PHILIPPINE ADMINISTRATIVE

THOUGHT AND INSTITUTION

Course Code: PA 3

SY 2021-2022

BACHELOR OF PUBLIC ADMINISTRATION

 CATANDUANES STATE UNIVERSITY
Virac, Catanduanes

BRIEF OVERVIEW

This Learning Material includes the theories and ideas underlying the Philippine
administrative system; the general structure of the Philippine government particularly the
legislative, executive, and judicial department including the local government. (Commission on
Higher Education) CHED Memorandum Order No. 06, S. 2010.

This Self-Learning Material is designed for use as guide for self-learning by the student
outside of the usual classroom setting. The student is therefore expected to achieve the
learning outcomes by him/herself, away from school and with minimal intervention by the
teacher.

Each student will be provided with a digital folder containing all the documents pertinent
to the course. The student is strictly prohibited to share any of such documents to anybody.
Doing so will be treated as a disciplinary case and the perpetrator will have to face sanctions.

DISCLAIMER: This learning material is used in compliance with the flexible teaching-
learning approach espoused by CHED in response to the pandemic that has globally affected
educational institutions. Authors and publishers of the contents are well acknowledged. As such
the college and its faculty do not claim ownership of all sourced information. This learning
material will solely be used for instructional purposes not for commercialization.

Rommel R. Regala, Ph.D.

CatSU College of Arts and Sciences

GUIDELINES IN STUDYING WITH THE LEARNING MATERIAL

1. Start by taking note of the objectives. Then at the end of each lesson, check if you
have fulfilled all of the objectives.

2. Be sure to read first the required reading/s for each lesson before proceeding to the
summary provided in the “Content” part of the learning material. Remember, what is
in the lesson is only a summary which is not enough to gain adequate understanding
of the topic/s covered in the lesson. Also, it will be most advantageous for the student
to read more materials over and above what is required here. You can search for them
in the internet and at the CSU Library.

3. Have a separate notebook. Make your own notes as you read through the reading
materials and summary provided for here. Transferring the ideas, organizing and
rendering them in your own words and understanding, help you to absorb and
internalize the content.

4. Have a dictionary or thesaurus handy to be able to check out the meaning of words
that are not very familiar to you.

5. Do the self-assessment activity to end your work for each particular lesson.

6. Answers to your self-assessment questions must be written in digital word document

by clusters and submitted either by email or in printed hard copies to your teacher.
Clustering and deadlines are as follows:

Clustering Deadline
1st submission: Lesson 1 and 2
2nd submission: Lesson 3
3rd submission: Lesson 4
4th submission: Lesson 5

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7. Be sure to write your name on your submission. Submit on or before deadline. Late
submission will not be accepted.

8. Compose your answers to the self-assessment questions in your own words. Do not
copy any portion/s of the learning materials from any source (book or the internet). DO
NOT COPY FROM YOUR CLASSMATE, in part or in full.

Both the original and the copied

papers will be given “0” mark.

It is advised therefore that a student should not show his/her self-assessment activity
paper to any classmate so as to prevent copying.

9. Make a reflection paper about what you have learned in each lesson featuring the
Philippine Administrative System; the general structure of the Philippine government
particularly the legislative, executive, and judicial department including the local
government.

10. The rubrics below will be used in assessing your answers in the self-assessment
questions and on the reflection paper that you will be submitted.

EXCELLENT – 10 Points (1.0)

• Concise and direct to the point
• Precise explanation of concepts and exact illustrations

VERY SATISFACTORY – 8 Points (1.5-1.1)

• Concise and direct to the point
• Explanation and illustrations are quite adequate

SATISFACTORY – 6 Points (2.0-1.6)

• Moderately concise
• Explanation and illustrations are moderately adequate

LESS SATISFACTORY – 4 Points (2.5-2.1)

• Fairly concise
• Explanation and illustrations are fairly adequate

POOR – 2 Points (3.0-2.6)

• Vague but intelligible
• Explanation and illustrations are minimally adequate

VERY POOR – 0 Point (5.0)

• Answers is thoroughly out of range, or no answer at all

11. There will be written midterm and final examinations. You have to come to school for
the examinations. Examination will be on the following schedules:

Midterm Examination - _________________________________

Final Examination - _________________________________

12. We will create a group chat on Messenger. This will be used only for clarifications
regarding lessons/topics in the course. No submissions will be accepted on group
chat/messenger. Socializing and raising unrelated issues should be minimized.

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LEARNING OUTCOMES

At the end of this handout, you should be able to:

1. Know the basic concepts in the Philippine administrative system with emphasis on the
principles and policies of the State;
2. Identify the concept of republicanism, separation of powers, checks and balances,
judicial review, and delegations of powers;
3. Compare and contrast the de jure and de facto governments;
4. Distinguish between the two houses of congress in their exercise of legislative power;
5. Recognize the legislative privileges, inhibitions, and disqualifications;
6. Explain the importance of quorum and how the congress votes on a certain bill;
7. Describe the electoral tribunals and the commission on appointments;
8. Enumerate and expound the powers of Congress;
9. Generate a Venn Diagram citing the similarities and differences between the office of
the president and vice-president with emphasis on their privileges, inhibition, and
disqualifications;
10. Make a concept map showing the powers of the president and the rules on succession;
11. Write a descriptive essay featuring the judicial department particularly on the
safeguards of judicial independence, judicial restraints and appointments to the
judiciary;
12. Create a diagram presenting the structure of the supreme courts and identify judicial
privileges.
13. Depict the principles, organization, powers, and functions attributes of local
government units, including Regional (Autonomous/Administrative) officials and
employees; and
14. Attain understanding of the powers, duties, and functions of elected and appointive
officials, and the grounds for disciplinary action under R. A. 7160 and administrative
order no. 23, and other related laws.

COURSE CONTENT

1. Basic Concepts in Philippine Administrative System

a. Principles: Binding rules which must be observed in the conduct of
government
b. Policies: Guidelines for the orientation of the state
c. Republicanism
d. Separation of powers
e. Checks and balances
f. Judicial Review
g. Due Process
h. Delegation of Powers
i. De Jure and De Facto Government

2. Legislative Department
a. Who may exercise legislative power
b. Houses of congress
c. Legislative privileges, inhibitions, and disqualifications
d. Quorum and voting majorities
e. Discipline of members
f. Electoral tribunals and the commission on appointments
g. Powers of congress

3. Executive Department
a. The president
b. Privileges, inhibitions, and disqualifications
c. Vice-President
d. Powers of the president
e. Rules on succession

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4. Judicial Department
a. Concepts of judicial power and judicial review
b. Safeguards of judicial independence
c. Judicial restraint
d. Appointments to the judiciary
e. The supreme court
f. Judicial privilege

5. Local Government
a. What is a local government unit?
b. Principles of local autonomy
c. Powers of local government units
d. Liability of LGUS
e. Settlement of boundary disputes
f. The succession of elective officials
g. The discipline of elective officials
h. Administrative appeal
i. Term limits

DEFINITION OF KEY TERMS

Checks and Balances. The Constitution fixes certain limits on the independence of ach
department. In order that these limits may be observed, the Constitution gives each
department certain powers by which it may definitely restrain the other from exceeding their
authority. A system of checks and balances is thus formed. (Vicente Sinco, Philippine Political
Law 135, 10th ed., 1954.)

De Facto Government. One established in defiance of the legitimate sovereign. It actually

exercises power or control without legal title. (Bernas Primer at 9. 2006 ed.)

De Jure Government. One established by authority of the legitimate sovereign. (Bernas

Primer at 9. 2006 ed.)

Executive Power. It is the power to enforce and administer the laws. It shall be vested in the
President of the Philippines.

Executive. An arm of government whose sole responsibility is mainly to implement rules and
regulations as necessitated by the law making body. This arm of government gives effect to
the will of state by carrying out the law of the land being constitutions, statutes, decrees and
treatise as the case may be.

Judicial Power. It includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable. It also means a duty to
determine whether [or not] there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the party of any branch or instrumentality of the Government.

Judiciary. This constitutes the third arm of government. It entails law, judges and courts. Its
primary duty is the interpretation of law and application of existing laws to individual cases.

Legislative Power. It is the authority to make laws and to alter or repeal them. It is vested in
Congress except to the extent reserved to the people by the provision on initiative and
referendum.

Legislature. An elected body which has the primary responsibility of making laws for the
whole society. Although practically everywhere, the universal duty of this body is law making,
yet it does more than simply write laws.

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Local Government. It is the closest tie of government to the people. In a unitary system, power
is shared between the Central Government and local government. In a Federal system power
is shared between Federal-State and Local Governments. Generally we talk of a central-local
relationship. In a Federal system however, the relationship is largely between the state or
regional government and local government because, constitutionally local government are
within the constitution mandates of the state or regional governments. Basically, in any system
local governments are created to decongest the functions and burden of central governments
and to provide services that are local in character.

Policies. Guidelines for the orientation of the state. (Bernas Primer at 9. 2002 ed.)

Principles. Binding rules which must be observed in the conduct of government (Bernas Primer
at 9. 2002 ed.)

Republicanism. This means representation and renovation, the selection by the citizenry of
a corps of public functionaries who derive their mandate from the people and act on their
behalf, serving for a limited period only, after which they are replaced or retained at the
option of their principal. [Cruz, Political Law]

Separation of Powers. In essence, separation of powers means that legislation belongs to

Congress, execution to the executive, settlement of legal controversies to the judiciary. Each
is prevented from invading the domain of others. (Bernas, Commentary 656, 2003 ed.)

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LESSON 1

BASIC CONCEPTS IN THE PHILIPPINE ADMINISTRATIVE SYSTEM

OBJECTIVES

At the end of this lesson, the student must be able to:

1. Know the basic concepts in the Philippine administrative system with emphasis on the
principles and policies of the State;
2. Identify the concept of republicanism, separation of powers, checks and balances,
judicial review, and delegations of powers; and
3. Compare and contrast the de jure and de facto governments.

READINGS

“General Considerations” specifically the following: General Principles and Policies,

Separation of Powers, Checks and Balances, and “Forms of Government
From: Political Law (2017) by UP College of Law - BAR Operations Commission, pp. 12-19
https://www.scribd.com/document/388699452/UP-POLITICAL-LAW-REVIEWER-
2017-pdf

CONTENT

PRINCIPLES AND STATE POLICIES (Article II, 1987 Philippine Constitution)

Principles [Sec.1-6]: Binding rules which must be observed in the conduct of government
[BERNAS]

This portion of the Constitution might be called the basic creed of the nation. (Tanada
v. Angara & Vicente Sinco, Philippine Political Law 116. 11TH ed., 1962)

1. The Philippines is a democratic and republican state (Sec. 1)

2. The Philippines, under the Const., is not just a representative government but also
shares some aspects of direct democracy such, for instance, as the “initiative and
referendum” under Art. VI, Sec. 32 [BERNAS]
3. Renunciation of war [Sec. 2]
4. Only refers to wars of aggression, not defensive war
5. Adoption of generally-accepted principles of international law [Sec. 2]
6. Adherence to a policy of peace, freedom, and amity with all nations [Sec. 2]
7. Civilian supremacy [Sec. 3]
8. Civilian authority (Section 3, Article II) is not defeated in a joint task force between
the PNP and Marines for the enforcement of law and order in Metro Manila as long
as control is left to the PNP. [IBP v. Zamora (2000)]
9. Role of the armed forces [Sec. 3]
a. Protector of the people and the State
b. Secure the sovereignty of the State and the integrity of the national territory
10. Compulsory military and civil service [Sec. 4] Under conditions provided by law
11. Maintenance of peace and order, promotion of general welfare [Sec. 5]
12. Recognition of a hierarchy of rights [BERNAS]
a. Life
b. Liberty
c. Property
13. Separation of Church and State [Sec. 6]

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Policies [Sec. 7-28]:Guidelines for the orientation of the state [BERNAS]

1. Independent foreign policy [Sec. 7]

2. Freedom from nuclear weapons [Sec. 8]
3. Promote a just and dynamic social order [Sec.9]
4. Promote social justice in all phases of national development [Sec. 10]
5. Personal dignity and human rights [Sec. 11]
6. Family as basic social institution [Sec. 12]
7. Vital role of youth in nation-building [Sec. 13]
8. Role of women in nation-building [Sec. 14]
9. Fundamental equality before the law of women and men [Sec. 14]
10. Right to health [Sec. 15]
11. Right to a balanced and healthful ecology [Sec.16, Oposa v. Factoran]
12. Priority to education, science and technology, arts, culture, and sports [Sec. 17]
13. Labor as a primary social economic force [Sec.18]
14. Self-reliant and independent national economy [Sec.19]
15. Role of private sector [Sec. 20]
16. Comprehensive rural development and agrarian reform [Sec. 21]
17. Recognition and promotion of rights of indigenous cultural communities [Sec. 22]
18. Community-based, sectoral organizations [Sec.23]
19. Role of communication and information in nation-building [Sec.24]
20. Autonomy of local governments [Sec. 25]
21. Equal access for public service and prohibition of political dynasties [Sec. 26]
22. Honesty and integrity in public service [Sec. 27]
23. Policy of full public disclosure [Sec. 28]

REPUBLICANISM

The essence of republicanism is representation and renovation, the selection by the

citizenry of a corps of public functionaries who derive their mandate from the people and
act on their behalf, serving for a limited period only, after which they are replaced or retained
at the option of their principal. (Cruz, Political Law)

SEPARATION OF POWERS

The separation of powers is a fundamental principle in our system of government. It is

obtained not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its jurisdiction, and
is supreme within its own sphere. But it does not follow from the fact that the three powers are
to be kept separate and distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution has provided for an elaborate
system of checks and balances to secure coordination in the workings of the various
departments of the government [Angara v. Electoral Commission (1936)].

The government established by the Constitution follows fundamentally the theory of

separation of power into the legislative, the executive and the judicial [Angara v. Electoral
Commission (1936)].

Separation of powers is not expressly provided for in the Constitution. But it obtains
from actual division found in Section 1 of Articles VI, VII, VIII, where the three great powers of
the government are canalized.

Separation of powers is founded on the belief that, by establishing equilibrium among

the three power holders, harmony will result, power will not be concentrated and thus tyranny
will be avoided [BERNAS].

Essence. In essence, separation of powers means that legislation belongs to

Congress, execution to the executive, settlement of legal controversies to the judiciary. Each
is prevented from invading the domain of others. (Bernas, Commentary 656, 2003 ed.)

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Division and Assignment. Its starting point is the assumption of the division of the
functions of the government into three distinct classes—the executive, the legislative and
the judicial. Its essence consists in the assignment of each class of functions to one of the
three organs of government.

Theory. The theory is that “a power definitely assigned by the Constitution to

one department can neither be surrendered nor delegated by that department, nor vested
by statute in another department or agency.”

Reason. The underlying reason of this principle is the assumption that arbitrary rule
and abuse of authority would inevitably result from the concentration of the three powers
of government in the same person, body of persons or organ. More specifically, according to
Justice Laurel, the doctrine of separation of powers is intended to:

1. Secure action
2. To forestall overaction
3. To prevent despotism
4. To obtain efficiency

History. Separation of powers became the pith and core of the American system of
government largely through the influence of the French political writer Montesquieu. By the
establishment of the American sovereignty in the Philippines, the principle was introduced
as an inseparable feature of the governmental system organized by the United States in
this country.

Limitations on the Principle

1. System of Checks and Balances

2. Existence of overlapping powers

CHECKS AND BALANCES

It does not follow from the fact that the three powers are to be kept separate and distinct
that the Constitution intended them to be absolutely unrestrained and independent of each
other. The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. For example, the
Chief Executive under our Constitution is so far made a check on the legislative power that this
assent is required in the enactment of laws. This, however, is subject to the further check that
a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of
two-thirds or three-fourths, as the case may be, of the National Assembly. The President has
also the right to convene the Assembly in special session whenever he chooses. On the other
hand, the National Assembly operates as a check on the Executive in the sense that its consent
through its Commission on Appointments is necessary in the appointments of certain officers;
and the concurrence of a majority of all its members is essential to the conclusion of treaties.
Furthermore, in its power to determine what courts other than the Supreme Court shall be
established, to define their jurisdiction and to appropriate funds for their support, the National
Assembly controls the judicial department to a certain extent. The Assembly also exercises the
judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the
final arbiter, effectively checks the other departments in the exercise of its power to determine
the law, and hence to declare executive and legislative acts void if violative of the Constitution.
[Angara v. Electoral Commission, id.]

Congressional oversight is not per seviolative, but is integral, to separation of powers.

However, for a postenactment congressional measure to be valid, it must be limited to: (1)
Scrutiny -Congress’ power of appropriation, i.e. budget hearings, and power of confirmation (2)
Investigation and monitoring of implementation of laws – using its power to conduct inquiries in
aid of legislation.

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A legislative veto, i.e. statutory provision (which may take the form of a congressional
oversight committee) that requires the President or an agency to submit the proposed
implementing rules and regulations of a law to Congress for approval, is unconstitutional. It
encroaches on:

1. The executive - it allows Congress to take a direct role in the enforcement of its
laws;
2. The judiciary - administrative issuances enjoy a presumption of validity, and only
the courts may decide whether or not they conform to statutes or the Constitution.
[Abakada Guro Partylist v. Purisima (2008)]

The Constitution fixes certain limits on the independence of each department. In

order that these limits may be observed, the Constitution gives each department certain
powers by which it may definitely restrain the other from exceeding their authority. A system
of checks and balances is thus formed.

To carry out the system of checks and balances, the Constitution provides:

1. The acts of the legislative department have to be presented to the executive for
approval or disapproval.
2. The executive department may veto the acts of the legislature if in its judgment
they are not in conformity with the Constitution or are detrimental to the
interests of the people.
3. The courts are authorized to determine the validity of legislative measures or
executive acts.
4. Through its pardoning power, the executive may modify or set aside the
judgments of the courts.
5. The legislature may pass laws that in effect amend or completely revoke
decisions of the courts if in its judgment they are not in harmony with its intention
or policy which is not contrary to the Constitution.
6. President must obtain the concurrence of Congress to complete certain
significant acts.
7. Money can be released from the treasury only by authority of Congress.

JUDICIAL REVIEW

Judicial review refers to the power of the courts to test the validity of governmental
acts in light of their conformity with a higher norm (e.g. the constitution).

Expression of Constitutional Supremacy. Judicial review is not an assertion of

superiority by the courts over the other departments, but merely an expression of the
supremacy of the Constitution. Constitutional supremacy produced judicial review, which in
turn led to the accepted role of the Court as “the ultimate interpreter of the Constitution.”

Judicial Review in Philippine Constitution. Unlike the US Constitution which

does not provide for the exercise of judicial review by their Supreme Court, the Philippine
Constitution expressly recognizes judicial review in Section 5 (2) (a) and (b) of Article VIII of
the Constitution.

DUE PROCESS

Origin: By the 39th chapter of the Magna Carta wrung by the barons from King John,
the despot promised that “no man shall be taken, imprisoned or disseized or outlawed, or in
any manner destroyed; nor shall we go upon him, nor send him, but by the lawful judgment of
his peers or by the law of the land.”

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In 1335, King Edward III’s Statute 28 declared that “no man, of what state or condition
whoever be, shall be put out of his lands, or tenements, nor taken, nor imprisoned, nor
indicted, nor put to death, without he be brought in to answer by due process of law.” It is
this immortal phrase that has resounded through the centuries as the formidable champion of
life, liberty and property in all-freedom loving lands. (Cruz)

Embodiment of the sporting idea of fair play. It is the responsiveness to the

supremacy of reason, obedience, to the dictates of justice. Due process is a guaranty against
arbitrariness on the part of the government. Observance of both substantive and
procedural rights is equally guaranteed by due process.

DELEGATION OF POWERS

General Rule: Delegata potestas non potest delegari – what has been delegated can
no longer be delegated.

Rationale: Since the powers of the government have been delegated to them by the
people, who possess original sovereignty, these powers cannot be further delegated by the
different government departments to some other branch or instrumentality of the government.

Usually applied to legislative power since the legislative power of Congress is already
a delegated power given to them by the people (thru Article 1, Section VI of the Constitution),
Congress cannot pass laws delegating such power to some other department, branch, or
instrumentality of the government.

Expections
1. Subordinate legislation made by administrative agencies – Under the theory of
Administrative Law, what is delegated is in fact not “law-making” power, but “law
executing power.” Hence, administrative agencies have the power to “fill up the details”
of a statute passed by Congress in the course of its implementation.
2. Delegated legislative power to local governments – Local governments may be allowed
to legislate on purely local matters.(See CONST., art. IX, sec. 9, explicitly mentioning
“legislative bodies of local governments;” sec. 20 providing for the coverage of
legislative powers delegated to autonomous regions via the latter’s organic acts; see
also Local Gov’t Code)
3. Legislative power reserved to the people by the provision on initiative and
referendum.[CONST., art.VI, sec.1]
4. Emergency power delegated to the Executive during State of War or National
Emergency [CONST., art. VI, sec.23(2)]
5. Certain taxing powers of the President [CONST., art. VI, sec.28(2)]. The Congress may
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.

Test for Valid Delegation

1. Completeness test – law sets forth the policy to be executed, carried out, or
implemented by the delegate (Abakada, supra), such that there is nothing left for the
delegate to do but to enforce the law [Pelaez v. Auditor General (1965)]
2. Sufficient standard test– standard is sufficient if it defines legislative policy, marks its
limits, maps out its boundaries and specifies the public agency to apply it. It indicates
the circumstances under which the legislative command is to be effected.[Edu v. Ericta
(1970)]

BOTH tests must be complied with. [Pelaez, supra]

The legislature may leave to another body the ascertainment of facts necessary to bring
the law into actual operation. [See Abakada v. Ermita (2005)]

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FORMS OF GOVERNMENT: DEFINITION

“Government of the Philippines” is defined as: The corporate governmental entity

through which the functions of government are exercised throughout the Philippines, including
(1) the various arms through which political authority is made effective in the Philippines,
whether pertaining to: (a) the autonomous regions, (b) the provincial, city, municipal, or
barangey subdivisions, or (c) other forms of local government. [Sec. 2(1), Administrative Code]
“Government” is that institution or aggregate of institutions by which an independent society
makes and carries out those rules of action which are necessary to enable men to live in a
social state or which are imposed upon the people forming that society by those who possess
the power or authority of prescribing them. [US v. Dorr (1903)]
DE JURE AND DE FACTO GOVERNMENTS

De jure government

1. Has rightful title but

2. no power or control, either because this has been withdrawn from it, or because it has
not yet actually entered into the exercise thereof. [In re Letter of Associate Justice
Puno, (1992)]

De facto government

Government of fact, that is, it actually exercises power or control without legal title. [Co
Kim Cham v. Valdes, (1945)]

1. The gov’t that gets possession and control of, or usurps, by force or by the voice of the
majority, the rightful legal gov’t and maintains itself against the will of the latter.
2. That established as an independent gov’t by the inhabitants of a country who rise in
insurrection against the parent state.
3. That which is established and maintained by military forces who invade and occupy a
territory of the enemy in the course of war, and w/c is denominated as a gov’t of
paramount force, like the Second Republic established by the Japanese belligerent.

The legitimacy of the Aquino government is not a justiciable matter. It belongs to the
realm of politics where only the people of the Philippines are the judge. And the people have
made the judgment; they have accepted the government of President Corazon C. Aquino which
is in effective control of the entire country so that it is not merely a de facto government but in
fact and law a de jure government. Moreover the community of nations has recognized the
legitimacy of the present government. All the eleven members of this Court as reorganized
have sworn to uphold the fundamental law of the Republic under her government. (In re
Bermudez (1986) citing Lawyers League for a Better Philippines v. Aquino (1986)]

In the cited cases [Lawyers League for a Better Philippines and/or Oliver A. Lozano v.
President Corazon C. Aquino, et al], we held that the government of former President Aquino
was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less
than the Freedom Constitution declared that the Aquino government was installed through a
direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended."

It is familiar learning that the legitimacy of a government sired by a successful revolution

by people power is beyond judicial scrutiny for that government automatically orbits out of the
constitutional loop. In checkered contrast, the government of respondent Arroyo is not
revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution. In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency
under the authority of the 1987 Constitution.

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In fine, the legal distinction between EDSA People Power I and EDSA People Power II
is clear. EDSA I involves the exercise of the people power of revolution which overthrew the
whole government. EDSA II is an exercise of people power of freedom of speech and freedom
of assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extraconstitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra-constitutional and
the resignation of the sitting President that it caused and the succession of the Vice President
as President are subject to judicial review. EDSA I presented a political question; EDSA II
involves legal questions. Even if the petitioner can prove that he did not resign, still, he cannot
successfully claim that he is a President on leave on the ground that he is merely unable to
govern temporarily. That claim has been laid to rest by Congress and the decision that
respondent Arroyo is the de jure, president made by a co-equal branch of government cannot
be reviewed by this Court. [Estrada v. Desierto/Estrada v. Arroyo (2001)]

SELF-ASSESSMENT QUESTIONS

1. What is the function of the “Declaration of Principles and State Policies” in the
Constitution?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

2. How are governments classified according to their legitimacy?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
3. Classify de facto governments.
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

4. Was the government under Gloria Macapagal-Arroyo established after the ouster of
President Estrada de jure?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

5. What is a republican state?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

6. Why is the Philippines also called a “democratic” state by the new Constitution?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

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7. Why is separation of powers a fundamental principle in a presidential form of

government?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

8. How is check and balances important in order to secure coordination in the workings
of the various departments of the government?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

9. How judicial review is considered an expression of constitutional supremacy?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

10. How is delegation of powers being observed in our system of government?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

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LESSON 2

LEGISLATIVE DEPARTMENT

OBJECTIVES

At the end of this lesson, the student must be able to:

1. Distinguish between the two houses of congress in their exercise of legislative power;
2. Recognize the legislative privileges, inhibitions, and disqualifications;
3. Explain the importance of quorum and how the congress votes on a certain bill;
4. Describe the electoral tribunals and the commission on appointments; and
5. Enumerate and expound the powers of Congress;

READINGS

“Legislative Department”
From: Political Law (2017) by UP College of Law - BAR Operations Commission, pp. 20-38
https://www.scribd.com/document/388699452/UP-POLITICAL-LAW-REVIEWER-
2017-pdf

CONTENT

WHO MAY EXERCISE LEGISLATIVE POWER

Legislative power is the authority to make laws and to alter and repeal them. It is vested
in:

1. The Congress of the Philippines, which consists of a Senate and a House of

Representatives [CONST., art. VI, sec. 1]
2. The people to themselves, by the system of initiative and referendum [Id.]

Legislative power may also be exercised by:

1. Regional/local legislative assemblies – N.B. A regional assembly exists for the ARMM
2. President, under martial rule or in a revolutionary government. [See CONST., art. VI,
sec. 23(2)]. Congress may delegate legislative powers to the president in times of war
or in other national emergency. [BERNAS]

Congress - Grant of legislative power to Congress is plenary. Congress may legislate

on any subject matter provided that constitutional limitations are observed.

