rights in fulfilling their treaty
obligations; and (4) the duty of the Court to balance the rights of the
individual under our fundamental law, on one hand, and the law on
extradition, on the other. It added, "If bail can be granted in deportation
cases, we see no justification why it should not also be allowed in
extradition cases. After all, both are administrative proceedings where
the innocence or guilt of the person detained is not in issue." Gov't of
Hongkong v. Olalia, G.R. No. 153675, April 19,2007.
Q. Aside from release through bail, through what other means may an
accused obtain provisional liberty?
A. Through recognizance, as may be provided by law. That is, the law will
determine when recognizance is an adequate substitute for bail. The
new Constitution has made release on recognizance, as provided by law,
available on the same terms as release on bail.
Q. What is a recognizance?
A. It is an obligation of record entered into before a court guaranteeing the
appearance of the accused for trial. It is in , the nature of a contract
between the surety and the state.
JPeople v. Abner, 87 Phil 569.
Q. Is the right to bail suspended when the privilege of the writ of
habeas corpus is suspended?
A. The new Constitution, contrary to past jurisprudence, e.g.,
Garcia-Padilla v. Enrile, G.R. No. 60349-62, December 29,1983, now
says that the right to bail is not thereby suspended.
Q. Why does the Constitution prohibit excessive bail?
A. Obviously, the requirement of excessive bail can amount to a denial of bail.
Thus, a bail fixed by a lower court at PI,195,
Sec. 10 ART. Ill - BILL OP RIGHTS 127
200.00 was found to render the right nugatory. De la Camara v. Enage,
41 SCRA 1 (1971). Similarly, a bail bond of P18,000 for an offense
punishable with prison mayor or a fine of P5,000 to P10,000 or both was
found excessive.
NOTE: The Court has had occasion to recall the factors which
must be considered in determining bail: 1. ability to post bail; 2. nature
of the offense; 3. penalty imposed by law; 4. character and reputation
of the accused; 5. health of the accused; 6. strength of the evidence; 7.
probability of appearing for trial; 8. forfeiture of bonds; 9. whether
accused was a fugitive from justice when arrested; 10. if under bond in
other cases. Sunga v. Judge Salud, 109 SCRA 253 (November 19, 1981),
citing Abano v. VUlaserior, 21 SCRA 312 (September 29,1967).
Q. Does a person admitted to bail necessarily have the right to
leave the Philippines?
A. No. A court, as a necessary consequence of the nature of a bail
bond, may prevent a person admitted to bail from leaving the country.
A bail bond is intended to make a person available any time he is
needed by the court. Manotoc, Jr. v. Court of Appeals, 142 SCRA
149,153-4 (1986).
SEC. 14. (1) No PERSON SHALL BE HELD TO ANSWER FOR A CRIMINAL
OFFENSE WITHOUT DUE PROCESS OF LAW.
(2) IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL BE
PRESUMED INNOCENT UNTIL THE CONTRARY IS PROVED, AND SHALL
ENJOY THE RIGHT TO BE
HEARD BY HIMSELF AND COUNSEL, TO BE INFORMED OF THE NATURE
AND CAUSE OF THE
ACCUSATION AGAINST HIM, TO HAVE A SPEEDY, IMPARTIAL, AND
PUBLIC TRIAL, TO MEET THE
WITNESSES FACE TO FACE, AND TO HAVE COMPULSORY PROCESS TO
SECURE THE ATTENDANCE
OF WITNESSES AND THE PRODUCTION OF EVIDENCE IN HIS BEHALF.
HOWEVER, AFTER
ARRAIGNMENT, TRIAL MAY PROCEED NOTWITHSTANDING} THE
ABSENCE OF THE ACCUSED
PROVIDED THAT HE HAS BEEN DULY NOTIFIED AND HIS FAILURE TO
APPEAR IS UNJUSTIFIABLE.
Due process in criminal cases
Q. Explain the requirement of due process in criminal cases.
A. The requirement that no person shall be held to answer for a criminal
offense without "due process of law" simply that the rules prescribed by
Section 14 and all other provisions related to criminal prosecution are
followed.
128 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. May a judge who replaces another judge validly render a
decision although he has only partly heard the testimony of witnesses?
A. Yes. "This rule is rooted in practical considerations. Sometimes
it is an impossibility for the judge who tried the case to be the same
judicial officer to decide it. The judge who tried the case may die, resign
or retire from the bench, before he could render judgment thereon"
People u. Narqjos, 149 SCRA 99, 105 (1987), quoting from Villanueva v.
Estenzo, 64 SCRA 407.
Q. Batas Big. 22, a penal law, was published in the April 9, 1979
issue of the Official Gazette which, however, was officially released for
circulation only on June 14, 1979. May acts committed "flHor to June
14,1979, be prosecuted under Batas Big. 22?
A. No. The penal statute was made public only on June 14, 1979.
Prior to such date the prohibition of the law did not exist. People v.
Veridiano, 132 SCRA 523 (October 12,1984).
Q. May criminal penalties be imposed by administrative agencies?
A. Since administrative agencies are not bound to follow the rules
of criminal procedure they may not impose criminal penalties. Scoty's
Department Store v. Micaller, 99 Phil. 762 (1956).
Q. When does publicity prejudice due process?
A. The rule is that "to warrant a finding of prejudicial publicity
there must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of publicity."
"Petitioners cannot just rely on the subliminal effects of publici t y . . .
because these are basically unbeknown and beyond knowing." Webb v.
de Leon, G.R. No. 121234, August 23,1995. See also People v.
Teehankee, Jr., G.R. No. 111206-08, October 6,1995.
Military tribunals
Q. May the Supreme Court review decisions of military tribunals?
A. '^Generally, the Supreme Court has no supervisory authority over military
courts. Kuroda v. Jalandoni, 83 Phil. 171; Martelino v. Alejandro, 32 SCRA
106 (March 25,1970). By the National Security Code, P.D. 1498, June 11,
1978 (74 O.G. 11066), the SC does not review decisions of military
commissions but of ,the Court of Military Appeals in cases appealed to
the latter by military commissions. Therefore, the issue of denial of the
right to present evidence should first be passed upon by military
authorities. Buscayno & Sison v. Military Commissions, 109 SCRA 273
(November 19,1981). But see dissents of Fernando and Teehankee and
Article VIII, Section 1.
Sec. 10 ART. Ill - BILL OP RIGHTS 129
Q. May military commissions or tribunals have jurisdiction to try
civilians for offenses allegedly committed during martial law when civil
courts were open and functioning?
A. No. Olaguer v. Military Commission No. 34, 150 SCRA 144
(1987), explicitly reversing Aquino, Jr. v. Military Commission No. 2, 63
SCRA 264 (1975) and all decided cases affirming the same.
Q. The rule is that jurisdiction over a person is acquired only upon
arrest. Does this apply to military jurisdiction?
A. No. This is a rule for ordinary courts. See Article of War 2 and
Section 8 of Manual for Courts Martial, AFP. AbadiUa i). Ramos, 156
SCRA 92 (December 1,1987). [The reasoning here is unconvincing.]
Presumption of innocence
Q. What is the principal effect of the guarantee of presumption of innocence?
A. Its principal effect is that no person shall be convicted unless the prosecution
has proved him guilty beyond reasonable doubt.
Q. The Return to Work Agreement specified express finding of
innocence in a criminal case as ground for reinstatement. The criminal
case against petitioner, however, was dismissed on the technicality of
failure of witnesses to appear at the trial. Is reinstatement in order?
A. Yes. Innocence does not have to be declared. It is presumed.
Moreover, the mandate for protection for labor compels interpretation
of agreements in favor of labor. Castillo v. Filtex International Corp., G.R.
No. L-37788, September 30,1983.
Q. For purposes of disqualification in an election, section 4 of
Batas Big. 52 says: "the filing of charges for the commission of such
crimes before a civil court or military tribunal after preliminary investigation
shall be prima facie evidence of such fact [disqualification]."
Valid?
A. No. This violates the guarantee of presumption of innocence.
Dumlao v. COMELEC, G.R. No. 52245, January 22,1980.
Q. Section 40 of the Local Government Code disqualifies from
running for office a "(e) Fugitive from justice in criminal or non- political
cases here or abroad." If applied to one who has not yet been convicted
of any offense but was merely fleeing from trial, would there be
violation of the presumption of innocence?
A. This was defended against the suggestion that it violates
presumption of innocence on the argument that the disqualification
THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 14
is not a penalty and that Congress is allowed to prescribe reasonable
qualifications for local candidates both by Article V, Section 1 and Article
X, Section 3. Marquez, Jr. v. Commission on Elections, G.R. No. 112889,
April 18,1995. (But the Court remanded the case to the lower court for
determination of the fact of being a 'fugitive from justice.")
Q. Does preventive suspension pendente lite violate the right to
be presumed innocent?
A. No, because preventive suspension is not a penalty. Gonzaga v.
Sandiganbayan, G.R. No. 96131, September 6,1991.
Q. Does presumption of innocence preclude the State from
shifting the burden of proof to the accused?
A. The State having the right to declare what acts are criminal,
within certain well defined limitations, has a right to specify what act or
acts shall constitute a crime, as well as what proof shall constitute prima
facie evidence of guilt, and then to put upon the defendant the burden
of showing that such act or acts are innocent and are not committed
with any criminal intent or intention. U.S. v. Luting, 34 Phil. 725 (1916).
Q. Article 217 of the Revised Penal Code says that failure of
an accountable officer to produce money in his charge upon
demand shall be prima facie evidence of malversation. Does such
law violate presumption of innocence?
A. Clearly, the fact presumed is but a natural inference from
the fact proved [failure to produce], so that it cannot be said that
there is no rational connection between the two. Furthermore,
the statute establishes only a prima facie presumption, thus giving
the accused an opportunity to present evidence to rebut it.
People v. Mingoa, 92 Phil. 857, 859 (1953); Albores v. Court of
Appeals, 132 SCRA 604 (October 23,1984).
Q. Article 315, paragraph 2(d) of the RPC prescribes a
period of three days from notice within which the issuer of the
check must pay the creditor, otherwise, a prima facie inference of
deceit constituting false pretense of fraudulent act will arise. Does
this offend against the constitutional presumption of innocence?
A. No. "There is...no constitutional objection to a law
providing that the presumption of innocence may be overcome
by a contrary presumption founded upon the experience of human
conduct, and enacting what evidence shall be sufficient to
overcome such presumption of innocence. The legislature may
provide for prima facie evidence of guilt of the accused and shift
Sec. 10 ART. Ill - BILL OP RIGHTS 131
the burden of proof provided there be a rational connection between
the facts provided and the ultimate fact presumed so that
the inference of the one from proof of the others is not unreasonable
and arbitrary because of lack of connection between the two
in common experience." Citing People v. Mingoa, 92 Phil. 856;
Banares v. Court of Appeals, G.R. No. 55992, February 14,1991.
Q. When does presumption of innocence end?
A. Moreover, where the conviction by a lower court is still
on appeal, it has not yet reached finality and the accused still
enjoys the constitutional presumption of innocence. It must be
remembered that the existence of a presumption indicating the
guilt of the accused does not in itself destroy the constitutional
presumption of innocence unless the inculpating presumption,
together with all the evidence, or the lack of any evidence or
explanation, proves the accused's guilt beyond a reasonable
doubt. Until the accused's guilt is shown in this manner, the
presumption of innocence continues. Thus in Mangubat v.
Sandiganbayan, the Court held that respondent Sandiganbayan
did not act with grave abuse of discretion, correctible by certiorari,
when it ruled that despite her conviction, the accused still enjoyed
presumption of innocence. Re: Judge Angeles, AM. No.
06-9-545-RTC, January 31,2008.
NOTE: The equipoise rule provides that where the evidence
of the parties in a criminal case is evenly balanced, the
constitutional presumption of innocence should tilt the scales in
favor of the accused. There is no equipoise if the evidence is not
evenly balanced. The equipoise rule cannot be invoked where the
evidence of the prosecution is overwhelming. Malana v. People,
G.R. No. 173612, March 26,2008.
Right to be heard
Q. What are the elements of the general right to be heard?
A. It includes: (1) the right to be present at the trial; (2) the right to counsel; (3)
the right to an impartial judge; (4) the right of confrontation; (5) the right
to compulsory process to secure the attendance of witnesses.
Q. What is the scope of the right to be present at the trial?
A. It covers only the period from arraignment to promulgation of sentence. U.S.
v. Beecham, 23 Phil. 259 (1972). However, this has been modified by
Section 14(2) which says that "after arraignment, trial may proceed
notwithstanding the absence
132 THE 1987 PHILIPPINE CONSTITUTION: Sec. 13
A COMPREHENSIVE REVIEWER
of the accused provided that he has been duly notified and his failure to
appear is unjustifiable."
Q. What are the conditions for waiver of the right to be present at the trial?
A. The right may be waived "provided that after arraignment he may be
compelled to appear for the purpose of identification by the witnesses of
the prosecution, or provided he unqualifiedly admits in open court after
his arraignment that he is the person named as the defendant in the
case on trial. Reason for > requiring the presence of the accused, despite
his waiver, is, if allowed to be absent in all the stages of the proceeding
without giving the People's witnesses the opportunity to identify him in
court, he may in his defense say that he was never identified as the
person charged in the information and, therefore, is entitled to
acquittal." People v. Presiding Judge, G.R. No. L-64731, October 26,1983;
Aquino, Jr. v. Military Commission No. 2, L-37364, April 24,1975.
Q. When an accused waives his appearance in further proceedings and says
that "he may be identified by witnesses even in his absence," may he still
be compelled to appear for purposes of identification?
A. Yes. In order for him to be excused completely from appearance it is not
enough that he allows himself to be identified by witnesses in his
absence. He must further unqualifiedly admit that every time a witness
mentions a name by which he is known the witness is to be understood
as referring to him. Carredo v. People, G.R. No. 77542, March 19,1990,
citing People v. Presiding Judge, 125 SCRA 269 (1983).
Q. What are the requisites of a valid trial in absentia?
A* "(1) the accused has already been arraigned; (2) he has been duly notified
of the trial; and (3) his failure to appear is unjustifiable." Parada v.
Veneration, A.M. No. RTJ-96-1353, March 11,1997,269 SCRA 371,376
(citing People v. Salas, 143 SCRA 163 [1986]).
Q. Does the provision on trial in absentia preclude forfeiture of bail bond under
the Rules of Court for one who jumps bail?
A. No, the new provision "does not lend itself to a latitudinarian construction."
People v. Judge Prieto, Jr., L-46542, 21 July
Sec. 10 ART. Ill - BILL OP RIGHTS 133
1978. (Prieto's argument was that the time to forfeit bail should be after
conviction, not upon jumping bail.)
Q. What is the reason for allowing trial in absentia?
A. To speed up the disposition of criminal cases. People v. Salas, 143 SCRA 163
(1986).
Right to counsel
Q. Why must an accused enjoy the right to counsel?
A. This is a realistic recognition of the obvious truth tR&t the average defendant
does not have the professional skill to protect himself when brought
before a tribunal with power to take his life or liberty, wherein the
prosecution is represented by an experienced and learned counsel.
Johnson v. Zerbst, 304 U.S. 458 (1938).
Q. What duty is imposed on the judge by the guarantee of the right to counsel?
A. If the defendant appears without counsel he must be informed by the court
that he has a right to have counsel before being arraigned, and must be
asked if he desires the aid of counsel. If he desires and is unable to
employ counsel, the, court must assign counsel to defend him. This is a
right which the defendant should not be deprived of, and the failure of
the court to assign counsel or, after counsel has been assigned, require
him to perform this duty by appearing and defending the accused would
be sufficient cause for the reversal of the case. U.S. v. Gimeno, 1 Phil. 236
(1905).
Q. What are the pre-arraignment duties of the trial judge? "
A. Under Section 6 of Rule 116 of the Rules of Court, the four-fold duties are:
"(1) to inform the accused that he has the right to have his own counsel
before being arraigned; (2) after giving such information, to ask accused
whether he desires the aid of counsel; (3) if he so desires to procure the
services of counsel, the court must grant him reasonable time to do so;
and (4) if he so desires to have counsel but is unable to employ one, the
court must assign counsel de oficio to defend him." People v. Agbayani,
G.R. No. 122770, January 16,1998, 284 SCRA 315, 333 (citing People v.
Holgado, 85 Phil. 752, 756 [1950])
THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 14
Q. Petitioner contends that the trial court should have appointed
a counsel de oficio when his counsel consistently failed to appear for his
cross-examination. Decide.
A. The duty of the court to appoint a counsel de oficio for the
accused who has no counsel of choice and desires to employ the
services of one is mandatory only at the time of arraignment. No such
duty exists where the accused has proceeded to arraignment and then
trial with a counsel of his own choice.
At the most, the appointment of a counsel de oficio in a situation
like the present case would be discretionary with the trial court, which
discretion will not be interfered with in the absence of grave abuse.
Libuit v. People, G.R. No. 154363, September 13,2005; Sayson v. People,
166 SCRA 680 (1988).
Q. Both the transcript of stenographic notes and the order issued
by the trial judge failed to disclose categorically that the court informed
the accused of his right to counsel. Is this sufficient ground to reverse
conviction?
A. No. The trial court must be presumed to have complied with
the procedure prescribed by law for the hearing and trial of cases, and
such a presumption can only be overcome by an affirmative showing to
the contrary. People v. Agbayani, G.R. No. 122770, January 16,1998,284
SCRA 315,334. However, the Court admonished all trial courts to have
their compliance with their pre-arraignment duties put on record. Id. at
335-36.
Q. After conviction, accused discovers that the "lawyer" who
defended her was not a member of the bar. May she be granted new
trial?
A. Yes. She has a right to qualified counsel. Delgado v. Court of
Appeals, 145 SCRA 357 (1986); People v. Santocildes, Jr., G.R. No.
109149, December 21,1999.
.ni' Q. Appellants fault the trial court for appointing counsel de 'Aoficio
despite their insistence to be assisted by counsel of their own choice;
and second, for refusing to suspend trial until they shall have secured
the services of new counsel.
A. We have held that there is no denial of the right to counsel
where a counsel de oficio was appointed during the absence of the
accused's counsel de parte, pursuant to the court's desire to finish the
case as early as practicable under the continuous trial system.
Indisputably, it was the strategic machinations of appellants and their
counsel de parte which prompted the trial court to appoint counsel de
oficio. The unceremonious withdrawal of appellants' counsel de parte
during the proceedings of August 24,1998, as well as their stubborn
refusal to return to the court for trial undermines the continuity of the
Sec. 17 ART. Ill - BILL OF RIGHTS 135
proceedings. Considering that the case had already been dragging on a
lethargic course, it behooved the trial court to prevent any further
dilatory maneuvers on the part of the defense counsel. Accordingly, it
was proper for the trial court to appoint counsel de oficio to represent
appellants during the remaining phases of the proceedings. People v.
Larrafiaga, et al., G.R. Nos. 138874-75, February 3, 2004.
Q. In times of emergency, may a person be denied the right to
confer with counsel?
A. No. Diokno v. Enrile, L-36315, December 19,1981.
Q. Convicted of rape, accused sought to withdraw his appeal to
the Supreme Court on the ground that he could not afford counsel.
Should he be allowed?
A. No. He should be given counsel de officio instead. People v. Rio,
G.R. No. 90294, September 24,1991.
Q. The accused contends that the judge's appointment of a
counsel de oficio deprives him of his constitutional right to be defended
by counsel of his own choice. Decide.
A. The 'preference in the choice of counsel' pertains more aptly
and specifically to a person under investigation [Art. Ill, §12(1)1 rather
than one who is the accused in a criminal prosecution [Art. Ill, §14(2)].
Amion v. Judge Chiongson, A.M. No. RTJ-97-1371, January 22,1999.
Right to be informed
Q. What is the purpose and scope of the right to be informed?
A. The object of the written accusation is — first, to furnish the accused with
such a description of the charge against him as will enable him to make
his defense; and second, to avail himself of his conviction or acquittal for
protection against a further prosecution for the same cause; and third, to
inform the court of the facts alleged, so that it may decide whether they
are sufficient in law to support a conviction, if one should be had. In order
that this requirement may be satisfied, facts must be stated, not
conclusions of law. Eveiy crime is made up of certain acts and intent;
these must be set forth in the complaint with reasonable particularity of
time, place, names (plaintiff and defendant), and circumstances. In short,
the complaint must contain a specific allegation of every fact and
circumstance necessary to constitute the crime charged. U.S. v. Karelsen,
3 Phil. 223 (1904).
136 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. What must a criminal information contain in order to comply
with the constitutional right of the accused to be informed of the nature
and cause of the accusation against him?
A. According to §§6 and 8 of Rule 110 of the Rules of Court, it
must state the following: (1) the name of the accused; (2) the
designation given to the offense by the statute; (3) a statement of the
acts or omissions so complained of as constituting the offense; (4) the
name of the offended party; (5) the approximate time and fate of the
commission of the offense; and (6) the place where the offense had
been committed. People v. Quit long, G.R. No. 121562, July 10,1998,
292 SCRA 360.
Q. Charged under Arts. 293,294,296, RPC, may the accused be
convicted under Art. 335?
A. Yes, provided that the information alleged facts under Art. 335.
"The real question is not did he commit a crime given in the law some
technical and specific name, but did he perform the acts alleged in the
body of the information in the manner therein set forth. If he did, it is of
no consequence to him, either as a matter of procedure or of
substantive right, how the law denominates the crime which those acts
constitute." People v. Labado, 98 SCRA 730, 747 (L-38548, July 24,1980),
citing IV Moran.
Q. Two informations each charge R with only one offense of rape.
However, the evidence presented during trial established that R raped
G on six separate occasions. May R be convicted of six counts of rape?
A. No. In view of the right to be informed of the accusation against
him, R "cannot be held liable for more than what he was charged with."
People v. Ranido, G.R. No. 116450-51, March 31,1998, 288 SCRA 369.
Q. The Information charged the accused with statutory rape ,
Emitted "before and until October 15, 1994...several times." The nKTC
convicted him of rape committed in 1993. Was his right to be informed
violated?
A. No. The information need not allege the precise time of the
commission of an offense, unless time is an essential element of the
crime charged. The date is not an essential element of rape, its
gravamen is carnal knowledge of a woman. "Indeed, the determinative
factor in the resolution of the question involving a variance between
allegation and proof in respect of the date of the crime is the element of
surprise on the part of the accused and his corollary inability to defend
himself properly. The records of this case belie appellant's claim of
surprise." People v. Bugayong, G.R. No. 126518, December 2, 1998.
.21 ART. IH - BILL OF RIGHTS 137
Q. Accused was convicted by the RTC of consummated rape
based on the complaint filed against him specifically alleging that he
raped the victim on April 25, 1991. However, the victim's testimony
during cross examination show that the accused succeeded in raping
her in the past, but not on April 25,1991. Was the RTC correct?
A. No. aDue process demands that the accused in a criminal case
should be informed of the nature of the offense with which he is
charged before he is put on trial — an accused cannot be convicted of
rape where the evidence shows that the rape was committed on some
other date different from the date indicated in the information.'' But,
accused is guilty of attempted rape. People v. Cruz, G.R. No. 116728, July
17,1996, 259 SCRA 109.
Q. Is the precise time of rape essential for the validity of an
information?
A. No. The time of occurrence is not an essential element of rape.
Its precise date and hour need not be alleged in the complaint or
information. Section 11 of Rule 110 of the Rules of Court provides. The
Information in this case alleged that the crime was committed
"sometime in March 1998" which, according to private complainant,
was more or less at the closing of the school year. Being reasonably
definite and certain, this approximation sufficiently meets the
requirement of the law. After all, Section 6 of Rule 110 of the Rules of
Court merely requires that the information must state, among others,
the approximate time of the commission of the offense. People v.
Cachapero, G.R. No. 153008, May 20, 2004; People v. Razonable, G.R.
Nos. 128085-87, April 12,2000.
Q. Where the accused charged with rape, may he be convicted for
statutory rape if relation to the victim is not included in the information?
A. No. The Court has repeatedly held that qualifying circumstances
must be alleged.
Q. Petitioner has been charged with rebellion complexed with
murder and the facts constituting the offense are set dpwn in the
information. Petitioner contends that since rebellion may not be
complexed with murder, he is charged with a non-existing crime. Is the
contention tenable?
A. No. Indeed rebellion may not be complexed with murder. But
the facts alleged sire enough to constitute the crime of rebellion. The
information therefore is valid. Enrile v. Judge Salazar, G.R. No. 92163,
June 5,1990.
Q. Accused is charged with two informations containing two sets
of facts. May the facts in the two informations be combined to allow a
conviction for a complex crime consisting of the allegations in the two
informations?
138 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
A. No. Although trial of the two cases may be joint, there should
be two separate verdicts for the two informations. To combine the two
set of facts to form one complex crime would violate his right to be
informed of the accusation against him. People v. Ramirez, G.R. No.
92167-68, July 14,1995.
NOTE: Void for vagueness and strict scrutiny
The doctrine of strict scrutiny is different from void for vagueness
rule Strict scrutiny and overbreadth are analytical tools developed for
testing "on their face" statutes in free speech cases or, as they are called
in American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to such
statute, the established rule is that 'one to whom application of a
statute is constitutional will not be heard to attack the statute on the
ground that impliedly it might also be taken as applying to other
persons or other situations in which its application might be
unconstitutional.' As has been pointed out, Vagueness challenges in the
First Amendment context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular
defendant.m The rule established 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. The rationale is obvious. If a facial
challenge to a penal statute is permitted, the prosecution of crimes
maybe hampered. No prosecution would be possible. A strong criticism
against employing a facial challenge in the case of penal statutes, if the
same is allowed, would effectively go against the grain of the doctrinal
requirement of an existing and concrete controversy before judicial
power may be appropriately exercised. A facial challenge against a
penal statute is, at best, amorphous and speculative. It would,
essentially, force the court to consider third parties who are not before
it. As I have said in my opposition to the allowance of a facial challenge
to attack penal statutes, such a test will impair the State's ability to deal
with crime. If warranted, there would be nothing that can hinder an
accused from defeating the State's power to prosecute on a mere
showing that, as applied to third parties, the penal statute is vague or
overbroad, notwithstanding that the law is clear as applied to him.
Spouses Romualdez v. Comelec, G.R. No. 167011, December 11,2008.
Right to speedy trial
Q. What is the meaning of "speedy trial?"
A. The concept of speedy trial is necessarily relative and determination of
whether the right has been violated must be based on the balancing of
various factors. Length of delay is
Sec. 17 ART. Ill - BILL OF RIGHTS 139
certainly a factor to consider, but other factors must also be considered
such as the reason for the delay, the effort of the defendant to assert his
right, and the prejudice caused the defendant.
Conde v. Rivera, 59 Phil. 650 (1924), is the leading case on the
subject of speedy trial. After reciting the pitiful plight of petitioner Conde,
Justice Malcolm concluded:
We lay down the legal proposition that, where a prosecuting
officer, without good cause, secures postponements of the trial of a
defendant against his protest beyond a reasonable period of time, as in
this instance for more than a year, the accused is entitled to relief by a
proceeding in mandamus to compel a dismissal of the information, or if
he be restrained of his liberty, by habeas corpus to obtain freedom. Id. at
652.
Q. Information was filed and confinement began 27 May 196&
Conviction came 2 April 1970 and appeal was perfected immediately. By
1977, there still was no decision on appeal because the stenographer
could not be located. The Court of Appeals, by a series of 14 resolutions
until July 1977 was doing what it could to have the stenographer
arrested, but to no avail. Was there violation of the right to a speedy
trial?
A. No. Accused was already convicted. The fault was not of the
Court of Appeals.' Therefore, delay was not so unreasonable as to
outweigh the requirement of justice. Ventura v. People, L-46576, 6
November 1978.
Q. Information for frustrated murder was filed 26 November
1963. Arraignment and plea of "Not guilty" was 22 December 1964.
Provisional dismissal with consent of accused and counsel was granted 2
June 1965 because prosecution witnesses failed to appear. On 10
September 1969, after 4 years, 3 months, 8 days, information was
refiled. Accused moved to quash on the basis of right to speedy trial.
Decide. f
A. Defense is not proper because (1) there was no delay in trial,
there being no indictment as yet; and (2) the consent of the accused was
a waiver of right not to be prosecuted for the same offense. Bermisa v.
Court of Appeals, L-32506, July 30,1979.
Q. Complainant was not charged until after a period of 1 year and
7 months of detention. He asks for release on habeas corpus on the
ground of denial of the right to a speedy trial. Proper?
A. No. One begins to count the delay of the trial only after the
filing of the information. Moreover, the delay contemplated by the
Constitution is unreasonable delay. Martin v. General Fabian Ver,
140 THE 1987 PHILIPPINE CONSTITUTION: Sec. 13
A COMPREHENSIVE REVIEWER
G.R. No. 62810, July 25, 1983. (But note that the new Constitution
guarantees not just "speedy trial" but "speedy disposition of cases," a
broader concept than "speedy.")
Q. On repeated motions of the accused the reinvestigation and
arraignment were delayed for a long time. After arraignment, accused
again asked for postponement of the trial. On one trial date, the
prosecution was absent. Accused took the opportunity to ask for
dismissal of the case on the ground of denial of the right to a speedy
trial. The judge acceded and dismissed the case. Does the dismissal bar
reinstatement of the case?
A. No. The dismissal on the ground of denial of the right to a
speedy trial constituted abuse of discretion and was therefore invalid.
People v. Jardin, G.R. No. 33037-42, August 17,1983.
Q. What is the remedy for violation of the right to speedy trial?
A. The accused is entitled to dismissal of the case, and, if he is under detention,
to release by habeas corpus. Moreover, dismissal for violation of the
right to speedy trial is equivalent to acquittal and is a bar to another
prosecution for the same offense.
Right to an impartial trial
Q. Give an example of a judge who lacks impartiality.
A. The application of the right to criminal prosecution was recently emphasized
in Mateo Jr. v. Villaluz, 50 SCRA 18 (1972). One of the accused in the case
had made an extrajudicial statement, which he subsequently subscribed
before the judge, implicating his co-accused. Later, however, the same
accused repudiated his statement claiming that he had made it as a
result of a threat by a government agent. The co-accused then sought
the disqualification of the judge claiming that the 'jfepudiation of the
statement would not sit well with the judge before whom it had been
subscribed. The Court, noting "the imperative character of the safeguard
of due process connoting, at the very least, an impartial tribunal,"
disqualified the judge.
Q. Petitioner accused had been convicted of arson by respondent
judge who had attributed to the accused the desire to destroy evidence
of altercation as the motive for arson. The same judge is now trying the
accused for the same malversation. Should the judge disqualify himself?
A Yes. Ignacio v. Villaluz, 90 SCRA 16 (L-37527, May 5, 1979).
Sec. 17 ART. Ill - BILL OF RIGHTS 141
Q. In his decision of conviction, the trial judge expressed his
indignation and revulsion at the monstrosity of the offense committed.
Accused claimed that the language of the decision manifested prejudice
and bias on the part of the judge. Decide.
A. Standing alone, such statements of the judge do not prove bias
in the conduct of the trial. In the absence of evidence that in fact bias
characterized the conduct of the trial, the claim of partiality on the part
of the judge cannot stand. People v. Regala and Flores, L-23693, April
27,1982.
Q. Where a judge conducted preliminary investigation and made a
finding of probable cause, must he for that reason be disqualified from
trying the case?
A. No, in the absence of evidence of partiality. People v.
Sendaydiego, L-33252,33254,20 January 1978 (81 SCRA 120).
Q. Appellant contends that the lack of impartiality of the judge
was shown by the fact that he intervened in the cross- examination.
Decide.
A. "We have had occasion to hold that it is not only the right but
oft-times the duty of a trial judge to examine witnesses when it appears
necessary for the elucidation of the record. Under the system of legal
procedure in vogue in this jurisdiction, where the trial court is judge of
both the law and the facts, it is oft-times expedient or necessary in the
due and faithful administration of justice for the presiding judge... to
reexamine a witness in order that his judgment when rendered may
rest upon a full and clear understanding of the facts." People v. Manalo,
148 SCRA 98,104-105 (1987), quoting U.S. vs. Lim Tiu, 31 Phil. 504, 506
(1915).
Right to a public trial
Q. When is a trial "public?"
A. It is public when attendance is open to all irrespective of
relationship to defendants. However, when the evidence to
be presented may be characterized as "offensive to decency
or public morals," the proceeding may be limited to Mends,
relatives, and counsel. Garcia v. Domingo, L-30104, July 25,
1973.
Q. What is the purpose of the guarantee of a public trial?
A. The purpose of this guarantee is to serve "as a safeguard
against any attempt to employ our courts as instruments of
persecution. The knowledge that every criminal trial is subject
142 THE 1987 PHILIPPINE CONSTITUTION: Sec. 13
A COMPREHENSIVE REVIEWER
to contemporaneous review in the forum of public opinion is an
effective restraint on possible abuse of judicial power." Garcia v.
Domingo, supra.
Q. On mandatory review of a death sentence, the defense is
raised (for the first time) that the right to a public trial was denied
because arraignment and hearing were not in court but in the Bilibid
Prison. This was done for security reasons. Is the defense valid?
A. No. (1) The public was not excluded; (2) the accused was not
prejudiced; (3) the accused did not object during trial. People v. Tampus,
L-44690, March 28,1980.
Right to meet witness face to face
Q. What is the purpose of the right of confrontation?
A. The right has a two-fold purpose: (1) primarily, to afford the accused an
opportunity to test the testimony of the witness by cross-examination,
and (2) secondarily, to allow the judge to observe the deportation of the
witness.
Q. A witness in a criminal prosecution testified at the preliminary
investigation and was extensively cross-examined by the defense.
When trial came, the witness could not be found in spite of the
combined efforts of national and local law enforcement agencies. May
the transcripts of the witness' testimony at the preliminary investigation
be admitted in evidence?
A. Yes , since admission will be for the same criminal case and
extensive opportunity for cross-examination was already given, and the
witness is not merely refusing to testify but is actually missing. People v.
Villaluz, G.R. No. 33459, October 20,1983.
Q. May extrajudicial statements of an accused implicating another
be used against the latter even if not repeated in open court?
A. No, because that would violate the right of confrontation.
People v. de la Cruz, G.R. No. 33030, August 25,1983.
Q. May an affidavit executed by a witness be admitted in
evidence even if the witness is not produced in court?
A. No, because that would violate the right of confrontation.
People v. Ramos, G.R. No. 59318, May 16,1983.
Q. What are the principal exceptions to the right of confrontation?
A. (1) The admissibility of "dying declarations." (2) Trial in
absentia under Section 14(2).
.21 ART. IH - BILL OF RIGHTS 143
Q. Testimony of witnesses at the preliminary investigation was
made part of the evidence of the prosecution. This testimony had been
made in the presence of accused and counsel and was admitted subject
to the right of defense to recall witnesses at trial for cross- examination,
which defense did. Was there violation of right of confrontation?
A. No. People v. Liwanag (Linda Bie), L-27683, 19 October
1976.
Q. In a prosecution for parricide, after a principal witness finished
his direct testimony, the defense immediately proceeded with the
cross-examination. Due to lack of material time, however, the
cross-examination was not finished and a date was set for continuing
the cross-examination. Before the appointed date, however, the
witness was shot dead by police officers while attempting to escape
from prison. On motion of the defense, the trial judge excluded the
entire testimony of the witness. Was the exclusion proper?
A. Failure to complete the cross-examination was the fault neither
of the defense nor of the prosecution; not of the defense, because he
did proceed with the cross-examination to the extent that there was
time; not to the prosecution, because it was not the state's fault that the
witness should die. In such a situation, the rule is that so much of the
testimony as has already been covered by cross- examination should be
admissible in evidence. People v. Seneris, 99 SCRA 92 (L-48883, August
6,1980).
Q. Where after repeated subpoenas (but not personally served) a
witness in a criminal case fails to appear, may his testimony at
preliminary investigation be admitted instead if such testimony was
made in the presence of accused and subjected to cross-examination?
A. Not under the circumstances. Exceptions found in Section 47,
Rule 130 must be strictly construed because of the Bill of Rights
provision. Here, there was no showing that if was impossible to produce
the witness. Toledo, Jr. v. People and Judge Kapunan, Jr., L-36603, 30
September 1978 (also Tan v. Court of Appeals, L-22793, May 26,1967,
20 SCRA 54).
Q. Is the right of confrontation available in preliminary
investigation?
A. No. It is a right available during trial which begins only upon
arraignment. Dequito v. Arellano, 81 Phil. 128 (1948).
NOTE: "From Section 5 of Rule 112 it is clear that unlike in the
preliminary investigation proper, an accused is not entitled as a matter
of right to be present during the preliminary examination nor to
cross-examine the witnesses presented against him before
144 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
his arrest, the purpose of said examination being merely determine
whether or not there is sufficient reason to issue a warrant of arrest.
(The provision) commanding the determination of probable cause prior
to the issuance of a warrant of arrest, requires no notice to an accused.
A preliminary examination is generally a proceeding ex parte in which
the person charged has no right to participate or to be present."
Marinas v. Siochi, 104 SCRA 423, 437 (L-25707 & 25753-4, May
14,1981).
Q. Must an informant who led the police to the arrest of the
accused be presented for cross examination?
. ,-n n A. No. There is no right of confrontation against informants who
are not witnesses.
Compulsory process
Q. Compare the right to compulsory process in the 1935 Constitution with that
in the 1973 and 1987 versions.
A. The 1935 version speaks of the right to compulsory process "to secure the
attendance of witnesses in his behalf" whereas the 1973 and 1987
versions add the right "to have compulsory process to secure... the
production of evidence in his behalf."
Q. Relying on the new provision of the 1973 Constitution which
grants the right to have compulsory process to secure the production of
evidence, petitioners asked the lower court for leave to serve written
interrogatories on the physician who had attended to their wounds but
who had already moved to the United States. Denied this privilege by
the lower court, they filed a petition for certiorari to reverse the lower
court's decision.
A. Since this is a certiorari petition, the availability of the remedy
must be premised on a showing of arbitrary, capricious, and ' Whimsical
exercise power. This is not evident. The fact of their having been treated
by a doctor can be testified to by other witnesses; the medical
certificate as to the alleged wounds could be produced to show
maltreatment; the length of stay in the hospital can be verified from
records.
"In the light of what has been stated, it becomes obvious why as
..of now, there is no need to make a definite pronouncement on the
scope of the expanded concept of the constitutional right to secure not
only the attendance of witnesses but also the production of evidence."
Fajardo v. Garcia, 98 SCRA 514,520 (L-38675, July 2,1980).
Q. The accused wanted X to testify on his behalf and a subpoena
was issued for this purpose. Instead of taking effective steps,
Sec. 17 ART. Ill - BILL OF RIGHTS 145
however, to have X brought to court, the judge gave the responsibility
for X's attendance to the defense, expressly stating that if the defense
was not able to bring X to the court, X's testimony would be dispensed
with. Was this proper?
A. Considering that this case involved a capital offense, the court
acted precipitously in not having the witness brought to court, by
ordering her arrest if necessary. People v. Bardaje, 99 SCRA 388, 402-4
(L-29271, August 29, 1980). (NOTE: Should the result have been
different if this had not been a capital case?)
NOTE: In Webb v. de Leon, G.R. No. 121234, August 23,1995, the
Court ruled that, since a preliminary investigation can result in arrest and
therefore in a deprivation of liberty, the accused should not be denied
access to evidence favorable to him, in this case an earlier version of an
affidavit made by a witness for the prosecution.
Waiver of rights
Q. What is the presumption in the matter of waiver of a constitutional right?
A. "Whenever a protection given by the Constitution is waived by the person
entitled to that protection, the presumption is always against the waiver.
Consequently, the prosecution must prove with strongly convincing
evidence to the satisfaction of this Court that indeed the accused willingly
and voluntarily submitted his confession and knowingly and deliberately
manifested that he was not interested in having a lawyer assist him
during the taking of that confession." People v. Jara, 144 SCRA 516,531
(1986).
SEC. 15. THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL
NOT BE SUSPENDED EXCEPT IN CASES OF INVASION OR REBELLION
WHEN
THE PUBLIC SAFETY REQUIRES IT. "J
Q. Define a writ of habeas corpus.
A. It is defined as a writ directed to the person detaining another, commanding
him to produce the body of the prisoner at a designated time and place,
with the day and cause of his caption and detention, to do, submit to,
and receive whatever the court or judge awarding the writ shall consider
in that behalf. (Hence, an essential requisite for the availability of the writ
is actual deprivation of personal liberty).
146 THE 1987 PHILIPPINE CONSTITUTION: Sec. 13
A COMPREHENSIVE REVIEWER
Q. What is the "privilege of the writ of habeas corpus?"
A. It is the right to have an immediate determination of the legality of the
deprivation of physical liberty.
Q. What may be suspended, the writ or the privilege of the writ?
A. The writ is never suspended. It always issues as a matter of course. What is
suspended is the privilege of the writ, i.e., once the officer making the
return shows to the court that the person detained is being detained for
an offense covered by the suspension, the court may not enquire any
further.
Q. Who may suspend the privilege?
A. The President.
Q. When may the privilege be suspended?
A . " . . . in cases of invasion or rebellion when the public safety requires it."
Article III, Section 15. Hence, for the validity of the suspension, two
requisites must concur: (1) the existence of actual invasion or rebellion;
(2) public safety requires the suspension.
The new Constitution has removed "insurrection" and "imminent
danger" of invasion, insurrection, or rebellion as grounds for the
suspension.
Q. What are the limitations on the power to suspend the privilege?
A. See Article VII, Section 18.
Q. Does the suspension of the privilege also suspend the right
to bail?
JV
qs A No. Art. Ill, Sect. 13.
Q. Released temporarily, petitioner was nevertheless subjected to
certain conditions limiting his movements. Is habeas corpus still a
proper remedy?
A Yes. "A release that renders a petition for a writ of habeas
corpus moot and academic must be one which is free from involuntary
restraints." Moncupa v. Enrile, 141 SCRA 233,238 (1986).
Q. (1) Respondents' defense in a petition for habeas corpus is that
they released the detainees for whom the petition was filed. However,
the allegation of release is disputed by petitioners, and it is not denied
that the detainees have not been seen or heard from
Sec. 17 ART. Ill - BILL OF RIGHTS 147
since their supposed release. Do petitioners have the burden in law of
proving that detainees are still detained by respondents or does the
burden shift to respondents of proving that they did release the
detainees?
(2) If respondents have the burden of proving, have they
discharged that burden in this case?
(3) If respondents have not satisfied that burden, what relief
may the Court grant petitioners?
A. (1) Where there are grounds for grave doubts about the alleged
release, particularly where the standard and prescribed procedure in
effecting release has not been followed, the burden of proof falls on the
respondents. Release is an affirmative defense, like self-defense, and
each party must prove his affirmative allegation.
(2) The evidence needs further study. The Court is not a trier of
facts.
(3) The case must be referred to the Commission on Human
Rights. Dizon v. Eduardo, 158 SCRA 470 (1988).
SEC. 16. ALL PERSONS SHALL HAVE THE RIGHT TO A SPEEDY
DISPOSITION OF THEIR CASES BEFORE ALL JUDICIAL, QUASI-JUDICIAL,
OR
ADMINISTRATIVE BODIES.
Q. Compare the right guaranteed by this provision with the right to speedy
trial in section 14.
A. Speedy trial in section 14 covers only the trial phase of criminal cases,
whereas section 16 covers all phases of any judicial, quasi-judicial or
administrative proceedings.
Q. Explain the concept of "speedy disposition of cases."
A. The concept of "speedy disposition of cases," like "speedy trial," is a relative
term and must necessarily be a flexible concept. In the determination of
whether or not the right has been violated, the factors that may be
considered and balanced are length of delay, reason for the delay,
assertion of the right or failure to assert it, and prejudice caused by the
delay. Caballero v. Alfonso, Jr., 153 SCRA 153 (1987).
Q. What remedy does a person have if there has been unreasonable delay in
the resolution of a case?
A. Dismissal through mandamus. Roque v. Ombudsman, G.R. No. 129978,
May 12,1999. NOTE: In Carillo, et al. v. Ombudsman,
148 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
G.R. No. 109271, March 14, 2000, the Court recognized that "the ever
increasing caseload of courts has affected the speedy disposition of
cases pending before the Sandiganbayan."
SEC. 17. No PERSON SHALL BE COMPELLED TO BE A WITNESS
AGAINST HIMSELF.
Q. What is the purpose of the guarantee against self-incrimination?
A. It was established on the grounds of public policy and humanity: Of policy,
because, if the party were required to testify, it would place the witness
under the strongest temptation to commit peijuiy; and of humanity,
because it would prevent the extorting of confession by duress. U.S. v.
Navarro, 3 Phil. 143 (1904).
Q. When is a question incriminating?
A. Chief Justice Marshall explained that usually a crime or a criminal act may
contain two or more elements and that a question would have a
tendency to incriminate, even if it tends to elicit only one of said
elements. The right thus, includes a right to refuse to testify to a fact
which would be a necessary link in a chain of evidence to prove the
commission of a crime by a witness. Isabela Sugar Co. v. Macadaeg, 98
Phil. 995 (1953); Fernando v. Maglanoc, 95 Phil. 431 (1954).
Q. Is subjection to physical examination covered by the self- incrimination
clause?
A. It was held early in Philippine jurisprudence that what is prohibited by the
constitutional guarantee is the use of physical or moral compulsion to
extort communication from ithe witness, not an inclusion of his body in
evidence, when it may be material. Thus, substance emitting from the
body of the defendant was received as evidence in a prosecution for
acts of lasciviousness. U.S. v. Tan Teng, 23 Phil. 145, 150 (1912).
Morphine forced out of the mouth of the accused was received. U.S. v.
Ong Siu Hong, 36 Phil. 735 (1917). An order by the judge for the witness
to put on a pair of pants for size was allowed. People v. Otadora, 86 Phil.
244 (1950). And since, according to the Court, the kernel of the
privilege" was the prohibition of "testimonial compulsion," the Court
was willing to compel a woman accused of adultery to submit to the
indignity of being tested for pregnancy. Villaflor v. Summers, 41 Phil. 62,
Sec. 17 ART. Ill - BILL OF RIGHTS 149
68 (1920). Similarly, the taking of pictures of an accused even without
the assistance of counsel, being a purely mechanical act, is not a violation
of his constitutional right against self- incrimination. People v. Gallarde,
G.R. No. 133025, February 17, 2000.
Q. Accused argues that the admission as evidence of the victim's wallet
together with its contents, viz., the victim's residence certificate, ID card
and bunch of keys, violate his right against self-incrimination. Decide.
A. The right against self-incrimination applies only to testimonial compulsion.
"It does not apply to the instant case where the evidence sought to be
excluded is not an incriminating statement but an object evidence."
People v. Malimit, G.R. No. 109775, November 14,1996, 264 SCRA
167,176.
Q. May a person be compelled to produce a sample of his handwriting to be
used as evidence in a prosecution against him?
A. No. The Court said in Beltran v. Samson, 50 Phil. 570 (1929):
. . . writing is something more than moving the body, or the hand,
or the fingers; writing is not a purely mechanical act, because it requires
the application of the intelligence and attention ...
We say that, for the purpose of the constitutional privilege, there
is a similarity between one who is compelled to produce a document,
and one who is compelled to furnish a specimen of his handwriting, for
in both cases, the witness is required to furnish evidence against himself.
And we say that the present case is more serious . . . because here
the witness is compelled to write and create, by means of the act of
writing, evidence which does not exist.
Q. After being arrested by NBI agents for pilferage of maiHiiatter in the post
office, the petitioner and his companions'were asked to affix their
signatures on the envelopes of the letters, which constitute the corpus
delicti. Appealing his conviction of qualified theft by the Sandiganbayan,
the petitioner invokes the Beltran v. Samson, 53 Phil. 570 (1929) ruling in
arguing that the signing of his name was not a mere mechanical act but
one which required the use of intelligence and therefore constitutes
self-incrimination. Decide.
A. "To be sure, the use of specimen handwriting in Beltran is different form the
use of petitioner's signature in this case.
150 THE 1987 PHILIPPINE CONSTITUTION: Sec. 13
A COMPREHENSIVE REVIEWER
In that case, the purpose was to show that the specimen handwriting
matched the handwriting in the document alleged to have been
falsified and thereby show that the accused was the author of the crime
(falsification) while in this case the purpose for securing the signature of
petitioner on the envelopes was merely to authenticate the envelopes
as the one seized from him and [his co-accused]." Marcelo v.
Sandiganbayan (First Division.), G.R. No. 109242, January 26, 1999.
(QUERY: But does not the signature signify owning to the possession of
pilfered materials?)
Q. May a person be compelled to produce private books and papers to be
used against him?
A. Compulsory production of private books and papers of the owner is
compelling him to be a witness against himself. Boyd v. United States,
116 U.S. 616 (1886).
Q. What "persons" are protected by the self-incrimination clause?
A. Only natural persons. Thus, a corporation may be compelled to submit to
the visitorial powers of the State even if this will result in disclosure of
criminal acts of the corporation. Hale v. Henkel, 201 U.S. 43 (1906);
Wilson v. United States, 221 U.S. 361 (1911).
Q. May a corporate officer prevent the production of corporate papers on the
ground that they may incriminate him personally?
A. No. That would not be self-incrimination but incrimination by the
corporation. Hale v. Henkel, supra.
Q. Are all personal papers protected by the self-incrimination
glause?
sr* A. No. That the self-incrimination clause protects the private papers of
a natural individual is not without exception. The case of Shapiro v.
United States, 335 U.S. 1 (1948), illustrates this exception. The case
arose out of a prosecution for violation of regulations made under the
Emergency Price Control Act of 1942. When defendant's records, which
he was required to keep by the Office of Price Administration, were
ordered produced defendant claimed protection by the constitutional
privilege. The High Tribunal ruled that "the privilege which exists as to
private papers, cannot be maintained in relation to 'records required by
law to be kept in order that there may be suitable information of
transaction which are the appropriate subjects of governmental
regulation and the enforcement of restrictions validly established.'" Id.
at 33.
Sec. 17 ART. Ill - BILL OF RIGHTS 166
Q. Can government registration requirements violate the
self-incrimination clause?
A. In more recent cases, the United States Supreme Court has
struck down certain registration requirements that presented real and
appreciable risks of self-incrimination. These involved statutes directed
at inherently suspect groups in areas permeated by criminal statutes, a
circumstance which laid the subjects open to real risk of
self-incrimination. Albertson v. Subversive Activities Control Board, 382
U.S. 70 (1965) ("Communist") Marchetti v. United States, 390 U.S. 39
(1968) ("gamblers"); Grosso v. United States, 390 U.S. 62 (1968)
("gamblers"); Haynes v. United States, 390 U.S. 85 (1968) ("illegal
firearms"); Leary v. United States, 395 U.S. 6 (1969) ("drugs"}. JBut see
California v. Byers, 402 U.S. 424 (1971) ("hit-and-run statute").
Q. In what proceedings may the right against self-incrimination be asserted?
A. In any judicial or administrative proceeding or in any official government
enquiry.
Q. At what stage of an enquiry may the right against self-incrim- ination be
asserted?
A. A person who is the accused in a criminal case may assert the right from the
moment he is asked to testify, i.e., an accused has an absolute right to be
silent; a person who is a witness but not the accused, may assert the
right only when the incriminating question is asked.
Q. Petitioner was a defendant in a civil case for the annulment of the provincial
budget, the reimbursement of disbursements already made, and the
payment of damages in the amount equivalent to the amount already
disbursed. When petitioner was called by the plaintiff to be a witness in
the annulment case, petitioner objected on the ground of
self-incrimination. The judge, however, ruled that since the case was civil
in character, the time to raise the right against self-incrimination was
when the incriminating questions were asked and not before. Decide.
A. This is a civil case; the petitioner must wait until the incriminating question is
asked. Bagadiong v. Gonzales, 94 SCRA 906 (December 28,1979).
Q. Is the right against self-incrimination of an "accused" available in
administrative hearings?
152 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
A. Yes, if, because of the nature of the penally that may be imposed by the
administrative body, the hearing partakes of the nature of a criminal
proceeding. Cabal v. Kapunan, Jr., L-19052, December 29, 1962
("forfeiture of property under Anti-Graft Law"); Pascual Jr. v. Board of
Medical Examiners, L-25018, May 16,1969 ("revocation of license to
practice medicine").
Q. May a government officer whose office is under investigation
refuse to testify when cited as witness in connection with a factfinding
investigation of anomalies in the City Government with the object of
filing corresponding charges?
A No, because the officer is not yet facing any administrative
charge. Evangelista v. Jarencio, 68 SCRA 99 (November 29, 1975).
(Dissent: Yes, because citing him as a witness under the circumstances is
a mere transparent expedient to circumvent the constitutional
inhibition.)
SEC. 18. (1) No PERSON SHALL BE DETAINED SOLELY BY REASON OF HIS
POLITICAL
BELIEFS AND ASPIRATIONS.
(2) NO INVOLUNTARY SERVITUDE IN ANY FORM SHALL EXIST EXCEPT AS
A PUNISHMENT
FOR A CRIME WHEREOF THE PARTY SHALL HAVE BEEN DULY
CONVICTED.
Q. May the State hold "political prisoners?"
A. "No person shall be detained solely by reason of his political beliefs and
aspirations."
Q. What is involuntary servitude?
A. It is every condition of enforced or compulsory service of one to another no
matter under what form such servitude may be disguised. Rubi v.
Provincial Board, 39 Phil. 660 (1919).
Q. • What are some exceptions to the rule against involuntary servitude?
A. (1) Involuntary servitude may be imposed as a punishment for a crime
whereof the party shall have been duly ,. convicted. Art. Ill, Sec. 18(2).
(2) In the interest of national defense all citizens may be compelled
by law to render personal military or civil service. Art. II, Sec. 4.
(3) A return to work order. "So imperative is the order in fact that it is
not even considered violative of the right against
Sec. 17 ART. Ill - BILL OF RIGHTS 153
involuntary servitude, as this Court held in Kaisahan ng Mga
Manggagawa sa Kahoy v. Gotamco Sawmills [80 Phil. 521]. The
worker can of course give up his work . . . if he does not want to
obey the order...; but the order must be obeyed if he wants to
retain his work even if his inclination is to strike." Sarmiento v.
Tuico, 162SCRA 676,685 (1988).
Q. May a person, after he has been separated from the office of
court stenographer, be compelled to transcribe his court stenographic
notes under pain of contempt without violating the prohibition' against
involuntary servitude?
A. Yes. Obiter dictum in Aclaracion v. Gatmaitan, 64 SCRA 131
(May 26,1975).
SEC. 19. (1) EXCESSIVE FINES SHALL NOT BE IMPOSED, NOR CRUEL,
DEGRADING OR INHUMAN PUNISHMENT INFLICTED. NEITHER SHALL
DEATH PENALTY BE
IMPOSED, UNLESS, FOR COMPELLING REASONS INVOLVING HEINOUS
CRIMES, THE CONGRESS
HEREAFTER PROVIDES FOR IT. ANY DEATH PENALTY ALREADY IMPOSED
SHALL BE REDUCED TO
RECLUSION PERPETUA.
(2) THE EMPLOYMENT OF PHYSICAL, PSYCHOLOGICAL, OR DEGRADING
PUNISHMENT
AGAINST ANY PRISONER OR DETAINEE, OR THE USE OF SUBSTANDARD
OR INADEQUATE PENAL
FACILITIES UNDER SUBHUMAN CONDITIONS SHALL BE DEALT WITH BY
LAW.
Q. When is a penalty "cruel, degrading or inhuman?"
A. It takes more than merely being harsh, excessive, out of proportion, or
severe for a penalty to be obnoxious to the Constitution. "The fact that
the punishment authorized by the statute is severe does not make it
cruel and unusual." Expressed in other terms, it has been held that to
come under thS ban, the punishment must be "flagrantly and plainly
oppressive," "wholly disproportionate to the nature of the offense as to
shock the moral sense of the community," People v. Estoistaf 93 Phil.
647 (1953) or when they involve torture or lingering death. People v.
Puda, 133 SCRA 1 (October 31,1984). The following may be used as
guides for determining whether a punishment is "cruel and unusual:" (1)
A punishment must not be so severe as to be degrading to the dignity of
human beings. (2) It must not be applied arbitrarily. (3) It must not be
unacceptable to contemporary society. (4) It must not be excessive, i.e.,
it
154 THE 1987 PHILIPPINE CONSTITUTION: Sec. 13
A COMPREHENSIVE REVIEWER
must serve a penal purpose more effectively than a less severe
punishment would. Brennan concurring in Furman v. Georgia, 408 U.S.
238 (1972).
NOTE The old Constitution used the expression "cruel and
unusual." The new Constitution drops the word "unusual," in order to
allow for development of penology, and uses instead "degrading and
inhuman" in order to emphasize that what is at stake is the dignity of
the person.)
Q. Why did the new Constitution abolish the death penalty?
A. SOT various reasons: (1) it inflicts traumatic pain not just on the convict but
also on the family, even if the penalty is not carried out; (2) there is no
convincing evidence that it acts effectively as a deterrent of serious
crime; (3) penology favors reformative rather than vindictive penalties;
(4) life is too precious a gift to be placed at the discretion of a human
judge; (5) the law itself, by imposing so many safeguards before a death
penalty is carried out, manifests a reluctance to impose the death
penalty.
Q. What happens to death penalty already imposed?
A. It is reduced to reclusion perpetua.
Q. Under Article 248 of the Revised Penal Code the penalty for
murder was reclusion temporal in its mavimiim period to death. In
effect this penalty consisted of three grades: (1) reclusion temporal in its
maximum, (2) reclusion perpetua, (3) death. What is the effect of
Section 19(1) on this?
A. The effect is that the penalty is reduced to only two grades, 1
and 2. This conclusion is reached on the reasoning that the language of
the provision does not abolish the death penalty but merely prohibits
,$he imposition of death. (This conclusion was first reached in People J$:
Gavarra, 155 SCRA 327. The court however departed from this in
People v. Masangkay, 155 SCRA 113 and People v. Atencio, 156 SCRA
242, and People v. Intino, G.R. No. 69934, September 26,1988, which
divided the remaining two grades into three new grades.) People v.
Munoz, G.R. No. 38968-70, February 9,1989; People v.dela Cruz, 216
SCRA 476 (1992).
Q. Now that the Constitution has abolished the death penalty, may the
legislature restore it in the future?
A. Yes, if it finds "compelling reasons involving heinous crimes." Conversely,
Congress may also abolish the death penalty even after it has
reimposed it.
Sec. 17 ART. Ill - BILL OF RIGHTS 155
Q. Is the power of Congress to re-impose the death penalty subsumed under
its plenary legislative power?
A. No, because "it is subject to a clear showing of 'compelling reasons involving
heinous crimes."' People v. Echegaray, G.R. No. 117472, February
7,1997, 267 SCRA 682, 714.
Q. What does the constitutional exercise of the Congress' limited power to
re-impose the death penalty entail?
A. It entails the following: "(1) that Congress define or describe what is meant
by heinous crimes; (2) that Congress specify and penalize by death, only
crimes that qualify as heinous in accordance with the definition or
description set in the death penalty bill and/or designate crimes
punishable by reclusion perpetua to death in which latter case, death
can only be imposed upon the attendance of circumstances duly proven
in court that characterize the crime to be heinous in accordance with
the definition or description set in the death penalty bill; and (3) that
Congress, in enacting this death penally bill be singularly motivated by
'compelling reasons involving heinous crimes.'" People v. Echegaray,
G.R. No. 117472, February 7, 1997, 267 SCRA 682, 715.
Q. What are "heinous crimes?"
A. R.A. No. 7659 ("Death Penalty Law;" December 31, 1993) provides that
crimes are heinous "for being grievous, odious, and hateful offenses and
which, by reason of their inherent or manifest wickedness, viciousness,
atrocity and perversity are repugnant and outrageous to the common
standards and norms of decency and morality in a just, civilized and
ordered society." The Court finds this definition or descriptions "to be a
sufficient criterion of what is to be considered a heinous crime." People
v. Echegaray, G.R. No. 117472, February 7, 1997, 267 SCRA 682, 715.
Q. In order for a death penalty bill to be valid must it positively be proved that
death penalty is a true deterrent and require that death penalty be the
last resort?
A. No. "Nothingin [Article III, Section 19(1)] imposes a requirement that for a
death penally bill to be valid, a positive manifestation in the form of
higher incidence of crime should first be perceived and statistically
proven following the suspension of the death
156 THE 1987 PHILIPPINE CONSTITUTION: Sec. 13
A COMPREHENSIVE REVIEWER
penalty. Neither does the said provision require that the death penalty
be resorted to as a last recourse when all other criminal reforms have
failed to abate criminality in society." People v. Echegaray, G.R. No.
117472, February 7,1997, 267 SCRA 682, 725.
Q. Are there instances when the death penalty will not be imposed?
A. Yes. Art. 47 of the Revised Penal Code says: "The death penalty shall be
imposed in all cases in which it must be imposed under existing laws,
except when the guilty person is below eighteen (18) years of age at the
time of the commission of the crime or is more than seventy (70) years
of age or when upon appeal or automatic review of the case bv the
Supreme Court, the required majority vote is not obtained for the
imposition of the death penalty shall be reclusion perpetual People v.
Roque, G.R. No. 130659 & 144002, August 14, 2002 and People v.
Purazo, G.R. No. 133189, May 5, 2003 used this provision as occasion
for reducing the penalty to reclusion perpetua.
Q. When Congress characterizes a crime as "heinous" is such characterization
conclusive on the court?
A. In People v. Purazo, G.R. No. 133189, May 5, 2003, Justice Vitug answered
this question thus: "Section 19 of the Philippine Bill of Rights implicitly
empowers Congress to reinstate the death penalty but only if such
re-imposition is a) for compelling reasons and b) confined to heinous
crimes. Constitutionalists Fr. Joaquin Bernas asks: Should not congress
instead preserve judicial discretion to all capital offenses, which, even in
the words of this Court (in Echegaray), are equally heinous? Bernas
advances that legislative facts are different from judicial facts, the
former being of a more limited scope since the legislature, in
considering all facts relevant to enacting a piece of legislation, cannot be
expected to take full account of all possible situations. In contrast, a trial
court judge must point to judicial facts which establish a link between
the offense committed and the reality which the penal law envisions to
be deserving of the supreme penalty. Senator Arturo Tolentino during
the Senate deliberations for the enactment of Republic Act No. 7659,
arguing for an optional rather than a mandatory death penalty, has
indeed acknowledged that neither the legislative qualification or
designation of the crime as "heinous" nor the
Sec. 17 ART. Ill - BILL OF RIGHTS 157
imposition of the death penalty per se should be conclusive on the
judiciary, both matters being not solely legislative but likewise judicial in
concept and nature."
It is thus, submitted that the mandatory character of the death
penalty for heinous crimes prescribed and defined in Republic Act No.
7659 notwithstanding, the courts are not precluded, given mitigating
factors or conditions duly established in evidence, (a) from declaring the
crime charged to be, in fact, non-heinous in character, or (b) from
concluding that no compelling reasons exist to warrant the imposition of
the death penalty.
Q. Is the death penalty "cruel and unusual?"
A. The old (1973) Philippine Constitution, by recognizing the death penalty, in
that it made the imposition of the death penalty automatically
reviewable by the Supreme Court, Art. X, Section 5, implicitly admitted
that per se it is not cruel and unusual. See People v. Villctnueva, 128
SCRA 488 (April 2, 1984). Similarly, the new Constitution, by allowing the
possibility of its restoration, implicitly admits that it need not be cruel
and inhuman. However, the circumstances under which a specific law
may allow the death penalty may make it cruel and unusual under such
law. See Furman v. Georgia, supra.
Q. Is death by legal injection cruel and unusual punishment?
A. No. It is well-settled in jurisprudence that the death penalty per se is not a
cruel, degrading or inhuman punishment. Punishment is so if it involves
torture or a lingering death; but the punishment of death is not cruel,
within the meaning of that word as used in the constitution. It implies
there something inhuman and barbarous, something more than the
mere extinguishment of life. People v. Mercado, G.R. No. 116239,
November 29, 2000.
Q. Does the death penalty violate international law under the International
Covenant on Civil and Political Rights?
A. Article 6 of the Covenant enshrines the individual's right to life.
Nevertheless, Article 6(2) of the Covenant explicitly recognizes that
capital punishment is an allowable limitation on the right to life, subject
to the limitation that it be imposed for the
158 THE 1987 PHILIPPINE CONSTITUTION: Sec. 13
A COMPREHENSIVE REVIEWER
'most serious crimes.' Pursuant to Article 28 of the Covenant, a Human
Rights Committee was established and under Article 40 of the
Covenant, States Parties to the Covenant are required to submit an
initial report to the Committee on the measures they have adopted
which give effect to the rights recognized within the Covenant and on
the progress made on the enjoyment of those rights within one year of
its entry into force for the State Party concerned and thereafter, after
five years. On July 27,1982, the Human Rights Committee issued
General Comment No. 6 interpreting Article 6 of the Covenant stating
that '(while) it follows from Article 6(2) to (6) that State parties are not
obliged to abolish the death penalty totally, they are obliged to limit its
use and, in particular, to abolish it for other than the 'most serious
crimes.'
The Second Optional Protocol to the International Covenant on
Civil and Political Rights aiming at the Abolition of the Death Penalty was
adopted by the General Assembly on December 15,1989. The
Philippines neither signed nor ratified said document. Evidently,
petitioner's assertion of our obligation under the Second Optional
Protocol is misplaced." People v. Mercado, G.R. No. 116239, November
29,2000.
Q. Does the death penalty violate equal protection since it is most often used
against the poor?
A. This statement is too sweeping to merit further serious consideration.
Anyone, regardless of his economic status in life, may commit a crime.
While there may be perceived imbalances in the imposition of
penalties, there are adequate safeguards in the Constitution, the law,
and procedural rules to ensure due process and equal protection of the
law. People v. Mercado, G.R. No. 116239, November 29, 2000.
Q. What is the duty of the judge when an accused pleads guilty to a capital
offense?
A. He must not immediately impose the penalty but must first look into the
evidence to see if death is the proper penalty. People v. Vinuya, G.R. No.
125925, January 28,1999.
NOTE: Review of death sentences first by the Court of Appeals
and next by the Supreme Court is now automatic and mandatory. It
may not be waived by the court or by the
Sec. 17 ART. Ill - BILL OF RIGHTS 159
accused. People v. Lagua, G.R. No. 170565, January 31, 2006; People v.
Flores, G.R. No. 170565, January 31, 2006.
(But review of reclusion perpetua may be waived.) Rep. Act No.
9346 now disallows imposition of the death penalty.
Q. When is a fine "excessive?"
A. It is excessive when under any circumstance it is disproportionate to the
offense.
Q. Petitioner claims that under his conviction on twelve counts he
would be made to serve 92 years, a cruel and unusual punishment.
Decide.
A. Nonsense. By Article 70(4) R.P.C., petitioner would not be made
to serve more than three times the most severe penalty. Veniegas v.
People, G.R. No. 57601-06, July 30,1982.
Q. The Philippine Medical Association challenges the penalties
under the Generics Act ranging from a reprimand to a fine of not less
than P10,000 and the suspension of the physician's license to practice
his profession for one year. It is alleged that this violates the prohibition
against cruel and unusual punishments.
A. Penalties are required because laws must have teeth. The
penalties are no more objectionable than those that are imposed for
instance on misbehaving lawyers. Del Rosario v. Bengzon, G.R. No.
88265, December 21,1989.
Q. If a court finds a punishment attached to a law cruel, degrading or
inhuman, or a fine excessive, may a person be convicted under such
law?
A. No. Without a valid penalty, the law is not a penal law.
SEC. 20. No PERSON SHALL BE IMPRISONED FOR DEBT OR NONPAYMENT
OF A POLL
TAX.
Q. Explain the prohibition against imprisonment for debt.
A. The cases touching on the subject reveal that the constitutional prohibition,
stated in full, means this: No person may be imprisoned for debt in
virtue of an order in a civil proceeding, either as a substitute for
satisfaction of a debt or as a means of compelling satisfaction; but a
person may be imprisoned as a penalty for a crime arising from a
contractual debt and imposed in a proper criminal proceeding.
160 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. What is the meaning of "debt" in the provision?
A. It means any liability to pay money growing out of a contract, express or
implied.
Q. May a person be imprisoned for fraudulent debt?
A. Yes, but only if (1) the fraudulent debt constitutes a crime {e.g., estafa) and
(2) the debtor has been duly convicted. Otherwise, no.
Q. Does the conversion of the monetary indemnify, imposed as part of a
criminal penally, into subsidiary imprisonment violate the prohibition of
imprisonment for debt?
A. No. The obligation to indemnify was not ex contractu but ex delicto. Alejo v.
Judge Inserto, A.M. 1098 CFI, May 31,1976.
Q. B.P. 22, the anti-bouncing check law, is challenged on the
ground that it violates the prohibition of imprisonment for nonpayment
of contract. Decide.
A. The gravamen of the offense is not the non-payment of a debt
but the putting into circulation of a worthless check. Lozano v. Martinez,
146 SCRA 323 (1986).
Q. Section 13 of P.D. No. 115 says: "The failure of an entrustee to
turn over the proceeds of the sale of the goods, documents or
instruments covered by a trust receipt to the extent of the amount
owing to the entruster or as appears in the trust receipt or to return said
goods, documents or instruments if they were not sold or disposed of in
accordance with the terms of the trust receipt shall constitute the crime
of estafa ..Does this violate the prohibition of imprisonment for
debt?
A. With the promulgation of P.D. 115 there is no more doubt that
such violation constitutes estafa. Thus, imprisonment here is not for
non-payment of contractual obligation but for the criminal act. Lee v.
Judge Rodil, G.R. No. 80544, July 5,1989.
Q. What is a "poll tax?"
A. A poll tax can be understood as the cedula tax or residence tax. The
Constitution does not prohibit the cedula tax but it prohibits
imprisonment for non-payment of the cedula or residence tax.
A poll tax may also be understood as a tax the payment of which
is made a requirement for the exercise of the right of
Sec. 17 ART. Ill - BILL OF RIGHTS 161
suffrage. The imposition of a poll tax in this sense is prohibited by Article
V, Section 1, which disallows "literacy, property, or other substantive
requirementf for the exercise of suffrage.
SEC. 21. No PERSON SHALL BE TWICE PUT IN JEOPARDY OF
PUNISHMENT FOR THE SAME OFFENSE. IF AN ACT IS PUNISHED BY A
LAW
AND AN ORDINANCE, CONVICTION OR ACQUITTAL UNDER EITHER SHALL
CONSTITUTE A BAR TO ANOTHER PROSECUTION FOR THE SAME ACT.
Q. What are the requisites for a valid defense of double jeopardy?
A. Under present law, to raise the defense of double or second jeopardy, three
requisites must be shown: (1) a first jeopardy must have attached prior
to the second; (2) the first jeopardy must have terminated; (3) the
second jeopardy must be for the same offense as that in the first. These
three requisites provide a convenient division for the discussion of the
subject.
Q. When does jeopardy of punishment attach?
A. Jeopardy attaches (a) upon a good indictment, (b) before a competent
court, (c) after arraignment, (d) after plea. People v. Ylagan, 58 Phil. 851
(1933).
Attachment of jeopardy
Q. Accused filed a written manifestation and plea of not guilty while the
Military Commission was not in session. Did this place him in jeopardy of
conviction?
A. No. There was no valid plea because the Commission was not in session.
Jimenez v. Military Commission No. 34,102 SCRA 39 (L-54577, January
15,1981).
Q. A, after having pleaded guilty, is allowed to present evidence in mitigation.
The evidence he presents, however, amounts to complete self-defense
and the court acquits him. Prosecuted a second time for the same
offense, he pleads double jeopardy. Decide.
A. The defense of second jeopardy is not proper because the presentation of
evidence of complete self-defense amounted to SL withdrawal of his
original plea. Audi since no new plea was entered, there was no first
jeopardy. People v. Balisican, August 31,1966.
162 THE 1987 PHILIPPINE CONSTITUTION: Sec. 13
A COMPREHENSIVE REVIEWER
Q. Upon arraignment, accused pleaded not guilty and immediately moved to
quash the complaint on the ground that it charged no offense. Motion
was granted, and correctly. Subsequently, an amended complaint was
filed. Is there double jeopardy?
A. No, because the defective complaint did not place the accused in first
jeopardy, People v. Judge Consulta, L-41251, March 31, 1976.
Q. In the above case, suppose that the information was in fact valid, could the
case be refiled?
A. Yes, because the motion to quash on the ground alleged was a waiver of
the right against double jeopardy. Id.
Q. A, accused before a municipal court, moves for dismissal on the ground
that the offense is cognizable only by the CFI. Motion is granted and, as
a matter of fact, the offense is cognizable only by the CFI. When the case
is filed with the CFI, accused pleads second jeopardy. Decide.
A. The defense is not proper. Since the first court had no jurisdiction, the
accused was not in first jeopardy under the municipal court.
Q. A, accused before a municipal court, moves for dismissal on the ground
that the offense is cognizable only by the CFI. Motion is granted and, as
a matter of fact, the offense is cognizable only by the CFI. When the case
is filed with the CFI, accused pleads second jeopardy. Decide.
A. The defense is not proper. Since the first court had no jurisdiction, the
accused was not in first jeopardy under the municipal court.
Q. In a petition for early arraignment, for the purpose of being
able to leave for work outside the country, the accused waived his right
to the defense of double jeopardy should the charge against him be
amended from homicide to murder. The petition for early arraignment
was granted and, upon arraignment, the accused pleaded not guilty to
the charge of homicide. Subsequently the charge was amended to
murder. Upon his return, accused pleaded double jeopardy claiming
that the original charge of homicide was dismissed without his consent
when the new information for murder was filed. Is there double
jeopardy?
A. When accused waived the defense of double jeopardy, he had
not yet been arraigned. Hence, jeopardy had not yet attached
Sec. 17 ART. Ill - BILL OF RIGHTS 163
and consequently he had nothing to waive. The waiver had no legal
effect. Hence, the defense of double jeopardy was not proper. But since
accused pleaded only to the charge of homicide and was never
arraigned for murder, he can only be convicted for homicide. People v.
Ibasan, Sr., 129 SCRA 695 (June 22,1984).
Q. Is double jeopardy a proper defense where the accused had
been acquitted without trial but only after pre-trial where the
prosecution raised objections?
A. No. Jeopardy did not attach. The prosecution was denied a day
in court. Hence, the acquittal was rendered without jurisdiction. People
v. Judge Santiago, G.R. No. 80778, June 20,1989.
Termination of jeopardy
Q. How is first jeopardy "terminated" in a manner that satisfies the second
element of the defense of double jeopardy?
A. (1) By acquittal; (2) by final conviction; (3) by dismissal without express
consent of the accused; (4) by "dismissal" on the merits.
NOTE: "As a general rule, the dismissal or termination of the
case after arraignment and plea of the defendant to a valid
information shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or fhistration
thereof, or for any offense which necessarily includes or is
necessarily included in the complain or information (Section 9,
Rule 113). However, an appeal by the prosecution from the order
of dismissal (of the criminal case) by the trial court shall not
constitute double jeopardy if (1) the dismissal is made upon
motion, or with the express consent, of the defendant; (2) the
dismissal is not an acquittal or based upon consideration of the
evidence or of the merits of the case; and (3) the question to be
passed upon by the appellate court is purely legal so that should
the dismissal be found incorrect, the case would have to be
remanded to the court of origin for further proceedings, to
determine the guilt or innocence of the defendant." People v. City
of Manila, 154 SCRA 175 (1987), reiterating People v. Desalisa, et
al. 125 Phil 27 (1966); People v. Judge Villalon, G.R. No. 43659,
December 21,1990.
Q. A, is accused before a municipal court. After plea, the prosecution asks for
dismissal on the ground that the municipal court has no jurisdiction.
Accused opposes the motion but the judge dismisses the case for want
of jurisdiction. It turns out, however, that the municipal court had
jurisdiction. The case is
164 THE 1987 PHILIPPINE CONSTITUTION:
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refiled with the municipal court and the accused pleads double
jeopardy. Decide.
A. The defense is proper because the dismissal was without the express
consent of the accused.
Q. A is accused before a CFI. After innumerable unreasonable postponements
against the wishes of the accused, accused moves for dismissal for
denial of the right to a speedy trial. Dismissal is granted. May the case be
refiled?
A. No. Dismissal for denial of the right to a speedy trial is a dismissal on the
merits and amounts to an acquittal.
Q. After several postponements because of the unavailability of witnesses,
accused moved for the dismissal of the case on the ground of denial of
speedy trial. After the judge verbally dismissed the case and proceeded
to hear another case, the witness arrived. Upon explanation by the
prosecution, the judge resumed hearing the verbally dismissed case.
Double jeopardy?
A. No. The verbal dismissal is not final until written and signed by the judge.
Rivera, Jr. v. People, G.R. No. 93219, August 30, 1990.
Q. There were delays in the trial which were beyond the control of both
accused and prosecution. At a certain stage, the case was dismissed
with the consent of the accused. Later the case was reinstated. Was
there double jeopardy?
A. No. As stated, first, the delays were not unreasonable; hence, there was no
denial of the right to speedy trial. Second, the dismissal was with the
consent of the accused. Hence, the reinstatement did not violate the
right against double jeopardy. Almaria v. CA, G.R. No. 127772, March
22,2001.
Q. Upon the instance of the accused, the case was dismissed on the ground of
violation of the right to a speedy trial. Upon examination of the facts,
however, the court found that the delays were justifiable and so the
case was reinstated. Was there double jeopardy?
A. No. The evidence shows that there was no denial of the right to a speedy
trial and the dismissal was upon the instance of the accused. Almario v.
Court of Appeals, G.R. No. 127772, March 22,2001.
Sec. 17 ART. Ill - BILL OF RIGHTS 165
Q. After arraignment and a delay of more than four months, nothing was
happening at the trial. Accused moved for dismissal on the ground of
denial of the right to a speedy trial. A Justice of the Sandiganbayan
dismissed the case orally but did not put the dismissal in writing.
Accused pleaded double jeopardy when the case was restored. Decide.
A. There were valid reasons for the delay. Moreover, an oral and unwritten
dismissal is invalid. No double jeopardy. Jacob v. Sandiganbayan, G.R.
No. 162206, November 17,2010. But the state is given by the Rules 60
inextendible days to file certiorari in order to avoid violation of speedy
disposition. Labao v. Flores, et al, G.R. No. 187984, November 15, 2010.
Q. Accused was charged before the municipal court for serious
physical injuries. After trial, when both parties had rested their case, the
court, instead of rendering a decision on the merits, dismissed the case
"to give way to the filing of a complaint for frustrated murder* in the
Court of First Instance. When the case reached the Court of First
Instance, the CFI dismissed the case as being barred by the rules on
double jeopardy in the Rules of Court for having been previously
"dismissed or otherwise terminated without the express consent of the
defendant." Was there double jeopardy?
A. No. The dismissal contemplated by the Rules is one which
finally terminates and definitely disposes of a case. Here the dismissal by
the municipal court was precisely to give way to the filing of a proper
complaint. Moreover, in dismissing the case instead of rendering a
decision on the merits, as was his duty to do, the municipal judge
committed grave abuse of discretion. Hence, his order of dismissal was
invalid and did not terminate the case. People v. Mogol, 131 SCRA 296
(August 24,1984); but see the dissent of Makasiar, J.
Q. When the prosecution moved for the dismissal of the case, the
accused through counsel agreed explicitly. The judge dismissed the case.
In the afternoon the accused had second thoughts and filed a
manifestation objecting to the dismissal. The next day, the accused
moved for the reconsideration of the dismissal but the motion was
denied. When subsequently a new information was filed, the accused
pleaded double jeopardy. Proper?
A. No. The dismissal was not on the merits and was with the
consent of the accused. People v. Pilpa, L-30250, September 22,1977
(78 SCRA 81).
Q. Arraigned on 19 December 1977, petitioner pleaded not guilty.
On the day of trial, 25 January 1978, the Fiscal asked for postponement
to 22 February 1978 because of the absence of the accused. On 22
February 1978 the Fiscal asked for postponement
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A COMPREHENSIVE REVIEWER
to 28 March 1978. On 28 March 1978, the Fiscal did not appear. A
private prosecutor asked for postponement in order to give the Fiscal a
chance to appear. When the motion was denied, the accused asked for
dismissal of the case on the ground of denial of a speedy trial. The judge
dismissed the case on such ground and on the same day. On 8 May
1978 the judge set aside his dismissal and set the trial for 5 June
1978. Accused filed a motion for reconsideration alleging that the prior
dismissal was equivalent to acquittal and thus the reinstatement of the
case amounted to second jeopardy for the same offense. Decide.
A. The accused is correct. Salcedo v. Mendoza, 88 SCRA 811,
(L-49375, February 28,1979).
Q. Accused of grave coercion, the petitioner pleaded not guilty on
January 23,1979. After a number of delays caused either by the
complainant or the prosecution, trial was again set for August 16,
1979. Postponement again was requested because of alleged sickness
of complainant. The defense opposed postponement invoking the right
to a speedy trial. The judge "provisionally" dismissed the case because
the case had "been dragging all along and the accused [had been] ready
for the hearing." Later, the Fiscal moved to revive the case on the
ground that the dismissal was with the conformity of the accused. The
accused pleaded double jeopardy. Decide.
A. The defense of double jeopardy is proper. A dismissal on the
ground of denial of the right to a speedy trial amounts to an acquittal.
The use of the word "provisional" does not change the legal effect of
the dismissal. Esmena v. Pogoy, 102 SCRA 861, 866-7 (L-54110,
February 20,1981), citing Esguerra v. De la Costa, 66 Phil. 134 and
Gandicela v. Lutero, 88 Phil. 299.
NOTE: Note, however, that when the dismissal of the case
clearly constitutes abuse of discretion amounting to lack of
jurisdiction, the dismissal, even if made on the merits, is invalid
and is therefore no bar to a reinstatement of the case. People v.
Pablo, 98 SCRA 301 (L-37271, June 25, 1980). Here the judge
dismissed the case after arbitrarily denying prosecution's motion
for continuance.
Similarly, if the judgement of acquittal is void for having
been given without jurisdiction, the judgment cannot be a basis
for a plea of double jeopardy. People v. Court of Appeals, 101
SCRA 450,467 (L-54641, November 28,1980).
Q. Accused was charged with estafa before a Military
Commission. After the prosecution had presented evidence and on the
day the accused was to present evidence, one of his co-accused
presented a memorandum of the Secretary which had apparently been
made so he could study the case. After study the Secretary of National
Defense directing the withdrawal of the case from the
.21 ART. IH - BILL OF RIGHTS 167
Military Commission pursuant to P.D. No. 39. The directive of the
Secretary was apparently made so he could study the case. After the
study the Secretary withdrew his previous order and directed the
Commission to proceed with the case. Accused contended that the
previous withdrawal amounted to termination of the case and hence
the reinstatement of the case constituted double jeopardy. Decide.
A. Under military law, a decision of a military tribunal, be it of
acquittal or of conviction, or dismissal, is merely recommendatory and
subject to review by the convening authority, the review boards, and
the reviewing authority. A military commission acts merely as a
commissioner who takes the evidence and reports thereon with his
recommendation. Hence, in the instant case, the action of the Secretary
was merely a continuation of the proceeding before the Commission
and did not terminate the case. Flores v. Enrile, G.R. No. 38440, July
20,1982.
Q. Where the City Fiscal has conducted a preliminary investigation
and dismissed the case, may the city court conduct another preliminary
investigation without violating the right against double jeopardy?
A. Yes. An order of dismissal in a preliminary investigation does
not in any way terminate a case. As long as the crime has not yet
prescribed, the city court may conduct a preliminary investigation.
Tandoc v. Judge, G.R. No. 59241-44, July 5,1989.
Q. Can an order of dismissal of a criminal case upon motion of the
accused after arraignment for the failure of the prosecution to appear
on the first day of hearing be a bar to another prosecution for the same
offense?
A. Dismissal at the instance of the accused amounts to acquittal
and therefore becomes a bar to subsequent prosecution in instances
when the dismissal is premised on violation of the right of the accused
to a speedy trial. In the instant case, the judge dismissed the case on the
first date set for hearing. What he should have done was reset the case
for another day. Under the circumstances therefore there is no bar to
continuing the case. People v. Hon. Declaro, G.R. No. 64362, February
9,1989.
Q. Where the accused was arraigned, pleaded not guilty, and was
tried upon a valid and sufficient information but the case was dismissed
by the trial court on the ground that the information was not sufficient
and without the consent and not upon the motion of the accused, may
the case be reinstated?
A. Although the dismissal is a miscarriage of justice (because the
information was valid), the case may not be reinstated. People v. Judge
Laggui, G.R. No. 76262-63, March 16,1989.
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Sec. 10
Waiver or estoppel
Q. Upon motion of the defendant, the case was dismissed on the ground,
alleged by the defense, that the prosecution had failed to prove
territorial jurisdiction. When the prosecution appealed the dismissal,
the defendant pleaded double jeopardy. Decide.
A. Defendant's motion to dismiss for lack of jurisdiction constituted waiver of
the defense of double jeopardy. People v. Salico, 84 Phil. 722 (1949).
Q. A, prosecuted in a military court, assailed the jurisdiction of the court
martial. His contention was sustained, and when the case was
subsequently filed with a civil court he pleaded double jeopardy alleging
that the military court had jurisdiction. Decide.
A. Defendant is estopped from asserting the jurisdiction of the military court.
Q. After a not guilty plea and before the start of the trial, the
accused moved to dismiss the case on the ground that the facts alleged
in the information did not constitute an offense. Dismissal was granted.
The Supreme Court reversed. Upon reinstatement of the case, the
accused pleaded double jeopardy. Decide.
A No double jeopardy. The dismissal was not on the merits
(because no evidence had yet been presented) and it was with the
consent, upon the motion, of the accused. People v. Cuevo, 104 SCRA
312,320 (L-27607, May 7,1981). (NOTE: More properly, this is a case of
estoppel. The accused claimed the information did not allege facts
constituting an offense. Hence, he was saying he was not in jeopardy
under such information.)
Q. The accused was charged and duly arraigned for homicide with
the CFI. Subsequently and for the same act he was charged with
murder and arraigned before a Military Commission. He pleaded not
guilty. Later, pleading double jeopardy, the accused sought to prohibit
the Commission from trying his case. Proper?
A No. Since neither case has as yet been terminated, the defense
of double jeopardy is premature. Moreover, by pleading not guilty to
the second charge instead of moving to quash, the accused waived the
defense of double jeopardy. Silvestre v. Military Commission, G.R. No.
46366, March 8, 1978; Buscayno & Sison v. Military Commission, 109
SCRA 273 (1981).
Q. After several postponements, some on motion of the accused
others on that of the prosecution, the case, before trial could
Sec. 17 ART. Ill - BILL OF RIGHTS 169
start, was provisionally dismissed by agreement of the parties. Seven
years later, the case was refiled. The accused, pleading that the dismissal
was on the ground of denial of the right to a speedy trial, claimed double
jeopardy. Decide.
A. By consenting to the provisional dismissal, the accused waived
his right to the defense of double jeopardy. What he should have done
was to ask for immediate trial and, if the prosecution could not proceed,
ask for dismissal on the ground of denial of the right to speedy trial.
Moreover, the delay of seven years was not a delay of the trial because
the trial had not yet started. Andres v. Judge Cacdac, Jr., March 29,1982.
Same offense
Q. When is the second offense charged the same as the first offense?
A- In order to determine whether the two charges are identical one test used
is what is sometimes referred to as "the same evidence test:" Whether
the evidence needed in the one case will support a conviction in the
other. E.g., U.S. v. Tan Oco, 34 Phil. 772, 783 (1916). Commentators note
that this test was found to be correct only in a general sense arid, hence,
the Rules of Court have spelled it out more in detail in Section 9 of Rule
117. 4 MORAN, COMMENTS ON THE RULES OF COURT 213 (1963);
FRANCISCO, THE REVISED RULES OF COURT: CRIMINAL PROCEDURE
563 (1963). The test now is whether one offense is identical with the
other or whether it is an attempt or frustration of the other or whether
one offense necessarily includes or is necessarily included in the other.
What this test shows is that identity of offenses does not require
one-to-one correspondence between the facts and law involved in the
two charges. It is necessary, however, that one offense is completely
included in the other. Thus, while physical injury is not identical with
attempted homicide, for purposes of double jeopardy physical injury is
"the same" as attempted homicide (which alleges inflicted injury)
because physical injury is necessarily included in such attempted
homicide.
Q. X performs an act resulting in the complex crime of less serious physical
injuries and assault upon a person in authority. He is prosecuted for less
serious physical injuries, is convicted, and serves sentence. Subsequently
he is charged with assault upon a person in authority. Double jeopardy?
170 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
A. Yes. The constitutional meaning of "the same offense" includes "any
offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information." Tacas v.
People, L-37406, August 31,1976.
Q. Accused is charged under RPC 189, (1) for selling pumps to which he had
given the appearance of those of another's. Since there was no proof
that he had manufactured the pumps himself, he was acquitted.
However, he was ordered prosecuted under RPC 188, (2) for knowingly
selling goods with fraudulent trademark. He pleaded double jeopardy.
Decide.
A. The second information is for a different offense for which he could not
have been convicted under the first. Sy Y. Lim v. Court of Appeals and
Judge Caguioa, March 30, 1982. (The main opinion by De Castro, J. is
not a masterpiece of clarity. Read Aquino, J.'s opinion instead.)
Q. Convicted of physical injuries through reckless imprudence, accused was
subsequently charged with damage to property through the same act
of reckless imprudence, both under Article 365, R.P.C. Double jeopardy?
A. Yes. The essence of criminal negligence under Article 365 is the imprudent
or negligent act. Hence, the second jeopardy is for the same offense.
Buerano v. Court of Appeals, G.R. No. 30269, July 19,1982, citing People
v. Buan, 22 SCRA 1383 (March 29, 1968).
Q. To avail of the defense of double jeopardy must the second offense
charged in every case be the same as the first offense?
A. The second sentence of Section 22 says: "If an act is punished by a law and
an ordinance, conviction or acquittal under either shall constitute a bar
to another prosecution for the same act." Hence, in this case the
offenses need not be the same, provided, however, that they flow from
the same act. Yap v. Lutero, L-12669, April 30,1959.
The situation is different when one act violates two different
statutes or two different provisions of a statute. The rule in such a case
is that if the one act results in two distinct offenses, prosecution under
one is not a bar to prosecution under the other. The test "is not whether
the defendant has already been tried for the same act, but whether the
defendant
Sec. 17 ART. Ill - BILL OF RIGHTS 171
has already been put in jeopardy for the same offense." People v.
Cabrera, 43 Phil. 82, 97 (1922).
Q. Following a vehicular collision in August 2004, petitioner Jason Ivler
(petitioner) was charged before the Metropolitan Trial Court of Pasig
City, Branch 71 (MeTC), with two separate offenses: (1) Reckless
Imprudence Resulting in Slight Physical Injuries (Criminal Case No.
82367) for injuries sustained by respondent Evangeline L. Ponce
(respondent Ponce); and (2) Reckless Imprudence Resulting in Homicide
and Damage to Property (Criminal Case No. 82366) for the death of
respondent Ponce's husband Nestor C. Ponce and damage to the
spouses Ponce's vehicle. Petitioner posted bail for his temporary release
in both cases. On 7 September 2004, petitioner pleaded guilty to the
charge in Criminal Case No. 82367 and was meted out the penalty of
public censure. Invoking this conviction, petitioner moved to quash the
Information in Criminal Case No. 82366 for placing him in second
jeopardy for the same offense/ Decide.
A. The two charges against petitioner arose from Article 365 of the Penal
Code. The doctrine that reckless imprudence under Article 365 is a
single quasi-offense by itself and not merely a means to commit other
crimes such that conviction or acquittal of such quasi-offense bars
subsequent prosecution for the same quasi-offense, regardless of its
various resulting acts, undergirded this Court's unbroken chain of
jurisprudence on double jeopardy as applied to Article 365. The reason
for this consistent stance of extending the constitutional protection
under the Double Jeopardy Clause to quasi-offenses was best
articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a
subsequent prosecution for "serious physical injuries and damage to
property thru reckless imprudence" because of the accused's prior
acquittal of "slight physical injuries thru reckless imprudence," with both
charges grounded on the same act, the Court explained: "Reason and
precedent both coincide in that once convicted or acquitted of a specific
act of reckless imprudence, the accused may not be prosecuted again
for that same act. For the essence of the quasi offense of criminal
negligence under article 365 of the Revised Penal Code lies in the
execution of an imprudent or negligent act that, if intentionally done,
would be punishable as a felony. The law penalizes thus the negligent or
careless act, not the result thereof. The gravity of the consequence is
only taken into account to determine the
172 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
penalty, it does not qualify the substance of the offense. And, as the
careless act is single, whether the injurious result should affect one
person or several persons, the offense (criminal negligence) remains
one and the same, and can not be split into different crimes and
prosecutions." Ivler v. Judge San Pedro, G.R. No. 172716, November 17,
2010.
Q. Prosecuted for unlawful installation of electrical wiring under an ordinance
of Batangas City, accused was spared through dismissal for prescription.
For the same act, accused was later prosecuted for theft of electricity
under Article 308 of the Revised Penal Code. To the plea of double
jeopardy the state answered that the second prosecution was not for
the same offense. Decide.
A. The second sentence of Section 21 does not require that the second
prosecution be for the same offense. It is enough that it be for the same
act. "The discussions during the 1934-1935 Constitutional Convention
show that the second sentence was inserted precisely for the purpose
of extending the constitutional protection against double jeopardy to a
situation which would not otherwise be covered by the first sentence."
(p.305) People v. Relova, 148 SCRA 292 (March 6,1987). This is a fully
discussed decision which was based on Yap v. Lutero, 105 Phil. 1307
(1959) which was not reported in full.
Q. For the same act of issuing three bouncing checks, accused was
prosecuted first under Section 1 of B.P. Big. 22 and next under Article
315, par. 2(d) of the Revised Penal Code. He pleads double jeopardy.
A. The two laws (not merely ordinance) punish two distinct
offenses. The evidence required to prove one offense is not the same as
the evidence required to prove the other. Hence, there is no double
jeopardy. Ada v. Judge Virola, G.R. No. 82346-47, April 17, 1989.
[Elements of one not necessarily included in the other?]
NOTE: True it is that generally, contempt proceedings are characterized
as criminal in nature, but the more accurate juridical concept is that
contempt proceedings may actually be either civil or criminal, even if
the distinction between one and other may be so thin as to be almost
imperceptible. But it does exist in law. It is criminal when the purpose is
to vindicate the authority of the court and protect its outraged dignity.
It is civil when there is failure to do something ordered by a court to be
done for the benefit of a party. (3 Moran, Rules of Court, pp.
343-344,1970 ed; see also Perkins v. Director of Prisons,
Sec. 17 ART. Ill - BILL OF RIGHTS 173
58 Phil. 272; Harden v. Director of Prisons, 81 Phil. 741.) And with this
distinction in mind, the fact that the injunction in the instant case is
manifestly for the benefit of plaintiffs makes of the contempt herein
involved civil, not criminal. Accordingly, the conclusion is inevitable that
appellees have been virtually found by the trial court guilty of civil
contempt, not criminal contempt, hence the rule on double jeopardy
may not be invoked. Converse Rubber Corp. v. Jacinto Rubber, 97 SCRA
158,182-183 (April 28,1980).
Q. If the accused is charged with homicide and pleads not guilty,
may the charge be dismissed in order to amend it to murder?
A. No. That would place him in second jeopardy. Dionaldo v.
Dacuycuy, 108 SCRA 736 (October 30,1981).
NOTE: See also Olaguer v. Military Commission, 150 SCRA 144
(1987), Cruz v. Enrile, 160 SCRA 700 (1987), and Tan v. Barrios, G.R. No.
85481-82, October 18,1990 which are discussed under Article III, Section
14, supra.
Q. What is the rule on "supervening facts?"
A. This is another exception to the requirements of sameness of offense. In
Melo v. People, 85 Phil. 766 (1950), Chief Justice Moran said that the rule
for the determination of identity of offenses "did not apply . . . when the
second offense was not in existence at the time of the first prosecution,
for the simple reason that in such a case there is no possibility for the
accused, during the first prosecution, to be convicted for an offense that
was then inexistent." Id. at 769. "[W]here after the first prosecution a
new fact supervenes for which the defendant is responsible, which
changes the character of the offense and together with the facts
existing at the time, constitute a new and distinct offense, the accused
cannot be said to be in second jeopardy if indicted for the new offense."
Id. at 769-70 citing 15 AM.JUR. 66. People v. Buling, L-13315, April 27,
1960, however, added the qualification that where the exact nature of
the injury could have been discovered, but was not, because of the
incompetence of the physician, the subsequent discovery of the real
extent of the injury would not be a supervening fact which could
warrant the application of the Melo doctrine.
Q. Charged with inflicting physical injuries that would require 5 to
9 days medical attendance, the accused was convicted. Subsequently,
when the victim developed a permanent scar and deformity on the
face, a more serious charge was filed. Double jeopardy?
174 THE 1987 PHILIPPINE CONSTITUTION: Sees.
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A COMPREHENSIVE REVIEWER
A. No. The scar and deformity were supervening facts not in
existence at the time of the first charge and could not have been
foreseen. People v. Mil, L-41863,25 April 1977 (76 SCRA 462).
Q. On October 18, 1972, Gapay was charged with serious physical
injuries through reckless imprudence committed on October 17,1972.
On October 18, the victim died. On October 20, Gapay was arraigned on
charges of serious physical injuries through reckless imprudence,
pleaded guilty, was sentenced, and there and then commenced serving
sentence. On October 24, an information for homicide through reckless
imprudence was filed. Gapay pleaded double jeopardy. Does the
doctrine on "supervening fact" apply?
A. No. No new fact supervened "after the arraignment and
conviction of the accused." People v. City Court, G.R. No. 36342, April 27,
1983. (iConcurring, Gutierrez, J. points out that there is no sufficient
showing that the hasty arraignment was the result of collusion and
fraud amounting to denial of due process.)
Appeals
Q. May the prosecution appeal a judgment of acquittal?
A. No. "No error, however flagrant, committed by the court against the State,
can be reserved by it for decision by the Supreme Court when the
defendant has once been placed in jeopardy and discharged even
though the discharge was the result of the error committed." State v.
Rook, 49 L.R.A. 186,61 Kan 382, 59 Pac. 653, quoted in People v. Ang
Cho Kio, 95 Phil. 475,480 (1954). See also People v. Pomeroy, 97 Phil. 927
(1955).
A judgment of acquittal is immediately final. A judgment of
conviction is final when the period for appeal has lapsed or when the
sentence has been totally or partially served or when the defendant has
expressly waived his right to appeal. Section 7, Rule 120, Revised Rules of
Court; Bustamante v. Maceren, 48 SCRA 155 (1972).
Q. After trial on the merits, the accused was acquitted for insufficiency of the
evidence against him in the cases for murder and frustrated murder and
on the finding, in the illegal carrying of firearm, that the act charged did
not constitute a violation of law. But the State through a petition for
certiorari would want his acquittal reversed. Decide.
A. A reading of the questioned decision shows that respondent judge
considered the evidence received at trial. While the appreciation
thereof may have resulted in possible lapses in
Sec. 17 ART. Ill - BILL OF RIGHTS 175
evidence evaluation, it nevertheless does not detract from the fact that
the evidence was considered and passed upon. This consequently
exempts the act from the writ's limiting requirement of excess or lack of
jurisdiction. As such, it becomes an improper object of certiorari. Errors
of judgment are not to be confused with errors in the exercise of
jurisdiction. People v. Judge Velasco, G.R. No. 127444, September 13,
2000.
The special civil action for certiorari is intended for the correction
of errors of jurisdiction only or grave abuse of discretion amounting to
lack or excess of jurisdiction. Its principal office is only to keep the
inferior court within the parameters of its jurisdiction or to prevent it
from committing such a grave abuse of discretion amounting to lack or
excess of jurisdiction. It is not a remedy for errors of judgment. People v.
CA, G.R. No. 142051, February 24,2004.
Q. In the face of the prohibition of double jeopardy, how can one
justify the reopening of the Galman case after the acquittal of the
accused?
A. Where there was travesty of justice, there was no valid trial and
therefore no termination of the first jeopardy. Galman v.
Sandiganbayan, 144 SCRA 43 (1986). The decision here rested on the
premise that the proceedings in the Sandiganbayan were characterized
by grave abuse of discretion amounting to loss of jurisdiction. Hence, the
proceedings were invalid and the "acquittal" did not really acquit and
therefore did not terminate the case.
NOTE: Where the prosecution has not been given due process,
acquittal or dismissal is no bar to refiling of the case. People v. Bocar, 138
SCRA 166 (August 16,1985).
Q. After a new trial on the ground of newly discovered evidence,
the judge acquitted the accused. The judgment, however, was
erroneous because the evidence was not really new. May the State
appeal the acquittal?
A. No. A judgment of acquittal, even if erroneous, ends the case
finally. People v. Hernando, 108 SCRA 121 (October 9,1981.)
Q. When an accused appeals a conviction, may the reviewing court impose on
him a penalty higher than that imposed in the decision appealed by
him?
A. The rule in the Philippines, since Trono v. United States, 11 Phil. 726 (1905),
is that when an accused appeals his convic
176 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
tion he waives his right to the plea of double jeopardy. What, however,
is the extent of that waiver? In Trono, the accused had been prosecuted
for a higher offense but was convicted for a lower offense. Hence,
equivalently, he had been acquitted of the higher offense. Was his
appeal a waiver of this acquittal? The Court answered in the affirmative
and ruled that a penalty higher than that of the original conviction could
be imposed on him.
Q. Accused was prosecuted for estafa and was convicted under
Article 315, 2(d), R.P.C. (by issuance of bouncing checks). On appeal the
Court of Appeals penalized the accused instead under Article 315, 2(a)
(through false pretenses or similar deceits). Accused now contends that
since the trial court had said that Article 315, 2(a) could not be applied
to him, he equivalently was acquitted of that offense and the appellate
court could no longer convict him under such provision. He claimed
double jeopardy. Decide.
A. "When the petitioners appealed from the sentence of the Trial
Court, they waived the constitutional safeguard against double
jeopardy and threw the whole case open to the review of the Appellate
Court, which is then called upon to render such judgment as the law
and justice dictate, whether favorable or unfavorable to them, and
whether they are made the subjects of assignment of error or not." Ko
Bu Lin v. Court of Appeals, G.R. No. 57170, November 19,1982.
NOTE: When an accused is convicted for a lesser offense on a plea
of guilty to that lower offense, the conviction is not a bar to a second
prosecution if the plea to a lesser offense was made without the
consent of the Fiscal. People v. Villarama, Jr., G.R. No. 99287, June
23,1992.
The discharge of an accused in order to make him a state witness,
even if it is erroneous for failure to comply with all the requirements of
Section 9 of Rule 119, is equivalent to an acquittal and is a bar to
reinstatement of the case against him. However, if "the accused so
discharged fails or refuses to testify against his co-defendant,... the
defense of double jeopardy is withdrawn from him and becomes
unavailable to him." Bogo-Medellin Milling Co. v. Son, 209 SCRA 329
(1992).
SEC. 22. No EX-POST FACTO LAW OR BILL OF ATTAINDER SHALL BE
ENACTED.
Q. What is an ex post facto law?
A. An ex post facto law has been defined as one — (a) Which makes an action
done before the passing of the law and which
Sec. 17 ART. Ill - BILL OF RIGHTS 177
was innocent when done criminal, and punishes such action; or (b)
Which aggravates a crime or makes it greater than when it was
committed; or (c) Which changes the punishment and inflicts a greater
punishment than the law annexed to the crime when it was committed;
(d) Which alters the legal rules of evidence and receives less or different
testimony than the law required at the time of the commission of the
offense in order to convict the defendant. Mekin v. Wolfe, 2 Phil. 74
(1903); (e) Assumes to regulate civil rights and remedies only but in
effect imposes a penalty or deprivation of a right which when done was
lawful; (f) Deprives a person accused of a crime of some lawful
protection to which he has become entitled, such as the protection of a
former conviction or acquittal, or a proclamation of amnesty. In Re Kay
Villegas Kami, 35 SCRA 429 (October 22,1970).
NOTE: A law shortening the prescriptive period for a crime is ex
post facto. People v. Sandiganbayan, G.R. No. 101724, July 3, 1992.
Analogous to an ex post facto law and covered by the same prohibition
would be an official interpretation of a penal law given by the
Department of Justice which is subsequently changed to the prejudice
of one who had relied on the earlier interpretation. Co v. Court of
Appeals, October 28,1993.
NOTE: Where the Court had denied Ombudsman jurisdiction over
cases before RTC but later reversed its decision while the case was
already before the Sandiganbayan, there is no ex post facto law because
no new law was passed. The Courts interpretation retroacts to the date
the law took effect (Ombudsman Act). Castro v. Judge Deloria, G.R. No.
163586, January 27, 2009.
Q. Pursuant to R.A. No. 7975, the Sandiganbayan transferred the Kuratong
Baleleng case to the RTC for lack of jurisdiction. R.A. No. 8249 amended
R.A. No. 7975 in further defining the jurisdiction of the Sandiganbayan.
Pursuant to the new Act, the Sandiganbayan took cognizance of the
case. Petitioner and intervenors argue that the statute's retroactive
application to the Kuratong Baleleng case constitutes an ex post facto
law for it deprives them of their right to procedural due process as they
can no longer avail of the two-tiered appeal which they had allegedly
acquired under R.A. No. 7975. Decide.
A. In general, ex post facto law prohibits retrospectivity of penal laws. R.A. No.
8249 is not a penal law, but a substantive law on jurisdiction which is not
penal in character. The contention that the new law diluted their right to
a two-tired appeal is
178 THE 1987 PHILIPPINE CONSTITUTION: Sees.
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A COMPREHENSIVE REVIEWER
incorrect because "the right to appeal is not a natural right but statutory
in nature that can be regulated by law. The mode of procedure provided
for in the statutory right of appeal is not included in the prohibition
against ex post facto laws. R.A. No. 8249 pertains only to matters of
procedure, and being merely an amendatory statute it does not partake
the nature of an ex post facto law." Lacson v. Executive Secretary, G.R.
No. 128096, January 20,1999.
Q. Without waiting for accused to file a motion to quash an information, the
judge ordered the prosecution to show cause why the case should not
be dismissed on the ground that the prosecution was under an ex post
facto law. Proper?
A. No. Every law carries with it the presumption of constitutionality until
otherwise declared by this court. To rule that the CB Circular is an ex
post facto law is to say that it is unconstitutional. However, neither
private respondent nor the Solicitor- General challenges it. This Court,
much more the lower courts, will not pass upon the constitutionality of
a statute or rule nor declare it void unless directly assailed in an
appropriate action. People v. Judge Nitafan, G.R. Nos. 107964-66,
February 1,1999.
Q. Does the ex post facto clause prohibit all retrospective laws?
A- No. It prohibits only retrospective penal laws.
Q. When is a law a penal law?
A. A law is penal when it prescribes a criminal penalty imposable in a criminal
trial. However, a law is also a penal law if it prescribes a burden
equivalent to a criminal penalty {e.g., disqualification from the practice
of a profession) even if such burden is imposed in an administrative
proceeding. Pascual v. Board of Medical Examiners, 28 SCRA 344 (1909).
Q. RA. 1379 is an act declaring forfeiture in favor of the State of
any property illegally obtained by a public officer. May this be given
retroactive effect?
A. Earlier decisions have already held that forfeiture of property
under R.A. 1379 partakes of the nature of a penally that is criminal or
penal. Hence, it may not be given retroactive effect. Katigbak v. Solicitor
General, G.R. No. 19328, December 22, 1989, citing Cabal v. Kapunan,
Jr., 6 SCRA 1059, Republic v. Agoncillo, 40 SCRA 579, and de la Cruz v.
Better Living, Inc., 78 SCRA 274.
Sec. 17 ART. Ill - BILL OF RIGHTS 179
But see Republic v. Sandiganbayan, No. 152154, November 18,
2003 cases which distinguish between forfeiture decision that is in
personam and forfeiture that is in rem. " . . . Forfeiture proceedings may
be either civil or criminal in nature, and may be in rem or in personam. If
they are under a statute such that if an indictment is presented the
forfeiture can be included in the criminal case they are criminal in
nature, although they may be civil in form; and where it must be
gathered from the statute that the action is meant to be criminal in its
nature it cannot be considered as civil. If, however, the proceeding does
not involve the conviction of the wrongdoer for the offense charged the
proceeding is of a civil nature; and under statutes which specifically so
provide, where the act or omission for which the forfeiture is imposed is
not also a misdemeanor, such forfeiture may be sued for and recovered
in a civil action." (37 CJS, Forfeiture, Sec. 5, pp. 15-16)
Q. Can a law on criminal procedure be an ex post facto law?
A. Yes, when the law alters the legal rules of evidence or mode of trial, Colder
v. Bull, 3 Dall 386 (U.S. 1798), unless the changes operate only in a
limited and unsubstantial manner to the disadvantage of the accused.
Beazell v. Ohio, 269 U.S. 167 (1925).
Q. On June 6,1997, Republic Act 8294 amended P.D. 1866 which codified the
laws on illegal possession of firearms. Among its amendments was that
if homicide or murder is committed with the use of an unlicensed
firearm, such use shall be considered as a special aggravating
circumstance. The amendment meant: first, that the use of an
unlicensed firearm in the commission of homicide or murder shall not
be treated as a separate offense, but as a special aggravating
circumstance; second, that since a single crime is committed (i.e.,
homicide or murder with the aggravating circumstance of illegal
possession of firearm), only one penalty shall be imposed on the
accused. Accused was charged with crimes committed in 1995. Will R.A.
8294 apply to him?
A. Yes, because it is favorable to him. People v. Casingal, G.R. No. 132214,
August 1, 2000.
Q. P.D. 1486 creating the Sandiganbayan is challenged as ex post
facto because it dilutes the accused's right of appeal. Decide.
A. Granted that the previous procedure has been altered, the new
procedure prescribed still gives him adequate protection
180 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
and leaves untouched all the substantial protections surrounding the
accused. The test is whether the new law takes away rights "vital for the
protection of life and liberty." The removal of the right of appeal to the
Court of Appeals does not have that effect. The Supreme Court still has
the right to review to determine if presumption of innocence has been
overcome. Nunez v. Sandiganbayan, 111 SCRA 433 (January 30,1982);
Rodriguez v. Sandiganbayan, G.R. No. 61355, February 18, 1983; Alviar
v. Sandiganbayan, 137 SCRA 63 (June 19,1985).
Q. Accused was convicted by the Sandiganbayan for estafa on
May 30,1980. Accused appealed. On March 16,1982, Batas Big. 195
was passed authorizing suspension of public officers against whom an
information may be pending at any stage. On July 22,1982, the court
suspended accused. Was there violation of the ex post facto clause?
A. Article 24 of the Revised Penal Code says that suspension of an
officer during trial shall not be considered a penalty. In fact, if the
accused is acquitted, he is entitled to reinstatement and back salaries
and benefits. The suspension in the case is merely a preventive and not
a penal measure which therefore does not come under the ex post
facto prohibition. Bayot v. Sandiganbayan, 128 SCRA 383 (March 23,
1984).
NOTE: See also Olaguer v. Military Commission, 150 SCRA 144
(1987), Cruz v. Enrile, 160 SCRA 700 (1987), and Tan v. Barrios, G.R. No.
85481-82, October 18,1990, under Article III, Section 14.
Q. What is a bill of attainder?
A. "A bill of attainder," according to Cummings v. Missouri, 4 Wall 277, 323
(U.S. 1867), "is a legislative act which inflicts punishment without
judicial trial. If the punishment be less than death, the act is termed a
bill of pains and penalties." The same case, however, also affirmed that,
"Within the meaning of the Constitution bills of attainder include bills of
pains and penalties." Id.
Q. A law is passed requiring every lawyer who wishes to continue the practice
of law to take the oath that he or she has not committed an act of
disloyalty to the Philippine government. Valid?
A. No. This is a bill of attainder. Depriving a person of the right to practice a
profession is a penalty. And when this is imposed by the legislature
without trial there is a violation of the prohibition against bills of
attainder. See Cummings v. Missouri, 4 Wall 277,323 (U.S. 1867).
Sec. 17 ART. Ill - BILL OF RIGHTS 181
Q. To be a bill of attainder prohibited by the Constitution, must the law specify
by name the person being punished?
A. No, legislative acts, "no matter what their form, that apply either to named
individuals or to easily ascertainable members of a group in such a way
as to inflict punishment on them without judicial trial are bills of
attainder prohibited by the Constitution." United States v. Lovett, 328
U.S. 302 (1946).
Q. What then are the essential elements of a bill of attainder?
A. (1) There must be a law; (2) the law imposes a penal burden on a named
individual or easily ascertainable members of a group; (3) the penal
burden is imposed directly by the law without judicial trial.
Q. Is the Anti-Subversion Law or R.A. 1700 a bill of attainder?
A. No. No one is made to suffer under this law except after conviction in a trial
by a proper court. People v. Ferrer, 48 SCRA 382 (1972).
NOTE: The Anti-Subversion Law (R.A. 1700) was repealed by the
Revised Anti-Subversion Law (P.D. 885, 11 May 1976, 72 O.G. 3826) but
P.D. 885 says that acts committed before P.D. 885 shall be prosecuted in
accordance with R.A. 1700. This is repeated in the National Security
Code, Section 14(i). Buscayno and Sison v. Military Commissions, 109
SCRA 273 (November 19,1981).
ARTICLE IV
CITIZENSHIP
SECTION 1. THE FOLLOWING ARE CITIZENS OF THE PHILIPPINES:
(1) THOSE WHO ARE CITIZENS OF THE PHILIPPINES AT THE TIME
OF THE ADOPTION OF THIS CONSTITUTION;
(2) THOSE WHOSE FATHERS OR MOTHERS ARE CITIZENS OF THE
PHILIPPINES;
(3) THOSE BORN BEFORE JANUARY 17, 1973, OF FILIPINO MOTHERS,
WHO ELECT
PHILIPPINE CITIZENSHIP UPON REACHING THE AGE OF MAJORITY; AND
(4) THOSE WHO ARE NATURALIZED IN ACCORDANCE WITH
LAW.
Q. What is citizenship?
A. Citizenship is personal and more or less permanent membership in a
political community. It denotes possession within that particular
political community of full civil and political rights subject to special
disqualifications such as minority. Reciprocally, it imposes the duty of
allegiance to the political community.
Q. What are the modes of acquiring citizenship?
A. Modern law recognizes three distinct modes of acquiring citizenship: (1) jus
sanguinis — acquisition of citizenship on the basis of blood relationship;
(2) jus soli — acquisition of citizenship on the basis of place of birth; (3)
naturalization — the legal act of adopting an alien and clothing him with
the privilege of a native born citizen. Basic Philippine law follows the
rule of jus sanguinis and provides for naturalization.
182
Sees. 4-5 ART. IV - CITIZENSHIP 183
Q. Who are citizens of the Philippines?
A. See supra, Section 1.
Q. Who are citizens of the Philippines at the time of the adoption of the 1987
Constitution?
A. Philippine citizens at the time of the adoption of the 1987 Constitution were
those who were citizens under the 1973 Constitution.
Q. Who were citizens of the Philippines under the 1973 Constitution?
A. Section 1 of the article on Citizenship under the 1973 Constitution was the
same as Section 1 under the new Constitution.
Q. Who were citizens of the Philippines at the time of adoption of the 1973
Constitution?
A. They were those who were citizens under Article IV, Section 1 of the 1935
Constitution, namely:
(1) Those who are citizens of the Philippine Islands at the time
of the adoption of the (1935) Constitution;
(2) Those born in the Philippine Islands of foreign parents who,
before the adoption of this Constitution, had been elected to public
office in the Philippine Islands;
(3) Those whose fathers are citizens of the Philippines;
(4) Those whose mothers are citizens of the Philippines and,
upon reaching the age of majority, elect Philippine citizenship;
(5) Those who are naturalized in accordance with law.
Q. How is the principle of jus sanguinis applied in the 1987 Constitution?
A. Section 1(2) declares as Filipino citizens "Those whose fathers or mothers
are citizens of the Philippines." This is the same rule as that under the
1973 Constitution. This means that if a child is born under the 1973 or
1987 Constitution and either his father or mother is a Filipino citizen at
the time the child is born, the child is a Filipino citizen no matter where
he may be born.
184 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. Emilio Osmena is a holder of an alien registration certificate. He
is also a son of a Filipino father (and a grandson of President Osmena)
and the holder of a valid subsisting Philippine passport, a continuous
resident of the Philippines and a registered voter since 1965. It is
contended that he is an alien and therefore disqualified from holding
public office. Decide.
A. By virtue of his being a son of a Filipino father the presumption
is that he is Filipino and remains Filipino until proof is shown that he has
renounced or lost Philippine citizenship. There is no proof that he has
been naturalized in a foreign country, or has expressly renounced
Philippine citizenship, or has sworn allegiance to a foreign country.
