Prepared by
ATTY. LARRY D. GACAYAN
Professor of Law
UNIVERSITY OF THE CORDILLERAS
COLLEGE OF LAW Baguio City
(POLITICAL LAW REVIEW, CONSTITUTIONAL LAW I, CONSTITUTIONAL LAW II )
BAR REVIEWER
(Political Law)
Cosmopolitan Review Center (CRC)
Baguio City Branch, UC, Baguio City
Baguio Powerhaus Law Review Center
Baguio City
****************************************** PART I---Constitution of Government
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.
4. What are the requisites for the exercise of “people’s initiative” to amend 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.
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 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.
In LAMBINO VS. COMELEC, however, 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 A PETITION.
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 OCNTAINS THE 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)
8. May Congress propose amendments to the Constitution while at the same time calling for a Constitutional Convention to amend the 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)
9. What is the “Doctrine of Proper Submission” in connection with proposed amendments to the Constitution?
“Doctrine of Proper Submission” means all the proposed amendments to the Constitution shall be presented to the people for the ratification or rejection at the same time, not piecemeal. (TOLENTINO VS. COMELEC, 41 SCRA 702)
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 “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 Malaqcanang 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 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 international law as part of the 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
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 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]
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…”
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. 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. (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 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) 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 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. 2630 provides that “Any person who 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 2 nd 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. This was the ruling in the case of CODILLA VS. DE VENECIA. Hence, when a candidate has not been disqualified by final judgment during the election day he was voted for, 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 and reiterated in the cases of LABO VS. COMELEC,
ABELLA VS. COMELEC and DOMINO VS. COMELEC.
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 appear under the guise that he is appearing as such, not as counsel for the corporation.
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 1/5 of the members present. [Justice Isagani Cruz])
38. May Congress change the existing membership of the Commission on Appointments or Electoral Tribunals as a result of the changes of membership of 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. (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-a. 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 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?
No if the conversations are covered by the “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.2[28] In United States v. Nixon,3[29] 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,4[30] 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 second on common law 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 ones5[31] As a consequence,
2 [28] CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law,
Practice and Recent Developments at p. 2.
3[29] 418 U.S. 683.
4[30] In Re: Sealed Case No. 96-3124, June 17, 1997. 5[31] Id.
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.6[32]
The situation in Judicial Watch, Inc. v. Department of Justice7[33]
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.
But more specific classifications of communications covered by executive privilege are made in older cases. Courts ruled early that the Executive has a right to withhold documents that might reveal military or
state secrets,8[34] identity of government informers in some
circumstances,,9[35] and information related to pending investigations.10[36]
An area where the privilege is highly revered is in foreign relations.
Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG11[38], this Court held that there is a
“governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other security matters.” In Chavez v. PEA,12[39] there is also a recognition of the confidentiality of
Presidential conversations, correspondences, and discussions in closed-door
6[32] CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and
Recent Developments at pp. 18-19.
7 [33] 365 F.3d 1108, 361 U.S.App.D.C. 183, 64 Fed. R. Evid. Serv. 141.
8[34] See United States v. Reynolds, 345 U.S. 1, 6-8 (1953); Chicago v. Airlines, Inc. v. Waterman
Steamship Corp., 333 U.S. 103, 111; Totten v. United States, 92 U.S. 105, 106-107 (1875).
9 [35] Roviaro v. United States, 353 U.S. 53, 59-61.
10 [36] See Friedman v. Bache Halsey Stuart Shields, Inc. 738 F. 2d 1336,1341-43 (D.C. Cir.
1984).
11 [38] 360 Phil. 133 (1998). 12[39] Supra.
Cabinet meetings. In Senate v. Ermita, the concept of presidential
communications privilege is fully discussed.
As may be gleaned from the above discussion, the claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-in-chief,13[40] appointing,14[41] pardoning,15 [42] and diplomatic16[43] powers. Consistent with the doctrine of separation of
powers, the information relating to these powers may enjoy greater confidentiality than others.
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.”
2) 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.
3) 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 the information elsewhere by an appropriate investigating authority.17[44]
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.18[45] 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
13 [40] Section 18, Article VII. 14 [41] Section 16, Article VII. 15 [42] Section 19, Article VII.
16 [43] Section 20 and 21, Article VII.
17[44] CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law Practice and
Recent Developments, supra..
18[45] Bernas, S.J., The 1987 Constitution of the Republic of the Philippines, A Commentary, 2003 Ed.