Initiative and Referendum. The power of initiative and referendum is the power of the
people directly to “propose and enact laws or approve or reject any act or law or part thereof
passed by the Congress or local legislative body.” (art. VI, sec. 32)

The operationalization of initiative and referendum has been left by the Constitution to
Congress (art. VI, sec. 32; BERNAS);

The provision is not self-executory [Santiago v. COMELEC (1997)];

RA 6735 – “An Act Providing for a System of Initiative and Referendum and
Appropriating Funds Therefore” – valid for laws, ordinances, and resolutions, but NOT
amendments to the Constitution [Santiago, supra]

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HOUSES OF CONGRESS

COMPOSITION, QUALIFICATIONS AND TERM OF OFFICE

Senate House of Representatives

(Art. VI, sec. 2-4) (Art. VI, sec. 5-8)
Composition
24 senators elected at large Not more than 250 members, unless
otherwise provided by law, consisting of:
1. District Repre-sentatives
2. Party-List Representatives
Qualifications
1. Natural-born citizen 1. Natural-born citizens
2. At least 35 years old on the day of the 2. At least 25 years old on the day of the
election election
3. Able to read and write 3. Able to read and write
4. A registered voter 4. Registered voter in the district he seeks
5. Resident of the Philippines for at least 2 to represent
years immediately preceding the day of 5. A resident of the said district for at least
the election 1 year immediately preceding the day of
the election
Term of Office
6 years 3 years
Term Limits
2 consecutive terms 3 consecutive terms
Article 6 states that “The Senate shall be composed of twenty-four senators who
shall be elected at large by the qualified voters of the Philippines, as may be provided by law.”
(Section 2). By providing for a membership elected at large by the electorate, this rule intends
to make the Senate a training ground for national leaders and possibly a springboard for the
Presidency. The feeling is that the senator, having national rather than only a district
constituency, will have a broader outlook of the problems of the country instead of being
restricted by parochial viewpoints and narrow interests. With such a perspective, the Senate is
likely to be more circumspect and broad minded than the House of Representatives. No person
shall be a senator unless he is a natural-born citizen of the Philippines, and, on the day of
the election, is at least thirty-five years of age, able to read and write, a registered voter, and a
resident of the Philippines for not less than two years immediately preceding the day of
election (Section 3).

The term of office of the Senators shall be 6 years, commencing at noon on the 30 day
of June next following their election. The term limits is only up to 2 consecutive terms. However,
they may serve for more than 2 terms provided that the terms are not consecutive (Article 6,
Section 4).

The composition of the House of Representatives shall be composed of not more

than 250 members unless otherwise fixed by law. Representatives shall be elected from
legislative districts and through party-list system (Article 6, Section 5).

District Representatives - Elected from legislative districts apportioned among the

provinces, cities, and Metro Manila area.

Rules on Apportionment of Legislative Districts:

1. Apportionment of legislative districts must be by law which could be a:

a. General Apportionment Law; or
b. Special Law (i.e. creation of new provinces)

2. Proportional representation based on number of inhabitants

a. Each city with a population of at least 250,000shall have at least 1
representative.
b. Each province, irrespective of the number of inhabitants, shall have at least 1
representative.

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c. Each legislative district shall comprise, as far as practicable, contiguous,

compact, and adjacent territory.
d. Re-apportionment by Congress within 3 years after the return of each census.

Party-List Representatives –shall constitute 20% of the total number of representatives,

elected through a partylist system of registered national, regional, and sectoral parties or
organizations.

Sectoral Representatives - For 3 consecutive terms from 2 February 1987, ½ of the

partylist seats shall be allotted to sectoral representatives to be chosen by appointment or
election, as may be provided by law. Until a law is passed, they are appointed by the President
from a list of nominees by the respective sectors. [Art. XVIII, Sec. 7]

No person shall be a member of the House of Representatives unless he is a

natural born citizen of the Philippines and, on the day of the election, is at least twenty-
five years of age, able to read and write, and except the party-list representatives, a
registered voter in the district in which he shall be elected, and a resident thereof for a period
of not less than one year immediately preceding the day of the election (Article 6, Section
6). The term of office shall be 3 years, commencing at noon on the 30th day of June next
following their election. Tenure may be shorter than the term or it may not exist at all. These
situations will not change the duration of the term of office. [Dimaporo vs Mitra (1991)]. No
member of the House of Representatives shall serve for more than 3 consecutive terms(Article
6, Section 7).

For Party-list System Atong Paglaum Guidelines were followed:

1. Three different parties or organizations may participate in the party-list system: (a)
national; (b) regional; or (c) sectoral;

2. National and regional parties or orgs do not need to (a) organize along sectoral lines
or (b) represent any “marginalized or underrepresented” sector;

3. Political parties may participate in the party-list system provided: (a) they register under
the party-list system; (b) they do not field candidates in legislative district elections.
a. A party that participates in the legislative district elections may still participate
in the party-list through a sectoral wing.
b. The sectoral wing can be part of the political party’s coalition, but the former
must be registered independently in the party-list system.

4. Sectoral parties or orgs may either be (a) “marginalized or underrepresented” (e.g.

labor, peasant, fisherfolk); or (b) “lacking in well-defined political constituencies” (e.g.
professionals, women, elderly, youth)

5. The nominees of sectoral parties or orgs, of either type, must (a) belong to their
respective sectors, or (b) have a track record of advocacy for their respective sectors.

Majority of the members of a sectoral party, of either type, must belong to the sector
they represent.

6. National, regional, or sectoral parties or orgs shall not be disqualified if some of their
nominees are disqualified, provided they have at least one (1) nominee who remains
qualified.

Parties, organizations, and coalitions must obtain at least 2% of all votes cast to obtain
a party-list seat.

Those garnering more than 2% are entitled to additional seats in proportion to their total
number of votes, but may not have more than 3 seats.

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Disqualified parties:

1. Religious Sects
2. Foreign Organizations
3. Those Advocating Violence or Unlawful Means
4. It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly
through third parties for partisan election purposes.
5. It violates or fails to comply with laws, rules or regulations relating to elections;
6. It declares untruthful statements in its petition;
7. It has ceased to exist for at least one (1) year; or
8. It fails to participate in the last two (2) preceding elections or fails to obtain at least 2
per centum of the votes cast under the party-list system in the two (2) preceding
elections for the constituency in which it has registered.

Qualified Sectors:

1. Labor
2. Peasant
3. Fisherfolk
4. Urban Poor
5. Indigenous Cultural Com-munities
6. Elderly
7. Handicapped
8. Women
9. Youth
10. Veterans
11. Overseas Workers
12. Professionals

Political parties are allowed by the constitution to participate in the party-list system
provided that they represent the interests of the marginalized and underrepresented. The
following conditions must be complied:

1. Must represent marginalized and under-represented sectors;

2. Major political parties must comply with this statutory policy;
3. Must be subject to the express constitutional prohibition against religious sects;
4. The party must not be disqualified under RA 7941;
5. The party must not be an adjunct or entity or project funded by the government;
6. The party and its nominees must comply with the requirements of the law;
7. The nominee must also represent a marginalized or under-represented sector;
8. The nominee must be able to contribute to the formulation and enactment of
appropriate legislation that will benefit the nation. [Ang Bagong Bayani-OFW Labor
Party v. COMELEC (2000)].

Four inviolable constitutional and statutory parameters in the party-list system:

1. 20% Allocation – the combined number of all party-list congressmen shall not exceed
20% of the total membership of the House of Representatives.
2. 2% threshold – only those parties garnering a minimum of 2% of the total votes cast
for the party-list system are qualified to have a seat in the House.
3. Three seat limit – each qualified party, regardless of the number of votes it actually
obtained is entitled to a maximum of three seats (1 qualifying and 2 additional seats).
4. Proportional representation – the additional seats which a qualified party is entitled to
shall be computed “in proportion to their total number of votes”. [Veterans Federation
v. COMELEC (2000)].

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LEGISLATIVE PRIVILEGES, INHIBITIONS AND DISQUALIFICATIONS

PRIVILEGES

Salaries. The salaries of Senators and Representatives shall be determined by law.

No increase in said compensation shall take effect until after the expiration of the full term of all
the Members of the Senate and the House of Representatives approving such increase. [Art.
VI, Sec. 10].

Freedom from Arrest. A Senator or Member of the House of Representatives shall, in

all offenses punishable by not more than six years imprisonment, be privileged from arrest while
the Congress is in session. [Sec. 11, Art VI].

Preventive suspension is not a penalty. Order of suspension under R.A. 3019 (Anti-
Graft and Corrupt Practices Act) is distinct from the power of Congress to discipline its own
members, and did not exclude members of Congress from its operation. [Defensor-Santiago v.
Sandiganbayan (2001)]

In People v. Jalosjos (2000), the SC denied the request of Cong. Jalosjos that he be
allowed to attend legislative sessions. He denial was premised on the following: (a) membership
in Congress does not exempt an accused from statutes and rules which apply to validly
incarcerated persons; (b) one rationale behind confinement is public self-defense; (c) it would
amount to creation of a privileged class, without justification in reason; and (d) he was provided
with an office in the New Bilibid Prison.

Speech and Debate Clause. No Member shall be questioned nor be held liable in any
other place for any speech or debate in the Congress or in any committee thereof.

To come under the guarantee the speech or debate" must be one made "in Congress
or in any committee thereof." Publication of an allegedly libelous letter is not covered by the
privilege [Jimenez v. Cabangbang (1966)]

Each House of the Congress can discipline its members for disorderly conduct or
behavior. What constitutes disorderly behavior is entirely up to Congress to define.

The immunity, although absolute in its protection of the member of Congress against
suits for libel, does not shield the member against the disciplinary authority of the Congress.
[Osmeña v. Pendatun (1960)]

DISQUALIFICATIONS

1. May not hold any other office or employment in the government during his term without
forfeiting his seat. [Art. VI, Sec. 13]
The provision refers to an Incompatible Office. Forfeiture of the seat in Congress shall
be automatic upon the member’s assumption of such office deemed incompatible.
[Adaza v. Pacana (1985)].
2. May not be appointed to any office created or the emoluments thereof were increased
during the term for which he was elected. [Art. VI, Sec. 13]
The provision refers to a Forbidden Office. He cannot validly take the office even if he
is willing to give up his seat.
3. Cannot personally appear as counsel before any court, electoral tribunal, quasi-judicial
and administrative bodies during his term of office. [Art. VI, Sec. 14]
4. Shall not be financially interested, directly or indirectly, in any contract with, or franchise
or special privilege granted by the government during his term of office. [Art. VI, Sec.
14]
5. Shall not intervene in any matter before any office of the government when it is for his
pecuniary benefit or where he may be called upon to act on account of his office. [Art.
VI, Sec. 14]

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Appearance as counsel: Certain salient circumstances militate against the intervention

of Assemblyman Fernandez in the SEC Case. He had acquired a mere P200.00 worth of stock
in IPI, representing ten shares out of 262,843 outstanding shares. He acquired them after the
contested election of Directors, after the quo warranto suit had been filed before SEC, and one
day before the scheduled hearing of the case before the SEC.

Before he moved to intervene, he had signified his intention to appear as counsel for
respondent, which was objected to by petitioners. Realizing, perhaps, the validity of the
objection, he decided, instead, to "intervene" on the ground of legal interest in the matter under
litigation.

Under those facts and circumstances that there has been an indirect "appearance as
counsel before ... an administrative body" and that is a circumvention of the Constitutional
prohibition.

The "intervention" was an afterthought to enable him to appear actively in the

proceedings in some other capacity. [Puyat v De Guzman, (1982)]

Duty to Disclose

1. SALN: A public officer or employee shall, upon assumption of office and as often as
may be required by law, submit a declaration under oath of his assets, liabilities, and
net worth.

Cases wherein declaration shall be disclosed to the public in the manner provided by
law:

a. President
b. Vice-President
c. the Members of the Cabinet
d. the Congress
e. the Supreme Court
f. the Constitutional Commissions and other constitutional offices
g. officers of the armed forces with general or flag rank [Art. XI, Sec. 17]

2. All Members of the Senate and the House of Representatives shall, upon assumption
of office, make a full disclosure of their financial and business interests. They shall
notify the House concerned of a potential conflict of interest that may arise from the
filing of a proposed legislation of which they are authors. [Art.VI, Sec. 12]

3. The records and books of accounts of the Congress shall be preserved and be open
to the public in accordance with law, such books shall be audited by the Commission
on Audit which shall publish annually an itemized list of amounts paid to and expenses
incurred for each Member. [Art. VI, Sec. 20]

QUORUM AND VOTING MAJORITIES

QUORUM. Majority of each House shall constitute a quorum. A smaller number may
adjourn from day to day and may compel the attendance of absent members. In computing a
quorum, members who are outside the country, thus outside of each House’s coercive
jurisdiction, are not included.

“Majority” refers to the number of members within the “jurisdiction” of the Congress
(those it can order arrested for the purpose of questioning). In this case, one Senator was out
of the Philippines which is not within the “jurisdiction” of the Senate, so that the working majority
was 23 Senators.

There is a difference between a majority of "all members of the House" and a majority
of "the House", the latter requiring less number than the first. Therefore, an absolute majority

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(12) of all members of the Senate less one (23) constitutes constitutional majority of the Senate
for the purpose of the quorum. [Avelino v. Cuenco (1949)]

VOTING MAJORITIES. Doctrine of Shifting Majority– For each House of Congress to

pass a bill, only the votes of the majority of those present in the session, there being a quorum,
is required.

Exceptions to Doctrine of Shifting Majority:

1. Votes where requirement is based on “ALL THE MEMBERS OF CONGRESS” –

requirement is based on the entire composition of a House or Congress (in its entirety),
regardless of the number of Members present or absent

Vote Required
Action (out of all Houses voting Basis
members)
Override presidential 2/3 Separately Art. VI, Sec. 27(1)
veto
Grant of tax Majority (Silent) Art. VI, Sec. 27(4)
exemptions
Elect President in Majority Separately Art. VII, Sec. 4(5)
case of tie
Confirm appointment Majority Separately Art. VII, Sec. 9
of VP
Revoke or extend (a) Majority Jointly Art. VII, Sec. 18
Martial Law or
(b) suspension of writ
of Habeas Corpus
Confirm amnesty Majority (Silent) Art. VII, Sec. 19(2)
grant
Submit question of Majority (Silent) Art. XVII, Sec. 3
Const. Convention
Call for Const. 2/3 Prevailing Art. XVII, Sec. 3
Convention view: by
Propose ¾ default, Art. XVII, Sec.
amendments houses vote 23(1)
as Const. Assembly separately
(because
Congress is
bicameral)

2. Other Special Cases

Action Vote Required Basis

(out of all members)
Determine President’s 2/3 of both Houses, voting Art. VII, Sec. 11(5)
disability separately
Declaring a State of War 2/3 (of both Houses, in joint Art. VI, Sec. 23(1)
session), each House oting
separately

DISCIPLINE OF MEMBERS

Each house may punish its members for disorderly behavior, and with the concurrence
of 2/3 of ALL its members:

1. Suspension (shall not exceed 60 days)

2. Expulsion

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Other disciplinary measures:

1. deletion of unparliamentary remarks from the record

2. fine
3. imprisonment
4. censure

The suspension contemplated in the Constitution is different from the suspension

prescribed in the Anti-Graft and Corrupt Practices Act (RA 3019). The former is punitive in
nature while the latter is preventive. [Defensor-Santiago v. Sandiganbayan (1995)].

ELECTORAL TRIBUNALS AND THE COMMISSION ON APPOINTMENTS ELECTORAL

TRIBUNALS [Art. VI, Sec. 17]

1. Senate Electoral Tribunal (SET)

2. House Electoral Tribunal (HRET)

There is a Presidential Electoral Tribunal (PET), but it is governed by different

provisions.

Composition

1. 3 Supreme Court justices, designated by CJ Senior Justice in the Electoral Tribunal

shall be its Chairman
2. 6 members of the Senate or House, as the case may be, chosen on the basis of
proportional representation from parties;
3. The ET shall be constituted within 30 days after the Senate and the House shall have
been organized with the election of the President and the Speaker.
4. Members chosen enjoy security of tenure and cannot be removed by mere change of
party affiliation. [Bondoc v. Pineda (1991)].

Valid grounds/just cause for termination of membership to the tribunal:

1. Expiration of Congressional term of office;

2. Death or permanent disability;
3. Resignation form political party which one represents in the tribunal;
4. Removal from office for other valid reasons.

Disloyalty to party and breach of party discipline are not valid grounds for the expulsion
of a member of the tribunal. [Bondoc, supra]

Nature of Function

Jurisdiction: sole judge of all contests relating to the election, returns, and qualifications
of their respective members.

When does it acquire jurisdiction: ET has jurisdiction only when there is an election
contest, and only after the proclamation of a candidate. [See Lazatin v. HRET (1988)].

Election Contest- one where a defeated candidate challenges the qualification and
claims for himself the seat of a proclaimed winner.

In the absence of election contest, and before proclamation, jurisdiction remains with
COMELEC. [See Lazatin, supra]

Supreme Court has jurisdiction over the Electoral Commission for the purpose of
determining the character, scope and extent of the constitutional grant to the Electoral
Commission as "the sole judge of all contests relating to the election, returns and qualifications
of the members of the National Assembly." [Angara v. Electoral Commission (1936)]

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Constitution mandates that the HRET “shall be the sole judge of all contests relating to
the election, returns and qualifications” of its members. By employing the word “sole,” the
Constitution is emphatic that the jurisdiction of the HRET in the adjudication of election contests
involving its members is exclusive and exhaustive. Its exercise of power is intended to be its
own — full, complete and unimpaired. [Duenas Jr. v. HRET (2009)]

Independence of the Electoral Tribunals

Since the ET’s are independent constitutional bodies, independent even of the
respective House, neither Congress nor the Courts may interfere with procedural matters
relating to the functions of the ET’s. [Co vs HRET, (1991)]

The HRET was created to function as a nonpartisan court although two-thirds of its
members are politicians.

To be able to exercise exclusive jurisdiction, the House Electoral Tribunal must be

independent. Its jurisdiction to hear and decide congressional election contests is not to be
shared by it with the Legislature nor with the courts. "The Electoral Commission is a body
separate from and independent of the legislature and though not a power in the tripartite
scheme of government, it is to all intents and purposes, when acting within the limits of its
authority, an independent organ; while composed of a majority of members of the legislature it
is a body separate from and independent of the legislature. [Bondoc v. Pineda (1991)]

Powers

As constitutional creations invested with necessary power, the Electoral Tribunals are,
in the exercise of their functions independent organs — independent of Congress and the
Supreme Court. The power granted to HRET by the Constitution is intended to be as complete
and unimpaired as if it had remained originally in the legislature [Co v. HRET (1991) citing
Angara vs. Electoral Commission (1936)].

Judicial Review of Decisions of Electoral Tribunals

With the Supreme Courtonly insofar as the decision or resolution was rendered:
(1) without or in excess of jurisdiction, or (2) with grave abuse of discretion tantamount to denial
of due process.

COMMISSION ON APPOINTMENTS (CA)

(Art. VI, Sec. 18)

Composition

1. Senate President as ex-officio chairman (shall not vote except in case of a tie)
2. 12 Senators
3. 12 Members of the HOR

The CA shall be constituted within 30 days after the Senate and the House of
Representative shall have been organized with the election of the President and the Speaker.
The CA shall act on all appointments within 30 session days from their submission to Congress.
The CA shall rule by a majority vote of all its members. It is NOT mandatory to elect 12 Senators
to the Commission; what the Constitution requires that there must be at least a majority of the
entire membership. [Guingona v. Gonzales (1993)].

The power to approve or disapprove appointments is conferred on the CA as a body

and not on the individual members. [Pacete v. Secretary (1971)]

Rule on Proportional Representation – The 12 Senators and 12 Representatives are

elected on the basis of proportional representation from the political parties and party-list
organizations.

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HOR has authority to change its representation in the Commission on Appointments to

reflect at any time the changes that may transpire in the political alignments of its membership.
It is understood that such changes in membership must be permanent and do not include the
temporary alliances or factional divisions not involving severance of political loyalties or formal
disaffiliation and permanent shifts of allegiance from one political party to another. [Daza v.
Singson (1989)]

The provision of Section 18 on proportional representation is mandatory in character

and does not leave any discretion to the majority party in the Senate to disobey or disregard
the rule on proportional representation.

By requiring a proportional representation in the Commission on Appointments, sec.

18 in effect works as a check on the majority party in the Senate and helps to maintain the
balance of power. No party can claim more than what it is entitled to under such rule. [Guingona
v. Gonzales (1993)]

Meetings

1. CA shall meet only while Congress is in session.

2. Meetings are held either (a) at the call of the Chairman or (b) by a majority of all its
members.

Since the Commission on Appointments is also an independent constitutional body, its

rules of procedure are also outside the scope of congressional powers as well as that of the
judiciary.

Jurisdiction

1. CA shall confirm the appointments by the President with respect to the following
positions:
a. Heads of Executive departments (except if it is the Vice-President who is
appointed to a cabinet position);
b. Ambassadors, other public ministers or consuls;
c. Officers of the AFP from the rank of Colonel or Naval Captain;
d. Other officers whose appointments are vested in him by the Constitution (e.g.
members of constitutional commissions); [Sarmiento v. Mison (1987)]

2. Congress cannot by law require that the appointment of a person to an office created
by such law shall be subject to CA confirmation.

Appointments extended by the President to the abovementioned positions while

Congress is not in session (adinterim appointments) shall only be effective:

1. Until disapproval by the Commission on Appointments; or

2. Until the next adjournment of Congress.

POWERS OF CONGRESS

INHERENT POWERS

These are inherent powers of the State which are reposed, under the Constitution, in
Congress.

1. Police Power
a. Make, ordain, and establish all manner of wholesome and reasonable laws,
statutes and ordinances as they shall judge for the good and welfare of the
constituents.
b. Includes maintenance of peace and order, protection of life, liberty and property
and the promotion of general welfare
2. Power of Taxation

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3. Power of Eminent Domain

4. Contempt power

LEGISLATIVE POWERS

1. powers of appropriation,
2. taxation
3. expropriation
4. authority to make, frame, enact, amend, and repeal laws
5. ancillary powers (e.g. conduct inquiry and punish for contempt
[See Arnault v. Nazareno (1950)]

NON-LEGISLATIVE POWERS (SCOPE)

1. power to canvass the presidential elections;

2. declare the existence of war;
3. give concurrence to treaties and amnesties;
4. propose constitutional amendments;
5. impeachment;

SPECIFIC POWERS

1. Constituent power
2. Legislative Inquiries
3. Appropriation
4. Taxation
5. Concurrence in treaties and international agreements
6. War powers and delegations powers

LEGISLATIVE. Legislative Inquiries and the Oversight Functions (Art VI, Sec. 21)

Requisites of Legislative Inquiries:

1. Must be in aid of legislation

2. In accordance with duly published rules of procedure
3. Right of persons appearing in or affected by such inquiries shall be respected

Comparison between Legislative Inquiries and Question Hour [See also Senate v.
Ermita (2006)]

Legislative Inquiries Question Hour

Constitutional Provision
Art. VI, Sec. 21 Art. VI, Sec. 22
Topic
In aid of legislation On any matter pertaining to the
subject’s department
Persons Subjected
Any person upon subpoena Heads of departments only
Appearance of Exec. Officials
Appearance of executive officials Appearance of executive officials
generally mandatory via request

The mere filing of a criminal or an administrative complaint before a court or quasi-

judicial body should not automatically bar the conduct of legislative inquiry. [Standard Chartered
Bank v. Senate Committee on Banks (2007)]

Additional limitation: Executive Privilege

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Categories of congressional oversight functions

1. Scrutiny: Passive inquiry, the primary purpose of which is to determine economy and
efficiency of the operation of government activities. In the exercise of legislative
scrutiny, Congress may request information and report from the other branches of
government. It can give recommendations or pass resolutions for consideration of the
agency involved.
2. Congressional investigation: More intense digging of facts, compared to scrutiny.
Power of investigation recognized by art. VI, sec. 21.
3. Legislative supervision (Legislative Veto): Most encompassing form. Connotes a
continuing and informed awareness on the part of a congressional committee regarding
executive operations in a given administrative area. Allows Congress to scrutinize the
exercise of delegated law-making authority, and permits Congress to retain part of that
delegated authority. Through this, Congress exercises supervision over the executive
agencies.

Legislative supervision is NOT allowed under the Constitution. [Abakada Guro Partylist
v. Purisima (2008)]

Bicameral Conference Committee

Ways of passing bills:

1. Jointly: in a joint session, supra

2. Separately: each house takes up bill on its own; the houses, in turn, can pass the bill:
a. Simultaneously: houses take up a bill at the same time
b. Sequentially: bill originates from one house and, upon proper passage, is
transmitted to the other house for the latter’s own passage. In case of conflict
between the two houses’ versions, a bicameral conference committee is
organized.

Bicameral Conference Committee (BCC):

1. Composed of equal number of members from the Senate and the HOR
2. Makes recommendations to houses on how to reconcile conflicting provisions/versions
3. BCC members are usually granted blanket authority to negotiate/reconcile the bills.
4. At the end of the process, the BCC comes up with a Conference Committee Report,
which is then submitted to the respective chambers for approval. Upon approval, the
bill may be engrossed.

The Bicam report need not pass through three readings. The Bicam may also include
entirely new provisions and substitutions. [See Tolentino v. Sec. of Finance (1994), Phil. Judges
Association v. Prado (1993)]

Enrolled bill doctrine –The signing of a bill by the Speaker of the House and the
President of the Senate and the certification by the secretaries of both Houses of Congress that
it was passed are conclusive of its due enactment. While Tolentino v. Sec. of Finance does
NOT hold that the enrolled bill embodies a conclusive presumption, i.e. the rule is not absolute,
“where there is no evidence to the contrary, the Court will respect the certification of the
presiding officers of both Houses that a bill has been duly passed.” [Arroyo v. De Venecia
(1997)]

Limitations on Legislative Power

Formal/Procedural Limitations

Prescribes manner of passing bills and form they should take.

1. Rider clause: every bill passed by the Congress shall embrace only one subject which
shall be expressed in the title. [Art. VI, Sec. 26(1)]

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The title is not required to be an index of the contents of the bill. It is sufficient
compliance if the title expresses:
a. the general subject and
b. all the provisions of the statute are germane to that subject. [Tio v. Videogram
Regulatory Commission (1987)]

2. No bill passed by either house shall become law unless it has passed 3 readings on
separate days. [Art. VI, Sec. 26(2)]
3. Printed copies in its final form have been distributed to its members 3 days before the
passage of the bill. (art. VI, sec. 26[2])

Exception: President certifies to the necessity of its immediate enactment to meet a

public calamity or emergency.

Presidential certification dispenses with the requirement:

1. printing requirement and

2. readings on separate days requirement [Tolentino v. Secretary of Finance (1995)]
Substantive Limitations

Circumscribe both the exercise of the power itself and the allowable subject of
legislation

Express limitations:

1. On general powers - Bill of Rights [Art. III]

2. On taxation [Secs. 28 and 29(3), Art. VII]
3. On appropriation [Secs. 25 and 29(1) and (2), Art VI]
4. On appellate jurisdiction of the SC [Sec. 30, Art. VI]
5. No law granting title of royalty or nobility shall be passed [Sec. 31, Art. VI]

Implied Limitations:

1. No power to pass irrepealable law

2. Non-encroachment on powers of other departments
3. Non-delegation of powers

LIMITATIONS ON REVENUE, APPROPRIATIONS AND TARIFF MEASURES

Appropriations

General Limitations:

1. Appropriations must be for a public purpose.

2. Cannot appropriate public funds or property, directly or indirectly, in favor of
a. Any sect, church, denomination, or sectarian institution or system of religion or
b. Any priest, preacher, minister, or other religious teacher or dignitary as such.

Exception: if the priest etc. is assigned to:

a. the Armed Forces;
b. any penal institution;
c. government orphanage;
d. leprosarium

3. Government is not prohibited from appropriating money for a valid secular purpose,
even if it incidentally benefits a religion, e.g. appropriations for a national police force
is valid even if the police also protects the safety of clergymen. Also, the temporary use
of public property for religious purposes is valid, as long as the property is available for
all religions.