Possession of an alien registration certificate unaccompanied by proof
of performance of acts whereby Philippine citizenship is lost is not
adequate proof of loss of citizenship. Aznar v. COMELEC and Osmena,
185 SCRA 703 (1990).
Q. What is the citizenship of an illegitimate child of a Filipina mother?
A. Filipino. This is true whether the child be born under the 1935 or under the
1973 or 1987 Constitution.
Q. What is the citizenship of an illegitimate child of a Filipino father and an
alien mother?
A. Filipino, if paternity is clear, because of jus sanguinis, which makes no
distinction between legitimate and illegitimate children. This was the
case of Tecson v. Comelec, G.R. No. 161434, March 3, 2004.
Q. If a child was born of a Filipina mother and an alien father before the
effectivity of the 1973 Constitution, do the 1973 and 1987 Constitutions
recognize such child as Filipino?
A. No, unless upon reaching majority the child elects Philippine citizenship
pursuant to the 1935 Constitution. In other words, Section 1(2) of the
1973, which is the same as Section 1(2) of the 1987 Constitution, took
effect only with the effectivity of the 1973 Constitution on January 17,
1973. Hence, children similarly situated but born prior to January 17,
1973 are governed by Section 1(4) of Article IV of the 1935 Constitution.
Q. Who may elect Philippine citizenship under the 1935 Constitution?
A. Those born under the 1935 Constitution whose mothers were Philippine
citizens (at the time at least of their marriage to an alien father) may
elect Philippine citizenship.
Sees. 4-5 ART. IV - CITIZENSHIP 185
Q. When must the election be made?
A. The election must be made within a reasonable period after reaching
majority. InDy Cuenco v. Secretary of Justice, L-18069, May 26, 1962, the
Supreme Court cited with approval the ruling of the Secretary of Justice
to the effect that three years is a reasonable period within which to
make the election, which period, however, may be extended under
certain circumstances as when the person concerned has always
considered himself a Filipino citizen.
Q. How is election made?
A. Section 1 of Commonwealth Act 625, enacted on June 7, 1941, says that
the election must be expressed in a statement sworn before any officer
authorized to administer oaths and filed with the nearest civil registry
and accompanied by an oath of allegiance to the Philippine Constitution.
However, participating in elections and campaigning for candidates, and
similar acts done prior to June 7, 1941, have been recognized as
sufficient to show one's preference for Philippine citizenship. In re
Florencio Mallare, 59 SCRA 45, 52, September, 1974.
Q. May a child born under the 1973 or the 1987 Constitution of a Filipina
mother and an alien father elect Philippine citizenship?
A. No. If the mother was still a Filipina at the time of the birth of the child then
the child is already Filipino by birth, and hence need not elect. If the
mother, however, had lost Philippine citizenship by the time of the birth
of the child, the child has no right of election and may acquire citizenship
only by naturalization. In other words, the provision on election in the
1973 and 1987 Constitution are transitory provisions intended to take
care of those who under the 1935 Constitution could have elected
Philippine citizenship upon reaching majority but had not yet reached
majority at the time of the effectivity of the 1973 or 1987 Constitution.
Q. Should children born under the 1935 Constitution of a Filipino mother and
an alien father, who executed an affidavit of election of Philippine
citizenship and took their oath of allegiance to the government upon
reaching the age of majority, but who failed to immediately file the
documents of election with the nearest civil registry, be considered
foreign nationals subject to
186 THE 1987 PHILIPPINE CONSTITUTION: Sees.
4-5
A COMPREHENSIVE REVIEWER
deportation as undocumented aliens for failure to obtain alien
certificates of registration?
A. No. This case involved children who had grown to adult years and for some
reason failed to register their election but had all along acted as citizens.
Among the things which the Court noted was that the 1973
Constitution had already corrected the chauvinistic provision of the
1935 Constitution by making those born of a Filipina mother a citizen
without need for election. Cabiling Ma v. Commissioner, G.R. No.
183133, July 26, 2010.
Q. What is naturalization?
A. Naturalization is the legal act of adopting a foreigner and clothing him with
the privileges of a natural-born citizen. A person may be naturalized
either by complying with both the substantive and procedural
requirements of a general naturalization law or he may be naturalized
by a special act of the legislature.
Q. What kind of naturalization laws and procedures have been used in the
Philippines?
A. The following have been used:
1. General law of naturalization applied through a judicial
process. (Revised Naturalization Law, C.A. 473, June 17,1939. This is still
in effect.)
2. Special naturalization law, i.e., an act of the legislature
making a named individual a citizen of the Philippines. E.g., the Republic
Act which made Father James Moran, S.J. a citizen or the Presidential
Decree which made Mr. Ronnie Nathanielz a citizen.
3. Mass naturalization law. The Philippine Bill of 1902 made
Filipino citizens of "all inhabitants of the Philippine Islands continuing to
reside in them who were Spanish subjects" on 11 April 1899 "and then
resided in said islands."
4. General law of naturalization applied through a
combination of administrative process and presidential legislative
process (Letter of Instruction No. 270, in effect for a limited period from
its promulgation by President Marcos on April 11,1975.)
Sees. 4-5 ART. IV - CITIZENSHIP 187
5. Administrative Naturalization Law, R.A. 9139, enacted in 2000.
Q. What kind of requirements must an applicant for naturalization satisfy
under the Revised Naturalization Law?
A. Both substantive and procedural requirements.
Q. What are the substantive requirements for naturalization?
A. Briefly, Section 2 of C A. 473 prescribes requirements of age, residence,
moral character and political belief, real property or lucrative
occupation, language, and education of children.
Q. Applicant for citizenship received a favorable decision after the
Fiscal failed to raise any objection. In the hearing after the two year
probation, however, the Fiscal turned around to say that the
respondent had no lucrative business, trade, or profession. May such
subject be raised for the first time in the final hearing?
A. Yes. In re petition of Martin Ng to be admitted a Filipino Citizen,
158 SCRA 492 (1988).
Q. What procedural requirements must be satisfied?
A. The applicant must go through the following steps: declaration of intention,
filing of petition, hearing and initial judgment, period of probation,
rehearing and final judgment.
Q. When does the applicant become a Filipino citizen?
A. Upon taking the oath provided by law after satisfactorily passing the period
of probation.
Q. What kind of requirements must an applicant for naturalization satisfy
under the Administrative Naturalization Law?
A. Both substantive and procedural requirements.
Q. What are the substantive Requirements?
A. a. The applicant must be born in the Philippines and residing therein since
birth;
b. The applicant must not be less than eighteen (18) years of
age, at the time of filing of his/her petition;
c. The iapplicant must be of good moral character and believes
in the underlying principles of the Constitution,
188 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
and must have conducted himself/herself in a proper and
irreproachable manner during his/her entire period of residence in the
Philippines in his relation with the duly constituted government as well
as with the community in which he/she is living;
d. The applicant must have received his/her primary and
secondary education in any public or private educational institution duly
recognized by the Department of Education, Culture and Sports, where
Philippine history, government and civics are taught and prescribed as
part of the school curriculum and where enrollment is not limited to
any race or nationality: Provided, that should he/she have minor
children of school age, he/she must have enrolled them in similar
schools;
e. The applicant must have a known trade, business,
profession or lawful occupation, from which he/she derives income
sufficient for his/her support and if he/she is married and/or has
dependents, also that of his/her family: Provided, however, That this
shall not apply to applicants who are college degree holders but are
unable to practice their profession because they are disqualified to do
so by reason of their citizenship;
f. The applicant must be able to read, write and speak Filipino
or any of the dialects of the Philippines; and
g. The applicant must have mingled with the Filipinos and
evinced desire to learn and embrace the customs, traditions and ideals
of the Filipino people.
Q. How is the application handled?
A. It is handled through the Special Committee on Naturalization chaired by
the Solicitor General. Sec. 5 & 6, R.A. 9139.
Q. What is the effect ofthe naturalization ofa father on legitimate minor children?
A. In general, the minor children become citizens of the Philippines. (C.A. 473,
Sees. 15,16)
Q. What is the effect on the wife of the naturalized husband?
A. She becomes a Filipino citizen, provided she shows, in an administrative
procedure for the cancellation of her alien certificate of registration,
that she has none of the disqualifications
Sees. 4-5 ART. IV - CITIZENSHIP 189
found in C.A. 473, Sec. 2. Burca v. Republic, 51 SCRA 248 (June 15,1973).
Q. What is the effect of the naturalization of a husband under RA. 9139?
A. Applicant's alien lawful wife and minor children may file a petition for
cancellation of their alien certificates of registration with the Committee.
Sec. 11.
Q. What is the effect of the naturalization of a wife?
A. Her administrative naturalization will not benefit her alien husband but her
minor children may file a petition for cancellation of their alien certificate
of registration. Sec. 12.
SEC. 2. NATURAL-BORN CITIZENS ARE THOSE WHO ARE CITIZENS OF
THE PHILIPPINES FROM BIRTH WITHOUT HAVING TO PERFORM ANY ACT
TO
ACQUIRE OR PERFECT THEIR PHILIPPINE CITIZENSHIP. THOSE WHO
ELECT
PHILIPPINE CITIZENSHIP IN ACCORDANCE WITH PARAGRAPH (3),
SECTION
1 HEREOF SHALL BE DEEMED NATURAL-BORN CITIZENS.
Q. Is one who is a Filipino citizen by election a natural-born citizen under
Section 1(3)?
A. Yes, because of the second sentence of Section 2. This is a clarification made
by the 1987 Constitution.
Q. Is this a new rule?
A. Although this rule has been made explicit only under the 1987 Constitution,
there is the view that this was the implicit rule even before 1987, the
reason being that a child born of a Filipina mother already has the
inchoate right to Filipino citizenship from birth. At any rate, the rule as
worded in the 1987 Constitution applies even to those who made their
election prior to the effectivity of the 1987 Constitution on February 2,
1987.
Q. Jose was born a Chinese and married a natural born Filipina in 1932. Jose
was eventuaUy naturalized and took his oath of allegiance in 1955. At
that time Jose, Jr. was 9 years old. In 1987 Jose, Jr. was elected to the
House of Representatives.
1. May the citizenship of Jose, Sr., already deceased, be attacked
collaterally in this case?
190 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
2. Did the minor Jose, Jr. become a Filipino citizen with his
father?
3. Did he have to elect Philippine citizenship when he came of
age?
4. Is he a natural born citizen? A. 1.
No.
2. Yes, under the Naturalization Law.
3. No, because he already was one. It would be unnatural to expect
him to. Election of Philippine citizenship presupposes that you are
not one. Moreover, jurisprudence recognizes both formal and
informal election. See e.g., In re Mallare, 59 SCRA 45 (1974).
4. Yes. He benefits from the curative nature of Section 2. He derives
his status of being a natural born citizen not from his father, who
made election unnecessary for him, but from his mother who
was a natural born Filipina. Co v. Electoral Tribunal of the House of
Representatives, G.R. No. 92191-92, July 30,1991.
Q. May the law treat natural-born citizens and naturalized citizens differently?
A. No, except in the instances where the Constitution itself makes a
distinction. Otherwise there would be a violation of the equal
protection clause. Chen Teck Lao v. Republic, 55 SCRA 1, 5-6 (1974).
SEC. 3. PHILIPPINE CITIZENSHIP MAY BE LOST OR REACQUIRED IN THE
MANNER
PROVIDED BY LAW.
Q. What laws govern loss and reacquisition of Philippine citizenship?
A. Commonwealth Act No. 63, as amended, and Republic Acts No. 965 and
2639, and P.D. 725 on repatriation.
Q. May a certificate of naturalization be canceled?
A. Yes, if it is shown to have been obtained fraudulently or illegally, or if the
person is shown to have violated the prohibitions
Sees. 4-5 ART. IV - CITIZENSHIP 191
imposed on him by C.A. 473, Section 18. But to justify cancellation of
such certificate, the evidence must be "clear, unequivocal and
convincing" and not merely preponderant. Citizenship acquired through
naturalization is not second-class citizenship. Republic v. Cokeng, 23
SCRA 559 (1963) and 34 SCRA 668 (1970).
Q. After naturalization proceedings, Cesar Guy took his oath of
allegiance on December 22,1959. The government sought the
cancellation of his certificate of naturalization on the ground that (1)
during the pendency of his petition for naturalization he filed a sworn
application for a timber license falsely claiming that he was Filipino (for
which he was subsequently convicted for perjury), and that (2) on
December 12, 1963 he was convicted of rape. On May 28, 1974, the
lower court ordered the cancellation of his certificate on the ground that
it had been obtained fraudulently and illegally. On appeal, Guy
contended that both convictions were after the two-year probationary
period and after the final judgment on his citizenship and hence could
not be used against him. Decide.
A. 1. A decision in a naturalization proceeding is not res judicata as
to any of the matters which could support a judgment canceling the
certificate for illegal or fraudulent procurement. In fact, the certificate
may be canceled for acts committed after naturalization.
2. Perjury, committed during the pendency of his petition, is
evidence of lack of good moral character; hence his having been able to
obtain citizenship despite this misconduct rendered his acquisition
thereof fraudulent or illegal. (The Naturalization Law allows cancellation
of a certificate of naturalization if it is found to have been obtained
"fraudulently or illegally.") Republic v. Cesar Guy, G.R. No. 41399, July
20,1982.
Q. Petitioner was issued a Portuguese passport in 1971. He was
given naturalization as Filipino citizen in 1978. In 1980, however, he still
declared his citizenship as Portuguese in commercial documents and in
1981 he still obtained a Portuguese passport which expired in 1986. Has
petitioner renounced Philippine citizenship?
A. Yes, his actions constitute renunciation. "While normally the
question of whether or not a person has renounced his Philippine
citizenship should be heard before a trial court of law in adversary
proceedings, this has become unnecessary as this Court, no less, upon
insistence of petitioner, had to look into the facts and satisfy itself on
whether or not petitioner's claim to continued Philippine citizenship is
meritorious." In Willie Yu v. Defensor-Santiago, G.R. No. 83882, January
24,1989.
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Q. Labo went through a process of naturalization as Australian
and thereafter took the oath of allegiance renouncing Philippine
citizenship. He claims that his acquisition of Australian citizenship was
invalid and that therefore he was still Filipino citizen qualified to run for
Philippine office.
A. Whether or not he acquired Australian citizenship validly is
between him and Australia. The fact is he renounced Philippine
citizenship by taking an oath of allegiance to Australia. And since he has
not taken any of the steps for re-acquiring Philippine citizenship, he is
not one now and is not qualified to hold an elective office. Labo, Jr. v.
COMELEC, G.R. No. 86564, August 1,1989.
Q. Frivaldo does not deny that he was naturalized an American
citizen. He, however, claims that his naturalization was involuntary since
it was the only way he could stay in the United States and thereby
protect himself from Mr. Marcos. Moreover, he claims that by
participating in the Philippine political process and filing his certificate of
candidacy, he thereby renounced American citizenship and reacquired
Philippine citizenship. Decide.
A. He is not Filipino. There were many Filipinos similarly situated
in the United States, but they did not find it necessary to abandon
Philippine citizenship nor pledge allegiance to the United States. And by
participating in the political process of the Philippines, at best it would
have rendered him stateless. As to reacquisition of Philippine
citizenship, if he really wanted to he could have easily done so through
the process of repatriation. He did not. Frivaldo v. Comelec, 174 SCRA
245 (1989).
Q. How may lost citizenship be reacquired?
A. Either by naturalization or repatriation.
Q. What is repatriation?
A. Repatriation is the recovery of original citizenship. Thus, if what was lost was
naturalized citizenship, that is what will be reacquired. If what was lost
was natural born citizenship, that will be reacquired. Bengzon v. Cruz,
G.R. No. 142840, May 7, 2001.
Q. Who may be repatriated?
A. Under Republic Act No. 8171 only (1) women who lost citizenship by
marriage and (2) those who lost citizenship for political or economic
reasons may be repatriated. Tabasa v. CA, August 29,2006.
Sees. 4-5 ART. IV - CITIZENSHIP 193
Q. How is repatriation accomplished?
A. The current law on the subject is found in Republic Act No. 8171. Section 2
says:
Repatriation shall be effected by taking the necessary oath of
allegiance to the Republic of the Philippines and registration in the
proper civil registry and in the Bureau of Immigration. The Bureau of
Immigration shall thereupon cancel the pertinent alien certificate of
registration and issue the certificate of identification as Filipino citizen to
the repatriated citizen.
Q. Is the registration of petitioner's repatriation with the proper civil registry
and with the Bureau of Immigration a prerequisite in effecting
repatriation?
A. Yes. Altarejos v. Comelec, G.R. No. 163256, November 10,2004.
Q. Cruz was a natural-born citizen of the Philippines. On November 5, 1985,
however, he enlisted in the United States Marine Corps and, without the
consent of the Republic of the Philippines, took an oath of allegiance to
the United States. As a consequence, he lost his Filipino citizenship. On
June 5, 1990, he was naturalized as an American. On March 17,1994, he
reacquired his Philippine citizenship through repatriation under Republic
Act No. 2630. He ran for and was elected as the Representative of the
Second District of Pangasinan in the May 11,1998 elections. Was he a
natural born Filipino citizen?
A. As defined in the same 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. Cruz was not naturalized but
repatriated. Repatriation may be had under various statutes by those
who lost their citizenship due to: (1) desertion of the armed forces; (2)
service in the armed forces of the allied forces in World War II; (3)
service in the Armed Forces of the United States at any other time; (4)
marriage of a Filipino woman to an alien; and (5) political and economic
necessity. As distinguished from the lengthy process of naturalization,
repatriation simply consists of the taking of an oath of allegiance to the
Republic of the Philippines and registering said oath in the Local Civil
194 THE 1987 PHILIPPINE CONSTITUTION: Sees.
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Registry of the place where the person concerned resides or last
resided. Repatriation, as the word connotes, results in the recovery of
what had been lost. When what was lost is natural born citizenship,
what is recovered is also natural born citizenship. Having thus taken the
required oath of allegiance to the Republic and having registered the
same in the Civil Registry of Magantarem, Pangasinan in accordance
with the aforecited provision, respondent Cruz is deemed to have
recovered his original status as a natural-born citizen, a status which he
acquired at birth as the son of a Filipino father. There are only two kinds
of citizenship: natural born and naturalized. Since Cruz did not undergo
naturalization, he is natural born. Bengzon v. Cruz, G.R. No. 142840, May
7, 2001.
Q. If a person who has reacquired Philippine citizenship wants to run for office,
what must he do?
A. Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who
have been naturalized as citizens of a foreign country, but who
reacquired or retained their Philippine citizenship (1) to take the oath of
allegiance under Section 3 of Republic Act No. 9225, and (2) for those
seeking elective public offices in the Philippines, to additionally execute
a personal and sworn renunciation of any and all foreign citizenship
before an authorized public officer prior or simultaneous to the filing of
their certificates of candida<y, to qualify as candidates in Philippine
elections. Jacot v. Dal, G.R. No. 179848, November 26, 2008.
Q. A natural born Filipino citizen who becomes a green card resident of the
United States, or who becomes naturalized citizen of America loses his
domicile of origin in the Philippines. Does reacquisition of Filipino
citizenship under R.A. 9225 have the effect of restoring his Philippine
domicile?
A. No. To reacquire domicile he must provide proof of intent to stay in the
Philippines. After he does that, his occasional absence from the
recovered domicile does not have the effect of removing him from the
domicile for as long as he manifests animus manendi et revertendi.
Japzon v. Ty, G.R. No. 180088, January 19,2009.
NOTE: Where a person is natural born Filipino because of a Filipino
mother, and also a natural born American for
Sees. 4-5 ART. IV - CITIZENSHIP 195
having been born in the United States, he has dual citizenship. The INS
certification obtained for him by his father did not confer American
citizenship on him because he was already one. His travels under a US
passport did not strip him of Philippine citizenship. The fact that he had
dual citizenship did not disqualify him from running for office. Nor did he
have to renounce his American citizenship if he wanted to run for local
office. The need for renunciation applies only to those who reacquired
Philippine citizenship through R.A. 9225. Cordora v. Comelec, G.R. No.
176947, February 19,2009.
Q. Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace,
Broome, Western Australia, to the spouses, Telesforo Ybasco, a Filipino
citizen and Theresa Marquez, an Australian. This was a year before the
1935 Constitution took into effect. Was Rosalinda a Filipino citizen?
A. At that time, what served as the Constitution of the Philippines were the
principal organic acts by which the United States governed the country.
These were the Philippine Bill of July 1, 1902 and the Philippine
Autonomy Act of August 29,1916, also known as the Jones Law. Under
both organic acts, all inhabitants of the Philippines who were Spanish
subjects on April 11, 1899 and resided therein including their children
were deemed to be Philippine citizens. Private respondent's father,
Telesforo Ybasco, was born on January 5,1879 in Daet, Camarines Norte,
a fact duly evidenced by a certified true copy of an entry in the Registry
of Births. Thus, under the Philippine Bill of 1902 and the Jones Law,
Telesforo Ybasco was deemed to be a Philippine citizen. By virtue of the
same laws, Telesforo's daughter, herein private respondent Rosalind
Ybasco Lopez, is likewise a citizen of the Philippines. Valles v. Comelec,,
G.R. No. 137000, August 9,2000.
Q. In the above case, Valles claims that Ybasco Lopez had renounced her
Filipino citizenship because she had applied for an Alien Certificate of
Registration (ACR) and Immigrant Certificate of Residence (ICR), on
September 19, 1988, and because she had been issued an Australian
passport on March 3,1988. Decide.
A. In order that citizenship may be lost by renunciation, such renunciation
must be express. Petitioner's contention that the application of private
respondent for an alien certificate
196 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
of registration, and her Australian passport, is bereft of merit. This issue
was put to rest in the case of Aznar v. COMELEC, 185 SCRA 703, and in
the more recent case of Mercado v. Manzano and COMELEC, G.R. No.
135083, May 26, 1999. In the case of Aznar, the Court ruled that the
mere fact that respondent Osmena was a holder of a certificate stating
that he is an American did not mean that he is no longer a Filipino, and
that an application for an alien certificate of registration was not
tantamount to renunciation of his Philippine citizenship.
And, in Mercado v. Manzano and COMELEC, it was held that the
fact that respondent Manzano was registered as an American citizen in
the Bureau of Immigration and Deportation and was holding an
American passport on April 22,1997, only a year before he filed a
certificate of candidacy for vice-mayor of Makati, were just assertions of
his American nationality before the termination of his American
citizenship.
Thus, the mere fact that private respondent Rosalind Ybasco
Lopez was a holder of an Australian passport and had an alien certificate
of registration are not acts constituting an effective renunciation of
citizenship and do not militate against her claim of Filipino citizenship.
For renunciation to effectively result in the loss of citizenship, the same
must be express. Valles v. Comelec, G.R. No. 137000, August 9,2000.
Q. Valles also maintains that even on the assumption that the private
respondent had dual citizenship, still, she is disqualified to run for
governor of Davao Oriental; citing Section 40 of Republic Act 7160
otherwise known as the Local Government Code of 1991, which states:
"SEC. 40. Disqualifications. — The following persons are
disqualified from running for any elective local position:
(d) Those with dual citizenship;
A. Again, petitioner's contention is untenable. In the aforecited case of
Mercado v. Manzano, the Court clarified "dual citizenship" as used in the
Local Government Code and reconciled the same with Article IV, Section
5 of the 1987 Constitution on dual allegiance. Recognizing situations in
which a Filipino citizen may, without performing any act, and as an
involuntary consequence of the conflicting laws of different countries,
be also a citizen of another state, the Court explained that dual
Sees. 4-5 ART. IV - CITIZENSHIP 197
citizenship as a disqualification must refer to citizens with dual
allegiance. The Court succinctly pronounced: . . the phrase 'dual
citizenship' in R.A. No. 7160,... (d) and in R.A. No. 7854,... must be
understood as referring to 'dual allegiance.' Consequently, persons with
mere dual citizenship do not fall under this disqualification."
Furthermore, it was ruled that for candidates with dual
citizenship, it is enough that they elect Philippine citizenship upon the
filing of their certificate of candidacy, to terminate their status as
persons with dual citizenship. The filing of a certificate of candidacy
sufficed to renounce foreign citizenship, effectively removing any
disqualification as a dual citizen. This is so because in the certificate of
candidacy, one declares that he/she is a Filipino citizen and that he/she
will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto. Such declaration, which is
under oath, operates as an effective renunciation of foreign citizenship.
Therefore, when the herein private respondent filed her certificate of
candidacy in 1992, such fact alone terminated her Australian citizenship.
Valles v. Comelec, G.R. No. 137000, August 9, 2000.
Q. Valles maintains further that when citizenship is raised as an issue in judicial
or administrative proceedings, the resolution or decision thereon is
generally not considered res judicata in any subsequent proceeding
challenging the same; citing the case of Moy Ya Lim Yao v. Commissioner
of Immigration, 41 SCRA 292, he insists that the same issue of citizenship
may be threshed out anew.
A. Petitioner is correct insofar as the general rule is concerned, i.e., the
principle of res judicata generally does not apply in cases hinging on the
issue of citizenship. However, in the case oiBurca v. Republic, 51 SCRA
248, an exception to this general rule was recognized. The Court ruled in
that case that in order that the doctrine of res judicata may be applied in
cases of citizenship, the following must be present:
1) a person's citizenship be raised as a material issue in a
controversy where said person is a party;
2) the Solicitor General or his authorized representative took
active part in the resolution thereof; and
198 THE 1987 PHILIPPINE CONSTITUTION:
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Sec. 10
3) the finding on citizenship is affirmed by this Court.
Although the general rule was set forth in the case of Moy Ya Lim
Yao, the case did not foreclose the weight of prior rulings on citizenship.
It elucidated that reliance may somehow be placed on these
antecedent official findings, though not really binding, to make the
effort easier or simpler. Indeed, there appears sufficient basis to rely on
the prior rulings of the Commission on Elections in SPA.-N0. 95-066 and
EPC 92-54 which resolved the issue of citizenship in favor of the herein
private respondent. The evidence adduced by petitioner is substantially
the same evidence presented in these two prior cases. Petitioner failed
to show any new evidence or supervening event to warrant a reversal
of such prior resolutions. However, the procedural issue
notwithstanding, considered on the merits, the petition cannot prosper.
Valles v. Comelec, G.R. No. 137000, August 9, 2000.
Q. What is the effective date of the repatriation when approved.
A. In the case of former natural born citizens, the effective date is the date of
application for repatriation not the date when repatriation was
approved. Lee v. Commission on Elections & Frivaldo, G.R. No. 120295,
June 28,1996. (Plurality opinion.)
Q. Petitioner claims that she was an illegitimate daughter of a Filipina mother;
that she was erroneously registered as an alien; that she lost her
citizenship upon marriage to an alien; that her alien husband has died.
She petitioned the CFI for "judicial repatriation" and the court declared
her ^judicially repatriated." Was the repatriation proper?
A. No. There is no law authorizing "judicial repatriation." All that is needed is
for the woman to take the necessary oath of allegiance and to register
the oath in the proper civil registry. However, the petitioner's claim of
Philippine citizenship prior to her marriage may not be established in an
action where the mother or her heirs are not made parties. Philippine
citizenship may not be declared in a non-adversary suit where affected
persons are not made parties. Dugcoy Jao v. Republic, G.R. No. 29397,
March 29,1983.
(NOTE: Compare with People v. Avengonza, G.R!. No. 27976,
December 7,1982.)
Sees. 4-5 ART. IV - CITIZENSHIP 199
Q. Does the repatriation of a mother entitle her minor son to a declaration that
he is entitled to Philippine citizenship?
A. Yes . Republic v. Honorable Judge Tandayag, G.R. No. 32999, October
15,1982 (Reiterating Talaroc v. Uy, 92 Phil. 52 [19521).
SEC. 4. 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 RENOUNCED IT.
Q. What was Philippine law on the citizenship of the Filipina married to an alien
before the 1973 Constitution?
A. Under Commonwealth Act No. 63, Section 1(7), a Filipino woman loses her
Philippine citizenship "upon her marriage to a foreigner if, by virtue of
the laws in force in her husband's country, she acquires his nationality."
The 1973 Constitutional provision repeals this statutory rule and the
1987 Constitution made it applicable not just to female citizens.
SEC. 5. DUAL ALLEGIANCE OF CITIZENS IS INIMICAL TO THE NATIONAL
INTEREST AND SHALL BE DEALT WITH BY LAW.
Q. Does the Constitution allow dual citizenship?
A. Because Philippine law has no control over citizenship laws of other
countries, dual citizenship can be unavoidable under the present
Constitution. A child of a Filipina mother is a Filipino [Section 1(2)] and
might also have his alien father's citizenship. A Filipina married to an
alien remains a Philippine citizen (Section 2) but might also require her
alien husband's citizenship.
Q. Does not Section 5 in effect prohibit dual citizenship?
A. The specific target of this new provision is not dual citizenship but dual
allegiance arising from e.g., mixed marriages or birth in foreign soil. This
was seen as more insidious than dual citizenship. To the extent,
however, that dual citizenship also imports dual allegiance, then it must
also be "dealt with by law." In other words, the Constitution leaves the
disposition of the problem of dual citizenship and dual allegiance to
ordinary legislation.
200 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 4-5
Q. Explain how R.A. 9225 operates.
A. What R.A. 9225, the Dual Citizenship Law, has done is to
liberalize the reacquisition and retention of natural born
Philippine citizenship. The law deals with two classes of
persons: (1) Filipinos who lost their citizenship prior to the
enactment of RA 9225 and (2) Filipinos who become citizens
of another country after the effectivity of R.A. 9225.
Regarding those who lost Philippine citizenship prior to
R.A. 9225, the law says:
Section 2. Declaration of Policy — It is hereby
declared the policy of the State that all Philippine citizens
of another countiy shall be deemed not to have lost their
Philippine citizenship under the conditions of this Act.
Section 3. Retention of Philippine Citizenship
— Any provision of law to the contrary notwithstanding,
natural-born citizenship by reason of their naturalization
as citizens of a foreign country are hereby deemed to
have re-acquired Philippine citizenship upon taking the
following oath of allegiance to the Republic:
"I ______________________ solemnly swear
(or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and
obey the laws and legal orders promulgated by the
duly constituted authorities of the Philippines;
and I hereby declare that I recognize and accept
the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that
I imposed this obligation upon myself voluntarily
without mental reservation or purpose of evasion."
What Section 3 is saying is that one who lost his citizenship
prior to R.A. 9225 reacquires his citizenship upon taking the
prescribed oath. For its part, Section 2 says that such person
is deemed not to have lost or never to have lost his Philippine
citizenship. (See In re Benjamin M. Dacanay, B.M. No. 1678,
December 17,2007. Also Crisologo v. Tan, Comelec Resolution,
May 4,2010.)
For those who lose their citizenship after R.A. 9225, the
applicable law is the last paragraph of Section 3:
Natural born citizens of the Philippines who, after
the effectivity of this Act, become citizens of a foreign
Sees. 4-5 ART. IV - CITIZENSHIP 201
country shall retain their Philippine citizenship upon taking the
aforesaid oath.
R.A. 9225 also provides for derivative citizenship as well as civil and
political rights and liabilities.
Section 4. Derivative Citizenship — The unmarried child,
whether legitimate, illegitimate or adopted, below eighteen (18)
years of age, of those who re-acquire Philippine citizenship upon
effectivity of this Act shall be deemed citizenship of the
Philippines.
Section 5. Civil and Political Rights and Liabilities — 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:
(1) Those intending to exercise their right of suffrage
must Meet the requirements under Section 1, Article V of the
Constitution, Republic Act No. 9189, otherwise known as "The
Overseas Absentee Voting Act of 2003" and other existing laws;
(2) Those seeking elective public in the Philippines shall
meet the qualification for holding such public office as required by
the Constitution and existing laws and, at the time of the filing of
the certificate of candidacy, make a personal and sworn
renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe
and swear to an oath of allegiance to the Republic of the
Philippines and its duly constituted authorities prior to their
assumption of office: Provided, That they renounce their oath of
allegiance to the country where they took that oath;
(4) Those intending to practice their profession in the
Philippines shall apply with the proper authority for a license or
permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any
public office in the Philippines cannot be exercised by, or extended
to, those who:
202 THE 1987 PHILIPPINE CONSTITUTION: Sees.
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A COMPREHENSIVE REVIEWER
(a) are candidates for or are occupying any public office
in the country of which they are naturalized citizens; and/or
(b) are in active service as commissioned or noncommissioned
officers in the armed forces of the country which
they are naturalized citizens.
ARTICLE V
SUFFRAGE
SECTION 1. SUFFRAGE MAY BE EXERCISED BY ALL CITIZENS OF
THE PHILIPPINES NOT OTHERWISE DISQUALIFIED BY LAW, WHO ARE AT
LEAST EIGHTEEN YEARS OF AGE, AND WHO SHALL HAVE RESIDED IN
THE
PHILIPPINES FOR AT LEAST ONE YEAR AND IN THE PLACE WHEREIN
THEY
PROPOSE TO VOTE FOR AT LEAST SIX MONTHS IMMEDIATELY
PRECEDING
THE ELECTION. NO LITERACY, PROPERTY, OR OTHER SUBSTANTIVE
REQUIREMENT SHALL BE IMPOSED ON THE EXERCISE OF SUFFRAGE.
Q. What is suffrage?
A. Suffrage traditionally has been understood as the right to vote in elections.
Under the 1973 Constitution, Article V, Section 4, however, it was given
the additional meaning of the obligation to vote. The 1973 provision has
not been carried into the 1987 Constitution.
Q. Who may exercise suffrage?
A. "Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall
have resided in the Philippines for at least one year and in the place
wherein they propose to vote for at least six months immediately
preceding the election."
Q. Why has the voting age been lowered to eighteen years?
A. In order to broaden the mass electoral base and in order to emphasize the
role of the youth in public affairs.
Q. What does "residence" mean?
A. The term "residence" as used in the election law has two meanings. In the
requirement of residence in the Philippines, resi
203
204 THE 1987 PHILIPPINE CONSTITUTION: Sees.
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A COMPREHENSIVE REVIEWER
dence is synonymous with "domicile," which imports not only intention to
reside in a fixed place but also personal presence in that place, coupled with
conduct indicative of such intention. In order to acquire a domicile by choice,
there must concur: (1) residence or bodily presence in the new locality, (2) an
intention to remain there, and (3) an intention to abandon the old domicile. In
other words, there must be an animus non reuer- tendi and an animus
manendi. The purpose to remain in or at the domicile of choice must be for an
indefinite period of time. The acts of the person must conform with his
purpose. The change of residence must be voluntary; the residence at the
place chosen for the domicile must be actual; and to the fact of residence
there must be added the animus manendi. Gallego v. Verra, 73 Phil. 453,455-6
(1941).
With respect, however to the requirement of residence in the
place where one is to vote, residence can mean either domicile, as
described above, or temporary residence. Thus, one domiciled in a
municipality in Camarines Sur but is assigned by his company to Quezon
City has a choice of either voting in Camarines Sur or in Quezon City if he
has been "residing" in Quezon City for at least six months. This certainly
is the doctrine that can be dawn from Faypon. Faypon makes no suggestion
at all that his registration away from his domicile was invalid. 96
Phil. 294,299-300 (1954).
NOTE: In Romualdez v. Regional Trial Court, 226 SCRA 408, 415
(1993), Philip Romualdez returned from the United States where he
had sought asylum after the EDSA Revolution. He was allowed to
register as a voter in Tolosa, Leyte. His residence (and also domicile) in
Tolosa, Leyte, established in the early 1980's, was recognized as never
having been abandoned in the absence of evidence to the contrary.
Q. May citizens residing abroad exercise their right of suffrage?
A. R A. 9189 now allows citizens residing abroad to vote even if they are
recognized as immigrants by the country of their residence. They may
vote for President, Vice-President, Senators, and party-list
representatives. But they are required to file an affidavit "prepared for
the purpose by the Commission [on Elections] declaring that he/she
shall resume actual physical permanent residence in the Philippines not
later than three (3) years from approval of his/her registration under
this Act."
Sec. 1 ART. V - SUFFRAGE 205
The affidavit is meant to be a statement the he or she never
intended to abandon his or her domicile in the Philippines. If no affidavit
is filed, the person is deemed disqualified. But if after filing such affidavit
the person does not reestablish physical residence within three years,
the person is likewise disqualified.
Q. Section 8, of R.A. 8189, which provides a system of continuing registration,
says:
"SECTION 8. System of Continuing Registration of Voters. —
The Personal filing of application of registration of voters shall be
conducted daily in the office of the Election Officer during regular
office hours. No registration shall, however, be conducted during
the period starting one hundred twenty (120) days before a
regular election and ninety (90) days before a special election."
Likewise, Section 35 of R.A. 8189, which among others, speaks of a
prohibitive period within which to file a sworn petition for the exclusion
of voters from the permanent voter's list, provides:
"SECTION 35. Petition for Exclusion of Voters from the List —
Any registered voter, representative of a political party . .. may file .
.. except one hundred (100) days prior to a regular election "
These provisions notwithstanding, it is being sought that the
Comelec be compelled to conduct registration during the prohibited
days on the argument that suffrage is a very impotent right. Decide.
A. The right of a citizen to vote is necessarily conditioned upon certain
procedural requirements he must undergo: among others, the process
of registration. Specifically, a citizen in order to be qualified to exercise
his right to vote, in addition to the minimum requirements set by the
fundamental charter, is obliged by law to register, at present, under the
provisions of Republic Act No. 8189, otherwise known as the "Voter's
Registration Act of 1996.'' The State, in the exercise of its inherent police
power, may enact laws to safeguard and regulate the act of voter's
registration for the ultimate purpose of conducting honest, orderly and
peaceful election,
206 THE 1987 PHILIPPINE CONSTITUTION: Sees.
4-5
A COMPREHENSIVE REVIEWER
to the incidental yet generally important end, that even preelection
activities could be performed by the duly constituted authorities in a
realistic and orderly manner. Mandamus will not Ue. Kahayan, et al. v.
Comelec, G.R. No. 147066, March 26, 2001.
Q. Who prescribes disqualifications?
A. The Congress has been given the discretion to create disqualifications.
However, the Congress is prohibited from prescribing any literacy,
property, or other substantive requirements.
Q. Does a law prohibiting voters in a city from voting for elective provincial
officials impose a substantial requirement for the exercise of suffrage
thus violating Article V, Section 1?
A. No. "The prohibition contemplated in the Constitution has reference to
such requirements as the Virginia poll tax, invalidated in Harper v.
Virginia Board of Elections, or the New York requirement that to be
eligible to vote in a school district, one must be a parent of a child
enrolled in a local public school, nullified in Kramer v. Union Free School
District, 395 U.S. 621, which impose burdens on the right of suffrage
without achieving permissible state objectives. In this particular case, no
such burdens are imposed upon the voters of the cities of Cebu and
Mandau. They are free to exercise their rights without any other
requirement, save that of being registered voters in the cities where
they reside and the sanctity of their ballot is maintained." Celia v.
COMELEC, L-52304, January 28,1980.
Q. Who are not qualified to vote under the Election Code?
A. The following persons shall not be qualified to vote:
(a) Any person who has been sentenced by final judgment to
suffer an imprisonment of not less than one year, such disability not
having been removed by plenary pardon: Provided, however, That any
person disqualified to vote under this paragraph shall automatically
reacquire the right to vote upon expiration of five years after service of
sentence.
(b) Any person who has been adjudged by final judgment by
competent court of having violated his allegiance to the Republic of the
Philippines.
(c) Insane or feeble-minded persons.
Sec. 1 ART. V - SUFFRAGE 207
Q. Have the above disqualifications been in any way affected by the provision
which prohibits the legislature from prescribing any literacy, property or
substantive requirements?
A. It will be noted that the disqualifications found in the Election Code are
"substantive," in that they touch on the "quality" of the voter, as distinct
from the procedural requirement of, e.g., registration. However, unlike
literacy or property qualifications, they are not "neutral" by themselves
but have a direct bearing on the "moral" or "mental" worth of the
individual. It is submitted therefore that these disqualifications are
compatible with the constitutional prohibition. The substantive
requirements prohibited by the Constitution are those which
equivalently impose a penalty for faultless disadvantage such as illiteracy
or poverty.
Q. If eighteen is the minimum voting age, how could fifteen year olds be
allowed to vote, e.g., in the referendum of February 27, 1975?
A. Since the referendum held on February 27, 1975, was purely consultative,
there was no need to apply the voting age qualifications found in the
Constitution. Moreover, the decree calling for the referendum
prescribed separate ballot boxes for those who were below eighteen.
See Gonzales v. Commission on Elections, L-40117, and February
22,1975.
SEC. 2. THE CONGRESS SHALL PROVIDE A SYSTEM FOR SECURING
THE SECRECY AND SANCTITY OF THE BALLOT AS WELL AS A SYSTEM
FOR
ABSENTEE VOTING BY QUALIFIED FILIPINOS ABROAD.
THE CONGRESS SHALL ALSO DESIGN A PROCEDURE FOR THE
DISABLED AND THE ILLITERATES TO VOTE WITHOUT THE ASSISTANCE
OF
OTHER PERSONS. UNTIL THEN, THEY SHALL BE ALLOWED TO VOTE
UNDER
EXISTING LAWS AND SUCH RULES AS THE COMMISSION ON ELECTIONS
MAY
PROMULGATE TO PROTECT THE SECRECY OF THE BALLOT.
Q. Is absentee voting allowed?
A. Yes, under R A. 9189.
Q. What is the rule?
A. Sec. 4 says: "Sec. 4. Coverage. — All citizens of the Philippines abroad, who
are not otherwise disqualified by law, at least eighteen (18) years of age
on the day of elections, may
208 THE 1987 PHILIPPINE CONSTITUTION: Sees.
4-5
A COMPREHENSIVE REVIEWER
vote for president, vice-president, senators and party-list
representatives."
Q. Does this rule dispense with the residence requirement?
A. No. Section 4 applies to those who have not lost their domicile in the
Philippines.
Q. What is the rule on immigrants?
A. Sec. 5 says: aAn immigrant or a permanent resident who is recognized as
such in the host country, unless he/she executes, upon registration, an
affidavit prepared for the purpose by the Commission declaring that
he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her
registration under this Act. Such affidavit shall also state that he/she has
not applied for citizenship in another country. Failure to return shall be
the cause for the removal of the name of the immigrant or permanent
resident from the National Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia
Q. But does not being an immigrant abroad mean that one has lust Philippine
domicile?
A. Not necessarily. Loss of domicile is evidentiary matter. The presumption is
that being an immigrant according to the laws of another country may
not necessarily mean loss of domicile. The required declaration of intent
to return is meant to be an assertion that one has not abandoned
Philippine domicile. However, proof of loss of domicile may be shown in
a exclusion proceeding under the Election Law.
Q. Will those who have reacquired their citizenship through R.A. 9225 and
have dual citizenship have to reacquire Philippine domicile in order to
vote?
A. Section 1 of Article V prescribes residency requirement as a general
eligibility factor for the right to vote. On the other hand, Section 2
authorizes Congress to devise a system wherein an absentee may vote,
implying, the Court surprisingly said, that a nonresident may, as an
exception to the residency prescription in the Section 1, be allowed to
vote. The Court noted there is no provision in the dual citizenship law —
R.A. 9225 — requiring
Sec. 1 ART. V - SUFFRAGE 209
"duals" to actually establish residence and physically stay in the
Philippines first before they can exercise their right to vote. On the
contrary, R.A. 9225, in implicit acknowledgment that "duals" are most
likely non-residents, grants under its Section 5(1) the same right of
suffrage as that granted an absentee voter under RA. 9189. The Court
added that it cannot be overemphasized that R.A. 9189 aims, in
essence, to enfranchise as much as possible all overseas Filipinos who,
save for the residency requirements exacted of an ordinary voter under
ordinary conditions, are qualified to vote. Nicolas-Lewis v. Comelec, G.R.
No. 162759, August 4,2006.
The Court seems to have recognized a novel way of amending the
Constitution, that is, by silence! Because the new citizens under R.A.
9225 are not specifically required to establish residence in the
Philippines, the conclusion is drawn that residence is not required. To
bolster the conclusion the Court assimilates the new citizens to
absentee voters under R.A. 9189 who, incidentally, are required to file
an affidavit as indication that they had not abandoned their Philippine
domicile.
ARTICLE VI
THE LEGISLATIVE DEPARTMENT
SECTION 1. THE LEGISLATIVE POWER SHALL BE VESTED IN THE
CONGRESS OF THE PHILIPPINES WHICH SHALL CONSIST OF A SENATE
AND
A HOUSE OF REPRESENTATIVES, EXCEPT TO THE EXTENT RESERVED TO
THE PEOPLE BY THE PROVISION ON INITIATIVE AND REFERENDUM.
Q. What is legislative power?
A. It is the authority to make laws and to alter or repeal them.
Q. Where does the Constitution vest legislative power?
A. Legislative power is 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" in Section 32. The 1987 Constitution has thus restored
bicameralism.
Q. What are the advantages of bicameralism?
A. Bicameralism (1) allows for a body with a national perspective
to check the parochial tendency of representatives elected by district;
(2) allows for more careful study of legislation; (3) makes the legislature
less susceptible to control by the Executive; (4) serves as training ground
for national leaders.
Q. What are the advantages of unicameralism?
A. The advantages of unicameralism are simplicity of organization
resultingin economy and efficiency, facility in pinpointing responsibility
for legislation, and avoidance of duplication.
Q. How many kinds of legislative power are there?
A. In republican systems, there are generally two, original and derivative.
Original legislative power is possessed by the sovereign
210
Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 211
people. Derivative legislative power is that which has been delegated by
the sovereign people to legislative bodies and is subordinate to the
original power of the people. This is the kind of power that is vested in
Congress.
Legislative power may also be classified into constituent, which is
the power to amend or revise the Constitution, and ordinary, which is
the power to pass ordinary laws. The people, through the amendatory
process, exercise constituent power, and, through initiative and
referendum, ordinary legislative power.
Q. What are the kinds of limits on legislative power?
A. There are two kinds, substantive and procedural. Substantive limits curtail
the contents of a law. For example, no law may be passed which impairs
freedom of speech. Procedural limits curtail the manner of passing laws.
For example, a bill must generally be approved by the President before
it becomes law.
Q. On what subject matter may Congress legislate?
A. Provided that the substantive and procedural limitations found in the
Constitution are observed, the Congress may legislate on any subject
matter. In other words, the legislative power of Congress is plenary.
(This is different from the legislative power of the United States
Congress which consists only of the legislative powers enumerated in
the Federal Constitution.)
Q. May Congress pass irrepealable laws?
A. No. The power of present and future legislatures must remain plenary.
When one legislature attempts to pass an irrepealable law, to that
extent it attempts to limit the power of future legislatures. The power of
any legislature can be limited only by the Constitution.
Q. May Congress delegate its legislative power?
A. No. Legislative power must remain where the people have lodged it.
However, there are two exceptions to this rule: (1) by immemorial
practice legislative power may be delegated to local governments, Rubi
v. Provincial Board, 39 Phil. 660 (1919); (2) the Constitution itself might in
specific instances allow delegation of legislative power, e.g., Article VI,
Sections 23(2) and 28(2).
212 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. When legislative power is delegated, what is the scope of the
delegated power?
A. The scope is only as far as Congress allows it. Thus, delegated
legislation may not violate a statute. Solicitor General v. Metropolitan
Manila Authority, G.R. No. 102782, December 11,1991.
Q. Is not legislative power as a matter of practice delegated to administrative
agencies?
A. No. What is delegated to administrative agencies is not legislative or
law-making power but rule-making power or law execution.
Administrative agencies may be allowed either to "fill up the details" of
an already complete statute or to ascertain the facts necessary to bring
a "contingent" law into actual operation.
Q. In order to ensure that the power delegated by the legislature is not
law-making but merely law execution, what qualities must the
delegating law possess?
A. The delegating law must "(a) be complete in itself — it must set forth
therein the policy to be carried out or implemented by the delegate . . .
and (b) fix a standard — the limits of which are sufficiently determinate
or determinable — to which the delegate must conform in the
performance of his functions ... Indeed without a statutory declaration
of policy, the delegate would, in effect, make or formulate such policy,
which is the essence of every law; and, without the aforementioned
standard, there would be no means to determine, with reasonable
certainty, whether the delegate has acted within or beyond the scope
of his authority. Hence, he could thereby arrogate upon himself the
power, not only to make law, but also — and this is worse — to
unmake it, by adopting measures inconsistent with the end sought to
be attained by the Act of Congress." Pelaez v. Auditor General, 15 SCRA
569 (1965).
Q. Must the standard be formulated in precise declaratory
language?
A. No. It can be drawn from the declared policy of the law and
from the totality of the delegating statute. In Osmefia v. Orbos, 220
SCRA 703, 711-713 (1993), the authority of the Energy Regulatory
Board to fix the domestic prices of petroleum products was found to be
sufficiently specified "by the general policy of the law to protect local
consumers by stabilizing and
Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 213
subsidizing domestic pump rates," by the authority given to impose
additional amounts "to augment the resources of the [Oil Price
Stabilization] Fund." More liberally still, the standard may be embodied
in other statutes on the same subject as that of the challenged law.
Chiongbian v. Orbos, G.R. No. 96754, June 22,1995.
Q. A tax law is passed saying:
SEC. 4. Sec. 106 of the same Code, as amended, is hereby
further amended to read as follows:
SEC. 106. Value-Added Tax on Sale of Goods or
Properties. -
(A) Rate and Base of Tax. - There shall be levied,
assessed and collected on every sale, barter or exchange of
goods or properties, a value-added tax equivalent to ten
percent (10%) of the gross selling price or gross value in
money of the goods or properties sold, bartered or
exchanged, such tax to be paid by the seller or transferor:
provided, that the President, upon the recommendation of
the Secretary of Finance, shall, effective January 1, 2006,
raise the rate of value-added tax to twelve percent (12%),
after any of the following conditions has been satisfied.
(i) value-added tax collection as a
percentage of Gross Domestic Product (GDP) of the
previous year exceeds two and four-fifth percent (2
4/5%) or
(ii) national government deficit as a
percentage of GDP of the previous year exceeds one
and one-half percent (11/2%).
Is this an invalid delegation of legislative power?
A. No. It is a valid delegation of law execution. It is an example of
contingent legislation. Where the effectivity of the law is made
dependent on the verification by the executive of the existence of
certain conditions. The verification is delegated to the executive.
Abakada Guru Party List Officers v. Executive Secretary, G.R. No. 168056,
September 1, 2005. Reconsidered October 18, 2005.
214 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. Act No. 2307 says in part:
Section 16. The Board shall have power, after hearing, upon
notice, by order in writing, to require every public utility as herein
defined:
(3) To furnish annually a detailed report of finances and
operations, in such form and containing such matters as the Board may
from time to time prescribe.
Is the delegation valid?
A. No. The delegation is so general that it is no more precise than
if it had just said "the Board may require every public utility to furnish
annually a detailed report." Compahia General de Tabacos v. Board, 34
Phil. 136 (1916).
Q. A law is passed saying: "If for any cause conditions arise
resulting in an extraordinary rise in the price of palay, rice or corn, the
Governor General is authorized to issue and promulgate temporary
rules and emergency measures fixing the price of such cereals." Is the
delegation valid?
A. No. The law contains no standard that will guide the Governor
General in determining whether the rise is extraordinary and for
determining what the price should be. United States v. Ang Tang Ho, 43
Phil. 1 (1922).
Q. A law authorized the Secretary of Agriculture and Natural
Resources to impose restrictions "on the use of any fishing net or fishing
device for the protection of fish fry or fish eggs." Pursuant to this a
regulation is passed prohibiting the use of trawls. Is the regulation valid?
A. Yes. The regulation merely supplies the details for
implementing the law which is already clear and complete in itself and
contains a standard to guide the administrative officer. Araneta v.
Gatmaitan, 101 Phil. 328 (1957).
Q. The Secretary of Agriculture passed a regulation penalizing
electro fishing. Electro fishing is not one of the forms of fishing punished
in the Fisheries Act. In fact, a later P.D. added electro-fishing to the list of
punishable forms of fishing, a recognition that it was not punishable
under prior existing law. Can one be prosecuted under the regulation?
A. No. The regulation was beyond the scope of the Secretary's
authority. People v. Maceren, L-32166, 18 October 1977 (76 SCRA 450).
(NOTE: Compare this with the Araneta case.)
Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT2 15
Q. A Letter of Instruction issued by the President requiring the use
of "early warning devices" (EWD) and also the implementing regulations
are challenged as undue delegation of legislative power. Decide.
A. As to the claim of undue delegation, it is enough to say that the
standard of "safe transit upon the roads" is sufficient. Moreover, the
Vienna Convention on Road Signs and Signals, which endorses the use
of EWD, is impressed with the character of a "generally accepted
principle of international law" which our Constitution makes part of the
law of the land. Agustin v. Edu, 88 SCRA 195 (L-49112, February 2,1979).
Q. The collective bargaining agreement stipulates that in case of
any wage adjustment decreed by law higher than the increase given in
the agreement, the company shall pay the difference. R.A. 6640 decreed
a wage increase higher than the CBA increase. DOLE, however, issued a
regulation saying that salary increase granted pursuant to a CBA will not
be considered in determining compliance with the new law. Proper?
A. No. "Administrative regulations adopted under legislative
authority by a particular department must be in harmony with the
provisions of the law, and should be for the sole purpose of carrying into
effect its general provisions. The law itself cannot be expanded by such
regulations. An administrative agency cannot amend an act of
Congress." Cebu Oxygen & Acetylene v. Secretary Drilon, G.R. No. 82849,
August 2,1989.
Q. The law authorizing the Medical Board of Examinations to
devise tests for entrance to medical schools is assailed as undue
delegation of legislative power because of lack of sufficient standards.
What are the standards, if any?
A. The standard is sufficiently found in the law's desire for the
"standardization and regulation of medical education" and in various
other parts of the statute which make the guidelines adequately clear.
Tablarin v. Gutierrez, 152 SCRA 730 (1987).
Q. Memorandum Circular No. 2 of POEA is challenged as
unallowable delegation. POEA bases its authority to issue the regulation
on Section 4(a) of Executive Order No. 97 which authorizes it to
"promulgate the necessary rules and regulations to govern the exercise
of the adjudicatory functions of the Administration." It is alleged that
there is no sufficient standard. Decide.
A. The standard is to be found in the Executive Order creating the
Administration mandating it to protect the rights of overseas Filipino
workers to "fair and equitable employment practices." Eastern Shipping
Lines v. Philippine Overseas Employment Administration, 166 SCRA 533
(1988).
216 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. May the power to fix wages be delegated to an executive
body?
A. Yes, provided there are adequate standards. Employers
Confederation v. National Wages and Productivity Commission, G.R. No.
9619, September 24,1991.
Q. R.A. No. 8180 (Oil Deregulation Law) enumerated two factors
to be considered by the Department of Energy and the Office of the
President in effecting the full deregulation of the oil industry, viz.: (1) the
time when the price of crude oil and petroleum products in the world
market are declining, and (2) the time when the exchange rate of the
peso in relation to the US dollar is stable. E.O. No. 392 considered the
depletion of the OPSF fund as a factor in ordering the early
implementation of full oil deregulation. Petitioners contend that E.O.
No. 392 misapplied R.A. No. 8180. Decide.
A. "We therefore hold that the Executive department failed to
follow faithfully the standards set by R.A No. 8180 when it considered
the extraneous factor of depletion of the OPSF fund." Such
consideration amounts to a rewriting of the standards set forth in R. A
No. 8180. "On the basis of the text of E.O. No. 392, it is impossible to
determine the weight given by the Executive department to the
depletion of the OPSF fund. ...In light of this uncertainty, we rule that
the early deregulation under E.O. No. 392 constitutes a misapplication
of R.A No. 8180." Tatad v. Secretary of the Department of Energy, G.R.
Nos. 124360 and 127867, November 5,1997,281 SCRA 330,35354.
Q. What is the rationale of the grant of quasi-legislative and
quasi-judicial powers to administrative bodies?
A. "[A]s a result of the growing complexity of the modern society,
it has become necessary to create more and more administrative
bodies to help in the regulation of its ramified activities. Specialized in
the particular field assigned to them, they can deal with the problems
thereof with more expertise and dispatch than can be expected from
the legislature or the courts of justice." Philippine International Trading
Corporation v. Angeles, G.R. No. 108461, October 21, 1996, 263 SCRA
421,444-45 (citing Solid Homes Inc. v Payawal, 177 SCRA 72 [1989]).
NOTES: The Supreme Court has continued to apply the
same principles that have been developed in the past. Thus the
standby authority given to the President to increase the value
added tax rate in the Vat Law, R.A. 9337, was upheld as an
example of contingent legislation where the effectivity of the law
is made to depend on the verification by the executive of the
existence of certain conditions. Abakada Guru Party List
Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 217
Officers v. Executive Secretary, G.R. No. 168056, September 1,
2005. Reconsidered October 18,2005.
In Gerochi v. DENR, G.R. No. 159796, July 17, 2007, the
power delegated to the Energy Regulator Board to fix and impose
a universal charge on electricity end-users was challenged as an
undue delegation of the power to tax. The Court, however, said
that, since the purpose of the law was not revenue generation but
energy regulation, the power involved was more police power
than the power to tax. Moreover the Court added that the power
to tax could be used for regulation. As to the validity of the
delegation to an executive agency, the Court was satisfied that the
delegating law was complete in itself and the amount to be
charged was made certain by the parameters set by the law itself.
R.A 9335, the Attrition Act of 1995, authorizes the BIR and
BOC to give awards to those who surpass the BIR targets and to
impose sanctions on those who fall short. The awards are taken
from the excess over target as set up by a Board. The Rules for
implementation are subject to review by an Oversight Committee
of Congress. The validity of the law was challenged on the ground
that the delegation to the President of the power to set targets
was invalid. However, the law is complete and has standards for
the President to follow. Revenue targets are based on the original
estimated revenue collection expected respectively of the BIR and
the BOC for a given fiscal year as approved by the DBCC and
stated in the BESF submitted by the President to Congress. Thus,
the determination of revenue targets does not rest solely on the
President.
Rules and regulations promulgated by administrative agencies have the
force of law. May they have the force of penal law?
Yes, provided that the following conditions concur: (1) The delegating
statute itself must specifically authorize the promulgation of penal
regulations, U.S. v. Grimmaud, 220 U.S. 506 (1911); (2) The penalty must
not be left to the administrative agency but must be provided by the
statute itself, U.S. v. Barrios, 11 Phil. 327 (1908); (3) The regulation must
be published in the Official Gazette or a newspaper of general circulation,
People v. Que Po Lay, 94 Phil. 640 (1954).
Q. Section 32 of R.A. 4670 prescribes a penalty of "imprisonment,
in the discretion of the court." No period is specified. Valid?
A No. "It is not for the courts to fix the term of imprisonment
where no points of reference have been provided by the legislature.
What valid delegation presupposes and sanctions is an exercise of
218 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 2-5
discretion to fix the length of service which must be served within
specific or designated limits provided by law, the absence of which
designated limits will constitute such exercise as undue delegation, if
not an outright intrusion or assumption, of legislative power." People v.
Dacuycuy, G.R. No. 45127, May 5,1989.
SEC. 2. THE SENATE SHALL BE COMPOSED OF TWENTY-FOUR
SENATORS WHO SHALL BE
ELECTED AT LARGE BY THE QUALIFIED VOTERS OF THE PHILIPPINES, AS
MAY BE PROVIDED BY
LAW.
Q. What is the composition of the Senate? A.
Twenty-four Senators elected at large.
SEC. 3. No PERSON SHALL BE A SENATOR UNLESS HE IS A NATURAL-
BORN CITIZEN OF
THE PHILIPPINES, AND, ON THE DAY OF THE ELECTION,
IS AT LEAST THIRTY-FIVE YEARS OF AGE, ABLE TO READ AND WRITE, A
REGISTERED VOTER, AND A
RESIDENT OF THE PHILIPPINES FOR NOT LESS THAN TWO YEARS
IMMEDIATELY PRECEDING THE
DAY OF THE ELECTION.
Q. What are the qualifications of a Senator?
A. Section 3. These may neither be added to nor subtracted from by
Congress.
Q. What does "on the day of the election" mean?
A. It means on the day the votes are cast.
SEC. 4. THE TERM OF OFFICE OF THE SENATORS SHALL BE SIX YEARS
AND SHALL COMMENCE, UNLESS OTHERWISE PROVIDED BY LAW, AT
NOON ON THE THIRTIETH
DAY OF JUNE NEXT FOLLOWING THEIR ELECTION.
No SENATOR SHALL SERVE FOR MORE THAN TWO CONSECUTIVE
TERMS. VOLUNTARY
RENUNCIATION OF THE OFFICE FOR ANY LENGTH OF TIME SHALL NOT
BE CONSIDERED AS AN
INTERRUPTION IN THE CONTINUITY OF HIS SERVICE FOR THE FULL TERM
FOR WHICH HE WAS
ELECTED.
Q. What is the term of office of a Senator?
A. Section 4.
Q. May a Senator serve for more than two terms?
A. Yes, provided that the terms are not consecutive.
SEC. 5. (1) THE HOUSE OF REPRESENTATIVES SHALL BE COMPOSED
OF NOT MORE THAN TWO HUNDRED AND FIFTY MEMBERS, UNLESS
OTHERWISE
Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 219
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.
(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 POOR, INDIGENOUS
CULTURAL COMMUNITIES,
WOMEN, YOUTH, AND SUCH OTHER SECTORS AS MAY BE PROVIDED BY
LAW, EXCEPT THE
RELIGIOUS SECTOR.
(3) 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.
(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.
Q. What is the total composition of the House of Representatives?
A. Not more than 250 members, unless otherwise provided by law.
Q. How do representative districts come into existence?
A. They are created by law. The ARMM Regional Assembly may not create a
representative district. Nor may it creates province because a province
automatically gets one representative district. Sema v. Comelec, G.R. No.
177597, July 16, 2008.
The creation of legislative districts does not need confirmation by
plebiscite if it does not involve the creation of a local government unit.
Bagabuyo v. Comelec, G.R. No. 176970, December 8,2008.
Q. How are members of the House classified?
A. (1) district representatives, each representing one congressional district;
220 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 2-5
(2) party-list representatives, elected through the "party-list
system."
[(3) sectoral representatives, but these existed only until 1998.]
Party-list system
Q. How does the "party-list system" work?
A. Under the system, "registered national, regional, and sectoral parties or
organizations" submit a list of candidates arranged in the order of
priority. During congressional elections, such parties or organizations
are voted for at large, and the number of seats a party or organization
will get, out of the twenty percent allocated for party-list
representatives, will depend on the number of votes garnered
nationwide. The details for the operation of the party list system will be
provided by law.
Q. What is the reason for the introduction of the party list system?
A. It is hoped that the system will democratize political power by encouraging
the growth of a multi-party system while at the same time giving power
to those who traditionally do not win in elections.
Q. What organizations may participate in the party list system?
A. According to the Supreme Court, the intent of the Constitutional
Commission and the implementing statute, R A. 7941, was not to allow
all associations to participate indiscriminately in the system but to limit
participation to parties or organizations representing the "marginalized
and underprivileged." For this purpose, the Court laid down the
following guidelines for the Comelec to apply:
1. The parties or organizations must represent the
marginalized and underrepresented in Section 5 of RA.7941;
2. Political parties who wish to participate must comply with
this policy;
3. The religious sector may not be represented;
4. The party or organization must not be disqualified under
Section 6 of R.A. 7941;
5. The party or organization must not be an adjunct of or a
project organized or an entity funded or assisted by the government;
Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 221
6. Its nominees must likewise comply with the requirements
of the law;
7. The nominee must likewise be able to contribute to the
formulation and enactment of legislation that will benefit the nation.
Ang Bagong Bayani, et al. v. Comelec, G.R. No. 147589, June 26,2001.
Q. Which parties or organizations are disqualified?
A. Section 6 says: — The COMELEC may motu proprio or upon verified
complaint of any interested party, remove or cancel, after due notice
and hearing, the registration of any national, regional or sectoral party,
organization or coalition on any of the following grounds:
It is a religious sect or denomination, organization or association
organized for religious purposes;
It advocates violence or unlawful means to seek its goal;
It is a foreign party or organization;
It is receiving support from any foreign government, foreign
political party, foundation, organization, whether directly or through any
of its officers or members or indirectly through third parties for partisan
election purposes;
It violates or fails to comply with laws, rules or regulations relating
to elections;
It declares untruthful statements in its petition;
It has ceased to exist for at least one (1) year; or
It fails to participate in the last two (2) preceding elections or fails
to obtain at least two percentum (2%) of the votes cast under the
party-list system in the two (2) preceding elections for the constituency
in which it has registered.
Q. Who determines whether a party is qualified to participate in the party list
system?
A. The Comelec. Qualification is a question of fact and therefore is not subject
to review by certiorari. VC Cadangen, et al. v. Comelec, G.R. No. 177179,
June 5, 2009.
Q. What are the qualifications of a party-list nominee?
A. As found in Section 9 of R.A. 7941, they are:
SECTION 9. Qualifications ofParty-List Nominees. —
No person shall be nominated as party-list representative
222 THE 1987 PHILIPPINE CONSTITUTION: Sees. 4-5
A COMPREHENSIVE REVIEWER
unless he is a natural-born citizen of the Philippines, a registered
voter, a resident of the Philippines for a period of not less than
one (1) year immediately preceding the day of the election, able
to read and write, a bona fide member of the party or
organization which he seeks to represent for at least ninety (90)
days preceding the day of the election, and is at least twenty-five
(25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least
be twenty-five (25) but not more than thirty (30) years of age on
the day of the election. Any youth sectoral representative who
attains the age of thirty (30) during his term shall be allowed to
continue in office until the expiration of his term. Ang Bagong
Bayani, etal. v. Comelec, G.R. No. 147589, June 26,2001.
Q. Congress enacted R.A. 7941 and declared therein a policy to promote
"proportional representation" in the election of party- list
representatives in order to enable Filipinos belonging to the
marginalized and underrepresented sectors to contribute legislation
that would benefit them. It, however, deemed it necessary to require
parties, organizations and coalitions participating in the system to
obtain at least two percent of the total votes cast for the party-list
system in order to be entitled to a party-list seat. Those garnering more
than this percentage could have "additional seats in proportion to their
total number of votes." Furthermore, no winning party, organization or
coalition can have more than three seats in the House of
Representatives. Are the two percent threshold requirement and the
three-seat limit provided in Section 11 (b) of RA 7941 constitutional?
A. Veterans Federation Party, et al. v. Comelec, G.R. No. 136781, October 6,
2000 held that the filling of the 20% was not mandatory but the 2%
requirement was. Banat v. Comelec, G.R. No. 179295, April 21, 2009
ruled that the 20% was mandatory and since the 2% requirement was
an obstacle to filling the 20%, the 2% requirement was declared
unconstitutional.
Q. How are the party-list seats distributed among the parties?
A. Partido v. Comelec. G.R. No. 164702, March 15, 2006, reiterated the
formula for the computation of additional seats for
Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 223
party-list winners as originally stated in the landmark case of Veterans.
They are:
First, the twenty percent allocation — the combined
number of all party-list congressmen shall not exceed twenty
percent of the total membership of the House of Representatives,
including those elected under the party list;
Second, the two percent threshold — only those parties
garnering a minimum of two percent of the total valid votes cast
for the party-list system are "qualified" to have a seat in the House
of Representatives;
Third, the three-seat limit — each qualified party, regardless
of the number of votes it actually obtained, is entitled to a
maximum of three seats; that is, one "qualifying" and two
additional seats;
Fourth, proportional representation— the additional seats
which a qualified party is entitled to shall be computed "in
proportion to their total number of votes."
However, the interpretation of "in proportion to their total
number of votes" made in Veterans would make it impossible for
the party-list seats to be fully filled because of the requirement
that only those who obtained at least 2% may get addition seats.
But the 20% share can never be filled if the 2% threshold is
maintained. Hence, since the 20% share is mandatory, the 2%
threshold was declared unconstitutional in Banat v. Comelec, G.R.
No. 179271, July 8,2009.
NOTE: The Comelec may not issue implementing rules and
regulations (IRRS) that provide a ground for the substitution of a
party-list nominee not written in Republic Act (R.A.) No. 7941,
otherwise known as the Party-List System Act. Lokin, Jr. v.
Comelec, G.R. Nos. 179431-32, June 22,2010.
Q. May religious leaders be elected or selected as sectoral representatives?
A. Yes. The prohibition is against representation of religious sectors but not
against religious leaders becoming representatives.
224 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 2-5
Q. How are the representative districts apportioned?
A. "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.''
"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."
Q. Why are representative districts apportioned among provinces, cities, and
municipalities "in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio?"
A. The underlying principle behind this rule for apportionment is the concept
of equality of representation which is a basic principle of republicanism.
One man's vote should carry as much weight as the vote of every other
man.
Q. What is the rule on the representation of provinces and cities?
A. Each province, irrespective of population, is entitled to one representative;
each city with a population of at least 250,000 is entitled to at least one
representative.
Q. May the ARMM Regional Assembly create a legislative district?
A. No. New legislative districts may be created only by law. Section 19, Article
VI of R.A. 9054, insofar as it granted to the ARMM Regional Assembly
the power to create provinces and cities which could in effect result in
the creation of legislative districts is invalid. "Only Congress can create
provinces and cities because the creation of provinces and cities
necessarily includes the creation of legislative districts, a power only
Congress can exercise under Section 5, Article VI of the Constitution and
Section 3 of the Ordinance appended to the Constitution. The ARMM
Regional Assembly cannot create a province without a legislative district
because the Constitution mandates that every province shall have a
legislative district." Sema v. Comelec, G.R. No. 177597, July 16, 2008.
NOTE: When one of the municipalities of a congressional
district is converted into a city large enough to entitle it to one
legislative district, the incidental effect is
Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 225
the splitting of the district into two. The incidental arising of a new
district in this manner need not be preceded by a census.
Moreover, this incidental effect is deemed implicitly contained in
the title announcing the creation of the new city thus satisfying
the requirement that the content of the bill be announced in the
title. Tobias v. Abalos, 239 SCRA 106 (1994); Mariano, Jr. v.
Commission on Elections, G.R. No. 118627, March 7,1995.
If, however, as a result of the increase of the number of
legislative districts, either because of the creation of a new
province or of a new city, an imbalance results in the remaining
legislative districts of the mother province, the Commission on
Elections has no authority to correct the imbalance by the transfer
of municipalities from one district to another. Correction of the
imbalance must await the enactment of a reapportionment law.
Montejo v. Commission on Elections, G.R. No. 118702, March 16,
1995.
Q. Does the creation of a legislative district need confirmation by plebiscite?
A. The creation of legislative districts does not need confirmation by plebiscite
if it does not involve the creation of a local government unit. Bagabuyo
v. Comelec, G.R. No. 176970, December 8, 2008.
Q. Must a representative district have a population of 250,000.
A. For a city to qualify as a legislative district it must have a population of at
least 250,000.
The 250,000 minimum applies only to cities seeking to become a
representative district. On this basis the Court allowed creation of
representative districts of disproportionate sizes in Aquino III v. Comelec,
G.R. No. 189793, April 7, 2010. [The Court completely ignored the
requirement of proportional representation.]
Q. Why was the creation of Malolos City into a representative district
invalidated?
A. Because it did not satisfy the 250,000 population requirement. The
certification made by Regional Director Miranda of the NSO has no legal
basis. Aldaba v. Comelec, G.R No. 188078, January 25,2010. Affirmed on
reconsideration March 15,2010.
226 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. What is "gerrymandering?" Is it allowed?
A. "Gerrymandering," which is the formation of one legislative district out of
separate territories for the purpose of favoring a candidate or a party, is
not allowed. The Constitution says that each district shall "comprise, as
far as practicable, contiguous, compact and adjacent territory."
Q. If a candidate who received the highest number of votes is disqualified,
does the candidate who received the second highest number of votes
assume the office?
A. No. It is of no moment that there is only a margin of 768 votes between
protestant and protestee. Whether the margin is ten or ten thousand, it
still remains that protestant did not receive the mandate of the majority
during the elections. Thus, to proclaim him as the duly elected
representative in the stead of protestee would be anathema to the
most basic precepts of republicanism and democracy as enshrined
within our Constitution. In effect, we would be advocating a massive
disenfranchisement of the majority of the voters of the sixth district of
Manila. Ocampo v. HRET, G.R. No. 158466, June 15,2004.
SEC. 6. No PERSON SHALL BE A MEMBER OF THE HOUSE OF
REPRESENTATIVES UNLESS
HE IS A NATURAL-BORN CITIZEN OF THE PHILIPPINES AND, ON THE DAY
OF THE ELECTION, IS AT
LEAST TWENTY- FIVE YEARS OF AGE, ABLE TO READ AND WRITE, AND,
EXCEPT THE PARTY- LIST
REPRESENTATIVES, A REGISTERED VOTER IN THE DISTRICT IN WHICH
HE SHALL BE ELECTED, AND A RESIDENT THEREOF FOR A PERIOD OF
NOT LESS THAN ONE YEAR
IMMEDIATELY PRECEDING THE DAY OF THE ELECTION.
Q. What are the qualifications of a member of the House of Representatives?
A. Section 6. Note, however, that a party-list representative need not be "a
registered voter in the district in which he shall be elected, and a
resident thereof for a period of not less than one year immediately
preceding the day of the election." Note, moreover, that Congress may
not diminish nor increase these qualifications.
Q. What is the meaning of residence as a qualification for membership in the
House of Representatives?
A. The currently accepted meaning of the residence qualification may be
drawn from Romualdez-Marcos v. Commission on
Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 227
Elections, G.R. No. 119976, September 18, 1995, and Aquino v.
Commission on Elections, G.R. No. 120265, September 18, 1995. What is
required is not just temporary residence but "domicile" as this has been
defined in jurisprudence. Normally, a person's domicile is his domicile of
origin. If a person never loses his or her domicile, the one year
requirement of Section 6 is not of relevance because he or she is
deemed never to have left the place. If, however, a person loses his or
her domicile either by voluntary abandonment for a new one or by
marriage to a husband who under the Civil Code dictates the wife's
domicile, one must be domiciled in the new place for at least one year
immediately preceding the election if one wants to represent the place
in Congress. Similarly, if a person, having once lost his or her domicile,
should decide to re-establish herself or himself in his former domicile,
the one year requirement would also apply.
Q. Records show that petitioner's domicile of origin was Candon,
Ilocos Sur and that sometime in 1991, he acquired a new domicile of
choice at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as
shown by his certificate of candidacy for the position of representative of
the 3rd District of Quezon City in the May 1995 election. Petitioner is
now claiming that he had effectively abandoned his "residence" in
Quezon City and has established a new "domicile" of choice at the
Province of Sarangani. Decide.
A. A person's "domicile" once established is considered to
continue and will not be deemed lost until a new one is established. To
successfully effect a change of domicile one must demonstrate an actual
removal or an actual change of domicile; a bona fide intention of
abandoning the former place of residence and establishing a new one
and definite acts which correspond with the purpose. In other words,
there must basically be animus manendi coupled with animus nan
revertendi. The purpose to remain in or at the domicile of choice must
be for an indefinite period of time; the change-of residence must be
voluntary; and the residence at the place chosen for the new domicile
must be actual.
It is the contention of petitioner that his actual physical presence
in Alabel, Sarangani since December 1996 was sufficiently established by
the lease of a house and lot located therein in January 1997 and by the
affidavits and certifications under oath of the residents of that place that
they have seen petitioner and his family residing in then- locality. While
this may be so, actual and physical is not in itself sufficient to show that
from said date he had transferred his residence in that place. To
establish a new domicile of choice, personal presence in the place must
be coupled with conduct indicative of that intention.
228 THE 1987 PHILIPPINE CONSTITUTION: Sees.
4-5
A COMPREHENSIVE REVIEWER
While "residence" simply requires bodily presence in a given place,
"domicile" requires not only such bodily presence in that place but also
a declared and probable intent to make it one's fixed and permanent
place of abode, one's home.
The lease contract entered into sometime in January 1997, does
not adequately support a change of domicile. The lease contract may
be indicative of DOMINO's intention to reside in Sarangani but it does
not engender the kind of permanency required to prove abandonment
of one's original domicile.
Further, Domino's lack of intention to abandon his residence in
Quezon City is further strengthened by his act of registering as voter in
one of the precincts in Quezon City. While voting is not conclusive of
residence, it does give rise to a strong presumption of residence
especially in this case where DOMINO registered in his former
barangay. Domino v. Comelec, G.R. No. 134015, July 19,1999.
Q. The Congress passes a law requiring that candidates for the
House must post a bond equivalent to one year's salary of a
Congressman. Is the law valid?
A. The sum required as bond is so big that it amounts to a
property qualification. Property qualifications are contrary to the social
justice provision of the Constitution, Maquera v. Borra, 15 SCRA 7
(1965). Moreover, this is an attempt to add to the qualifications found
in Section 6.
NOTE: Republic Act No. (RA.) 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002, requires mandatory drug
testing of candidates for public office, students of secondary and
tertiary schools, officers and employees of public and private offices,
and persons charged before the prosecutor's office with certain
offenses, among other personalities. As applied to candidates for
national office, the requirement is unconstitutional because it adds to
the exclusive qualifications for such offices prescribed by the
Constitution. Social Justice Society v. Dangerous Drugs Board, G.R. No.
157870, November 3,2008.
SEC. 7. THE MEMBERS OF THE HOUSE OF REPRESENTATIVES SHALL
BE ELECTED FOR A TERM OF THREE YEARS WHICH SHALL BEGIN,
UNLESS OTHERWISE PROVIDED
BY LAW, AT NOON ON THE THIRTIETH DAY OF JUNE NEXT FOLLOWING
THEIR ELECTION.
No MEMBER OF THE HOUSE OF REPRESENTATIVES SHALL SERVE
FOR MORE THAN THREE CONSECUTIVE TERMS. VOLUNTARY
RENUNCIATION OF THE OFFICE FOR
ANY LENGTH OF TIME SHALL NOT BE CONSIDERED AS AN
INTERRUPTION IN THE CONTINUITY OF
HIS SERVICE FOR THE FULL TERM FOR WHICH HE WAS ELECTED.
Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 229
Q. What is the term of a member of the House?
A. Section 7.
Q. May a member of the House serve for more than three terms?
A. Yes, provided the terms are not successive.
Q. Section 67, Article IX, of the Omnibus Election Code, BP Big.
881, says that any "elective official whether national or local running for
any office other than the one he is holding in a permanent capacity
except for the President and Vice-President shall be considered ipso
facto resigned from his office upon the filing of his certificate of
candidacy." Is this still in effect?
A. This is no longer in effect having been repealed by the Fair
Election Law. Farinas, et al. v. Executive Secretary, G.R. No. 147387,
December 10,2003; Quinto v. Comelec, G.R. No. 189698, December 1,
2009.
Q. What is the difference between term and tenure?
A. Term is the period during which an official I entitled to hold
office. Tenure is the period during which the official actually holds the
office. Tenure can be shortened, e.g., by death or removal. But term is
changed only by amendment. Dimaporo v. Mitra, Jr., G.R. No. 96859,
October 15,1991.
SEC. 8. UNLESS OTHERWISE PROVIDED BY LAW, THE REGULAR
ELECTION OF THE SENATORS AND THE MEMBERS OF THE HOUSE OF
REPRESENTATIVES SHALL BE HELD ON THE SECOND MONDAY OF MAY.
NOTE: A person holding office in the House must yield his or her
seat to the person declared by the Comelec to be the winner. The
Speaker shall administer the oath on the winner. Codilla v. de Venecia,
G.R. No. 150605, December 10, 2002.
SEC. 9. IN CASE OF VACANCY IN THE SENATE OR IN THE HOUSE OF
REPRESENTATIVES, A
SPECIAL ELECTION MAY BE CALLED TO FILL SUCH VACANCY IN THE
MANNER PRESCRIBED BY LAW,
BUT THE SENATOR OR
MEMBER OF THE HOUSE OF REPRESENTATIVES THUS ELECTED SHALL
SERVE ONLY FOR THE UNEXPIRED TERM.
Q. In case there is a vacancy in the Senate or House of Representatives, is a
special election to fill the vacancy mandatory?
A. No. The matter is left to the discretion of Congress — "in the manner
prescribed by law." But if there should be a special election, the person
elected shall serve only for the unexpired term.
230 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 10
Q. Following confirmation of Senator Guingona as Vice- President,
the Senate called on COMELEC to fill the vacancy through a special
election to be held simultaneously with the regular elections on 14 May
2001. Twelve Senators, with a 6-year term each, were due to be elected
in that election. Comelec issued a resolution providing that the
"Senatorial candidate garnering the 13th highest number of votes shall
serve only for the unexpired term of former Senator Teofisto T.
Guingona, Jr." Petitioner challenged the resolution because: (1) it failed
to notify the electorate of the position to be filled in the special election
as required under Section 2 of Republic Act No. 6645 ("R.A. No. 6645");
(2) it failed to require senatorial candidates to indicate in their
certificates of candidacy whether they seek election under the special or
regular elections as allegedly required under Section 73 of Batas
Pambansa Big. 881; and, consequently, (3) it failed to specify in the
Voters Information Sheet the candidates seeking election under the
special or regular senatorial elections as purportedly required under
Section 4, paragraph 4 of Republic Act No. 6646 (TLA. No. 6646").
Decide.
A. In a special election to fill a vacancy, the rule is that a statute
that expressly provides that an election to fill a vacancy shall be held at
the next general elections fixes the date at which the special election is
to be held and operates as the call for that election. Consequently, an
election held at the time thus prescribed is not invalidated by the fact
that the body charged by law with the duty of calling the election failed
to do so. This is because the right and duty to hold the election emanate
from the statute and not from any call for the election by some
authority and the law thus charges voters with knowledge of the time
and place of the election. Tolentino v. Comelec, G.R. No. 148334,
January 21,2004.
SEC. 10. THE SALARIES OF SENATORS AND MEMBERS OF THE HOUSE
OF REPRESENTATIVES SHALL BE DETERMINED BY LAW. No INCREASE IN
SAID COMPENSATION SHALL TAKE EFFECT UNTIL AFTER THE
EXPIRATION OF
THE FULL TERM OF ALL THE MEMBERS OF THE SENATE AND THE HOUSE
OF
REPRESENTATIVES APPROVING SUCH INCREASE.
Q. Upon the organization of the first Congress under this Constitution, what
will be the salary of the members?
A. Two hundred four thousand pesos per annum. Article XVIII, Section 17.
Q. The Congress, during the second year of its term, approves an increase in
salary effective during the next budget year. Can the law be made
effective the next budget year?
A. No. The increased salary cannot take effect until the following term.
Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 231
Q. After Congress passes a law increasing the salary of its members, special
elections are held to fill a vacancy in three congressional districts. Will
the newly elected members receive the increased salary?
A. No because they would be serving within the term of the members who
approved the increase.
Q. What is the reason for the delayed effect of the increased salary?
A. Its purpose is to place a "legal bar to the legislators' yielding to the natural
temptation to increase their salaries." Philconsa v. Mathay, 18 SCRA
300,307 (1966).
Q. While the salary of the members of the Congress may not be increased
during their tenure, may other "emoluments" not forming part of the
fixed salary be tacked on during the term?
A. The letter of the prohibition seems to allow such indirect increase of salary
because the prohibition is not as all encompassing as the prohibition
found in the 1935 Constitution (which prohibited 'per diems and other
emoluments or allowances'). What the letter of the present law
prohibits is immediate increase of "said compensation," that is, salaries.
It is submitted, however, that one may legitimately appeal to the spirit
of the prohibition, expressed in Philconsa v. Mathay, supra, and read the
prohibition as an absolute ban on any form of direct or indirect increase
of salary.
Q. May a member of the Congress receive office and necessary
travel allowances? If so, what is the limit on such allowances?
A. Yes. Since such allowances do not form part of the salary or
compensation, allowances take effect immediately. Nor is there a legal
limit on the amount that may be appropriated. The only limit is moral,
because, according to Section 20, the books of Congress are audited by
the Commission on Audit "which shall publish annually an itemized list
of amounts paid and expenses incurred for each Member."
SEC. 11. A SENATOR OR MEMBER OF THE HOUSE OF REPRESENTATIVES
SHALL, IN ALL
OFFENSES PUNISHABLE BY NOT MORE THAN SIX
YEARS IMPRISONMENT, BE PRIVILEGED FROM ARREST WHILE THE
CONGRESS
is IN SESSION. No MEMBER SHALL BE QUESTIONED NOR BE HELD
LIABLE
IN ANY OTHER PLACE FOR ANY SPEECH OR DEBATE IN THE CONGRESS
OR IN
ANY COMMITTEE THEREOF.
232 THE 1987 PHILIPPINE CONSTITUTION: Sees.
4-5
A COMPREHENSIVE REVIEWER
Q. How does the 1987 privilege from arrest differ from the privilege under the
1935 Constitution?
A. The 1987 privilege differs from the privilege under the 1935 Constitution,
and for that matter from the privilege under the American Constitution,
in that under the 1935 Constitution the privilege was only from civil
arrest. In no way did the 1935 Constitution protect a legislator from
arrest for a criminal offense. Martinez v. Morfe, 44 SCRA 22 (1972).
Under the new Constitution, however, as under the 1973 Constitution,
a legislator is privileged from arrest even for a criminal offense provided
that the offense was not punishable by a penalty of more, than six years
imprisonment
Q. When is the privilege available?
A. It is available "while the Congress is in session," whether regular or special
and whether or not the legislator is actually attending a session. Hence,
it is not available while Congress is in recess.
Q. Why has it not been made available during recess?
A. Since the purpose of the privilege is to protect the legislator against
harassment which will keep him away from legislative sessions, there is
no point in extending the privilege to the period when the Congress is
not in session.
Q. Representative Jaloslos, convicted for rape and detained in prison, asks that
he be allowed to attend the sessions of the House. He argues on the
basis of popular sovereignty and the need for his constituents to be
represented. Decide.
A. Members of Congress are not exempt from detention for crime. They may
be arrested, even when the house is in session, for crimes punishable by
a penalty of more than six months. This is the case of Jalosjos. There is
no basis whatsoever for treating him differently from other convicts.
People u, Jalosjos, G.R. Nos. 132875-76. February 3,2000,
Q. What is the parliamentary privilege of speech?
A. "No Member shall be questioned nor be held liable in any other place for
any speech or debate in the Congress or in any committee thereof."
Sees. 2-5 ART. VI - THE LEGISLATIVE DEPARTMENT 233
Q. What is the scope of the privilege?
A. In the first place, the privilege is a protection only against forums other than
the Congress itself. It does not protect the assemblyman against the
disciplinary authority of the Congress but it is an absolute protection
against suits for libel. Osmena v. Pendatun, 109 Phil. 863 (1960). In the
second place, "speech or debate" includes utterances made in the
performance of official functions, such as speeches delivered,
statements made, votes cast, as well as bills introduced and other acts
done in the performance of official duties. Jimenez v. Cabangbang, 17
SCRA 876 (1966). To come under the privilege, it is not essential that the
Congress be in session when the utterance is made. What is essential is
that the utterance must constitute "legislative action," that is, it must be
part of the deliberative and communicative process by which legislators
participate in committee or congressional proceedings in the
consideration of proposed legislation or of other matters which the
Constitution has placed within the jurisdiction of the Congress. Gravel v.
U.S. 90 LW 5053 (1972). See also Antonino v. Valencia, 57 SCRA 70 (May
27,1974).
Q. What is the purpose of the privilege?
A. Like the privilege from arrest, the privilege of speech is intended to leave the
legislator unimpeded in the performance of his duties and free from fear
of harassment from outside.
NOTE: In a Senate privilege speech Senator Santiago said the
following:
x x x I am not angry. I am irate. I am foaming in the mouth. I
am homicidal. I am suicidal. I am humiliated, debased, degraded.
And I am not only that, I feel like throwing up to be living my
middle years in a country of this nature. I am nauseated. I spit on
the face of Chief Justice Artemio Panganiban and his cohorts in
the Supreme Court, I am no longer interested in the position [of
Chief Justice] if I was to be surrounded by idiots. I would rather be
in another environment but not in the Supreme Court of idiots x x
x.
Senator Santiago explained that "those statements were covered
by the constitutional provision on parliamentary immunity, being part of
a speech she delivered in the discharge of her duty as member of
Congress or its committee. The purpose of her speech, according to her,
was to bring out in the open controversial anomalies in governance with
a view to future remedial legislation. She averred that she wanted to
expose what she believed 'to be an unjust act
234 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-13
of the Judicial Bar Council [JBC],' which, after sending out public
invitations for nomination to the soon to be vacated position of Chief
Justice, would eventually inform applicants that only incumbent
justices of the Supreme Court would qualify for nomination."
The Court upheld her defense on the ground of parliamentary
immunity but added that "the lady senator has undoubtedly
crossed the limits of decency and good professional conduct. It is at
once apparent that her statements in question were intemperate
and highly improper ii} substance. To reiterate, she was quoted as
stating that she wanted "to spit on the face of Chief Justice Artemio
Panganiban and his cohorts in the Supreme Court," and calling the
Court a "Supreme Court of idiots." Pobre v. Defensor Santiago, AC.
No. 7399, August 25,2009.
Q. Does the privilege extend to agents of assemblymen?
A. Yes, provided that the "agency" consists precisely in
assisting the legislator in the performance of "legislative action."
Gravel v. U.S., supra.
SEC. 12. ALL MEMBERS OF THE SENATE AND THE HOUSE OF
REPRESENTATIVES SHALL, UPON ASSUMPTION OF OFFICE, MAKE A
FULL
DISCLOSURE OF THEIR FINANCIAL AND BUSINESS INTERESTS. THEY
SHALL
NOTIFY THE HOUSE CONCERNED OF A POTENTIAL CONFLICT OF
INTEREST
THAT MAY ARISE FROM THE FILING OF A PROPOSED LEGISLATION OF
WHICH
THEY ARE AUTHORS.
Q. About what matters is a member of Congress obliged to make
public disclosure?
A. Section 12.
SEC. 13. No SENATOR OR MEMBER OF THE HOUSE OF
REPRESENTATIVES
MAY HOLD ANY OTHER OFFICE OR EMPLOYMENT IN THE GOVERNMENT,
OR ANY SUBDIVISION, AGENCY, OR INSTRUMENTALITY THEREOF,
INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS OR
THEIR SUBSIDIARIES, DURING HIS TERM WITHOUT FORFEITING HIS SEAT.
NEITHER SHALL HE BE APPOINTED TO ANY OFFICE WHICH MAY HAVE
BEEN
CREATED OR THE EMOLUMENTS THEREOF INCREASED DURING THE
TERM
FOR WHICH HE WAS ELECTED.
Q« What are the prohibitions imposed on a members of the
Congress?
A. See Section 13.
NOTE: Petitioner Liban, a private citizen, alleged that by
remaining Chairman of the National Red Cross Senator Gordon has
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 235
forfeited his seat in the Senate. Liban, however, has no standing to
challenge Gordon's occupation of his senatorial seat and the National
Red Cross is not a government owned corporation but a private
corporation performing public function. Liban v. Gordon, G.R. No.
175352, July 15, 2009. See Nachura dissent.
Q. May a member of Congress resign in order to accept an
appointment in the government before the expiration of his term?
A. Yes. See the first Sentence of Section 13.
Q. But are there offices appointment to which is prohibited dining
his term even if the member of Congress resigns his seat?
A. Yes. He cannot accept appointment to an office which may
have been created or the emolument of which may have been
increased during his term, and this, even if he had already resigned
when the office was created or the emolument increased. See the
second sentence of Section 13.
SEC. 14. No SENATOR OR MEMBER OF THE HOUSE OF
REPRESENTATIVES MAY
PERSONALLY APPEAR AS COUNSEL BEFORE ANY
COURT OF JUSTICE OR BEFORE THE ELECTORAL TRIBUNALS, OR QUASI-
JUDICIAL AND OTHER
ADMINISTRATIVE BODIES. NEITHER SHALL HE, DIRECTLY OR
INDIRECTLY, BE INTERESTED
FINANCIALLY IN ANY CONTRACT WITH, OR IN ANY FRANCHISE OR
SPECIAL PRIVILEGE GRANTED BY
THE GOVERNMENT, OR ANY SUBDIVISION, AGENCY, OR
INSTRUMENTALITY THEREOF,
INCLUDING ANY GOVERNMENT-OWNED OR CONTROLLED
CORPORATION, OR ITS SUBSIDIARY,
DURING HIS TERM OF OFFICE. He SHALL NOT INTERVENE IN ANY MATTER
BEFORE ANY OFFICE OF
THE GOVERNMENT FOR HIS PECUNIARY BENEFIT OR WHERE HE MAY BE
CALLED UPON TO ACT
ON ACCOUNT OF HIS OFFICE.
Q. What are the prohibitions on a member of Congress relative to the practice
of his profession?
A. See Section 14.
Q. A Congressman buys a nominal amount of shares in a corporation which is
party to a suit before the Securities and Exchange Commission and then
appears in "intervention." Should the intervention be allowed?
A. "A ruling upholding the 'intervention' would make the constitutional
provision ineffective. All [a Congressman] need do, if he wants to
influence an administrative body is to acquire a minimal participation
in the 'interest' of a client and then
236 THE 1987 PHILIPPINE CONSTITUTION: Sees. 15-16
A COMPREHENSIVE REVIEWER
'intervene' in the proceedings. That which the Constitution directly
prohibits may not be done by indirection or by a general legislative act
which is intended to accomplish the objects specifically or impliedly
prohibited." Puyat v. De Guzman, Jr., 113 SCRA 31, 37 (March 25,1982).
Q. Does the prohibition applicable to lawyer-Congressmen apply
to the law firm of which they may be members?
A. No. The prohibition is personal. SEC. 15. THE CONGRESS SHALL
CONVENE ONCE EVERY YEAR ON
THE FOURTH MONDAY OF JULY FOR ITS REGULAR SESSION, UNLESS A
DIFFERENT DATE IS FIXED
BY LAW, AND SHALL CONTINUE TO BE IN SESSION FOR SUCH NUMBER
OF DAYS AS IT MAY
DETERMINE UNTIL THIRTY DAYS BEFORE THE OPENING OF ITS NEXT
REGULAR SESSION,
EXCLUSIVE OF
SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS. THE PRESIDENT MAY
CALL A SPECIAL SESSION AT
ANY TIME.
Q. What distinguishes a special session from a regular session?
A. A special session is one called by the President while the legislature is in
recess. Under the 1935 Constitution the distinction between regular
and special session was significant because during a special session the
legislature could consider only the subject matter designated by the
President. It is submitted that under the present law, which leaves
discretion to Congress as to the number of regular session days, the
distinction is no longer significant for the purpose of determining what
the legislature may consider.
SEC. 16. (1) THE SENATE SHALL ELECT ITS PRESIDENT AND THE HOUSE
OF
REPRESENTATIVES ITS SPEAKER, BY A MAJORITY VOTE OF ALL ITS
RESPECTIVE MEMBERS.
EACH HOUSE SHALL CHOOSE SUCH OTHER OFFICERS AS IT MAY DEEM
NECESSARY.
(2) A MAJORITY OF EACH HOUSE SHALL CONSTITUTE A QUORUM TO DO
BUSINESS,
BUT A SMALLER NUMBER. MAY ADJOURN FROM DAY TO DAY AND MAY
COMPEL THE
ATTENDANCE OF ABSENT MEMBERS IN SUCH MANNER, AND UNDER
SUCH PENALTIES, AS SUCH
HOUSE MAY PROVIDE.
(3) EACH HOUSE MAY DETERMINE THE RULES OF ITS PROCEEDINGS,
PUNISH ITS
MEMBERS FOR DISORDERLY BEHAVIOR, AND WITH THE CONCURRENCE
OF TWO-THIRDS OF ALL
ITS MEMBERS, SUSPEND OR EXPEL A
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 237
MEMBER. A PENALTY OF SUSPENSION, WHEN IMPOSED, SHALL NOT
EXCEED
SIXTY DAYS.
(4) EACH HOUSE SHALL KEEP A JOURNAL OF ITS PROCEEDINGS,
AND FROM TIME TO TIME PUBLISH THE SAME, EXCEPTING SUCH PARTS
AS
MAY, IN ITS JUDGMENT, AFFECT NATIONAL SECURITY; AND THE YEAS
AND
NAYS ON ANY QUESTION SHALL, AT THE REQUEST OF ONE-FIFTH OF THE
MEMBERS PRESENT, BE ENTERED IN THE JOURNAL.
EACH HOUSE SHALL ALSO KEEP A RECORD OF ITS PROCEEDINGS.
(5) NEITHER HOUSE DURING THE SESSIONS OF THE CONGRESS
SHALL, WITHOUT THE CONSENT OF THE OTHER, ADJOURN FOR MORE
THAN
THREE DAYS, NOR TO ANY OTHER PLACE THAN THAT IN WHICH THE TWO
HOUSES SHALL BE SITTING.
Q. Who are the officers of Congress?
A. The Senate President, the Speaker of the House of Representatives, and
"such other officers as [each House] may deem necessary."
Q. On the first regular session of the eleventh Congress, Senators Fernan and
Tatad contested for the Senate Presidency. Fernan won by a vote of 20
to 2. With the agreement of Senator Santiago, Tatad manifested that he
was assuming the position of minority leader explaining that those who
had voted for Fernan comprised the majority, while those who had
voted for him, the losing nominee, belonged to the minority. However,
the seven Lakas-NUCD-UMDP senators had chosen Senator Guingona
as the minority leader. Later, Fernan formally recognized Guingona as
such. Santiago and Tatad filed before the Supreme Court a petition for
quo warranto, alleging that Guingona "had been usurping, unlawfully
holding and exercising the position of Senate minority leader," a
position that rightfully belonged to Tatad.
1) Does the Court have jurisdiction over the petition?
2) Petitioners claim that Art. VI, §16(1) has not been observed
in the selection of the minority leader. Decide.
A. 1) Yes. "It is well within the power and jurisdiction of the Court to inquire
whether the Senate or its officials committed a violation of the
Constitution or gravely abused their discretion in the exercise of their
functions and prerogatives." Santiago v. Guingona, G.R No. 134577,
November 18,1998, p. 18.
238 THE 1987 PHILIPPINE CONSTITUTION: Sees. 15-16
A COMPREHENSIVE REVIEWER
2) This provision is explicit on the manner of electing a Senate
President and a House Speaker, but silent on the manner of selecting
the other officers in both chambers of Congress. The method of
choosing who will be the other officers must be prescribed by the
Senate itself. The Rules of the Senate neither provide for the positions
of majority and minority leaders nor prescribe the manner of creating
such offices or of choosing the holders thereof. Such offices exist by
tradition and long practice. "But, in the absence of constitutional or
statutory guidelines or specific rules, this Court is devoid of any basis
upon which to determine the legality of the acts of the Senate relative
thereto. On grounds of respect for the basic concept of separation of
powers, courts may not intervene in the internal affairs of the
legislature; it is not within the province of courts to direct Congress how
to do its work." Id. at 23-24 (citing New York Public Interest Research
Group, Inc. v. Steingut, 353 NE2d 558).
Q. What is the existence of a quorum based on?
A. On the proportion between those physically present and the total
membership of the body.
Q. Is disciplinary action taken by Congress against a member subject to judicial
review?
A. No, because each House is the sole judge of what disorderly behavior is.
Osmena v. Pendatun, 109 Phil. 863 (1960).
Q. May the Court intervene in the implementation of the rules of either House
of Congress?
A. On matters affecting only internal operation of the legislature, the
legislature's formulation and implementation of its rules is beyond the
reach of the courts. When, however, the legislative rule affects private
rights, the courts cannot altogether be excluded. United States v. Smith,
286 U.S. 6 (1932). See also Vera v. Avelino, 77 Phil. 192, 206 (1946).
Q. What is the purpose of the requirement that a Journal be kept?
A. The duty to keep a Journal has a dual purpose: (1) "to insure publicity to the
proceedings of the legislature, and a correspondent responsibility of the
members to their respective constituents," and (2) to provide proof of
what actually trans
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 239
pired in the legislature. 1 STORY COMMENTARIES 840, quoted with approval
in Field v. Clark, 143 U.S. 649, 670 (1892).
Q. What matters may Congress keep out of the Journal?
A. The Constitution exempts from publication only such matters "as may, in
[the Congress'] judgment, affect national security." This new rule is an
application of Section 7 of the Bill of Rights which says:
The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
Q. What is the value of the Journal as evidence of what actually transpired in
Congress when the Journal conflicts with extraneous evidence such as
the testimony of witnesses or newspaper reports, etc.?
A- The Journal is conclusive upon the courts. United States v. Pons, 34 Phil. 729
(1916).
Q. What is the enrolled bill doctrine?
A. The signing of a bill by the Speaker of the House and the President of the
Senate and the certification by the secretaries of both Houses of
Congress that such bill was passed are conclusive of its due enactment.
Arroyo v. De Venecia, G.R. No. 127255, August 14,1997,277 SCRA 268.
Q. What is the value of the Journal as evidence of the contents of a law when
what the Journal says conflicts with the "enrolled bill?"
A. The "enrolled bill" is the official copy of approved legislation and bears the
certification of the presiding officer of the legislative body. The respect
due to a coequal department requires the courts to accept the
certification of the presiding officer of the legislative body. The respect
due to coequal department requires the courts to accept the
certification of the presiding officer as conclusive assurance that the bill
so certified is authentic. Casco Philippine Chemical Co. v. Gimenez, 7
SCRA 347 (1963).
240 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Q. If the presiding officer should repudiate his signature in the "enrolled bill,"
will the enrolled bill still prevail over the Journal?
A. The enrolled bill theory is based mainly on the respect due to a coequal
department. When such coequal department itself repudiates the
enrolled bill, then the journal must be accepted as conclusive. Astorga v.
Villegas, 56 SCRA 714 (1974).
Q. If the enrolled bill conflicts with the Journal on a matter required by the
Constitution to be entered in the Journal, which should prevail?
A. The Supreme Court has explicitly left this matter an open question in
Morales v. Subido, 27 SCRA 131 (1969).
SEC. 17. THE SENATE AND THE HOUSE OF REPRESENTATIVES SHALL
EACH HAVE AN ELECTORAL TRIBUNAL WHICH SHALL BE THE SOLE
JUDGE OF
ALL CONTESTS RELATING TO THE ELECTION, RETURNS, AND
QUALIFICATIONS
OF THEIR RESPECTIVE MEMBERS. EACH ELECTORAL TRIBUNAL SHALL
BE
COMPOSED OF NINE MEMBERS, THREE OF WHOM SHALL BE JUSTICES
OF
THE SUPREME COURT TO BE DESIGNATED BY THE CHIEF JUSTICE, AND
THE REMAINING SIX SHALL BE MEMBERS OF THE SENATE OR THE
HOUSE
OF REPRESENTATIVES, AS THE CASE MAY BE, WHO SHALL BE CHOSEN
ON
THE BASIS OF PROPORTIONAL REPRESENTATION FROM THE POLITICAL
PARTIES AND THE PARTIES OR ORGANIZATIONS REGISTERED UNDER
THE
PARTY-LIST SYSTEM REPRESENTED THEREIN. THE SENIOR JUSTICE IN
THE
ELECTORAL TRIBUNAL SHALL BE ITS CHAIRMAN.
Q. Who is the sole judge of all contests relating to the election, returns, and
qualifications of the members of Congress?
A. When there is an election contest, that is, when a defeated candidate
challenges the qualification and claims the seat of a proclaimed winner,
the respective Electoral Tribunal of each House is the sole judge, and
neither the Supreme Court nor each House of Congress nor the
Commission on Elections can interfere. In the absence of an election
contest, however, the Electoral Tribunals are without jurisdiction. Thus,
the power of each House to defer the oath-taking of members until final
determination of election contests filed against them has been retained
by each House. Angara v. Electoral Commission, 63 Phil. 139 (1936).
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 241
Q. When does a case pass from the Comelec to the electoral Tribunal?
A. Once a winning candidate has been proclaimed, taken his oath, and
assumed office as a Member of the House of Representatives,
COMELEC's jurisdiction over election contests relating to his election,
returns, and qualifications ends, and the HRETs own jurisdiction begins.
Aggabao v. Comelec, G.R. No. 163756, January 26, 2005; Limkaichong v.
Comelec, G.R. Nos. 17883132, April 1, 2009.
Q. Who decides whether a party list representative is qualified?
A. The HRET. But the Comelec can decide whether a party-list organization is
qualified to join the party-list system. Abayon u. Comelec, G.R. No.
189466, February 11, 2010.
Q. Do not the powers of Congress and the Comelec to entertain
pre-proclamation controversies conflict with the power of the Electoral
Tribunals?
A Congress and the COMELEC en banc do not encroach upon the
jurisdiction of the PET and the SET. There is no conflict of jurisdiction
since the powers of Congress and the COMELEC en banc, on one hand,
and the PET and the SET, on the other, are exercised on different
occasions and for different purposes. The PET is the sole judge of all
contests relating to the election, returns and qualifications of the
President or Vice President. The SET is the sole, judge of all contests
relating to the election, returns, and qualifications of members of the
Senate. The jurisdiction of the PET and the SET can only be invoked once
the winning presidential, vice presidential or senatorial candidates have
been proclaimed. On the other hand, under Section 37, Congress and
the COMELEC en banc shall determine only the authenticity and due
execution of the certificates of canvass. Congress and the COMELEC en
banc shall exercise this power before the proclamation of the winning
presidential, vice presidential, and senatorial candidates. Banat v.
Comelec, G.R No. 177508, August 7, 2009.
Q. What is the composition of each Electoral Tribunal?
A. See Section 17.
NOTE: The Constitution gives to the two Houses of Congress
the primary jurisdiction over who should sit in the Commission on
Appointments. This includes determination of party affiliation and
number of party members for the purpose of determining
proportional representation. Drilon, et al. v. Speaker, G.R. No.
180055, July 31,2009.
242 THE 1987 PHILIPPINE CONSTITUTION: Sees.
15-16
A COMPREHENSIVE REVIEWER
Q. May the Supreme Court intervene in the creation of the Electoral Tribunal?
A. The case of Bondoc v. Pineda, 201 SCRA 792 (1991), involved a blatant
attempt of a political party to manipulate the decision of the Tribunal by
manipulating its membership. On the eve of the promulgation of a
decision of the Tribunal against a member of the Laban ng
Demokratikong Pilipino (LDP), the LDP expelled Camasura from the
party, and therefore as LDP representative in the Tribunal, on the
ground of disloyalty. Camasura, the LDP member of the Electoral
Tribunal, had confided to the LDP that he was voting against the party's
candidate. The Supreme Court invalidated the expulsion of Camasura
from the Tribunal saying that it was a clear impairment of the Tribunal's
prerogative to be the sole judge of election contests. Id. at 810-812. See
dissent of Padilla and Sarmiento saying that the decision impairs the
independence of the House.
The jurisdiction of the Electoral Tribunal to be sole judge comes
only after a valid proclamation of a winner. Under Article VIII, Section 1,
judicial power includes the authority "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.'' Robles v. House Electoral Tribunal, 181 SCRA 780 (1990);
Co v. House Electoral Tribunal, 199 SCRA 692 (1991). On this basis, the
Supreme Court has invalidated a final vote tally made by the Electoral
Tribunal without supporting evidence. Lerias v. House Electoral Tribunal,
202 SCRA 808 (1991); Arroyo v. House Electoral Tribunal, G.R. No.
118597, July 14,1995.
Q. What major difference is there in the composition of the
Electoral Tribunals under the 1935 Constitution and of those under the
new Constitution?
A. Under the 1935 Constitution, only the two major political
parties had representation and they had it equally between them,
Tanada v. Cuenco, G.R. No. 10520, February 28, 1957; under the new
Constitution, all political parties are given proportional representation.
Q. The right of Farinas to sit in the House of Representatives is
challenged on the ground that his certificate of candidacy was invalid.
The challenger claims that, although Farinas has already been
proclaimed winner and is actually holding office, the case does
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 243
not come under the Electoral Tribunal because the jurisdiction of the
HRET as defined under Article VI, Section 17 of the Constitution is limited
only to the qualifications prescribed under Article VI, Section 6 of the
Constitution. Consequently, he claims that any issue which does not
involve these constitutional qualifications is beyond the realm of the
HRET. The filing of a certificate of candidacy being a statutory
qualification under the Omnibus Election Code is outside the pale of the
HRET. Decide.
A. Article VI, Section 17 of the Constitution cannot be
circumscribed lexically. The word "qualifications" cannot be read as
qualified by the term "constitutional." Ubi lex non distinguit noc nos
distinguire debemos. Basic is the rule in statutory construction that
where the law does not distinguish, the courts should not distinguish. In
an electoral contest where the validity of the proclamation of a winning
candidate who has taken his oath of office and assumed his post as
Congressman is raised, that issue is best addressed to the HRET. The
reason for this ruling is self-evident, for it avoids duplicity of proceedings
and a clash of jurisdiction between constitutional bodies, with due
regard to the people's mandate. Moreover, whether Farinas validly
substituted for someone else must likewise be addressed to the sound
judgment of the Electoral Tribunal. Only thus can we demonstrate fealty
to the Constitutional provision that the Electoral Tribunal of each House
of Congress shall be the "sole judge of all contests relating to the
election, returns, and qualifications of their respective members."
Guerrero v. Comelec, G.R. No. 137004, July 26, 2000.
NOTE: This is different from Powell v. McCormack, 395 U.S. 486
(1969) where the Federal Court said that Congress can pass judgment
only on constitutional qualifications. The Tribunal's power, however,
covers not just qualifications but also "election" and "returns."
Q. May Congress regulate the actions of the Electoral Tribunals
even only in procedural matters?
A. No. The Tribunals are independent constitutional bodies.
Angara v. Electoral Commission, 63 Phil. 139.
Q. Petitioners, seeking to disqualify Harry Angping, failed to make
the cash deposit required by the rules of the HRET. When the petition
was dismissed, they claimed grave abuse of discretion. Decide.
A. The petition for quo warranto attacks the ineligibility of
Congressman Angping to hold office as a Member of the House of
Representatives, not being a natural-born citizen of the Philippines. This
is a serious charge, which, if true, renders Congressman Angping
disqualified from such office. In view of the delicate nature and
importance of this charge, the observance of the HRET Rules of
244 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Procedure must be taken seriously if they are to attain their objective,
i.e., the speedy and orderly determination of the true will of the
electorate. Correlatively, party litigants appearing before the HRET or, to
be more precise, their lawyers, are duty bound to know and are
expected to properly comply with the procedural requirements laid
down by the Tribunal without being formally ordered to do so. They
cannot righteously impute abuse of discretion to the Tribunal if by
reason of the non-observance of those requirements it decides to
dismiss their petition. Imperative justice requires the proper observance
of technicalities precisely designed to ensure its proper and swift
dispensation. Therefore, we find that the HRET did not commit grave
abuse of discretion in applying its Rules strictly and in dismissing the
Garcia v. HRET, 6.R. No. 134792. August 12,1999.
Q. What is the extent of the jurisdiction of the Supreme Court
over the Electoral Tribunals?
A. Judicial review of decisions or final resolutions of the Electoral
Tribunals is possible only in the exercise of the Court's so-called
extraordinary jurisdiction upon a determination that the tribunal's
decision or resolution was rendered without or in excess of jurisdiction
or with grave abuse of discretion constituting denial of due process.
Robles v. House Electoral Tribunal, G.R. No. 86647, February 5,1990;Co
v. Electoral Tribunal of the House of Representatives, G.R. No. 92191-92,
July 30,1991; Lerias v. House Electoral Tribunal, G.R. No. 97105, October
15,1991.
Q. On the eve of the promulgation of a decision against an LDP
member, the LDP expelled Camasura from the party (and therefore as
LDP member of the HET), one of its representatives in the Electoral
Tribunal and the alleged ground of disloyalty for having shown his
support for Cojuangco. Camasura had previously confided to LDP that
he had voted against the LDP Congressman. As a consequence the
decision could not be promulgated. Was the removal of Camasura
valid?
A. The action taken by LDP was a grave abuse of discretion which
the Supreme Court can correct by virtue of its power under Article VIII,
Section 1 to review "grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government." Bondoc v. Pineda, G.R. No. 97710, September 26, 1991.
Q. . The Senator-members of the Electoral Tribunal are sought to
be disqualified on the ground that they, together with all the other
Senators, are respondents in the contest filed by the opposition. May
the Electoral Tribunal function as such when all of the Senator-members
in it have been disqualified, either voluntarily or involuntarily?
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 245
A. No. "Where as here a situation is created which precludes the
substitution of any Senator sitting in the Tribunal by any of his other
colleagues in the Senate without inviting the same objections to the
substitute's competence, the proposed mass disqualification if
sanctioned and ordered would leave the Tribunal no alternative but to
abandon a duty that no other court or body can perform but which it
cannot lawfully discharge if shorn of the participation of its entire
membership of Senators." They must therefore discharge their function.
Abbas, et al. v. Senate Electoral Tribunal, 166 SCRA 651 (1988).
Q. Petitioner contends that the protest before the Electoral
Tribunal was filed out of time and therefore should be dismissed. True
enough, the protest was filed within the period prescribed by the
Tribunal rules, but out of time if computed on the basis of the Election
Code for filing cases before the COMELEC. Decide.
A. The applicable rule is not the Election Code rule, which is for
cases filed before the COMELEC, but the Tribunal rule. In fact, Congress
may not prescribe for the Electoral Tribunal a period for filing cases
before it. The Tribunal is sole judge of election contests. This power
necessarily includes the rule making power with which Congress may
not interfere. Lazatin v. House Electoral Tribunal, G.R. No. 84297,
December 8,1988.
SEC. 18. THERE SHALL BE A COMMISSION ON APPOINTMENTS
CONSISTING OF THE PRESIDENT OF THE SENATE, AS EX-OFFICIO
CHAIRMAN, TWELVE SENATORS
AND TWELVE MEMBERS OF THE HOUSE OF REPRESENTATIVES,
ELECTED BY EACH HOUSE ON
THE BASIS OF PROPORTIONAL REPRESENTATION FROM THE POLITICAL
PARTIES AND
PARTIES OR ORGANIZATIONS REGISTERED UNDER THE PARTY-LIST
SYSTEM REPRESENTED
THEREIN. THE CHAIRMAN OF THE COMMISSION SHALL NOT VOTE,
EXCEPT IN CASE OF A TIE. THE
COMMISSION SHALL ACT ON ALL APPOINTMENTS SUBMITTED TO IT
WITHIN THIRTY SESSION
DAYS OF THE
CONGRESS FROM THEIR SUBMISSION. THE COMMISSION SHALL RULE BY
A affirmed the registration of the LDP as a political party.) The sense of the
MAJORITY VOTE OF ALL ITS MEMBERS.
Q. What is the composition of the Commission on Appointments?
A. It is composed of the Senate President as Chairman, twelve Senators and
twelve Members of the House of Representatives elected by each
House according to proportional representation of the parties or
organizations registered under the party-list system represented
therein. The total composition will thus be twenty five, but the
Chairman votes only to break a tie.
246 THE 1987 PHILIPPINE CONSTITUTION: Sees.
15-16
A COMPREHENSIVE REVIEWER
Q. What is the function of the Commission on Appointments?
A. The Commission on Appointments acts as a legislative check on the
appointing authority of the President. For the effectivity of the
appointment of certain key officials enumerated in the Constitution, the
consent of the Commission on Appointments is needed.
Q. Petitioner was a member of the Commission on Appointments
representing the Liberal Party. With the organization of the LDP (Laban
ng Demokratikong Pilipino), some congressional members belonging to
the Liberal Party resigned from said party to join the LDP. When the
Commission on Appointments was reorganized, petitioner was
replaced by an LDP representative.
1. Does the situation present a "political question?"
2. Petitioner contends that the organization of the LDP cannot
affect the composition of the Commission on Appointments because
LDP is not a registered party and has not yet shown the stability of a
party. Decide.
A. 1. The question is justiciable. The issue is one of legality not of wisdom. The
ascertainment of the manner of forming the Commission on
Appointments is distinct from the discretion of the parties to designate
their representatives. And even if the question were political in nature,
it would still come under the expanded power of review in Article VIII,
Section 1.
2. The Constitution requires proportional representation of the
parties in both houses of Congress. Nowhere, however, does the
Constitution require that the party must be a registered party.
(Moreover, in the course of the litigation, the Commission on Elections
Constitution is that the membership in the Commission on
Appointments must always reflect political alignments in Congress and
must therefore adjust to changes. It is understood that such changes in
party affiliation must be permanent and not merely temporary alliances.
Daza v. Singson, G.R. No. 86344, December 21,1989.
Q. Coseteng was the only candidate elected under the banner of KAIBA. After
the reorganization of party alignment when many joined the LDP and
with the endorsement of nine other Congressmen she sought
appointment to the Commission on
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 247
Appointments as a minority representative. Is she entitled to a seat
under the rule of proportional representation?
No. This is a justiciable question since it involves the legality of the
distribution of seats. Even if KAIBA were to be considered as an
opposition party, its lone member represents only 0.4% of the House
membership and thus not entitled to one of the twelve seats. Under the
total membership of the House, to be entitled to a seat the party should
comprise 8.4% of the House membership. Nor can the endorsement of
the nine members be counted in Coseteng's favor because they are not
members of her party. Coseteng v. Mitra, Jr., G.R. No. 86649, July 12,
1990.
