Political Law

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In CONSTITUTIONAL LAW

Prepared by: Atty. Larry D. Gacayan

PART I

POLITICAL LAW

1.

Define Political Law

It is that branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. (PEOPLE VS. PERFECTO, 43 Phil. 887)

2. What are included in Political Law?

 Constitutional Law;  Administrative Law  Law of Public Officers  Law on Public Corporation  Election Law

3. What is the doctrine of constitutional

supremacy?

Under the doctrine of constitutional supremacy, if a law or contract violates any

norm of the constitution that law or contract whether

promulgated by the legislative or by the executive branch or entered

into by private persons for private purposes is null and

void and without any force and effect. Thus, since the

Constitution is the

fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract. (Manila

Prince Hotel Corporation Case)

4. What are the requisites for the valid exercise of “people’s initiative” to propose

amendments to the

Constitution?

It is provided under Section 2, Art. XVII of the Constitution which provides that “Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voter therein.” The Congress shall provide for the implementation of the exercise of this right---which means that there must be complete and adequate law for the said purpose.

5. Is there a law which would provide for the mechanism for the people to propose amendments to the Constitution by people’s initiative?

While Congress had enacted RA 6735 purportedly to provide the mechanisms for the people’s exercise the power to amend the Constitution by people’s initiative, the Supreme Court in MIRIAM

DEFENSOR-SANTIAGO, et al. Vs. COMELEC, G.R. No. 127325, March 19, 1997 & June 10, 1997,

the Supreme Court held that RA

6735 is incomplete, inadequate or wanting in essential terms and conditions insofar as initiative on amendments to the

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Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by “empowering” the COMELEC to promulgate such rules and regulations as may be necessary to carry the purposes of this act.

However, in LAMBINO VS. COMELEC, the Supreme Court on November 21, 2006, in the Minute Resolution of the

petitioner’s Motion for

Reconsideration, held that RA No. 6735 is adequate and complete for the purpose of proposing amendments to the Constitution through people’s initiative by a vote of 10 members as per Certification of

the En Banc’s Clerk of Court. 5-a. May the question “Do you approve the amendment of Articles VI and VII of the 1987 Philippine Constitution changing the form of government from Presidential-Bicameral to Parliamentary-Unicameral” be allowed to be submitted to the people for their ratification or rejection as a means of amending the Constitution by people’s initiative if the requisite number of signatories (12% nationwide and at least 3% for every legislative district) are met?

No, for two (2) reasons.

1. The said “proposal” did not indicate which provisions of Articles VI and VII are actually being amended which is a must under Section 2, Art. XVII. Otherwise, who shall make the amendments if the

people in a plebiscite approve the same?;

2. Changing the form of government from presidential to parliamentary is an act of REVISING the Constitution which is not allowed under Art. XVII, Section 2. People’s initiative may only be allowed to propose amendments to the Constitution, not revision.

6. What are the requisites before an amendment to the Constitution by “people’s initiative” is sufficient in form and in substance?

In the case of RAUL L.

LAMBINO and ERICO B. AUMENTADO , together with 6,327,952 registered voters vs.

THE COMMISSION ON

ELECTIONS, G.R. No. 174153, October 25, 2006, 505 SCRA 160,

the following requisites must be present:

1. The people must author and must sign the entire proposal. No agent or representative can sign for and on their behalf;

2. As an initiative upon a petition, THE PROPOSAL MUST BE EMBODIED IN THE PETITION ITSELF.

These essential elements are present only if the full text of the proposed amendments is first shown to the people who will express their assent by signing such complete proposal in a petition. Thus, an amendment

is “DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETIITON “ ONLY IF THE PEOPLE SIGN ON A PETITION THAT CONTAINS THE

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Prepared by: Atty. Larry D. Gacayan FULL TEXT OF THE PROPOSED

AMENDMENTS.

7. Distinguish “Revision” from “amendment” of the Constitution.

“Revision” is the alterations

of the different portions of the entire document [Constitution]. It may result in the rewriting whether the whole constitution, or the greater portion of it, or perhaps some of its important provisions. But whatever results the revision may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the provisions of the Constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one.

“Amendment” of the

Constitution, on the other hand, envisages a change or only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed essential on account of changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading in their effect. (SINCO, Vicente, PHILIPPINE

POLITICAL LAW, as cited in Santiago vs. COMELEC & LAMBINO VS. COMELEC)

8. May Congress propose amendments to the Constitution while at the same time enacting a law calling for a Constitutional

Convention to propose

Constitution?

Yes, there is no prohibition for Congress to propose amendments to the Constitution and at the same time call for the convening of a Constitutional Convention to amend the Constitution. The word “or” in the provision “…Congress, upon a vote of ¾ of all its members; OR [2] A constitutional Convention” under Section 1, Art. XVII also means “AND”. (GONZALES VS. COMELEC, 21 SCRA 774 ). IN SHORT, IT

APPEARS THAT THERE IS NO PROHIBITION FOR CONGRESS, A CONSTITUTIONAL CONVENTION AND THE PEOPLE MAKING A PROPOSAL TO AMEND THE CONSTITUTION AT THE SAME TIME SINCE THIS IS A POWER SEPARATELY GRANTED TO THEM BY THE CONSTITUTION UNDER ART. XVII OF THE 1987 CONSTITUTION.