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Specific Limitations

For General Appropriations Bills

1. Congress may not increase the appropriations recommended by the President for the
operation of the Government as specified in the budget.
2. Form, content and manner of preparation of the budget shall be prescribed by law.
3. No provision or enactment shall be embraced in the general appropriations bill unless
it relates specifically to some particular appropriation therein.
4. Procedure in approving appropriations FOR THE CONGRESS shall strictly follow the
procedure for approving appropriations for other departments and agencies.
5. No law shall be passed authorizing any transfer of appropriations. However, the
following 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:
a. President
b. Senate President
c. Speaker of the HOR
d. Chief Justice of the Supreme Court
e. Chairs of Constitutional Commissions

Guidelines for disbursement of discretionary funds appropriated for particular officials:

1. For public purposes

2. To be supported by appropriate vouchers
3. Subject to such guidelines as may be prescribed by law

If Congress fails to pass the general appropriations bill by the end of any fiscal year:

1. The general appropriations bill for the previous year is deemed reenacted
2. It shall remain in force and effect until the general appropriations bill is passed by
Congress.

For Special Appropriations Bills

1. Shall specify the purpose for which it is intended

2. Shall be supported by funds
a. actually available as certified by the National Treasurer; or
b. to be raised by corresponding revenue proposal therein

Limitation on Use of Public Funds [Art. VI, Sec. 29]

1. No money shall be paid out of the National Treasury

2. except in pursuance of an appropriation made by law.
3. However, this rule does not prohibit continuing appropriations, e.g. for debt servicing,
for the reason that this rule does not require yearly or annual appropriation.

Four phases of Government’s budgeting process:

1. Budget preparation
2. Legislative authorization
3. Budget execution
4. Budget accountability

Taxation [Art. VI, Sec. 28]

Nature of provision

Sec. 28 is a listing of the limits on the inherent and otherwise unlimited power

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Purposes of taxation

1. Pay debts and provide for the common defense and general warfare;
2. Raise revenue;
3. Instrument of national and social policy;
4. Instrument for extermination of undesirable acts and enterprises;
5. Tool for regulation;
6. Imposition of tariffs designed to encourage and protect locally produced goods against
competition for imports.

Limitations

1. Public purpose- Power to tax should be exercised only for a public purpose.
2. Uniform and equitable.
a. Operates with the same force and effect in every place
3. where the subject of it is found
a. Classification for the purpose of taxation is not prohibited per se, BUT it must
comply with the Test of Valid Classification [see Ormoc Sugar Central v. Ormoc
City (1968), on equal protection and local taxes]

Test of Valid Classification

1. Based on substantial distinctions which make real differences

2. Germane to the purpose of law
3. Applies to present and future conditions substantially identical to those of the present
4. Applies equally to those who belong to the same class

Progressive

The rate increases as the tax base increases

Tax burden is based on the taxpayers’ capacity to pay

Suited to the social conditions of the people

Reflects aim of the Convention that legislature following social justice command should
use taxation as an instrument for more equitable distribution of wealth

Progressive taxation is a directive to Congress and is not a judicially enforceable right

[Tolentino v. Secretary of Finance, supra]

Constitutional Tax Exemptions:

1. Religious, charitable, educational institutions and their properties

2. All revenues and assets of non-stock, non-profit educational institutions are exempt
from taxes and duties PROVIDED that such revenues and assets are actually, directly
and exclusively used for educational purposes [Art. XIV, Sec. 4(3)]
3. Grants, endowments, donations or contributions used actually, directly and exclusively
for educational purposes shall be exempt from tax, subject to conditions prescribed by
law [Art. XIV, sec. 4(4)]

Special Funds

1. Money collected on a tax levied for a special purpose shall be treated as a special fund
and paid out for such purpose only.
2. Once the special purpose is fulfilled or abandoned, any balance shall be transferred to
the general funds of the Government

Presidential Veto and Congressional Override

Submission to the President; President’s Veto power [Sec 27, Art VI]

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Every bill, in order to become a law, must be presented to and signed by the President.

If the President does not approve of the bill, he shall veto the same and return it with
his objections to the house from which it originated. The House shall enter the objections in
the journal and proceed to reconsider it.

The President must communicate his decision to veto within 30 days from the date of
receipt thereof. Otherwise, the bill shall become a law as if he signed it.(“Lapsed into law”)

To override the veto, at least 2/3 of ALL the members of each house must agree to
pass the bill. In such case, the veto is overridden and becomes a law without need of
presidential approval.

General Rule: Partial veto is invalid; all-or-nothing

Exceptions:

1. Veto of particular items in an appropriation, revenue, or tariff bill;

2. Doctrine of Inappropriate Provisions (See below)
Item veto

The President may veto particular items in an appropriation, revenue or tariff bill. The
whole item (and not just a portion) must be vetoed. [Bengzon v. Drilon (1992)]

Item - in a bill, refers to the particulars, the details, the distinct and severable parts; an
indivisible sum of money dedicated to a stated purpose; in itself, a specific appropriation of
money, not some general provision of law, which happens to be in an appropriation bill.

The president cannot veto unavoidable obligations, i.e. already vested by another law
(e.g. payment of pensions, see Bengzon, supra).

This veto will not affect items to which he does not object.

Veto of a Rider

A rider is a provision which does not relate to a particular appropriation stated in the
bill. Since it is an invalid provision under art. VI, sec. 25(2), the President may veto it as an item.

The executive's veto power does not carry with it the power to strike out conditions or
restrictions. If the veto is unconstitutional, it follows that the same produced no effect
whatsoever, and the restriction imposed by the appropriation bill, therefore, remains. [Bolinao
Electronics Corp v. Valencia (1964)]

Doctrine of Inappropriate Provisions

A provision that is constitutionally inappropriate for an appropriation bill may be singled

out for veto even if it is not an appropriation or revenue item. [Gonzales vs Macaraig, (1990)]

NON-LEGISLATIVE
Informing Function

Via legislative inquiries: Conduct of legislative inquiries is intended to benefit not only
Congress but the citizenry, who are equally concerned with the proceedings. [Sabio v. Gordon
(2006)]

Impeachment [CONST., Art. XI]

The HOR shall have the exclusive power to initiate all cases of impeachment. [sec.
3(1)]

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Two modes of initiation

Regular Procedure: [Sec. 3(2)(3)]

FILING by (a) any member of the HOR or (b) any citizen upon endorsement by
a member of the HOR; followed by REFERRAL to the proper HOR committee

COMMITTEE REPORT by proper committee (i.e. HOR Committee on Justice),

which either favorably or unfavorably resolves the complaint

Above resolution AFFIRMED (if favorable) or OVERRIDDEN (if unfavorable)

by vote of 1/3 of all the members of the HOR

Verified complaint or resolution [Sec. 3(4)]

FILED by 1/3 of all the members of the HOR; trial by Senate forthwith proceeds

Basic limitation: No impeachment proceeding shall be initiated against the same official
more than once within a period of one year (CONST., art. XI, sec. 2[5])

Initiation means filing coupled with referral to the Committee on Justice.

Court cannot make a determination of what constitutes an impeachable offense; it is a

purely political question [citing Francisco v. House of Representatives (2003)]

On motion to inhibit: Impeachment is a political exercise. The Court cannot apply (to
Congressmen) the stringent stands it asks of justices and judges when it comes to inhibition
from hearing cases.

Constitutional requirement that HOR shall promulgate its rules on impeachment (see
CONST., Art. XI, Sec. 3[8]) is different from the publication requirement in Tañada v. Tuvera.
(In the Gutierrez case, promulgation was found to be sufficient.)

The SENATE shall have the sole power to try and decide all cases of impeachment.
(sec. 3[6])

By virtue of the expanded judicial review (art. VIII, sec. 1[2]), the Court’s power of
judicial review extends over justiciable issues arising in impeachment proceedngs. [Francisco
v. HOR (2003)]

BUT the question of WON Senate Impeachment Rules were followed is a political
question. [Corona v. Senate (2012)]

Other non-legislative powers

1. power to canvass the presidential elections;

2. declare the existence of war;
3. give concurrence to treaties and amnesties;
4. propose constitutional amendments;
5. implied powers such as the power to punish contempt in legislative investigations.

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SELF-ASSESSMENT QUESTIONS

1. Where does the constitution vest legislative power?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

2. How many kinds of legislative power are there? Describe each.

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

3. How does party-list system work?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

4. May religious leader be elected or selected as sectoral representatives?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

5. How are district representatives apportioned?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

6. What is the parliamentary privilege of speech? What is the scope of the privilege?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

7. About what matter is a member of Congress obliged to make public disclosure

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

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8. Who are the officers of congress?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

9. What is the existence of a quorum based on?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

10. What is the composition of each Electoral tribunal?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

11. May the Supreme Court intervene in the creation of the Electoral Tribunal?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

12. What is the extent of the jurisdiction of the Supreme Court over Electoral Tribunal?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

13. What is the composition of the Commission on Appointments? What is the function of
the Commission on appointment?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

14. What steps are needed before a bill finally becomes a law?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

15. If a bill is vetoed by the President, may it still become a law?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

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16. What is the effect of an invalid veto?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

17. What is the purpose of the power to tax? What is the general limit on the power to tax?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

18. What is a progressive system of taxation?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

19. What are the limits on the power of Congress?

____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

20. Does Congress have the exclusive right to pass national legislation?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

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LESSON 3

EXECUTIVE DEPARTMENT

OBJECTIVES

At the end of this lesson, the student must be able to:

1. Cite the similarities and differences between the office of the president and vice-
president with emphasis on their privileges, inhibition, and disqualifications; and
2. Make a concept map showing the powers of the president and the rules on succession;

READINGS

“Executive Department”
From: Political Law (2017) by UP College of Law - BAR Operations Commission, pp. 38-62
https://www.scribd.com/document/388699452/UP-POLITICAL-LAW-REVIEWER-
2017-pdf

CONTENT

THE PRESIDENT

QUALIFICATIONS:

1. Natural-born citizen of the Philippines;

2. A registered voter;
3. Able to read and write;
4. At least forty years of age on the day of the election; and
5. A resident of the Philippines for at least 10 years immediately preceding such election.
(art. VII, sec. 2)

ELECTION:

1. Regular Election – Second Monday of Monday

2. National Board of Canvassers (President and Vice-President) – Congress
a. Returns shall be transmitted to Congress, directed to the Senate President
b. Joint public session – not later than 30 days after election date; returns to be
opened in the presence of the Senate and HOR in joint session

Jurisprudence on Canvassing:

Congress may validly delegate the initial determination of the authenticity and due
execution of the certificates of canvass to a Joint Congressional Committee, composed of
members of both houses. [Lopez v. Senate (2004)]

Even after Congress has adjourned its regular session, it may continue to perform this
constitutional duty of canvassing the presidential and vice-presidential election results without
need of any call for a special session by the President. xxx Only when a board of canvassers
has completed its functions is it rendered functus officio. [Pimentel, Jr. v. Joint Committee of
Congress (2004)].

If the COMELEC is proscribed from conducting an official canvass of the votes cast for
the President and Vice President, it is, with more reason, prohibited from making an “unofficial”
canvass of said votes. [Brillantes v. COMELEC (2004)]

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The Supreme Court as Presidential Electoral Tribunal: The Supreme Court, sitting en
banc, shall be the sole judge of all contests relating to the election, returns and qualifications of
the President or Vice-President, and may promulgate its rules for the purpose.

Term of Office: 6 years, which shall begin at noon on the 30th day of June next following
the day of the election and shall end at noon of the same day 6 years thereafter. [Art. VII, Sec.
4]

PRESIDENT not eligible for re-election. No person who has succeeded as President
and has served for more than 4 years shall be qualified for election to the same office for any
length of time. [Art. VII, Sec. 4]

PRIVILEGES, INHIBITIONS AND DISQUALIFICATIONS PRIVILEGES

President

Official residence. The President shall have an official residence.

Salary. Determined by law. Shall not be decreased during tenure. No increase shall
take effect until after the expiration of the term of the incumbent during which such increase
was approved.

Presidential Immunity. The President as such cannot be sued, enjoying as he does

immunity from suit. But the validity of his acts can be tested by an action against other executive
officials. [Carillo vs. Marcos (1981)]

The privilege may be invoked ONLY by the President.— Immunity from suit pertains to
the President by virtue of the office and may be invoked only by the holder of the office; not by
any other person in the President's behalf. The President may waive the protection afforded by
the privilege and submit to the court's jurisdiction. [Soliven v. Makasiar (1988); Beltran v.
Makasiar (1988)]. BUT presidential decisions may be questioned before the courts where there
is grave abuse of discretion or that the President acted without or in excess of
jurisdiction.[Gloria v. Court of Appeals (2000)]

Immunity co-extensive with tenure and covers only official duties. After tenure, the
Chief Executive cannot invoke immunity from suit for civil damages arising out of acts done by
him while he was President which were not performed in the exercise of official duties. [Estrada
v. Desierto (2001)]

Cannot be invoked by a non-sitting president. This presidential privilege of immunity

cannot be invoked by a non-sitting president even for acts committed during his or her tenure.
Courts look with disfavor upon the presidential privilege of immunity, especially when it impedes
the search for truth or impairs the vindication of a right. ([Saez vs. Macapagal-Arroyo (2012)],
on an Amparo petition.)

Exception: Suit not arising from official conduct. [Estrada v. Desierto, supra]

Presidential Privilege. The power of the government to withhold information from the
public, the courts, and the Congress. [Schwart] It is "the right of the President and high-level
executive branch officers to withhold information from Congress, the courts, and ultimately the
public." [Rozell]

Case law uses the term presidential privilege to refer to either (1) immunity from suit
(i.e. immunity from judicial processes, see Neri v. Senate, infra; accord Saez v. Macapagal-
Arroyo, supra; discussed in the previous section) or (2) executive privilege [Akbayan v. Aquino
(2008)].

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2 Kinds of Executive Privilege in Neri v. Senate (2008)

1. Presidential Communications Privilege (President): communications are presumptively

privileged; prexy must be given freedom to explore alternatives in policy-making.
2. Deliberative Process Privilege (Executive Officials): refer to materials that comprise
part of a process by which governmental decisions and policies are formulated. This
includes diplomatic processes. [See Akbayan v. Aquino (2008)]

Varieties of Executive Privilege (US):— (1) State secrets privilege - invoked by U.S.
Presidents, beginning with Washington, on the ground that the information is of such nature
that its disclosure would subvert crucial military or diplomatic objectives. (2) Informer’s privilege
- the privilege of the Government not to disclose the identity of persons who furnish information
of violations of law to officers charged with the enforcement of that law. (3) Generic privilege
for internal deliberations - has been said to attach to intragovernmental documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated. [Senate v. Ermita (2004)]

Scope: This jurisdiction recognizes the common law holding that there is a
"governmental privilege against public disclosure with respect to state secrets regarding
military, diplomatic and other national security matters." Closed-door Cabinet meetings are also
a recognized limitation on the right to information.

Executive privilege is properly invoked in relation to specific categories of information

and not to categories of persons—it attaches to the information and not the person.
Only the President (and the Executive Secretary, by order of the President) can invoke
the privilege. (Senate v. Ermita, supra).

Synthesis of Jurisprudential doctrines

The following are the equisites for invoking presidential privilege:—(1) Formal claim of
privilege: For the privilege to apply there must be a formal claim of the privilege. Only the
President or the Executive Secretary (by authority of the President) can invoke the privilege;
and (2) Specificity requirement: A formal and proper claim of executive privilege requires a
specific designation and description of the documents within its scope as well as precise and
certain reasons for preserving confidentiality. Without this specificity, it is impossible for a court
to analyze the claim short of disclosure of the very thing sought to be protected. [Senate v.
Ermita, supra]

Once properly invoked, a presumption arises that it is privileged. If what is involved is

the presumptive privilege of presidential communications when invoked by the President on a
matter clearly within the domain of the Executive, the said presumption dictates that the same
be recognized and be given preference or priority, in the absence of proof of a compelling or
critical need for disclosure by the one assailing such presumption. (Neri v. Senate, G.R. No.
180843, March 25, 2008)

The following are the requisites for validity of claim needed to be complied with in order
for the claim to executive privilege to be valid. These are: — (1) Quintessential and non-
delegable presidential power- power subject of the legislative inquiry must be expressly granted
by the Constitution to the President, e.g commander-in-chief, appointing, pardoning, and
diplomatic powers; (2) Operational Proximity Test: it must be authored, 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 (i.e. officials who stand proximate to the
President, not only by reason of their function, but also by reason of their positions in the
Executive’s organizational structure); (3) No adequate need: The privilege 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. [Neri v. Senate, supra].

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VICE-PRESIDENT

Qualifications, election and term of office and removal are same as the President,
except that no Vice-President shall serve for more than 2 successive terms.

The Vice-President may be appointed as member of the Cabinet; such requires no

confirmation by the Commission of Appointments.

PROHIBITIONS
Prohibited Acts

1. Shall not receive any other emoluments from the government or any other source.

2. Unless otherwise provided in the constitution, shall not hold any other office or
employment.
a. The prohibition does not include posts occupied by executive officials
without additional compensation in an ex-officio capacity, as provided by
law oras required by the primary functions of the said official’s office.
b. The ex-officio position being actually (i.e. merely additional duty) and in
legal contemplation part of the principal office, it follows that the official
concerned has no right to receive additional compensation for his services
in said position. [National Amnesty Commission v. COA (2004]

3. Shall not directly or indirectly practice any other profession, participate in any business,
or be financially interested in any contract with; or in any franchise or special privilege
granted by the government or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries.

4. Strictly avoid conflict of interest in the conduct of their office

5. May not appoint spouse or relatives by consanguinity or affinity within the fourth civil
degree as members of Constitutional Commissions, or the Office of the Ombudsman,
or as Secretaries, Under Secretaries, Chairmen, or heads of bureaus or offices,
including government-owned or controlled corporation and their subsidiaries.

Who are prohibited?

1. President
2. Vice-President,
3. The members of the Cabinet, and their deputies or assistants

The stricter prohibition applied to the President and his official family under art. VII, sec.
13, as compared to the prohibition applicable to appointive officials in general under art. IX-B,
sec. 7, par. 2, which is proof of the intent of the 1987 Constitution to treat them as a class by
itself and to impose upon said class stricter prohibitions.[Civil Liberties Union v. Executive
Secretary (1991)]

Exceptions to rule prohibiting executive officials from holding additional positions:

President

1. The President can assume a Cabinet post, (because the departments are mere
extensions of his personality, according to the Doctrine of Qualified Political Agency,
so no objection can be validly raised based on art. VII, sec. 13.
2. The President can assume ex officio positions. e.g. The President is the Chairman of
NEDA. (art. XII, sec. 9)

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Vice-President

“The Vice-President may be appointed as member of the Cabinet. Such appointment

requires no confirmation” [Art. VII, Sec. 3]

Cabinet

1. The Secretary of Justice shall be an ex-officio member of the Judicial and Bar Council.
(art. VIII, sec. 8[1])
2. Unless otherwise allowed by law or by the primary functions of his position, appointive
officials shall not hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government- owned or
controlled corporations or their subsidiaries. (art. IXB, sec. 7)\
3. Art. VII, sec. 13 talks of "unless otherwise provided by the Constitution." In the case of
Cabinet members, this refers to art. IX-B, sec. 7, par. 2.
4. Thus, the Constitution allows a Cabinet member to hold another office provided either:
5. such is necessitated by the primary functions of his position (e.g. Secretary of Trade
and Industry as Chairman of NDC and Secretary of Agrarian Reform as Chairman of
the Land Bank)
6. such is allowed by law

POWERS OF THE PRESIDENT

EXECUTIVE AND ADMINISTRATIVE POWERS IN GENERAL

Executive power. The power to enforce, implement, and administer laws. The president
shall ensure that the laws be faithfully executed.[Art. VII, Sec. 17]

One Executive: This power is exercised by the President.[Art. VII, Sec. 1]

As administrative head of the government, the President is vested with the power to
execute, administer and carry out laws into practical operation. [National Electrification
Commission vs. CA (1997)]

Presidential Powers

1. Executive Power - power to enforce and administer laws;

2. Power of Control - nullify, modify judgments of subordinates (See Art. VII, Sec. 17);
undo or redo actions of subordinates; and lay down rules for the performance of
subordinates’ duties;

3. Power of Supervision - oversight function; see to it that rules, which they did not make,
are followed;

4. Power of Appointment - legislative can create office, but only executive can fill;
Congress cannot circumvent this by setting very narrow qualifications, such that only
one person is qualified to hold office [See Flores v. Drilon (1993)]

5. Power over Legislation

a. Veto Power
b. Power to Declare Emergency- declaration only; exercise of power is vested in
Congress
c. Integrative Power - powers shared with legislative (e.g. appointments requiring
confirmation, rulemaking); legislation during times of emergency

6. Commander-in-Chief Powers [Art. VII, Sec. 18]

a. Call Out Power - armed forces to suppress lawless violence;
b. Suspension of Writ of Habeas Corpus- only (1) in
c. times of rebellion or invasion AND (2) when required by public safety

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d. Martial Law – does not suspend Constitution

7. Diplomatic Powers - including Power to Enter into Treaties

8. Residual Power - to protect the general welfare of people; founded on duty of President
as steward of the people; includes powers unrelated to execution of any provision of
law (See Marcos v. Manglapus)

9. Other Powers
a. Power to Pardon - reprieve, commute, pardon, remit fines and forfeitures after
final judgment [Art. VII, Sec. 19(1)]
b. Power to Grant Amnesty - with concurrence of majority of all members of
Congress
c. Borrowing Power - contract or guarantee foreign loans with concurrence of
Monetary Board [Art. VII, Sec. 20]
d. Budgetary Power -submit to congress budget of bills and expenditures [Art. VII,
Sec. 22]
e. Informing Power – address Congress during opening of session, or at any
other time [Art. VII, Sec. 23]

POWER OF APPOINTMENT

In General, The President shall nominate and, with the consent of the Commission on
Appointments, appoint 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 whose appointments are vested in him in this constitution. He shall also
appoint all other officers of the Government whose appointments are not otherwise provided
for by law, and those whom he may be authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in rank in the President alone, in the courts, or
in the heads of departments, agencies, commissions or boards. [Art. VII, Sec. 16]

Definition: the selection, by the authority vested with the power, of an individual who is
to exercise the functions of a given office.

Appointment is distinguished from:

1. Designation – imposition of additional duties, usually by law, on a person already in the

public service.
2. Commission – written evidence of the appointment.

Classification of Power of Appointment:

There are 4 groups of officers whom the President may appoint:

1. Heads of the Executive Department, ambassadors, other public ministers and consuls,
officers of the armed forces from the rank of colonel or naval captain and other officers
whose appointments are vested in him;
2. All other officers of the government whose appointments are not otherwise provided by
law;
3. Those whom the President may be authorized to appoint;
4. Officers lower in rank whose appointments Congress may by law vest in the President
alone.

Heads of bureaus were deliberately removed from the provision of appointments

requiring confirmation and were included in the 4th group and hence, their appointments no
longer need confirmation. [Sarmiento v. Mison (1987)]

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Steps in the appointing process:

Nomination by the President

Confirmation by the Commission on Appointments

Issuance of the Commission

Acceptance by the appointee

In the case of ad interim appointments, steps 1, 3 and 4 precedes step 2. An

appointment is deemed complete only upon acceptance. [Lacson v. Romero (1949)].

Appointment is essentially a discretionary power, the only condition being that the
appointee, if issued a permanent appointment, should possess the minimum qualification
requirements, including the Civil Service eligibility prescribed by law for the position. This
discretion also includes the determination of the nature or character of the appointment.

When confirmation is not required:

1. When the President appoints other government officers whose appointments are not
otherwise provided for by law;
2. Those officers whom he may be authorized by law to appoint(e.g. Chairman and
Members of the Commission on Human Rights);
3. When Congress creates inferior offices but omits to provide for appointment thereto, or
provides in an unconstitutional manner for such appointments (Sarmiento v. Mison)
4. Appointment of the Vice-President as member of the Cabinet (art. VII, sec. 3)
5. Appointments upon recommendation of the Judicial and Bar Council
6. Appointments solely by the President– see below
Appointments Upon Recommendation of the Judicial and Bar Council

Do not require confirmation by the Commission on Appointments.

1. Members of the Supreme Court and all other courts [Art. VII, Sec. 9] For lower courts,
appointment shall be issued within 90 days from submission of the list
2. Ombudsman and his 5 deputies (for Luzon, Visayas, Mindanao, general and
military)[Art. XI, Sec. 9]
3. All vacancies shall be filled within 3 months after they occur.

Appointments solely by the President [Art. VII, sec. 16]

1. Those vested by the Constitution on the President alone (e.g. appointment of Vice-
President to the Cabinet) [Art. VII, Sec. 3(2)]
2. Those whose appointments are not otherwise provided by law.
3. Those whom he may be authorized by law to appoint.
4. Those other officers lower in rank whose appointment is vested by law in the President
(alone).The phraseology is muddled.

"The Congress may, by law, vest in the appointment of other officers lower in rank in
the President alone". This meant that until a law is passed giving such appointing power to the
President alone, then such appointment has to be confirmed. The inclusion of the word "alone"

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was an oversight. Thus, the Constitution should read "The Congress may, by law, vest the
appointment of other officers lower in rank in the President." Sarmiento v Mison (1987)

Limitations on appointing power of the President

1. Art. VII, sec. 13, par. 2 - The spouse and relatives by consanguinity or affinity within
the 4th civil degree of the President shall not, during his "tenure", be appointed as:
a. Members of the Constitutional Commissions;
b. Member of the Office of Ombudsman;
c. Secretaries;
d. Undersecretaries;
e. Chairmen or heads of bureaus or offices, including government-owned or
controlled corporations and their subsidiaries.

2. Recess (Ad Interim) appointments: The President shall have the power to make
appointments during the recess of the Congress, whether voluntary or compulsory, but
such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress. (art. VII, sec. 16[2])

Interim or Recess Appointments

Regular and recess (ad interim) appointments

Two Kinds of Appointments Requiring Confirmation:

1. Regular: if the CA (Congress) is in session; and

2. Ad Interim: during the recess of Congress (because the CAshall meet only while
Congress is in session [Art. VI, Sec. 19]

Regular appointment

1. Made by the President while Congress is in session

2. Takes effect only after confirmation by the Commission on Appointments (CA)
3. Once approved, continues until the end of the term of the appointee.

Ad-interim appointment

1. Made by the President while Congress is not in session

2. Takes effect immediately, BUT ceases to be valid (1) if disapproved by the CA or (2)
upon the next adjournment of Congress. [Art. VII, Sec. 16, par. 2]
3. Ad interim appointments are permanent appointments. Ad Interim appointment to the
Constitutional Commissions (e.g. COMELEC) are permanent as it takes effect
immediately and can no longer be withdrawn by the President once the appointee has
qualified into office. The fact that it is subject to the confirmation of the CA does not
alter its permanent character. [Matibag v. Benipayo (2002)]

Acting/Temporary appointment

Can be withdrawn or revoked at the pleasure of the appointing power. The appointee
does not enjoy security of tenure.

Limitation: President constitutionally prohibited from making such appointments to the

Constitutional Commissions (in order to preserve the latter’s independence).

No need for CA confirmation even if Congress is in session. Also, Congress cannot

impose on the president the obligation to appoint an incumbent Undersecretary as [the
President’s] temporary alter ego, i.e. Acting Secretary. [Pimentel v. Ermita (2005)]

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Ad Interim and Acting Appointments, Distinguished

Ad Interim (Recess) Acting

Effective upon acceptance
Extended only when Congress May be extended even if Congress
is in recess is in session
Submitted to the CA for confirmation Not submitted to the CA for
confirmation
Permanent appointments Way of temporary filling up vacancies

The mere filing of a motion for reconsideration of the confirmation of an appointment

cannot have the effect of recalling or setting aside said appointment. The Constitution is clear
– there must either be a rejection by the Commission on Appointments or non-action on its part
for the confirmation to be recalled.

