PRELIMS Constitutional Law LegislativeFULL
PRELIMS Constitutional Law LegislativeFULL
PRELIMS Constitutional Law LegislativeFULL
(Lambino
vs. COMELEC, G.R. No. 174153, October 25, 2006)
(CONSTITUTIONAL LAW 1)
HOW DO YOU DETERMINE WHETHER A PROPOSED
By: Atty. Enrique Dela Cruz CHANGE IS AN AMENDMENT OR A REVISION?
2. By a majority vote of all its members, submit 2. INITIATIVE ON STATUTES refers to a petition
such question to electorate. to enact a national legislation.
If Congress, acting as a ConAss, calls for a ConCon but 3. INITIATIVE ON LOCAL LEGISLATION refers
does not provide details for the calling of such ConCon, to a petition proposing to enact a regional,
Congress by exercising its ordinary legislative power provincial, municipal, city, or barangay law,
may supply such details but in so doing, the Congress resolution, or ordinance. (Section 2(a), RA
(as legislature) should not transgress the resolution of 6735)
Congress acting as a ConAss.
HOW CAN THE PEOPLE DIRECTLY ENACT A LAW
HOW MAY THE CONSTITUTION BE AMENDED OR PROHIBITING PORK BARREL?
REVISED?
Section 2(b) of RA 6735 provides for:
ANSWER: By Peoples Initiative upon a petition of at
1. INDIRECT INITIATIVE, exercise of initiative by
least 12% of the total number of registered voters, of
the people through a proposition sent to
which every legislative district must be represented by
Congress or the local legislative body for action.
3% of the registered voters therein.
2. DIRECT INITIATIVE, the people themselves
NOTE: The Constitution may be amended not oftener
filed the petition with the COMELEC and not
than every 5 years through initiative.
with Congress.
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CAN THE CONSTITUTION BE AMENDED OR REVISED investigation in the light of changed conditions.
DIRECTLY BY THE PEOPLE THROUGH INITIATIVE (Central Bank Employees Association vs. BSP, G.R. No.
UNDER RA 6735? 148208, December 15, 2004)
NO. RA 6735 applies only to initiative and referendum STATE THE VARIOUS MODES OF AND STEPS IN
on national and local laws. Under RA 6735, initiative on REVISING OR AMENDING THE PHILIPPINE
the Constitution is confined only to proposals to CONSTITUTION (1997 BAR QUESTION)
amend. The proposals will then have to be submitted to
Congress for enactment. (Defensor-Santiago vs. There are three modes of amending the Constitution.
COMELEC G.R. No. 127325, March 19, 1997) 1. Under Section 1, Article XVIII of the
CAN RA 6735 BE USED TO DIRECTLY PROPOSE Constitution, Congress may by vote of all its
AMENDMENTS TO THE CONSTITUTION? Members convene itself into a CONSTITUENT
ASSEMBLY and propose any amendment to or
NO. The people are not accorded the power to directly revision of the Constitution.
propose, enact, approve, or reject, in whole or in part,
the Constitution through the system of initiative. They 2. Under the same provision, a
can only do so with respect to laws, ordinances, or CONSTITUTIONAL CONVENTION may
resolutions. propose any amendment to or revision of the
Constitution. According to Section 3, Article
Second, the Act does not provide for the contents of a XVII of the Constitution, Congress may by a 2/3
petition for initiative on the Constitution. Also, while vote of all its Members call a constitutional
the law provides subtitles for National Initiative and convention or by a majority vote of all its
Referendum and for Local Initiative and Referendum, Members submit the question of calling such a
no subtitle is provided for initiative on the Constitution. convention to the electorate.
This means that the main thrust of the law is initiative
and referendum on national and local laws. (Defensor- 3. Under Section 2, Article XVII of the
Santiago, et. al. vs. COMELEC, et. al. G.R. No. 127235, Constitution, the people may directly propose
March 19, 1997) amendments to the Constitution through
initiative upon a petition of at least 12% of the
CAN A PROVISION OF LAW, INITIALLY VALID, total number of registered voters of which
BECOME SUBSEQUENTLY UNCONSTITUTIONAL, ON every legislative district must be represented
THE GROUND THAT ITS CONTINUED OPERATION by at least 3% of the registered voters therein.
WOULD VIOLATE THE EQUAL PROTECTION OF THE According to Section 4, Article XVII of the
LAW (THEORY OF RELATIVE Constitution to be valid any amendment to or
UNCONSTITUTIONALITY)? revision of the Constitution must be ratified by
a majority of the votes cast in a plebiscite.
YES. The constitutionality of a statute cannot in every
instance be determined by a mere comparison of its ANY OF THE FOLLOWING MAY PROPOSE
provisions with applicable provisions of the AMENDMENT TO THE CONSTITUTION EXCEPT:
Constitution, since the statute may be constitutionally (2012 BAR QUESTION)
valid as applies to one set of facts and invalid in its
application to another. A. A constitutional convention called 2/3 vote of
all its members of Congress.
A statute valid at one time may become void at another
time because of altered circumstances. Thus, if a statute B. A petition representing 12% of the nations
in its practical operation becomes arbitrary or registered voter wherein each legislative
confiscatory, its validity, even though affirmed by a district is represented by 3% of its registered
former adjudication, is open to inquiry and voters.
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C. vote of all the members of Congress. A. All provisions in the Constitution are
deemed self-executing unless otherwise
D. A petition representing 12% of the nations provided.
registered voter wherein each legislative
district is represented by 5% of its B. All provisions in the Constitution are not self-
registered voters. executory.
AN AMENDMENT TO OR A REVISION OF THE C. Only the provisions on the Bill of Rights are self-
PRESENT CONSTITUTION MAYBE PROPOSED BY A executing.