NOTE: The arithmetic involved in the formation of the
Commission on Appointments has occasioned a number of
controversies and was once again the subject of controversy in
Guingona, Jr. v. Gonzales, 214 SCRA 789 (1992). The case involved
the Senate contingent in the Commission. The senatorial elections
of 1992 yielded 15 LDP senators, 5 NPC, 3 Lakas-NUCD, and 1
LP-PDP-LABAN. On the basis of proportional representation,
therefore, the Commission on Appointments could contain 7.5
LDP, 2.5 NPC, 1.5 Lakas, and .5 LP-PDP-LABAN. The Senate,
however, put in 8 LDP by rounding out 7.5, 2 NPC by ignoring .5, 1
LAKAS also by ignoring .5, and 1 LP-PDP by rounding out .5 to 1.
Was this constitutional? The Court ruled that rounding out 7.5 to 8
and .5 to 1 was unconstitutional because it deprived Lakas and
NPC of .5 each. Nor could the holders of .5 each, while belonging
to distinct parties, form a unity for purposes of obtaining a seat in
the Commission. Thus, under the Court's arithmetic, the result
would be a total of only 11 members. The Court ruled that a full
complement of 12 was not mandatory.
The case of Lorenzo Tanada being given a seat in the
Commission on Appointments in the old Senate in spite of his
being the only member of the Citizens Party was cited as
justification for reconsidering the decision. The Court did not
consider the case of the older Tanada as precedent because the
action of the Senate then was never challenged in court.
Guingona, Jr. v. Gonzales, 219 SCRA 326 (1993).
NOTE: The Constitution gives to the two Houses of Congress
the primary jurisdiction over who should sit in the Commission on
Appointments. This includes determination of party affiliation and
number of party members for the purpose of determining
proportional representation. Drilon, et al v. Speaker, G.R. No.
180055, July 31, 2009.
248 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-13
SEC. 19. THE ELECTORAL TRIBUNALS AND THE COMMISSION ON
APPOINTMENTS
SHALL BE CONSTITUTED WITHIN THIRTY DAYS AFTER THE SENATE AND
THE HOUSE OF
REPRESENTATIVES SHALL HAVE BEEN
ORGANIZED WITH THE ELECTION OF THE PRESIDENT AND THE SPEAKER.
THE COMMISSION ON APPOINTMENTS SHALL MEET ONLY WHILE THE
CONGRESS IS IN SESSION,
AT THE CALL OF ITS CHAIRMAN OR A MAJORITY
OF ALL ITS MEMBERS, TO DISCHARGE SUCH POWERS AND FUNCTIONS
AS ABE HEREIN
CONFERRED UPON IT.
Q. How should the Commission arrive at its decisions?
A. First, the Commission must act on all appointments submitted to it within
thirty session days from submission. This rule is intended to prevent the
Commission from freezing appointments. Second, the Commission shall
decide by majority vote. Thus, the dissent of one member should not
block action by the Commission. Finally, the Commission can meet and
act only when Congress is in session.
SEC. 20. THE RECORDS AND BOOKS OF ACCOUNTS OF THE CONGRESS
SHALL BE PRESERVED AND BE OPEN TO THE PUBLIC IN ACCORDANCE
WITH LAW, AND SUCH
BOOKS SHALL BE AUDITED BY THE COMMISSION ON AUDIT WHICH
SHALL PUBLISH ANNUALLY
AN ITEMIZED LIST OF AMOUNTS PAID TO AND EXPENSES INCURRED FOR
EACH MEMBER.
SEC. 21. THE SENATE OR THE HOUSE OF REPRESENTATIVES OR
ANY OF ITS RESPECTIVE COMMITTEES MAY CONDUCT INQUIRIES IN AID
OF LEGISLATION IN
ACCORDANCE WITH ITS DULY PUBLISHED RULES OF PROCEDURE. THE
RIGHTS OF PERSONS
APPEARING IN OR AFFECTED BY SUCH INQUIRIES SHALL BE
RESPECTED.
NOTE: Legislative hearings.
There are two provisions on legislative hearing, Sections 21 and
22. Section 21 is about legislative investigations in aid of legislation. Its
scope and limitation has been the subject of earlier rulings but Senate v.
Ermita, G.R. No. 169777, April 20,2006, specified who may and who
may not be summoned to Section 21 hearings. Thus, under this rule,
even a Department Head who is an alter ego of the President may be
summoned. Thus, too, the Chairman and members of the Presidential
Commission on Good Government (PCGG) are not except from
summons in spite of the exemption given to them by President Cory
Aquino during her executive rule. Sabio v. Gordon, G.R.
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 249
No. 174318, October 17, 2006. The Court ruled that anyone, except the
President and Justices of the Supreme Court, may be summoned. Nor
may a court prevent a witness from appearing in such hearing. Senate
Blue Ribbon Committee v. Judge Majadueon, G.R. No. 136760, July 29,
2003.
Section 22, for its part, establishes the rule for the exercise of
what is called the "oversight function" of Congress. Such function is
intended to enable Congress to determine how laws it has passed are
being implemented. In deference to separation of powers, however,
and because Department Heads are alter egos of the President, they
may not appear without the permission of the President. This was
explicitly mentioned in the deliberations of the 1935 Constitutional
Convention where some Delegates had doubts about the propriety or
constitutionality of Department Heads appearing in Congress. Such
deference is not found, by the Court's interpretation, in Section 21.
It should be noted, however, that the exemption from summons
applies only to Department Heads and not to everyone who has Cabinet
rank.
Q. Must the rules for investigation be published?
A. Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he
Senate or the House of Representatives, or any of its respective
committees may conduct inquiries in aid of legislation in accordance
with its duly published rules of procedure." The requisite of publication
of the rules is intended to satisfy the basic requirements of due process.
Publication is indeed imperative, for it will be the height of injustice to
punish or otherwise burden a citizen for the transgression of a law or
rule of which he had no notice whatsoever, not even a constructive one.
What constitutes publication is set forth in Article 2 of the Civil Code,
which provides that "[l]aws shall take effect after 15 days following the
completion of their publication either in the Official Gazette, or in a
newspaper of general circulation in the Philippines." The absence of any
amendment to the rules published some years ago cannot justify the
Senate's defiance of the clear and unambiguous language of Section 21,
Article VI of the Constitution. The organic law instructs, without more,
that the Senate or its committees may conduct inquiries in aid of
legislation only in accordance with duly published rules of procedure,
and does not make
250 THE 1987 PHILIPPINE CONSTITUTION: Sees. 15-16
A COMPREHENSIVE REVIEWER
any distinction whether or not these rules have undergone
amendments or revision. The constitutional mandate to publish the
said rules prevails over any custom, practice or tradition followed by the
Senate. Garcillano v. House of Representatives, G.R. No. 170338,
December 23, 2008
In De la Paz v. Senate, G.R. No. 184849, February 13, 2009
petitioners argue that respondent Committee is devoid of any
jurisdiction because it violated the same Senate Rules when it issued
the warrant of arrest without the required signatures of the majority of
the members of respondent Committee and because they were not
published as required by the Constitution, and thus, cannot be used as
the basis of any investigation involving them relative to the Moscow
incident. But Section 16(3), Article VI of the Philippine Constitution
states: "Each House shall determine the rules of its proceedings." This
provision has been traditionally construed as a grant of full discretionary
authority to the Houses of Congress in the formulation, adoption and
promulgation of its own rules. As such, the exercise of this power is
generally exempt from judicial supervision and interference, except on
a clear showing of such arbitrary and improvident use of the power as
will constitute a denial of due process. But the Senate is still subject to
the imperatives of quorum, voting, and publication. (The Senates rules
had in fact been published and were followed by the Senate.)
Q. What is the purpose of legislative investigation?
A. The power of inquiry — with process to enforce it — is an essential and
appropriate auxiliary to the legislative function. A legislative body
cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or
change; and where the legislative body does not itself possess the
requisite information — which is not infrequently true — recourse must
be had to others who do possess it. Arnault v. Nazareno, 87 Phil. 29, 45
(1950).
Q. How is the power of legislative investigation enforced?
A. Experience has shown that mere requests for information are frequently
unavailing and that information that is volunteered is not always
accurate or complete. Hence, the power of investigation necessarily
includes the power to punish a contumacious witness for contempt.
Arnault v. Nazareno, supra.
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 251
Q. May a court enjoin the appearance of a witness?
A. No. A court has no authority to prohibit the Committee from requiring
respondent to appear and testify before it. Senate Blue Ribbon
Committee v. Judge Majaducon, G.R. No. 136760, July 29,2003.
Q. When may a witness in an investigation be punished for contempt?
A. No person can be punished for contumacy as a witness unless his testimony
is required in a matter into which the legislature or any of its committees
has jurisdiction to inquire. The requirement that the investigation be "in
aid of legislation" is an essential element for establishing the jurisdiction
of the legislative body. It is, however, a requirement which is not difficult
to satisfy because, unlike in the United States, where legislative power is
shared by the United States Congress and the state legislatures, the
totality of legislative power is possessed by Congress and its legislative
field is well-nigh unlimited. "It would be difficult to define any limits by
which the subject matter of its inquiry can be bounded." Moreover, it is
not necessary that every question propounded to a witness must be
material to a proposed legislation. "In other words, the materiality of the
question must be determined by its direct relation to the subject of the
inquiry and not by its indirect relation to any proposed or possible
legislation. The reason is that the necessity or lack of necessity for
legislative action and the form and character of the action itself are
determined by the sum total of the information to be gathered as a
result of the investigation, and not by a fraction of such information
elicited from a single question." Arnault v. Nazareno, supra.
Q. Upon the instigation of Senator Enrile who said in a privileged
speech that there was need to determine the existence of violation of
law in the alleged transfer of some properties of "Kokoy" Romualdez to
the Lopa Group of companies, the Senate Blue Ribbon Committee
decided, purportedly in aid of legislation, to investigate the transaction.
Meanwhile, too, the petitioners in this case had been charged before
the Sandiganbayan in connection with the same transaction.
Meanwhile, too, the petitioners in this case had been charged criminally
before the Sandiganbayan in connection with the same transaction.
A. The Court ruled that the investigation was not in aid of
legislation because "the speech of Senator Enrile contained no
252 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 19-21
suggestion of contemplated legislation" but merely pointed to the need
to determine whether "the relatives of President Aquino, particularly
Mr. Ricardo Lopa, had violated the law." To allow the investigation to
continue would violate separation of powers. (The Court did not find it
necessary to discuss the due process allegation.) Bengzon, Jr. v. Senate
Blue Ribbon Committee, G.R. No. 89914, November 20,1991. See
dissents.
But when bank officers who had been summoned used the
Bengzon argument in Standard Charter v. Senate, G.R. No. 167173,
December 27,2007, the Court said that the factual milieu in Bengzon did
not obtain in the case. Resolution No. 166 calling for the hearing was
explicit about the subject and nature of the inquiry to be conducted by
the respondent Committee.
Q. What does the Constitution mean when it says that "The rights of persons
appearing in or affected by such inquiries shall be respected?"
A. This is just another way of saying that legislative investigations must be
"subject to the limitations placed by the Constitution on governmental
action." And since all governmental action must be exercised subject to
constitutional limitations, principally found in the Bill of Rights, this
limitation really creates no new constitutional right.
Q. For how long may Congress keep a contumacious witness in detention?
A. In addition to the above express limitations on the power of Congress is the
implicit limitation that the legislature's power to commit a witness for
contempt terminates when the legislative body ceases to exist upon its
final adjournment. "This must be so, inasmuch as the basis of the power
to impose such a penalty is the right which the legislature has to
self-preservation, and which right is enforceable during the existence of
the legislative body." Avancena, C.J. concurring in Lopez v. de los Reyes,
55 Phil. 170,186 (1930).
Q. May the inherent power of Congress to punish for contempt
be applied, mutatis mutandis, to local legislative bodies?
A. No. The power is recognized as inherent in Congress as a
matter of self-preservation of one of the three independent and
coordinate branches of government. It is sui generis and may not be
claimed by local legislative bodies. Negros Oriental II Electric Cooperative
v. Sangguniang Panglunsod, G.R. No. 72492, November 5,1987.
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 253
SEC. 22. THE HEADS OF DEPARTMENTS MAY UPON THEIR OWN
INITIATIVE, WITH THE CONSENT OF THE PRESIDENT, OR UPON THE
REQUEST OF EITHER HOUSE, AS THE RULES OF EACH HOUSE SHALL
PROVIDE, APPEAR BEFORE AND BE HEARD BY SUCH HOUSE ON ANY
MATTER PERTAINING TO
THEIR DEPARTMENTS. WRITTEN QUESTIONS SHALL BE SUBMITTED TO
THE PRESIDENT OF THE
SENATE OR THE SPEAKER OF
THE HOUSE OF REPRESENTATIVES AT LEAST THREE DAYS BEFORE
THEIR
SCHEDULED APPEARANCE. INTERPELLATIONS SHALL NOT BE LIMITED
TO WRITTEN QUESTIONS,
BUT MAY COVER MATTERS RELATED THERETO. WHEN THE SECURITY OF
THE STATE OR THE
PUBLIC INTEREST SO REQUIRES
AND THE PRESIDENT SO STATES IN WRITING, THE APPEARANCE SHALL
BE
CONDUCTED IN EXECUTIVE SESSION.
Q. What is the purpose of Section 22?
A. The provision formalizes the "oversight function" of Congress. The special
mention of heads of departments was put in, even under the
Administrative Code before the 1935 Constitution, was intended to
forestall any objection to a department head's appearance in Congress.
Q. Does Section 22 provide for a "question hour?"
A. No. The "question hour" is proper to a parliamentary system where there is
no separation between the legislative and executive department.
Section 22, unlike in the "question hour" under the 1973 Constitution,
has made the appearance of department heads voluntary. They can
appear on their own initiative, with the consent of the President, or at
the request of Congress. Because of the separation of powers, however,
department secretaries may not impose their appearance upon either
House.
SEC. 23. (1) THE CONGRESS, BY A VOTE OF TWO-THIRDS OF BOTH
HOUSES IN JOINT
SESSION ASSEMBLED, VOTING SEPARATELY, SHALL HAVE THE SOLE
POWER TO DECLARE THE
EXISTENCE OF A STATE OF WAR.
(2) 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 POWER SHALL CEASE UPON THE NEXT
ADJOURNMENT
THEREOF.
254 THE 1987 PHILIPPINE CONSTITUTION: Sees. 15-16
A COMPREHENSIVE REVIEWER
Q. What is the difference, if any, between the war power of
Congress under the 1935 Constitution and the war power of
Congress now?
A. The 1935 Constitution, Article VI, Section 25, gave to Congress
"the sole power to declare war;" the present provision, as also
the 1973 provision, gives to Congress "the sole power to declare
the existence of a state of war." The difference between the
two phraseologies is not substantial but merely in emphasis.
The two phrases are interchangeable, even under the 1935
Constitution; but the second phrase emphasizes more the
fact that the Philippines, according to Article II, Section 2,
renounces aggressive war as an instrument of national policy.
Q. May the country engage in war in the absence of a declaration
of war?
A. While the Constitution gives to the legislature the power to
declare the existence of a state of war and to enact all measures
to support the war, the actual power to make war is lodged
elsewhere, that is, in the executive power which holds the
sword of the nation. The executive power, when necessary, may
make war even in the absence of a declaration of war. In the
words of the American Supreme Court, war being a question of
actualities, "the President was bound to meet it in the shape
it presented itself, without waiting for Congress to baptize it
with a name; and no name given to it by him or them could
change the fact." See Prize Cases, 2 Bl. 635 (U.S. 1863).
Q. Under what conditions may emergency powers be delegated to
the President?
A. See Section 23(2).
Q. What emergency powers may be delegated?
A. Under the present provision, Congress may authorize the
President "to exercise powers necessary and proper to carry
out a declared national policy." Note that the nature of the
delegable power is not specified. It is submitted that, on the
basis of this provision, the President may be given emergency
legislative powers if Congress so desires. This is confirmed
by the explanation made on the floor of the 1971 Convention,
which is the source of this provision, that emergency powers
can include the power to rule by "executive fiat."
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 255
Q. Does a resolution of Congress withdrawing the emergency powers need
presidential approval?
A. No.
SEC. 24. ALL APPROPRIATION, REVENUE OR TARIFF BILLS, BILLS
AUTHORIZING INCREASE OF THE PUBLIC DEBT, BILLS OF LOCAL
APPLICATION, AND PRIVATE BILLS
SHALL ORIGINATE EXCLUSIVELY IN THE HOUSE
OF REPRESENTATIVES, BUT THE SENATE MAY PROPOSE OR CONCUR
WITH
AMENDMENTS.
Q. What is the meaning of the requirement that money bills must originate in
the House of Representatives?
A. The meaning of origination from the House and the scope of the Senate's
power to introduce amendments were thoroughly discussed in
Tolentino v. Secretary of Finance, 235 SCRA 630 (1994), affirmed on
reconsideration October 30, 1995, involving R.A. 7716, the Value Added
Tax (VAT) law. The Court said that the exclusivity of the prerogative of
the House of Representatives means simply that the House alone can
initiate the passage of a revenue bill, such that, if the House does not
initiate one, no revenue law will be passed. But once the House has
approved a revenue bill and passed it on to the Senate, the Senate can
completely overhaul it, by amendment of parts or by amendment by
substitution, and come out with one completely different from what the
House approved. It does not matter whether the Senate already
anticipated a bill from the House and formulated one to take the place
of whatever the House might send. The Court rejected the idea that the
Senate is bound to retain the essence of what the other House
approved. Textually, it is the "bill" which must exclusively originate from
the House; but the "law" itself which is the product of the total
bicameral legislative process originates not just from the House but from
both Senate and House.
NOTE: A bill of local application, such as one asking for the
conversion of a municipality into a city, is deemed to have
originated from the House provided that the bill of the House was
filed prior to the filing of the bill in the Senate even if, in the end,
the Sernate approved its own version. Reiterates the VAT case.
Alvarez v. Guingona, G.R. No. 118303, January 31,1996.
NOTE: Guingona, Jr. v. Carague, 196 SCRA 221 (1991), dealt with the
controversy surrounding automatic appropriation
256 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
for foreign debt servicing. Petitioners sought to declare the
various
Presidential Decrees authorizing automatic appropriation of
amounts to be used for servicing foreign debts. The principal
contention of petitioners was that (1) appropriation "bills" under
Section 24 must originate in the House of Representatives and
(2) there must be definiteness, certainty and exactness in an
appropriation.
Answering the first argument the Court said that the existing
presidential decrees were laws and not bills still to be
enacted into law. As to the second argument, the Court resolved
it by applying the principles on delegation: The decrees are complete
by themselves and the exact amount due can be arrived at
by arithmetical computation on the basis of existing records.
SEC. 25. (1) 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.
(2) NO PROVISION OR ENACTMENT SHALL BE EMBRACED IN THE
GENERAL APPROPRIATIONS BILL UNLESS IT RELATES SPECIFICALLY TO
SOME PARTICULAR APPROPRIATION THEREIN. ANY SUCH PROVISION OR
ENACTMENT SHALL BE LIMITED IN ITS OPERATION TO THE
APPROPRIATION
TO WHICH IT RELATES.
(3) THE PROCEDURE IN APPROVING APPROPRIATIONS FOR THE
CONGRESS SHALL STRICTLY FOLLOW THE PROCEDURE FOR
APPROVING
APPROPRIATIONS FOR OTHER DEPARTMENTS AND AGENCIES.
(4) A SPECIAL APPROPRIATIONS BELL SHALL SPECIFY THE PURPOSE
FOR WHICH IT IS INTENDED, AND SHALL BE SUPPORTED BY FUNDS
ACTUALLY
AVAILABLE AS CERTIFIED BY THE NATIONAL TREASURER, OR TO BE
RAISED
BY A CORRESPONDING REVENUE PROPOSAL THEREIN.
(5) NO LAW SHALL BE PASSED AUTHORIZING ANY TRANSFER OF
APPROPRIATIONS; HOWEVER, THE PRESIDENT, THE PRESIDENT OF THE
SENATE, THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, THE
CHIEF
JUSTICE OF THE SUPREME COURT, AND THE HEADS OF
CONSTITUTIONAL
COMMISSIONS MAY, BY LAW, BE AUTHORIZED TO AUGMENT ANY ITEM IN
THE
GENERAL APPROPRIATIONS LAW FOR THEIR RESPECTIVE OFFICES
FROM
SAVINGS IN OTHER ITEMS OF THEIR RESPECTIVE APPROPRIATIONS.
(6) DISCRETIONARY FUNDS APPROPRIATED FOR PARTICULAR
OFFICIALS SHALL BE DISBURSED ONLY FOR PUBLIC PURPOSES TO BE
SUPPORTED BY APPROPRIATE VOUCHERS AND SUBJECT TO SUCH
GUIDELINES
AS MAY BE PRESCRIBED BY LAW.
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 257
(7) IF, BY THE END OF ANY FISCAL YEAR, THE CONGRESS SHALL HAVE
FAILED TO PASS THE GENERAL APPROPRIATIONS BILL FOR THE
ENSUING
FISCAL YEAR, THE GENERAL APPROPRIATIONS LAW FOR THE
PRECEDING
FISCAL YEAR SHALL BE DEEMED REENACTED AND SHALL REMAIN IN
FORCE
AND EFFECT UNTIL THE GENERAL APPROPRIATIONS BILL IS PASSED BY
THE
CONGRES8.
Q. How is the general appropriations bill prepared?
A. See Section 24 and Section 25(1).
Q. What is the rule on "riders" in the general appropriations bill?
A. See Section 25(2).
Q. The Appropriation Act for FY 1956-57 contained the following provision:
"after the approval of this Act, and when there is no emergency, no
reserve officer of the Armed Forces of the Philippines may be called to a
tour of active duty for more than two years during any period of five
consecutive years." Is the provision valid?
A. No. The provision violates the rule on "riders." Garcia v. Mata, 65 SCRA 517
(July 30,1975).
Q. May Congress treat appropriations for Congress itself differently from those
for others?
A. See Section 25(3).
Q. What are the rules on special appropriations?
A. See Section 25(4).
Q. To what extent may Congress allow transfer of funds?
A. See Section 25(5);
Q. Paragraph 1 of Section 44 ofP.D. 1177 says: "The President shall
have the authority to transfer any fund, appropriated for the different
departments, bureaus, offices and agencies of the executive
department, which are included in the General Appropriations Act, to
any program, project or activity of any department, bureau, or office
included in the General Appropriations Act or approved after its
enactment." Valid?
A. No. Commenting on the constitutional text, the Court said that the provision
is intended "to afford the heads of the diffe
258 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
rent branches of the government and those of the Constitutional
Commissions considerable flexibility in the use of public funds and resources"
but that the leeway granted was limited. "The purpose of augmenting an item
and such transfer may be made only if there are savings from another item in
the appropriation of the government branch or constitutional body." Pointing
out that P.D. 1177 empowered the President "to indiscriminately transfer
funds . . . without regard as to whether or not the funds to be transferred are
actually savings in the item from which the same are to be taken," the Court
declared the law unconstitutional. Demetria v. Alba, 148 SCRA 208 (1987).
NOTE: The list of those who may be authorized to transfer funds
under this provision is exclusive. Hence, the Chief of Staff of the Armed
Forces may not be given such authority. Likewise, individual members
of Congress may not be given such authority and must seek approval
from the Speaker or the Senate President if these latter have been
authorized by law. Philippine Constitutional Association v. Enriquez, 235
SCRA 506,544 (1994).
Q. What is the rule on discretionary funds?
A. See Section 25(6).
Q. On what budget does the government operate when Congress fails to
approve a general appropriation bill?
A. See Section 25(7).
SEC. 26. (1) EVERY BILL PASSED BY THE CONGRESS SHALL EMBRACE
ONLY ONE SUBJECT WHICH SHALL BE EXPRESSED IN THE TITLE
THEREOF.
(2) NO BILL PASSED BY EITHER HOUSE SHALL BECOME A LAW
UNLESS IT HAS PASSED THREE READINGS ON SEPARATE DAYS, AND
PRINTED COPIES THEREOF IN ITS FINAL FORM HAVE BEEN DISTRIBUTED
TO ITS MEMBERS THREE DAYS BEFORE ITS PASSAGE, EXCEPT WHEN
THE
PRESIDENT CERTIFIES TO THE NECESSITY OF ITS IMMEDIATE
ENACTMENT
TO MEET A PUBLIC CALAMITY OR EMERGENCY. UPON THE LAST
READING
OF A BILL, NO AMENDMENT THERETO SHALL BE ALLOWED, AND THE
VOTE
THEREON SHALL BE TAKEN IMMEDIATELY THEREAFTER, AND THE YEAS
AND
NAYS ENTERED IN THE JOURNAL.
Q. What is the nature and purpose of the rule on title and subject of bills?
A. The requirement that "Every bill embrace only one subject which shall be
expressed in the title thereof' is mandatory and not directory and
compliance with it is essential to the validity
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 259
of legislation. An early decision explained the purpose of this limitation
on legislative power thus:
The object sought to be accomplished and the mischief
proposed to be remedied by this provision are well known.
Legislative assemblies, for the dispatch of business, often pass bills
by their titles only without requiring them to be read. A specious
title sometimes covers legislation which, if its real character had
been disclosed, would not have commanded assent. To prevent
surprise and fraud on the legislature is one of the purposes this
provision was intended to accomplish. Before the adoption of this
provision the title of a statute was often no indication of its subject
or contents.
An evil this constitutional requirement was intended to
correct was the blending in one and the same statute of such
things as were diverse in their nature, and were connected only to
combine in favor of the statute all the advocates of each, thus
often securing the passage of several measures no one of which
could have succeeded on its own merits. Mr. Cooley thus sums up
in his review of the authorities defining the objects of this
provision: 'It may therefore be assumed as settled that the
purpose of this provision was: First, to prevent hodge-podge or
log-rolling legislation, second, to prevent surprise or fraud upon
the legislature by means of provisions in bills of which the titles
gave no information, and which might therefore be overlooked
and carelessly and unintentionally adopted; and, third, to fairly
appraise the people, through such publication of legislative
proceedings as is usually made, of the subjects of legislation that
are being considered, in order that they may have opportunity of
being heard thereon by petition or otherwise if they shall so
desire.' Central Capiz v. Ramirez, 40 Phil. 883, 891 (1920).
Q. How must the rule be interpreted, liberally or strictly?
A. Liberally. The rule "should be given a practical rather than technical
construction. It should be sufficient compliance with such requirement
if the title expresses the general subject and all the provisions of the
statute are germane to that general subject." Sumulong v. Commission
on Elections, 73 Phil. 288, 291 (1941).
Q. A bill is passed entitled "An Act Amending Certain Sections of
Republic Act Numbered One Thousand One Hundred Ninety-Nine,
otherwise known as the Agricultural Tenancy Act of the Philippines."
The bill contained a provision authorizing the Secretary of Justice to
mediate tenancy disputes through a tenancy mediation division. Valid?
260 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
A. Yes. Cordero v. Cabatuando, 6 SCRA 418 (1962).
Q. The title of R.A. 1435 is "An Act to Provide Means of Increasing
the Highway Special Fund." It is contended that, since the purpose of
the bill is to increase the highway fund, the provision in Section 5 which
creates an exemption and thus does not contribute to an increase is
alien to the subject of the law and is therefore unconstitutional. Decide.
A. The purpose of the constitutional provision requiring unity of
content and expression of the content in the title is to prevent duplicity
of subject and surprise upon the legislators and the public. Clearly, the
provision for exemption comes under the general subject expressed in
the title. Insular Lumber Co. v. Court of Tax Appeals, 104 SCRA 710,
716-7 (L-31137, May 29,1981).
Q. A bill is passed entitled "An Act Creating the Municipality of
Dianaton in the Province of Lanao del Norte." The proposed
municipality, however, included some barrios outside Lanao del Norte.
Valid?
A. A divided Supreme Court declared the law invalid for
insufficiency of title. Lidasan v. COMELEC, 21 SCRA 496 (1967).
Q. P.D. No. 1987 is entitled "An Act Creating the Videogram
Regulatory Board." Section 10 thereof imposes a 30% tax on gross
receipts on video transactions. Is this a "rider?"
A. The requirement that eveiy bill must only have one subject
expressed in the title is satisfied if the title is comprehensive enough to
include subjects related to the general purpose which the statute seeks
to achieve. Such is the case here. Taxation is sufficiently related to the
regulation of the video industry. Tio v. Videogram Regulatory Board, 151
SCRA 208 (1987).
NOTE: The title "An Act Creating the Philippine Postal
Corporation, Defining Its Powers, Functions and Responsibilities,
Providing for the Regulation of the Industry and for Other Purposes
Connected Therewith" was found to be sufficiently broad to cover the
removal of the franking privileges of the judiciary. Philippine Judges
Association v. Prado, 227 SCRA 703 (1993). [But the provision on the
franking privileges of the judiciary was declared unconstitutional on
equal protection grounds.] Similarly, the title "An Act Converting the
Municipality of Mandaluyong Into a Highly Urbanized City of
Mandaluyong" was deemed to include the resulting conversion of such
city into a congressional district in compliance with Article VI, Section
5(3) of the Constitution. Tobias v. Abalos, 239 SCRA 106,110111 (1994).
Also Mariano, Jr. v. Commission on Elections, G.R. No. 118702, March
16,1995.
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 261
NOTE: RA 9369 is challenged misleading because it speaks of poll
automation but contains substantial provisions dealing with the manual
canvassing of election returns. But the constitutional requirement that
"every bill passed by the Congress shall embrace only one subject which
shall be expressed in the title thereof has always been given a practical
rather than a technical construction. The requirement is satisfied if the
title is comprehensive enough to include subjects related to the general
purpose which the statute seeks to achieve. RA 9369 is an amendatory
act entitled "An Act Amending Republic Act No. 8436, Entitled 'An Act
Authorizing the Commission on Elections to Use an Automated Election
System in the May 11, 1998 National or Local Elections and in
Subsequent National and Local Electoral Exercises, to Encourage
Transparency, Credibility, Fairness and Accuracy of Elections, Amending
for the Purpose Batas Pambansa Big. 881, as Amended, Republic Act No.
7166 and Other Related Election Laws, Providing Funds Therefore and
For Other Purposes."* This is wide-covering enough. Banat v. Comelec,
G.R. No. 177508, August 7,2009.
Q. How many times must a bill be brought before Congress before it becomes
a law?
A. See Section 26(2).
SEC. 27. (1) EVERY BILL PASSED BY THE CONGRESS SHALL, BEFORE IT
BECOMES A LAW,
BE PRESENTED TO THE PRESIDENT. IF HE APPROVES
THE SAME, HE SHALL SIGN IT; OTHERWISE, HE SHALL VETO IT AND
RETURN THE SAME WITH HIS
OBJECTIONS TO THE HOUSE WHERE IT ORIGINATED, WHICH SHALL
ENTER THE OBJECTIONS AT
LARGE IN ITS JOURNAL AND PROCEED TO RECONSIDER IT. IF, AFTER
SUCH RECONSIDERATION,
TWO- THIRDS OF ALL THE MEMBERS OF SUCH HOUSE SHALL AGREE TO
PASS THE BILL, IT SHALL BE
SENT, TOGETHER WITH THE OBJECTIONS, TO THE OTHER
HOUSE BY WHICH IT SHALL LIKEWISE BE RECONSIDERED, AND IF
APPROVED
BY TWO-THIRDS OF ALL THE MEMBERS OF THAT HOUSE, IT SHALL
BECOME A LAW. IN ALL SUCH
CASES, THE VOTES OF EACH HOUSE SHALL BE DETERMINED BY YEAS
OR NAYS, AND THE NAMES
OF THE MEMBERS VOTING FOR OR AGAINST SHALL BE ENTERED IN ITS
JOURNAL. THE PRESIDENT
SHALL COMMUNICATE HIS VETO OF ANY BILL TO THE HOUSE WHERE IT
ORIGINATED WITHIN
THIRTY DAYS AFTER THE DATE OF RECEIPT THEREOF; OTHERWISE, IT
SHALL BECOME A LAW AS IF
HE HAD SIGNED IT.
(2) THE PRESIDENT SHALL HAVE THE POWER TO VETO ANY
PARTICULAR ITEM OR ITEMS IN AN APPROPRIATION, REVENUE, OR
TARIFF BILL, BUT THE VETO
SHALL NQT AFFECT THE ITEM OR ITEMS TO WHICH HE DOES NOT
OBJECT.
262 THE 1987 PHILIPPINE CONSTITUTION: Sees.
15-16
A COMPREHENSIVE REVIEWER
Q. What steps are needed before a bill finally becomes a law?
A. Two steps are required before a bill finally becomes a law.
First, it must be approved by Congress. The legislative action
required of Congress is a positive act; there is no enactment of
law by legislative inaction. Miller v. Mardo, 2 SCRA 398,908-9
(1961). Second, it must be approved by the President. Approval
by the President may be by positive act or by inaction. "The
President shall communicate his veto of any bill to the House
where it originated within thirty days after the date of receipt
thereof; otherwise, it shall become a law as if he had signed it."
Q. When does the Constitution require that the yeas and nays of
the Members be taken every time a House has to vote?
A. (1) upon the last and third readings of a bill [Art. VI, §26(2)];
(2) at the request of one-fifth of the Members present [Art. VI,
§16(4)]; and (3) in repassing a bill over the veto of the President
[Art. VI, §27(1)]. Arroyo v. De Venecia, G.R. No. 127255, August
14,1997, 277 SCRA 268.
Q. If the version approved by the Senate is different from that
approved by the House of Representatives, how are the
differences reconciled?
A. In a bicameral system bills are independently processed by
both Houses of Congress. It is not unusual that the final version
approved by one House differs from what has been approved by
the other. The "conference committee," consisting of members
nominated from both Houses, is an extra-constitutional
creation of Congress whose function is to propose to Congress
ways of reconciling conflicting provisions found in the Senate
version and in the House version of a bill.
Q. What is the extent of the powers of a conference committee?
A. In Tolentino v. Secretary of Finance, 235 SCRA at 666-672,
[affirmed on reconsideration October 30, 1995], the Court
held. Following US practice, that amendments germane to the
purpose of the bill could be introduced even if these were not in
either original bill.
Moreover, the Court said: "Nor is there anything unusual
or extraordinary about the fact that the conference committee
met in executive sessions. Often the only way to reach agreement
on conflicting provisions is to meet behind closed doors,
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 263
with only the conferees present. Otherwise, no compromise is likely to
be made."
Q. If a bill is vetoed by the President, may it still become a law?
A. Yes. "If, after such reconsideration, two-thirds of all the Members of such
House shall agree to pass the bill, it shall be sent, together with the
objections, to the other House by which it shall likewise be reconsidered,
and if approved by two-thirds of all the Members of that House, it shall
become a law. In all such cases, the votes of each House shall be
determined by yeas or nays, and the names of the Members voting for
or against shall be entered in its Journal."
Q. May the President approve some part or parts of a bill and veto the rest?
A. As a general rule, if the President disapproves a bill approved by Congress,
he should veto the entire bill. He is not allowed to veto separate items of
a bill. It is only in the case of appropriation, revenue, and tariff bills that
he is authorized to exercise item-veto.
Q. What is the effect of an invalid veto?
A. It is without effect, i.e., it is as if the President did not act on the bill at all.
Hence, the bill becomes a law by executive inaction. Bolinao Electronics
v. Valencia, 11 SCRA 486 (1964).
Q. Section 42 of H.B. 17839 which became R.A. 6110 imposed a
caterer's tax on various operators of restaurants. President Marcos,
however, vetoed the portion of Section 42 which imposed a 20%
caterers tax on restaurants operated by hotels, motels, and rest houses.
It is contended that the veto was invalid since item veto refers to a veto
of an entire section and not portions of a section. Decide.
A. The veto was valid. "An Htem' in a revenue bill does not refer to
an entire section imposing a particular kind of tax, but rather to the
subject of the tax and the tax rate. Commissioner of Internal Revenue v.
Court of Tax Appeals, G.R. No. 47421, May 14,1990.
Q. The General Appropriations Act of 1989 contained the
following provision:
Section 55. Prohibition Against the Restoration or Increase of
Recommended Appropriations Disapproved and/or Reduced by
Congress: No item of appropriation recommended by the President . . .
which has been disapproved or reduced in this Act shall be
264 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
restored or increased by the use of appropriations authorized for other
purposes by augmentation. An item of appropriation for any purpose
recommended by the President in the Budget shall be deemed to have
been disapproved by Congress if no corresponding appropriation for
the specific purpose is provided in this act.
The General appropriations Act for 1990 contained the following
provision:
Sec. 16. Use of Savings. — . . . Provided, that no item of
appropriation recommended by the President in the Budget... which
has been disapproved or reduced by Congress shall be restored or
increased by the use of appropriations authorized for other purposes in
this Act by augmentation. An item of appropriation for any purpose
shall be deemed to have been disapproved by Congress if no
corresponding appropriation for the specific purpose is provided in this
Act.
Exercising the power of "item veto" the President vetoed the
similar provisions for the reason that they violate "Section 25(5) of
Article VI of the Constitution. If allowed, this Section would nullify" the
"constitutional and statutory authority" of the President to augment
items from savings. The President added that "this provision is
inconsistent with Section 12 and other similar provisions of this General
Appropriations Act."
The Solicitor General further argues that the matter is a political
question and that at any rate Section 55 is a "rider."
The petitioners on the contrary argue that (1) the provision in
issue is not an "item" subject to separate veto but a "provision" which
she cannot veto without vetoing the entire bill; (2) power of "item veto"
does not include the power to veto a condition without vetoing the
entire provision; (3) the power of augmentation has to be provided by
Congress and may therefore be restricted by Congress.
Decide.
A. 1. This is a justiciable question. In involves interpretation of the
Constitution.
2; The power to augment lies dormant until authorized by law.
And since the grant of the power of augmentation is not an act of
appropriation, it has no. place in an appropriation act. But since there is
already a separate law authorizing augmentation, the new provision to
that extent restricts the authority of other departments already
granted. [Implicit in this argument is that therefore, if the power of
augmentation is to be taken back or restricted, it should be in a separate
law.]
3. A condition in an appropriation bill may not vetoed without
vetoing the item to which it is attached. Bolinao Electronics v.Valencia,
11 SCRA 486 (1964).
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 265
4. "Provision" and "item" in budgetary legislation are different.
An "item" is "an indivisible some of money dedicated to a stated
purpose" and not "some general provision of law which happens to be
put into an appropriation bill." Neither Section 55 nor Section 16 fits the
definition of an "Item." In fact the disapproved items do not appear on
the face of the bill.
5. Neither is it, however, an allowable "provision" because it
does not relate to any particular appropriation in the bill. It refers to
items which do not appear on the bill. TQ that extent therefore it is a
rider.
6. Neither is it a condition in the budgetary sense because it
does riot refer to any specific item. It is more in the nature of a general
provision which should be contained in a separate law. Gonzales v.
Macaraig, Jr., G.R. No. 87636, November 19,1990.
Q. What is the doctrine of "inappropriate provisions?"
A. Gonzales v. Macaraig, Jr., 191 SCRA 452 (1990), marks the Court's
acceptance of what eventually would be referred to as the "doctrine of
inappropriate provisions." What the doctrine says is that a provision that
is constitutionally inappropriate for an appropriation bill may be singled
out for veto even if it is not an appropriation or revenue "item." In
essence what this means is that the President may veto "riders" in an
appropriation bill.
Q. What is the meaning of "executive impoundment?"
A- Another way of exercising executive veto is through what is called
"impoundment." Impoundment simply means refusal of the President
to spend funds already allocated by Congress for a specific purpose.
There is no provision in the Constitution on the subject. Impoundment
came up also in Philippine Constitution Association v. Enriquez. To the
amount appropriated by Congress for the compensation and separation
benefits of members of CAFGU was attached a provision that "it shall be
used for the compensation of CAFGlFs including the payment of their
separation benefit not exceeding one (1) year subsistence allowance for
the 11,000 members who will be deactivated in 1994." 235 SCRA at 544.
The President did not veto the provision but said instead in his veto
message that the implementation of the provision would be subject to
his prior approval taking into consideration the peace and order situation
in the affected localities.
266 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Those who challenged the veto contended that the provision
already effectively required the deactivation of the CAFGLTs and that
the President had no choice but to implement the law. The President
on the other hand justified his impoundment of the provision on the
basis of his Commander-in-Chief powers and on the dangerous
argument that the duty to implement the law includes the duty to
desist from implementing it when implementation would prejudice
public interest. As Justice Roberto Concepcion pointed out in an earlier
case, "after all we still live under a rule of law." Gonzalez v. Hechanova,
G.R. No. 21897 (October 26,1963).
The Supreme Court, however, has heretofore refrained from
passing judgment on the constitutionality of "impoundment" The
Court, however, found in the doctrine on "inappropriate provision" a
way out of having to decide whether impoundment was legal. It said
that a provision for the disband- ment of the CAFGU should be in a
separate bill.
Q. May the publication of laws prior to their effectivity be dispensed with?
A. No. Publication in every case is indispensable. Total omission of publication
would be a denial of due process in that the people would not know
what laws to obey. Tanada v. Tuvera, 146 SCRA 446 (1986).
SEC. 28. (1) THE RULE OF TAXATION SHALL BE UNIFORM AND
EQUITABLE. THE
CONGRESS SHALL EVOLVE A PROGRESSIVE SYSTEM OF
TAXATION.
(2) THE CONGRESS MAY, BY LAW, AUTHORIZE THE PRESIDENT TO
FIX WITHIN SPECIFIED LIMITS, AND SUBJECT TO SUCH LIMITATIONS AND
RESTRICTIONS AS IT MAY
IMPOSE, TARIFF RATES, IMPORT AND EXPORT QUOTAS, TONNAGE AND
WHARFAGE DUES, AND
OTHER DUTIES OR IMPOSTS WITHIN THE FRAMEWORK OF THE NATIONAL
DEVELOPMENT
PROGRAM OF
THE GOVERNMENT.
(3) CHARITABLE INSTITUTIONS, CHURCHES AND PARSONAGES OR
CONVENTS APPURTENANT THERETO, MOSQUES, NON-PROFIT
CEMETERIES, AND ALL LANDS,
BUILDINGS, AND IMPROVEMENTS ACTUALLY, DIRECTLY, AND
EXCLUSIVELY USED FOR RELIGIOUS,
CHARITABLE, OR EDUCATIONAL PURPOSES SHALL BE EXEMPT FROM
TAXATION.
(4) NO LAW GRANTING ANY TAX EXEMPTION SHALL BE PASSED
WITHOUT THE
CONCURRENCE OF A MAJORITY OF ALL THE MEMBERS OF
THE CONGRESS.
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 267
Q. What is the purpose of the power to tax?
A. The obvious, primary, and specific purpose of the power to tax is to raise
revenue. However, from the earliest days of the history of the power of
taxation, the power to tax has been recognized as an instrument of
national economic and social policy. It has, for instance, been used as an
instrument for the extermination of undesirable activities and
enterprises. In the celebrated words of Justice Marshall, the power to
tax involves the power to destroy. McCulloch v. Maryland, 4 Wheat,
316, 431 (U.S. 1819).
The power to tax has also been used as a tool for regulation. For
the purpose of regulating property, the State can choose to exercise its
police power or its power to tax. "It is beyond serious question that a tax
does not cease to be valid merely because it regulates, discourages, or
even definitely deters the activities taxed . . . The principle applies even
though the revenue obtained is obviously negligible, ... or the revenue
purpose of the tax may be secondary . . United States v. Sanchez, 340
U.S. 42,44 (1950).
Another aspect of the power to tax is what the United States
Supreme Court has characterized as "the power to keep alive." This is
the foundation for the imposition of tariffs designed for the
encouragement and protection of locally produced goods against
competition from imports. "The enactment and enforcement of a
number of customs revenue laws drawn with a motive of maintaining a
system of protection, since the revenue law of 1789, are matters of
history . . . whatever we may think of the wisdom of a protection policy."
Hampton and Co. v. United States, 276 U.S. 394,412 (1928).
Q. What is the general limit on the power to tax?
A. The power to tax exists for the general welfare. Hence implicit in the power
is the limitation that it should be exercised only for a public purpose. In
the words of Loan Association v. Topeka, 20 Wall, 655, 664 (U.S. 1875),
"To lay, with one hand, the power of the government on the property of
the citizen, and with the other to bestow it upon favored individuals to
aid private enterprises and build up private fortunes, is none the less a
robbery because it is done under the forms of law and is called
taxation."
268 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
"The power to tax 'is an attribute of sovereignty.' In fact, it is the
strongest of all the powers of government. But for all its plenitude, the
power to tax is not unconfined as there are restrictions. Adversely
affecting as it does property rights, both due process and equal
protection clauses of the Constitution may properly be invoked to
invalidate in appropriate cases a revenue measure. If it were otherwise,
there would be truth to the 1903 dictum of Chief Justice Marshall that
'the power to tax involves the power to destroy.' The web of unreality
spun from Marshall's famous dictum was brushed away by one stroke
of Mr. Justice Holmes' pen, thus: The power to tax is not the power to
destroy while this Court sits.' 'So it is in the Philippines.' Sison, Jr. v.
Ancheta, 130 SCRA 655 (1984); Obillos, Jr. v. Commissioner of Internal
Revenue, 139 SCRA 439 (1985).
"In the same vein, the due process clause may be invoked where
a taxing statute is so arbitrary that it finds no support in the Constitution.
An obvious example is where it cam be shown to amount to
confiscation of property. That would be a clear abuse of power (Sison v.
Ancheta, supra)." Reyes v. Almanzor, 196 SCRA 322 (1989).
Q. What are the specific limits on the power to tax?
A. See Section 28.
Q. When is taxation "uniform and equitable?"
A. The concept of uniformity of taxation is derived from Article I, Section 8, of
the United States Constitution which prescribes that "all duties, imposts,
and excises shall be uniform throughout the Unites States." It will thus
be seen that whereas the American provision whence the Philippine
rule derived has reference to "duties, imposts, and excises," that is, to
indirect taxes, the Philippine requirement of uniformity applies to
taxation in general. Philippine jurisprudence, however, from its earliest
days has interpreted "uniformity" in the Philippine Constitution in the
same way as "uniformity" in the American Constitution. In the words of
Churchill v. Conception, 34 Phil. 969, 976-7 (1916), "uniformity" in the
Constitution does "not signify an intrinsic, but simply a geographical
uniformity . . . A tax is uniform, within the Constitutional requirement,
when it operates with the same force and effect in every place where
the subject of it is found."
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 269
Moreover, the requirement of "uniformity" has been interpreted
by Philippine jurisprudence as equivalent to the requirement of valid
classification under the equal protection clause. Pepsi Cola Bottling Co.
v. City ofButuan, 24 SCRA 789, 795-96 (1968).
The word "equitable" seems to add nothing except by way of
emphasis.
NOTE: The obvious primary and specific purpose of the
power to tax is to raise revenue. However, it may also be used to
regulate. But Philippine jurisprudence frowns on the notion of the
power to tax as the power to destroy because taxation must not
be oppressive. See e.g., Obillos, Jr. v. Commissioner of Internal
Revenue, 139 SCRA 436, 439 (1985). Indeed the notion of
equitable taxation excludes oppressiveness. As Tan v. del Rosario,
Jr., 237 SCRA 324, 332 (1994), says, "Of course, where a tax
measure becomes so unconscionable and unjust as to amount to
confiscation of property, courts will not hesitate to strike it down,
for, despite all its plenitude, the power to tax cannot override
constitutional prescriptions."
Regarding uniformity of taxation, Tan v. del Rosario, 237
SCRA 324 (1994), put it thus: it means that 1) the standards that
are used therefore are substantial and not arbitrary, (2) the
categorization is germane to achieve the legislative purpose, (3)
the law applies, all things being equal, to both present and future
conditions, and (4) the classification applies equally well to all
those belonging to the same class.
Q. Respondents presented an exhaustive study on the tax rates levied on the
jewelry industry by different Asian countries in order to convince the
court that, relative to its neighbors, the tax rates imposed on jewelry in
the Philippines was oppressive and confiscatory. Decide.
A. The Court "cannot subscribe to the theory that the tax rates of other
countries should be used as a yardstick in determining what may be the
proper subjects of taxation in our own country. It should be pointed out
that the aforementioned taxes and duties, the State, acting through the
legislative and executive branches, is exercising its sovereign
prerogative. It is inherent in the power to tax that the State be free to
select the subjects of taxation, and it has been repeatedly held that
'inequalities which result from a singling out of one particular class for
taxation, or exemption, infringe no constitutional limitation.'"
Commissioner of Internal Revenue v. Santos, G.R. No. 119252,
270 THE 1987 PHILIPPINE CONSTITUTION: Sees.
15-16
A COMPREHENSIVE REVIEWER
August 18,1997,277 SCRA 617,631-32 (citing Lutz v. Araneta, 98 Phil.
148 [1955]; Sison, Jr. v. Ancheta, 130 SCRA 654, 663 [1984]; Kapatiran
ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA
371 [1988]; Tolentino v. Secretary of Finance, 249 SCRA 628 [1995]).
Q. What is a "progressive system of taxation?"
A. A tax system is progressive when the rate increases as the tax base
increases. The explicit mention of progressive taxation in the
Constitution reflects the wish of the Commission that the legislature
should use the power of taxation as an instrument for a more equitable
distribution of wealth.
Q. May the power to tax be delegated?
A. Yes, under the conditions laid down in Section 28(2). This delegation of the
taxation power by the legislative to the executive is authorized by the
Constitution itself. At the same time, the Constitution also grants the
delegating authority (Congress) the right to impose restrictions and
limitations on the taxation power delegated to the President. The
restrictions and limitations imposed by Congress take on the mantle of
a constitutional command, which the executive branch is obliged to
observe. Southern Cross v. Philippine Cement, G.R. No. 158540, July
8,2004.
Q. May tax exemptions be created by statute?
A. Yes, under the condition laid down in Section 28(4).
Q. Are there constitutionally created tax exemptions?
A. Yes, in Section 28(3), and Article XIV, Section 4(3 & 4).
Q. What kind of tax exemption is created in Section 28(3)?
A. The exemption is only for taxes assessed as property taxes, as
contradistinguished from excise taxes. Lladoc v. Commissioner of
Internal Revenue, 14 SCRA 292, 295 (1965).
Q. Compare the exemption for "lands, buildings, and improvements" under
the 1935 Constitution with that under the new Constitution.
A. "Under the 1935 Constitution: 'Cemeteries, churches, and parsonages or
convents appurtenant thereto, and all lands, build
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 271
ings, and improvements used exclusively for religious, charitable,
or educational purposes shall be exempt from taxation.' The
present Constitution has added: 'charitable institutions, mosques,
and non-profit cemeteries' and required that for the exemption
of'lands, buildings, and improvements,' they should not only be
'exclusively' but also 'actually' and 'directly used for religious,
charitable, or educational purposes . . . There must be proof
therefore of the actual and direct use of the lands, buildings, and
improvements for religious or charitable [or educational] purposes
to be exempt from taxation... Province of Abra v. Hernando and
Roman Catholic Bishop, 107 SCRA 104, 108-9 (L-49336, August
31,1981).
Q. The Young Men's Christian Association of the Philippines, Inc.
("YMCA") — established as "a welfare, educational and charitable
non-profit corporation" — derived income from rentals of its real
property. Claiming tax exemption, it argues that:
1) Article VI, §8(3) exempts "charitable institutions" from
payment not only of property taxes but also of income tax from any
source;
2) Article XIV, §4(3) applies because YMCA is "a non-stock,
non-profit educational institution whose revenues and assets are used
actually, directly and exclusively for educational purposes so it is exempt
from taxes on its properties and income." Decide.
A. 1) This provision covers property taxes only. YMCA is "exempt
from the payment of property tax, but not income tax on the rentals
from its property."
2) YMCA is not an educational institution within the purview of
Article XIV. Neither did it submit proof of the amount of the income that
was actually, directly and exclusively used for educational purposes.
Commission of Internal Revenue v. Court of Appeals, G.R. No. 124043,
October 14,1998, pp. 17-18,20.
Q. Because the beneficial use of a piece of property was donated
to SYSTEMS PLUS COMPUTER COLLEGE, tax exemption was sought.
Proper?
A, No. There is no showing that the same are "actually, directly
and exclusively" used either for religious, charitable, or educational
purposes. Hence, tax exemption cannot be claimed. Systems Plus
Computer College v. Caloocan City, G.R. No. 146382, August 7, 2003
Q. The former camp John Hay was declared a special economic
zone. On that basis it claimed tax exemption. Proper?
272 THE 1987 PHILIPPINE CONSTITUTION: Sees.
15-16
A COMPREHENSIVE REVIEWER
A. While the grant of economic incentives may be essential to the
creation and success of SEZs, free trade zones and the like, the grant of
tax exemption to the John Hay SEZ cannot be sustained. The tax
exemption under R.A. No. 7227 are exclusive only to the Subic SEZ,
hence, the extension of the same by the President to the John Hay SEZ
finds no support therein. John Hay Peoples Alternative Coalition v. Lim,
G.R. No. 119775, October 24,2003.
Q. The Lung Center alleges that a minimum of 60% of its hospital
beds are exclusively used for charity patients and that the major thrust
of its hospital operation is to serve charity patients. The petitioner
contends that it is a charitable institution and, as such, is exempt from
real property taxes.
A. We hold that the petitioner is a charitable institution within the
context of the 1973 and 1987 Constitutions. To determine whether an
enterprise is a charitable institution/entity or not, the elements which
should be considered include the statute creating the enterprise, its
corporate purposes, its constitution and by-laws, the methods of
administration, the nature of the actual work performed, the character
of the services rendered, the indefiniteness of the beneficiaries, and the
use and occupation of the properties. However, those portions of its
real property that are leased to private entities are not exempt from
real property taxes as these are not actually, directly and exclusively
used for charitable purposes. Lung Center v. Quezon City, G.R. No.
144104, June 29, 2004.
NOTE: In Planters Products, Inc. (PPI) v. Fertiphil Corp, G.R. No.
166006, March 14, 2008, the Court had occasion to review the validity
of LOI1465, a martial rule product, which imposed a ten peso capital
contribution for the sale of each bag of fertilizer "until adequate capital
is raised to make PPI viable." PPI was a private corporation. Clearly,
therefore, the imposition was for private benefit and not for a public
purpose and therefore invalid. The Court also found that, even if seen
as an exercise of police power, the imposition would still be invalid for
not being for a public purpose.
SEC. 29. (1) No MONEY SHALL BE PAID OUT OF THE TREASURY EXCEPT
IN PURSUANCE
OF AN APPROPRIATION MADE BY LAW.
(2) NO PUBLIC MONEY OR PROPERTY SHALL BE APPROPRIATED,
APPLIED, PAID, OR
EMPLOYED, DIRECTLY OR INDIRECTLY, FOR THE USE, BENEFIT, OR
SUPPORT OF ANY SECT,
CHURCH, DENOMINATION, SECTARIAN INSTITUTION, OR SYSTEM OF
RELIGION, OR OF ANY
PRIEST, PREACHER, MINISTER, OR OTHER RELIGIOUS TEACHER OR
DIGNITARY AS SUCH, EXCEPT
WHEN SUCH PRIEST, PREACHER, MINISTER, OR DIGNITARY IS ASSIGNED
TO THE ARMED FORCES,
OR TO ANY PENAL INSTITUTION, OR GOVERNMENT ORPHANAGE OR
LEPROSARIUM.
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 273
(3) ALL MONEY COLLECTED ON ANY TAX LEVIED FOR A SPECIAL
PURPOSE SHALL BE TREATED AS A SPECIAL FUND AND PAID OUT FOR
SUCH
PURPOSE ONLY. IF THE PURPOSE FOR WHICH A SPECIAL FUND WAS
CREATED
HAS BEEN FULFILLED OR ABANDONED, THE BALANCE, IF ANY, SHALL BE
TRANSFERRED TO THE GENERAL FUNDS OF THE GOVERNMENT.
Q. Who has control of the expenditure of public funds?
A. Congress. "No money shall be paid out of the treasury except in pursuance
of an appropriation made by law."
Q. It is argued that the automatic reappropriation law for servicing
foreign debts is invalid because it does not appropriate a fixed amount
and is therefore an undue delegation of legislative power. Decide.
A The amount is fixed by the parameters of the law itself which
requires the simple act of looking into the books of the Treasure.
Guingona, Jr. v. Carague, G.R. No. 9457, April 22,1991.
Q. What are the limits on this power of Congress?
A. The specific limits are those found in Section 29(2). Aside from the explicit
limitations, there is also the all important implicit limitation that public
money can be appropriated only for a public purpose. This limitation
arises from the relation between the power to spend and the power to
tax. "The right of the legislature to appropriate public funds is correlative
with its right to tax, and, under the constitutional provisions against
taxation except for public purposes... no appropriation of state funds
can be made for other than a public purpose." 81 CJS p. 1147.
Q. The sum of 85,000 pesos is appropriated by Congress for a
feeder road running through a private subdivision and over property
owned by a private individual. Subsequently, the feeder road is donated
to the government. Is the appropriation valid?
A No, because it is not for a public purpose. The subsequent
donation of the road did not validate the law because the validity of a
statute depends upon the powers of Congress at the time of its
approval, and not upon events occurring or acts performed
subsequently. Pascual v. Secretary of Public Works, 110 Phil. 331-346
(1960).
Q. Are not "pork barrel" provisions in the annual budget a
violation of separation of powers in that it allows members of Congress
to perform the executive function of spending money appropriated?
274 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
A. The controversy over the Countrywide Development Fund of
1994, which is the deodorized appellation of the traditional "pork
barrel," was resolved by the Court in a manner which might be
described as tongue-in-cheek. The General Appropriation Act set aside
an amount to be used for "infrastructure, purchase of ambulances and
computers and other priority projects and activities, and credit facilities
to qualified beneficiaries as proposed and identified by officials
concerned." The "officials concerned" were all Representatives,
Senators and the Vice-President who were each allocated an amount.
The law was challenged on the ground that the authority given to the
enumerated officials to propose and identify projects and activities was
an encroachment into legislative power. In upholding the validity of the
law, the Court said that Congress itself had specified the uses of the
fund and that the power given to the enumerated officials was merely
recommendatory to the President who could approve or disapprove
the recommendation. The Court praised the scheme as "imaginative"
and "innovative!" Philippine Constitution Association v. Enriquez, 235
SCRA 506, 521-523 (1994).
NOTE: The origin of the name may be traced to a degrading ritual
to which slaves were subjected. At a fixed day and hour, a barrel stuffed
with pork would be rolled out and a multitude of black slaves, herded
together in a strategic corner of the ranch or plantation, would cast
their famished bodies into the porcine feast to assuage their hunger
with morsels coming from the generosity of their well- fed master.
Bernas, "From Pork Barrel to Bronze Caskets," Today, January 30,1994.
NOTE: Oil Price Stabilization Fund. - In Osmefia v. Orbos, 220 SCRA
703 (1993), part of the controversy was whether the money that went
into the Oil Price Stabilization Fund [OPSF] was tax money levied for a
special purpose. As set up by law, it was a "trust fund" which derived
funding from four sources: (1) from increase in the tax collection from
ad valorem taxes on oil products; (2) from any increase in the tax
collection as a result of the lifting of tax exemptions of government
corporations; (3) from additional amounts imposed by the Board of
Energy on petroleum products; (4) from peso savings resulting from the
fluctuation of the peso against currencies used for the importation of
crude oil and petroleum products. The question centered on whether
the additional amounts imposed by the Board of Energy was a tax. The
Court answered: "What is here involved is not so much the power of
taxation as police power. Although the provision authorizing the ERB to
impose additional amounts could be construed to refer to the power of
taxation, it cannot be overlooked that the overriding consideration is
[not to raise revenue but] to enable the delegate to act with expediency
in carrying out the objectives of the law [to protect consumers from
constant fluctuation of oil prices] which are embraced by the police
power of the State."
Sees. 15-16 ART. VI - THE LEGISLATIVE DEPARTMENT 275
SEC. 30. No LAW SHALL BE PASSED INCREASING THE APPELLATE
JURISDICTION OF THE SUPREME COURT AS PROVIDED IN THIS
CONSTITUTION
WITHOUT ITS ADVICE AND CONCURRENCE.
Q. My Congress increase the appellate jurisdiction of the Supreme Court?
A. Yes, but only with the advice and concurrence of the Supreme Court itself.
The purpose of this new rule is to prevent the overburdening of the
Supreme Court.
Q. Section 27 of R.A. No. 6770 (Ombudsman Act of 1989) provides that all
administrative disciplinary cases, orders, directives or decisions of the
Office of the Ombudsman may be appealed to the Supreme Court in
accordance with Rule 45 of the Rules of Court. Valid?
A. No, it expands the appellate jurisdiction of the Supreme Court without its
advice and consent. Consequently, "and in line with the regulatory
philosophy adopted in appeals from quasi- judicial agencies in the 1997
Revised Rule of Civil Procedure, appeals from decisions of the Office of
the Ombudsman in administrative cases should be taken to the Court of
Appeals under the provision of Rule 43." Fabian v. Desierto, G.R. No.
129742, September 16,1998.
SEC. 31. No LAW GRANTING A TITLE OF ROYALTY OR NOBILITY SHALL
BE ENACTED.
Q. What is the reason for prohibiting the State from granting titles of royalty or
nobility?
A. The Federalist (No. 84), speaking of the importance of the prohibition
against titles of nobility in the Federal Constitution, says: "This may truly
be denominated the cornerstone of republican government; for so long
as they are excluded there can never be serious danger that the
government will be any other than that of the people."
This provision was in the Bill of Rights of both the 1935 and 1973
Constitutions.
SEC. 32. THE CONGRESS SHALL, AS EARLY AS POSSIBLE, PROVIDE
FOR A SYSTEM OF INITIATIVE AND REFERENDUM, AND THE EXCEPTIONS
THEREFROM, WHEREBY THE PEOPLE CAN DIRECTLY PROPOSE AND
ENACT
276 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-13
LAWS OR APPROVE OR REJECT ANY ACT OR LAW OR PART THEREOF
PASSED
BY THE CONGRESS OR LOCAL LEGISLATIVE BODY AFTER THE
REGISTRATION
OF A PETITION THEREFOR SIGNED BY AT LEAST TEN PER CENTUM OF
THE
TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY
LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PER CENTUM OF
THE
REGISTERED VOTERS THEREOF.
Q. Does Congress have the exclusive right to pass national legislation?
A. No. Section 32 has introduced the concept of "initiative and referendum"
whereby the people themselves can legislate. The enabling law is R.A.
6735, the Initiative and Referendum Law.
The first case to come under this implementing law involved local
"initiative and referendum." Garcia v. Commission on Elections, 237
SCRA 279 (1994), upheld the validity of the procedure prescribed by the
Local Government Code for local initiative and referendum.
ARTICLE VII
THE EXECUTIVE DEPARTMENT
SECTION 1. THE EXECUTIVE POWER SHALL BE VESTED IN THE
PRESIDENT OF THE
PHILIPPINES.
SEC 2. No PERSON MAY BE ELECTED PRESIDENT UNLESS HE IS A
NATURAL-BORN CITIZEN OF THE PHILIPPINES, A REGISTERED VOTER,
ABLE TO READ AND WRITE,
AT LEAST FORTY YEARS OF AGE ON THE DAY OF THE ELECTION, AND A
RESIDENT OF THE
PHILIPPINES FOR AT LEAST TEN YEARS IMMEDIATELY PRECEDING SUCH
ELECTION.
Q. Assuming that Fernando Poe, Jr. was an illegitimate child of an American
mother and a Filipino father, would he be a natural born Filipino citizen?
A. Yes. Provided paternity is clearly proved, an illegitimate child of a Filipino
father is a natural born Filipino citizen. Tecson v. Comelec, G.R. No.
161434, March 3, 2004.
Q. In whom is executive power vested?
A. In the President, who is both "Head of State" and "Chief Executive."
Q. What is the significance of being "Head of state?"
A. What Clinton Rossiter said about the American President in The American
Presidency can be said about the Philippine President:
He remains today, as he has always been, the ceremonial
head of the government of the United States, and he must take
part with real or apparent enthusiasm in a range of activities that
would keep him running and posing from sunrise to bedtime if he
were not protected by a cold-blooded staff. Some of these
activities are solemn or even priestly in nature; others,
277
278 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-13
through no fault of his own, are flirtations with vulgarity. The long
catalogue of public duties that the Queen discharges in England,
the President of the Republic in France, and the Governor-General
in Canada, is the President's responsibility in this country, and the
catalogue is even longer because he is not a king, or even the
agent of one, and is therefore expected to go through some
rather undignified paces by a people who think of him as a
combination of scoutmaster, Delphic oracle, hero of the silver
screen, and father of the multitudes.
Q. What is the significance of being "Chief Executive?"
A. This means that he is the executive and no one else is. In the language of
Villena v. Secretary of Interior, 67 Phil. 451, 464 (1939), the President is
"the Executive of the Government of the Philippines, and no other. The
heads of the executive departments occupy political positions and hold
office in an advisory capacity, and, in the language of Thomas Jefferson
'should be of the President's bosom confidence,' and, in the language of
Attorney General Cushing, 'are subject to the direction of the
President.'"
Q. Absent a statute authorizing the President to ban the return of Mr. Marcos,
does he have the power to impose the ban?
A. The Constitution says that executive power shall be vested in the President.
It also enumerates certain specific powers. The enumeration, however,
does not exhaust the totality of executive powers. Tradition recognizes
that the powers of the President are more than the sum of enumerated
executive powers. The duty of government "to serve and protect the
people" as well as to see to the "maintenance of peace and order, the
protection of life, liberty, and property, and the promotion of the
general welfare" argue towards the existence of "residual unstated
powers." Marcos v. Manglapus, et al., G.R. No. 88211, September
15,1989. (The decision was 8-7. "This case is unique. It should not create
a precedent, for the case of a dictator forced out of office and into exile
after causing twenty years of political, economic and social havoc in the
country and who within the short space of three years seeks to return,
is in a class by itself)."
NOTE: On reconsideration the Court added: "The powers of the
President are not limited to what are expressly enumerated in the
article on the Executive Department and in scattered provisions
Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 279
of the Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers
of the President as a reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific powers of the
President, particularly those relating to the commander-in-chief clause,
but not a diminution of the general grant of executive power." October
27,1989.
Besides, what the Court calls residual powers also come under the
duty of the President to ensure that laws are faithfiilly executed. See
Article VII, Section 17.
Q. May the President dispose of state property?
A. The President may not convey valuable real property of the
government on his or her own sole will. Conveyance must be authorized
by a law enacted by Congress. Laurel v. Garcia, 187 SCRA 797 (1990).
Q. What is executive privilege?
A. In simplest terms, it is the power of the President to withhold certain types
of information from the courts, the Congress, and ultimately the public.
The teaching on executive privilege may be culled from Senate v. Ermita,
G.R. No. 169777, April 20, 2006. and Neri v. Senate, G.R. No. 180643,
March 25, 2008; September 4,2008.
Q. What types of information are covered by executive privilege?
A. The types of information include those which are of a nature that
disclosure would subvert military or diplomatic objectives, or
information about the identity of persons who furnish information
of violations of law, or information about internal deliberations
comprising the process by which government decisions are
reached.
Section 2(a) of E.O. 464, upheld as valid by the Supreme
Court in Ermita, enumerated the following as privileged. These are
taken from earlier decisions:
1. Conversations and correspondence between the
President and the public official covered by this
executive order;
2. Military, diplomatic and other national security
matters which in the interest of national security
should not be divulged;
280 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 1-2
3. Information between inter-government agencies
prior to the conclusion of treaties and executive
agreements;
4. Discussion in close-door Cabinet meetings;
5. Matters affecting national security and public order.
Ermita said, "Executive privilege, as already discussed, is
recognized with respect to information the confidential nature of
which is crucial to the fulfillment of the unique role and
responsibilities of the executive branch, or in those instances
where exemption from disclosure is necessary to the discharge of
highly important executive responsibilities. The doctrine of
executive privilege is thus premised on the fact that certain
information must, as a matter of necessity, be kept confidential in
pursuit of the public interest. The privilege being, by definition, an
exemption from the obligation to disclose information, the
necessity must be of such high degree as to outweigh the public
interest in enforcing that obligation in a particular case."
Put differently, the Court said that a claim of privilege may
be valid or not "depending on the ground invoked to justify it and
the context in which it is claimed. For in determining the validity of
a claim of privilege, the question that must be asked is not only
whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be
honored in a given procedural setting." From this the Court
concluded that it is not for one claiming executive privilege "to
unilaterally determine that respondents' duly- issued Subpoena
should be totally disregarded."
Q. How does executive privilege relate with the power of compulsory
process of Congress?
A. "While the executive branch is a co-equal branch of the legislature, it
cannot frustrate the power of Congress to legislate by refusing to
comply with its demands for information. . .. Only one executive
official may be exempted from this power — the President."
Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 281
Q. How must the claim of executive privilege be stated?
A. Another point which the Court emphasized in Ermita was that a claim
of privilege must be stated with sufficient particularity to enable
Congress or the court to determine its legitimacy. "Absent then a
statement of the specific basis of a claim of executive privilege,
there is no way of determining whether it falls under one of the
traditional privileges, or whether, given the circumstances in
which it is made, it should be respected." The lack of specificity
renders an assessment of the potential harm resulting from
disclosure impossible. However, Congress must not require the
executive to state the reasons for the claim with such particularity
as to compel disclosure of the information which the privilege is
meant to protect.
Q. What can be learned from Neri v. Senate?
A. Senate v. Ermita was followed by Neri v. Senate. In a Senate hearing
involving a contract with a Chinese firm, Neri in his capacity as
Chairman of NEZ was asked three questions: (a) Whether the
President followed up the (NBN) project; (b) Whether the
President directed him to prioritize the ZTE? (c) Whether the
President said to go ahead and approve the project after being
told about the alleged bribe? Neri claimed executive privilege.
The type of executive privilege claimed here was
"presidential communication privilege." Presidential
communication is presumptively privileged; but the presumption
is subject to rebuttal. Thus, whoever challenges it, must show
good and valid reasons related to the public welfare. The Court
ruled that the Senate failed to controvert the presumption.1 Neri
v. Senate2 held that that communications between the President
and "operationally proximate" advisers are presumed to be
privileged and one challenging it must show cause why it should
not be considered so. But these musts be limited to communications
with the President. Moreover, the decision itself,
once reached, unless it is about confidential military or diplomatic
matters, can become a matter of public
'G.R. No. 180643, March 25,2008. Reconsidered September
25G,2.R0.0 N8.o . 180643, March 25, 2008; September 4, 2008.
282 THE 1987 PHILIPPINE CONSTITUTION: Sees.
15-16
A COMPREHENSIVE REVIEWER
concern. Certainly, for instance, if a decision reached is criminal, it
cannot be privileged.
Q. Could the Court have asked for an in camera session for Neri to
explain his claim within the hearing of the Court alone.
A. Such a procedure, followed by American practice, could have enabled
the Court to sift what was privileged and what was not and then
to allow the revelation of what was not privileged. But the Court
did not use the procedure, and relied instead on presumption.
Thus the Chief Justice commented that executive privilege was
established by guesswork.
The decision, if applied to criminal cases, has the dangerous
effect of blocking discovery of wrongdoing by the mere claim of
presumptive privilege.
NOTE: A lesser anomaly in the decision is its rejection
of the manner in which the Senate approved its show cause
order to Secretary Neri. The Senate approved the order
through the collection of a sufficient number of signatures
and not in a meeting. The Court found this to be an invalid
procedure. But is it for the Court to tell the Senate what its
voting procedure should be? As our own Court said in 1960,
"Courts have declared that 'the rules adopted by
deliberative bodies are subject to revocation, modification
or waiver at the pleasure of the body adopting them.' And it
has been said that 'Parliamentary rules are merely
procedural, and with their observance, the courts have no
concern. They may be waived or disregarded by the
legislative body.™ Provided, of course, private rights are not
violated.
The Court too does modify or even dispense with its
own rules. What is good for the goose should be good for
the gander.
Q. Is the President immune from suit?
A. Although the new Constitution has not reproduced the explicit
guarantee of presidential immunity from suit under the 1973
Constitution, presidential immunity during tenure remains as part
of the law. What has been rejected by the new Constitution is the
expansive notion of immunity in the Marcos Constitution. Once
out of office, how
Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 283
ever, even before the end of the six year term, immunity
for non-official acts is lost. Such was the case of Joseph
Estrada. The cases filed against him were criminal in
character. They involved plunder, bribery and graft and
corruption. By no stretch of the imagination could these
crimes, especially plunder which carried the death penalty,
be covered by a mantle of immunity for a non-sitting
president. The rule is that unlawful acts of public officials
are not acts of the State and the officer who acts illegally
is not acting as such but stands in the same footing as any
other trespasser. Estrada v. Desierto, G.R. Nos. 146710-
15, March 2,2001.
Q. Petitioner Beltran argues that "the reasons which necessitate
Presidential immunity from suit impose a correlative
disability to file suit." He contends that if criminal
proceedings ensue by virtue of the President's filing of
her complaint-affidavit, she may be bringing herself tinder
the trial court's jurisdiction. This, continues Beltran,
would in an indirect way defeat her privilege of immunity
from suit. As to testifying on the witness stand, she would
be exposing herself to possible contempt of court or perjury.
Does the incumbent President's immunity from suit
prevent her from suing?
A. The rationale for the grant to the President of the privilege
of immunity from suit is to assure the exercise of
presidential duties and functions free from any hindrance
or distraction, considering that being the Chief Executive
of the Government is a job that, aside from requiring all
of the office-holder's time, also demands undivided attention.
But this privilege of immunity from suit pertains to
the President by virtue of the office and may bfc invoked
only by the holder of the office, not by any other person
in the President's behalf. Thus, an accused in a criminal
case in which the President is complainant cannot raise
the presidential privilege as a defense to prevent the case
from proceeding against such accused. Moreover, there
is nothing in our laws that would prevent the President
from waiving the privilege. Thus, if so minded, the
President may shed the protection afforded by the privilege
and submit to the court's jurisdiction. The choice of
whether to exercise the privilege or to waive it is hers.
284 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-13
Soliven v. Judge Makasiar, Beltran v. Makasiar, G.R. No. 8287,
November 14,1988.
NOTE: In Clinton v. Jones, the U.S. Supreme Court held
that a sitting President does not enjoy immunity from suit
for unofficial acts committed before his term.
SEC. 3. THERE SHALL BE A VICE-PRESIDENT WHO SHALL HAVE THE
SAME QUALIFICATIONS AND TERM OF OFFICE AND BE ELECTED WITH
AND IN THE SAME
MANNER AS THE PRESIDENT. HE MAY BE REMOVED FROM OFFICE IN THE
SAME MANNER AS THE
PRESIDENT.
THE VICE-PRESIDENT MAY BE APPOINTED AS A MEMBER OF THE
CABINET. SUCH
APPOINTMENT REQUIRES NO CONFIRMATION.
Q. What is the function of the Vice-President?
A. His only constitutional function is to be on hand to act as President when
needed or to succeed to the presidency in case of a permanent vacancy
in the office. The President may also appoint him as a Member of the
Cabinet. Such appointment does not need the consent of the
Commission on Appointments.
SEC. 4. THE PRESIDENT AND THE VICE PRESIDENT SHALL BE
ELECTED BY DIRECT VOTE OF THE PEOPLE FOR A TERM OF SIX YEARS
WHICH SHALL BEGIN AT
NOON ON THE THIRTIETH DAY OF JUNE NEXT FOLLOWING THE DAY OF
THE ELECTION AND SHALL
END AT NOON OF THE SAME DATE SIX YEARS THEREAFTER. THE
PRESIDENT SHALL NOT BE
ELIGIBLE FOR ANY REELECTION. No PERSON WHO HAS SUCCEEDED AS
PRESIDENT AND HAS
SERVED AS SUCH FOR MORE THAN FOUR YEARS SHALL BE QUALIFIED
FOR ELECTION TO THE
SAME OFFICE AT ANY TIME.
No VICE-PRESIDENT SHALL SERVE FOR MORE THAN TWO SUCCESSIVE
TERMS.
VOLUNTARY RENUNCIATION OF THE OFFICE FOR ANY LENGTH OF
TIME SHALL NOT BE CONSIDERED AS AN INTERRUPTION IN THE
CONTINUITY OF THE SERVICE FOR
THE FULL TERM FOR WHICH HE WAS ELECTED.
UNLESS OTHERWISE PROVIDED BY LAW, THE REGULAR ELECTIONS FOR
PRESIDENT AND
VICE-PRESIDENT SHALL BE HELD ON THE SECOND MONDAY OF MAY.
THE RETURNS OF EVERY ELECTION FOR PRESIDENT AND
VICEPRESIDENT
DULY CERTIFIED BY THE BOARD OF CANVASSERS OF EACH PROVINCE
OR CITY, SHALL
BE TRANSMITTED TO THE CONGRESS, DIRECTED TO
THE PRESIDENT OF THE SENATE. UPON RECEIPT OF THE CERTIFICATES
OF
CANVASS, THE PRESIDENT OF THE SENATE SHALL, NOT LATER THAN
THIR
Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 285
TY DAYS AFTER THE DAY OF THE ELECTION, OPEN ALL THE
CERTIFICATES IN THE PRESENCE OF THE
SENATE AND THE HOUSE OF REPRESENTATIVES IN JOINT PUBLIC
SESSION, AND THE CONGRESS,
UPON DETERMINATION OF THE AUTHENTICITY AND DUE EXECUTION
THEREOF IN THE MANNER
PROVIDED BY LAW, CANVASS THE VOTES.
THE PERSON HAVING THE HIGHEST NUMBER OF VOTES SHALL BE
PROCLAIMED ELECTED,
BUT IN CASE TWO OR MORE SHALL HAVE AN EQUAL AND HIGHEST
NUMBER OF VOTES, ONE OF
THEM SHALL FORTHWITH BE CHOSEN BY THE VOTE OF A MAJORITY OF
ALL THE MEMBERS OF
BOTH
HOUSES OF THE CONGRESS, VOTING SEPARATELY.
THE CONGRESS SHALL PROMULGATE ITS RULES FOR THE CANVASSING
OF THE CERTIFICATES.
THE SUPREME COURT, SITTING EN BANC, SHALL BE THE SOLE JUDGE OF
ALL CONTESTS
RELATING TO THE ELECTION, RETURNS, AND QUALIFICATIONS OF THE
PRESIDENT OR
VICE-PRESIDENT, AND MAY PROMULGATE ITS RULES FOR THE
PURPOSE.
Q. How are the President and Vice-President elected? A. By direct
vote of the people as specified in Section 4.
Q. Who has the authority to canvass the votes and proclaim the winner?
A. Congress. The proclamation of presidential and vice-presidential winners is
a function of Congress and not of the Comelec. Macalintal v. Comelec,
G.R. No. 157013, July 10,2003.
Q. May Congress delegate the preliminary count of votes in a presidential
election to a Joint Committee.
A. Yes, provided that the Committee report be submitted for approval by the
Congress as a body. Lopez v. Senate and House, G.R. No. 163556, June
8,2004.
Q. May Congress continue the canvass even after the final adjournment of is
sessions?
A. Yes. The final adjournment of Congress does not terminate an unfinished
presidential canvass. Adjournment terminates legislation but not the
non-legislative functions of Congress such as canvassing of votes.
Pimentel v. Joint Canvassing Committee, June 22, 2004.
286 THE 1987 PHILIPPINE CONSTITUTION: Sees.
15-16
A COMPREHENSIVE REVIEWER
Q. In canvassing the votes, can Congress look into the authenticity and due
execution of the certificates of canvass, or is its function merely
ministerial?
A. The function of Congress is not merely ministerial. It has authority to
examine the certificates of canvass for authenticity and due execution.
For this purpose, Congress must pass a law governing their canvassing
functions.
Q. In the event of a contest "relating to the election, returns, and qualifications
of the President or Vice-President," who shall be judge?
A. The Supreme Court.
Q. Macalintal challenges the creation of the Presidential Electoral Tribunal as
unconstitutional.
A. The Presidential Electoral Tribunalis no other than the Supreme Court itself.
The new provision in the 1987 Constitution simply constitutionalizes the
decision of the Supreme Court in Lopez v. Roxas, 17 SCRA at 761.
Macalintal v. PET, G.R. No. 191618, November 23,2010.
Q. Can Susan Roces, widow of Fernando Poe, Jr. intervene and/or substitute
for him, assuming arguendo that the protest could survive his death.
A. No. The fundamental rule applicable in a presidential election protest is
Rule 14 of the PET Rules. It provides,
Rule 14. Election Protest. - Only the registered candidate for
President or for Vice-President of the Philippines who received the
second or third highest number of votes may contest the election of the
President or the Vice-President, as the case may be, by filing a verified
petition with the Clerk of the Presidential Electoral Tribunal within thirty
(30) days after the proclamation of the winner.
Pursuant to this rule, only two persons, the 2nd and 3rd placers,
may contest the election. By this express enumeration, the rule makers
have in effect determined the real parties in interest concerning an
on-going election contest. Fernando Poe, Jr. v. Arroyo, P.E.T. CASE No.
002, March 29, 2005.
Q. Protestee de Castro contends that the Tribunal cannot correct the manifest
errors on the statements of votes (SOV) and certificates of canvass
(COC). Decide.
Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 287
A. The validity, authenticity and correctness of the SOVs and COCs are under
the Tribunal's jurisdiction. The constitutional function as well as the
power and the duty to be the sole judge of all contests relating to the
election, returns and qualification of the President and Vice-President is
expressly vested in the PET, in Section 4, Article VII of the Constitution.
Included therein is the duty to correct manifest errors in the SOVs and
COCs. Legarda v. De Castro, P.E.T. CASE No. 003, March 31, 2005.
Q. After Fidel Ramos was declared elected President, defeated candidate
Miriam Defensor Santiago filed an election protest with the Supreme
Court. Subsequently, however, while the case was pending, she ran for
the office of Senator and, having been declared elected, assumed office
as Senator. What happens to her election protest?
A. With her election and assumption of office as Senator she is deemed to
have abandoned her protest. A Senator's term is six years. It is a public
trust. She has made a pact with the people that she would serve for six
years. Defensor-Santiago v. Fidel Ramos, P.E.T. Case No. 001, February
13,1996. See dissent.
Q. What are the terms of the President and Vice-President? May they be
re-elected?
A. Both the President and the Vice-President are elected for a term of six years
which begins at noon on the thirtieth day of June next following the day
of the election.
"The President shall not be eligible for any reelection."
"No Vice-President shall serve for more than two successive
terms. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of the service for
the full term for which he was elected."
Q. If a Vice-President succeeds to the presidency, may he run for President at
the end of the term to which he succeeded as President?
A. "No person who has succeeded as President and has served as such for
more than four years shall be qualified for election to the same office at
any time."
288 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-13
SEC. 5. BEFORE THEY ENTER ON THE EXECUTION OF THEIR OFFICE, THE
PRESIDENT, THE
VICE-PRESIDENT, OR THE ACTING PRESIDENT
SHALL TAKE THE FOLLOWING OATH OR AFFIRMATION:
"I DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL FAITHFULLY AND
CONSCIENTIOUSLY FULFILL
MY DUTIES AS PRESIDENT (OR
VICE-PRESIDENT OR ACTING PRESIDENT) OF THE PHILIPPINES,
PRESERVE AND DEFEND ITS CONSTITUTION, EXECUTE ITS LAWS, DO
JUSTICE TO EVERY MAN, AND
CONSECRATE MYSELF TO THE SERVICE
OF THE NATION. SO HELP ME GOD." (IN CASE OF AFFIRMATION, LAST
SENTENCE WILL BE OMITTED)
SEC. 6. THE PRESIDENT SHALL HAVE AN OFFICIAL RESIDENCE. THE
SALARIES OF THE
PRESIDENT AND VICE-PRESIDENT SHALL BE DETERMINED BY LAW AND
SHALL NOT BE DECREASED
DURING THEIR TENURE. No INCREASE IN SAID COMPENSATION SHALL
TAKE EFFECT UNTIL AFTER
THE EXPIRATION OF THE TERM OF THE INCUMBENT DURING WHICH
SUCH INCREASE WAS
APPROVED. THEY SHALL NOT RECEIVE DURING THEIR TENURE ANY
OTHER EMOLUMENT FROM
THE GOVERNMENT OR ANY OTHER SOURCE.
Q. What will be the initial salary of the President and of the Vice- President
under this Constitution?
A. See Article XVIII, Section 17.
SEC. 7. THE PRESIDENT-ELECT AND THE VICE-PRESIDENT-ELECT
SHALL ASSUME OFFICE AT THE BEGINNING OF THEIR TERMS.
IF THE PRESIDENT-ELECT FAILS TO QUALIFY, THE VICE-
PRESIDENTELECT SHALL ACT AS
PRESIDENT UNTIL THE PRESIDENT-ELECT SHALL HAVE QUALIFIED.
IF A PRESIDENT SHALL NOT HAVE BEEN CHOSEN, THE VICEPRESIDENT-
ELECT SHALL ACT AS PRESIDENT UNTIL A PRESIDENT SHALL HAVE
BEEN CHOSEN AND
QUALIFIED.
IF AT THE BEGINNING OF THE TERM OF THE PRESIDENT, THE
PRESIDENT-ELECT SHALL HAVE DIED OR SHALL HAVE BECOME
PERMANENTLY DISABLED, THE
VLCE-PRESIDENT-ELECT SHALL BECOME PRESIDENT.
WHERE NO PRESIDENT AND VICE-PRESIDENT SHALL HAVE BEEN
CHOSEN OR SHALL HAVE QUALIFIED, OR WHERE BOTH SHALL HAVE
DIED
OR BECOME PERMANENTLY DISABLED, THE PRESIDENT OF THE SENATE
OR, IN CASE OF HIS INABILITY, THE SPEAKER OF THE HOUSE OF
REPRESENTATIVES SHALL ACT AS PRESIDENT UNTIL A PRESIDENT OR A
ViCE-PRESIDENT SHALL HAVE BEEN CHOSEN AND QUALIFIED.
Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 289
THE CONGRESS SHALL, BY LAW, PROVIDE FOR THE MANNER IN WHICH
ONE WHO IS TO ACT AS PRESIDENT SHALL BE SELECTED UNTIL A
PRESIDENT
OR A VICE PRESIDENT SHALL HAVE QUALIFIED, IN CASE OF DEATH,
PERMANENT DISABILITY, OR INABILITY OF THE OFFICLIILS MENTIONED
IN
THE NEXT PRECEDING PARAGRAPH.
Q. What different vacancy situations are contemplated in Section 7?
A. In general, Section 7 deals with vacancy situations which exist at the
beginning of the term of the presidency.
The first two situations are (1) when a President has been chosen
but he fails to qualify at the beginning of his term, and (2) when no
President has yet been chosen at the time he is supposed to assume
office. In both cases the Vice-President becomes acting-President until a
President qualifies.
The third situation is (3) when the President-elect dies or is
permanently incapacitated before the beginning of his term. In this case,
the Vice-President-elect becomes President.
The fourth and fifth situations are (4) when both the President and
Vice-President have not yet been chosen or have failed to qualify, and
(5) when both shall have died or become permanently incapacitated at
the start of their ter m. In such situation, the Senate President or the
Speaker •- in that order — acts as President until a President or Vice
-President qualifies.
The sixth situation is (6) when the officials mentioned in situation
(4) and (5) shall have died, or shall have become permanently
incapacitated, or are unable to assume office. In such situation, Congress
will decide by law who wiill act as President until a President or
Vice-President shall haive been elected and qualified.
SEC. 8. IN CASE OF DEATH, PERMANENT DISABILITY, REMOVAL FROM
OFFICE, OR RESIGNATION OF THE PRESIDENT, THE VICE-PRESIDENX
SHALL
BECOME THE PRESIDENT TO SERVE THE UNEXPIRED TERM. IN CASE OF
DEATH, PERMANENT DISABILITY, REMOVAL FROM OFFICE, OR
RESIGNATION
OF BOTH THE PRESIDENT AND VICE-PRESIDENT, THE PRESIDENT 0<F
THE
SENATE OR, IN CASE OF HIS INABILITY, THE SPEAKER OF THE HOUSE OF
REPRESENTATIVES, SHALL THEN ACT AS PRESIDENT UNTIL THE
PRESIDENT
OR VICE-PRESIDENT SHALL HAVE BEEN ELECTED AND QUALIFIED.
290 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
THE CONGRESS SHALL, BY LAW, PROVIDE WHO SHALL SERVE AS
PRESIDENT IN CASE OF DEATH, PERMANENT DISABILITY, OR
RESIGNATION
OF THE ACTING PRESIDENT. HE SHALL SERVE UNTIL THE PRESIDENT OR
THE VICE-PRESIDENT SHALL HAVE BEEN ELECTED AND QUALIFIED, AND
BE
SUBJECT TO THE SAME RESTRICTIONS OF POWERS AND
DISQUALIFICATIONS
AS THE ACTING PF RESIDENT.
Q. What vacancy situations are contemplated in Section 8?
A. The vacancy situations described here occur after the office has been
initially filled.
The first situation is (1) when the incumbent President dies, or is
permanently disabled, is removed, or resigns. The vacancy created is
thus permanent. In this situation the Vice- President becomes President.
The second situation is (2) when both the President and the Vice
President die, or are permanently disabled, are removed, or resign. In
such case, the Senate President or the Speaker — in that order — shall
act as President until a President or Vice-President shall have been
elected and qualified.
The third situation is (3) when the Acting President dies, or is
permanently incapacitated, is removed, or resigns. For such situation,
Congress will determine by law who will act as President until a new
President or Vice-President shall have qualified.
Q. How can the assumption of the presidency by Vice President Gloria
Macapagal Arroyo in the middle of Joseph Estrada's term be justified.
A. In a divided opinion the Supreme Court held that Joseph Estrada had
resigned thereby leaving the office vacant. The judgment that Estrada
had resigned was based on two statements of Estrada just before he left
Malacanang and on the diary of Angara published in the Inquirer.
Estrada v. Arroyo, G.R. No. 146738, March 2, 2001; G.R. No. 146738,
April 3, 2001.
Q. Four related petitions were filed (1) asking that Estrada stop "exercising the
powers and authority of the President under the Constitution" and "to
yield the Presidency to his constitutional successor, Gloria
Macapagal-Arroyo." (2) that "the occupation of the Office of [the
President] of the Philippines by Vice
Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 291
President Gloria Macapagal-Arroyo is constitutional and legal
with the full support of the Filipino people and other foreign
countries.," (3) asking for a "definitive mling on whether or not
Joseph Estrada is still the President" and, hence, "exempt from
all criminal suits," and (4) praying "th at the proclamation and
oath-taking of Madame Arroyo ... be declared null and void
. . . " or that she be "declared acting President and President
Joseph Ejercito Estrada, President-on-leave ..." Decide.
A. 1. Petitions are essentially for declaratory relief over which
the Supreme Court has no original jurisdiction; 2. as petitions
for prohibition and mandamus they fail to allege, much less
show, lack or excess of jurisdiction, or grave abuse of jurisdiction
on the part of "any tribunal, corporation, board, officer or
person whether exercising judicial, quasi-judicial or ministerial
functions," which Rule 65 of the Rules of Court requires
to be alleged and proven before the extra-ordinary writ of prohibition
may be issued; 3. petitioners have no legal standing;
4. they may not be treated as quo warranto because a plea for
quo warranto must be commenced (a) by the solicitor general,
(b) by a public prosecutor, and (c) by "a person claiming to be
entitled to a public office or position usurped or unlawfully held
or exercised by another." None of the petitioners qualify in law
to commence the action. Lozano, et al. v. Macapagal-Arroyo,
G.R. No. 146579, February 6, 2001.
Q. When the Senate President or Speaker becomes Acting President,
does he lose the Senate presidency or the speakership?
A. No.
SEC. 9. WHENEVER THERE IS A VACANCY IN THE OFFICE OF THE
VICE-PRESIDENT DURING THE TERM FOR WHICH HE WAS ELECTED, THE
PRESIDENT SHALL NOMINATE A VICE-PRESIDENT FROM AMONG THE
MEMBERS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES WHO
SHALL ASSUME OFFICE UPON CONFIRMATION BY A MAJORITY VOTE OF
ALL
THE MEMBERS OF BOTH HOUSES OF CONGRESS, VOTING SEPARATELY.
Q. How is a vacancy in the vice- presidency filled?
A. See Section 9. (Note that previous constitutions did not have a
rule for filling such vacancy. Note also that, by not limiting the
choice to the Senate, the President is given a wider range of
choices.)
292 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-13
SEC. 10. THE CONGRESS SHALL, AT TEN O'CLOCK IN THE MORNING
OF THE THIRD DAY AFTER THE VACANCY IN THE OFFICES OF THE
PRESIDENT
AND VICE-PRESIDENT OCCURS, CONVENE IN ACCORDANCE WITH ITS
RULES
WITHOUT NEED OF A CALL AND WITHIN SEVEN DAYS ENACT A LAW
CALLING FOR A SPECIAL
ELECTION TO ELECT A PRESIDENT AND A VICE-PRESIDENT TO BE HELD
NOT EARLIER THAN
FORTY-FIVE DAYS NOR LATER THAN SIXTY DAYS FROM THE TIME OF
SUCH CALL. THE BILL CALLING
SUCH SPECIAL ELECTION SHALL BE DEEMED CERTIFIED UNDER
PARAGRAPH 2, SECTION
26, ARTICLE VI OF THIS CONSTITUTION AND SHALL BECOME LAW UPON
ITS APPROVAL ON THIRD READING BY THE CONGRESS.
APPROPRIATIONS FOR THE SPECIAL
ELECTION SHALL BE CHARGED AGAINST ANY CURRENT
APPROPRIATIONS AND SHALL BE EXEMPT
FROM THE REQUIREMENTS OF PARAGRAPH 4, SECTION 25, ARTICLE VI
OF THIS CONSTITUTION.
THE CONVENING OF THE CONGRESS CANNOT BE SUSPENDED NOR THE
SPECIAL ELECTION
POSTPONED. NO SPECIAL ELECTION SHALL BE CALLED IF THE VACANCY
OCCURS WITHIN
EIGHTEEN MONTHS BEFORE THE DATE OF THE NEXT PRESIDENTIAL
ELECTION.
Q. What must Congress do in case a vacancy occurs in the offices of President
and Vice-President?
A. See Section 10.
SEC. 11. WHENEVER THE PRESIDENT TRANSMITS TO THE PRESIDENT OF
THE SENATE
AND THE SPEAEXR OF THE HOUSE OF REPRESENTATIVES
HIS WRITTEN DECLARATION THAT HE IS UNABLE TO DISCHARGE THE
POWERS AND DUTIES OF HIS OFFICE, AND 1UNTIL HE TRANSMITS TO
THEM
A WRITTEN DECLARATION TO THE CONTRARY, SUCH POWERS AND
DUTIES
SHALL BE DISCHARGED BY THE ViCE-PRESIDENT AS ACTING
PRESIDENT.
WHENEVER A MAJORITY OF ALL THE MEMBERS OF THE CABINET
TRANSMIT TO THE PRESIDENT OF THE SENATE AND TO THE SPEAKER OF
THE HOUSE OF
REPRESENTATIVES THEIR WRITTEN DECLARATION THAT THE
PRESIDENT IS UNABLE TO
DISCHARGE THE POWERS AND DUTIES OF HIS OFFICE, THE VICE-
PRESIDENT SHALL IMMEDIATELY
ASSUME THE POWERS
AND DUTIES OF THE OFFICE AS ACTING PRESIDENT.
THEREAFTER, WHEN THE PRESIDENT TRANSMITS TO THE PRESIDENT OF
THE SENATE
AND TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES
HIS WRITTEN DECLARATION THAT NO INABILITY EXISTS, HE SHALL
REASSUME THE POWERS AND
DUTIES OF HIS OFFICE. MEANWHILE, SHOULD A MAJORITY OF ALL THE
MEMBERS OF THE
CABINET TRANSMIT WITHIN FIVE DAYS TO
THE PRESIDENT OF THE SENATE AND TO THE SPEAKER OF THE HOUSE
OF REPRESENTATIVES
THEIR WRITTEN DECLARATION THAT THE PRESIDENT
Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 293
IS UNABLE TO DISCHARGE THE POWERS AND DUTIES OF HIS OFFICE,
THE
CONGRESS SHALL DECIDE THE ISSUE. FOR THAT PURPOSE, THE
CONGRESS
SHALL CONVENE, IF IT IS NOT IN SESSION, WITHIN FORTY-EIGHT HOURS,
IN ACCORDANCE WITH
ITS RULES AND WITHOUT NEED OF CALL.
IF THE CONGRESS, WITHIN TEN DAYS AFTER RECEIPT OF THE LAST
WRITTEN DECLARATION, OR, IF NOT IN SESSION, WITHIN TWELVE DAYS
AFTER IT IS REQUIRED TO
ASSEMBLE, DETERMINES BY A TWO-THIRDS VOTE OF
BOTH HOUSES, VOTING SEPARATELY, THAT THE PRESIDENT IS UNABLE
TO
DISCHARGE THE POWERS AND DUTIES OF HIS OFFICE, THE VICE-
PRESIDENT
SHALL ACT AS PRESIDENT; OTHERWISE, THE PRESIDENT SHALL
CONTINUE
EXERCISING THE POWERS AND DUTIES OF HIS OFFICE.
Q. The matter of deciding whether the President is so unable to discharge the
functions of his office that someone else must take over from him can
create a government crisis, especially if the President is unwilling to
concede his inability. How is a question of inability resolved?
A. See Section 11.
NOTE: IN Estrada v. Arroyo, G.R. No. 146738, March 2, 2001;
G.R. No. 146738, April 3, 2001, the Court said that Estrada did not
merely temporarily hand over the exercise of presidential powers
to Gloria Macapagal Arroyo but resigned from the presidency.
SEC. 12. IN CASE OF SERIOUS ILLNESS OF THE PRESIDENT, THE PUBLIC
SHALL BE INFORMED OF THE STATE OF HIS HEALTH. THE MEMBERS OF
THE
CABINET IN CHARGE OF NATIONAL SECURITY AND FOREIGN RELATIONS
AND THE CHIEF OF STAFF
OF THE ARMED FORCES OF THE PHILIPPINES, SHALL
NOT BE DENIED ACCESS TO THE PRESIDENT DURING SUCH ILLNESS.
Q. What kind of illness is envisioned by Section 12?
A. Section 12 envisions not just illness which incapacitates but also any serious
illness which can be a matter of national concern. (Incidentally, Section
12 grew out of a lesson learned from Soviet Russia. Nothing to do with
local history!)
Q. Who has the duty of releasing the information?
A. The section does not specify the officer on whom the duty devolves. It is
understood that the Office of the President would be responsible for
making the disclosure.
294 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 13
SEC. 13. THE PRESIDENT, VICE-PRESIDENT, THE MEMBERS OF THE
CABINET, AND THEIR
DEPUTIES OR ASSISTANTS SHALL NOT, UNLESS
OTHERWISE PROVIDED IN THIS CONSTITUTION, HOLD ANY OTHER
OFFICE OR EMPLOYMENT
DURING SAID TENURE. THEY SHALL NOT, DURING THEIR TENURE,
DIRECTLY OR INDIRECTLY
PRACTICE ANY OTHER PROFESSION, PARTICIPATE IN ANY BUSINESS, OR
BE FINANCIALLY
INTERESTED IN ANY CONTRACT WITH, OR IN ANY FRANCHISE, OR
SPECIAL PRIVILEGE GRANTED
BY THE GOVERNMENT OR ANY SUBDIVISION, AGENCY, OR
INSTRUMENTALITY
THEREOF, INCLUDING ANY GOVERNMENT-OWNED OR CONTROLLED
CORPORATIONS OR THEIR
SUBSIDIARIES. THEY SHALL STRICTLY AVOID CONFLICT OF INTEREST IN
THE CONDUCT OF THEIR
OFFICE.
THE SPOUSE AND RELATIVES BY CONSANGUINITY OR AFFINITY
WITHIN THE FOURTH CIVIL DEGREE OF THE PRESIDENT SHALL NOT
DURING HIS TENURE BE
APPOINTED AS MEMBERS OF THE CONSTITUTIONAL
COMMISSIONS, OR THE OFFICE OF THE OMBUDSMAN, OR AS
SECRETARIES, UNDER
SECRETARIES, CHAIRMEN OR HEADS OF BUREAUS OR OFFICES,
INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS
AND THEIR SUBSIDIARIES.
Q. What are the prohibitions imposed on the President and his official family?
on his relatives?
A. See Section 13.
Q. If an Undersecretary sits in the PEZA Board meetings for the Secretary,
does he also have the disqualification of the Secretary?
A. Yes. As the Undersecretary himself admitted, he no separate or special
appointment for such position. Since the Secretary of Labor is
prohibited from receiving compensation for his additional office or
employment, such prohibition likewise applies to the petitioner who sat
in the Board only in behalf of the Secretary of Labor. Bitonio v. COA, G.R.
No. 147392, March 12,2004.
Q. May the Presidential Legal Counsel be made PCGG Chairman?
A. Since the Chief Presidential Legal Counsel has the duty of giving
independent and impartial legal advice on the actions of the heads of
various executive departments and agencies and to review
investigations involving other presidential appointees, he may not
occupy a position in any of the offices whose performance he must
review. Such would involve occupying incompatible positions. Thus he
cannot be PCGG
Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 295
Chairman and Chief Presidential Legal Counsel at the same time of time
since the PCGG answers to the President. Public Interest Group v Elma,
G. R. No. 138965, June 30, 2006.
Q. President Aquino issued E.O. No 284 which read in part:
Sec. 1. Even if allowed by law or by ordinary functions of his
position, a member of the Cabinet, undersecretary or assistant secretary
or other appointive officials of the Executive Department may, in
addition to his primary position, hold not more than two positions in the
government and government corporations x x x
Valid?
A. Invalid. This in effect gives to the President and the rest of her official family
the broad exceptions found in Section 7, Par. 2, of Article IX-B which is
the general rule for public officials. Section 13, Art. VII, however, is the
exception. a[W]hile all other appointive officials in the civil service are
allowed to hold other office and employment in the government during
their tenure when such is allowed by law or by the primary functions of
their positions, members of the Cabinet, their deputies and assistants
may do so only when expressly authorized by the Constitution itself."
Civil Liberties Union v. The Executive Secretary, G.R. No. 83896, 22
February 1991.
Q. What is the meaning of "directly" or "indirectly?" Does the fact
that the accused, a PCGG Commissioner, has not signed any document
submitting to DECS a bid of the family corporation of which he is
member justify quashing the information?
A. Quashal is not justified. The constitutional ban is similar to the
prohibition in the Civil Service Law (PD No. 807, Sec. 36, subpar. 24) that
"pursuit of private business . . . without the permission required by Civil
Service Rules and Regulations" shall be a ground for disciplinary action
against any officer or employee in the civil service. Doromal v.
Sandiganbayan, G.R. No. 85468, September 7,1989.
SEC. 14. APPOINTMENTS EXTENDED BY AN ACTING PRESIDENT
SHALL REMAIN EFFECTIVE, UNLESS REVOKED BY THE ELECTED
PRESIDENT
WITHIN NINETY DAYS FROM HIS ASSUMPTION OR REASSUMPTION OF
OFFICE.
Q. Does an Acting President possess powers to appoint?
A. Yes, but his appointments may be revoked by the elected President within
ninety days from his assumption or reassumption of office.
296 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-13
SEC. 15. Two MONTHS IMMEDIATELY BEFORE THE NEXT PRESIDENTIAL
ELECTIONS AND UP TO THE END OF HIS TERM, A PRESIDENT OR ACTING
PRESIDENT SHALL NOT
MAKE APPOINTMENTS, EXCEPT TEMPORARY APPOINTMENTS TO
EXECUTIVE POSITIONS WHEN
CONTINUED VACANCIES THEREIN WILL PREJUDICE PUBLIC SERVICE OR
ENDANGER PUBLIC
SAFETY.
Q. Are there time periods when appointments may not be made?
A. Yes. See Section 15. Note that if it is necessary to make appointments
during this period, only temporary appointments can be extended and
only to the executive department.
Q. Does this rule apply to appointments to the judiciary?
A. According to In re: Appointment of Valenzuela, AM 98-0501 SC, November
9, 1998 the provision applies to the judiciary. However, according to De
Castro v. Judicial and Bar Council, G.R. No. 191002, April 20, 2010 and
May 1, 2010. it does not apply to appointments to the Supreme Court.
See dissent.
Q. Petitioners seek the recall of the appointments of the fourteen (14)
private respondents before the CSC on the ground that these were
"midnight appointments" by the Mayor forbidden under Article VII,
Section 15 of the Constitution. Decide.
A. The prohibition applies only to presidential appointments. There is no law
that prohibits local elective officials from making appointments during
the last days of his or her tenure. De la Rama v. Court of Appeals, G.R.
No. 131136, February 28, 2001.
SEC. 16. THE PRESIDENT SHALL NOMINATE AND, WITH THE CONSENT OF
THE
COMMISSION ON APPOINTMENTS, APPOINT THE HEADS OF THE
EXECUTIVE DEPARTMENTS,
AMBASSADORS, OTHER PUBLIC MINISTERS
AND CONSULS, OR OFFICERS OF THE ARMED FORCES FROM THE RANK
OF COLONEL OR NAVAL
CAPTAIN, AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN
HIM IN THIS
CONSTITUTION. HE SHALL ALSO APPOINT ALL OTHER OFFICERS OF THE
GOVERNMENT WHOSE
APPOINTMENTS ARE NOT OTHERWISE PROVIDED FOR BY LAW, AND
THOSE WHOM HE MAY BE
AUTHORIZED BY LAW TO APPOINT. THE CONGRESS MAY, BY LAW, VEST
THE APPOINTMENT OF
OTHER OFFICERS LOWER IN RANK IN THE PRESIDENT ALONE, IN THE
COURTS, OR IN THE HEADS
OF DEPARTMENTS, AGENCIES, COMMISSIONS, OR BOARDS.
THE PRESIDENT SHALL HAVE THE POWER TO MAKE APPOINTMENTS
DURING THE RECESS OF THE CONGRESS, WHETHER VOLUNTARY OR
Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 297
COMPULSORY, BUT SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY
UNTIL
DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR UNTIL THE
NEXT
ADJOURNMENT OF THE CONGRESS.
Q. What is the nature of the appointing power?
A. It is executive in nature, Government v. Springer, 50 Phil. 259, 283 (1927).
Q. What follows from the fact that the appointing power is executive in
nature?
A. Since appointment to office is an executive function, the clear implication is
that the legislature may not usurp such function. The legislature may
create an office and prescribe the qualifications of the person who may
hold the office, but it may neither specify who shall be appointed to
such office nor actually appoint him. The "appointing power is the
exclusive prerogative of the [President], upon which, no limitations may
be imposed by Congress, except those resulting . . . from the limited
exercise of power to prescribe the qualifications to a given appointive
office." Manalang v. Quitoriano, 94 Phil. 903, 911(1954).
NOTE: The appointing authority of the President, however,
should not be confused with the authority of the legislature to
impose additional duties on existing offices. Thus, under the 1935
Constitution, while it was clearly the prerogative of the President
to appoint the members of the Supreme Court, Roxas v. Lopez,
17 SCRA 756 (1966) upheld the authority of Congress to create a
Presidential Electoral Tribunal consisting of the Chief Justice and
the Justices of the Supreme Court. The Supreme Court held that
the act did not create a new office nor specify who should hold
the office but merely imposed additional duties . and powers
upon the Supreme Court and consequently upon whoever may
be the incumbent Chief Justice and Associate Justices. Id. at 770.
Q. Does the power to appoint include the power to decide who among
various choices is the best qualified?
A. Yes, provided that the person chosen has the qualifications provided by
law.
Q. Is the absence of recommendation of the Secretary of justice to the
President fatal to the appointment of respondent Conrado Quiaoit for
prosecutor?
298 THE 1987 PHILIPPINE CONSTITUTION:
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Sees. 12-13
A. The answer pivots on the proper understanding of the provision of the
Revised Administrative Code of 1987 (Book IV, Title III, Chapter II,
Section 9) to the effect that —
"All provincial and city prosecutors and their assistants
shall be appointed by the President upon the recommendation
of the Secretary."
Appointment calls for discretion on the part of the appointing
authority. The power to appoint prosecutors is given to the President.
The Secretary of Justice is under the control of the President. Hence
the law must be read simply as allowing the Secretary of Justice to
advice the President. The doctrine in San Juan v. CSC, 196 SCRA 69 is
not applicable because the stress there was on the constitutional
mandate on local autonomy. Bermudez, et al. v. Secretary, G.R. No.
131429, August 4,1999.
Q. What is the scope of the President's appointing power?
A. Section 16 enumerates the officers who are appointed by the President:
"The President shall . . . appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government
whose appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint."
In addition to the above, he also appoints Members of the
Supreme Court and judges of lower courts (Article Vni, Section 9), the
regular members of the Judicial and Bar Council, the Chairmen and
Members of the Constitutional Commissions [Article IX, B, Section 1(2);
C, Section 1(2); D, Section 1(2)], the Ombudsman and his Deputies
(Article XI, Section 9).
Q. What is the significance of the above enumeration?
A. The enumeration means that Congress may not give to any other officer
the power to appoint the above enumerated officers.
Q. May the appointing authority be given to others?
A. Appointing authority may also be given to other officials than the
President. Thus Section 16 says: "The Congress may, by
Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 299
law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards." Rufino v Endriga, G.R. No. 139554,
July 21, 2006 interpreted this to mean that, when the authority is given
to head of collegial bodies, it is to the chairman that the authority is
given and not to the body. But he can appoint only officers "lower in
rank," and not officers equal in rank to him. Thus a Chairman may not
appoint a fellow member of a Board.
Q. What appointments need confirmation by the Commission on
Appointments?
A. Only those enumerated in Section 16.
This is different from the law under the 1935 Constitution where
the general rule was that all appointments made by the President
needed confirmation by the Commission on Appointments unless
exempted by Congress from the need for confirmation Moreover, "ad
interim appointments" under the second paragraph of the Section 16
are immediately effective.
Q. Did the appointment of a sectoral representative require
confirmation by the Commission on Appointments?
A. Yes. The sectoral representative fell under the clause "other
officers whose appointments are vested in him in this Constitution."
Quintos-Deles, et al. v. Commission on Appointments, G.R. No. 83216,
September 4,1989.
Q. Does the appointment of the Commissioner of Customs need
confirmation by the Commission on Appointments?
A. No, since the office is not one of those mentioned in the first
sentence of Article VII, Section 16, nor is it specified elsewhere that
such appointment needs consent of the Commission. Sarmiento v.
Mison, 156 SCRA 549 (December 17,1987).
Q. Does the appointment of the Chairman of the Commission on
Human Rights require the consent of the Commission on
Appointments?
A. No, since the office is not one of those mentioned in the first
sentence of Article VII, Section 16, nor is it specified elsewhere that
such appointment needs consent of the Commission. Bautista v.
Salonga, G.R. No. 86439, April 13,1989.
Q. Do appointments and promotions in the Philippine Coast
Guard need confirmation?
300 THE 1987 PHILIPPINE CONSTITUTION:
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Sees. 15-16
A. No. The Coast Guard is a civilian unit. Soriano v. Lista, 447 Phil.
566 (2003).
Q. May Congress expand the list of those whose appointment
needs confirmation by the Commission on Appointments?
A. No. Calderon v. Carale, 208 SCRA 254 (1992), although still
with some dissents, definitively ruled that Congress may not expand
the list of appointments needing confirmation. The case involved R.A.
6715 which required that the Chairman and Commissioners of the
National Labor Relations Commission be appointed by the President
with the confirmation of the Commission on Appointments. The Court
reiterated its ruling in Mison and Bautista saying that the list in the first
sentence of Section 16 of those whose appointment require
confirmation by the Commission on Appointments is exclusive, adding
that the list may no be expanded by statutory legislation. The same
doctrine was followed in Tarrosa v. Singson, 232 SCRA 553 (1994), with
reference to the appointment of the Central Bank Governor and also in
Manalo v. Sistoza, et al., G.R. No. 107369, August 11, 1999, with
reference to the appointment of the head of the Philippine National
Police.
Q. Is the promotion of senior officers of the PNP subject to
confirmation by the Commission on Appointment as required by the
PNP law?
A. No. Congress may not expand the list of those needing CA
confirmation. Besides, PNP officers are not members of the Armed
Forces but are civilians. Manalo v. Sistoza, et al., G.R. No. 107369,
August 11,1999.
Q. When a law creating an office is silent as to who should appoint the
corresponding officer, who should?
A. The President.
Q. What are "ad-interim appointments?"
A. They are appointments made by the President during the recess of
Congress (during which the Commission on Appointments does not
meet).
Q. Is an ad-interim appointment temporary?
A. No. Petitioner posits the view that an ad interim appointment can be
withdrawn or revoked by the President at her pleasure, and can even
be disapproved or simply by-passed by the Commission on
Appointments. For this reason, petitioner claims that an ad interim
appointment is temporary in charac
Sees. 15-16 ART. VII - THE EXECUTIVE DEPARTMENT 301
ter and consequently prohibited by the last sentence of Section 1 (2),
Article IX-C of the Constitution. An ad interim appointment is
permanent. Matibag v. Benipayo, G.R. No. 149036, April 2, 2002.
Q. What is the effectivity and duration of ad-interim appointments?
A. They are effective immediately, without need for confirmation by the
Commission on Appointments, but the effectivity lasts "only until
disapproval by the Commission on Appointments or until the next
adjournment of the Congress."
Q. What is the difference between an ad-interim appointment and an
appointment in an acting capacity?
A. (1) The former refers only to positions which need confirmation by the
Committee on Appointment while the latter is also given to those
which do not need confirmation.
(2) The former may be given only when Congress is not in session
whereas the latter may be given even when Congress is in session.
Q. The President made appointments of Acting Department Secretaries
while Congress was in session. The appointments were challenged on
the grounds that: (1) the administrative Code says that, in the absence
of a Secretary, the Undersecretary performs his functions; (2)
appointments of acting secretaries need confirmation; (3) For its part,
respondent says that since the petitioner-senators are not members of
the Commission on Appointment, they have no standing to challenge
the act of the President.
A. (1) Congress, through a law, cannot impose on the President the obligation
to appoint automatically the undersecretary as her temporary alter
ego. An alter ego, whether temporary or permanent, holds a position
of great trust and confidence. Congress, in the guise of prescribing
qualifications to an office, cannot impose on the President who her
alter ego should be.
(2) The office of a department secretary may become vacant
while Congress is in session. Since a department secretary is the alter
ego of the President, the acting appointee to the office must
necessarily have the President's confidence. Thus, by the very nature of
the office of a department secretary, the President must appoint in an
acting capacity a person
302 THE 1987 PHILIPPINE CONSTITUTION:
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Sec. 17
of her choice even while Congress is in session. That person may or
may not be the permanent appointee, but practical reasons may make
it expedient that the acting appointee will also be the permanent
appointee. Moreover, the law expressly allows the President to make
such acting appointment. Section 17, Chapter 5, Title I, Book III of EO
292 states that "[t]he President may temporarily designate an officer
already in the government service or any other competent person to
perform the functions of an office in the executive branch."
(3) As to standing, yes, since the Commission on appointments is
independent of the Senate, senators who are not members of the CA
may not act in their behalf. Pimentel, Jr. v. Ermita, G.R. No. 164978,
October 13,2005.
SEC. 17. THE PRESIDENT SHALL HAVE CONTROL OF ALL THE EXECUTIVE
DEPARTMENTS,
BUREAUS, AND OFFICES. HE SHALL ENSURE THAT THE LAWS BE
FAITHFULLY EXECUTED.
Q. What is the power of control?
A. The power of control has been defined as "the power of an officer to alter
or modify or nullify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment of the
former for that of the latter." Mondano v. Silvosa, 97 Phil. 143,148
(1955). It is such power which has been given to the President over all
executive officers, from Cabinet members to the lowliest clerk. This is
an element of the presidential system where the President is "the
Executive of the Government of the Philippines, and no other. The
heads of the executive departments occupy political positions and hold
office in an advisory capacity, and, in the language of Thomas Jefferson
'should be of the President's bosom confidence,' and, in the language
of Attorney General Cushing, 'are subject to the direction of the
President."' Villena v. Secretary of Interior, 67 Phil. 451, 464 (1939).
Also, Lacson- Magallanes Co. Inc. v. Pano, 21 SCRA 895 (1967).
Q. Section 31 of E.O. No. 292 (Administrative Code of 1987) provided an
incentive award system for government employees. On 21 February
1992, President Aquino issued A.O. No. 268 enjoining the grant of
productivity incentive benefits without prior approval of the President.