Temporary Designations

The President may designate an officer already in the govt. service or any other
competent person to perform the functions of any office in the executive branch, appointment
to which is vested in him by law, when:

1. The officer regularly appointed to the office is unable to perform his duties by reason
of illness, absence or any other cause; or
2. There exists a vacancy; In no case shall a temporary designation exceed one (1) year.
[Admin Code of 1987, Book III Sec. 17]

Limitations on the appointing power of the ACTING PRESIDENT

1. Appointments extended by an Acting President shall remain effective unless revoked

by the elected President within ninety days from his assumption or reassumption of
office. [Art. VII, Sec.14]
2. Midnight appointments ban: President/Acting President shall not make appointments
two months immediately before the next presidential elections and up to the end of his
term.

Exception: Temporary appointments to executive positions when continued vacancies

therein will prejudice public service or endanger public safety. [Art. VII, Sec. 15]
Commission on Appointments Confirmation

From the rulings in Sarmiento III v. Mison (1987), Bautista v. Salonga (1989), and Deles
v. Constitutional Commission (1989), these doctrines are deducible: Confirmation by the
Commission on Appointments is required only for presidential appointees as mentioned in the
first sentence of art. VII, sec. 16, including those officers whose appointments are expressly
vested by the Constitution itself in the President:

1. Heads of the executive departments

2. Ambassadors, other public ministers and consuls
3. Officers of the Armed Forces of the Philippines with the rank of colonel or naval captain
(because these are officers of a sizeable command enough to stage a coup)
4. Other officers whose appointments are vested in the President by the Constitution:
a. Chairman and Commissioners of the Constitutional Commissions (art. IX)
b. Regular members of the Judicial and Bar Council (art. VII, sec. 8[2])
c. Sectoral Congressional reps.(art. XVIII, sec 7) (N.B. no longer in force)

Midnight Appointments

General Rule: Two months immediately before the next presidential elections (2nd
Monday of March), and up to the end of his "term" (June 30), a President (or Acting President)
shall not make appointments. (art. VII, sec. 15)

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Exception: Temporary appointments to executive positions, when continued vacancies

will: (1) prejudice public service; or (2) endanger public safety.

Limited to Executive Department- The prohibition against midnight appointment applies

only to positions in the executive department. [De Castro v. JBC (2010)] In re: Valenzuela [A.M.
No. 98-5-01-SC, November 9, 1998], which extended the prohibition for midnight appointments
to the judiciary, effectively overruled.

Limited to Caretaker Capacity - While "midnight appointments" (i.e. made by outgoing

President near the end of his term) are not illegal, they should be made in the capacity of a
"caretaker," doubly careful and prudent in making the selection, so as not to defeat the policies
of the incoming administration. Hence, the issuance of 350 appointments in one night and the
planned induction of almost all of them a few hours before the inauguration of the new President
may be regarded as abuse of presidential prerogatives. [Aytona v. Castillo (1962)] BUT the
Aytona ruling does not declare all midnight appointments as invalid, and that the ad interim
appointment of the petitioner chief of police here, whose qualification and regularity were
otherwise not disputed, is thus valid. [Quimsing v. Tajanglangit (1964)]

Applies only to President- Ban does not extend to appointments made by local elective
officials. There is no law that prohibits local elective officials from making appointments during
the last days of his or her tenure. (De Rama v. CA (2001)]

POWER OF REMOVAL

General Principle -The power of removal may be implied from the power of
appointment.

Exception: However, the President cannot remove officials appointed by him where the
Constitution prescribes certain methods for separation of such officers from public service, e.g.
Chairmen and Commissioners of Constitutional Commissioners who can be removed only by
impeachment, or judges who are subject to the disciplinary authority of the Supreme Court.
Career Civil Service - members of the career civil service of the Civil Service who are
appointed by the President may be directly disciplined by him [Villaluz v. Zaldivar (1965)]

Serve at the pleasure of the president -Cabinet members and such officers whose
continuity in office depends upon the pleasure of the president may be replaced at any time,
but legally speaking, their separation is effected not by
removal but by expiration of their term.

POWER OF CONTROL AND SUPERVISION

Control of Executive Departments [Art. VII, Sec. 17]

Control. Is the power of an officer to alter or modify or nullify or to set aside what a
subordinate has done in the performance of his duties and to substitute one's own judgment to
that of a subordinate. (Mondano v. Silvosa [1955])

Doctrine of Qualified Political Agency(Alter Ego Principle). All the different executive
and administrative organizations are mere adjuncts of the Executive Department. This is an
adjunct of the Doctrine of Single Executive.

The heads of the various executive departments are assistants and agents of the Chief
Executive. [Villena v. Sec. of Interior (1939)]

The exceptions are. — (1) in cases wherein the Chief Executive is required by the
Constitution or by the law to act in person or (2) the exigencies of the situation demand that he
act personally, the multifarious executive and administrative functions of the Chief Executive
are performed by and through the executive depts. In the regular course of business, acts of
exec. depts.,unless disapproved or reprobated by the Chief Executive, presumptively acts of

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the Chief Executive. [Free Telephone Workers Union v. Minister of Labor and Employment
(1981)]

Power to Abolish Offices

Generally, power to abolish a public office is legislative. BUT, as far as bureaus, offices,
or agencies of the executive dept. are concerned, power of control may justify him to inactivate
functions of a particular office. (See Buklod ng Kawaning EIIB v. Zamora (2001), where the
President effectively abolished the Economic Intelligence Bureau by “deactivating” it,
transferring its functions to other agencies.)

General Supervision over local government units and the autonomous regions.

The President shall exercise general supervision over local governments.[Art. X, Sec.
4]. The President shall exercise general supervision over autonomous regions to ensure that
laws are faithfully executed. [Art. X, Sec. 16]

Supervision and Control, Distinguished

Overseeing or the power or authority of the officer to see that subordinate officers
perform their duties, and if the latter fail or neglect to fulfill them, then the former may take such
action or steps as prescribed by law to make them perform these duties.

This does not include the power to overrule their acts, if these acts are within their
discretion.

Control. Power of an officer to alter, modify, nullify or set aside what a subordinate
officer had done and to substitute the judgment of the former for that of the latter.
Supervision Control
MILITARY POWERS

Commander-in-chief powers [Art. VII, Sec. 18]

1. He may call out such armed forces to prevent or suppress lawless violence, invasion
or rebellion.
2. He may suspend the privilege of the writ of habeas cor-pus, or
3. He may proclaim martial law over the entire Philippines or any part thereof.

The President shall be the Commander-in-chief of all armed forces of the Philippines

The ability of the President to require a military official to secure prior consent before
appearing before Congress pertains to a wholly different and independent specie of presidential
authority—the commander-in-chief powers of the President. By tradition and jurisprudence, the
commander-in-chief powers of the President are not encumbered by the same degree of
restriction as that which may attach to executive privilege or executive control. Outside explicit
constitutional limitations, the commander-in-chief clause vests on the President, as
commander-in-chief, absolute authority over the persons and actions of the members of the
armed forces. Such authority includes the ability of the President to restrict the travel,
movement and speech of military officers, activities which may otherwise be sanctioned under
civilian law. [Gudani v. Senga (2006)].

Graduated Powers – Art. VII, sec. 18 grants the President, as Commander-in-Chief, a

“sequence” of “graduated power[s].” From the most to the least benign, these are: the calling
out power, the power to suspend the privilege of the writ of habeas corpus, and the power to
declare martial law. In the exercise of the latter two powers, the Constitution requires the
concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety
requires the exercise of such power. However, as we observed in Integrated Bar of the
Philippines v. Zamora, “these conditions are not required in the exercise of the calling out
power. The only criterion is that ‘whenever it becomes necessary,’ the President may call the

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armed forces ‘to prevent or suppress lawless violence, invasion or rebellion.’ [Sanlakas v.
Executive Secretary (2004)].

Call out the AFP to prevent lawless violence

This is merely a police measure meant to quell disorder. As such, the Constitution does
not regulate its exercise radically.

State of Rebellion. While the Court may examine whether the power was exercised
within constitutional limits or in a manner constituting grave abuse of discretion, none of the
petitioners here have, by way of proof, supported their assertion that the President acted
without factual basis. The President, in declaring a state of rebellion and in calling out the armed
forces, was merely exercising a wedding of her Chief Executive and Commander-in-Chief
powers. These are purely executive powers, vested on the President by Sections 1 and 18,
Article VII, as opposed to the delegated legislative powers contemplated by Section 23 (2),
Article VI. (Sanlakas v. Executive Secretary [2004])

Exercise of Emergency Powers

Background: Presidential Proclamation 1017 (Declaring a State of National

Emergency) is different from the law in Sanlakas as this proclamation was woven out of the
“calling out” and “take care” powers of the President joined with the “temporary takeover”
provision under Art. XII, section 17. PP1017 purports to grant the President, without authority
or delegation from Congress, to take over or direct the operation of any privately-owned public
utility or business affected with public interest.

While the President could validly declare the existence of a state of national emergency
even in the absence of a Congressional enactment, the exercise of the emergency powers,
such as the taking over of privately-owned public utility or business affected with public interest,
requires a delegation from Congress which is the repository of emergency powers. (David v.
Arroyo [2006])

Suspend the privilege of the writ of habeas corpus

"Writ of habeas corpus". Is an order from the court commanding a detaining officer to
inform the court (1) if he has the person in custody; and (2) his basis in detaining that person.

"Privilege of the writ". Is that portion of the writ requiring the detaining officer to show
cause why he should not be tested. Note that it is the privilege that is suspended, not the writ
itself.

The requisites for the suspension are:

1. There must be an invasion or rebellion, and

2. The public safety requires the suspension.

Duration: Not to exceed 60 days unless extended by Congress.

Effects of the suspension of the privilege:

1. The suspension of the privilege of the writ applies only to persons "judicially charged"
for rebellion or offenses inherent in or directly connected with invasion (art. VII, sec.
18[5]).
a. Such persons suspected of the above crimes can be arrested and detained
without a warrant of arrest.
b. The suspension of the privilege does not make the arrest without warrant legal.
But the military is, in effect, enabled to make the arrest anyway since, with the
suspension of the privilege, there is no remedy available against such unlawful
arrest (arbitrary detention).

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c. The arrest without warrant is justified by the emergency situation and the
difficulty in applying for a warrant considering the time and the number of
persons to be arrested.
d. The crime for which he is arrested must be one related to rebellion or invasion.
As to others, the suspension of the privilege does not apply.

2. During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within 3 days, or otherwise he shall be released. (art. VII,
sec. 18[6])
a. The effect therefore is only to extend the periods during which he can be
detained without a warrant. When the privilege is suspended, the period is
extended to 72 hours.
b. What happens if he is not judicially charged nor released after 72 hours? The
public officer becomes liable under RPC Art. 125 for "delay in the delivery of
detained persons."

3. The right to bail shall not be impaired even when the privilege of the writ of habeas
corpus is suspended. (art. III, sec. 13)

Proclaim Martial Law

The Requisites in proclaiming Martial Law are:

1. There must be an invasion or rebellion, and
2. Public safety requires the proclamation of martial law all over the Philippines or any
part thereof.

The following cannot be done [Art. VII, Sec. 18]:

1. Suspend the operation of the Constitution.

2. Supplant the functioning of the civil courts and the legislative assemblies.
3. Confer jurisdiction upon military courts and agencies over civilians, where civil courts
are able to function.
"Open Court" doctrine. —Civilians cannot be tried by military courts if the civil courts
are open and functioning. If the civil courts are not functioning, then civilians can be
tried by the military courts. Martial law usually contemplates a case where the courts
are already closed and the civil institutions have already crumbled, i.e. a "theater of
war." If the courts are still open, the President can just suspend the privilege and
achieve the same effect.
4. Automatically suspend the privilege of the writ of habeas corpus. The President must
suspend the privilege expressly.

The Role of Congress (See art. VII, sec. 18, par. 1,2)

1. Congress may revoke the proclamation of martial law or suspension of the privilege of
the writ of habeas corpus before the lapse of 60 days from the date of suspension or
proclamation.
2. Upon such proclamation or suspension, Congress shall convene at once. If it is not in
session, it shall convene in accordance with its rules without need of a call within 24
hours following the proclamation or suspension.
3. Within 48 hours from the proclamation or the suspension, the President shall submit a
report, in person or in writing, to the Congress (meeting in joint session of the action he
has taken).
4. The Congress shall then vote jointly, by an absolute majority. It has two options:
a. To revoke such proclamation or suspension.
When it so revoked, the President cannot set aside (or veto) the revocation
as he normally would do in the case of bills.
b. To extend it beyond the 60-day period of its validity.

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Congress can only so extend the proclamation or suspension upon the initiative of the
President. The period need not be 60 days; it could be more, as Congress would determine,
based on the persistence of the emergency.

If Congress fails to act before the measure expires, it can no longer extend it until the
President again re-declares the measure. Congress cannot "validate" the proclamation or
suspension, because it is already valid. (see Carpio, dissenting, in Fortun v. Macapagal-Arroyo,
infra). If Congress extends the measure, but before the period of extension lapses the
requirements for the proclamation or suspension no longer exist, Congress can lift the
extension, since the power to confer implies the power to take back.

The Role of the Supreme Court(See Art. VII, Sec. 18, par. 3)

1. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of:
a. the proclamation of martial law or the suspension of the privilege of the writ, or
b. the extension thereof. It must promulgate its decision thereon within 30 days
from its filing.
c. Calling-out power is purely discretionary on the President; the Constitution
does not explicitly provide for a judicial review of its factual basis.[IBP v.
Zamora (2001)]

2. The jurisdiction of the SC may be invoked in a proper case.

Although the Constitution reserves to the Supreme Court the power to review the
sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit
that the Court must allow Congress to exercise its own review powers, which is automatic rather
than initiated. Only when Congress defaults in its express duty to defend the Constitution
through such review should the Supreme Court step in as its final rampart. The constitutional
validity of the President’s proclamation of martial law or suspension of the writ of habeas corpus
is first a political question in the hands of Congress before it becomes a justiciable one in the
hands of the Court.
If the Congress procrastinates or altogether fails to fulfill its duty respecting the
proclamation or suspension within the short time expected of it, then the Court can step in, hear
the petitions challenging the President’s action, and ascertain if it has a factual basis. [Fortun
v. Macapagal-Arroyo (2012)]

3. Petition for habeas corpus

a. When a person is arrested without a warrant for complicity in the rebellion or
invasion, he or someone else in his behalf has the standing to question the
validity of the proclamation or suspension.
b. Before the SC can decide on the legality of his detention, it must first pass upon
the validity of the proclamation or suspension.

4. Limit on Calling out Power. —Test of Arbitrariness: The question is not whether the
President or Congress acted correctly, but whether he acted arbitrarily in that the action
had no basis in fact. [IBP v. Zamora, (2000)]. Amounts to a determination of whether
or not there was grave abuse of discretion amounting to lack or excess of jurisdiction.

There are 4 ways, then, for the proclamation or suspension to be lifted: (P-C-S-O)

1. Lifting by the President himself

2. Revocation by Congress
3. Nullification by the Supreme Court
4. Operation of law after 60 days

RA 7055 (1991) "An Act Strengthening Civilian Supremacy over the Military by
Returning to the Civil Courts the Jurisdiction over Certain Offenses involving Members of the
Armed Forces of the Philippines, other Persons Subject to Military Law, and the Members of
the Philippine National Police, Repealing for the Purpose Certain Presidential Decrees"

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RA 7055 effectively placed upon the civil courts the jurisdiction over certain offenses
involving members of the AFP and other members subject to military law. RA 7055 provides
that when these individuals commit crimes or offenses penalized under the RPC, other special
penal laws, or local government ordinances, regardless of whether civilians are co-accused,
victims, or offended parties which may be natural or juridical persons, they shall be tried by the
proper civil court, except when the offense, as determined before arraignment by the civil court,
is service-connected in which case it shall be tried by court-martial.

The assertion of military authority over civilians cannot rest on the President's power
as Commander in Chief or on any theory of martial law. As long as civil courts remain open and
are regularly functioning, military tribunals cannot try and exercise jurisdiction over civilians for
offenses committed by them and which are properly cognizable by civil courts. To hold
otherwise is a violation of the right to due process. [Olaguer v. Military Commission No. 34
(1987)]

PARDONING POWER

Nature of Pardoning Power. Power to reprieve, commute, pardon, remit fines and
forfeitures after final judgment [Art. VII, Sec. 19(1)]

Forms of executive clemencies

1. Reprieves - a temporary relief from or postponement of execution of criminal penalty

or sentence or a stay of execution. (BLACK’S LAW DICTIONARY). It is the withholding
of a sentence for an interval of time, a postponement of execution, a temporary
suspension of execution. [People vs. Vera (1937)]
2. Commutations - Reduction of sentence. [Black’s Law Dictionary]. It is a remission of a
part of the punishment; a substitution of a less penalty for the one originally imposed.
(Vera, supra)
3. Amnesty - a sovereign act of oblivion for past acts, granted by government generally
to a class of persons who have been guilty usually of political offenses and who are
subject to trial but have not yet been convicted, and often conditioned upon their return
to obedience and duty within a prescribed time. (BLACK’S; Brown v. Walker, 161 US
602).Requires concurrence of majority of all members of Congress (art. VII, sec. 19)
4. Pardons - Permanent cancellation of sentence. [BLACK’S] It is an act of grace
proceeding from the power entrusted with the execution of the laws, which exempts the
individual on whom it is bestowed, from the punishment the law inflicts for the crime he
has committed. It is a remission of guilt, a forgiveness of the offense. [Vera, supra]

Plenary or partial. —(1) Plenary - extinguishes all the penalties imposed upon the
offender, including accessory disabilities. (2) Partial – does not extinguish all penalties imposed

Absolute or conditional. —(1) Conditional - the offender has the right to reject the same
since he may feel that the condition imposed is more onerous than the penalty sought to be
remitted. (2) Absolute pardon - pardonee has no option at all and must accept it whether he
likes it or not. In this sense, an absolute pardon is similar to commutation, w/c is also not
subject to acceptance by the offender.

Limitations on PARDON.—(1) Cannot be granted on impeachment cases.(art. VII, sec.

19).(2) Cannot be granted in cases of violation of election laws without the favorable
recommendation of the COMELEC. (art. IX-C, sec. 5).(3) Can be granted only after conviction
by final judgment (People v. Salle, 250 SCRA 581)(4) Cannot absolve the convict of civil
liability.(5) Cannot be granted to cases of legislative contempt or civil contempt.(6) Cannot
restore public offices forfeited, even if pardon restores the eligibility for said offices. [Monsanto
v. Factoran (1989)]

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Pardon Amnesty
Infractions of peace of the state Addressed to Political Offenses
Granted to individuals To classes of persons
Exercised solely by the executive Requires concurrence of Congress
Private act which must be pleaded and Public act which the courts could take
proved judicial notice
Looks forward and relieves the pardonee Looks backward and puts into oblivion the
of the consequences of the offense offense itself.
Extended after final judgment May be extended at any stage

Remit fines and forfeitures, after conviction by final judgment

Exceptions:

1. In cases of impeachment, and

2. As otherwise provided in this Constitution

For election offenses- No pardon, amnesty, parole or suspension of sentence for

violation of election laws, rules, and regulations shall be granted by the President without the
favorable recommendation by the Commission on Elections. [Art. IX, sec. 5]

Probation - disposition where a defendant after conviction and sentence is released

subject to (1) conditions imposed by the court and (2) supervision of a probation officer.(PD
No. 968, sec. 3[a])

Parole- suspension of the sentence of a convict granted by a Parole Board after serving
the minimum term of the indeterminate sentence penalty, without granting a pardon, prescribing
the terms upon which the sentence shall be suspended. (REYES)

Application of Pardoning Powers to Admin. Cases

1. If the President can grant reprieves, commutations and =46pardons, and remit fines
and forfeitures in criminal cases, with much more reason can she grant executive
clemency in administrative cases, which are clearly less serious than criminal offenses.
2. However, the power of the President to grant executive clemency in administrative
cases refers only to administrative cases in the Executive branch and not in the Judicial
or Legislative branches of the govt. [Llamas v. Executive Secretary (1991)]

Removal of administrative penalties

Removal of Administrative Penalties or Disabilities – In meritorious cases and upon

recommendation of the (Civil Service) Commission, the President may commute or remove
administrative penalties or disabilities imposed upon officers or employees in disciplinary cases,
subject to such terms and conditions as he may impose in the interest of the service. [Sec. 53,
Chapter 7, Subtitle A, Title I, Book V, Administrative Code of 1987 ]

Who may avail of amnesty?

Amnesty Proclamation No. 76 applies even to Hukbalahaps already undergoing

sentence upon the date of its promulgation. The majority of the Court believes that by its context
and pervading spirit the proclamation extends to all members of the Hukbalahap. [Tolentino v.
Catoy (1948)]

The SC agreed with the Sandiganbayan that in fact the petitioners were expressly
disqualified from amnesty. The acts for which they were convicted were ordinary crimes without
any political complexion and consisting only of diversion of public funds to private profit. The
amnesty proclamation covered only acts in the furtherance of resistance to duly constituted
authorities of the Republic and applies only to members of the MNLF, or other antigovernment
groups. [Macagaan v. People (1987)]

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DIPLOMATIC POWER

Scope of Diplomatic Power-The President, being the head of state, is regarded as the
sole organ and authority in external relations and is the country’s sole representative with
foreign nations. As the chief architect of foreign policy, the President acts as the country’s
mouthpiece with respect to international affairs.

The President is vested with the authority:

1. to deal with foreign states and governments;

2. extend or withhold recognition;
3. maintain diplomatic relations;
4. enter into treaties; and
5. transact the business of foreign relations. [Pimentel v. Executive Secretary (2005)]

Treaty-making power

No treaty or international agreement shall be valid and effective unless concurred in by

at least two-thirds of all the members of the Senate. [Art. VII, sec. 21]

Treaty - as defined by the Vienna Convention on the Law of Treaties, “an international
instrument concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments, and whatever
its particular designation.” [Bayan v. Executive Secretary (2000)]

Other terms for a treaty: act, protocol, agreement, compromis d’ arbitrage, concordat,
convention, declaration, exchange of notes, pact, statute, charter and modus vivendi.

It is the President who RATIFIES a treaty (not the Senate), the Senate merely
CONCURES. [Bayan v. Executive Secretary, supra]

The President cannot be compelled to submit a treaty to the Senate for concurrence;
she has the sole power to submit it to the Senate and/or to ratify it. [Bayan Muna v. Romulo
(2011)]

Executive Agreements

1. Entered into by the President

2. Need no concurrence
3. Distinguished from treaties- International agreements involving political issues or
changes in national policy and those involving international agreements of permanent
character usually take the form of TREATIES. But the international agreements
involving adjustments in detail carrying out well-established national policies and
traditions and those involving a more or less temporary character usually take the form
of EXECUTIVE AGREEMENTS. [Commissioner of Customs vs. Eastern Sea Trading
(1961)]
4. Executive agreements may be entered into with other states and are effective even
without the concurrence of the Senate. From the point of view of international law, there
is no difference between treaties and executive agreements in their binding effect upon
states concerned as long as the negotiating functionaries have remained within their
powers. The distinction between an executive agreement and a treaty is purely a
constitutional one and has no international legal significance. [USAFFE Veterans Assn.
v. Treasurer (1959)]

Two Classes of Executive Agreements.

1. Agreements made purely as executive acts affecting external relations and

independent of or without legislative authorization, which may be termed as presidential
agreements; and

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2. Agreements entered into in pursuance of acts of Congress, or Congressional-

Executive Agreements.

Although the President may, under the American constitutional system enter into
executive agreements without previous legislative authority, he may not, by executive
agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. He
may not defeat legislative enactments that have acquired the status of law by indirectly
repealing the same through an executive agreement providing for the performance of the
very act prohibited by said laws. [Gonzales v Hechanova (1963)]

Once the Senate performs the power to concur with treaties or exercise its prerogative
within the boundaries prescribed by the Constitution, the concurrence cannot be viewed as an
abuse of power, much less a grave abuse of discretion. [Bayan v. Executive Secretary, supra,
on the constitutionality of the Visiting Forces Agreement]

Deportation of undesirable aliens

The President may deport only according to grounds enumerated by law, otherwise it
would be unreasonable and undemocratic. [Qua Chee Gan v. Deportation Board (1963)]

Two ways of deporting an undesirable alien. (1) by order of the President after due
investigation, pursuant to sec. 69 of the Revised Administrative Code; (2) by the Commissioner
of Immigration under section 37 of the immigration Law [Qua Chee Gan v. Deportation Board,
supra]
Scope of the power:

1. The Deportation Board can entertain deportation based on grounds not specified in
sec. 37 of the Immigration Law. The Board has jurisdiction to investigate the alien even
if he had not been convicted yet.
2. The President’s power to deport aliens and to investigate them subject to deportation
are provided in the Revised Administrative Code.
3. The State has inherent power to deport undesirable aliens. This power is exercised by
the President.
4. There is no legal or constitutional provision defining the power to deport aliens because
the intention of the law is to grant the Chief Executive the full discretion to determine
whether an alien’s residence in the country is so undesirable as to affect the security,
welfare or interest of the state.
5. The Chief Executive is the sole and exclusive judge of the existence of facts which
would warrant the deportation of aliens. [Go Tek v. Deportation Board (1977)]

POWERS RELATIVE TO APPROPRIATION MEASURES

Contracting and guaranteeing foreign loans

Requisites for contracting and guaranteeing foreign loans:

1. With the concurrence of the monetary board [Art. VII, Sec. 20]
2. Subject to limitations as may be provided by law [Art. XII, Sec. 2]
3. Information on foreign loans obtained or guaranteed shall be made available to the
public [Art. XII, Sec. 2]

Republic Act 4860

An Act Authorizing The President Of The Philippines To Obtain Such Foreign Loans
And Credits, Or To Incur Such Foreign Indebtedness, As May Be Necessary To Finance
Approved Economic Development Purposes Or Projects, And To Guarantee, In Behalf Of The
Republic Of The Philippines, Foreign Loans Obtained Or Bonds Issued By Corporations Owned
Or Controlled By The Government Of The Philippines For Economic Development Purposes
Including Those Incurred For Purposes Of Re-Lending To The Private Sector, Appropriating
The Necessary Funds Therefore, And For Other Purposes (Approved, September 8, 1966.)

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Role of Congress: The President does not need prior approval by the Congress (1)
Because the Constitution places the power to check the President’s power on the Monetary
Board; (2) BUT Congress may provide guidelines and have them enforced through the
Monetary Board.

Prepare and Submit the Budget

The President shall submit to Congress within thirty days from the opening of every
regular session, as the basis of the general appropriations bill, a budget of expenditures and
sources of financing, including receipts from existing and proposed revenue measures. [Art.
VII, Sec. 22]

The budget is the plan indicating:

1. expenditures of the government,

2. sources of financing, and
3. receipts from revenue-raising measures.

The budget is the upper limit of the appropriations bill to be passed by Congress.
Through the budget, therefore, the President reveals the priorities of the government.

Fixing of tariff rates [Sec 28, Art VI]

The Congress may, by law, authorize the President to fix—(1) within specified limits,
and (2) subject to such limitations and restrictions as it may impose: (a) tariff rates, (b) import
and export quotas, (c) tonnage and wharfage dues; (d) other duties or imposts within the
framework of the national development program of the Government.

Rationale for delegation: highly technical nature of international commerce, and the
need to constantly and with relative ease adapt the rates to prevailing commercial standards.

DELEGATED POWERS

Principle: The President, under martial rule or in a revolutionary government, may

exercise delegated legislative powers. (See CONST., art. VI, sec. 23[2]) Congress may
delegate legislative powers to the president in times of war or in other national emergency.
(BERNAS)

Emergency powers

In times of war or other national emergency, the Congress, may, by law, authorize the
President, for a limited period, and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
[Art. VI, Sec. 23]

Different from the Commander-in-Chief clause:

1. When the President acts under the Commander-in-Chief clause, he acts under a
constitutional grant of military power, which may include the law-making power.
2. When the President acts under the emergency power, he acts under a Congressional
delegation of lawmaking power.