9. What is the “Doctrine of

Proper Submission” in

connection with proposed

Constitution?

“Doctrine of Proper Submission” means all the proposed amendments to the Constitution shall be presented to the people for their ratification or rejection at the same time, not piecemeal. (TOLENTINO VS. COMELEC, 41 SCRA 702)

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Prepared by: Atty. Larry D. Gacayan 10. What is the

archipelagic doctrine or archipelago theory?

It is the 2nd_{sentence of}

Section 1, Art. I of the Constitution which states that “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.”

11. What are the elements of a “state”?

As held in COLLECTOR VS. CAMPOS RUEDA, 42 SCRA 23, the elements of a state are.

1. people 2. territory 3. sovereignty 4. government

12. Are the two-fold function of government as enumerated by the Supreme Court in BACANI VS. NACOCO, 100 Phil. 468 (Ministrant [merely directory] and Constituent [Mandatory] Functions) still applicable today?

No more as held in ACCFA VS. CUGCO, 30 SCRA 649. This is due to complexities of the changing society, the two-fold function of the government as classified by President Wilson is no longer relevant as a result of the changing society wherein what are considered merely ministrant functions of the State before are now considered constituent , or vice versa.

13. What kind of government was the “Aquino Government” after former

President Marcos left

Malacanang for Hawaii due to the EDSA Revolution in February 1986.

As held in In Re: SATURNINO BERMUDEZ, 145 SCRA 160, the

same is de jure. A government formed as a result of a people’s revolution, is considered de jure if it is already accepted by the family of nations or other countries like the United States, Great Britain, Germany, Japan, and others.

14. What are the three (3) kinds of de facto government?

As held in CO KIM CHAM VS.

VALDEZ TAN KEH, 75 Phil. 113,

the three (3) kinds of de facto governments are:

a. The first, or

government de facto in a proper legal sense, is that government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal governments and maintains itself against the will of the latter, such as the government of England under the Commonwealth, first by Parliament and later by Cromwell as Protector. b. The second is that

which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is denominated a government of paramount force, as the cases

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Prepared by: Atty. Larry D. Gacayan of Castine, in Maine, which

was reduced to British possession in the war of 1812, and Tampico, Mexico, occupied during the war with Mexico, by the troops of the United States.

c. And the third is that established as an independent

government by the

inhabitants of a country who rise in insurrection against the parent state of such as the government of the Southern Confederacy in revolt not concerned in the present case with the first kind, but only with the second and third

kinds of de facto

governments.

"But there is another description of government, called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are

(1), that its existence is maintained by active military power with the territories, and against the rightful authority of an established and lawful government; and

(2), that while it exists it necessarily be obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not become responsible, or wrongdoers, for those acts, though not warranted by the laws of the rightful government.

15. What is the postliminy theory or jus postliminium?

When a foreign power occupies a state and exercises the powers of government, the political laws of the said state are deemed automatically suspended but the former government automatically comes to life and will be in force and in effect again upon the re-establishment of the former government. (Taylor, International Law, p. 615.)

16. What is the doctrine of

sovereignty as “auto

limitation”?

In the succinct language of Jellinek, it "is the property of a

state-force due to which it has the exclusive capacity of legal self-determination and self-restriction." A

state then, if it chooses to, may refrain from the exercise of what

otherwise is illimitable competence." The opinion was at

pains to point out though that even then, there is at the most diminution

of jurisdictional rights, not its disappearance. (Cited in Reagan vs. Commissioner, PEOPLE VS. GOZO,

53 SCRA 476 and

COMMISSIONER VS. ROBERTSON, 143 SCRA 397)

17. What is the “incorporation theory” or the “Incorporation Clause” of the Constitution?

It is the principle embodied in Section 2, Article II of the Constitution which states that “The

Philippines adopts the generally accepted principles of

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law of the land”. (MEJOFF VS. DIRECTOR OF PRISONS, 90 Phil. 70, KURODA VS. JALANDONI, 83 Phil 171, and AGUSTIN VS. EDU, 88 SCRA 195).

18. In case of conflict between a constitutional right of a citizen and a generally

accepted principle of

international law, which shall prevail?

In the case of 4) AGUSTIN VS. EDU, 88 SCRA 195

REYES VS. BAGATSING,125 SCRA 553, the Supreme Court

held that the constitutional right shall prevail. Though Article 22 of the Vienna Convention on Diplomatic Relations prohibits rallies within 500 feet of any foreign embassy, the same shall give way to the constitutional right of the citizens to “peaceably assemble and to petition the government for redress of their grievances”.

19. May a citizen refuse to render personal military service/training because he does not have military inclination or he does not want to kill or be killed?

No as held in PEOPLE VS. LAGMAN, 66 Phil. 13. “The appellant’s argument that he does not want to join the armed forces because “he does not want to kill or be killed” and that “he has no military inclination” is not acceptable because it is his obligation to join the armed forces in connection with the “defense of the State” provision of the Constitution.

