Category Archives: Political Law

Political Law

Pre-Bar Quizzer in Political Law – Part I: Constitution of Government 100-110

101. What are the requirements for a valid change of residence for purposes of the requirement on “residence” under the Local Government Code?

In the case of DUMPIT-MICHELENA VS. COMELEC, it was held that to validly effect a change of residence, there must be animus manendi coupled with animus non revertendi. The intent to remain in the new domicile of choice must be for an indefinite period of time,   must be voluntary and the residence at  the   new domicile must be actual.

 

102. Is the 3-term limit of elected local officials applicable to a term acquired through succession?

No, the 3-term limit applies only if the official was DULY ELECTED to the said position for three (3) consecutive terms, not by succession. (BENJAMIN BORJA VS. COMELEC, and JOSE T. CAPCO, JR., G.R. No. 133495, September 3, 1998)

 

103. In the creation of a new  province, city, municipality or barangay or when it will be  divided, merged or abolished, or its boundary substantially altered, who shall vote in the plebiscite to be conducted?

All the residents of the political units affected, i.e., former and new local government unit to be formed, must participate in the plebiscite. (TAN VS. COMELEC, 142 SCRA 727 and Padilla vs. COMELEC, 214 SCRA 735 abandoning the doctrines in PAREDES VS. EXECUTIVE SECRETARY, 128 SCRA 6 and LOPEZ VS. METRO MANILA COMMISSION,  136 SCRA 633)

 

          104. What are the grounds for impeachment?

Only for  “Culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust”.

 

          105. What is the extent of a judgment in impeachment cases?

Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any other office under the Republic of the Philippines but shall nevertheless be liable to prosecution, trial and punishment according to law.

 

        106. When is an impeachment complaint deemed “initiated” to bar another complaint within a period of one year?

As held in FRANCISCO VS. SPEAKER JOSE DE VENECIA, ET AL, 415 SCRA 44, November 10,  2003,  an impeachment complaint deemed “initiated” to be a bar to the filing of another complaint within a 1-year period upon its [a]  filing; and  [b] COUPLED WITH CONGRESS TAKING INITIAL ACTION OF SAID COMPLAINT.”

 

          107.  Who investigates and prosecutes public officials for crimes committed in the performance of their official duties? Exception:

It is the Office of the Ombudsman and the Office of the Special Prosecutor except if the offense is in violation of election laws, rules and regulations wherein only the COMELEC has the power to investigate and to file the appropriate information in court. (Corpuz vs.  Tanodbayan, 149 SCRA 281)

 

108. What is covered by the “academic freedom” provision of the 1987 Constitution?

It covers   not only academic freedom on the part of the school but also those of the teachers, professors and the students because the provision states that “Academic freedom shall be enjoyed in all institutions of higher learning” while under the 1973 Constitution, only institutions of higher learning enjoy academic freedom because the provision then states that “all institutions of higher learning shall enjoy academic freedom (Art. XV, Section 8 [1], 1973 Constitution.

 

 109. What is the extent of academic freedom on the part of schools?

It includes the power to determine:

a.     who may teach,

b.      what may be taught,

c.      how it shall be taught, and

d.     who may be admitted to study”‘ (Emphasis supplied; citing Sinco, Philippine Political Law, 491, (1962) and the concurring opinion of Justice Frankfurter in Sweezy v. New Hampshire (354 US 234 [1957], GARCIA VS. FACULTY ADMISSION, 68 SCRA 277).

 

110. Does academic freedom on the part of the school carries with it the power to revoke a degree or honor it has bestowed to its students?

Yes. As held in UP BOARD OF REGENTS VS.  CA, August 31, 1999, “academic Freedom includes the power of a University to REVOKE a degree or honor it has conferred to a student after it was found out that the student’s graduation was obtained through fraud. Academic freedom is given a wide sphere of authority. If an institution of higher learning can decide on who can and cannot study in it, it certainly can also determine on whom it can confer the honor and distinction of being its graduates.