Meaning of “power necessary and proper” - Power to issue rules and regulations. This
power is:

1. for a limited period, and

2. subject to such restrictions as Congress may provide.

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When Emergency Powers cease

1. According to the text of the Constitution - The power ceases:

a. upon being withdrawn by resolution of the Congress; or
b. if Congress fails to adopt such resolution, upon the next (voluntary)
adjournment of Congress.

2. According to Cases
a. The fact that Congress is able to meet in session uninterruptedly and adjourn
of its own will proves that the emergency no longer exists to justify the
delegation. (See Araneta v Dinglasan (1949), on Congress’ grant of
emergency powers under C.A. 671; Court held that C.A. 671, being temporary,
need not be expressly repealed by a law)
b. This rule or the termination of the grant of emergency powers is based on
decided cases, which in turn became art. VII, sec. 15 of the 1973 Constitution.
c. The specific power to continue in force laws and appropriations which would
lapse or otherwise become inoperative is a limitation on the general power to
exercise such other powers as the executive may deem necessary to enable
the government to fulfill its responsibilities and to maintain and enforce its
authority. [Rodriguez v Gella (1953)]

Inconsistency between the Constitution and the cases: (BARLONGAY)

1. The Constitution (See art. VI, sec. 23[2]) states that the emergency powers shall cease
upon the next adjournment of Congress unless sooner withdrawn by resolution of
Congress
2. Cases tell us that the emergency powers shall cease upon resumption of session.
3. Reconciling the two: it would not be enough for Congress to just resume session in
order that the emergency powers shall cease. It has to pass a resolution withdrawing
such emergency powers, otherwise such powers shall cease upon the next
adjournment of Congress.

VETO POWER

General rule: all bills must be approved by the President before they become law

Exceptions:

1. The veto of the President is overridden by 2/3 vote of all the Members of the House
where it originated;
2. The bill lapsed into law because the inaction of the President; and
3. The bill passed is the special law to elect the President and Vice-President.

This gives the President an actual hand in legislation. However, his course of action is
only to approve it or veto it as a whole.(see Legislative Power of Congress)

It is true that the Constitution provides a mechanism for overriding a veto [Art. VI, Sec.
27(1)]). Said remedy, however, is available only when the presidential veto is based on policy
or political considerations but not when the veto is claimed to be ultra vires. In the latter case,
it becomes the duty of the Court to draw the dividing line where the exercise of executive power
ends and the bounds of legislative jurisdiction begin. [PHILCONSA v Enriquez (1994)]

EXECUTIVE PRIVILEGE
See discussion under Presidential Privilege.

RESIDUAL POWERS

General doctrine: The President has unstated residual powers, which are implied from
the grant of executive power necessary for her to comply with her Constitutional duties, such

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as to safeguard and protect the general welfare. It includes powers unrelated to the execution
of any provision of law. [See Marcos v. Manglapus (1988)]

In Marcos v. Manglapus, supra, the Court held that then President Corazon Aquino had
the power to prevent the Marcoses from returning to the Philippines on account of the volatile
national security situation. This was limited only by two standards: (1) there must be a factual
basis for the impairment of the Marcoses’ right to return (as distinguished from their right to
travel, which is a constitutional right); and (2) the impairment must not be arbitrary. The decision
was pro hac vice.

RULES ON SUCCESSION
PRESIDENT

Death or permanent Vice-President-elect shall

disability of the President- become President
elect
President-elect fails to Vice-President-elect shall
qualify act as President until the
President-elect shall have
Vacancy qualified.
at the President shall not have Vice-President-elect shall
Beginning been chosen act as President until a
of the President shall have been
term chosen and qualified.
No President and Vice- Senate President or, incase In the event of inability of
President of his inability, Speaker of the the SP and Speaker,
chosen nor shall have House of Representatives, Congress shall, by law,
qualified, or shall act as President until a provide for the manner in
both shall have died or President or a Vice-President which one who is to act as
become shall have been chosen and President shall be
permanently disabled qualified. selected until a President
or Vice-President shall
have qualified.
Death, permanent Vice-President shall become
disability, removal from President
Vacancy office, or resignation of the
during President
the term Death, permanent Senate President or, in case Congress, by law, shall
disability, removal from of his inability, the Speaker provide for
office, or resignation of of the House of the manner in which one
President and Vice- Representatives, shall act as is to act
President President until a President as President in the event
or Vice President shall be of inability
elected and qualified. of the SP and Speaker.
When President transmits Such powers and duties
to the Senate President shall be discharged by the
and the Speaker of the Vice-President as Acting
House his written President, until the President
declaration that he is transmits to them a written
unable to discharge the declaration to the contrary
powers and duties of his
office
When a Majority of all the The Vice-President shall
members of the Cabinet immediately assume the
transmit to the Senate powers and duties of the
President and the Speaker office as Acting President
their written declaration until the President transmits
that the President is unable to the Senate President
to discharge the powers and Speaker his written
and duties of his office declaration that no inability
exists.
Temporary If after the President Congress determines by a Congress shall convene,
disability transmits his declaration of 2/3 vote of both houses, if not in session, within 48
his ability to discharge his voting separately, that the hours. And if within 10
office, and a majority of President is unable to days from receipt of the

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members of the Cabinet discharge the powers and last written declaration or,
transmit within 5 days to duties of his office, the Vice- if not in session, within 12
the Senate President and President shall act as days after it is required to
Speaker their written President; otherwise, the assemble.
declaration that the President shall continue
President is unable to exercising the powers and
discharge the powers and duties of his office
duties of his office,
Congress shall decide the
issue.

CONSTITUTIONAL DUTY OF CONGRESS IN CASE OF VACANCY IN THE OFFICES OF

PRESIDENT AND VICE-PRESIDENT

At 10 o’clock in the morning of the 3rd day after the vacancy occurs, Congress shall
convene without need of a call, and within 7 days enact a law calling for a special election to
elect a President and a Vice-President to be held not earlier than 45 nor more than 60 days
from the time of such call. The bill shall be deemed certified and shall become law upon its
approval on third reading by Congress. The Convening of Congress cannot be suspended nor
the special election postponed. No special election shall be called if the vacancy occurs within
18 months before the date of the next presidential election.
VICE-PRESIDENT

The President shall nominate a Vice-President from among the members of the Senate
and the House of Representatives who shall assume office upon confirmation by a majority
vote of all the members of both houses of Congress voting separately. [Art. VII, Sec. 9]

SELF-ASSESSMENT QUESTIONS

1. In whom is executive power vested?

____________________________________________________________________
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2. What is the significance of being “Head of the State?” What is the significance of being
“Chief Executive?”
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3. What is function of the Vice-President?

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4. How are the President and Vice-President elected?

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____________________________________________________________________
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5. What will be the initial salary of the President and of the Vice-President under the
Philippine Constitution?
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____________________________________________________________________
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6. What different vacancy situations are contemplated in Section 7 & 8, Article VII of the
Constitution? When the Senate President or Speaker becomes Acting President, does
he lose the Senate Presidency or Speakership?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
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____________________________________________________________________

7. What must Congress do in case of a vacancy occurs in the offices of the President and
Vice-President?
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8. Does the President enjoy immunity from suit? Why?

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9. Does an Acting President possess powers to appoint?

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10. What is the nature of the appointing power? Does the power to appoint include the
power to decide who among various choices is the best qualified?
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11. What is the scope of Presidents appointing power?

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12. What are ‘ad interim appointments?’

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13. What is the power of control? Compare the power of control with the disciplinary power
of the President?
____________________________________________________________________
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14. What is the power of supervision?

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15. What is the significance of the commander-in chiefship of the President?

____________________________________________________________________
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16. What specific military powers are given to the president by the Constitution? Under
what condition may the President call out the armed forces to prevent or suppress
lawless violence?
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

17. Make a distinction between the writ of habeas corpus and the privilege of the writ of
habeas corpus? What is suspended by the President, the writ or the privilege?
____________________________________________________________________
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____________________________________________________________________
____________________________________________________________________
____________________________________________________________________

18. What is martial law? Is the scope martial law powers a fixed concept?
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19. What are the differences between pardon and amnesty?

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20. What are some of the foreign relations powers of the President?
____________________________________________________________________
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LESSON 4

JUDICIAL DEPARTMENT

OBJECTIVES

At the end of this lesson, the student must be able to:

1. Describe the judicial department particularly on the safeguards of judicial

independence, judicial restraints and appointments to the judiciary; and
2. Create a diagram presenting the structure of the supreme courts and identify judicial
privileges.

READINGS

“Judicial Department”
From: Political Law (2017) by UP College of Law - BAR Operations Commission, pp. 63-83
https://www.scribd.com/document/388699452/UP-POLITICAL-LAW-REVIEWER-
2017-pdf

CONTENT

CONCEPTS: JUDICIAL POWER [SECTION 1, ARTICLE VIII]

Judicial power includes the duty of the courts of justice to:

1. settle actual controversies involving rights which are legally demandable and
enforceable, and
2. to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.

The second clause effectively limits the doctrine of “political question.”

Vested in: Supreme Court and in such lower courts as may be established by law.

JUDICIAL REVIEW

Judicial Power Judicial Review

Where vested
Supreme Court Supreme Court
Lower courts Lower courts
Definition
Duty to settle actual controversies Power of the courts to test the validity
involving rights which are legally of executive and legislative acts in
demandable and enforceable, and to light of their conformity with the
determine whether or not there has Constitution [Angara v. Electoral
been a grave abuse of discretion Commission (1936)]
amounting to lack or excess of
jurisdiction on the part of any branch
or instrumentality of the Government
(art. VIII, sec. 1, par. 2)
Requisites for exercise
Jurisdiction – power to decide and 1. Actual case or controversy
hear a case and execute a decision 2. Locus Standi
thereof 3. Question raised at the earliest
opportunity
4. Lis mota of the case

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Judicial Supremacy- When the judiciary mediates to allocate constitutional boundaries,

it does not assert any superiority over the other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned
to it by the Constitution to determine conflicting claims of authority under the Constitution and
to establish for the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy"
which properly is the power of judicial review under the Constitution. [Angara v. Electoral
Commission (1936)]

FUNCTIONS OF JUDICIAL REVIEW

1. Checking
2. Legitimating
3. Symbolic

ESSENTIAL REQUISITES FOR JUDICIAL REVIEW

Actual case or controversy. This means that there must be a genuine conflict of legal
rights and interests which can be resolved through judicial determination. [John Hay v. Lim,
(2003)]

This precludes the courts from entertaining the following:

1. Request for an advisory opinion [Guingona vs. CA, (1998)]

2. Cases that are or have become moot and academic ,i.e. cease to present a justiciable
controversy due to supervening events [David v. Macapagal-Arroyo (2006)].

Locus standi. Standing NOT the same as “real party in interest”. A proper party is one who
has sustained or is in imminent danger of sustaining a direct injury as a result of the act
complained of [IBP v. Zamora (2000)]. The alleged injury must also be capable of being
redressed by a favorable judgment (Tolentino v. COMELEC [2004]).

1. Requires partial consideration of the merits of the case in view of its constitutional and
public policy underpinnings [Kilosbayan v. Morato, (1995)]

2. May be brushed aside by the court as a mere procedural technicality in view of

transcendental importance of the issues involved [Kilosbayan v. Guingona (1994)];
[Tatad v. DOE (1995)].

3. Who are proper parties?

a. Taxpayers, when public funds are involved [Tolentino v. Comelec (2004)]
b. Government of the Philippines, when questioning the validity of its own laws
[People v. Vera (1937)]
c. Legislators, when the powers of Congress are being impaired [PHILCONSA v.
Enriquez, (1994)].
d. Citizens, when the enforcement of a public right is involved [Tañada v. Tuvera,
(1985)].

Special Rules on Standing (Requisites)

Taxpayer (1) Appropriation; (2) disbursement

Citizen (1) Direct injury; (2) public right, OR art. VII, sec. 18 (on the sufficiency
of the factual basis for martial law or suspension of the privilege of the
write of Habeas Corpus)
Voter Right of suffrage is involved
Legislator (1) Authorized; (2) affects legislative prerogatives (a.k.a. derivative suit)
Third- (1) Litigants must have injury-in-fact; (2) Litigants must have close
Party relation to the third-party; and (3) There is an existing hindrance to the
Standing third party’s ability to protect its own interest. [White Light v. City of
Manila (2009)]

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1. Constitutional question must be raised at the earliest possible opportunity;

The exceptions are:

a. in criminal cases, at the discretion of the court;
b. in civil cases, if necessary for the determination of the case itself; and
c. when the jurisdiction of the court is involved

The reckoning point is the first competent court. The question must be raised
at the first court with judicial review powers. Hence, the failure to raise the constitutional
question before the NLRC is not fatal to the case. [See Serrano v. Gallant Maritime
Services (2009]

2. Lis Mota

Decision on the constitutional question must be determinative of the case itself.

The reason for this is the doctrine of separation of powers which requires that due
respect be given to the co-equal branches, and because of the grave consequences of a
declaration of unconstitutionality. [De la Llana v. Alba (1982)]

OPERATIVE FACT DOCTRINE

General Rule: The interpretation (or declaration) of unconstitutionality is retroactive in

that it applies from the law’s effectivity

Exception: OPERATIVE FACT DOCTRINE– Subsequent declaration of

unconstitutionality does not nullify all acts exercised in line with [the law].The past cannot
always be erased by a new judicial declaration. [Municipality of Malabang v. Benito (1969),
citing Chicot County]

Effect of a Declaration of Unconstitutionality

1. Orthodox view - An unconstitutional act is not a law; it confers no rights; it imposes no

duties; it affords no protection; it creates no office; it is inoperative, as if it had not been
passed at all.
2. Modern view - Certain legal effects of the statute prior to its declaration of
unconstitutionality may be recognized.

MOOT QUESTIONS

Ripeness of the controversy-The issue must be raised not too early that it is conjectural
or anticipatory, nor too late that it becomes moot.

Exception - Courts will still rule if

1. there is a grave violation of the Constitution;

2. the exceptional character of the situation and the paramount public interest is involved;

3. when constitutional issue raised requires formulation of controlling principles to guide

the bench, the bar, and the public;

Also, when the court feels called upon to exercise its symbolic function and provide
future guidance [Salonga v. Paño (1985)]

4. the case is capable of repetition yet evading review. [Alunan III v. Mirasol, (1997);
Sanlakas v. Executive Secretary, (2004)]

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POLITICAL QUESTION DOCTRINE

The term “political question” refers to: (1) matters to be exercised by the people in their
primary political capacity; or (2) those specifically delegated to some other department or
particular office of the government, with discretionary power to act. It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure. [Tañada v. Cuenco (1957)]

In recent years, the Court has set aside this doctrine and assumed jurisdiction
whenever it found constitutionally imposed limits on the exercise of powers conferred upon
the Legislative and Executive branches [BERNAS].

Political Question Justiciable Controversy

Alejandrino v. Quezon (1924): The Avelino v. Cuenco, (1949): election of
legislature’s exercise of disciplinary Senate President was done without the
power over its member is not to be required quorum
interfered with by the Court.
Vera v. Avelino, (1946): inherent right of Tañada v. Cuenco, (1957): The
the legislature to determine selection of the members of the Senate
who shall be admitted to its membership Electoral Tribunal is subject to
constitutional limitations.
Severino v. Governor General (1910): Cunanan v. Tan, Jr., (1962): The
Mandamus and injunction could not lie Commission on Appointments is a
to enforce or restrain a constitutional creation and does not
duty which is discretionary (calling a derive its power from Congress.
special local election).
Manalang v. Quitoriano,(1954): Lansang v. Garcia(1971): Suspension of
President’s appointing power is not to the privilege of the writ of habeas corpus
be interfered with by the Court. is not a political question.
Javellana v. Executive Secretary(1973):
WON the 1973 Constitution had been
ratified in accordance with the 1935
Constitution is justiciable.

HOWEVER, the people may be deemed

to have cast their favorable votes in the
belief that in doing so they did the part
required of them by Article XV, hence, it
may be said that in its political aspect,
which is
what counts most, after all, said Article
has been substantially complied with,
and, in effect, the
1973 Constitution has been
constitutionally ratified.

SAFEGUARDS OF JUDICIAL INDEPENDENCE

1. The SC is a constitutional body. It cannot be abolished nor may its membership or the
manner of its meetings be changed by mere legislation. [Art. VIII, Sec. 4]
2. The members of the judiciary are not subject to confirmation by the CA.
3. The members of the SC may not be removed except by impeachment. [Art. IX, Sec. 2]
4. The SC may not be deprived of its minimum original and appellate jurisdiction as
prescribed in Art. X, Sec. 5 of the Constitution. [Art. VIII, Sec. 2]
5. The appellate jurisdiction of the SC may not be increased by law without its advice and
concurrence. [Art. VI, Sec. 30; Fabian v. Desierto (1988)]
6. The SC has administrative supervision over all lower courts and their personnel. (art.
VIII, sec. 6.)
7. The SC has exclusive power to discipline judges of lower courts. [Art. VIII, Sec. 11]
The Ombudsman is duty bound to refer to the SC all cases against judges and court
personnel, so SC can determine first whether an administrative aspect is involved. The
Ombudsman cannot bind the Court that a case before it does or does not have
administrative implications. [Caoibes v. Ombudsman (2001)]

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8. The members of the SC and all lower courts have security of tenure, w/c cannot be
undermined by a law reorganizing the judiciary. [Id.]
9. They shall not be designated to any agency performing quasi-judicial or administrative
functions. [Art. VIII, Sec. 12]
Administrative functions are those that involve regulation of conduct of individuals or
promulgation of rules to carry out legislative policy. Judges should render assistance
to a provincial committee of justice (which is under DOJ supervision) only when it is
reasonably incidental to their duties. [In Re Manzano (1988)]
10. The salaries of judges may not be reduced during their continuance in office. [Art. VIII,
Sec. 10]
11. The judiciary shall enjoy fiscal autonomy. [Art. VIII, Sec. 3]
Fiscal autonomy means freedom from outside control. As the Court explained in
Bengzon v. Drilon: As envisioned in the Constitution, the fiscal autonomy enjoyed by
the Judiciary, the Civil Service Commission and the Commission on Audit, the
Commission on Elections, and the Office of the Ombudsman contemplates a guarantee
of full flexibility to allocate and utilize their resources with the wisdom and dispatch that
their needs require. It recognizes the power and authority to levy, assess and collect
fees, fix rates of compensation not exceeding the highest rates authorized by law for
compensation and pay plans of the government and allocate and disburse such sums
as may be provided by law or prescribed by them in the course of the discharge of their
functions. [In re: Clarifying and Strengthening the Organizational Structure and Set-up
of the Philippine Judicial Academy, A.M. No. 01-1-04-SC]
12. The SC alone may initiate rules of court. [Art. VIII, Sec. 5 (5)]
13. Only the SC may order the temporary detail of judges.[Art. VIII, Sec. 5(3)]
14. The SC can appoint all officials and employees of the judiciary.[Art. VIII, Sec. 5(6)]

JUDICIAL RESTRAINT

The judiciary will not interfere with its co-equal branches when:

1. There is no showing of grave abuse of discretion

a. PPA v. Court of Appeals: If there is no showing of grave abuse of discretion on
the part of a branch or instrumentality of the government, the court will decline
exercising its power of judicial review.
b. Chavez v. COMELEC: Judicial review shall involve only those resulting to
grave abuse of discretion by virtue of an agency’s quasi-judicial powers, and
not those arising from its administrative functions.
2. The issue is a political question. Even when all requisites for justiciability have been
met, judicial review will not be exercised when the issue involves a political question.
But see Francisco v. House of Representatives (2001). At the same time, the Court
has the duty to determine whether or not there has been grave abuse of discretion by
any instrumentality of government under its expanded judicial review powers. (This
allowed the SC to interfere in a traditionally purely political process, i.e. impeachment,
when questions on compliance with Constitutional processes were involved.)

Guidelines for determining whether a question is political or not: [Baker v. Carr (369 US 186),
as cited in Estrada v. Desierto (2001)]:

1. There is a textually demonstrable constitutional commitment of the issue to a political

department;
2. Lack of judicially discoverable and manageable standards for resolving it;
3. The impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion;
4. Impossibility of a court’s undertaking independent resolution without expressing lack
of the respect due coordinate branches of government;
5. An unusual need for unquestioning adherence to a political decision already made;
6. Potentiality of embarrassment from multifarious pronouncements by various
departments on one question

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APPOINTMENTS TO THE JUDICIARY

SYNTHESIS OF CONSTITUTIONAL AND STATUTORY QUALIFICATIONS

SC and Collegiate RTC Judge MTC/ MCTC
Courts Justice Judge
Citizenship
Natural-born Filipino Filipino citizen
Age
At least 40 years old At least 35 years old At least 30 years old
Experience
15 years or more as a Has been engaged for at least 5 years in the practice of
judge or a lower court or law* in the Philippines or has held public office in the
has been engaged in the Philippines requiring admission to the practice of law as
practice of law in the PHL an indispensable requisite
for the same
Period
Tenure
Hold office during good behavior until they reach the age of 70 or become
incapacitated to discharge their duties
Character
Person of proven competence, integrity, probity and independence

Practice of law” is not confined to litigation. It means any activity in and out of court,
which requires the application of law, legal procedure, knowledge, training and experience.
Cayetano v. Monsod (1991)]

CONSTITUTIONAL REQUIREMENTS (CANNOT BE REDUCED BY LAW)

Supreme Court Justice

1. Natural born citizens

2. At least 40 years of age
3. Enagaged in the practice of law or a judge of 15 years or more
4. Must be of proven competence, integrity, probity and independence.

Lower Collegiate Courts

1. Natural born citizens

2. Member of the Philippine Bar
3. Must be of proven competence, integrity, probity and independence
4. Such additional requirements provided by law.

Lower Courts

1. Filipino citizens (RULES OF THE JUDICIAL AND BAR COUNCIL, Nov. 2000, Rule II)
2. Member of the Philippine Bar
3. Must be of proven competence, integrity, probity and independence.
4. Such additional requirements provided by law.

In the case of judges of the lower courts, the Congress may prescribe other
qualifications. (art.VIII, sec. 7[3].

JUDICIAL AND BAR COUNCIL

Composition

Ex-officio members (art. VIII, sec. 8[1])

1. Chief Justice as ex-officio Chairman

2. Secretary of Justice
3. One representative of Congress

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Regular members (art. VIII, sec. 8[1])

4. Representative of the Integrated Bar

5. Professor of Law
6. Retired member of the SC
7. Representative of private sector

Secretary ex-officio (art. VIII, sec. 8[3]) – Clerk of Court of the SC, who shall keep a
record of its proceedings; not a member of the JBC.

Appointment, Tenure, Salary of JBC Members

Ex-officio members - None apply since the position in the Council is good only while
the person is the occupant of the office.

Only ONE representative from Congress-Former practices of giving ½ vote or (more

recently) 1 full vote each for the Chairmen of the House and Senate Committees on Justice
is invalid.

The framers intended the JBC to be composed of 7 members only. Intent is for each
co-equal branch of gov’t to have one rep. There is no dichotomy between Senate and HOR
when Congress interacts with other branches. But the SC not in a positionto say who should
sit. [Chavez v. JBC, (2012)]

UPDATE (But outside the cut-off date): Court denied the motion for reconsideration,
and lifted the suspension of the dispositive portion in the July 17, 2012 decision ordering the
JBC to reconstitute itself. [Chavez v. JBC, supra, April 16, 2013]

Regular members [Art. VIII, Sec. 8(2)] - The regular members shall be appointed by
the President with the consent of the Commission on Appointments. The term of the regular
members is 4 years.

But the term of those initially appointed shall be staggered in the following way so as
to create continuity in the council:

1. IBP representative - 4 years

2. Law professor - 3 years
3. Retired justice - 2 years
4. Private sector - 1 year

Primary function: Recommend appointees to the judiciary, May exercise such other
functions and duties as the SC may assign to it. [Art. VIII, Sec. 8(5)]

PROCEDURE OF APPOINTMENT

The JBC shall submit a list of three nominees for very

vacancy to the President. (art. VIII, sec. 9)

Any vacancy in the Supreme Court shall be filed

within ninety (90) days from the occurrence thereof.
(art. VIII, sec. 4[1])

For lower courts, the President shall issue the

appointment within ninety (90) days from the
submission by the JBC of such list. (art. VIII, sec. 9)

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The prohibition against midnight appointments does not apply to the judiciary. See De
Castro v. JBC, (2010), discussed on the previous page.

DISQUALIFICATION FROM OTHER POSITIONS OR OFFICES

The Members of the Supreme Court and of other courts established by law shall not
be designated to any agency performing quasi-judicial or administrative functions. [Art. VIII,
Sec. 12]

The SC and its members should not and cannot be required to exercise any power or
to perform any trust or to assume any duty not pertaining to or connected w/ the administering
of judicial functions. (Meralco v. Pasay Transportation Co., [1932])

A judge in the CFI shall not be detailed with the Department of Justice to perform
administrative functions as this contravenes the doctrine of separation of powers. [Garcia vs
Macaraig, (1972)]

THE SUPREME COURT

COMPOSITION OF THE SUPREME COURT

1. Chief Justice and 14 Associate Justices

2. May sit en banc or in divisions of three, five, or seven Members
3. Vacancy shall be filled within 90 days from the occurrence thereof

EN BANC AND DIVISION CASES

En banc–cases decided with the concurrence of a majority of the Members who

actually took part in the deliberations and voted.

Instances when the SC sits en banc: (c-dd-mm-po)

1. Those involving the Constitutionality, application, or operation of: (TOIL-PIPOO)

a. Treaty
b. Orders
c. International or executive agreement
d. Law
e. Presidential decrees
f. Instructions
g. Proclamations
h. Ordinances
i. Other regulations
2. Exercise of the power to Discipline judges of lower courts, or order their dismissal [Art.
VIII, Sec. 11]
Discipline of judges can be done by a division, BUT En Banc decides cases for
dismissal, disbarment, suspension for more than 1 year, or fine of more than P10,000.
[People v. Gacott (1995)]
3. Cases or matters heard by a Division where the required number of votes to decide or
resolve (the majority of those who took part in the deliberations on the issues in the
case and voted thereon, and in no case less than 3 members) is not met [Art. VIII, Sec.
4(3)]
4. Modifying or reversing a doctrine or principle of law laid down by the court in a decision
rendered en banc or in division [Art. VIII, Sec. 4(3)]
5. Actions instituted by citizen to test the validity of a proclamation of Martial law or
suspension of the privilege of the writ [Art. VIII, Sec. 18]
6. When sitting as Presidential Electoral Tribunal [Art. VIII, Sec. 4, par. 7]
7. All Other cases which under the Rules of Court are required to be heard by the SC en
banc. [Art. VIII, Sec. 4(2)]

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Requirement and Procedures in Divisions

1. Cases decided with the concurrence of a majority of the Members who actually took
part in the deliberations and voted
2. In no case without the concurrence of at least three of such Members
3. When required number is not obtained, the case shall be decided en banc.
a. Cases v. Matters. Only cases are referred to En Banc for decision when
required votes are not obtained.
b. Cases are of first instance; matters are those after the first instance, e.g. MRs
and post-decision motions.
c. Failure to resolve a motion because of a tie does not leave case undecided.
MR is merely lost. [See Fortrich v. Corona (1999)]

The SC En Banc is not an appellate court vis-à-vis its Divisions. The only constraint is
that any doctrine or principle of law laid down by the Court, either rendered en banc or in
division, may be overturned or reversed only by the Court sitting en banc. [Firestone Ceramics
v. CA, (2001)]

PROCEDURAL RULE MAKING

The Supreme Court shall have the following powers: 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
under-privileged. [Art. VIII, Sec. 5]

The 1987 Constitution took away the power of Congress to repeal, alter, or supplement
rules concerning pleading, practice and procedure. The power to promulgate rules of pleading,
practice and procedure is no longer shared by this Court with Congress, more so with the
Executive. [Echegaray v. Secretary of Justice, (1991)]

Limitations:

1. Shall provide a simplified and inexpensive procedure for speedy disposition of cases
2. Uniform for all courts in the same grade
3. Shall not diminish, increase or modify substantive rights

ADMINISTRATIVE SUPERVISION OVER LOWER COURTS

Administrative Powers of the Supreme Court

1. Assign temporarily judges of lower courts to other stations as public interest may
require; Shall not exceed 6 months without the consent of the judge concerned
2. Order a change of venue or place of trial to avoid a miscarriage of justice;
3. Appoint all officials and employees of the Judiciary in accordance with the Civil Service
Law;
4. Supervision over all courts and the personnel thereof;
5. Discipline judges of lower courts, or order their dismissal.