20. Is the “separation of church and state” a myth or a reality?

It is a reality as shown by

the following provisions of the Constitution.

1. ART. III, 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.

2. ART. VI, Sec. 28 (3). Charitable institutions, churches, mosques, non-profit cemeteries…actually, directly and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation.

3. ART. VI, Sec. 29 .(2). No public money or property shall be appropriated, applied, paid, for the benefit, directly or indirectly, for the use, benefit, or support of any sect, church, denomination or religion, except when such priest, minister.. is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. 4. ART. IX, C, 2(5). Religious

denominations and sects shall not be registered…as political parties. (NOTE: Religious

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Prepared by: Atty. Larry D. Gacayan organizations are also

prohibited ion connection with sectoral representatives under Art. VI)

5. ART. XIV, Sec. 3(3). At the option in writing by parents, religion shall be allowed to be taught to their children in elementary and high schools within the regular class hours by instructors designated or approved by religious authorities to which said children belong, without additional cost to the government.

21. What are the factors to be considered by the Philippines in dealing with other nations?

As provided in Section 7 of Art. II, The Philippines shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be [1]

national sovereignty, [2]

territorial integrity, [3] national interest, and [4] the right to self-determination,

22. Is there absolute prohibition for the Philippines to be equipped with nuclear weapons?

No, as stated in Section 8, Art. II, “the Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.” As such, if it is consistent with national interest, the same is not prohibited.

23. Is “divorce” prohibited by the 1987 Philippine Constitution?

Father Bernas opines that the provision of the Constitution (Section 12, Art. III) which provides in part that the “State shall strengthen the family” does not take a stand on divorce though it appears that a divorce law would “break” the family instead of “strengthening” it. As such, a Divorce Law to be passed by Congress may or may not be unconstitutional.

23. Is abortion allowed in the Philippines?

Section 12, Art. II prohibits all forms of abortion except “therapeutic abortion” or when the life of the mother is in danger. (Note: In the United States, abortion is allowed but only up to the 2nd

trimester of the pregnancy [ROE vs.

WADE])

24. Is a law prohibiting the sale of “girlie (bold) magazines” to minors violates the right of parents in rearing their children for civic efficiency?

No, as held in the case of

GINSBERG VS. NEW YORK, 390 US 629 (1969), a law prohibiting

the sale of “girlie magazines” [bold?) is constitutional and does not violate the above provision. This is so because parents could buy said magazines for their children if they believe the same is already suitable to the understanding of their child. This is in accordance with this provision which states that the parents have the “natural and primary right in rearing their child for civic efficiency…”

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25. May the State prohibit the teaching of a particular language in any school?

No as held in MEYER VS.

NEBRASKA, 260 US 260 (1922)

because the child is not a mere creature of the State and the parents have the natural right and duty of rearing their children for civic efficiency.

26. May the State require parents to enroll their small children only to public schools valid?

As held in PIERCE VS.

SOCIETY OF SISTERS, 268 US 510 (1925), a law requiring small

kids to be enrolled in public schools only is unconstitutional since it interferes with the right of parents in rearing their children. They have the right to choose which school is best suited for the development of their children without interference from the State. THIS IS SO BECAUSE THE CHILDREN ARE NOT MERE CREATURES OF THE STATE.

27. Do we practice the free enterprise system in the Philippines or is it the welfare state concept? Distinguish the two.

As held in ACCFA VS. CUGCO, 30 SCRA 649 “the Philippines never practiced the free enterprise system. It is the welfare-state concept which is being followed as shown by the constitutional provision on agrarian reform, housing, protection to labor… (NOTE, however, that the 1987 Constitution have provisions which provide for “free enterprise).

The said doctrine was reiterated in

PHILIPPINE COCONUT

DESICCATORS VS. PHILIPPINE COCONUT AUTHORITY, 286 SCRA 109 where it was held that the

Philippine Constitutions, starting from the 1935 document, HAVE REPUDIATED laissez faire (or the doctrine of free enterprise) as an economic principle, and although the present Constitution enshrines free enterprise as a policy, it nevertheless reserves to the government the power to intervene whenever necessary to promote the general welfare. As such, free enterprise does not call for the removal of “protective regulations” for the benefit of the general public. This is so because under Art. XII, Sections 6 and 9, it is very clear that the government reserves the power to intervene whenever necessary to promote the general welfare and when the public interest so requires.

27-a. Is the Trade Liberalization Act of 2000, RA No.

8762 which allows foreigners to engage in retail trade in the Philippines violative of Secs. 9, 19

and 20 , At. II of the Constitution which mandates that the national

economy shall be effectively controlled by Filipinos?