 

 

Reference:

Pre-Bar Quizzer in Political Law (Doctrinal Rulings, Requisites and Definitions) July, 2008 by Atty. Larry D. Gacayan

College of Law, University of the Cordilleras

Baguio City

Pre-Bar Quizzer in Political Law – Part I: Constitution of Government 91-100

          91. Is there such a thing as “next-in-rank” or seniority rule in filling up vacancies in the classified civil service?

          No. As held in Medenilla vs. CSC, February 19, 1991, there is no need “to wait for the deadwoods to retire” before one may be promoted to fill-up a vacancy as a result of the presence of other employees with longer years of service or “next-in-rank”. What is important is that the appointee meets all the qualifications for the said position.

 

          92. What is the extent of the powers of the CSC in appointment cases?

          It has only the power to approve the appointment if the appointee meets all the qualifications and the power to deny the appointment if the appointee does not meet the qualifications. IT DOES NOT HAVE THE POWER TO SUBSTITUTE THE APPOINTEE CHOSEN BY THE APPOINTING AUTHORITY WITH ANOTHER WHICH IT BELIEVES TO BE MORE QUALIFIED.

 

          93. Is the position of City or Provincial Legal Officer a primarily confidential position?

          Yes, as held in CADIENTE VS. SANTOS, 142 SCRA 280, the Provincial Legal Officer is a primarily confidential office, but not his assistant. The same was reiterated in SAMSON VS. CA, 145 SCRA where it was held that  The City Legal officer is a primarily confidential officer.

 

 

          94. May gov’t. employees form unions for purposes of collective bargaining and to strike against the government?

As held in  ALLIANCE OF GOVT. WORKERS VS. MOLE, 124 SCRA  and  Executive Order No. 180 , June 1, 1987, government employees may form unions but not authorized to strike or demand for collective bargaining agreement with the government.   authorizing govt. employees to form unions.

 

95. May government employees be removed without cause as a result of a government reorganization?

No. This is clear from RA 6656, June 10, 1988 , which is “An act to protect the security of tenure of civil service officers and employees in the implementation of government reorganization.” There must be full compliance of the due process requirement. It must be based on just cause and with due process.( DARIO VS. MISON, August 8, 1989, FLOREZA VS. ONGPIN, February 26, 1990, MENDOZA VS. QUISUMBING, June 4, 1990,  DOTC vs. CSC, October 3, 1991,  Romualdez vs. CSC, August 12, 1993 and Torio vs. CSC, 209 SCRA 677)

 

96. May a person be appointed in a temporary capacity as a Commissioner of the Commission on Elections?

No, Section 1, Art. IX-C provides that “In no case shall any member be appointed or designated in a temporary or acting capacity. (Brillantes vs. Yorac, Dec. 18, 1991)

 

97. What are the more important powers of the COMELEC?

Under Section 2, Art. IX-C, its powers are to enforce and administer all laws relative to the conduct of election, plebiscite, initiative, referendum and recall….original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial and city officials and appellate jurisdiction over all contests involving elective municipal officials decided by courts of general jurisdiction and elective barangay officials  decided by trial courts of limited jurisdiction. Also, it has the power to:

a.     Deputize law enforcement agencies, including the AFP..

b.    Register political parties, except religious groups

c.      File complaints for violation of election laws

d.    Regulate the enjoyment or utilization of all franchises for the operation of transportation and other public utilities, media of communication..


98. Which court has jurisdiction over election cases involving municipal and barangay officials?

Election cases involving municipal official shall be filed before the RTC whose decision may be appealed  to the COMELEC. Those involving barangay officials shall be filed with the MTC whose decision is likewise subject to appeal to the COMELEC whose decision in both instances is final and not appealable.

99. Where must election cases involving city and provincial officials be filed?

It must be filed with the COMELEC, not with the courts.

100. Does the President have discretion on the release of the Internal Revenue Allotment (IRA) for the Local Government Service Equalization Fund (LGSEF) and may she validly impose conditions for the release thereof?

No, local governments have fiscal autonomy under Art. X of the 1987 Constitution. As held by the Supreme Court in the case of PROVINCE OF BATANGAS VS. HON. ALBERTO ROMULO, ET AL., May 27, 2004,  automatic release of  funds of Local Government Units, particularly the IRA, is mandated  with no conditions imposed for its release. To allow the President to impose conditions for the release of the IRA amounts to control to local government units when the President’s power over local government units is confined to general supervision, not power of control as enunciated in Drilon vs. Lim, 235 SCRA 135.