Grounds Removal from Office on Impeachment of Members of the SC [Art. XI, sec. 2]

1. Culpable violation of the Constitution

2. Treason
3. Bribery
4. Graft and corruption
5. Other high crimes
6. Betrayal of public trust

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ORIGINAL AND APPELLATE JURISDICTION

Original Jurisdiction [Art. VIII, sec. 5[1]]

1. Cases affecting ambassadors, other public ministers and consuls

2. Petition for certiorari
3. Petition for prohibition
4. Petition for mandamus
5. Petition for quo warranto
6. Petition for habeas corpus

Original Jurisdiction [Art. VIII, Sec. 5(2)] –on appeal or certiorari (as the Rules of Court
provide), SC may review, revise, reverse, modify, or affirm final judgments and orders of lower
courts in:

1. Cases involving the constitutionality or validity of any treaty, international or executive

agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation
2. Cases involving the legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto
3. Cases in which the jurisdiction of any lower court is in issue
4. Criminal cases where the penalty imposed is reclusion perpetua or higher.
5. Cases where only a question of law is involved.

JUDICIAL PRIVILEGE

SC Resolution dated February 14, 2012, “In Re: Production of Court Records and
Documents and the Attendance of Court officials and employees as witnesses under the
subpoenas of February 10, 2012 and the various letters for the Impeachment Prosecution Panel
dated January 19 and 25, 2012.”

Background: The Senate Impeachment Court (during the Impeachment Trial of Chief
Justice Corona), issued a supoena ad testificandum et duces tecum for certain documents
relating to the FASAP cases, the League of Cities cases, and Gutierrez v. House Committee
on Justice, as well as the attendance of certain court officials. The Supreme Court refused,
invoking judicial privilege.

Judicial Privilege

A form of deliberative process privilege; Court records which are pre-decisional and
deliberative in nature are thus protected and cannot be the subject of a subpoena

A document is predecisional if it precedes, in temporal sequence, the decision to which

it relates.

A material is deliberative on the other hand, if it reflects the give and-take of the
consultative process. The key question is whether disclosure of the information would
discourage candid discussion within the agency.

Judicial Privilege is an exception to the general rule of transparency as regards access

to court records.

Court deliberations are traditionally considered privileged communication.

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Summary of Rules

The following are privileged documents or communications, and are not subject to
disclosure:

1. Court actions such as the result of the raffle of cases and the actions taken by the Court
on each case included in the agenda of the Court’s session on acts done material to
pending cases, except where a party litigant requests information on the result of the
raffle of the case, pursuant to Rule 7, Section 3 of the Internal Rules of the Supreme
Court (IRSC);
2. Court deliberations or the deliberations of the Members in court sessions on cases and
matters pending before the Court;
3. Court records which are “pre-decisional” and “deliberative” in nature, in particular,
documents and other communications which are part of or related to the deliberative
process, i.e., notes, drafts, research papers, internal discussions, internal memoranda,
records of internal deliberations, and similar papers.

Additional Rules:

1. Confidential Information secured by justices, judges, court officials and employees in

the course of their official functions, mentioned in (2) and (3) above, are privileged even
after their term of office.
2. Records of cases that are still pending for decision are privileged materials that cannot
be disclosed, except only for pleadings, orders and resolutions that have been made
available by the court to the general public.
3. The principle of comity or inter-departmental courtesy demands that the highest
officials of each department be exempt from the compulsory processes of the other
departments.
4. These privileges belong to the Supreme Court as an institution, not to any justice or
judge in his or her individual capacity. Since the Court is higher than the individual
justices or judges, no sitting or retired justice or judge, not even the Chief Justice, may
claim exception without the consent of the Court.

SELF-ASSESSMENT QUESTIONS

1. What is judicial power? How does Constitution define judicial power?

____________________________________________________________________
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2. What is meant by the “abuse of discretion?”

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3. May Congress increase or decrease the composition of the Supreme Court? Why?
How many members constitute a division?
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4. What cases must be heard en banc? How many votes are required to decide a case
heard en banc?
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5. How many votes are needed to decide a case in division? Are decisions of a Division
of the Supreme Court appealable to the banc?
____________________________________________________________________
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____________________________________________________________________
6. When the required number cannot be obtained in a division of three, who decides the
case? Explain.
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7. How would you classify the powers of the Supreme Court? May congress diminish the
jurisdiction of the Supreme Court?
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8. What is the power of judicial review? Does this make the Court superior to Congress
and the President? What are the essential requisites for the exercise of the power of
judicial review?
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9. It is an established rule that courts have no jurisdiction to pass upon “political

questions.” What are “political questions?”
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10. What is “bar integration?” what are the purposes of an integrated Bar?
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11. What are the qualifications of a Member of the Supreme Court? What are the
qualifications of a Member of a lower collegiate court? What are the qualifications of
judges of non-collegiate lower courts?
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12. May Congress alter the qualifications of members of the Judiciary? Why?
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13. What is the function of the Judicial and Bar Council?

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14. What is the composition of the Judicial and Bar Council? How are the regular members
appointed? What is the rationale behind the creation of the Judicial and Bar Council?
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15. How are members of the Judiciary appointed?

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16. Must disciplinary cases be heard by the Supreme Court en banc?

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17. May justice or judges be removed by the President or by impeachment?

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18. May a judge, while still in the Bench, present himself as a congressional candidate?
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19. Will not the certification by the Chief justice that he has assigned the case to a justice
for writing the opinion expose such Justice to pressure?
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20. What does the rule on “decisions” and “petitions” require?

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LESSON 5

LOCAL GOVERNMENT

OBJECTIVES

At the end of this lesson, the student must be able to:

1. Depict the principles, organization, powers, and functions attributes of local

government units, including Regional (Autonomous/Administrative) officials and
employees; and
2. Attain understanding of the powers, duties, and functions of elected and appointive
officials, and the grounds for disciplinary action under R. A. 7160 and administrative
order no. 23, and other related laws.

READINGS

“Local Governments”
From: Political Law (2017) by UP College of Law - BAR Operations Commission, pp. 208-253
https://www.scribd.com/document/388699452/UP-POLITICAL-LAW-REVIEWER-
2017-pdf

CONTENT

Local Governments
(Article X, 1987 Philippine Constitution)

WHAT IS A LOCAL GOVERNMENT UNIT?

A local government unit is a political subdivision of the State which is constituted

by law and possessed of substantial control over its own affairs. In a unitary system of
government, it is an intra-sovereign subdivision of one sovereign nation, not intended to be
an imperium in imperio [empire within an empire)]. (Alvarez v. Guingona GR 118303, 1996)
When the Drafters of the 1987 Constitution enunciated the policy of ensuring the autonomy
of local governments, it was never their intention to create an imperium in imperio and install
an intra sovereign political subdivision independent of a single sovereign state. (Batangas
CATV v. Court of Appeals, GR No. 138810, 2004)

“Ours is still a unitary form of government, not a federal state. Being so, any
form of autonomy granted to local governments will necessarily be limited and confined
within the extent allowed by the central authority.” (Lina v. Pano, GR 129093, 08.30.2001)

“A Local Government Unit is a political subdivision of the State which is

constituted by law and possessed of substantial control over its own affairs. Remaining to
be an intra sovereign subdivision of one sovereign nation, but not intended, however, to
be an imperium in imperio, the local government unit is autonomous in the sense that it
is given more powers, authority, responsibilities and resources. Power which used to be
highly centralized in Manila, is thereby deconcentrated, enabling especially the peripheral
local government units to develop not only at their own pace and discretion but also with
their own resources and assets.” (Alvarez v. Guingona, GR 118303, 01.31.96)

An LGGU is created by law and all its powers and rights are sourced therefrom.
It has therefore no power to amend or act beyond the authority given and the limitations
imposed on it by law.” (Paranaque v. VM Realty Corp., GR 127820, 07.20.98)

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The Territorial and Political Subdivisions in Section 1:

The territorial and political subdivisions of the Republic of the Philippines are the:

1. Provinces
2. Cities
3. Municipalities
4. Barangays

There shall be autonomous regions in Muslim Mindanao and Cordilleras as

provided in the Constitution. (Section1)

Significance of Section 1. The constitutional significance of Section 1 is that

provinces, cities and municipalities and barangays have been fixed as the standard territorial
and political subdivisions of the Philippines. This manner of subdividing the Philippines
cannot go out of existence except by a constitutional amendment.

Municipal Corporations

Municipal Corporation. A body politic and corporate constituted by the

incorporation of the inhabitants for the purpose of local government.

Elements of a Municipal Corporation

1. Legal creation or incorporation- the law creating or authorizing the creation or

incorporation of a municipal corporation.
2. Corporate name- The name by which the corporation shall be known. The
Sangguniang Panlalawigan may, in consultation with the Philippine Historical
Institute, change the name of the component cities and municipalities, upon the
recommendation of the sanggunian concerned; provided that the same shall be
effective only upon the ratification in a plebiscite conducted for the purpose in the
political unit directly affected. (RA 7160, Section 13)
3. Inhabitants- The people residing in the territory of the corporation.
4. Territory- The land mass where the inhabitants reside, together with the internal
and external waters, and the air space above the land waters.

Dual Nature and Functions

Every local government unit created or organized (under the Local Government
Code) is a body politic and corporate endowed with powers to be exercised by it in conformity
with law. As such, it shall exercise powers as a political subdivision of the National Government
and as a corporate entity representing the inhabitants of its territory. (RA 7160, Section 15)
Accordingly it has dual functions namely:

1. Public or governmental- It acts as an agent of the State for the government of the
territory and the inhabitants.
2. Private or proprietary- It acts as an agent of the community in the administration
of local affairs. As such, it acts as a separate entity, for its own purposes, and not
as a subdivision of the State (Bara Lidasan v. Comelec, 21 SCRA 496)

Creation/ Dissolution of Municipal Corporations

Authority to Create

A local government unit may be created, divided, merged, abolished, or its boundaries
substantially altered either by law enacted by Congress in the case of a province, city,
municipality or any other political subdivision, or by ordinance passed by the sangguniang
panlalawigan or sagguniang panlungsod concerned in the case of a barangay located within
its territorial jurisdiction, subject to such limitations and requirements prescribed in the Local
Government Code (RA 7160, Section 6)

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Requisites/Limitations on Creation or Conversion

Article X, Section 10: No province, city, municipality or any barangay may be

created, divided, merged, abolished, or is its boundary substantially altered, except in
accordance with the criteria established in the local government code and subject to approval
by a majority of the votes cast in a PLEBISCITE in the political units directly affected.

RA 7160, Section 10: No creation, division or merger, abolition or substantial

alteration of boundaries of local government units shall take effect unless approved by a
majority of the votes cast in a plebiscite called for the purpose in the political unit or units
directly affected. Said plebiscite shall be conducted by the Comelec within 120 days from
the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance
fixes another date.

It was held that a plebiscite for creating a new province should include the
participation of the residents of the mother province in order to conform to the constitutional
requirement. (Tan v. Comelec, 142 SCRA 727; Padilla v. Comelec, 214 SCRA 735) In other
words, all political units affected should participate in the plebiscite. If what is involved is a
barangay, the plebiscite should be municipality or city-wide; if a municipality or component
city, province wide. If a portion of province is to be carved out and made into another province,
the plebiscite should include the mother province. (Tan v. COMELEC, 1986)
RA 7160, Section 7: Based on verifiable indicators of viability and projected capacity
to provide services, to wit:

1. Income- Income must be sufficient, based on acceptable standards, to provide for

all essential government facilities and services and special functions commensurate
with the size of population, as expected of the local government unit concerned.
Average annual income for the last two consecutive years based on 1991 constant
prices should be at least:

Municipality: 2.5 M
City: 100M (Year 2000 constant prices, amended by RA 9009)
Highly urbanized city: 50M
Province: 20M

It was held that the Internal Revenue Allotments (IRAs) should be included in
the computation of the average annual income of the municipality (for purposes of
determining whether the municipality may be validly converted into a city), but under RA
9009, it is specifically provided that for conversion to cities, the municipality’s income
should not include the IRA. (Alvarez v. Guingona, 252 SCRA 695)

2. Population- it shall be determined as the total number of inhabitants within the

territorial jurisdiction of the local government unit concerned.

3. Land Area - It must be contiguous, unless it comprises two or more islands or is

separated by a local government unit independent of the others; properly identified
by metes and bounds with technical descriptions and sufficient to provide for
such basic services and facilities to meet the requirements of its populace.

Income Population Land Area

Barangay 2,000 inhabitants Municipality (except in
Metro Manila and other metropolitan
political subdivisions or
in highly urbanized cities where the
requirement is 5,000 inhabitants)
Municipality 2.5M 25,000 50sqkm
City 100M 150,000 100sqkm
Highly 50M 200,000
Urbanized
City
Province 20M 250,000 2,000sqkm

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Compliance with the foregoing indicators shall be attested to by the Department of

Finance, the NSO and the Lands Management Bureau of the DENR. The SC said that the
requirement that the territory of newly-created local government units be identified by metes
and bounds is intended to provide the means by which the area of the local government unit
may be reasonably ascertained, i.e., as a toll in the establishment of the local government
unit. As long as the territorial jurisdiction of the newly created city may be reasonably
ascertained—by referring to common boundaries with neighboring municipalities—then the
legislative intent has been sufficiently served. (Mariano v. Comelec, 242 SCRA 211)

RA 7854, which converted Makati into a city, did not define the boundaries of the new
city by metes and bounds, because of a territorial dispute between Makati and Taguig, which
was best left for the courts to decide

Beginning of Corporate Existence

Upon the election and qualification of its chief executive and a majority of the
members of its sanggunian, unless some other time is fixed therefor by the law or ordinance
creating it. (RA 7160, Section 14)

Division and Merger; Abolition of LGUs

Division and merger shall comply with same requirements, provided that such
division shall not reduce the income, population or land area of the local government unit or
units concerned to less than the minimum requirements prescribed; provided further that
the income classification of the original local government unit or units shall not fall below its
current income classification prior to the division. (RA 7160, Section 8)

Abolition. A local government unit may be abolished when its income, population
or land area has been irreversibly reduced to less than the minimum standards prescribed
for its creation, as certified by the national agencies mentioned. The law or ordinance abolishing
a local government unit shall specify the province, city, municipality or barangay with which
the local government unit sought to be abolished will be incorporated or merged. (RA
7160, Section 9)

De Facto Municipal Corporations Requisites:

1. Valid law authorizing incorporation

2. Attempt in good faith to organize under it
3. Colorable compliance with the law.
4. Assumption of corporate powers

The SC declared as unconstitutional Section 68 of the Revised Administrative Code

which authorized the President to create municipalities through Executive Order. With this
declaration, municipalities created by Executive Order could not claim to be de facto municipal
corporations because there was no valid law authorizing incorporation. (Pelaez v. Auditor
General, 15 SCRA 569)

Attack Against Invalidity of Incorporation No collateral attack shall lie; and inquiry
into the legal existence of a municipal corporation is reserved to the State in a proceeding
for quo warranto or other direct proceeding. (Malabang v. Benito, 27 SCRA 533) But this rule
applies only when the municipal corporation is at least a de facto municipal corporation.
However, where the challenge was made nearly 30 years after the executive order; creating
the municipality was issued, or where the municipality has been in existence for all of 16 years
before the ruling in Pelaez v. Auditor General was promulgated and various governmental acts
throughout the years indicate the State’s recognition and acknowledgment of the existence of
the municipal corporation, the municipal corporation should be considered as a regular
de jure municipality.

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The Barangay

As the basic political unit, the barangay serves as the primary planning and
implementing unit of governmental policies, plans, programs, projects and activities in the
community, as a forum wherein the collective views of the people may be expressed,
crystallized and considered, and where disputes may be amicably settled. (RA 7160,
Section 384)

The Municipality

The municipality, consisting of a group of barangays, serves primarily as a general

purpose government for the coordination of and delivery of basic, regular and direct services
and effective governance of the inhabitants within its jurisdiction. (RA 7160, Section 440) RA
7160 Sections 440-447

The City

The city, composed of more urbanized and developed barangays, serves as a

general purpose government for the coordination and delivery of basic, regular and direct
services and effective governance of the inhabitants within its territorial jurisdiction. (RA
7160, Section 448) RA 7160 Sections 448-258

The Province

The province composed of a cluster of municipalities and component cities, and

as a political and corporate unit of government, serves as a dynamic mechanism for
developmental processes and effective governance of local government units within its
territorial jurisdiction. (RA 7160, Section 459) (RA 7160 Sections 459-468)

Special Metropolitan Political Subdivisions

Pursuant to Article X, Section 11, Congress may, by law, create special metropolitan
political subdivisions subject to a plebiscite set forth in Section 20, but the component
cities and municipalities shall retain their basic autonomy and shall be entitled to their own
local executives and legislative assemblies. The jurisdiction of the metropolitan authority
that will thereby created shall be limited to basic services requiring coordination.

Leagues of LGUs/Officials

Liga ng mga Barangay- Organization of all barangay for the primary purpose of
determining the representation of the Liga in the sanggunians, and for ventilating, articulating
and crystallizing issues affecting barangay government administration and securing,
through proper and legal means, solutions thereto.

League of Municipalities. Organized for the primary purpose of ventilating,

articulating and crystallizing issues affecting municipal government administration, and
securing, through proper and legal means, solutions thereto.

Regional Development Councils

Purpose. The purpose of this provision is to foster administrative decentralization as a

complement to political decentralization. This is meant to allow bottom-to-top planning rather
than the reverse.

Power to Create RDCs. It will be noted that the power to form these development
councils is given to the President. He does not need authorization from Congress.

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PRINCIPLES OF LOCAL AUTONOMY

LOCAL AUTONOMY. The territorial and political subdivisions shall enjoy local
autonomy. [Sec. 2, Article X, 1987 Constitution]

DECLARATION OF POLICY

1. Policy of the State that the territorial and political subdivisions of the State shall enjoy
genuine and meaningful local autonomy to enable them to attain their fullest
development as self-reliant communities and make them more effective partners in the
attainment of national goals.
2. The State shall provide for a more responsive and accountable local government
structure instituted through a system of decentralization whereby local government
units shall be given more powers, authority, responsibilities, and resources. [Sec. 2,
LGC]

The principle of local autonomy under the 1987Constitution simply means decentralization.
[Basco v. PAGCOR (1991)]

DECENTRALIZATION. Refers to either (1) decentralization of administration or to (2)

decentralization of power.

Decentralization of Administration Decentralization of Power

Occurs when the central government delegates Abdication of political power in favor of LGUs
administrative powers to political subdivisions in declared to be autonomous regions, making the
order to broaden the base of government power. latter no longer accountable to the national
[Ganzon v. CA (1991)] government, but to its constituents instead

The purpose of such is to relieve the central Not allowed under the 1987 Constitution
government of the burden of managing local
affairs and enable to concentrate on national
concerns.

DEVOLUTION. The act by which the national government confers power and authority
upon the various local government units to perform specific functions and responsibilities [Sec.
17, LGC]

POWERS OF LOCAL GOVERNMENT UNITS

SOURCES OF POWER:

1. 1987 Constitution; Sec. 25, Art II and Sec. 5-7, Art X

2. Law; Local Government Code
3. Charter
4. Right to Self-Government; applies only in states which adhere to such doctrine

POLICE POWER (GENERAL WELFARE CLAUSE)

1. Powers expressly granted

2. Powers impliedly granted
3. Powers necessary, appropriate, or incidental for efficient and effective governance
4. Powers essential to the promotion of the general welfare
5. Duty to ensure and support:
a. Preservation and enrichment of culture
b. Promotion of health and safety
c. Enhancement of the right of the people to a balanced ecology

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Development of self-reliant scientific and technological capabilities

d. Improvement of public morals
e. Economic prosperity and social justice
f. Promotion of full employment among residents
g. Maintenance of peace and order
h. Preservation of the comfort and convenience of its inhabitants [Sec. 16, LGC]

NATURE

The police power of a municipal corporation extends to all great public needs, and
includes all legislation and functions of the municipal government. The drift is towards social
welfare legislation geared towards state policies to provide adequate social services, the
promotion of general welfare, and social justice. [Binay v. Domingo (1991)]

Public Use

1. The public in general should have equal or common rights to use the land or facility
involved on the same terms.
2. The number of users in not the yardstick in determining
whether property is properly reserved for public use or
benefit. [Republic v. Gonzales (1991)]

Two Branches of General Welfare Clause

1. The general legislative power, which authorizes municipal councils to enact ordinances
and make regulations not repugnant to law and may be necessary to carry into effect
and discharge the powers and duties conferred upon it by law.
2. The police power, which authorizes the municipality to enact ordinances as may be
proper and necessary for the health and safety, prosperity, morals, peace, good order,
comfort and convenience of the municipality and its inhabitant, and for the protection
of their property. [Rural Bank of Makati, Inc. v. Municipality of Makati (2004)]

LIMITATIONS

1. The General Welfare clause cannot be used to justify an act not authorized by law.
2. The exercise of such must be via a valid ordinance [Tatel v. Municipality of Virac (1992)]
a. Not contrary to the Constitution or statute
b. Not unfair or oppressive
c. Not partial or discriminatory
d. Not unreasonable -Consistent with public policy

ILLUSTRATIONS – POLICE POWER APPLIED

1. Prescribing zoning and classification of merchandise sold in the public market;

2. Condemnation and demolition if buildings found to be dangerous or ruinous condition;
3. Regulation and operation of tricycles and to grant franchises for the operation thereof;
4. Zoning regulations;
5. Providing burial assistance to the poor;
6. Enforcement of fishery laws within LGU waters;

ILLUSTRATIONS –POLICE POWER DOES NOT APPLY

1. Prohibition of operation of night clubs, as it is a lawful trade or pursuit of occupation;

2. Rescinding of mayor's permits based on arbitrary grounds;

EMINENT DOMAIN. It is the right or power of the sovereign state to appropriate private
property within the territorial sovereignty for public purpose.

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NATURE

The exercise of eminent domain is necessarily in derogation of private rights, hence

the authority to exercise such must be strictly construed. [Heirs of Suguitan v. City of
Mandaluyong (2000)]

REQUISITES

1. Ordinance enacted by the local legislative council authorizing the local Chief Executive
to exercise eminent domain
2. For purpose of public use, public purpose, or welfare for the benefit of the poor and
landless
3. Payment of just compensation based on the fair market value of the property at the
time of taking
4. Valid and definite offer was previously made to the owner of the property, but the offer
was not accepted [Sec. 19, LGC]

The primary question is whether the government has complied with the requisites for
taking of private property. The value of the property is merely incidental to the expropriation
suit, as it is only after the court is satisfied with the propriety of expropriation that said amount
is determined. [Barangay San Roque v. Heirs of Pastor (2000)]

JUST COMPENSATION

Section 3A of Republic Act No. 6395, as amended (which provides a fixed formula in
the computation of just compensation in cases of acquisition of easements of right of way) is
not binding upon this Court. This is in keeping with the established rule that the determination
of “just compensation” in eminent domain cases is a judicial function. [National Power
Corporation v. Lleto (2012)] \

IMMEDIATE ENTRY BY THE LGU

1. Filing of the complaint for expropriation sufficient in form and substance

2. Deposit of the amount equivalent to 15% of the fair market value of the property to be
expropriated based on the current tax declaration

Upon compliance with the requisites, the issuance of a writ of possession becomes
ministerial. There is no need for a hearing for the writ to issue. [City of Iloilo v. Legaspi (2004)]

SOCIALIZED HOUSING [RA 7279]

Under the Urban Development and Housing Act, expropriation by an LGU for purposes
of socialized housing projects shall occur only as a last resort. It must be shown by the LGU
that other methods of acquisition have been exhausted: mortgage, land swapping, land
consolidation, donation, joint venture agreements, and negotiated purchase.

If all the other methods have been exhausted and expropriation to continue, the LGU
shall prioritize expropriation of property of:

1. Government lands
2. Alienable public lands
3. Abandoned lands
4. Areas for priority development
5. Unacquired BLISS sites
6. Private lands

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Furthermore, small property landowners are similarly exempt from expropriation for
purposes of socialized housing, provided:

1. Those owners of real property which consist of residential lands within an area of not
more than 300 sq. meters in highly urbanized cities, and 800 in other urban cities; and
2. They do not own real property other than the same.

TAXING POWER

Each LGU shall have the power to create new sources of funds and to levy taxes, fees,
and charges subject to limitations as Congress may provide, consistent with the basic policy of
local autonomy. Such taxes, fees, and charges accrue exclusively to the local governments.
[Sec 5, Article X, 1987 Constitution]

FUNDAMENTAL PRINCIPLES ON TAXATION BY AN LGU

1. Taxation shall be uniform;

2. Taxes, fees, and charges shall be equitable and based as far as practicable on the
taxpayer's ability to pay;
3. Levied and collected only for a public purpose;
4. Shall not be unjust, excessive, oppressive, or confiscatory;
5. The collection of taxes, fees, and charges shall in no case be left to any private person;
6. The revenue shall insure solely to the LGU, unless otherwise specified;
7. Each LGU shall, as far as practicable, evolve a progressive system of taxation;
8. Shall not be contrary to law, public policy, national economic policy, or in restraint of
trade; [Sec. 130, LGC]

SOURCES OF LGU FUNDS

1. Own sources of revenue

2. Taxes, fees, and charges which accrue exclusively for their use and disposition
3. Just share in national taxes which shall be automatically and directly released to
themselves
4. Equitable share in the proceeds from utilization and development of national wealth
and resources within their territorial jurisdiction

LGUs, in addition to administrative autonomy, also enjoy fiscal autonomy. LGUs have
the power to create their own sources of revenue, in addition to their equitable share in the
national taxes and their power allocate resources in accordance with their own priorities.
[Pimentel v. Aguirre (2000)]

COMMON LIMITATIONS ON TAXING POWER

Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities,
municipalities, and barangays shall not extend to the levy of the following:

1. Income tax, except when levied on banks and other financial institutions
2. Documentary stamp tax
3. Taxes on estates, inheritance, gifts, legacies and other acquisitions mortis causa
4. Customs duties, registration fees of vessel and wharfage on wharves, tonnage dues,
and all other kinds of customs fees, charges and dues except wharfage on wharves
constructed and maintained by the local government unit concerned
5. Taxes, fees, and charges and other impositions upon goods carried into or out of, or
passing through, the territorial jurisdictions of local government units in the guise of
charges for wharfage, tolls for bridges or otherwise, or other taxes, fees, or charges in
any form whatsoever upon such goods or merchandise
6. Taxes, fees or charges on agricultural and aquatic products when sold by marginal
farmers or fishermen

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7. Taxes on business enterprises certified to by the Board of Investments as pioneer or

non-pioneer for a period of six (6) and four (4) years, respectively from the date of
registration;
8. Excise taxes
9. Percentage or value-added tax
10. Taxes on the gross receipts of transportation contractors and persons engaged in the
transportation of passengers or freight by hire and common carriers by air, land or
water, except as provided in this Code
11. Taxes on premiums paid by way or reinsurance or retrocession;
12. Taxes, fees or charges for the registration of motor vehicles and for the issuance of all
kinds of licenses or permits for the driving thereof, except tricycles
13. Taxes, fees, or other charges on Philippine products actually exported, except as
otherwise provided herein
14. Taxes, fees, or charges, on Countryside and Barangay Business Enterprises and
cooperatives duly registered under R.A. No. 6810 and the Cooperative Code,
respectively
15. Taxes, fees or charges of any kind on the National Government, its agencies and
instrumentalities, and local government units [Sec. 133, LGC]

EXEMPTION OF THE NATIONAL GOVERNMENT FROM TAXATION

Sec. 133 of the LGC provides a limitation on the power of an LGU to levy taxes, fees,
or charges on the national government, its agencies and instrumentalities, unless otherwise
provided. Sec. 234 of the LGC on the other hand, grants to LGUs the power to impose real
property tax on properties of the Republic of the Philippines and its political subdivisions when
its beneficial use is granted to a taxable person.