No, said law is constitutional. As held by the Supreme Court in REP. GERARDO

ESPINA ET AL VS. EXEC. SEC. RONALDO ZAMORA, G.R. No. 143855, September 21, 2010 (The

Trade Liberalization Act of 2000, RA No. 8762) which allows foreigners to engage in retail

trade in 4 categories is not unconstitutional for alleged violation of Secs. 9, 19 and 20 of

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national economy shall be effectively controlled by Filipinos. The constitutional provisions does not prohibit foreign investments BUT ONLY

TO REGULATE THE SAME. As such, the claim that as a result of the law, WALMART and KMART

retailers could come to the Philippines and would KILL Filipino retailers has no basis because foreign participation in

retail business is limited.

27-b. May the PCGG Commissioners refuse to appear

before a Senate Committee conducting alleged irregularities committed by them while sitting in the Board of PHILCOMSAT, a private firm sequestered by the

government on account of Executive Order No. 1 providing

that they should not be the subject of any investigation in

connection with their acts in connection with the performance of their duties as

such?

No. Such act would violate Section 28, Art. II of the

Constitution mandating disclosure of all public transactions involving the public

interest. Such act would also violate the “right to information on matters of public concern” as

well as the “public

accountability of public officials” as embodied in Section 1, Art. XI of the 1987 Constitution, not to mention that such would render

nugatory the power of Congress under Section 21, Art. VI. IN FACT, GOVERNMENT OFFICIALS HAVE ONLY A LIMITED RIGHT TO

PRIVACY. (SABIO VS. GORDON, 504 SCRA 704)

28. What Are the limitations to the Congress power to exercise legislative power?

The limitations are:

1. it cannot pass irrepealable laws

2. principle of separation of powers

3. non-delegability of legislative powers

29. What are the constitutionally allowed “delegation of legislative power” by Congress?

The permissible delegation of legislative power are.

1) Sec. 23 (2) of Article VI (Emergency powers to the President in case of war or other national emergency, for a limited period and subject to such restrictions as Congress may provide, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by Resolution of Congress, such powers shall cease upon the next adjournment thereof.

2) Sec. 28 (2) of Article VI. The Congress may by law, authorize

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Prepared by: Atty. Larry D. Gacayan 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) Delegation to local

governments

4) Delegation of Rule-making

power to administrative bodies

5) Delegation to the People

(Section 2, Art. XVII of the

Constitution and Section 32, Article VI---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 laws or approve or reject any act or law or part thereof passed by the Congress of local legislative body after the registration of a petition thereof signed by at least 10% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voters thereof.

30. What is the completeness test? The sufficiency of standard test?

As held in PELAEZ VS.

AUDITOR GENERAL, 15 SCRA 569:

(a) Completeness Test simply means that the law must be complete in itself when it left Congress. It must set forth therein the policy to be executed, carried out or implemented by the delegate which is not given any discretion; and

(b) Sufficiency of

Standards Test simply requires Congress to fix a standard, the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions. Some of the standards to guide the delegate are general welfare, public interest, etc.

31. Is it constitutional for the COMELEC to require candidates for all elective offices, including those for President, VP, Senators and members of the House of Representatives to submit a Certification from a government-accredited drug-testing centers that they are free from prohibited drugs before their Certificate of Candidacy is admitted?

No, the COMELEC Resolution is unconstitutional. It adds additional qualifications to those provided for by the Constitution for the President, VP, Senators and Members of the House of Representatives. (PIMENTEL VS. COMELEC, G.R.

No. 161658, November 3, 2008)

31-a. Is a Filipino citizen who became a member of the US Armed Forces and therefore at one time a US Citizen considered “natural born” for purposes of

complying with the

qualifications of a member of the House of Representatives?

Yes as held in ANTONIO

BENGSON III VS. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and TEODORO CRUZ, 357 SCRA 545 because Rep. Act No.

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Prepared by: Atty. Larry D. Gacayan had lost his Philippine Citizenship by

rendering service to, or accepting commission in, the Armed Forces of the United States, or after separation from the Armed Forces of the United states, acquired US citizenship, MAY REACQUIRE PHILIPPINE CITIZENSHIP BY TAKING AN OATH OF ALLEGIANCE TO THE REPUBLIC OF THE PHILIPPINES AND REGISTERING THE SAME WITH THE LOCAL CIVIL REGISTRY IN THE PLACE WHERE HE RESIDES OR LAST RESIDED IN THE PHILIPPINES. The said Oath of allegiance shall contain a renunciation of any other citizenship.” And he shall still be considered “natural born” Filipino citizen.

32. If the candidate for Congressman is subsequently disqualified for non-compliance of the residence requirement under Art. VI, may the 2nd_placer be declared the winner in his place? When may the 2nd_placer be allowed to be declared the winner?

It depends. As held in

OCAMPO VS. HOUSE ELECTORAL TRIBUNAL and MARIO CRESPO,

a.k.a. MARK JIMENEZ, June 15, 2004.

1. There must be a final judgment disqualifying a candidate in order that the votes of a disqualified candidate can be considered “stray”. This final judgment must be rendered BEFORE

THE ELECTION. (FR. NARDO CAYAT VS. COMELEC, 2007). This was the ruling in

the case of CODILLA VS. DE

VENECIA. Hence, when a candidate has not been disqualified by final judgment and on election day he obtained the highest number of votes, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the

electorate in whom

sovereignty resides. The reason behind this is that the people voted for him bona fide and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government.