 

 

Reference:

Pre-Bar Quizzer in Political Law (Doctrinal Rulings, Requisites and Definitions) July, 2008 by Atty. Larry D. Gacayan

College of Law, University of the Cordilleras

Baguio City

Pre-Bar Quizzer in Political Law – Part I: Constitution of Government 81-90

 81. Under the 1987 Constitution, may the salaries of the members of the judiciary be taxed without violating Section 10, Article VIII which would have the effect of decreasing the same?

No. This was the ruling in  NITAFAN VS. COMMISSIONER, 152 SCRA 284 which abandoned the contrary rulings in the cases of PERFECTO VS. MEER, 85 Phil. 552 and  ENDENCIA  VS. DAVID, 93 Phil.  696

 

82. Up to when are members of the judiciary entitled to hold on to their positions?

Section 11, Art. VIII provides that the Members of the Supreme Court and  judges of the lower court shall hold office during good behavior until they reach the age of 70 years or become incapacitated to discharge the duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of majority of the members who actually took part in the deliberations on the issues in the case and voted thereon.

 

  83. May an RTC Judge be appointed as  a member of the Provincial Peace and Order Council of the place where he holds office?

No.  The members of the Supreme Court and other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. (IN RE: JUDGE RODOLFO MANZANO, October 5, 1988)

 

84. Are the different administrative and quasi-judicial bodies (COMELEC, NLRC, NAPOLCOM, MILITARY COMMISSIONS) bound by the requirement of Section 14, Art. VIII that “No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based”?

          No. It applies only to the courts as defined or included by Section 1, Art. VIII.  (AIR FRANCE VS. CARRASCOSO, 18 SCRA 155, VDA DE ESPIRITU VS. CFI, 47 SCRA 354, BUSCAYNO VS. ENRILE, 102 SCRA 7, MANGCA VS. COMELEC, 112 SCRA 273, VALLADOLID VS. INCIONG, 121 SCRA 205,  NAPOLCOM VS. LOOD, 127 SCRA 75, NUNAL VS. CA, 169 SCRA 356 and  Mangelen vs. CA, 215 SCRA 230)

 

85. What are the periods given to the different courts to decide cases before them?

Under   Section 15, Art. VIII, all cases or matters filed after the effectivity of this Constitution must be decided or resolved within 24 months from date of submission  for the Supreme Court, and unless reduced by the Supreme Court, 12 months for all lower collegiate courts, and 3 months for all other lower courts. A case shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief or memorandum required by the Rules of Court or by the court itself.

 

          86. Is the requirement under Section 15, Art. VIII mandatory or merely directory?

          Section 15, Art. VIII is mandatory in all courts except the Supreme Court where said provision is considered merely directory. This is so because it is “impossible” for the Supreme Court to comply with such provision considering the volume of cases filed before it. (CORPUS VS. CA 98 SCRA 424, MALACORA VS. CA, 117 SCRA 435, MARCELINO VS. CRUZ, 121 SCRA 51 and DE ROMA VS. CA, 152 SCRA 205)

 

          87. What are covered by the powers of the Civil Service Commission?

Under Section 2, Article IX-B of the Constitution,  the civil service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government owned and controlled corporations WITH ORIGINAL CHARTERS.

 

88. What are the requirements before one may be appointed in the civil service? Exceptions?

Appointments in the CS shall be made only according to merit and fitness to be determined as far as practicable, and except as to positions which are policy determining, primarily confidential or highly technical, by competitive examination.

 

 89. Define the three (3) exceptions to the rule that the appointee must be chosen based on merit and fitness to be determined by competitive examination?

Policy determining is one charged with laying down of principal or fundamental guidelines or rules, such as that head of a department.

Primarily confidential position is one denoting not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals of the personal trust on confidential matters of the state (Example: Chief Legal Counsel of the PNB, Besa vs. PNB, 33 SCRA 330)

Highly technical position requires the appointee thereto to possess technical skill or training in the supreme or superior degree.