CONSTITUTIONAL CONVENTION OR BY THE
CONGRESS UPON A VOTE OF OF ALL ITS D. The Declaration on State Principles and Policies
MEMBERS. IS THERE A THIRD WAY OF PROPOSING requires enabling legislation.
REVISIONS OF OR AMENDMENTS OT THE WHAT ARE SELF-EXECUTING AND NON-SELF
CONSTITUTION? IF SO, HOW? (2004 BAR EXECUTING PROVISIONS OF THE CONSTITUTION?
QUESTION)
A provision which lays down a general principle, such
There is no third way of proposing revisions to the as those found in Article II of the 1987 Constitution is
Constitution. usually not self-executing.
However, the people through initiative upon petition of But a provision which is complete in itself and becomes
at least 12% of the total number of registered voters, of operative without the aid of supplementary or enabling
which every legislative district must be represented by legislation or that which supplies sufficient rule by
at least 3% of the registered voters in it, may directly means of which the right it grants may be enjoyed or
propose amendments to the Constitution. protected, is self-executing.
This right is not operative without an implementing Thus, a constitutional provision is self-executing if the
law. (Section 2, Article XVI of the 1987 Constitution) nature and extent of the right conferred and the
AN AMENDMENT TO THE CONSTITUTION SHALL BE liability imposed are fixed by the Constitution itself, so
VALID UPON A VOTE OF OF ALL THE MEMBERS that they can be determined by an examination, and
OF THE CONGRESS. TRUE OR FALSE? construction of its terms, and there is no language
indicating that the subject is referred to the legislature
The statement is FALSE. First, an amendment proposed for action. (Manila Prince Hotel vs. GSIS, 267 SCRA 408)
by Congress must be approved by at least vote of the
members of the Senate and of the House of ARE PROVISIONS OF THE CONSTITUTION SELF-
Representatives voting separately. EXECUTING OR NON-SELF EXECUTING? WHY?
It is inherent in a bicameral legislature for the two Unless it is expressly provided that a legislative act is
houses to vote separately. (II Record of the necessary to enforce a constitutional mandate the
Constitutional Commission 493) presumption now is that all provisions are self-
executing.
Second, the amendment shall be valid only when
ratified by a majority of the votes cast in a plebiscite. If the constitutional provisions are treated as requiring
(Constitution, Article XVII, Section 4) legislation instead of self-executing, the legislature
would have the power to ignore and practically nullify
WHICH OF THE FOLLOWING STATEMENTS IS the mandate of the fundamental law. This can be
CORRECT? cataclysmic. (Manila Prince Hotel vs. GSIS, 267 SCRA
408 1997)
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It converts the huge SCS into an internal waterway or
lake of China, similar to a gigantic Laguna de Bay.
NATIONAL TERRITORY
WHAT COMPRISES THE PHILIPPINE TERRITORY?
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What is at stake in the West Philippine Sea dispute are TERRITORIAL SEA is 12 nautical miles from the
the following: baseline.
A. 80% of the Philippines exclusive economic CONTIGUOUS ZONE is 24 nautical miles from the
zone (EEZ), comprising 381,000 square baseline.
kilometers of maritime space; and
CONTINENTAL SHELF is 150 nautical miles from the
B. 100% of the Philippines extended continental baseline.
shelf (ECS), estimated at over 150,000 square
kilometers of maritime space, aggregating a THE UNCLOS
huge maritime area of over 531,000 square UNCLOS governs maritime disputes on overlapping
kilometers, larger than the total land area of the maritime zones like overlapping territorial seas, EEZs
Philippines of 300,000 square kilometers and ECSs.
either the Philippines keeps this huge maritime
space or loses it to China. UNCLOS does not govern territorial disputes which are
sovereignty or ownership issues over land territory
THE UNCLOS like islands or rocks above water at high tide.
UNCLOS, ratified by 165 states comprising 85% of the Rocks that are below water, or submerged, at high tide
entire membership of the United Nations, is the are not considered land and thus disputes over such
primary international law governing the use of the rocks are governed by UNCLOS.
oceans and seas of our planet.
UNCLOS provides for a compulsory dispute settlement
Specifically, UNCLOS governs the use of the following mechanism over maritime disputes among its member
maritime zones: states, including disputes involving the interpretation
a. Internal Waters or Archipelagic Waters, the or application of the provisions of UNCLOS.
landward waters adjacent to the territorial sea; DISPUTES GOVERNED BY THE UNCLOS
b. Territorial Sea, an area of 12 nautical miles China, the Philippines and all the other disputant states
from the baselines along the coast; in the South China Sea are parties to UNCLOS, and are
c. Exclusive Economic Zone (EEZ), an area of 200 thus bound by the UNCLOS compulsory dispute
nautical miles from the baselines; settlement mechanism.
d. Extended Continental Shelf (ECS), an additional Maritime disputes are governed primarily by UNCLOS,
area of 150 nautical miles from the outer limits while territorial disputes are governed by the general
of the EEZ; and rules and principles of international and within the
consensual jurisdiction of the International Court of
e. The High Seas area, which is the maritime zone Justice.
beyond the ECS. The high seas belongs to all
states, whether coastal or land-locked. MARITIME DISPUTES VS. TERRITORIAL DISPUTES
WHAT IS THE NATURE AND PURPOSE OF THE The Philippines is the only country to have resorted to
ARBITRATION CASE FILED BY THE PHILIPPINES compulsory arbitration (under Article 287 and Annex
AGAINST CHINA? VII of the UNCLOS) against China with its case resting
on at least 5 key arguments.