FUNDAMENTAL PRINCIPLES ON THE FINANCIAL AFFAIRS OF AN LGU

1. No money shall be paid out of the local treasury except in pursuance of an

appropriations ordinance or law;
2. Local government funds and monies shall be spent solely for public purposes;
3. Local revenue is generated only from sources expressly authorized by law or
ordinance, and collection thereof shall at all times be acknowledged properly;
4. All monies officially received by a local government officer in any capacity or on any
occasion shall be accounted for as local funds, unless otherwise provided by law;
5. Trust funds in the local treasury shall not be paid out except in fulfillment of the purpose
for which the trust was created or the funds received;
6. Every officer of the local government unit whose duties permit or require the possession
or custody of local funds shall be properly bonded, and such officer shall be
accountable and responsible for said funds and for the safekeeping thereof in
conformity with the provisions of law;
7. Local governments shall formulate sound financial plans, and local budgets shall be
based on functions, activities, and projects, in terms of expected results;
8. Local budget plans and goals shall, as far as practicable, be harmonized with national
development plans, goals, and strategies in order to optimize the utilization of
resources and to avoid duplication in the use of fiscal and physical resources;
9. Local budgets shall operationalize approved local development plans;
10. Local government units shall ensure that their respective budgets incorporate the
requirements of their component units and provide for equitable allocation of resources
among these component units;
11. National planning shall be based on local planning to ensure that the needs and
aspirations of the people as articulated by the local government units in their respective
local development plans are considered in the formulation of budgets of national line
agencies or offices;
12. Fiscal responsibility shall be shared by all those exercising authority over the financial
affairs, transactions, and operations of the local government units; and
13. The local government unit shall endeavor to have a balanced budget in each fiscal year
of operation. [Sec. 305, LGC]

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CLOSURE AND OPENING OF ROADS [SEC. 21, LGC]

SCOPE – WITHIN JURISDICTION OF THE LGU

1. Local roads
2. Alleys
3. Parks
4. Squares

FOR TEMPORARY CLOSURE

1. Via ordinance

2. May be done due to:

a. Actual emergency
b. Fiesta celebrations
c. Public rallies
d. Agricultural or industrial fairs
e. Undertaking of public works and highways, telecommunications, and
waterworks projects

3. Duration of closure must be specifically stated in the order of closure

4. If for the purpose for athletic, cultural, or civil activities; these must be officially
sponsored, recognized, or approved by the local government

FOR PERMANENT CLOSURE

1. Via ordinance approved by at least 2/3 of all members of the Sanggunian

2. Such ordinance must have provisions for the maintenance of public safety therein
3. Such property withdrawn may be used or conveyed for any purpose for which other
real property belonging to the local government may be lawfully used or conveyed
4. When necessary, an adequate substitute for the public facility that is subject to closure
should be provided
5. If a freedom park is permanently closed, there must be a provision for its transfer or
relocation to a new site

FOR CLOSURE BY CITIES, MUNICIPALITIES, AND BARANGAYS

1. Via ordinance
2. May temporarily close and regulate the use of any local street, road, or any other public
place
3. For shopping malls, Sunday, flea, or night markets, or shopping areas for the sale of
goods, merchandise, foodstuffs, and commodities

All LGUs may temporarily and permanently close their local roads, but the regulation
and closure of local roads for the above purposes are limited to cities, municipalities, and
barangays.

A public road may not be the subject of lease or contract, as public roads are properties
for public use outside the commerce of man. [Dacanay v. Asistio (1992)]

The closure of public roads under police power is not eminent domain. No grant of
damages is awarded. [Cabrera v. CA (1991)]

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LEGISLATIVE POWER

REQUISITES FOR VALID ORDINANCE

General Requirements
Exercised via ordinance by:

1. Sangguniang Panlalawigan for the province

2. Sangguniang Panlungsod for the city
3. Sangguniang Bayan for the municipality
4. Sangguniang Barangay for the barangay

Constitutional Requirements

1. Not contrary to the Constitution and statute

2. Not unfair or oppressive
3. Not partial or discriminatory
4. Not unreasonable
5. May regulate, but not prohibit trade
6. Must be general and consistent with public policy.
[Tatel v. Municipality of Virac (1992)]

Presided by:

1. Vice-governor or vice-mayor or punong barangay will vote only in case of a tie because
he is not a member of the Sanggunian. [Perez vs. Dela Cruz (1969)]
2. The incumbent local chief executive acting as the chief executive may not preside over
the sessions of the Sanggunian. Why? To ensure better delivery of public services and
provide a system of checks and balances between the executive and legislative.
[Gamboa v. Aguirre, supra]

In case of inability of the above: members present and constituting a quorum shall elect
from among themselves a temporary presiding officer who shall certify within 10 days from the
passage of the ordinances enacted and resolutions adopted by the sanggunian in the session
over which he temporarily presided [Sec. 49, LGC]

Publication and Effectivity of Ordinances

Publication Effectivity
General Rule
posted in a bulletin board at the entrance of 10 days after posting;
the provincial capitol or city, municipal, or
barangay hall, as the case may be, and in at
least 2 other conspicuous places
Highly Urbanized and Independent Component Cities
Main features of the ordinances, in addition to General rule;
posting, shall be published once in a
newspaper of local circulation; if none, in a
newspaper of general circulation;
Ordinance or Resolution on Local Development Plan and Public Investment Programs
Follow general rule; Follow that stated in the ordinance or
resolution; if none, follow general rule;
All Ordinances with Penal Sanctions
posted at conspicuous places in the Unless otherwise provided therein, shall
provincial capitol, or city, municipal or take effect on the day following its
barangay hall for a minimum period of 3 publication, or at the end of the period of
consecutive weeks; posting, whichever occurs later;
AND
publication in a newspaper of general
circulation, except in the case of barangay
ordinances.

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AND
gist of such tax ordinance shall be published
in a newspaper of general circulation within
the province; if none, posting in all
municipalities and cities of the province
Tax Ordinances
Within 10 days after their approval, published Beginning of the quarter, if otherwise, the
in full for 3 consecutive days in a newspaper same shall be considered as falling at the
of local circulation; if none. The same may be beginning of the next ensuing quarter
posted in at least 2 conspicuous and publicly
accessible places

Approval and Veto of Ordinances

Approval: Affix his signature on each and every page

The signature of the local chief executive in the approval of an ordinance or resolution
is not a mere ministerial act, as it requires the exercise of analysis and judgment. This is part
of the legislative process. [Delos Reyes v. Sandiganbayan (1997)]

Disapproval: The local chief executive may veto and ordinance on the ground that it is
ultra vires or prejudicial to public welfare, stating his reasons in writing

1. may be exercised only once

2. cannot be exercised by the punong barangay
3. power to veto any particular item or items of
a. appropriations ordinance
b. ordinances or resolutions adopting the local development plan or public
investment program
c. ordinances directing the payment of money or creating liabilities
4. the ordinance is returned with objections to the Sanggunian within 15 days to the
Sangguniang Panlalawigan, or within 10 days to the Sangguniang Panlungsod/Bayan
-may be overridden by the Sanggunian upon a 2/3 vote of all its members

Review of Ordinances/ Resolutions

Component Cities and Municipalities Sangguniang Barangay
By Whom
Sangguniang Panlalawigan Sangguniang Panlungsod/Bayan
When
Within 3 days from approval, forwarded Within 10 days from approval, forwarded
by Secretary of Sang; by Sanggunian;
What
Ordinances/Res. on local development All barangay ordinances;
plans and public investment programs
How Reviewed
Sang. Panlalawigan shall examine and The sanggunian concerned shall review
transmit to the Prov. Atty. for comments such;
and recommendations
Reasons for Rejection
If beyond the power conferred upon the Whether consistent with law and the city
Sanggunian concerned and municipal ordinances;
Period to Review
30 days; if no action after 30 days, 30 days; if no action after 30 days,
deemed consistent with law and valid deemed approved

Internal Rules
Internal Rules of Procedure

1. Adopted/updated on the 1st regular session following the election of the members of
the Sanggunian and shall be within 90 days from such

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2. Provides for:
a. Organization of the Sanggunian and the election of its officers
b. Creation of Standing Committees
c. Order and calendar of business for each session
d. Disciplinary rules for members

Quorum

The presence of a quorum is required to transact official business; a majority of all

members of the Sanggunian who have been elected and qualified. [Sec. 53, LGC]

Only qualification is material in the counting of a quorum. The filing of a leave of

absence does not affect the member's material qualification or election, hence quorum shall be
based on the total number of members without regard to the filing of a leave of absence.
[Zamora v. Caballero (2004)]

It is legally permissible, as exceptions to the general provisions covered by the city

charters and the LGC, that the vote requirement be specifically provided for instead of the usual
majority vote. [Casiño v. CA (1991)]

Sanggunian Sessions

1. First session following the election, the Sanggunian shall fix the day, time, and place
of its regular sessions;
2. Open to the public, unless a closed-door session ordered by majority of the members
present;

Minimum Sessions

Once a week for the Sang. Panlalawigan, Panlungsod, and Bayan; Twice a month for
the Sangguniang Barangay;

Special Sessions:

1. May be called the local chief executive or by majority of the Sanggunian;

2. Written notice to all the members personally at least 24 hours before the special
session is held;
3. If matters not in the notice are to be discussed during the special session, a 2/3 vote of
those present is required;

Full Disclosure of Financial and Business Interests of Sanggunian Members

When: Upon assumption of office, before participation in the deiberations on an

ordinance or resolution, and when taking a position or priviledge speech that may affect his
interests;

How: In writing and submitted to the Secretary of the sanggunian or the secretary of
the committee of which he is a member;

What: Any business, financial, or professional relationship or relation by

affinity/consanguinity up to the 4 degree affected by any ordinance or sanggunian which may
result in a conflict of interest.

“Conflict of Interest” refers in general to one where it may be reasonably deduced that
a member of the sanggunian may not act in the public interest due to some private, pecuniary,
or other personal considerations that may tend to affect his judgment.

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LOCAL INITIATIVE AND REFERENDUM

Local Initiative

Defined Legal process whereby the registered voters of a

LGU may directly propose, enact, or amend an
ordinance.
Exercised by All registered voters of the provinces, cities,
municipalities, and barangays.
Procedure Petition proposing the adoption, enactment, repeal,
or amendment of an ordinance filed with the
sanggunian concerned by not less than
1,000 – in case of provinces and cities
100- in case of municipalities
50- in case of barangays
Effectivity 15 days after the Certification by the COMELEC that
the proposition is approved by a majority of the votes
cast
Limitations (1) The power of local initiative shall not be
exercised more than once a year.
(2) Initiative shall extend only to subjects or matters
which are within the legal powers of the sanggunians
to enact.
(3) If at any time before the initiative is held, the
sanggunian concerned adopts in toto the proposition
presented and the local chief executive approves the
same, the initiative shall be cancelled. However,
those against such action may, if they so desire,
apply for initiative.
Limitations Any proposition or ordinance approved through the
upon system of initiative and referendum shall not be
Sanggunians repealed, modified, or amended by the sanggunian
concerned within six (6) months from the date of the
approval thereof and may be amended, modified, or
repealed by the sanggunian within three (3) years
thereafter by a vote of three-fourths (3/4) of all its
members. Provided that in case of barangays, the
period shall be eighteen months.

Local Referendum. Legal process whereby the registered voters of the local
government unit may approve, amend, or reject any ordinance enacted by the Sanggunian.

Initiative is resorted to (or initiated) by the people directly either because the law-
making body fails or refuses to enact the law ordinance, resolution, or act that they desire or
because they want to amend or modify one already existing.

In a local referendum, the law-making body submits to the registered voters of its
territorial jurisdiction, for approval or rejection, any ordinance or resolution which is duly enacted
or approved by such lawmaking authority. Said referendum shall be conducted under the
control and direction of the COMELEC.

While initiative is entirely the work of the electorate, referendum is begun and
consented to by the law-making body. Initiative is a process of law-making by the people
themselves without the participation and against the wishes of their elected representatives,
while referendum consists merely of the electorate approving or rejecting what has been drawn
up or enacted by a legislative body.

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Procedure

Not less than 1,000 registered voters in case of provinces and

cities, 100 in case of municipalities, and 50 in case of barangays,
may file a petition with the local legislative body, respectively,
proposing the adoption, enactment, repeal, or amendment, of any
law, ordinance or resolution

If no favorable action thereon is made by local legislative body within

30 days from its presentation, the proponents through their duly
authorized and registered representative may invoke their power of
initiative, giving notice thereof to the local legislative body concerned

2 or more propositions may be submitted in an initiative

Proponents shall have 90 days in case of provinces and cities, 60

days in case of municipalities, and 30 days in case of barangays,
from notice to collect the required number of signatures

The petition shall be signed before the Election Registrar, or his

designated representative, in the presence of a representative of
the proponent, and a representative of the regional assemblies and
local legislative bodies concerned in a public place in the LGU

If the required number of signatures is obtained, the COMELEC

shall then set a date for the initiative for approval of the proposition
within 60 days from the date of certification by the COMELEC in
case of provinces and cities, 45 days in case of municipalities, and
30 days in case of barangays [Sec. 122, LGC]

CORPORATE POWERS

TO SUE AND BE SUED. As a general rule, local government unit, as a corporation,

shall have the power to sue and be sued. This applies to all acts of the LGU in its corporate
and proprietary capacity. [Sec. 22, LGC]

Governmental Powers Corporate (Proprietary) Powers

Exercised in administering the powers of Exercised for the special benefit and
the state and promoting public welfare advantage of the community
Cannot be sued without consent for Impliedly consents to being sued by
injuries it caused entering into private contracts
Officers or agents acting within official Officers and agents are liable for
duties are not liable unless they acted negligence/ torts while within scope of
willfully and maliciously employment.
Respondeat superior doesn’t apply Respondeat superior applies

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TO ACQUIRE AND SELL REAL PROPERTY

If the property is owned by the municipality in its public and governmental capacity, the
property is public and Congress has absolute control over it. If the property is owned in its
private or proprietary capacity, then it is patrimonial and Congress has no absolute control and
the municipality cannot be deprived of it without due process and payment of just
compensation. [Rabuco v. Villegas (1974)]

TO ENTER INTO CONTRACTS

Requisites

1. Entered into by the the local chief executive in behalf of the LGU
2. Prior Authorization by Sanggunian concerned
3. Legible copy of contract posted at a conspicuous place in the
a. provincial capitol or
b. city, municipal, barangay hall

Authority to Negotiate and Secure Grants

Who may negotiate: Local Chief Executive (upon authority of Sanggunian)

What are negotiated:

1. Financial grants or donations in kind in support of basic services or facilities

2. From local and foreign assistance agencies

Approval by national agency concerned

General rule: No necessity of securing clearance from national agency

Exception: If with national security implications

1. Shall be approved by national agency concerned

2. Failure to act on request for approval within 30 days from receipt: deemed approved

Reporting duty: local chief executive shall report to both Houses of Congress and the
President

1. Nature
2. Amount
3. Terms
4. Within 30 days upon signing of grant agreement or deed of donation [Sec. 23, LGC]

Ultra Vires Contracts

An LGU can only legitimately exercise powers of government only within the limits of
the authority granted to it, or else its acts are ultra vires.

Illustrations:

A public street is property for public use hence outside the commerce of man. Being
outside the commerce of man, it may not be the subject of lease or other contract. The city
government, contrary to law, has been leasing portions of the streets. Such lease or license is
null and void for being contra to law. [Dacanay v. Asistio (1992)]

LIABILITY OF LGUS

Local government units and their officials are not exempt from liability for death or injury
to persons or damage to property. [Sec. 24, LGC]

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When a member of a city or municipal police force refuses or fails to render aid or
protection to any person in case of danger to life or property, such peace officer shall be
primarily liable for damages, and the city or municipality shall be subsidiarily responsible
therefor. The civil action herein recognized shall be independent of any criminal proceedings,
and a preponderance of evidence shall suffice to support such action. [Art. 34, Civil Code]

The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible. The State is responsible
in like manner when it acts through a special agent; but not when the damage has been caused
by the official to whom the task done properly pertains, in which case what is provided in article
2176 shall be applicable.

The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to prevent
damage. [Art. 2180, Civil Code]

Provinces, cities and municipalities shall be liable for damages for the death of, or
injuries suffered by, any person by reason of the defective condition of roads, streets, bridges,
public buildings, and other public works under their control or supervision. [Art. 2189, Civil
Code]

Political/Governmental Acts Corporate/Proprietary Acts

Liability
LGU generally not liable unless: Can be held liable ex contractu or ex delicto;

1. Statute provides otherwise;

2. damages due to defective
condition of roads, streets,
buildings, and other public works
(Art. 2189, Civil Code)
3. damages due to failure to render
aid or protection in case of danger
to life or property (Art. 34, Civil
Code)
Defense
No valid defense for non-performance Defense of due diligence in the selection
and supervision of its officers
Personal Liability of Officers
Officers or agents acting within official Officers and agents are liable for
duties are not liable unless they acted negligence/ torts while within scope of
willfully and maliciously employment.

Illustrations

ON CONTRACT

General Rule: The LGU is liable only for contracts that are intra vires.

The Doctrine of Implied Municipal Liability provides that an LGU may become obligated
upon an implied contract to pay reasonable value of the benefits accepted by it as to which it
has the general power to contract [Cebu v. IAC (1987)]

Exception: the LGU may not be estopped in order to validate a contract which the LGU
is not authorized to make EVEN IF it has accepted the benefits thereunder [San Diego v. Mun.
Of Naujan (1960)]

A private individual who deals with a LGU is imputed with constructive knowledge of
the extent of the power or authority of the LGU to enter into contracts. Thus, ordinarily, the
doctrine of estoppel does not lie against the LGU.

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ON TORT

If in the performance of a governmental function, the LGU is NOT liable

The prosecution of crimes, even if injury occurs [Mendoza v. de Leon (1916)]

If in the performance of a proprietary function, the LGU is liable

The improper grant of a ferry service franchise [Mendoza v. de Leon (1916)]

Municipal corporations’ liability to private persons for the wrongful exercise of the
corporate powers is the same as that of a private corporation or individual [Mendoza v. de Leon
(1916)]

Deaths caused by a collapsed stage in a town fiesta [Torio v. Fontanilla (1978)]

Back pay or wages of employees illegally dismissed, including those involving primary
governmental functions (e.g. policemen) [Guillergan v. Ganzon (1966)]

BY EXPRESS PROVISIONS OF LAW

ARTICLE 2189, CC

When a person falls in an open manhole in the city streets. [Manila v. Teotico (1968)]

When a person steps on a rusted nail in a flooded public market. [Jimenez v. Manila
(1987)]

When accidents are caused by defective roads even if the road does not belong to the
LGU as long as it exercises control or supervision over said road. [Guilatco v. Dagupan (1989)]

Damages suffered through accidents in national roads under the control and
supervision of an LGU (cause is unsafe road conditions, especially when there is gross
negligence). [Municipality of San Juan v. CA (2005)]

Also exemplary damages may be granted when public officials acted with gross
negligence. [Quezon City v. Dacara (2005)]

ARTICLE 2180, CC

When the State acts through a special agent [Merritt v. Government (1916)]

ON VIOLATION OF LAW

When the Mayor refused to abide by a TRO issued by the court, he may be held in
contempt. [Moday v. CA (1997)]

When the LGU does not pay the statutory minimum wage (mandated by law) even if
there is lack of funds. [Racho v. Ilagan, Isabela (1968)]

PERSONAL LIABILITY OF PUBLIC OFFICIAL

General Rule: The public official is personally liable if he acts beyond the scope of his
powers OR if he acts with bad faith.

Illustrations: Mayor exceeding authority in vetoing a resolution passed by the

Sanggunian [Pilar v Sangguniang Bayan ng Dasol (1984)]

Note that under NCC27, a public servant is personally liable for damages for his refusal
or neglect to perform his official duty.

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When the officials incorrectly ordered the construction of a drug rehabilitation center
[Angeles v. CA (1996)]

When officials illegally dismiss an employee [Rama v. CA (1987)]

When the official defies an order of reinstatement of an illegally dismissed employee

[Correa v. CFI (1979)]

The Mayor pays for the back salaries of an illegally dismissed employee [Nemenzo v.
Sabillano (1968)]

The Governor pays for moral damages for refusing the reinstatement of an employee
[San Luis v. CA (1989)]

A public officer, whether judicial, quasi-judicial or executive, is not personally liable to

one injured in consequence of an act performed within the scope of his official authority, and in
line of his official duty. [Tuzon v. CA (1992)]

The holding of a town fiesta is a proprietary function, though not for profit, for which a
municipality is liable for damages to 3rd persons ex contractu or ex delicto;

1. that under the principle of respondeat superior the principal is liable for the negligence
of its agents acting within the scope of their assigned tasks; and
2. that the municipal councilors have a personality distinct and separate from the
municipality [Torio v. Fontanilla (1978)]

Hence, as a rule they are not co-responsible in an action for damages for tort or
negligence unless they acted in bad faith or have directly participated in the commission of the
wrongful act.

SETTLEMENT OF BOUNDARY

DISPUTES

Boundary disputes between and among local government units shall, as much as
possible, be settled amicably. To this end: [Sec. 118, LGC]

Boundary disputebetween: Where: Settled by:

2 or more barangays Same city or municipality Sangguniang Panlungsod or
Sangguniang Bayan
2 or more municipalities Same province Sangguniang Panlalawigan
Municipalities or component Different province Jointly referred to
cities sanggunians of the provinces
Concerned
Component city or Jointly referred to respective
Municipality vs. Highly Sanggunians of the parties
urbanized city Or Between 2
or more highly urbanized
cities

In the event the Sanggunian fails to effect an amicable settlement within 60 days from
the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter,
the dispute shall be formally tried by the sanggunian concerned which shall decide the issue
within 60 days from the date of the certification referred to above.

When the dispute between two LGUs do no fall under those enumerated in Sec. 118
of the LGC, BP 129 Sec. 19 is applicable: “Regional Trial Courts shall exercise exclusive
original jurisdiction in all cases not within the exclusive jurisdiction of any court, tribunal, person,
or body exercising judicial or quasi-judicial functions.” The RTC exercises original jurisdiction
over the settlement of a boundary dispute between a municipality and an independent
component city. [Municipality of Kananga v. Madrona (2003)]

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APPEAL [SEC. 119, LGC]

When: Within the time and manner prescribed by the Rules of Court Where: Proper
Regional Trial Court having jurisdiction over the area in dispute.

Who: Any party

The Regional Trial Court shall decide the appeal within one (1) year from the filing
thereof. Pending final resolution of the disputed area prior to the dispute shall be maintained
and continued for all legal purposes.

MAINTENANCE OF THE STATUS QUO

Pending final resolution of the dispute: status of the affected area prior to the dispute
shall be maintained and continued for all purposes. [Sec. 18, IRR of the LGC]

The power of provincial boards to settle boundary disputes is limited to implementing

the law creating a municipality. Thus, provincial boards do not have the authority to approve
agreements which in effect amend the boundary stated in the creating statute [Municipality of
Jimenez v. Baz (1996)]

The conduct of plebiscites, to determine whether or not a barangay is to be created,

should be suspended or cancelled in view of a pending boundary dispute between two local
governments. Precisely because territorial jurisdiction is an issue raised in the pending
boundary dispute, until and unless such issue is resolved with finality, to define the territorial
jurisdiction of the proposed barangays would only be an exercise in futility. [City of Pasig v.
COMELEC (1999)]

SUCCESSION OF ELECTIVE OFFICIALS

SUCCESSION IN PERMANENT VACANCIES

PERMANENCY OF VACANCY. Permanent Vacancy Occurs when an elective local
official: [Sec. 44, LGC]

1. fills a higher vacant office

2. refuses to assume office
3. fails to qualify
4. dies
5. is removed from office
6. voluntarily resigns
7. otherwise permanently incapacitated from discharging the functions of his office

POSITION OF LOCAL CHIEF EXECUTIVE BECOMES VACANT

Vacant Position Successor

Permanent Vacancy
Governor or Mayor Vice Governor ; Vice Mayor
Governor, Vice-Gov, Mayor, Vice-Mayor Highest-ranking Sangguinang member
Permanent Inability
Highest-ranking Sangguniang Member (as Second highest-ranking Sangguniang
the successor of the Gov, Vice-Gov, Mayor, Member (subsequent vacancies filled
Vice-M) according to their rank)
Permanent Vacancy
Punong Barangay Highest-ranking Sangguniang Barangay
Member
Tie between highest ranking Sangguninan
Member then draw lots

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Sanggunian Member becomes vacant [Farinas v. Barba (1996)]

If prior member If prior member

Position Appointing not a member of was member of a
Authority any political party political party
Sangguniang Panlalawigan Recommendation Nomination and Certification of
President of the Sangguniang the political party of the member
through Panlalawigan who caused the vacancy issued
Sangguniang Panlungsod the Recommendation by the highest official of the
(of highly urbanized and Executive of the Sangguniang political party
independent component Secretary Panlungsod
cities) SECTION 45 (b)
Sangguniang Panlungsod Recommendation Nomination and Certification of
(of component cities) of Sangguniang the political party of the member
Panglungsod who caused the vacancy issued
Sangguniang Bayan Governor Recommendation by the highest official of the
of Sangguniang political party
Bayan
SECTION 45 (b)
Sangguniang Barangay City or Recommendation
Municipal of Sangguniang
Mayor Barangay

General Rule: The appointee under Sec. 45 must be a nominee of the political party
under which the sanggunian member (whose elevation to the position next higher in rank
created the vacancy) had been elected.

Conditions sine qua non: There must be a nomination and certificate of membership
from the highest official of the political party or else the appointment is:
1. null and void ab initio; and
2. a ground for administrative action against the responsible official.
If sanggunian member who caused vacancy does not belong to any political party, the
local chief executive shall appoint a qualified person, upon recommendation of the sanggunian.

The appointee under Sec. 45 serves the unexpired term of the vacant office. Exception:
Sangguniang barangay.

If the vacancy pertains to barangay or youth representation in the sanggunian, the

vacancy is automatically filled by the official next in rank of the organization concerned.

TEMPORARY VACANCIES

Temporary Vacancy Occurs when the local chief executive is due to:

1. leave of absence
2. traveling abroad
3. suspension from office

Extent of Duty exercised by Temporary Successor

General Rule: The successor shall automatically exercise the powers and perform the
duties and functions of the local chief executive.

Exception: The power to appoint/suspend/dismiss employees can be exercised only if

the period of incapacity exceeds 30 working days; or if the successor is appointed in writing, if
the authorization specifies such powers to the successor.