 

      90. Is the position of City Engineer of Baguio City a “highly technical” position?

No. The position of City Engineer of Baguio City is technical “but not highly so.” (DE LOS SANTOS VS. MALLARE, 87 Phil. 289)

 

 

Reference:

Pre-Bar Quizzer in Political Law (Doctrinal Rulings, Requisites and Definitions) July, 2008 by Atty. Larry D. Gacayan

College of Law, University of the Cordilleras

Baguio City

Pre-Bar Quizzer in Political Law – Part I: Constitution of Government 71-80

71. May judicial power be exercised by the Supreme Court in cases of decisions of the House of Representatives Electoral tribunal since Section 16, Art. VI of the Constitution provides that the HRET is the “sole judge” ————-.23..23.of all contestests involving the election, returns and qualifications of the members of the House of Representatives?

          Yes if there is allegation of grave abuse of discretion amounting to lack or in excess of jurisdiction on the part of the HRET (BONDOC VS. PINEDA)

 

72. What is a political question?

           In    ALMARIO VS. ALBA, 127 SCRA 6, it was defined as a  question which deals with the necessity, expediency and wisdom of a particuar act, the same is political and not justifiable.

In Sanidad vs. Comelec, 73 SCRA 333,  political questions was defined as questions which are neatly associated with the wisdom, not the legality of a particular act. Where the vortex of the controversy refers to the  legality or validity of the contested act, the matter is definitely justiciable or non-political.

In Tanada vs. Cuenco, 103 Phil., political question was defined as questions to be answered by the people in their sovereign capacity or in regard to which full discretionary authority is vested to the executive or legislative branch of the government.

Or in  Gonzales vs. COMELEC, 21 SCRA 774 , when the crux of the problem deals with the wisdom of an act, it is political).

 

73. What is the extent of the fiscal autonomy granted to the judiciary under the 1987 Constitution?

As provided under   Section 3, At. VIII,  the judiciary shall enjoy fiscal autonomy and as such appropriations for the judiciary may not be reduced by the legislature below the  amount appropriated for the previous year and, after approval, shall be automatically and regularly released.

 

 74. What are the cases to be decided by the Supreme Court en banc?

All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the members who actually took part in the deliberations on the issues in the case and voted thereon. Also,  no doctrine or principle of law laid down by the court en banc or in division may be modified or reversed except by the court sitting en banc.

Also if two (2) divisions of the Supreme Court have conflicting decisions, the same shall be resolved by the Supreme Court en banc. Cases referred to by the division to the banc involving novel questions of law , the same shall be decided by the en banc accepted by the latter.

Finally, dismissal of judges and disbarment of lawyers are also decided by the Supreme Court en banc.

 

75. What are the powers of the Supreme Court?

As enumerated in Art. VIII,  Section 5, t he Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in:

 

(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question;

(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto;

(c)  All cases in which the jurisdiction of any lower court is in issue;

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher;

(e)  All cases in which only an error or question of law is involved.

 

(3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed 6 months without the consent of the judge concerned.

(4) Order a change of venue or place of trial to avoid a miscarriage of justice.

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading , practice , and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for  all courts of the same grade, and shall not diminish, increase or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

(6) Appoint all officials and employees of the judiciary in accordance with the civil service law.

 

76. What is the “writ of amparo”?

It is a writ issued by the courts for the protection and enforcement of the constitutional rights of a person under detention. (Section 5 (5), Art. VIII)

 

77. What are the 3-fold Functions of Judicial Review?

These are the:

1)   legitimizing function

2)   checking function

3)    symbolic or educational function

 

78. May inferior courts also exercise the power of judicial review (declaring a law, treaty, etc. unconstitutional) in the light of the requirements of Section 4(2) of Article VIII that not even any of the Supreme Court’s three (3) divisions, sitting separately could not declare a law, treaty, etc., unconstitutional?

Yes because the power of judicial review is just a part of judicial power which is available to all courts (Section 1, Art. VIII). Likewise, as shown by Section 5 [2] (a), the decision of lower courts declaring a law unconstitutional is subject to review by the Supreme Court. (YNOT VS. IAC, March 20, 1987)

 

79. What is the “operative fact doctrine”?

It simply means that the declaration of unconstitutionality of a law, treaty, etc., is prospective. As such, all acts done in connection with the said law before its declaration of unconstitutionality shall be considered legal, valid and binding. It is only the declaration of unconstitutionality which is the “operative fact” which would stop the people from complying with its provisions. (DE AGBAYANI VS. PNB, 38 SCRA 429)

 

80. What are the qualities of one aspiring to become a member of the judiciary aside from the citizenship and age qualifications?