These disputes only involve the interpretation or
application of the provisions of UNCLOS. Primarily, the Philippines is questioning Chinas claim
to historical rights over the South China Sea based on
The Philippines is not asking the tribunal to delimit by a range of dubious claims and ancient maps.
nautical measurements overlapping EEZs between
China and the Philippines. These, in turn, constitute the foundations of its
notorious 9-dashed line claims.
The Philippines is also not asking the tribunal what
country has sovereignty over an island, or rock above THE CASE OF THE PHILIPPINES
water at high tide, in the West Philippine Sea. The Philippines has also called on the Tribunal to
IMPORTANT QUESTIONS clarify (under Article 12 of the UNCLOS) the nature of
the disputed features in the South China Sea.
1. Why did the Philippines file an arbitral case
against China? While Beijing tends to characterize most of these
features as islands, which can generate their own 200
2. What are the key points in the arbitral award in nautical miles EEZ and continental shelves, Manila
favor of the Philippines? instead claims that at most they are only rocks and
high-tide elevations, which can generate a maximum of
3. How can its judgment be enforced? 12 nautical miles territorial seas.
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WHAT IS THE PHILIPPINES CLAIMING? presence of official personnel on many of the
features is dependent on outside support and
The Philippines is asking the tribunal if Chinas 9- not reflective of the capacity of the features
dashed lines can negate the Philippines EEZ as (and) that none of the Spratly Islands is
guaranteed under UNCLOS. capable of generating extended maritime
The Philippines is also asking the tribunal if certain zones.
rocks above water at high tide, like Scarborough Shoal, The Tribunal found that it could without delimiting
generate a 200 nautical miles EEZ or only a 12 nautical a boundary declare that certain sea areas are within
miles territorial sea. the exclusive economic zone of the Philippines, because
The Philippines is further asking the tribunal if China those areas are not overlapped by any possible
can appropriate low-tide elevations (LTEs), like entitlement of China.
Mischief Reef and Subi Reef, within the Philippines QUESTION: Recent land reclamation by China has
EEZ. dramatically transformed seven disputed maritime
These disputes involve the interpretation or features in the Spratly Islands at the West Philippine
application of the provisions of UNCLOS. Sea.
The Philippines is not asking the tribunal to delimit by For example, in 1995 Subi Reef was completely
nautical measurements overlapping EEZs between submerged at high tide. Today, there are 3.9 million
China and the Philippines. square meters of reclaimed land above water at high
tide on Subi Reef, and it is home to a pair of wooden
WHAT ARE THE KEY POINTS IN THE ARBITRAL barracks, communications array, and helipad. There
AWARD? are similarly stark changes at each of the other reefs.
1. The so-called 9-dash line is invalid: The Will Chinas reclamation activities entitle it to claim
tribunal concluded that there was no legal basis maritime rights over its newly created territories? Is
for China to claim historic rights to resources reclamation a valid mode of acquiring territory?
within the sea areas falling within the 9-dash Explain.
line.
ANSWER: (According to the Tribunal Award): NO.
Under UNCLOS, every coastal state is entitled to a 200 Artificial islands do not generate maritime
NM EEZ, subject to boundary delimitation in case of entitlements.
overlapping EEZs with other coastal states.
According to UNCLOS, an island is: a naturally formed
China claims almost 90% of the South China Sea under area of land, surrounded by water, which is above
its so-called 9-dashed line map, which overlaps 80% of water at high tide. Reclamation is obviously not a
the Philippines EEZ in the West Philippine Sea. mode of acquiring territory under international law
because reclaimed land cannot be considered a
The tribunal declared this 9-dash line as a clear naturally formed area of land.
violation of the UNCLOS. This is very important.
The reefs reclaimed by China are considered as low tide
If Chinas claim was upheld, the Philippines would have elevations. The UNCLOS defines these maritime
lost 80% of its EEZ in the West Philippine Sea. features as landmass above water only at low tide.
Outside an existing territorial sea it is not entitled to a
WHAT ARE THE KEY POINTS IN THE ARBITRAL
AWARD? separate maritime zone. It is unable to sustain human
habituation or economic life on its own.
2. Reclaimed islands have no exclusive economic
zone: The Tribunal noted that the current
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It is therefore NOT entitled to a territorial sea and WHAT ARE THE KEY POINTS IN THE ARBITRAL
contiguous zone or other maritime rights. AWARD?
Article 9 of the Annex VII UNCLOS, default of This now serves as temporary headquarters to several
appearance and Article 25 of the Rule of Procedure of naval personnel who are currently occupying a portion
the Arbitral Tribunal both state that the non- of the disputed reefs.
appearance of one party will not constitute a bar to the HOW CAN THE JUDGMENT BE ENFORCED?
proceedings and at the same time require the tribunal
to satisfy itself that it has jurisdiction and that claim is The UNCLOS dispute settlement system does not
well-founded in fact and in law. contain an enforcement mechanism comparable to that
of the ICJ with the Security Council, at least in theory.
The Tribunal ruled that Chinas refusal to appear does
not negate the consent that it has given to the This means that should China refuse to comply with a
compulsory jurisdiction of the arbitral tribunal when it decision perceived to be unfavorable to its interests, it
signed the UNCLOS. is unlikely that there can be any legal sanctions against
such non-compliance.
6. Beijing has damaged the environment: Chinas
large-scale land reclamation has caused severe The reaction of non-appearing States in the aftermath
harm to the coral reef environment and of an advance decision has been varied.
violated its obligation to preserve and protect
fragile ecosystems. Despite affirming its rejection to the judgment of the
Court, some non-appearing parties have eventually
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taken courses of action that were in compliance with The rule does not apply where the public official is
the final award. charged in his official capacity for acts that are unlawful
and injurious to the rights of others.