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. Nixon19[48]
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 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.
41. 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.
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 merely to implement it. (L.S. MOON & CO. VS. HARRISON, 43 Phil.38)
2) GOV'T. VS. SPRINGER, 50 Phil. 529, read also the separate opinion.
46. The President of the Philippines, by Administrative Order, mandates the “ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM” and appropriating funds therefore?Is this within his “executive power”?
No as held by the Supreme Court in BLAS OPLE VS. RUBEN TORRES, ET AL., G.R. No. 127685, July 23, 1998, the AO establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizens and foreign residents and therefore, it is supposed to be a law passed by Congress that implements it, not by an Administrative Order issued by the President. Administrative Power, which is supposed to be exercised by the President, is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. Prescinding from the foregoing precepts, AO 308 involves a subject that is not appropriate to be covered by an Administrative Order. An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of the government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. The subject of AO 308 therefore is beyond the power of the President to issue and it is a usurpation of legislative power.
47. What is the “totality test” used by the Supreme Court in holding that former President Joseph Estrada resigned as President on January 20, 2007?
THIS IS THE TOTALITY TEST, THE TOTALITY OF PRIOR, CONTEMPORANEOUS AND POSTERIOR FACTS AND CIRCUMSTANTIAL EVIDENCE BEARING MATERIAL RELEVANCE TO THE ISSUE.
48. Is President Gloria Macapagal Arroyo a de jure or a de facto President? If de jure, how did she succeed? Resignation or permanent disability of former President Estrada?
Since both Houses of Congress had recognized that Arroyo is the President when they passed Resolution “expressing their support to the administration of Her Excellency Gloria Macapagal Arroyo, President of the Philippines” which was passed on January 24, 2001; another resolution dated January 24, 2001 “expressing full support to the assumption into office by VP Arroyo as President of the Philippines”; and the Resolution dated February 7, 2001 “confirming President Arroyo’s nomination of Senator Teopisto Guingona, Jr. as Vice President of the Philippines”, her government is de jure.
49. May the President makes appointment to vacancies in the judiciary within two months immediately before the next presidential election and up to the end of his term” in order to comply with the requirement of Sections 4 and 8, Art. VIII for him to fill up vacancies in the judiciary within 90 days from the submission of the list of nominees by the Judicial and Bar Council?
No. Section 15, Article VII applies only to temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety and not to the judiciary.
50. What appointments made by the President shall be the subject of confirmation by the Commission on Appointments?
Only those covered by the 1st sentence of Section 16, Art. VII which
are 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 are vested in him in this Constitution.
51. May the President make temporary appointments involving the members of the Cabinet while Congress in session or not in session? Distinguish ad interim appointment and appointment in an acting capacity.
Yes provided the temporary appointments of cabinet members do not exceed one (1) year. (SEN. AQUILINO PIMENTEL, et al., vs. EXEC. SECRETARY EDUARDO ERMITA, et al., 472 SCRA 587)
1. The temporary appointments are valid. The power to appoint is essentially executive in nature and the legislature may not interfere with the exercise of this executive power except in those instances when the Constitution expressly allows it to interfere. The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office. In case of vacancy in an office occupied by an alter ego of the President, such as the office of a department secretary, the President must necessarily appoint an alter ego of her choice as
acting secretary before the permanent appointee of her choice could assume office. Congress, through a law cannot impose on the President the obligation of automatically appointing the Undersecretary as her alter ego. He must be of the President’s confidence and provided that the temporary appointment does not exceed one (1) year.
There is a need to distinguish ad interim appointments and appointments in an acting capacity. While both are effective upon acceptance, ad interim appointments are extended only during the recess of Congress, whereas acting appointments may be extended any time that there is a vacancy. Moreover, ad interim appointments are submitted to the Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the Commission on appointments. Acting appointments are a way of temporarily circumventing the need of confirmation by the Commission on Appointments.
52. What is the “take care power” of the President of the Philippines?
It is the power of the President under Section 17, Art. VII which provides that The President shall have control of all the executive departments , bureaus and offices. He shall ensure that the laws be
faithfully executed.
53. What is the power of control of the President. Distinguish it from power of supervision.
"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 test of the latter." "Supervision" on the other hand means "overseeing or the power or authority of an officer to see that subordinate officers perform their duties. (MONDANO VS. SILVOSA)
54. May the President validly require all officers and employees under the executive department to maintain ID systems and have ID cards?