          A member of the judiciary must be a person of proven competence, integrity, probity and independence.

 

 

Reference:

Pre-Bar Quizzer in Political Law (Doctrinal Rulings, Requisites and Definitions) July, 2008 by Atty. Larry D. Gacayan

College of Law, University of the Cordilleras

Baguio City

Pre-Bar Quizzer in Political Law – Part I: Constitution of Government 61-70

 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,[1]  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 injurytest in Ex Parte Levitt,[2] later reaffirmed in Tileston v. Ullman.[3]  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.

This Court adopted the “direct injury” test in our jurisdiction.   In People v. Vera,[4]  it held that the person who impugns the validity of a statute must have “a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result.”  The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate,[5] Manila Race Horse Trainers’ Association v. De la Fuente,[6]  Pascual v. Secretary of Public Works[7] and Anti-Chinese League of the Philippines v. Felix.[8]

However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,[9] where the “transcendental importance” of the cases prompted the Court to act liberally.   Such liberality was neither a rarity nor accidental.   In Aquino v. Comelec,[10]  this  Court resolved to pass upon the issues raised due to the “far-reaching implications” of the petition notwithstanding its categorical statement that petitioner therein had no personality to file the suit.  Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings.[11]

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been allowed to sue under the principle of “transcendental importance.” Pertinent are the following cases:

(1) Chavez v. Public Estates Authority,[12] where the Court ruled that the enforcement of the constitutional right to information and the equitable diffusion of natural resources are matters of transcendental importance which clothe the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora,[13]  wherein the Court held that “given the transcendental importance of the issues involved, the Court may relax the standing requirements and allow the suit to prosper despite the lack of direct injury to the parties seeking judicial review” of the Visiting Forces Agreement;

(3) Lim v. Executive Secretary,[14]  while the Court noted that the petitioners may not file suit in their capacity as taxpayers absent a showing that “Balikatan 02-01” involves the exercise of Congress’ taxing or spending powers, it               reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,[15]  that in cases of transcendental importance, the cases must be settled promptly and definitely and standing requirements may be relaxed.

By way of summary, the following rules may be culled from the  cases decided by this Court.   Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met:

1.           the cases involve constitutional issues;

2.           for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;

3.           for voters, there must be a showing of obvious interest in the validity of the election law in question;

4.           for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and

5.            for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal standing.

In Kilosbayan, Inc. v. Morato,[16] the Court ruled that the status of Kilosbayan as a people’s organization does not give it the requisite personality to question the validity of the on-line lottery contract, more so where it does not raise any issue of constitutionality.  Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned citizen as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[17]  the Court reiterated the “direct injury” test with respect to concerned citizens’ cases involving constitutional issues.   It held that “there must be a showing that the citizen personally suffered some actual or threatened injury arising from the alleged illegal official act.”

In Lacson v. Perez,[18] the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or supporters.

In Sanlakas v. Executive Secretary,[19] the Court ruled that only the petitioners who are members of Congress have standing to sue, as they claim that the President’s declaration of a state of rebellion is a usurpation of the emergency powers of Congress, thus impairing their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared them to be devoid of standing, equating them with the LDP in Lacson.

 

          62. What is the “take over” provision of the Constitution. May the President validly exercise the same?

This is  Section 17, Article XII , which reads:

          Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.

    While the President alone can declare a   state of national emergency, however, without legislation, he has no     power to take over privately-owned public utility or business affected     with public interest. The President cannot decide whether exceptional      circumstances exist warranting the take over of privately-owned           public utility or business affected with public interest.  Nor can he determine when such exceptional circumstances have ceased.  Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over.   In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress.

 

63. What are the limitations of the President’s power of executive clemency?

The same is not available in cases of impeachment as well as violation of election laws, rules and regulations without the favorable recommendation of the Commission on Elections. (Section 19, Art. VII and Section 5, Art. IX-C))

 

64. Distinguish pardon from amnesty.

As held in BARRIOQUINTO VS. FERNANDEZ, 82 Phil. 642, the distinctions are as follows:

[1] Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof; while amnesty by Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act of which the courts should take judicial notice.