If the local chief executive is traveling within the country but outside his territorial
jurisdiction for a period not exceeding 3 consecutive days, he may designate in writing the
officer-in-charge.

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General Rule: The local chief executive cannot authorize any local official to assume
the powers/duties/functions of his office, other than the vice-governor, city/municipal vice-
mayor, or highest ranking sangguniang barangay member.

The authorization shall specify the powers and functions that the officer-in-charge shall
exercise.

Exception: The power to appoint, suspend and dismiss employees.

General Rule: If the local chief executive fails/refuses to issue the authorization, the
vice-governor, city/municipal vice-mayor, or highest ranking sangguniang barangay member
has right to assume the powers, duties, and functions of the office on the 4th day of absence.

Exception: The power to appoint/ suspend/dismiss employees.

Office where Temporary Vacancy Occurs Who Temporarily Succeeds into Office
Governor Vice-Governor, automatically
Mayor Vice-Mayor, automatically
Punong Barangay Highest-ranking Sanggunian Member,
automatically
Local Chief Executive is travelling within the 1) The person designated in writing by the
country but is outside the territorial local chief executive
jurisdiction for a period not exceeding three 2) Vice-Governor, ViceMayor, or highest-
consecutive days ranking Sanggunian Member on the 4th
day of absence, if local chief executive fails
or refuses to designate a successor;

The creation of a temporary vacancy in the office of the Governor creates a

corresponding temporary vacancy in the office of the Vice Governor whenever the latter acts
as Governor by virtue of such temporary vacancy.
This event constitutes an inability on the part of the presiding officer (Vice Gov) to
preside during the SP sessions; which thus calls for the operation of the remedy set in ART 49
(b) of the LGC on the election of a temporary presiding officer.
[Gamboa v. Aguirre (1999)]

Termination of Temporary Incapacity

Upon submission to the sanggunian of a written declaration that he has reported back
to office. If the temporary incapacity is due to legal causes, he must also submit the necessary
documents showing that the legal causes no longer exist.

Leaves of Absence

Local Official LoA Approved by

Governors and mayors of highly-urbanized The President or his duly authorized
cities or independent component cities representative
Vice-Governors, City/Municipal Vice- The local chief executive
Mayors
City/Municipal Mayors of component cities The Governor
and municipalities
Sanggunian Panlalawigan, Panglungsod, The Vice-Governor or Vice Mayor
and Bayan Members and their employees
Punong Barangays The City/Municipal Mayor
Sanggunian Barangay Members The punong barangay

If the application for LoA is not acted upon within 5 working days after receipt, the
application is deemed approved. [Sec. 46, LGC]

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DISCIPLINE OF ELECTIVE OFFICIALS

GROUNDS OF DISCIPLINARY ACTION

1. Disloyalty to the Republic of the Philippines;

2. Culpable violation of the Constitution;
3. Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;
4. Commission of any offense involving moral turpitude or an offense punishable by at
least prision mayor;
5. Abuse of authority;
6. Unauthorized absence for fifteen (15) consecutive working days, except in the case of
members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang
bayan, and sangguniang barangay;
7. Application for, or acquisition of, foreign citizenship or residence or the status of an
immigrant of another country; and
8. Such other grounds as may be provided in this Code and other laws. [Sec. 60, LGC]

Any attempt to enforce and disapproved ordinance/resolution on local development

plans or public investment programs, shall be sufficient ground for the suspension or dismissal
of the officer/employee concerned. [Sec. 58, LGC]

JURISDICTION
ADMINISTRATIVE COMPLAINTS [Sec. 61, LGC]

By Whom: By means of a verified complaint; by any private individual or government

official or employee, or motu proprio by the Office of the President or the government agency
duly authorized by law; [AO 23, as amended]

WHERE FILED

Elective Local Official of Complaint filed at

Province, highly urbanized city, independent Office of the President
component city, or component city
Municipality Sangguniang Panglalawigan,
Barangay Sangguniang Panglungsod or Bayan

If penalty is removal

Must be by order of the proper court. The Sanggunians cannot order the removal of an
erring elective official from office, as the courts are exclusively vested with this power under
Sec. 60 of the LGC.

If the acts allegedly committed by the official are of a grave nature and, if found guilty,
would merit the penalty of removal from office, the case should be filed with the regional trial
court. If it is found that the penalty will be lower than removal, the court still retains its
jurisdiction. [Sangguniang Barangay of Don Mariano Marcos v. Martinez (2008)]

OMBUDSMAN JURISDICTION

Primary Jurisdiction Acts or omissions of a public officer or employee in cases

[Sec. 15, RA 6770] cognizable by the Sandiganbayan (Salary grade of 27 or higher)
Concurrent Jurisdiction Cases cognizable by regular courts and other investigative
[Sec. 61, LGC] agencies of the government;

The Ombudsman exercises concurrent jurisdiction over administrative cases against

elective officials occupying positions below salary grade 27. Even if filed in the Ombudsman
and the sanggunian concerned, identical complaints will not violate the rule against forum
shopping because the complaints are in the nature of an administrative case.

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In administrative cases involving the concurrent jurisdiction of two or more disciplining

authorities, the body in which the complaint is filed first, and which opts to take cognizance of
the case, acquires jurisdiction to the exclusion of other tribunals exercising concurrent
jurisdiction. [Office of the Ombudsman v. Rodriguez (2010)]

Who is salary grade 27 and above? [Sec. 443-486, LGC]

Municipalities Munipical Mayor

Cities City Mayor, Vice-Mayor, and Sanggunian Panglungsod members of highly
urbanized cities
Provinces Governor, Vice-Governor, and Sanggunian Panlalawigan members.

PREVENTIVE SUSPENSION
UNDER THE LGC

By whom imposed: Upon an elective local official of:

The President province, highly urbanized city, or independent component city;
The governor Component city, or municipality
The Mayor Barangay;

When Imposed: Any time the issues are joined, when the evidence of the guilt is strong
and that there is great probability that the continuance in office of the respondent could
influence the witnesses or threaten the safety/integrity of the records or evidence;

Rules on Length of Preventive Suspension

1. Not longer than 60 days;

2. Cannot be imposed 90 before an election; if imposed before said period but extends to
such, automatically lifted upon start of the 90 day period;
3. Cannot be suspended for more than 90 days within a single year on the same grounds
existing and known at the time of the first suspension;
4. Once lifted, official deemed reinstated without prejudice to the continuance of the
proceedings against him; [Sec. 62-63, LGC]

Effect/ Right of Pending Preventive Suspension (1) No salary paid during period of
suspension, but if subsequently exonerated and reinstated, he shall be paid full salary that
accrued during such suspension; Accorded full opportunity to appear and defend himself, to
confront witnesses, and require attendance of witnesses and production of evidence; [Sec. 64-
65,LGC]

UNDER THE OMBUDSMAN [SEC. 24, RA 6770]

Grounds for Preventive Suspension

The Ombudsman or his Deputy may preventively suspend any officer or employee
under his authority pending an investigation,

1. if in his judgment the evidence of guilt is strong, and

2. any of the following are present:
a. the charge against such officer or employee involves dishonesty, oppression
or grave misconduct or neglect in the performance of duty;
b. the charges would warrant removal from the service; or
c. the respondent's continued stay in office may prejudice the case filed against
him.

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Length of Preventive Suspension

Until the case is terminated by the Office of the Ombudsman but not more than six (6)
months,

1. without pay,
2. when the delay in the disposition of the case by the Ombudsman is due to the fault,
negligence or petition of the respondent, the period of such delay shall not be counted
in computing the period of suspension herein provided.

The suspension issued by the Ombudsman is not limited by the LGC. Unlike the
Sandiganbayan and the Office of the President/Sanggunians, the Ombudsman is endowed with
unique safeguards to ensure immunity from political pressure. [Miranda v. Sandiganbayan
(2005)]

Preventive Suspension under RA 6770 Preventive Suspension under the LGC

1. the evidence of guilt is strong; AND 1. there is reasonable ground to believe
2. that any of the ff. are present: that the respondent has committed the
3. the charge against the officer or act or acts complained of
employee should involve dishonesty, 2. the evidence of culpability is strong
oppression or grave misconduct or 3. the gravity of the offense so warrants; or
neglect in the performance of duty; 4. the continuance in office of the
4. the charges should warrant removal respondent could influence the
from office; or witnesses or pose a threat to the safety
5. the respondent’s continued stay in and integrity of the records and other
office would prejudice the case filed evidence
against him
Maximum period: 6 mos. Maximum period: 60 days

UNDER THE SANDIGANBAYAN

The suspension pendente lite imposed by the Sandiganbayan is mandatory under RA

3019 upon the filing of a valid information against the erring official. The purpose of such
suspension is not only to prevent the accused from hampering or influencing the investigation,
but also to allow the prosecution opportunity to gather evidence under conditions which would
ensure nonintervention and non-interference. [Bunye v. Escareal (1993)]

The suspension is not automatic, but requires the determination of the presence of a
valid information. Upon determination of validity, it is the court's ministerial duty to issue an
order of preventive suspension. The length of the suspension cannot be infinite nor
unreasonable, such is limited by the applicable law governing the accused. For elective local
officials, the LGC provides a limit of 60 days; for public officers under the Civil Service Code,
the limit is 90 days. [Segovia v. Sandiganbayan (1999)]

REMOVAL

An elective local official may be removed by order of the proper court. [Sec. 60, LGC]

The penalty of removal from office as a result of administrative investigation shall be

considered a bar to the candidacy of the respondent for any elective position. [Sec. 66(c), LGC]

Proper court order

Local legislative bodies and/or the Office of the President cannot validly impose the
penalty of dismissal or removal from service on erring local elective officials. It is clear from
Sec. 60 of LGC that an elective local official may be removed from office on the grounds
enumerated above only by order of the proper court.

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Art. 124 (b), Rule XIX of the Rules and Regulations Implementing the LGC, which
states that “an elective local official may be removed from office by order of the proper court or
the Disciplining Authority whichever first acquires jurisdiction to the exclusion of the other” is
void for being repugnant to Sec. 60, LGC.

But if it’s appointive, the OP may remove. [Pablico v. Villapando (2002)]

Petitioners contest the administrative action as being violative of Sec. 60, which
mandates that an elective local official may be removed from office only by order of the court,
since the duration of the suspension being 12-20 months exceeded their remaining terms. The
suspension was allegedly tantamount to a removal.

An administrative offense means every act or conduct or omission which amounts to,
or constitutes, any of the grounds for disciplinary action. The offenses for which suspension
may be imposed are enumerated in Section 60.

Assuming for the moment that the Office of the President is correct in its decisions in
each of the subject four administrative cases:

It committed no grave abuse of discretion in imposing the penalty of suspension,

although the aggregate thereof exceeded six months and the unexpired portion of the
petitioners’ term of office.

What is important is that the suspension imposed for each administrative offense did
not exceed six months. [Salalima v. Guingona (1996)]

ADMINISTRATIVE APPEAL

PERIOD FOR APPEAL. 30 days from reciept of the decision;

TO WHOM APPEALABLE

Decision from Appeal to

Sangguniang Panglungsod of component cities, and Sangguniang Panlalawigan
Sangguniang Bayan
Sangguniang Panlalawigan and Sangguniang Panglungsod of Office of the President
highly urbanized cities/independent component cities
Office of the President Final and executory;

EFFECT OF APPEAL

Shall not prevent a decision from being final and executory. Respondent is considered
to have been placed under preventive suspension during the pendency of the appeal in the
event he wins, and shall be paid his salary that accrued during the pendency of the appeal.

The phrase “decision is final and executory” means that the Sanggunian decision is
immediately executory, but still subject to appeal to the Office of the President or the
Sangguniang Panlalawigan respectively. [Don v. Lacsa (2007)]

DOCTRINE OF CONDONATION

A public official cannot be removed for administrative misconduct committed during a

prior term, since his reelection to office operates as a condonation of the officer's previous
misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule,
however, finds no application to criminal cases, as these are violations against the state itself.
[Aguinaldo v. Santos (1992)]

Subsequent re-election cannot be deemed a condonation if there was already a final

determination of his guilt before the re-election. [Reyes v. COMELEC (1996)]

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DISCIPLINE OF APPOINTIVE OFFICIALS

The power to discipline is specifically granted by the Revised Administrative Code to

heads of departments, agencies, and instrumentalities, provinces, and cities. The appointing
authority is generally the disciplinary authority.

DISCIPLINARY JURISDICTION

Except as otherwise provided, the local chief executive may impose:

1. Removal from service

2. Demotion in rank
3. Suspension for not more than 1 year without pay
a. (a) If less than 30 days, unappealable
b. (b) If 30 days or more, appealable to the CSC
4. Fine not exceeding 6 months pay
5. Reprimand
6. Otherwise discipline subordinate official and employees under his jurisdiction. [Sec. 87,
LGC]

RESIGNATION OF APPOINTIVE OFFICIALS

Although a resignation is not complete without an acceptance thereof by the proper

authority, an office may still be deemed relinquished through voluntary abandonment which
needs no acceptance.

On Resignation: Under established jurisprudence, resignations, in the absence of

statutory provisions as to whom they should be submitted, should be tendered to the appointing
person or body. (In the CAB, BP 337 did not provide to whom Sangguniang Bayan members
should submit their resignation letters). Private respondent, therefor, should have submitted his
letter of resignation to the President or to his alter ego, the DILG Secretary.

On Abandonment: Abandonment is “voluntary relinquishment of an office by the holder,

with the intention of terminating his possession and control thereof.” It is a species of
resignation. Two elements must concur:

1. Intention to abandon
2. Overt or external act by which the intention is carried into effect [Sangguniang Bayan
of San Andres v. CA (1998)]

Requisites to constitute resignation: Essential elements of abandonment:

1. Intention to relinquish a part of the term 1. Intent to abandon
2. Act of relinquishment 2. Overt act by which the intention is to be
3. Acceptance by the proper authority carried into effect

RECALL
REQUISITES [SECTION 69-75, LGC AND REPUBLIC ACT NO. 9244]

Ground for recall: Loss of confidence

Right given to: Registered voters of a LGU to which the local elective official subject to
recall belongs
Commencement of By a Petition of a registered voter supported by
recall process: 1. 25% of registered voters if LGU has population not more than
20,000
2. 20% of registered voters if LGU has voting population of 20,000
to 75,000. In no case shall petitioners be less than 5,000.
3. 15% of registered voters if LGU has voting population of 75,000
to 300,000. In no case shall petitioners be less than 15,000.
4. 10% of registered voters if LGU has voting population of more
than 300,000. In no case shall petitioners be less than 45,000.

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Election on recall 1. Barangay, city, or municipal officials: not later than 30 days
from completion
2. Provincial officials: not later than 45 days from completion
Effects to official Not allowed to resign while recall process is in progress Automatically
sought to be considered as candidate and is entitled to be voted upon.
recalled
Effectivity of recall Upon election and proclamation of a successor. If the official sought to
be recalled receive the highest number of votes, confidence in him
is affirmed and he shall continue in office.
Limitations on Local elective official may be subject of a recall election only once
Recall during his term of office for loss of confidence. No recall shall take
place within one year from the date of the official’s assumption to office
or one year immediately preceding a regular local election.

The law states “upon petition of at least 25% of registered voters” and not “signed by
25% of the registered voters.” The petition must be filed not by one person but at least by 25%
of the total number of registered voters.

While the initiatory recall petition may not yet contain the signatures of at least 25% of
the total number of registered voters, the petition must contain the names of at least 25% of the
total number of registered voters in whose behalf only one person may sign the petition in the
meantime. [Angobung v. COMELEC (1997)]

PROCEDURE [SEC. 70, LGC]

Petition by a registered voted in the LGU concerned to the

COMELEC, supported by the necessary amount of registered
voters.

Within 15 days from filing of the petition, the COMELEC must certify
the sufficiency of the required number of signatures. Failure to
obtain the required number shall result in the automatic nullification
of the petition.

Within 3 days from certification of sufficiency, COMELEC shall

1. provide the official subject of recall with a copy of the petition
2. cause its publication for 3 weeks in a national newspaper
and a local newspaper of general circulation
3. cause its posting for 10 to 20 days at conspicuous places

COMELEC verifies and authenticates the signatures.

COMELEC announces the acceptance of candidates for the recall

election, the official subject of the recall being automatically
included in the list.

COMELEC shall set the election within 30 days upon completion of

the above procedure, LGC in barangays, cities, and municipalities;
or within 45 days in provinces.

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LIMITATIONS ON RECALL

1. Any elective official may be the subject of recall election only once during his term of
office for loss of confidence.
2. No recall election shall take place within 1 year from the assumption of office of the
official concerned, nor within 1 year immediately preceding the date of a regular
election.

The phrase “regular local election” refers to an election where the office held by the
local elective official sought to be recalled will be contested and be filled by the electorate.
[Paras v. COMELEC (1996)]

Sec. 74 speaks of limitations on “recall” which, according to Sec. 69 is a power which

shall be exercised by the registered voters of a local government unit. Since the voters do not
exercise such right except in an election, it is clear that the initiation of recall proceedings is not
prohibited within the one-year period provided in paragraph (b).

The phrase “immediately preceding a regular local election” in Sec. 74(b) refers to the
day of regular election not the election period which is normally at least 45 days immediately
preceding the day of the election. [Claudio v. COMELEC (2000)]

TERM LIMITS

LENGTH OF TERM
FOR ELECTIVE LOCAL OFFICIALS, EXCEPT BARANGAY OFFICIALS

1. 3 years, starting from noon of June 30, 1992

2. all local officials first elected during the local elections immediately following the
ratification of the 1987 Constitution shall serve until noon of June 30, 1992.

FOR ELECTIVE BARANGAY OFFICIALS AND MEMBERS OF THE

SANGGUNIANG KABATAAN. 3 years, which shall begin after the regular election of
barangay officials on the second Monday of May 1994.

RA 9164: SYNCHRONIZED BARANGAY AND

SANGGUNIANG KABATAAN ELECTIONS

Term of office of barangay and sangguniang kabataan officials: 3 years

No barangay elective official shall serve for more than 3 consecutive terms in the same
position

1. Reckoned from the 1994 barangay elections

2. Voluntary renunciation of office for any length of time shall not be considered as an
interruption [Sec. 2]

RA 9006: FAIR ELECTION ACT (2001)

An elective official running for any office other than the one which he is holding in a
permanent capacity, is no longer considered ipso facto resigned from his office upon the filing
of his certificate of candidacy. [Sec. 14]

Sec. 14 of RA 9006 expressly repealed Sec. 67 of BP 881 or the Omnibus Election

Code which states that “any elective official, whether national or local, running for any office
other than the one which he is holding in a permanent capacity, except for President and Vice
President, shall be considered ipso facto resigned from his office upon the filing of his certificate
of candidacy.”

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Section 14 of RA 9006 did not repeal Section 66 of the Omnibus election Code, leaving
intact Section 66 thereof which imposes a limitation to appointive officials and considers them
ipso facto resigned from office upon filing of their certificate of candidacy.

By the repeal of Section 67, an elective official who runs for office other than the one
which he is holding is no longer considered ipso facto resigned therefrom upon filing his
certificate of candidacy. Elective officials continue in public office even as they campaign for
reelection or election for another elective position. On the other hand, Section 66 has been
retained; thus, the limitation on appointive officials remains - they are still considered ipso facto
resigned from their offices upon the filing of their certificates of candidacy.

Substantial distinctions clearly exist between elective officials and appointive officials.
The former occupy their office by virtue of the mandate of the electorate. They are elected to
an office for a definite term and may be removed therefrom only upon stringent conditions. On
the other hand, appointive officials hold their office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold their office in a permanent capacity and
are entitled to security of tenure while others serve at the pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under Section
55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative
Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the
civil service, are strictly prohibited from engaging in any partisan political activity or take part in
any election except to vote. Under the same provision, elective officials, or officers or
employees holding political offices, are obviously expressly allowed to take part in political and
electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the
legislators deemed it proper to treat these two classes of officials differently with respect to the
effect on their tenure in the office of the filing of the certificates of candidacy for any position
other than those occupied by them.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials
vis-a-vis appointive officials, is anchored upon material and significant distinctions and all the
persons belonging under the same classification are similarly treated, the equal protection
clause of the Constitution is, thus, not infringed. [Fariñas v. Executive Secretary (2003)]

LIMITATION OF CONSECUTIVE TERMS

No local elective official shall serve for more than three (3) consecutive terms in the
same position.

WHAT CONSTITUTES A TERM OF OFFICE

To recapitulate, the term limit for elective officials must be taken to refer to the right to
be elected as well as the right to serve in the same elective position. Consequently, it is not
enough that an individual has served three consecutive terms in an elective local office, he
must also have been elected to the same position for the same number of times before the
disqualification can apply.

2 Conditions for the application of the disqualification [Borja v. COMELEC (1998)]:

1. Elected for three consecutive times

2. Fully served three consecutive terms

RULES FOR “FULLY SERVED” TERM

1. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service.

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2. The conversion of a municipality to a city without interruption of the term of an elective

official is not considered an interruption in the continuity of service. [Latasa v.
COMELEC (2003)]
3. Election via a recall election does not satisfy a “fullyserved” term. [Lonzanida v.
COMELEC (1999)]
4. The imposition of preventive suspension should not be considered an interruption that
allows an elective official to stay in office for more than 3 terms. [Aldovino v. COMELEC
(2008)]

EFFECT OF JUDICIAL DECLARATION THAT

THE OFFICIAL’S PROCLAMATION IS VOID

His assumption of office in 1995 cannot be deemed to have been by reason of a valid
election. Also, he did not fully serve the 1995-98 mayoral term by reason of involuntary
relinquishment of office as he was ordered to vacate his post before the expiration of the term.
Although he served the greater portion of the said term, he should not be considered
disqualified because he did not serve three full consecutive terms. [Lonzanida v. COMELEC
(1999)]

EFFECT OF RECALL ELECTIONS

An official has served for three consecutive terms. He was elected in the recall election
for the term of his predecessor. There was no violation of the 3-term rule.

The Constitution does not require that the interruption be a full term of 3 years. The
clear intent of the framers of the law is that interruption for any length of time is sufficient to
break an elective local official’s continuity of service. [Socrates v. COMELEC (2002)]

EFFECT OF CONVERSION OF THE LGU

The mayor of a municipality held his post for three terms. During his last term, the
municipality became a city and he was declared hold-over mayor by the charter. The said mayor
should not be allowed to run again. If he were allowed to do so, he would have served the
same people for a term more than what is allowed by law [Latasa v. COMELEC (2003)]

EFFECT OF PREVENTIVE SUSPENSION

Strict adherence to the intent of the three-term limit rule demands that preventive
suspension should not be considered an interruption that allows an elective official’s stay in
office beyond three terms. A preventive suspension cannot simply be a term interruption
because the suspended official continues to stay in office although he is barred from exercising
the functions and prerogatives of the office within the suspension period. The best indicator of
the suspended official’s continuity in office is the absence of a permanent replacement and the
lack of the authority to appoint one since no vacancy exists.

To allow a preventively suspended elective official to run for a fourth and prohibited
term is to close our eyes to this reality and to allow a constitutional violation through sophistry
by equating the temporary inability to discharge the functions of office with the interruption of
term that the constitutional provision contemplates. [Aldovino v. COMELEC (2008)]

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SELF-ASSESSMENT QUESTIONS

1. What is the Constitutional significance of Section 1, Article X? How many autonomous

regions are allowed by the Constitution?
____________________________________________________________________
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2. Why did the Constitution retain the word barangay in spite of its links with the previous
regime?
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____________________________________________________________________
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3. What is the significance of this declaration of local autonomy?

____________________________________________________________________
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4. Are autonomy and decentralization the same?

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5. What is the present form of local government?

____________________________________________________________________
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6. What is the present State of the law on “initiative” and “recall?”

____________________________________________________________________
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____________________________________________________________________

7. What is the power of general supervision?

____________________________________________________________________
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8. What is the supervisory structure in the local government system?

____________________________________________________________________
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9. May the power of local government to raise revenues be limited by administrative

order? Why?
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10. What is the scope of taxing powers of local governments?

____________________________________________________________________
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11. What are the fund sources of local governments?

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12. What is the scope of the local government’s power to levy taxes, fees, and charges?
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13. What is the term of elective local officials?

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14. Due to the incumbent mayor’s death, the vice-mayor succeeds to the office of the
mayor by operation of law and serves the remainder of the mayor’s term. Is he
considered to have served a term in that office for the purpose of the three-term limit?
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15. Who appoints sectoral representatives in local legislative bodies? Explain.

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16. Which political units should participate in the plebiscite? Who should participate in a
plebiscite for the creation of a new province?
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17. How many kinds of cities are there?

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18. May a resident of “component cities whose charter prohibit their voters from voting for
provincial elective officials” run for a provincial elective office? Why?
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19. What is the reason behind the creation of autonomous regions?

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20. Are autonomous regions beyond the range of the Commander-in-Chief powers of the
President? Why?
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SYNTHESIS

Now that you have successfully studied and performed all the activities in this
compilation handout. Let us create a synthesis regarding Philippine Administrative Thought and
Institution emphasizing the legislative, executive, and judiciary as well as the local government.
Let us revisit the learning objectives and transform them into questions. If there is/are item/s
that your response is “NO”, please do not proceed in taking the post test. Instead, return to part
of the module that you still need enrichment and retake the activities that correspond to the
particular topic/s. You may proceed to the post test only if your responses to all the questions
for synthesizing are all “YES”.

1. Do you know the basic concepts in the Philippine administrative system with emphasis
on the principles and policies of the State?
2. Can you identify the concept of republicanism, separation of powers, checks and
balances, judicial review, and delegations of powers?
3. Are you able to compare and contrast the de jure and de facto governments?
4. Can you distinguish between the two houses of congress in their exercise of legislative
power?
5. Are you able to recognize the legislative privileges, inhibitions and disqualifications?
6. Can you explain the importance of quorum and how the congress votes on a certain
bill?
7. Can you describe the electoral tribunals and the commission on appointments?
8. Are you able to enumerate and expound the powers of congress?
9. Can you tell the similarities and differences between the office of the president and
vice-president with emphasis on their privileges, inhibition and disqualifications?
10. Do you know the powers of the president and the rules on succession?
11. Can you describe the judicial department particularly on the safeguards of judicial
independence, judicial restraints and appointments to the judiciary?
12. Are you able to recognize the structure of the supreme courts and identify the judicial
privileges?
13. Do you know the principles, organization, powers and functions attributes of a local
government units, including Regional (Autonomous/Administrative) officials and
employees; and
14. Have you attain understanding about the powers, duties and functions of elected and
appointive officials, and the grounds for disciplinary action under R. A. 7160 and
administrative order no. 23, and other related laws.

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REFERENCES

Bernas, Joaquin G. 2002. The 1987 Philippine Constitution: A Reviewer – Primer. Quezon
City: Rex Printing Company, Inc.

Cruz, Isagani A. 2002. Philippine Political Law. Sixth Edition. Quezon City: Central Lawbook
Publishing Co., Inc.

Dannug, Roman R. & Campanilla, Marlo B. 2010. Governance and the Government with
Philippine Constitution.

De Leon, Hector S. 2014. Textbook on the Philippine Constitution. Manila: Rex Book Store, Inc.

Heywood, Andrew. 2013. Politics. Fourth edition. London: Palgrave Macmillan.

Magstadt, Thomas M. 2013. Understanding Politics: Ideas, Institutions, and Issues. Tenth
edition (International student edition). Belmont, CA: Wadsworth.

Manguera Aries S. Constitutional Law I. Ateneo de Manila University School of Law: Fraternal
Order of UTOPIA.

Nachura, Antonio E.B. 2009. Outline Reviewer in Political Law. Quezon City: VJ Graphic Arts,
Inc.

University of the Philippines College of Law - BAR Operations Commission. 2013. Political
Law. Quezon City: SIKLAB.

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