2. The disqualification of a candidate who obtained the highest number of votes

AFTER THE ELECTION does

not entitle the second placer to be declared the winner. The said principle was laid down as early as 1912 in TOPACIO

VS. PAREDES and reiterated

in the cases of LABO VS.

COMELEC, ABELLA VS. COMELEC and DOMINO VS. COMELEC.

32-a. In order to validly create an aditional district for Cagayan de Oro City, must the law creating it be first submitted to the people therein in a plebiscite in accordance with Section 10, Art. X of the 1987 Constitution?

No, because the creation of another district when the same is warranted as when there is an increase of population justifying the creation of a new district does not create a new or divide a local

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Prepared by: Atty. Larry D. Gacayan government unit. What is

applicable is Section 5, Art. VI of the Constitution, not Section 10, Art. X. (BAGABUYO VS. COMELEC, December 8, 2008)

32-b. Is the creation of a fifth district in Camarines Sur by dividing the existing 1st District into two (2) valid even though it will only have 177,000 plus population which is short of 250,000 as required under Section 5 [3], Art. VI of the Constitution?

No. The 250,000

population requirement applies only to make a city entitled to one legislative district or in the creation of a new province, NOT IN THE

CREATION OF A NEW DISTRICT IN AN EXISTING PROVINCE.

(BENIGNO AQUINO III VS.

COMELEC, April 7, 2010) [Dissenting Opinion of Justice Carpio: If the majority ruling is to be followed, as long as the new district or districts will be carved out from an existing province, then, even an area with only 200 inhabitants are allowed to constitute a new district? It violates the requirement of proportional representation as well as based on “uniform and progressive ratio”]

32-c. Is the law creating the new legislative district for Malolos City constitutional

since the National Statistics Office had projected that it will have a population of 254,030 by ”the year 2010”?

No, there must be 250,000 population on or before the May 10, 2010 elections. In this case, it was not clear that it has complied with the population requirement on election day. 2010 is up to December of said year. (ALDABA

VS. COMELEC, G.R. No. 188078, January 25, 2010)

32-d. In the computation of party-list representatives, is the Veterans Federation Party vs. COMELEC Formula or the Panganiban Formula still applicable?

No more because it results in a mathematical impossiblity. To strictly comply with it requiring at least 2% for every sectoral representative to obtain in order to garner 1 seat would require 116% in order that there will be 58 sectoral representatives [in 20130 based on the number of legislative districts at present. Also, the 20% party-list membership in the House of Representatives shall be fully filled up, not just 20, 21, 22, or 23 when the Panganiban Formula was used.

32-e. Is Dan Fernandez qualified to run for Congressman of the First District of Laguna since he is renting an apartment in Sta. Rosa, Laguna, even though

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Prepared by: Atty. Larry D. Gacayan his residential house is at

Pagsanjan, Laguna which is a part of the 5th_{district where} he was residing before though he resided in that rented apartment for more than 1 year before the 2007 elections?

Yes. Ownership of a real property in the place where one runs for Congressman is not required by Section 6, Art. VI of

the Constitution. (DAN

FERNANDEZ VS. HRET, December 21, 2009)

32-f. If a candidate for the House of Representatives, actor Richard Gomez, was disqualified by the COMELEC based on Section 78 of the Omnibus Election Code because “he was not a resident of Ormoc City” at least one (1) year before the May 10, 2010 elections, may he be substituted by his wife Lucy Torres? Assuming Lucy wins, may she validly be declared the representative for said District?

No, a candidate disqualified under Section 78 of the Omnibus Election Code cannot be substituted because the Certificate of Candidacy of of Richard is not valid for lack of the qualification mandated by the Constitution. A valid COC is a condition sine qua non for a valid candidate substitution. Thewre was “material representation” in the COC of Richard when he claimed he is a resident of Ormoc City when he was not. As such, Richard was not considered a “candidate” or there was no candidate to speak of so there

would be no candidate to be substituted.

It is different for a candidate disqualified under Section 68 of the OEC. He could be substituted because he has all the qualifications but was disqualified due to an election offense like vote-buying, terrorism, etc. (TAGOLINO VS. HOUSE OF

REPRESENTATIVES

ELECTORAL TRIBUNAL AND LUCY TORRES-GOMEZ, March 19, 2013)

33. In case of vacancy in the Senate or in the House of Representatives under Section 9 of Article VII, is it automatic for the COMELEC to hold a special election?

No, there must be a law passed by Congress appropriating the funds for the said purpose.

( LOZADA vs. COMELEC, 120

SCRA 337)

34. While a Member of Congress is not allowed to appear as counsel for any party in court or before administrative bodies, may he do so as a “stockholder”?

No as held in PUYAT vs. DE GUZMAN, 113 SCRA 31. What could not be done directly could not likewise be done indirectly.

So a member of Congress who is a stockholder of the corporation involved in a case is not allowed to

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Prepared by: Atty. Larry D. Gacayan appear under the guise that he is

appearing as such, not as counsel for the corporation.