[2] Pardon is granted to one after conviction (of ordinary crimes) ; while amnesty is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction.

[3] Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolished or forgives the punishment, and for that reason it does “”nor work the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon,” and it “in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence” article 36, Revised Penal Code). while amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. (section 10[6], Article VII, Philippine Constitution; State vs. Blalock, 62 N.C., 242, 247; In re Briggs, 135 N.C., 118; 47 S.E. 402., 403; Ex parte Law, 35 GA., 285, 296; State ex rel AnheuserBusch Brewing Ass’n. vs. Eby, 170 Mo., 497; 71 S.W 52, 61; Burdick vs United States, N.Y., 35 S. Ct., 267; 271; 236 U.S., 79; 59 Law. ed., 476.)

[4] Pardon is complete with the act of the President while Amnesty is valid only with the  concurrence  of the majority of the members of all the members of Congress.

 

65. Is it required  for the person applying for amnesty to admit his guilt before his amnesty application be considered?

Ye,s as held in VERA VS. PEOPLE, 7 SCRA 152. Before one may validly apply for executive clemency (pardon or amnesty) he MUST ADMIT HAVING COMMITTED THE ACTS WHICH RESULTED IN HIS IMPRISONMENT. This rule abandoned the contrary ruling in Barrioquinto vs. Fernandez.

 

          66. May a public officer, who has been granted an absolute pardon by the Chief Executive, entitled to automatic reinstatement to her former position without need of a New appointment?

No. As held in MONSANTO VS. FACTORAN,February, 1989, a pardon looks to the future. It is not retrospective.  It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. “Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required.” This would explain why petitioner, though pardoned, cannot be entitled to reinstatement, unless appointed again by the appointing authority, receive backpay for lost earnings and benefits.

 

          67.  May the power of executive clemency applied to administrative cases like the suspension of a Provincial Governor?

           Yes. This was the ruling of the Supreme Court in Llamas vs. Exec. Sec. Orbos, Oct. 15, 1991. The word “conviction in Section 19, Art. VII of the Constitution   may be used either in a criminal case or in an administrative case.

 

68. Is the mere filing of a criminal case against a recipient of a conditional pardon with the condition “not again violate any of the penal laws of the Philippines and  this condition be violated, he will be proceeded against in the manner prescribed by law”  sufficient to revoke such conditional pardon without first securing conviction against the grantee?

Yes. As held in  TORRES VS. GONZALES, 152 SCRA 272, the determination of whether the conditions of a convict’s pardon  had been breached rests exclusively in the sound judgment of the President and that such determination would not be reviewed by the courts. As held in Tesoro vs. Director of Prisons, in  accepting the terms under which the parole had been granted, Tesoro had in effect agreed that the Governor-General’s determination (rather than that of the regular courts of law) that he had breached one of the conditions of his parole by committing adultery while he was conditionally at liberty, was binding and conclusive upon him.

 

69. What are the requisites before the President or his representatives may validly contract or guarantee foreign loans?

Under Section 20, Art. VII, the President may contract or guarantee foreign loans on behalf of the Republic of the Philippines subject to the following conditions:

a. there must be  prior concurrence of the Monetary Board;

b. subject to such limitations as may be provided for by law.

Further, the Monetary Board shall, within 30 days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the government or  government owned and controlled corporations which would have the effect of  increasing the foreign debt, and containing other matters as may be provided for by law.

 

70. What is judicial power?

          Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or in excess of jurisdiction on the part of any branch or instrumentality of the government.


[1]           275 Ky 91, 120 SW2d 765 (1938).

[2]           302 U.S. 633.

[3]           318 U.S. 446.

[4]           65 Phil. 56 (1937).

[5]           G.R. No. 117, November 7, 1945 (Unreported).

[6]           G.R. No. 2947, January 11, 1959 (Unreported).

[7]           110 Phil. 331 (1960).

[8]           77 Phil. 1012 (1947).

[9]           84 Phil. 368 (1949) The Court held: “Above all, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.”

[10]      L-No. 40004, January 31, 1975, 62 SCRA 275.

[11]          Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held that where the question is one of public duty and the enforcement of a public right, the people are the real party in interest, and it is sufficient that the petitioner is a citizen interested in the execution of the law;

       Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, where the Court held that in cases involving an assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen and part of the general public which possesses the right.

      Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988, 163 SCRA 371, where the Court held that objections to taxpayers’ lack of personality to sue may be disregarded in determining the validity of the VAT law;

     Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held that while no expenditure of public funds was involved under the questioned contract, nonetheless considering its important role in the economic development of the country and the magnitude of the financial consideration involved, public interest was definitely involved and this clothed petitioner with the legal personality under the disclosure provision of the Constitution to question it.

      Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343, where the Court ruled that while petitioners are strictly speaking, not covered by the definition of a “proper party,” nonetheless, it has the discretion to waive the requirement, in determining the validity of the implementation of the CARP.

     Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where the Court held that it enjoys the open discretion to entertain  taxpayer’s suit or not and that a member of the Senate has the requisite personality to bring a suit where a constitutional issue is raised.

     Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court held that petitioner as a taxpayer, has the personality to file the instant petition, as the issues involved, pertains to illegal expenditure of public money;

     Osmeña v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750,  where the Court held that where serious constitutional questions are involved, the “transcendental  importance” to the public of the cases involved demands that they be settled promptly and definitely, brushing aside technicalities of procedures;

      De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held that the importance of the issues involved  concerning as it does the political exercise of qualified voters affected by the apportionment, necessitates the brushing aside of the procedural requirement of locus standi.

[12]      G.R. No. 133250, July 9, 2002, 384 SCRA 152.

[13]      G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449.

[14]      G.R. No. 151445, April 11, 2002, 380 SCRA 739.

[15]     Supra.

[16]         G.R. No. 118910, November 16, 1995, 250 SCRA 130.

[17]         G.R. No. 132922, April 21, 1998, 289 SCRA 337.

[18]     G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.

[19]     G.R. No. 159085, February 3, 2004, 421 SCRA 656.

 

 

Reference:

Pre-Bar Quizzer in Political Law (Doctrinal Rulings, Requisites and Definitions) July, 2008 by Atty. Larry D. Gacayan

College of Law, University of the Cordilleras

Baguio City

Pre-Bar Quizzer in Political Law – Part I: Constitution of Government 51-60

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 person an the multifarious executive and administrative functions. 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?

 In the case of 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,[1] so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case[2] 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

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.”[3]   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.[4] Succinctly put, the plaintiff’s standing is based on his own right to the relief sought.


[1]           Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.

[2]           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.

[3]           Black’s Law Dictionary, 6th Ed. 1991, p. 941.

[4]           Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).

 

Reference:

Pre-Bar Quizzer in Political Law (Doctrinal Rulings, Requisites and Definitions) July, 2008 by Atty. Larry D. Gacayan

College of Law, University of the Cordilleras

Baguio City

Pre-Bar Quizzer in Political Law – Part I: Constitution of Government 41-50

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.

 

Reference:

Pre-Bar Quizzer in Political Law (Doctrinal Rulings, Requisites and Definitions) July, 2008 by Atty. Larry D. Gacayan

College of Law, University of the Cordilleras

Baguio City

Pre-Bar Quizzer in Political Law – Part I: Constitution of Government 31-40

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 2nd placer be declared the winner in his place? When may the 2nd placer be allowed to be declared the winner?

It depends. As  held in OCAMPO VS. HOUSE ELECTORAL TRIBUNAL  and MARIO CRESPO, a.k.a. MARK JIMENEZ, June 15, 2004.

1.     There must be a final judgment disqualifying a candidate in order that the votes of a disqualified candidate can be considered “stray”. This final judgment must be rendered BEFORE THE ELECTION. 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.[1][28]   In United States v.   Nixon,[2][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,[3][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 ones[4][31]  As a consequence, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege. 

Turning on who are the officials covered by the presidential communications privilege,   In Re: Sealed Case confines the privilege only to White House Staff that has “operational proximity” to direct presidential decision-making. Thus, the privilege is meant to encompass only those functions that form the core of presidential  authority, involving what the court characterized as “quintessential and non-delegable Presidential power,”  such as  commander-in-chief power, appointment and removal power,  the power to grant pardons and reprieves, the sole-authority to receive ambassadors and other public officers, the power to negotiate treaties, etc.[5][32]

        The situation in Judicial Watch, Inc. v. Department of Justice[6][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,[7][34] identity of government informers in some circumstances,,[8][35] and information related to pending investigations.[9][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. PCGG[10][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,[11][39]  there is also a recognition of the confidentiality of Presidential conversations, correspondences, and discussions in closed-door 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,[12][40] appointing,[13][41] pardoning,[14][42] and diplomatic[15][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.[16][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 privilegeFirst, 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.[17][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 Arroyo’s cabinet.  And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.