On 19 January 1993, President Ramos issued A.O. No. 29, which
limited the amount of incentive
Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 303
benefits for 1992, enjoined head of government agencies from granting
incentive benefits without prior approval from him, and directed the
refund of the excess over the prescribed amount. Petitioners are
officials and employees of several government departments and
agencies who were paid incentive benefits for 1992. They assail the
constitutionality of A.O. Nos. 29 and 268 on the ground that:
1) they violate the provisions of E.O. No. 292 and, since the
latter is a law, it prevails over executive issuances; and
2) they encroach upon the constitutional authority of the Civil
Service Commission to adopt measures to strengthen the merit and
rewards system and to promulgate rules, regulations and standards
governing the incentive awards system of the civil service. Decide.
A. 1) Both A.O. Nos. 29 and 268 were issued in the valid exercise of
presidential control over the executive departments. "The President
issued subject Administrative Orders to regulate the grant of
productivity incentive benefits and to prevent discontentment,
dissatisfaction and demoralization among government personnel by
committing limited resources of government for the equal payment of
incentives and awards. The President was only exercising his power of
control by modifying the acts of the respondents who granted incentive
benefits to their employees without appropriate clearance from the
Office of the President, thereby resulting in the uneven distribution of
government resources." Blaquera v. Alcala, G.R. Nos.
109406,110642,111494, 112056 and 119597, September 11,1998, pp.
59-60.
2) The President did not encroach upon the authority of the CSC to
grant benefits to government personnel. A.O. Nos. 29 and 268 did not
revoke the privilege of employees to receive incentive benefits, but
merely regulated the grant and amount thereof. Fixing the amount of
the incentives is not the duty of the CSC. Such function belongs to the
President or his duly empowered alter ego. Id. at 60-61.
Q. What is the doctrine of "qualified political agency?"
A. The doctrine, recognizing that the Constitution has established a single and
not a plural executive, postulates that "all executive and administrative
organizations are adjuncts of the Executive
304 THE 1987 PHILIPPINE CONSTITUTION: Sees.
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A COMPREHENSIVE REVIEWER
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 acts of the secretaries of such departments,
performed and promulgated in the regular course of business, are,
unless disapproved or reprobated by the Chief Executive presumptively
the acts of the Chief Executive." Villena v. Secretary of Interior, 67 Phil.
451 and 463. Thus, a decision of a department secretary, when not
reprobated by the Executive, is the last step in the process of
"exhausting administrative remedies." E.g., Demaisip v. Court of Tax
Appeals, 106 Phil 237 (1959). But see Calo v. Fuentes, 5 SCRA 397
(1962) and Ganob v. Ramos, 27 SCRA 1174 (1969).
Thus, too, the Executive Secretary when acting "by authority of
the President," may reverse the decision of another department
secretary. Lacson-Magallanes v. Pano, 21 SCRA 895 (1967). By
authority of the President, he also has the power to modify, alter or
reverse a construction of a statute given by the Secretary of Justice.
Maceda v. Macaraig, Jr., 197 SCRA 771 (1991)
Similarly, the action of the Secretary of the DENR, exercising the
President's power to reorganize, is presumed to be the action of the
President. DENR v. DENR Employees, G.R. No. 149724. August 19,2003.
Q. Does the power of control include the power to reorganize executive
offices?
A. It has been held, moreover, that the express grant of the power of control
to the President justifies an executive action to carry out the
reorganization of an executive office under a broad authority of law.
Anak Mindanao v. Executive Sec., G.R. No. 166052 , August 29, 2007;
Tondo Medical Center Employees v. CA. G.R. No. 167324, July 17,2007;
Reorganization can involve the reduction of personnel,
consolidation of offices, or even abolition of positions by reason of
economy or redundancy of functions. While the power to abolish an
office is generally lodged with the legislature, the
Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 305
authority of the President to reorganize the executive branch, which
may include such abolition, is permissible under present laws. Malaria
Employees v. Executive Secretary, G.R. No. 160093, July 31, 2007.
NOTE: The President's power of control means his power
to reverse the judgment of an inferior officer. It may also be
exercised in his behalf by Department Heads. Thus the Secretary
of Justice may reverse the judgment of a prosecutor and direct
him to withdraw an information already filed. Such action is not
directly reviewable by a court. One who disagrees, however,
should appeal to the Office of the President in order to exhaust
administrative remedies prior to bringing it to court. Orosa v. Roa,
G.R. No. 14047, July 14, 2006; DENR v. DENR Employees, G.R. No.
149724, August 19, 2003.
It has been held, moreover, that the express grant of the
power of control to the President justifies an executive action to
carry out the reorganization of an executive office under a broad
authority of law. Reorganization can involve the reduction of
personnel, consolidation of offices, or even abolition of positions
by reason of economy or redundancy of functions. While the
power to abolish an office is generally lodged with the legislature,
the authority of the President to reorganize the executive branch,
which may include such abolition, is permissible under present
laws. Anak Mindanao v. Executive Sec., G.R. No. 166052 , August
29, 2007; Tondo Medical Center Employees v. CA, G.R. No.
167324, July 17, 2007; Malaria Employees v. Executive Secretary,
G.R. No. 160093, July 31,2007.
NOTE: Petitioner further contends that from the decision of
respondent BOI, appeal to the Office of the President should be
allowed; otherwise, the constitutional power of the President to
review acts of department secretaries will be rendered illusory by
mere rules of procedure. However, such "executive control" is
not absolute. The definition of the structure of the executive
branch of government, and the corresponding degrees of
administrative control and supervision is not the exclusive
preserve of the executive. It may be effectively limited by the
Constitution, by law, or by judicial decisions. All the more in the
matter of appellate procedure as in the instant case. Appeals are
remedial in nature; hence, constitutionally subject to this Court's
rule-making power. The Rules of Procedure we reissued by the
Court pursuant to Section 5, Article VIII of the Constitution, which
expressly empowers the Supreme Court to promulgate rules
concerning the procedure in all courts. Phillips Seafood v. BOI,
G.R. No. 175787, February 4,2009.
306 THE 1987 PHILIPPINE CONSTITUTION: Sees.
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Q. May an Assistant Executive Secretary, acting for the President, reverse a
decision of the Secretary of Agriculture and Resources?
A. Yes, under the well established doctrine of "qualified political agency."
Roque v. Director of Lands, L-25373, July 1,1976.
Q. May the Director of the NBI ignore or defy the order of the Secretary of
Justice?
A. The acts of the Secretary of Justice in the ordinary course of the
performance of his duties are acts of the President which are
controlling over all executive officers. Hence, the NBI Director must
obey. De Leon v. Carpio, October 12,1989.
Q. Compare the power of control with the disciplinary power of the
President.
A. From cases decided so far, the following synthesis of the power of control
may be made. As defined in Mondano v. Silvosa, supra, it is "the power
of an officer to alter or modify or nullify or set aside what a subordinate
had done in the performance of his duties and to substitute the
judgment of the former for that of the latter." This power, however,
"merely applies to the exercise of control over the acts of the
subordinate in the performance of his duties. It only means that the
President may set aside the judgment or action taken by a subordinate
in the performance of his duties." Ang-Angco v. Castillo, 9 SCRA 619,
629 (1963). The power of control, therefore, is not the source of the
Executive's disciplinary power over the person of his subordinates.
Rather, his disciplinary power flows from his power to appoint: "The
power to remove is inherent in the power to appoint." Id. at 630.
Moreover, this inherent disciplinary power has been made subject to
limitation by the legislature through the tatter's power to provide for a
civil service system one of whose main features is security of tenure:
"No officer or employee in the Civil Service shall be suspended or
dismissed except for cause as provided by law." Article IX, B, Section
2(3). Hence, it can be said that while the Executive has control over the
"judgment" or "discretion" of his subordinates, it is the legislature
which has control over their "person."
Q. Does the President have control over officers of government- owned
corporations?
A. Yes. However, it is submitted that such power over government-owned
corporations comes not from the Constitution
Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 307
but from statute. Hence, it may also be taken away by statute. See
NAMARCO v. Area, 29 SCRA 648 (1969). Bernas, CONSTITUTIONAL
STRUCTURE AND POWERS OF GOVERNMENT 131-132. (Would it make
any difference now that the Constitution makes a distinction between
government owned corporations with original charter and those with
derivative charter?)
Q. What is the significance of the second sentence of Section 17 which says
"HE SHALL ENSURE THAT THE LAWS BE FAITHFULLY EXECUTED?"
A. This means that the President can do whatever is needed to ensure that
laws, general or special, are followed. For this reason, the majority of
the Court in Biraogo v. Truth Commission, G.R. No. 192935, December
7, 2010, upheld the power of the President to create a Truth
Commission although the Commission was invalidated for violation of
the equal protection clause.
Q. What is the power of supervision?
A. It is the power of a superior officer to "ensure that the laws are faithfully
executed" by inferiors. The power of supervision does not include the
power of control; but the power of control necessarily includes the
power of supervision. (The power of the President over local
governments is only one of general supervision. See Article X, Sections 4
and 16.)
SEC. 18. THE PRESIDENT SHALL BE THE COMMANDER-IN-CHIEF
OF ALL THE 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.
WLTHIN 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 IN REGULAR 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
308 THE 1987 PHILIPPINE CONSTITUTION:
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Sec. 17
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.
THE CONGRESS, IF NOT IN SESSION, SHALL, WITHIN TWENTY-FOUR
HOURS FOLLOWING SUCH PROCLAMATION OR SUSPENSION, CONVENE
IN ACCORDANCE WITH
ITS RULES WITHOUT NEED OF A CALL.
THE SUPREME COURT MAY REVIEW, IN AN APPROPRIATE PROCEEDING
FILED BY ANY CITIZEN, THE SUFFICIENCY OF THE FACTUAL BASIS OF
THE PROCLAMATION OF
MARTIAL LAW OR THE SUSPENSION OF THE PRIVILEGE OF THE WRIT OR
THE EXTENSION THEREOF
AND MUST PROMULGATE ITS DECISION THEREON WITHIN THIRTY DAYS
FROM ITS FILING.
A STATE OF MARTIAL LAW DOES NOT SUSPEND THE OPERATION OF THE
CONSTITUTION, NOR SUPPLANT THE FUNCTIONING OF THE CIVIL
COURTS
OR LEGISLATIVE ASSEMBLIES, NOR AUTHORIZE THE CONFERMENT OF
JURISDICTION ON
MILITARY COURTS AND AGENCIES OVER CIVILIANS WHERE CIVIL
COURTS ARE ABLE TO
FUNCTION, NOR AUTOMATICALLY SUSPEND THE PRIVILEGE OF THE
WRIT.
THE SUSPENSION OF THE PRIVILEGE OF THE WRIT SHALL APPLY ONLY
TO PERSONS
JUDICIALLY CHARGED FOR REBELLION OR OFFENSES INHERENT
IN OR DIRECTLY CONNECTED WITH INVASION.
DURING THE SUSPENSION OF THE PRIVILEGE OF THE WRIT, ANY PERSON
THUS ARRESTED
OR DETAINED SHALL BE JUDICIALLY CHARGED WITHIN THREE DAYS,
OTHERWISE HE SHALL BE
RELEASED.
Q. What is the significance of the Commander-in-Chiefship of the President?
A. The net effect of Article II, Section 3, when read with Article VII, Section 18,
is that a civilian President holds supreme military authority and is the
ceremonial, legal, and administrative head of the armed forces. The
Constitution does not require that the President must be possessed of
military training and talents, but as Commander-in-Chief, he has the
power to direct military operations and to determine military strategy.
Normally, he would be expected to delegate the actual command of
the armed forces to military experts; but the ultimate power is his. "As
Commander-in-Chief, he is authorized to direct the movements of the
naval and military forces placed by law at his command, and to employ
them in the manner he may deem most effectual to harass and
conquer and subdue the enemy." Fleming v. Page, 9 How 603, 615
U.S. (1850).
Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 309
Q. What specific military powers are given to the President by the
Constitution?
A. The President, as Commander-in-Chief, is authorized by Section 18 under
specified conditions, (1) to call out such armed forces to prevent or
suppress lawless violence, invasion, or rebellion, (2) to suspend the
privilege of the writ of habeas corpus, and (3) to place the Philippines or
any part thereof under martial law.
Q. Under what conditions may the President call out the armed forces to
prevent or suppress lawless violence, etc.?
A. "[W]henever it becomes necessary."
Q. When the President calls out the armed forces, is his action subject to
judicial review?
A- It may be gathered from the broad grant of power that the actual use to
which the President puts the armed forces is, unlike the suspension of
the privilege of the writ of habeas corpus, not subject to judicial review.
He is authorized "whenever it becomes necessary, [to] call out [the]
armed forces to prevent or suppress lawless violence." What was said
by the American Supreme Court in Martin v. Mott, 12 Wheat 19 U.S.
(1827) which Lansang v. Garcia, 42 SCRA 448 (1971) said was not
applicable to the suspension of the privilege of the writ of habeas
corpus, must be considered applicable to the broad power to make use
of the armed forces "to prevent or suppress lawless violence, invasion,
[insurrection,] or rebellion." "The authority to decide whether the
exigency has arisen," declared the American Court, "belongs exclusively
to the President, and . . . his decision is conclusive upon all other
persons." Martin v. Mott, 12 Wheat at 30.
Q. What is a writ of habeas corpus? the privilege of the writ of habeas
corpus? What is suspended by the President, the writ or the privilege?
A. The answer to these questions are discussed under Article III, Section 15.
Q. To whom does the suspension of the privilege apply?
A. "The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion."
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Sec. 17
Q. What is the duty of the State after arrests and detention on the basis of
the suspension of the privilege?
A. "During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released."
Q. What is "martial law?"
A. Martial law is essentially police power. This is borne out by the
constitutional text which sets down "public safety" as the object of the
exercise of martial law. Public safety is the concern of police power.
What is peculiar, however, about martial law as police power is that,
whereas police power is normally a function of the legislature executed
by the civilian executive arm, under martial law, police power is
exercised by the executive with the aid of the military and in place of
"certain governmental agencies which for the time being are unable to
cope with existing conditions in a locality which remains subject to the
sovereignty." In the language of Justice Black, it authorizes "the military
to act vigorously for the maintenance of an orderly civil government."
Duncan v. Kahanamoku, 327 U.S. 304,323 (1946). Or in the language of
Justice Stone, it is:
the exercise of the power which resides in the executive branch
of the government to preserve order and insure the public safety
in times of emergency, when other branches of the government
are unable to function, or their functioning would itself threaten
the public safety ... It is the law of necessity to be prescribed and
administered by the executive power. Its object, the preservation
of the public safety and good order, defines the scope, which will
vary with the circumstances and necessities of the case. The
exercise of the power may not extend beyond what is required
by the exigency which calls it forth .. .Id. at 335-6.
Q. Is the scope of "martial law" powers a fixed concept?
A. What emerges from the above observations on martial law as police
power as well as from the text of the Constitution is that martial law is
a flexible concept. Martial law depends on two factual bases: (1) the
existence of actual invasion or rebellion, and (2) the requirements of
public safety. Necessity creates the conditions for martial law and at
the same time limits the scope of martial law. Certainly, the necessities
created by a state of invasion would be different from those
Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 311
created by rebellion. Necessarily, therefore, the degree and kind of
vigorous executive action needed to meet the varying kinds and
degrees of emergency could not be identical under all conditions.
NOTE: Because of this amorphous shape of martial law
power, the Marcos Supreme Court arrived at the following
conclusions:
1. That the proclamation of martial law automatically
suspends the privilege of the writ of habeas corpus;
2. That the President of the Philippines, "as Commanderin-
Chief and as enforcer or administrator of martial law . . . can
promulgate proclamations, orders and decrees during the period
of martial law essential to the security and preservation of the
Republic, to the defense of the political and social liberties of the
people, and to the institution of reforms to prevent the
resurgence of rebellion or insurrection or secession or the threat
thereof as well as to meet the impact of a world recession,
inflation or economic crisis which presently threatens all nations
including highly developed countries ..."
3. That the President of the Philippines, as legislator
during the period of martial law, can legally create military
commissions or courts martial to try not only members of the
armed forces but also civilian offenders for specified offenses.
This summary is taken from Gumaua v. Espino, 96 SCRA
403,403-7 (February 29,1980).
The new Constitution, however, rejects the above Marcos
Court pronouncements and now says categorically: "A state of
martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are
able to {miction, nor automatically suspend the privilege of the
writ."
Q. What limitations on the power to suspend the privilege and the power to
impose martial law have been formulated in the new Constitution?
A. In general, the limits that have been imposed are: (1) a time limit of sixty
days; (2) review and possible revocation by Congress; (3) review and
possible nullification by the Supreme Court.
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A COMPREHENSIVE REVIEWER
Q. Specifically, what are these limits?
A. "In case of invasion or rebellion, when the public safely 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 in regular 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.
The Congress, if not in session, shall, within twenty-four hours
following such proclamation or suspension, convene in accordance
with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding
filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the
writ or the extension thereof and must promulgate its decision thereon
within thirty days from its filing."
Q. How does Congress vote when deciding whether to revoke or extend the
suspension of the privilege or the imposition of martial law?
A. The Senate and the House of Representatives vote "jointly." This is a
departure from the general rule that the two Houses vote separately
when deciding an issue. The purpose of the departure from the general
rule is to facilitate the override of the suspension or the imposition.
Q. Is the imposition of martial law or the suspension of the privilege a political
question?
A. No. Whatever doubt there may have been under the former
Constitutions, the new Constitution now categorically states that the
"Supreme Court may review, in an appropriate pro
Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 313
ceeding filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the
writ or the extension thereof and must promulgate its decision thereon
within thirty days from its filing."
Q. Petitioners argue that the declaration of a "state of rebellion" by President
Arroyo is violative of the doctrine of separation of powers, being an
encroachment on the domain of the judiciary which has the
constitutional prerogative to "determine or interpret" what took place
in EDSA III on May 1,2001, and that the declaration of a state of
rebellion cannot be an exception to the general rule on the allocation
of the governmental powers. Decide.
A. Section 18, Article VII of the Constitution expressly provides that "[tlhe
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 ..." It was held in Integrated Bar of the Philippines v. Hon.
Zamora, (G.R. No. 141284, August 15, 2000) that the factual necessity
of calling out the armed forces is something that is for the President to
decide. He has a vast intelligence network to gather information, some
of which may be classified as highly confidential or affecting the
security of the state. In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in emergency situations to
avert great loss of human lives and mass destruction of property.
Although the Court, in a proper case, may look into the sufficiency of
the factual basis of the exercise of this power, on the basis of its power
to determine grave abuse of discretion, this is no longer feasible when
the proclamation has already been lifted. Lacson v. Secretary Perez,
G.R. No. 147780, May 10, 2001; Sanlakas v. Executive Secretary, G.R.
No. 159085, February 3, 2004.
Q. When the President exercises the option to call on the armed forces does
he thereby acquire new powers including emergency powers?
A. No. It simply means that he is calling on the Armed Forces to assist the
police. But this does not give her additional powers. Lacson v. Secretary
Perez, G.R. No. 147780, May 10, 2001; Sanlakas v. Executive Secretary,
G.R. No. 159085, February 3, 2004. Certainly, for instance, it does not
authorize warrantless
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arrests. David v. Erfnita, G.R. No. 171409, May 3, 2006. And
a President can claim emergency powers only when these are
granted to her by Congress under Article VI, Section 23.
What power does he have over the military?
Since the President is commander-in-chief of the Armed Forces
she can demand obedience from military officers. Military
officers who disobey or ignore her command can be subjected
to court martial proceeding. Thus, for instance, the President
as Commander in Chief may prevent a member of the armed
forces from testifying before a legislative inquiry. A military
officer who disobeys the President's directive may be made
to answer before a court martial. Since, however, Congress
has the power to conduct legislative hearings, Congress may
make use of remedies under the law to compel attendance. Any
military official whom Congress summons to testify before it
may be compelled to do so by the President. If the President is
not so inclined, the President may be commanded by judicial
order to compel the attendance of the military officer. Final
judicial orders have the force of the law of the land which the
President has the duty to faithfully execute. Gudani v. Senga,
G.R. No. 170165, April 15. 2006.
NOTE: Since the effectivity of the 1987 Constitution, the
power to declare martial law and suspend the privilege has
been used only once. President Arroyo declared martial law in
Maguindanao on the occasion of the Ampatuan massacre but
she lifted it within weeks. What Presidents have done instead
has been merely to make use of the third Section 18 power, that
is, to call on the Armed Forces to help the police maintain order.
But this does not give her additional powers. Lacson v. Secretary
Perez, G.R. No. 147780, May 10, 2001; Sanlakas v. Executive
Secretary, G.R. No. 159085, February 3, 2004. Certainly, for
instance, it does not authorize warrantless arrests. David v.
Ermita, G.R. No. 171409, May 3,2006. Moreover, the President
can claim emergency powers only when these are granted to her
by Congress under Article VI, Section 23.
SEC. 19. EXCEPT IN CASES OF IMPEACHMENT, OR AS OTHERWISE
PROVIDED IN THIS CONSTITUTION, THE PRESIDENT MAY GRANT
REPRIEVES,
COMMUTATIONS, AND PARDONS, AND REMIT FINES AND FORFEITURES,
AFTER CONVICTION BY FINAL JUDGMENT.
Q
.
A.
HE SHALL ALSO HAVE THE POWER TO GRANT AMNESTY WITH THE
CONCURRENCE OF A MAJORITY OF ALL THE MEMBERS OF THE
CONGRESS.
Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 315
Q. What is the purpose of the grant of the power of executive clemency?
A. That Section 19 gives to the President the power of executive clemency is a
tacit admission that human institutions are imperfect and that there
are infirmities in the administration of justice. The power therefore
exists as an instrument for correcting these infirmities and for
mitigating whatever harshness might be generated by a too strict
application of the law.
Q. What are the forms of executive clemency?
A. They are: reprieves, commutations, pardons, remission of fines and
forfeitures, amnesty.
Q. May the president extend executive clemency for administrative
penalties?
A. Yes. The Constitution makes no distinction with regard to the extent of the
pardoning power except with respect to impeachment. Llamas v.
Orbos, G.R. No. 99031, October 15, 1991.
Q. What are reprieves, commutations, and remission of fines and forfeitures?
A. A reprieve "postpones the execution of an offense to a day certain." People
v. Vera, 65 Phil. 56, 110 (1937), and a commutation "is a remission of a
part of the punishment; a substitution of a less penalty for the one
originally imposed." Id. at 111. Remission of fines and forfeitures is a
self-explanatory term. However, it should be noted that remission of
fines and forfeitures merely prevents the collection of fines or the
confiscation of forfeited property; it cannot have the effect of returning
property which has been vested in third parties or money in the public
treasury.
Q. After serving sentence for six years, accused was released and
placed under house arrest. Was his sentence effectively commuted to
six years?
A Yes. Commutation does not have to be in any specific form.
The fact that he was released after six years and the fact that house
arrest is not a penalty leads to the conclusion that the penalty had been
shortened. Drilon v. Court of Appeals, G.R. No. 91626, October 3,1991.
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Q. Define pardon.
A. United States v. Wilson, 7 Pet. 150 (U.S. 1833), defines it thus:
A pardon is an act of grace, proceeding from the power
entrusted with the execution of the laws, which exempts the individual
on whom it is bestowed from the punishment the law inflicts for a
crime he has committed. It is the private, though official, act of the
executive magistrate, delivered to the individual for whose benefit it is
intended and not communicated officially to the Court... A pardon is
a deed, to the validity of which delivery is essential, and delivery is not
complete without acceptance. It may then be rejected by the person
to whom it is tendered; and if it be rejected, we have discovered no
power in a court to force it on him.
Q. Are the above definition and characteristics of pardon applicable to the
Philippine concept?
A. It is submitted that a distinction must be made between absolute and
conditional pardon. Absolute pardon is complete even without
acceptance; whereas "a conditional pardon has no force until accepted
by the condemned. The reason is obvious. The condition may be less
acceptable to him than the original punishment, and may in fact be
more onerous." See Cabantag v. Wolfe, 6 Phil. 273,278 (1906).
Q. Petitioner was a teacher with the rank of Principal I. Convicted
of a criminal offense, he was sentenced to one year imprisonment and
disqualification to hold public office. Subsequently he was given
absolute pardon and restored to "full civil and political rights." He
applied for reinstatement and was given the position merely of
classroom teacher. Is he entitled to his old rank of Principal I?
A. It is true that one who is given absolute pardon has no
demandable right to reinstatement. Monsanto v. Factoran, Jr., G.R.
78239, February 9,1989. However, since the petitioner in this instance
was actually reinstated and there are no circumstances that would
warrant the diminution of his rank, justice and equity dictates that he
be given his former rank of Principal I. Sabello v. Department of
Education, G.R. No. 87687, December 26,1989.
Q. Petitioner, an assistant treasurer, was convicted of estafa
through falsification of public documents and received
Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 317
a penalty which included temporary absolute disqualification to last
during the period of her sentence. The conviction was upheld by the
Supreme Court but she filed a motion for reconsideration. Pending
reconsideration she was granted absolute pardon. Is she entitled to
reinstatement to her former position even without a new
appointment?
A. No. Pardon removes all penalties and legal disabilities. But it
does not restore legal office already forfeited. Since, however, her
disqualification has been removed, it qualifies her to apply for a new
appointment. Monsanto v. Factoran, Jr., G.R. No. 78239, February
9,1989. See dissents.
Q. What happens, however, if a pardon is given because he was
acquitted on the ground that he did not commit the crime?
A. Such a case would be different from Monsanto. Reinstatement
and backwages would be due. Garcia v. Commission on Audit, 226
SCRA 356 (1993).
Q. Where conditional pardon has been granted, who determines
whether the condition has been violated?
A. The President, and the President alone. The convict's
acceptance of the conditional pardon carries with it acceptance of the
President's authority. Torres v. Gonzales, 152 SCRA 272 (1987). See
dissent of Cruz, J.
Q. What is the effect of pardon when extended to one who has a pending
appeal?
A. Since pardon can be extended only to one whose conviction is final,
pardon has no effect until the person withdraws his appeal and thereby
allows his conviction to be final. People v. Salle, Jr., G.R. No. 103567,
December 4, 1995. (This corrects People v. Crisola, 128 SCRA 1 (March
2,1984), which said that clemency terminates the appeal.
Q. May the president extend executive clemency for administrative
penalties?
A. Yes. The Constitution makes no distinction with regard to the extend of the
pardoning power except with respect to impeachment. Llamas v.
Orbos, G.R. No. 99031, October 15,1991.
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Q. What is amnesty?
A. Amnesty "commonly denotes the 'general pardon to rebels for their
treason and other high political offenses,' or the forgiveness which one
sovereign grants to the subjects of another, who have offended by
some breach of the law of nations." Villa v. Allen, 2 Phil. 436,439
(1903).
Q. A convicted prisoner claims to be covered by a general amnesty. May a
court order his release in a habeas corpus petition?
A. No. His proper remedy is to submit his case to the proper amnesty board,
in this case, the COMELEC. De Vera v. Animas, L-48176,14 August
1978.
Q. What are the differences between pardon and amnesty?
A. Barrioquinto v. Fernandez, 85 Phil. 642 (1949) enumerates them thus:
Pardon is granted by the Chief Executive and as such it is a
private act which must be pleaded and proved by the person
pardoned, because the courts take no notice thereof; while
amnesty by Proclamation of the Chief Executive with the
concurrence of Congress, is a public act of which the courts
should take judicial notice. Pardon is granted to one after
conviction; while amnesty is granted to classes of persons or
communities who may be guilty of political offense, generally
before or after the institution of the criminal prosecution and
sometimes after conviction. Pardon looks forward and relieves
the offender from the consequences of an offense of which he
has been convicted, that is, it abolishes or forgives the
punishment, and for that reason it does "not work restoration of
the rights to hold public office, or the right of suffrage, unless
such rights be expressly restored by the terms of the pardon,"
and it "in no case exempts the culprit from the payment of the
civil indemnity imposed upon him by the sentence" (Article 36,
Revised Penal Code). While amnesty looks backward and
abolishes and puts into oblivion the offense itself, it so overlooks
and obliterates the offense with which is charged that the person
released by amnesty stands before the law precisely as though
he had committed no offense.
Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 319
NOTE: The distinctions made here should be understood in the
light of the later cases of Monsanto and Garcia above which hold that
pardon can have the effect of restoring rights such as the right to hold
public office or the right of suffrage.
Q. What is the legal nature of a tax amnesty?
A. It is a "general pardon or intentional overlooking of its
authority to impose penalties on persons otherwise guilty of evasion or
violation of revenue or tax law, [and as such] partakes of an absolute
forgiveness or waiver by the Government of its right to collect what
otherwise would be due it..Republic v. Intermediate Appellate Court,
G.R. No. 69344, April 26, 1991, quoting Commission of Internal Revenue
v. Botelho Corp., 20 SCRA 487. (QUERY: May the President grant tax
amnesty without legislative intervention? See next case.)
Q. By P.D. 1840 the President granted tax amnesty. To be valid
does this amnesty require the concurrence of the Batasan?
A. Under the 1973 Constitution, the Court answered this in the
negative. What the President did by issuing P.D. 1840 is exercise his
legislative power under Amendment 6 which does not require
concurrence of the Batasan but is concurrent with the legislative power
of the Batasan. Legaspi v. Minister of Finance, G.R. 58289, July 24,1982.
Q. May the President now grant tax amnesty?
A. It is submitted that the President cannot grant tax amnesty
without the concurrence of Congress. The President now does not have
the legislative power of President Marcos under the 1973 Constitution.
Q. May "reprieves, commutations, pardons, and remission of fines and
forfeitures" be given before conviction?
A. No. These can be only granted "after conviction by final judgment." This a
return to the rule under the 1935 and 1973 Constitutions and a
rejection of the 1981 amendment which did away with the need for
prior conviction. This is to prevent the President from preempting the
action of the judge.
Q. What are the constitutional limits on executive clemency?
A. Section 19 sets down three limitations on the power of executive
clemency: (1) it cannot be exercised over cases of impeach
320 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
ment; (2) a grant of amnesty must be with the concurrence of a
majority of all the members of Congress. (3) In addition, Article IX, C,
Section 5 says: "No pardon, amnesty, parole, or suspension of sentence
for violation of election laws, rules, and regulations shall be granted by
the President without the favorable recommendation of the
Commission [on Elections]."
Q. May political offenders be given executive clemency without the
concurrence of Congress?
A. Yes. They may be given individual pardon after conviction.
Q. Must an accused confess guilt of the crime charged in order to avail of
amnesty as a defense?
A. Yes. Vera v. People, 7 SCRA 152 (1963); People v. Pasilan, 14 SCRA 694
(1965).
SEC. 20. THE PRESIDENT MAY CONTRACT OR GUARANTEE FOREIGN
LOANS ON BEHALF OF THE REPUBLIC OF THE PHILIPPINES WITH THE
PRIOR CONCURRENCE OF THE MONETARY BOARD, AND SUBJECT TO
SUCH
LIMITATIONS AS MAY BE PROVIDED BY LAW. THE MONETARY BOARD
SHALL,
WITHIN THIRTY DAYS FROM THE END OF EVERY QUARTER OF THE
CALENDAR
YEAR, SUBMIT TO THE CONGRESS A COMPLETE REPORT OF ITS
DECISIONS
ON APPLICATIONS FOR LOANS TO BE CONTRACTED OR GUARANTEED
BY THE
GOVERNMENT OR GOVERNMENT-OWNED AND CONTROLLED
CORPORATIONS
WHICH WOULD HAVE THE EFFECT OF INCREASING THE FOREIGN DEBT,
AND
CONTAINING OTHER MATTERS AS MAY BE PROVIDED BY LAW.
Q. May the President contract or guarantee foreign loans?
A. Yes, but only with the "prior concurrence of the Monetary Board, and
subject to such limitations as may be provided by law."
Q. What is the responsibility for approving foreign loans and for guaranteeing
loans given to the Monetary Board?
A. Because it has expertise and consistency to perform the mandate and
since such expertise or consistency may be absent among the
Members of Congress.
Q. Why is the Monetary Board required to give a report of action taken on
loans and guarantees?
A. In order to allow Congress to act on whatever legislation may be needed
to protect public interest.
Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 321
Q. The Financing Program for foreign loans instituted by the President
extinguished portions of the country's pre-existing loans through either
debt buyback or bond-conversion. The buyback approach essentially
pre-terminated portions of public debts while the bond-conversion
scheme extinguished public debts through the obtention of a new loan
by virtue of a sovereign bond issuance, the proceeds of which in turn
were used for terminating the original loan. Petitioners contend that
buyback or bond conversion are not authorized by Article VII, Section
20.
A. The language of the Constitution is simple and clear as it is broad. It allows
the President to contract and guarantee foreign loans. It makes no
prohibition on the issuance of certain kinds of loans or distinctions as to
which kinds of debt instruments are more onerous than others. This
Court may not ascribe to the Constitution meanings and restrictions
that would unduly burden the powers of the President. The plain, clear
and unambiguous language of the Constitution should be construed in
a sense that will allow the full exercise of the power provided therein. It
would be the worst kind of judicial legislation if the courts were to
misconstrue and change the meaning of the organic act. Spouses
Constantino v. Cuisia, G.R. No. 106064, October 13,2005.
SEC. 21. No TREATY OR INTERNATIONAL AGREEMENT SHALL BE
VALID AND EFFECTIVE UNLESS CONCURRED IN BY AT LEAST TWO-
THIRDS OF
ALL THE MEMBERS OF THE SENATE.
Q. What are some of the foreign relations powers of the President?
A. They are: (1) the power to negotiate treaties and international
agreements; (2) the power to appoint ambassadors and other public
ministers, and consuls; (3) the power to receive ambassadors and other
public ministers accredited to the Philippines; (4) the power to contract
and guarantee foreign loans on behalf of the Republic; (5) the power to
deport aliens.
Q. What is the President's role in entering into international agreement?
A. The President negotiates treaties and international agreements. In the
negotiation phase of treaty-making, the executive may completely
excludes Congress. However, the fruit of the
322 THE 1987 PHILIPPINE CONSTITUTION: Sees.
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A COMPREHENSIVE REVIEWER
executive's negotiation does not become binding treaty without the
concurrence of "at least two-thirds of all the Members of the Senate."
Q. What international agreements require ratification by the Senate?
A. "While treaties are required to be ratified by the Senate under the
Constitution, less formal types of international agreements may be
entered into by the Chief Executive and become binding without the
concurrence of the legislative body. [Usaffe Veterans Association, Inc.
v. Treasurer of the Philippines, 105 Phil. 1030] The Host Agreement
comes within the latter category; it is a valid and binding international
agreement even without the concurrence of the Philippine Senate. The
privileges and immunities granted to the WHO under the Host
Agreement have been recognized by this Court as legally binding on
Philippine authorities. [World Health Organization v. Hon. Benjamin
Aquino, 48 SCRA 242]" Commissioner of Internal Revenue v. John
Gotamco and Sons, 148 SCRA 36,3940 (1987. (How is this affected by
the new provision of the 1987 Constitution?)
Q. What norm may be followed for determining whether an agreement
needs concurrence of the Senate or not?
A. In general it can be said that agreements that are permanent and original
should be embodied in a treaty and need Senate concurrence.
Agreements, however, which are temporary or are merely
implementations of treaties or statutes do not need concurrence.
Q. What law governs the Visiting Forces Agreement: Article VII, Section 21 or
Article XVHI, Section 25?
A. Both. As to the manner of ratifying the treaty, Article VII, Section 21
applies. As to whether the agreement needs Senate ratification, Article
XVHI, Section 25 applies. Bayan v. Executive Secretary, G.R. No.
138570, October 10,2000.
Q. Does it need ratification by the Senate?
A. Yes, Because Section 25 of Article XVII covers not just bases but also
troops. Bayan v. Executive Secretary, G.R. No. 138570, October
10,2000.
Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 323
Q. How about the needed ratification by the U.S.?
A. We are bound to accept an official declaration by the U.S. that what is
needed to make their consent a treaty has been satisfied. Bayan v.
Executive Secretary, G.R. No. 138570, October 10, 2000.
Q. Pursuant to the extradition treaty with the United States, a request was
made by the U.S. for the extradition of Mark Jimenez. While the
petition for extradition was being evaluated by the Department of
Justice and before the filing of an extradition case in the proper court, a
request was made by Jimenez that documents coming from the US
related to the extradition request be made available to him. The
request was granted by Judge Lantion. Whereupon the Secretary of
Justice asked the Court to reverse the lower courts order. Decide.
A. During the evaluation stage in the office of the Department of Justice the
subject of the extradition request does not have the right to notice and
hearing. P.D. No. 1069 which implements the RP-US Extradition Treaty
provides the time when an extraditee shall be furnished a copy of the
petition for extradition as well as its supporting papers, i.e., after the
filing of the petition for extradition in the extradition court, "An
extradition proceeding is not a criminal prosecution, and the
constitutional safeguards that accompany a criminal trial in this country
do not shield an accused from extradition pursuant to a valid treaty." As
an extradition proceeding is not criminal in character and the
evaluation stage in an extradition proceeding is not akin to a
preliminary investigation, the due process safeguards in the latter do
not necessarily apply to the former. Secretary of Justice v. Judge
Lantion, G.R. No. 139465, October 17, 2000.
Q. May the President be compelled to submit a treaty to the Senate for
concurrence?
A. Prior to his ouster from the presidency President Estrada had signed the
Treaty on the International Criminal Court but he did not submit it to
the Senate for concurrence. Neither did President Arroyo. Efforts to
compel the Executive Department by mandamus to submit the
document to the Senate was rebuffed by the Court. The Court said that
the decision to enter or not to enter into a treaty is a prerogative solely
of the
324 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
President. Thus unless the President submits a treaty to the Senate
there is nothing for the Senate to concur in. Pimentel v. Ermita, G.R.
No. 158088, July 6, 2005.
NOTE: The question whether the Philippine government should
espouse claims of its nationals against a foreign government is a
foreign relations matter, the authority for which is demonstrably
committed by our Constitution not to the courts but to the political
branches. In this case, the Executive Department has already decided
that it is to the best interest of the country to waive all claims of its
nationals for reparations against Japan in the Treaty of Peace of 1951.
The wisdom of such decision is not for the courts to question. Vinuya,
et al. v. Executive Secretary, G.R. No. 162230, April 28, 2010.
Q. Who has the power to deport aliens?
A. Tan Tong v. Deportation Board, 96 Phil. 934, 936 (1955) answers the
question thus:
The power to deport aliens is lodged in the President of the
Republic of the Philippines. As an act of state, it is vested in the
Executive by virtue of his office, subject only to the regulations
prescribed in Section 69 of the Revised Administrative Code or to such
future legislation as may be promulgated on the subject (In re
McCulloch Dick, 38 Phil. 41) There is no provision in the Constitution
nor act of the legislature defining the power, as it is evident that it is the
intention of the law to grant to the Chief Executive full discretion to
determine whether an alien's residence in the country is so undesirable
as to effect or iiyure the security, welfare or interest of the state. The
adjudication of facts upon which the deportation is predicated also
devolves on the Chief Executive whose decision is final and executory.
SEC. 22. 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
RECEIPTS AND
EXPENDITURES AND SOURCES OF FINANCING, INCLUDING RECEIPTS
FROM
EXISTING AND PROPOSED REVENUE MEASURES.
Q. What is the basis for the general appropriations bill passed by Congress?
A. The budget of receipts and expenditures prepared by the President.
Sec. 17 ART. VII - THE EXECUTIVE DEPARTMENT 325
Q. What is the significance of the phrase "sources of financing?"
A. The phrase implies that financing can come from sources other than
revenue measures.
SEC. 23. THE PRESIDENT SHALL ADDRESS THE CONGRESS AT THE
OPENING OF ITS
REGULAR SESSION. HE MAY ALSO APPEAR BEFORE IT AT
ANY OTHER TIME.
ARTICLE VIII
THE JUDICIAL DEPARTMENT
SECTION 1. 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 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.
Q. What is judicial power?
A. Judicial power is "the right to determine actual controversies arising
between adverse litigants, duly instituted in courts of proper
jurisdiction." Muskrat v. United States, 219 U.S. 346 (1911). It is "the
authority to settle justiciable controversies or disputes involving rights
that are enforceable and demandable before the courts of justice or
the redress of wrongs for violation of such rights." Lopez v. Roxas, 17
SCRA 756, 761 (1966).
Q. How does the Constitution define judicial power?
A. Section 1 says: "Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government."
Q. Does the judiciary resolve moot cases?
A. "A moot case is one that ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration
326
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 327
thereon would be of no practical use or value. Generally, courts decline
jurisdiction over such case or dismiss it on ground of mootness.
However, Courts will decide cases, otherwise moot and academic, if:
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 ..Mattel, Inc. v. Francisco, G.R. No. 166886, July 30,2008.
Q. What is the "abuse of discretion" referred to in Section 1?
A. Not every abuse of, discretion, can be the occasion for the Court to come
in by virtue of the second sentence of Section 1. It must be "grave
abuse of discretion amounting to lack or excess of jurisdiction." As
Sinon v. Civil Service Commission, 215 SCRA 410,416-17 (1992), put it:
By grave abuse of discretion is meant such capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be patent and gross as
to amount to an evasion of positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation
of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.
On this basis the Court can even check acts of Congress and of
the President, but with great hesitation. The principle must sometimes
yield to separation of powers or the doctrine on "political questions" or
to the "enrolled bill" rule. See e.g. Tolentino v. Secretary of Finance, 235
SCRA 630 (1994). In fact, it is difficult to see a clear pattern of the times
when the Court will check a co-equal department or not.
Q. Does the fact that the HRET has made a final decision divest
the Supreme Court of power to review the decision?
A. No. The Court can still determine whether the HRET committed
grave abuse of discretion. Villarosa v. HRET, G.R. No. 144129,
September 14,2000.
NOTE: The question whether the Philippine government should
espouse claims of its nationals against a foreign government is a foreign
relations matter, the authority for which is demonstrably committed by
our Constitution not to the courts but to the political
328 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
branches. In this case, the Executive Department has already decided
that it is to the best interest of the country to waive all claims of its
nationals for reparations against Japan in the Treaty of Peace of 1951.
The wisdom of such decision is not for the courts to question. Vinuya,
et al. v. Executive Secretary, G.R. No. 162230, April 28,2010.
Q. Does the definition of judicial power do away with the "political questions
doctrine?"
A. No, it does not. At most it is a reproof of the practice of the Marcos
Supreme Court of shying away from reviewing abuse of discretion by
the Chief Executive and using the political questions doctrine as an
excuse. (More will be said about political questions under Section 5.)
Q. The Luzon Petrochemical Corporation, a foreign corporation,
was attracted to situate its petrochemical plant in Bataan by "initial
inducements and other circumstances." Subsequently, however, it
asked the Board of Investments to be allowed to move to Batangas on
the ground that it has the right of final choice of plant site. On that
basis, the BOI yielded. The capitulation of the BOI is challenged as
abuse of discretion. Decide.
A. There was abuse of discretion. "In the light of all the clear
advantages manifest in the plant's remaining in Bataan, practically
nothing is shown to justify the transfer to Batangas except a nearabsolute
discretion given by the BOI to investors not only to freely
choose the site but to transfer it from their own first choice for reasons
which remain murky to say the least." The BOI capitulation is adverse
to Philippine interest contrary to the thrust of the Constitution. Garcia
v. Board of Investments, G.R. No. 92024, November 9,1990.
Q. For the automation of the counting and canvassing of the
ballots in the 2004 elections, Comelec awarded the Contract to "Mega
Pacific Consortium," an entity that had not participated in the bidding.
Despite this grant, the poll body signed the actual automation Contract
with "Mega Pacific eSolutions, Inc.," a company that joined the bidding
but had not met the eligibility requirements. Was there grave abuse of
discretion?
A. Yes. There is grave abuse of discretion (1) when an act is done
contrary to the Constitution, the law or jurisprudence; or (2) when it is
executed whimsically, capriciously or arbitrarily out of malice, ill will or
personal bias. In the present case, the Commission on Elections
awarded the subject contract not only in clear violation of law and
jurisprudence, but also in reckless disregard of its own bidding rules
and procedure. Infotech Foundation, et al. v. Comelec, G.R. No. 159139,
January 13,2004.
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 329
Q. On 4 January 1999, the Supreme Court issued a TRO staying
the execution of Leo Echegaray scheduled on that same day. The
Justice Secretary assailed the issuance of the TRO arguing, inter alia,
that the action of the Court not only violated the rule on finality of
judgment but also encroached on the power of the executive to grant
reprieve. Decide.
A. 1. The power to control the execution of its [i.e., the SC]
decision is an essential aspect of jurisdiction. It cannot be the subject of
substantial subtraction for our Constitution vests the entirety of judicial
power in one Supreme Court and in such lower courts as may be
established by law. To be sure, the most important part of litigation,
whether civil or criminal, is the process of evaluation of decisions where
supervening events may change the circumstance of the parties and
compel courts to intervene and adjust the rights of the litigants to
prevent unfairness. It is because of these unforeseen, supervening
contingencies that courts have been conceded the inherent and
necessary power of control of its processes and orders to make them
conformable to law and justice.
§19, Art. VII "cannot be interpreted as denying the power of the
courts to control the enforcement of their decisions after their finality.
In truth, an accused who has been convicted by final judgment still
possesses collateral rights and these rights can be claimed in the
appropriate courts [e.g., a death convict who becomes insane after his
final conviction cannot be executed while in a state of insanity]. ...The
suspension of such a death sentence is undisputably an exercise of
judicial power. It is not a usurpation of the presidential power of
reprieve though its effect is the same — the temporary suspension of
the execution of the death convict."
3) The same logic applies to Congress when, exercising its
legislative power, it amends the Death Penalty Law by reducing the
penalty of death to life imprisonment. "The powers of the Executive,
the Legislative and the Judiciary to save the life of a death convict do
not exclude each other for the simple reason that there is no higher
right than the right to life." To contend that "only the Executive can
protect the right of life of an accused after his final conviction is to
violate the principle of co-equal and coordinate powers of the three
branches of our government." Echegaray v. The Secretary of Justice,
G.R. No. 132601, January 19,1999.
Q. On the first regular session of the eleventh Congress,
Senators Fernan and Tatad contested for the Senate Presidency.
Fernan won by a vote of 20 to 2. With the agreement of Senator
Santiago, Tatad manifested that he was assuming the position of
minority leader explaining that those who had voted for Fernan
comprised the majority, while those who had voted for him, the
losing nominee, belonged to the minority. However, the seven
330 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Lakas-NUCD-UMDP senators had chosen Senator Guingona as
the minority leader. Later, Fenian formally recognized Guingona
as such. Santiago and Tatad filed before the Supreme Court a
petition for quo warranto, alleging that Guingona "had been
usurping, unlawfully holding and exercising the position of
Senate minority leader," a position that rightfully belonged to
Tatad.
1) Does the Court have jurisdiction over the petition?
2) Petitioners claim that Art. VI, §16(1) has not been
observed in the selection of the minority leaden Decide.
A. 1) Yes. "It is well within the power and jurisdiction of the
Court to inquire whether the Senate or its officials committed a
violation of the Constitution or gravely abused their discretion in
the exercise of their functions and prerogatives." Santiago v.
Guingona, G.R. No. 134577, November 18,1998, p. 18.
2) This provision is explicit on the manner of electing a
Senate President and a House Speaker, but silent on the manner
of selecting the other officers in both chambers of Congress. The
method of choosing who will be the other officers must be
prescribed by the Senate itself. The Rules of the Senate neither
provide for the positions of majority and minority leaders nor
prescribe the manner of creating such offices or of choosing the
holders thereof. Such offices exist by tradition and long practice.
"But, in the absence of constitutional or statutory guidelines or
specific rules, this Court is devoid of any basis upon which to
determine the legality of the acts of the Senate relative thereto.
On grounds of respect for the basic concept of separation of
powers, courts may not intervene in the internal affairs of the
legislature; it is not within the province of courts to direct
Congress how to do its work." Id. at 23-24 (citing New York Public
Interest Research Group, Inc. v. Steingut, 353 NE2d 558).
Q. What power is given to courts?
A. Courts are given "judicial power," nothing more. Hence, by the principle of
separation of powers, courts may neither attempt to assume nor be
compelled to perform non-judicial functions. Thus, a court may not be
required to act as a board of arbitrators. Manila Electric Co. v. Pasay
Transportation Co., 57 Phil. 600 (1932). Nor may it be charged with
administrative functions except when reasonably incidental to the
fulfillment of judicial duties. Noblejas v. Teehankee,2S SCRA 405 (1968).
Neither is it the function of the judiciary to give advisory opinions.
Director of Prisons v. Ang Cho Kio, 33 SCRA 494, 509 (1970).
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 331
Q. What is the difference between a declaratory judgment
and an advisory opinion?
A. What distinguishes a declaratory judgment from an advisory
opinion is that the former involves parties with real conflicting
legal interests whereas an advisory opinion is a response to a legal
issue posed in the abstract in advance of any actual case in which it
may be presented. As a consequence of this distinction, an advisory
opinion binds no one whereas a declaratory judgment is a final one
and is forever binding on the parties. The former is thus not a judicial
act but the latter is.
Q. What is the role of the legislature in the judicial process?
A. Although judicial power is vested in the judiciary, the proper
exercise of such power requires prior legislative action: (1) defining
such enforceable and demandable rights and prescribing
remedies for violations of such rights; and (2) determining the
court with jurisdiction to hear and decide controversies or disputes
arising from legal rights.
Q. Can the courts exercise judicial power when there is no applicable
law?
A. No. Thus in Channie Tan v. Republic, 107 Phil. 632,634 (1960),
the Court ruled that it had no authority to entertain an action
for judicial declaration of citizenship because there was no law
authorizing such proceeding. Similarly, an award of honors
to a student by a board of teachers may not be reversed by
a court where the awards are governed by no applicable law.
Santiago, Jr. v. Bautista, 32 SCRA 188, 199 (1970). Nor may
courts reverse the award of a board of judges in an oratorical
contest. Felipe v. Leuterio, 91 Phil. 482 (1952).
SECTION. 2. THE CONGRESS SHALL HAVE THE POWER TO DEFINE,
PRESCRIBE, AND APPORTION THE JURISDICTION OF THE VARIOUS
COURTS
BUT MAY NOT DEPRIVE THE SUPREME COURT OF ITS JURISDICTION
OVER
CASES ENUMERATED IN SECTION 5 HEREOF.
NO LAW SHALL BE PASSED REORGANIZING THE JUDICIARY WHEN IT
UNDERMINES THE SECURITY OF TENURE OF ITS MEMBERS.
Q. What power does Congress have over the judicial system?
A. Congress has the power to create new courts and to apportion
jurisdiction among various courts. However, in the exercise of
this power Congress may not impair the independence of the
332 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-13
judiciary. For this purpose, the Constitution has given to the Supreme
Court, in Section 5, certain powers which Congress may not take away.
Moreover, any reorganization of the judicial system should be done in
a manner which does not impair security of tenure. (More will be said
about security of tenure under Section 11.)
Q. May any other body than Congress create courts or increase
or decrease the jurisdiction of courts?
A. No. Implicit in the conferment of power on Congress to create
courts and to determine their jurisdiction is the denial of the same
power to other departments.
Q. A law is passed prohibiting courts from issuing injunctions in
cases involving infrastructure projects of the government. Does such
law violate judicial independence?
A. Such prohibition can only refer to administrative acts in
controversies involving facts or the exercise of discretion in technical
cases. Outside of this dimension and on issues involving questions of
law, the courts cannot be prevented from exercising their power.
Malaga v. Penackos, Jr., G.R. No. 86695, September 3,1992.
NOTE: Whether or not courts of general jurisdiction have authority
over administrative agencies depend on the statutes governing
the subject. Where the statute designates the court having jurisdiction
other than courts of general jurisdiction, then courts of general
jurisdiction do not have authority. But where there is silence, the general
rule applies. Lupangco v. Court of Appeals, 160 SCRA 848 (1988).
SEC. 3. THE JUDICIARY SHALL ENJOY FISCAL AUTONOMY.
APPROPRIATIONS FOR THE
JUDICIARY MAY NOT BE REDUCED BY THE LEGISLATURE BELOW THE
AMOUNT APPROPRIATED
FOR THE PREVIOUS YEAR AND, AFTER APPROVAL, SHALL BE
AUTOMATICALLY AND REGULARLY
RELEASED.
Q. What is the meaning of fiscal autonomy and why has it been granted to
the Judiciary?
A. The second sentence of Section 3 states the meaning of fiscal autonomy:
"Appropriations for the Judiciary may not be reduced by the legislature
below the amount appropriated for the previous year and, after
approval, shall be automatically and regularly released." Fiscal
autonomy is granted to the Supreme Court in order to strengthen its
independence.
SEC. 4. (1) THE SUPREME COURT SHALL BE COMPOSED OF A CHIEF
JUSTICE AND
FOURTEEN ASSOCIATE JUSTICES. IT MAY SIT EN BANC OR IN
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 333
ITS DISCRETION, IN DIVISIONS OF THREE, FIVE, OR SEVEN MEMBERS.
ANY VACANCY SHALL BE
FILLED WITHIN NINETY DAYS FROM THE OCCURRENCE THEREOF.
(2) ALL CASES INVOLVING THE CONSTITUTIONALITY OF A TREATY,
INTERNATIONAL OR EXECUTIVE AGREEMENT, OR LAW, WHICH SHALL BE
HEARD BY THE
SUPREME COURT EN BANC, AND ALL OTHER CASES WHICH UNDER THE
RULES OF COURT ARE
REQUIRED TO BE HEARD EN BANC, INCLUDING THOSE INVOLVING THE
CONSTITUTIONALITY,
APPLICATION, OR OPERATION OF PRESIDENTIAL DECREES,
PROCLAMATIONS, ORDERS,
INSTRUCTIONS, ORDINANCES, AND OTHER REGULATIONS, SHALL BE
DECIDED WITH THE
CONCURRENCE OF A MAJORITY OF THE MEMBERS WHO ACTUALLY
TOOK PART IN THE
DELIBERATIONS ON THE ISSUES IN THE CASE AND VOTED THEREON.
(3) CASES OR MATTERS HEARD BY A DIVISION SHALL BE DECIDED
OR RESOLVED WITH THE CONCURRENCE OF A MAJORITY OF THE
MEMBERS WHO ACTUALLY
TOOK PART IN THE DELIBERATIONS ON THE ISSUES IN THE CASE AND
VOTED THEREON, AND IN
NO CASE, WITHOUT THE CONCURRENCE OF AT LEAST THREE OF SUCH
MEMBERS. WHEN THE
REQUIRED NUMBER IS NOT OBTAINED, THE CASE SHALL BE DECIDED EN
BANC! PROVIDED, THAT
NO DOCTRINE OR PRINCIPLE OF LAW LAID DOWN BY THE COURT IN A
DECISION RENDERED EN
BANC OR IN DIVISION MAY BE MODIFIED OR REVERSED EXCEPT BY THE
COURT SITTING EN BANC.
Q. May Congress increase or decrease the composition of the Supreme
Court?
A. No.
Q. How many members constitute a division?
A. The Court is free to create divisions of three, five, or seven. The purpose of
allowing up to five divisions within one Court is to enable the Court to
dispose of cases more speedily.
Q. Are divisions separate and distinct courts?
A. No. Actions considered in any of these divisions and decisions rendered
therein are, in effect, by the same Tribunal. Decisions or resolutions of
a division of the court are not inferior to an en banc decision. People v.
Dy, G.R. Nos. 115236-37, January 16, 2003.
Q. How many justices are needed to constitute a quorum when the Court sits
en banc and there are only fourteen justices in office?
334 THE 1987 PHILIPPINE CONSTITUTION: Sees. 3-4
A COMPREHENSIVE REVIEWER
A. In People v. Ebio, G.R. No. 147750, September 29, 2004, since it was a
capital criminal case, the Court said that there should be eight.
Q. What cases must be heard en banc?
A. By command of the Constitution, the following cases must be heard en
banc: (1) all cases involving the constitutionality of a treaty,
international or executive agreement, or law; (2) all cases which under
the Rules of Court may be required to be heard en banc; (3) all cases
involving the constitutionality, application or operation of presidential
decrees, proclamations, orders, instructions, ordinances, and other
regulations; (4) cases heard by a division when the required majority in
the division is not obtained; (5) cases where the Supreme Court
modifies or reverses a doctrine or principle of law previously laid down
either en banc or in division;(6) administrative cases involving the
discipline or dismissal of judges of lower courts (Section 11); (c) election
contests for President or Vice-President.
Q. How many votes are required to decide a case heard en banc? in division?
A. When the Supreme Court sits en banc cases are decided by the
concurrence of "of a majority of the members who actually took part in
the deliberations on the issues in the case and voted thereon." Thus,
since a quorum of the Supreme Court is eight, the votes of at least five
are needed and are enough, even if it is a question of constitutionality.
This is a liberalization of the old rule which required a qualified majority
of a definite number. Moreover, those who did not take part in the
deliberation do not have the right to vote.
Q. How many votes are needed to decide a case in division?
A. "Cases or matters heard by a division shall be decided or resolved with the
concurrence of a majority of the Members who actually took part in
the deliberations on the issues in the case and voted thereon, and in no
case, without the concurrence of at least three of such Members.
When the required number is not obtained, the case shall be decided
en banc"
Q. Are decisions of a division of the Supreme Court appealable to the en
banc'?
A- No. Decisions or resolutions of a division of the court, when concurred in
by a majority of its members who actually took
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 335
part in the deliberations on the issues in a case and voted thereon is a
decision or resolution of the Supreme Court itself. The Supreme Court
sitting en banc is not an appellate court vis-a-vis its Divisions, and it
exercises no appellate jurisdiction over the latter. Each division of the
Court is considered not a body inferior to the Court en banc, and sits
veritably as the Court en banc itself. The only constraint is that any
doctrine or principle of law laid down by the Court, either rendered en
banc or in division, may be overturned or reversed only by the Court
sitting en banc" Firestone Ceramics v. Court of Appeals, G.R. No.
127245, June 28, 2000.
Q. When the required number cannot be obtained in a division of three, who
decides the case?
A. "A careful reading of the above constitutional provision reveals the
intention of the framers to draw a distinction between cases, on the
one hand, and matters, on the other hand, such that cases are 'decided'
while matters, which include motions, are 'resolved.' Otherwise put,
the word 'decided' must refer to 'cases;' while the word 'resolved' must
refer to 'matters," applying the rule of reddendo singula singulis. This is
true not only in the interpretation of the above-quoted Article VIII,
Section 4(3), but also of the other provisions of the Constitution where
these words appear. [See Article VIII, Section 15; Article XVIII, Section 12
to 14.]
"Cases" are controversies brought to the Court for the first time.
Where the required number of votes is not obtained, there is no
decision. The only way to dispose of the case then is to refer it to the
Court en banc. On the other hand, if a case has already been decided by
the division and the losing party files a motion for reconsideration, the
failure of the division to resolve the motion because of a tie in the
voting does not leave the case undecided. Quite plainly, if the voting
results in a tie, the motion for reconsideration is lost. The assailed
decision is not reconsidered and must therefore be deemed affirmed.
Such was the ruling of this Court in the Resolution of November 17,
1998. Fortich v. Corona, G.R. No. 131457, August 19,1999.
SEC. 5. THE SUPREME COURT SHALL HAVE THE FOLLOWING POWERS:
(1) EXERCISE ORIGINAL JURISDICTION OVER CASES AFFECTING
AMBASSADORS, OTHER
PUBLIC MINISTERS AND CONSULS, AND OVER PETITIONS
FOR CERTIORARI PROHIBITION, MANDAMUS, QUO WARRANTO, AND
HABEAS
CORPUS.
336 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
(2) REVIEW, REVISE, REVERSE, MODIFY, OR AFFIRM ON APPEAL OR
CERTIORARI, AS THE LAW OR THE RULES OF COURT MAY PROVIDE,
FINAL JUDGMENTS AND
ORDERS OF LOWER COURTS IN:
(a) ALL CASES IN WHICH THE CONSTITUTIONALITY OR VALIDITY OF ANY
TREATY, INTERNATIONAL OR EXECUTIVE AGREEMENT, LAW,
PRESIDENTIAL DECREE,
PROCLAMATION, ORDER, INSTRUCTION, ORDINANCE, OR REGULATION IS
IN QUESTION.
(b) ALL CASES INVOLVING THE LEGALITY OF ANY TAX, IMPOST,
ASSESSMENT,
OR TOLL, OR ANY PENALTY IMPOSED IN RELATION THERETO.
(c) ALL CASES IN WHICH THE JURISDICTION OF ANY LOWER
COURT IS IN ISSUE.
(d) ALL CRIMINAL CASES IN WHICH THE PENALTY IMPOSED IS
SECLUSION
PERPETUA OR HIGHER.
(e) ALL CASES IN WHICH ONLY AN ERROR OR QUESTION OF
LAW IS INVOLVED.
(3) ASSIGN TEMPORARILY JUDGES OF LOWER COURTS TO OTHER
STATIONS AS PUBLIC INTEREST MAY REQUIRE. SUCH TEMPORARY
ASSIGNMENT SHALL NOT
EXCEED SIX MONTHS WITHOUT THE CONSENT OF THE JUDGE
CONCERNED.
(4) ORDER A CHANGE OF VENUE OR PLACE OF TRIAL TO AVOID A
MISCARRIAGE OF JUSTICE.
(5) PROMULGATE RULES CONCERNING THE PROTECTION AND
ENFORCEMENT OF CONSTITUTIONAL RIGHTS, PLEADING, PRACTICE,
AND PROCEDURE IN ALL
COURTS, THE ADMISSION TO THE PRACTICE OF LAW, THE INTEGRATED
BAR, AND LEGAL
ASSISTANCE TO THE UNDERPRIVILEGED. SUCH RULES SHALL PROVIDE
A SIMPLIFIED AND
INEXPENSIVE PROCEDURE
FOR THE SPEEDY DISPOSITION OF CASES, SHALL BE UNIFORM FOR ALL
COURTS OF THE SAME
GRADE, AND SHALL NOT DIMINISH, INCREASE, OR MODIFY SUBSTANTIVE
RIGHTS. RULES OF
PROCEDURE OF SPECIAL COURTS AND QUASI-JUDICIAL BODIES SHALL
REMAIN EFFECTIVE UNLESS
DISAPPROVED BY THE SUPREME COURT.
(6) APPOINT ALL OFFICIALS AND EMPLOYEES OF THE JUDICIARY IN
ACCORDANCE WITH THE CLVIL SERVICE LAW.
SEC. 6. THE SUPREME COURT SHALL HAVE ADMINISTRATIVE
SUPERVISION OVER ALL
COURTS AND THE PERSONNEL THEREOF.
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 337
Specific powers of the court
Q. How would you classify the powers of the Supreme Court under Section 5?
A. Section 5(1) and (2) are the judicial powers, and Section 5(3) to (6) are
auxiliary administrative powers.
Q. May Congress diminish the jurisdiction of the Supreme Court?
A. Congress may diminish the merely statutory jurisdiction of the Supreme
Court but it may not diminish the jurisdiction granted by the
Constitution itself.
Judicial review
Q. What is the power of judicial review?
A. It is the Supreme Court's power to declare a law, treaty, international or
executive agreement, presidential decree, proclamation, order,
instruction, ordinance, or regulation unconstitutional. This power is
explicitly granted by Section 5(2), (a) and (b).
Q. Does this make the Court superior to Congress and the President?
A. No. It shows the superiority of the Constitution over all.
Q. What are the essential requisites for the exercise of the power of judicial
review?
A. It is now firmly established that the power of judicial review is merely an
aspect of judicial power. Hence, the first requisite for the exercise of
judicial review is that there must be before the court an actual case
calling for the exercise of judicial power. The question before it must be
ripe for adjudication, that is, the governmental act being challenged
must have had an adverse effect on the person challenging it. PACU v.
Secretary of Education, 97 Phil. 806, 810 (1955); Tan v. Macapagal, 43
SCRA 678 (1972). Second, the person challenging the act must have
"standing" to challenge, that is, he must have "a personal and
substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement." People v. Vera, 65
Phil. 58, 89 (1937).
The above are the essential requisites for judicial review. In addition to
these essential requisites, jurisprudence has also
338 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
evolved other auxiliary rules. Thus, it was pointed out in People v. Vera,
65 Phil. 56 (1937) that "as a general rule, the question of
constitutionality must be raised at the earliest opportunity, so that if
not raised by the pleadings, ordinarily it may not be raised at the trial,
and if not raised in the trial court, it will not be considered on appeal. . .
But we must state that the general rule admits of exceptions. Courts, in
the exercise of sound discretion, may determine the time when a
question affecting constitutionality of a statute should be presented."
Id. at 88. Another rule is that the court will not touch the issue of
unconstitutionality unless it really is unavoidable or is the very lis mota.
Sotto v. Commission on Elections, 76 Phil. 516, 522 (1946).
Q. The validity of the creation of the City of Makati is challenged
on the ground that it will allow the incumbent Mayor to extend his
term beyond he three terms allowed by the Constitution. Decide.
A. The challenge is premature considering that elections would
not be until three years later. Mariano, Jr. v. Commission on Elections,
G.R. Nos. 118577 & 118627, March 7,1995.
Q. Dumlao challenges the constitutionality of Section 4 of B.P.
Big. 52 disqualifying certain types of retired public officials from
candidacy. No one, however, has challenged the qualification of
Dumlao. Igot challenges the validity of the provision which disqualifies
those against whom charges for subversion or similar crimes have
been filed. No such charge, however, has been filed against Igot,
although he claims that this is a taxpayer's suit. Decide.
A. Clearly, Dumlao's petition presents merely a hypothetical case,
not a case or controversy. Hence, this is not a proper subject for judicial
review. Nor is Igot's. Moreover, Igot's claim that this is a taxpayer's suit
is not proper because his challenge is not against the holding of
elections with consequent expenditure of funds. Dumlao v. COMELEC,
95 SCRA 392, 401, 403 (L-52245, January 22, 1980.) [Because of
"paramount public interest," however, the Court ruled on the
substantive issues.]
Q. Is the rule that the Court will not decide a question of law
when there is no actual case or controversy an absolute rule?
A. No. Like all procedural rules exceptions to it may be dictated
when, for instance, lack of clarity may be creating a great of confusion
detrimental to public order, as in this case, the case of the confiscation
of license plates and drivers licenses for traffic violations. Solicitor
General v. Metropolitan Manila Authority, G.R. No. 102782, December
11,1991.
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 339
Standing
Q. Explain the concept of standing?
A. A person has "standing" to challenge the validity of governmental act only
if he has "a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its
enforcement." People v. Vera, 65 Phil. 56, 89 (1937); Macasiano v.
National Housing Authority, 224 SCRA 236 (1993). Thus in Joya v. PCGG,
225 SCRA 568 (1993), art lovers seeking to enjoin the auction sale of
European artworks and silverware, part of the objects recovered by the
government after the ouster of President Marcos, on the ground that
these formed part of the Filipino cultural heritage were deemed
without standing to sue because they neither owned the properties
involved nor had they been purchased with public funds.
What appears in the jurisprudence on "standing" is that it is not
only a rule that assures concrete adverseness which can sharpen the
presentation of issues but it also involves considerations of policy
related to judicial self-restraint. Kilosbayan v. Morato, G.R. No. 118910,
July 17,1995.
Q. Put differently, when will a citizen be allowed to raise a constitutional
question?
A. Only when he can show the following: (1) "that he has personally suffered
some actual or threatened injury as a result of the allegedly illegal
conduct of government;" (2) "the injury is fairly traceable to the
challenged action;" and (3) "the injury is likely to be redressed by a
favorable action." Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. Commission on Elections, G.R. No. 132922, April
21,1998.
Q. Is the rule inflexible?
A. No. Jurisprudence allows what it calls a "liberal approach" to standing.
When the subject in issue is of transcendental interest to the public, the
Court entertains the suit even if those suing do not have a personal and
direct interest such that they are stand to suffer harm. Thus, for
instance, Kilosbayan v. Guingona, Jr., 232 SCRA 110, 137-138 (1993),
Kilosbayan was allowed to challenge the validity of the lotto contract of
the Philippine Charity Sweepstakes on the argument that
340 THE 1987 PHILIPPINE CONSTITUTION:
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the case was of transcendental importance. Likewise, when President
Estrada ordered the deployment of the Philippine Marines (the
Marines) to join the Philippine National Police (the "PNP") in visibility
patrols around the metropolis, the Court made constitutional
pronouncements even though those who brought the suit did not
stand to suffer specific injury to themselves. IBP v. Zamora et al, G.R.
No. 141284, August 15, 2000. "In language too lucid to be
misunderstood, this Court has brightlined its liberal stance on a
petitioner's locus standi where the petitioner is able to craft an issue of
transcendental significance to the people." Tatad v. Secretary of the
Department of Energy, G.R. Nos. 124360 and 127867, November
5,1997.
Q. The President negotiated and the Senate ratified the Visiting Forces
Agreement with the United States. The constitutionality of the
agreement is challenged by groups which included private individuals
and organizations, some Senators and members of the house of
Representatives. Do they have standing?
A. Petitioners failed to show, to the satisfaction of this Court, that they have
sustained, or were in danger of sustaining any direct injury as a result
of the enforcement of the VFA. As taxpayers, petitioners did not
establish that the VFA involved the exercise by Congress of its taxing or
spending powers. Notwithstanding, in view of the paramount
importance and the constitutional significance of the issues raised in
the petitions, this Court, in the exercise of its sound discretion, brushed
aside the procedural barrier and took cognizance of the petitions.
Bayan v. Executive Secretary, G.R. No. 138570, October 10, 2000.
Q. Petitioners challenge the validity of Executive Order 185 placing the NLRC
under the supervision of the Secretary of Labor as being in derogation
of separation of powers. Decide.
A. Petitioners have no standing. The EO simply establishes a relation
between two offices both under the control of the President. The
rights of petitioner workers are unaffected. Automotive Industry
Workers v. Executive Secretary, G.R. No. 157509, January 18,2005.
NOTE: The general rules on standing admit of several
exceptions such as the over breadth doctrine, taxpayer suits,
third party standing and, especially in the Philippines, the
doctrine of transcendental importance. In White Light Corp v.
City of Manila, G.R. No. 122846, January 20, 2009, the Court
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 341
recognized "third party standing," a concept explained in Powers
v. Ohio thus "We have recognized the right of litigants to bring
actions on behalf of third parties, provided three important
criteria are satisfied: the litigant must have suffered an 'injuryin-
fact,' thus giving him or her a "sufficiently concrete interest" in
the outcome of the issue in dispute; the litigant must have a
close relation to the third party, and there must exist some
hindrance to the third party's ability to protect his or her own
interests." In White Light the Court said that it was clear that the
business interests of the motel operators were likewise injured
by the Ordinance prohibiting "short term." They rely on the
patronage of their customers for their continued viability which
appears to be threatened by the enforcement of the Ordinance.
The relative silence in constitutional litigation of such special
interest groups in our nation such as the American Civil Liberties
Union in the United States may also be construed as a hindrance
for customers to bring suit. American jurisprudence is replete
with examples where parties-in-interest were allowed standing
to advocate or invoke the fundamental due process or equal
protection claims of other persons or classes of persons injured
by state action.
Taxpayer suit
Q. Can a taxpayer have standing to sue?
A. Yes, in cases involving expenditure of public funds, if it can be shown (1)
"that he has a sufficient interest in preventing the illegal expenditure of
money raised by taxation;" and (2) "that he will sustain a direct injury as
a result of the enforcement of the questioned statute." Pascual v.
Secretary of Public Works, 110 Phil. 331 (1960);Telecommunications
and Broadcast Attorneys of the Philippines, Inc. v. Commission on
Elections, G.R. No. 132922, April 21,1998, 289 SCRA 337,343.
Q. The PCCR was created by the President by virtue of E.O. No.
43, as amended by E.O. No. 70. Under section 7 of E.O. No. 43, the
amount of P3 million is "appropriated" for its operational expenses "to
be sourced from the funds of the Office of the President." Can a
taxpayer challenge the validity of the President's action?
A. No. A taxpayer is deemed to have the standing to raise a
constitutional issue when it is established that public funds have been
disbursed in alleged contravention of the law or the Constitution. Thus,
a taxpayer's action is properly brought only when there is an exercise
by Congress of its taxing or spending power. The appropriations for the
PCCR were authorized by the President, not by Congress. "In a
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strict sense, appropriation has been defined 'as nothing more than the
legislative authorization prescribed by the Constitution that money
may be paid out of the treasury,' while appropriation made by law
refers to the act of the legislature setting apart or assigning to a
particular use a certain sum to be used in the payment of debt or dues
from the State to its creditors.'" The funds used for the PCCR were
taken from funds intended for the Office of the President, in the
exercise of the Chief Executive's power to transfer funds pursuant to
Section 25 (5) of article VI of the Constitution. Gonzalez v. Narvasa, G.R.
No. 140835, August 14,2000.
Q. The authority of Pagcor to run jai alai or to subcontract it is
challenged by a group of members of Congress on the ground that
Pagcor has no franchise. Pagcor assails the locus standi of the petitioner
members of Congress on the ground that the integrity of Congress is
not involved nor will public money be used. Decide.
A. True, locus standi of petitioners cannot be anchored on their
position taxpayers. However, in line with the liberal polity of this Court
on locus standi when a case involves an issue of overarching
significance to our society, as members of the House of
Representatives, petitioners have legal standing to file the petitions at
bar. In the instant cases, petitioners complain that the operation of
jai-alai constitutes an infringement by PAGCOR of the legislature's
exclusive power to grant franchise. To the extent that the powers of
Congress are impaired, so is the power of each member thereof, since
his office confers a right to participate in the exercise of the powers of
that institution, so petitioners contend. The contention commands our
concurrence for it is now settled that a member of the House of
Representatives has standing to maintain inviolate the prerogatives,
powers and privileges vested by the Constitution in his office.
Moreover, the instant petition is of transcendental importance to the
public. Relying on the first Kilosbayan case the Court said that the
issues it raised are of paramount public interest and of a category even
higher than those involved in many of the aforecited cases. The
ramifications of such issues immeasurably affect the social, economic,
and moral well-being of the people. Sandoval v. PAGCOR, G.R. No.
138982, November 29, 2000.
Q. What is the effect of the declaration of unconstitutionality of a statute?
A. The Supreme Court has rejected the view that an unconstitutional act
confers no rights, imposes no duties, and affords no protection
whatsoever. Instead, the Court has adopted the view that before an
act is declared unconstitutional it is an "operative fact" which can be
the source of rights and duties.
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 343
This recognition of an unconstitutional statute as an "operative
fact" before it is declared unconstitutional was recently applied in de
Agbayani v. Philippine National Bank, 38 SCRA 429 (1971), where the
period before a moratorium law was declared unconstitutional was not
allowed to toll the prescriptive period of the right to foreclose a
mortgage.
Q. May inferior courts exercise the power of judicial review?
A. Since the power of judicial review flows from judicial power and since
inferior courts are possessed of judicial power, it may fairly be inferred
that the power of judicial review is not a power exclusive to the
Supreme Court. This same conclusion may be inferred from Article X,
Section 5(2) which confers on the Supreme Court appellate jurisdiction
over judgments and decrees of inferior courts in all cases in which the
constitutionality or validity of any treaty, international agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question. As the Court said in J.M. Tuason and Co. v.
Court of Appeals, 3 SCRA 696, 703-704 (1961): "Plainly the Constitution
contemplates that the inferior courts should have jurisdiction in cases
involving constitutionality of any treaty or law, for it speaks of appellate
review of final judgments of inferior courts in cases where such
constitutionality happens to be in issue."
Considering, however, the majority vote which is required for the
Supreme Court to declare a law unconstitutional, lower courts must
keep in mind "that a becoming modesty of inferior courts demands
conscious realization of the position they occupy in the interrelation
and operation of the integrated judicial system of the nation." People v.
Vera, 65 Phil. 56 (1937), cited in Vera v. Area, 28 SCRA 351, 361-2
(1969). Moreover, while a declaration of unconstitutionality made by
the Supreme Court constitutes a precedent binding on all, a similar
decision of an inferior court binds only the parties in the case.
Political questions
Q. It is an established rule that courts have no jurisdiction to pass upon
"political questions." What are "political questions?"
A. It is easy enough to define political questions in the abstract. As Justice
Concepcion said in Taiiada v. Cuenco, L-10520, February 28, 1965,
political questions are "those questions
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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." But the difficult question which the Court is frequently
called upon to answer is whether a question is one "in regard to which
full discretionary authority has been delegated to the legislative or
executive branch of the government." Lengthily argued majority
opinions, concurrences, and dissents characterize the cases where the
political questions doctrine has been invoked. Baker v. Corr, 369 U.S.
186 (1962) has attempted to formulate some guidelines for determining
whether a question is political or not:
Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a political department; or a lack of
judicially discoverable and manageable standards for resolving it;
or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches
of government; or an unusual need for unquestioning adherence
to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question. Id. at 217.
Q. Is everything in the above quotation from Baker v. Carr applicable to
Philippine jurisprudence?
A. No. It is submitted that, because of the duty of the court to determine the
existence of grave abuse of discretion, the question is not political even
when there is "an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on one
question."
Q. The new Constitution defines judicial power as including "the duty of
courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable and to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
Government." Has this in effect nullified the long standing doctrine on
political questions as being beyond the pale of judicial power?
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 345
No. This partial definition of judicial power made by the new
Constitution has for its purpose to emphasize that when "grave abuse
of discretion" is committed even by the highest executive authority, the
judiciary should not hide behind the political questions doctrine.
Q. Was the validity of the President's ban on the return of Mr.
Marcos a political question?
A. No. The Supreme Court has the power "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.'' Marcos v. Manglapus, et al., G.R. No. 88211, September
15,1989.
Q. Was there abuse of discretion in the ban on Mr. Marcos?
A. No. From the pleadings, oral arguments, and briefings in
chambers we find that there was factual basis for the decision such
that the decision was not made arbitrarily. Marcos v. Manglapus, et al.,
G.R. No. 88211, September 15,1989. (The decision was 8-7.)
However, the Court added: "This case is unique. It should not
create a precedent, for the case of a dictator forced out of office and
into exile after causing twenty years of political, economic and social
havoc in the country and who within the short space of three years
seeks to return, is in a class by itself." Besides, the ban can be justified
also under the "faithful execution clause" of Article VII, Section 17.
Q. Petitioner was a member of the Commission on Appointments
representing the Liberal Party. With the organization of the LDP
(Laban ng Demokratikong Pilipino), some congressional members
belonging to the Liberal Party resigned from said party to join the LDP.
When the Commission on Appointments was reorganized, petitioner
was replaced by an LDP representative.
Petitioner contends that the organization of the LDP cannot
affect the composition of the Commission on Appointments because
LDP is not a registered party and has not yet shown the stability of a
party. Does the situation present a "political question?"
A. The question is justiciable. The issue is one of legality not of
wisdom. The ascertainment of the manner of forming the Commission
on Appointments is distinct from the discretion of the parties to
designate their representatives. And even if the question were political
in nature, it would still come under the expanded power of review in
Article VIII, Section 1. Daza v. Singson, G.R. No. 86344, December
21,1989.
346 THE 1987 PHILIPPINE CONSTITUTION:
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Court review of capital sentences
Q. In mandating mandatory review of the Supreme Court of death and other
sentences, does the Constitution thereby proscribe intermediate
review by the Court of Appeals?
A. No. While the Fundamental Law requires a mandatory review by the
Supreme Court of cases where the penalty imposed is reclusion
perpetua, life imprisonment, or death, nowhere, however, has it
proscribed an intermediate review. If only to ensure utmost
circumspection before the penalty of death, reclusion perpetua or life
imprisonment is imposed, the Court now deems it wise and
compelling to provide in these cases a review by the Court of Appeals
before the case is elevated to the Supreme Court. Where life and
liberty are at stake, all possible avenues to determine his guilt or
innocence must be accorded an accused, and no care in the evaluation
of the facts can ever be overdone. A prior determination by the Court
of Appeals on, particularly, the factual issues, would minimize the
possibility of an error of judgment.
If the Court of Appeals should affirm the penalty of death,
reclusion perpetua or life imprisonment, it could then render judgment
imposing the corresponding penalty as the circumstances so warrant,
refrain from entering judgment and elevate the entire records of the
case to the Supreme Court for its final disposition. People v. Mateo,
G.R. No. 147678-87, July 7, 2004
Q. Is there an automatic review of a trial court's decision convicting an
accused of a capital offense and sentencing him to reclusion perpetual
A. No. It is only in cases where the penalty actually imposed is death that the
trial court must forward the records of the case to the Supreme Court
[now Court of Appeals] for automatic review of the conviction. Where
the petitioner does not file a notice of appeal or otherwise indicate a
desire to appeal from the decision convicting him of murder and
sentencing him to reclusion perpetua, the decision became final and
unappealable. Garcia v. People, G.R. No. 106531, November 18,1999.
Auxiliary powers
Q. What are the auxiliary administrative powers of the Supreme Court?
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 347
A. See Section 5(3) to (6), and Sections 6 and 11.
Rule making
Q. How has the 1987 Constitution affected the rule-making power of the
Court?
A. The 1987 Constitution enhanced the rule making power of this Court
[under] Section 5(5), Article VIII. This Court for the first time was given
the power to promulgate rules concerning the protection and
enforcement of constitutional rights. [Hence the rule on amparo.] The
Court was also granted for the first time the power to disapprove rules
of procedure of special courts and quasi-judicial bodies. But most
importantly, the 1987 Constitution took away the power of Congress to
repeal, alter, or supplement rules concerning pleading, practice and
procedure. In fine, the power to promulgate rules of pleading, practice
and procedure is no longer shared by this Court with Congress, more so
with the Executive. Thus, for instance, 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. Baguio Market Vendors v. Judge,
G.R. No. 165922, February 26,2010.
Q. By what authority did the Court create the remedy of amparo?
A. Through its authority to promulgate rules for the protection of human
rights.
Q. What is the writ of amparo?
A. It is a is a remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful act or
omission of a public official or employee, or of a private individual or
entity. The writ shall cover extralegal killings and enforced
disappearances or threats thereof
Q. What is the writ of habeas data?
A. It is a remedy available to any person whose right to privacy in life, liberty
or security is violated or threatened by an unlawful act or omission of a
public official or employee or of a private individual or entity engaged
in the gathering, collecting or storing of data or information regarding
the person, family, home and correspondence of the aggrieved party.
The coverage of both writs is limited to the protection of rights to life,
liberty
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and security. And the writs cover not only actual but also threats of
unlawful acts or omissions.
Q. What is the writ of kalikasari?
A. It is a "remedy available to a natural or juridical person, entity authorized
by law, people's organization, non-governmental organization, or any
public interest group accredited by or registered with any government
agency, on behalf of persons whose constitutional right to a balanced
and healthful ecology is violated, or threatened with violation 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 provinces."
Q. Rules of Court require deposit of 15% of the value of the property before
an expropriator can enter. Can Congress amend this?
A. R.A. 8974, however, creates an exception in expropriation cases involving
public works and requires full payment before entry in public works
projects. In answering the question whether Congress may amend
Rules of Court, the Court said that since expropriation involves both
procedural and substantive matters, the substantive aspect is always
subject to legislation. Republic v. Gingoyon, G.R. No. 166429, February
1, 2006.
Q. May the Court suspend its Rules of Court?
A. The rule making power includes inherent power to suspend its own rules
in particular cases in order to do justice. Lim, et al. v. CA, G.R. No.
149748, November 16,2006.
Q. What is the rule on the review of death penalty imposed?
A. Section 5 authorizes the Supreme Court of cases where the penalty
imposed is reclusion perpetua, life imprisonment, or death. However,
the Constitution has not proscribed an intermediate review. But to
ensure utmost circumspection before the penally of death, reclusion
perpetua or life imprisonment is imposed, the Rule now is that such
cases must be reviewed by the Court of Appeals before they are
elevated to the Supreme Court. People v. Mateo, G.R. No. 147678-87,
July 7,2004; People v. Lagua, G.R. No. 170565, January 31,2006.
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 349
Q. What are the limits on the power of the Supreme Court to promulgate
rules concerning pleading, practice, and procedure and admission to
the practice of law?
A. The Constitution imposes the following limitations and guidelines: (1) they
"shall provide a simplified and inexpensive procedure for the speedy
disposition of cases;" (2) they "shall be uniform for all courts of the
same grade;" (3) and they "shall not diminish, increase, or modify
substantive rights."
Q. What is the test to determine whether a rule prescribed by the Supreme
Court, for the practice and procedure of the lower courts, abridges,
enlarges, or modifies any substantive right?
A. "[Tlhe test is whether the rule really regulates procedure, that is the judicial
process for enforcing rights and duties recognized by substantive law
and for justly administering remedy and redress for a disregard or
infraction of them. If the rule takes away a vested right, it is not
procedural. If the rule creates a right such as the right to appeal, it may
be classified as a substantive matter; but if it operates as a means of
implementing an existing right then the rule deals merely with
procedure." Fabian v. Desierto, G.R. No. 129742, September 16,1998, p.
22 (citing 32 Am. Jur. 2d, Federal Practice and Procedure, §505, p. 936;
People v. Smith, 205 P. 2d 444).
Q. Applying the foregoing test, is the Supreme Court's transfer of pending
cases involving a review of decisions of the Office of the Ombudsman in
administrative actions to the Court of Appeals substantive or
procedural?
A. Procedural, "because it is not the right to appeal of an aggrieved party
which is affected by the law. The right has been preserved. Only the
procedure by which the appeal is to be made or decided has been
changed. The rationale for this is that no litigant has a vested right in a
particular remedy, which may be changed by substitution without
impairing vested rights, hence he can have non in rules of procedure
which relate to the remedy." Fabian v. Desierto, G.R. No. 129742,
September 16, 1998, p. 22-23 (citing Elm Park Iowa, Inc. v. Denniston,
et al., 280 NW 2d 262).
Q. The rule that, unless a reservation to file a separate civil action is reserved,
the civil case is deemed filed with the criminal case
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is challenged on the ground that the rule is about substantive rights.
A. Whether or not the two actions must be tried in a single proceeding is a
matter of procedure. Maniago v. Court of Appeals, G.R. No. 104392,
February 20,1996.
Q. Why does the new Constitution have a new provision empowering the
Court to promulgate rules concerning the protection and enforcement
of constitutional rights?
A. The provision is intended to emphasize that constitutional rights are not
merely declaratory but also enforceable.
Q. Section 90 of the Local Government Code of 1991 prohibits lawyers who
are members of a local legislative body to practice law. Is this an
infringement of the power of the Court to provide rules for pleading,
practice, and procedure and the practice of law.
A. No. The law must be seen not as a rule on the practice of law but as a rule
on the conduct of officials intended to prevent conflict of interest.
Javellana v. Department of Interior and Local Government, G.R. No.
102549, August 10,1992.
Q. After the Supreme Court has declared candidates for the bar
as having flunked the examinations, may Congress pass a law lowering
the passing mark and declaring the same candidates as having passed?
A. No. This would amount to not just amending the rules but
reversing the Court's application of an existing rule. In re Cunanan, 94
Phil. 534, 563 (1954).
Q. May the Supreme Court nullify the results of the Bar
Examination?
A. In 2003 the Court nullified the results of the exams on
Commercial Law when it was discovered that the Bar questions had
been leaked. Bar Matter No. 1222, February 4, 2004.
Q. May the Ombudsman investigate irregularities in the performance of a
judge independently of any administrative action taken by the
Supreme Court?
A. No. The power of administrative supervision of the Supreme Court
includes, according to Section 11, "the power to discipline judges of
lower courts, or order their dismissal by a vote
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 351
of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon." The
exclusivity of this power is jealously guarded by the Court. In Maceda v.
Vasquez, 221 SCRA 464 (1993), the Court ruled that the Ombudsman
may not investigate a judge independently of any administrative action
of the Supreme Court.
Likewise, the Ombudsman cannot determine for itself and by
itself whether a criminal complaint against a judge, or court employee,
involves an administrative matter. The Ombudsman is duty bound to
have all cases against judges and court personnel filed before it,
referred to the Supreme Court for determination as to whether an
administrative aspect is involved therein. Judge Caoibes, Jr. v.
Ombudsman, G.R. No. 132177, July 19,2001.
NOTE: Disciplinary authority over the Bar.
The disciplinary authority of the court over members of the
Bar is an aspect of its authority to admit to the Bar. The
desistance of a complainant or witnesses does not strip the Court
of jurisdiction because this is a matter of public interest and
concern. Garrido v. Garrido, AC. No. 6593, February 4, 2010.
NOTE: No affidavit of desistance can divest this Court of its
jurisdiction under Section 6, Article VIII of the Constitution to
investigate and decide complaints against erring officials and
employees of the judiciary. The issue in an administrative case is
not whether the complainant has a cause of action against the
respondent, but whether the employee has breached the norms
and standards of the courts. Neither can the disciplinary power of
this Court be made to depend on a complainant's whims. To rule
otherwise would undermine the discipline of court officials and
personnel. Escdlona v. Padillo, AM. No. P-10-2785, September 21,
2010.
Q. What is the effectivity of rules of procedure issued by special courts and
quasi-judicial bodies?
A. They are "effective unless disapproved by the Supreme Court."
Q. What is "bar integration?"
A. Integration of the Philippine Bar means the official unification of the entire
lawyer population of the Philippines. This requires membership and
financial support (in reasonable amount) of
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every attorney as conditions sine qua non to the practice of law and
the retention of his name in the Roll of Attorneys of the Supreme
Court. In re Integration of the Bar of the Philippines, 49 SCRA 25-27,
quoting Report of the Commission on Bar Integration, pp. 3-5,
November 30,1972.
Q. What are the purposes of an Integrated Bar?
A. The purposes of an Integrated Bar, in general, are:
(1) Assist in the administration of justice;
(2) Foster and maintain, on the part of its members, high
ideals of integrity, learning, professional competence, public service
and conduct;
(3) Safeguard the professional interests of its members;
(4) Cultivate among its members a spirit of cordiality and
brotherhood;
(5) Provide a forum for the discussion of law, jurisprudence,
law reform, pleading, practice, and procedure, and the relations of the
Bar to the Bench and to the public, and public information relating
thereto;
(6) Encourage and foster legal education;
(7) Promote a continuing program of legal research in
substantive and adjective law, and make reports and recommendations
thereon; and
(8) Enable the Bar to discharge its public responsibility
effectively. In re Integration of the Bar of the Philippines, quoting
Report of the Commission on Bar Integration, pp. 3-5, November
30,1972.
Q. A practicing attorney refuses to pay membership dues
for the Integrated Bar and is recommended for removal by the
Supreme Court from the list of attorneys. In reply the lawyer
contends that the provisions of the Rules of Court and of the IBP
By-Laws requiring membership in the Integrated Bar as a
requisite for the practice of law violate his constitutional rights of
association and property. Moreover, he contends that the
Supreme Court has no power to remove him from the list of
attorneys because such power is not judicial but administrative.
Comment.
A. (1) The practice of law is a privilege that is subject to
reasonable regulation by the State.
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 353
(2) Bar Integration is mandated by the Constitution.
(3) The lawyer is not being compelled to join the
association. Passing the bar examination already made him a
member of the bar. All that integration does is provide a national
organization for a well-defined but unorganized and incohesive
group of lawyers. The only compulsion to which he is subjected is
the payment of annual dues, and this is justified by the need for
elevating the quality of the legal profession.
(4) The Constitution vests in the SC plenary powers
regarding admission to the bar. In re Atty. Martial Edition, 84
SCRA 554 (3 August 1978).
Q. The Court had previously not allowed the respondent to
take his oath as a lawyer because of unbecoming conduct. After
submission of evidence to the satisfaction of the Court that he
had reformed, may he be admitted to the bar?
A. Yes. "This power to admit attorneys to the Bar is not . . .
an arbitrary and despotic one, to be exercised at the pleasure of
the court, or from passion, prejudice or personal hostility, but it is
the duty of the court to exercise and regulate it by a sound and
judicial discretion." Andres v. Cabrera, 127 SCRA 802 (SBC- 585,
February 29,1984).
SEC. 7. (1) No PERSON SHALL BE APPOINTED MEMBER OF THE
SUPREME COURT OR ANY LOWER COLLEGIATE COURT UNLESS HE IS A
NATURAL-BORN CITIZEN OF THE PHILIPPINES. A MEMBER OF THE
SUPREME
COURT MUST BE AT LEAST FORTY YEARS OF AGE, AND MUST HAVE
BEEN FOR
FIFTEEN YEARS OR MORE A JUDGE OF A LOWER COURT OR ENGAGED IN
THE
PRACTICE OF LAW IN THE PHILIPPINES.
(2) THE CONGRESS SHALL PRESCRIBE THE QUALIFICATIONS OF
JUDGES OF LOWER COURTS, BUT NO PERSON MAY BE APPOINTED
JUDGE
THEREOF UNLESS HE IS A CITIZEN OF THE PHILIPPINES AND A MEMBER
OF
THE PHILIPPINE BAR.
(3) A MEMBER OF THE JUDICIARY MUST BE A PERSON OF PROVEN
COMPETENCE, INTEGRITY, PROBITY, AND INDEPENDENCE.
Q. What are the qualifications of a Member of the Supreme Court?
A. He or she (1) must be a natural-born citizen of the Philippines, (2) must be
at least forty years of age, (3) must have been for fifteen years or more
a judge of a lower court or engaged in the practice of law in the
Philippines, and (4) a person of proven competence, integrity, probity,
and independence.
354 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Q. What are the qualifications of a Member of a lower collegiate court?
A. He or she must be (1) a natural-born citizen of the Philippines, (2) a
member of the Philippine Bar, (3) possessing the other qualifications
prescribed by Congress, and (4) must be a person of proven
competence, integrity, probity, and independence.
Q. What are the qualifications of judges of non-collegiate lower courts?
A. They must be (1) citizens of the Philippines, (2) members of the Philippine
Bar, (3) possessing the other qualifications prescribed by Congress, and
(4) persons of proven competence, integrity, probity, and
independence.
Q. May Congress alter the qualifications of Members of the Judiciary?
A. Congress may not alter the qualifications of Members of the Supreme
Court and the constitutional qualifications of other members of the
Judiciary. But Congress may alter the statutory qualifications of judges
and justices of lower courts.
NOTE: It behooves every prospective appointee to the
judiciary to apprise the appointing authority of every matter
bearing on his fitness for judicial office, including such circumstances
as may reflect on his integrity and probity. Thus the fact
that a prospective judge failed to disclose that he had been administratively
charged and dismissed from the service for grave
misconduct by a former President of the Philippines was used
against him. It did not matter that he had resigned from office
and that the administrative case against him had become moot
and academic. In re JBC v. Judge Quitain, JBC No. 013, August
22,2007.
Similarly, before one who is offered an appointment to the
Supreme Court can accept it, he must correct the entry in his
birth certificate saying that he is an alien. Kilosbayan u. Ermita,
G.R. No. 177721, July 3, 2007. This was the case of Justice
Gregory Ong of the Sandiganbayan who was being promoted to
the Supreme Court. (Ong, however, remains in the
Sandiganbayan.)
Q. How may the right of a judge to hold his position be contested?
A. A quo warranto proceeding is the proper legal remedy to determine the
right or title to the contested public office and
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 355
to oust the holder from its enjoyment. It is brought against the person
who is alleged to have usurped, intruded into, or unlawfully held or
exercised the public office, and may be commenced by the Solicitor
General or a public prosecutor, as the case may be, or by any person
claiming to be entitled to the public office or position usurped or
unlawfully held or exercised by another. A private person suing must
show a clear right to the contested office. Topacio v. Ong, G.R. No.
179895, December 15,2008.
SEC. 8. (1) A JUDICIAL AND BAR COUNCIL IS HEREBY CREATED UNDER
THE SUPERVISION
OF THE SUPREME COURT COMPOSED OF THE CHIEF JUSTICE AS EX-
OFFICIO CHAIRMAN, THE
SECRETARY OF JUSTICE,
AND A REPRESENTATIVE OF THE CONGRESS AS EX-OFFICIO MEMBERS,
A REPRESENTATIVE OF
THE INTEGRATED BAR, A PROFESSOR OF LAW, A
RETIRED MEMBER OF THE SUPREME COURT, AND A REPRESENTATIVE
OF
THE PRIVATE SECTOR.
(2) THE REGULAR MEMBERS OF THE COUNCIL SHALL BE APPOINTED BY
THE
PRESIDENT FOR A TERM OF FOUR YEARS WITH THE CONSENT OF THE
COMMISSION ON
APPOINTMENTS. OF THE MEMBERS FIRST APPOINTED,
THE REPRESENTATIVE OF THE INTEGRATED BAR SHALL SERVE FOR
FOUR YEARS, THE PROFESSOR
OF LAW FOR THREE YEARS, THE RETIRED JUSTICE FOR TWO YEARS,
AND THE REPRESENTATIVE OF
THE PRIVATE SECTOR FOR ONE YEAR.
(3) THE CLERK OF THE SUPREME COURT SHALL BE THE SECRETARY EX-
OFFICIO OF
THE COUNCIL AND SHALL KEEP A RECORD OF ITS PROCEEDINGS.
(4) THE REGULAR MEMBERS OF THE COUNCIL SHALL RECEIVE SUCH
EMOLUMENTS
AS MAY BE DETERMINED BY THE SUPREME COURT. THE SUPREME
COURT SHALL PROVIDE IN ITS
ANNUAL BUDGET THE APPROPRIATIONS FOR THE COUNCIL.
(5) THE COUNCIL SHALL HAVE THE PRINCIPAL FUNCTION OF
RECOMMENDING
APPOINTEES TO THE JUDICIARY. IT MAY EXERCISE SUCH
OTHER FUNCTIONS AND DUTIES AS THE SUPREME COURT MAY ASSIGN
TO IT.
Q. Does the representative of Congress come from the House or
from the Senate?
A. From either. This provision was formulated for a unicameral
Congress and no change was made when the final decision was for a
bicameral Congress. In practice, the two houses now work out a way of
sharing representation.
356 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-13
SEC. 9. THE MEMBERS OF THE SUPREME COURT AND JUDGES OF
LOWER COURTS SHALL BE APPOINTED BY THE PRESIDENT FROM A LIST
OF AT LEAST THREE
NOMINEES PREPARED BY THE JUDICIAL AND BAR COUNCIL FOR EVERY
VACANCY. SUCH
APPOINTMENTS NEED NO CONFIRMATION.
FOR THE LOWER COURTS, THE PRESIDENT SHALL ISSUE THE
APPOINTMENTS WITHIN
NINETY DAYS FROM THE SUBMISSION OF THE LIST.
Q. What is the principal function of the Judicial and Bar Council?
A. "The Council shall have the principal function of recommending
appointees to the Judiciary. It may exercise such other functions and
duties as the Supreme Court may assign to it."
Q. What is the composition of the Judicial and Bar Council?
A. The Judicial and Bar Council shall be composed of ex officio members and
regular members. The ex-offieio members are the Chief Justice as
ex-offieio Chairman, the Secretary of Justice, and a representative of
the Congress. The regular members are a representative of the
Integrated Bar, a professor of law, a retired member of the Supreme
Court, and a representative of the private sector.
Q. How are the regular members appointed?
A. They are appointed by the President with the consent of the Commission
on Appointments.
Q. What is the rationale behind the creation of the Judicial and Bar Council?
A. The Council was principally designed to eliminate politics from the
appointment of judges and justices. Thus, appointments to the
Judiciary do not have to go through a political Commission on
Appointments.
Q. How are members of the judiciary appointed? A. See
Section 9.
SEC. 10. THE SALARY OF THE CHIEF JUSTICE AND OF THE ASSOCIATE
JUSTICES OF THE
SUPREME COURT, AND OF JUDGES OF LOWER COURTS SHALL BE FIXED
BY LAW. DURING THEIR
CONTINUANCE IN OFFICE, THEIR
SALARY SHALL NOT BE DECREASED.
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 357
Q. Is the salary of justices and judges subject to income tax?
A. Although the new Constitution no longer contains the explicit provision in
Article XVI, Section 6, of the 1973 Constitution which made the salary
of all subject to income tax, it was the clear intention of the
Constitutional Commission that the rule would be the same under the
new Constitution, contrary to the ruling in Perfecto v. Meer, 85 Phil. 552
(1950) and Endencia v. David, 93 Phil. 696 (1953).
NOTE: Although this is not clear from the text of the 1987
Constitution, the clear intent of the Constitutional Commission
was to subject the salary of judges and justices to income tax.
Nitafan v. Commission of Internal Revenue, 152 SCRA 284 (1987).
SEC. 11. THE MEMBERS OF THE SUPREME COURT AND JUDGES
OF LOWER COURTS SHALL HOLD OFFICE DURING GOOD BEHAVIOR
UNTIL THEY REACH THE AGE
OF SEVENTY YEARS OR BECOME INCAPACITATED TO DISCHARGE THE
DUTIES OF THEIR OFFICE.
THE SUPREME COURT EN BANC SHALL HAVE THE POWER TO DISCIPLINE
JUDGES OF LOWER
COURTS, OR ORDER THEIR DISMISSAL BY A VOTE OF A MAJORITY OF
THE MEMBERS WHO
ACTUALLY TOOK PART IN THE DELIBERATIONS ON THE ISSUES IN THE
CASE AND VOTED THEREON.
Q. Must disciplinary cases be heard by the Supreme Court en banc?
A. The text of Section 11 yields the reading that decisions on disciplinary cases
must all be arrived at en banc. However, People v. Gacott, Jr., G.R. No.
116049, July 13, 1995, ruled, contrary to the inclusive language of the
text, that a decision en barn: is needed only when the penalty to be
imposed is dismissal of a judge, disbarment of a lawyer, suspension of
either for more than one year, or a fine exceeding 10,000 pesos. In
justifying this ruling, Justice Regalado, with the approval of the Court en
banc, relied on his recollection of a conversation with former Chief
Justice Roberto Concepcion who was the Chairman of the Committee
on the Judiciary of the 1986 Constitutional Commission of which
Regalado was also a member. Regalado admitted that there were no
records to support his recollection. He said, however, that to require
more would contravene the desire of the Constitution for a speedy
disposition of cases, which is one of the purposes for allowing the Court
to rule in divisions.
358 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Q. Does abolition of a judicial office violate security of tenure?
A. The Supreme Court, in Zandueta v. de la Costa, 66 Phil. 615
(1938) and Ocampo v. Secretary of Justice, 50 O.G. 147 (1955),
applied to abolition of courts the principle used relative to
the abolition of civil service positions. Abolition of office is
valid when done in good faith and not for political or personal
reasons. In such a situation, properly and logically speaking
there is no removal from office because a removal implies that
the office exists after the ouster.
Q. Batas Pambansa Big. 129, the Revised Judiciary Act, mandates
that justices and judges of inferior courts from the Court of
Appeals to municipal courts, except the Sandiganbayan and
the Court of Tax Appeals, unless appointed to inferior courts
established by such Act, would be considered separated
from the judiciary upon the completion of the reorganization
provided in the Act as declared by the President. The law is
challenged as violative of security of tenure guaranteed in the
Constitution, as arbitrary, and as undue delegation of powers
to the President. Petitioners, on the other hand, are challenged
as not possessing standing. Decide.
A. The Marcos Supreme Court decided this case thus:
On the issue of standing, one of the petitioners is a judge
and is therefore directly affected by the law; the rest have the
standing of taxpayers.
The claim of arbitrariness is belied by the prolonged study
and the number of hearings as well as the length of the Batasan
debates on the subject (which fill 590 pages of records).
On the main issue of security of tenure, it must be said
that what the act effects is the abolition of office, not removal
of officers. Abolition of office, when done in good faith, does not
violate security of tenure. The legislature's authority to abolish
courts inferior to the Supreme Court is undeniable. The act
is designed to remedy monumental problems in the Judiciary
which clearly exist. It is for the legislature to decide what
solutions to adopt.
On the issue of undue delegation, the Court pointed
out that the law was complete in itself and there were clear
standards for implementation by the President.
Sees. 3-4 ART. VIII - THE JUDICIAL DEPARTMENT 359
NOTE: Teehankee dissented on the following grounds:
(1) The express guarantee of security of tenure should prevail
over the power to abolish merely implied from the power to
create courts; (2) The Act achieves something short of abolition
and substantial change of the existing system; (3) The spirit
that ruled the enactment of the law was not so much a desire
for reorganization as such but to use reorganization as an
instrument for a mass purge.
Q. Does the above decision still hold in view of Section 2 which
says: "No law shall be passed reorganizing the Judiciary when
it undermines the security of tenure of its Members?"
A. The new provision does not affect the principle accepted in the
de la Liana case, namely that reorganization by itself need not
affect security of tenure.
Q. May justices or judges be removed by the President or by
impeachment?
A. Supreme Court Justices are removable only by impeachment.
(Article XI, Section 2)
Justices and judges of courts inferior to the Supreme
Court are removable only by the Supreme Court sitting en
banc.
Q. May a judge, while still in the Bench, present himself as a
congressional candidate?
A. No. Such a behavior constitutes misconduct. Vistan v. Nicolas,
A.M. MTJ-87-79, September 13,1991.
Q. What is the compulsory retirement age of Members of the
Judiciary?
A. Seventy years.
SEC. 12. THE MEMBERS OF THE SUPREME COURT AND OF OTHER
COURTS ESTABLISHED BY LAW SHALL NOT BE DESIGNATED TO ANY
AGENCY
PERFORMING QUASI-JUDICIAL OR ADMINISTRATIVE FUNCTIONS.
Q. Judge Manzano was designated member of the Ilocos Norte
Provincial Committee on Justice by the Provincial Governor.
The function of the Committee is to receive complaints and
make recommendations towards the speedy disposition of
cases of detainees, particularly those who are poor. May the
Judge accept the designation?
360 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
A. No. The committee performs administrative functions, that is, functions
which "involve the regulation and control over the conduct and affairs
of individuals for their own welfare and the promulgation of rules and
regulations to better carry out the policy of the legislature or such as are
devolved upon the administrative agency by the organic law of its
existence." In re Judge Manzano, 166 SCRA 246 (1988).
SEC. 13. THE CONCLUSIONS OF THE SUPREME COURT IN ANY
CASE SUBMITTED TO IT FOR DECISION EN BANC OR IN DIVISION SHALL
BE REACHED IN
CONSULTATION BEFORE THE CASE IS ASSIGNED TO A MEMBER FOR THE
WRITING OF THE
OPINION OF THE COURT. A CERTIFICATION TO THIS EFFECT SIGNED BY
THE CHIEF JUSTICE SHALL
BE ISSUED AND A COPY THEREOF ATTACHED TO THE RECORD OF THE
CASE AND SERVED UPON
THE PARTIES. ANY MEMBER WHO TOOK NO PART, OR DISSENTED, OR
ABSTAINED FROM A
DECISION OR RESOLUTION MUST STATE THE REASON THEREFOR. THE
SAME REQUIREMENTS
SHALL BE OBSERVED BY ALL LOWER COLLEGIATE COURTS.
Q. Will not the certification by the Chief Justice that he has assigned the case
to a Justice for writing the opinion expose such Justice to pressure?
A. No because the certification will not identify the Justice.
Q. What is the reason for the required explanation to be given by individual
Justices for their non-participation or abstention?
A. To encourage participation.
Q. What is the purpose of the certification required by Section 13?
A. "Its purpose is to ensure the implementation of the constitutional
requirement that decisions of the Supreme Court and lower collegiate
courts, such as the Court of Appeals, Sandiganbayan and Court of Tax
Appeals, are reached after consultation with the members of the court
sitting en banc or in division before the case is assigned to a member
thereof for decision-writing." Consing v. Court of Appeals, G.R. No.
78272, August 29,1989.
Q. What is the effect of absence of certification?
A. "The absence, however, of the certification would not necessarily mean
that the case submitted for decision had not been reached in
consultation before being assigned to one member
Sec. 14 ART. VIII - THE JUDICIAL DEPARTMENT 361
for the writing of the opinion of the Court since the regular performance
of duty is presumed [Sec. 5(m) of Rule 131, Rules of Court.]. The lack of
certification at the end of the decision would only serve as evidence of
failure to observe certification requirement and may be basis for holding
the official responsible for the omission to account therefor. [See I
Record of the Constitutional Commission 460] Such absence of
certification would not have the effect of invalidating the decision.
Consing v. Court of Appeals, G.R. No. 78272, August 29,1989.
SEC. 14. No DECISION SHALL BE RENDERED BY ANY COURT WITHOUT
EXPRESSING THEREIN CLEARLY AND DISTINCTLY THE FACTS AND THE
LAW ON WHICH IT IS BASED.
NO PETITION FOR REVIEW OR MOTION FOR RECONSIDERATION OF A
DECISION OF THE
COURT SHALL BE REFUSED DUE COURSE OR DENIED WITHOUT STATING
THE LEGAL BASIS
THEREFOR.
Q. What does the rule on "decisions" and "petitions" require?
A. "In G.R. No. 76355, Macario Tayamura, et al. v. Intermediate Appellate
Court, et al. (May 21, 1987), the Court clarified the constitutional
requirement [first paragraph] that a decision must express clearly and
distinctly the facts and law on which it is based as referring only to
decisions. Resolutions disposing of petitions fall under the constitutional
provision [second paragraph] which states that, TSTo petition for review
... shall be refused due course .... without stating the legal basis
therefore.' When the Court, after deliberating on a petition and any
subsequent pleadings, manifestations, comments, or motions decides
to deny due course to the petition and states that the questions raised
are factual or no reversible error in the respondent court's decision is
shown or for some other legal basis stated in the resolution, there is
sufficient compliance with the constitutional requirement.
"Minute resolutions need not be signed by the members of the
Court who took part in the deliberations of a case nor do they require
the certification of the Chief Justice. For to require members of the
Court to sign all resolutions issued would not only unduly delay the
issuance of its resolutions but a great amount of their time would be
spent on functions more properly performed by the Clerk of Court. .."
Borromeo v. Court of Appeals, G.R. 82273, June 1,1990.
362 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Q. The decision simply said:
MEMORANDUM DECISION
After a careful and thorough perusal, evaluation and study
of the records of this case, this Court hereby adopts by reference
the findings of fact and conclusions of law contained in the
decision of the Metropolitan Trial Court of Makati,. Metro Manila,
Branch 63 and finds that there is no cogent reason to disturb the
same.
WHEREFORE, judgment appealed from is hereby affirmed
in toto.
Is this sufficient compliance with Article VIII, Section 14?
A. The purpose of this requirement is to inform the person reading the
decision, and especially the parties, of how it was reached by the court
after consideration of the pertinent facts and examination of the
applicable laws. There are various reasons for this: (1) to assure the
parties that the judge studied the case; (2) to give the losing party
opportunity to analyze the decision and possibly appeal or, alternatively,
convince the losing party to accept the decision in good grace; (3) to
enrich the body of case law, especially if the decision is from the
Supreme Court. On the other hand, memorandum decisions can also
speed up the judicial process, a desirable thing and a concern of the
Constitution itself. The Memorandum in this case was made pursuant
to what is allowed by Section 40 of B.P Big. 129. Because of the above
considerations the rule that should be followed is that, where a
Memorandum decision is used, the decision adopted by reference must
be attached to the Memorandum for easy reference. Nonetheless, the
Memorandum decision should be sparingly used and used only where
the facts as in the main are accepted by both parties and in simple
litigations only. However, this ruling is not to be applied retroactively to
this case at bar. Francisco v, Permskul, G.R. No. 81006, May 12,1989.
Q. The proceedings in a military tribunal terminate with a simple guilty or not
guilty verdict. Does this violate the provision that a decision of a court of
record "shall clearly and distinctly state the facts and the law on which it
is based?"
A. No. A military commission is not a court of record within the meaning of
this Article. Moreover, the procedure followed in
Sec. 14 ART. VIII - THE JUDICIAL DEPARTMENT 363
the case, including the form the judgment takes, was given the seal of
approval by the Transitory Provisions of the 1973 Constitution.
Fernando, J. in Buscayno v. Enrile, 102 SCRA 7, 19-20 (January 15,1982).
Q. If a judge in his decision adopts the report of a Hearing
Examiner in a labor case, does he thereby violate Section 14 which
requires that every decision of a court shall clearly and distinctly state
the facts and the law on which it is based?
A. No. Alba Patio de Makati v. Alba Patio de Makati Employees,
128 SCRA 253 (March 16,1984).
SEC. 15. (1) ALL CASES OR MATTERS FILED AFTER THE EFFECITVITY OF
THIS
CONSTITUTION MUST BE DECIDED OR RESOLVED WITHIN TWENTYFOUR
MONTHS FROM DATE OF SUBMISSION FOR THE SUPREME COURT, AND,
UNLESS REDUCED
BY THE SUPREME COURT, TWELVE MONTHS FOR ALL LOWER
COLLEGIATE COURTS, AND THREE
MONTHS FOR ALL OTHER LOWER COURTS.
(2) A CASE OR MATTER SHALL BE DEEMED SUBMITTED FOR DECISION
OR
RESOLUTION UPON THE FILING OF THE LAST PLEADING, BRIEF, OR
MEMORANDUM REQUIRED BY
THE RULES OF COURT OR BY THE COURT ITSELF.
(3) UPON THE EXPIRATION OF THE CORRESPONDING PERIOD, A
CERTIFICATION TO TEDS EFFECT SIGNED BY THE CHIEF JUSTICE OR THE
PRESIDING JUDGE SHALL
FORTHWITH BE ISSUED AND A COPY THEREOF ATTACHED TO THE
RECORD OF THE CASE OR
MATTER, AND SERVED UPON THE PARTIES. THE CERTIFICATION SHALL
STATE WHY A DECISION OR
RESOLUTION HAS NOT BEEN RENDERED OR ISSUED WITHIN SAID
PERIOD.
(4) DESPITE THE EXPIRATION OF THE APPLICABLE MANDATORY
PERIOD, THE COURT, WITHOUT PREJUDICE TO SUCH RESPONSIBILITY AS
MAY HAVE BEEN
INCURRED IN CONSEQUENCE THEREOF, SHALL DECIDE OR RESOLVE
THE CASE OR MATTER
SUBMITTED THERETO FOR DETERMINATION, WITHOUT FURTHER DELAY.
Q. What rule applies to the Sandiganbayan?
A. The three (3) month period for deciding cases, not the twelve (12) month
period given to appellate courts, applies to the Sandiganbayan because
the Sandiganbayan is a trial court. Re: Problem of Delays before the
Sandiganbayan, A.M. No. 00- 8-05-SC, November 28,2001
364 THE 1987 PHILIPPINE CONSTITUTION: Sec. 16
A COMPREHENSIVE REVIEWER
Q. What effect does the lapse of the reglamentary period have on
cases filed after the effectivity of this Constitution?
A. The case remains undecided, but the court is enjoined to decide
the case or question without further delay.
Q. What effect does it have on the Justices or judges concerned?
A. It can be a ground for impeachment or other form of disciplinary
action if it is found to constitute culpable violation of the
Constitution. There is a growing number of cases where the
Court has disciplined judges of lower courts for their failure to
comply with the prescribed deadlines.
The Code of Judicial Conduct requires judges to decide
cases and matters pending before them within the period fixed
by law...Their failure to do so constitutes gross inefficiency and
warrants administrative sanctions... A heavy case load and a
poor health may partially excuse such lapses, only if the judges
concerned request reasonable extensions...In the present case,
however, the respondent made no effort to inform this Court of
his reasons for the delay, much less to request any extension...
Worse, he signed certifications that all cases and motions
pending before him had been attended to within the prescribed
period. Court Administrator v. Quinanola, A.M. No. MTJ-99-
1216, October 20, 1999; Edario v. Asdala, A.M. No. RTJ-06-
2007, December 6, 2010.
Q. What effect does the lapse of the reglamentary period have on
cases filed before the effectivity of this Constitution?
A. Answer to this is to be found in Sections 13 and 14 of Article
XVIII. Even when there is delay and no decision or resolution
is made within the prescribed period, there is no automatic
affirmance of the appealed decision. This is different from the
rule under Article X, Section 11(2) of the 1973 Constitution
which said that, in case of delay, the decision appealed from
was deemed affirmed. Sesbrefio v. CA, G.R. No. 161390, April
16,2008.
SEC. 16. THE SUPREME COURT SHALL, WITHIN THIRTY DAYS FROM
THE OPENING OF EACH REGULAR SESSION OF THE CONGRESS, SUBMIT
TO THE PRESIDENT AND THE CONGRESS AN ANNUAL REPORT ON THE
OPERATIONS AND ACTIVITIES OF THE JUDICIARY.
ARTICLE IX
CONSTITUTIONAL COMMISSIONS
A. COMMON PROVISIONS
SECTION 1. THE CONSTITUTIONAL COMMISSIONS, WHICH SHALL BE
INDEPENDENT, ARE THE CLVIL SERVICE COMMISSION, THE COMMISSION
ON ELECTIONS, AND THE COMMISSION ON AUDIT.
SEC. 2. No MEMBER OF A CONSTITUTIONAL COMMISSION SHALL,
DURING HIS TENURE, HOLD ANY OTHER OFFICE OR EMPLOYMENT.