(Note: Was the Supreme Court correct in allowing Senator Joker Arroyo to argue before the Supreme Court as COUNSEL for the Senate of the Philippines in the cases

(Drilon vs. Ermita, NERI vs. Blue Ribbon Committee, etc.) where

the Senate was a respondent therein despite Section 14, Art VI which provides that “No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice…”?

35. May a court suspend a member of Congress when Section 16 [3], Article VI appears to give such exclusive power to each House only for disorderly behavior, and with the concurrence of 2/3 of all its members, suspend or expel a Member. A penalty of suspension, when imposed, shall mot exceed sixty days?

Yes, this was the rulings of the Supreme Court in the cases of

MIRIAM DEFENSOR and REP. PAREDES VS. SANDIGANBAYAN. RA 3019 applies to all

government officers and

employees.

36. In case of conflict between the entries in a journal of both Houses of Congress and extraneous evidence like affidavits of witnesses, which shall prevail?

As held in U.S. vs. PONS, 34 Phil. 729, the journal prevails over extraneous evidence like accounts of newspaper journalists and reporters as to what the proceedings all about.

37. In case of conflict between the journal and the enrolled bill, which shall prevail?

In CASCO PHIL. VS. GIMENEZ, 7 SCRA 347, it was held by the Supreme Court that The enrolled bill prevails over the journal. If the enrolled bill provides that it is urea formaldehyde is the one exempt from tax, and not urea and

formaldehyde which

appears in the journal which was really approved, the former prevails and only CURATIVE LEGISLATION COULD CHANGE THE SAME, NOT JUDICIAL LEGISLATION. However, if the President of the Philippines, Senate President and the Speaker of the House of Representatives withdraw their signatures as a result of an anomaly surrounding the printing of the final copy of the bill, then, the journal will prevail since what is left is no longer considered an “enrolled bill.”

(NOTE, however, that the journal prevails over the enrolled bill on all matters required to be entered in the journals, like yeas and nays on the final reading of a bill or on any question at the request of

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Prepared by: Atty. Larry D. Gacayan 1/5 of the members present.

[Justice Isagani Cruz])

38. May the COMELEC continue to decide a pending disqualification

petition against a

candidate for the House of Representatives after said

candidate has been

proclaimed and already discharging his duties as such?

No more. Only the House of Representatives Electoral Tribunal (HRET) has the jurisdiction to do that being “the sole judge of all contests relating to the election, returns and qualifications” of said Member in accordance with Section 17, Art. VI of the Constitution. [LIMKAICHONG

VS. COMELEC, April 1, 2009]

38-a. How about members

of the House of

Representative

representing the party-list groups?

All questions regarding the qualifications of members of the different party-list groups are within the exclusive jurisdiction of the HRET after their proclamation as such and that the COMELEC may no longer continue to decide it. (ABAYON & PALPARAN VS.

HRET, February 11, 2010)

38-b. May Lesbians, Gays, Bisexuals and Transgenders marginalized or under-represented considering that they are not included

in the twelve “marginalized groups” enumerated by the Supreme Court in ANG BAGONG BAYANI VS. COMELEC?

Yes because the

enumerated sectors therein, i.e., labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals, “is not exclusive”.

38-c. May an individual who does not belong to a particular marginalized group validly become the nominee of said sector?

Yes provided he must have a

track record of advocacy for their respective sectors. (ATONG

PAGLAUM, INC VS. COMELEC, G.R. No. 203766, and companion cases, February 26, 2013).

38-d. May national parties qualified to join the party-list

elections?

While the Supreme Court answered the same in the negative in the cases of Ang Bagong Bayani and BANAT, they were allowed in

ATONG PAGLAUM, INC VS. COMELEC, G.R. No. 203766, and companion cases, February 26, 2013.

38-e. May Congress change the existing membership of

the Commission on

Appointments or Electoral Tribunals as a result of the changes of membership of

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Prepared by: Atty. Larry D. Gacayan the different political

parties?

Yes If the changes in the political party affiliations of the members of Congress is substantial and at the same time permanent so as to dramatically increase the membership of one party while significantly reducing the other, the number of representatives of the different parties in the Commission on Appointments may also be changed in proportion to their actual memberships. [DAZA VS. SINGSON, December 21, 1989] (NOTE: In

Cunanan vs. Tan, the

membership of the

Senators was only

“temporary” so as not to result in the change of

membership in the

Commission on Appointments) 38-f. May a political party

(LDP) replace its

representative in the House of Representatives Electoral Commission who, in a preliminary voting in a protest case against an LDP Member, voted in favor of the other party and against the candidate of his very own party?

While as a rule the different political parties may change their representatives in the Electoral Tribunal or Commission on Appointments, it may not change a Member who completely heard and participated in a particular case [and has already indicated his vote to the

members of the tribunal] and replace him with another who has no participation therein, except only to vote for a party-mate who is involved in the protest. Such would be a travesty of justice. (BONDOC VS. PINEDA, September 26, 1991)

39. May a committee of Congress cite a person for contempt of court for refusing to answer its questions during investigations in aid of legislation? How long may it imprison such witness?