(NOTE: In Nixon, the US Supreme Court held that invocation of “executive privilege” is unavailing if it involves the commission of a crime and there is already a pending criminal case.)

We see no dispute on this.  It is settled in United States v. Nixon[18][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.


[1][28]          CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law,  Practice and Recent Developments at p. 2.

[2][29]          418 U.S. 683.

[3][30]          In Re: Sealed Case No. 96-3124, June 17, 1997.

[4][31]          Id.

[5][32]          CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law,  Practice and Recent Developments at pp. 18-19.

[6][33]          365 F.3d 1108, 361 U.S.App.D.C. 183, 64 Fed. R. Evid. Serv. 141.

[7][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).

[8][35]          Roviaro v. United States, 353 U.S. 53, 59-61.

[9][36]          See Friedman v. Bache Halsey Stuart Shields, Inc. 738 F. 2d 1336,1341-43 (D.C. Cir. 1984).

[10][38]         360 Phil. 133 (1998).

[11][39]            Supra.

[12][40]                         Section 18, Article VII.

[13][41]                         Section 16, Article VII.

[14][42]                         Section 19, Article VII.

[15][43]                         Section 20 and 21, Article VII.

[16][44]         CRS  Report for Congress, Presidential Claims of Executive Privilege: History, Law Practice and    Recent Developments,  supra..

[17][45]         Bernas, S.J., The 1987 Constitution of the Republic of the Philippines, A Commentary, 2003 Ed. p. 903.

[18][48]                         Supra.

 

Reference:

Pre-Bar Quizzer in Political Law (Doctrinal Rulings, Requisites and Definitions) July, 2008 by Atty. Larry D. Gacayan

College of Law, University of the Cordilleras

Baguio City

Pre-Bar Quizzer in Political Law – Part I: Constitution of Government 21-30

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

As provided in Section 7 of Art. II, The Philippines shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be [1] national sovereignty, [2] territorial integrity, [3] national interest, and [4] the right to self-determination,

 

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

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

 

 

 

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

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

 

23. Is abortion allowed in the Philippines?

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

 

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

No, as held in the case of GINSBERG VS. NEW YORK, 390 US 629 (1969), a law prohibiting the sale of “girlie magazines” [bold?) is constitutional and does not violate the above provision. This is so because parents could buy said magazines for their children if they believe the same is already suitable to the understanding of their child. This is in accordance with this provision which states that the parents have the “natural and primary right in rearing their child for civic efficiency…”

 

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 is.

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.

 

Reference:

Pre-Bar Quizzer in Political Law (Doctrinal Rulings, Requisites and Definitions) July, 2008 by Atty. Larry D. Gacayan

College of Law, University of the Cordilleras

Baguio City

Pre-Bar Quizzer in Political Law – Part I: Constitution of Government 11-20

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      4)   AGUSTIN VS. EDU, 88 SCRA 195

REYES VS. BAGATSING,125 SCRA 553, the Supreme Court held that the constitutional right shall prevail. Though Article 22 of the Vienna Convention on Diplomatic Relations prohibits rallies within 500 feet of any foreign embassy, the same shall give way to the constitutional right of the citizens to “peaceably assemble and to petition the government for redress of their grievances”.

 

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

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

 

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

It is a reality as shown by the following provisions of the Constitution.

1.     ART. III, Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. NO RELIGIOUS TEST SHALL BE REQUIRED FOR THE EXERCISE OF CIVIL OR POLITICAL RIGHTS.

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

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

4.     ART. IX, C, 2(5). Religious denominations and sects shall not be registered…as political parties. (NOTE: Religious 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.

 

Reference:

Pre-Bar Quizzer in Political Law (Doctrinal Rulings, Requisites and Definitions) July, 2008 by Atty. Larry D. Gacayan

College of Law, University of the Cordilleras

Baguio City

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