Yes in accordance with her power of control under Section 17, Art. VII of the Constitution. (KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006) But not for a national ID system which includes civilians as held in Ople vs. Torres, supra.
55. What is the doctrine of qualified political agency?
It simply means that “the President is not expected to perform in
The Office of the Executive Secretary is an auxillary unit which assists the President. Under our constitutional set-up, the Executive Secretary acts for and in behalf of the President: and by authority of the President, he has undisputed jurisdiction to affirm, modify, or even reverse any order of the Secretary of Natural Resources and other Cabinet Secretaries. Where the
Executive Secretary acts "by authority of the President" his decision is that of the President. (Lacson-Magallanes Co., Inc. vs. Pano, 21 SCRA 895).
56. What are the differences between the power of the President to declare martial law or suspend the privilege of the writ of habeas corpus under the 1987 Constitution and the previous Constitutions?
Under the 1987 Philippine Constitution, such acts of the President may be reviewed not only by the Supreme Court but also the Congress of the Philippines. Previously, such would be considered “political question” which is beyond the review powers of the courts. Likewise, there is a definite period for the said suspension unlike before and more importantly, the grounds are only invasion and rebellion WHEN THE PUBLIC SAFETY REQUIRES IT. 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 suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within 30 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 3 days, otherwise, he shall be released.
57. May the President under the 1987 Constitution validly issue decrees after declaring a state of national emergency. May she direct the take over of business affected with national interest by reason of the “emergency” which she herself proclaimed?
I n t h e c a s e o f PROF. RANDOLF S. DAVID, et Al
VS. GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, et al., G.R. No. 171396, May 3, 2006, it was
held that in declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the State’s extraordinary power to take over privately-owned public utility and business affected with public interest. The Supreme Court ruled that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate “decrees.” Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically states that “[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives.” To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees.
Likewise, the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is also unconstitutional. This requires a delegation from Congress.
58. What are the requisites of judicial review?
Courts may exercise the power of judicial review only when the following requisites are present: first, there must be an actual case or controversy; second, petitioners have to raise a question of unconstitutionality; third, the constitutional question must be raised at the earliest opportunity; and fourth, the decision of the constitutional question must be necessary to the determination of the case itself.
59. When may the courts still validly decide moot and academic cases?
A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events,20 so that a declaration thereon
would be of no practical use or value. Generally, courts decline jurisdiction over such case21 or dismiss it on ground of mootness. The “moot and
academic” principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if:
first, there is a grave violation of the Constitution (Province of
Batangas vs. Romulo, .R. No. 152774, May 27, 2004, 429 SCRA 736).
second, the exceptional character of the situation and the paramount public interest is involved (Lacson vs. Perez, G.R. No.
147780, May 10, 2001, 357 SCRA 756);
third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public (Province of Batangas vs. Romulo); and
20 Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.
21 Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421 SCRA 21; Vda. De Dabao v. Court of Appeals, supra.
fourth, the case is capable of repetition yet evading review (Albaña v. Commission on Elections, G.R. No. 163302, July 23,
2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656. )
60. Define locus standi.
Locus standi is defined as “a right of appearance in a court of justice on a given question.”22 In private suits, standing is governed by the
“real-parties-in interest” rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that “every action must be
prosecuted or defended in the name of the real party in interest.”
Accordingly, the “real-party-in interest” is “the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to
the avails of the suit.”23 Succinctly put, the plaintiff’s standing is based on
his own right to the relief sought.
61. What are the tests of locus standi in the Philippines?
The original was: [1] If the act involves the disbursement of public funds, mere taxpayer has the capacity to sue and question such act. [2] If it does not involve disbursement of public funds, only those who are “directly injured” by the said law or contract entered into by the government.
Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing in public actions. The distinction was first laid down in Beauchamp v. Silk,24 where it was held that the plaintiff in a taxpayer’s suit
is in a different category from the plaintiff in a citizen’s suit. In the former,
the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern
However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State Supreme Court laid down the more stringent “direct injury” test in Ex Parte Levitt,25 later reaffirmed in Tileston v. Ullman.26 The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative action,
he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public.
22
Black’s Law Dictionary, 6th Ed. 1991, p. 941.
23 Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951). 24
275 Ky 91, 120 SW2d 765 (1938).
25 302 U.S. 633. 26 318 U.S. 446.