It is a well-settled principle of law that a public official a) Immunity from legal process with respect to
may be liable in his personal private capacity for acts performed by them in their official capacity
whatever damage he may have caused by his act done except when the Bank waives the immunity.
with malice and in bad faith, or beyond the scope of his
authority or jurisdiction. (Shauff vs. CA, G.R. No. 90314, QUESTION: The Republic of the Philippines, through
November 27, 1990, 191 SCRA 713) the Department of Public Works and Highways
(DPWH), constructed a new highway linking Metro
WHAT ARE THE LIMITS ON THE DOCTRINE OF Manila and Quezon province, and which major
STATE IMMUNITY? thoroughfare traversed the land owned by Mang
Pandoy.
The doctrine of immunity from suit will not apply and
may not be invoked where the public official is being The government neither filed any expropriation
sued in his private and personal capacity as an ordinary proceedings nor paid any compensation to Mang
citizen. Pandoy for the land thus taken and used as a public
road. Mang Pandoy filed as suit against the government
The cloak of protection afforded the officers and agents to compel payment for the value of his land. The DPWH
of the government are removed the moment they are filed a motion to dismiss the case on the ground that the
sued in their individual capacity. This situation usually State is immune from suit. Mang Pandoy filed an
arises where the public official acts without authority opposition. Resolve the motion.
or in excess of the powers vested in him.
ANSWER: The motion to dismiss should be denied. As
It is a well-settled principle of law that a public official held in Secretary of the DPWH vs. Sps. Tecson (G.R. No.
may be liable in his personal private capacity for 179334, April 21, 2015), when the government
whatever damage he may have caused by his act done expropriates private property without paying
with malice and in bad faith, or beyond the scope of his compensation, it is deemed to have waived its
authority or jurisdiction. (Shauff vs. CA, G.R. No. 90314, immunity from suit.
November 27, 1990, 191 SCRA 713)
Otherwise, the constitutional guarantee that private
JEFFREY LIANG (HUEFENG) VS. PEOPLE (2001) property shall not be taken for public use without
Jeffrey was a Chinese national who was employed as an payment of just compensation will be rendered
economist by the Asian Development Bank (ADB). He nugatory.
uttered defamatory words to Joyce Cabal, a member of QUESTION: May prescription and laches be used to
the clerical staff of ADB. He was sued for grave oral defeat an action for just compensation which was filed
defamation. His defense is diplomatic immunity 50 years after the date of taking?
because he is an employee of the ADB. Is he correct?
ANSWER: NO. Laches is principally a doctrine of equity
The Supreme Court ruled, in essence, that the immunity which is applied to avoid recognizing a right when to
granted to officers and staff of the ADB is not absolute. do so would results in a clearly inequitable situation or
It is limited to acts performed in an official capacity. in an injustice.
Furthermore, the SC held that the immunity cannot
cover the commission of a crime such as slander or oral This doctrine finds no application in this case, since
defamation in the name of official duty. both equity and the law direct that a property owner
should be compensated if his property is taken for
public use. Neither shall prescription apply because of
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the long-standing rule, that where private property is ANSWER: NO. The doctrine of state immunity cannot
taken by the Government for public use without first serve as an instrument for perpetrating an injustice to
acquiring title thereto either through expropriation or a citizen.
negotiated sale, the owners action to recover the land
or the value thereof does not prescribe. (Secretary of Under the law, eminent domain should be exercised
the DPWH vs. Sps. Tecson, G.R. No. 179334, April 21, through expropriation proceedings in court. Whenever
2015) private property is taken for public use, it becomes the
ministerial duty of the concerned office or agency to
QUESTION: The USS Guardian got grounded at the initiate expropriation proceedings.
TRNP. The US respondents were sued in their official
capacity as commanding officers of the US Navy who By necessary implication, the filing of a complaint for
had control and supervision over the USS Guardian and expropriation is a waiver of State immunity. Thus,
its crew. Will the suit prosper? entry and taking of a property is an implied waiver.
ANSWER: The alleged act or omission resulting in the DOTC is not a builder in bad faith. While the DOTC later
unfortunate grounding of the USS Guardian on the realized its error and admitted its encroachment over
TRNP was committed while they were performing the respondents property, there is no evidence that it
official military duties. acted maliciously or in bad faith when the construction
was done.
Considering that the satisfaction of a judgment against
said officials will require remedial actions and Article 527 of the Civil Code presumes good faith.
appropriation of funds by the US government, the suit Therefore, the forfeiture of the improvements in favor
is deemed to be one against the US itself. of the respondent spouses is unwarranted. (DOTC vs.
Spouses Abecina, G.R. No. 2106484, june 29, 2016)
The principle of State immunity therefore bars the
exercise of jurisdiction by this Court over the persons HOLY SEE VS. JUDGE ROSARIO
of the respondents. (Arigo vs. Swift, 735 SCRA 102, The Catholic Church entered into a contract with
2014) Starlight Realty for the sale of the vacation house of the
QUESTION: Municipality of Jose Panganiban, papal nuncio. After receiving earnest money, the
Camarines Norte donated a 1,200 square meters to church sold the same property to another buyer.
DOTC to implement the Regional Telecommunications Aggrieved, Starlight Realty sued the church for breach.
Development Project. Summons was then issued against the Holy See and the
The Municipality erroneously included portion of the Pope. The DFA certified that the Holy See (Vatican) os a
property owned by Spouses Abecina in the donation. State and enjoys state immunity from suit.
Pursuant to the Financial Lease Agreement with DOTC, IS THE VATICAN A STATE?
DIGITEL constructed telephone exchange on the
property. NO. Under the four elements of a State (people,
territory, sovereignty, government).