NEITHER SHALL HE ENGAGE IN
THE PRACTICE OF ANY PROFESSION OR IN THE ACTIVE MANAGEMENT
OR CONTROL OF ANY
BUSINESS WHICH IN ANY WAY MAY BE AFFECTED BY THE FUNCTIONS OF
HIS OFFICE, NOR SHALL
HE BE FINANCIALLY INTERESTED, DIRECTLY OR INDIRECTLY, IN ANY
CONTRACT WITH, OR IN ANY
FRANCHISE OR PRIVILEGE GRANTED BY THE GOVERNMENT, ANY OF ITS
SUBDIVISIONS, AGENCIES,
OR INSTRUMENTALITIES, INCLUDING GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS
OR THEIR SUBSIDIARIES.
SEC. 3. THE SALARY OF THE CHAIRMAN AND THE COMMISSIONERS
SHALL BE FIXED BY LAW AND SHALL NOT BE DECREASED DURING
THEIR TENURE.
SEC. 4. THE CONSTITUTIONAL COMMISSIONS SHALL APPOINT THEIR
OFFICIALS AND EMPLOYEES IN ACCORDANCE WITH LAW.
Q. There are independent offices specifically authorized by the Constitution to
appoint their officials. Does this imply that their appointment will not be
subject to Civil Service Law and Rules?
A. No. Since all matters pertaining to appointments are within the realm of
expertise to the CSC, all laws, rules and regulations it issues on
appointments must be complied with. Ombudsman v. Civil service
Commission, G.R. No. 159940, February 16,2005.
365
366 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 5-6
SEC. 5. THE COMMISSION SHALL ENJOY FISCAL AUTONOMY. THEIR
APPROVED ANNUAL APPROPRIATIONS SHALL BE AUTOMATICALLY AND
REGULARLY RELEASED.
Q. Why have these commissions been made constitutional commissions?
A. The Civil Service Commission, Commission on Audit, and the Commission
on Elections perform key functions in the government. In order to
protect their integrity, they have been made constitutional bodies.
Q. The Civil Service Commission (petitioner) via the present petition for
mandamus seeks to compel the Department of Budget and
Management (respondent) to release the balance of its budget for fiscal
year 2002. CSC claims that the reason for the withholding was the ano
report, no release" policy. Budget Department, however, claims that
the failure to release the fund in full is because of shortage of funds.
Decide.
A. The "no report, no release" policy may not be validly enforced against
offices vested with fiscal autonomy. Being "automatic" connotes
something mechanical, spontaneous and perfunctory. It means that no
condition to fund releases to it may be imposed. Civil Service
Commission v. Department of Budget, G.R. No. 158791, July 22,2005.
SEC. 6. EACH COMMISSION EN BANC MAY PROMULGATE ITS OWN
RULES CONCERNING PLEADINGS AND PRACTICE BEFORE IT OR BEFORE
ANY
OF ITS OFFICES. SUCH RULES HOWEVER SHALL NOT DIMINISH,
INCREASE,
OR MODIFY SUBSTANTIVE RIGHTS.
Q. May the Supreme Court disapprove internal rules promulgated by the
Commissions?
A. The Constitutional Commissions are independent bodies. Hence, the
power of the Supreme Court over rules issued by quasi-judicial bodies
found in Article VIH, Section 5(5) does not apply to them. The Court,
however, in appropriate cases, may exercise ^judicial review" over
them.
Q. In case of conflict between a rule of procedure promulgated by a
Commission and a Rule of Court, which prevails?
A. The rule of the Commission should prevail if the proceeding is before a
Commission. But if the proceeding is before a court,
Sec. 7 ART. IX - CONSTITUTIONAL COMMISSIONS 367
A. Common Provisions
the Rule of Court prevails. Aruelo, Jr. v. Court of Appeals, October
20,1993.
Q. May Congress assume power to review rules promulgated by the
Commission?
A. No. By vesting itself with the powers to approve, review, amend, and revise
the Implementing Rules for The Overseas Absentee Voting Act of 2003,
Congress went beyond the scope of its constitutional authority.
Congress trampled upon the constitutional mandate of independence
of the COMELEC. Macalintal v. Comelec, G.R. No. 157013, July 10, 2003.
SEC. 7. EACH COMMISSION SHALL DECIDE BY A MAJORITY VOTE OF
ALL ITS MEMBERS ANY CASE OR MATTER BROUGHT BEFORE IT WITHIN
SIXTY
DAYS FROM THE DATE OF ITS SUBMISSION FOR DECISION OR
RESOLUTION.
A CASE OR MATTER IS DEEMED SUBMITTED FOR DECISION OR
RESOLUTION
UPON THE FILING OF THE LAST PLEADING, BRIEF, OR MEMORANDUM
REQUIRED BY THE RULES OF THE COMMISSION OR BY THE COMMISSION
ITSELF. UNLESS OTHERWISE PROVIDED BY THIS CONSTITUTION OR BY
LAW,
ANY DECISION, ORDER, OR RULING OF EACH COMMISSION MAY BE
BROUGHT
TO THE SUPREME COURT ON CERTIORARI BY THE AGGRIEVED PARTY
WITHIN
THIRTY DAYS FROM RECEIPT OF A COPY THEREOF.
Q. How must the Commissions arrive at their decisions?
A. Since the Commissions are collegial bodies, the decisions are made by the
body and not by individual members of the body. No individual member
may make a decision for the Commission. Much less may cases be
decided by subordinates of the Commission. Not even the Commission's
legal counsel may make a decision for the Commission. Orocio v.
Commission on Audit, G.R. No. 75959, August 31, 1992. Bustamante v.
Commission on Audit, 216 SCRA 134 (1992).
Q. How many votes are needed for the Commission en banc to reach a
decision?
A. In Cua v. Commission on Elections, 156 SCRA 582 (1987), the Court had
ruled that "the three members who voted to affirm the First Division
constituted a majority of the five members who deliberated and voted
thereon en banc and their decision is also valid under the aforecited
constitutional provision." This obviously contradicts Section 7 which
says: "Each Commission
368 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
shall decide by a majority vote of nH itft members any case or matter
brought before it within sixty days from the date of its submission for
decision or resolution." The provision of the Constitution is clear that it
should be the majority vote of all its members and not only those who
participated and took part in the deliberations. Estrella v. Comelec, G.R.
No. 160465, May 27, 2004.
Q. Commissioner Guiani, before his retirement from the
Comelec, might have signed a draft ponencia in a case. He vacated his
office without the final decision or resolution having been promulgated.
Does the ponencia have any value?
A. None. Before that resolution or decision is so signed and
promulgated, there is no valid resolution or decision to speak of. A final
decision or resolution becomes binding only after it is promulgated and
not before. Accordingly, one who is no longer a member of the
Commission at the time the final decision or resolution is promulgated
cannot validly take part in that resolution or decision. Much less could
he be the ponente of the resolution or decision. Ambil, Jr. v. Comelec,
G.R. No. 143398, October 25,2000.
Q. Two Commissioners who participated in the consideration of
the case retired before the promulgation of the Comelec decision but
after they cast their vote. Four Commissioners were left. (1) Should the
votes of the retirees be counted? (2) Is the 3-1 vote of the remaining
Commissioners a valid decision en banc.
A. (1) No. Their vote should be automatically withdrawn. There is
no decision until it is promulgated. (2) The remaining four
Commissioners constituted the total membership and constituted a
quorum. The vote of 3 is a majority vote of all. Dumayas, Jr. v. Comelec,
G.R. Nos. 141952-53, April 20,2001.
Q. How are decisions of Commissions reviewed?
A. Prior to June 1,1995, decisions could be reviewed only by the Supreme
Court by certiorari under Rule 65. Now, however, it is provided (1 June
1995) in Revised Administrative Circular No. 1-95, pursuant to R.A.
7902, that judgments or final orders of quasi-judicial agencies may be
appealed to the Court of Appeals within fifteen days from notice
thereof. The change is pursuant to Section 7 which says "Unless
otherwise provided by this Constitution or by law ..." Mateo v. Court
of Appeals, G.R. No. 113219, August 14,1995; Mathay, Jr. v. Commission
on Civil Service, G.R. No. 130214, August 9,1999.
Sec. 7 ART. IX - CONSTITUTIONAL COMMISSIONS
A. Common Provisions
369
Q. When certiorari to the Supreme Court is chosen, what is required?
A. Rule 65, §1 says that certiorari may be resorted to when there is no other
plain, speedy and adequate remedy. But reconsideration is a speedy and
adequate remedy. Hence, a case may be brought to the Supreme Court
only after reconsideration. As a consequence, in the case of decisions of
the Comelec, only decisions en banc may be brought to the Court by
certiorari since Article IX, C, 3 says that motions for reconsideration of
decisions shall be decided by the Commission en banc. Reyes v. Regional
Trial Court, G.R. No. 108886, May 5,1995.
NOTE: In ABS-CBN v. Comelec, 323 SCRA 611, the Supreme
Court dispensed with the need for reconsideration since elections
were already very close and there was no more time for another
speedy remedy. The case was about "exit polls."
Moreover, where a division of the Comelec decides a
motion for reconsideration in violation of Article IX, C, 3, the
division's ruling is a complete nullity and may be brought to the
Court on certiorari. Aguilar v. Comelec, G.R. No. 185140, June 30,
2009.
Q. What kind of decisions of Constitutional Commissions may be elevated to
the Supreme Court through Rule 65?
A. Only grave abuse of discretion amounting to lack of or excess of jurisdiction,
Reyes v. COA, G.R. No. 125129, March 29, 1999. Moreover, "the "case*
or 'matter' referred to by the Constitution that may be brought to the
Supreme Court on certiorari under Sec. 7, Art. IX-C are those that relate
to the .. . exercise of adjudicatory or quasi-judicial powers." In the case
of the Comelec, these must be cases involving 'elective regional,
provincial, and city officials.' Garces v. Court of Appeals, G.R. No. 114795,
July 17, 1996, 259 SCRA 99, 107; Ambil, Jr. v. Comelec, G.R. No. 143398,
October 25, 2000.
Q. Does Section 2(2) of Article IX-C (stating that decisions of the Comelec in
contests involving elective municipal and barangay officials are final,
executory and non-appealable) preclude the right to go to the Supreme
Court on certiorari granted by Section 7 of Article IX, A?
A. No. Galido v. Comelec, G.R. No. 95346,18 January 1991.
370 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Q. May the Supreme Court intervene in the supervisory function of the
COMELEC?
A. Yes, but only in those rare instances where the imminence of the elections
calls for prompt determination lest the constitutional right of suffrage
be rendered futile. Lazatin v. Lingad, 134 SCRA 1 (January 4,1985).
SEC. 8. EACH COMMISSION SHALL PERFORM SUCH OTHER FUNCTIONS
AS MAY BE PROVIDED BY LAW.
B. THE CIVIL SERVICE COMMISSION
SECTION 1. (1) THE CIVIL SERVICE SHALL BE ADMINISTERED BY THE
CIVIL SERVICE
COMMISSION COMPOSED OF A CHAIRMAN AND TWO COMMISSIONERS
WHO SHALL BE
NATURAL-BORN CITIZENS OF THE PHILIPPINES AND, AT THE TIME OF
THEIR APPOINTMENT, AT
LEAST THIRTY- FIVE YEARS OF AGE, WITH PROVEN CAPACITY FOR
PUBLIC ADMINISTRATION,
AND MUST NOT HAVE BEEN CANDIDATES FOR ANY ELECTIVE POSITION
IN THE ELECTIONS
IMMEDIATELY PRECEDING THEIR APPOINTMENT.
(2) THE CHAIRMAN AND THE COMMISSIONERS SHALL BE
APPOINTED BY THE PRESIDENT WITH THE CONSENT OF THE
COMMISSION ON
APPOINTMENTS FOR A TERM OF SEVEN YEARS WITHOUT
REAPPOINTMENT. OF
THOSE FIRST APPOINTED, THE CHAIRMAN SHALL HOLD OFFICE FOR
SEVEN
YEARS, A COMMISSIONER FOR FIVE YEARS, AND ANOTHER
COMMISSIONER
FOR THREE YEARS, WITHOUT REAPPOINTMENT. APPOINTMENT TO ANY
VACANCY SHALL BE
ONLY FOR THE UNEXPIRED TERM OF THE PREDECESSOR. IN NO CASE
SHALL ANY MEMBER BE
APPOINTED OR DESIGNATED IN A TEMPORARY OR ACTING CAPACITY.
Q. What is the common starting point for appointees to the Commissions?
A. February 2, 1987, the date the 1987 Constitution took effect. This true even
if Article XVIII, Section 15 provided for an extension of the tenure of the
incumbents when the Constitution took effect. The extension of the
tenure did not affect the term. Thus, in reckoning the seven year term,
the starting point is always a February 2 even if the appointee actually
took office after February 2. Through this rotational system the
staggering of the terms is preserved. Gaminde v. Commission on Audit,
G.R. No. 140335, December 13, 2000. NOTE: This rule also applies to all
three Commissions.
Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS
B. The Civil Service Commission
371
Q. What is the nature of the powers of the Civil Service Commission?
A. The Commission is an administrative agency, nothing more. As such, it can
only perform powers proper to an administrative agency. It can perform
executive powers, quasi-judicial powers, and quasi-legislative or
rule-making powers.
Q. PD 51 created certain offices and they were promptly filled. After martial
law, Mayor Simon of QC also filled them by appointment. In 1990,
however, PD 51 was declared never to have been published and
therefore was not law. To save the workers therein, the sanggunian
passed an ordinance declaring the "personnel" absorbed in the
department of public order and safety. But since there were not enough
positions, Simon made them contractual employees. When Mathay
became Mayor, he also renewed the contracts once but refused to
renew them thereafter. The Commission on Civil Service ordered
Mathay to take them saying that their reappointment was automatic
pursuant to the ordinance. Decide.
A. The ordinance was invalid. Ordering the absorption of the personnel is an
act of appointment. The city council has no power to appoint. Mathay,
Jr. v. Court of Appeals, et al., G.R. No. 124374, December 15,1999.
SEC. 2. (1) THE CIVIL SERVICE EMBRACES ALL BRANCHES,
SUBDIVISIONS,
INSTRUMENTALITIES, AND AGENCIES OF THE GOVERNMENT, INCLUDING
GOVERNMENT-OWNED
OR CONTROLLED CORPORATIONS WITH ORIGINAL CHARTERS.
(2) APPOINTMENTS IN THE CIVIL SERVICE SHALL BE MADE
ONLY ACCORDING TO MERIT AND FITNESS TO BE DETERMINED, AS FAR
AS PRACTICABLE, AND,
EXCEPT TO POSITIONS WHICH ARE POLICY- DETERMINING, PRIMARILY
CONFIDENTIAL, OR HIGHLY
TECHNICAL, BY COMPETITIVE EXAMINATION.
(3) NO OFFICER OR EMPLOYEE OF THE CIVIL SERVICE SHALL BE
REMOVED OR
SUSPENDED EXCEPT FOR CAUSE PROVIDED BY LAW.
(4) NO OFFICER OR EMPLOYEE IN THE CIVIL SERVICE SHALL ENGAGE,
DIRECTLY OR
INDIRECTLY, IN ANY ELECTIONEERING OR PARTISAN POLITICAL
CAMPAIGN.
(5) THE RIGHT TO SELF-ORGANIZATION SHALL NOT BE DENIED TO
GOVERNMENT
EMPLOYEES.
372 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
(6) TEMPORARY EMPLOYEES OF THE GOVERNMENT SHALL BE
GIVEN SUCH PROTECTION AS MAY BE PROVIDED BY LAW.
Scope of the system
Q. What is the scope of the system?
A. Section 2(1) says that "The civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original charters."
Q. Does the Civil service System cover employees of government owned
corporations?
A. The Civil Service system under the new Constitution covers only
government owned and controlled corporations with original charter.
Moreover, even if a case arose under the 1973 Constitution but is to be
decided under the 1987 Constitution, the applicable rule is that of the
1987 Constitution. PNOC Energy Development Corporation v. NLRC, 201
SCRA 487 (1991). The moment, however, that a corporation ceases to
be government controlled, for instance, if it is privatized, it ceases to fall
under the Civil Service.
Q. What is the test for determining whether a government owned or
controlled corporation is subject to the Civil Service Law?
A. The test is the manner of its creation. Corporations created by special
charter are subject to the Civil Service, whereas corporations
incorporated under the Corporation Law are not. Philippine-National Oil
Company-Energy Development Corporation v. Leogardo, G.R. No.
58494, July 5, 1989. Thus too, Tanay Water District, created by P.D. 198,
comes under the Civil Service. Tanay Water District v. Gabaton, G.R. No.
63742, April 17,1989.
Q. Does the Department of Labor have a role over civil service members?
A. Entities under the civil service system are not completely beyond the reach
of the Department of Labor or labor laws. When a government entity
that is under the Civil Service enters into a contract, e.g., with a security
agency or a janitorial agency, it becomes an indirect employer of the
security guards or the janitors. In such a situation, under the Labor
Code, the
Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS
B. The Civil Service Commission
373
liabilities for wages are joint and solidary with the contractor. The law on
wages in the Labor Code specifically provides that "employer" includes
any person acting directly or indirectly in the interest of an employer in
relation to employees. Philippine Fisheries Development Authority v.
NLRC & Odin Security Agency, G.R. No. 94825, September 4,1992.
Q. Why have government-owned corporations been placed under the civil
service system?
A. During the 1971 Constitutional Convention debates, when this provision
was first introduced, government-owned corporations came under
attack as milking cows of a privileged few enjoying salaries far higher
than their counterparts in the various branches of government. It was
pointed out that the capital of these corporations belongs to the
government and that government money is pumped into them
whenever on the brink of disaster and they should therefor come under
the strict surveillance of the civil service system.
Q. Are Local Water Districts incorporated under P.D. 198
government owned corporations with original charter and therefore
under the jurisdiction of the Civil Service?
A. Yes, they are. The phrase "government owned or controlled
corporations with original charter" means corporations created by
special law and not under the Corporation Code of the Philippines. P.D.
198 is a special law. Davao City Water District, et al. v. civil Service
Commission, G.R. No. 95237-8, September 13, 1991; Tanjay Water
District v. Gabaton, 172 SCRA 253 (1989).
Q. Is PAGCOR under the Civil Service?
A. Yes, since it was created by P.D. 1869 on July 11, 1983.
Philippine Amusement and Gaming Corporation v. Court of Appeals, G.R.
No. 93396, September 30,1991.
Appointments in the Civil Service
Q. What is the significance of the distinction between competitive and
non-competitive positions?
A. Appointment to a competitive position must be made according to merit
and fitness as determined, as far as practicable, by competitive
examination. Merit and fitness in appointments to non-competitive
positions are not determined by competitive examinations. But merit
and fitness are required.
374 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Q. Is the appointing authority bound by the restrictions of a
statutory next-in-rank rule?
A. No. One who is next in rank is entitled to preferential
consideration for promotion to the higher vacancy but it does not
necessarily follow that he and no one else can be appointed. The rule
neither guarantees a vested right to the holder nor imposes a
ministerial duty on the appointing authority to promote such person to
the next higher position. The power to appoint is a matter of discretion.
Santiago, Jr. v. Civil Service Commission, G.R. No. 81467, October
27,1989.
Q. May the Civil Service Commission disapprove an appointment
and require the appointment of another person whom it believes is
more qualified for the position?
A. No. The appointing authority is given ample discretion in the
selection and appointment of qualified persons to vacant positions
among those who are qualified. Central Bank v. Civil Service
Commission, G.R. No. 80455-56, April 10, 1989. It is well established that
the Commission may not substitute its judgment for an executive's
appointment of a qualified appointee. It is a different matter, however,
when, after having extended an appointment that is immediately
accepted, the appointing authority withdraws the same and extends it
to someone else. In such a situation the Civil Service is within its
authority when it orders the reinstatement of the first appointee. The
withdrawal of an appointment already accepted would be tantamount
to removal and would violate security of tenure. Aquino v. Civil Service
Commission, G.R. No. 92403, April 22,1992.
Q. Enumerate and define the classes of non-competitive positions.
A. The non-competitive positions are those which by their nature are
policy-determining, primarily confidential, or highly technical.
Early jurisprudence on this subject established that it is the nature
and not just the label of the position which makes it non-competitive.
Thus "much more than ordinary confidence is reposed in the occupant
of a position that is primarily confidential. The latter phrase denotes not
only confidence in the aptitude of the appointee for the duties of the
office but primarily close intimacy which insures freedom of intercourse
without embarrassment or freedom from misgivings or betrayals of
personal trust on confidential matters of state." De los Santos v.
Mallare, 87 Phil. 289, 298 (1950). A policy-determining position is one
charged with the duty to "formulate a method of action for the
government or any of its subdivisions." Id. A position is highly technical if
the
Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS
B. The Civil Service Commission
375
occupant is required "to possess a technical skill or training in the
supreme or superior degree." Id.
Q. When may a position be considered "primarily confidential?"
A. In every case, the ultimate test is the nature of the responsibilities of the
position, not the administrative or legislative description that is given to
the position; that is, the nature of the office must be such as to require
close intimacy between the appointee and appointing authority which
insures freedom of intercourse without embarrassment, or freedom
from misgiving of betrayal of personal trust on confidential matters of
state. Executive pronouncements as to the nature of the office can be
no more than initial determination of the nature of the office. Borres v.
Court of Appeals, 153 SCRA 120 (1987).)
Q. Both the 1935 and 1973 Constitutions textually support the Pifiero, et al. v.
Hechanova, et al., 18 SCRA 417 (1966) doctrine that it is the nature of
the position which finally determines whether a position is primarily
confidential, policy-determining or highly technical. The 1987
Constitution deleted the phrase "in nature." Is the Pifiero doctrine still
controlling?
A. Yes. Civil Service Commission v. Salas, G.R. No. 123708, June 19,1997,274
SCRA 414.
Q. What is the purpose of the 1986 CONCOM in providing for the declaration
of a position as policy-determining, primarily confidential or highly
technical?
A. The primary purpose is "to exempt these categories from competitive
examination as a means for determining merit and fitness." This is not
meant to exclude them from security of tenure. Civil Service Commission
v. Salas, G.R. No. 123708, June 19,1997,274 SCRA 414,426.
Q. What is the "proximity rule?"
A. "Every appointment implies confidence, but much more than
ordinary confidence is reposed in the occupant of a position that is
primarily confidential. The latter phrase denotes not only confidence in
aptitude of the appointee for the duties of the office but primarily close
intimacy which insures freedom of intercourse without embarrassment
or freedom from misgivings of betrayals of personal trust or confidential
matters of state." Civil Service Commission v. Salas, G.R. No. 123708,
June 19, 1997, 274 SCRA 414, 427 (quoting De lo8 Santos v. Mallare, et
al, 87 Phil. 289 [1950]).
376 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Q. Is a determination by the President that a position is policy
determining, primarily confidential, or highly technical conclusive?
A. No. Whether a position is policy determining, primarily
confidential, or highly technical is determined by the nature of the
functions attached to it. Laurel v. Civil Service Commission, G.R. No.
71562, October 28,1991.
Q. Is the position of a provincial attorney and those of his legal
subordinates/assistants primarily confidential in nature so that their
services can be terminated upon loss of confidence?
A. The position of a provincial attorney is primarily confidential
(Citing Cadiente v. Santos, 142 SCRA 280 [1986], where the position of
city legal officer was held to be primarily confidential). However, the
positions of the legal staff are not. Grino v. Civil Service Commission, G.R.
No. 91602,26 February 1991.
Q. How does the Civil Service Code (P.D. 807) classify positions in the Civil
Service?
A. The Code provides for two classes of positions:
a. Career Servicecharacterized by (1) entrance based on merit
and fitness to be determined as far as practicable by competitive
examinations, or based on highly technical qualifications; (2) security of
tenure; and (3) opportunity for advancement to higher career positions.
b. Non-career Service characterized by (1) entrance on bases
other than those of the usual tests of merit and fitness utilized for the
career service; (2) tenure which is limited to a period specified by law, or
which is coterminous with that of the appointing authority or subject to
his pleasure, or which is limited to the duration of a particular project for
which purpose employment was made.
Q. Are the classification above and the classification in Section 2(2) mutually
exclusive?
A. No. Rather, they overlap and complement each other. The classification in
the Code is for purposes of determining tenure. The classification in
Section 2(2) is for purposes of determining the manner of testing merit
and fitness.
NOTE: It is true that there is no constitutional prohibition
against the issuance of "mass appointments" by defeated local
government officials priorto the expiration oftheir terms. Clearly,
Sees. 4-6 ART. IX - CONSTITUTIONAL COMMISSIONS 377
B. The Civil Service Commission
this is not the same as a "midnight appointment," proscribed by
the Constitution, which refers to those appointments made
within two months immediately prior to the next presidential
election. But The Commission, as the central personnel agency of
the government, has statutory authority to establish rules and
regulations to promote efficiency and professionalism in the civil
service. Presidential Decree No. 807, or the Civil Service Decree of
the Philippines, provides for the powers of the Commission,
including the power to issue rules and regulations and to review
appointments. Nazareno, et al. v. City ofDumaguete, G.R. No.
181559, October 2, 2009.
Security of tenure
Q. What is the importance of security of tenure in the system?
A. The efficiency of a civil service system depends largely on the morale of the
officers and employees in the service. Morale, in turn, can be fatally
undermined when the security of officers in the possession of their
office is unprotected against the arbitrary action of superior officers.
Hence, basic in any civil service is a guarantee of security of tenure, a
guarantee against arbitrary impairment, whether total or partial, of the
right to continue in the position held.
Q. What is the meaning of "for cause provided by law?"
A. This is a guarantee of both procedural and substantive due process. Hence,
not only must removal or suspension be in accordance with the
procedure prescribed by law, but also they can only be made on the
basis of a valid cause provided by law. The phrase "for cause" has
acquired a well-defined meaning in Philippine jurisprudence:
It means for reasons which the law and sound public policy
recognize as sufficient for removal, that is, legal cause, and not
merely causes which the appointing power in the exercise of
discretion may deem sufficient. It is implied that officers may not
be removed at the mere will of those vested with the power of
removal, or without cause. Moreover, the cause must relate to
and effect the administration of the office, and must be restricted
to something of a substantial nature directly affecting the rights
and interests of the public. De los Santos v. Mallare, 87 Phil, at 293
(1950).
Q. Are persons permanently occupying non-competitive positions covered by
the guarantee of security of tenure?
378 THE 1987 PHILIPPINE CONSTITUTION: Sec.
16
A COMPREHENSIVE REVIEWER
A. Yes. The distinction between competitive and non-competitive positions is
significant only for purposes of appointment. However, "officials and
employees holding primarily confidential positions continue only for so
long as confidence in them endures. The termination of their official
relation can be justified on the ground of loss of confidence because in
that case their cessation from office involves no removal but the
expiration of the term of office — two different causes for the
termination of official relations recognized in the Law of Public Officers."
Hernandez v. Villegas, 14 SCRA 544, 548 (1965).
Q. What is the extent of the President's disciplinary authority over presidential
appointees who belong to the career service?
A. This power is limited. Specifically, Section 36 of P.D. No. 807, as amended,
otherwise known as Civil Service Decree of the Philippines, is emphatic
that career service officers and employees who enjoy security of tenure
may be removed only for any of the causes enumerated in said law. In
other words, the fact that petitioner is a presidential appointee does
not give the appointing authority the license to remove him at will or at
his pleasure for it is an admitted fact that he is likewise a career service
officer who under the law is the recipient of tenurial protection, thus,
may only be removed for cause and in accordance with procedural due
process." Larin vs. Executive Secretary, 280 SCRA 713.
Q. Does the transfer of a permanent employee to another permanent
position without the consent of the employee violate security of
tenure?
A. Yes. Gloria v. Court of Appeals, G.R. No. 119903, August 15, 2000.
Q. How about a temporary transfer?
A. "While a temporary transfer or assignment of personnel is permissible even
without the employee's prior consent, it cannot be done when the
transfer is a preliminary step toward his removal, or is a scheme to lure
him away from his permanent position, or designed to indirectly
terminate his service, or force his resignation. Such a transfer would in
effect circumvent the provision which safeguards the tenure of office of
those who are in the Civil Service Gloria v. Court of Appeals, G.R. No.
119903, August 15,2000.
.2 ART. IX - CONSTITUTIONAL COMMISSIONS
B. The Civil Service Commission
379
NOTE: A career Civil Service Officer occupying the position
of Local Assessment Operations Officer III in the Assessor's Office
may not be assigned to serve as security guard. An assignment
which involves reduction in rank is invalid ab initio. Hence, failure
to report to the new assignment cannot a be a ground for
dismissal. He must be reinstated. Yenko and Mayor Estrada v.
Gungon, G.R. No. 165450, August 13, 2009.
Q. Do appointees to the foreign service who do not belong to the
Career Corps enjoy security of tenure like the Career Corp?
A. No. Those who are non-career "enter on bases other then
those of the usual test of merit and fitness utilized for the career service"
and possess "tenure which is limited to a period specified by law, or
which is coterminous with that of the appointing authority or subject to
his pleasure, or which is limited tot he duration of a particular project for
which purposes employment was made." Political appointees in the
foreign service possess "tenure . . . coterminous with that of the
appointing authority or subject to his pleasure." Astraquillo, et al. v.
Manglapus, October 3,1990.
Q. Binamira was "designated" by the Secretary of Tourism as
Manager of the Tourism Authority. The law, however, requires that the
Manager be appointed by the President. Did Binamira acquire security
of tenure?
A. No, because he did not receive a valid appointment. Binamira v.
Garrucho, Jr., G.R. No. 92008, July 23,1990.
Q. Petitioner was dismissed as notoriously undesirable, pursuant
to the summary procedure found in P.D. 6, because he had been
convicted of libel by the CFI. Later acquitted by the Court of Appeals, he
asked for reinstatement and back wages. He was instead offered
reappointment but with no back wages. Decide.
A. He is not entitled to back wages. Dismissal was done in good
faith in compliance with P.D. 6. Octot v. Ybanez, G.R. No. 48643, January
18,1982.
Q. P.D. 807 says:
Section 40. Summary Proceedings. No formal investigation is
necessary and the respondent may be immediately removed or dismissed
if any of the following circumstances is present:
a) When the charge is serious and the evidence of guilt is strong.
Valid?
A. The provision can be saved from invalidation only if it is read to
require that (1) the employee is informed of the charges against
380 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
him by furnishing him with a copy of the charges against him; (2) the
employee must have a reasonable opportunity to present his side of
the matter. GSIS u. Court of Appeals, G.R. No. 86083, September 24,
1991. N.B. Section 40 is no longer found in the law.
Q. Can one who does not have qualifications for a position
acquire security of tenure therein?
A. No, Security of tenure in an office is acquired only by one who
has the qualifications for that office. Dimayuga v. Benedicto II, G.R. No.
144153, January 16,2002.
Abolition of office
Q. Can abolition of office violate security of tenure?
A. While abolition of office does not imply removal of the incumbent officer,
this is true only where the abolition of office is done in good faith and
not merely as a cover for a removal otherwise not allowed by the
Constitution. Briones v. Osmeria, 104 Phil. 588, 592 (1958). Thus, for
abolition of office to escape the taint of unconstitutionality, it must be
made (1) in good faith, (2) not for personal or political reasons, and (3)
not in violation of the law. Roque v. Ericta, 53 SCRA 156,162-3 (1973)
and cases cited.
Q. Petitioners were members of the National Police Commission.
They were separated from office by virtue of Republic Act No. 8551 (RA
8551), otherwise known as the "Philippine National Police Reform and
Reorganization Act of 1998." They challenge the law as a violation of
their security of tenure. Public respondents, however, insist that the
express declaration in section 8 of RA 855 that the terms of petitioners'
offices are deemed expired discloses the legislative intent to impliedly
abolish the NAPOLCOM created under RA 6975 pursuant to a bona fide
reorganization. In support of their theory, public respondents cite the
various changes introduced by RA 855 in the functions, composition
and character of the NAPOLCOM as proof of Congress' intention to
abolish the body created under RA 6975 in order to replace it with a
new NAPOLCOM which is more civilian in nature, in compliance with
the constitutional mandate. Decide.
A. It is exceedingly apparent to this Court that RA 8551 effected a
reorganization of the PNP, not of the NAPOLCOM. They are two
separate and distinct bodies, with one having supervision and control
over the other. In fact, it is the NAPOLCOM that is given the duty of
submitting a proposed reorganization plan of the PNP to Congress. The
basic structure of the NAPOLCOM has been preserved by the
amendatory law. There has been no revision in its
Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS
B. The Civil Service Commission
381
lines of control, authority and responsibility, neither has there been a
reduction in its membership, nor a consolidation or abolition of the
offices constituting the same. Adding the Chief of the PNP as an exofficio
member of the Commission does not result in a reorganization.
No bona fide reorganization of the NAPOLCOM having been mandated
by Congress, RA 8551, insofar as it declares the terms of office of the
incumbent as expired must be struck down for being constitutionally
infirm. Canonizado, et al. v. Aguirre, G.R. No. 133132, January 25, 2000.
NOTE: Abolition of office, even if arising from reorganization
mandated by law, must be justified by good faith and public need.
Abrogar v. Garrucho, Jr., G.R. No. 95773, August 6,1991; Blaquera v. Civil
Service Commission, September 10,1993.
Moreover, abolition of an office created by law can only be done
also by law. Eugenio v. Civil Service Commission, G.R. No. 115863, March
31,1995.
Q. Sec 35 of RA 6715 declared all positions of the Commissioners,
Executive Labor Arbiters and Labor Arbiters of the present National
Labor Relations Commissions (NLRC) vacant. Petitioners question its
constitutionality.
A. Unconstitutional. "While abolition by law as a result of
reorganization is a recognized cause for termination of a Government
employee, it is not the same as a declaration that the office is vacant."
RA 6715 has effected no express abolition of the positions, neither an
implied abolition (i.e., an irreconcilable inconsistency between the
nature, duties and functions of the petitioners' offices under the old
rules and those of the new law, RA 6715). Mayor v. Hon. Catalino
Macaraig, G.R. No. 87211, 5 March 1991.
Q. Where a city general hospital is closed for valid reasons but is, a
few months later, opened as a maternity and children's hospital in order
not to violate the condition of the donation of the land that it be used
for the hospital, was there an unlawful abolition of office.
A. Good faith is presumed. In the absence of proof of bad faith
and considering that the new hospital is not exactly the same as the first
and considering likewise the desire to preserve the donated property,
there is no unlawful abolition of office. Mama, Jr. v. Court of Appeals,
G.R. No. 86517, April 30,1991.
Q. The Board of Regents of U.P. effected a reorganization of the
Philippine General Hospital transforming it into U.P.-P.G.H. Medical
Center. As part of the reorganization, the position of Director of P.G.H.
was transformed into Medical Director of U.P.-P.G.H. Medical Center.
The incumbent Director of P.G.H. was replaced by a
382 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Medical Director of U.P.-P.G.H. Medical Center. The functions of the
two offices, however, were found to be substantially the same. Was the
replacement valid?
A. No. It was tantamount to removal without due cause. U.P
Board of Regents v. Rasul, G.R. No. 91551, August 16,1991.
Q. Does the President have the authority to reorganize the
executive department?
A. Yes. And this can include deactivation of offices. As far as
bureaus, agencies or offices in the executive department are
concerned, the President's power of control may justify him to
inactivate the functions of a particular office, or certain laws may grant
him the broad authority to carry out reorganization measures. Buklod
ng Kawaning EIIB v. Executive Secretary, G.R. Nos. 142801-802, July
10,2001.
Q. Is an officer who is simply given a "reprimand" exonerated?
A. No. A reprimand is a "public and formal censure or severe
reproof, administered to a person in fault by his superior officer or a
body to which he belongs." Unlike a "warning" (a putting on guard) or
an "admonition" (a friendly reproof), a reprimand is an administrative
penalty. Tobias v. Veloso, 100 SCRA 177,184 (L-40224, September 23,
1980).
Q. Are temporary appointees protected by the guarantee of
security of tenure?
A. No. They may be removed anytime even without cause.
Mendiola v. Tancinco, 52 SCRA 66 (1973) and cases cited.
NOTE: The new Constitution now says: "Temporary employees
of the Government shall be given such protection as may
be provided by law." Obviously the provision is not selfexecutory.
Moreover, it was approved in lieu of a proposal to
make temporary appointees permanent after the lapse of a certain
period of time.
Q. Tomas Achacoso, Administrator of POEA, tendered his
courtesy resignation in compliance with the request of the President to
government officials. His resignation was accepted and his replacement
appointed. Achacoso refuses to vacate his office, invoking security of
tenure as his position is one in the Career Executive Service. Is he
correct?
A. No. Achacoso failed to take the Career Service Examination.
"The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he does
not possess the required qualifications." Achacoso v. Macaraig, G.R. No.
93023, March 13,1991.
Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS
B. The Civil Service Commission
383
Q. A permanent appointment is extended. The Civil Service
Commission approves it as temporary in the belief that somebody else is
better qualified. May the Commission do so?
A. No. The sole function of the Commission is to attest to the
qualification of the appointee. Luego v. Civil Service Commission, 143
SCRA 327 (August 5,1986).
Partisan political activity
Q. What is "partisan political campaign?"
A. Partisan political activity, which is the phrase used in previous Constitutions,
includes "every form of solicitation of the elector's vote in favor or a
specific candidate. People v. de Venecia, 14 SCRA 864, 867 (1965). It
includes contribution of money for election purposes and distribution of
handbills. Id. at 866. However, the provision does not "prevent any
officer or employee from expressing his views on current political
problems or issues, or from mentioning the names of candidates for
public office whom he supports." Section 29, R.A. 2260. This is also the
sense under the new Constitution.
The prohibition does not apply to department secretaries. A
proposal in the 1935 Constitutional Convention to include department
secretaries was disapproved. Santos v. Yatco, 106 Phil, xxi (1959).
NOTE: As long as the acts embraced under Sec. 79 pertain
to or are in connection with the nomination of a candidate by a
party or organization, then such are treated as internal matters
and cannot be considered as electioneering or partisan political
activity. The twin acts of signing and filing a Certificate of
Nomination are purely internal processes of the party or
organization and are not designed to enable or ensure the victory
of the candidate in the elections. The act of Robles of submitting
the certificate nominating Velarde and others was merely in
compliance with the COMELEC requirements for nomination of
party-list representatives and, hence, cannot be treated as
electioneering or partisan political activity proscribed under by
Sec. 2(4) of Art. IX(B) of the Constitution for civil servants. Seneres
v. Comelec, G.R. No. 178678, April 16, 2009.
Right to organize
Q. May members of the Civil Service unionize?
A. There are three provisions which serve as bases for answering the question.
The first is Article III, Section 8, which guaran
384 THE 1987 PHILIPPINE CONSTITUTION: Sec. 3
A COMPREHENSIVE REVIEWER
tees the right of all, "including those employed in the public and private
sectors, to form unions . . . The second is the above Section 2(5). And
the third is Article XIII, Section 3, which guarantees "the right of all
workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance
with law." From these it is clear that members of the Civil service can
unionize. Their right to strike, however, may be limited by law.
Q. Do employees of the Social Security System have the right to
strike?
A. Resort to the intent of the framers points to the understanding
that the right to organize does not include the right to strike. Social
Security System v. the Court of Appeals, G.R. No. 85279, July 28,1989.
(NOTE: The Constitution, however, does not say that government
employees may not be given the statutory right to strike. On this point,
the SSS case is vague.)
Q. Do public school teachers have the right to strike?
A. No. Manila Public School Teachers Association v. Secretary
ofEducation, G.R. No. 95445, August 6,1991. (The dissenting opinions,
however, would anchor their defense of the public school teachers on
their right to petition the government for redress of grievances.) (The
dissenting opinions, however, would anchor their defense of the public
school teachers on their right to petition the government for redress of
grievances.)
SEC. 3. THE CIVIL SERVICE COMMISSION, AS THE CENTRAL
PERSONNEL AGENCY OF THE GOVERNMENT, SHALL ESTABLISH A
CAREER SERVICE AND ADOPT
MEASURES TO PROMOTE MORALE, EFFICIENCY, INTEGRITY,
RESPONSIVENESS,
PROGRESSIVENESS, AND COURTESY IN THE CIVIL SERVICE. IT SHALL
STRENGTHEN THE MERIT
AND REWARDS SYSTEM, INTEGRATE ALL HUMAN RESOURCES
DEVELOPMENT PROGRAMS FOR
ALL LEVELS AND RANKS, AND INSTITUTIONALIZE A MANAGEMENT
CLIMATE CONDUCIVE TO
PUBLIC ACCOUNTABILITY. IT SHALL SUBMIT TO THE
PRESIDENT AND THE CONGRESS AN ANNUAL REPORT ON ITS
PERSONNEL PROGRAMS.
Q. What is the purpose of a civil service system?
A. The general objective of a civil service system is to establish and promote
professionalism and efficiency in public service. This too is the object of
the Civil Service system under the Constitution.
V OFFICE
Sees. 4-6 ART. IX - CONSTITUTIONAL COMMISSIONS 385
B. The Civil Service Commission
Q. When there is more than one person qualified for a position, may the Civil
Service Commission dictate to the appointing authority who among
those qualified should be appointed?
A. No. The power of the Commission is limited to attesting to the eligibility or
ineligibility of the appointee. Secretary Orbos v. Civil Service Commission,
G.R. No. 92561, September 12,1990; Chang v. Civil Service Commission,
G.R. No. 86791, November 26,1990.
Q. May the Commission revoke a certificate of eligibility?
A. As central personnel agency of the government, the Civil Service
Commission may revoke a certificate of eligibility motu propria. The
power to issue a certificate of eligibility carries with it the power to
revoke one that has been given. Whether or not hearing is required for
revocation depends on the circumstances of a case. Thus, where the
case "simply involves the rechecking of examination papers and nothing
more than a re-evaluation of documents already in the records of the
CSC according to a standard answer key previously set by it, notice and
hearing is not required. Instead, what [would apply in such a case is] the
rule of res ipsa loquiturLazo v. Civil Service Commission, 236 SCRA
469,472 (1994).
Q. What jurisdiction does the Civil Service Commission have over personnel
cases given by statute to the jurisdiction of the Merit Systems Board?
A. It has only automatic review jurisdiction, not original jurisdiction. GSIS v. Civil
Service Commission, G.R. No. 87146, December 11,1991.
SEC. 4. ALL PUBLIC OFFICERS AND EMPLOYEES SHALL TAKE AN OATH
OR AFFIRMATION TO UPHOLD AND DEFEND THIS CONSTITUTION.
SEC. 5. THE CONGRESS SHALL PROVIDE FOR THE STANDARDIZATION
OF COMPENSATION OF GOVERNMENT OFFICIALS AND EMPLOYEES,
INCLUDING THOSE IN
GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS WITH
ORIGINAL CHARTERS, TAKING
INTO ACCOUNT THE NATURE OF THE RESPONSIBILITIES PERTAINING TO,
AND THE
QUALIFICATIONS REQUIRED FOR THEIR POSITIONS.
SEC. 6. No CANDIDATE WHO HAS LOST IN ANY ELECTION SHALL,
WITHIN ONE YEAR AFTER SUCH ELECTION, BE APPOINTED TO ANY
IN THE GOVERNMENT OR ANY GOVERNMENT-OWNED OR CONTROLLED
CORPORATIONS OR IN ANY OF ITS SUBSIDIARIES.
386 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Q. What is the purpose the prohibition of appointment of "lame- ducks" in
Section 6.
A. Its purpose is the extirpation of the "spoils system."
One who is under the one year prohibition imposed on losing
candidates is disqualified from being appointed during that one year
period even if he or she has the other qualifications. Legal
disqualification in Article 244 of the Revised Penal Code simply means
disqualification under the law. Clearly, Section 6, Article IX of the 1987
Constitution and Section 94(b) of the Local Government Code of 1991
prohibits losing candidates within one year after such election to be
appointed to any office in the government or any government-owned
or controlled corporations or in any of their subsidiaries. People v.
Sandiganbayan, G.R. No. 164185, July 23, 2008.
SEC. 7. No ELECTIVE OFFICIAL SHALL BE ELIGIBLE FOR APPOINTMENT
OR DESIGNATION IN ANY CAPACITY TO ANY PUBLIC OFFICE OR
POSITION
DURING HIS TENURE.
UNLESS OTHERWISE ALLOWED BY LAW OR BY THE PRIMARY
FUNCTIONS
OF HIS POSITION, NO APPOINTIVE OFFICIAL SHALL HOLD ANY OTHER
OFFICE
OR EMPLOYMENT IN THE GOVERNMENT OR ANY SUBDIVISION, AGENCY
OR INSTRUMENTALITY THEREOF, INCLUDING GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS OR THEIR SUBSIDIARIES.
Q. Are there exceptions to the rule against appointment of elective officials?
A. Yes. The Vice-President may be appointed member of the Cabinet. A
Member of Congress is designated to sit in the Judicial and Bar Council.
Q. May Congress by law authorize the appointment of elective officials?
A. No. The first paragraph of Section 7 governs elective officials. Unlike the
provision for members of Congress in Article VI, Section 13, which does
not prohibit acceptance of an appointment but merely causes the
forfeiture of the congressional seat if the holder accepts an
appointment, the present provision prohibits elective officials other
than members of Congress from accepting appointment during their
tenure. If the elective official accepts an appointment without first
resigning his
Sees. 4-6 ART. IX - CONSTITUTIONAL COMMISSIONS 387
B. The Civil Service Commission
elective position, the appointment is invalid. Neither, however, does he
thereby forfeit his elective seat. This was the Court's ruling in Flores, et al.
v. Drilon and Gordon, G.R. No. 104732, June 22, 1993. Moreover, unlike
in the case of appointive officers in the following paragraph, Congress
may not create an exception to this rule.
Q. Is the above rule on appointive officials applicable to members of the
Cabinet?
A. No. For them, the applicable rule is the stricter prohibition in Article VII,
Section 13.
SEC. 8. No ELECTIVE OR APPOINTIVE PUBLIC OFFICER OR EMPLOYEE
SHALL RECEIVE ADDITIONAL, DOUBLE, OR INDIRECT COMPENSATION,
UNLESS SPECIFICALLY
AUTHORIZED BY LAW, NOR ACCEPT WITHOUT THE CONSENT OF THE
CONGRESS, ANY PRESENT,
EMOLUMENT, OFFICE, OR TITLE OF ANY KIND FROM ANY FOREIGN
GOVERNMENT.
PENSIONS OR GRATUITIES SHALL NOT BE CONSIDERED AS ADDITIONAL,
DOUBLE, OR INDIRECT COMPENSATION.
Q. What is the purpose of the prohibition of additional or double
compensation?
A. Peralta v. Mathay, 38 SCRA 256,258 (1967), expressed it thus:
This is to manifest a commitment to the fundamental
principle that a public office is a public trust. It is expected of a
government official or employee that he keeps uppermost in
mind the demands of public welfare. He is there to render public
service. He is of course entitled to be rewarded for the
performance of the functions entrusted to him, but that should
not be the overriding consideration.
Q. What is "additional or double compensation?"
A. While the terms "additional" and "double" compensation are used
interchangeably, it is, perhaps, best to draw a distinction between the
two. There is additional compensation when for one and the same
office for which a compensation has been fixed there is added to such
fixed compensation an extra reward in the form, for instance, of a
bonus. This is not allowed in the absence of a law specifically authorizing
such extra reward. Thus, where an officer's pay provided by law was a
fixed per diem, the Supreme Court disallowed additional compensation
388 THE 1987 PHILIPPINE CONSTITUTION: Sec.
16
A COMPREHENSIVE REVIEWER
in the form of cost of living allowances as well as incentive and
Christmas bonuses. Peralta v. Mat hay, 38 SCRA 256, 258 (1967). The
Court, however, was careful to point out that when a per diem or an
allowance is given as reimbursement for expenses incident to the
discharge of an officer's duties, it is not an additional compensation
prohibited by the Constitution. Id. at 260-262.
Double compensation more properly refers to two sets of
compensation for two different offices held concurrently by one officer.
In the instances when holding a second office is allowed, when an
officer accepts a second office, he can draw the salary attached to such
second office only when he is specifically authorized by law to receive
double compensation. See Quimson v. Ozaeta, 98 Phil. 705 (1956).
Q. What is the meaning of the phrase "specifically authorized by law?"
A. Sadueste v. Municipality of Surigao, 72 Phil. 485 (1941), explained it thus:
The authority required by the Constitution to receive double
or additional compensation is a specific authority given to a
particular employee or officer of the Government because of
peculiar or exceptional reasons warranting the payment of extra
or additional compensation.
The above interpretation of the constitutional provision seems to
be too strict. It seems in effect to require a special law for every instance
of additional or double compensation. An obiter dictum in the later case
of Quimson v. Ozaeta, 98 Phil 705 (1956), approves of a more liberal
and perhaps administratively more rational approach.
The Court said:
According to law, under certain circumstances, the President
may authorize double compensation in some cases, such as
government officials acting as members with compensation in
government examining boards like the bar examinations, or
department secretaries acting as members of Board of Directors
of government corporations, and in such cases the prohibition
against double compensation is not observed. If the President
approves the double compensation, well and good. The
appointee whose appointment may then be regarded as valid
from the beginning could receive extra compensation. If it is
disapproved,
Sec. 4 ART. IX - CONSTITUTIONAL COMMISSIONS
C. The Commission on Elections
389
then the appointment will have to be withdrawn or cancelled,
unless of course, the appointee was willing to serve without
compensation, in which case there could be no valid objection. Id.
at 709-710.
Q. Upon optional retirement from the judiciary on 1 April 1992, Santos was
fully paid of his retirement gratuity under R.A. No. 910, as amended. For
five years thereafter he has been receiving a monthly pension.
Thereafter he was appointed Director III of the defunct MMA as Director
III thereof. (1) Can he continue to receive his pension while receiving
salary as Director? (2) Upon separation from the MMA, can his
separation pay under R.A. 7294 include his years of service in the
judiciary?
A. (1) Yes. The second paragraph of Section 8 means that a retiree receiving
pension or gratuity can continue to receive such pension or gratuity
even if he accepts another government position to which another
compensation is attached.
(2) No. That would be double compensation for the same service
in the judiciary for which he has already been paid. Section 11 of R.A. No.
7924 does not specifically authorize payment of additional
compensation for years of government service outside of the MMA.
Santos v. Court of Appeals, G.R. No. 139792, November 22, 2000.
NOTES:
Bonuses given to one whose compensation under the law is
merely a per diem violates the rule against additional
compensation. Cabili v. CSC, G.R. No. 156503, June 22, 2006.
When a law says that money generated by a school may be
used for "other programs/projects of the university or college,"
such a law is not authorization for giving additional or double
compensation. Benguet State U u. Colting, G.R. No. 169637, June
8,2007.
Absent clear and unequivocal statutory authority, the grant
of both separation pay and retirement benefits violates the
constitutional proscription on additional compensation. Herrera,
et al. v. NPC, G.R. No. 166570, December 18,2009.
C. THE COMMISSION ON ELECTIONS SECTION 1. (1) THERE SHALL BE A
COMMISSION ON ELECTIONS
COMPOSED OF A CHAIRMAN AND SIX COMMISSIONERS WHO SHALL BE
NATURAL-BORN CITIZENS OF THE PHILIPPINES AND, AT THE TIME OF
390 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
THEIR APPOINTMENT, AT LEAST THIRTY-FIVE YEARS OF AGE, HOLDERS
OF A COLLEGE DEGREE, AND MUST NOT HAVE BEEN CANDIDATES FOR
ANY ELECTIVE POSITION IN THE IMMEDIATELY PRECEDING ELECTIONS.
HOWEVER, A MAJORITY THEREOF, INCLUDING THE CHAIRMAN, SHALL
BE
MEMBERS OF THE PHILIPPINE BAR WHO HAVE BEEN ENGAGED IN THE
PRACTICE OF LAW FOR AT LEAST TEN YEARS.
(2) THE CHAIRMAN AND THE COMMISSIONERS SHALL BE
APPOINTED BY THE PRESIDENT WITH THE CONSENT OF THE
COMMISSION ON
APPOINTMENTS FOR A TERM OF SEVEN YEARS WITHOUT
REAPPOINTMENT.
OF THOSE FIRST APPOINTED, THREE MEMBERS SHALL HOLD OFFICE
FOR
SEVEN YEARS, TWO MEMBERS FOR FIVE YEARS, AND THE LAST
MEMBERS
FOR THREE YEARS, WITHOUT REAPPOINTMENT. APPOINTMENT TO ANY
VACANCY SHALL BE ONLY FOR THE UNEXPIRED TERM OF THE
PREDECESSOR.
IN NO CASE SHALL ANY MEMBER BE APPOINTED OR DESIGNATED IN A
TEMPORARY OR ACTING CAPACITY.
Q. What is the common starting point for appointees to the Commission?
A. February 2, 1987, the day the new Constitution took effect. Thus, in
reckoning the seven year term, counting must always start from a
February 2 even if the appointee took office later. This way the
staggering of the terms is preserved.
Q. For purposes of this provision, what does "engaged in the practice of law"
mean?
A. It means to engage in "any activity, or out of court, which requires the
application of law, legal procedure, knowledge, training and
experience." Cayetano v. Monsod, G.R. No. 100113, September 3, 1991.
(This is a broad definition of practice of law. Moreover, in the instant
case, Monsod had been confirmed by the Commission on
Appointments and the argument was used that there was no abuse of
discretion in the confirmation. See also dissents.)
Q. In the absence of a Chairman of the COMELEC, the President designated
Commissioner Yorac Acting Chairman. Valid?
A. No. Article IX, C, Section 1(2) prohibits the appointment of Members in a
temporary or acting capacity. Moreover, Article XI, A, Section 1, provides
for the independence of the Commissions. The choice of a temporary
chairman falls under the discretion of the Commission and cannot be
exercised for
Sec. 4 ART. IX - CONSTITUTIONAL COMMISSIONS
C. The Commission on Elections
391
it by the President. Brillantes, Jr. v. Yorac, G.R. No. 93867, December
18,1990.
SEC. 2. THE COMMISSION ON ELECTIONS SHALL EXERCISE THE
FOLLOWING POWERS AND
FUNCTIONS:
(1) ENFORCE AND ADMINISTER ALL LAWS AND REGULATIONS RELATIVE
TO THE
CONDUCT OF AN ELECTION, PLEBISCITE, INITIATIVE, REFERENDUM, AND
RECALL.
(2) EXERCISE EXCLUSIVE ORIGINAL JURISDICTION OVER ALL CONTESTS
RELATING TO
THE ELECTIONS, RETURNS, AND QUALIFICATIONS OF
ALL ELECTIVE REGIONAL, PROVINCIAL, AND CITY OFFICIALS, AND
APPELLATE JURISDICTION OVER
ALL CONTESTS INVOLVING ELECTIVE MUNICIPAL OFFICIALS DECIDED BY
TRIAL COURTS OF
GENERAL JURISDICTION, OR INVOLVING ELECTIVE BARANGAY
OFFICIALS DECIDED BY TRIAL
COURTS OF LIMITED JURISDICTION.
DECISIONS, FINAL ORDERS, OR RULINGS OF THE COMMISSION ON
ELECTION CONTESTS INVOLVING ELECTIVE MUNICIPAL AND BARANGAY
OFFICES SHALL BE FINAL,
EXECUTORY, AND NOT APPEALABLE.
(3) DECIDE, EXCEPT THOSE INVOLVING THE RIGHT TO VOTE, ALL
QUESTIONS AFFECTING ELECTIONS, INCLUDING DETERMINATION OF THE
NUMBER AND
LOCATION OF POLLING PLACES, APPOINTMENT OF ELECTION OFFICIALS
AND INSPECTORS, AND
REGISTRATION OF VOTERS.
(4) DEPUTIZE, WITH THE CONCURRENCE OF THE PRESIDENT, LAW
ENFORCEMENT AGENCIES AND INSTRUMENTALITIES OF THE
GOVERNMENT, INCLUDING THE
ARMED FORCES OF THE PHILIPPINES, FOR THE EXCLUSIVE PURPOSE OF
ENSURING FREE, ORDERLY,
HONEST, PEACEFUL, AND CREDIBLE ELECTIONS.
(5) REGISTER, AFTER SUFFICIENT PUBLICATION, POLITICAL PARTIES,
ORGANIZATIONS,
OR COALITIONS WHICH, IN ADDITION TO OTHER REQUIREMENTS, MUST
PRESENT THEIR
PLATFORM OR PROGRAM OF GOVERNMENT; AND ACCREDIT CITIZENS'
ARMS OF THE
COMMISSION ON ELECTIONS.
RELIGIOUS DENOMINATIONS AND SECTS SHALL NOT BE REGISTERED.
THOSE
WHICH SEEK TO ACHIEVE THEIR GOALS THROUGH VIOLENCE OR
UNLAWFUL
MEANS, OR REFUSE TO UPHOLD AND ADHERE TO THIS CONSTITUTION,
OR
WHICH ARE SUPPORTED BY ANY FOREIGN GOVERNMENT SHALL
LIKEWISE BE REFUSED
REGISTRATION.
FINANCIAL CONTRIBUTIONS FROM FOREIGN GOVERNMENTS AND
THEIR AGENCIES TO POLITICAL PARTIES, ORGANIZATIONS, COALITIONS,
OR CANDIDATES RELATED
TO ELECTIONS CONSTITUTE INTERFERENCE IN NA
392 THE 1987 PHILIPPINE CONSTITUTION:
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TIONAL AFFAIRS, AND, WHEN ACCEPTED, SHALL BE AN ADDITIONAL
GROUND FOR THE
CANCELLATION OF THEIR REGISTRATION WITH THE COMMISSION, IN
ADDITION TO OTHER
PENALTIES THAT MAY BE PRESCRIBED BY LAW.
(6) FILE, UPON A VERIFIED COMPLAINT, OR ON ITS OWN INITIATIVE,
PETITIONS IN
COURT FOR INCLUSION OR EXCLUSION OF VOTERS; INVESTIGATE AND,
WHERE APPROPRIATE,
PROSECUTE CASES OF VIOLATIONS OF ELECTION LAWS, INCLUDING
ACTS OR OMISSIONS
CONSTITUTING ELECTION FRAUDS, OFFENSES, AND MALPRACTICES.
(7) RECOMMEND TO THE CONGRESS EFFECTIVE MEASURES TO
MINIMIZE ELECTION SPENDING, INCLUDING LIMITATION OF PLACES
WHERE PROPAGANDA
MATERIALS SHALL BE POSTED, AND TO PREVENT AND PENALIZE ALL
FORMS OF ELECTION
FRAUDS, OFFENSES, MALPRACTICES, AND NUISANCE CANDIDACIES.
(8) RECOMMEND TO THE PRESIDENT THE REMOVAL OF ANY OFFICER OR
EMPLOYEE
IT HAS DEPUTIZED, OR THE IMPOSITION OF ANY OTHER DISCIPLINARY
ACTION, FOR VIOLATION
OR DISREGARD OF, OR DISOBEDIENCE TO ITS DIRECTIVE, ORDER, OR
DECISION.
(9) SUBMIT TO THE PRESIDENT AND THE CONGRESS A COMPREHENSIVE
REPORT ON
THE CONDUCT OF EACH ELECTION, PLEBISCITE, INITIATIVE,
REFERENDUM, OR RECALL.
Q. What is the nature of the powers of the Commission on Elections?
A. Like the Civil Service Commission, the Commission on Elections is an
administrative agency. As such, therefore, the powers it possesses are
executive, quasi-judicial, and quasi- legislative.
By exception, however, it has been given judicial power as judge
with exclusive original jurisdiction over "all contests relating to the
election, returns, and qualifications of all elective regional, provincial,
and city officials, and appellate jurisdiction over all contests involving
elective municipal officials decided by trial courts of general jurisdiction,
or involving elective barangay officials decided by trial courts of limited
jurisdiction."
NOTE: The 1973 Constitution used the unique wording that
the COMELEC shall "be the sole judge of all contests," thus giving
the appearance that judicial power had been conferred. This
phraseology, however, was changed in the 1987 Constitution to
give the COMELEC "exclusive jurisdiction over all contests,"
Sec. 4 ART. IX - CONSTITUTIONAL COMMISSIONS
C. The Commission on Elections
393
thus removing any vestige of exercising its adjudicatory power as a
court and correctly aligning it with what it is — a quasi-judicial
body. Consistent with the characterization of its adjudicatory
power as quasi-judicial, the judicial review of COMELEC en banc
decisions (together with the review of Civil Service Commission
decisions) is via the prerogative writ of certiorari, not through an
appeal, as the traditional mode of review of quasi-judicial decisions
of administrative tribunals in the exercise the Court's supervisory
authority. This means that the Court will not supplant the decision
of the COMELEC as a quasi-judicial body .except where a grave
abuse of discretion or any other jurisdictional error exists. The
appropriate due process standards that apply to the COMELEC, as
an administrative or quasi-judicial tribunal, are those outlined in
the seminal case of Ang Tibay v. Court of Industrial Relations;
Mendoza v. Comelec, G.R. No. 188308, October 15, 2009.
Q. Does the Comelec have jurisdiction to issue writs of certiorari, mandamus,
quo warranto or habeas corpus?
A. Yes it does, but only in aid of its appellate jurisdiction over election protest
cases involving elective municipal officials decided by courts of general
jurisdiction, as provided for in Article IX (C), Section 2 of the 1987
Constitution: This point was settled in the case of Relampagos vs.
Cumba. This means is that its jurisdiction is concurrent with that of the
Supreme Court under Article VIII, Section 5(1). Carlos v. Judge Angeles,
G.R. No. 142907, November 29,2000.
Q. Summarize the development of jurisprudence on the powers of
the Commission on Elections.
A. The developments since Nacionalista Party v. Comelec, 85 Phil.
149 (1949) until 1965 was summed up by Ututalan v. Comelec, 15 SCRA
465,469 (1965) by saying that the "functions of the Commission under
the Constitution are essentially executive ('enforcement') and
administrative ('administration') in nature!" Abes v. Commission on
Elections, L-28348, December 15,1967, could say that there "has been
neither deviation nor retreat" from this doctrine.
Subsequent decisions, however, showed that the characterization
of the Comelec's power by the Nacionalista Party case as being
"preventive only and not curative also" was, perhaps, less than accurate.
The Supreme Court, in acknowledging the broad sweep of the
Comelec's constitutional power to insure free, orderly, and honest
elections, recognized in the Commission a power which already partook
of the "curative" power to nullify improperly made canvass. Thus, a
divided Court in Lagumbay v. Comelec, 16 SCRA 175 (1966),
394 THE 1987 PHILIPPINE CONSTITUTION:
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upheld the Commission's authority to exclude what the Court characterized
as statistically improbable returns. In Antonio, Jr. v. Comelec, 32
SCRA 319 (1970), the Court upheld the power of the Comelec to
exclude returns which were the product of coercion even if they be
clean on their face. Finally, Usman v. Commission on Elections, 42 SCRA
667 (1971) upheld the authority of the Comelec to entertain the
testimony of handwriting experts as proof of the falsity of the returns.
At the core of most of these cases, and other similar cases, was
the problem of determining where the jurisdiction of the Commissipn
ended and where the authority of the Electoral Tribunals and the courts
began. Under the 1973 Constitution, this aspect of the problem largely
disappeared because aside from its administrative power of deciding all
cases relative to the conduct of election, the Commission then was
given thejudicial power of being "the sole judge of all contests relating
to the elections, returns, and qualifications of all members of the
Batasang Pambansa and elective provincial and city officials." Article XII,
C, Section 2(2), 1973 Constitution. The problem of conflict of jurisdiction
could then arise only in the election of municipal and other minor
elective officials. This problem will continue under the new Constitution
because the Commission on Elections continues to have original
jurisdiction over election contests involving regional, provincial, and city
officials, and appellate jurisdiction over municipal and barangay officials.
Moreover, with the return of jurisdiction over election contests
involving members of Congress to the Electoral Tribunals, the problems
under the 1935 Constitution will also return.
Q. Does the Comelec have jurisdiction over plebiscites?
A. Yes. The case at bar involves the determination of whether the electorate
of Taguig voted in favor of, or against the conversion of the municipality
of Taguig into a highly urbanized city in the plebiscite conducted for the
purpose. This is within the jurisdiction of the Comelec and not of regular
courts. The case at bar assailing the regularity of the conduct of the
Taguig plebiscite does not fit the kind of a case calling for the exercise of
judicial power. It does not involve the Violation of any legally
demandable right and its enforcement. There is no plaintiff or
defendant m the case at bar for it merely involves the ascertainment of
the vote of the electorate of Taguig whether they approve or
disapprove the conversion of their municipality to a highly urbanized
city. Buac and Bautista v. Comelec, G.R. No. 155855, January 26, 2004.
Q. Does the Comelec have jurisdiction over intra-party disputes?
A. The COMELEC correctly stated that "the ascertainment of the identity of [a]
political party and its legitimate officers"
Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS 395
C. The Commission on Elections
is a matter that is well within its authority. The source of this authority is
no other than the fundamental law itself, which vests upon the
COMELEC the power and function to enforce and administer all laws
and regulations relative to the conduct of an election. In the exercise of
such power and in the discharge of such function, the Commission is
endowed with ample "wherewithal" and "considerable latitude in
adopting means and methods that will ensure the accomplishment of
the great objectives for which it was created to promote free, orderly
and honest elections." To resolve this simple issue, the COMELEC need
only to turn to the Party Constitution. It need not go so far as to resolve
the root of the conflict between the party officials. It need only resolve
such questions as may be necessaxy in the exercise of its enforcement
powers. LDP v. COMELEC, G.R. No. 161265, February 24,2004; Atienza,
et al. v. Comelec, G.R. No. 188920, February 16,2010.
Q. May the Commission promulgate rules and regulations for the
implementation of election laws?
A. Yes. Such power is deemed implicit in the power to implement regulations.
Gallardo v. Tabamo, Jr., 218 SCRA 253, 263-264 (1993).
Moreover, should there be conflict between a rule of procedure
promulgated by the Commission and a Rule of Court, if the proceeding is
before the Commission, the Commission rule should prevail; but if the
proceeding is in court, the Rules of Court should prevail. Aruelo, Jr. v.
Court of Appeals, October 20,1993.
Q. Does the Commission have the power to transfer municipalities from one
congressional district to another for the purpose of preserving
proportionality.
A. No. This is not one of the broad powers granted by Section 2(2). Neither is it
what is referred to by tlie Ordinance Appended to the Constitution,
Sections 2 and 3, authorizing the Commission to make "minor
adjustments." The deliberations of the Constitutional Commission on
the subject clearly excluded the power to transfer whole municipalities.
Montejo v. Commission on Elections, 242 SCRA 415 (1995).
Q. In cases where the Comelec has appellate jurisdiction, what is the period for
making the appeal?
396 THE 1987 PHILIPPINE CONSTITUTION: Sec.
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A. Section 6, Article IX-A of the 1987 Constitution grants and authorizes the
COMELEC to promulgate its own rules of procedure. The 1993
COMELEC Rules of Procedure have provided a uniform five (5) day
period for taking an appeal. Significantly, Section 5(5), Article VIII of the
Constitution provides in part that "[r]ules of procedure of special courts
and quasi-judicial bodies shall remain effective unless disapproved by
the Supreme Court." Antonio v. Comelec, G.R. No. 135869, September
22,1999.
Q. What is the scope of the power of the Commission over deputized
officers?
A. The power of the Commission over deputized officers under Section 2(6)
covers not just criminal cases but also administrative cases. Thus, where
the Commission has deputized a City Prosecutor as election canvasser,
such Prosecutor cannot claim immunity from the power of the
Commission on the argument that he comes under the executive
department. The Commission has power over all persons required by
law to perform duties relative to the conduct of elections. However,
under Section 2(8), the Commission may merely issue a
recommendation for disciplinary action to the President. Tan v.
Comelec, 237 SCRA 353,358-359 (1994).
Q. More specifically, who decides problems involving "elections, returns, and
qualifications" of candidates?
A. Once a winning candidate has been proclaimed, taken his oath, and
assumed office as a Member of the House of Representatives,
COMELEC's jurisdiction over election contests relating to his election,
returns, and qualifications ends, and the HRETs own jurisdiction begins.
Aggabao v. Comelec, G.R. No. 163756, January 26,2005.
Moreover, in the case of municipal offices, even if the case began
with the Comelec before proclamation, if there should be proclamation
before the controversy is resolved, it ceases to be a pre-proclamation
controversy and becomes a contest cognizable by the Court of First
Instance. E.g., Arcenas v. Comelec, supra; Faderanga v. Comelec, supra.
Q. What is the difference between the jurisdiction of the COMELEC before
proclamation and its jurisdiction after proclamation? Or, put differently,
what is the difference between the jurisdiction
Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS 397
C. The Commission on Elections
of the Comelec over a pre-proclamation controversy and its jurisdiction
over a "contest?"
A. Its jurisdiction over a pre-proclamation controversy is administrative or
quasi-judicial and is governed by the less stringent requirements of
administrative due process (although the Supreme Court has insisted
that question on "qualifications" should be decided only after a
full-dress hearing) whereas its jurisdiction over "contests" is judicial and
is governed by the requirements of judicial process. Hence, even in the
case of regional or provincial or city offices, it does make a difference
whether the COMELEC will treat it as a pre-proclamation controversy or
as a contest.
Q. Section 9 of R.A. 6679 makes decisions of a municipal or
metropolitan court in a barangay election appealable to the regional
trial court. Is this valid?
A. No. The COMELEC has exclusive appellate jurisdiction over all
contests involving barangay elective officials decided by trial court of
limited jurisdiction. The jurisdiction of the COMELEC, however, is over
questions of fact; questions of law go to the Supreme Court. Flores v.
COMELEC, G.R. No. 89604, April 20,1990.
Q. Section 4 of COMELEC Resolution No. 2499 placed the
Sangguniang Kabataan ("SIC) elections under the direct control and
supervision of the Department of Interior and Local Government. Does
this contravene the Constitutional mandate that the COMELEC shall
have the power to "enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum
and recall?"
A. No. "Elections for SK officers are not subject to supervision of
the COMELEC in the same way that, as we have recently held [i.e., in
Mercado v. Board of Election Supervisors, 243 SCRA 422 (1995)],
contests involving elections of SK officials do not fall within the
jurisdiction of the COMELEC." Alunan III v. Mirasol, G.R. No. 108399, July
31,1997, 276 SCRA 501, 511.
Q. Does the COMELEC have authority to review contests involving
the election of officers of a barangay federation?
A. No. The power of the COMELEC is over popular elections. Taule
v. Secretary Santos, G.R. No. 90336, August 12,1991.
NOTE: If a case which should go to the Comelec en banc is
erroneously filed with a division, it may automatically be elevated to the
Comelec en banc. This is not provided for in the Comelec Rules of
Procedure, but such action is not prohibited. Mutilan v. Comelec, G.R.
No. 1712468, April 2, 2007.
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However, it is only in the exercise of its adjudicatory or quasijudicial
powers that the COMELEC is mandated to hear and decide
cases first by division and then, upon motion for reconsideration, by the
COMELEC en banc. The conduct of a preliminary investigation before
the filing of an information in court does not involve the exercise of
adjudicatory function. Baytan v. Comelec, G.R. No. 153945, February
4,2003; Balindong v. Comelec, G.R. Nos. 153991-92, October 16,2003
Moreover, the rule is that only decisions of the Comelec en banc
may be brought to the Court on certiorari. However, where a division of
the Comelec decides a motion for reconsideration in violation of Article
IX, C, 3, the division's ruling is a complete nullity and may be brought to
the Court on certiorari. Aguilar v. Comelec, G.R. No. 185140, June
30,2009.
Q. A defeated mayoralty candidate files a protest with the CFI.
Dismissal of the protest is sought on the ground that the petitioner did
not allege that he filed a certificate of candidacy, a jurisdictional fact.
Decide.
A. It may be that he did not allege so in so many words; but such
jurisdictional fact need not be expressed in a fixed formula. It can be
deduced from the tenor of the allegations. Maquinay v. Bleza, 100 SCRA
702 (L-54230, October 30,1980).
Q. Does the COMELEC have the power to annul an entire
municipal election on the ground of post-election terrorism?
A. Yes. It may be true that there is no specific provision vesting
such authority in the COMELEC, but there is no doubt that the body has
extensive powers given by the new Constitution under the general
rubric of its authority to "enforce and administer all laws relative to the
conduct of elections" under Article IX, C, 2(1). Moreover, Section 185 of
the 1978 Election Code accords it exclusive charge of the enforcement
and administration of all laws relative to the conduct of elections for the
purpose of insuring free, orderly and honest elections. Election returns
which are coerced returns are no returns at all and the COMELEC has
the power to reject them. True, earlier decisions under the 1935
Constitution denied this power to the COMELEC. E.g., Abes v. Comelec,
21 SCRA 1252 (1967); but the new Constitution has expanded the
powers of the COMELEC. Biliwang v. Comelec, G.R. No. 55642, June
19,1982. Here the COMELEC had found that it was impossible to
distinguish the illegal from the valid returns. (NOTE also that the
COMELEC annulled the elections after proclamation.)
Q. The Comelec is given authority to investigate and prosecute
violations of the election law and Section 7 says that decisions, orders,
and rulings of the Commission may be reviewed only by the Supreme
Court on certiorari. After the preliminary investigation
.2 ART. IX - CONSTITUTIONAL COMMISSIONS
C. The Commission on Elections
399
conducted by Comelec lawyers and after the Comelec approves the
report and orders the filing of a criminal case, may the trial court order a
reinvestigation and require the presentation of the records of the
preliminary investigation made by the Comelec?
A. Yes. The "final orders, rulings and decisions of the COMELEC
reviewable on certiorari by the Supreme Court as provided by law are
those rendered in actions or proceedings before the COMELEC and
taken cognizance of by said body in the exercise of its adjudicatory or
quasi-judicial powers." The regional trial court, on the other hand, is
given exclusive authority to try and decide criminal cases involving
elections. When the Comelec as prosecutor files a case before a trial
court, the trial court acquires jurisdiction and all subsequent dispositions
of the case must be subject to approval by the court. Hence, the court
may order reinvestigation and require submission of records of the
preliminary examination to satisfy itself that there is probable cause for
the issuance of a warrant of arrest. People v. Hon. Delgado, G.R. No.
93419-32, September 18,1990.
Q. What is the import of the constitutional [Art. IX-C, §2(7)] and
statutory [§265, B.P. Big. 881 ("Omnibus Election Code")] mandate for
the Comelec to investigate and prosecute cases of violation of election
laws?
A. It "translates, in effect, to the exclusive power to conduct
preliminary investigations in cases involving election offenses for the
twin purpose of filing an information in court and helping the Judge
determine, in the course of preliminary inquiry, whether or not a
warrant of arrest should be issued." Kilosbayan, Inc. v. Commission on
Elections, G.R. No. 128054, October 16,1997,280 SCRA 892, 917.
NOTE: Section 2(6), Article IX-C of the Constitution vests in the
COMELEC the power to "investigate and, where appropriate, prosecute
cases of violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices." The phrase
"[w]here appropriate" leaves to the legislature the power to determine
the kind of election offenses that the COMELEC shall prosecute
exclusively or concurrently with other prosecuting arms of the
government. Banat v. Comelec, G.R. No. 177508, August 7,2009.
Q. Petitioner contends that, since the 1987 Constitution
empowered the Comelec to investigate and prosecute cases involving
election offenses, it is the obligation of the Comelec to search for the
evidence needed to judicially indict the respondents identified in
petitioner's letter-complaint as the government officials who disbursed
public finds allegedly for electioneering purposes during the May, 1992
elections. Decide.
A Erroneous contention. "The task of the Comelec as investigator
and prosecutor, acting upon any election offense complaint, is
400 THE 1987 PHILIPPINE CONSTITUTION:
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not physical searching and gathering of proof in support of a complaint
for an alleged commission of an election offense. A complainant, who in
effect accuses another person of having committed an act constituting
an election offense, has the burden, as it is his responsibility to follow
through his accusation and prove his complaint." Kilosbayan, Inc. v.
Commission on Elections, G.R. No. 128054, October 16, 1997, 280 SCRA
892, 924.
Q. Does a preliminary investigation conducted by a Provincial
Election Supervisor involving election offenses have to be coursed
through the Provincial Prosecutor before the Regional Trial Court may
take cognizance of the investigation and determine whether or not
probable cause exists?
A. No, because prosecution of election offenses is exclusively
under the COMELEC. If the Provincial Prosecutor performs any role at
all, it is by delegation by the COMELEC. The court therefore may rely on
the investigation conducted by the Provincial Election Supervisor for
purposes of determining the existence of probable cause to issue a
warrant. People v. Judge Inting, G.R. No. 88919, July 25,1990.
Q. Which of the following have the power to investigate,
prosecute and try election offenses committed by a public officer in
relation to his office — the Commission on Elections, the Fiscal, or the
Special Prosecutor in the Ombudsman office?
A. The Commission on Elections has exclusive jurisdiction. Corpus
v. Tanodbayan, 149 SCRA 281, 283 (1987).
Q. Information was filed by the Provincial Fiscal for an election
offense as an aftermath of the elections of May 1987. The judge
dismissed the information on the ground that prosecuting election
offenses is within the exclusive jurisdiction of the Commission on
Elections. Decide.
A. While indeed the COMELEC is vested with exclusive power to
prosecute election offenses, the Constitution in Article IX, C, Section 2(4)
likewise authorizes the COMELEC to deputize, with the consent of the
President, other law enforcement agencies. This the COMELEC has
done and the consent of the President was given in E.O. 134 dated
February 27,1987. The acts of the delegated officers are in legal
contemplation acts of the COMELEC. People v. Basilia, G.R. No.
83938-40, November 6,1989.
Q. What are the powers which have been declared not to belong to the
COMELEC?
A. There are certain powers which even under the new Constitution still clearly
do not belong to the Commission. Thus, it is not
Sec. 4 ART. IX - CONSTITUTIONAL COMMISSIONS
C. The Commission on Elections
401
empowered to decide questions "involving the right to vote." Article IX,
C, Section 2(3). The power to determine whether or not a person can
exercise or is precluded from exercising the right of suffrage is a judicial
question, Pungutan v. Abubakar, 43 SCRA 1, 12 (1972), and the power
to resolve such question has been excluded from the Commission's
power to be judge of election contests. Finally, while the Commission
may punish for contempt, such power may not be exercised in
connection with its purely executive or ministerial functions but only in
furtherance of its quasi-judicial and now also judicial functions. Guevara
v. COMELEC, 104 Phil. 268 (1958); Masangcay v. Comelec, 6 SCRA 27
(1962).
Q. Does the Comelec have the power to decide whether a person has the
constitutional qualifications to be voted for even in national elections?
A. Before proclamation, any problem should be resolved in a "preproclamation"
proceeding by the Commission because of its powers
under Sections 2(1) and (3). The only questions that may not be touched
by the Commission are "those involving the right to vote." Hence,
before proclamation, the Commission has the authority to decide
whether a person has the constitutional qualifications needed to be
voted for even on the national level. See dissenting view of Narvasa, C.J.
and Mendoza, J. in Romualdez-Marcos v. Commission on Elections, G.R.
No. 119976, September 18,1995.
Q. If a proclaimed winner is subsequently declared to be disqualified, does the
second placer take his place?
A. No. As early as Geronimo v. Ramos, [136 SCRA 435] this Court has held that:
"The fact that the candidate who obtained the highest number of votes
is later declared to be disqualified or not eligible for the office to which
he was elected does not necessarily entitle the candidate who obtained
the second highest number of votes to be declared the winner of the
elective office. The votes cast for a dead, disqualified or non- eligible
person may not be valid to vote the winner into office or maintain him
there. . . . The rationale for the rule is explained in Benito v. COMELEC
[235 SCRA 436] as follows: "For to allow the defeated and repudiated
candidate to take over the mayoralty despite his rejection by the
electorate is to disenfranchise the electorate without any fault on their
part
402 THE 1987 PHILIPPINE CONSTITUTION:
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and to undermine the importance and meaning of democracy and the
people's right to elect officials of their choice." [at pp. 441-442. Loreto v.
Brion, G.R. No. 130681, July 29,1999.
Q. What political parties and organizations may not be registered?
A. Generally, all political parties and organizations which present their
platform or program of government and which satisfy requirements
prescribed by law may register. However, religious denominations and
sects and organizations which seek to achieve their goals through
violence or unlawful means or refuse to uphold and adhere to the
Constitution, or which are supported by foreign governments, may not
be registered.
Q. May lay organizations with religious affiliations or political parties which
derive their principles from religious beliefs be registered?
A. Yes. The ban is only on religious denominations and sects, such as the
Catholic Church, or the Anglican Church, or the Iglesia ni Kristo, or the
Muslim denomination. This prohibition is made in the spirit of
separation of Church and State and is intended to prevent churches as
churches from wielding political power.
SEC. 3. THE COMMISSION ON ELECTIONS MAY SIT EN BANC OR EN
TWO DIVISIONS, AND SHALL PROMULGATE ITS RULES OF PROCEDURE IN
ORDER TO EXPEDITE DISPOSITION OF ELECTION CASES, INCLUDING
PREPROCLAMATION
CONTROVERSIES. ALL SUCH ELECTION CASES SHALL
BE HEARD AND DECIDED IN DIVISION, PROVIDED THAT MOTIONS FOR
RECONSIDERATION OF DECISIONS SHALL BE DECIDED BY THE
COMMISSION
EN BANC.
Q. Does the Comelec en banc have jurisdiction to decide election cases?
A. No. This power pertains to the divisions of the Commission. Any decision by
the Commission en banc as regards election cases decided by it in the
first instance is null and void. Soller v. Comelec, G.R. No. 139853,
September 5, 2000.
Q. When is hearing by division required?
A. It is only in the exercise of its adjudicatory or quasi-judicial powers that the
COMELEC is mandated to hear and decide cases first by division and
then, upon motion for reconsideration,
Sec. 4 ART. IX - CONSTITUTIONAL COMMISSIONS
C. The Commission on Elections
403
by the COMELEC en bane. The conduct of a preliminary investigation
before the filing of an information in court does not involve the exercise
of adjudicatory function. Baytan v. Comelec, G.R. No. 153945, February
4, 2003; Balindong v. Comelec, G.R. Nos. 153991-92, October 16,2003.
Q. Do coalitions have to register in order to enjoy the benefits of a registered
political party?
A. Yes, because the coalition is distinct in personality from that of the
coalescing parties. Moreover, this issue is administrative and not
quasi-judicial and therefore may be decided by the Comelec en banc
without going through a division first. Liberal Party v. Comelec, G.R. No.
191771, May 6,2010.
Q. Must a motion for reconsideration of an order of dismissal for lack of
interest due to the failure of petitioner or counsel to appear for hearing
be reviewed by the COMELEC en banc or may it be considered by a
division?
A. It may be considered by a division. What the Constitution says must be
heard in banc are motions for reconsideration of "decisions," that is
resolutions of substantive issues. The described dismissal was not a
decision. Salazar, Jr. v. COMELEC, G.R. No. 85742, April 19,1990.
Q. Is the rule on preferential disposition of election cases suggested by Section
7, Article IX-C and the requirement in Section 257 of the Omnibus
Election Code that the COMELEC shall decide all election cases brought
before it within ninety days from the date of submission a hard and firm
rule?
A. No. Considering the tribunal's manpower and logistic limitations, it is
sensible to treat the procedural requirements on deadlines realistically.
Overly strict adherence to deadlines might induce the Commission to
resolve election contests hurriedly by reason of lack of material time. In
our view this is not what the framers of the Code had intended since a
very strict construction might allow procedural flaws to subvert the will
of the electorate and would amount to disenfranchisement of voters.
Alvarez v. Comelec, G.R. No. 142527, March 1, 2001.
SEC. 4. THE COMMISSION MAY, DURING THE ELECTION PERIOD,
SUPERVISE OR REGULATE THE ENJOYMENT OR UTILIZATION OF ALL
FRANCHISES OR PERMITS FOR THE OPERATION OF TRANSPORTATION
AND
404 THE 1987 PHILIPPINE CONSTITUTION:
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OTHER PUBLIC UTILITIES, MEDIA OF COMMUNICATION OR INFORMATION,
ALL GRANTS, SPECIAL
PRIVILEGES, OR CONCESSIONS GRANTED BY THE
GOVERNMENT OR ANY SUBDIVISION, AGENCY, OR INSTRUMENTALITY
THEREOF, INCLUDING ANY GOVERNMENT-OWNED OR CONTROLLED
CORPORATION OR ITS
SUBSIDIARY. SUCH SUPERVISION OR REGULATION SHALL AIM TO
ENSURE EQUAL OPPORTUNITY,
TIME, AND SPACE, AND THE RIGHT TO REPLY, INCLUDING REASONABLE,
EQUAL RATES
THEREFOR, FOR PUBLIC INFORMATION CAMPAIGNS AND FORUMS
AMONG CANDIDATES IN
CONNECTION WITH THE OBJECTIVE OF HOLDING FREE, ORDERLY,
HONEST, PEACEFUL, AND
CREDIBLE ELECTIONS.
Q. Does the power to regulate media during "election period"
also extend to the period of a plebiscite or referendum?
A. Yes. Of essence to plebiscite and referenda is "fair submission."
Moreover, the formulation of the Constitution is more important in a
sense than the choice of men who will implement that charter.
Evidently, therefore, regulatory power during the period of plebiscite or
referendum, is also intended. Unido v. Comelec, 104 SCRA 17, 39
(L-56515, April 3,1981).
Q. On the occasion of the ratification campaign for the Autonomy
Act for the Cordillera, the COMELEC, issued a resolution prohibiting
columnists, commentators, and announcers from using their columns
or radio or television time to campaign for or against the plebiscite
dining the period of the campaign. Reliance was made on the Election
Code and on Article IX, C, Section 4 of the Constitution authorizing the
COMELEC to "supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of. . . media communication or
information." Sanidad, a columnist, challenged the validity of the
resolution as a violation of freedom of expression. Decide.
A. The resolution is unconstitutional. The authority given by the
Constitution is over holders of franchises. The purpose is to assure
candidates equal opportunity and equal access to media. Sanidad is not
a candidate and in fact in a plebiscite there are no candidates. Plebiscite
issues are matters of public concern and the people's right to be
informed must be preserved. Moreover, the people's choice of forum
for discussion should not be restricted. Sanidad v. COMELEC, G.R. No.
90878, January 29,1990.
Q. May the Comelec require print media to allocate free space for
candidates?
A. The 1995 case of Philippine Press Institute v. Commission on
Elections, G.R. No. 119654, May 22, 1995, ruled that print media may
not be compelled to allocate free space to the Commission.
Sees. 5-6 ART. IX - CONSTITUTIONAL COMMISSIONS
C. The Commission on Elections
405
Such would amount to a prohibited taking of property without just
compensation.
NOTE: See also the case on media ban on election ads and on
election surveys discussed under Section 4, Article III.
SEC. 5. No PARDON, AMNESTY, PAROLE, OR SUSPENSION OF SENTENCE
FOR VIOLATION OF ELECTION LAWS, RULES, AND REGULATIONS SHALL
BE GRANTED BY THE
PRESIDENT WITHOUT THE FAVORABLE RECOMMENDATION
OF THE COMMISSION.
SEC. 6. A FREE AND OPEN PARTY SYSTEM SHALL BE ALLOWED TO
EVOLVE ACCORDING
TO THE FREE CHOICE OF THE PEOPLE, SUBJECT TO THE
PROVISIONS OF THIS ARTICLE.
Q. What are political parties?
A. "Section 80 of the 1965 Election Code and Section 22 of the 1971 Election
Code defined a political party as 'an organized group of persons
pursuing the same political ideals in a government and includes its
branches, and divisions.' The 1978 Election Code adopted the
aforequoted definition by providing in Section 199 that 'any other group
of persons pursuing the same political ideals in government may
register with the Commission and be entitled to the same rights and
privileges.'" Geronimo v. Comelec, 107 SCRA 614, 627 (L-52413,
September 26,1981).
Q. Was the KBL a political party?
A. For the purpose of the Interim Batasang Pambansa elections in
April 1978, the KBL was not considered a political party but merely as
"an umbrella organization." Laban v. Comelec, 82 SCRA 196 (March 25,
1978). After the 1978 elections, however, the KBL became a party as
shown by the actuations of its members, e.g., in the Interim Batasang
Pambansa. (Hence, since that time, affiliation with or departure from it
became covered by Section 10 on "turncoatism.") Sevillaje v. Comelec,
107 SCRA 141,156 (L-52793 & 53504, August 31, 1981); Geronimo v.
Comelec, 107 SCRA 614, 626 (L-52413, September 26,1981).
Q. What is the importance of registration of a political party? A. (1)
Registration confers juridical personality on the party.
(2) It informs the public of the party's existence and ideals.
(3) It identifies the party and its officers for purposes of regulation by
the COMELEC. various parties — proportional, that is, to the membership strength of
406 THE 1987 PHILIPPINE CONSTITUTION: Sec. the parties in the Senate and House of Representatives. In both the
16 Senate and House Electoral Tribunals, only the two major parties
A COMPREHENSIVE REVIEWER enjoyed representation. Since there was no Commission on
Q. Do coalitions have to register in order to enjoy the benefits of a registered Sees. 9-10 ART. IX - CONSTITUTIONAL COMMISSIONS
political party? C. The Commission on Elections
A- Yes, because the coalition is distinct in personality from that of the 407
coalescing parties. Liberal Party v. Comelec, G.R. No. 191771, May Appointments or Electoral Tribunal in the 1973 Constitution, these
6,2010. constitutional advantages enjoyed by the two major parties were
Q. To register for purposes of the electoral process, must an organization be a absent in that Constitution. Under the new Constitution, representation
political party? is given not just to the two major parties but to all parties proportionally.
A. No. See Section 2(5). Under the 1971 Election Code, only the two major parties had
Q. Is there a distinction between an accredited political party and a registered representation in the Registration Board, in the Board of Election
political party? Inspectors, in the Committee on Printing of Official Ballots, and in the
A. The concept of accreditation no longer appears in the new Constitution. For provincial body charged with the duty to verify the official ballots sent to
purposes of the electoral process, all parties, organizations and the provinces by the Bureau of Printing. These advantages disappeared
coalitions are considered equal. with the adoption in 1973 of Section 9(2): "No party or candidate shall
SEC. 7. No VOTES CAST IN FAVOR OF A POLITICAL PARTY, have membership in the registration board, board of election
ORGANIZATION, OR inspectors, board of canvassers, or other similar bodies." The 1981
COALITION SHALL BE VALID, EXCEPT FOR THOSE REGISTERED UNDER Amendments, however, restored the preferred position of the top two
THE PARTY-LIST SYSTEM AS political parties, if accredited, at least in registration boards, boards of
PROVIDED IN THIS CONSTITUTION. election inspectors, boards of canvassers, other similar bodies.
Q. Is block-voting allowed? Moreover, such accredited parties "may by law be granted other rights
A. In effect Section 7 prohibits block-voting "except for those registered under or privileges." Under the new Constitution the concept of accreditation
the party-list system." and the consequent advantages of accredited parties disappeared.
SEC. 8. POLITICAL PARTIES, OR ORGANIZATIONS OR COALITIONS Moreover, Section 8 now says: "Political parties, or organizations or
REGISTERED UNDER THE PARTY-LIST SYSTEM, SHALL NOT BE coalitions registered under the party-list system, shall not be
REPRESENTED IN THE VOTERS' represented in the voters' registration boards of election inspectors,
REGISTRATION BOARDS OF ELECTION INSPECTORS, BOARDS OF boards of canvassers, or other similar bodies. However, they shall be
CANVASSERS, OR OTHER entitled to appoint poll watchers in accordance with law." Thus, there is
SIMILAR BODIES. HOWEVER, THEY SHALL BE ENTITLED TO APPOINT again a leveling of all political parties. In fact, the purpose of Section 8
POLL WATCHERS IN and Section 7 is to allow the growth of a multi-party system.
ACCORDANCE WITH LAW. Note, however, that the multi-party system was responsible for
Q. What has happened to the "two-party system" under the 1935 the proliferation of candidates during the 1992 national elections!
Constitution? SEC. 9. UNLESS OTHERWISE FIXED BY THE COMMISSION IN SPECIAL
A. The 1935 Constitution and the 1971 Election Code both gave a preferred CASES, THE ELECTION PERIOD SHALL COMMENCE NINETY DAYS
position to the two major political parties. The 1935 Constitution gave BEFORE THE
proportional representation in the Commission on Appointments to the DAY OF ELECTION AND SHALL END THIRTY DAYS THEREAFTER.
SEC. 10. BONA FIDE CANDIDATES FOR ANY PUBLIC OFFICE SHALL BE
FREE FROM ANY FORM OF HARASSMENT AND DISCRIMINATION.
Q. Does this provision give candidates immunity from suit? A. No.
408 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 5-6
Q. Give an example of discrimination.
A. Unequal treatment in the availment of media facilities.
SEC. 11. FUNDS CERTIFIED BY THE COMMISSION AS NECESSARY TO
DEFRAY THE EXPENSES FOR HOLDING REGULAR AND SPECIAL
ELECTIONS, PLEBISCITES,
INITIATIVES, REFERENDA, AND RECALLS, SHALL BE PROVIDED IN THE
REGULAR OR SPECIAL
APPROPRIATIONS AND, ONCE APPROVED, SHALL BE RELEASED
AUTOMATICALLY UPON
CERTIFICATION BY THE
CHAIRMAN OF THE COMMISSION.
D. THE COMMISSION ON AUDIT
SECTION 1. (1) THERE SHALL BE A COMMISSION ON AUDIT COMPOSED
OF A
CHAIRMAN AND TWO COMMISSIONERS, WHO SHALL BE
NATURAL-BORN CITIZENS OF THE PHILIPPINES AND, AT THE TIME OF
THEIR APPOINTMENT, AT
LEAST THIRTY-FIVE YEARS OF AGE, CERTIFIED PUBLIC ACCOUNTANTS
WITH NOT LESS THAN TEN
YEARS OF AUDITING EXPERIENCE, OR MEMBERS OF THE PHILIPPINE
BAR WHO HAVE BEEN
ENGAGED IN THE PRACTICE OF LAW FOR AT LEAST TEN YEARS, AND
MUST NOT HAVE BEEN
CANDIDATES FOR ANY ELECTIVE POSITION IN THE ELECTIONS
IMMEDIATELY PRECEDING THEIR
APPOINTMENT. AT NO TIME SHALL ALL MEMBERS OF
THE COMMISSION BELONG TO THE SAME PROFESSION.
(2) THE CHAIRMAN AND THE COMMISSIONERS SHALL BE
APPOINTED BY THE PRESIDENT WITH THE CONSENT OF THE
COMMISSION ON
APPOINTMENTS FOR A TERM OF SEVEN YEARS WITHOUT
REAPPOINTMENT. OF THOSE FIRST
APPOINTED, THE CHAIRMAN SHALL HOLD OFFICE
FOR SEVEN YEARS, ONE COMMISSIONER FOR FIVE YEARS, AND THE
OTHER COMMISSIONER FOR THREE YEARS, WITHOUT REAPPOINTMENT.
APPOINTMENT TO
ANY VACANCY SHALL BE ONLY FOR THE UNEXPIRED PORTION OF THE
TERM OF THE
PREDECESSOR. IN NO CASE SHALL ANY MEMBER BE APPOINTED OR
DESIGNATED IN A
TEMPORARY OR ACTING
CAPACITY.
SEC. 2. (1) THE COMMISSION ON AUDIT SHALL HAVE THE POWER,
AUTHORITY, AND DUTY TO EXAMINE, AUDIT, AND SETTLE ALL
ACCOUNTS PERTAINING TO THE
REVENUE AND RECEIPTS OF, AND EXPENDITURES OR USES OF FUNDS
AND PROPERTY, OWNED
OR HELD IN TRUST BY, OR PERTAINING
TO, THE GOVERNMENT, OR ANY OF ITS SUBDIVISIONS, AGENCIES, OR
INSTRUMENTALITIES, INCLUDING GOVERNMENT-OWNED AND
CONTROLLED CORPORATIONS WITH ORIGINAL CHARTERS, AND ON A
POST-AUDIT BASIS: (A) CONSTITUTIONAL BODIES, COMMISSIONS AND
OFFICES THAT HAVE BEEN GRANTED FISCAL AUTONOMY UNDER THIS
CONSTITUTION; (B) AUTONOMOUS STATE COLLEGES AND UNIVERSITIES;
(c) OTHER GOVERNMENT-OWNED OR
Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS 409
C. The Commission on Elections
CONTROLLED CORPORATIONS AND THEIR SUBSIDIARIES; AND (D) SUCH
NON-GOVERNMENTAL
ENTITIES RECEIVING SUBSIDY OR EQUITY, DIRECTLY OR INDIRECTLY,
FROM OR THROUGH THE
GOVERNMENT, WHICH ARE REQUIRED BY LAW OR THE GRANTING
INSTITUTION TO SUBMIT TO
SUCH AUDIT AS A CONDITION OF SUBSIDY OR EQUITY. HOWEVER,
WHERE THE INTERNAL
CONTROL SYSTEM OF THE AUDITED AGENCIES IS INADEQUATE,
THE COMMISSION MAY ADOPT SUCH MEASURES, INCLUDING
TEMPORARY OR
SPECIAL PRE-AUDIT, AS ARE NECESSARY AND APPROPRIATE TO
CORRECT THE DEFICIENCIES. IT
SHALL KEEP THE GENERAL ACCOUNTS OF THE
GOVERNMENT AND, FOR SUCH PERIOD AS MAY BE PROVIDED BY LAW,
PRESERVE THE VOUCHERS AND OTHER SUPPORTING PAPERS
PERTAINING THERETO.
(2) THE COMMISSION SHALL HAVE EXCLUSIVE AUTHORITY, SUBJECT TO
THE LIMITATIONS
IN THIS ARTICLE, TO DEFINE THE SCOPE OF
ITS AUDIT AND EXAMINATION, ESTABLISH THE TECHNIQUES AND
METHODS REQUIRED
THEREFOR, AND PROMULGATE ACCOUNTING AND AUDITING RULES AND
REGULATIONS,
INCLUDING THOSE FOR THE PREVENTION AND DISALLOWANCE OF
IRREGULAR, UNNECESSARY,
EXCESSIVE, EXTRAVAGANT, OR UNCONSCIONABLE EXPENDITURES, OR
USES OF GOVERNMENT
FUNDS AND PROPERTIES.
Q. What is the general function of the Commission on Audit?
A. It is the function of the Commission on Audit to examine the accuracy of the
records kept by accountable officers and to determine whether
expenditures have been made in conformity with law. It is therefore
through the Commission on Audit that the people can verify whether
their money has been properly spent.
NOTE: Government owned and controlled corporations are
not autonomous bodies independent of government. They are
subject to audit by the Commission on Audit and subject to
control by the President. Government owned and controlled
corporations are not autonomous bodies independent of
government. They are subject to audit by the Commission on
Audit and subject to control by the President. Strategic Alliance v.
Radstock Securities, G.R. No. 178158, December 4, 2009.
Q. Classify the functions of the Commission on Audit.
A. They may be classified thus: (1) to examine and audit all forms of
government revenues; (2) to examine and audit all forms of government
expenditures; (3) to settle government accounts; (4) to promulgate
accounting and auditing rules "including those
410 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 1-2
for the prevention and disallowance of irregular, unnecessary,
excessive, extravagant, or unconscionable expenditures," and (5) to
decide administrative cases involving expenditures of public funds.
Q. May COA, in the exercise of its auditing function, disallow the payment of
backwages to employees illegally dismissed and say that the
responsibility belongs to the official who dismissed them in bad faith?
A. No. COA cannot say that the responsibility belongs to the official who made
the illegal dismissal when such official has not been heard. Besides,
payment of backwages is not an irregular, unnecessary, excessive or
extravagant expense. Uy, et al v. COA, G.R. No. 130685, March 21, 2000.
Q. Are Local Water Districts incorporated under P.D. 198 government owned
corporations with original charter and therefore under the jurisdiction
of the COA?
A. Yes, they are. Davao City Water District, et al v. civil Service Commission and
Commission on Audit, G.R. 95237-8, September 13,1991.
Q. Does the power of the Commission extend to non-accountable officers?
A. The Commission has authority not just over accountable officers but also
over other officers who perform functions related to accounting such as
verification of evaluations and computation of fees collectible, and the
adoption of internal rules of control. An Evaluator/Computer, for
instance, is an indispensable part of the process of assessment and
collection and comes within the scope of the Commission's jurisdiction.
Mamaril v. Domingo, 227 SCRA 206 (1993).
NOTE: Even in cases where pre-audit is allowed and
pre-audit has already been performed, the Commission is not
estopped from making a post-audit. Development Bank of the
Philippines v. Commission on Audit, 231 SCRA 202 (1994).
Q. What is meant by the power of the Commission to "settle accounts?"
A. It means the power to settle liquidated accounts, that is, those accounts
which may be adjusted simply by an arithmetical
.1-2 ART. IX - CONSTITUTIONAL COMMISSIONS
D. The Commission on Audit
411
process. It does not include the power to fix the amount of an unfixed or
undetermined debt. Compafiia General de Tabacos v. French and
Unson, 39 Phil. 34, 42 (1919). Another way of looking at this power was
stated by Guevara v. Gimenez, 6 SCRA 807, 813 (1962) thus:
. . . Such function is limited to a determination of whether there is
a law appropriating funds for a given purpose; whether a contract,
made by the proper officer, has been entered into in conformity with
said appropriation law; whether the goods or services covered by said
contract have been delivered or rendered in pursuance of the provisions
thereof, as attested to by the proper officer; and whether payment
therefor has been authorized by the officials of the corresponding
department or bureau. If these requirements have been fulfilled, it is the
ministerial duty of the Auditor General to approve and pass in audit the
voucher and treasury warrant for said payment.
Q. The Commission on Audit reduced the amount that was
passed in audit on the ground that the original amount was "excessive
and disadvantageous to the government." Does the Commission have
the authority to do so?
A. Yes, on the basis of its authority in Article IX, D, 2(1). This
extends to the accounts of all persons respecting funds or properties
received or held by them in an accountable capacity. Dincong v.
Commissioner Guingona, Jr., 162 SCRA 782 (1988). (The Court, however,
reversed the factual decision that the original amount was excessive.)
NOTE: The COA can decide money claims based on law.
But if a money claim is denied by a law, COA has no authority
to pass judgment on the constitutionality of the law. Parreno c.
COA, G.R. No. 162224 June 7, 2007.
Q. The National Power Corporation hired the services of a lawyer
without complying with the requirement which prior written approval
of the Solicitor General should be observed. When the COA disallowed
payment to the lawyer, it was argued that the circular requiring approval
by the Solicitor General was unconstitutional because it restricted the
practice of law. Decide.
A. The circular was merely a safeguard to prevent irregular,
unnecessary, excessive and extravagant or unconscionable expenditures.
Polloso v. Gangan, G.R. No. 140563, July 14, 2000.
Q. Where regulations require public bidding for the sale of
government property, does the Commission on Audit have the
authority to interpret the meaning of "public bidding" and what
constitutes its "failure?"
412 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 5-6
A. Yes, and for as long that there is no clear evidence of abuse of
discretion, the decision of COA will not be disturbed. "No less than the
Constitution has ordained that the COA shall have exclusive authority to
define the scope of its audit and examination, establish the techniques
and methods required therefore, and promulgate accounting and
auditing rules and regulations, including those for the prevention and
disallowance of irregular, unnecessary, excessive, extravagant, or
unconscionable expenditures, or use of government fluids and
properties." Danville Maritime, Inc. v. Commission on Audit, G.R. No.
85285, July 28,1989.
Q. If the Commission has already passed an account in audit, may
the fiscal still look into it for the purpose of determining possible
criminal liability?
A. Yes, because the Commission's interest is merely administrative
and not criminal. Ramos v. Aquino, 39 SCRA 641 (1971).
Q. Is the authority of the Commission the same for all kinds of funds?
A. No. See Section 2(1).
Q. May public corporations under the jurisdiction of the COA employ private
auditors?
A. Yes. The clear and unmistakable conclusion from a reading of the entire
Section 2 is that the COA's power to examine and audit is non-exclusive.
On the other hand, the COA's authority to define the scope of its audit,
promulgate auditing rules and regulations, and disallow unnecessary
expenditures is exclusive.
However, as the constitutionally mandated auditor of all
government agencies, the COA's findings and conclusions necessarily
prevail over those of private auditors, at least insofar as government
agencies and officials are concerned. DBP v. COA, G.R. No. 88435,
January 16, 2002
SEC. 3. No LAW SHALL BE PASSED EXEMPTING ANY ENTITY OF THE
GOVERNMENT OR
ITS SUBSIDIARY IN ANY GUISE WHATEVER, OR ANY INVESTMENT OF
PUBLIC FUNDS, FROM THE
JURISDICTION OF THE COMMISSION ON
AUDIT.
SEC. 4. THE COMMISSION SHALL SUBMIT TO THE PRESIDENT AND THE
CONGRESS,
WITHIN THE TIME FIXED BY LAW, AN ANNUAL REPORT COVERING THE
FINANCIAL CONDITION
AND OPERATION OF THE GOVERNMENT,
Sec. 2 ART. IX - CONSTITUTIONAL COMMISSIONS 413
C. The Commission on Elections
ITS SUBDIVISIONS, AGENCIES, AND INSTRUMENTALITIES, INCLUDING
GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS, AND NON-GOVERNMENTAL ENTITIES
SUBJECT TO ITS AUDIT, AND
RECOMMEND MEASURES NECESSARY TO IMPROVE THEIR
EFFECTIVENESS AND EFFICIENCY. IT
SHALL SUBMIT SUCH OTHER REPORTS AS MAY BE REQUIRED BY LAW.
ARTICLE X
LOCAL GOVERNMENT
GENERAL PROVISIONS
SECTION 1. THE TERRITORIAL AND POLITICAL SUBDIVISIONS OF THE
REPUBLIC OF THE PHILIPPINES ARE THE PROVINCES, CITIES,
MUNICIPALITIES AND BARANGAYS.
THERE SHALL BE AUTONOMOUS REGIONS IN MUSLIM
MINDANAO AND THE CORDILLERAS AS HEREINAFTER PROVIDED.
Q. What is the constitutional significance of Section 1?
A. The constitutional significance of Section 1 is that provinces, cities, and
municipalities and barangays have been fixed as the standard territorial
and political subdivisions of the Philippines. This manner of subdividing
the Philippines cannot go out of existence except by a constitutional
amendment.
Q. How many autonomous regions are allowed by the Constitution?
A. Only two. Should a third one be desired, a constitutional amendment is
needed.
Q. Why did the Constitutional Commission retain the word barangay in spite
of its links with the previous regime?
A. For three reasons: (1) it has a historical significance in Asia; (2) existing laws
use the term; (3) there are continuing references to it in public
discussions. As Section 3 says, the Local Government Code must be
characterized by decentralization.
Q. E.O. No. 220 dated July 15, 1987 creates the Cordillera
Administrative Region (CAR) creating a temporary administrative
agency pending the creation of the Cordillera Autonomous Region.
Does E.O. 222 thereby create a territorial and political subdivision?
A. No. What is created is not a public corporation but an executive
agency under the control of the national government. It is more similar
to the regional development councils which the President
414
Sec. 2 ART. X - LOCAL GOVERNMENT
General Provisions
415
may create under the Article X, Section 14. Cordillera Broad Coalition v.
Commission on Audit, G.R. No. 79956, January 29,1990.
SEC. 2. THE TERRITORIAL AND POLITICAL SUBDIVISIONS SHALL
ENJOY LOCAL AUTONOMY.
Q. What is the significance of this declaration of local autonomy?
A. It is meant to free local governments from the well-nigh absolute control by
the legislature which characterized local government under the 1935
Constitution. Thus, although a distinction is made between local
governments in general and autonomous regions, even those outside
the autonomous regions are supposed to enjoy autonomy.
Q. Are autonomy and decentralization the same?
A. Not really. Autonomyiseitherdecentralizationofadministration or
decentralization of power. There is decentralization of administration
when the central government delegates administrative powers to
political subdivisions in order to broaden the base of government power
and in the process to make local governments 'more responsive and
accountable,' and 'ensure their fullest development as self-reliant
communities and make them more effective partners in the pursuit of
national development and social progress.' At the same time, it relieves
the central government of the burden of managing local affairs and
enables it to concentrate on national concerns....
"Decentralization of power, on the other hand, involves an
abdication of political power in favor of local government units declared
to be autonomous. In that case the autonomous government is free to
chart its own destiny and shape its future with minimum intervention
from central government authorities. According to a constitutional
author, decentralization of power amounts to 'self-immolation,' since in
that event, the autonomous government becomes accountable not to
the central authorities but to its constituency." Limbona v. Conte
Mangelin, et al., G.R. No. 80391, February 28, 1989. (Citing Bernas,
"Brewing Storm Over Autonomy," Manila Chronicle.)
Q. What is the meaning of local autonomy as it has emerged in recent
decisions?
A. It means that local governments have certain powers given by the
Constitution which may not be curtailed by the national government,
but that, outside of these, local governments may
416 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
not pass ordinances contrary to statute. Magtqjas v. Pryce Properties,
234 SCRA 255 (1994) In Magtajas, the government of Cagayan the Oro
City contended that, under its authority to prohibit gambling, the city
could prevent the Philippine Games and Amusement Board (PAGCOR)
from operating a casino in the city. PAGCOR, however, had authority
under P.D. 1869 to centralize and regulate all games of chance wider
the territorial jurisdiction of the Philippines. In ruling that Cagayan de
Oro City could not curtail PAGCOR's authority the court in no uncertain
terms said: "Municipal governments are only agents of the national
government. Local councils exercise only delegated legislative powers
conferred on them by Congress as the national lawmaking body."
In Laguna Lake Development Authority v. Court of Appeals, G.R.
No. 120865-71, December 7,1995, the Supreme Court denied to the
municipalities around Laguna Lake the power to authorize the
construction or dismantling offish pens, fish enclosures, fish corrals and
the like in Laguna Lake. The municipalities claimed the authority under
general provisions of the 1991 Local Government Code, specifically
Section 149. The Laguna Lake Development Authority (LLDA), however,
claimed power under Republic Act No. 4850 as amended by
Presidential Decree No. 813. Applying principles of statutory
construction, the Court ruled that the specific power of the LLDA must
prevail over the general power of local governments. Moreover, the
Court pointed out that the power given by the Local Government Code
to local governments was a revenue generating power and not a
regulatory power. Hence, the Court, while denying regulatory authority
to the municipalities, recognized their authority to impose fees for
purposes of generating revenue.
In Tan v. Perefia, G.R. No. 149743, February 18, 2005 which
violated the statutory limit on the number of cockpits was declared
invalid.
Q. Do local governments have power to grant franchise to
operate CATV system.
A. No. Batangas CATV v. CA & Batangas City, G.R. No. 138810,
September 29,2004.
Q. The law says that the budget officer shall be appointed by the
Department head upon the recommendation of the head of local
government subject to civil service rules and regulations. If
Sec. 2 ART. X - LOCAL GOVERNMENT
General Provisions
417
none of those recommended by the local government head meets the
requirements of law, may the Department head appoint anyone he
chooses?
A. No. He must return the recommendations of the local
government head explaining why the recommendees are not qualified
and ask for new recommendations. In other words, the recommendation
of the local government head is a conditio sine quo non of
the Department's appointing authority. This is the only way local
autonomy can be given the recognition the Constitution wants it to
have. When in doubt, favor autonomy. San Juan v. Civil Service
Commission, G.R. No. 92299, April 19,1991.
Q. May COA reduce the allowance given to judges by local
governments?
A. No. Since the Local Government Code authorizes local
governments to give allowance to judges and decide how much this
should be, local autonomy prohibits the Commission on Audit from
interfering with the authority of the local government by reducing what
has been decided by the local government. Dadole, et al. v. COA, G.R.
No. 125350, December 3, 2002; Leynes v. COA, G.R. No. 143596,
December 11, 2003.
SEC. 3. THE CONGRESS SHALL ENACT A LOCAL GOVERNMENT CODE
WHICH SHALL PROVIDE FOR A MORE RESPONSIVE AND ACCOUNTABLE
LOCAL GOVERNMENT
STRUCTURE INSTITUTED THROUGH A SYSTEM OF DECENTRALIZATION
WITH EFFECTIVE
MECHANISM OF RECALL, INITIATIVE, AND REFERENDUM, ALLOCATE
AMONG THE DIFFERENT
LOCAL GOVERNMENT UNITS THEIR POWERS, RESPONSIBILITIES AND
RESOURCES, AND PROVIDE
FOR THE QUALIFICATIONS, ELECTION, APPOINTMENT AND REMOVAL,
TERM, SALARIES, POWERS
AND FUNCTIONS AND DUTIES OF LOCAL OFFICIALS, AND ALL OTHER
MATTERS RELATING TO THE
ORGANIZATION AND OPERATION OF THE LOCAL UNITS.
Q. What is the present form of local government?
A. The present form consists of an executive distinct from the legislative body.
This is different from the form of government under the old Metro
Manila Commission where a Commission exercised both legislative and
executive powers.
Q. The 1973 Constitution contained a provision which said that
"No change in the existing form of government shall take effect until
ratified by a majority of the votes cast in a plebiscite called for the
purpose." Why was this not retained?
A. The provision was considered too limitive of the power of
Congress.
418 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Q. What is the present state of the law on "initiative" and "recall?"
A. The 1991 Local Government Code now provides for "initiative and
referendum" on the local level which it defines as "the legal process
whereby the registered voters of a local government unit may directly
propose, enact, or amend any ordinance." The Court has ruled that,
even as worded, the statute authorizes initiative and referendum not
just on ordinances but also on resolutions arguing that to narrow the
meaning to only ordinances would subvert the intent of VI, Section 32
which includes "any act... passed by... local legislative body." Garcia
v. COMELEC, 237 SCRA 279, 290 (1994).
The current law on "recall" is now found also in the Local
Government Code of 1991. The constitutionality of one method of
recall adopted by the Code was tested in Garcia v. Commission on
Elections, 227 SCRA 100 (1993). Section 70 of the 1991 Local
Government Code authorized provinces, cities, legislative districts and
municipalities to have a "preparatory recall assembly" authorized to
initiate the recall of an elective official. The contention of Governor
Enrique Garcia was that "the right to recall does not extend merely to
the prerogative of the electorate to reconfirm or withdraw their
confidence on the official sought to be recalled at a special election.
Such prerogative necessarily includes the sole and exclusive right to
decide on whether to initiate a recall proceedings or not."
In deciding against Garcia the Court said: "The Constitution did
not provide for any mode, let alone a single mode, of initiating recall
elections. Neither did it prohibit the adoption of multiple modes of
initiating recall elections. The mandate given by section 3 of Article X of
the Constitution is for Congress to 'enact a local government code which
shall provide for a more responsive and accountable local government
structure through a system of decentralization with effective
mechanisms of recall, initiative, and referendum . . By this constitutional
mandate, Congress was clearly given the power to choose the effective
mechanisms of recall as its discernment dictates."...
SEC. 4. THE PRESIDENT OF THE PHILIPPINES SHALL EXERCISE
GENERAL SUPERVISION OVER LOCAL GOVERNMENTS. PROVINCES WITH
RESPECT TO
COMPONENT CITIES AND MUNICIPALITIES, AND CITIES AND
MUNICIPALITIES WITH RESPECT TO
COMPONENT BARANGAYS SHALL ENSURE
Sec. 2 ART. X - LOCAL GOVERNMENT
General Provisions
419
THAT THE ACTS OF THEIR COMPONENT UNITS ARE WITHIN THE SCOPE
OF
THEIR PRESCRIBED POWERS AND FUNCTIONS.
Q. What is the power of general supervision?
A. It is the power of a superior officer to see to it that lower officers perform
their functions in accordance with law. It does not include the power to
substitute one's judgment for that of a lower officer in matters where a
lower officer has various legal alternatives to choose from.
Q. What is the supervisory structure in the local government system?
A. The President has general supervision over all local government units. But
his direct supervisory contact is with autonomous regions, provinces,
and independent cities. The rest follow in hierarchical order as indicated
in Section 4.
Q. When Section 187 of the Local Government code authorizes the Secretary
of Justice to pass judgment on the constitutionality or legality of a tax
ordinances or revenue measures, does he not exercise the power of
control?
A. No. He does not thereby dictate what the law should be but merely ensures
that the ordinance is in accordance with law. Drilon v. Lim, 235 SCRA
135,141 (1994).
Q. Petitioner challenges the right of the President, through the
Secretary of Interior, to suspend him on the ground that the removal of
the phrase "as may be provided by law" from the constitutional
provision has stripped the President and legislature of the power over
local governments. Corollarily he argues that the new Constitution has
effectively repealed existing laws on the subject. Decide.
A. The power of general supervision of the President includes the
power to investigate and remove. Moreover, Section 3 itself of this
Article provides that the Local Government Code may provide for "removal"
thus indicating that laws on the subject are not out of the
compass of the legislature. Autonomy does not transform local governments
into kingdoms unto themselves. The important distinction is
between the power of general supervision, which the President has, and
the power of control, which the President does not have. Ganzon v.
Court of Appeals, G.R. No. 93252, August 5,1991.
Q. May the Secretary of Local Government annul the election of
officers of a federation of barangay officials?
420 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
A. No. Such annulment would amount to control and therefore in
excess of executive supervisory powers. Taule v. Secretary Santos, G.R.
