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.



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

About Magz

First of all, I am not a lawyer. I'm a graduate of AB Political Science and went to the College of Law but stopped going to law school for some reasons. I'm a passionate teacher who has been teaching English to speakers of other languages and a person who likes writing and blogging. I lost some important files and software when my computer broke down so the reason I created this website is to preserve the notes, reviewers and digests I collected when I was at the law school and at the same time, I want to help out law students who do not have enough time to go and read books in the library.

Posted on June 22, 2011, in Political Law and tagged . Bookmark the permalink. Leave a comment.

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