Spouses Abecina discovered it and required Digitel to
vacate and pay damages. Due to non-compliance with YES. Under the Lateran Treaty of 1929.
the demands, the Spouses Abecina sued DOTC and
Digitel. DOTC claimed immunity from suit. Factual determination by the DFA is binding upon the
courts. A State, though immune, may still be sued for
Spouses Abecina argued that state immunity cannot be acts jure gestionis. Here, the sale of the vacation house
invoked to perpetrate and injustice against its citizens. of the papal nuncio is an act jure imperii.
Is the DOTC correct?
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GENERAL PRINCIPLES AND STATE meaning to the Filipino First Policy provision of the
1987 Constitution.
POLICIES
WHAT IS MEANT BY PREFERENCE?
FOREIGN POLICY
The Supreme Court ruled:
The State shall pursue and independent foreign policy.
In its relations with other states the paramount It means just that qualified Filipinos shall be
consideration shall be national sovereignty, territorial preferred. The Constitutional preference should give
integrity, national interest, and the right to self- the qualified Filipino an opportunity to match or equal
determination. (Article II, Sec. 7 of the 1987 the higher bid of the non-Filipino bidder if the
Constitution) preference of the qualified Filipino bidder is to be
significant at all.
DOCTRINE OF INCORPORATION
ARICTLE II, SECTION 3 OF THE 1987
The Philippines renounces war as an instrument of
CONSTITUTION EXPRESSES IN PART THAT THE
national policy, adopts the generally accepted
ARMED FORCES OF THE PHILIPPINES IS THE
principles of international law as part of the law of the
PROTECTOR OF THE PEOPLE AND OF THE STATE.
land, and adheres to the policy of peace, equality,
DESCRIBE BRIEFY WHAT THIS PROVISION MEANS.
justice, freedom, cooperation, and amity with all
IS THE PHILIPPINEN ATIONAL POLICE COVERED BY
nations. (Article II, Sec. 2 of the 1987 Constitution)
THE SAME MANDATE?
ECONOMIC NATIONALISM
It means that the Armed Forces of the Philippines
The State shall develop a self-reliant and independent should not serve the interest of the President but of the
national economy effectively controlled by Filipinos. people and should not commit abuses against the
(Article II Sec. 19 of the 1987 Constitution) people.
In the grant of rights, privileges, and concessions This provision is specifically addressed to the armed
covering the national economy and patrimony, the Forces of the Philippines and not to the Philippine
State shall give preference to qualified Filipinos. National Police because the latter is separate and
(Article XII Sec. 10 of the 1987 Constitution) distinct from the former. (Record of the Constitutional
Commission Vol. V., p. 296; Manalo vs. Sistoza 312
MANILA HOTEL VS. GSIS SCRA 239, 1999)
In the bidding for Manila Hotel, the highest bidder was CAN A PERSON AVOID THE RENDITIONOF
a Malaysian firm. The losing Filipino bidder sought to MILITARY SERVICES TO DEFEND THE STATE?
match the bid, arguing that it must be preferred. The
GSIS denied the matching bid on the ground that such a NO. One cannot avoid compulsory military service by
policy makes bidding a ridiculous sham, where no invoking ones religious convictions or by saying that
Filipino can lose and where no foreigner can win. he has a sick father and several brothers and sisters to
support. (People vs. Zosa and People vs. Lagaman, G.R.
WAS GSIS CORRECT? No. l-45892-93, July 13, 1938)
ANSWER: NO. This is discriminatory and violative of In effect, the precautionary principle shifts the burden
the equal protection clause and the state policy on the of evidence of harm away from those likely to suffer
protection of life and the right to life of the unborn harm and onto those desiring to change the status quo.
child. (International Service for the Acquisition of Agri-
Biotech Applications Inc. vs. Greenpeace Southeast Asia
The conscientious objection clause should equally Philippines, G.R. No. 209271, December 8, 2015)
apply to all medical practitioners without distinction
whether they belong to the public or private sector. For purposes of evidence, the precautionary principle
should be treated as a principle of last resort. When
After all, the freedom to believe is intrinsic in every these features uncertainty, the possibility of
individual and the protective robe that guarantees its irreversible harm, and the possibility of serious harm
free exercise is not taken off even if one acquires coincide, the case for the precautionary principle is
employment in the government. (Imbong et. al., vs. strongest.
Ochoa, G.R. No. 204819, April 8, 2014)
When in doubt, cases must be resolved in favor of the
QUESTION: A leading food manufacturer and the DOST constitutional right to a balanced and healthful ecology.
embarked on field testing for a genetically modified
species of eggplant (BT Talong). Parenthetically, judicial adjudication is one of the
strongest fora in which the precautionary principle
Several farmer groups filed suit (writ of Kalikasan) may find applicability. (International Service for the
assailing the possible dangers to health and the Acquisition of Agri-Biotech Applications Inc. vs.
environment. Greenpeace Southeast Asia Philippines, G.R. No.
209271, December 8, 2015)
The CA noted that there is yet no evidence of possible
health hazards or any danger to the environment.
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YES. Indisputably, the framers of the 1987 Constitution and underrepresented" sector they represent.
intended the party-list system to include not only Similarly, a majority of the members of sectoral
sectoral parties but also non-sectoral parties. parties or organizations that lack "well-defined
political constituencies" must belong to the sector
The framers intended the sectoral parties to constitute they represent.
a part, but not the entirety, of the party-list system.
The nominees of sectoral parties or organizations
As explained by Commissioner Wilfredo Villacorta, that represent the "marginalized and
political parties can participate in the party-list system underrepresented", or that represent those who lack
"For as long as they field candidates who come from the "well-defined political constituencies", either must
different marginalized sectors that we shall designate belong to their respective sectors, or must have a
in this Constitution." (Atong Paglaum, Inc. v. COMELEC, track record of advocacy for their respective sectors.