No. 90336, August 12,1991.
Q. Did COA commit grave abuse of discretion in affirming the
disallowance of P3,760,000 for premium paid for the hospitalization and
health care insurance benefits granted by the Province of Negros
Occidental to its 1,949 officials and employees.
A. Yes. LGUs are not under the control of the President or
executive officers. They are only under general their supervision.
Province of Negros v. COA, G.R. No. 182574, September 28,2010.
SEC. 5. EACH LOCAL GOVERNMENT UNIT SHALL HAVE THE POWER
TO CREATE ITS OWN SOURCES OF REVENUE AND TO LEVY TAXES, FEES,
AND CHARGES SUBJECT TO SUCH GUIDELINES AND LIMITATIONS AS
THE
CONGRESS MAY PROVIDE, CONSISTENT WITH THE BASIC POLICY OF
LOCAL
AUTONOMY. SUCH TAXES, FEES, AND CHARGES SHALL ACCRUE
EXCLUSIVELY
TO THE LOCAL GOVERNMENTS.
Q. It is contended that the exemption of PAGCOR from tax violates the right of
local governments to create its own source of revenue. Comment.
A. "The power of local government to 'impose taxes and fees' is always
subject to limitations' which Congress may provide by law." PAGCOR is
exempted by PD 1869 which is still extant. Basco v. PAGCOR, 197 SCRA
52, 65 (1991). NOTE: Is this still good law considering that PD 1869
predates the Local Government Code?
Q. How are statutory provisions on fiscal powers of local governments
interpreted?
A. The power of local governments to tax is liberally interpreted in its favor
against the state, but it is strictly construed against . the local government in
favor of the taxpayer. Petron v. Mayor, G.R. No. 158881, April 16, 2008.
Q. May Makati City impose business taxes on condominium corporations?
A. The power of local government units to impose taxes within its territorial
jurisdiction derives from the Constitution itself, which recognizes the
power of these units "to create its own sources of revenue and to levy
taxes, fees, and charges subject to such guidelines and limitations as the
Congress may
Sec. 11 ART. X - LOCAL GOVERNMENT
General Provisions
421
provide, consistent with the basic policy of local autonomy." These guidelines
and limitations as provided by Congress are in main contained in the
Local Government Code of 1991 (the "Code").
For Makati to impose a business tax it must be shown that the
Condominium is engaged in business. The City Treasurer has not posited
the claim that the Corporation is engaged in business activities beyond
the statutory purposes of a condominium corporation. The assessment
appears to be based solely on the Corporation's collection of
assessments from unit owners, such assessments being utilized to
defray the necessary expenses for the Condominium Project and the
common areas. There is no contemplation of business, no orientation
towards profit in this case. Hence, the assailed tax assessment has no
basis under the Local Government Code or the Makati Revenue Code,
and the insistence of the city in its collection of the void tax constitutes
an attempt at deprivation of property without due process of law.
Yamane v. BA Lepanto Condominium, G.R. No. 154993, October
25,2005.
Q. May the power of local governments to raise revenues be limited by
administrative order?
A. No. Under Section 5, Article X of the 1987 Constitution, only guidelines and
limitations that may be established by Congress can define and limit
such power of local governments. Philippine Petroleum Cor. v. Mun.
ofPililla, 198 SCRA 82, 89 (1991).
The power to tax of local governments may not be negated by
executive order through a grant of exemption absent a statute granting
such exemption. John Hay Peoples Alternative Coalition v. Urn, G.R. No.
119775, October 24, 2003.
Considered as the most revolutionary piece of legislation on local
autonomy, the Local Government Code effectively deals with the fiscal
constraints faced by LGUs. It widens the tax base of LGUs to include
taxes which were prohibited by previous laws. Batangas Power cannot
rely for exemption on the Basco case as this was decided prior to the
effectivity of the LGC, when there was still no law empowering local
government units to tax instrumentalities of the national government.
Batangas Power v. Batangas City, G.R. No. 152675, April 28, 2004.
422 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
"Under the now prevailing Constitution, where there is neither a
grant nor a prohibition by statute, the tax power must be deemed to
exist although Congress may provide statutory limitations and
guidelines. The basic rationale for the current rule is to safeguard the
viability and self-sufficiency of local government units by directly
granting them general and broad tax powers. Nevertheless, the
fundamental law did not intend the delegation to be absolute and
unconditional; the constitutional objective obviously is to ensure that,
while the local government units are being strengthened and made
more autonomous, the legislature must still see to it that (a) the
taxpayer will not be over-burdened or saddled with multiple and
unreasonable impositions; (b) each local government unit will have its
fair share of available resources; (c) the resources of the national
government will not be unduly disturbed; and (d) local taxation will be
fair, uniform, and just." Manila Electric v. Province ofLaguna, G.R. No.
131359, May 5 1999.
NOTE: Earlier decisions said that "in interpreting statutory
provisions on municipal fiscal powers, doubts will have to be resolved in
favor of municipal corporations." This is also echoed in Section 5(a) of
the Code, which states that "[a]ny provision on a power of a local
government unit shall be liberally interpreted in its favor, and in case of
doubt, any question thereon shall be resolved in favor of devolution of
powers and of the lower local government unit." But somewhat
conversely, Section 5(b) then proceeds to assert that a[i]n case of doubt,
any tax ordinance or revenue measure shall be construed strictly
against the local government unit enacting it, and liberally in favor of the
taxpayer." And this latter qualification has to be respected as a
constitutionally authorized limitation which Congress has seen fit to
provide. Evidently, local fiscal autonomy should not necessarily translate
into abject deference to the power of local government units to impose
taxes. Petron v. Mayor, G.R. No. 158881, April 16, 2008.
Briefly, therefore, the power of local governments to tax is
liberally interpreted in its favor against the state, but it is strictly
construed against the local government in favor of the taxpayer.
NOTE: Jurisprudence suggests that aside from the
national franchise tax, the franchisee is still liable to pay the local
franchise tax, unless it is expressly and unequivocally exempted
Sec. 11 ART. X - LOCAL GOVERNMENT
General Provisions
423
from the payment thereof under its legislative franchise. The
"in lieu of all taxes" clause in a legislative franchise should
categorically state that the exemption applies to both local and
national taxes; otherwise, the exemption claimed should be
strictly construed against the taxpayer and liberally in favor of
the taxing authority. Smart Communications v. City of Davao,
G.R. No. 155491, July 21, 2009.
NOTE: R.A. 7160 removed the tax exemptions of some
corporations thus placingthem under the taxing authority oflocal
governments. Since, however, the power oflocal governments to
tax is subject to limitations imposed by Congress, exemptions
granted by Congress after R.A. 7160 bind local governments.
Smart Communications v. City of Davao, G.R. No. 155491,
September 16,2008.
SEC. 6. LOCAL GOVERNMENT UNITS SHALL HAVE A JUST SHARE,
AS DETERMINED BY LAW, IN THE NATIONAL TAXES WHICH SHALL BE
AUTOMATICALLY RELEASED TO THEM.
Q. Administrative Order 372 of President Ramos says:
"SECTION 1. All government departments and agencies,
including state universities and colleges, government-owned
and controlled corporations and local governments units will
identify and implement measures in FY 1998 that will reduce
total expenditures for the year by at least 25% of authorized
regular appropriations for non-personal services items, along
the following suggested areas ...
SECTION 4. Pending the assessment and evaluation by the
Development Budget Coordinating Committee of the emerging fiscal
situation, the amount equivalent to 10% of the internal revenue
allotment to local government units shall be withheld.
The AO is challenged as an attempt to control local governments
and to encroach on their autonomy. Decide.
A. 1. Section 1 can be read as merely advisory and therefore cannot be
proscribed as an attempt to exercise control over local
governments.
2. Section 4, however, is "in contravention of Section 286 of the Local
Government Code and of Section 6, Article X of the Constitution,
providing for the automatic release
424 THE 1987 PHILIPPINE CONSTITUTION: Sees.
9-10
A COMPREHENSIVE REVIEWER
to each of these units its share in the national internal revenue."
Pimentel v. Aguirre, G.R. No. 132988, July 19, 2000.
Q. May Congress impose conditions on the release of the share of local
governments?
A. No.. This provision mandates that (1) the LGUs shall have a "just share" in
the national taxes; (2) the "just share" shall be determined by law; and
(3) the "just share" shall be automatically released to the LGUs. Under
the assailed provisos in the GAAs of1999,2000 and 2001, a portion of
the IRA in the amount of five billion pesos was earmarked for the LGSEF,
and these provisos imposed the condition that "such amount shall be
released to the local government units subject to the implementing
rules and regulations, including such mechanisms and guidelines for the
equitable allocations and distribution of said fund among local
government units subject to the guidelines that may be prescribed by
the Oversight Committee on Devolution." Significantly, the LGSEF could
not be released to the LGUs without the Oversight Committee's prior
approval. To the Court's mind, the entire process involving the
distribution and release of the LGSEF is constitutionally impermissible.
The LGSEF is part of the IRA or ^just share" of the LGUs in the national
taxes. To subject its distribution and release to the vagaries of the
implementing rules and regulations, including the guidelines and
mechanisms unilaterally prescribed by the Oversight Committee from
time to time, as sanctioned by the assailed provisos in the GAAs of 1999,
2000 and 2001 and the OCD resolutions, makes the release not
automatic, a flagrant violation of the constitutional and statutory
mandate that the "just share" of the LGUs "shall be automatically
released to them." Batangas v. Executive Secretary, G.R. No. 152774,
May 27,2004.
Q. Respondents argue that the above constitutional provision is addressed
not to the legislature but to the executive, hence, the same does not
prevent the legislature from imposing conditions upon the release of
the IRA. Decide.
A. As the Constitution lays upon the executive the duty to automatically
release the just share of local governments in the national taxes, so it
enjoins the legislature not to pass laws that might prevent the executive
from performing this duty.
Sec. 11 ART. X - LOCAL GOVERNMENT
General Provisions
425
To hold that the executive branch may disregard constitutional
provisions which define its duties, provided it has the backing of statute,
is virtually to make the Constitution amendable by statute — a
proposition which is patently absurd. Moreover, if it were the intent of
the framers to allow the enactment of statutes making the release of
IRA conditional instead of automatic, then Article X, Section 6 of the
Constitution would have been worded to say "shall be [automatically]
released to them as provided by law." Alternative Center v. Zamora, G.R.
No. 144256, June 8, 2005.
NOTE: Section 6 allows Congress to determine the just share of
local governments in the national taxes. Uniform and
non-discriminatory criteria must be prescribed in the Local Government
Code. If the criteria in creating local government units are not uniform
and discriminatory, there can be no fair and just distribution of the
national taxes to local government units. Cityhood Laws violate Section
6, Article X of the Constitution. League of Cities v. Comelec, G.R. No.
178056, November 18, 2008. [Reversed one month later but reaffirmed
August 24, 2010.]
SEC. 7. LOCAL GOVERNMENTS SHALL BE ENTITLED TO AN EQUITABLE
SHARE IN THE PROCEEDS OF THE UTILIZATION AND DEVELOPMENT OF
THE
NATIONAL WEALTH WITHIN THEIR RESPECTIVE AREAS, IN THE MANNER
PROVIDED BY LAW, INCLUDING SHARING THE SAME WITH THE
INHABITANTS
BY WAY OF DIRECT BENEFITS.
Q. What are the fund sources of local governments?
A. They are: (1) local taxes, fees, and charges; (2) its share in the national taxes;
(3) its share in the proceeds of the utilization of natural resources within
their respective areas; (4) other "sources of revenues" which they may
legitimately make use of either in their public or governmental capacity,
or private or proprietary capacity.
Q. What is the scope of their power to levy taxes, fees, and charges?
A. They are subject to such guidelines and limitations as Congress may
provide. However, such guidelines and limitations to be imposed by
Congress must not be such as to frustrate the "basic policy of local
autonomy."
426 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Q. What is the share of the national government in such taxes, fees, and
charges.
A- None.
Q. In what way can local governments share in the fruits of the utilization of
local natural resources?
A. Local governments can either have shares from revenues accruing through
fees and charges or they can receive direct benefits such as lower rates,
e.g., for consumption of electricity generated within their locality.
SEC. 8. THE TERM OF OFFICE OF ELECTIVE LOCAL OFFICIALS, EXCEPT
BARANGAY OFFICIALS, WHICH SHALL BE DETERMINED BY LAW, SHALL
BE
THREE YEARS, AND NO SUCH OFFICIAL SHALL SERVE FOR MORE THAN
THREE CONSECUTIVE TERMS. VOLUNTARY RENUNCIATION OF THE
OFFICE
FOR ANY LENGTH OF TIME SHALL NOT BE CONSIDERED AS AN
INTERRUPTION
IN THE CONTINUITY OF HIS SERVICE FOR THE FULL TERM FOR WHICH HE
WAS ELECTED.
Q. What is the term of elective local officials?
A. Except for barangay officials, three years; and no such official shall serve for
more than three consecutive terms.
Q. Due to the incumbent mayor's death, the vice-mayor succeeds to the office
of mayor by operation of law and serves the remainder of the mayor's
term. Is he considered to have served a term in that office for the
purpose of the three-term limit?
A. No. §8 of Article X embodies two policies, viz.: (1) to prevent political
dynasties and (2) to enhance the freedom of choice of the people.
First, historical examination of this provision reveals that two
ideas emerge from the Constitutional Commission proceedings: (1) "the
notion of service of term, derived from the concern about the
accumulation of power as a result of prolonged stay in office;" and (2)
"the idea of election, derived from the concern that the right of the
people to choose those whom they wish to govern them be preserved."
Borja, Jr., v. Commission on Elections, G.R. No. 133495, September
3,1998, p. 7. Moreover the Commission discussed term limits "on the
assumption that the officials concerned were serving by reason of
election." Id.
Sec. 11 ART. X - LOCAL GOVERNMENT
General Provisions
427
Second, textual analysis of the provision shows that it
"contemplates service by local officials for three consecutive terms as a
result of election." Id. at 8.
"To recapitulate, the term limit of elective local officials must be
taken to refer to the right to be elected as well as the right to serve in the
same elective position. Consequently, it is not enough that an individual
has served three consecutive terms in an elective local office, he must
also have been elected to the same position for the same number of
times before the disqualification can apply." Id. at 11.
Q. When will the three-term limit of local elective officials — except barangay
officials — apply?
A. Only when these two conditions concur: (1) the local official concerned has
been elected three consecutive times; and (2) he has fully served three
consecutive terms. Borja, Jr, v. Commission on Elections, G.R. No.
133495, September 3,1998.
Q. Summarize the rules on terms limits since Boija.
A. 1. Lonzanida was elected Mayor to a third term. His election was
challenged, however, and he lost and had to abandon his office.
He could still run in the next election year because he did not
serve three full terms. Lonzanida v Comelec, G.R. No. 135150, July
28,1999.
2. Talaga lost when he ran for a third term. The winner, however,
lost to him in a recall election and he served the rest of the former
winner's term. At the end of this term he could run again because
he had not served three full terms. Adormeo v. Comelec, G.R. No.
147927, February 4, 2002.
3. Hagedorn served as Mayor for three full terms. In the first year
after the end of his third term, he ran in a recall election.
Qualified? Yes, because between the end of his third term and the
recall election there was an interruption thus breaking the
successiveness. Socrates v Comelec, G.R. No. 154512, November
12, 2002.
4. During the third term of a Mayor of a municipality, the
municipality was converted to a city. The Mayor was allowed to
finish the third term. Could he run as Mayor of the city in the next
election? No. There has been no change in territory nor in
constituency. Thus the three
428 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
term limit applies. Latasa v. Comelec, G.R. No. 154829, December
10, 2003.
5. When a municipal councilor assumed the office of Vice- Mayor his
assumption of office as vice-mayor in January 2004 was by
operation of law. It was an involuntary severance from his office
as municipal councilor resulting in an interruption in the service of
his 2001-2004 term. He did not serve the full 2001-2004 term.
Montebon v. COMELEC, G.R. No. 180444, April 8, 2008.
6. After serving a full three year term, Alegre was declared to have
been invalidly elected. Should that term be counted for purposes
of the three term limit? Yes. The decision declaring him not
elected is of no practical consequence because he has already
served. Ong v. Alegre, G.R. No. 163295, January 23,2006; Rivera III
v. Morales, G.R No. 167591, May 9,2007.
7. Where a Mayor in the last month of his third term was ousted by
a final decision declaring his election invalid, he did not serve
three full terms. The interruption of his tenure was involuntary.
Dizon v. Comelec, G.R. No. 182088, January 30,2009.
8. The preventive suspension of a local elective official does not
interrupt his term for purposes of computing the three-term
limit. Alboin v. Comelec, G.R. No. 184836, December 23,2009.
Q. R.A. No. 7160 ("Local Government Code of 1991" approved on October
10,1991, took effect on January 1,1992), Section 43-c limits the term of
office of barangay officials to three years. Petitioners argue that Section
8, Article X of the Constitution, "by excepting barangay officials whose
'terms shall be determined by law* from the general provision fixing the
term of 'elective local officials' at three years," impliedly prohibits
Congress from legislating a three-year term for such officers. Thus,
Section 43-c of R.A. No. 7160 is unconstitutional. Decide.
A. "Undoubtedly, the Constitution did not expressly prohibit Congress from
fixing any term of office for barangay officials. It merely left the
determination of such term to the lawmaking body, without any
specific limitation or prohibition, thereby leaving to the lawmakers full
discretion to fix such term in accordance with the exigencies of public
service." David v.
Sees. 9-10 ART. X - LOCAL GOVERNMENT
General Provisions
429
Commission on Elections, G.R. No. 127116, April 8,1997, 271 SCRA
90,104. How long then is the term of barangay officials? The "answer of
the [Constitutional] Commission was...: 'As may be determined by law*;
more precisely, '(a)s provided for in the Local Autonomy Code.' And the
Local Autonomy Code, in its Sec. 43-c, limits their term to three years."
Id. at 105.
SEC. 9. LEGISLATIVE BODIES OF LOCAL GOVERNMENTS SHALL HAVE
SECTORAL REPRESENTATION AS MAY BE PRESCRIBED BY LAW.
Q. Who appoints sectoral representatives in local legislative bodies?
A. Section 9 says "as may be provided by law." The Local Government Code
says that they are appointed by the President. "But the Secretary of
Local Government may, by authority of the President inform the
sectoral representatives of their appointments. Otherwise stated, it is
actually the President who has made appointments in the cases
involved herein, and the Secretary of Local Government is only the
transmitter or communicator of said appointments." Supangan, Jr. v.
Santos, G.R. No. 84663, August 24,1990.
Q. But may the President make the appointments even before Congress has
passed the law?
A. The phrase "as may be provided by law" is not prospective. Hence, it can
refer to law already existing at the time the Constitution was enacted or
to future laws. Supangan, Jr. v. Santos, supra.
Q. Who prescribes the qualifications of local "sectoral representatives?"
A. Since the Constitution does not prescribe the qualifications, these are
prescribed by law. And in making the appointments, the President must
observe the qualification requirements. Supangan, Jr. v. Santos, supra.
SEC. 10. No PROVINCE, CITY, MUNICIPALITY, OR BARANGAY MAY BE
CREATED, DIVIDED, MERGED, ABOLISHED, OR ITS BOUNDARY
SUBSTANTIALLY ALTERED, EXCEPT
IN ACCORDANCE WITH THE CRITERIA ESTABLISHED IN THE LOCAL
GOVERNMENT CODE AND
SUBJECT TO APPROVAL BY A MAJORITY OF THE VOTES CAST IN A
PLEBISCITE IN THE POLITICAL
UNITS DIRECTLY AFFECTED.
430 THE 1987 PHILIPPINE CONSTITUTION: Sees. 9-10
A COMPREHENSIVE REVIEWER
Q. What feature in Section 10 contributes to local autonomy?
A. Principally, the requirement of approval by a majority of the votes cast in a
plebiscite in the political units directly affected.
Q. Which political units should participate in the plebiscite?
A. All the political units affected. If what is involved is a barangay, the
plebiscite should be municipality or city-wide; if a municipality or
component city, province-wide. If a portion of province is to be carved
out and made into another province, the plebiscite should include the
mother province. Tan v. COMELEC, 142 SCRA 727 (July 11, 1986),
following the dissenting opinion in Lopez, Jr. v. COMELEC, 136 SCRA 633
(May 31,1985).
Q. Who should participate in a plebiscite for the creation of a new province?
A. In Tan v. COMELEC, 142 SCRA 727 (1986), which was decided on the basis
of the 1973 Constitution which prescribed that the plebiscite should be
"in the unit or units affected," the Court had said that where a portion
of an existing province was being lopped off to form a new province,
both the mother province and the proposed new province should
participate and not just the proposed new province. Certainly the
mother province is affected because its boundary is substantially
altered.
The Court also added that the apparent different ruling in Paredes
v. Executive Secretary, 128 SCRA 61 (1984) was not applicable because
that decision did not touch on the constitutional issue and should not
be seen as controlling. The dissent of Abad Santos, J. in that case, in fact,
was followed in Lopez, Jr. v. COMELEC, 136 SCRA 633 (1985). (NOTE:
The 1987 Constitution now says "in the political units directly affected."
It is submitted that this does not affect the decision in Tan since, when a
province is divided into two, the mother province is also directly
affected.)
Q. Andong was one of the barangays made into a municipality by
the executive order which was nullified by Pelaez v. Auditor General in
1965. It is claimed, however, that it never ceased to exercise corporate.
It therefore claims to be a de facto corporation. Decide.
A. There is no evidence to support the claim of its continued
existence as a corporation. To uphold the claim would mean upholding
Sec. 11 ART. X - LOCAL GOVERNMENT
General Provisions
431
defiance of the decision which nullified its existence as a municipality.
Camid v. Office of the President, G.R. No. 161414, January 17,2005.
NOTE: The requirement that the Local Government Code shall
contain the criteria, etc. for the creation of municipalities does not
prevent the creation of municipalities before the passage of that Local
Government Code. The Constitution "contains no requirement that a
Local Government Code is a condition sine qua non for the creation of a
municipality... What the constitutional provision means is that, once said
Code is enacted, the creation, modification or dissolution of local
government units should conform to the criteria thus laid down."
Torralba v. Municipality ofSibagat, 147 SCRA 390,394 (1987) NOTE: This
decision was based on the provisions of the 1973 Constitution. A similar
provision is found in the 1987 Constitution, X, 10. However, it is
submitted that the freedom which Congress has in departing from the
Local Government Code is wider now than wider the 1973 Constitution
because the Local Government Code now is just like any other statute.
NOTE\League of Cities v. Comelec, G.R. No. 178056, November
18, 2008 first held that the creation of local government units must
follow the criteria established in the Local Government Code and not in
any other law and that Congress cannot write such criteria in any other
law, like the Cityhood Laws. Within a month this was reversed on
reconsideration which ruled that the spirit of the law prevails over the
letter and that the intent of the law was to exempt the sixteen
municipalities from the income requirement for the creation of cities.
December 21, 2009.
NOTE: R.A. No. 9355 creating the Province of Dinagat was
declared unconstitutional for being short of the statutorily required land
area and population. Navarro v. Executive Secretary, G.R. No. 180050,
February 10, 2010. Navarro v. Executive Secretary, G.R. No. 180050,
February 10,2010; May 12,2010.
SEC. 1L.THE CONGRESS MAY,BYLAW,CREATE SPECIAL METROPOLITAN
POLITICAL
SUBDIVISIONS SUBJECT TO A PLEBISCITE AS SET FORTH IN SECTION 10
HEREOF. THE
COMPONENT CITIES AND MUNICIPALITIES SHALL RETAIN THEIR BASIC
AUTONOMY AND SHALL
BE ENTITLED TO THEIR OWN LOCAL EXECUTIVES AND LEGISLATIVE
ASSEMBLIES. THE
JURISDICTION OF THE METROPOLITAN AUTHORITY THAT WILL THEREBY
BE CREATED SHALL BE
LIMITED TO BASIC SERVICES REQUIRING COORDINATION.
Q. Does Section 11 preserve the present Metro-Manila Commission?
A. This provision is not intended to preserve the Metropolitan Manila
Commission but is an attempt to preserve part of it
432 THE 1987 PHILIPPINE CONSTITUTION: Sees.
9-10
A COMPREHENSIVE REVIEWER
as a supra-municipal authority with limited jurisdiction thereby saving
the National Capital Region from relegation to a constitutional limbo.
The provision also authorizes the creation of similar authorities in other
metro-political regions. The area of jurisdiction would not be the totality
of municipal government but only basic services. As such it would be a
juridical entity with municipal powers - police, eminent domain, and
taxation powers exercised by a legislative assembly - needed for
providing basic services. Congress would supply the details, but it was
contemplated that the Mayors of the component units would form the
metropolitan authority. The effect of this would also be to restore the
Mayor-Council set-up for the cities and towns of the National Capital
Region and thus restore to them their lost autonomy. Moreover, the
entity Metro Manila created by P.D. 824 will continue to exist until a
new law is passed.
Q. What is the status of the Metropolitan Manila Development Authority?
A. Metropolitan or Metro Manila is a body composed of several local
government units — i.e., twelve (12) cities and five (5) municipalities,
namely, the cities of Caloocan, Manila, Mandaluyong, Makati, Pasay,
Pasig, Quezon, Muntinlupa, Las Pinas, Marikina, Paranaque and
Valenzuela, and the municipalities of Malabon, Navotas, Pateros, San
Juan and Taguig. With the passage of Republic Act (R.A.) No. 7924in
1995, Metropolitan Manila was declared as a "special development and
administrative region" and the Administration of "metro- wide" basic
services affecting the region placed under "a development authority"
referred to as the MMDA.
"Metro-wide services" are those "services which have
metro-wide impact and transcend local political boundaries or entail
huge expenditures such that it would not be viable for said services to
be provided by the individual local government units comprising Metro
Manila." There are seven (7) basic metro-wide services and the scope of
these services cover the following: (1) development planning; (2)
transport and traffic management; (3) solid waste disposal and
management; (4) flood control and sewerage management; (5) urban
renewal, zoning and land use planning, and shelter services; (6) health
and sanitation, urban protection and pollution control; and (7) public
safety.
Sec. 11 ART. X - LOCAL GOVERNMENT
General Provisions
433
It will be noted that the powers of the MMDA are limited to the
following acts: formulation, coordination, regulation, implementation,
preparation, management, monitoring, setting of policies, installation of
a system and administration. There is no syllable in R.A. No. 7924 that
grants the MMDA police power, let alone legislative power. Even the
Metro Manila Council has not been delegated any legislative power.
Unlike the legislative bodies of the local government units, there is no
provision in R.A. No. 7924 that empowers the MMDA or its Council to
"enact ordinances, approve resolutions and appropriate funds for the
general welfare" of the inhabitants of Metro Manila. The MMDA is, as
termed in the charter itself, a "development authority." It is an agency
created for the purpose of laying down policies and coordinating with
the various national government agencies, people's organizations,
nongovernmental
organizations and the private sector for the efficient and
expeditious delivery of basic services in the vast metropolitan area. All its
functions are administrative in nature. It is not a municipal corporation
endowed with police power. Its creating was never submitted to a
plebiscite. MMDA v. Bel-Air Village, G.R. No. 135962, March 27, 2000.
Q. Can MMDA order the Bel Air Village Association (BAVA) to open Jupiter
Street to the public considering that Jupiter Street is owned by BAVA?
A. No. MMDA is not a local government unit with policy power. It is different
from the Metro Manila Commission (MMC) which was the centred
government of a local government unit. Neither is it a metropolitan
political subdivision under Section 11 because its creation was never
submitted to a plebiscite. MMDA, therefore, does not possess police
power. MMDA v. Bel-Air Village, G.R. No. 135962, March 27, 2000.
Q. May MMDA confiscate and suspend or revoke drivers' licenses without
need of any other legislative enactment?
A. Where there is a traffic law or regulation validly enacted by the legislature or
those agencies to whom legislative powers have been delegated (the
City of Manila in this case), the petitioner is not precluded — and in fact
is duty-bound — to confiscate and suspend or revoke drivers' licenses in
the exercise of its mandate of transport and traffic management, as well
as the administration and implementation of all traffic enforcement
434 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-13
operations, traffic engineering services and traffic education programs.
Without such law, the MMDA has no power. MMDA v. Garin, G.R. No.
130230, April 15, 2005.
SEC. 12. CITIES THAT ARE HIGHLY URBANIZED, AS DETERMINED
BY LAW, AND COMPONENT CITIES WHOSE CHARTERS PROHIBIT THEIR
VOTERS FROM VOTING
FOR PROVINCIAL ELECTIVE OFFICIALS, SHALL BE INDEPENDENT OF THE
PROVINCE. THE VOTERS
OF COMPONENT CITIES WITHIN A PROVINCE, WHOSE CHARTERS
CONTAIN NO SUCH
PROHIBITION, SHALL NOT BE DEPRIVED OF THEIR RIGHT TO VOTE FOR
ELECTIVE PROVINCIAL
OFFICIALS.
Q. How many kinds of cities are provided for in Section 12?
A. This provision provides for three kinds of cities: (1) highly urbanized cities as
determined by law, (2) cities not raised to the highly urbanized category
but whose existing charters prohibit their voters from voting in
provincial elections, and (3) component cities, i.e., cities which still are
under a province in some way. Since cities in the first and second
categories do not vote in provincial elections, they are independent of
the province; but since cities in the third category are under a province,
they cannot be denied a vote in the election of provincial officials. The
second category is envisioned as an ad-hoc category to take care of
existing charters; but these cities can become either "highly urbanized,"
or, they may be demoted to component cities qualified to vote in
provincial elections. The second category therefore may eventually
disappear altogether. Moreover, changes in the conditions of highly
urbanized cities may necessitate their demotion to a lower category.
Conversely, component cities might rise to the level of highly urbanized
cities.
Q. May a resident of "component cities whose charter prohibit their voters SEC. 15. THERE SHALL BE CREATED AUTONOMOUS REGIONS IN MUSLIM
from voting for provincial elective officials" run for a provincial elective MINDANAO
office? AND IN THE CORDILLERAS CONSISTING OF PROVINCES,
A. No. As Section 12 says, these are independent of the province. This CITIES, MUNICIPALITIES, AND GEOGRAPHIC AREAS SHARING COMMON
independence includes the incapacity of its residents to run for AND DISTINCTIVE
provincial office. Abella v. Commission on Elections, G.R. No. 100710, HISTORICAL AND CULTURAL HERITAGE, ECONOMIC AND SOCIAL
September 3,1991. STRUCTURES, AND OTHER
SEC. 13. LOCAL GOVERNMENT UNITS MAY GROUP THEMSELVES, RELEVANT CHARACTERISTICS WITHIN THE FRAMEWORK OF THIS
CONSOLIDATE OR COORDINATE THEIR EFFORTS, SERVICES, AND CONSTITUTION AND THE
RESOURCES FOR PURPOSES NATIONAL SOVEREIGNTY AS WELL AS TERRITORIAL INTEGRITY OF THE
COMMONLY BENEFICIAL TO THEM IN ACCORDANCE WITH LAW. REPUBLIC OF THE
Sees. 14-15 ART. X - LOCAL GOVERNMENT PHILIPPINES.
Autonomous Regions Q. What is the reason behind the creation of autonomous regions?
435 A. One of the riches of the Filipino nation is its cultural diversity. A major
Q. Does the grouping contemplated in Section 13 create a new juridical entity? purpose of the creation of autonomous regions is the creation of a
A. No. situation which will allow each culture to flourish unhampered by the
Q. May local government units create these groupings even without prior dominance of other cultures and thereby to contribute more effectively
enabling law? to national progress. Hence, a prerequisite for the creation of an
A. Yes. autonomous region is a certain distinctive regional commonality of
SEC. 14. THE PRESIDENT SHALL PROVIDE FOR REGIONAL DEVELOPMENT "historical and cultural heritage, economic and social structures, and
COUNCILS OR 436 THE 1987 PHILIPPINE CONSTITUTION:
OTHER SIMILAR BODIES COMPOSED OF LOCAL GOVERNMENT A COMPREHENSIVE REVIEWER
OFFICIALS, REGIONAL HEADS OF Sees. 12-13
DEPARTMENTS AND OTHER GOVERNMENT OFFICES, AND other relevant characteristics." Such commonality is found in Muslim
REPRESENTATIVES FROM Mindanao and in the Cordilleras. As to the areas between these two,
NON-GOVERNMENTAL ORGANIZATIONS WITHIN THE REGIONS FOR they are not characterized by distinctive characteristics but are
PURPOSES OF practically a homogeneous culture. Hence, they all come under one
ADMINISTRATIVE DECENTRALIZATION TO STRENGTHEN THE AUTONOMY category and are not allowed to form an autonomous region.
OF THE UNITS THEREIN Another purpose of the creation of autonomous regions is to
AND TO ACCELERATE THE ECONOMIC AND SOCIAL GROWTH AND furnish a possible solution to the regional conflicts that have arisen
DEVELOPMENT OF THE UNITS partly from cultural diversity.
IN THE REGION. Q. What is the meaning of "Muslim Mindanao?"
Q. What is the purpose of Section 14? A. The phrase is a short-hand expression to designate those areas of
A. Its purpose is to foster administrative decentralization as a complement to Mindanao which are predominantly Muslim. The phrase is not meant
political decentralization in order to make possible bottom-to-top to characterize all of Mindanao as Muslim.
planning. Q. Is an autonomous region an independent nation within the nation? .
AUTONOMOUS REGIONS A. No, an autonomous region is organized "within the framework of this
Constitution and the national sovereignty."
SEC. 16. THE PRESIDENT SHALL EXERCISE GENERAL SUPERVISION
OVER AUTONOMOUS REGIONS TO ENSURE THAT LAWS ARE FAITHFULLY
EXECUTED.
Q. What authority does the President have over autonomous regions?
A. He exercises "general supervision."
SEC. 17. ALL POWERS, FUNCTIONS, AND RESPONSIBILITIES NOT
GRANTED BY THIS CONSTITUTION OR BY LAW TO THE AUTONOMOUS
REGIONS
SHALL BE VESTED IN THE NATIONAL GOVERNMENT.
Q. Enumerate some of the powers which are not given to autonomous
regions.
A. Autonomous regions do not have jurisdiction over national defense and
security, foreign relations and foreign trade, customs and tariff,
quarantine, currency, monetary affairs, foreign exchange, banking and
quasi-banking, external borrowing, posts and communications, air and
sea transport, immigration and deportation, citizenship and
naturalization, and general auditing.
Sec. 21 ART. X - LOCAL GOVERNMENT
Autonomous Regions
437
SEC. 18. THE CONGRESS SHALL ENACT AN ORGANIC ACT FOR EACH
AUTONOMOUS REGION WITH THE ASSISTANCE AND PARTICIPATION OF
THE REGIONAL
CONSULTATIVE COMMISSION COMPOSED OF REPRESENTATIVES
APPOINTED BY THE PRESIDENT
FROM A LIST OF NOMINEES FROM MULTISECTORAL
BODIES. THE ORGANIC ACT SHALL DEFINE THE BASIC STRUCTURE OF
GOVERNMENT
FOR THE REGION CONSISTING OF THE. EXECUTIVE DEPARTMENT AND
LEGISLATIVE ASSEMBLY,
BOTH OF WHICH SHALL BE
ELECTIVE AND REPRESENTATIVE OF THE CONSTITUENT POLITICAL
UNITS.
THE ORGANIC ACTS SHALL LIKEWISE PROVIDE FOR SPECIAL COURTS
WITH
PERSONAL, FAMILY, AND PROPERTY LAW JURISDICTION CONSISTENT
WITH THE PROVISIONS OF
THIS CONSTITUTION AND NATIONAL LAW.
THE CREATION OF THE AUTONOMOUS REGION SHALL BE EFFECTIVE
WHEN APPROVED BY A MAJORITY OF THE VOTES CAST BY THE
CONSTITUENT UNITS IN A
PLEBISCITE CALLED FOR THE PURPOSE, PROVIDED THAT ONLY
PROVINCES, CITIES, AND
GEOGRAPHIC AREAS VOTING FAVORABLY IN SUCH PLEBISCITE SHALL
BE INCLUDED IN THE
AUTONOMOUS REGION.
Q. What law will be the charter of the autonomous regions?
A. Their charter will be the Organic Act which will be passed by Congress in the
manner and according to the substantive specifications contained in
Section 18.
Q. How may any provision of the Organic Act be amended?
A. An ordinary statute, whether general or special, cannot amend an organic
act that provides for an autonomous region which under the
Constitution may only be created, and therefore changed, through a
plebiscite called for the purpose. Pandi v. Court of Appeals, G.R. No.
116850, April 11, 2002.
Q. May the ARMM Regional Assembly create a province?
A. No, only Congress can create a province because creating a province
necessarily involves creating a legislative district which only Congress can
do. Sema v. Comelec, G.R. No. 177597, July 16, 2008.
Q. When does the creation of the autonomous regions become effective?
A. It becomes effective when approved by a majority of the votes cast by the
constituent units in a plebiscite held for the purpose.
438 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Q. Which constituent units become part of the autonomous region?
A. Only the provinces, cities, and geographic areas which vote favorably. This
means that it is possible for a cluster of municipalities or barangays
within one province to belong to an autonomous region while the
others might not.
Q. May the Province of Ifugao, which was the only province which voted for a
Cordillera Autonomous Region, constitute the Cordillera Autonomous
Region?
A. No. The Constitution says that an autonomous region shall consist of
provinces, cities and municipalities, and, therefore, not just of one
province. Moreover, R.A. 6766, the Organic Act which was the subject
of the referendum, itself contains provisions which can be
implemented only if the new political entity would consist of more than
one province. Ordillo v. COMELEC, G.R. No. 93054, December 4,1990.
Q. Can a tribal court of the Cordillera Bodong Administration render a valid
executory decision in a land dispute?
A. No. In the January 23, 1990 plebiscite, the creation of the Cordillera
Autonomous Region was rejected by all the provinces and city of the
Cordillera region, except Ifugao province, hence, the Cordillera
Autonomous Region did not come to be. Hence, no autonomous region
was created. As a logical consequence of that, the Cordillera Bodong
Administration created under Section 13 of Executive Order No. 220, as
well as the indigenous and special courts for the indigenous cultural
communities of the Cordillera region (Sec. 1, Art. VH, Rep. Act. 6776) do
not exist. "Such tribal courts are not a part of the Philippine judicial
system which consists of the Supreme Court and the lower courts
which have been established by law (Sec. 1, Art. VIII, 1987 Constitution).
They do not possess judicial power. Like the pangkats or conciliation
panels created by P.D. No. 1508 in the barangays, they are advisory and
conciliatory bodies whose principal objective is to bring together the
parties to a dispute and persuade them to make peace, settle, and
compromise. Spouses Badua v. Cordillera Bodong Administration, G.R.
No. 92649,14 February 1991.
Q. Can constituent units which vote negatively in the first plebiscite under this
Constitution join the autonomous region at some future time?
Sec. 19 ART. X - LOCAL GOVERNMENT 439
Autonomous Regions
A. It is submitted that they may through a subsequent plebiscite. The language
of the last paragraph of Section 18 does not put a time limit and the
evident intent of the Constitution is to honor the free choice of
constituent units.
Q. The legality of R.A. 6734, the Organic Act of Mindanao, is
challenged and the plebiscite called in thirteen provinces of Mindanao
for the ratification of the Organic Act is challenged for being illegal in that
aspects of the Organic Act violate the Tripoli Agreement which is a valid
international agreement. Decide.
A. Even if the Tripoli Agreement were an international agreement,
the fact would not affect the validity of the Organic Act. International
agreements as internal law are on the same legal level as statutes and
whichever as between the two, international agreement or statute,
comes later supersedes the other. Abbas v. COMELEC, G.R. No. 89651 &
89965, November 10,1989.
Q. Does the approval of the Organic Act automatically create the
autonomous region?
A. No. As the Constitution says, the creation of the autonomous
region takes effect only after it is ratified in a plebiscite. Abbas v.
COMELEC, G.R. No. 89651 & 89965, November 10,1989.
Q. For the effective creation of the autonomous region is it
required that the total votes cast in all the units where the plebiscite is
called must yield a majority of affirmative votes?
A. No. It is enough for the creation of the autonomous region that
some "provinces, cities, and geographic areas" vote favorably. In other
words, as an examination of the constitutional text shows, for effective
ratification it is not necessary to achieve a "double majority." Abbas v.
COMELEC, G.R. No. 89651 & 89965, November 10,1989.
Q. What happens then to the political subdivisions which do not
vote favorably?
A. They remain in the administrative Region to which they belong
now. Abbas v. COMELEC, G.R. No. 89651 & 89965, November 10,1989.
SEC. 19. THE FIRST CONGRESS ELECTED UNDER THIS CONSTITUTION
SHALL, WITHIN EIGHTEEN MONTHS FROM THE TIME OF ORGANIZATION
OF
BOTH HOUSES, PASS THE ORGANIC ACTS FOR THE AUTONOMOUS
REGIONS IN MUSLIM
MINDANAO AND THE CORDILLERAS.
Q. If the first Congress fails to pass the Organic Act within eighteen months,
will it no longer be able to pass such Act later?
PRESERVATION AND DEVELOPMENT OF THE CULTURAL
HERITAGE; AND
9) SUCH OTHER MATTERS AS MAY BE AUTHORIZED BY LAW FOR THE
PROMOTION OF THE GENERAL WELFARE OF THE PEOPLE OF THE
REGION.
Q. Legislation passed by the autonomous regions can come into conflict either
with the Constitution or with national laws. How are such conflicts to be
resolved?
A. As to conflicts with the Constitution, the Constitution should always prevail.
For instance, the full gamut of religious freedom must be recognized
even in an area where a principal basis for the autonomy is religious
homogeneity.
When the conflict is between national statutes and local laws,
however, there is no easy answer to the question as to which should
prevail. The matter could not only very well necessitate the serious
weighing of the values involved but even the adjustment of national
laws in order to accommodate the constitutional desire for local
autonomy in its various aspects. This could be especially crucial in the
application of personal
440 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
A. The failure of Congress to act cannot be allowed to frustrate the clear intent
of the electorate. The relatively short period is prescribed in order to
emphasize the urgency of creating autonomous regions as a means
towards solving existing serious peace and order problems and
foreclosing secessionist movements.
SEC. 20. WITHIN ITS TERRITORIAL JURISDICTION AND SUBJECT
TO THE PROVISIONS OF THIS CONSTITUTION AND NATIONAL LAWS, THE
ORGANIC ACT OF
AUTONOMOUS REGIONS SHALL PROVIDE FOR LEGISLATIVE POWERS
OVER:
ADMINISTRATIVE ORGANIZATION;
CREATION OF SOURCES OF REVENUES;
ANCESTRAL DOMAIN AND NATURAL RESOURCES;
PERSONAL, FAMILY, AND PROPERTY RELATIONS;
REGIONAL, URBAN, AND RURAL PLANNING DEVELOPMENT;
ECONOMIC, SOCIAL, AND TOURISM DEVELOPMENT;
EDUCATIONAL POLICIES;
Sec. 21 ART. X - LOCAL GOVERNMENT
Autonomous Regions
441
and property laws for those belonging to autonomous regions but
acting outside the autonomous territory, and vice-versa. Thus, conflict of
law principles could develop within our one national municipal law.
Q. Is the enumeration in Section 20 exhaustive of what the Organic Act may
give to the autonomous regions?
A. No. See Section 17. The enumeration in Section 20 is intended as a political
signal that indeed the Constitution takes the matter of regional
autonomy seriously.
Q. May the ARRM Assembly create a legislative district?
A. No. Only Congress can create provinces and cities because the creation of
provinces and cities necessarily includes the creation of Section 5, Article
VI of the Constitution and Section 3 of the Ordinance appended to the
Constitution. Sema v. Comelec, G.R. No. 177597, July 16, 2008.
SEC. 21. THE PRESERVATION OF PEACE AND ORDER WITHIN THE
REGIONS SHALL BE THE RESPONSIBILITY OF THE LOCAL POLICE
AGENCIES WHICH SHALL BE
ORGANIZED, MAINTAINED, SUPERVISED AND UTILIZED IN ACCORDANCE
WITH APPLICABLE
LAWS. THE DEFENSE AND SECURITY OF THE REGIONS SHALL BE THE
RESPONSIBILITY OF THE
NATIONAL GOVERNMENT.
Q. Are autonomous regions beyond the range of the Commander- in-Chief
powers of the President?
A. No, because the autonomous regions are still part of one Republic.
ARTICLE XI
ACCOUNTABILITY
OF PUBLIC OFFICERS
SECTION 1. PUBLIC OFFICE IS A PUBLIC TRUST. PUBLIC OFFICERS
AND EMPLOYEES MUST AT ALL TIMES BE ACCOUNTABLE TO THE
PEOPLE, SERVE THEM WITH
UTMOST RESPONSIBILITY, INTEGRITY, LOYALTY, AND EFFICIENCY, ACT
WITH PATRIOTISM AND
JUSTICE, AND LEAD MODEST LIVES.
Q. What is meant by "public office as a public trust?"
A. As expressed by Justice Malcolm in Cornejo v. Gabriel, 41 Phil. 188,194
(1920), the basic idea of government in the Philippines "is that of a
representative government, the officers being mere agents and not
rulers of the people, one where no one man or set of men has a
proprietary or contractual right to an office, but where every officer
accepts office pursuant to the provisions of law and holds the office as a
trust for the people whom he represents."
Q. What does the command to lead modest lives entail?
A. The point of the command is that, even if the public officer is independently
wealthy, he should not live in a manner that flaunts his wealth.
SEC. 2. THE PRESIDENT, THE VICE-PRESIDENT, THE MEMBERS OF THE
SUPREME
COURT, THE MEMBERS OF THE CONSTITUTIONAL COMMISSIONS AND
THE OMBUDSMAN
MAY BE REMOVED FROM OFFICE ON IMPEACHMENT FOR, AND
CONVICTION OF, CULPABLE
VIOLATION OF THE CONSTITUTION, TREASON, BRIBERY, GRAFT AND
CORRUPTION, OTHER
HIGH CRIMES, OR BETRAYAL OF PUBLIC TRUST. ALL OTHER PUBLIC
OFFICERS
AND EMPLOYEES MAY BE REMOVED FROM OFFICE AS PROVIDED BY
LAW, BUT NOT BY
IMPEACHMENT.
442
Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS SEC. 3. (1) THE
HOUSE OF REPRESENTATIVES SHALL HAVE THE
EXCLUSIVE POWER TO INITIATE ALL CASES OF IMPEACHMENT.
(2) A VERIFIED COMPLAINT FOR IMPEACHMENT MAY BE FILED BY
ANY MEMBER OF THE HOUSE OF REPRESENTATIVES OR BY ANY CITIZEN
UPON A RESOLUTION OF ENDORSEMENT BY ANY MEMBER THEREOF,
WHICH SHALL BE INCLUDED
IN THE ORDER OF BUSINESS WITHIN TEN SESSION DAYS, AND REFERRED
TO THE PROPER
COMMITTEE WITHIN THREE SESSION DAYS THEREAFTER. THE
COMMITTEE, AFTER HEARING, AND
BY A MAJORITY VOTE OF ALL ITS MEMBERS, SHALL SUBMIT ITS REPORT
TO THE HOUSE WITHIN
SIXTY SESSION DAYS FROM SUCH REFERRAL, TOGETHER WITH THE
CORRESPONDING RESOLUTION.
THE RESOLUTION SHALL BE CALENDARED FOR CONSIDERATION BY THE
HOUSE WITHIN TEN
SESSION DAYS FROM RECEIPT THEREOF.
(3) A VOTI: OF AT LEAST ONE-THIRD OF ALL THE MEMBERS OF THE
HOUSE SHALL BE NECESSARY EITHER TO AFFIRM A FAVORABLE
RESOLUTION WITH THE ARTICLES
OF IMPEACHMENT OF THE COMMITTEE, OR OVERRIDE ITS CONTRARY
RESOLUTION. THE VOTE OF
EACH MEMBER SHALL BE RECORDED.
(4) IN CASE THE VERIFIED COMPLAINT OR RESOLUTION OF
IMPEACHMENT IS FILED BY
AT LEAST ONE-THIRD OF ALL THE MEMBERS OF THE HOUSE, THE SAME
SHALL CONSTITUTE THE
ARTICLES OF IMPEACHMENT, AND TRIAL BY THE SENATE SHALL
FORTHWITH PROCEED.
(5) No IMPEACHMENT PROCEEDINGS SHALL BE INITIATED AGAINST
THE SAME OFFICIAL MORE THAN ONCE WITHIN A PERIOD OF ONE YEAR.
(6) THE SENATE SHALL HAVE THE SOLE POWER TO TRY AND DECIDE
ALL CASES OF IMPEACHMENT. WHEN SITTING FOR THAT PURPOSE, THE
SENATORS SHALL BE ON OATH OR AFFIRMATION. WHEN THE PRESIDENT
OF THE PHILIPPINES IS
ON TRIAL, THE CHIEF JUSTICE OF THE SUPREME COURT SHALL PRESIDE,
BUT SHALL NOT VOTE.
No PERSON SHALL BE
CONVICTED WITHOUT THE CONCURRENCE OF TWO-THIRDS OF ALL THE
MEMBERS OF THE SENATE.
(7) JUDGMENT IN CASES OF IMPEACHMENT SHALL NOT EXTEND
FURTHER THAN REMOVAL FROM OFFICE AND DISQUALIFICATION TO
HOLD ANY OFFICE UNDER
THE REPUBLIC OF THE PHILIPPINES, BUT THE PARTY CONVICTED SHALL
NEVERTHELESS BE LIABLE
AND SUBJECT TO PROSECUTION, TRIAL, AND PUNISHMENT ACCORDING
TO LAW.
(8) THE CONGRESS SHALL PROMULGATE ITS RULES ON IMPEACHMENT
TO
EFFECTIVELY CARRY OUT THE PURPOSE OF THIS SECTION.
444 THE 1987 PHILIPPINE CONSTITUTION: Sees.
9-10
A COMPREHENSIVE REVIEWER
Q. Is the list of officers subject to impeachment found in Section 2
exclusive?
A. As presently worded, yes.
Q. What are the grounds for "impeachment?"
A. See Section 2. Note that "graft and corruption" was first added
by the 1973 Constitution to the grounds found under the 1935
Constitution. The 1987 Constitution has added "betrayal of
public trust," which means any form of violation of the oath of
office even if such violation may not be a criminally punishable
offense.
Q. What is the purpose of impeachment?
A. The purpose of impeachment is not to punish but only to remove
an officer who does not deserve to hold office.
Q. What is the procedure for impeachment?
A. See Section 3.
Q. What penalty may be imposed upon conviction on impeachment?
A. Because the only purpose of impeachment is to remove, the
penalty which may be imposed "shall not extend further than
removal from office and disqualification to hold any office
under the Republic." This is broader than the old 1935 and
1973 formula of disqualification "to hold any office of honor,
trust, or profit under the Republic of the Philippines." This
penalty, moreover, is beyond the reach of the President's power
of executive clemency, but does not place the officer beyond
liability to criminal prosecution. When criminally prosecuted,
therefore, for the offense which warranted his conviction on
impeachment, the officer cannot plead the defense of double
jeopardy.
Q. How often may an officer be impeached?
A. The Constitution prohibits the initiation of more than one "impeachment
proceeding" within one year. When is an impeachment
proceeding deemed to be initiated? The "impeachment
proceeding" is not initiated when the complaint is transmitted
to the Senate for trial because that is the end of the House
proceeding and the beginning of another proceeding, namely
Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS the trial. Neither is
the "impeachment proceeding" initiated when the
House deliberates on the resolution passed on to it by the Committee,
because something prior to that has already been done. The action of
the House is already a further step in the proceeding, not its initiation or
beginning. Rather, the proceeding is initiated or begins, when a verified
complaint is filed and referred to the Committee on Justice for action.
This is the initiating step which triggers the series of steps that follow.
Francisco, et al. v. House Speaker, et al., G.R. No. 160261, November
10,2003.
SEC. 4. THE PRESENT ANTI-GRAFT COURT KNOWN AS THE
SANDIGANBAYAN SHALL CONTINUE TO FUNCTION AND EXERCISE ITS
JURISDICTION AS NOW OR
HEREAFTER MAY BE PROVIDED BY LAW.
Q. Is the Sandiganbayan a "constitutional court?"
A. No. It is a statutory court; that is, it is created not by the Constitution but by
statute, although its creation is mandated by the Constitution.
Q. What is the rationale for this provision?
A. The 1971 Constitutional Convention was fully aware of the continuing need
to combat the evils of graft and corruption; hence, this provision. In fact,
as early as 1955 an anti-graft law, R.A. 1379, was already thought
necessary. This was followed in 1960 by the Anti-Graft Act, R.A. 3019,
whose validity was upheld in Morfe v. Mutuc, 22 SCRA 424 (January 31,
1968); Nunez v. Sandiganbayan, 111 SCRA 433 (January 30,1982).
Q. Is the jurisdiction of the Sandiganbayan limited to criminal and civil cases
involving graft and corrupt practices of public officers?
A. Section 5 of Article XHI (1973) gave to the legislature broad discretion to
grant jurisdiction to the Sandiganbayan not only over graft and corrupt
practices but also over "such other offenses committed by public officers
and employees, including those in government owned or controlled
corporations, in relation to their office as may be determined by law."
Pursuant to this, broad powers were given to the Sandiganbayan
through P.D. No. 1486. Mayor Lecaroz v. Sandiganbayan, 128 SCRA 324
(March 22,1984).
446 THE 1987 PHILIPPINE CONSTITUTION: Sees.
9-10
A COMPREHENSIVE REVIEWER
Q. The Superintendent and Cashier of the Government-owned Catanduanes
Agricultural and Industrial College (CAIC) were indebted to Jesus and
Mila Balmadrid, suppliers of school construction materials. The
Superintendent and Cashier fraudulently issued 4 CAIC checks to the
Balmadrids. The Superintendent, Cashier, and the Balmadrids were
tried and found guilty by the Sandiganbayan of violating Section 3(e) of
R.A. 3019 (the Anti-Graft and Corrupt Practices Act). The Balmadrids
allege that as private citizens, the Sandiganbayan has no jurisdiction
over them. Is their contention correct?
A. No. "In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, they shall be tried
jointly with said public officers and employees (Section 4, P.D. 1606) . . .
Private persons may be charged together with public officers to avoid
repeated and unnecessary presentation of witnesses and exhibits
against conspirators in different venues, especially if the issues involved
are the same. It follows therefore that if a private person may be tried
jointly with public officers, he may also be convicted jointly with them,
as in the case of the present petitioners." Balmadrid v. The Honorable
Sandiganbayan, G.R. No. 58327, March 22,1991.
Q. Does the Sandiganbayan have jurisdiction over a private individual who is
charged with malversation of public funds as a principal after the said
individual had been designated by the Bureau of Internal Revenue as a
custodian of distained property?
A. Section 4 of P.D. No. 1606, in enunciating the jurisdiction of the
Sandiganbayan, "unequivocally specifies the only instances when the
Sandiganbayan will have jurisdiction over a private individual, i.e., when
the complaint charges the private individual either as a co-principal,
accomplice or accessoiy of a public officer or employee who has been
charged with a crime within its jurisdiction. The Information does not
charge petitioner of being a co-principal, accomplice or accessory to a
pub- He officer committing an offense under the Sandiganbayan's
jurisdiction, the Sandiganbayan has no jurisdiction. Azarcon v.
Sandiganbayan, G.R. No. 116033, February 26, 1997, 268 SCRA 747,
758.
Q. Did not the accused become a public officer and therefore became subject
to the Sandiganbayan's jurisdiction when the BIR designated him as
custodian?
Sees. 5-6 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS 447
A. No. Although Section 206 of the National Internal Revenue Code
"authorizes the BIR to effect a constructive distraint by requiring 'any
person' to preserve a distrained property," there is no provision in the
said statute "constituting such person a public officer by reason of such
requirement. The BIR's power authorizing a private individual to act as
depository cannot be stretched to include the power to appoint him as a
public officer. Id. at 761.
SEC. 5. THERE IS HEREBY CREATED THE INDEPENDENT OFFICE OF THE
OMBUDSMAN,
COMPOSED OF THE OMBUDSMAN TO BE KNOWN AS TANODBAYAN, ONE
OVER-ALL DEPUTY
AND AT LEAST ONE DEPUTY EACH FOR LUZON, VISAYAS, AND
MINDANAO. A SEPARATE
DEPUTY FOR THE MILITARY ESTABLISHMENT MAY LIKEWISE BE
APPOINTED.
SEC. 6. THE OFFICIALS AND EMPLOYEES OF THE OFFICE OF THE
OMBUDSMAN, OTHER
THAN THE DEPUTIES, SHALL BE APPOINTED BY THE OMBUDSMAN
ACCORDING TO THE CIVIL
SERVICE LAW.
Q. What is the power of the Ombudsman over his office?
A. Under the Constitution, the Office of the Ombudsman is an independent
body. As a guarantee of this independence, the Ombudsman has the
power to appoint all officials and employees of the Office of the
Ombudsman, except his deputies. This power necessarily includes the
power of setting, prescribing and administering the standards for the
officials and personnel of the Office.
To further ensure its independence, the Ombudsman has been
vested with the power of administrative control and supervision of the
Office. This includes the authority to organize such directorates for
administration and allied services as may be necessary for the effective
discharge of the functions of the Office, as well as to prescribe and
approve its position structure and staffing pattern. Necessarily, it also
includes the authority to determine and establish the qualifications,
duties, functions and responsibilities of the various directorates and
allied services of the Office. This must be so if the constitutional intent to
establish an independent Office of the Ombudsman is to remain
meaningful and significant. The Civil Service Commission has no power
over this. Ombudsman v. CSC, G.R. No. 162215, July 30, 2007.
448 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
SEC. 7. THE EXISTING TANODBAYAN SHALL HEREAFTER BE KNOWN
AS THE OFFICE OF THE SPECIAL PROSECUTOR. IT SHALL CONTINUE TO
FUNCTION AND EXERCISE ITS POWERS AS NOW OR HEREAFTER MAY BE
PROVIDED BY LAW, EXCEPT THOSE CONFERRED ON THE OFFICE OF THE
OMBUDSMAN CREATED UNDER THIS CONSTITUTION.
Q. What two distinct offices are created in the above provisions?
A. The two offices are that of the Ombudsman or Tanodbayan and that of the
Special Prosecutor.
The Special Prosecutor inherits the prosecutorial responsibility of the
Tanodbayan of the 1973 Constitution but is no longer called
Tanodbayan.
The Ombudsman inherits the title Tanodbayan and acts as
champion of the people, independent of and not beholden to the
President, and functions according to the enumeration in Section 13.
Relying on the prestige of his office, he will have persuasive powers plus
the ability to require that proper legal steps are taken by the officers
concerned. But the final say as to whether to prosecute or not will
belong to the executive department, although the Ombudsman or
Tanodbayan may seek to compel the fiscal to prosecute by mandamus
in proper cases. What is envisioned is a champion capable of lending
assistance especially to those who would normally not even know how
to go about filing a complaint. For these reasons, Sections 7, 8,
9,10,11,12, and 14 are intended to strengthen his independence.
Q. Raul Gonzales was Tanodbayan under the 1973 Constitution and
continued as such even after the ratification of the new Constitution.
May he conduct preliminary investigation and files cases against
government officials?
A. Section 7 makes the Tanodbayan the Special Prosecutor. However, he may
not exercise those powers "conferred on the Ombudsman created
under this Constitution." Hence, since the power to investigate has
been given to the Ombudsman by Section 13, par. 1, the Special
Prosecutor may investigate and file cases only when so authorized by
the Ombudsman. Zaldivar v. Sandiganbayan and Gonzales, 160 SCRA
843 (April 17,1988).
NOTE: Acop v. Ombudsman, G.R. No. 120422, September 27,
1995, reaffirms the doctrine in Zaldivar that the power
Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS to investigate,
including preliminary investigation, belongs to the
Ombudsman and not to the Special Prosecutor. But, while the
Ombudsman's power to investigate is primary, it is not exclusive and,
under the Ombudsman Act of 1989, he may delegate it to others and
take it back any time he wants to. Natividad v. Felix, 229 SCRA 680, 688
(1994), which also traces the statutory history of the powers of the
Ombudsman.
Q. May the Military Deputy investigate civilian police?
A. Because the power of the Ombudsman is broad and because the Deputy
Ombudsman acts under the direction of the Ombudsman, the power of
the Military Deputy to investigate members of the civilian police has also
been affirmed. Acop v. Ombudsman, G.R. No. 120422, September
27,1995.
Q. Does the power to investigate cover only acts related to the performance
of official function?
A. The power of the Ombudsman to investigate is very broad especially as it
has been expanded by the Ombudsman Act of 1989. He can investigate
"any illegal act or omission of any public official" even if the offense
committed by the official is not related to the performance of his
functions. Deloso v. Domingo, 191 SCRA 545,550 (1990).
Q. May a claim of confidentiality bar the Ombudsman's power to investigate?
A. Even the claim of confidentiality will not prevent the Ombudsman from
demanding the production of documents needed for the investigation.
In Almonte v. Vasquez, G.R. No. 95367, May 22, 1995, the Court said
that where the claim of confidentiality does not rest on the need to
protect military, diplomatic or other national security secrets but on
general public interest in preserving confidentiality, the courts have
declined to find in the Constitution an absolute privilege even for the
President. Moreover, even in cases where matters are really
confidential, inspection can be done in camera.
Q. May the Ombudsman impose preventive suspension?
A- The power to investigate also includes the power to impose preventive
suspension. This is different from the suspension referred to in Section
13(3). This latter is suspension as a pen
450 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-13
alty; preventive suspension is not a penalty. Buenaseda v. Flavier, 226
SCRA 645 (1993).
SEC. 8. THE OMBUDSMAN AND HIS DEPUTIES SHALL BE NATURALBORN
CITIZENS OF THE PHILIPPINES, AND AT THE TIME OF THEIR
APPOINTMENT, AT LEAST
FORTY YEARS OLD, OF RECOGNIZED PROBITY AND INDEPENDENCE, AND
MEMBERS OF THE
PHILIPPINE BAR, AND MUST NOT HAVE BEEN CANDIDATES FOR ANY
ELECTIVE OFFICE IN THE
IMMEDIATELY PRECEDING ELECTION. THE OMBUDSMAN MUST HAVE FOR
TEN YEARS OR MORE
BEEN A JUDGE OR ENGAGED IN THE PRACTICE OF LAW IN THE
PHILIPPINES.
DURING THEIR TENURE, THEY SHALL BE SUBJECT TO THE SAME
DISQUALIFICATIONS AND PROHIBITIONS AS PROVIDED FOR IN SECTION 2
OF ARTICLE IX-A OF
THIS CONSTITUTION.
SEC. 9. THE OMBUDSMAN AND HIS DEPUTIES SHALL BE APPOINTED BY
THE PRESIDENT
FROM A LIST OF AT LEAST SIX NOMINEES PREPARED BY THE JUDICIAL
AND BAR COUNCIL, AND
FROM A LIST OF THREE NOMINEES
FOR EVERY VACANCY THEREAFTER. SUCH APPOINTMENTS SHALL
REQUIRE NO CONFIRMATION.
ALL VACANCIES SHALL BE FILLED WITHIN THREE MONTHS AFTER THEY
OCCUR.
SEC. 10. THE OMBUDSMAN AND HIS DEPUTIES SHALL HAVE THE RANK
OF CHAIRMAN
AND MEMBERS, RESPECTIVELY, OF THE CONSTITUTIONAL
COMMISSIONS, AND THEY SHALL
RECEIVE THE SAME SALARY, WHICH SHALL
NOT BE DECREASED DURING THEIR TERM OF OFFICE.
SEC. 11. THE OMBUDSMAN AND HIS DEPUTIES SHALL SERVE FOR
A TERM OF SEVEN YEARS WITHOUT REAPPOINTMENT. THEY SHALL NOT
BE QUALIFIED TO RUN
FOR ANY OFFICE IN THE ELECTION IMMEDIATELY SUCCEEDING THEIR
CESSATION FROM OFFICE.
SEC. 12. THE OMBUDSMAN AND HIS DEPUTIES, AS PROTECTORS OF
THE PEOPLE, SHALL ACT PROMPTLY ON COMPLAINTS FILED IN ANY
FORM OR MANNER
AGAINST PUBLIC OFFICIALS OR EMPLOYEES OF THE GOVERNMENT, OR
ANY SUBDIVISION,
AGENCY OR INSTRUMENTALITY THEREOF, INCLUDING GOVERNMENT-
OWNED OR CONTROLLED
CORPORATIONS, AND SHALL, IN APPROPRIATE CASES, NOTIFY THE
COMPLAINANTS OF THE
ACTION TAKEN AND THE RESULT THEREOF.
Q. How is the jurisdiction of the Ombudsman over a person determined?
A. For purposes of determining the scope of the jurisdiction of the
Ombudsman, a public officer is one to whom some of the
Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS 451
sovereign functions of the government have been delegated. The
National Centennial Commission performs executive power which "is
generally defined as the power to enforce and administer the laws. It is
the power of carrying the laws into practical operation and enforcing
their due observance." The executive function, therefore, concerns the
implementation of the policies as set forth by law. Laurel v. Desierto,
G.R. No. 145368, April 12,2002
Q. Charged with murder, the Governor challenges the authority of the office of
the Ombudsman to conduct the investigation. He argues that the
authority of the Ombudsman is limited to "crimes related to or
connected with an official's discharge of his public functions." Decide.
A. The Ombudsman has authority. Section 12 says that he may "investigate...
any act or omission of any public official... when such act or omission
appears to be illegal, unjust, improper or inefficient." This is set out in
greater detail in Section 16 of R.A. 6770, the Ombudsman Act. Murder is
illegal. And since it was allegedly committed by a public official it comes
within the jurisdiction of the Ombudsman. Deloso v. Domingo, G.R. No.
90591, November 21,1990.
Q. The accused claims that the complaints against him were sworn to before a
notary public and the affidavits before a provincial fiscal not deputized
by the Ombudsman. Can the Ombudsman entertain the complaint?
A. Section 12 ells the Ombudsman to act on complaints filed in any manner.
Raro v. Sandiganbayan, G.R. No. 108431, July 14, 2000; Uy v.
Sandiganbayan, G.R. Nos. 105965-70, March 20, 2001.
SEC. 13. THE OFFICE OF THE OMBUDSMAN SHALL HAVE THE
FOLLOWING POWERS, FUNCTIONS, AND DUTIES:
(1) INVESTIGATE ON ITS OWN, OR ON COMPLAINT BY ANY PERSON,
ANY ACT OR OMISSION OF ANY PUBLIC OFFICIAL, EMPLOYEE, OFFICE OR
AGENCY, WHEN SUCH
ACT OR OMISSION APPEARS TO BE ILLEGAL, UNJUST, IMPROPER, OR
INEFFICIENT.
(2) DIRECT, UPON COMPLAINT OR AT ITS OWN INSTANCE, ANY PUBLIC
OFFICIAL OR
EMPLOYEE OF THE GOVERNMENT, OR ANY SUBDIVISION, AGENCY OR
INSTRUMENTALITY
THEREOF, AS WELL AS OF ANY GOVERN
452 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
MENT-OWNED OR CONTROLLED CORPORATION WITH ORIGINAL
CHARTER, TO PERFORM AND
EXPEDITE ANY ACT OR DUTY REQUIRED BY LAW, OR TO STOP, PREVENT,
AND CORRECT ANY
ABUSE OR IMPROPRIETY IN THE PERFORMANCE OF DUTIES.
(3) DIRECT THE OFFICER CONCERNED TO TAKE APPROPRIATE
ACTION AGAINST A PUBLIC OFFICIAL OR EMPLOYEE AT FAULT, AND
RECOMMEND HIS
REMOVAL, SUSPENSION, DEMOTION, FINE, CENSURE, OR PROSECUTION,
AND ENSURE
COMPLIANCE THEREWITH.
(4) DIRECT THE OFFICER CONCERNED, IN ANY APPROPRIATE CASE,
AND SUBJECT TO SUCH LIMITATIONS AS MAY BE PROVIDED BY LAW, TO
FURNISH IT WITH
COPIES OF DOCUMENTS RELATING TO CONTRACTS OR TRANSACTIONS
ENTERED INTO BY HIS
OFFICE INVOLVING THE DISBURSEMENT OR USE OF PUBLIC FUNDS OR
PROPERTIES, AND
REPORT ANY IRREGULARITY
TO THE COMMISSION ON AUDIT FOR APPROPRIATE ACTION.
(5) REQUEST ANY GOVERNMENT AGENCY FOR ASSISTANCE AND
INFORMATION
NECESSARY IN THE DISCHARGE OF ITS RESPONSIBILITIES,
AND TO EXAMINE, IF NECESSARY, PERTINENT RECORDS AND
DOCUMENTS.
(6) PUBLICIZE MATTERS COVERED BY ITS INVESTIGATION WHEN
CIRCUMSTANCES SO WARRANT AND WITH DUE PRUDENCE.
(7) DETERMINE THE CAUSES OF INEFFICIENCY, RED TAPE,
MISMANAGEMENT, FRAUD, AND CORRUPTION IN THE GOVERNMENT, AND
MAKE
RECOMMENDATIONS FOR THEIR ELIMINATION AND THE OBSERVANCE
OF HIGH STANDARDS
OF ETHICS AND EFFICIENCY.
(8) PROMULGATE ITS RULES OF PROCEDURE AND EXERCISE SUCH
OTHER POWERS OR PERFORM SUCH FUNCTIONS OR DUTIES AS MAY BE
PROVIDED BY LAW.
Q. What are the powers of the Ombudsman?
A. Over the years the scope of the powers of the Ombudsman under Section
13 has been clarified thus settling various disputed issues:
1. The Ombudsman can investigate only officers of
government owned corporations with original charter. PAL, even when
still owned by the government, did not have original charter. Khan, Jr. v.
Ombudsman, G.R. No. 125296, July 20, 2006.
2. The jurisdiction of the Ombudsman over disciplinary cases
involving public school teachers has been modified by Section 9 of R.A.
4670, otherwise known as the Magna Carta
Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS 453
for Public School Teachers, which says that such cases must first go to a
committee appointed by the Secretary of Education. Ombudsman v.
Estandarte, G.R. No. 168670, April 13, 2007.
It is erroneous, thus, to contend that R.A. No. 4670 confers an
exclusive disciplinary authority on the DECS over public school teachers
and prescribes an exclusive procedure in administrative investigations
involving them. R.A. No. 4670 was approved on June 18,1966. On the
other hand, the 1987 Constitution was ratified by the people in a
plebiscite in 1987 while R.A. No. 6770 was enacted on November 17,
1989. It is basic that the 1987 Constitution should not be restricted in its
meaning by a law of earlier enactment. The 1987 Constitution and R.A.
No. 6770 were quite explicit in conferring authority on the Ombudsman
to act on complaints against all public officials and employees, with the
exception of officials who may be removed only by impeachment or
over members of Congress and the Judiciary.
The Ombudsman Act authorizes the Ombudsman to impose
penalties in administrative cases. Ombudsman v. CA, November 22,
2006; Ombudsman v. Lucero, November 24, 2006.
Section 21 of R.A. 6770 vests in the Ombudsman "disciplinary
authority over all elective and appointive officials of the Government,"
except impeachable officers, members of Congress, and the Judiciary.
And under Section 25 of R.A. 6770, the Ombudsman may impose in
administrative proceedings the "penalty ranging from suspension
without pay for one year to dismissal with forfeiture of benefits or a fine
ranging from five thousand pesos (P5,000.00) to twice the amount malversed,
illegally taken or lost, or both at the discretion of the
Ombudsman x x x." Clearly, under R.A. 6770 the Ombudsman has the
power to impose directly administrative penalty on public officials or
employees. Ombudsman v. CA, G.R. No. 168079, July 17,2007.
Note, however, that according to the Local Government Code,
elective officials may be dismissed only by the proper court. "Where the
disciplining authority is given only the power to suspend and not the
power to remove, it should not be permitted to manipulate the law by
usurping the power to remove." Sangguniang Barangay v. Punong
Barangay, G.R. No. 170626, March 3, 2008.
454 THE 1987 PHILIPPINE CONSTITUTION: Sees.
9-10
A COMPREHENSIVE REVIEWER
4. The Special Prosecutor may not file an information without
authority from the Ombudsman. Republic Act No. 6770, by conferring
upon the Ombudsman the power to prosecute, likewise grants to the
Ombudsman the power to authorize the filing of information. A
delegated authority to prosecute was also given to the Deputy
Ombudsman, but no such delegation exists to the Special Prosecutor.
Nor is there an implied delegation. The Special Prosecutor prosecutes
only when authorized by the Ombudsman. Perez v. Sandiganbayan,
G.R. No. 166062, September 26,2006.
5. The Ombudsman has been conferred rule making power to
govern procedures under it. Buencamino v. CA, G.R. No. 175895, April
4,2007.
One who is answering an administrative complaint filed before
the Ombudsman may not appeal to the procedural rules under the Civil
Service Commission. Medina v. COA, G.R. No. 176478, February 4, 2008.
6. A preventive suspension will only last ninety (90) days, not
the entire duration of the criminal case like petitioners seem to think.
Indeed, it would be constitutionally proscribed if the suspension were to
be of an indefinite duration or for an unreasonable length of time. The
Court has thus laid down the rule that preventive suspension may not
exceed the maximum period of ninety (90) days, in consonance with
Presidential Decree No. 807, now Section 52 of the Administrative Code
of 1987. Villas Nor v. Sandiganbayan, G.R. No. 180700, March 4, 2008.
Q. Are the powers of the Ombudsman delegable?
A. The power to investigate or conduct a preliminary investigation on any
Ombudsman case may be exercised by an investigator or prosecutor of
the Office of the Ombudsman, or by any Provincial or City Prosecutor or
their assistance, either in their regular capacities or as deputized
Ombudsman prosecutors. Honasan II v. Panel of Investigators of the
DOJ, G.R. No. 159747, April 13, 2004.
NOTE: The primary jurisdiction of the Ombudsman to investigate
any act or omission of a public officer or employee applies only in cases
cognizable by the Sandiganbayan. In cases cognizable by regular courts,
the Ombudsman has concurrent
Sees. 14-17 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS 465
jurisdiction with other investigative agencies of government. Republic
Act No. 8249, otherwise known as An Act Further Defining the
Jurisdiction of the Sandiganbayan, limits the cases that are cognizable by
the Sandiganbayan to public officials occupying positions corresponding
to salary grade 27 and higher. The Sandiganbayan has no jurisdiction
over private respondent who, as punong barangay, is occupying a
position corresponding to salary grade 14 under Republic Act No. 6758,
otherwise known as the Compensation and Position Classification Act of
1989. Ombudsman v. Rodriguez, G.R. No. 172700, July 23, 2010.
Q. If the Ombudsman refers a case to the NBI for investigation and
the NBI recommends prosecution. Accused complains that the
Ombudsman abdicated its duty to investigate?
A. No. Section 13(2) allows him to direct cases for investigation to
other officers. Besides, what was referred to the NBI was fact finding;
preliminary investigation would still be conducted by the Ombudsman.
Rare v. Sandiganbayan, G.R. No. 108431, July 14,2000.
SEC. 14. THE OFFICE OF THE OMBUDSMAN SHALL ENJOY FISCAL
AUTONOMY. ITS
APPROVED ANNUAL APPROPRIATIONS SHALL BE AUTOMATICALLY AND
REGULARLY RELEASED.
SEC. 15. THE RIGHT OF THE STATE TO RECOVER PROPERTIES
UNLAWFULLY ACQUIRED BY
PUBLIC OFFICIALS OR EMPLOYEES, FROM THEM OR FROM THEIR
NOMINEES OR TRANSFEREES,
SHALL NOT BE BARRED BY PRESCRIPTION, LACHES, OR ESTOPPEL.
Q. Does Section 15 prevent the prescription of the crime? A. No. The right to
prosecute criminally can prescribe.
SEC. 16. No LOAN, GUARANTY, OR OTHER FORM OF FINANCIAL
ACCOMMODATION FOR ANY BUSINESS PURPOSE MAY BE GRANTED,
DIRECTLY OR INDIRECTLY, BY
ANY GOVERNMENT-OWNED OR CONTROLLED BANK OR FINANCIAL
INSTITUTION TO THE
PRESIDENT, THE VICE-PRESIDENT, THE
MEMBERS OF THE CABINET, THE CONGRESS, THE SUPREME COURT, AND
THE CONSTITUTIONAL
COMMISSIONS, THE OMBUDSMAN, OR TO ANY FIRM
OR ENTITY IN WHICH THEY HAVE CONTROLLING INTEREST, DURING
THEIR TENURE.
SEC. 17. A PUBLIC OFFICER OR EMPLOYEE SHALL, UPON ASSUMPTION
OF OFFICE AND AS OFTEN THEREAFTER AS MAY BE REQUIRED BY LAW,
456 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
SUBMIT A DECLARATION UNDER OATH OF HIS ASSETS, LIABILITIES, AND
NET WORTH. IN THE
CASE OF THE PRESIDENT, THE VICE-PRESIDENT, THE
MEMBERS OF THE CABINET, THE CONGRESS, THE SUPREME COURT, THE
CONSTITUTIONAL
COMMISSIONS AND OTHER CONSTITUTIONAL OFFICES,
AND OFFICERS OF THE ARMED FORCES WITH GENERAL OR FLAG RANK,
THE DECLARATION
SHALL BE DISCLOSED TO THE PUBLIC IN THE MANNER PROVIDED BY
LAW.
Q. What is the objective of Sections 16 and 17?
A. They are intended to strengthen the concept of public office as a public
trust.
SEC. 18. PUBLIC OFFICERS AND EMPLOYEES OWE THE STATE AND THIS
CONSTITUTION
ALLEGIANCE AT ALL TIMES, AND ANY PUBLIC OFFICER OR EMPLOYEE
WHO SEEKS TO CHANGE
HIS CITIZENSHIP OR ACQUIRE THE
STATUS OF AN IMMIGRANT OF ANOTHER COUNTRY DURING HIS TENURE
SHALL BE DEALT WITH
BY LAW.
Q. Miguel is a holder of a "green card" entitling him to be a resident of the
United States permanently. In his application for the card he put down
his intention to reside in the United States "permanently." He actually
immigrated to the United States in 1984 and thereby assumed
allegiance to the United States. He however returned to the Philippines
in 1987 to run for mayor of a municipality. Is Article XI, Section 18
applicable to him? Does he have the necessary residence requirement?
A. Article XI, Section 18 is not applicable because it has reference to
"incumbents." What is applicable is Section 68 of the Omnibus Election
Code which bars "a permanent resident of or an immigrant to a foreign
country" unless he waives his status as a permanent resident of the
foreign country. The mere filing of a certificate of candidacy is not the
required waiver. It must be by a special act done before filing a
certificate of candidacy. Case v. Court of Appeals and Miguel, G.R. No.
88831, November 8,1990.
ARTICLE XII
NATIONAL ECONOMY AND PATRIMONY
SECTION 1. THE GOALS OF THE NATIONAL ECONOMY ARE A MORE
EQUITABLE DISTRIBUTION OF OPPORTUNITIES, INCOME, AND WEALTH; A
SUSTAINED INCREASE
IN THE AMOUNT OF GOODS AND SERVICES PRODUCED BY THE NATION
FOR THE BENEFIT OF THE
PEOPLE; AND AN EXPANDING PRODUCTIVITY AS THE KEY TO RAISING
THE QUALITY OF LIFE FOR
ALL, ESPECIALLY THE UNDERPRIVILEGED.
THE STATE SHALL PROMOTE INDUSTRIALIZATION AND FULL
EMPLOYMENT BASED ON SOUND AGRICULTURAL DEVELOPMENT AND
AGRARIAN REFORM,
THROUGH INDUSTRIES THAT MAKE FULL AND EFFICIENT USE OF HUMAN
AND NATURAL
RESOURCES, AND WHICH ARE COMPETITIVE IN BOTH DOMESTIC AND
FOREIGN MARKETS.
HOWEVER, THE STATE SHALL
PROTECT FILIPINO ENTERPRISES AGAINST UNFAIR FOREIGN
COMPETITION
AND TRADE PRACTICES.
IN THE PURSUIT OF THESE GOALS, ALL SECTORS OF THE ECONOMY AND
ALL REGIONS OF THE
COUNTRY SHALL BE GIVEN OPTIMUM OPPORTUNITY
TO DEVELOP. PRIVATE ENTERPRISES, INCLUDING CORPORATIONS,
COOPERATIVES, AND SIMILAR COLLECTIVE ORGANIZATIONS, SHALL BE
ENCOURAGED TO
BROADEN THE BASE OF THEIR OWNERSHIP.
Q. What is the threefold goal of the national economy?
A. (1) More equitable distribution of wealth; (2) increase of wealth for the
benefit of the people; (3) increased productivity.
Q. What is the national policy on industrialization and agricultural
development?
A. What is envisioned is not necessarily agriculturally related industrialization
but rather industrialization that is a result of releasing through agrarian
reform capital locked up in
457
458 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
land. This therefore is necessarily related to the article on social justice.
Moreover, this does not mean a hard-bound rule that agricultural
development must have priority over industrialization. What is
envisioned is a flexible and rational relationship between the two as
dictated by the common good.
Q. What is meant by "unfair foreign competition and trade practices" in the
second paragraph of Section 1?
A. The phrase is not to be understood in a limited legal and technical sense but
in the sense of anything that is harmful to Philippine enterprises. At the
same time, however, the intention is not to protect local inefficiency.
Nor is it the intention to protect local industries from foreign
competition at the expense of the consuming public.
SEC. 2. ALL LANDS OF THE PUBLIC DOMAIN, WATERS, MINERALS,
COAL, PETROLEUM AND OTHER MINERAL OILS, ALL FORCES OF
POTENTIAL
ENERGY, FISHERIES, FORESTS OR TIMBER, WILDLIFE, FLORA AND
FAUNA,
AND OTHER NATURAL RESOURCES ARE OWNED BY THE STATE. WlTH
THE
EXCEPTION OF AGRICULTURAL LANDS, ALL OTHER NATURAL
RESOURCES
SHALL NOT BE ALIENATED. THE EXPLORATION, DEVELOPMENT, AND
UTILIZATION OF NATURAL RESOURCES SHALL BE UNDER THE FULL
CONTROL AND SUPERVISION OF THE STATE. THE STATE MAY DIRECTLY
UNDERTAKE SUCH ACTIVITIES, OR IT MAY ENTER INTO CO-PRODUCTION,
JOINT VENTURE, OR PRODUCTION-SHARING AGREEMENTS WITH
FlLIPINO
CITIZENS, OR CORPORATIONS OR ASSOCIATIONS AT LEAST SIXTY PER
CENTUM OF WHOSE CAPITAL IS OWNED BY SUCH CITIZENS. SUCH
AGREEMENTS MAY BE FOR A PERIOD NOT EXCEEDING TWENTY-FIVE
YEARS, RENEWABLE FOR NOT MORE THAN TWENTY-FIVE YEARS, AND
UNDER SUCH TERMS AND CONDITIONS AS MAY BE PROVIDED BY LAW. IN
CASES OF WATER RIGHTS FOR IRRIGATION, WATER SUPPLY, FISHERIES,
OR
INDUSTRIAL USES OTHER THAN THE DEVELOPMENT OF WATER POWER,
BENEFICIAL USE MAY BE THE MEASURE AND LIMIT OF THE GRANT.
THE STATE SHALL PROTECT THE NATION'S MARINE WEALTH IN ITS
ARCHIPELAGIC WATERS, TERRITORIAL SEA, AND EXCLUSIVE ECONOMIC
ZONE, AND RESERVE ITS USE AND ENJOYMENT EXCLUSIVELY TO
FlLIPINO
CITIZENS.
THE CONGRESS MAY, BY LAW, ALLOW SMALL-SCALE UTILIZATION OF
NATURAL RESOURCES BY FlLIPINO CITIZENS, AS WELL AS
COOPERATIVE
FISH FARMING, WITH PRIORITY TO SUBSISTENCE FISHERMEN AND
FISHWORKERS IN RIVERS, LAKES, BAYS, AND LAGOONS.
Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS TEDS
PRESIDENT MAY ENTER INTO AGREEMENTS WITH FOREIGN-OWNED
CORPORATIONS INVOLVING EITHER TECHNICAL OR FINANCIAL
ASSISTANCE FOR LARGE-SCALE
EXPLORATION, DEVELOPMENT, AND UTILIZATION OF MINERALS,
PETROLEUM, AND OTHER
MINERAL OILS ACCORDING TO THE GENERAL TERMS AND CONDITIONS
PROVIDED BY LAW,
BASED ON REAL CONTRIBUTIONS TO THE ECONOMIC GROWTH AND
GENERAL WELFARE OF THE
COUNTRY. IN SUCH AGREEMENTS, THE STATE SHALL PROMOTE THE
DEVELOPMENT, AND USE
OF LOCAL SCIENTIFIC AND TECHNICAL RESOURCES.
THE PRESIDENT SHALL NOTIFY THE CONGRESS OF EVERY CONTRACT
ENTERED INTO IN ACCORDANCE WITH THIS PROVISION, WITHIN THIRTY
DAYS FROM ITS
EXECUTION.
Q. What is the regalian doctrine?
A. In public law a distinction is made between imperium and dominium.
Imperium is the government authority possessed by the State
expressed in the concept of sovereignty. Dominium is the capacity of
the State to own or acquire property. Dominium, which was the
foundation for the early Spanish decrees embracing the feudal theory of
jura regalia that all lands were held from the Crown, is also the
foundation of the first sentence of Section 2. As adopted in a republican
system, however, the medieval concept of jura regalia has been
stripped of regalian overtones: ownership is vested in the State, not in
the head of the State — be he President or Prime Minister. Lee Hong
Kok v. David, 48 SCRA 372,377 (1972).
Q. What is the consequence of the regalian doctrine of Section 2?
A. Any person claiming ownership of a portion of the public domain must be
able to show title from the state according to any of the recognized
modes of acquisition of title. Id. at 379.
Q. When the regalian doctrine was introduced into the Philippines by
colonizers, did the colonizers strip the natives of their ownership of
lands?
A. No. Carifio v. Insurer Government, 41 Phil 935 (1909) said that "when, as far
back as testimony or memory goes, the land has been held by
individuals under a claim of private ownership, it will be presumed that
to have been held in the same way from before the Spanish conquest,
and never to have been public land."
460 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Q. When does land of the public domain become private land?
A. When it is acquired from the government either by purchase or by grant.
As held in Oh Cho v. Director of Lands, 75 Phil. 890, "all lands that were
not acquired from the Government, either by purchase or by grant,
belong to the public domain. An exception to the rule would be any land
that should have been in the possession of an occupant and of his
predecessors- in-interest since time immemorial, for such possession
would justify the presumption that the land had never been part of the
public domain or that it had been private property even before the
Spanish conquest."
Q. Can prescription transform public land into private land?
A Yes, if it is alienable land. "Open, exclusive and undisputed
possession of alienable public land for the period prescribed by law
creates the legal fiction whereby the land, upon completion of the
requisite period ipso jure and without need of judicial or other sanction,
ceases to be public land and becomes private property. Such open,
continuous, exclusive and notorious occupation of the disputed
properties for more than 30 years must, however, be conclusively
established. This quantum of proof is necessary to avoid the erroneous
validation of actually fictitious claims of possession over the property in
dispute." San Miguel Corporation v. Court of Appeals, G.R. No. 57667,
May 28,1990.
Q. In computing the thirty year period for acquisitive prescription
under Section 49(9) of the Public Land Law, can the period before the
land, e.g., forest land, is converted into alienable public land be
included?
A No. The thirty year period only begins to toll only from the time
the land is converted into alienable public land. Almeda v. Court of
Appeals, G.R. No. 85322, April 30,1991.
Q. Do mining claims acquired, registered, perfected, and
patentable under the Old Mining Law mature to private ownership that
would entitle the claimant to the ownership thereof?
A "Mere location does not mean absolute ownership over the
affected land or the mining claim. It merely segregates the located land
or area from the public domain by barring other would-be locators from
locating the same and appropriating for themselves the minerals found
therein. To rule otherwise would imply that location is all that is needed
to acquire and maintain rights over a located mining claim. This, we
cannot approve or sanction because it is contrary to the intention of the
lawmaker that the locator should faithfully
Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS 461
and consistently comply with the requirements for annual work and
improvements in the located mining claims." Director of Lands v. Kalahi
Investments, Inc., G.R. No. 48066, January 31, 1989, quoting Santa Rosa
Mining Co. v. Leido, Jr., 156 SCRA 1 (1987).
Q. What are the limits imposed by Section 2 on the jura regalia of the state?
A- (1) Only agricultural lands of the public domain may be alienated. (2) The
exploration, development, and utilization of all natural resources shall
be under the full control and supervision of the State either by directly
undertaking such exploration, development, and utilization or through
co- production, joint venture, or production-sharing agreements with
qualified persons or corporations. (3) All agreements with the qualified
private sector may be for only a period not exceeding twenty-five years,
renewable for another twenty-five years. (The twenty-five year limit is
not applicable to "water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power," for which
"beneficial use may be the measure and the limit of the grant.") (4) The
use and enjoyment of the marine wealth of the archipelagic waters,
territorial sea, and exclusive economic zone shall be reserved for Filipino
citizens. (It would seem, therefore, that corporations are excluded or at
least must be fully owned by Filipinos.) (5) Utilization of natural
resources in rivers, lakes, bays, and lagoons may be allowed on a "small
scale" to Filipino citizens or cooperatives — with priority for subsistence
fishermen and fish workers. (The bias here is for the protection of the
little people.)
Q. What is the nature of reclaimed foreshore and submerged lands?
A. They are lands of the public domain and, unless classified as alienable, may
not be disposed of.
Q. For reclaimed land to be registered as private property what is
required?
A. Two things are required. First, since reclaimed land is part of
the inalienable public domain, there must be proof that the land had
been classified as alienable. Second, the person seeking registration
must show proof of having acquired the property, e.g., by prescription.
Inalienable land, however, cannot be acquired by prescription. Republic
v. Enciso, G.R. No. 160145, November 11,2005.
462 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Q. Could the Public Estates Authority dispose of reclaimed lands?
A. In order for PEA to sell its reclaimed foreshore and submerged
alienable lands of the public domain, there must be legislative authority
empowering PEA to sell these lands. This legislative authority is
necessary in view of Section 60 of CA No. 141, which states
"Sec. 60. ...; but the land so granted, donated or transferred to a
province, municipality, or branch or subdivision of the Government shall
not be alienated, encumbered or otherwise disposed of in a manner
affecting its title, except when authorized by Congress;..."
Without such legislative authority, PEA could not sell but only
lease its reclaimed foreshore and submerged alienable lands of the
public domain.
Nevertheless, any legislative authority granted to PEA to sell its
reclaimed alienable lands of the public domain would be subject to the
constitutional ban on private corporations from acquiring alienable
lands of the public domain. Hence, such legislative authority could only
benefit private individuals. Chavez v. PEA andAMARI, G.R. No. 133250,
July 9,2002.
However, in a May 6, 2003 Resolution the Court clarified that
"reclaimed lands of the public domain if sold or transferred to a public
or municipal corporation for a monetary consideration become
patrimonial property . . .[and] may be sold ... to private parties,
whether Filipino citizens or qualified corporations."
Q. What is the nature of the Roppongi property in Japan?
A. The subject property in this case is one of the four (4)
properties in Japan acquired by the Philippine government under the
Reparations Agreement entered into with Japan on May 9,1956. The
nature of the Roppongi lot as property for public service is expressly
spelled out. It is dictated by the terms of the Reparations Agreement
and the corresponding contract of procurement which bind both the
Philippine government and the Japanese government.
There can be no doubt that it is of public dominion unless it is
convincingly shown that the property has become patrimonial. As
property of public dominion, the Roppongi lot is outside the commerce
of man. It cannot be alienated. Its ownership is a special collective
ownership for general use and enjoyment, an application to the
satisfaction of collective needs, and resides in the social group. The
purpose is not to serve the State as a juridical person, but the citizens; it
is intended for the common and public welfare and cannot be the
object of appropriation. (Taken from 3 Manresa, 66-69; cited in
Sec. 2 ART. xn - NATIONAL ECONOMY AND PATRIMONY 463
Tolentino, Commentaries on the Civil Code of the Philippines, 1963
Edition, Vol. II, p. 26). Laurel v. Garcia, G.R. No. 92013 & 92047, July
25,1990
Q. Section 2 speaks of "co-production, joint venture, or production sharing
agreements" as modes of exploration, development, and utilization of
inalienable lands. Does this effectively exclude the lease system?
A. Yes, with respect to mineral and forest lands. Agricultural lands may be the
subject of lease. See Section 3.
Q. "Who are qualified to take part in the exploration, development, and
utilization of the natural resources?
A. Filipino citizens, and corporations or associations at least sixty per cent of
whose capital is owned by Filipino citizens. (Note, however, that as to
marine wealth, only Filipino citizens are qualified. This is also true of
natural resources in rivers, bays, lakes, and lagoons, but with allowance
for cooperatives.)
Q. May the State enter into service contracts with foreign owned
corporations?
A. Yes, but subject to the strict limitations in the last two paragraphs of Section
2. Financial and technical agreements are a form of service contract.
Such service contracts may be entered into only with respect to
minerals, petroleum and other mineral oils. The grant of such service
contracts is subject to several safeguards, among them: (1) that the
service contract be crafted in accordance with a general law setting
standard or uniform terms, conditions and requirements; (2) the
President be the signatory for the government; and (3) the President
report the executed agreement to Congress within thirty days. La Bugal
B'laan Tribal Assoc, DENR, G.R. No. 127882, December 1,2004 (On
Reconsideration) and February 1,2005.
Q. When technical and financial assistance agreement is entered into under
Section 2, can it include some management role for the foreign
corporation?
A. Applying familiar principles of constitutional construction to the phrase
agreements involving either technical or financial assistance, the
framers' choice of words does not indicate the
464 THE 1987 PHILIPPINE CONSTITUTION: Sees.
9-10
A COMPREHENSIVE REVIEWER
intent to exclude other modes of assistance, but rather implies that
there are other things being included or possibly being made part of the
agreement, apart from financial or technical assistance. The drafters
avoided the use of restrictive and stringent phraseology; a verba legis
scrutiny of Section 2 of Article XII of the Constitution discloses not even
a hint of a desire to prohibit foreign involvement in the management or
operation of mining activities, or to eradicate service contracts.
Furthermore, a literal and restrictive interpretation of this
paragraph leads to logical inconsistencies. A constitutional provision
specifically allowing foreign-owned corporations to render financial or
technical assistance in respect of mining or any other commercial
activity was clearly unnecessary; the provision was meant to refer to
more than mere financial or technical assistance. Also, if paragraph 4
permits only agreements for financial or technical assistance, there
would be no point in requiring that they be based on real contributions
to the economic growth and general welfare of the country And
considering that there were various long-term service contracts still in
force and effect at the time the new Charter was being drafted, the
absence of any transitory provisions to govern the termination and
closing-out of the then existing service contracts strongly militates
against the theory that the mere omission of "service contracts"
signaled their prohibition by the new Constitution.
Resort to the deliberations of the Constitutional Commission is
therefore unavoidable, and a careful scrutiny thereof conclusively
shows that the ConCom members discussed agreements involving
either technical or financial assistance in the same sense as service
contracts and used the terms interchangeably. The drafters in fact knew
that the agreements with foreign corporations were going to entail not
mere technical or financial assistance but, rather, foreign investment in
and management of an enterprise for large-scale exploration,
development and utilization of minerals.
The framers spoke about service contracts as the concept was
understood in the 1973 Constitution. It is obvious from their discussions
that they did not intend to ban or eradicate service contracts. Instead,
they were intent on crafting provisions to put in place safeguards that
would eliminate or minimize the abuses prevalent during the martial
law regime. In brief, they
Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS were going to
permit service contracts with foreign corporations as
contractors — but with safety measures to prevent abuses — as an
exception to the general norm established in the first paragraph of
Section 2 of Article XII, which reserves or limits to Filipino citizens and
corporations that are at least 60 percent owned by such citizens the
exploration, development and utilization of mineral or petroleum
resources. This was prompted by the perceived insufficiency of Filipino
capital and the felt need for foreign expertise in the EDU of mineral
resources.
From the foregoing, it is clear that agreements involving either
technical or financial assistance referred to in paragraph 4 are in fact
service contracts, but such new service contracts are between foreign
corporations acting as contractors on the one hand, and on the other
hand government as principal or "owner" (of the works), whereby the
foreign contractor provides the capital, technology and technical
know-how, and managerial expertise in the creation and operation of
the large- scale mining/extractive enterprise, and government through
its agencies (DENR, MGB) actively exercises full control and supervision
over the entire enterprise. La Bugal B'laan Tribal Assoc. v. Ramos, G.R.
No. 127882, December 1, 2004 (On Reconsideration) and February
1,2005.
Q. May such financial and technical assistance agreements include
management?
A. To the extent that management is incidental to such agreements, yes.
Q. Compare the rule under the 1987 Constitution with those of
the 1935 and 1973 Constitutions.
A. The 1987 rule is more strict than the 1935 and 1973 rules. What
the new rule says is that whenever natural resources are involved,
particularly in the case of inalienable natural resources, the State must
always have some control of the exploration, development and
utilization even if the individual or corporation engaged in the operation
is Filipino. Thus, for instance, in the words of Commissioner Davide, "no
timber or forest concessions, permits or authorization can be exclusively
granted to any citizen of the Philippines nor to any corporations
qualified to acquire lands of the public domain." But this rule is not
retroactive.
The non-retroactivity of this rule is respected in the Executive
Order No. 211 issued by President Aquino in the exercise of legislative
466 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
powers and in Executive Order No. 279 which authorized the Secretary
of Natural Resources to conclude joint venture, co-production, or
production sharing agreements for the exploration, development and
utilization of mineral resources applicable to contracts entered into
after the effectivity of the 1987 Constitution. In upholding the
administrative regulations issued by the Secretary of Natural Resources,
Miners Association of the Philippines v. Factoran, Jr., 240 SCRA
100,104-106 (1995), recognized that the new Constitution assumes a
more dynamic role in relation to natural resources. "No longer is the
utilization of inalienable lands of public domain through license,
concession or lease'. . "The options open to the State are through direct
undertaking or by entering into co-production, joint venture, or
production sharing agreements ..
Q. May aliens lease land of the public domain?
A. No, because that would involve enjoyment of the natural resources of the
public domain. See Section 2.
Q. May a foreign corporation buy shares in excess of 40% of the shares of the
corporation?
A. Yes. There is no law against that. But the effect would be that the
corporation would lose its capacity to hold land. J.G. Summit v. CA., G.R.
No. 124293, January 31, 2005.
Q. May an alien lease private land?
A. To be sure, a lease to an alien for a reasonable period is valid. So is an
option giving an alien the right to buy real property on condition that he
is granted Philippine citizenship. As the Court said in Krivenko v. Register
of Deeds:
[Alliens are not completely excluded by the Constitution
from the use of lands for residential purposes. Since their
residence in the Philippines is temporary, they may be granted
temporary rights such as a lease contract which is not forbidden
by the Constitution. Should they desire to remain here forever
and share our fortunes and misfortunes, Filipino citizenship is not
impossible to acquire.
But if an alien is given not only a lease of, but also an option
to buy, a piece of land, by virtue of which the Filipino owner
cannot sell or otherwise dispose of his property, this to last for 50
years, then it becomes clear
Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS 467
that the arrangement is a virtual transfer of ownership
whereby the owner divests himself in stages not only of
the right to enjoy the land (jus possidendi, jus utendi,
jus fruendi and jus abutendi) but also of the right to
dispose of it (jus disponendi) — rights the sum total
of which make up ownership. It is just as if today the
possession is transferred, tomorrow the use, the next
day disposition, and so on, until ultimately all the rights
of which ownership is made up are consolidated in the
alien." This is circumvention of the constitution. Krivenko
v. Register of Deeds, 79 Phil. 461, 481 (1947Philippine
Banking Corporation v. Lui She, No. L-17587, September
12, 1967, 21 SCRA 52; J.G. Summit v. CA., G.R. No.
124293, January 31,2005.
Q. Are aliens disqualified from owning every kind of real property?
A. No. The prohibition in the Constitution applies only to
ownership of land. It does not extend to all immovable or real
property as defined under Article 415 of the Civil Code, that
is, those which are considered immovable for being attached to
land, including buildings and constructing of all kind attached
to the soil. J.G. Summit v. CA., G.R. No. 124293, January 31,
2005.
SEC. 3. LANDS OF THE PUBLIC DOMAIN ARE CLASSIFIED INTO
AGRICULTURAL, FOREST OR TIMBER, MINERAL LANDS, AND NATIONAL
PARKS. AGRICULTURAL LANDS OF THE PUBLIC DOMAIN MAY BE
FURTHER
CLASSIFIED BY LAW ACCORDING TO THE USES TO WHICH THEY MAY BE
DEVOTED. ALIENABLE LANDS OF THE PUBLIC DOMAIN SHALL BE
LIMITED
TO AGRICULTURAL LANDS. PRIVATE CORPORATIONS OR ASSOCIATIONS
MAY
NOT HOLD SUCH LANDS OF THE PUBLIC DOMAIN EXCEPT BY LEASE, FOR
A (C.A No. 141).
PERIOD NOT EXCEEDING TWENTY-FIVE YEARS, RENEWABLE FOR NOT
MORE
THAN TWENTY-FIVE YEARS, AND NOT TO EXCEED ONE THOUSAND
HECTARES
IN AREA. CITIZENS OF THE PHILIPPINES MAY LEASE NOT MORE THAN
FIVE
HUNDRED HECTARES, OR ACQUIRE NOT MORE THAN TWELVE
HECTARES
THEREOF BY PURCHASE, HOMESTEAD, OR GRANT.
TAKING INTO ACCOUNT THE REQUIREMENTS OF CONSERVATION,
ECOLOGY AND DEVELOPMENT AND SUBJECT TO THE REQUIREMENTS
OF
AGRARIAN REFORM, THE CONGRESS SHALL DETERMINE, BY LAW, THE
SIZE
OF LANDS OF THE PUBLIC DOMAIN WHICH MAY BE ACQUIRED,
DEVELOPED,
HELD OR LEASED AND THE CONDITIONS THEREFOR.
468 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 17
Q. Who classifies public lands?
A. In Director of Lands v. Court of Appeals, 129 SCRA 689 (June 22, 1984), the
Court said: "The classification of public lands is an exclusive prerogative
of the Executive Department of the Government and not of the Courts.
In the absence of such classification, the land remains as unclassified
land until it is released therefrom and rendered open to disposition.
This should be so under time honored Constitutional precepts. This is
also in consonance with the Regalian doctrine that all lands of the public
domain belong to the State, and that the State is the source of any
asserted right to ownership in the land and charged with the
conservation of such patrimony."
It should be noted, however, that the power of the executive is
delegated power by virtue of C.A. 141.
Q. Who may change the classification of public lands, e.g., from
inalienable to alienable, and how is the classification done?
A. The classification of public lands is the exclusive prerogative of
the President upon recommendation of the pertinent department head
Q. Does the classification of land change automatically when the
nature of the land changes?
A. No. A positive act of the executive is needed is needed. Anyone
who claims that the classification has been changed must be able to
show the positive act of the President indicating such positive act. The
classification is descriptive of its legal nature and not of what the land
actually looks like. Hence, for instance, that a former forest has been
denuded does not by that fact mean that it has ceased to be forest
land. Director of Lands v. Judge Aquino, G.R. No. 31688, December
17,1990.
Q. Can land have a mixed classification, e.g., partly mineral, partly
agricultural?
A. No. "The Court feels that the rights over the land are indivisible
and that the land itself cannot be half agricultural and half mineral. The
classification must be categorical: the land must be either completely
mineral or completely agricultural. In the instant case, as already
observed, the land which was originally classified as forest land ceased
to be so and became mineral and completely mineral — once the
mining claims were perfected. As long as mining operations were being
undertaken thereon, or underneath, it did not cease to be so and
become agricultural, even if only partly so, because
Sees. 9-10 ART. XII - NATIONAL ECONOMY AND PATRIMONY 469
it was enclosed with a fence and was cultivated by those who were
unlawfully occupying the surface." Republic v. Court of Appeals, 160
SCRA 228 (1988).
Q. If a person is the owner of agricultural land in which minerals
are discovered, does his ownership of such land give him the right to
extract or utilize the said minerals without the permission of the State to
which such minerals belong?
A. No. This is an application of the Regalian Doctrine. Thus, once
minerals are discovered in the land, whatever the use to which it is being
devoted at the time, such use may be discontinued by the State to
enable it to extract the minerals therein in the exercise of its sovereign
prerogative. The land is thus converted to mineral land. For the loss
sustained, the owner is entitled to compensation wider the Mining Law
or in appropriate expropriation proceedings. Republic v. Court of
Appeals, 160 SCRA 228 (1988).
Q. Are mangrove swamps or manglares agricultural or forest
lands?
A. The classification by the Administrative Code of manglares as
forest lands has not been changed. Director of Forestry v. Villareal, G.R.
No. 32266, February 27, 1989. (This case discusses the subject
exhaustively.)
NOTE: The President has been given the power to withdraw forest
reserves found to be more valuable for their mineral contents than for
the purpose for which the reservation was made and convert the same
into non-forest reserves. Unlike under earlier laws which required
concurrence by the legislative body, all that is required now is the
recommendation of the DENR Secretary. Apex Mining v. Southeast
Mindanao Gold, G.R. No. 152613 & No. 152628, June 23, 2006.
What are the rules on the disposition and exploitation of agricultural
lands of the public domain?
(1) Private corporations or associations may not acquire alienable lands
of the public domain. (2) Qualified individuals may acquire a maximum
of 12 hectares (down from 24 of the 1973 Constitution) of alienable
lands of the public domain. (3) Private corporations may hold alienable
lands of the public domain by lease up to a maximum of 1,000 hectares
and for a period of twenty-five years renewable for another twenty-five
years (4) Qualified individuals may lease land of the public domain up to
a maximum of 500 hectares.
470 THE 1987 PHILIPPINE CONSTITUTION: Sees.
9-10
A COMPREHENSIVE REVIEWER
Q. Where public land was acquired within the maximum limit of the
Constitution in effect at the time of acquisition, may such land be
registered even if the area is beyond the new land limit in a later
Constitution?
A. Yes. The validity of acquisition is determined as of the time land was
acquired. Director of Lands v. Intermediate Appellate Court, 146 SCRA
509 (1986).
Q. May qualified corporations acquire land?
A. Yes, but only private land.
Q. Does the prohibition on acquisition of public lands apply to
corporations sole?
A. Yes, to the same extent that the prohibition is applicable to
private corporations. Even if a corporation sole is different from other
corporations in other respects, in the matter of acquisition of public land
they are treated like other corporations. Republic v. Intermediate Court
of Appeals, G.R. No. 75042, November 29,1988.
Q. When does public land become private land: upon issuance of the
certificate of registration or upon completion of all steps necessary to
entitle one to registration?
A. Alienable public land held by a possessor, personally or through his
predecessors in interest, openly, continuously and exclusively for the
prescribed statutory period of thirty years is converted to private
property by the mere lapse of completion of said period, ipso jure.
Director of Lands v. Intermediate Appellate Court, 146 SCRA 509 (1986).
Q. What is the purpose of the constitutional prohibition against the purchase
of public agricultural lands by private corporations?
A. . . [0]ne purpose of the constitutional prohibition against purchases of
public agricultural lands by private corporations is to equitably diffuse
land ownership or to encourage 'owner- cultivatorship and the
economic family-size farm' and to prevent a recurrence of [huge
landholdings]. Huge landholdings by corporations or private persons
had spawned social unrest." Lausan Ayog, et al. v. Judge Cusi, G.R. No.
46729, November 19,1982.
Q. Is the prohibition which prevents private corporations from
acquiring land of the public domain retroactive?
Sees. 9-10 ART. XII - NATIONAL ECONOMY AND PATRIMONY 471
A. No. The constitutional prohibition has no retroactive
application to the corporation which "had already acquired a vested
right to the land applied for at the time the 1973 Constitution took
effect." Lausan Ayog, etal. v. Judge Cuison, G.R. No. 46729, November
19,1982.
NOTE: Under the 1935 Constitution, the limit on the area of public
land which may be acquired by private individuals was 144 hectares.
The 1973 Constitution, however, set the limit at 24 hectares. The 1987
Constitution has further reduced this to 12 hectares.
Q. How much of the lands of the public domain is open to acquisition,
exploration, development and utilization?
A. The last paragraph of Section 3 as well as Section 4 authorizes Congress to
fix the available area taking into consideration "the requirements of
conservation, ecology and development and subject to the principles of
agrarian reform." Section 4 also adds a note of urgency to the need to fix
"the specific limits of forest lands and national parks."
SEC. 4. CONGRESS SHALL, AS SOON AS POSSIBLE, DETERMINE
BY LAW THE SPECIFIC LIMITS OF FOREST LANDS AND NATIONAL PARKS,
MARKING CLEARLY THEIR
BOUNDARIES ON THE GROUND. THEREAFTER, SUCH FOREST LANDS
AND NATIONAL PARKS
SHALL BE CONSERVED AND MAY NOT BE INCREASED OR DIMINISHED,
EXCEPT BY LAW. THE
CONGRESS SHALL PROVIDE, FOR SUCH PERIODS AS IT MAY DETERMINE,
MEASURES TO PROHIBIT
LOGGING IN ENDANGERED FORESTS AND IN WATERSHED AREAS.
SEC. 5. THE STATE, SUBJECT TO THE PROVISIONS OF THIS
CONSTITUTION AND
NATIONAL DEVELOPMENT POLICIES AND PROGRAMS,
SHALL PROTECT THE RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES
TO THEIR ANCESTRAL
LANDS TO ENSURE THEIR ECONOMIC, SOCIAL AND CULTURAL WELL-
BEING.
THE CONGRESS MAY PROVIDE FOR THE APPLICABILITY OF CUSTOMARY
LAWS GOVERNING PROPERTY RIGHTS OR RELATIONS IN DETERMINING
THE OWNERSHIP AND
EXTENT OF ANCESTRAL DOMAIN.
Q. What is the difference between "ancestral domain" and "ancestral lands?"
A. Ancestral domain is an all-embracing concept which refers to lands, inland
waters, coastal areas, and natural resources therein and includes
ancestral lands, forests, pasture, residential, agricultural, and other lands
individually owned
472 THE 1987 PHILIPPINE CONSTITUTION: Sees.
9-10
A COMPREHENSIVE REVIEWER
whether alienable or not, hunting grounds, burial grounds, worship
areas, bodies of water and other natural resources. They include lands
which may no longer be exclusively occupied by indigenous cultural
communities but to which they had traditionally had access for their
subsistence and traditional activities. Ancestral land is a narrower
concept. It refers to those held under the same conditions but ancestral
domain but limited to lands that are not merely occupied and
possessed but are also utilized by cultural communities under the claim
of individual or traditional group ownership. These include but are not
limited to residential lots, rice terraces or paddies, private forests, farms
and tree lots. [Section 3 (a) and (b>, R.A. 8371.]
Q. R.A. 8371, the Indigenous Peoples Rights Act, is assailed as unconstitutional
on the ground that it deprives the State of its ownership over lands of
the public domain and the natural resources in them. Comment.
A. The vote of the Supreme Court on the subject was equally divided, 7-7.
Cruz. v. Secretary, G.R. No. 135385, December 6, 2000.
The opinion defending constitutionality held the following:
(1) Ancestral domain and ancestral lands are not part of lands of the
public domain. They are private and belong to indigenous people.
Section 5 commands the State to protect the rights of indigenous
people. Carino v. Insular Government, 212 U.S. 449 recognized native
title held by Filipinos from time immemorial and excluded from the
concept of jura regalia. (2) The right of ownership granted does not
include natural resources. The right to negotiate terms and conditions
over natural resources covers only exploration to ensure environmental
protection. It is not a grant of exploration rights. (3) The limited right of
management refers to utilization as expressly allowed in Section 2,
Article XII. (4) What is given is priority right, not exclusive right. It does
not preclude the State from entering into co-production, joint venture,
or production sharing agreements with private entities.
The opinion assailing the constitutionality of the law held the
following: (1) the law amounts to an abdication of state authority over a
significant area of the country's patrimony;
(2) it relinquishes full control of natural resources in favor of
Sees. 9-10 ART. XII - NATIONAL ECONOMY AND PATRIMONY 473
indigenous people; (3) the law contravenes the provision which says
that all natural resources belong to the state.
SEC. 6. THE USE OF PROPERTY BEARS A SOCIAL FUNCTION, AND ALL
ECONOMIC AGENTS SHALL CONTRIBUTE TO THE COMMON GOOD.
INDIVIDUALS AND PRIVATE
GROUPS, INCLUDING CORPORATIONS, COOPERATIVES, AND SIMILAR
COLLECTIVE
ORGANIZATIONS, SHALL HAVE THE RIGHT TO OWN, ESTABLISH, AND
OPERATE ECONOMIC
ENTERPRISES, SUBJECT TO THE DUTY OF THE STATE TO PROMOTE
DISTRIBUTIVE JUSTICE AND TO
INTERVENE WHEN THE COMMON GOOD SO DEMANDS.
Q. May the National Electrification Authority, a government
agency empowered by law to supervise and control electric
cooperatives and borrowers, override the decisions of a cooperatives
board?
A. In the facts of this case the Court saw no proof of direct injury to
petitioner. Hence it did not want to rule directly on the constitutionality
of the law authorizing NEA to override a board. However, the Court
observed that Article XII, Section 6 of the Constitution says that
cooperatives are subject to the duty of the State to intervene when the
common good demands. La Union Electric Cooperative v. Judge
Yaranon, G.R. No. 87001, December 4,1989.
SEC. 7. SAVE IN CASES OF HEREDITARY SUCCESSION, NO PRIVATE
LANDS SHALL BE TRANSFERRED OR CONVEYED EXCEPT TO
INDIVIDUALS, CORPORATIONS, OR
ASSOCIATIONS QUALIFIED TO ACQUIRE OR HOLD LANDS OF THE PUBLIC
DOMAIN.
SEC. 8. NOTWITHSTANDING THE PROVISIONS OF SECTION 7 OF THIS
ARTICLE, A
NATURAL-BORN CITIZEN OF THE PHILIPPINES WHO HAS LOST HIS
PHILIPPINE CITIZENSHIP MAY
BE A TRANSFEREE OF PRIVATE LANDS, SUBJECT TO LIMITATIONS
PROVIDED BY LAW.
Q. What are private lands?
A. Private land means any land of private ownership. This includes both lands
owned by private individuals and lands which are patrimonial property
of the State or of municipal corporations.
Q. Who may acquire private lands?
A. On the basis of their capacity "to acquire or hold lands of the public
domain," the following may acquire private lands: (1) Filipino citizens; (2)
Filipino corporations and associations as defined in Section 2; and, by
exception, (3) aliens, but only by
474 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-13
hereditary succession, and (4) a natural-born citizen of the Philippines
who has lost Philippine citizenship (but only under the terms of Section
8).
Filipino citizens can both "acquire" or otherwise "hold" lands of
the public domain; Filipino corporations cannot acquire lands of the
public domain but they can "hold" such lands by modes other than
acquisition, such as lease.
". . . the purpose and spirit of the 1935 Constitution 'demands that
in the absence of a capital stock, the controlling membership should be
composed of Filipino citizens.'" Bermudo v. Court of Appeals, 155 SCRA
8,17 (1987) citing Register of Deeds v. XJng Siu Si Temple, 97 Phil. 58,61.
NOTE: The time to determine whether the person acquiring land
is qualified is the time the right to own it is acquired and not the time to
register ownership. Thus,, a foreign national who, while still Filipino
citizen, acquired land from a vendor who had complied with the
requirements for registration under the Public Land Act (C.A. 141) prior
to the purchase, can validly register his title to the land. Republic v. Court
of Appeals, 235 SCRA 567 (1994).
Q. Ramirez, a Filipino national, willed usufructuary rights over real
property to an Austrian national. This was challenged on the basis of
Section 14 (now 7), but the lower court upheld the validity of the
usufruct on the ground that the exception in favor of "testamentary
succession" applies both to succession by operation of law and to
testamentary succession. Is this correct?
A. The will is valid but not for the reason given by the lower court.
Its validity rests on the fact that "a usufhict, albeit a real right, does not
vest title to the land in the usufructuary and it is the vesting of title to
the land in favor of aliens which is proscribed by the Constitution."
Ramirez v. Vda. de Ramirez, 111 SCRA 704, 712 (February 15,1982).
(NOTE: But the Court also said: "We are of the opinion that the
Constitutional provision which enables aliens to acquire private lands
does not extend to testamentary succession for otherwise the provision
will be for naught and meaningless." Id. The same decision allowed the
legitime in favor of the alien widow.)
Q. When husband and wife purport to buy land, and the husband
is alien while the wife is Filipino, is the property conjugal such that it may
not be disposed of without the consent of the husband?