As held in ARNAULT vs. NAZARENO, 87 Phil. 29, “A witness who refuses to answer a query by the Committee may be detained during the term of the members imposing said penalty but the detention should not be too long as to violate the witness’ right to due process of law.”

40. May the President validly prohibit members of the Cabinet and those of the executive department from appearing before any Committee of Congress without her consent?

It depends. If the appearance is due to the power of Congress to investigate in aid of legislation under Section 21, Art. VI, such act of the President is unconstitutional for it would violate the oversight powers of Congress and because the appearance of said executive officers is MANDATORY. It would also violate the right to information on the part

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Prepared by: Atty. Larry D. Gacayan of the citizens. However, if the

invitation to appear is based on Section 22, Art. VI or during the “question hour”, then the President may validly demand that they must get her consent first because such appearance is DISCRETIONARY. (SENATE OF THE PHILIPPINES,

represented by SENATE

PRESIDENT FRANKLIN DRILON, ET AL., VS. EXEC. SEC. EDUARDO ERMITA, ET AL., G.R. No. 16977, April 20, 2006 , 488 SCRA 1)

40-a. While a Member of the Cabinet may be compelled to appear before Congress under Section 21, Art. VI of the Constitution, may he be compelled to answer questions regarding his conversations with the President on matters subject of the investigation/inquiry in aid of legislation?

NOIF THE CONVERSATIONSARE COVEREDBYTHE “EXECUTIVE PRIVILEGE”.

40-B. EXPLAIN THE “EXECUTIVE PRIVILEGE” DOCTRINE. DISTINGUISH THE “PRESIDENTIAL COMMUNICATIONS PRIVILEGE” AND THE “DELIBERATIVE PROCESS PRIVILEGE” WHICH COMPRISE SAID “EXECUTIVE PRIVILEGE”. WHO ARE COVERED BY THIS RULE?

The Nixon and post-Watergate cases established the broad contours of the presidential

communications privilege . In United States v. Nixon , the U.S. Court recognized a great public interest in preserving “the

confidentiality of conversations that take place in the President’s performance of his official duties.” It thus considered

presidential communications as “presumptively privileged.”

Apparently, the presumption is founded on the “President’s

generalized interest in

confidentiality.” The privilege is

said to be necessary to guarantee the candor of presidential advisors and to provide “the President and

those who assist him… with freedom to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”

In In Re: Sealed Case, the U.S. Court of Appeals delved deeper. It ruled that there are two (2) kinds of executive privilege; one is the

presidential communications privilege and, the other is the deliberative process privilege .

The former pertains to

“communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential.” The latter includes ‘advisory opinions,

recommendations and

deliberations comprising part of

a process by which

governmental decisions and policies are formulated.”

Accordingly, they are

characterized by marked

distinctions. Presidential

communications privilege

applies to decision-making of the

President while, the deliberative process privilege, to decision-making of executive officials.

The first is rooted in the

constitutional principle of separation of power and the President’s unique constitutional role; the

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Prepared by: Atty. Larry D. Gacayan privilege. Unlike the deliberative

process

privilege, the presidential

communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones ._{As a}

consequence, congressional or judicial negation of the presidential

communications privilege is

always subject to greater scrutiny than denial of the deliberative

process privilege.

Turning on who are the officials covered by the presidential

communications privilege, In Re: Sealed Case confines the privilege only to White House Staff that has

“operational proximity” to direct

presidential decision-making. Thus, the privilege is meant to encompass only those functions that form the core of presidential authority, involving what the court characterized as “quintessential and non-delegable Presidential power,” such as commander-in-chief power, appointment and removal power, the power to grant pardons and reprieves, the sole-authority to receive ambassadors and other public officers, the power to negotiate treaties, etc .

The situation in Judicial Watch, Inc. v. Department of Justice ,_tested

the In Re: Sealed Case principles. There, while the presidential decision involved is the exercise of the President’s pardon power, a non-delegable, core-presidential function, the Deputy Attorney General and the Pardon Attorney were deemed to be too remote from the President and his senior White House advisors to be protected. The Court conceded that functionally those officials were

performing a task directly related to the President’s pardon power, but concluded that an organizational test was more appropriate for confining the potentially broad sweep that would result from the In Re: Sealed Case’s functional test. The majority concluded that, the lesser protections of the deliberative process privilege would suffice. That privilege was, however, found insufficient to justify the confidentiality of the 4,341 withheld documents.

The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential

communications privilege, to wit:

1) The protected

communication must

relate to a

“quintessential and non-delegable presidential power.”

The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President.

The presidential

communications

privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought

“likely contains

important evidence” and by the unavailability of

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the information

elsewhere by an appropriate investigating authority .

Simply put, the bases are

presidential communications privilege and executive privilege on

matters relating to diplomacy or

foreign relations.

Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the

presidential communications

privilege. First, the

communications relate to a “quintessential and non-delegable power” of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence . Second, the communications are “received” by a close advisor of the President. Under the “operational proximity” test, petitioner can be considered a close advisor, being a member of President Arroyo’s cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.