GR No. 203766, April 2, 2013).
The nominees of national and regional parties or
IS IT NECESSARY FOR A PARTY-LIST NOMINEE TO organizations must be a bona-fide members of such
ACTUALLY BELONG TO THE MARGINALIZED parties or organization. (Atong Paglaum, Inc. v.
SECTOR THAT HE SEEKS TO REPRESENT? COMELEC, GR No. 203766, April 2, 2013).
A nominee who does not actually possess the Q: WHAT IS THE FORMULA MANDATED BY THE
marginalized and underrepresented status CONSTITUTION IN DETERMINING THE NUMBER OF
represented by the party-list group but proves to be PARTY-LIST REPRESENTATIVES?
a genuine advocate of the interest and concern of the
marginalized and underrepresented sector A: The House of Representatives shall be composed of
represented is still qualified to be a nominee. not more than two hundred and fifty members, unless
otherwise fixed by law. (Section 5(1), Article VI of the
Since political parties are identified by their ideology 1987 Constitution).
or platform of government, bona fide membership, in
accordance with the political party's constitution and The number of seats available to party-list
by-laws, would suffice. representatives is based on the ratio of party-list
representatives to the total number of
In both political or sectoral party or group, party representatives.
membership is the most tangible link of the nominees
to their respective parties and to the party-list Number of seats available
system.
to legislative districts
Subject to the above, the disqualification of the
nominees does not necessarily mean the _________________ x .20 = Number of seats available
disqualification of the party since all the grounds .80 to party-list representatives
for cancellation or refusal of registration pertain to
the party itself. (Atong Paglaum, Inc. v. COMELEC, GR
No. 203766, April 2, 2013). This formula allows for the corresponding increase in
the number of seats available for party-list
IS IT NECESSARY FOR A PARTY-LIST NOMINEE TO representatives whenever a legislative district is
ACTUALLY BELONG TO THE MARGINALIZED created by law.
SECTOR THAT HE SEEKS TO REPRESENT?
After prescribing the ration of the number of party-
A majority of the members of sectoral parties or list representatives to the total number of
organizations that represent the "marginalized and representatives, the Constitution left the manner of
underrepresented" must belong to the "marginalized allocating the seats available to party-list
| 15
representatives to the wisdom of the legislature. The remaining parties (with less than 2%) will be
(Barangay Association for National Advancement ranked according to their total votes garnered and
and Transparency (BANAT v. COMELEC, GR. No. will be entitled to a seat each until the vacant party-
179271, Apr. 21, 2009) list seats are all filled-up.
There are presently 220 legislative districts, A: YES. Members of Congress may also be suspended
according to the BANAT Case there are 55 party-list by the Sandiganbayan or by the Office of the
seats available. THIS MUST BE FILLED-UP. Ombudsman (Paredes v. Sandiganbayan GR No.
118364. August 10, 1995; Santiago v. Sandiganbayan,
Parties receiving at least 2% of the total votes cast for GR No. 128055, April 18, 2001).
the party-list system shall be entitled to one seat each
(one seat for every 2%); The doctrine of separation of powers by itself may not
be deemed to have effectively excluded members of
No party shall be entitled to more than 3 seats;
| 16
Congress from Republic Act No. 3019 nor from its suspension pending the trial of the case. Santiago v
sanctions. Sandiganbayan, GR No. 128055, April 18, 2001
| 17
QUESTION: Surely, the exercise of sovereign legislative authority,
of which the power of legislative inquiry is an
Can former BuCor Chief Bucayu validly invoke essential component, can not be made subordinate to
executive privilege? Is he shielded by executive a criminal or an administrative investigation.
privilege from responding to the inquiries of the (Standard Chartered Bank v. Senate, GR No. 167172,
House Committee? Explain briefly. If the answer is no, December 27, 2007)
is there any sanction that may be imposed upon him?
SALARIES, PRIVILEGES AND DISQUALIFICATIONS
SUGGESTED ANSWER:
Q: WHAT IS THE RULE ON THE INCREASE IN THEIR
NO. He cannot invoke executive privilege. Only the SALARIES?
President or the Executive Secretary by order of the
President can invoke executive privilege. Besides, the A: No increase in said compensation shall take effect
matter being asked is not covered by executive until after the expiration of the full term of all the
privilege because it does not involve any discussion Members of the Senate and the House of
with the President. (Senate of the Philippines v. Representatives approving such increase. (Article VI
Ermita, 488 SCRA 13 [2006]) Sec. 10 1987 Constitution)
For refusing to testify, he may be cited for contempt Q: ARE PER DIEMS, EMOLUMENTS AND
and ordered to be arrested. (De la Paz v. Senate ALLOWANCES INCLUDED IN THE PROHIBITION OF
Committee on Foreign Relations, 519 SCRA 521 SALARY INCREASE?
[2009].)
A: NO. What the law contemplates is a fixed annual
QUESTION: compensation or salary. Clearly, per diems,
emoluments and allowances are not included. Hence,
The Senate Justice Committee sent a subpoena to Senators and members of the house are not prohibited
Davao City Vice Mayor Paolo Duterte requiring him to from receiving these allowances.
appear in the investigation being conducted by the
said Senate Committee with regard to the allegations Q: ARE THERE ANY LIMITS AS TO THE AMOUNTS OF
made against him by witness Edgar Matobato on the THESE EMOLUMENTS?
killings in Davao City and his links to the Davao Death
Squad. A: The Constitution does not provide for any limitation
in the amount that maybe appropriated. What the
Vice Mayor Duterte refused to attend the hearing on Constitution merely provided under Sec. 20, Art. IX is
the ground that there is already a case pending with that "the COA may audit the books of Congress and it
the Office of the Ombudsman. shall publish the list of expenses incurred by and paid
to the each member."