A. "... assuming that it was [the husband's] intention that the lot
in question be purchased by him and his wife, he acquired no right
whatever over the property by virtue of that purchase; and in
attempting to acquire a right or interest in land, vicariously and
Sees. 9-10 ART. XII - NATIONAL ECONOMY AND PATRIMONY 475
clandestinely, he knowingly violated the Constitution; the sale as to him
was null and void. In any even, he had and has no capacity or personality
to question the subsequent sale of the same property by his wife on the
theory that in so doing he is merely exercising the prerogative of a
husband in respect of conjugal property. To sustain such a theory would
permit indirect controversion of the constitutional prohibition. If the
property were to be declared conjugal, this would accord to the alien
husband a not insubstantial interest and right over land, as he would
then have a decisive vote as to its transfer or disposition. This is a right
that the Constitution does not permit him to have.
.. even if it were a fact that said wife had used conjugal funds to
make the acquisition, the considerations just set out militate, on high
constitutional grounds, against recovering and holding the property so
acquired, or any part thereof...." Cheesman v. Intermediate Appellate
Court, 193 SCRA 93 (1991).
Q. Moss, an American citizen, acquired coconut land on 20
January 1945. Can he be registered as owner?
A. Yes. The Ordinance appended to the 1935 Constitution on 10
November 1939 said that until final withdrawal of United States
sovereignty, Americans and American corporations could enjoy the
same civil rights as Philippine citizens. Moreover, after the withdrawal of
sovereignty (4 July 1946) Moss did not lose his right which was
protected under Article XVII, 1(1) of the 1935 Constitution. Moss v.
Director of Lands, L-27170,22 December 1977 (80 SCRA 269).
Q. During the lifetime of Flavio, he partitioned and distributed his
properties among his three children, excepting one daughter who had
become an American. It was admitted, however, that Lots 871 and 943
were inheritance shares of the exempted daughter. Was the partition
valid?
A. Yes. It is basic in the law of succession that a partition inter vivos
may be done for as long as legitimes are not prejudiced. See Art. 1080 of
the Civil Code. The legitime of compulsory heirs, however, is determined
only after collation. Article 1061 says: Every compulsory heir, who
succeeds with other compulsory heirs, must bring into the mass of the
estate any property or right which he may have received from the
decedent, during the lifetime of the latter, by way of donation, or any
other gratuitous title in order that it may be computed in the
determination of the legitime of each heir, and in the account of the
partition." Unfortunately, however, collation cannot be done in this case
where the original petition for delivery of inheritance share only
impleaded one of the other compulsory heirs. The petition must
therefore be dismissed without prejudice to the institution of a new
proceeding where all the indispensable parties are present for the
476 THE 1987 PHILIPPINE CONSTITUTION: Sees.
9-10
A COMPREHENSIVE REVIEWER
rightful determination of their respective legitime and if the legitimes
were prejudiced by the partitioning inter vivos. Zaragoza v. Court of
Appeals, G.R. No. 106401, September 29,2000.
Q. Did the Parity Amendment of 1946 authorize Americans
to acquire private land?
A. No. Republic v. Quasha, 46 SCRA 160 (1972).
Q. Can a Filipino vendor recover private land invalidly sold to an
American?
A. Under Article XVII, Section 11 of the 1973 Constitution,
only the State could question the American's title. The 1973
Provision, however, does not appear in the 1987 Constitution.
In Rellosa v. Gaw Chee Hun, 93 Phil. 827 (1953), the
Court ruled that the Filipino vendor could not recover the land
because he was in pari delicto with the disqualified vendee.
Philippine Banking Corporation v. Lui She, 21 SCRA 52
(1967), however, reversed Rellosa. It should be noted, however,
that the reversal of Rellosa in Lui She is not couched in terms
that sweep in all cases of sale to aliens. The Court said: "To the
extent that our ruling in this case conflicts with that laid down
in Rellosa v. Gaw Chee Hun and subsequent similar cases, the
latter must be considered pro tanto qualified." Lui She singled
out two reasons for not applying the pari delicto rule: (1) the
original parties guilty of the violation had already died and
had been succeeded by administrators to whom it would have
been unjust to impute guilt, and (2) recovery would enhance
the declared public polity of preserving lands for Filipinos.
Hence, in the case of sales to aliens, Lui She does not exclude
the possibility of barring recovery by the Filipino vendor where
the buyer has acquired Philippine citizenship or where the
land has come to the hands of a qualified transferee in good
faith. See Annotation, 46 SCRA 186,232-3.
Q. Gregorio Reyes Uy Un, an alien, acquired private lands
in 1934. Upon his death in 1946, his properties were taken over by
Chua Kim, an adopted son, whose title to the land was confirmed
in a compromise agreement approved by judgment in 1970 which
recognized him as heir of Gregorio Reyes Uy Un. In 1977 Chua Kim
took his oath as a naturalized Filipino citizen. Is Chua Kim entitled to
acquire the property under the Constitution?
A Yes, for two reasons. (1) His predecessor, Gregorio Reyes,
acquired the property in 1934 when there was as yet no prohibition
Sees. 9-10 ART. XII - NATIONAL ECONOMY AND PATRIMONY 477
against aliens acquiring private land. (2) Even if Chua Kim acquired the
land when he was not qualified to do so, now that he is a Filipino citizen
public policy will not be served by dispossessing him. Republic v.
Intermediate Court of Appeals, G.R. No. 74170, July 18,1989.
Q. S, an American citizen, died leaving real properties in the
Philippines. His forced heirs were his widow, H, and his son, D, both of
whom are American citizens. H executed a deed of quitclaim conveying
to D all her rights, titles and interests in 6 parcels of lands she inherited
from S. Thereafter, D sold the disputed lot to C, a Filipino citizen.
Petitioners, owners of the adjoining lot, questioned the constitutionality
and validity of the 2 conveyances — between H and D, and between D
and C. Decide.
A. H's deed of quitclaim in favor of her son violated Art. XII, §7 of
the Constitution which limits the transfer or conveyance of private lands
to those who are qualified to acquire or hold lands of the public domain.
As to the effect of a subsequent sale by D to a Filipino, "[jlurispurdence is
consistent that 'if land is invalidly transferred to an alien who
subsequently becomes a citizen or transfers it to a citizen, the flaw in the
original transaction is considered cured and the title of the transferee is
rendered valid.'" Halili v. Court of Appeals, G.R. No. 113539, March
12,1998.
Q. What is the rationale of the principle that the invalid transfer of
land to an alien is cured when the alien subsequently becomes a citizen
or transfers it to a citizen?
A. The ban on aliens is intended to preserve the nation's land for
future generations of Filipinos. That aim is achieved by making lawful the
acquisition of reed estate by aliens who became Filipino citizens by
naturalization. Halili v. Court of Appeals, G.R. No. 113539, March
12,1998.
Q. On 27 June 1956 the rule was established that a Filipino seller could not,
because of pari delicto, recover the land from an alien buyer. Twelve
years later, the rule was reversed in Lui She. Can cases prior to Lui She be
relitigated?
A. Not when res judicata applies. Lee Bun Ting v. Aligaen, L-30523,4 May 1977
(not in SCRA).
Q. The alien petitioner claims that the sales of real property in question were
entered into by him as the real vendee. He claims that therefore he is
entitled to compensation for the properties.
A. The said transactions are in violation of the Constitution; hence, are null and
void ab initio. A contract that violates the Constitution and the law, is null
and void and vests no rights
478 THE 1987 PHILIPPINE CONSTITUTION: Sees.
9-10
A COMPREHENSIVE REVIEWER
and creates no obligations. It produces no legal effect at all. The
petitioner, being a party to an illegal contract, cannot come into a court
of law and ask to have his illegal objective carried out. One who loses his
money or property by knowingly engaging in a contract or transaction
which involves his own moral turpitude may not maintain an action for
his losses. Frenzel v. Catito, G.R. No. 143958, July 11, 2003; Muller v.
Muller, G.R. No. 149615, August 29, 2006.
NOTE: An alien, since he has no right to acquire private land, has
no right to challenge the validity of the lease of a piece of land which his
wife had acquired. Matthews v. Taylor Spouses, G.R. No. 164584, June
22, 2009.
NOTE: A foreigner may own a unit in a condominium because the
prohibition on aliens is only from acquiring land. The land on which the
condominium stands is owned by the condominium corporation. Hulst
v. PR Builders, GJt No. 156364, September25,2008.
Q. What is the difference between the provision of Section 15, Article XIV
(1973 as amended) and Section 8 of the 1987 Constitution relative to
natural born citizens who lost their citizenship?
A. The 1981 amendment to the 1973 Constitution limited the right of such
persons to the acquisition of private lands "for use by him as residence."
No such limitation appears in the 1987 Constitution. However, Congress
may add such limitation as well as limitation on size. Moreover, the size
limitation imposed by statute under the 1973 Constitution still holds.
Q. What is the current law on the subject?
A. Section 5 of R.A. 8179, amending Section 10 of the Foreign Investments
Act, says:
uOther Rights of Natural Born Citizen Pursuant to the Provisions of
Article XH, Section 8 of the Constitution. — Any [former] natural born
citizen who has the legal capacity to enter into a contract under
Philippine laws may be a transferee of a private land up to a maximum
area of five thousand (5,000) square meters in the case of urban land or
three (3) hectares in the case of rural land to be used by him for
business or other purposes. In the case of married couples, one of them
may avail
Sees. 9-10 ART. XII - NATIONAL ECONOMY AND PATRIMONY 479
of the privilege herein granted: Provided, That if both shall avail of the
same, the total area acquired shall not exceed the maximum herein
fixed.
"In case the transferee already owns urban or rural land for
business or other purposes, he shall still be entitled to be a transferee of
additional urban or rural land for business or other purposes which
when added to those already owned by him shall not exceed the
maximum areas herein authorized.
MA transferee under this Act may acquire not more than two (2)
lots which should be situated in different municipalities or cities
anywhere in the Philippines: Provided, That the total land area thereof
shall not exceed five thousand (5,000) square meters in the case of rural
land for use by him for business or other purposes. A transferee who
has already acquired urban land shall be disqualified from acquiring
rural land area and vice versa."
SEC. 9. THE CONGRESS MAY ESTABLISH AN INDEPENDENT ECONOMIC
AND PLANNING AGENCY HEADED BY THE PRESIDENT, WHICH SHALL,
AFTER CONSULTATIONS
WITH THE APPROPRIATE PUBLIC AGENCIES, VARIOUS PRIVATE
SECTORS, AND LOCAL
GOVERNMENT UNITS, RECOMMEND TO
CONGRESS, AND IMPLEMENT CONTINUING INTEGRATED AND
COORDINATED
PROGRAMS AND POLICIES FOR NATIONAL DEVELOPMENT.
UNTIL CONGRESS PROVIDES OTHERWISE, THE NATIONAL ECONOMIC
AND
DEVELOPMENT AUTHORITY SHALL FUNCTION AS THE INDEPENDENT
PLANNING AGENCY OF
THE GOVERNMENT.
SEC. 10. THE CONGRESS SHALL, UPON RECOMMENDATION OF THE
ECONOMIC AND
PLANNING AGENCY, WHEN THE NATIONAL INTEREST DICTATES,
RESERVE TO CITIZENS OF THE
PHILIPPINES OR TO CORPORATIONS
OR ASSOCIATIONS AT LEAST SIXTY PER CENTUM OF WHOSE CAPITAL IS
OWNED BY SUCH
CITIZENS, OR SUCH HIGHER PERCENTAGE AS CONGRESS MAY
PRESCRIBE, CERTAIN AREAS OF
INVESTMENTS. THE CONGRESS SHALL ENACT MEASURES THAT WILL
ENCOURAGE THE
FORMATION AND OPERATION OF ENTERPRISES WHOSE CAPITAL IS
WHOLLY OWNED BY
FILIPINOS.
IN THE GRANT OF RIGHTS, PRIVILEGES, AND CONCESSIONS COVERING
THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS.
THE STATE SHALL REGULATE AND EXERCISE AUTHORITY OVER
FOREIGN INVESTMENTS
WITHIN ITS NATIONAL JURISDICTION AND IN ACCORDANCE WITH ITS
NATIONAL GOALS AND
PRIORITIES.
480 THE 1987 PHILIPPINE CONSTITUTION: Sees. 9-10
A COMPREHENSIVE REVIEWER
Q. Is the provision allowing the nationalization of certain businesses a new
doctrine?
A. No. And neither is it necessary. The case of Ickong v. Hernandez, 101 Phil.
1155 (1957), already definitively established that Filipinization of
business may be done without violating the equal protection clause.
Q. In the bidding for the purchase of the GSIS shares in Manila Hotel, a
Malaysian corporation gave a higher bid. The sale, however, was given
to a Filipino corporation. How explain this?
A. Section 19 gives preference to qualified Filipinos.
Q. In the dispute whether the shares of GSIS in Manila Hotel should be
awarded to a Malaysian bidder corporation or to a Filipino corporation,
the Malaysian bidder contended that since the first and third
paragraphs of Section 10, Article XII, are not self-executory, the second
paragraph, by implication, is also not self-executory. Decide.
A. aA constitutional provision may be self-executing in one part and
non-self-executing in another." Manila Prince Hotel v. Government
Service Insurance System, G.R. No. 122156, February 3,1997,267 SCRA
408,434 (citing State ex rel. Miller v. 0?Motley, 342 Mo 641,117 SW2d
319). The second paragraph Is a mandatory, positive command which is
complete in itself and which needs no further guidelines or
implementing laws or rules for its enforcement. From its very words the
provision does not require any legislation to put it in operation. It is per
se judicially enforceable." Id. at 436.
Q. In the light of the Manila Prince case, how explain the fact that the
Supreme Court upheld the constitutionality of the GATT treaty which
places aliens on the same footing as Filipinos?
A. The Court distinguished the two cases by saying that the provision was
mandatory and enforceable "only in regard to the grant of rights,
privileges and concessions covering national economy and patrimony*
and not to every aspect of trade and commerce." The suggestion is that
there are some aspects of trade and commerce which do not form part
of the national economy! For what reason we are not told. Then the
Court continued: "The issue here is not whether this paragraph of
Section 10 of Article XII is self-executing or not." That, after
Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS 481
all, had been settled in Manila Prince. But the Court continued: "Rather,
the issue is whether, as a rule, there are enough balancing provisions in
the Constitution to allow the Senate to ratify the Philippine concurrence
in the WTO Agreement. And we hold that there are." In other words,
the Senate may play around with a mandatory provision through a
balancing of values. Tafiada v. Angara, G.R. No. 118295, May 2, 1997.
My suspicion is that this is the Court's polite way of distancing itself from
the divided decision in Manila Prince.
Q. The constitutionality of R.A. 7042, the Foreign Investment Law, on the
ground that provisions in it which liberalize the rules for the entry of
foreign investors is detrimental to the interest of Filipinos. The Solicitor
General, however, and intervenor Senator Vicente Paterno argue
otherwise. Is there a constitutional issue?
A. The debate here is on the wisdom and on the efficacy of the law. The case
as presented as yet poses no constitutional issue. Garcia v. Executive
Secretary, G.R. No. 10083, December 2, 1991.
Q. Distinguish Filipinization of an aspect of the economy from nationalization.
A. There is Filipinization when ownership is limited to Filipino citizens or Filipino
corporations; there is nationalization when ownership is reserved to the
State.
SEC. 11. No FRANCHISE, CERTIFICATE, OR ANY OTHER FORM OF
AUTHORIZATION FOR THE OPERATION OF A PUBLIC UTILITY SHALL BE
GRANTED EXCEPT TO
CITIZENS OF THE PHILIPPINES OR TO CORPORATIONS OR ASSOCIATIONS
ORGANIZED UNDER THE
LAWS OF THE PHILIPPINES AT LEAST SIXTY PER CENTUM OF WHOSE
CAPITAL IS OWNED BY SUCH
CITIZENS, NOR SHALL SUCH FRANCHISE, CERTIFICATE OR
AUTHORIZATION BE EXCLUSIVE IN
CHARACTER OR FOR A LONGER PERIOD THAN FIFTY YEARS. NEITHER
SHALL ANY SUCH
FRANCHISE OR RIGHT BE GRANTED EXCEPT UNDER THE CONDITION
THAT IT SHALL BE SUBJECT
TO AMENDMENT, ALTERATION, OR REPEAL BY THE CONGRESS WHEN
THE COMMON GOOD SO
REQUIRES. THE STATE SHALL ENCOURAGE EQUITY PARTICIPATION IN
PUBLIC unLrnES BY
THE GENERAL PUBLIC. THE PARTICIPATION OF FOREIGN INVESTORS IN
THE GOVERNING BODY
OF ANY PUBLIC UTILITY ENTERPRISE SHALL BE LIMITED TO THEIR
PROPORTIONATE SHARE IN ITS
CAPITAL, AND ALL EXECUTIVE AND MANAGING OFFICERS OF SUCH
CORPORATION OR
ASSOCIATION MUST BE CITIZENS OF THE PHILIPPINES.
482 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
Q. What are the highlights of Section 11?
A. The first sentence prescribes that public utility franchises be granted only to
citizens of the Philippines or to corporations at least sixty per centum of
the capital of which is owned by citizens.
The second sentence allows the legislature to impair the
obligation of franchises as contracts.
The third sentence enjoins the State to encourage equity participation
by the general public.
The last sentence, first introduced in 1973, which authorizes
foreign investors to participate in the governing boards of public utilities
proportionately to their share in the capital, is a reversal of the
Filipinization trend which had found support in King v. Hernaez, 4 SCRA
792 (1962) and Luzon Stevedoring Co. v, Anti-Dummy Board, 46 SCRA
474 (1972). The 1987 Constitution, however, has added that "executive
and managing officers... must be citizens of the Philippines."
Q. What is a public utility?
A. A public utility is a utility corporation which renders service to the general
public for compensation. Its essential feature is that its service is not
confined to privileged individuals but is open to an indefinite public. The
public or private character of a utility does not depend on the number
of persons who avail of its services but on whether or not it is open to
serve all members of the public who may require it. Iloilo Ice and Cold
Storage Co. v. Public Utility Board, 44 Phil 551 (1923).
Q. Is PETRON a public utility?
A. A public utility under the Constitution and the Public Service Law is one
organized "for hire or compensation" to serve the public. Under this
definition, PETRON, the refining company of the government, was not
considered a public utility coming under Section 11 because it does not
engage in oil refining for hire or compensation. Bagatsing v. Committee
on Privatization and Philippine National Oil Company, G.R. No. 112399,
July 14,1995.
Q. Is a shipyard a public utility?
A. No. Although there was a time when shipyards were considered
public utility by legislation (Public Service Law), such le
Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS gislation no longer
exists. Besides the nature of a shipyard is that it has a
limited clientele. J.G. Summit Holdings v. Court of Appeals, G.R. No.
124293, November 20, 2000.
Q. How does C.A. 146, Section 13(b) define a public utility?
A. "(b) The term 'public service' includes every person that now or hereafter
may own, operate, manage, or control in the Philippines, for hire or
compensation, with general or limited clientele, whether permanent,
occasional or accidental, and done for general business purposes, any
common carrier, railroad, street railway, traction railway, sub-way
motor vehicle, either for freight or passenger, or both with or without
fixed route and whether may be its classification, freight or carrier
service of any class, express service, steamboat or steamship line,
ferries, and water craft, engaged in the transportation of passengers or
freight or both, shipyard, marine railways, marine repair shop,
[warehouse] wharf or dock, ice plant, ice-refrigeration plant, canal,
irrigation system, gas, electric light, heat and power water supply and
power, petroleum, sewerage system, wire or wireless communications
system, wire or wireless broadcasting stations and other similar public
services: Provided, however, That a person engaged in agriculture, not
otherwise a public service, who owns a motor vehicle and uses it
personally and/ or enters into a special contract whereby said motor
vehicle is offered for hire or compensation to a third party or third
parties engaged in agriculture, not itself or themselves a public service,
for operation by the latter for a limited time and for a specific purpose
directly connected with the cultivation of his or their farm, the
transportation, processing, and marketing of agricultural products of
such third party or third parties shall not be considered as operating a
public service for the purposes of this Act."
Q. May a foreigner own assets of a public utility corporation?
A. The prohibition in the Constitution is against foreigners and foreign
corporations being given a franchise to operate a public utility. But they
may own the facilities. Thus Tatad v. Garcia, Jr., G.R. No. 114222, April
6,1995, held that a foreign corporation could construct and own the
facilities for a light rail transit system but it may not be given the
franchise to operate the system.
484 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 12
Q. The Philippine Port Authority awarded the contract to operate the
container service to International Container Terminal Services, a private
entity. It is contended that since this involves the operation of a public
utility a special franchise from Congress is needed. Decide.
A. Under applicable laws, a special franchise is not needed. P.D. 857
specifically authorizes the Philippine Port authority to provide services
within the Port Districts "whether on its own, by contract, or
otherwise." PPA contracted ICTS to operate the Manila International
Container Terminal. This is enough to satisfy the law. Even if MICT is a
public utility, or a public service on the theory that it is a "wharf* or
"dock" as contemplated under the Public Service Act, its operation does
not necessarily call for a franchise from Congress. That the Constitution
provides that the issuance of a franchise, certificate or other form of
authorization for the operation of a public utility shall be subject to
amendment, alteration or repeal by Congress does not necessarily imply
that only Congress has the authority to grant such authorization. Our
statute books are replete with laws granting specified agencies power
to issue such authorization. Albano v. Reyes, G.R. No. 83551, July
11,1989.
Likewise, the power to issue franchises for radio and television
systems is legislative in nature but is delegable. We believe that E.O. No.
546 is one law which authorizes an administrative agency, the NTC, to
issue authorizations for the operation of radio and television
broadcasting systems without need of a prior franchise issued by
Congress. Associated Communications v. NTC, G.R. No. 144109,
February 17,2003.
Q. Can a public utility franchise be exclusive?
A. No. Neither Congress nor the NTC can grant an exclusive "franchise,
certificate, or any other form of authorization" to operate a public
utility. In Republic v. Express Telecommunications Co., the Court held
that "the Constitution is quite emphatic that the operation of a public
utility shall not be exclusive." So Section 11, Article XII of the
Constitution provides. Eastern Telecom v. Telecom Technologies, G.R.
No. 135992, July 23, 2004.
SEC. 12. THE STATE SHALL PROMOTE THE PREFERENTIAL USE OF
FILIPINO LABOR, DOMESTIC MATERIALS AND LOCALLY PRODUCED
GOODS,
AND ADOPT MEASURES THAT HELP MAKE THEM COMPETITIVE.
Sees. 13-16 ART. XII - NATIONAL ECONOMY AND PATRIMONY 485
SEC. 13. THE STATE SHALL PURSUE A TRADE POLICY THAT SERVES
THE GENERAL WELFARE AND UTILIZES ALL FORMS AND
ARRANGEMENTS
OF EXCHANGE ON THE BASIS OF EQUALITY AND RECIPROCITY.
SEC. 14. THE SUSTAINED DEVELOPMENT OF A RESERVOIR OF
NATIONAL TALENTS CONSISTING OF FlLIPINO SCIENTISTS,
ENTREPRENEURS,
PROFESSIONALS, MANAGERS, HIGH-LEVEL TECHNICAL MANPOWER AND
SKILLED WORKERS AND CRAFTSMEN IN ALL FIELDS SHALL BE
PROMOTED
BY THE STATE. THE STATE SHALL ENCOURAGE APPROPRIATE
TECHNOLOGY
AND REGULATE ITS TRANSFER FOR THE NATIONAL BENEFIT.
THE PRACTICE OF ALL PROFESSIONS IN THE PHILIPPINES SHALL BE
LIMITED TO FILIPINO
CITIZENS SAVE IN CASES PRESCRIBED BY LAW.
SEC. 15. THE CONGRESS SHALL CREATE AN AGENCY TO PROMOTE
THE VIABILITY AND GROWTH OF COOPERATIVES AS INSTRUMENTS FOR
SOCIAL JUSTICE AND
ECONOMIC DEVELOPMENT.
SEC. 16. THE CONGRESS SHALL NOT, EXCEPT BY GENERAL LAW,
PROVIDE FOR THE FORMATION, ORGANIZATION, OR REGULATION OF
PRIVATE CORPORATIONS.
GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS MAY BE
CREATED OR ESTABLISHED BY
SPECIAL CHARTERS IN THE INTEREST OF THE COMMON GOOD AND
SUBJECT TO THE TEST OF
ECONOMIC VIABILITY.
Q. What is the purpose of the first sentence of Section 16?
A. Its purpose is to insulate the legislature against pressures from special
interests. To permit the lawmaking body by special law to provide for
the organization or formation or regulation of private corporations, it
was believed in the committee, would be in effect to offer to it the
temptation in many cases to favor certain groups to the prejudice of
others or to the prejudice of the interests of the country." 2 J. ARUEGO,
THE FRAMING OF THE PHILIPPINE CONSTITUTION 678 (1937).
Q. P.D. 1717 was passed to rehabilitate the Agrix Group of
Companies which was a corporation neither owned nor controlled by
the government. As part of the rehabilitation process, the Agrix Group
was dissolved by the decree and the decree created New Agrix, Inc.,
likewise neither owned nor controlled by the government. Comment.
A. It violates Article XIV, Section 4, of the 1973 Constitution now
modified as Article XII, Section 16. National Development Co. and New
Agrix v. Philippine Veterans Bank, G.R. No. 84132-33, December
10,1990.
486 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 12
SEC. 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.
NOTE: Public interest on the occasion of a national emergency is
the primary consideration when the government decides to temporarily
take over or direct the operation of a public utility or a business affected
with public interest. The nature and extent of the emergency is the
measure of the duration of the takeover as well as the terms thereof. It
is the State that prescribes such reasonable terms which will guide the
implementation of the temporary takeover as dictated by the
exigencies of the time. This power of the State cannot be negated by
any party nor should its exercise obligate the State to compensate for
the value of the property. Agan, Jr., et al. v. PIATCO, G.R. No. 155001,
January 21, 2004. (NOTE: Now, however, that the state has decided to
takeover the operation of the airport facility permanently, just
compensation is due.)
NOTE: The power to take over the operation of public utilities is
activated only if Congress grants emergency powers under Article VI,
Section 23. Section 17 must be read with Article VI, Section 23. Section
17 gives the power to the State not to the President. The President
acquires emergency powers when given to her by Congress in a state of
emergency declared by Congress. David v. Ermita, G.R. No. 171409, May
3,2006.
SEC. 18. THE STATE MAY, IN THE INTEREST OF NATIONAL WELFARE
OR DEFENSE, ESTABLISH AND OPERATE VITAL INDUSTRIES AND, UPON
PAYMENT OF JUST
COMPENSATION, TRANSFER TO PUBLIC OWNERSHIP UTILITIES AND
OTHER PRIVATE ENTERPRISES
TO BE OPERATED BY THE GOVERNMENT.
Q. Distinguish Section 11 from Section 18.
A. Section 11 deals with Filipinization, meaning Filipino ownership, whereas
Section 18 deals with nationalization or state ownership.
Q. Under Section 18 may the state compel a public utility to render service in
the public interest?
A. Yes, provided just compensation is paid therefor. Republic v. PLDT, 26 SCRA
620, 628 (1969).
Sees. 13-16 ART. XII - NATIONAL ECONOMY AND PATRIMONY 487
Q. Distinguish Section 17 from Section 18.
A. While Section 18 deals with state ownership of public utilities and
industries, Section 17 deals merely with the temporary state take-over
of "the operation of any privately owned public utility or business
affected with public interest." Hence, no compensation is involved in
Section 17.
Q. What is a "business affected with public interest?"
A. Generally speaking, the phrase "'affected with public interest' can, in the
nature of things, mean no more than that an industry, for adequate
reason, is subject to control for the public good." Nebbia v. New York,
291 U.S. 502,536 (1934). Or again, "Thus understood, 'affected with a
public interest' is the equivalent of 'subject to the exercise of the police
power.'" However, for purposes of Section 17, the phrase "business
affected with public interest" refers to businesses which involve
characteristics of public utilities, such as mass-based consumers, even if
they are not in fact operated as public utilities.
NOTE: Section 18 is a textual acceptance of the equation of
the concept of "public use" with the broader concept of "public
welfare" or "national welfare." (See, e.g., the jurisprudence on
expropriation of land for re-sale under Section 4, Article XIII.) Thus,
Section 18 has also been used to justify compulsory interconnection
of a private telephone company with a government
telephone system. More recently, in PLDT v. Eastern
Telecommunications Philippines, Inc., G.R. No. 94374, August
27,1992. Eastern was not allowed to interconnect with PLDT, but
this was on the ground that Eastern had no franchise to operate a
telephone system. On reconsideration, however, in PLDT v.
National Telecommunication Commission, 241 SCRA 486 (1995),
Eastern was reversed.
SEC. 19. THE STATE SHALL REGULATE OR PROHIBIT MONOPOLIES
WHEN THE PUBLIC INTEREST SO REQUIRES. No COMBINATIONS IN
RESTRAINT
OF TRADE OR UNFAIR COMPETITION SHALL BE ALLOWED.
Q. What is the spirit behind Article XII, Section 19?
A. Article XII, Section 19, is anti-trust in history and spirit. It espouses
competition. Only competition which is fair can release the creative
forces of the market. Competition underlies the provision. The objective
of anti-trust law is "to assure a competitive economy based upon the
belief that through competi
488 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
tion producers will strive to satisfy consumer wants at the lowest price
with the sacrifice of the fewest resources. Competition among
producers allows consumers to bid for goods and services and, thus
matches their desires with society's opportunity costs." Additionally,
there is a reliance upon "title operation of the 'market' system (free
enterprise) to decide what shall be produced, how resources shall be
allocated in the production process, and to whom various products will
be distributed. The market system relies on the consumer to decide
what and how much shall be produced, and on competition, among
producers who will manufacture it." Energy Regulatory Board v. Court of
Appeals, G.R. No, 113079, April 20,2001.
Q. What is monopoly?
A. "The simplest form of monopoly exists when there is only one seller or
producer of a product or service for which there are no substitutes. In its
more complex form, monopoly is defined as the joint acquisition or
maintenance by members of a conspiracy, formed for that purpose, of
the power to control and dominate trade and commerce in a
commodity to such an extent that they are able, as a group, to exclude
actual or potential competitors from the field, accompanied with the
intention and purpose to exercise such power."
Q. It is contended that the implementation of the Oil Deregulation Act, R.A.
8479 only a few months after the effectivity of the law will result I the
continued stranglehold of the oil industry by the Big Three — Shell,
Caltex, Petron. From this it is contended that the implementation will
lead to a violation of Section 19. Decide.
A. RA. 8479 was enacted precisely to enhance competition. Towards this end,
deregulation of the industry has been chosen as the tool. Whether or
not the choice of deregulation as the favored tool is wise is not for the
Court to decide. On the other hand, petitioner has not shown that
deregulation will result in monopoly. Garcia v. Executive Secretary, G.R.
No. 132451, December 17,1999.
Q. Is not R.A. 8479 in the same category as the first Oil Deregulation Act which
was declared unconstitutional?
A. No. R.A. 8180 was struck down as invalid because three key provisions
intended to promote free competition were shown to
Sees. 13-16 ART. XII - NATIONAL ECONOMY AND PATRIMONY 489
achieve the opposite result. More specifically, this Court ruled that its
provisions on tariff differential, stocking of inventories, and predatory
pricing inhibit fair competition, encourage monopolistic power, and
interfere with the free interaction of the market forces. Tatad v.
Secretary of the Department of Energy. R.A. 8479 deliberately avoids the
objectionable provisions of R.A. 8180. Garcia v. Executive Secretary, G.R.
No. 132451, December 17,1999.
NOTE: The operation of monopolies is not totally banned by the
Constitution. However, the State shall regulate them when public
interest so requires. In one case, the two consortia of insurance
companies that have been authorized to issue passenger insurance
policies are adequately regulated by the Land Transportation
Franchising and Regulatory Board (LTFRB) to protect the riding public.
While individual insurance companies may somehow be adversely
affected by this scheme, the paramount public interest involved must
be upheld. In any event, all legitimate insurance companies are allowed
to become members of the consortia. Thus, there is no restraint of trade
or unfair competition involved. Eastern Assurance v. LTFRB, G.R. No.
149717, October 7,2003.
Contracts requiring exclusivity are not per se void. Each contract
must be viewed vis-a-vis all the circumstances surrounding such
agreement in deciding whether a restrictive practice should be
prohibited as imposing an unreasonable restraint on competition. Avon
v. Luna, G.R. No. 153674, December 20, 2006.
SEC. 20. THE CONGRESS SHALL ESTABLISH AN INDEPENDENT
CENTRAL MONETARY AUTHORITY, THE MEMBERS OF WHOSE
GOVERNING BOARD MUST BE
NATURAL-BORN FLLIPINO CITIZENS, OF KNOWN PROBITY, INTEGRITY,
AND PATRIOTISM, THE
MAJORITY OF WHOM SHALL COME FROM THE PRIVATE SECTOR. THEY
SHALL BE SUBJECT TO SUCH
OTHER QUALIFICATIONS AND DISABILITIES AS MAY BE PRESCRIBED BY
LAW.
THE AUTHORITY SHALL PROVIDE POLICY DIRECTION IN THE AREAS OF
MONEY, BANKING, AND CREDIT. IT SHALL HAVE SUPERVISION OVER THE
OPERATIONS OF BANKS
AND EXERCISE SUCH REGULATORY POWERS AS MAY BE PROVIDED BY
LAW OVER THE OPERATIONS
OF FINANCE COMPANIES AND OTHER INSTITUTIONS PERFORMING
SIMILAR FUNCTIONS.
UNTIL THE CONGRESS OTHERWISE PROVIDES, THE CENTRAL BANK OF
THE PHILIPPINES,
OPERATING UNDER EXISTING LAWS, SHALL FUNCTION
AS THE CENTRAL MONETARY AUTHORITY.
490 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
SEC. 21. FOREIGN LOANS MAY ONLY BE INCURRED IN ACCORDANCE
WITH LAW AND THE REGULATION OF THE MONETARY AUTHORITY.
INFORMATION ON FOREIGN LOANS OBTAINED OR GUARANTEED BY THE
GOVERNMENT SHALL BE
AVAILABLE TO THE PUBLIC.
Q. What are the restrictions with respect to the contracting of foreign loans?
A. (1) They must be in accordance with law; (2) they must be in accordance
with regulations of the Monetary Board and with the prior concurrence
of the Monetary Board (Article VII, Section 20). These restrictions were
enacted under the influence of the centrality of foreign loan problems
during the drafting of the 1987 Constitution.
SEC. 22. ACTS WHICH CIRCUMVENT OR NEGATE ANY OF THE
PROVISIONS OF THIS ARTICLE SHALL BE CONSIDERED INIMICAL TO THE
NATIONAL INTEREST AND
SUBJECT TO CRIMINAL AND CIVIL SANCTIONS, AS MAY BE PROVIDED BY
LAW.
ARTICLE XIII
SOCIAL JUSTICE AND HUMAN RIGHTS
SECTION 1. THE CONGRESS SHALL GIVE HIGHEST PRIORITY TO THE
ENACTMENT OF MEASURES THAT PROTECT AND ENHANCE THE RIGHT
OF ALL THE PEOPLE TO
HUMAN DIGNITY, REDUCE SOCIAL, ECONOMIC AND POLITICAL
INEQUALITIES, AND REMOVE
CULTURAL INEQUITIES BY EQUITABLY DIFFUSING WEALTH AND
POLITICAL POWER FOR THE
COMMON GOOD.
TO THIS END, THE STATE SHALL REGULATE THE ACQUISITION,
OWNERSHIP, USE, AND DISPOSITION
OF PROPERTY AND ITS INCREMENTS.
SEC. 2. THE PROMOTION OF SOCIAL JUSTICE SHALL INCLUDE THE
COMMITMENT TO CREATE ECONOMIC OPPORTUNITIES BASED ON
FREEDOM OF INITIATIVE AND
SELF-RELIANCE.
Q. What are the two principal activities which the State is commanded to
attend to in order to achieve the goals of social justice?
A. They are (1) the creation of more economic opportunities and more wealth
and (2) closer regulation of the acquisition, ownership, use, and
disposition of property in order to achieve a more equitable distribution
of wealth and political power.
Q. Of what urgency is the matter of promoting the goals of social justice?
A. It is of the highest priority because the very survival of the Republic could
depend on the attainment of these goals. The most serious problems
plaguing the nation can be traced to a long-standing history of injustice
to the underprivileged.
491
492 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 12
Q. Give some examples of social justice in action under earlier constitutions.
A- The boldest examples have been the effort of the government to alter the
contractual relations between landlord and farm tenant and the
increased effort to redistribute private lands through expropriation and
resale.
Q. Is the command to promote social justice justification for
breaking the law?
A. The import of "social justice" that has developed in various
decisions is that when the law is clear and valid, it simply must be
applied; but when the law can be interpreted in more ways than one,
an interpretation that favors the underprivileged must be favored.
Q. Have the provisions on social justice legalized "squatting?"
A. The State's solicitude for the destitute and the have-nots does
not mean it should tolerate usurpations of property, public or private.
Astudillo v. Board of Directors, PHHC, L-28066, September 22,1976.
LABOR
SEC. 3. THE STATE SHALL AFFORD FULL PROTECTION TO LABOR,
LOCAL AND OVERSEAS, ORGANIZED AND UNORGANIZED, AND PROMOTE
FULL EMPLOYMENT AND
EQUALITY OF EMPLOYMENT OPPORTUNITIES FOR ALL.
IT SHALL GUARANTEE THE RIGHTS OF ALL WORKERS TO SELF-
ORGANIZATION, COLLECTIVE
BARGAINING AND NEGOTIATIONS, AND PEACEFUL
CONCERTED ACTIVITIES, INCLUDING THE RIGHT TO STRIKE IN
ACCORDANCE
WITH LAW. THEY SHALL BE ENTITLED TO SECURITY OF TENURE, HUMANE
CONDITIONS OF WORK, AND A LIVING WAGE. THEY SHALL ALSO
PARTICIPATE IN POLICY AND
DECISION-MAKING PROCESSES AFFECTING THEIR RIGHTS AND BENEFITS
AS MAY BE PROVIDED BY
LAW.
THE STATE SHALL PROMOTE THE PRINCIPLE OF SHARED
RESPONSIBILITY BETWEEN
WORKERS AND EMPLOYERS AND THE PREFERENTIAL USE OF
VOLUNTARY MODES IN SETTLING
DISPUTES, INCLUDING CONCILIATION, AND SHALL ENFORCE THEIR
MUTUAL COMPLIANCE
THEREWITH TO FOSTER INDUSTRIAL PEACE.
THE STATE SHALL REGULATE THE RELATIONS BETWEEN WORKERS AND
EMPLOYERS, RECOGNIZING THE RIGHT OF LABOR TO ITS JUST SHARE IN
THE FRUITS OF
PRODUCTION AND THE RIGHT OF ENTERPRISES TO REASONABLE
RETURNS ON INVESTMENTS, AND
TO EXPANSION AND GROWTH.
Sec. 3 ART. XIII - SOCIAL JUSTICE AND HUMAN RIGHTS
Labor
493
Q. May a law be passed prohibiting selected sectors of labor from organizing
unions?
A. No. The right to organize is given to all kinds of workers both in the private
and in the public sector.
Q. May a law be passed prohibiting selected sectors of labor from resorting to
strikes?
A. Yes. The second paragraph of Section 3 specifically singles out the right to
strike as subject to limitation by law.
Q. Do employees of the Social Security System have the right to
strike?
A. While the Constitution (Article XIII, Section 3; Article IX, B,
Section 2(1); Article III, Section 8) recognizes the right of government
employees to organize, it is silent as to whether such recognition also
includes the right to strike. Resort to the intent of the framers points to
the understanding that the right to organize does not include the right
to strike. Social Security System v. the Court of Appeals, G.R. No. 85279,
July 28, 1989. (NOTE: The Constitution, however, does not say that
government employees may not be given the statutory right to strike.
On this point, the SSS case is vague. In a later case, Republic v. Court of
Appeals, G.R. No. 87676, December 20,
1989, the Court already suggests that government employees may be
given the right to strike when it says "there is as yet no law permitting
them to strike.")
NOTE: There have been cases where, on social justice grounds,
the Supreme Court has awarded separation pay even when dismissal is
for cause. E.g., De Vera v. NLRC, G.R. No. 93212, November 22,
1990.
But: "We hold that henceforth separation pay shall be allowed as
a measure of social justice only in those instances where the employee
is validly dismissed for causes other than serious misconduct or those
reflecting on his moral character. Where the reason for the valid
dismissal is, for example, habitual intoxication or an offense involving
moral turpitude, like theft or illicit sexual relations with a fellow worker,
the employer may not be required to give the dismissed employee
separation pay, or financial assistance, or whatever other name it is
called, on ground of social justice." PLDT u. NLRC, 164 SCRA 671, 682
(1988).
Q. Do workers have a right to participate in the decision making process of
employers?
A. Yes, on matters affecting their rights and benefits, "as may be provided by
law." This participation can be through (1) collec
494 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
tive bargaining agreements, (2) grievance machineries, (3) voluntary modes of
settling disputes, (4) conciliation proceedings mediated by government.
Q. Is compulsory arbitration ruled out by the Constitution? A. No, but it
is down-played.
Q. What factors must be weighed in regulating the relations between workers
and employers?
A. Among the factors that must be considered are "the right of labor to its just
share in the fruits of production and the right of enterprises to
reasonable returns on investments, and to expansion and growth." It
must be remembered, however, that the command to promote social
justice itself might make it necessary to tilt the balance in favor of
underprivileged workers.
Q. Is a retirement plan imposing automatic retirement after 35 years of
service but before the statutory retirement age of 65 valid?
A. Yes, if voluntarily entered into by the employee. Jaculbe v. Silliman U, G.R.
No. 156934, March 16, 2007.
AGRARIAN AND NATURAL RESOURCES REFORM
SEC. 4. THE STATE SHALL, BY LAW, UNDERTAKE AN AGRARIAN
REFORM PROGRAM FOUNDED ON THE RIGHT OF FARMERS AND
REGULAR FARMWORKERS, WHO
ARE LANDLESS, TO OWN DIRECTLY OR COLLECTIVELY THE LANDS THEY
TILL OR, IN THE CASE OF
OTHER FARMWORKERS, TO RECEIVE A JUST SHARE OF THE FRUITS
THEREOF. To THIS END, THE
STATE SHALL ENCOURAGE AND UNDERTAKE THE JUST DISTRIBUTION OF
ALL AGRICULTURAL
LANDS, SUBJECT TO SUCH PRIORITIES AND REASONABLE RETENTION
LIMITS AS THE CONGRESS MAY
PRESCRIBE, TAKING INTO ACCOUNT ECOLOGICAL, DEVELOPMENTAL, OR
EQUITY CONSIDERATIONS,
AND SUBJECT TO THE PAYMENT OF JUST COMPENSATION. IN
DETERMINING RETENTION LIMITS
THE STATE SHALL RESPECT THE RIGHT OF SMALL LANDOWNERS. THE
STATE SHALL FURTHER
PROVIDE INCENTIVES FOR VOLUNTARY LAND-SHARING.
Q. What must be the goals of agrarian reform?
A. Agrarian reform must aim at (1) efficient production, (2) a more equitable
distribution of land which recognizes the right
Sec. 4 ART. X3II - SOCIAL JUSTICE AND HUMAN RIGHTS 495
Agrarian and Natural Resources Reform
of farmers and regular farm workers who are landless to own the land
they till, and (3) a just share of other or seasonal farm workers in the
fruits of the land.
Q. What kind of agricultural lands come under the scope of agrarian reform?
A. All kinds of agricultural land. P.D. 27, the agrarian reform law promulgated
by President Marcos, covered only rice and corn land. The 1987
Constitution commands that agrarian reform include "all agricultural
lands, subject to such priorities and reasonable retention limits as the
Congress may prescribe, taking into account ecological, developmental
or equity considerations." Obviously, therefore, the constitutional
provision needs implementing legislation. Lands not devoted to
agriculture are not covered by CARL. The deliberations of the
Constitutional Commission confirm this limitation. "Agricultural lands"
are only those lands which are "arable and suitable agricultural lands"
and "do not include commercial, industrial and residential lands."
Q. What lands are exempt from land reform?
A. Non-agricultural lands and lands previously converted to non- agricultural
uses prior to the effectivity of CARL by government agencies other than
respondent DAR.
"Agricultural lands" are only those lands which are "arable and
suitable agricultural lands" and "do not include commercial, industrial
and residential lands." Remman Enterprises v. CA., G.R. No. 132073,
September 26,2006.
Q. Is agricultural land held in trust by the Archbishop subject to agrarian
reform?
A. Yes. The laws on agrarian reform simply speak of the "landowner" without
qualification as to under what title the land is held or what rights to the
land the landowner may exercise. There is no distinction made whether
the landowner holds "naked title" only or can exercise all the rights of
ownership. Thus the contention that church property is exempt simply
because the Archbishop holds only naked title is not tenable. Such
contention would seek to create an exemption not stated in PD 27 and
RA 6657, and would frustrate the revolutionary intent of the law, which
is the redistribution of
496 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 12
agricultural land for the benefit of landless farmers and farm workers.
Archbishop v. Secretary, G.R. No. 139285, December 21,2007.
Q. Does the issuance of a certificate of land transfer to a land reform
beneficiary prior to payment violate the properly right of the original
owner?
A. No, since "the mere issuance of the certificate of land transfer does not vest
in the farmer/grantee ownership of the land described therein. At
most, the certificate merely evidences the government's recognition of
the grantee as the party qualified to avail of the mechanism for the
acquisition of ownership of the land . . . Neither is this recognition
permanent nor irrevocable." Failure on the part of the farmer to comply
with his obligations can result in the forfeiture f his certificate of land
transfer. Vinzons-Magana v. Estrella, G.R. No. 60269, September
13,1991.
Q. Does "agricultural land" include land devoted to livestock,
poultry and swine raising and, consequently, is the inclusion of such
land in the Agrarian Reform Law constitutional?
A. On the basis solely of the dictionary meaning of agricultural
land, it is not clear whether the law should be read to include livestock,
poultry and swine raising. The records of the Constitutional
Commission, however, manifest the Commission's intent not to include
them. Consequently, this is the way it should be read. In this light, the
inclusion of land devoted to the raising of livestock, poultry and swine in
the Agrarian Reform Law is unconstitutional. Luz Farms v. Secretary of
Agrarian Reform, G.R. No. 86889, December 4,1990.
Q. How is redistribution of land to be achieved?
A. It is to be achieved either through voluntary sale or, where necessary,
through expropriation and resale.
Q. Must the owner be given "just compensation?"
A. Yes. And the computation of what is just compensation must follow
existing jurisprudence on the power of eminent domain. However, for
purposes of agrarian reform and in the spirit of social justice, while just
compensation means that the landowner has a right to receive as
payment an amount equivalent to the value of the land, the farmer
himself will pay only what he can afford even if this is not equivalent to
"just compensation." Hence, it will be necessary for the State
Sec. 4 ART. XIII - SOCIAL JUSTICE AND HUMAN RIGHTS
Agrarian and Natural Resources Reform
497
to subsidize the agrarian reform program in order that land owners can
be properly compensated.
Q. Must compensation be in cash?
A. No. Section 8 says that compensation may be in the form of "financial
instruments" which government financing institutions and enterprises
are bound to honor and accept at full value. "Admittedly, the
compensation contemplated in the law will cause the landowners, big
and small, not a little inconvenience. As already remarked, this cannot
be avoided. Nevertheless, it is devoutly hoped that these countrymen of
ours, conscious as we know they are of the need for their forbearance
and even sacrifice, will not begrudge us their indispensable share in the
attainment of the ideal of agrarian reform. Otherwise, our pursuit of this
elusive goal will be like the quest for the Holy Grail." Santos v. Land Bank,
G.R. No. 137431, September 7, 2000.
Q. May the GSIS, a government owned corporation, be compelled
to accept at face value Land Bank notes earlier received in payment of
expropriated land expropriated under land reform?
A. Yes. In land reform expropriation the owner seldom gets what
he wants for his property. Requiring him to accept Land Bank notes is
another sacrifice. For the government to compel him further to discount
those notes would be unfair. Maddumba v. GSIS, G.R. No. 61293,
February 15,1990.
Q. Will agrarian reform have the effect of stripping some land holders of all
land in order to make land available to the landless?
A. Obviously the object is not to make landowners of the landless by rendering
others landless. Hence, the State will set retention limits. Moreover, in
setting such retention limits the State must protect "small landowners,"
that is, ordinary people who may have inherited small pieces of land or
who through sheer hard work and frugality have managed to save
enough to be able to purchase land for the security of their future.
Q. Is R.A. 6657, the Comprehensive Agrarian Reform Law (CARL) an
exercise of police power or of the power of eminent domain?
A. To the extent that the law prescribes retention limits for
landowners, there is an exercise of police power. But where it becomes
498 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 12
necessary to deprive owners of their land in excess of the maximum
allowed there is compensable taking and therefore the exercise of
eminent domain. Association of Small Landowners v. Secretary of
Agrarian Reform, 175 SCRA 343 (1989).
Q. Who has the choice of the area to be retained?
A. The right of retention is a constitutionally guaranteed right,
which is subject to qualification by the legislature. It serves to mitigate
the effects of compulsory land acquisition by balancing the rights of the
landowner and the tenant and by implementing the doctrine that social
justice was not meant to perpetrate an injustice against the landowner.
A retained area, as its name denotes, is land which is not supposed to
anymore leave the landowner's dominion, thus sparing the
government from the inconvenience of taking land only to return it to
the landowner afterwards, which would be a pointless process. For as
long as the area to be retained is compact or contiguous and does not
exceed the retention ceiling of five (5) hectares, a landowner's choice of
the area to be retained must prevail. Danan, et al. v. CA., G.R. No.
132759, October 25, 2005.
Q. The exercise of eminent domain requires that the taking is for
public use. Is this satisfied by CARL?
A. Yes. The constitution itself by ordaining land reform settles the
question of public use. Association of Small Landowners v. Secretary of
Agrarian Reform, supra.
Q. But should not the State first distribute public agricultural lands
before touching private lands.
A. The discretion is given by the Constitution to Congress to
decide how to start. This is a question of wisdom in which courts cannot
substitute their judgment for that of Congress. Association of Small
Landowners v. Secretary of Agrarian Reform, G.R. No. 78742, 79310,
79744, 79777, July 14,1989.
Q. Is not the manner of fixing the compensation unconstitutional
because it is left to administrative authorities?
A. The determination by administrative authorities may always be
reviewed by the courts. Association of Small Landowners v. Secretary of
Agrarian Reform, supra.
Q. Is not the mode of compensation unconstitutional because it
compels the owner to accept compensation in less than money?
A. The weight of authority in existing traditional jurisprudence is
that compensation must be in money. However, we do not deal here
with traditional expropriation but with a revolutionary kind of
expropriation in which it is understandable for government not to
Sec. 5 ART. XIII - SOCIAL JUSTICE AND HUMAN RIGHTS 499
Agrarian and Natural Resources Reform
immediately have the money needed for compensation. Hence, some
other device was found necessary. Association of Small Landowners v.
Secretary of Agrarian Reform, supra.
Q. What else is included in the concept of just compensation.
A. Prompt payment.
Q. In what sense is expropriation under Article XIII revolutionary?
A. It is revolutionaiy in that it "affects all private agricultural lands
wherever found and of whatever kind as long as they are in excess of
the maximum retention limits allowed their owners. This kind of
expropriation is intended for the benefit not only of a particular
community or of a small segment of the population but of the entire
Filipino nation, from all levels of our society, from the impoverished
farmer to the land-glutted owner. Its purpose does not cover only the
whole territory of this country but goes beyond in time to the
foreseeable future, which it hopes to secure and edify with the vision
and the sacrifice of the present generation of Filipinos." Association of
Small Landowners v. Secretary of Agrarian Reform, supra.
Q. CAEtL is invalid because it transfers title before final payment.
Comment.
A The law "conditions the transfer of possession and ownership of
the land to the government on receipt by the landowner of the
corresponding payment or the deposit by the DAR of the compensation
in cash or LBP bonds with an accessible bank. Until then, title also
remains with the landowner. No outright change of ownership is
contemplated either." Association of Small Landowners v. Secretary of
Agrarian Reform, supra.
SEC. 5. THE STATE SHALL RECOGNIZE THE RIGHT OF FARMERS,
FARMWORKERS, AND LANDOWNERS, AS WELL AS COOPERATIVES, AND
OTHER INDEPENDENT
FARMERS' ORGANIZATIONS TO PARTICIPATE IN THE PLANNING,
ORGANIZATION, AND
MANAGEMENT OF THE PROGRAM, AND SHALL PROVIDE SUPPORT TO
AGRICULTURE THROUGH
APPROPRIATE TECHNOLOGY AND RESEARCH, AND ADEQUATE
FINANCIAL, PRODUCTION,
MARKETING, AND OTHER SUPPORT SERVICES.
Q. Beyond redistribution of land, what else must the State attend to?
A. The State must ensure that redistributed land will be efficiently productive
and effectively beneficial for all concerned. This is one of the reasons for
Section 5.
500 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
SEC. 6. THE STATE SHALL APPLY THE PRINCIPLES OF AGRARIAN
REFORM OR STEWARDSHIP, WHENEVER APPLICABLE IN ACCORDANCE
WITH LAW, IN THE
DISPOSITION OR UTILIZATION OF OTHER NATURAL RESOURCES,
INCLUDING LANDS OF THE PUBLIC
DOMAIN UNDER LEASE OR CONCESSION SUITABLE TO AGRICULTURE,
SUBJECT TO PRIOR RIGHTS,
HOMESTEAD RIGHTS OF SMALL SETTLERS, AND THE RIGHTS OF
INDIGENOUS COMMUNITIES TO
THEIR ANCESTRAL LANDS.
THE STATE MAY RESETTLE LANDLESS FARMERS AND FARMWORKERS
IN ITS OWN AGRICULTURAL ESTATES WHICH SHALL BE DISTRIBUTED TO
THEM IN THE MANNER
PROVIDED BY LAW.
SEC. 7. THE STATE SHALL PROTECT THE RIGHTS OF SUBSISTENCE
FISHERMEN, ESPECIALLY OF LOCAL COMMUNITIES, TO THE
PREFERENTIAL USE OF THE COMMUNAL
MARINE AND FISHING RESOURCES, BOTH INLAND AND OFFSHORE. IT
SHALL PROVIDE SUPPORT TO
SUCH FISHERMEN THROUGH APPROPRIATE TECHNOLOGY AND
RESEARCH, ADEQUATE FINANCIAL,
PRODUCTION, AND MARKETING ASSISTANCE, AND OTHER SERVICES. THE
STATE SHALL ALSO
PROTECT, DEVELOP, AND CONSERVE SUCH RESOURCES. THE
PROTECTION SHALL EXTEND TO
OFFSHORE FISHING GROUNDS OF SUBSISTENCE FISHERMEN AGAINST
FOREIGN INTRUSION. FLSH
WORKERS SHALL RECEIVE A JUST SHARE FROM THEIR LABOR IN THE
ENJOYMENT OF MARINE AND
FISHING RESOURCES.
Q. Does the reach of agrarian reform extend only to private agricultural land?
A. No. It also extends to "other natural resources," even including the use and
enjoyment of "communal marine and lishing resources" and "offshore
fishing grounds."
SEC. 8. THE STATE SHALL PROVIDE INCENTIVES TO LANDOWNERS TO
INVEST THE PROCEEDS OF THE AGRARIAN REFORM PROGRAM TO
PROMOTE INDUSTRIALIZATION,
EMPLOYMENT CREATION, AND PRIVATIZATION OF PUBLIC SECTOR
ENTERPRISES. FINANCIAL
INSTRUMENTS USED AS PAYMENT FOR THEIR LANDS SHALL BE
HONORED AS EQUITY IN
ENTERPRISES OF THEIR CHOICE.
Q. What should be the relation between industrialization and agrarian
reform?
A. It should be a mutually beneficial relationship. Agrarian reform should
unlock idle wealth hidden in land for investment in industrialization, and
industrialization itself, among other benefits, should be able to absorb
farm workers released from
Sec. 9 ART. XIII - SOCIAL JUSTICE AND HUMAN RIGHTS 501
Urban Land Reform and Housing
farms because of mechanization. And the improvement of the
economic lot of both farm and industrial workers should result in
"enhancement of human dignity" referred to in Section 1. The assured
value of "financial instruments" should enable landowners to channel
their wealth into non-agricultural production ventures.
URBAN LAND REFORM AND HOUSING
SEC. 9. THE STATE SHALL, BY LAW, AND FOR THE COMMON GOOD,
UNDERTAKE, IN COOPERATION WITH THE PRIVATE SECTOR, A
CONTINUING PROGRAM OF URBAN
LAND REFORM AND HOUSING WHICH WILL MAKE AVAILABLE AT
AFFORDABLE COST DECENT
HOUSING AND BASIC SERVICES TO UNDERPRIVILEGED AND HOMELESS
CITIZENS IN URBAN CENTERS
AND RESETTLEMENT AREAS. IT SHALL ALSO PROMOTE ADEQUATE
EMPLOYMENT OPPORTUNITIES
TO SUCH CITIZENS. IN THE IMPLEMENTATION OF SUCH PROGRAMS THE
STATE SHALL RESPECT THE
RIGHTS OF SMALL PROPERTY OWNERS.
Q. What is the import of the use of the word "reform?"
A. The word carries the meaning that what is sought is not just proper urban
land use or zoning but also the righting of inequitable land distribution. It
thus includes the authorization to use expropriation for redistribution of
urban land.
NOTE: Commenting on the Supreme Court decision
upholding a "no-two families in one lot rule" in Forbes Park, Hugo
Gutierrez, Jr. says:
"I believe that the zeal with which the private respondent
enforces the disputed single family restriction is intended to insure
that Forbes Park real estate values remain higher — much, much
higher — than the values in any other residential area in the
whole country. In other words, what the Court is protecting are
not sanitation, peace and order, comfort, or aesthetic surrounding
which would not in the least bit be affected by two families
sharing one big house in Forbes Park, but inflated land values and
an elitist life style. Under the disputed provision, one family could
hire a battalion of servants, drivers, yayas, gardeners, butlers,
footmen, grooms, cooks laundresses and other lackeys without
violating the single family rule. It is not overcrowding which is
sought to be avoided but something else.
502 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 12
"Metro Manila has run out of available residential land for
its huge and still exploding population. Land use has to be
rationalized. Without sacrificing their comfort and security, the
rich have to yield a little. I consider it a waste of scarce resources if
property worth several millions of pesos is limited in its use to one
solitary family, no matter how small, when it could comfortably
house two or more families in the kind of comfort and luxury
which is undreamed of even to upper middle income people. The
very rich have the right to enforce their exclusive life styles
through voluntary compliance but when the Courts step in to
validate and enforce an unreasonable restriction, I am
constrained to dissent.
"I am not suggesting that affluent suburban enclaves should
be allowed to deteriorate into monotonous box-like government
housing projects or, worse, into slums or squatter colonies. My
only concern is with this Court's validating restrictions whose
obvious purpose is to jack up property value to heights which are
incongruous against [sic] the grinding poverty and hand-to-mouth
subsistence of the overwhelming masses of our people." Cariday
Investment v. Court of Appeals, G.R. No. 83358, August 2,1989.
SEC. 10. URBAN OR RURAL POOR DWELLERS SHALL NOT BE EVICTED
NOR THEIR DWELLINGS DEMOLISHED, EXCEPT IN ACCORDANCE WITH
LAW
AND IN A JUST AND HUMANE MANNER.
NO RESETTLEMENT OF URBAN OR RURAL DWELLERS SHALL BE
UNDERTAKEN WITHOUT
ADEQUATE CONSULTATION WITH THEM AND THE COMMUNITIES WHERE
THEY ARE TO BE
LOCATED.
Q. Does this provision mean that eviction of illegal occupants of land can only
be done through court orders?
A. No. What the provision requires is that eviction be done "in accordance
with law," that is, with due process. But due process is not necessarily
judicial process; it can also be administrative process. In every case,
however, eviction must be "in a just and humane manner."
Q. What does eviction and demolition "in accordance with law and in a just
and humane manner" mean?
A. It "does not mean that the validity or legality of the demolition or eviction is
hinged on the existence of a resettlement area designated or
earmarked by the government." Rather, it means that "the person to
be evicted be accorded due process or an opportunity to controvert the
allegation that his or her
Sec. 11 ART. XIII - SOCIAL JUSTICE AND HUMAN RIGHTS 503
Health
occupation or possession of the property involved is unlawful or against
the will of the landowner; that should the illegal or unlawful occupation
be proven, the occupant be sufficiently notified before actual eviction or
demolition is done; and there be no loss of lives, physical injuries or
unnecessary loss of or damage to properties." People v. Judge Leachon,
G.R. Nos. 108725-26, September 25,1998.
The law governing eviction and demolition is R.A. 7279.
HEALTH
SEC. 11. THE STATE SHALL ADOPT AN INTEGRATED AND
COMPREHENSIVE APPROACH TO
HEALTH DEVELOPMENT WHICH SHALL ENDEAVOR TO MAKE ESSENTIAL
GOODS, HEALTH AND
OTHER SOCIAL SERVICES AVAILABLE TO ALL THE PEOPLE AT
AFFORDABLE COST. THERE SHALL BE
PRIORITY FOR THE NEEDS OF THE UNDERPRIVILEGED SICK, ELDERLY,
DISABLED, WOMEN, AND
CHILDREN. THE STATE SHALL ENDEAVOR TO PROVIDE FREE MEDICAL
CARE TO PAUPERS.
Q. What is the meaning of "an integrated and comprehensive approach to
health development?"
A. The expression sums up two principles premised on the understanding that
the high level of health of the people and of the country can be attained
only through a combination of social, economic, political, and cultural
conditions. Integration connotes a unified health delivery system, a
combination of private and public sectors, and a blend of western
medicine and traditional health care modalities. Comprehensiveness
includes health promotion, disease prevention, education, and planning.
And all of these are a recognition of the people's right to health.
Q. The Philippine Medical Association challenges the validity of
provisions of the Generics Act alleging that (1) it gives unequal
treatment to private practitioners and government physicians in the
manner of prescribing generic drugs. It is alleged that government
physicians may prescribe only generic drugs whereas private
practitioners may write the brand name in parenthesis. It is alleged
moreover that (2) the law allows a mere salesgirl to give a substitute for
what the doctor prescribes. Likewise (3) the PMA challenges the
prohibition of against the use by doctors of "no substitution in their
prescription.
A. The PMA misreads the law. Both private and government
practitioners are bound by the same law and the salesgirl is merely
504 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-16
authorized to inform the buyer of the list of drug equivalents furnished
by the Bureau of Food and Drugs. The purpose of the Generics Law is to
fulfill the constitutional command to make health care affordable. This
too is the reason for the "no substitution" rule. Del Rosario v. Bengzon,
G.R. No. 88265, December 21,1989.
SEC. 12. THE STATE SHALL ESTABLISH AND MAINTAIN AN EFFECTIVE
FOOD AND DRUG REGULATORY SYSTEM AND UNDERTAKE APPROPRIATE
HEALTH MANPOWER
DEVELOPMENT AND RESEARCH, RESPONSIVE TO THE COUNTRY'S
HEALTH NEEDS AND PROBLEMS.
SEC. 13. THE STATE SHALL ESTABLISH A SPECIAL AGENCY FOR
DISABLED PERSONS FOR THEIR REHABILITATION, SELF-DEVELOPMENT
AND SELF-RELIANCE, AND
THEIR INTEGRATION INTO THE MAINSTREAM OF SOCIETY.
WOMEN
SEC. 14. THE STATE SHALL PROTECT WORKING WOMEN BY PROVIDING
SAFE AND HEALTHFUL
WORKING CONDITIONS, TAKING INTO ACCOUNT THEIR
MATERNAL FUNCTIONS, AND SUCH FACILITIES AND OPPORTUNITIES
THAT WILL ENHANCE THEIR
WELFARE AND ENABLE THEM TO REALIZE THEIR FULL POTENTIAL IN THE
SERVICE OF THE NATION.
ROLE AND RIGHTS PEOPLE'S ORGANIZATIONS
SEC. 15. THE STATE SHALL RESPECT THE ROLE OF INDEPENDENT
PEOPLE'S
ORGANIZATIONS TO ENABLE THE PEOPLE TO PURSUE AND PROTECT,
WITHIN THE DEMOCRATIC
FRAMEWORK, THEIR LEGITIMATE
AND COLLECTIVE INTERESTS AND ASPIRATIONS THROUGH PEACEFUL
AND LAWFUL MEANS.
PEOPLE'S ORGANIZATIONS ARE BONA FIDE ASSOCIATIONS OF CITIZENS
WITH DEMONSTRATED CAPACITY TO PROMOTE THE PUBLIC INTEREST
AND WITH IDENTIFIABLE
LEADERSHIP, MEMBERSHIP, AND STRUCTURE.
SEC. 16. THE RIGHT OF THE PEOPLE AND THEIR ORGANIZATIONS TO
EFFECTIVE AND REASONABLE PARTICIPATION AT ALL LEVELS OF SOCIAL,
POLITICAL, AND ECONOMIC
DECISION-MAKING SHALL NOT BE ABRIDGED.
THE STATE SHALL, BY LAW, FACILITATE THE ESTABLISHMENT OF
ADEQUATE
CONSULTATION MECHANISMS.
Q. What are "people's organizations?"
A. See Section 15. Note that they need not be juridical persons. Moreover,
Section 15 speaks of "independent" people's organi
Sees. 17-18 ART. XIII - SOCIAL JUSTICE AND HUMAN RIGHTS
Human Rights
505
zations, that is, organizations which are not controlled by manipulative
forces in or out of government. Strictly speaking,
however, if one must speak of rights, in the case of organizations
which are not juridical persons, the right protected is that
of individual members, because only persons can be subject of
rights.
HUMAN RIGHTS
SEC. 17. (1) THERE IS HEREBY CREATED AN OFFICE CALLED THE
COMMISSION ON HUMAN RIGHTS.
(2) THE COMMISSION SHALL BE COMPOSED OF A CHAIRMAN
AND FOUR MEMBERS WHO MUST BE NATURAL-BORN CITIZENS OF THE
PHILIPPINES AND A MAJORITY OF WHOM SHALL BE MEMBERS OF THE
BAR.
THE TERM OF OFFICE AND OTHER QUALIFICATIONS AND DISABILITIES
OF
THE MEMBERS OF THE COMMISSION SHALL BE PROVIDED BY LAW.
(3) UNTIL THIS COMMISSION IS CONSTITUTED, THE EXISTING
PRESIDENTIAL COMMITTEE ON HUMAN RIGHTS SHALL CONTINUE TO
EXERCISE ITS PRESENT FUNCTIONS AND POWERS.
(4) THE APPROVED ANNUAL APPROPRIATIONS OF THE COMMISSION
SHALL BE AUTOMATICALLY AND REGULARLY RELEASED.
Q. What is the constitutional status of the Commission on Human
Rights?
A. It is a creation of the Constitution although it is not on the
same level as the Constitutional Commissions in Article EX.
Moreover, its full operationalization will require congressional
action.
SEC. 18. THE COMMISSION ON HUMAN RIGHTS SHALL HAVE THE
FOLLOWING POWERS AND FUNCTIONS:
(1) INVESTIGATE, ON ITS OWN OR ON COMPLAINT BY ANY PARTY,
ALL FORMS OF HUMAN RIGHTS VIOLATIONS INVOLVING CIVIL AND
POLITICAL
RIGHTS;
(2) ADOPT ITS OPERATIONAL GUIDELINES AND RULES OF PROCEDURE,
AND CITE FOR CONTEMPT FOR VIOLATIONS THEREOF IN ACCORDANCE
WITH THE RULES OF COURT;
(3) PROVIDE APPROPRIATE LEGAL MEASURES FOR THE PROTECTION
OF HUMAN RIGHTS OF ALL PERSONS WITHIN THE PHILIPPINES, AS WELL
AS
506 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-16
FILIPINOS RESIDING ABROAD, AND PROVIDE FOR PREVENTIVE
MEASURES
AND LEGAL AID SERVICES TO THE UNDERPRIVILEGED WHOSE HUMAN
RIGHTS HAVE BEEN
VIOLATED OR NEED PROTECTION;
(4) EXERCISE VISITATORIAL POWERS OVER JAILS, PRISONS, OR
DETENTION FACILITIES;
(5) ESTABLISH A CONTINUING PROGRAM OF RESEARCH, EDUCATION,
AND
INFORMATION TO ENHANCE RESPECT FOR THE PRIMACY OF HUMAN
RIGHTS;
(6) RECOMMEND TO THE CONGRESS EFFECTIVE MEASURES TO
PROMOTE HUMAN
RIGHTS AND TO PROVIDE FOR COMPENSATION TO VICTIMS
OF VIOLATIONS OF HUMAN RIGHTS, OR THEIR FAMILIES;
(7) MONITOR THE PHILIPPINE GOVERNMENT'S COMPLIANCE WITH
INTERNATIONAL TREATY OBLIGATIONS ON HUMAN RIGHTS;
(8) GRANT IMMUNITY FROM PROSECUTION TO ANY PERSON WHOSE
TESTIMONY OR WHOSE POSSESSION OF DOCUMENTS OR OTHER
EVIDENCE IS NECESSARY OR
CONVENIENT TO DETERMINE THE TRUTH IN ANY INVESTIGATION
CONDUCTED BY IT OR UNDER ITS
AUTHORITY;
(9) REQUEST THE ASSISTANCE OF ANY DEPARTMENT, BUREAU,
OFFICE, OR AGENCY IN THE PERFORMANCE OF ITS FUNCTIONS;
(10) APPOINT ITS OFFICERS AND EMPLOYEES IN ACCORDANCE WITH
LAW; AND
(11) PERFORM SUCH OTHER DUTIES AND FUNCTIONS AS MAY BE
PROVIDED BY LAW.
Q. How may the powers of the Commission be summarized?
A. In essence the Commission's power is only investigative. It has no
prosecutorial power. For prosecution, it must rely on the executive
department.
Q. Does the Commission have jurisdiction over cases involving
socio-economic rights?
A. Simon, Jr. v. Human Rights Commission, 229 SCRA 117 (1994), held, on the
basis of Constitutional Commission debates and Section 18(1), that the
Commission can only protect "civil and political rights" as distinct from
less traditional social and economic rights.
Note, however, that the reason for these modest objectives is the
desire not to overburden the Commission during its
Sec. 19 ART. XIII - SOCIAL JUSTICE AND HUMAN RIGHTS 507
Human Rights
initial years. The limitation does not exclude the possibility of expanding
the Commission's scope later — as in fact Section 19 specifically allows.
Q. Does the Commission have compulsive powers?
A. The principal function of the Commission is investigatory. It may not issue
writs of injunction or restraining orders against supposed violators of
human rights to compel them to cease and desist from continuing their
acts complained of. Carino v. Commission on Human Rights, G.R. No.
96681, December 2, 1991; Export Processing Zone Authority v.
Commission on Human Rights, G.R. No. 101476, April 14,1994; Simon, Jr.
v. Human Rights Commission, 229 SCRA 117 (1994).
Q. Is the focus of the investigatory power on any specific group of persons?
A. No, the focus is on violations of human rights no matter by whom
committed. However, the Commission, in being authorized to adopt its
"operational guidelines," is in fact authorized to fix priorities according to
what is most needed at the moment.
Q. What kind of "measures" can it take for the protection of human rights?
A. Anything it can legally do short of passing judgment on legality or ordering
the release of detainees.
Q. Based as it is in the Philippines, how can it be of help to those who are
abroad?
A. Through representation with consular and other diplomatic personnel
abroad.
SEC. 19. THE CONGRESS MAY PROVIDE FOR OTHER CASES OF
VIOLATIONS OF HUMAN RIGHTS THAT SHOULD FALL WITHIN THE
AUTHORITY
OF THE COMMISSION, TAKING INTO ACCOUNT ITS RECOMMENDATIONS.
ARTICLE XVII
EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE,
AND SPORTS
EDUCATION
SECTION 1. THE STATE SHALL PROTECT AND PROMOTE THE RIGHT OF
ALL CITIZENS TO QUALITY EDUCATION AT ALL LEVELS OF EDUCATION
AND
SHALL TAKE APPROPRIATE STEPS TO MAKE SUCH EDUCATION
ACCESSIBLE
TO ALL.
Q. What are the three principal characteristics of the educational system
which the State must promote and protect?
A. The State must promote and protect (1) quality education, that is,
education that is of high academic standards, (2) affordable education,
that is, education that is financially within the reach not just of the
wealthy, and (3) education that is relevant to the needs of people and
society.
NOTE: Teachers suspended for six months cannot demand
that they be reinstated in the same school where their place had
been taken by others needed to continue the schooling of the
children. They should accept assignment elsewhere.1 The
exigencies of the service required that teachers should be
appointed to replace those suspended in order not to deprive
students of the right to education. Superintendent v. Azarcon, G.R.
No. 166435, February 11,2008.
Q. Is it therefore the duly of private schools to subsidize the education of
students?
A. The duty of which the Constitution speaks is a state duty, not the duty of
private schools. Private schools must maintain
'Superintendent v. Azarcon, G.R. No. 166435, February 11,1008.
508
Sec. 5 ART. XIV - EDUCATION, SCIENCE AND TECHNOLOGY, 509
ARTS, CULTURE, AND SPORTS EDUCATION
Education
high academic standards and relevant educational policy but are also
entitled to commensurate compensation for the service they render.
Private schools generally can give students only the kind of service
which is commensurate to what they pay for.
Q. The requirement of passing a medical admission test before
one may be admitted to a medical school is challenged as violative of
the provision which makes education accessible to all. Comment.
A. Section 1 of Article XIV must be read in conjunction with Section
5 which makes admission subject to "fair, reasonable and equitable
admission requirements." Besides, the challenged limitation on the right
to enter a medical school is an exercise of police power for the
protection of the health of the public through regulation of the medical
profession. Tablarin v. Gutierrez, 152 SCRA 730 (1987).
Q. Petitioner was denied admission to a medical school on the
ground of having thrice failed the National Medical Admission Test. He
challenges the validity of the "three failure rule" on the ground that it
violates equal protection and due process and his right to quality
education and academic freedom.
A. The rule is a valid exercise of police power for the protection of
the health of the public. Moreover, the right to quality education is not
absolute but subject to "fair, reasonable and equitable admission and
academic requirements." [Article XIV, Section 5 (3)1. Department of
Education, Culture and Sports v. San Diego, G.R. No. 89572, December
21, 1989, citing Tablarin v. Gutierrez, 152 SCRA 730.
Q. Naga Parochial School terminated the employment of the
petitioners for their failure to obtain a minimum efficiency rating of 85%
in the two previous school years as required in the teacher's manual of
the school. Petitioners argue that to require a minimum efficiency rating
of 85% is unreasonable and unfair because, by any other standard, the
average grade is 75%. Decide.
A. Petitioner's contention is untenable. "It is the prerogative of the
school to set high standards of efficiency for its teachers since quality
education is a mandate of the Constitution. As long as the standards
fixed are reasonable and not arbitrary, courts are not at liberty to set
them aside. Schools cannot be required to adopt standards which barely
satisfy criteria set for government recognition." Pefia v. NLRC, G.R. No.
100629, July 5,1996,258 SCRA 65, 67.
NOTE: The right to education is also limited by the right of schools
to dismiss, after due process, for disciplinary reasons. Ateneo de Manila
University v. Court of Appeals, 145 SCRA 100 (1986).
510 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 12
"While it is true that the students are entitled to the right to
pursue their education, the USC as an educational institution is also
entitled to pursue its academic freedom and in the process has the
concomitant right to see to it that this freedom is not jeopardized.
"True, an institution of learning has a contractual obligation to
afford its students a fair opportunity to complete the course they seek
to pursue. However, when a student commits a serious breach of discipline
or fails to maintain the required academic standard, he forfeits
his contractual right; and the court should not review the discretion of
university authorities.'' Licup v. University of San Carlos, October 19,
1989, citing Magtibay v. Garcia, 120 SCRA 370 (1983) and also Ateneo
de Manila University v. Court of Appeals, 145 SCRA 100 (1986).
NOTE: Non v. Judge Dames, G.R. No. 89317, May 20, 1990,
reversed the doctrine in Alcuaz v. PSBA, 161 SCRA 7 (May 2,1988) which
had said that students enroll from semester to semester and may be
denied re-enrollment in any given new semester. The Court said that
the established rules for due process must be observed together with
the right of students to free speech and assembly.
Although the relation between student and school is contractual,
the contract is for the duration of the course until graduation, subject to
the right of the school to dismiss students for academic or disciplinary
reason.
Q. What are the rules for due process in disciplinary action against
students?
A. In a case involving the dismissal of students the Court laid down
the following rules: . . due process in disciplinary cases involving
students does not entail proceedings and hearings similar to those
prescribed for actions and proceedings in courts of justice. The
proceedings in student discipline cases may be summary; and crossexamination
is not, contrary to petitioner's view, an essential part
thereof. There are withal minimum standards which must be met to
satisfy the demands of procedural due process; and these are, that (1)
the students must be informed in writing of the nature and cause of any
accusation against them; (2) they shall have the right to answer the
charges against them, with the assistance of counsel, if desired; (3) they
shall be informed of the evidence against them; (4) they shall have the
right to adduce evidence in their own behalf; and (5) the evidence must
be duly considered by the investigating committee or official designated
by the school authorities to hear and decide the case." Guzman v.
National University, 142 SCRA 699, 706-7 (1986).
Q. May schools take disciplinary action for acts committed
outside the campus?
A. Generally, no. However, it may (1) in respect to violations of
school policies in connection with school sponsored activities or (2)
Sec. 5 ART. XIV - EDUCATION, SCIENCE AND TECHNOLOGY, 511
ARTS, CULTURE, AND SPORTS EDUCATION
Education
where the misconduct affects the student's status or the good name or
reputation of the school. After all, the school is charged with the
development of moral character and in this must receive the aid of
government. Angeles v. Judge Sison, February 16,1982.
Q. How does due process for students affect the academic
freedom of schools?
A. "While it is true that the students are entitled to the right to
pursue their education, the USC as an educational institution is also
entitled to pursue its academic freedom and in the process has the
concomitant right to see to it that this freedom is not jeopardized.
"True, an institution of learning has a contractual obligation to
afford its students a fair opportunity to complete the course they seek
to pursue. However, when a student commits a serious breach of
discipline or fails to maintain the required academic standard, he forfeits
his contractual right; and the court should not review the discretion of
university authorities." Licup v. University of San Carlos, October 19,
1989, citing Magtibay v. Garcia, 120 SCRA 370 (1983) and also Ateneo de
Manila University v. Court of Appeals, 145 SCRA 100 (1986).
SEC. 2. THE STATE SHALL:
(1) ESTABLISH, MAINTAIN, AND SUPPORT A COMPLETE, ADEQUATE,
AND INTEGRATED SYSTEM OF EDUCATION RELEVANT TO THE NEEDS OF
THE PEOPLE AND SOCIETY;
(2) ESTABLISH AND MAINTAIN A SYSTEM OF FREE PUBLIC EDUCATION
IN THE ELEMENTARY AND HIGH SCHOOL LEVELS. WITHOUT LIMITING THE
NATURAL RIGHT OF
PARENTS TO REAR THEIR CHILDREN, ELEMENTARY EDUCATION IS
COMPULSORY FOR ALL CHILDREN
OF SCHOOL AGE;
(3) ESTABLISH AND MAINTAIN A SYSTEM OF SCHOLARSHIP GRANTS,
STUDENT LOAN PROGRAMS, SUBSIDIES, AND OTHER INCENTIVES WHICH
SHALL BE AVAILABLE TO
DESERVING STUDENTS IN BOTH PUBLIC AND PRIVATE SCHOOLS,
ESPECIALLY TO THE
UNDERPRIVILEGED;
(4) ENCOURAGE NON-FORMAL, INFORMAL, AND INDIGENOUS
LEARNING SYSTEMS, AS WELL AS SELF-LEARNING, INDEPENDENT, AND
OUT- OF-SCHOOL STUDY
PROGRAMS PARTICULARLY THOSE THAT RESPOND TO COMMUNITY
NEEDS, AND
(5) PROVIDE ADULT CITIZENS, THE DISABLED, AND OUT-OF SCHOOL
YOUTH WITH
TRAINING IN CIVICS, VOCATIONAL EFFICIENCY, AND OTHER SKILLS.
512 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 12
Q. How soon can there be free secondary education?
A. This will be determined by the first Congress under this Constitution.
Q. When the Constitution speaks of compulsory elementary education, is it
contemplated that the obligation will be enforced through civil or
criminal sanctions?
A. The Constitutional Commission intended this to be a moral and not a legal
compulsion. The Commission was aware that education for their
children is the natural desire of parents and that, if they do not give it, it
is not for lack of wanting but for want of economic capability.
Q. How can the State make quality education affordable? A. See
Section 2(3).
SEC. 3 (1) ALL EDUCATIONAL INSTITUTIONS SHALL INCLUDE THE
STUDY OF THE CONSTITUTION AS PART OF THE CURRICULA.
(2) THEY SHALL INCULCATE PATRIOTISM AND NATIONALISM, FOSTER
LOVE OF
HUMANITY, RESPECT FOR HUMAN RIGHTS, APPRECIATION OF THE ROLE
OF NATIONAL HEROES
IN THE HISTORICAL DEVELOPMENT OF THE COUNTRY, TEACH THE
RIGHTS AND DUTIES OF
CITIZENSHIP, STRENGTHEN ETHICAL AND SPIRITUAL VALUES, DEVELOP
MORAL CHARACTER AND
PERSONAL DISCIPLINE, ENCOURAGE CRITICAL AND CREATIVE
THINKING, BROADEN SCIENTIFIC
AND TECHNOLOGICAL KNOWLEDGE, AND PROMOTE VOCATIONAL
EFFICIENCY.
(3) AT THE OPTION EXPRESSED IN WRITING BY THE PARENTS
OR GUARDIANS, RELIGION SHALL BE ALLOWED TO BE TAUGHT TO THEIR
CHILDREN OR WARDS IN
PUBLIC ELEMENTARY AND HIGH SCHOOLS WITHIN THE REGULAR CLASS
HOURS BY INSTRUCTORS
DESIGNATED OR APPROVED BY THE RELIGIOUS AUTHORITIES OF THE
RELIGION TO WHICH THE
CHILDREN OR WARDS BELONG, WITHOUT ADDITIONAL COST TO THE
GOVERNMENT.
NOTE: Discipline in education is specifically mandated by the 1987
Constitution which provides that all educational institutions shall "teach
the rights and duties of citizenship, strengthen ethical and spiritual
values, develop moral character and personal discipline." Schools and
school administrators have the authority to maintain school discipline
and the right to impose appropriate and reasonable disciplinary
measures. On
Sec. 5 ART. XIV - EDUCATION, SCIENCE AND TECHNOLOGY, 513
ARTS, CULTURE, AND SPORTS EDUCATION
Education
the other hand, students have the duty and the responsibility to
promote and maintain the peace and tranquility of the school by
observing the rules of discipline. Hence, the Principal has authority to
order immediate transfer of students especially if parents had agreed to
the arrangement. Jenosa, et al. v. University of San Agustin, G.R. No.
172138, September 8, 2010.
SEC. 4. (1) THE STATE RECOGNIZES THE COMPLEMENTARY ROLES OF
PUBLIC AND PRIVATE
INSTITUTIONS IN THE EDUCATIONAL SYSTEM AND
SHALL EXERCISE REASONABLE SUPERVISION AND REGULATION OF ALL
EDUCATIONAL INSTITUTIONS.
(2) EDUCATIONAL INSTITUTIONS, OTHER THAN THOSE ESTABLISHED BY
RELIGIOUS
GROUPS AND MISSION BOARDS, SHALL BE OWNED SOLELY BY CITIZENS
OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS AT LEAST SIXTY PER CENTUM OF
THE CAPITAL OF WHICH IS
OWNED BY SUCH
CITIZENS. THE CONGRESS MAY, HOWEVER, REQUIRE INCREASED
FILIPINO
EQUITY PARTICIPATION IN ALL EDUCATIONAL INSTITUTIONS.
THE CONTROL AND ADMINISTRATION OF EDUCATIONAL INSTITUTIONS
SHALL BE VESTED IN CITIZENS OF THE PHILIPPINES.
NO EDUCATIONAL INSTITUTION SHALL BE ESTABLISHED EXCLUSIVELY
FOR ALIENS AND NO
GROUP OF ALIENS SHALL COMPRISE MORE THAN ONE- THIRD OF THE
ENROLLMENT IN ANY
SCHOOL. THE PROVISIONS OF THIS SUBSECTION SHALL NOT APPLY TO
SCHOOLS ESTABLISHED FOR
FOREIGN DIPLOMATIC PERSONNEL AND THEIR DEPENDENTS AND,
UNLESS OTHERWISE PROVIDED
BY LAW, FOR OTHER FOREIGN TEMPORARY RESIDENTS.
(3) ALL REVENUES AND ASSETS OF NON-STOCK, NON-PROFIT
EDUCATIONAL INSTITUTIONS USED ACTUALLY, DIRECTLY, AND
EXCLUSIVELY FOR EDUCATIONAL
PURPOSES SHALL BE EXEMPT FROM TAXES AND DUTIES.
UPON THE DISSOLUTION OR CESSATION OF THE CORPORATE EXISTENCE
OF SUCH INSTITUTIONS,
THEIR ASSETS SHALL BE DISPOSED OF IN THE MANNER
PROVIDED BY LAW.
PROPRIETARY EDUCATIONAL INSTITUTIONS, INCLUDING THOSE
COOPERATIVELY OWNED,
MAY LIKEWISE BE ENTITLED TO SUCH EXEMPTIONS SUBJECT TO THE
LIMITATIONS PROVIDED BY
LAW INCLUDING RESTRICTIONS ON DIVIDENDS AND PROVISIONS FOR
REINVESTMENT.
(4) SUBJECT TO CONDITIONS PRESCRIBED BY LAW, ALL GRANTS,
ENDOWMENTS, DONATIONS, OR CONTRIBUTIONS USED ACTUALLY,
DIRECTLY, AND EXCLUSIVELY
FOR EDUCATIONAL PURPOSES SHALL BE EXEMPT FROM TAX.
514 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
Q. What aspects of education are Filipinized?
A. Section 4(2) is the Filipinization provision of the article on Education. It
Filipinizes: (1) ownership, (2) control and administration; and (3) student
population.
Q. What is the rule on ownership of schools?
A. Ownership of schools, except those which are "established by religious
groups and mission boards," shall be vested only in Filipino citizens or in
corporations or associations sixty per cent of the capital of which is
owned by such citizens. This was first introduced in the 1973
Constitution. By Presidential Decree No. 176, schools were given until
the beginning of the school year 1976-1977 to comply with this
provision.
Q. What positions are covered by the rule on Filipinization of administration.
A. It may be gathered from the text approved on second reading on May 16,
1972 that only line positions on the level of President, Dean, Principal or
member of the board of trustees are Filipinized.
Q. What is the rule on schools established for foreign diplomatic personnel
and their dependents?
A. They are exempt from the rule on Filipinization of ownership, control and
administration, and student population. Unless otherwise provided by
law, the same rule applies to other temporary residents.
Q. What is the rationale behind the tax privileges given in Section 4(3) and (4)?
A. They are meant to help enable private schools to offer quality and
affordable education.
Q. What must an institution prove with substantial evidence to be
granted tax exemption under this provision?
A. That "(1) it falls under the classification non-stock, non-profit
educational institution', and (2) the income it seeks to be exempted
from taxation is used actually, directly, and exclusively for educational
purposesCommission of Internal Revenue v. Court of Appeals, G.R. No.
124043, October 14, 1998, p. 18.
Sec. 5 ART. XIV - EDUCATION, SCIENCE AND TECHNOLOGY, 515
ARTS, CULTURE, AND SPORTS EDUCATION
Education
Q. What does the term "educational institution" mean?
A. Under the Education Act of 1982 (B.P. Big. 232) it refers to
schools and "non-formal education is understood to be school-based
and 'private auspices such as foundations and civic-spirited
organizations' are ruled out. It is settled that the term 'educational
institution,' when used in laws granting tax exemptions, refers to a
'...school, seminary, college or educational establishment....'" The YMCA
is not an educational institution. Commission of Internal Revenue v. Court
of Appeals, G.R. No. 124043, October 14,1998, p. 19.
Q. After a series of inspections made by the Board of
Medical Education, the recommendation was made to DECS that
the Philippine Muslim-Christian College of Medicine Foundation
be closed. The Secretary or Education ordered the closure. The
closure is disputed and the case was brought to Court. Should the
Court intervene?
A. The DECS has the authority to order closure. "Resort to
the Courts to obtain a reversal of the determination by the
Secretary of Education, Culture and Sports that the College is unfit
to continue its operations is in this case clearly unavailing. There is,
to begin with, no law authorizing an appeal from decisions or
orders of the Secretary of Education, Culture and Sports to this
Court or any other Court. It is not the function of this Court or any
other Court to review the decisions and orders of the Secretary on
the issue of whether or not an educational institution meets the
norms and standards required for permission to operate and to
continue operating as such. On this question, no Court has the
power or prerogative to substitute its opinion for that of the
Secretary. Indeed, it is obviously not expected that any Court
would have the competence to do so." Board of Medical
Education v. Judge Alfonso and Philippine Muslim-Christian College
of Medicine, G.R. No. 88259, August 10,1989.
Q. Due to refusal of students to go to class and of teachers
to teach, Capitol Medical Center served notice to the DECS that
effective at the end of the semester the school would cease to
operate. May the school be compelled to continue operation until
the current students can complete their course?
A. No. There is no contract between school and student to
keep the school open until the student finishes. The contract is to
keep bim during the semester for which he enrolled. Capitol
Medical Center v. Court of Appeals, G.R. No. 82499, October 13,
1989.
516 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 12
Q. Part of the school building is used as residence of the President and
his family and another part is rented out to a commercial
establishment. Do these uses of the building come under the
phrase "used exclusively for . . . educational purposes" [under the
1935 Constitution]?
A. The test of exemption from taxation is the use of the property for
purposes mentioned in the Constitution. "Exclusive use,"
however, includes "incidental use" reasonably related to the
accomplishment of the purpose mentioned. The President's
residence qualifies under such "incidental use" but not that
portion used for commercial purposes. Abra Valley college, Inc. v.
Aquino, 162 SCRA 106 (1988).
(NOTE: It should be noted that what is at issue here is the
tax on the property not the tax on the revenue. Moreover, this
was decided on the basis of the 1935 Constitution which uses the
phrase "exclusive use." The issue is exclusivity and there is no
discussion of the phrases "directly, actually" found in the new
Constitution. Would the same result be found under the 1987
Constitution?)
SEC. 5. (1) THE STATE SHALL TAKE INTO ACCOUNT REGIONAL AND
SECTORAL NEEDS AND CONDITIONS AND SHALL ENCOURAGE LOCAL
PLANNING IN THE
DEVELOPMENT OF EDUCATIONAL POLICIES AND PROGRAMS.
(2) ACADEMIC FREEDOM SHALL BE ENJOYED IN ALL INSTITUTIONS
OF HIGHER LEARNING.
(3) EVERY CITIZEN HAS A RIGHT TO SELECT A PROFESSION OR
COURSE OF STUDY, SUBJECT TO FAIR, REASONABLE AND EQUITABLE
ADMISSION AND ACADEMIC
REQUIREMENTS.
(4) THE STATE SHALL ENHANCE THE RIGHT OF TEACHERS TO
PROFESSIONAL
ADVANCEMENT. NON-TEACHING ACADEMIC AND NON-ACADEMIC
PERSONNEL SHALL ENJOY THE PROTECTION OF THE STATE.
(5) THE STATE SHALL ASSIGN THE HIGHEST BUDGETARY PRIORITY
TO EDUCATION AND ENSURE THAT TEACHING WELL ATTRACT AND
RETAIN ITS RIGHTFUL SHARE OF
THE BEST AVAILABLE TALENTS THROUGH ADEQUATE REMUNERATION
AND OTHER MEANS OF JOB
SATISFACTION AND FULFILLMENT.
Q. Whose academic freedom is protected by the Constitution?
A. The generalized statement in Section 5(3) recognizes that academic
freedom belongs to various elements in an institution of higher learning
— to the institution itself, to faculty, and to students.
Sec. 5 ART. XIV - EDUCATION, SCIENCE AND TECHNOLOGY, 517
ARTS, CULTURE, AND SPORTS EDUCATION
Education
Q. What is academic freedom?
A. The Constitution does not freeze the meaning of academic freedom and
thereby allows it to develop through jurisprudence.
Applied to faculty, however, by far the most authoritative
definition which is accepted by most of the educational world is the
1940 Statement of Principles of the American Association of University
Professors (AAUP). It asserts in part that academic freedom means that:
"(a) The teacher is entitled to full freedom in research and in the
publication of the results, subject to the adequate performance of his
other academic duties ... (b) The teacher is entitled to freedom in the
classroom in discussing his subject, but he should be careful not to
introduce into his teaching controversial matter which has no relation to
his subject. . . (c) The college or university teacher is a citizen, a member
of a learned profession, and an officer in an educational institution.
When he speaks or writes as a citizen, he should be free from
institutional censorship or discipline, but his special position in the
community imposes special obligations. As a man of learning and an
educational officer, he should remember that the public may judge his
profession and his institution by his utterances. Hence, he should at all
times be accurate, should exercise appropriate restraint, should show
respect for the opinions of others, and should make every effort to
indicate that he is not an institutional spokesman."
Applied to institutions of higher learning, the Supreme Court said
in Garcia v. Faculty Admissions Committee, 68 SCRA 277 (November
28,1975):
Justice Frankfurter, with his extensive background in legal
education as a former Professor of the Harvard Law School,
referred to what he called the business of a university and the
four essential freedoms in the following language: "It is the business
of a university to provide that atmosphere which is most
conducive to speculation, experiment and creation. It is an atmosphere
in which there prevail 'the four essential freedoms' of a
university — to determine for itself on academic grounds who
may teach, what may be taught, how it shall be taught, and who
may be admitted to study."...
As to the academic freedom of students, who admittedly are
primarily on the learning end of education, academic freedom has been
seen in jurisprudence mainly as the right to
518 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
enjoy in school the guarantees of the Bill of Rights. See cases under
Article III, Section 4.
Q. Upon discovery that the doctoral dissertation of petitioner was plagiarized,
the University of the Philippines withdrew the doctoral degree already
granted. Justifiable?
A. Yes. If an academic institution has the right to decide who can study, it also
has the right to determine who may be granted degrees. Where the
degree was obtained by fraud, the school has the right to withdraw it.
UP Board of Regents v. Court of Appeals, G.R. No. 134829, August
31,1999.
NOTE: Academic freedom grants the University the exclusive
discretion to determine to whom among its graduates it shall confer
academic recognition, based on its established standards. And the
courts may not interfere with such exercise of discretion unless there is
a clear showing that the University has arbitrarily and capriciously
exercised its judgment. Unlike the UP Board of Regents that has the
competence and expertise in granting honors to graduating students of
the University, courts do not have the competence to constitute
themselves as an Honor's Committee and substitute their judgment for
that of the University officials. Morales v. Board of Regents, G.R. No.
161172, December 13,2004.
Q. Students published a short story and poems in the school newspaper
which the school considered obscene and sexually explicit. They were
either suspended or dismissed from school. The students argued that
under R.A. 7079 a student cannot be penalized solely because of an
article written in a student publication and under DECS Order No. 94, s.
1992, the regional office of DECS has exclusive original jurisdiction over
cases involving school publications. They therefore challenge the
validity of the disciplinary action. Decide.
A. The school has, under academic freedom, the right to decide what to
teach, how to teach and whom to teach. Included in these is the right to
discipline. Section 3(2) imposes on schools the duty to develop
discipline in students. The freedom to admit includes the freedom to
exclude. Free speech of students is not absolute. Speech may be
disciplined if it materially disrupts class work or involves substantial
disorder or invasion of rights. The school has the right to consider the
action of the
Sec. 5 ART. XIV - EDUCATION, SCIENCE AND TECHNOLOGY, 519
ARTS, CULTURE, AND SPORTS EDUCATION
Education
students as substantial disorder. Miriam College Foundation v. Court of
Appeals, G.R. No. 127930, December 15, 2000.
Q. May an institution of higher learning be compelled to
accept a person demanding admission into its degree program?
A. No. Section 5 (2) guarantees the academic freedom of
institutions of higher learning. This freedom includes the right of
the school to determine the qualifications of the applicants who
may be admitted. Garcia v. Faculty Admissions Committee, 68
SCRA 277 (November 28, 1975). Similarly, a school may refuse
admission to a student for academic reasons. Tangonon v. Pano,
137 SCRA 245 (June 27,1985).
Q. Montemayor was a full-time professor. Charged with
immoral advances he was investigated with the assistance of
counsel, and dismissed in accordance with the Manual of Policies
of the University. On appeal to the National Labor Relations Board
he was ordered reinstated. Should he be reinstated?
A. No. Removal was with due process. Montemayor v.
Araneta University, L-44251,31 May 1977 (77 SCRA 321).
NOTE: The Court later clarified that the Montemayor
decision did not find Montemayor guilty of immoral conduct. Its
sole import was that there was no violation of due process in the
labor proceeding but that it did not preclude Montemayor from
suing the University for damages. Araneta University v. Argel, G.R.
No. 48076, March 13,1980.
Later, on November 9, 1983, in a suit for damages filed
before the Regional Trial Court of Caloocan, Montemayor won a
judgment for damages against the University. The case later went
to the Intermediate Appellate Court and Montemayor won it
there on September 3,1985 and again on March 21,1986.
Thus ends Montemayor's struggle for vindication of his
honor.
NOTE: The Court found as unreasonable and arbitrary and
violative of the academic freedom of schools the rule of the
Professional Regulatory Commission which unduly restricts
reviewees from attending review classes, briefing conferences or
the like, and receiving any hand out, review material, etc.
Lupangco v. Court of Appeals, 160 SCRA 848 (1988).
NOTE: "It is an accepted principle that schools of learning
are given ample discretion to formulate rules and guidelines in the
granting of honors for purposes of graduation. This is part of
academic freedom. Within the parameters of these rules, it is
520 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 12
within the competence of universities and colleges to determine
who are entitled to the grant of honors among the graduating
students. Its discretion on this academic matter may not be
disturbed much less controlled by the courts unless there is grave
abuse of discretion in its exercise." University of San Carlos v. Court
of Appeals, 166 SCRA 570 (1988).
Q. The University of the Philippines, relying on its institutional
academic freedom, closed its Baguio High School. The UP Baguio
College Foundation, relying on the right of access to free and quality
secondary education, challenged this action. Decide.
A, UP was set up as a tertiary educational institution. It set up the
High School as an incident to its tertiary function. If UP now believes
that the UP High School is no longer serving its tertiary duties, then in
the exercise of its institutional academic freedom it may discontinue the
high school. University of the Philippines v. Judge Ayson, G.R. No. 88386,
August 17,1989.
Q. The Board of Regents of the University of the Philippines (UP)
issued a resolution ordering the UP College of Medicine Faculty
(UPCMF) to admit students who had not reached the UPCMFprescribed
90% NMAT score. UPCMF refused to comply, alleging that
their academic freedom had been violated.
A. No. Their rights as university teachers remain unaffected. "The
individual faculty member has the freedom to pursue his studies in his
particular specialty and thereafter to make known or publish the result
of his endeavors without fear that retribution would be visited upon
him in the event that his conclusions are found distasteful or
objectionable to the powers that be, whether in the political, economic,
or academic establishments." (Citing Garcia v. The Faculty Admission
Committee, Loyola School of Theology, 68 SCRA 277 [1975]).
Furthermore, according to the UP Charter, the UPCMF has no authority
to set the standards of admission without approval from University
Council. Reyes v. Court of Appeals, G.R. No. 94961, 25 February 1991.
Q. DECS regulations prescribe a maximum of three year
probation period for teachers. What are the rights of the school under
such provision?
A. "The contention of respondents that upon termination of the
three-year probationary period the teacher automatically becomes
permanent is not quite correct. It must be conditioned on the
compliance with the third requisite that the services of said teacher
during the probationary period was satisfactory.
"The employer is the one who is to set the standards and
determine whether or not the services of an employee are satisfactory.
Sees. 6-7 ART. XIV - EDUCATION, SCIENCE AND TECHNOLOGY, 521
ARTS, CULTURE, AND SPORTS EDUCATION
Language
It is the prerogative of an employer to determine whether or not the
said standards have been complied with. In fact, it is the right of the
employer to shorten the probationary period if he is impressed with the
services of the employee.
"The prerogative of a school to provide standards for its teachers
and to determine whether or not these standards have been met is in
accordance with academic freedom and constitutional autonomy which
give educational institutions the right to choose who should teach."
Cagayan Capitol College and Laureana Resales v. National Labor
Commission, G.R. No. 90010-11, September 14,1990.
Q. What rule governs revenue raising measures of schools?
A. Revenue measures can be part of the contract with students. In
the present case, however, the school imposed the assailed
revenue-raising measure belatedly, in the middle of the semester. It
exacted the dance party fee as a condition for the students' taking the
final examinations, and ultimately for its recognition of their ability to
finish a course. The fee, however, was not part of the school-student
contract entered into at the start of the school year. Hence, it could not
be unilaterally imposed to the prejudice of the enrollees. Regino v.
Pangasinan College of Technology, G.R. No. 156109, November 18,
2004.
Q. Does the command that Congress give "highest priority to
education" mean that all else must yield to it?
A. No. The provision does not mean that "the hands of Congress
are so hamstrung as to deprive it of the power to respond to the
imperatives of the national interest and for the attainment of other
state policies or objectives," in this case, automatic reappropriation for
servicing foreign debts. Guingona, Jr. v. Carague, G.R. No. 9457, April
22,1991.
LANGUAGE
SEC. 6. THE NATIONAL LANGUAGE OF THE PHILIPPINES IS FILIPINO.
AS IT EVOLVES, IT SHALL BE FURTHER DEVELOPED AND ENRICHED ON
THE
BASIS OF EXISTING PHILIPPINE AND OTHER LANGUAGES.
SUBJECT TO PROVISIONS OF LAW AND AS THE CONGRESS MAY DEEM
APPROPRIATE, THE GOVERNMENT SHALL TAKE STEPS TO INITIATE AND
SUSTAIN THE USE OF FlLIPINO AS A MEDIUM OF OFFICIAL
COMMUNICATION AND AS LANGUAGE OF INSTRUCTION IN THE
EDUCATIONAL SYSTEM.
SEC. 7. FOR PURPOSES OF COMMUNICATION AND INSTRUCTION, THE
OFFICIAL LANGUAGES OF THE PHILIPPINES ARE FlLIPINO AND, UNTIL
OTHERWISE PROVIDED BY LAW, ENGLISH.
522 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-16
THE REGIONAL LANGUAGES ARE THE AUXILIARY OFFICIAL LANGUAGES
IN THE REGIONS AND SHALL SERVE AS AUXILIARY MEDIA OF
INSTRUCTION
THEREIN.
SPANISH AND ARABIC SHALL BE PROMOTED ON A VOLUNTARY AND
OPTIONAL BASIS.
Q. Define "Filipino;" "national language."
A. "Filipino" is a language consisting of a fusion of the various existing
Philipipine languages. The advocates of this provision contended that
this language already exists and is currently the lingua franca.
By "national language" is meant that language which is symbolic
of the Filipino nation and expressive of the Filipino soul. If indeed Filipino
exists now, the examples given on the floor of the Constitutional
Commission were so inelegant and embryonic as not to merit the
description "expressive of the Filipino soul."
Q. Define "Pilipino;" "official language."
A. "Pilipino" is the puristic form of Tagalog or the Abakada Taga- log evolved
by the Institute of National Language. It is an existing language and is
actually in use but merits no mention in the 1987 Constitution.
"Official language" means the prescribed medium of
communication for all official acts of or transactions with the various
departments and agencies of the government. Section 7 designates
Filipino and English as official languages. Moreover, by Presidential
Decree No. 155, Spanish "shall continue to be recognized as an official
language in the Philippines while important documents in government
files are in the Spanish language and not translated into either English or
Pilipino language."
Q. What has happened to Spanish? Arabic?
A. The State now is encouraged to promote them as voluntary and optional
languages. From this it may be concluded that the State may not
indiscriminately require them for all degree purposes. But schools, in
the exercise of academic freedom, may continue to require them for
certain major concentrations. The two languages have been singled out
because of their historic
Sees. 9-13 ART. XIV - EDUCATION, SCIENCE AND TECHNOLOGY, 523
ARTS, CULTURE, AND SPORTS EDUCATION
Science and Technology
value, their world importance, and the country's links with both Spanish
and Arabic cultures.
SEC. 8. THIS CONSTITUTION SHALL BE PROMULGATED IN FILIPINO AND
ENGLISH AND
SHALL BE TRANSLATED INTO MAJOR REGIONAL LANGUAGES, ARABIC,
AND SPANISH.
Q. In case of conflict in meaning among the different language texts, which
shall prevail?
A. The Constitution does not prescribe the answer to this question, but logic
would dictate that English, the language in which the document was
predominantly discussed and originally drafted, should prevail.
SEC. 9. THE CONGRESS SHALL ESTABLISH A NATIONAL LANGUAGE
COMMISSION COMPOSED OF REPRESENTATIVES OF VARIOUS REGIONS
AND DISCIPLINES WHICH
SHALL UNDERTAKE, COORDINATE, AND PROMOTE RESEARCHES FOR
THE DEVELOPMENT,
PROPAGATION, AND PRESERVATION
OF FILIPINO AND OTHER LANGUAGES.
SCIENCE AND TECHNOLOGY SEC. 10. SCIENCE AND TECHNOLOGY
ARE ESSENTIAL FOR NATIONAL
DEVELOPMENT AND PROGRESS. THE STATE SHALL GIVE PRIORITY TO
RESEARCH AND
DEVELOPMENT, INVENTION, INNOVATION, AND THEIR UTILIZATION; AND
TO SCIENCE AND
TECHNOLOGY EDUCATION, TRAINING, AND SERVICES. IT SHALL SUPPORT
INDIGENOUS,
APPROPRIATE, AND SELF-RELIANT SCIENTIFIC AND TECHNOLOGICAL
CAPABILITIES, AND THEIR
APPLICATION TO THE COUNTRY'S PRODUCTIVE SYSTEMS AND NATIONAL
LIFE.
SEC. 11. THE CONGRESS MAY PROVIDE FOR INCENTIVES, INCLUDING
TAX DEDUCTIONS, TO ENCOURAGE PRIVATE PARTICIPATION IN
PROGRAMS OF BASIC AND APPLIED
SCIENTIFIC RESEARCH. SCHOLARSHIPS, GRANTS-IN-AID, OR OTHER
FORMS OF INCENTIVES SHALL BE
PROVIDED DESERVING SCIENCE STUDENTS, RESEARCHERS,
SCIENTISTS, INVENTORS,
TECHNOLOGISTS, AND SPECIALLY GIFTED CITIZENS.
SEC. 12. THE STATE SHALL REGULATE THE TRANSFER AND PROMOTE
THE ADAPTATION OF TECHNOLOGY FROM ALL SOURCES FOR THE
NATIONAL BENEFIT. IT SHALL
ENCOURAGE THE WIDEST PARTICIPATION OF PRIVATE GROUPS, LOCAL
GOVERNMENTS, AND
COMMUNITY-BASED ORGANIZATIONS IN THE GENERATION AND
UTILIZATION OF SCIENCE AND
TECHNOLOGY.
SEC. 13. THE STATE SHALL PROTECT AND SECURE THE EXCLUSIVE
RIGHTS OF SCIENTISTS, INVENTORS, ARTISTS, AND OTHER GIFTED
CITIZENS
524 THE 1987 PHILIPPINE CONSTITUTION:
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Sees. 12-16
TO THEIR INTELLECTUAL PROPERTY AND CREATIONS, PARTICULARLY
WHEN BENEFICIAL TO THE
PEOPLE, FOR SUCH PERIOD AS MAY BE PROVIDED BY LAW.
ARTS AND CULTURE SEC. 14. THE STATE SHALL FOSTER THE
PRESERVATION, ENRICHMENT
AND DYNAMIC EVOLUTION OF A FLLIPINO NATIONAL CULTURE BASED ON
THE PRINCIPLE OF UNITY
IN DIVERSITY IN A CLIMATE OF FREE ARTISTIC AND INTELLECTUAL
EXPRESSION.
SEC. 15. ARTS AND LETTERS SHALL ENJOY THE PATRONAGE OF THE
STATE. THE STATE
SHALL CONSERVE, PROMOTE, AND POPULARIZE THE NATION'S
HISTORICAL AND CULTURAL
HERITAGE AND RESOURCES, AS WELL AS ARTISTIC CREATIONS.
SEC. 16. ALL THE COUNTRY'S ARTISTIC AND HISTORIC WEALTH
CONSTITUTES THE CULTURAL
TREASURE OF THE NATION AND SHALL BE
UNDER THE PROTECTION OF THE STATE WHICH MAY REGULATE ITS
DISPOSITION.
SEC. 17. THE STATE SHALL RECOGNIZE, RESPECT, AND PROTECT
THE RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES TO PRESERVE
AND DEVELOP THEIR
CULTURES, TRADITIONS, AND INSTITUTIONS. IT SHALL CONSIDER THESE
RIGHTS IN THE
FORMULATION OF NATIONAL PLANS AND POLICIES.
SEC. 18. (1) THE STATE SHALL ENSURE EQUAL ACCESS TO CULTURAL
OPPORTUNITIES THROUGH THE EDUCATIONAL SYSTEM, PUBLIC OR
PRIVATE CULTURAL ENTITIES,
SCHOLARSHIPS, GRANTS AND OTHER INCENTIVES, AND COMMUNITY
CULTURAL CENTERS, AND
OTHER PUBLIC VENUES.
(2) THE STATE SHALL ENCOURAGE AND SUPPORT RESEARCHES AND
STUDIES ON THE ARTS AND CULTURE.
SPORTS
SEC. 19. (1) THE STATE SHALL PROMOTE PHYSICAL EDUCATION AND
ENCOURAGE SPORTS PROGRAMS, LEAGUE COMPETITIONS, AND
AMATEUR SPORTS, INCLUDING
TRAINING FOR INTERNATIONAL COMPETITIONS, TO FOSTER SELF-
DISCIPLINE, TEAMWORK, AND
EXCELLENCE FOR THE DEVELOPMENT OF A HEALTHY AND ALERT
CITIZENRY.
(2) ALL EDUCATIONAL INSTITUTIONS SHALL UNDERTAKE REGULAR
SPORTS ACTIVITIES THROUGHOUT THE COUNTRY IN COOPERATION WITH
ATHLETIC CLUBS AND
OTHER SECTORS.
ARTICLE XVII
THE FAMILY
SECTION 1. THE STATE RECOGNIZES THE FILIPINO FAMILY AS THE
FOUNDATION OF THE NATION. ACCORDINGLY, IT SHALL STRENGTHEN ITS
SOLIDARITY AND ACTIVELY PROMOTE ITS TOTAL DEVELOPMENT.
Q. Why a separate Article on the family?
A. The reason is to emphasize the importance of the family. See also Article II,
Section 12.
SEC. 2. MARRIAGE, AS AN INVIOLABLE SOCIAL INSTITUTION, IS THE
FOUNDATION OF THE FAMILY AND SHALL BE PROTECTED BY THE STATE.
Q. Is this an absolute prohibition of divorce?
A. No.
Q. Who determines the manner of protecting marriage?
A. The Constitution does not establish the parameters of state protection to
marriage as a social institution and the foundation of the family. It
remains the province of the legislature to define all legal aspects of
marriage and prescribe the strategy and the modalities to protect it.
Antonio v. Reyes, G.R. No. 155800, March 10, 2006.
It is the policy of our Constitution to protect and strengthen the
family as the basic autonomous social institution, and marriage as the
foundation of the family. The Constitution decrees marriage as legally
inviolable and protects it from dissolution at the whim of the parties.
The Family Code under Article 48 therefore requires courts to order the
prosecuting attorney or fiscal assigned, in cases of annulment or declara
525
526 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 12
tion of absolute nullity of marriage, to appear on behalf of the State in
order to take steps to prevent collusion between the parties and to take
care that the evidence is not fabricated or suppressed. Indeed, only the
active participation of the Public Prosecutor or the Office of the Solicitor
General (OSG) will ensure that the interest of the State is represented
and protected in proceedings for annulment and declarations of nullity
of marriage by preventing collusion between the parties, or the
fabrication or suppression of evidence.
While the guidelines in Molina requiring the OSG to issue a
certification on whether or not it is agreeing or objecting to the petition
for annulment has been dispensed with by A.M. No. 02-11-10-SC or the
Rule on the Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages, still, Article 48 mandates the
appearance and active participation of the State through the fiscal or
the prosecuting attorney. Navales v. Navales, G.R. No. 167523, June 27,
2008.
Q. What is the policy of the Constitution regarding annulment of marriage?
A. The constitutional policy is for the protection and strengthening of the
family as the basic autonomous social institution. It recognizes marriage
as the foundation of the family. (Art. II, Sec. 12, Art. XV, Sees. 1-2) Thus,
any doubt should be resolved in favor of the validity of the marriage.
Republic v. Dagdag, G.R. No. 109975, February 9,2001; Malcampo-Sin v.
Sin, G.R. No. 137590, March 26, 2001; Republic v. Quintero-Hamano,
G.R. No. 149498, May 20,2004.
SEC. 3. THE STATE SHALL DEFEND:
(1) THE RIGHT OF SPOUSES TO FOUND A FAMILY IN ACCORDANCE
WITH THEIR RELIGIOUS CONVICTIONS AND THE DEMANDS OF
RESPONSIBLE
PARENTHOOD;
(2) THE RIGHT OF CHILDREN TO ASSISTANCE, INCLUDING PROPER
CARE AND NUTRITION, AND SPECIAL PROTECTION FROM ALL FORMS OF
NEGLECT, ABUSE,
CRUELTY, EXPLOITATION, AND OTHER CONDITIONS PREJUDICIAL TO
THEIR DEVELOPMENT;
(3) THE RIGHT OF THE FAMILY TO A FAMILY LIVING WAGE AND
INCOME,
Sec. 4 ART. XV - THE FAMILY 527
(4) THE RIGHT OF FAMILIES OR FAMILY ASSOCIATIONS TO PARTICIPATE
IN THE PLANNING
AND IMPLEMENTATION OF POLICIES AND PROGRAMS THAT AFFECT
THEM.
Q. May the State dictate the family size? A. Such dictation
can run counter to Section 3(1).
SEC. 4. THE FAMILY HAS THE DUTY TO CARE FOR ITS ELDERLY
MEMBERS BUT THE STATE MAY ALSO DO SO THROUGH JUST PROGRAMS
OF SOCIAL SECURITY.
ARTICLE XVII
GENERAL PROVISIONS
SECTION 1. THE FLAG OF THE PHILIPPINES SHALL BE RED, WHITE,
AND BLUE, WITH A SUN AND THREE STARS, AS CONSECRATED AND
HONORED BY THE PEOPLE AND
RECOGNIZED BY LAW.
Q. How may the design of the Philippine flag be changed? A. By
constitutional amendment.
SEC. 2. THE CONGRESS MAY, BY LAW, ADOPT A NEW NAME FOR
THE COUNTRY, A NATIONAL ANTHEM, OR A NATIONAL SEAL, WHICH
SHALL ALL BE TRULY
REFLECTIVE AND SYMBOLIC OF THE IDEALS, HISTORY, AND TRADITIONS
OF THE PEOPLE. SUCH LAW
SHALL TAKE EFFECT ONLY UPON ITS RATIFICATION BY THE PEOPLE IN A
NATIONAL REFERENDUM.
SEC. 3. THE STATE MAY NOT BE SUED WITHOUT ITS CONSENT.
Q. What is the reason for the rule found in Section 3?
A. Santos v. Santos, 92 Phil. 281, 283 (1952) based the principle on "the
juridical and practical notion that the state can do no wrong," which is a
restatement of the expression "the King can do no wrong."
Philippine jurisprudence has also accepted Holmes' dictum to the
effect that a "sovereign is exempt from suit, not because of any formal
conception or obsolete theory, but on the logical and practical ground
that there can be no legal right as against the authority that makes the
law on which the right depends." Kawananakoa v. Polyblank, 205 U.S.
349, 353 (1907).
Metran v. Paredes, 79 Phil. 819, 826-827 (1948) offered the
following justification which one may take or leave:
528
Sees. 15-16 ART. XVIII - TRANSITORY PROVISIONS 529
In a republican state, like the Philippines, government
immunity from suit without its consent is derived from the will of
the people themselves in freely creating a government "of the
people, by the people, and for the people" — a representative
government through which they have agreed to exercise the
powers and discharge the duties of their sovereignty for the
common good and general welfare. In so agreeing, the citizens
have solemnly undertaken to surrender some of their private
rights and interests which were calculated to conflict with the
higher rights and larger interests of the people as a whole,
represented by the government thus established by them all. One
of those "higher rights," based upon those "larger interests" is that
of governmental immunity. The members of the respondent
Labor Union themselves are part of the people who have freely
formed that government and participated in that solemn
undertaking. In this sense-and a very real one it is-they are in
effect attempting to sue themselves along with the rest of the
people represented by their common government-an anomalous
and absurd situation indeed.