(NOTE: In Nixon, the US Supreme Court held that invocation of “executive privilege” is unavailing if it

involves the

commission of a crime and there is already a pending criminal case.)

We see no dispute on this. It is settled in United States v. Nixon ,

that “demonstrated, specific need for evidence in pending criminal

trial” outweighs the President’s

“generalized interest in

confidentiality.” However, the present case’s distinction with the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the information is requested and it is the demands of due process of law and the fair administration of criminal justice that the information be disclosed. This is the reason why the U.S. Court was quick to “limit the scope of

its decision.” It stressed that it is “not concerned here with the balance between the President’s

generalized interest in

confidentiality x x x and congressional demands for information.” Unlike in Nixon, the

information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, on the

procedural setting or the context

in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of

presidential communications privilege in relation to her executive

and policy decision-making process and diplomatic secrets.

41. May a person validly refuse to honor an invitation to appear before the Senate Blue

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Prepared by: Atty. Larry D. Gacayan Ribbon Committee in connection

with its alleged investigation “in aid of legislation”?

Yes. In Bengzon, Jr. vs.

Senate Blue Ribbon Committee, Nov. 20, 1991, it was held that “the

power of both houses of Congress to conduct inquiries in aid of legislation is not, absolute

or unlimited. "The rights of persons appearing in or affected

by such inquiries shall be respected." It follows then that the rights of persons under the Bill of Rights must be respected,

including the right to due process and the right not to be

compelled to testify against one's self. But broad as is this

power of inquiry, it is not unlimited. There is no general authority to expose the private

affairs of individuals without justification in terms of the functions of Congress. Nor is the Congress a law enforcement

or trial agency. These are functions of the executive and

judicial departments of government. No inquiry is an end in itself; it must be related

to and in furtherance of a legitimate task of Congress. Investigations conducted solely for the personal aggrandizement

of the investigators or to "punish" those investigated are

indefensible. As such, if the person invited is already an

accused before the

Sandiganbayan or facing a case in the Ombudsman in connection

with a subject matter related to the House or Senate inquiry, then he could validly refuse to

attend to said hearing.

41-a. May the PCGG Chairman and commissioners refuse to attend inquiries in ad of legislation being done by the Senate because Executive Order No. 1 provides that they should not be questioned regarding their activities as such?

No, the provision of Exec. Order No. 1 regarding their privilege not to attend such hearings is unconstitutional. It violates Section 28, Art. II, The right to information under Art. III, Section 21, Art. VI and Section 1, Art. XI or the accountability of public officers.

41-b. May local legislative bodies validly cite a person in contempt of court (as what Congress could do) for refusing to appear therein or to answer the questions of the members thereof?

No. In NEGROS ORIENTAL II

ELECTRIC COOPERATIVE VS.

SANGGUNIANG PANGLUNGSOD OF DUMAGUETE CITY, G.R. No. 72492, Nov. 5, 1987, 155 SCRA 421, the Supreme Court held that such power was not delegated by Congress to local government units.

41-c. May the Senate Committee on Foreign Affairs conduct an investigation of an incident involving ranking members of the PNP that took place in Moscow, Russia?

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Prepared by: Atty. Larry D. Gacayan Yes. It has the authority to

investigate on “all matters relating to the relations of the Philippines with all other nations”. (DE LA PAZ

VS. SENATE COMMITTEE ON FOREIGN AFFAIRS, February 13, 2009)

42. What are the bills that must exclusively originate from the House of Representatives?

Under Section 24, Art. VI, All

appropriations, 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. (NOTE: In Tolentino vs.

Secretary of Finance, the Supreme

Court held that the E-VAT Law is constitutional even if the same was the

VERSION which came from the Senate, not from the House of Representatives. This is so because the Senate is allowed to “propose amendments” to bills which

must exclusively originate from the House of Representatives.)

43. When is transfer of appropriations allowed by the

Constitution?

Only those covered by Section 25 [5] which provides that “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 the 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.”

44. What is the so-called “executive impoundment”?

It means that although an item of appropriation is not vetoed by the President, he however refuses for whatever reason, to spend funds made possible by Congress. It is the failure to spend or obligate budget authority of any type. Proponents of impoundment have invoked at least three (3) principal sources of authority of the President. [1] authority to impound given to him by Congress, either expressly or impliedly; [2] the executive power drawn from his power as Commander-in-chief; and [3] the Faithful execution clause of the Constitution. Note that in this case the SC held that the Countryside Development Fund (CDF) or “Pork Barrel” of Congressmen and Senators is CONSTITUTIONAL because the same is “set aside for ‘infrastructure, purchase of ambulances and computers and other priority projects and activities, and credit facilities to qualified beneficiaries as proposed and identified by said Senators and Congressmen. (PHILCONSA VS.

ENRIQUEZ, 235 SCRA 506)

45. May the President refuse to enforce a law on the ground that in his opinion it is unconstitutional?

No. Otherwise, he will be violating the doctrine of separation of powers because by doing so, he will be arrogating unto himself the power to interpret the law, not