Is he correct?
Q: Is the PDAF Constitutional? (2013)
Answer:
A: No.
NO. The mere filing of a criminal or and
administrative complaint before a court of a It is unconstitutional for Congress to allocate funds
quasi-judicial body should not automatically bar unto themselves and participate in its implementation
the conduct of legislative investigation. and disbursement.
Otherwise, it would be extremely easy to subvert any All prosecutorial organs of the government, within the
intended inquiry by congress through the convenient bounds of reasonable dispatch, should investigate and
ploy of instituting a criminal or an administrative accordingly prosecute all government officials and/or
complaint. private individuals for possible criminal offenses
| 18
related to the irregular, improper and/or unlawful A: The SC declared as illegal:
disbursement/utilization of all funds under the Pork
Barrel System." (1) cross border transfer of the savings of the
Executive to augment appropriation of other offices
(Belgica, et al. vs. Hon. Sen. Paquito N. Ochoa, GR NO. outside the Executive;
208566; SJS President S. Alcantara vs. Hon. Franklin
Drilon, et al., GR No 208493; Pedrito M. Nepomuceno (2) funding of projects, activities and programs
vs. Pres. Benigno S. Aquino III, Gr No. 209251 that were not covered by any appropriation in the
(November 19, 2013) General Appropriations Act; and
Q: In 2011, the DBM announced that the Aquino (3) withdrawal of unobligated allotment from the
administration would "implement P72.11 billion in implementing agencies and the declaration of the
additional projects in order to fast-track withdrawn, unobligated allotments and unreleased
disbursements and push economic growth in light of appropriations as savings prior to the end of the
the global slowdown and the onslaught of recent fiscal year and without complying with the statutory
calamities." definition of savings contained in the GAA. [Araullo
v. Aquino III, 728 SCRA 1 (2014) and 749 SCRA
Pursuant to this, Budget Secretary Florencio Abad 282]
issued National Budget Circular No. 541 (dated July 18,
2012), establishing a Disbursement Acceleration Q: MOTION FOR RECONSIDERATION?
Program (DAP) which allows the DBM to withdraw A: The SC in a Decision dated 3 February 2015 affirmed
"unobligated allotments of agencies with low levels of the unconstitutionality of the Disbursement
obligations as of June 20, 2012, both or continuing and Acceleration Program (DAP) while partially granting
current allotments." the government's motion for reconsideration.
The circular also allows "withdrawn allotments" to be The magistrates affirmed that a significant potion of the
used to "augment existing programs and projects of any administration's DAP, supposedly created to speed-up
agency and to fund priority programs and projects not public s[ending, violates Section 25(5), Article VI of the
considered in the 2012 budget but expected to be 1987 Constitution and the doctrine of separation of
started or implemented during the current year. Is this powers of the executive and legislative branches. The
DAP Constitutional? high court still considered unconstitutional the
A: NO. The DAP is unconstitutional as it violates following:
Article VI Section 25(5) of the 1987 Constitution which (1) The creation of savings from un-obligated
states that, 'No law shall be passed authorizing any allotments prior to the end of the fiscal year without
transfer of appropriations; however, the President... complying with the statutory definition of savings
may, by law, be authorized to augment any item in the under the General Appropriations Act (GAA), and
general appropriations law for their respective offices
from savings in other items of their respective (2) The executive department's cross-border
appropriations." transfer of savings to another branch of
government.
No law has been passed to authorize or legalize DAP
and the funds released under the said mechanism, thus "The court further declares void the use of
clearly violating the above-cited constitutional unprogrammed funds despite the absence of a
provision. [Araullo v. Aquino III, 728 SCRA 1 (2014) certification by the national treasure for non-
and 749 SCRA 284] compliance."
Q: WHAT SPECIFIC FEATURES OF DAP RENDER Citing the operative fact doctrine, the high
UNCONSTITUTIONAL? court, however, heeded the Aquino administration's
| 19
motion and ruled that there is no constitutional Congressional body for any debate or speech in
requirement for Congress to create allotment classes Congress or in any committee thereof.
within an item. The Constitution does not require the
augmentation of funds to be under the expense Q: What are the limitations on legislative
category or allotment class of the GAA. According, so privilege?
long as there is an item in the GAA that Congress has set Protection is only against forum other than Congress
aside a specified amount of public funds, savings may itself. Thus, for inflammatory remarks, which are
be transferred thereto for augmentation purposes." otherwise privileged, a member may be sanctioned
[Araullo v. Aquino III, 728 SCRA 1 (2014) and 749 by either the Senate or the House as the case may be.
SCRA 284]
The "speech or debate" must be made in performance
PARLIAMENTARY IMMUNITIES of their duties as members of Congress.
Q: WHAT IS IMMUNITY FROM ARREST? Congress need not be in session when the utterance
A: Legislators are privileged from arrest while is made, as long as it forms of legislative action i.e part
Congress is "in session" with respect to offenses of the deliberative and communicative process used
punishable by up to 6 years of imprisonment. to participate in legislative proceedings in
consideration of proposed legislation or with respect
Hence, the commission of serious crimes, i.e., crimes to other matters with Congress' jurisdiction.
punishable by afflictive penalties or with capital
punishment, does not fall within the scope of the Q: Can a senator-lawyer be disbarred or
constitutional privilege. disciplined by the Supreme Court for statements
made during a privilege speech?
A member of Congress could only invoke the
immunity from arrests for relatively minor offenses, A: No. The plea of Senator Santiago for the dismissal
punishable at most by correctional penalties. (People of the complaint for disbarment or disciplinary action
vs. Romeo Jalosjos, February 3, 2000) is well taken. Indeed, her privilege speech is not
actionable criminally or in a disciplinary proceeding
Q: MAY A CONGRESSMAN CONVICTED OF RAPE BE under the Rules of Court. (Pobre v. Sen. Defensor-
ALLOWED TO ATTEND SESSION IN CONGRESS Santiago, A.C. No., 7399, Aug. 25, 2009)
PENDING HIS APPEAL?