In the end, perhaps, the most acceptable explanation of the
principle is a practical one. As the supreme Court said in Providence
Washington Insurance Co. v. Republic of the Philippines, 29 SCRA
598,601-602 (1969):
[A] continued adherence to the doctrine of non-suability is
not to be deplored for as against the inconvenience that may be
caused private parties, the loss of governmental efficiency and the
obstacle to the performance of its multifarious functions are far
greater if such a fundamental principle were abandoned and the
availability of judicial remedy were not thus restricted. With the
well known propensity on the part of our people to go to court, at
the least provocation, the loss of time and energy required to
defend against law suits, in the absence of such a basic principle
that constitutes such an effective obstacle, could very well be
imagined.
Q. Does Shell's service contract with the state give it immunity from suit?
A. No. Shell is not an agent of the Republic of the Philippines. It is but a service
contractor for the exploration and development of one of the country's
natural gas reserves. An agent is a person who binds himself to render
some service or to do something in representation or on behalf of
another, with the consent or authority of the latter. Shell's obligation
under the contract is not to represent the Philippine government for the
purpose of transacting business with third persons. Rather, its
contractual
530 THE 1987 PHILIPPINE CONSTITUTION:
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Sees. 12-16
commitment is to develop and manage petroleum operations on
behalf of the State. Shell Philippines v. Jalos, G.R. No. 179918,
September 8, 2010.
Q. When is a suit one against the State?
A. A suit is against the state in the following instances:
(1) When the Republic is sued by name;
(2) When the suit is against an unincorporated government agency;
(3) When the suit is on its face against a government officer but the
case is such that ultimate liability will belong not to the officer but
to the government.
In all the above instances, suability depends on whether the State
has consented to be sued.
Q. Feliciano was holding property title to which was evidenced by
an informaeion posesoria. Proclamation No. 90 of President Magsaysay
included it among properties for subdivision and distribution. Feliciano
sued the Republic, represented by the Land Authority, to recover
possession of the land. The state pleaded immunity from suit. Decide.
A. The suit is against the State. However, informaeion posesoria
had not been shown to have been converted into a record of
ownership. It is nothing more than prima facie evidence of possession.
Feliciano must first sue to prove title. Republic v. Feliciano, 148 SCRA 424
(1987).
Q. The Solicitor General, sued for damages under Article 32 of the
Civil Code arising from filing of an alleged harassment suit with malice
and evident bad faith, claims immunity under Section 1, E. O. 14.
Decide.
A. The general rule is that public officials can be held personally
accountable for acts performed in connection with official duties where
they have acted ultra vires or where there is a showing of bad faith.
Where the petitioner exceeds his authority as Solicitor General, acts in
bad faith, or, as contended by private respondent 'maliciously conspires
with the PCGG commissioners in persecuting respondent Enrile by filing
against him an evidently baseless suit in derogation of the tatter's
constitutional rights and liberties', there can be no question that a
complaint for damages may be filed against him. High position in
government does not confer a license to persecute or recklessly injure
another. Chavez v. Sandiganbayan, G.R. No. 91391, 24 January 1991.
Sees. 1-3 ART. XVI - GENERAL PROVISIONS 531
Q. Petitioners, the Acting Commissioner of Customs and the Chief
of Customs Intelligence and Investigation Division, withheld release of
shipment to Solmac Marketing Corporation, as the shipment was
prohibited by law. The Regional Trial Court ordered the return of the
shipment, and the Court of Appeals adjudged damages in favor of
Solmac. Can petitioners be held liable for damages?
A. No. The presumptions of good faith and of regularity of official
actions have not been overturned. Farolan v. Solmac Marketing
Corporation, G.R. No. 83589, March 13,1991.
Q. A dump truck of the Municipality of San Fernando, La Union,
while on its way to get sand and gravel for the repair of San Fernando's
municipal streets, collided with a passenger jeepney, resulting in the
death and physical injuries to several passengers. In the complaint for
damages, the driver of the dump truck and the Municipality were
impleaded. The Municipality contended that it could not be held liable.
Correct?
A. Yes. "[T]he test of liability of the municipality depends on
whether or not the driver, acting in behalf of the municipality, is
performing governmental or proprietary functions. . . We already
stressed in the case of Palafox, et al. v. Province of Ilocos Norte, the
District Engineer, and the Provincial Treasurer (102 Phil 1186) that 'the
construction or maintenance of roads in which the truck and the driver
worked at the time of the accident are admittedly governmental
activities.'" Therefore, the Municipality cannot be held liable.
Municipality of San Fernando, La Union v. Hon. Judge Firme, G.R. No.
52179, April 8,1991.
Q. How is consent to be sued given by the State?
A. Either expressly or impliedly.
There is express consent when there is a law expressly granting
authority to sue the State or any of its agencies.
There is implied consent:
(1) When the state enters into a private contract, unless the
contract is merely incidental to the performance of a governmental
function. Santos v. Santos, 92 Phil. 281 (1952); Syquia v. Almeda-Lopez,
84 Phil. 312 (1949).
(2) When the state enters into an operation that is essentially a
business operation, unless the business operation is merely incidental to
the performance of a governmental function, as for instance, arrastre
service. Mobil Philippines v. Customs Arrastre Service, 18 SCRA 1120
(1966).
532 THE 1987 PHILIPPINE CONSTITUTION:
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Sees. 17-22
(3) When the state sues a private party, unless the suit is entered
into only to resist a claim. Froilan v. Pan Oriental Shipping, 95 Phil. 905
(1954); Lim v. Brownell, 107 Phil. 344 (1960).
Q. PHILROCK sued the Board of Liquidators, successor of the
Reparation Commissions, for recovery of money in connection with the
sale of a machine to PHILROCK made by the Reparation Commissions.
Having won the case in the lower court, PHILROCK seeks to garnish
money in the PNB account of the Board of Liquidators. May the money
be garnished?
A. The Reparation Commission, a government agency with no
juridical personality, enjoyed the government's immunity from suit. The
sale contract it entered into with PHILROCK was merely incidental to the
performance of its governmental function. Hence it was not a waiver of
immunity. Moreover* even if REPACOM is deemed to have waived its
immunity by entertaining the suit of PHILROCK, government's consent
to be sued does not mean it concedes liability. Without an act of
Congress appropriating the amount due, there can be no disbursement
of public fond. PHILROCK v. Board of Liquidators, G.R. No. 84992,
December 15,1989.
Q. Traders Royal Bank extended a loan to the National Media
Production Center, an unincorporated government instrumentality
tasked with the function of disseminating government information. The
money was for the purpose of facilitating the broadcast of a basketball
season. When the bank tried to collect, the NMPC pleaded immunity
from suit. Decide.
A. Immunity from suit may be waived by implied consent to be
sued as when the state enters into a contract that is proprietary in
character. The evidence is that such is the contract here. Hence,
immunity was effectively waived. Traders Royal Bank v. Intermediate
Appellate Court, G.R. No. 68514, December 17,1990.
Q. May a counterclaim be entertained against the PCGG if it
claims the state's immunity from suit?
A. Yes. The immunity of the PCGG cannot be more than that of
the state against whom a counterclaim may be entertained. Republic
(PCGG) v. Sandiganbayan, G.R. No. 90478, November 21, 1991.
Q. When the State is declared liable in a suit to which it has consented, does
execution follow as a matter of course?
A. Justice Teehankee laid down the doctrine thus in Commissioner of Public
Highways v. San Diego, 31 SCRA 616,625 (1970):
Sees. 1-3 ART. XVI - GENERAL PROVISIONS 533
The universal rule that where the State gives its consent to
be sued by private parties either by general or special law, it may
limit claimant's action "only up to the completion of proceedings
anterior to the state of execution" and that the power of the
Courts ends when the judgment is rendered, since government
funds and properties may not be seized under writs of execution
or garnishment to satisfy such judgments, is based on obvious
considerations of public policy. Disbursements of public funds
must be covered by the corresponding appropriation as required
by law. The functions and public services rendered by the State
cannot be allowed to be paralyzed or disrupted by the diversion of
public funds from their legitimate and specific objects, as
appropriated by law.
Q. What is the rule on money claims against the State?
A. This is covered by a general consent to be sued found in Commonwealth
Act No. 327 which reads in part:
Sec. 1. In all cases involving the settlement of accounts or
claims, other than those of accountable officers, the Auditor
General [now COA] shall act and decide the same within 60 days,
exclusive of Sundays and holidays after their presentation. [If
accountable officers, 100 days is the limit.]
Thereafter, where proper, certiorari under Rule 65, may follow.
Q. What recourse is there for a private person whose property has been taken
for the State by an unauthorized act of a public officer?
A. If the property can still be restored, the suit for restoration and damages
must be against the officer in his private capacity Festejo v. Fernando, 94
Phil. 504 (1954).
If the property can no longer be restored and is in fact being
enjoyed by the State, then the State must be deemed to have submitted
to the jurisdiction of the court for purposes of fixing the just
compensation. Ministerio v. Court of First Instance, 40 SCRA 464 (1971).
Q. When is a suit against a public official a suit against the state?
A. The rule is that the suit must be regarded as one against the state where
satisfaction of the judgment against the public official concerned will
require the state itself to perform a positive act, such as appropriation of
the amount necessary to
534 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 17-22
pay the damages awarded to the plaintiff. The rule does not apply
where the public official is charged in his official capacity for acts that are
unlawful and injurious to the rights of others. Public officials are not
exempt, in their personal capacity, from liability arising from acts
committed in bad faith. 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. Lansang v. Court of Appeals, G.R. No. 102667,
February 23, 2000.
Q. Petitioner is suing for the payment of construction work done for the
government's low cost housing program. The suit was based on an
implied contract and the suit was for more than five million pesos.
Because of some technical difficulties, however, the implied contract
was deemed void. But the construction was done and money was
available. Nevertheless the state pleaded immunity from suit. Decide.
A. "Although this Court agrees with respondent's postulation that the 'implied
contracts,' which covered the additional constructions, are void, in view
of violation of applicable laws, auditing rules and lack of legal
requirements, we nonetheless find the instant petition laden with merit
and uphold, in the interest of substantial justice, petitioners-contractors'
right to be compensated for the 'additional constructions; on the public
works housing project, applying the principle of quantum meruit. Nor
may the state rely on immunity from suit. The 'doctrine of governmental
immunity from suit cannot serve as an instrument for
perpetrating an injustice on a citizen." It is just as important, if not more
so, that there be fidelity to legal norms on the part of officialdom if the
rule of law were to be maintained. EPG Construction v. Vigilar, G.R. No.
131544, March 16,2001.
Q. Does the immunity found in Section 3 also apply to foreign States?
A. Yes. Immunity of states from suit is also a rule in international law.
Thus, the mere entering into a contract by a foreign State with a
private party cannot be construed as the ultimate test of whether or
not it is an act jure imperii or jure gestionis. Such act is only the start of
the inquiry. Is the foreign State engaged in the regular conduct of a
business? If the foreign State is not
Sees. 1-3 ART. XVI - GENERAL PROVISIONS 535
engaged regularly in a business or commercial activity, and in this case it
has not been shown to be so engaged, the particular act or transaction
must then be tested by its nature. If the act is in pursuit of a sovereign
activity, or an incident thereof, then it is an act jure imperii.
Hence, the existence alone, of a paragraph in a contract stating
that any legal action arising out of the agreement shall be settled
according to the laws of the Philippines and by a specified court of the
Philippines is not necessarily a waiver of sovereign immunity from suit.
The aforesaid provision contains language not necessarily inconsistent
with sovereign immunity. On the other hand, such provision may also
be meant to apply where the sovereign party elects to sue in the local
courts, or otherwise waives its immunity by any subsequent act. The
applicability of Philippine laws must be deemed to include Philippine
laws in its totality, including the principle recognizing sovereign
immunity. Hence, the proper court may have no proper action, by way
of settling the case, except to dismiss it.
Submission by a foreign state to local jurisdiction must be clear
and unequivocal. It must be given explicitly or by necessary implication.
We find no such waiver in this case. Republic of Indonesia v. Vinzon, G.R.
No. 154705, June 26, 2003.
Q. Genove is cook of the Main Club in John Hay Air Station. For
having poured urine in the soup, Genove was dismissed. He thereafter
sued the manager for damages. The United States intervened
interposing immunity from suit. Decide.
A. The circumstances of the case clearly show that the Main Club
was operated as a commercial enterprise. The defense of immunity
therefore is improper. (But the Court nonetheless ordered the dismissal
of the suit because of the strength of the evidence of guilt against
Genove.) United States v. Judge Rodrigo, G.R. No. 79470, February
26,1990.
Q. Detwiler and Persi are officers of the United States government
stationed in Clark Air Base. They are sued for damages by Shauf for
discrimination against her in hiring. Detwiler and Persi plead state
immunity of the United States from suit. Decide.
A. One test for determining whether a suit is one against the state
is whether liability will fall on the state or not. In this case Detwiler and
Persi are being sued for illegal acts for which they will be held personally
liable if found guilty. Hence, the defense of immunity
536 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-16
is not proper. Shaufv. Court of Appeals, G.R. No. 90314, November
27,1990.
SEC. 4. THE ARMED FORCES OF THE PHILIPPINES SHALL BE COMPOSED
OF A CITIZEN
ARMED FORCE WHICH SHALL UNDERGO MILITARY TRAINING AND SERVE
AS MAY BE PROVIDED BY
LAW. IT SHALL KEEP A REGULAR FORCE NECESSARY FOR THE SECURITY
OF THE STATE.
SEC. 5. (1) ALL MEMBERS OF THE ARMED FORCES SHALL TAKE AN
OATH OR AFFIRMATION TO UPHOLD AND DEFEND CONSTITUTION.
(2) THE STATE SHALL STRENGTHEN THE PATRIOTIC SPIRIT AND
NATIONALIST CONSCIOUSNESS OF THE MILITARY, AND RESPECT FOR
PEOPLE'S RIGHTS IN THE
PERFORMANCE OF THEIR DUTY.
(3) PROFESSIONALISM IN THE ARMED FORCES AND ADEQUATE
REMUNERATION AND BENEFITS OF ITS MEMBERS SHALL BE A PRIME
CONCERN OF THE STATE. THE
ARMED FORCES SHALL BE INSULATED FROM PARTISAN POLITICS.
NO MEMBER OF THE MILITARY SHALL ENGAGE DIRECTLY OR INDIRECTLY
IN ANY PARTISAN
POLITICAL ACTIVITY, EXCEPT TO VOTE.
(4) NO MEMBER OF THE ARMED FORCES IN ACTIVE SERVICE SHALL, AT
ANY TIME, BE
APPOINTED OR DESIGNATED IN ANY CAPACITY TO A CIVILIAN POSITION
IN THE GOVERNMENT
INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS OR
ANY OF THEIR
SUBSIDIARIES.
(5) LAWS ON RETIREMENT OF MILITARY OFFICERS SHALL NOT
ALLOW EXTENSION OF THEIR SERVICE.
(6) THE OFFICERS AND MEN OF THE REGULAR FORCE OF THE ARMED
FORCES SHALL BE RECRUITED PROPORTIONATELY FROM ALL
PROVINCES AND CITIES AS FAR AS
PRACTICABLE.
(7) THE TOUR OF DUTY OF THE CHIEF OF STAFF OF THE ARMED
FORCES SHALL NOT EXCEED THREE YEARS. HOWEVER, IN TIMES OF
WAR OR OTHER NATIONAL
EMERGENCY DECLARED BY THE CONGRESS, THE
PRESIDENT MAY EXTEND SUCH TOUR OF DUTY.
Q. May the tour of duty of the Chief of Staff be shortened to less than three
years?
A. Yes.
Q. If a Chief of Staff reaches his compulsory retirement date before he
completes his three year tour of duty, may he be allowed to finish his
tour of duty beyond compulsory retirement date?
Sees. 15-16 ART. XVIII - TRANSITORY PROVISIONS 537
A. Yes. This is an allowable exception to the non-extendibility of
the service.
SEC. 6. THE STATE SHALL ESTABLISH AND MAINTAIN ONE POLICE
FORCE, WHICH SHALL BE NATIONAL IN SCOPE AND CIVILIAN IN
CHARACTER,
TO BE ADMINISTERED AND CONTROLLED BY A NATIONAL POLICE
COMMISSION.
THE AUTHORITY OF LOCAL EXECUTIVES OVER THE POLICE UNITS IN
THEIR
JURISDICTION SHALL BE PROVIDED BY LAW.
Q. What will happen to the Philippine Constabulary, which is
both police and military in character?
A. The intent of the provision is to gradually phase out the
Philippine Constabulary and to offer to members of the
Constabulary force the choice of either joining the regular
armed force or the civilian police force. (This has already been
effected.)
Q. Did R.A. 6975 abolish the Integrated National Police or INP?
A. No, what the law provided was for the "absorption," "transfer,"
and/or "merger" of the INP, as well as the other offices
comprising the PC-INP, with the PNP. Hence, they are not
excluded from availing themselves of the retirement benefits
accorded to PNP retirees under Sections 74 and 75 of R.A.
No. 6975, as amended by R.A. No. 8551. Department of Budget
v. Manila's Finest, GTR 169466, May 9, 2007.
Q. Does the Civil Service Commission have jurisdiction over the
PNP?
A. Section 6, Article XVI of the Constitution provides that the
State shall establish and maintain one police force which shall
be civilian in character. Consequently, the PNP falls under the
civil service pursuant to Section 2(1), Article IX-B. Mendoza v.
PNP, G.R. No. 139658, June 21,2005.
SEC. 7. THE STATE SHALL PROVIDE IMMEDIATE AND ADEQUATE
CARE, BENEFITS, AND OTHER FORMS OF ASSISTANCE TO WAR
VETERANS
AND VETERANS OF MILITARY CAMPAIGNS, THEIR SURVIVING SPOUSES
AND
ORPHANS. FUNDS SHALL BE PROVIDED THEREFOR AND DUE
CONSIDERATION
SHALL BE GIVEN THEM IN THE DISPOSITION OF AGRICULTURAL LANDS OF
THE PUBLIC DOMAIN AND, IN APPROPRIATE CASES, IN THE UTILIZATION
OF
NATURAL RESOURCES.
538 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-16
Q. Is Section 7 a command that veterans be given preferential consideration
in the disposition of agricultural lands of the public domain and in the
utilization of natural resources?
A. The word used is "due," not "preferential." The choice of words was
deliberate.
SEC. 8. THE STATE SHALL, FROM TIME TO TIME, REVIEW TO UPGRADE
THE PENSIONS AND OTHER BENEFITS DUE TO RETIREES OF BOTH THE
GOVERNMENT AND THE
PRIVATE SECTORS.
SEC. 9. THE STATE SHALL PROTECT CONSUMERS FROM TRADE
MALPRACTICES AND FROM SUBSTANDARD OR HAZARDOUS PRODUCTS.
SEC. 10. THE STATE SHALL PROVIDE THE POLICY ENVIRONMENT FOR
THE FULL DEVELOPMENT OF FLLIPINO CAPABILITY AND THE EMERGENCE
OF COMMUNICATION
STRUCTURES SUITABLE TO THE NEEDS AND ASPIRATIONS OF THE
NATION AND THE BALANCED
FLOW OF INFORMATION INTO, OUT OF, AND ACROSS THE COUNTRY, IN
ACCORDANCE WITH A
POLICY THAT RESPECTS THE FREEDOM OF SPEECH AND OF THE PRESS.
NOTE: "The interconnection which has been required of PLDT is a
form of 'intervention' with property rights dictated by 'the objective of
government to promote the rapid expansion of telecommunications
services in all areas of the Philippines . . .to ensured that all users of the
public telecommunications service have access to all other users of the
service wherever they may be within the Philippines at an acceptable
standard of service at reasonable cost.'...
"The decisive considerations are public need, public interest, and
the common good.... A modern and dependable communications
network rendering efficient and reasonably priced services is also
indispensable for accelerated economic recovery and development, to
these pubic and national interests, public utility companies must bow
and yield." Philippine Long Distance Telephone Co. v. National
Telecommunications Commission, 190 SCRA 717 (1990). See dissents.
SEC. 11. (1) THE OWNERSHIP AND MANAGEMENT OF MASS MEDIA
SHALL BE LIMITED TO CITIZENS OF THE PHILIPPINES, OR TO
CORPORATIONS, COOPERATIVES OR
ASSOCIATIONS, WHOLLY OWNED AND MANAGED BY SUCH CITIZENS.
THE CONGRESS SHALL REGULATE OR PROHIBIT MONOPOLIES IN
COMMERCIAL MASS MEDIA WHEN THE PUBLIC INTEREST SO REQUIRES.
NO
Sees. 1-3 ART. XVI - GENERAL PROVISIONS 539
COMBINATIONS IN RESTRAINT OF TRADE OR UNFAIR COMPETITION
THEREIN SHALL BE ALLOWED.
(2) THE ADVERTISING INDUSTRY IS IMPRESSED WITH PUBLIC
INTEREST, AND SHALL BE REGULATED BY LAW FOR THE PROTECTION OF
CONSUMERS AND THE
PROMOTION OF THE GENERAL WELFARE.
ONLY FILIPINO CITIZENS OR CORPORATIONS OR ASSOCIATIONS AT
LEAST SEVENTY PER CENTUM OF THE CAPITAL OF WHICH IS OWNED BY
SUCH CITIZENS SHALL BE
ALLOWED TO ENGAGE IN THE ADVERTISING INDUSTRY.
THE PARTICIPATION OF FOREIGN INVESTORS IN THE GOVERNING BODY
OF ENTITIES IN SUCH
INDUSTRY SHALL BE LIMITED TO THEIR PROPORTIONATE SHARE IN THE
CAPITAL THEREOF, AND ALL
THE EXECUTIVE AND MANAGING OFFICERS OF SUCH ENTITIES MUST BE
CITIZENS OF THE
PHILIPPINES.
SEC. 12. THE CONGRESS MAY CREATE A CONSULTATIVE BODY TO
ADVISE THE PRESIDENT
ON POLICIES AFFECTING INDIGENOUS CULTURAL COMMUNITIES, THE
MAJORITY OF THE MEMBERS
OF WHICH SHALL COME FROM SUCH COMMUNITIES.
ARTICLE XVII
AMENDMENTS OR REVISIONS
SECTION 1. ANY AMENDMENT TO, OR REVISION OF, THIS C ONSTTTUTION
MAY BE PROPOSED BY:
(1) THE CONGRESS, UPON A VOTE OF THREE-FOURTHS OF ALL ITS
MEMBERS; OR
(2) A CONSTITUTIONAL CONVENTION.
SEC. 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.
SEC. 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.
SEC. 4. ANY AMENDMENT TO, OR REVISION OF, THIS CONSTITUTION
UNDER SECTION 1
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 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
540
Sees. 1-4 ART. XVII - AMENDMENTS OR REVISIONS 541
DAYS AFTER THE CERTIFICATION BY THE COMMISSION ON ELECTIONS
OF
THE SUFFICIENCY OF THE PETITION.
Q. What is the significance of the presence of a special article on amendment
and revision in the Constitution?
A. (1) It indicates that the Philippines has adopted a rigid type of Constitution,
i.e., one that cannot be changed by ordinary legislation but only by a
more cumbersome process of change. (2) It identifies legal sovereignty
as residing in the people, since only a direct act of the people can finally
effect a change in the Constitution.
Q. Distinguish "constituent power" from "legislative power."
A. (a) Constituent power is the power to formulate a Constitution or to
propose amendments to or revision of the Constitution and to ratify
such proposal, whereas legislative power is the power to pass, repeal or
amend ordinary laws or statutes (as opposed to the organic law).
(b) Constituent power is exercised by Congress (by special
constitutional conferment), by a Constitutional Convention or
Commission, by the people through initiative and referendum, and
ultimately by the sovereign electorate, whereas legislative power is an
ordinary power of Congress and of the people, also through initiative
and referendum.
(c) The exercise of constituent power does not need the
approval of the Chief Executive, whereas the exercise of legislative
power ordinarily needs the approval of the Chief Executive, except when
done by the people through initiative and referendum. (Jurisprudence
under martial law, however, sanctioned the proposition that on the
basis of absolute necessity, where no body existed which could proposal
amendments, both the constituent and legislative powers of the
legislature may be exercised by the Chief Executive. Sanidad v. Comelec,
L-44640, October 12,1976.)
Q. What is an amendment? a revision? How do they differ?
A. Both amendment and revision signify change in the constitutional text. An
amendment envisages an alteration of one or a few specific and isolated
provisions of the constitution. Its guiding original intention is to improve
specific parts or to add
542 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
new provisions or to suppress existing ones according as addition or
subtraction might be demanded by existing conditions.
In revision, however, the guiding intention and plan contemplate
a re-examination of the entire document or an important cluster of
provisions in the document to determine how and to what extent it
should be altered. The end product of a revision can be an important
structural change in the government or a change which affects several
provisions of the Constitution.
NOTE: The changes proposed in Lambino v. Comelec were
characterized by the Court as revision not within the scope of initiative
and referendum. However, ten justices, contrary to earlier decision,
expressed the view that there was already an initiative and referendum
law for amendment of the Constitution. Lambino v, Comelec, G.R. No.
174153, October 25,2006 and November 21,2006.
Q. May a constitution be changed without following the process prescribed by
the existing constitution?
A. Generally, no, because by adopting the article on amendments and revision
the people themselves have imposed on themselves a constitutional
limitation on their capacity to dispose of the Constitution. However,
since the people are the ultimate legal sovereign, they may in
extraordinary circumstances decide to disregard the constitution. When
they do so, the change they effect is neither amendment nor revision in
the constitutional sense but "revolution.'' The ratification of the 1973
Constitution was done in an extra-constitutional way. Ratification cases,
50 SCRA 30, 373, note 3 (1973). Similarly, the Freedom Constitution was
promulgated by President Aquino under her revolutionary authority
conferred by the people through the EDSA event.
Q. If the constitutional change is to be effected by amendment or by revision,
what are the required steps?
A. In general, (1) there must be proposal of amendments or revision, that is,
the formulation of the changes contemplated, (2) submission of the
proposed amendments or revision to the people; and (3) ratification.
Q. Who may propose amendments to or revision of the Constitution?
A. The 1935 and 1973 Constitutions provided for two constituent assemblies,
that is, bodies empowered to propose amendments.
Sees. 1-4 ART. XVII - AMENDMENTS OR REVISIONS 543
They were the Congress or National Assembly and the Constitutional
Convention. The 1987 Constitution has provided for a third: the
electorate, through popular initiative.
Q. How does Congress propose amendments to the Constitution?
A. Under the 1935 Constitution, the provision read thus:
"The Congress in joint session assembled, by a vote of
three-fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments to this
Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority of
the votes cast at an election at which the amendments are submitted to
the people for their ratification."
Under such provision, the two Houses of Congress had to come together in
joint session in order to propose amendments.
Under the 1987 Constitution, however, the provision simply reads thus:
"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."
Since nothing is said about a joint session, it is submitted that each
House may separately formulate amendments by a vote of
three-fourths of all its members, and then pass it on to the other house
for a similar process. Disagreements can be settled through a
conference committee.
But if the two houses decide to come together in joint session,
they still must vote separately because Congress is bicameral.
Q. Who submits the proposed changes for ratification by the people?
A. Either Congress as a constituent assembly or the Constitutional Convention
may submit the changes to the people. However, if neither Congress as
a constituent assembly nor the constitutional convention submits the
changes, that is, designates the
544 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
time and circumstances for the plebiscite, Congress as an ordinary legislative
body may do so.
Q. Is the power to propose amendments or revision part of the ordinary
plenary legislative power of Congress?
A. No. Congress possesses constituent power only because it has been
specifically given that power by and under the conditions of Article XVII.
Gonzales v. COMELEC, 21 SCRA 774 (1967).
Q. How does a constitutional convention come into existence?
A. 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."
Q. Must Congress be in joint session for purposes of calling a constitutional
convention?
A. Since the Constitution is silent, it is submitted that the presumption is that
the two houses may vote separately as they are where they are. But
they may also come together in joint session.
Q. Who decides whether amendments or revision should be proposed by
Congress or by a constitutional convention?
A. The choice of which constituent assembly should initiate amendments or
revision is a matter of wisdom left to the discretion of Congress.
Gonzales v. COMELEC, id.
Q. Does this mean therefore that a decision of Congress to call a constitutional
convention is not subject to judicial review?
A. Whether or not to call a convention is a matter completely within the
discretion of Congress; but the manner of calling a convention is subject
to judicial review, because, among others, of the constitutional
requirement of a qualified majority vote.
Q. If in calling a constitutional convention Congress, acting as a constituent
assembly, does not supply the details for the calling of a convention
(such as qualification, compensation, distribution of delegates), who
may supply such details?
A. Congress, acting as an ordinary legislative body, may supply such details, In
re Subido, 35 SCRA 1 (1970); Imbong v. Comelec,
Sees. 1-4 ART. XVII - AMENDMENTS OR REVISIONS 545
35 SCRA 28 (1970). In supplying such details, however, the Congress,
acting as an ordinary legislative body may not transgress the resolution
passed by the Congress acting as a constituent assembly.
Q. May the constitutional convention appropriate money for its expenses?
A. No money may be spent out of the public treasury except pursuant to an
appropriation made by law, Article VI, Section 29(1). Hence, the
constitutional convention may not appropriate money out of the public
treasury. However, the constitutional convention is free to dispose of
the funds appropriated by Congress for the Convention's operation.
Q. What amendments or revision may be proposed by a constituent
assembly?
A. Since the effectivity of a proposal made by a constituent assembly depends
upon the approval by the sovereign people, a constituent assembly may
propose any change in the constitution. The only possible exception is
that a constituent assembly may not propose anything that is
"inconsistent with what is known, particularly in international law, as Jus
Cogens.n Planas v. Comelec, 49 SCRA 105,126 (1973).
Jus cogens, or peremptory norm of international law, means "a
norm accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general
international law having he same character." Article 53, Vienna
Convention on Treaties.
Q. Does this mean therefore that proposals made by a constituent assembly
are not subject to judicial review?
A. The substance of the proposals are not subject to judicial review since what
to propose, subject to the above limitation, is left to the wisdom of the
constituent assembly. However, the manner of making the proposal is
subject to judicial review. This is because a constituent assembly owes
its existence and derives all its authority and power from the
Constitution. Hence, whether or not it has acted according to the
constitution must always be matter for judicial cognizance.
546 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
Q. Give examples of matters which may be reviewed by the Court.
A. (1) Whether or not a proposal was approved by the required number of
votes of Congress.
(2) Whether or not the approved proposals were properly
submitted to the people for ratification. Tolentino v. COMELEC, 41 SCRA
707 (1971).
Q. The Batasang Pambansa proposed amendment to the
Constitution providing, among others, for the inclusion of "grant" as a
mode of alienation of public land and also mandating "urban land
reform." Petitioners sought to eqjoin the plebiscite as scheduled on the
ground that the public had not had adequate time to study the two
above matters. Decide.
A. The 1973 Constitution prescribed that the plebiscite should be
held not later than three months after the approval of the proposal; but
the actual time to be given within the three month maximum was left
to the discretion of the Batasan taking into consideration the complexity
of the matter proposed. Almario v. Alba, 127 SCRA 69 (G.R. No. 66088,
January 25,1984).
Q. How is proposal of amendments by "initiative and referendum" done?
A. Through the "initiative" phase, the people propose the amendments. There
is a valid proposal when a proposition has received the approval of at
least 3% of the registered voters of each district and 12% of the total
number of registered voters nationwide. This is followed by the
"referendum" phase where the people vote to reject or ratify the
proposal.
Q. Is the constitutional provision on initiative and referendum self-executory?
A. No. It requires implementing legislation. Congress has approved R.A. 6735,
the Initiative and Referendum Law, but the Supreme Court held that the
law, as worded, does not apply to constitutional amendment.
Therefore, amendment by initiative and referendum must still await a
valid law. Defensor Santiago v. Comelec, G.R. No. 127325, March
19,1997.
Q. May a revision of the Constitution be effected through initiative and
referendum?
A. No. The change authorized by Section 2 through initiative and referendum
can only be amendment
Sees. 1-4 ART. XVII - AMENDMENTS OR REVISIONS 547
What is the reason for this rule?
The main reason is that formulation of provisions revising the
Constitution requires both cooperation and debate which can only be
done through a collegial body.
Q. Does the President have power to propose amendments to the
Constitution?
A. Under martial law and in the absence of a legislative assembly,
the Supreme Court upheld the power of President Marcos to propose
amendments.
In Sanidad v. Comelec, L-44640, October 12, 1976, a divided
Supreme Court upheld such power of the President although there was
no unanimity in approach even among those who upheld the power.
Briefly, the chief positions for upholding the power may be summarized
thus:
1) Under the extraordinary conditions on martial law and the
Transitory Provisions, the incumbent President possessed legislative
power. Legislative power does not normally include constituent power.
However, the normal repositories of constituent power to initiate
amendments, the National Assembly and the interim National
Assembly, were not operative. Moreover, the people had voted in
referenda against the convening of the interim National Assembly which
was empowered to propose amendments under the Transitory
Provisions. Hence, a stalemate occurred, because only a constitutional
amendment can effectively remove the interim National Assembly in
order to give way to another legislative body. In the face of such stalemate
one must remember that a Constitution cannot be understood as
having set up a government that is powerless to act in the face of crisis.
Hence, the power to propose amendments was recognized most
logically as residing in the incumbent President, the present possessor of
legislative power, since the distinction "between constitutional content
of an organic character ... is one of policy, not of law" and since "the
function of the Assembly to propose amendments to the Constitution...
is but adjunct, although peculiar, to its gross legislative power." (I leave
the elaboration of the phrases in quotation to the author of the
phrases.)
(2) Even assuming that the President was without power, on his
own, to propose amendments, what in reality happened was that the
sovereign people, in the various referenda, proposed the amendment,
and the President, acting as agent of the sovereign people, merely
collated what the people had already proposed. (In other words, the
President merely re-proposed to the people what they had already
decided by themselves. No explanation is given why the people should
still ratify their own will.)
548 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 17-22
X Ultimately, what all these boil down to is this: the supreme
law is not the Constitution but the law of necessity as seen by the
President and legitimized by the Supreme Court. The law of necessity
can dictate that governmental powers in certain situations be
concentrated in the Executive.
Q. Must amendments to the Constitution be submitted for approval in a
special election or may they be included among issues presented during
a general election?
A. Ideally, amendments should be presented in a special election in order that
it can command the undivided attention of the electorate. However,
this is not required by the Constitution. Gonzales v. Comelec, 21 SCRA
774, 797 (1967).
Q. Does publication of proposed amendments in the Official Gazette, at the
polling places, and in newspapers of general circulation satisfy the
constitutional requirements of proper submission to the people?
A. The determination of the conditions under which proposed amendments
shall be submitted to the people is a matter which generally falls within
the legislative sphere. That the legislature could have done better in
enlightening the people about such proposed amendments does not
make the means taken by the legislature unconstitutional. Gonzales v.
Comelec, 21 SCRA at 801-802.
Q. The 1971 Constitutional Convention passed the following resolution:
ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE
CONSTITUTION OF THE PHILIPPINES SO AS
TO
LOWER THE VOTING AGE TO 18.
BE IT RESOLVED as it is hereby resolved by the 1971
Constitutional Convention:
Section 1. Section one of Article V of the Constitution of the
Philippines is amended to read as follows:
Section 1. Suffrage may be exercised by (male) citizens of the
Philippines not otherwise disqualified by law,
Sees. 1-4 ART. XVII - AMENDMENTS OR REVISIONS 549
who are (twenty-one) EIGHTEEN years or over and are able to
read and write, and who shall have resided in the Philippines for
one year and in the municipality wherein they propose to vote for
at least six months preceding the election.
Section 2. This amendment shall be valid as part of the
Constitution of the Philippines when approved by a majority of the
votes cast in a plebiscite to coincide with the local elections in
November 1971.
Section 3. This partial amendment, which refers only to the
age qualification for the exercise of suffrage, shall be without
prejudice to other amendments that will be proposed in the
future by the 1971 Constitutional Convention on other portions of
the amended Section or on other portions of the entire
Constitution.
Section 4. The Convention hereby authorizes the use of the
sum of P 75,000.00 from its savings or from its unexpended funds
for the expense of the advanced plebiscite; provided, however,
that should there be no savings or unexpended sums, the
Delegates waive P250.00 each or the equivalent of 2 1/2 days per
diem.
The validity of this resolution was challenged on the ground (1)
that only Congress can call a plebiscite for the ratification of
amendments and (2) that the amendment could not be presented to
the people for ratification separately from all the other amendments to
be drafted and proposed by the Convention. Decide.
A. The Supreme Court in Tolentino v. Comelec, 41 SCRA 702 (1971), answered
only the second question and said:
We are certain no one can deny that in order that a
plebiscite for the ratification of an amendment to the Constitution
may be validly held, it must provide the voter not only sufficient
time but ample basis for an intelligent appraisal of the nature of
the amendment per se as well as its relation to the other parts of
the Constitution with which it has to form a harmonious whole. In
the context of the present state of things, where the Convention
has hardly started considering the merits of hundreds, if not
thousands, of proposals to amend the existing
550 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 17-22
Constitution, to present to the people any single proposal or a
few of them cannot comply with this requirement. We are of the
opinion that the present Constitution does not contemplate in
Section 1 of Article XV a plebiscite or "election" wherein the
people are in the dark as to frame of reference they can base
their judgment on. We reject the rationalization that the present
Constitution is a possible frame of reference, for the simple
reason that intervenors themselves are stating that the sole
purpose of the proposed amendment is to enable the eighteen
year olds to take part in the election for the ratification of the
Constitution to be drafted by the Convention. In brief, under the
proposed plebiscite, there can be, in the language of Justice
Sanchez, speaking for the six members of the Court in Gonzales,
supra, "no proper submission."
Q. When does an amendment or revision take effect?
A. "Any amendment to, or revision of, this Constitution under Section 1
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 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."
Q. Is presidential proclamation required for the effectivity of amendments to
the Constitution?
A. No, unless the proposed amendment says so and is so ratified (as in the
case of the 1976 Amendments, per Amendment 9).
Q. What are the essential requisites of a valid ratification?
A. The practice under the 1935 Constitution was that ratification of
amendments must be held in an election conducted under the election
law, supervised by the independent Commission on Election, and
where only franchised voters take part. A majority of the Justices in
Javellana v. Executive Secretary, 50 SCRA 30 (1973), held that these
three elements are of the essence of a valid ratification of amendments
or revision. It
Sees. 1-4 ART. XVII - AMENDMENTS OR REVISION5S5 1
is submitted that, although the 1973 Constitution no longer uses the
word "election" but rather "plebiscite", the same requirements still hold
because a plebiscite is just a species of the generic word election.
Q. If the above are the requirements of a valid ratification, how do
you explain the ratification of the 1973 Constitution where the above
requisites, according to a majority of the Justices, were not followed?
A. The above requirements apply to amendments and revision
under the Constitution. When, however, the people in the exercise of
their sovereignty decide that they no longer wish to be bound by the
amendatory process of the Constitution, there is legally nothing to
prevent them from adopting a new Constitution in a novel extraconstitutional
manner.
In other words, a new constitution can come into being extraconstitutionally,
i.e., by revolution. The 1973 Constitution was the
product of a "bloodless revolution." The Freedom Constitution of 1986
was also a product of revolution.
ARTICLE XVHI
TRANSITORY PROVISIONS
SECTION 1. THE FIRST ELECTIONS OF MEMBERS OF THE CONGRESS
UNDER THIS CONSTITUTION SHALL BE HELD ON THE SECOND MONDAY
OF
MAY, 1987.
THE FIRST LOCAL ELECTIONS SHALL BE HELD ON A DATE TO BE
DETERMINED BY THE PRESIDENT, WHICH MAY BE SIMULTANEOUS WITH
THE ELECTION OF ALL THE
MEMBERS OF CONGRESS. IT SHALL INCLUDE THE ELECTION OF
MEMBERS OF THE CITY OR
MUNICIPAL COUNCILS IN THE METROPOLITAN MANILA AREA.
Q. What is the purpose of the Transitory Provisions?
A. The obvious purpose of transitory provisions is to facilitate the transition
from the old Constitution to the new. In the case of the transitory
provisions of the 1987 Constitution, the transition is not just from its
immediate predecessor, the Freedom Constitution, but also from the
1973 Constitution.
SEC. 2. THE SENATORS, MEMBERS OF THE HOUSE OF
REPRESENTATIVES, AND THE LOCAL
OFFICIALS FIRST ELECTED UNDER THIS CONSTITUTION SHALL SERVE
UNTIL NOON OF JUNE
30,1992.
OF THE SENATORS ELECTED IN THE ELECTION EN 1992, THE FIRST
TWELVE OBTAINING THE HIGHEST NUMBER OF VOTES SHALL SERVE FOR
SIX YEARS AND THE
REMAINING TWELVE FOR THREE YEARS.
Q. Why were twelve of the Senators to be elected in 1992 given a term of
only three years?
A. The purpose was to establish a staggered system of electing Senators.
Every three years only twelve new Senators are elected. Continuity is
thus achieved.
552
Sees. 15-16 ART. XVIII - TRANSITORY PROVISIONS 553
SEC. 3. ALL EXISTING LAWS, DECREES, EXECUTIVE ORDERS,
PROCLAMATIONS, LETTERS OF
INSTRUCTION, AND OTHER EXECUTIVE ISSUANCES NOT INCONSISTENT
WITH THIS CONSTITUTION
SHALL REMAIN OPERATIVE UNTIL AMENDED, REPEALED, OR REVOKED.
Q. Does Section 3 validate laws and executive acts which may have been
invalidly passed under the previous Constitution?
A. No. Section 3 merely asserts the general principal of presumed validity of
legislative acts of legislative authority.
SEC. 4. ALL EXISTING TREATIES OR INTERNATIONAL AGREEMENTS
WHICH HAVE NOT BEEN RATIFIED SHALL NOT BE RENEWED OR
EXTENDED WITHOUT THE
CONCURRENCE OF AT LEAST TWO-THIRDS OF ALL THE
MEMBERS OF THE SENATE.
SEC. 5. THE SIX-YEAR TERM OF THE INCUMBENT PRESIDENT AND VICE-
PRESIDENT ELECTED IN
THE FEBRUARY 7,1986 ELECTION IS, FOR
PURPOSES OF SYNCHRONIZATION OF ELECTIONS, HEREBY EXTENDED
TO
NOON OF JUNE 30,1992.
THE FIRST REGULAR ELECTIONS FOR THE PRESIDENT AND
VLCEPRESIDENT
UNDER THIS CONSTITUTION SHALL BE HELD ON THE SECOND MONDAY
OF MAY
1992.
SEC. 6. THE INCUMBENT PRESIDENT SHALL CONTINUE TO EXERCISE
LEGISLATIVE POWER UNTIL THE FIRST CONGRESS IS CONVENED.
NOTE: The legislative power of the President under this provision ended on
July 27,1987 when the First Congress convened.
Acts of the President under this provision may be amended or
repealed only by statute, in the same way that Presidential Decrees of
President Marcos can be amended or repealed only by legislative act.
SEC. 7. UNTIL A LAW IS PASSED, THE PRESIDENT MAY FILL BY
APPOINTMENT FROM A LIST OF NOMINEES BY THE RESPECTIVE
SECTORS THE SEATS RESERVED
FOR SECTORAL REPRESENTATION IN PARAGRAPH (2),
SECTION 5 OF ARTICLE VI OF THIS CONSTITUTION.
SEC. 8. UNTIL OTHERWISE PROVIDED BY THE CONGRESS, THE
PRESIDENT MAY
CONSTITUTE THE METROPOLITAN AUTHORITY TO BE COMPOSED OF THE
HEADS OF ALL LOCAL
GOVERNMENT UNITS COMPRISING THE METROPOLITAN MANILA AREA.
SEC. 9. A SUB-PROVINCE SHALL CONTINUE TO EXIST AND OPERATE
UNTIL IT IS CONVERTED INTO A REGULAR PROVINCE OR ITS
COMPONENT MUNICIPALITIES ARE
REVERTED TO THE MOTHER PROVINCE.
554 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 12-16
SEC. 10. ALL COURTS EXISTING AT THE TIME OF THE RATIFICATION OF
THIS CONSTITUTION
SHALL CONTINUE TO EXERCISE THEIR JURISDICTION,
UNTIL OTHERWISE PROVIDED BY LAW. THE PROVISIONS OF THE
EXISTING
RULES OF COURT, JUDICIARY ACTS, AND PROCEDURAL LAWS NOT
INCONSISTENT WITH THIS CONSTITUTION SHALL REMAIN OPERATIVE
UNLESS AMENDED OR
REPEALED BY THE SUPREME COURT OR THE CONGRESS.
SEC. 11. THE INCUMBENT MEMBERS OF THE JUDICIARY SHALL
CONTINUE IN OFFICE UNTIL THEY REACH THE AGE OF SEVENTY YEARS
OR BECOME INCAPACITATE!}
TO DISCHARGE THE DUTIES OF THEIR OFFICE OR ARE REMOVED FOR
CAUSE.
SEC. 12. THE SUPREME COURT SHALL, WITHIN ONE YEAR AFTER
THE RATIFICATION OF THIS CONSTITUTION, ADOPT A SYSTEMATIC PLAN
TO EXPEDITE THE DECISION
OR RESOLUTION OF CASES OR MATTERS PENDING IN
THE SUPREME COURT OR THE LOWER COURTS PRIOR TO THE
EFFECTIVITY OF THIS CONSTITUTION.
A SIMILAR PLAN SHALL BE ADOPTED FOR ALL SPECIAL COURTS AND
QUASI-JUDICIAL BODIES.
SEC. 13. THE LEGAL EFFECT OF THE LAPSE, BEFORE THE RATIFICATION
OF THIS
CONSTITUTION, OF THE APPLICABLE PERIOD FOR THE DECISION OR
RESOLUTION OF THE CASES OR
MATTERS SUBMITTED FOR ADJUDICATION BY
THE COURTS, SHALL BE DETERMINED BY THE SUPREME COURT AS SOON
AS PRACTICABLE.
SEC. 14. THE PROVISIONS OF PARAGRAPH (3) AND (4) OF SECTION 15 OF
ARTICLE VIII OF
THIS CONSTITUTION SHALL APPLY TO CASES OR
MATTERS FILED BEFORE THE RATIFICATION OF THIS CONSTITUTION,
WHEN THE APPLICABLE
PERIOD LAPSES AFTER SUCH RATIFICATION.
Q. What is the legal effect of the lapse of the applicable period for the decision
or resolution of cases or matters submitted for adjudication by the
courts.
A. There are two rules on the subject: one for those where the period lapsed
before the ratification of this Constitution, another for those where the
period lapsed after the ratification of this Constitution.
For those which lapsed before the ratification of this Constitution,
the applicable rule is that found in the 1973 Constitution. But since
jurisprudence on this subject is unclear and even conflicting, Section 13
says that the Supreme Court must establish a clear rule as soon as
practicable through the resolution of cases pending before it.
Sees. 15-16 ART. XVIII - TRANSITORY PROVISIONS 555
For those which lapse after the ratification of this Constitution, no
matter when the case may have been filed, Article VIII, Section 15 (3)
and (4) of this Constitution shall apply.
SEC. 15. THE INCUMBENT MEMBERS OF THE CIVIL SERVICE COMMISSION,
THE
COMMISSION ON ELECTIONS, AND THE COMMISSION ON AUDIT SHALL
CONTINUE IN OFFICE FOR
ONE YEAR AFTER THE RATIFICATION OF THIS CONSTITUTION, UNLESS
THEY ARE SOONER REMOVED
FOR CAUSE
OR BECOME INCAPACITATED TO DISCHARGE THE DUTIES OF THEIR
OFFICE OR APPOINTED TO A
NEW TERM THEREUNDER. IN NO CASE SHALL ANY MEMBER SERVE
LONGER THAN SEVEN YEARS
INCLUDING SERVICE BEFORE
THE RATIFICATION OF THIS CONSTITUTION.
Q. Did the incumbent members of the Constitutional Commissions at the time
of the ratification of this Constitution enjoy security of tenure?
A. Yes, but for only one year. In effect, they were allowed to occupy the first
year of the term of those who would later be appointed. Gaminde v.
Commission on Audit, G.R. No. 140335, December 13,2000.
SEC. 16. CAREER CIVIL SERVICE EMPLOYEES SEPARATED FROM
THE SERVICE NOT FOR CAUSE BUT AS A RESULT OF THE
REORGANIZATION PURSUANT TO
PROCLAMATION No. 3 DATED MARCH 25, 1986 AND THE REORGANIZATION
FOLLOWING THE
RATIFICATION OF THIS CONSTITUTION SHALL BE ENTITLED TO
APPROPRIATE SEPARATION PAY AND
TO RETIREMENT AND OTHER BENEFITS ACCRUING TO THEM UNDER THE
LAWS OF GENERAL
APPLICATION IN FORCE AT THE TIME OF THEIR SEPARATION. IN LIEU
THEREOF, AT THE OPTION OF
THE EMPLOYEES, THEY MAY BE CONSIDERED FOR EMPLOYMENT IN THE
GOVERNMENT OR IN ANY
OF ITS SUBDIVISIONS, INSTRUMENTALITIES, OR AGENCIES, INCLUDING
GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS AND THEIR SUBSIDIARIES. TfflS
PROVISION ALSO APPLIES TO CAREER
OFFICERS WHOSE RESIGNATION, TENDERED IN LINE WITH THE EXISTING
POLICY, HAD BEEN
ACCEPTED.
Q. What was the purpose of Section 16?
A. "What was envisioned in Section 16 is not a remedy for arbitrary removal of
civil servants enjoying security of tenure but some form of relief for
members of the career civil service who may have been or may be
legally but involuntarily "reorganized out" of the service or may have
voluntarily resigned pursuant to
556 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 17-22
the reorganization policy. The relief offered is the alternative one of
either separation pay and other retirement benefits or, at the option of
the government, reemployment." IIBEKNAS, CONSTITUTION OF THE
PHILIPPINES 615, cited in Dario v. Mison, October 10,1989, denying
motion for reconsideration of Dario v. Mison, G.R. No. 81954, August
8,1989.
SEC. 17. UNTIL THE CONGRESS PROVIDES OTHERWISE, THE PRESIDENT
SHALL RECEIVE AN
ANNUAL SALARY OF THREE HUNDRED THOUSAND PESOS; THE VICE
PRESIDENT, THE PRESIDENT
OF THE SENATE, THE SPEAKER OF THE HOUSE OF REPRESENTATIVES,
AND THE CHIEF JUSTICE OF
THE SUPREME COURT TWO HUNDRED FORTY THOUSAND PESOS EACH;
THE SENATORS, THE
MEMBERS OF THE HOUSE OF REPRESENTATIVES, THE ASSOCIATE
JUSTICES OF THE SUPREME
COURT, AND THE CHAIRMEN OF THE CONSTITUTIONAL COMMISSIONS,
TWO HUNDRED FOUR
THOUSAND PESOS EACH; AND THE MEMBERS OF THE CONSTITUTIONAL
COMMISSIONS,
ONE HUNDRED EIGHTY THOUSAND PESOS EACH.
SEC. 18. AT THE EARLIEST POSSIBLE TIME, THE GOVERNMENT SHALL
INCREASE THE SALARY SCALES OF THE OTHER OFFICIALS AND
EMPLOYEES OF THE NATIONAL
GOVERNMENT.
SEC. 19. ALL PROPERTIES, RECORDS, EQUIPMENT, BUILDINGS,
FACILITIES, AND OTHER
ASSETS OF ANY OFFICE OR BODY ABOLISHED OR REORGANIZED UNDER
PROCLAMATION NO. 3
DATED MARCH 25, 1986 OR THIS CONSTITUTION SHALL BE TRANSFERRED
TO THE OFFICE OR
BODY TO
WHICH ITS POWERS, FUNCTIONS, AND RESPONSIBILITIES
SUBSTANTIALLY PERTAIN.
SEC. 20. THE FIRST CONGRESS SHALL GIVE PRIORITY TO THE
DETERMINATION OF THE
PERIOD FOR THE FULL IMPLEMENTATION OF FREE PUBLIC SECONDARY
EDUCATION.
SEC. 21. THE CONGRESS SHALL PROVIDE EFFICACIOUS PROCEDURES
AND ADEQUATE REMEDIES FOR THE REVERSION TO THE STATE OF ALL
LANDS OF THE PUBLIC
DOMAIN AND REAL RIGHTS CONNECTED THEREWITH WHICH WERE
ACQUIRED IN VIOLATION OF
THE CONSTITUTION OR THE PUBLIC LAND LAWS OR THROUGH CORRUPT
PRACTICES. No
TRANSFER OR DISPOSITION OF SUCH LANDS OR REAL RIGHTS SHALL BE
ALLOWED UNTIL AFTER THE
LAPSE OF ONE YEAR FROM THE RATIFICATION OF THIS CONSTITUTION.
SEC. 22. AT THE EARLIEST POSSIBLE TIME, THE GOVERNMENT
SHALL EXPROPRIATE IDLE OR ABANDONED AGRICULTURAL LANDS AS
MAY BE DEFINED BY LAW,
FOR DISTRIBUTION TO THE BENEFICIARIES OF THE AGRARIAN REFORM
PROGRAM.
Sees. 15-16 ART. XVIII - TRANSITORY PROVISIONS 557
SEC. 23. ADVERTISING ENTITIES AFFECTED BY PARAGRAPH (2), SECTION
11 OF ARTICLE
XVI OF THIS CONSTITUTION SHALL HAVE FIVE
YEARS FROM ITS RATIFICATION TO COMPLY ON A GRADUATED AND
PROPORTIONATE BASIS WITH
THE MINIMUM FLLIPINO OWNERSHIP REQUIREMENT THEREIN.
SEC. 24. PRIVATE ARMIES AND OTHER ARMED GROUPS NOT
RECOGNIZED BY DULY
CONSTITUTED AUTHORITY SHALL BE DISMANTLED. ALL PARAMILITARY
FORCES, INCLUDING CIVILIAN
HOME DEFENSE FORCES NOT CONSISTENT WITH THE CITIZEN ARMED
FORCE ESTABLISHED IN THIS
CONSTITUTION, SHALL BE DISSOLVED OR WHERE APPROPRIATE,
CONVERTED TO THE REGULAR
FORCE.
Q. What does "recognized by duly constituted authority" mean?
A. It means authorized by law or in accordance with law, and operating
according to law.
Q. What does "not consistent with the citizen armed force established in this
Constitution" mean?
A. The phrase has reference to the "citizen armed force which shall undergo
military training and serve, as may be provided by law" referred to in
Section 5, Article XVI.
SEC. 25. 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.
Q. May the military bases agreement be renewed by executive agreement?
A. No. Any renewal must be through a strict treaty.
Q. Must a treaty on the subject of military bases be ratified in a plebiscite
before it becomes effective?
A. Ratification in a plebiscite is necessaiy only when Congress so requires.
558 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
Q. Did the Visiting Forces Agreement with the United States need ratification
by the Senate?
A. Yes, Because Section 25 of Article XVII covers not just the presence of bases
but also the presence of troops. Bayan v. Executive Secretary, G.R. No.
138570, October 10,2000.
NOTE: Validity of the VFAgreement has been reiterated. That it
might not be domestic law in the US is irrelevant because its
implementation would not be there. However, after conviction of a GI,
his place of detention should be agreed between US and RP but under
Philippine jurisdiction and not in the US Embassy. Thus, the agreement
between the Ambassador and the Secretary of Foreign Affairs placing
the GI under the US Embassy's invalid. Nicolas v. Secretary and Daniel
Smith, G.R. No. 175888, February 11,2009.
Q. What is the significance of the phrase "recognized as a treaty by the other
contracting State?"
A. It is a reminder that the military bases agreement with the United States
subsisting at the time of the formulation of the 1987 Constitution was
not ratified by the United States Senate. The phrase requires that the
other contracting State must go through all the steps needed to make
the agreement a treaty under the law of the foreign State before any
such agreement can be recognized by the Philippines as effective.
However, we are bound to accept an official declaration by the U.S. that
what is needed to make their consent a treaty has been satisfied. Bayan
v. Executive Secretary, G.R. No. 138570, October 10,2000.
NOTE: The executive attempt to forge a new bases treaty with
the United States was not concurred in by the Senate.
Q. May the Philippines enter into a bases agreement with Japan to allow
Japanese forces to stay in the Philippines.
A. No. While it is not explicitly so stated in Section 25, the clear intention of
the Commission was to allow possible local deployment of only
American forces.
SEC. 26. THE AUTHORITY TO ISSUE SEQUESTRATION OR FREEZE
ORDERS
UNDER PROCLAMATION NO. 3, DATED MARCH 25,1986, IN RELATION TO
THE RECOVERY OF ILL-GOTTEN WEALTH SHALL REMAIN OPERATIVE FOR
Sec. 26 ART. XVIII - TRANSITORY PROVISIONS 559
NOT MORE THAN EIGHTEEN MONTHS AFTER THE RATIFICATION OF THIS
CONSTITUTION. HOWEVER, IN THE NATIONAL INTEREST, AS CERTIFIED
BY THE PRESIDENT, THE
CONGRESS MAY EXTEND SAID PERIOD.
A SEQUESTRATION AND FREEZE ORDER SHALL BE ISSUED ONLY UPON
SHOWING OF A PRIMA FACIE CASE. THE ORDER AND THE LIST OF
SEQUESTERED OR FROZEN
PROPERTIES SHALL FORTHWITH BE REGISTERED WITH THE PROPER
COURT. FOR ORDERS ISSUED
BEFORE THE RATIFICATION OF
THIS CONSTITUTION, THE CORRESPONDING JUDICIAL ACTION OR
PROCEEDING SHALL BE FILED
WITHIN SIX MONTHS FROM ITS RATIFICATION. FOR THOSE ISSUED AFTER
SUCH RATIFICATION, THE
JUDICIAL ACTION OR PROCEEDING SHALL BE COMMENCED WITHIN SIX
MONTHS FROM THE
ISSUANCE THEREOF.
THE SEQUESTRATION OR FREEZE ORDER IS DEEMED AUTOMATICALLY
LIFTED IF NO JUDICIAL
ACTION OR PROCEEDING IS COMMENCED AS HEREIN PROVIDED.
Q. What is sequestration, freeze order, provisional takeover? A. a.
Sequestration
By the clear terms of the law, the power of the PCGG to sequester
property claimed to be "ill-gotten" means to place or cause to be placed
under its possession or control said property, or any building or office
wherein any such property and any records pertaining thereto may be
found, including "business enterprises and entities," - for the purpose of
preventing the destruction, concealment or dissipation of, and
otherwise conserving and preserving the same - until it can be
determined, through appropriate judicial proceedings, whether the
property was in truth "ill-gotten," i.e., acquired through or as a result of
improper or illegal use of or the conversion of funds belonging to the
Government or any of its branches, instrumentalities, enterprises, banks
or financial institutions, or by taking undue advantage of official position,
authority, relationship, connection or influence, resulting in uqjust
enrichment of the ostensible owner and grave damage and prejudice to
the State. And this, too, is the sense in which the term is commonly
understood in other jurisdictions.
b. "Freeze Order*
A "freeze order" prohibits the person having possession or control
of property alleged to constitute "ill-gotten wealth" "from transferring,
conveying, encumbering or otherwise depleting
560 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 12
or concealing such property, or from assisting or taking part in its
transfer, encumbrance, concealment, or dissipation." In other words, it
commands the possessor to hold the property and conserve it subject
to the orders and disposition of the authority decreeing such freezing. In
this sense, it is akin to a garnishment by which the possessor or
ostensible owner of property is enjoined no to deliver, transfer, or
otherwise dispose of any effects or credits in his possession or control,
and thus becomes in a sense an involuntary depository thereof.
c. Provisional Takeover
In providing for the remedy of "provisional takeover," the law
acknowledges the apparent distinction between aill-gotten" "business
enterprises and entities" (going concerns, business in actual operation),
generally, as to which the remedy of sequestration applies, it being
necessarily inferred that the remedy entails no interference, or the least
interference with the actual management and operations thereof; and
"business enterprises which were taken over by the government of the
Marcos Administration or by entities or persons close to him," in particular,
as to which a "provisional takeover" is authorized, "in the public
interest or to prevent disposal or dissipation of the enterprises." Such a
"provisional takeover" imports something more than sequestration or
freezing, more than the placing of the business under physical
possession and control, albeit without or with the least possible
interference with the management and carrying on of the business
itself. In a "provisional takeover," what is taken into custody is not only
the physical assets of the business enterprise or entity, but the business
operation as well. It is in fine the assumption of control not only over
things, but over operations or on-going activities. But, to repeat, such a
"provisional takeover" is allowed only as regards "business enterprises
... taken over by the government of the Marcos Administration or by
entities or persons close to former President Marcos." BASECO v.. PCGG,
150 SCRA 181, 210-211 (1987). Silverio v. PCGG, G.R. No. 77645, October
26, 1987.
Q. What is the difference between a sequestration or freeze order and a
search or seizure warrant?
A. There are two significant differences: (1) a warrant may be issued only by a
judge, whereas a sequestration or freeze order
Sec. 26 ART. XVIII - TRANSITORY PROVISIONS 561
is issued by an administrative authority; (2) a warrant issues only upon
probable cause, whereas a sequestration or freeze order issues only
upon showing of a prima facie case, a degree of proof higher than
probable cause. This requirement of higher degree of proof
compensates for the dispensation from the requirement of a judicial
order.
NOTE: The requirement of a prima facie factual foundation
for a sequestration order is based not only on Section 26 of Article
XVIII of the 1987 Constitution, but likewise on some provisions of
the Freedom Constitution which recognized the power and duty
of the President to enact measures to achieve the mandate of the
people to recover ill-gotten properties amassed by the leaders
and supporters of the previous regime and protect the interest of
the people through orders of sequestration or freezing of assets
or accounts. Without any reason in the sequestration order why
shares of stock were being sequestered, it would be impossible to
determine whether the order of sequestration was issued with
any prima facie factual foundation. The PCGG may not rely on the
presumption of validity of official acts. Such presumption
undermines the basic principle embodied in the Constitution that
public officers and employees "must at all times be accountable to
the people." PCGG v. Lucio Tan, G.R. Nos. 173553-56, December
7,2007; Republic v. Sandiganbayan, G.R. No. 155832, December 7,
2010.
Q. May property be sequestered if its public ownership is being
questioned?
A. Provided that there is prima facie evidence that the property is
public it may be sequestered. COCOFED v. PCGG, G.R. No. 7513, October
2,1989.
Q. The PCGG sequestered a jet plane. The plane, however, did not
belong to a sequestered company. PCGG asked the Sandiganbayan for
authority to sell. Sandiganbayan asked for prima facie basis for the
sequestration. PCGG refused. The Sandiganbayan did not grant the
authority. The PCGG just the same sold the plane on the argument that
it was necessary for the preservation of the property and that its request
for permission from the Sandiganbayan was merely a courtesy request.
Valid?
A. No. The power over sequestered property is administrative
power, not dominical power. It may not be exercised
562 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 12
without court permission. Moreover, for the validity of a sequestration,
prima facie evidence is needed. On that basis a sequestration may be
challenged before the Sandiganbayan. Rightly the Sandiganbayan
refused to recognize the sequestration absent evidence to justify it.
Republic v. Sandiganbayan, G.R. No. 88336, December 26,1990.
Decisions have clearly established that the PCGG may not exercise
the prerogatives of ownership such as the sale of property without a
court's permission and the selection of people who should manage a
corporation under sequestration. Republic v. Sandiganbayan, 221 SCRA
189 (1993).
Q. What kind of ^judicial action or proceeding" is needed to
prevent the automatic lifting of sequestration?
A. The Court has taken a liberal view in this matter. Thus, where
the PCGG had filed complaints against named defendants and had
attached to the complaint a list of other corporations alleged to be
dummies of the defendant, such listing was found sufficient to prevent
the lifting of the sequestration of the listed corporations even if they
themselves had not been impleaded. Republic v. Sandiganbayan, G.R.
No. 96073, January 23, 1995; Antiporda v. Sandiganbayan, G.R. No.
116941, May 31,2001.
SEC. 27. THIS CONSTITUTION SHALL TAKE EFFECT IMMEDIATELY
UPON ITS RATIFICATION BY A MAJORITY OF THE VOTES CAST IN A
PLEBISCITE HELD FOR THE
PURPOSE AND SHALL SUPERSEDE ALL PREVIOUS
CONSTITUTIONS.
Q. When did this Constitution take effect?
A. On February 2, 1987. While the presidential proclamation announcing the
ratification of the Constitution was made on February 11, 1987, the
effectivity must be reckoned as taking place the previous February 2.
The clear intention of the Commission was that ratification takes place
on the day the electorate expresses its assent by casting their votes. The
subsequent proclamation merely announces the fact of ratification after
some time for verification. (This is different from the case of the 1976
Amendments where the text itself prescribed that the amendments
would be effective upon proclamation by the President.)
Sec. 26 ART. XVIII - TRANSITORY PROVISIONS 563
Q. When did the 1987 Constitution take effect?
A- On February 2, 1987, the day of the ratification, that is, the day on which
the votes of the people were cast to signify their acceptance of the draft.
De Leon v. Esguerra, 153 SCRA 602 (1987), especially the concurring
opinion of Teehankee, C.J.
THE 1987
PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
2012 Supplement
(Covering cases until March 21,2012)
ARTICLE XVII
NATIONAL TERRITORY
Q. Petitioners challenge the validity of RA. 9522, the new Baselines Law, on the
grounds that the law reduces Philippine maritime territory under the
Treaty of Paris, thereby limiting Philippine sovereignty, national security
and the nuclear policy of the Constitution.
A. R.A. 9522 is not about limiting territory but implementing the multilateral
treaty governing rights over maritime zones. Magallona v. Ermita, G.R
No. 187167, August 16,2011.
567
ARTICLE XVII
BILL OF RIGHTS
SECTION 1 Equal protection
Q. PAGCOR was one of the GOCC's made exempt from corporate income tax.
When a law removing the exemption of PAGCOR was removed but
leaving others exempt, PAGCOR pleaded violation of equal protection.
Decide.
A. The exemption of PAGCOR was not because it was of the same class as
other GOCCs but merely as a concession. Hence it could be removed
without violation of equal protection. PAGCOR v. BIR, G.R. No. 172087,
March 15, 2011.
Command responsibility
Q. Is "command responsibility* applicable to amparo and habeas data cases in
Philippine jurisprudence?
A. As [the Court] explained in Rubrico v. Arroyo, G.R. 183871, 18 February
2010, command responsibility pertains to the "responsibility of
commanders for crimes committed by subordinate members of the
armed forces or other persons subject to their control in international
wars or domestic conflict." In its simplest terms, it means the
"responsibility of commanders for crimes committed by subordinate
members of the armed forces or other persons subject to their control
in international wars or domestic conflict." In this sense, command
responsibility is properly a form of criminal complicity. The Hague
Conventions of 1907 adopted the doctrine of command responsibility,
foreshadowing the present-day precept of holding a superior
accountable for the atrocities committed by his subordinates should he
be remiss in his duty of control over them. As then formulated,
command responsibility is "an omission mode of individual criminal
liability," whereby
581
Sec. 1 ART. ffl - BILL OF RIGHTS 569
the superior is made responsible for crimes committed by his
subordinates for failing to prevent or punish the perpetrators (as
opposed to crimes he ordered). Although originally used for ascertaining
criminal complicity, the command responsibility doctrine has also found
application in civil cases for human rights abuses. In the United States,
for example, command responsibility was used in Ford v. Garcia and
Romagoza v. Garcia - civil actions filed under the Alien Tort Claims Act
and the Torture Victim Protection Act. This development in the use of
command responsibility in civil proceedings shows that the application
of this doctrine has been liberally extended even to cases not criminal in
nature. Thus, it is [the Court's] view that command responsibility may
likewise find application in proceedings seeking the privilege of the writ
of amparo. In re Rodriguez v. President Arroyo, G.R. No. 191805.
November 15, 2011.
Q. What are the conditions for the applicability of command responsibility?
A. To hold someone liable under the doctrine of command responsibility, the
following elements must obtain:
a. the existence of a superior-subordinate relationship
between the accused as superior and the perpetrator of the crime as his
subordinate;
b. the superior knew or had reason to know that the crime
was about to be or had been committed; and .
c. the superior failed to take the necessary and reasonable
measures to prevent the criminal acts or punish the perpetrators
thereof. Moloto, Command Responsibility in International Criminal
Tribunals, Berkeley J. International Law Publicist, Vol. Ill, p. 18 (2009),
citing Prosecutor v. BlaSkid, Case No. IT-95-14-A, Judgment, 5 484 (29
July 2004); Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgment,
March 24,2000.
Administrative due process
Q. Are notice and hearing required before administrative rules can have the
force of law?
A. When an administrative rule is merely interpretative in nature, its
applicability needs nothing fiirther than its bare
670 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
issuance, for it gives no real consequence more than what the law itself
has already prescribed. When, on the other hand, the administrative
rule goes beyond merely providing for the means that can facilitate or.
render least cumbersome the implementation of the law but
substantially , increases the burden of those governed, it behooves the
agency to accord at least to those directly affected a chance to be
heard, and thereafter to be duly informed, before that new issuance is
given the force and effect of law. Commissioner of Customs v. Hepermix
Feeds, G.R. No. 179579, February 1,2012.
Q. On January 1, 1996, the ABS-CBN Head Office in Manila issued Policy No.
tlR-ER-016 or the "Policy on Employees Seeking Public Office." The
pertinent portions read:
1. Any employee who intends to run for any public office position,
must file his/her letter of resignation, at least thirty, (30) days prior to
the official filing of the certificate of candidacy either for national or local
election.
XXX
3. Further, any employee who intends to join a political
group/party or even with no political affiliation but who intends to
openly and aggressively campaign for a candidate or group of
candidates {e.g., publicly speaking/endorsing candidate, recruiting
campaign workers, etc.) must file a request for leave of absence subject
to management's approval. For this particular reason, the employee
shotdd file the leave request at least thirty (30) days prior to the .start of
, the planned leave period.
The policy is challenged as unconstitutional deprivation of office.
Correct?
A. [The Court] ha[s] consistently held that so long as a company's
management prerogatives are exercised in good faith for the
advancement of the employer's interest and not for the purpose of
defeating or circumventing the rights of the employees under special
laws or under valid agreements, th[e] Court will uphold them. In the
instant case, ABS-CBN validly justified the implementation of Policy No.
HR-ER-016. It is well within its rights to ensure that it maintains its
objectivity and credibility and freeing itself from any appearance of
impartiality so that the confidence of the viewing and listening public in
it will not
Sec. 1 ART. ffl - BILL OF RIGHTS 571
be in any way eroded. Even as the law is solicitous of the welfare of the
employees, it must also protect the right of an employer to exercise
what are clearly management prerogatives. Ymbong v. ABS-CBN, G.R.
No. 184885, March 7,2012.
SECTION 2
Warrantless search; privacy right
Q. While Polio was on leave from his office in the Civil Service Commission, the
computer assigned to him was searched, and evidence found was used
to cliarge him administratively and he was dismissed. He pleaded
violation of privacy rights. What is the extent of protection of privacy
rights over the contents of a computer?
A. The computer was not Polio's, but was an office computer. His office was
open and his files were not protected by password. The CSC noted the
dearth of jurisprudence relevant to the factual milieu of this case where
the government, as employer, invades the private files of an employee
stored in the computer assigned to him for his official use, in the course
of initial investigation of possible misconduct committed by said
employee and without the latter's consent or participation. The CSC
thus turned to relevant rulings of the United States Supreme Court, and
cited the leading case of O'Connor v. Ortega as authority for the view
that government agencies, in their capacity as employers, rather than
law enforcers, could validly conduct search and seizure in the
governmental workplace without meeting the "probable cause" or
warrant requirement for search and seizure. Another ruling cited by the
CSC is the more recent case of United States v. Mark L. Simons which
declared that the federal agency's computer use policy foreclosed any
inference of reasonable expectation of privacy on the part of its
employees. Though the Court therein recognized that such policy did
not, at the same time, erode the respondent's legitimate expectation of
privacy in the office in which the computer was installed, still, the
warrantless search of the employee's office was upheld as vaHd
because a government employer is entitled to conduct a warrantless
search pursuant to an investigation of work- related misconduct
provided the search is reasonable in its inception and scope.
Applying the analysis and principles announced in O'Connor and Simons
to the case at bar, [the Court] now
572 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
address[es] the following questions: (1) Did petitioner have a
reasonable expectation of privacy in his office and computer files?; and
(2) Was the search authorized by the CSC Chair, the copying of the
contents of the hard drive on petitioner's computer reasonable in its
inception and scope?
In this inquiry, the relevant surrounding circumstances to
consider include: "(1) the employee's relationship to the item seized; (2)
whether the item was in the immediate control of the employee when
it was seized; and (3) whether the employee took actions to maintain
his privacy in the item." These factors are relevant to both the
subjective and objective prongs of the reasonableness inquiry, and [the
Court] considers] the two questions together. Thus, where the
employee used a password on his computer, did not share his office
with co-workers and kept the same locked, he had a legitimate
expectation of privacy and any search of that space and items located
therein must comply with the Fourth Amendment.
[The Court] answerfs] the first in the negative. Petitioner failed to
prove that he had an actual (subjective) expectation of privacy either in
his office or government-issued computer which contained his personal
files. Petitioner did not allege that he had a separate enclosed office
which he did not share with anyone, or that his office was always locked
and not open to other employees or visitors. Neither did he allege that
he used passwords or adopted any means to prevent other employees
from accessing his computer files. On the contrary, he submits that
being in the public assistance office of the CSC-ROIV, he normally would
have visitors in his office like friends, associates and even unknown
people, whom he even allowed to use his computer, which to him
seemed a trivial request. He described his office as "full of people, his
friends, unknown people" and that in the past 22 years he had been
discharging his functions at the PALD, he is "personally assisting
incoming clients, receiving documents, drafting cases on appeals, in
charge of accomplishment report, Mamamayan Muna Program, Public
Sector Unionism, Correction of name, accreditation of service, and
hardly had anytime for himself alone, that in fact he stays in the office
as a paying customer." Under this scenario, it can hardly be deduced
that petitioner had such expectation of privacy that society would
recognize as reasonable. Polio v. Chairperson David, G.R. No. 181881,
October 18,2011.
Sees. 4,8-9 ART. m - BILL OF RIGHTS 573
SECTION 4. Free speech
Q. Can there be a live coverage of a criminal trial?
A. The general rule prohibits it for reasons of due process. However, in Re
Petition for Radio and Television Coverage of theAmpatuan, A.M. No.
10-11-5-SC, June 14, 2011, the Court made an exemption because of
the large number of respondents, the size of the court, the general
public interest, etc.
SECTION 8. Unions
Q. BPI has a Union Shop Agreement with BPI Union. In a merger of BPI with
FEBTC, FEBTC employees were absorbed by BPI. (1) Should the
absorbed employees be treated as new employees of BPI; and (2) Do
they come under the Union Shop Agreement?
A. (1) The absorbed employees retain their rights as when under FEBTC. They
are not new employees of BPI in the sense of being probationary or
temporary. (2) But yes, they are covered by the Union Shop. The Union
Shop is a protection for labor. BPIv. BPI Employees Union, G.R. No.
164301, Octber 19,2011.
SECTION 9. Eminent domain: taking; just compensation
Q. NPC constructed a tunnel under Makabangkit's property. Does that "taking"
of property require compensation?
A. Yes. NPC v. Heirs ofofMacabangkit, G.R. No. 165828, August 24,2011.
Q. When there is delay in the payment of just compensation for land reform,
who pays for the interest due?
A. The Land Bank. The "government's liability for the payment of interest to
the landowner for any delay attributable to it in paying just
compensation for the expropriated property is entirely separate and
distinct from the farmers-beneficiaries' obligations to pay regular
amortizations for the properties transferred to them. R.A. 6657 (CARL)
provides for the specific source of funding for agrarian reform. The
funding does not come directly from the payment made by farmer
beneficiaries. "More to the point, under the CARL, the amount the
farmers- beneficiaries must pay the LBP for their land is, for the most
part, subsidized by the State and is not equivalent to the actual
574 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
cost of the land that the Department of Agrarian Reform paid to the
original landowners. Section 26, Chapter VII of the CARL. Apo Fruits v.
Land Bank, G. R. No. 164195, April 5,2011.
SECTION 10. Obligation of contracts
Q. The original franchise of PAGCOR gave certain tax exemptions. When the
tax exemption was removed by law, the law was challenged as a
violation of the obligation of contracts.
A. Franchises are always subject to amendment. PAGCOR v. BIR, G.R. No.
172087, March 15,2011.
SECTION 12. Miranda rights.
NOTE: "The infractions of the so-called Miranda rights render
inadmissible 'only the extrajudicial confession or admission made
during custodial investigation.' The admissibility of other evidence,
provided they are relevant to the issue and are not otherwise excluded
by law or rules, are not affected even if obtained or taken in the course
of custodial investigation." Ho Wai Pang v. People. G.R. No. 176229,
October 19,2011
SECTION 16. Right to speedy disposition of case
Q. Is there a restriction on the right to a speedy disposition of a case?
A. The right is lost unless seasonably invoked. Thus, where the party chose to
remain silent for eight years before complaining of the delay in the
disposition of his case, the Court ruled that petitioner failed to
seasonably assert his right. Petitioner's silence may be considered as a
waiver of his right. (This was one of the issues in the protracted coconut
levy case.) Philippine Coconut Federation et al. v. Republic, G.R. Nos.
177857-58, January 24,2012.
ARTICLE XVII
LEGISLATIVE DEPARTMENT
SECTIONS Apportionment
Q. Is the minimum population of 250,000 required?
A. For cities, yes. Thus, the creation of Malolos as a represenative district failed
for lack of the 250,000 requirement. ALdaba v. Comelec, G.R No.
188078, March 15,2010.
Q. Outside of cities, is proportionality in population an absolute requirement?
A. Aquino III v. Comelec, G.R. No. 189793, April 7, 2010 tolerated gross
disproportion in population. The Court ruled that the requirement of
250,000 population applies only to cities that become districts. The
Court said that proportional representation is not just a numerical
concept but includes other factors which create balance in a territory.
(The decision benefited Dato Arroyo, son of the then President GMA).
Party-list jurisprudence
Q. Who determines the order of priority among the nominees of a party?
A. • According to R.A. 7941, the order of priority among a party's nominees is
determined by the party. Once submitted to the Comelec, not even the
party can change the order without the consent of the nominee, except
in case of death of a nominee. The Comelec may not issue
implementing rules and regulations (IRRs) that provide a ground for the
substitution of a party-list nominee not written in Republic Act (R.A.) No.
7941, otherwise
588
576 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
known as the Party-List System Act. Lokin Jr. v. Comelec, G.R. Nos.
179431-32, June 22,2010.
SECTION 16
House Rules
After Senator Villar, who was being investigated by the Senate
Ethics Committee, made the accusation that he could not get a fair
investigation from the Ethics Committee, Senator Lacson moved that
the investigation be moved to the Senate as Committee of the Whole.
The motion was approved. Some Senators, however, objected to the
use of the Rules of the Ethics Committee in the investigation by the
Committee of the Whole. In particular, they objected to some
amendments of the Rules, and failure to publish the Rules. When
brought to the Court, the issue of primary jurisdiction was brought up.
But the Court, in assuming jurisdiction, said that the issues presented
did not require the expertise, specialized skills and lmowledge for their
resolution since they were purely legal questions which were within the
competence and jurisdiction of the Court, and not of an administrative
agency or the Senate to resolve. On the legality of the transfer to the
Committee of the whole, the Court said that although according to the
Rules, "all matters relating to the conduct, rights, privileges, safety,
dignity, integrity and reputation of the Senate and its Members shall be
under the exclusive jurisdiction of the Senate Committee on Ethics and
Privileges," the Minority, by refusing to nominate their members, had
effectively stalled the investigation. "Given the circumstances, the
referral of the investigation to the Committee of the Whole was an
extraordinary remedy undertaken by the Ethics Committee and
approved by a majority of the members of the Senate." Nor was the
amendment of the Rules illegal. The Constitutional right of the Senate
to promulgate its own rules of proceedings has been recognized and
affirmed by th[e] Court in accordance with Article VI, Section 16(3) of tie
Constitution. Pimentel, Jr. et al. v. Senate Committee of the Whole, G.R.
No. 187714, March 8,2011.
However, before those Rtdes can be used, they must be
published. This was the doctrine established in Neri v. Senate
Committee, G.R. No. 180643, 25 March 2008, and Gutierrez v. House,
G.R. No. 193459,15 February 2011.
Sees. 17,28-29 ART. VI - LEGISLATIVE DEPARTMENT 577
SECTION 17.
NOTE: The power of the HRET to determine the citizenship of a
winning candidate does not include looking at the grant of citizenship to
the candidate's ascendant. That would be a prohibited collateral attack.
Vilando v. HRET, G.R. Nos. 192147 & 192149, August 23,2011.
SECTION 28. Basis for tax exemption
NOTE: Even admitting that the subject parcels of land are already
owned by the State, [the Court] still see[s] no grave abuse of discretion
on the part of Pasig City when it issued the challenged tax assessment,
for it is well settled that the test of exemptions from taxation is the use
of the property for purposes mentioned in the Constitution. The owner
of the property does not matter. Even if he is not a tax-exempt entity, as
long as the property is being used for religious, charitable or educational
purposes, the property is exempt from tax. Conversely, even if the
government owns the property, if the beneficial use thereof has been
granted, for consideration or otherwise, to a taxable person, the
property is subject to tax. Here, the PCGG admitted that portions of the
subject properties were leased to private entities engaged in
commercial dealings. Pasig City v. Republic, G.R. No. 185023, August 24,
2011.
NOTE: Attorney's fees and costs of suit were not included in the
appropriation, if due. DPWH v. Quiwa, G.R. No. 183444, October
12,2011.
SECTION 29. The coco levy fund
Q. What is the nature of the coconut levy fund?
A. They are public. [The Court] ha[s] ruled time and again that taxes are
imposed only for a public purpose. They cannot be used for purely
private purposes or for the exclusive benefit of private persons." When a
law imposes taxes or levies from the public, with the intent to give
undue benefit or advantage to private persons, or the promotion of
private enterprises, that law cannot be said to satisfy the requirement of
public purpose. The coconut levy funds were sourced from forced
exactions decreed under P.D. Nos. 232,276 and 582, among others, with
the end-goal of developing the entire coconut industry. Clearly,
578 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sees. 17,28-29
to hold therefore, even by law, that the revenues received from the
imposition of the coconut levies be used purely for private purposes to
be owned by private individuals in their private capacity and for their
benefit, would contravene the rationale behind the imposition of taxes
or levies. In sum, not only were the challenged presidential issuances
[are] unconstitutional for decreeing the distribution of the shares of
stock for free to the coconut farmers and, therefore, negating the
public purpose declared by P.D. No. 276, i.e., to stabilize the price of
edible oil and to protect the coconut industry. They likewise reclassified,
nay treated, the coconut levy fluid as private fund to be disbursed
and/or invested for the benefit of private individuals in their private
capacities, contrary to the original purpose for which the fund was
created. To compound the situation, the offending provisions
effectively removed the coconut levy fund away from the cavil of public
funds which normally can be paid out only pursuant to an appropriation
made by law. The conversion of public funds into private assets was
illegally allowed, in fact mandated, by these provisions. Philippine
Coconut Federation et at. v. Republic, G.R. Nos. 177857-58, January 24,
2012. (Still under reconsideration.)
ARTICLE XVII
EXECUTIVE DEPARTMENT
SECTION 18.
Q. On the occasion of the Maguindanao massacre in 2009, President Arroyo
imposed martial law and suspended the privilege of the writ of habeas
corpus. Eight days later, she lifted the proclamation. Should the Court
still review the action of the President?
A. It is evident that under the 1987 Constitution, the President and the
Congtess act in tandem in exercising the power to proclaim martial law
or suspend the privilege of the writ of habeas corpus. They exercise the
power, not only sequentially, but in a sense jointly since, after the
President has initiated the proclamation or the suspension, only the
Congress can maintain the same based on its own evaluation of the
situation on the ground, a power that the President does not have.
Consequently, although the Constitution reserves to the Supreme
Court the power to review the sufficiency of the factual basis of the
proclamation or suspension in a proper suit, it is implicit that the Court
must allow Congress to exercise its own review powers, which is
automatic rather than initiated. Only when Congress defaults in its
express duty to defend the Constitution through such review should the
Supreme Court step in as its final rampart. The constitutional validity of
the President's proclamation of martial law or suspension of the writ of
habeas corpus is first a political question in the hands of Congress before
it becomes a justiciable one in the hands of the Court.
Here, President Arroyo withdrew Proclamation 1959 before the
joint houses of Congress, which had in fact convened, could act on the
same. Consequently, the petitions in these
579
580 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Sec. 12
cases have become moot, and the Court has nothing to review. The
lifting of martial law and restoration of the privilege of the writ of
habeas corpus in Maguindanao was a supervening event that
obliterated any justiciable controversy. Fortun et al. 17.
Macapagal-Arroyo, G.R. No. 190293, March 20, 2012. (See two
dissents).
SECTION 21
Q. Is the Exchange of Notes between Secretaiy Romulo and the US
Ambassador embodying a "No Surrender Agreement" regarding
citizens arrested under the Rome Treaty valid; and if valid, does it not
need ratification by the Senate?
A. An Exchange of Notes is equivalent to an executive agreement and it is a
valid form of international agreement. The categorization of
agreements in Eastern Sea Trading is not cast in stone. Neither a hard
and fast rule on whether Senate concurrence is needed for executive
agreements. Bayan Muna v. Secretary Romulo, G.R. No. 159618,
February 11,2011.
ARTICLE XVII
JUDICIAL DEPARTMENT
SECTION 4.
Q. Did the Constitution create a Presidential Electoral Tribunal?
A. Not in so many words, rather, it gives to the Supreme Court
jurisdiction over presidential and vice-presidential election
contests. Macalintal v. PET, G.R. No. 191618, June 7,2011.
Q. Does a decision of a division reversing a doctrine established in
an earlier case become final and not subject to reconsideration?
A. No. It is a decision without jurisdiction, and therefore invalid.
Lu v. Ym, Sr, G.R. No. 153690, February 15,2011.
Section 5
Th[e] Court's jurisdiction to issue writs of certiorari, prohibition,
mandamus, quo warranto, and habeas corpus, while
concurrent with that of ^e Regional Trial Courts and the
Court of Appeals, does not give litigants unrestrained freedom
of choice of forum from which to seek such relief. Hie determination
of whether the assailed law and its implementing rules
and regulations contravene the Constitution is within the jurisdiction
of regular courts. The Constitution vests the power
of judicial review or the power to (declare a law, treaty, , international
or executive agreement, presidential decree, order, instruction,
ordinance, or regulation in the courts, including the
Regional Trial Courts. It has long been established that th[e]
Court will not entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate courts, or where
exceptional and compelling circumstances justify availment of
a remedy within and call for the exercise of our primary jurisdiction.
Betoy v. NPC, G.R. Nos. 156556-57, October 4,2011.
581
582 THE 1987 PHILIPPINE CONSTITUTION: Sees. 10,12,16
A COMPREHENSIVE REVIEWER
SECTION 6.
Q. When a justice fails to attribute a quotation to its author without malicious
intent, is that plagiarism?
A. No. If the Court were to inquire into the issue of plagiarism respecting its
past decisions from the time of Chief Justice Cayetano S. Arellano to the
present, it is likely to discover that it has not on occasion acknowledged
the originators of passages and views found in its decisions. These
omissions are true for many of the decisions that have been penned
and are being penned daily by magistrates from the Court of Appeals,
the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts
nationwide and with them, the Municipal Trial Courts and other first
level courts. Never in the judiciary's more than 100 years of history has
the lack of attribution been regarded and demeaned as plagiarism.
The Court will not, therefore, consistent with the established
practice in the Philippines and elsewhere, dare permit the filing of
actions to annul the decisions promulgated by its judges or expose
them to charges of plagiarism for honest work done.
This rule should apply to practicing lawyers as well. Counsels for
the petitioners, like all lawyers handling cases before courts and
administrative tribunals, cannot object to this. Although as a rule they
receive compensation for every pleading or paper they file in court or
for ievery opinion they render to clients, lawyers also need to strive for
technical accuracy in their writings. They should not be exposed to
charges of plagiarism in what they write so long as they do not depart,
as officers of the court, from the objective of assisting the Court in the
administration of justice. In re Justice del Castillo, A.M. No. 10-7-17-SC,
February 8,2011.
SECTION 14.
Q. May petitions for review be denied by a simple minute resolution?
A. Yes. The Court has repeatedly said that minute resolutions dismissing the
actions filed before it constitute actual adjudications on the merits.
When the Court does not find
Sees. 14 ART. VIII - JUDICIAL DEPARTMENT 583
any reversible error in the decision of the CA and denies the petition,
there is no need for the Court to fully explain its denial. It would be an
exercise in redundancy for the Court to do so. Agoy v. Araneta Center,
G.R. No. 196358, March 21, 2012.
ARTICLE XVII
CONSTITUTIONAL COMMISSIONS
Civil Service Commission SECTION 3
Q. On 28 May 2010, President Gloria Macapagal-Arroyo (President Arroyo)
issued EO 883 granting the rank of CESO III or higher to officers and
employees "occupying legal positions in the government executive
service who have obtained graduate degrees in law and successfully
passed the bar examinations." In August 2011 Elias Sana challenged EO
883 as violation of prohibition on midnight appointments, Section 15,
Art. VII. But before the Court could decide Sana's petition, President
Aquino, through EO 3, repealed EO 883 for being an encroachment
"upon the power of the CESB to 'promulgate rules, standards and
procedures on the selection, classification, compensation and career
development of members of the Career Executive Service x x x' vested
by law with the [CESB] x x x." What happened to Sana's challenge?
A. The repeal of EO 883 rendered Sana's contention moot. Sana v. Career
Executive Service Board,, G.R. No. 192926, November 15,2011. (Note:
The validity of EO 883 was never ruled upon.)
SECTION 8
Q. The retirement benefits for GSIS employees are set by law. The Board,
however, is authorized to provide for incentive benefits for early
retirement. The Board, however, passed a resolution granting generous
additional incentive benefits for all. Valid?
A.. No. It is not based on legal authority. In fact it violates other laws. And it is
additional compensation not authorized by law. GSIS v. COA, G. R. No.
162372, October 19,2011.
584
Sees. 7,1 ART. IX - CONSTITUTIONAL COMMISSIONS 585
Commission on Elections SECTION
7.
NOTE: Section 7, although it confers on the Court the power to
review any decision, order or ruling of the COMELEC, limits such power
to a final decision or resolution of the COMELEC en banc, and does not
extend to an interlocutory order issued by a Division of the COMELEC.
Otherwise stated, the Court has no power to review on certiorari an
interlocutory order or even a final resolution issued by a Division of the
COMELEC. Cagas v. Comelec, G.R. No. 194139, January 24, 2012.
Commission on Audit
SECTION 1
Q. Is the Boy Scout of the Philippines a government-owned and controlled
corportion under the jurisdiction of COA.
A. Yes. The BSP Charter (Commonwealth Act No. Ill, approved on October 31,
1936), entitled MAn Act to Create a Public Corporation to be Known as
the Boy Scouts of the Philippines, and to Define its Powers and
Purposes" created the BSP as a "public corporation." BSP v. COA, G.R.
No. 177131, June 7, 2011.
ARTICLE XVII
LOCAL GOVERNMENTS
SECTION lO. Creation of local units.
Q. R.A. 9009 converted 16 municipalities into cities although the income of
these municipalities was less than that required by the Local
Government Code. The law is challenged as a violation of the equal
protection claused
A. The conversion of these municipalities were already pending when the
income requirement was increased by an amendatory law. Senate
deliberations clearly indicate that it was not the intention to apply the
new law , tp pending conversion cases. Thus, these municipalities do
not belong to the class of conversion petitions filed after the new law
took effect. League of Cities v. Comelec, G.R. No. 176951, February 15,
2011 & June 28, 2011. Affirmed August 24,2010.
Q. The creation of Dinagat as a province is challenged on the ground that the
land area does not reach the requirement for provinces in the Local
Government Code. Dinagat consists of islands. Decide.
A. In the creation of cities and municipalities which consist of one two or more
islands, land area is not a requirement. But the law is silent about the
creation of provinces consisting of two or more islands. There is no
consistency in not exempting provinces similarly situated from the
requirement of land area provided the other indicia of viability are
present. Navarro v. Executive Secretary, G.R. No. 180050, April 12,2011.
Q. a. When President Arroyo placed Maguindanao under control, did she
violate local autonomy?
b. Did she exercise emergency powers in Maguindanao when she called
out the AFP and the PNP to prevent and suppress all incidents of
lawless violence?
586
Sec. 18 ART. X - LOCAL GOVERNMENTS 587
A. a. She did not place Maguindanao under her control, but placed the
Vice-Governor in coiftrol.
b. She did not exercise emergency powers but only the "calling out"
powers under Article VII, Section 18. Ampatuan v. Secretary, G.R.
No. 190259, June 7,2011.
SECTION 18. ARRM Elections
Q. May Congress determine the date of ARMM elections for purposes of
synchronization with national elections without need of a plebiscite?
A. Yes. The Organic Act did not fix the date of elections, but left it to Congress.
Datu Abas Kida v. Senate, G.R. No. 196271, October 18,2011.
Q. Since synchronization will have the result of vacating the elective offices,
may the elected officials holdover?
A. No, because that would extend the term beyond the constitutional
three-year limit. Datu Abas Kida v. Senate, G.R. No. 196271, October
18,2011.
Q. May the President appoint acting regional officials?
A. Yes, because the synchronization law, R.A. 10153, says so. Moreover, the
President can do it under the "faithful execution clause" of Article VII,
Section 17. Datu Abas Kida v. Senate, G.R. No. 196271, October 18,2011.
ARTICLE XVII
ACCOUNTABILITY OF PUBLIC
OFFICERS
SECTION 3(5). Impeachment
Q. Two impeachment complaints were filed against Ombudsman Gutierrez
on different days. The complaints, however, were referred to the
Committee on Justice together on the same day. Was there a violation
of the prohibition of two impeachment proceedings in one year?
A. No. What the Constitution prohibits is the initiation of two *impeachment
proceedings" in one year, not two complaints. An impeachment
proceeding is "initiated* when the complaint, no matter when filed, is
referred to the Justice Committee. Gutierrez v. House, G.R. No. 176951,
February 15, 2011 and March 8,2011.
SECTION 13. Ombudsman powers.
Q. (1) Does Section 20(5) of R.A. 6770 prohibit the Ombudsman from
conducting an administrative investigation a year after the act
was committed?
(2) Does Andutan's resignation render moot the administrative case
filed against him?
A. (1) The cited statute is merely directory.
(2) Yes, because he is no longer a public officer. The possibility of the
penally of disqualifiation does not prevent cases from being
moot. Ombudsman v. Andutan, Jr., G.R. No. 164679, July 27,2011.
588
Sec. 13 ART. XI - ACCOUNTABILITY OF PUBLIC NOTE: The Ombudsman has
been given the delegated power to
grant immunity. The rationale for the grant of immunity is the need to
counter balance the right against self- incrimination. The discretion of
the Ombudsman is, of course, subject to review by the Court. Quarto v.
Ombudsman, G.R. No. 169042, October 5,2011.
Q. Does the Ombudsman have the power to directly impose the penalty of
removal from office against public officials?
A. Yes. The Ombudsman has the power to impose the penally of removal,
suspension, demotion, fine, censure, or prosecution of a public officer or
employee, in the exercise of its administrative disciplinary authority. The
challenge to the Ombudsman's power to impose these penalties, on the
allegation that the Constitution only grants it recommendatory powers,
had already been rejected by th[e] Court in Ledesma v. Court of Appeals,
161629, July 29,2005. Ombudsman v. Apolonio, G.R. No. 165132, March
7,2012.
ARTICLE XVII
NATIONAL ECONOMY
SECTION 11
Q. What is the basis for the computation of the 40% limit on foreign
ownership of utility companies?
A. The common shares of the corporation. Ownership of common shares
determines control. Gamboa v. Finance Secretary, G.R. No. 176579,
June 28,2011. (Still under reconsideration)
590
ARTICLE XVII
XIII, 4
Q. On July 5,2011, the Supreme Court en banc voted unanimously (11-0)
upheld PA's decision revoking HLI's Stock Distribution Plan (SDP) and
placing the subject lands in Hacienda Luisita under compulsory coverage
of the Comprehensive Agrarian Reform Program (CARP) of the
government. The Court however, did not order outright land
distribution. Voting 6-5, the Court declared that the revocation of the
SDP must, by application of the operative fact principle, give way to the
right of the original 6,296 qualified farm workers-beneficiaries (FWBs) to
choose whether they want to remain as HLI stockholders or [choose
actual land distribution]. It thus ordered the Department of Agrarian
Reform (DAR) to "immediately schedule meetings with the said 6,296
FWBs and explain to them the effects, consequences and legal or
practical implications of their choice, after which the FWBs will be asked
to manifest, in secret voting, their choices in the ballot, signing their
signatures or placing their thumbmarks, as the case may be, over their
printed names."
(1) If applicable, what is the effect of the operative fact
doctrine?
(2) Is Sec. 31 of R.A. 6657, authorizing stock distribution option,
unconstitutional?
(3) What is the date of "taking"?
(4) What if the areas already converted to industrial use and
were sold?
A. (1) The July 5, 2011 decision said that the operative fact applies not only to
laws declared unconstitutional but also to other official acts
invalidated. The effect of the application of the doctrine to the
case would be that those who had already availed of the stock
distribution could
591
592 THE 1987 PHILIPPINE CONSTITUTION:
A COMPREHENSIVE REVIEWER
Art. XIII, 4
remain as stockholders. Hence, mandatory distribution would
cover only those not covered by stock distribution option. This
was reversed by the November 22, 2011 reconsideration on the
ground that the beneficiaries who had availed of stock
distribution never gained control over the area which together
consisted only of 33.29% of the area.
(2) The challenge to the constitutionality of Sec. 31 has come too late.
(3) The date of "taking" is November 21, 1989, when PARC approved
HLrs SDP.
(4) The buyer retains ownership as innocent third party.
Hacienda Luisita Inc. (HLI) v. Presidential Agrarian
Reform Council (PARC% et al, G.R. No. 171101, November 22,
2011.
ARTICLE XVI
SECTION 3
Q. The Air Transport Office occupied private land for use as airport without
just compensation. ATO, an unincorporated government agency,
pleaded immunity from suit. Valid?
A. The principle of immunity from suit cannot be used for unjust enrichment.
Compensation must be given. Heirs ofPidacan v. ATO, G.R. No. 186192,
August 25,2010.
THE 1987
PHILIPPINE CONSTITUTION:
A COMPREHENSIVE
REVIEWER
By
JOAQUIN G. BERNAS, S.J.
Member, 1986 Constitutional Commission Section 1 ..................................................................................................................
m 8
856 Nicanor Reyes, Sr. Section 2 ..................................................................................................................
St. 13
Tel. Nos. 736-05-67 • Section 3 ..................................................................................................................
735-13-64 14
1977 C.M. Recto Avenue Section 4 ..................................................................................................................
Tel. Nos. 735-55-27 • 735-55-34 15
Manila, Philippines Section 5 ..................................................................................................................
www.rexpublishing.com.ph 15
Philippine Copyright, 2011 Section 6 ..................................................................................................................
by 15
JOAQUIN G. BERNAS, S.J. State Policies
ISBN 978-971-23-5906-4 Section 7 ..................................................................................................................
No portion of this book may be copied or 15
reproduced in books, pamphlets, outlines or Section 8 ..................................................................................................................
notes, whether printed, mimeographed, 16
typewritten, copied in different electronic devices Section 9 ..................................................................................................................
or in any other form, for distribution or sale, 17
without the written permission of the author Section 10 ................................................................................................................
except brief passages in books, articles, reviews, 17
legal papers, and judicial or other official Section 11 ................................................................................................................
proceedings with proper citation. 17
Any copy of this book without the corresponding Section 12 ................................................................................................................
number and the signature of the author 17
on this page either proceeds from an illegitimate Section 13 ................................................................................................................
hority 18
No. 3 8 4 6 Section 14
Reprinted: April 2012 ........................................................................................................................ 19
Printed by Section 15 ................................................................................................................
CONTENTS 20
Preamble .................................................................................................................. Section 16 ................................................................................................................
1 20
ARTICLE I - THE NATIONAL TERRITORY Section 17 ................................................................................................................
Section 1 .............. ................................................................................................... 20
3 Section 18 ................................................................................................................
ARTICLE II - DECLARATION OF PRINCIPLES AND STATE POLICIES 21
Principles
Section 19 ................................................................................................................
21
Section 20 ................................................................................................................
21
Section 21 ................................................................................................................
21
Section 22 ................................................................................................................
21
iii
Section 23 ................................................................................................................
22
Section 24 ................................................................................................................
22
Section 25 ................................................................................................................
22
Section 26 ................................................................................................................
22
Section 27 ................................................................................................................
22
Section 28 ................................................................................................................
22
ARTICLE m - BILL OF RIGHTS
Section 1 .................................................................................................................
23
Police Power ............................................................................................... 24
Protected rights; life.......................................................................................... 25
Right to property ......................................................................................... 26
Right to liberty ............................................................................................. 28
Two kinds of due process .......................................................................... 28
Procedural due process in courts in non-criminal cases... 29
Procedural due process in administrative cases ................................... 30
Substantive due process ........................................................................... 32
Equal protection ......................... . ........................................ .................... 35
Section 2 ..................................................................................................................
39
Probable cause ............................................................................................ 41
Personal examination ................................................................................ 44
Particularity of description ........................................................................ 46
Exclusionary rule ......................................................................................... 49
Allowable warrantless searches ............................................................... 50
Warrantless arrests ..................................................................................... 56
Section 3 ..................................................................................................................
59
Section 4 ..................................................................................................................
62
No prior restraint ......................................................................................... 63
Commercial speech .................................................................................... 68
Subsequent punishment ........................................................................... 69
Symbolic speech .......................................................................................... 73
Unprotected speech ................................................................................... 74
Libel ......................... .......... . ........................................................................ 74
Libel of public officials and public figures ................................................ 76
Obscenity and indecent^ ........................................................................... 77
Assembly and petition ............................................................................... 79
Section 5 .................................................... . ...........................................................
82
Non-establishment of religion .................................................................. 83
iv
Free exercise ................................................................................................ 87
Section 6 ...................................................................................................................
92
Section 7 ...................................................................................................................
93
Section 8 ...................................................................................................................
95
Section 9 ...................................................................................................................
98
Taking ............................................................................................................ 98
Public use .......................................................................... .......................... 100
Just compensation ...................................................................................... 100
Judicial review .............................................................................................. 102
Section 10 ................................................................................................................
104
Section 11 ................................................................................................................
106
Section 12 ................................................................................................................
107
General matters .......................................................................................... 107
When and in what circumstances the rights
are available ...................................................................................... 109
Circumstances not covered ...................................................................... Ill
Right to be informed of his rights ............................................................. 112
Right to competent and independent counsel ..................................... 113
Waiver of rights ........................................................................................... 117
Admissible and inadmissible evidence ................................................... 117
Confessions and admissions ..................................................................... 118
Termination of Section 12(1) rights ......................................................... 119
Section 12(1) ...........................................................................................................
119
Section 12(2) ...........................................................................................................
120
Section 13 ................................................................................................................
120
Section 14 ................................................................................................................
127
Due process in criminal cases ................................................................... 127
Military tribunals ......................................................................................... 128
Presumption of innocence ........................................................................ 129
Right to be heard ......................................................................................... 131
Right to counsel ........................................................... .............................. 133
Right to be informed .................................................................................. 135
Right to speedy trial .................................................................................... 138
Right to an impartial trial ........................................................................... 140
Right to a public trial ................................................................ ................. 141
Right to meet witness face to face........................................................... 142
Compulsory process ......................................................................... ........ 144
Waiver of rights ........................................................................................... 145
Section 6 ...................................................................................................................
521
v Section 1..................................................................................................................
Section 16 ...............................................................................................................
147
Section 17 ...............................................................................................................
148
Section 18 ...............................................................................................................
152
Section 19 ...............................................................................................................
153
Section 20 ...............................................................................................................
159
Section 21 ........................................................................................... < .................
161
Attachment of double jeopardy ....................................................... 161
Termination of jeopardy ........................................................................... 163
Waiver or estoppel ...... ............................................................... ............ 168
Same offense ........................ ................................... ......................... ; ..... 169
Appeals .............................. .......................................................... ............ . 174
Section 22 ...............................................................................................................
176
ARTICLE IV - CITIZENSHIP
Section 1...................................................................................................................
182
Section 2................................................................................................................
189
Section 3...................................................................................................................
190
Section 4..................................................................................................................
199
Section 5..................................................................................................................
199
ARTICLE V - SUFFRAGE
Section 1...................................................................................................................
203
Section 2...................................................................................................................
207
ARTICLE VI - THE LEGISLATIVE DEPARTMENT
210
Section 2...................................................................................................................
218
Section 3................................................................................................................... Section 21 ................................................................................................................
218 248
Section 4................................................................................................................... Section 22 ................................................................................................................
218 253
Section 5........................................................................................................... ....... Section 23 ................................................................................................................
218 253
Party-list system ................................................ ....................................... 220 Section 24 ................................................................................................................
Section 6.................................... . .................................................................. . ...... 255
226 Section 25 ................................................................................................................
Section 7................................................................................................................... 256
228 Section 26 ................................................................................................................
Section 8................................................................................................................... 258
229 Section 27 ................................................................................................................
Section 9................................................................................................................... 261
229 Section 28 ................................................................................................................
Section 10 ................................................................ ........... ......................... ....... 266
230 Section 29 ................................................................................................................
Section 11 ............................................. ................................................................. 272
231 Section 30 ................................................................................................................
vi 275
Section 12 ................................................................................................................ Section 31 ..................................................................................... .........................
234 275
Section 13 ................................................................................................................ Section 32 ................................................................................................................
234 275
Section 14 ................................................................................................................ ARTICLE VII - THE EXECUTIVE DEPARTMENT
235 Section 1 ...................................................................................................................
Section 15 ................................................................................................................ 277
236 Section 2 ............................................................................................. 1
Section 16 ...................................................................................................... ........ ................... 277
236 Section 3 ...................................................................................................................
Section 17 ................................................................................................................ 284
240 Section 4 ...................................................................................................................
Section 18 ................................................................................................................ 284
245 Section 5 ...................................................................................................................
Section 19 ................................................................................................................ 288
248 Section 6 ...................................................................................................................
Section 20 ................................................................................................................ 288
248
Section 7 ................................................................................................................... Section 2 ..................................................................................................................
288 331
Section 8 ................................................................................................................... Section 3 ..................................................................................................................
289 332
Section 9 ................................................................................................................... Section 4 ..................................................................................................................
291 332
Section 10 ................................................................................................................ Section 5 ..................................................................................................................
292 335
Section 11 ................................................................................................................ Section 6 ..................................................................................................................
292 336
Section 12 ................................................................................................................ Specific powers of the court ..................................................................... 337
293 Judicial review ............................................................................................. 337
Section 13 .............................. ................................................................................ Standing ........................................................................................................ 339
294 Taxpayer suit ................................................................................................ 341
Section 14 ................................................................................................................ Political questions ....................................................................................... 343
295 Court review of capital sentences ........................................................... 346
Section 15 ................................................................................................................ Auxiliary powers .......................................................................................... 346
296 Rule making ................................................................................................. 347
Section 16 ................................................................................................................ Section 7 ..................................................................................................................
296 353
Section 17 .................................................................................. ............................. Section 8 ..................................................................................................................
302 355
Section 18 ................................................................................................................ Section 9 ..................................................................................................................
307 356
Section 19 ......................................................................................... ..................... Section 10 ................................................................................................................
314 356
vii Section 11 ................................................................................................................
Section 20 ................................................................................................................ 357
320 Section 12 ................................................................................................................
Section 21 ................................................................................................................ 359
321 Section 13 ................................................................................................................
Section 22 ..................................... . ........................................................................ 360
324 Section 14 ................................................................................................................
Section 23 ................................................................................................................ 361
325 Section 15 .......................... ....................................................................................
ARTICLE Vm - THE JUDICIAL DEPARTMENT 363
Section 1 .................................................................................................................. Section 16 ................................................................................................................
326 364
ARTICLE IX - CONSTITUTIONAL COMMISSIONS Section 7 ...................................................................................................................
A. Common Provisions 386
Section 1 .................................................................. . ...................... ................ 365 Section 8 ...................................................................................................................
Section 2 .................................................................................................................. 387
365 C. The Commission on Elections
Section 3 .................................................................................................................. Section 1 ...................................................................................................................
365 389
Section 4 ............................................. ................................................................... Section 2 ...................................................................................................................
365 391
Section 5 .................................................................................................................. Section 3 ...................................................................................................................
366 402
Section 6 .................................................................................................................. Section 4 ...................................................................................................................
366 403
viii Section 5 ...................................................................................................................
Section 7 ................................................................................................................... 405
367 Section 6 ...................................................................................................................
Section 8 ................................................................................................................... 405
370 Section 7 ...................................................................................................................
B. The Civil Service Commission 406
Section 1 ................................................................................................................... Section 8 ...................................................................................................................
370 406
Section 2 ................................................................................................................... Section 9 ...................................................................................................................
371 407
Scope of the system.................................................................................... 372 Section 10 ................................................................................................................
Appointments in the Civil Service............................................................. 373 407
Security of tenure ........................................................................................ 377 Section 11 ................................................................................................................
Abolition of tenure ...................................................................................... 380 408
Partisan political activity ............................................................................. 383 D. The Commission on Audit
Right to organize.......................................................................................... 383 Section 1 ........................ ............................................ ...........................................
Section 3 ................................................................................................................... 408
384 Section 2 ...................................................................................................................
Section 4 ................................................................................................................... 408
385 Section 3 ...................................................................................................................
Section 5 ................................................................................................................... 412
385 Section 4
Section 6 ................................................................................................................... ....................................................................................................................... 412
385 ix
ARTICLE X - LOCAL GOVERNMENT General
Provisions Section 19 ................................................................................................................
Section 1 .................................................................................................................. 439
414 Section 20 ................................................................................................................
Section 2 .................................................................................................................. 440
415 Section 21 ................................................................................................................
Section 3 .................................................................................................................. 441
417 ARTICLE XI - ACCOUNTABILITY OF PUBLIC OFFICERS
Section 4 ............................... ........................................ ....................................... Section 1 ..................................................................................................................
418 442
Section 5 .................................................................................................................. Section 2 ..................................................................................................................
420 442
Section 6 .................................................................................................................. Section 3 ..................................................................................................................
423 443
Section 7 .................................................................................................................. Section 4 ..................................................................................................................
425 445
Section 8 .................................................................................................................. Section 5 ..................................................................................................................
426 447
Section 9 .................................................................................................................. Section 6 .......... . .............. ............... ....................................................................
429 447
Section 10 ................................................................................................................ Section 7 ..................................................................................................................
429 448
Section 11 ................................................................................................................ Section 8 ..................................................................................................................
431 450
Section 12 ................................................................................................................ Section 9 ..................................................................................................................
434 450
Section 13 ................................................................................................................ Section 10 ................................................................................................................
434 450
Section 14 ................................................................................................................ Section 11 ................................................................................................................
435 450
Autonomous Regions Section 12 ................................................................................................................
Section 15 ................................................................................................................ 450
435 x
Section 16 ................................................................................................................ Section 13 .................................................................................................................
436 451
Section 17 ................................................................................................................ Section 14 .................................................................................................................
436 455
Section 18 ................................................................................................................ Section 15 ................................................................................................................
437 455
Section 16 ................................................................................................................. Section 16 ................................................................................................................
455 485
Section 17 ................................................................................................................. Section 17 ................................................................................................................
455 486
Section 18 ................................................................................................................. Section 18 ................................................................................................................
456 486
ARTICLE XH - NATIONAL ECONOMY AND PATRIMONY Section 19 ................................................................................................................
Section 1 .................................................................................................................. 487
457 Section 20 ................................................................................................................
Section 2 .................................................................................................................. 489
458 Section 21 ................................................................................................................
Section 3 .................................................................................................................. 490
467 Section 22 ................................................................................................................
Section 4 .................................................................................................................. 490
471 ARTICLE XIII - SOCIAL JUSTICE AND HUMAN RIGHTS
Section 5 .................................................................................................................. Section 1 ..................................................................................................................
471 491
Section 6 .................................................................................................................. Section 2 ..................................................................................................................
473 491
Section 7 .................................................................................................................. Labor
473 Section 6 ...................................................................................................................
Section 8 .................................................................................................................. 521
473 xi
Section 9 .................................................................................................................. Agrarian and Natural Resources Reform
479 Section 4 ..................................................................................................................
Section 10 ................................................................................................................ 494
479 Section 5 ..................................................................................................................
Section 11 ................................................................................................................ 499
481 Section 6 ..................................................................................................................
Section 12 ................................................................................................................ 500
484 Section 7 ..................................................................................................................
Section 13 ................................................................................................................ 500
485 Section 8 ..................................................................................................................
Section 14 ................................................................................................................ 500
485 Urban Land Reform and Housing
Section 15 ................................................................................................................ Section 9 ..................................................................................................................
485 501
Section 10 ............................................................................................................... Section 6 ...................................................................................................................
502 521
Health xii
Section 11 ................................................................................................................ Section 7 ...................................................................................................................
503 521
Section 12 ................................................................................................................ Section 8 ...................................................................................................................
504 523
Section 13 ................................................................................................................ Section 9 ...................................................................................................................
504 523
Women Science and Technology
Section 14 ................................................................................................................ Section 10 ................................................................................................................
504 523
Role and Rights People's Organizations Section 11 ................................................................................................................
Section 15 ................................................................................................................ 523
504 Section 12 ................................................................................................................
Section 16 ............................................................................................................... 523
504 Section 13 ................................................................................................................
Human Rights 523
Section 17 ................................................................................................................ Arts and Culture
505 Section 14 ..................................................... .........................................................
Section 18 ................................................................................................................ 524
505 Section 15 ................................................................................................................
Section 19 ................................................................................................................ 524
507 Section 16 ................................................................................................................
ARTICLE XIV - EDUCATION, SCIENCE AND TECHNOLOGY, 524
ARTS, CULTURE, AND SPORTS Section 17 ................................................................................................................
Education 524
Section 1 ................................................................................................................... Section 18 ................................................................................................................
508 524
Section 2 ................................................................................................................... Sports
511 Section 19 ................................................................................................................
Section 3 ....................................................................... .......................................... 524
512 ARTICLE XV - THE FAMILY
Section 4 ............................................. ..................................................................... Section 1 ...................................................................................................................
513 525
Section 5 ................................................................................................................... Section 2 ...................................................................................................................
516 525
Language
Section 3 ................................................................................................................... Section 4 .................................................................................................................
526 540
Section 4 ................................................................................................................... ARTICLE XVm - TRANSITORY PROVISIONS
527 Section 1 .................................................................................................................
ARTICLE XVI - GENERAL PROVISIONS 552
Section 1 ................................................................................................................... Section 2 .................................................................................................................
528 552
Section 2 ................................................................................................................... Section 3 ..................................................................................................................
528 553
Section 3 ................................................................................................................... Section 4 ..................................................................................................................
528 553
Section 4 ................................................................................................................... Section 5 ..................................................................................................................
536 553
Section 5 ................................................................................................................... Section 6 ..................................................................................................................
536 553
Section 6 ................................................................................................................... Section 7 ..................................................................................................................
537 553
Section 7 ................................................................................................................... Section 8 ..................................................................................................................
537 553
Section 8 ................................................................................................................... Section 9 ..................................................................................................................
538 553
Section 9 ................................................................................................................... Section 10 ................................................................................................................
538 554
Section 10 ................................................................................................................ Section 11 ................................................................................................................
538 554
Section 11 ................................................................................................................ Section 12 ................................................................................................................
538 554
Section 12 ................................................................................................................ Section 13 ................................................................................................................
539 554
xiii Section 14 ................................................................................................................
ARTICLE XVH - AMENDMENTS OR REVISIONS 554
Section 1 ................................................................................................................. Section 15 ................................................................................................................
540 555
Section 2 ................................................................................................................. Section 16 ................................................................................................................
540 555
Section 3 ................................................................................................................. Section 17 ................................................................................................................
540 556
Section 18 ................................................................................................................
556
Section 19 ................................................................................................................
556
Section 20 ................................................................................................................
556
Section 21 ................................................................................................................
556
Section 22 ................................................................................................................
556
Section 23 ................................................................................................................
557
Section 24 ................................................................................................................
557
Section 25 ................................................................................................................
557
Section 26 ................................................................................................................
558
Section 27 ................................................................................................................
562
xiv