Q: Is it ok for a senator to criticize the Supreme
A: NO. To allow accused-appellant to attend Court in a privilege speech?
legislative sessions would constitute an unjustified
broadening of the privilege from arrest bestowed by A: No. The Senator's offensive and disrespectful
the Constitution upon members of Congress. language definitely tended to denigrate the
institution. It is imperative on the Court's part t re-
The trial court's judgement of conviction imports that instill in Senator/Atty. Santiago her duty to respect
the evidence of guilt of the crime charged is strong. courts of justice, especially this tribunal, and remind
Unquestionably, the continued incarceration of her anew that parliamentary non-accountability thus
accused-appellant is a valid and constitutionally granted to members of Congress is not to protect
mandated curtailment of his rights to provisional them against prosecutions for their own benefit, but
liberty pending appeal of his conviction. (People v. to enable them, as the people's representatives, to
Romeo Jalosjos, February 3, 2000) perform the functions of their office without fear of
being made responsible before the courts or other
Q: What is legislative privilege? forums outside the congressional hall. (Pobre v. Sen.
A: No member shall be questioned or held liable in Defensor-Santiago, A.C No. 7399, Aug. 25, 2009)
any forum other than his/her respective
| 20
CONGRESSIONAL ELECTORAL TRIBUNALS Section 6. Oath or Affirmation of Members. - Members
shall take their oath or affirmation either collectively or
What is the composition of the electoral tribunal? individually before the Speaker in open session.
1. 3 Supreme Court Justices designated by the Chief Consequently, before there is a valid or official
Justice; and taking of the oath it must be made (1) before the
2. 6 members of the Chamber concerned (Senate or Speaker of the House of Representatives, and (2) in
HoR) chosen on the basis of proportional open session. [REYES v. COMELEC, GR No 207264.
representation from the political parties and parties June 25, 2013]
registered under the party-list system. Question: Can the House Speaker be compelled by
Note: The senior Justice in the Electoral Tribunal shall Mandamus to recognize Velasco as the lawful
be its chairman. Members chosen enjoy security of congressman of Marinduque?
tenure and cannot be removed by mere change of party Answer: YES. The administration of oath and the
affiliation. registration of Velasco in the Roll of Members of the
What is the jurisdiction of the Electoral Tribunals? House are no longer a matter of discretion or judgment
on the part of Speaker Belmonte Jr. He is legally duty-
Each electoral tribunal shall be the sole judge of all bound to recognize Velasco as the duly elected
contests relating to the election, returns, and Congressman of Marinduque in view of the ruling
qualifications of their respective members (Sec. 17, Art rendered by the SC which is now final and executory.
VII, 1987 Constitution)
It is well past the time for everyone concerned to accept
HRET's jurisdiction as the sole judge of all contests what has been adjudicated and take judicial notice of
relating to the elections, returns, and qualifications of the fact that Reyes's ineligibility to run for and be
members of Congress begins only after a candidate elected to the subject position had already been long
has become a member of the House of affirmed by the SC.
Representatives. [Marcos v. COMELEC, 318 Phil.329,
397 (1995)] Any ruling deviating from such established ruling will
be contrary to the Rule of Law and should not be
When will a winning candidate be considered a countenanced. [Velasco v. Belmonte, Jr. GR No.
member of Congress? 211140, 12 January 2016]
To be considered a Member of the House of Question: Which has jurisdiction over a petition to
Representatives, there must be a concurrence of the expel a member of the House (party-list) - the HRET
following requisites: (1) a valid proclamation, (2) a or COMELEC? How about expulsion from the party-
proper oath, and (3) assumption of office. list?
The term of office of a Member of the House of Answer: Section 17, Article VI of the 1987 Constitution
Representatives begins only "at noon on the thirtieth endows the HRET with jurisdiction to resolve
day of June next following their election." Thus, until questions on the qualifications of members of
such time, the COMELEC retains jurisdiction. [Reyes v. Congress. In the case of party-list representatives, the
COMELEC, G.R. No. 2017264. June 25, 2013] HRET acquires jurisdiction over a disqualification case
upon proclamation of the winning party-list group,
How should the oath of office be taken by a winning oath of the nominee, and assumption of office as
candidate to be considered a member of Congress? member of the House of Representatives.
Section 6, Rule II (Membership) of the Rules of the
House of Representatives provides:
| 21
In this case, the COMELEC proclaimed Ating Koop as a He can veto a bill.
winning party-list group; petitioner Lico took his oath;
and he assumed office in the House of Representative. Question: When does a bill become a law even,
without the signature of the President? Explain.
Thus, it is the HRET, and not the COMELEC, that has
jurisdiction over the disqualification case. [Lico v. Suggested Answer:
COMELEC (GR No 205505, September 29, 2015] Under Section 27(1), Article VI of the Constitution, a bill
Answer: becomes a law even without the signature of the
President if:
COMELEC was wrong in upholding the validity of the
expulsion of petitioner Lico from Ating Koop, despite (1) he vetoed it but his veto was overriden by two-
its own ruling that the HRET has jurisdiction over the thirds vote of all the members of both the Senate and
disqualification issue. the House of Representatives; and
These findings already touch upon the qualification (2) if the President failed to communicate his veto
requiring a party-list nominee to be a bona fide to the House from which the bill originated, within
member of the party-list group sought to be thirty day after the date of receipt of the bill by the
represented. President.
Suggested Answer: