Bernas - The 1987 Constitution (1) - 675-819

ARTICLE VI
THE LEGISLATIVE DEPARTMENT
SECTION 1 . THE LEGISLATIVE POWER SHALL BE VESTED IN THE

CONGRESS OF THE PHILIPPINES WHICH SHALL CONSIST OF A SENATE
AND A HOUSE OF REPRESENTATIVES, EXCEPT TO THE EXTENT RESERVED
TO THE PEOPLE BY THE PROVISION ON INITIATIVE AND REFERENDUM.
1. A bicameral body.
Bicameralism is not a stranger to Philippine constitutionalism.

The Jones L a w provided for a bicameral legislature. The 1935 Con-
stitution initially departed from the bicameral model of the Jones Law
and adopted a unicameral body, the National Assembly. By subsequent
amendment, however, the National Assembly gave way to a bicameral
Congress consisting of a Senate, elected by the nation at large, and a
House of Representatives elected by district.
T h e original 1973 Constitution reverted to unicameralism by

providing for a National Assembly. But before the National Assembly
could be activated, the Constitution was amended in 1976 principally
to provide for a unicameral interim Batasang Pambansa which con-
vened in 1978. A subsequent constitutional revision in 1981 created the
Batasang Pambansa, still a unicameral body. The Batasang Pambansa
was overtaken by the February 1986 Revolution and was abolished by
President Aquino's Proclamation N o . 3 of March 2 5 , 1 9 8 6 .
The supposed advantages of unicameralism were simplicity of or-

ganization resulting in economy and efficiency, facility in pinpointing
responsibility for legislation, avoidance of duplication, and strengthen-
ing of the legislature in relation to the executive. It was also hoped that
a unicameral assembly would be a more effective training ground for
675
676 THE 1987 CONSTITUTION Sec. 1
OF THE REPUBLIC OF THE PHILIPPINES
national leaders. These were the arguments which persuaded the 197!
Constitutional Convention to adopt a unicameral legislative body.'
The debate over unicameralism and bicameralism resurfaced dur-
ing the deliberations of the 1986 Constitutional Commission. A free-
wheeling debate on the subject opened the deliberations on the article
on the legislative department and no other matter was taken up until
the subject of bicameralism or unicameralism was settled. The argu-
ments for bicameralism were the traditional ones which say that (1) an
upper house is a body that looks at problems from the national perspec-
tive and thus serves as a check on the parochial tendency of a body
elected by districts, (2) bicameralism allows for a more careful study
of legislation, and (3) bicameralism is less vulnerable to attempts of the
executive to control the legislature. Unicameralism was defended on
the traditional grounds of simplicity and economy, and, drawing from
the recent experience with "people power," on the ground of greater
responsiveness to the needs of the masses because representatives, un-
like senators without a fixed constituency, are forced to interact more
intensely with their limited and clearly identifiable constituencies. But
2
the end result was a vote of 23-22 in favor of a bicameral Congress.
2. Nature of legislative power.
Legislative power is the authority to m a k e laws and to alter and

repeal them. As vested by the Constitution in Congress, it is a deriva-
tive and delegated power. "The Constitution is the work or will of the
people themselves, in their original, sovereign, and unlimited capacity.
Law is the work or will of the legislature in their derivative and sub-
ordinate capacity. The one is the work of the Creator, and the other of
the creature. The constitution fixes limits to the exercise of legislative
authority, and prescribes the orbit within which it must m o v e . " '
Unlike the Constitution of the United States which contains only

a grant of enumerated legislative powers to the Federal Congress, the
1987 Constitution, like the 1973 and 1935 Constitutions, embodies a
grant of plenary legislative power to the Philippine legislature. T h u s ,
"any power, deemed to be legislative by usage and tradition, is nec-
'Constitutional Convention Session of July 12,1972.

The debates may be found in II RECORD 47-69.
'Vanhome's Lessee v. Dorrance, 2 Dall, 304, 308 (U.S. 1795).
Sec. 1 ART. VI - THE LEGISLATIVE DEPARTMENT 677
essarily possessed by Congress, unless the organic act has lodged it

4
elsewhere." A n d in fact, Section 1 of the 1987 organic law has also
given legislative power to the electorate through the exercise of "initia-
tive and referendum" as set down in Section 32.
As corollary to this plenary grant of legislative power, it follows

that the Congress alone can m a k e laws and Congress may not delegate
its law making power. This is the principle of non-delegability of legis-
lative power. Its various ramifications will be examined at length later.
Another corollary is that Congress cannot pass irrepealable laws.

5
Judge Cooley explained the logic of this corollary thus:
To say that the legislature may pass irrepealable laws, is to

say that it may alter the very constitution from which it derives
its authority; since, in so far as one legislature could bind a sub-
sequent one by its enactments, it could in the same degree reduce
the legislative power of its successors; and the process might be
repeated, until, one by one, the subject of legislation would be ex-
cluded altogether from their control, and the constitutional provi-
sion that the legislative power shall be vested in two houses would
be to a greater or less degree rendered ineffectual.
3. Separation of p o w e r s .
In the presidential system introduced by the 1935 Constitution

which allocated the three great powers of government — legislative,
executive, and judicial — among three distinct departments, one basic
corollary was the principle of separation of powers. This principle oper-
ated as an implicit limitation on legislative power as on the two other
powers. Under the parliamentary system of the 1973 Constitution the
principle remained applicable as between the judiciary on the one hand
and the legislature and the executive department on the other; how-
ever, as between the legislature and the executive department, coop-
eration and not separation was the operative principle. When the 1973
Constitution was revised in 1981 to revert to the presidential system,
separation of powers as between the legislature and the executive was
not restored largely because Amendment 6 of 1976, which gave full
4
Vera v. Avelino, 77 Phil. 1 9 2 , 2 1 2 ( 1 9 4 6 ) .
'I C O N S T I T U T I O N A L L I M I T A T I O N S 2 4 6 - 7 , cited in I TAKADA & CARREON, POLITICAL
LAW OF THE PHILIPPINES 2 4 2 - 3 ( 1 9 6 2 ) .
6
legislative power to the President, was retained and thereby gave to the
President dominance over the Batasang Pambansa. The 1987 Constitu-
tion has restored 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 the oth-
ers. But the separation is not total. The system allows for "checks and
balances" the net effect of which being that, in general, no one depart-
ment is able to act without the cooperation of at least one of the other
departments. Thus, for instance, legislation needs the final approval of
the President; the President cannot act against laws passed by Congress
and must obtain the concurrence of Congress to complete certain sig-
nificant acts; money can be released from the treasury only by authority
of Congress. The Supreme Court can declare acts of Congress or of the
President unconstitutional.
The purpose of separation of powers and "checks and b a l a n c e s "

is to prevent concentration of powers in one department and thereby
to avoid tyranny. But the price paid for the insurance against tyranny
is the risk of a degree of inefficiency and even the danger of gridlock.
As Justice Brandeis put it, "the doctrine of separation of powers was
adopted ... not to promote efficiency but to preclude the exercise of
arbitrary power. The purpose was not to avoid friction, but, by means of
the inevitable friction incident tot he distribution of governmental p o w -
7
ers among the three departments, to save the people from autocracy."
The danger of tyranny arising from the concentration of powers

in one man was realized during the dark days of martial law. But the
danger of inefficiency and gridlock can also be intense w h e n the holders
of power are driven by self-interest.
4. Limits on legislative power.
Speaking of the powers of the legislative department of govern-

ments under the American flag, an early case decided by the Philippine
8
Supreme Court said:
'For a discussion of legislative power under Amendment 6 under the 1973 Constitution, see
BERNAS, PHILIPPINE CONSTITUTIONAL LAW (1984) 540-543.
"Myers v. United States, 272 U.S. 52,293 (1926).
"Government v. Springer, 50 Phil. 259, 309 (1927).
Sec. 1 ART. VI - T H E LEGISLATIVE D E P A R T M E N T 679
Someone has said that the powers of the legislative depart-

ment of the Government, like the boundaries of the ocean, are un-
limited. In constitutional governments, however, as well as gov-
ernments acting under delegated authority, the powers of each of
the departments of the same are limited and confined within the
four walls of the constitution or the charter, and each department
can only exercise such powers as are expressly given and such
other powers as are necessarily implied from the given powers.
The Constitution is the shore of legislative authority against which
the waves of legislative enactment may dash, but over which it
cannot leap.
Although the original 1973 Constitution adopted a parliamentary

form of government, it did not adopt the English principle of parlia-
mentary sovereignty under which "Parliament can do everything but
9
make a w o m a n a m a n , and a man a w o m a n . " Neither did the revision
of 1981 nor the 1987 Constitution. T h u s , legislative power remains a
limited power after the manner of the American constitutional system
embodied in the 1935 Constitution. It is subject to substantive limita-
tions which circumscribe both the exercise of the power itself and the
allowable subjects of legislation. The substantive limitations are chiefly
found in the Bill of Rights. And legislative power is subject to proce-
dural limitations prescribing the manner of passing bills and the form
they should take.
5. The holders of legislative power: Congress; people

through initiative and referendum; President in emergency.
In republican constitutional theory, the original legislative power

belongs to the people w h o , through the Constitution, confer derivative
legislative power on the legislature. But the grant of national legislative
power to Congress under the 1987 Constitution is not exclusive. Section
1 says that legislative power is vested in Congress "except to the extent
reserved to the people by the provision on initiative and referendum."
This new provision derives from the lesson drawn from past experience
whereby the people have realized that legislative assemblies cannot al-
ways be trusted to do what is best for the people. Hence, the people
have reserved to themselves the authority to correct legislative mistakes
"DE LOLME, THE CONSTITUTION OF ENGLAND 102 (1853), cited in SCHAWRTZ, THE POWERS OF
GOVERNMENT 88 (1963).
or to supplement legislative inadequacies whether on the national level

or on the level of local legislation. Section 32 elaborates on this saying:
"The Congress shall, as early as possible, provide for a system of initia-
tive and referendum, and the exceptions therefrom, whereby the people
can directly propose and enact laws or approve or reject any act or law
or part thereof passed by the Congress or local legislative body after the
registration of a petition therefor signed by at least ten per centum of
the total number of registered voters, of which every legislative district
must be represented by at least three per centum of the registered vot-
ers thereof." The implementing legislation is Republic Act N o . 6735
entitled "An Act Providing for a System of Initiative and Referendum
10
and Appropriating Funds Therefore."
The power of initiative and referendum is thus 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."
Through Section 1, in connection with Section 32, the people have, in
addition to their constituent power, reserved for themselves ordinary
legislative power through "initiative and referendum." T h e purpose is
to institutionalize "people p o w e r " by providing for an instrument which
can be used should the legislature show itself indifferent to the needs
of the people."
The operationalization of initiative and referendum has been left

by the Constitution to Congress. Although in the initial discussion of
the subject, the sponsors carefully avoided describing the c o m m a n d to
2
Congress as merely directory,' the c o m m a n d in fact leaves to Congress
the determination of the proper time for implementation. A series of rec-
ommendations to compel Congress to pass an implementing law, first,
"within ninety days after its initial session," and then, "immediately,"
3
eventually took the present shape of "as early as possible."' Explaining
the meaning of the phrase Commissioner Gascon said: "I would like all
the Commissioners to seriously consider this because the whole point
here is that we should assure the people that this section providing for
initiative and referendum will be [implemented] as soon as possible,
"The first case to come under this implementing law involved local "initiative and referen-
dum" was Garcia v. Commission on Elections, 237 SCRA 279 (1994)
"II RECORD 45.
"Id. at 80.
"Id. at 196-198.
and it will not remain simply beautiful words in this Constitution, but
14
will become meaningful to them." The phrase was approved by a vote
of 18 to 11.
Other matters of detail were also left to Congress. As Commis-

sioner Davide put it, "We ... believe t h a t . . . the law itself, which will be
enacted by the [Congress], will provide for everything in respect to the
15
full implementation of the two concepts." Everything, that is, except
those which have been fixed by the Constitution itself. T h u s , Section 32
prescribes that the m i n i m u m percentage of approval required is "ten per
centum of the total n u m b e r of registered voters" throughout the nation
and "three per centum of the registered voters" of every legislative dis-
trict throughout the land. Both percentage requirements in proportion
to the number of voters found in registration lists should be satisfied.
It should also be noted that, whereas the legislative power of Con-

gress is plenary, the scope of the legislative power which the people may
exercise through initiative and referendum is, according to Section 32,
subject to exceptions which Congress may impose. But can Congress
give to the President veto power over laws passed through initiative and
referendum? This question was actually raised on the floor by Com-
missioner Suarez. Cornmissioner Davide, Chairman of the sponsoring
committee, replied, as quoted above, that Congress would "provide for
everything in respect to the full implementation of the two concepts."
What this means is that the President can have a role in "initiative and
referendum" only if he is given a role by law.
T h e emergency legislative power of the President will be dis-

cussed later.
6. The Once and Former Legislative power of President

Marcos and President Aquino.
During the period from 1972 to 1987 Philippine law did recognize
legislative power lodged in the presidency. The 1987 Constitution has
not disturbed this fact and recognizes legitimate exercise of such power
as productive of laws whose effectivity continue until repealed or until
found to be inconsistent with the Constitution.
at 198.
"•Id.
"W.at91.
Shortly after the imposition of martial law and the birth of the
6
1973 Constitution, the Supreme Court, in Aquino, Jr. v. COMELEC:
did recognize legislative power in the President as flowing from his
martial law powers and from Article XVII, Section 3(2) of the 1973
Constitution. This was recognized as extraordinary legislative power
given to the President to enable him to cope with an extraordinary situ-
ation especially at a time when there was no operating legislative body.
In 1976, this extraordinary power of the President was brought to clear-
er relief by Amendment N o . 6 which read:
Whenever in the judgment of the President (Prime Minister),

there exists a grave emergency or a threat or imminence thereof, or
whenever the interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders or
letters of instruction, which shall form part of the law of the land.
After the revision of 1981 was ratified, the continuing effectivity

17
of Amendment 6 was challenged in Legaspi v. Minister of Finance on
the arguments, first, that the 1981 revision had vested legislative power
solely in the Batasang Pambansa, and, second, that the powers granted
by Amendment 6 had not been reconfirmed in Article VII on the presi-
dency, and third, that the powers mentioned in A m e n d m e n t 6 had been
given to a "President (Prime Minister)" which the President after the
1981 revision no longer w a s .
The argument from the hybrid term "President (Prime Minister)"

was easily answered by alluding to the historical circumstance under
which the amendment was formulated. T h e Court, speaking through
Justice Barredo, said that the obvious intent of A m e n d m e n t 6 was to
grant legislative power to the person in w h o m was vested the totality of
18
the executive power. Barredo said:
As to the parenthetical mention therein of the Prime Minis-

ter, We are of the considered view that it was necessary to do so
because under the governmental system then, which was markedly
Prime Ministerial, the substantive executive powers were vested
"62 SCRA 275 (January 31,1975); B E R N A S , PHILIPPINE CONSTITUTIONAL LAW (1984) 513-515.
I7
115 SCRA 418 (July 24, 1982).
"Id. at 441-2.
in the Prime Minister, the President being merely the symbolical

and ceremonial head of state, and the two positions were being
held by one and the same person. In other words, the power was
contemplated to be conferred upon whomsoever was vested the
executive power, and that is as it should be, for, to reiterate, from
the very nature of the power itself, the authority to legislate should
be allowed, if at all, to be shared only with one in the political
department directly deriving power from the vote of the people.
W h e n the Legaspi case arose in 1982, the operative legislative

body was still the interim Batasang Pambansa created in 1976. But the
President also possessed legislative power by virtue of Amendment 6
of the 1973 Constitution. (The 1981 revisions, while already operative,
had decreed that the elections for the regular Batasang Pambansa would
be in 1984.) It was obvious, therefore, that the legislative power given
by A m e n d m e n t 6, as the text itself said, was concurrent with that of the
interim Batasang P a m b a n s a . " Was it also meant to be concurrent with
the legislative power of the regular Batasang Pambansa?
T h e Court affirmed that it was. Justice Barredo developed his

argument from the intent to create an adequate instrument for coping
with emergency situations. He pointed out that the President could cope
with emergency either by means of emergency powers delegated by
the legislature under Article VIII, Section 15 (1973), or by his power
as Commander-in-Chief of the armed forces, principally by his martial
law p o w e r s , given in Article VII, Section 9 (1973). Both of these, how-
ever, had been thought to be inadequate: the first, because it needed to
be activated by prior legislative action, and the second, because martial
law was generally unwelcome anywhere in the world. Hence, Amend-
ment 6, Barredo argued, was formulated to give to the President the
capacity to respond to emergency without having to appeal to the legis-
20
lature and without having to resort to odious martial rule.
Barredo also added, to satisfy doubting Thomases, that the intent

of Amendment 6 was not to set up a dictatorship: "Any tinge or tint of
authoritarianism in it is not there for the sake of the ideology of dicta-
torship or authoritarian itself. Such hue of a one-man authoritarianism it
somehow connotes is there only because it is so dictated by paramount
n
ld. at 432.
M
W. at 433-7.
considerations that are needed in order to safeguard the very existence

21
and integrity of the nation and all that it stands for."
Shakespeare might remark that the Justice did protest too much!
But it was perhaps understandable that Barredo should, because he
spoke as one who was privy to "the events and deliberations" that cul-
22
minated in the 1976 amendments. For this reason, although what he
said about the relation of Amendment 6 to the regular Batasang Pam-
bansa was obiter dictum, his view on the matter carried great weight.
The view also gained added weight from the concurring opinion of Jus-
tice Abad Santos who as Secretary of Justice had participated in the
23
drafting of the 1976 amendments.
It is thus clear that the 1973 Constitution provided for two con-
current legislative agencies: the Batasang Pambansa and the President.
The legislative power of the Batasan was ordinary, while the legislative
power of the President was extraordinary. T h e extraordinariness of the
President's power, however, did not lie solely in that it was a tool for
coping with emergency; it also lay in the distinct advantage it gave to
the President over the legislature. It not only enabled h i m to supply
for the legislature when the latter, in the j u d g m e n t of the President,
"fail[ed] or [was] unable to act on any matter" that may need immedi-
ate action, but it also enabled the President to u n d o what the legislature
might have done not to his satisfaction. Moreover, he could legislate,
or repeal or amend old legislation unhampered by any need for debate
or three readings or by the other formal limitations that are imposed on
the legislative body.
Immediately after the February 1986 revolution, President Cora-

zon C. Aquino assumed revolutionary legislative p o w e r and, on M a r c h
2 5 , 1 9 8 6 , issued Proclamation N o . 3, the Provisional F r e e d o m Constitu-
tion, whose Article I, Section 3 , abolished the Batasang P a m b a n s a and
whose Article II, Section 1, vested legislative power in the President
"[u]ntil a legislature is elected and convened under a new Constitution."
Section 6 of the 1987 Transitory Provisions in turn said: " T h e incum-
bent President [Corazon Aquino] shall continue to exercise legislative
2
7d.at433.
"See also his concurring opinion in Sanidad v. COMELEC, 73 SCRA 330,430 (October
12, 1976).
"115 SCRA at 444.
powers until the first Congress is convened." T h u s , the only difference

between the scope of the legislative powers of President Aquino and
that of President Marcos was that, whereas Mr. Marcos exercised the
power concurrently first with the interim Batasang Pambansa and sub-
sequently with the regular Batasang Pambansa, President Aquino exer-
cised it alone. She lost it on July 2 6 , 1987. But she lost it with a bang
signing a batch of forty-two legislative acts on the eve of the convening
of the First Congress.
7. Non-delegability of legislative power.
In his commentary on the Constitution of the United States, Cor-

2
win wrote thus: ''
At least three distinct ideas have contributed to the develop-

ment of the principle that legislative power cannot be delegated.
One is the doctrine of separation of powers: Why go to the trouble
of separating the three powers of government if they can straight-
way remerge on their own motion? The second is the concept of
due process of law, which precludes the transfer of regulatory
functions to private persons. Lastly, there is the maxim of agency
"Delegata potestas non potest delegari" which John Locke bor-
rowed and formulated as a dogma of political science. ... Chief
Justice Taft offered the following explanation of the origin and
limitations of this idea as a postulate of constitutional law: "The
well-known maxim 'delegata potestas non potest delegari' ap-
plicable to the law of agency in the general common law, is well
understood and has had wider application in the construction of
our Federal and State Constitutions than it has in private law. ...
The Federal Constitution and State Constitutions of this country
divide the governmental power into three branches.... In carrying
out that constitutional division ... it is a breach of the National
fundamental law if Congress gives up its legislative power and
transfers it to the President, or to the Judicial branch, or if by law it
attempts to invest itself or its members with either executive power
or judicial power. This is not to say that the three branches are not
co-ordinate parts of one government and that each in the field of
its duties may not invoke the action of the two other branches in so
far as the action invoked shall not be an assumption of the constitu-
tional field of action of another branch. In determining what it may
" C O R W I N , CONSTITUTION OF THE UNITED STATES OF AMERICA, 95 ( 1 9 6 4 ) .

do in seeking assistance from another branch, the extent and char-

acter of that assistance must be fixed according to common sense
and the inherent necessities of the governmental coordination."
In spite of the principle of non-delegability of legislative pow-

er, it is common knowledge that numerous statutes have been passed
creating administrative agencies and authorizing them to exercise vast
regulatory powers. The rules and regulations they issue have the force
of law. This phenomenon has been justified by two different theories.
The first theory is that a non-legislative body may be authorized to "fill
up the details" of a statute. Chief Justice Marshall wrote in 1825: "It
will not be contended, that Congress can delegate to the courts, or to
any other tribunal, powers which are strictly and exclusively legislative.
But Congress may certainly delegate to others powers which the leg-
islature may rightfully exercise itself. ... T h e line has not been exactly
drawn which separate those important subjects, which must be entirely
regulated by the legislature itself, from those of less interest, in which a
general provision may be m a d e , and power given to those w h o are to act
25
under such general provisions, to fill up the details." T h e other theory,
also enunciated by Marshall, is that Congress m a y pass contingent leg-
islation, that is, legislation which leaves to another body the business of
26
ascertaining the facts necessary to bring the law into actual operation.
Under both of the above theories, the function performed by the

administrative agency is not law-making but law-execution. In order
to ensure that the power delegated by the legislature is not law-making
power, the statute making the delegation must
(a) be complete in itself — if must set forth therein the

policy to be carried out or implemented by the delegate ... and (b)
fix a standard — the limits of which are sufficiently determinate or
determinable — to which the delegate must conform in the perfor-
mance of his functions. ... Indeed, without a statutory declaration
of policy, the delegate would in effect, make or formulate such
policy, which is the essence of every law; and, without the afore-
mentioned standard, there would be no means to determine, with
reasonable certainty, whether the delegate has acted within or be-
yond the scope of his authority. Hence, he could thereby arrogate
upon himself the power not only to make law, but, also, — and this
"Wayman v. Southward, 10 Wheat 1,42 (1825).

"The Brig Aurora, 7 Cr. 382 (1813).
is worse — to unmake it, by adopting measures inconsistent with

the end sought to be attained by the Act of Congress
Provided the above requirements of completeness and sufficiency

of standards are satisfied, the regulations passed by an administrative
body pursuant to the delegation m a d e by the statute are just as bind-
ing as if the regulation had been written in the original statute itself. If,
however, these requirements are not satisfied, the regulation will not be
allowed to affect private rights.
The rationale behind allowing administrative agencies to promul-

gate supplementary rules was well expressed in Philippine Internation-
2
al Trading Corporation v. Angeles. * "[A]s a result of the growing com-
plexity of the modern society, it has b e c o m e necessary to create more
and more administrative bodies to help in the regulation of its ramified
activities. Specialized in the particular field assigned to them, they can
deal with the problems thereof with more expertise and dispatch than
can be expected from the legislature or the courts of justice."
29
Compahia General de Tabacos v. Board of Public Utility is an
instance of early jurisprudence on the subject. Relying on Act N o . 2307
the Board of Public Utility Commissioners issued the following order:
"The respondent is heretofore ordered to present annually on or before
March first of each year a detailed report of finances and operations of
such vessels as are operated by it as a c o m m o n carrier within the Phil-
ippine Islands, in the form and containing the matters indicated in the
30
model of annual report." The Board relied on the following provision
of Act N o . 2307:
Section 16. The Board shall have power, after hearing, upon
notice, by order in writing, to require every public utility as herein
defined:
(b) To furnish annually a detailed report of finances and

operations, in such form and containing such matters as the Board
may from time to time prescribe.
"Pelaez v. Auditor General, 15 SCRA 569,576-7 (1965).

"CR. No. 108461, October 21, 1996, 263 SCRA 421, 444-45 citing Solid Homes Inc. v
Payawal, 177 SCRA 72 (1989).
"34 Phil. 136(1916).
M
W.at 136-37.
Declaring the statute to be an unlawful delegation of legislative

3
power, the Supreme Court said: '
As is apparent at a glance the provision conferring authority

on the board is very general. It is also very comprehensive. It calls
for a detailed report of the finances and operations of the petition-
ing steamship company. That, it would seem, covers substantially
everything; for there is very little to a steamship company but its
finances and operations. It would have been practically the same
if the statute had given the Board of Public Utility Commissioners
power "to require every public utility to furnish annually a de-
tailed report." Such provision would have been but little broader
and little less general than the present provision. It is clear that a
statute which authorizes a Board of Public Utility Commissioners
to require detailed reports from public utilities, leaving the nature
of the report, the contents thereof, the general lines which it shall
follow, the principle upon which it shall proceed, indeed, all other
matters whatsoever, to the exclusive discretion of the board, is not
expressing its own will or the will of the State with respect to the
public utilities to which it refers. Such a provision does not de-
clare, or set out, or indicate what information the State requires,
what is valuable to it, what it needs in order to impose correct and
just taxation, supervision or control, or the facts which the State
must have in order to deal justly and equitably with such public
utilities and to require them to deal justly and equitably with the
State. The Legislature seems simply to have authorized the Board
of Public Utility Commissioners to require what information the
board wants. It would seem that the Legislature, by the provision
in question, delegated to the Board of Public Utility Commission-
ers all of its powers over a given subject-matter in a manner almost
absolute, and without laying down a rule or even making a sugges-
tion by which that power is to be directed, guided or applied.
Similarly, in declaring a price control act unconstitutional in 1919,

32
the Supreme Court analyzed the statute thus:
The question here involves an analysis and construction of

Act No. 2868, in so far as it authorizes the Governor-General to fix
the price at which rice should be sold. It will be noted that section 1
authorizes the Governor-General, with the consent of the Council
3l
W.at 138.
"United States v. Ang Tang Ho, 43 Phil. 1,5-6 (1922).
of State, for any cause resulting in an extraordinary rise in the price

of palay, rice or com, to issue and promulgate temporary rules and
emergency measures for carrying out the purposes of the Act. By
its very terms, the promulgation of temporary rules and emergency
measures is left to the discretion of the Governor-General. The
legislature does not undertake to specify or define under what con-
ditions or for what reasons the Governor-General shall issue the
proclamation, but says that it may be issued "for any cause," and
leaves the question as to what is "any cause" to the discretion of
the Governor-General. The Act also says: "For any cause, condi-
tions arise resulting in an extraordinary rise in the price of palay,
rice or com." The Legislature does not specify or define what is
"an extraordinary rise." That is also left to the discretion of the
Governor-General. The Act also says that the Governor-General,
"with the consent of the Council of State," is authorized to issue
and promulgate "temporary rules and emergency measures for car-
rying out the purposes of this Act." It does not specify or define
what is a temporary rule or an emergency measure, or how long
such temporary rules or emergency measures shall remain in force
and effect, or when they shall take effect. That is to say, the Leg-
islature itself has not in any manner specified or defined any basis
for the order, but has left it to the sole judgment and discretion of
the Governor-General to say what is or what is not "a cause," and
what is or what is not "an extraordinary rise in the price of rice,"
and as to what is a temporary rule or an emergency measure for the
carrying out of the purposes of the Act. Under this state of facts,
if the law is valid and the Governor-General issues a proclama-
tion fixing the minimum price at which rice should be sold, any
dealer who, with or without notice, sells rice at a higher price, is
a criminal. There may not have been cause, and the price may not
have been extraordinary, and there may not have been an emergen-
cy, but, if the Governor-General found the existence of such facts
and issued a proclamation, and rice is sold at any higher price, the
seller commits a crime.
31
In People v. Rosenthal following the more generous view taken
1
in Schecter Corporation v. United States ' the Supreme Court found
the broad standard of "public interest" a sufficient guide for the Insular
Treasurer in determining the cancellation of a permit to engage in the
"68 Phil. 328 (1939).

"295 U.S. 495 (1935).
sale of speculative securities. However, the standard of "public interest"

was not viewed standing alone. It was found sufficient only in the con-
text of the purpose of the law, which was to protect the public against
speculative schemes having "no more basis than so many feet of blue
sky," and in the context of the other requirements which the act itself
35
imposed. The standard therefore could be found in the totality of the
tenor of law. Acknowledging the difficulty of finding the limits within
which administrative agencies may be allowed to operate, the Court
said that "the safest is to decide each case according to its peculiar envi-
ronment, having in mind the wholesome legislative purpose intended to
be achieved." T h u s , in Araneta v. Gatmaitan, the Supreme Court had
36 11
no difficulty in upholding, in the context of the entire law, the prohibi-

tion of the use of trawls in San Miguel Bay pursuant to a statute which
authorized the Secretary of Agriculture to impose restrictions "on the
use of any fishing net or fishing device for the protection of fish fry or
fish eggs."
Since rules and regulations promulgated by administrative agen-

cies pursuant to a valid delegating statute have the force of law, may
their violation be punished as a penal offense? They may. Jurispru-
dence, however, has promulgated three rules regarding the matter. For
an administrative regulation to have the force of penal law it is neces-
sary (1) that such violation be m a d e a crime by the delegating statute
38 39
itself, (2) that the penalty be provided by the statute itself, and (3)
40
that the regulation be published. On this principle and on due pro-
cess grounds, a law which prescribed a penalty "in the discretion of
the court" was declared invalid. "It is not for the courts to fix the term
of imprisonment where no points of reference have been provided by
the legislature. What valid delegation presupposes and sanctions is an
exercise of discretion to fix the length of service which must be served
within specific or designated limits provided by law, the absence of
35
68 Phil. 341-43.
*M. at 343.
"101 Phil. 328 (1957).
"United States v. Grimaud, 220 U.S. 506 (1911).
"Steuart & Bro. v. Bowles, 322 U.S. 398,404 (1944). See also United States v. Banias, 11
Phil. 327 (1908); United States v. Panlilio, 28 Phil. 608 (1914).
"People v. Que Po Lay, 94 Phil. 640,642 (1954).
Sec. 1 ART. V I - THE LEGISLATIVE DEPARTMENT 691
which designated limits will constitute such exercise as undue delega-

41
tion, if not an outright intrusion or assumption, of legislative power."
8. D e v e l o p m e n t s in j u r i s p r u d e n c e .
On the eve of the Constitutional Convention of 1971, the doctrine

on non-delegability was already well established and the trend was to-
wards a liberal recognition of the p h e n o m e n o n of "subordinate legisla-
2
tion." As the Court s u m m e d it up in Edu v. Ericta:"
What cannot be delegated is the authority under the Con-

stitution to make laws and to alter and repeal them; the test is the
completeness of the statute in all its term and provisions when it
leaves the hands of the legislature. To determine whether or not
there is an undue delegation of legislative power, the inquiry must
be directed to the scope and definiteness of the measure enacted.
The legislature does not abdicate its function when it describes
what job must be done, who is to do it, and what is the scope of
his authority. For a complex economy, that may indeed be the only
way in which legislative process can go forward.
To avoid the taint Of unlawful delegation, there must be a

standard, which implies at the very least that the legislature itself
determines matters of principle and lays down fundamental policy.
The standard may be either express or implied ... from the

policy and purpose of the act considered as a whole.
The doctrine did not change under the 1973 Constitution. Thus,
a regulation passed by the Secretary of Agriculture penalizing electro-
fishing was declared unconstitutional since electro-fishing was not one
of the forms of fishing punishable under the Fisheries Act under which
43
the Secretary purported to act. In fact, a later Presidential Decree add-
ed electro-fishing to the list of punishable forms of fishing, acknowl-
edging thereby that it was not punishable under prior existing law.
Moreover, the doctrine on non-delegation was applied to legislation by
u
the President. Thus, it was applied in Agustin v. Edu which upheld a
traffic regulation requiring the use of "early warning devices" and in
" P e o p l e v . D a c u y c u y , 173 S C R A 9 0 (1989).

4 2
3 5 S C R A 4 8 1 , 4 9 6 - 7 (October 24,1970).
" P e o p l e v . M a c e r e n , 7 9 S C R A 4 5 0 ( O c t o b e r 18,1977).
" 8 8 S C R A 195 (February 2 , 1 9 7 9 ) .
Free Telephone Workers Union v. Minister of Labor and Employment

which upheld the power given to the Minister of Labor to certify a labor
dispute to the National Labor Relations Commission for compulsory
arbitration. Of interest in Free Telephone Workers is a statement of Jus-
tice Fernando which augured even greater liberalization of the rules on
delegation under the 1973 Constitution. Fernando said that the semi-
parliamentary features of the 1973 Constitution would lead to "an ap-
preciable measure of concord and harmony between the policy making
branches of the government, executive and legislative" and that while
"conceptually, there still exists a distinction between enactment of leg-
islation and its execution, between formulation and implementation, the
fundamental principle of separation of powers of which non-delegation
46
is a logical corollary becomes even more flexible and malleable." In
the context of the Marcos regime, that was putting it very mildly!
Jurisprudence under the 1987 Constitution has not departed from

47
earlier established doctrine. In Eastern Shipping Lines v. POEA, the
standard "fair and equitable employment practices" was found suffi-
cient basis for a regulation prescribing a model contract for overseas
workers. Likewise, the power of expert commissions to fix wages under
strict standards set by the legislature was recognized in Employers Con-
federation v. National Wages and Productivity Commission * as neces-
4
sary in a world of specialized activities.
Decisions have emphasized that the standard need not be explicit

or formulated in precise declaratory language. It can be drawn from
the declared policy of the law and from the totality of the delegating
statute. T h u s , as in Rosenthal, in Tablarin v. Gutierrez*' the authority
of the Board of Medical Education to set rules for the closure of medi-
cal schools was drawn from the general standard of "standardization
and regulation of medical education" taken together with other pro-
50
visions of the delegating statute. Similarly, in Osmefia v. Orbos, the
authority of the Energy Regulatory Board to fix the domestic prices
of petroleum products was found to be sufficiently specified "by the
45
108 SCRA 757 (October 30, 1981).
"/tf. at 771.
47
166 SCRA 533,545 (1988).
^ O l SCRA 759,766 (1991).
4
*152 SCRA 730 (1987).
50
220 SCRA 703,711-713 (1993).
general policy of the law to protect local consumers by stabilizing and

subsidizing domestic p u m p rates," by the authority given to impose ad-
ditional amounts "to augment the resources of the [Oil Price Stabiliza-
tion] Fund." M o r e liberally still, the standard may be embodied in other
51
statutes on the same subject as that of the challenged law.
The firm rule, moreover, remains that administrative agencies may

52
not issue regulations that contravene law. T h u s , a regulation passed
by the Metro Manila Authority authorizing the confiscation of license
plates and driver's license for certain traffic violations was declared
53
invalid for being contrary to Presidential Decree N o . 1605. In Tatad v.
54
Secretary of the Department of Energy, the Court invalidated Execu-
tive Order N o . 392 because, in effecting the full deregulation of the oil
industry, President R a m o s added a standard which did not appear in the
delegating law, R . A . N o . 8 1 8 0 . T h e standards set by the law for oil de-
regulation were (1) the time when the price of crude oil and petroleum
products in the world market were declining; and (2) the time when the
exchange rate of the peso in relation to the US dollar was stable. E.O.
No. 392 considered the depletion of the O P S F fund as a third factor for
ordering the early implementation of full oil deregulation. The Court
said: "We therefore hold that the Executive department failed to follow
faithfully the standards set by R . A . N o . 8180 when it considered the
extraneous factor of depletion of the O P S F fund." Such consideration
amounts to a rewriting of the standards set forth in R.A. N o . 8180. "On
the basis of the text of E . O . N o . 392, it is impossible to determine the
weight given by the Executive department to the depletion of the O P S F
f u n d . . . . In light of this uncertainty, we rule that the early deregulation
under E.O. N o . 392 constitutes a misapplication of R.A. N o . 8180."
The Supreme Court has continued to apply the same principles

that have been developed in the past. Thus the standby authority given
to the President to increase the value added tax rate in the VAT Law,
R.A. N o . 9337, was upheld as an example of contingent legislation
"Chiongbian v. Orbos, GJA. No. 96754, June 22,1995.

"Solicitor General v. Metropolitan Manila Authority, 204 SCRA 837 (1991); Cebu Oxygen
v. Secretary Drilon, 176 SCRA 24 (1989).
"Solicitor General v. Metropolitan Manila Authority, GJi. No. 102782, December 11,
1991.
»GR. Nos. 124360 and 127867, November 5,1997.
where the effectivity of the law is made to depend on the verification by

the executive of the existence of certain conditions."
In Gerochi v. DENR* the power delegated to the Energy Regula-
tor Board to fix and impose a universal charge on electricity end-users
was challenged as an undue delegation of the power to tax. The Court,
however, said that, since the purpose of the law was not revenue genera-
tion but energy regulation, the power involved was more police power
than the power to tax. Moreover the Court added that the power to tax
could be used for regulation. As to the validity of the delegation to an
executive agency, the Court was satisfied that the delegating law was
complete in itself and the amount to be charged was m a d e certain by the
parameters set by the law itself.
R.A. N o . 9 3 3 5 , the Attrition Act of 1995, authorized the BLR and

B O C to give awards to those who surpass the BLR targets and to impose
sanctions on those who fall short. T h e awards were to be taken from
the excess over target as set up by a Board. T h e validity of the law was
challenged on the ground that the delegation to the President of the
power to set targets was invalid.
However, the law was found to be complete and to have standards

for the President to follow. Revenue targets were based on the original
estimated revenue collection expected respectively of the BLR and the
B O C for a given fiscal year as approved by the D B C C and stated in the
B E S F submitted by the President to Congress. T h u s , the determination
of revenue targets did not rest solely on the President as it also under-
went scrutiny by the D B C C . On the other h a n d , Section 7 specified
the limits of the Board's authority and identified the conditions under
which officials and employees w h o s e revenue collection fell short of
57
the target by at least 7 . 5 % m a y be removed from the service.
The Attrition Act was also challenged on the argument that the
oversight function of Congress was unconstitutional. But in this case,
the oversight had already been done and was functus officio. H e n c e ,
there was no need to pass on validity. However, for the future, the Court
set down the following guidelines to maintain separation of powers:
"Abakada Guru Party List Officers v. Executive Secretary, G.R. No. 168056, September 1,
2005. Reconsidered October 18,2005.
"G.R. No. 159796, July 17, 2007
"Abakada Guru v. Purisima.G.R. No. 166715, August 14,2008.
Any post-enactment congressional measure should be limited to

scrutiny and investigation. In particular, congressional oversight must
be confined to the following:
(1) Scrutiny based primarily on Congress' power of ap-

propriation and the budget hearings conducted in connection with
it, its power to ask heads of departments to appear before and be
heard by either of its Houses on any matter pertaining to their de-
partments and its power of confirmation; and
(2) Investigation and monitoring of the implementation of

laws pursuant to the power of Congress to conduct inquiries in aid
of legislation.
Any action or step beyond these will undermine the separation of

powers guaranteed by the Constitution. Legislative vetoes fall in this
58
class.
9. Exceptions to non-delegability.
O n e recognized exception to the rule on non-delegability of leg-

islative p o w e r is that local governments may be allowed to legislate on
59
purely local matters. This is an exception which according to Rubi v.
60
Provincial Board is "sanctioned by immemorial practice." Since what
is given to local legislative bodies is true legislative power and not just
the power to promulgate rules and regulations, it is not necessary that
the delegating statute follow the rules for valid delegation applicable
to the e m p o w e r m e n t of administrative agencies. It is sufficient that the
statute indicate the subject matter over which the local law-making
agency may legislate.
It should be noted, moreover, that on the local level the principle

of separation of powers does not apply strictly between the executive
and the law-making body. This was true under the 1935 and 1973 Con-
stitutions and this remains true under the 1987 Constitution. Hence, a
local law-making agency may be given executive functions. When what
"AbakadaGuru v. Purisima, G.R. No. 166715,August 14,2008.

"Local governments under the 1973 possessed very limited legislative power derived di-
rectly from the Constitution. Under the 1987 Constitution, local legislative power has been ex-
panded. This will be studied under Article X. Prior to the 1973 Constitution, however, legislative
power of local governments was only delegated power coming from Congress.
"39 Phil. 660,702 (1919).
is given to a local legislative body is executive power, the rules ap-

plicable to the empowerment of administrative agencies also becomes
applicable to the local law-making body. Thus, in People v. Vera," the
Supreme Court declared unconstitutional a statute which left the acti-
vation of a probation system to the discretion of the Provincial Board.
Among the defects which the Court found in the statute was invalid
delegation of legislative power. The Court ruled that the principles for
delegation to administrative agencies had not been satisfied. But this,
only because the Court said that for the purpose of the statute involved
62
"the provincial boards may be regarded as administrative bodies."
The Constitution itself, of course, may create other exceptions

to the rule on non-delegability. T h u s , for instance, Article V I , Section
23(2), authorizes Congress, in times of war and other national emergen-
cy, to give to the President "powers necessary and proper to carry out a
declared national policy," and again, Section 28(2) authorizes Congress
to delegate the power to fix tariff rates, import and export quotas, ton-
nage and wharfage dues, and other duties and imposts.
S E C 2. 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.
1. Composition and election of S e n a t e .
Following the 1935 Constitution, the 1987 Constitution has

pegged the total membership of the Senate at twenty-four. W h a t is the
basis for fixing the number at twenty-four? In response to this question,
Commissioner Davide, Chairman of the C o m m i t t e e on the Legislature,
answered that the number was decided upon disregarding the factor of
an the ever growing population. Davide said that the C o m m i t t e e looked
rather on the slim vote favoring bicameralism, in spite of a committee
report embodying unicameralism, as a signal of the desire to return to
the small Senate of the 1935 Constitution. He recalled that the pro-
ponents of bicameralism had argued that bicameralism could achieve
quality legislation and therefore the Committee thought it wise for this
purpose to provide a small Senate. Davide in fact suggested that the
"65 Phil. 56 (1937).

" W a t 116.
63
smaller number suggested superior quality and that a number higher
64
than twenty-four would tend to dilute the quality of the Senate.
But can the number be increased by ordinary legislation? On the

basis of Davide's argument justifying the small number and on the basis
of the grammatical position of the phrase "as may be provided by law"
in Section 2, it can be said that the number can be changed only by con-
stitutional amendment and that the phrase "as may be provided by l a w "
has reference to the mechanics for electing the Senators at large and not
to the number of Senators.
The Senators are elected at large, that is, senatorial candidates

submit themselves to a vote of the entire national electorate. This man-
ner of electing Senators can only be changed by constitutional amend-
ment. In fact, an a m e n d m e n t proposed by Commissioner Lerum that
four out of the twenty-four should be elected as may be provided by
law "to represent the sectors" was defeated. As Commissioner Rodrigo
pointed out, the reason for requiring that Senators be elected at large
was the need to satisfy the desire that the Senate look on problems from
65
the national and not parochial perspective. Similarly, a proposal of
Commissioner Gascon to have the Senators elected "through a party-
66
list system" was defeated.
SEC. 3. 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
THE ELECTION.
1. Qualification of Senators.
Section 3 says: " N o person shall be a Senator unless he is a natu-
ral-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 the election." Deliberations on this provision re-
"11 RECORD 146.

"W. at 594.
6S
W. at 594-6.
<*Id. at 596-7.
veal (1) that the residence requirement is satisfied if one is domiciled in

the Philippines even if not physically present in the Philippines during
the two-year period, and (2) that the age qualification must be possessed
on the day the votes are cast as fixed by law and not on the day of proc-
67
lamation. Moreover, a proposal of Commissioner Tingson to raise the
age requirement to forty was withdrawn after some young and not so
68
young Commissioners ganged up on him.
SEC. 4. THE TERM OF OFFICE OF THE SENATORS SHALL BE SIX

YEARS AND SHALL COMMENCE, UNLESS OTHERWISE PROVIDED BY LAW,
AT NOON ON THE THIRTIETH DAY OF JUNE NEXT FOLLOWING THEIR
ELECTION.
No SENATOR SHALL SERVE FOR MORE THAN TWO CONSECUTIVE

TERMS. VOLUNTARY RENUNCIATION OF THE OFFICE FOR ANY LENGTH
OF TIME SHALL NOT BE CONSIDERED AS AN INTERRUPTION IN THE
CONTINUITY OF HIS SERVICE FOR THE FULL TERM FOR WHICH HE WAS
ELECTED.
1. The term o f Senators; staggering o f t e r m s .
The term of office of Senators is six years and, unless otherwise

provided by law, commences at noon on the thirtieth day of June next
following their election. The six-year term follows the model of the
Senate under the 1935 Constitution. T h e innovation introduced by the
1987 Constitution is the constraint that no Senator shall serve for " m o r e
than two consecutive terms."
The six-year term was arrived at after a lengthy discussion which

involved a joint consideration of the terms of the President, Vice-Pres-
69
ident, Senators, and m e m b e r s of the H o u s e of Representatives. T h e
term of the Senators c a m e out as part of a total package which could fa-
cilitate synchronization of elections — six years for the President, Vice-
President, and Senators, and three years for m e m b e r s of the H o u s e .
On the possibility of re-election of Senators, the Constitutional

Commission voted to choose from a m o n g four alternatives: (1) a six-
year term with an absolute bar against re-election, (2) a six-year term
"Id. at 87.
"Id. at 153-156.
M
W. at 207-235.
with one inirnediate re-election, (3) a six-year term without immediate

re-election, and (4) a six-year term without limit on the possible number
of re-elections. Twenty-two voted for the second alternative which is
now the second paragraph of Section 4. Moreover, "[v]oluntary renun-
ciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which
he was elected."
Does the limitation on n u m b e r of elections mean that a Senator

who has served two consecutive terms must wait for six years before
he can run again for the Senate? T h e answer given to this question was
that a Senator could run again three years after the expiration of his
70
second term.
Although Section 4 provides for a six-year term, those elected in

the M a y 1987 elections had a term of five years because Section 2 of
the Transitory Provisions said: " T h e Senators, M e m b e r s of the House of
Representatives, and the local officials first elected under this Constitu-
tion shall serve until noon of June 3 0 , 1 9 9 2 . " Moreover, from 1992 the
staggering of the terms started. Section 2 of the Transitory Provisions
said: "Of the Senators elected in the election in 1992, the first twelve
obtaining the highest number of votes shall serve for six years and the
remaining twelve for three years." Thereafter, senatorial elections take
place every three years and all are elected for a six-year term.
SEC. 5. ( 1 ) THE HOUSE OF REPRESENTATIVES SHALL BE

COMPOSED OF NOT MORE THAN TWO HUNDRED AND FIFTY MEMBERS,
UNLESS OTHERWISE FIXED BY LAW, WHO SHALL BE ELECTED FROM
LEGISLATIVE DISTRICTS APPORTIONED AMONG THE PROVINCES, CITIES,
AND THE METROPOLITAN MANILA AREA IN ACCORDANCE WITH THE
NUMBER OF THEIR RESPECTIVE INHABITANTS, AND ON THE BASIS OF
A UNIFORM AND PROGRESSIVE RATIO, AND THOSE WHO, AS PROVIDED
BY LAW, SHALL BE ELECTED THROUGH A PARTY-LIST SYSTEM OF
REGISTERED NATIONAL, REGIONAL, AND SECTORAL PARTIES OR
ORGANIZATIONS.
(2) THE PARTY-LIST REPRESENTATIVES SHALL CONSTITUTE

TWENTY PER CENTUM OF THE TOTAL NUMBER OF REPRESENTATIVES
INCLUDING THOSE UNDER THE PARTY LIST. FOR THREE CONSECUTIVE
TERMS AFTER THE RATIFICATION OF THIS CONSTITUTION, ONE-HALF
w
ld. at 590.
OF THE SEATS ALLOCATED TO PARTY LIST REPRESENTATIVES SHALL BE

FILLED, AS PROVIDED BY LAW, BY SELECTION OR ELECTION FROM THE
LABOR, PEASANT, URBAN POOR, INDIGENOUS CULTURAL COMMUNITIES,
WOMEN, YOUTH, AND SUCH OTHER SECTORS AS MAY BE PROVIDED BY
LAW, EXCEPT THE RELIGIOUS SECTOR.
(3) EACH LEGISLATIVE DISTRICT SHALL COMPRISE, AS FAR

AS PRACTICABLE, CONTIGUOUS, COMPACT AND ADJACENT TERRITORY.
EACH CITY WITH A POPULATION OF AT LEAST TWO HUNDRED
FIFTY THOUSAND, OR EACH PROVINCE, SHALL HAVE AT LEAST ONE
REPRESENTATIVE.
(4) WITHIN THREE YEARS FOLLOWING THE RETURN OF

EVERY CENSUS, THE CONGRESS SHALL MAKE A REAPPORTIONMENT OF
LEGISLATIVE DISTRICTS BASED ON THE STANDARDS PROVIDED IN THIS
SECTION.
1. Composition of the House of Representatives.
Section 5(1) fixes the membership of the H o u s e of Representa-

tives at two hundred and fifty. The initial total membership w a s arrived
at taking into consideration a national population of 55 million." H o w -
ever, the total membership of the House may be raised from time to time
by statute because Section 1 says that the total is 250 "unless otherwise
fixed by law." This can be done through reapportionment resulting in
the creation of new districts or through the creation of new provinces,
since each province is entitled to at least on district, or through the cre-
ation of cities meriting one legislative district under Section 5(3). R e -
apportionment of legislative districts, according to Section 5(4), must
be done by Congress within three years following the return of every
census in order to ensure that proportional representation is preserved.
When one of the municipalities of a congressional district is con-

verted into a city large enough to entitle it to one legislative district, the
incidental effect is the splitting of the district into t w o . T h e inciden-
tal arising of a new district in this m a n n e r need not be preceded by a
census. Moreover, this incidental effect is d e e m e d implicitly contained
in the title announcing the creation of the new city thus satisfying the
72
requirement that the content of the bill be announced in the title. If,
7I
W. at 44.
7
Tobias v. Abalos, 239 SCRA 106 (1994); Mariano, Jr. v. Commission on Elections, G J*.
No. 118627, March 7, 1995.
however, as a result of the increase of the number of legislative dis-

tricts, either because of the creation of a new province or of a new city,
an imbalance results in the remaining legislative districts of the mother
province, the Commission on Elections has no authority to correct the
imbalance by the transfer of municipalities from one district to another.
Correction of the imbalance must await the enactment of a reapportion-
73
ment law.
Section 5(1) provides for t w o kinds of representatives: district

representatives elected by districts and party representatives elected
through the party-list system. Section 5(2) adds a third kind: sectoral
representatives. However, sectoral representation in the house of Rep-
resentatives will last only for "three consecutive terms after the ratifi-
cation of this Constitution." After the lapse of such period, there will
remain only district and party representatives.
2. District representatives.
Section 5(1) prescribes that district representatives "shall be elect-

ed from legislative districts apportioned among the provinces, cities,
and the Metropolitan Manila area in accordance with the number of
their respective inhabitants, and on the basis of a uniform and progres-
sive ratio." T h e underlying principle behind this rule for apportionment
is the concept of equality of representation which is a basic principle
74
of republicanism. O n e m a n ' s vote should carry as much weight as the
vote of every other man. In a representative system, this equality is
ensured by requiring that the representatives represent as much as pos-
sible an equal number of constituents. This can be achieved either by
making representatives represent districts of equal sizes in terms of in-
habitants or by requiring that larger representative districts should be
entitled to more representatives. The 1973 Constitution followed the
second method since the country was then divided not into representa-
tive districts of approximately equal sizes but into regions of unequal
sizes. Section 5(1) reverts to the rule under the 1935 Constitution ac-
cording to which the country was divided into representative districts of
more or less equal sizes represented by one representative.
"Montejo v. Commission on Elections, G.R. No. 118702, March 16,1995.

74
Macias v. COMELEC, 3 SCRA 1,7-8 (1961).
For the purpose of the first elections under the 1987 Constitution,
an Ordinance appended to the Constitution divided the country into 200
75
representative districts. On the basis of a 55 million population, the
result achieved was roughly one representative for more or less every
250,000. Since 1986, however, the number of representative districts
has increased beyond the original fifty.
3. Apportionment.
The rules for dividing provinces and cities and the Metropolitan
Manila area as well as other metropolitan areas which might be created
in the future are set down in Section 5. The first basic rule, found in Sec-
tion 5(1), is that the legislative districts shall be "apportioned among the
provinces, cities, and the Metropolitan Manila area in accordance with
the number of their respective inhabitants, and on the basis of a uniform
and progressive ratio."
The second rule, stated in Section 5(3), is that "Each legislative

district shall comprise, as far as practicable, contiguous, compact and
adjacent territory." This rule is a prohibition of "gerrymandering." Ger-
rymandering means the creation of representative districts out of sepa-
rate portions of territory in order to favor a candidate. This was also
76
prohibited under the 1935 Constitution. It should be noted, however,
that the requirement that representative districts should consist of "con-
tiguous, compact and adjacent territory" is qualified by the phrase "as
11
far as practicable." In Felwa v. Salas, construing an identical provision
in the 1935 Constitution, there was a suggestion that ethnic or tribal
considerations might justify departure from the rule.
A third rule, also found in Section 5(3) is that "Each city with
a population of at least two hundred fifty thousand, or each province,
78
shall have at least one representative." It should be noted that for a
city to merit one representative it should have a population of at least
"Rather than pass on the task of apportioning the nation to the President or to COMELEC
for the purpose of the first elections under this Constitution, the Commission decided to do the
apportioning. V RECORD 669-700.
"Article VI, Section 2 (1935).
"18 SCRA 606,615 (1966).
7
T h e original minimum approved was a population of two hundred thousand but this was
later raised to two hundred fifty thousand. V RECORD 669.
79
two hundred fifty thousand. If a city is smaller than the minimum size
required, it will simply be represented as a part of one of the districts
within the province. A province, however, is entitled to one representa-
tive no matter what its population size. This, in effect, is an exception to
the rule on proportional representation because a number of provinces,
such as Batanes, have a population size much smaller than that required
80
for a district or for a city.
The fourth rule, found in Section 5(4) says: "Within three years
following the return of every census, the Congress shall make a reap-
portionment of legislative districts based on the standards provided in
this section." This provision is intended to allow for correction of im-
balances in representation due to rise and movements of population.
T h e frequency of reapportionment will depend partly on the frequency
of censuses. But what happens if Congress does not do what is pre-
scribed by Section 5(4)?
Contrary to early American jurisprudence, it is now established in

this jurisdiction that observance of the constitutional mandate regarding
apportionment of representative districts is a justiciable question cog-
nizable by the courts. Decisions in this tenor were promulgated by the
81 2
Court under the 1935 Constitution. Likewise Tobias v. Abalos* decid-
ed a case involving the creation of a new representative district under
the 1987 Constitution. The case involved the division of San Juan and
Mandaluyong into two representative districts. Originally the two had
formed one representative district. But with the elevation of Mandaluy-
ong from municipality into a highly urbanized city, both Mandaluyong
and San Juan were recognized by R.A. N o . 7675 as distinct representa-
tive districts. This was challenged on the ground that R.A. No. 7675 did
not mention any census indicating that San Juan and Mandaluyong had
the minimal requirement of 250,000 inhabitants needed to constitute a
district. Neither did the challengers, however, give any evidence that
the respective populations of each of the two political units were less
"An amendment to allow cities entitled to more than one representative to elect their rep-
resentatives at large was rejected. II RECORD 176,593-4.
"There is a bit of discussion on this, id. at 136-138.
"Marias v. COMELEC, supra, note 55; Felwa v. Salas, supra: Gonzales v. COMELEC,
21 SCRA 774 (1967).
J
" 239 SCRA 106 (1994); Mariano, Jr. v. Commission on Elections, GJt. No. 118627,
March 7,1995.
than the number required. Hence the Court presumed that Congress had
83
made due consideration of the minimum requirement.
However, although it is the constitutional duty of Congress
to ensure proportional representation, it is submitted that there is no
power which can compel Congress to make a reapportionment even
when, through the growth and movement of populations, the existing
apportionment has in fact become inequitable. In fact, Philippine
jurisprudence suggests that what the Constitution abhors is inequality
in apportionment if the inequality is created by law and not when the
inequality arises from the growth and movement of the population. This
much may be gathered from Gonzales v. COMELEC" which upheld the
validity of existing representative districts in spite of admitted gross
disproportion in population distribution. However, the result in the
Gonzales decision was anchored on a 1935 provision which said: "Until
such apportionment shall have been m a d e , the House of Representatives
shall have the same number of M e m b e r s as that fixed by law for the
National Assembly, who shall be elected by the qualified electors from
the present Assembly districts." The provision legalized whatever
inequity there may have been in the existing apportionment. No similar
provision is found in the present Constitution. A factual inequitable
situation, therefore, would already be an unconstitutional situation. But
if Congress refuses to remedy the situation by a new apportionment, as
mandated by Section 5(4), can any p o w e r compel Congress to m a k e
the reapportionment, or can anybody else do the reapportioning? Can
the Courts or the Commission on Elections do it? These are questions
85
which Philippine jurisprudence has not yet answered.
6
Moreover, Sema v. COMELEC* ruled that n e w legislative districts
may be created only by law. Section 19, Article VI of R . A . N o . 9 0 5 4 ,
insofar as it granted to the A R M M Regional Assembly the p o w e r to cre-
ate provinces and cities, which could in effect result in the creation of
legislative districts, was invalidated. "Only Congress can create prov-
inces and cities because the creation of provinces and cities necessarily
includes the creation of legislative districts, a p o w e r only Congress can
"Id. at 111.
"Id.
85
On this matter, see id., Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sandere, 376
U.S. 1 (1964). '
"•Sema v. COMELEC, G.R. No. 177597, July 16,2008.
exercise under Section 5 , Article VI of the Constitution and Section 3

of the Ordinance appended to the Constitution. T h e A R M M Regional
Assembly cannot create a province without a legislative district because
the Constitution mandates that every province shall have a legislative
district."
It should also be noted that the creation of a representative dis-

trict is not the same as the creation of a new political subdivision. In
Bagabuyo v. Commission on Elections," the constitutionality of the di-
vision of Cagayan de O r o City into two legislative districts was chal-
lenged on the ground that no plebiscite had been held to approve it.
T h e petitioner was under the erroneous impression that the creation of
a legislative district necessarily involves the creation of a new political
subdivision for which a plebiscite is required by Article X , Section 10.
But what happened here was a reapportionment under Article VI, Sec-
tion 5 which does not require a plebiscite. No new political subdivision
was created because Cagayan de Oro remained as one city.
4. Sectoral representation and party-list representation.
There are t w o related but distinct concepts found in Section 5:

sectoral representation and party-list or proportional representation.
Both are important for a full understanding of the provision.
Sectoral representation, was explained by Commissioner Villa-

88
corta thus:
The idea of giving meaningful representation, particular-

ly to the farmers and the workers, would be our Commission's
humble gesture of extending protection to the interests of these
groups which are not adequately attended to in normal legislative
deliberations. Sectoral representation is a necessity, especially in
these times when the people are giving the democratic process
another chance, if not its last chance. Providing for mechanisms
which would enhance the chances of marginalized sectors in elect-
ing their Representatives to the National Assembly will keep their
hopes alive in the principle of peaceful change. This imperative
becomes more urgent when this Commission recently adopted a
bicameral system of legislature. We have heard apprehensions that
"CR. No. 176970, December 8,2008.

"»«. at 84-85,146-147.
the Upper House might be monopolized by the moneyed sectors

and might protect vested property interests.
Party-list representation was elucidated by Commissioner Mon-

89
sod, its main sponsor:
I would like to make a distinction from the beginning that

the proposal for the party list system is not synonymous with that
of the sectoral representation. Precisely, the party list system seeks
to avoid the dilemma of choice of sectors and who constitute the
members of the sectors. In making the proposal on the party list
system, we were made aware of the problems precisely cited by
Commissioner Bacani of which sectors will have reserved seats.
Under the party list system, there are no reserved seats for
sectors. Let us say, laborers and farmers can form a sectoral party
or a sectoral organization that will then register and present candi-
dates of their party. How do the mechanics go?
Essentially, under the party list system, every voter has two
votes, so there is no discrimination. First, he will vote for the rep-
resentative of his legislative district. That is one vote. In that same
ballot, he will be asked: What party or organization or coalition
do you wish to be represented in the Assembly? And here will be
attached a list of the parties, organizations or coalitions that have
been registered with the COMELEC and are entitled to be put in
that list. This can be a regional party, a sectoral party, a national
party, UNIDO, Magsasaka or a regional party in Mindanao. One
need not be a farmer to say that he wants the farmers' party to be
represented in the Assembly. Any citizen can vote for any party. At
the end of the day, the COMELEC will then tabulate the votes that
had been garnered by each party or each organization — one does
not have to be a political party and register in order to participate
as a party — and count the votes and from there derive the percent-
age of the votes that had been cast in favor of a party, organization
or coalition.
M u c h of the discussion on the party-list system revolved around

the question of how sectors, that is, especially disadvantaged sectors
of society, should be represented. O n e view was that sectoral parties or
organizations should be assured reserved seats in the H o u s e ; another
'Id. at 85-86.
view was that they should compete in the party-list system just like any
90
other party or organization. T h e desire to give them reserved seats was
born of the recognition of the inability of the disadvantaged sectors to
91
compete in the political process. In the end the Commission approved
a compromise: "For three consecutive terms after the ratification of this
Constitution, one-half of the seats allocated to party-list representa-
tives" will be reserved for sectoral representatives who will be chosen
"as provided by law."
This compromise recognizes the handicap under which disadvan-

taged sectors operate but at the same time it is meant to motivate them
to strengthen their organizations so that they will eventually be able to
compete in the regular party-list system three consecutive terms after
92
the operation of the party-list system c o m m e n c e s . In the concrete this
would mean that by the elections of 1998 the sectors would have to
93
compete in the party-list system of the electoral process.
The original list of sectors to be represented included only labor,

peasant, urban poor, and youth sectors. There was a recognition, how-
ever, that these sectors could further be subdivided by law into sub-sec-
94
tors. Eventually, two other sectors — indigenous cultural communities
95
and w o m e n — were added, and also "such other sectors as may be
96
provided by law." And Commissioner Rigos added: "except the reli-
97
gious sector." But, upon question by Commissioner Villacorta, Rigos
explained that a m e m b e r of the religious sector may become a sectoral
98
representative but not as representing the religious sector.
Originally, the manner of choosing the sectoral representatives

99
during the transition period was to be left to ordinary legislation.
Eventually, however, the Constitutional Commission added a supple-
mental alternative which became Article XVIII, Section 7: "Until a law
is passed, the President may fill by appointment from a list of nominees
M
M . at 252-259; 560-583.
"Id. at 561-567.
n
Id. at 567-570,577-582.
n
ld. at 585-586.
"Id. 573.
9i
ld. 574
*W. at 587.
"Id.
"M. at 589.
"Article VI, Section 5(2).
by the respective sectors the seats reserved for sectoral representation

100
in paragraph (2), Section 5 of Article VI of this Constitution." Should
the President appoint such sectoral representatives, their term would be
that found in the Constitution. A subsequent law passed by Congress
101
would not oust those appointed by the President.
It should be noted, however, that the text says "may fill by ap-
pointment." The use of the word "may," which is permissive, was de-
102
liberate in order to give to the President ample leeway. However, the
President was not free to choose any one he pleases. He or she must
choose from "a list of nominees by the respective sectors;" but if the
President did not like the list of nominees, she could ask for another list
103
or may decide not to appoint anyone.
Must the sectoral representative appointed by the President be con-

firmed by the Commission on Appointments? This was not discussed in
the Constitutional Commission because sectoral representation w a s ap-
proved before the commission had done its work on the Commission
on Appointments. When later the matter went to the Supreme Court,
0
the Court ruled in Quintos-Deles v. Commission on Appointments' * that
confirmation was needed. The Court reasoned that, since the sectoral
representative would b e , under Article XVIII. Section 7 , appointed by
the President, he came under Article VII, Section 16 which includes
among those needing confirmation "other officers whose appointments
are vested in him in this Constitution."
In sum, therefore, Section 5 provides t w o regimes: a temporary

regime of sectoral representation — for three consecutive terms — and
a permanent party-list or proportional representation regime. The tem-
porary sectoral representation regime was an answer to the recognized
disadvantage of the marginalized sectors. At the same time it was a
signal to these sectors that within a period of three congressional terms
they should prepare to compete with other organizations and traditional
political parties in a system of proportional representation that would
treat parties and organization on the same level.
I00
V RECORD 328-338.
m
ld. 332.
m
Id. at 333-336.
,03
W.338.
,04
177 SCRA 259(1989).
Those qualified to participate in the party-list system are "regis-

tered national, regional, and sectoral parties or organizations" in the
manner explained by Commissioner M o n s o d . The party-list represen-
tatives will constitute "twenty per centum of the total number of rep-
resentatives including those under the party list." T h u s , under a total
membership of 2 5 0 , a fully operative party-list system would mean 200
05
district representatives and 50 party-list representatives.'
Although the Constitution does not set down the mechanics for
the operation of the system but leaves these to ordinary legislation,
the 1986 Constitutional Commission had a clear understanding of the
06
rough outlines of h o w the system should operate.' Parties or organiza-
tions desiring to participate in the party-list system register themselves
together with a list of the party's or organization's list of nominees for
party-list representatives. T h e m a x i m u m number will be prescribed by
law and the nominees will be arranged by the party or organization
according to an order of priorities. In every election for the House of
Representatives, each voter casts t w o votes: one for the district repre-
sentative of his or her choice and another for the party or organization
of his or her choice. T h e votes cast for the parties and organizations are
totaled nationwide. The number of party-list seats a party or organiza-
tion will get will depend on the number of votes it receives in propor-
107
tion to the total number of votes cast nationwide.
5. Jurisprudence on the party-list system.
T h e current party-list law is Republic Act N o . 7 9 4 1 . When it was

first implemented in 1998, the major political parties, according to the
terms of the statute, were excluded from participation.
An early case on the party-list system under R.A. No. 7941 settled
two questions. First, how many votes must an organization receive in
order to qualify for a seat in the House? R.A. N o . 7941 required par-
ties, organizations and coalitions participating in the system to obtain at
least two percent of the total votes cast for the party-list system in order
to be entitled to a party-list seat. Those garnering more than this per-
"»V RECORD 664-666.

"The Commission was also quite aware of the practical difficulties which the system
could encounter. E.g., see II RECORD 571-572.
I0,
W. at 253-254.
centage may have "additional seats in proportion to their total number

of votes." Furthermore, no winning party, organization or coalition may
have more than three seats in the House of Representatives.
This two percent threshold requirement and the three-seat limit
provided in Section 11 were challenged as unconstitutional. In Veterans
Federation Party, et al. v. COMELEC., the Court said that a simple
m
reading of Section 5, Article VI, of the Constitution, easily conveyed

the equally simple message that Congress was vested with the broad
power to define and prescribe the mechanics of the party-list system of
representation. The Constitution explicitly set down only the percent-
age of the total membership in the House of Representatives reserved
for party-list representatives.
A related question was whether the allocated twenty percent of

the total House membership set a mandatory number that must be filled
or whether it merely set a ceiling. The Court said that in imposing a
two percent threshold for parties to qualify for representation, Congress
wanted to ensure that only those parties, organizations and coalitions
having a sufficient number of constituents deserving of representation
were actually represented in Congress. T h e Court said that this intent
could be gleaned from the deliberations on the proposed bill. T h u s the
Court additionally ruled in Veterans that the twenty percent prescrip-
tion of the Constitution was merely a m a x i m u m limit to the number of
party-list representatives but the m a x i m u m need not be filled.
A more serious controversy, however, was the question of which

parties and organizations qualified to be voted for in party-list elec-
tions. The issue was threshed out in Ang Bagong Bayani, et al. v. COM-
m
ELEC\ A divided Supreme court m a d e the ruling that the intent of the
Constitutional Commission and of the implementing statute, R . A . N o .
7 9 4 1 , was not to allow all associations to participate indiscriminately
in the system but to limit participation to parties or organizations repre-
senting the "marginalized and underprivileged." T h e Court said: "The
party-list system is a social justice tool designed not only to give more
law to the great masses of our people w h o have less in life, but also to
enable them to become veritable lawmakers themselves, e m p o w e r e d to
G.R. No. 136781, October 6, 2000. Partido v. COMELEC reiterated the prevailing for-
108
mula for the computation of additional seats for party-list winners as originally stated in the land-
mark case of Veterans.
IW
G.R. No. 147589, June 26,2001.
participate directly in the enactment of laws designed to benefit them."

For this purpose, the Court laid down guidelines for the C O M E L E C to
apply in deciding which organizations qualified. A m o n g the guidelines
was the requirement that the parties or organizations must represent the
marginalized and underrepresented sector. The Court said that even po-
litical parties must comply with this requirement. Moreover, the nomi-
nees themselves must comply with the qualitative requirement.
W h a t is clear from the decision is that the Court, speaking through

Justice Panganiban, sees the party-list system not as a proportional sys-
tem of representation designed to strengthen democracy but as "sectoral
representation" meant to promote social justice. The deliberations of the
Constitutional Commission were clearly to the contrary. In the course
of the drafting of the provision, Commissioner Villacorta proposed that
3 0 % of the seats in the House of Representatives be allocated equally
between sectors and representatives of parties and organizations. The
thrust of the proposal was that 3 0 % of the party-list seats should be
permanently reserved for marginalized sectors. There was much debate
on this on July 2 5 , 1 9 8 6 , but the session adjourned without a solution.
W h e n session resumed on August 1, a group of 22 Commissioners

got together to propose a compromise provision saying that during the
first two terms of the House of Representatives 25 of the party-list seats
should be reserved for marginalized sectors. Commissioner Tadeo of
the farm sector and Commissioner Lerum of the labor sector were not
happy with the compromise. They wanted permanent reserved seats to
insure that these seats would not be gobbled up by political parties. An
amendment, therefore, was proposed for permanent reserved seats for
the underprivileged. The long and the short of it, however, was that, af-
ter more debate, the idea of permanently reserved seats was rejected by
a vote of 22 against and 19 in favor. What was approved was that "for
the first three terms after the ratification of this Constitution twenty-
five of the seats allocated to party list representatives shall be filled, as
provided by law, by election or selection from" from the marginalized
sectors. In other words, twenty-five seats would be reserved but only for
three consecutive terms.
In the face of all this, nevertheless, Justice Panganiban concluded

in Ang Bagong Bayani that all the fifty seats, and not just twenty-five,
are reserved for the marginalized sectors, and not just for three consecu-
tive terms but forever.
When the dissenting opinion of Justice Mendoza pointed to what

the Record of the Constitutional Commission showed, Panganiban re-
torted that Commission records should be consulted only when the
text of the Constitution is not clear. For him, the text — in spite of the
specific three term and fifty percent limitation — was clearly not for
twenty-five only but for fifty seats, and not for three terms only but
forever. Effectively, he deleted the phrase "For three consecutive terms
after the ratification of this Constitution one-half of the seats." Indeed,
after such amputation, and only after such amputation, the text becomes
clearly on his side.
That is not all. The majority also ruled that party-list nominees
"must represent marginalized and underrepresented sectors." This
means that nominees who do not have this ideological quality (which
incidentally is not easily proved or disproved), they are not qualified
to be members of the House of Representatives as party-list represen-
tatives. But this is another departure from the constitutional text; this
time, however, not by amputation but by grafting. No such ideological
requirement is found in Section 6 of Article VI which enumerates the
qualifications of a m e m b e r of the House of Representatives. According
to Section 6, the only difference in qualifications between district rep-
resentatives and party-list representatives is that a party-list representa-
tive does not represent a district and therefore need not have resided in
a single district for at least one year immediately preceding the election.
In fact, neither does R.A. N o . 7941 prescribe an ideological qualifica-
tion:
SECTION 9. Qualifications of Party-List Nominees. — No

person shall be nominated as party-list representative unless he
is a natural-bom citizen of the Philippines, a registered voter, a
resident of the Philippines for a period of not less than one (1) year
immediately preceding the day of the election, able to read and
write, a bona fide member of the party or organization which he
seeks to represent for at least ninety (90) days preceding the day
of the election, and is at least twenty-five (25) years of age on the
day of the election.
In case of a nominee of the youth sector, he must at least be

twenty-five (25) but not more than thirty (30) years of age on the
day of the election. Any youth sectoral representative who attains
the age of thirty (30) during his term shall be allowed to continue
in office until the expiration of his term.
SEC. 6. 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.
1. Qualifications of district and party-list Representatives.
A district representative must be a natural-born citizen of the Phil-

ippines, a registered voter in the district in which he shall be elected,
and a resident of that district for a period of not less than one year im-
mediately preceding the day of the election. The qualifications must be
110
possessed on the day of the election.
T h e qualifications of a sectoral representative were not explicitly

discussed by the Commission. Since, however, sectoral representatives
were, for a limited period, meant to take the place of party-list repre-
sentatives and were a prelude to full implementation of the party-list
system, they should have the same qualifications as party-list repre-
sentatives. A party-list representative must possess the same qualifica-
tions except for the exemption from the requirement of being a resident
of a district for at least one year immediately preceding the election.
This is because a party-list representative does not represent a district.
It is understood, moreover, that implicit in this requirement is that a
party-list representative must be a registered voter and a resident of the
Philippines. However, as noted above, Ang Bagong Bayani seems to
have amended the Constitution by adding the requirement that party-list
nominees "must represent marginalized and underrepresented sectors."
The citizenship qualification is that a representative must be a

natural born citizen of the Philippines. "Natural-bom citizens," accord-
ing to the Constitution, "are those who are citizens of the Philippines
from birth without having to perform any act to acquire or perfect their
Philippine citizenship. Those who elect Philippine citizenship in accor-
""Compare with Espinosa v. Aquino, Jr., Senate Electoral Tribunal, Electoral Case No. 9.
January 15, 1969.
dance with paragraph (3), Section 1 [of Article IV] shall be deemed
natural-bom citizens."'"
When the second sentence of Section 4, Article IV, was being dis-
cussed by the Constitutional Commission, one objection to it was that
it would allow citizens by election to qualify for constitutional posi-
tions reserved for natural-born citizens. The new provision was none-
theless accepted on the understanding that, if desired, the distinction
between different kinds of natural-bom citizens could be made for
purposes of qualifying for constitutional offices when qualification for
112
these offices come up for discussion. W h e n these offices, however,
were discussed, no distinction was made. H e n c e , even citizens by elec-
tion who are deemed to be natural-born citizens satisfy the citizenship
qualification for representatives (as well as for Senators, President, and
113
Vice-President). Moreover, the 2001 case of Bengzon v. Cruz"* ruled
that a natural born citizen who loses his citizenship by naturalization in
another country but later is repatriated recovers his status of being a nat-
ural-born citizen and therefore is qualified to be a m e m b e r of Congress.
The age qualification is the same as the age qualification for repre-
sentatives under the 1935 Constitution and for Batasan members under
the 1973 Constitution — twenty-five years.
A representative must not only be a qualified elector, but he must

actually be "a registered voter."
As to the residence requirement, the meaning of residence as

found in the election law under the 1935 Constitution has been retained.
Ui
Gallego v. Verra summed it up thus:
The term "residence" as used in the election law is synony-

mous with "domicile," which imports not only intention to reside
in a fixed place but also personal presence in that place coupled
with conduct indicative of such intention (Nuval vs. Guray, 52
111
Article IV, Section 2. See dissent discussed under Article IV, Section 3, supra.
J
" I RECORD 355, 369.
"This expanded meaning of natural-bom citizenship is not a novel idea. The 1971 Consti-
tutional Convention, which first formulated the definition of a natural born citizen as one who is a
citizen from birth without having to perform any act to acquire or perfect his citizenship, acting as
the sole judge of the qualifications of the delegates to the Convention, voted to consider Delegate
Ernesto G. Ang, a natural-bom citizen and therefore qualified to be a delegate in spite of the fact
that Delegate Ang was a citizen by election under the 1935 Constitution.
H4
GA. No. 142840, May 7, 2001.
,,5
7 3 Phil.453,455-6(1941).
Phil. 645). In order to acquire a domicile by choice, there must

concur (1) residence or bodily presence in the new locality, (2)
an intention to remain there, and (3) an intention to abandon the
old domicile. In other words, there must be an animus non rever-
tendi and an animus manendi. The purpose to remain in or at the
domicile of choice must be for an indefinite period of time. The
acts of the person must conform with this purpose. The change of
residence must be voluntary; the residence at the place chosen for
the domicile must be actual; and to the fact of residence there must
be added the animus manendi.
116
Such residence, according to Faypon v. Quirino, is not necessar-
ily lost even through prolonged absence:
A citizen may leave the place of his birth to look for "greener
pastures," as the saying goes, to improve his lot, and that, of course
includes study in other places, practice of his avocation, or engag-
ing in business.
T h e reason for the residence requirement was expressed by Gal-

7
lego t h u s : "
We might add that the manifest intent of the law in fixing a

residence qualification is to exclude a stranger or newcomer, un-
acquainted with the conditions and needs of a community and not
identified with the latter, from an elective office to serve that com-
munity; and when the evidence on the alleged lack of residence
qualification is weak or inconclusive and it clearly appears, as in
the instant case, that the purpose of the law would not be thwart-
ed by upholding the right to the office, the will of the electorate
should be respected.
The definition of residence when written by the Court in Gallego

had reference to the residence qualification of a Mayor and in Faypon,
with reference to residence as a requirement for suffrage. The same
concept was used for residence as a qualification for representatives in
the 1935 Constitution and in the 1973 Constitution. A proposal to make
actual physical residence a requirement was rejected by the 1971 Con-
8
stitutional Convention."
"*96 Phil. 294,299 (1954).

7
" 73 Phil, at 459.
"'Sessions of July 23,1972 and October 12,1972; II RECORD 87 (1986).
When the decisions say that "residence" as requirement for Repre-

sentatives means "domicile," does it mean that a person must be domi-
ciled in the district which he wishes to represent and that he must have
been domiciled there for one year immediately preceding his election?
Or does it mean that one who has been a temporary resident of a place
for a year but has retained his domicile elsewhere may be elected repre-
sentative of his temporary residence?
It should be noted that the Constitution does not use the word
"domiciled." It uses the word "resident." There is a legally recognized
difference between residence and domicile. Residence means a place
of abode, whether permanent or temporary; domicile means permanent
residence to which one, when absent, has the intention to return. Resi-
dence, in other words, is not necessarily domicile; but domicile is nec-
essarily residence.
Keeping that distinction in mind, when the Constitution prescribes

a residence qualification, does it mean either residence or domicile, or
does it mean domicile only? W h a t did the 1935 Constitution, from
which this requirement was copied, mean?
The debates about residence during the 1934-1935 Constitutional

Convention show that there was a group of delegates led by Delegate
Ricardo N e p o m u c e n o , Sr. who favored doing away with any local resi-
dence requirement altogether. N e p o m u c e n o argued that it w o u l d be "to
the interest of the district and to the interest of the Filipino people to
9
choose from as many good Filipinos as may be possible."" This posi-
tion lost (although later it would win for Senators).
The next debatable point w a s whether the Constitution should re-

quire actual physical residence. T h e first draft of the provision, follow-
ing the example of the Jones law, provided for actual residence. But
Delegate Alejandro de G u z m a n argued against this. He pointed out that
residence has two meanings. It can m e a n either actual or constructive
residence (domicile). He argued against narrowing the meaning to only
one half of the word. He said that to narrow it thus would deprive the
provinces of individuals w h o , even if absent from the provinces, "tanto
"TV PROCEEDINGS OF THE (1934) PHILIPPINE CONSTITUTIONAL CONVEN-

TION 404 (LAUREL Ed.).
quieren y aman a la provincia y al distrito, mucho mas que los que viven
o residen actualment en la provincia."™
De G u z m a n won the vote. The adjective "actual" was dropped.

The full meaning of residence was restored. But even as late as 1995
the meaning w a s not yet clear and it became the subject of Romualdez-
11
Marcos v. Commission on Elections' and Aquino v. Commission on
22
Elections}
T h e first case involved the candidacy of Imelda Marcos in her na-

tive Leyte. T h e decision did not contain an opinion which commanded
the concurrence of a majority even though the Court did rule that Mrs.
Marcos had satisfied the residence requirement. Briefly, there were three
approaches to this one conclusion. T h e first was that Leyte had been her
domicile of origin and that in all her life she never lost it. Hence, she
was qualified to run. The second was that she did lose her domicile of
origin because when she married Ferdinand Marcos she acquired the
domicile of her husband; but when Ferdinand Marcos died, she auto-
matically reacquired her domicile of origin, and this, early enough to
satisfy the one year residence in her reacquired domicile. The third was
that, when Ferdinand Marcos died, she was left free to establish her
domicile anywhere and she chose to establish it in Leyte early enough
to satisfy the one year residence.
F r o m these three approaches, two conclusions may be drawn.

First, if a person retains his domicile of origin, for purposes of the resi-
dence requirement for representatives the one year period is irrelevant
because, by legal fiction, wherever he may b e , he is a resident of his
domicile of origin. Second, if a person re-establishes a previously aban-
doned domicile or acquire a new one, the one year requirement must be
123
satisfied.
The case of Agapito Aquino was the reverse of that of Imelda

Marcos. Aquino's domicile of origin was Tarlac. The Court ruled that
,20
W. at 41CM12.
1J1
GJi.No. 119976, September 18, 1995.
I22
G.R. No. 120265, September 18,1995.
,23
Two doctrinal points were raised by dissenting justices. The first point made was that
neither the Supreme Court nor the Commission on Elections had jurisdiction to pass judgment on
qualifications because such jurisdiction belongs exclusively to the Electoral Tribunal. The second
point, conceding that the Commission on Elections could pass judgment on qualification, said that
the Supreme Court could only reverse the Commission on the basis of grave abuse of discretion.
718 THE 1987 CONSTTTUTION Sec. 6
Aquino had not abandoned his Tarlac domicile and that, even if he had,
he had not been in Makati, the district where he had chosen to run, one
year immediately preceding the election. Justice Padilla, in addition,
made the suggestion that, even if he had not abandoned Tarlac as his do-
micile but had established residence in Makati for one year immediately
preceding the election, he would be qualified. In other words, Padilla's
view was that either domicile or residence would suffice provided that
the one year physical presence is satisfied. No justice contradicted this
view but none affirmed it either.
The residence requirement was further clarified in Domino v.

24
COMELEC.' Records showed that petitioner's domicile of origin was
Candon, Ilocos Sur and that sometime in 1 9 9 1 , he acquired a new do-
micile of choice at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon
City, as shown by his certificate of candidacy for the position of rep-
resentative of the 3rd District of Quezon City in the M a y 1995 elec-
tion. Petitioner subsequently claimed that he had effectively abandoned
his "residence" in Quezon City and had established a new "domicile"
of choice in the Province of Sarangani. He contended that his actual
physical presence in Alabel, Sarangani since D e c e m b e r 1996 was suf-
ficiently established by the lease of a house and lot located therein in
January 1997 and by the affidavits and certifications under oath of the
residents of that place that they had seen him and his family residing in
their locality.
This, however, was found to be insufficient to establish a new

domicile. To establish a new domicile of choice, personal presence in
the place must be coupled with conduct indicative of that intention. It
requires a declared and probable intent to m a k e it o n e ' s fixed and per-
manent place of abode, one's h o m e . To successfully effect a change of
domicile one must demonstrate an actual removal or an actual change
of domicile; a bona fide intention of abandoning the former place of
residence and establishing a n e w one and definite acts which corre-
spond with the purpose. In other w o r d s , there must basically be animus
manendi coupled with animus non revertendi. T h e purpose to remain
in or at the domicile of choice must be for an indefinite period of time;
the change of residence must be voluntary; and the residence at the
place chosen for the new domicile must be actual. The Court, however.
1M
G.R.No. 134015, July 19,1999.
found that the lease contract did not engender the kind of permanency
required to prove abandonment of one's original domicile. Moreover,
he was found to have registered as a voter in one of the precincts of his
former barangay in Quezon City.
T h e enumeration of qualifications in Section 6 is exclusive. Con-

gress may not add anything to it. T h u s , the requirement in Republic
Act N o . (RA) 9 1 6 5 , otherwise known as the Comprehensive Danger-
ous Drugs Act of2002, that candidates for public office should undergo
mandatory random drug testing was declared unconstitutional for can-
didates for national office in Social Justice Society v. Dangerous Drugs
25
Board.'
SEC. 7. THE MEMBERS OF THE HOUSE OF REPRESENTATIVES

SHALL BE ELECTED FOR A TERM OF THREE YEARS WHICH SHALL BEGIN,
UNLESS OTHERWISE PROVIDED BY LAW, AT NOON ON THE THIRTIETH
DAY OF JUNE NEXT FOLLOWING THEIR ELECTION.
No MEMBER OF THE HOUSE OF REPRESENTATIVES SHALL

SERVE FOR MORE THAN THREE CONSECUTIVE TERMS. VOLUNTARY
RENUNCIATION OF THE OFFICE FOR ANY LENGTH OF TIME SHALL NOT BE
CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY OF HIS SERVICE
FOR THE FULL TERM FOR WHICH HE WAS ELECTED.
1. Term of Representatives.
The Constitution has fixed the term of Representatives at three

years to be counted from noon on the thirtieth day of June next follow-
ing their election. The starting date, however, may be changed by law.
The date of election, unless otherwise provided by law, is the sec-

ond Monday of May preceding the start of a new term. The same rule
applies to the Senate.
The three-year term for Representatives was arrived at to facilitate
synchronization with the six-year term of the President, Vice-President
and the Senators. The term of Representatives first elected under the
1987 Constitution, however, began on June 30, 1987 and, like the term
of the Senators elected at the same time, did not end until noon of June
'"G.R. No. 157870, November 3,2008.

126
30,1992. This expiry date, which in effect gave a term of five years to
the Members of Congress first elected under the 1987 Constitution, was
also arrived at in order to facilitate synchronization of congressional
election with the next presidential election.
Aside from fixing the term, the 1987 Constitution has also set a
limit on the number of consecutive terms a person may serve as Repre-
sentative. "No Member of the House of Representatives shall serve for
more than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected." If
one is elected Representative to serve the unexpired term of another,
that unexpired term, no matter how short, will be considered one term
127
for the purpose of computing the number of successive terms allowed.
The three year term set by the Constitution may not be changed
by Congress. May Congress, however, pass a law which can have the
effect of shortening a Representative's tenure? The case of Dimaporo
m
v. Mitra, Jr. involved Section 6 7 , Article I X , of the O m n i b u s Election
Code, BP Big. 8 8 1 , which said that any "elective official whether na-
tional or local running for any office other than the one he is holding in
a permanent capacity except for the President and Vice-President shall
be considered ipso facto resigned from his office upon the filing of his
certificate of candidacy." After Congressman D i m a p o r o filed his candi-
dacy for Governor of the A u t o n o m o u s Region of M u s l i m M i n d a n a o , he
was excluded from the Roll of M e m b e r s of the H o u s e of Representa-
tives. Dimaporo challenged the law as an unconstitutional shortening of
his term. He argued that Article VI specifies the conditions under which
a member of Congress may lose his seat: voluntary renunciation under
Section 7; forfeiture under Section 13; expulsion under Section 16, and
129
disqualification under Section 17.
130
In upholding the validity of the law the Court said:
... [rjather than cut short the term of office of elective public
officials, this statutory provision seeks to ensure that such officials
126
Article XVIII, Section 2.
I27
II RECORD 592.
I28
202 SCRA779(1991).
""Id. at 784.
'"Id. at 790.
Sees. 8-9 ART. VI - THE LEGISLATIVE DEPARTMENT 721
serve out their entire term of office by discouraging them from

running for another public office and thereby cutting short their
tenure by making it clear that should they fail in their candidacy,
they cannot go back to their former position. This is consonant
with the constitutional edict that all public officials must serve
the people with the utmost loyalty and not trifle with the mandate
which they have received from their constituents." This does not
shorten the constitutional term of office. What happens is that the
tenure is shortened through voluntary resignation.
Correctly the Court said that the law did not shorten Dimaporo's
term; it merely shortened his tenure. Nonetheless the question may be
raised whether Congress may, in spite of the rule that inclusio unius est
exclusio alterius, add to the m o d e s of terminating tenure in Article VI
as enumerated by D i m a p o r o . In point of fact earlier statutes prescribing
termination of tenure upon filing of a certificate of candidacy were ap-
131
plicable only to local officials.
There is thus an important distinction between the term and the

tenure of an elective official. The term is the period of time allotted to
the office by law whereas tenure is the period during which the official
actually holds office. T h e rule now, moreover, affirmed in Farinas, et
2
al. v. Executive Secretary," is that a national elective official does not
terminate his tenure by the mere fact of having filed for candidacy to
a position different from what he is holding. This new rule was estab-
lished by the Fair Election L a w which repealed a contrary rule in the
Dimaporo case involving the Omnibus Election C o d e , BP Big. 8 8 1 .
SEC. 8. UNLESS OTHERWISE PROVIDED BY LAW, THE REGULAR

ELECTION OF THE SENATORS AND THE MEMBERS OF THE HOUSE OF
REPRESENTATIVES SHALL BE HELD ON THE SECOND MONDAY OF MAY.
SEC. 9. IN CASE OF VACANCY IN THE SENATE OR IN THE HOUSE

OF REPRESENTATIVES, A SPECIAL ELECTION MAY BE CALLED TO FILL
SUCH VACANCY IN THE MANNER PRESCRIBED BY LAW, BUT THE SENATOR
OR MEMBER OF THE HOUSE OF REPRESENTATIVES THUS ELECTED
SHALL SERVE ONLY FOR THE UNEXPIRED TERM.
m
See dissent, Gutierrez, J.
'"Farinas, et al. v. Executive Secretary, G.R. No. 147387, December 10, 2003. The current
rule returns to what it was under the 1935 Constitution.
722 THE 1987 CONSTITUTION Sees. 8-9
1. Filling vacancies.
"In case of vacancy in the Senate or in the House of Representa-
tives, a special election may be called to fill such vacancy in the manner
prescribed by law, but the Senator or Member of the House of Repre-
sentatives thus elected shall serve only for the unexpired term." And, as
already noted, service of the unexpired term will be counted as one term
for purposes of counting the number of allowable successive terms.
Note, moreover, that the holding of special elections has not been made
mandatory; and, if held, no set date is prescribed for it. In the case of
Senators, for instance, the special election for a vacant seat could wait
1
until the next triennial election for Senators. "
In 2 0 0 1 , a vacancy was created in the Senate when Senator Guin-

gona was made Vice-President to fill a vacancy in the vice-presidency
when Vice President Gloria Macapagal-Arroyo was raised to the presi-
dency. The Senate thereupon called on C O M E L E C to fill the vacancy
through a special election to be held simultaneously with the regular
elections on 14 May 2 0 0 1 . In that election twelve Senators, with a
6-year term each, were due to be elected. W h e n the C O M E L E C is-
sued a resolution providing that the "Senatorial candidate garnering the
13th highest number of votes shall serve only for the unexpired term of
former Senator Teofisto T. Guingona, Jr.," the validity of the resolution
was challenged on the ground that the C O M E L E C had failed to notify
the electorate of the position to be filled in the special election as re-
quired under Section 2 of Republic Act N o . 6645 to require senatorial
candidates to indicate in their certificates of candidacy whether they
were seeking election under the special or regular elections as allegedly
required under Section 73 of Batas P a m b a n s a B i g . 8 8 1 . In ignoring this
objection the Court ruled that the right and duty to hold special elec-
tion emanates from the statute and not from a call for the election by
some authority like the C O M E L E C . T h e law itself charges voters with
knowledge of the time and place of the election. This is so because a
statute that expressly provides that an election to fill a vacancy shall
be held at the next general elections fixes the date at which the special
election is to be held and operates as the call for that election. Conse-
quently, an election held at the time thus prescribed is not invalidated
'"Id.m 161.
Sec.10 ART. VI - THE LEGISLATIVE DEPARTMENT 723
by the fact that the body charged by law with the duty of calling the
134
election failed to do so.
SEC. 10. THE SALARIES OF SENATORS AND MEMBERS OF THE

HOUSE OF 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.
1. Salary of Senators and Representatives.
T h e annual salary of the m e m b e r s of Congress has been initially

fixed by Article XVIII, Section 17 at t w o hundred four thousand pesos,
and that of President of the Senate and of the Speaker at two hundred
forty thousand pesos. These are subject to change by law. However,
" N o increase in said compensation shall take effect until after the expi-
ration of the full term of all the M e m b e r s of the Senate and the House
of Representatives approving such increase." This limitation is a carry
over from the 1935 Constitution as well as from the 1973 Constitution.
Its purpose is to place a "legal bar to the legislators yielding to the natu-
ral temptation to increase their salaries. Not that the power to provide
for higher compensation is lacking, but with the length of time that has
to elapse before an increase becomes effective, there is a deterrent fac-
135
tor to any such measure unless the need for it is clearly felt."
It should be noted that an increase in salary does not take effect

"until after the expiration of the full term of all the Members of the
Senate and of the House of Representatives approving such increase."
Although the term of Representatives is only three years, the term of
Senators is six years. It is only after the expiration of the six-year term
of Senators who approved the increase that the increase in salary be-
136
comes effective. Moreover, the retirement benefits of a legislator must
be based on the salary in effect during his term and not on the increased
137
salary of the subsequent term.
,34
Tolentino v. COMELEC. G J 4 . No. 1 4 8 3 3 4 , January 2 1 , 2 0 0 4 .
I 3 5
2 TANADA & FERNANDO, CONSTTTUTION OF THE PHILIPPINES 8 6 7 , quoted in PHILCONSA v.
Mathay, 18 SCRA 3 0 0 , 3 0 7 ( 1 9 6 6 ) .
<*See PHILCONSA v. Mathay, 18 SCRA 3 0 0 , 3 0 7 ( 1 9 6 6 ) .
'"Ligot v. Mathay, 56 SCRA 8 2 3 , 8 2 7 - 8 ( 1 9 7 4 ) .
THE 1987 CONSTITUTION Sec.10
724
The 1935 Constitution provided that the fixed annual compensa-

tion of legislators already included "per diems and other emoluments
or allowances" and excluded only "traveling expenses to and from their
respective districts in the case of Members of the House of Representa-
tives and to and from their places of residence in the case of Senators,
when attending sessions of the Congress." Hence, a grant of "per diems
and other emoluments or allowances" constituted an increase which
could take effect only after the expiration of the full term of the Sena-
tors and Members of the House approving such per diems and other
emoluments or allowances. T h u s , it was that the immediate effectivity
of a law allowing retirement gratuity and commutation of vacation and
sick leave to Senators and Representatives was disallowed in PHIL-
CONSA v. Gimenez.™ No similar provision on per diems, emoluments,
and allowances appeared in the 1973 provision, nor does one now ap-
pear in the 1987 provision. The prohibition of immediate increase in the
139
1987 text refers only to "salaries," the fixed annual amount.
2. Allowances.
The 1935 Constitution allowed for traveling expenses of legisla-

tors but it said nothing about office expenses for supplies and personnel.
It is common knowledge, however, that the old Congress w a s generous
in providing for office expenses. As a gesture to the clamor for reform,
the move in the 1971 Convention to set a limit to allowable travel, of-
fice and personnel expenses gained ground and found a place in the
earlier drafts. The 1971 Convention eventually withdrew the gesture.
,38
PHTLCONSA v. Gimenez, 15 SCRA 479 (1965).
'"It should be pointed out that the 1935 provision did not use the term "salary," which is a
fixed amount; rather, it used the broader term "compensation" and then went on to specify that this
included various variables, such as "per diems and other [variable] emoluments and allowances"
and excluded only "traveling expenses to and from their respective districts in the case of Members
of the House of Representatives and to and from their places of residence, in the case of Senators,
when attending sessions of the Congress." [Article VI, Section 14 (1935)] The fact that travel-
ing expenses were singled out for exclusion is extremely significant. Traveling expenses, strictly
speaking, are not part of compensation but are more in the nature of reimbursement for actual
expenses incident to the discharge of one's duties. They do not therefore constitute additional com-
pensation. Peraha v. Mathay, 38 SCRA 256,260-61 (1971). That traveling expenses were singled
out for exclusion from the constitutional prohibition implied, because of the principle inclusio
unius, exclusio alterius, that other forms of "reimbursement" were not similarly excluded. In other
words, the 1935 provision showed "how jealous were the members of the [1935] Constitutional
Convention in guarding against the temptation for members of Congress to increase their salaries."
PHILCONSA v. Gimenez, 15 SCRA at 489.
Explaining the deletion of the limitation from the draft, Delegate de

140
Guzman said:
It does not mean that the members of the National Assem-

bly shall not be entitled or shall not enjoy expenditures for travel,
supplies, personnel or technical services. It simply means, your
Honor, that it is not necessary that we should incorporate it here
because the Committee feels that this is an internal matter which
could very well be taken up by the National Assembly.
141
Delegate Yancha explained further:
The National Assembly is granted general legislative pow-

ers, particularly in appropriations. The power of the Assembly to
enact appropriations is only limited by the provisions in the Con-
stitution; and we feel that appropriating funds for the operational
expenses and the maintenance of the National Assembly should
not be spelled out anymore in the Constitution because the Na-
tional Assembly can appropriate those funds.
The 1986 Constitutional Commission chose not to be more strict

than the 1971 Constitutional Convention. Does this mean therefore that
there is no limit to the amount Congress may appropriate? There is no
legal limit. T h e limit will only be moral, arising from the realization
that, according to Section 2 0 , the records and books of account of Con-
gress shall be open to the public in accordance with law and that such
books shall be audited by the Commission on Audit which shall publish
annually the itemized expenditures for each member.
SEC. 1 1 . A SENATOR OR MEMBER OF THE HOUSE OF

REPRESENTATIVES SHALL, IN ALL OFFENSES PUNISHABLE BV NOT MORE
THAN SIX YEARS IMPRISONMENT, BE PRIVILEGED FROM ARREST WHILE
THE CONGRESS IS IN SESSION. 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.
1. Privilege from arrest.

The privilege from arrest found in Section 15, Article VI of the
1935 Constitution was the same parliamentary immunity from arrest
'•"Meeting of the 166-Man Special Committee, November 16,1972.

'"Id.
726 THE 1987 CONSTITUTION Sec.11
enjoyed by the members of the Parliament of England and by mem-

bers of the United States Congress. As authoritatively interpreted by
2
the Philippine Supreme Court in Martinez v. Morfe," a case involving a
delegate to the 1971 Constitutional Convention, contrary to the conten-
tion of Delegate Martinez, the privilege did not include immunity from
arrest arising from an act or omission punishable by law. It covered only
immunity from civil arrests. The Court explained the rationale of the
13
immunity thus:"
The above conclusion reached by this Court is bolstered and

fortified by policy considerations. There is, to be sure, a full recog-
nition of the necessity to have members of Congress, and likewise
delegates to the Constitutional Convention, entitled to the utmost
freedom to enable them to discharge their vital responsibilities,
bowing to no other except the dictates of their conscience. Neces-
sarily the utmost latitude in free speech should be accorded them.
When it comes to freedom from arrest, however, it would amount
to the creation of a privileged class, without justification in rea-
son, if notwithstanding their liability for a criminal offense, they
would be considered immune during their attendance in Congress
and in going to and returning from the same. There is likely to be
no dissent from the proposition that a legislator or a delegate can
perform his functions efficiently and well, without the need for
any transgression of the criminal law. Should such an unfortunate
event come to pass, he is to be treated like any other citizen con-
sidering that there is a strong public interest in seeing to it that
crime should not go unpunished. To the fear that may be expressed
that the prosecuting arm of the government might unjustly go af-
ter legislators belonging to the minority, it suffices to answer that
precisely all the safeguards thrown around an accused by the Con-
stitution, solicitous of the rights of an individual, would constitute
an obstacle to such an attempt at abuse of power. The presumption
of course is that the judiciary would remain independent. It is trite
to say that in each and every manifestation of judiciary endeavor,
such a virtue is of the essence.
The rationale of limiting the immunity to civil arrests, as expressed

by the Supreme Court and reflecting parliamentary experience going
back to the mother of parliaments, did not appeal to the w i s d o m of the
'44 SCRA 22 (1972).

'Id. at 37-8.
1971 Constitutional Convention. Section 9 of Article VIII of the 1973

Constitution m a d e an assemblyman i m m u n e from arrest arising from
"all offenses punishable by not more than six years imprisonment." The
1986 Constitutional Commission chose to follow what the 1971 Con-
144
stitutional Convention did. Needless to say, moreover, the immunity
applies for as long as Congress is in session, whether or not the legisla-
145
tor involved is actually attending it.
In the light of the reasoning in the Martinez case, however, it is

submitted that the expansion of the immunity m a d e by the 1973 and
1987 Constitutions cannot be further expanded by ordinary legislation.
In fact, an attempt in the Constitutional Commission itself to extend the
46
protection to immunity from searches was rejected.'
It should also be added that one who has been convicted does not
enjoy immunity from arrest. Thus a Congressman who has been con-
victed of rape and is in detention cannot claim that he should be freed
because of popular sovereignty and the need of his constituents to be
1 1
represented. People v. Jalosjos " ruled that Members of Congress are
not exempt from detention for crime. They may be arrested, even when
the House is in session, for crimes punishable by a penalty of more than
six m o n t h s . There is no basis whatsoever for treating him or her differ-
ently from other convicts.
2. Parliamentary freedom of speech and debate.
Section 15, Article V I , of the 1935 Constitution provided that "for

any speech or debate" in Congress, the Senators and Members of the
House of Representatives "shall not be questioned in any other place."
m
Osmefia, Jr. v. Pendatun explained the import of this provision thus:
Our Constitution enshrines parliamentary immunity which

is a fundamental privilege cherished in every legislative assem-
bly of the democratic world. As old as the English Parliament, its
44
' The 1973 provision also said that "the Batasang Pambansa shall surrender the Member
involved to the custody of the law within twenty-four hours after its adjournment for a recess or its
next session, otherwise such privilege shall cease upon its failure to do so." The new Constitution
has dropped this on the reasoning that Congress is not the bondsman or custodian of its members,
n RECORD 178.
145
W.at 182-184,195.
'"/d. at 178-185.
I47
G.R. Nos. 132875-76, February 3,2000.
I4
"109 Phil. 863,868-69 (1960).
728 THE 1987 CONSTTTUTION Sec.11
purpose "is to enable and encourage a representative of the public

to discharge his public trust with firmness and success" for "it is
indispensably necessary that he should enjoy the fullest liberty of
speech, and that he should be protected from the resentment of
every one, however powerful, to whom the exercise of that liberty
149
may occasion offense." Such immunity has come to this country
from the practices of Parliament as construed and applied by the
Congress of the United States. Its extent and application remain
no longer in doubt in so far as related to the question before us.
It guarantees the legislator complete freedom of expression with-
out fear of being made responsible in criminal actions before the
courts or any other forum outside of the Congressional Hall. But
it does not protect him from responsibility before the legislative
body itself whenever his words and conduct are considered by the
latter disorderly or unbecoming a member thereof.
The 1935 provision was a copy of the speech and debate clause of
Article I, Section 6, of the United States Constitution. T h e 1987 text, as
also the 1973 text, is a slight modification of the traditional phraseology
but it has preserved the traditional limit and scope of the immunity. In
the first place, it is a guarantee of immunity from answerability before
an outside forum but not from answerability to the disciplinary author-
ity of Congress itself. In the second place, to c o m e under the guarantee
the "speech or d e b a t e " must be o n e m a d e "in the Congress or in any
committee thereof." This requirement, however, does not refer merely
to the locale of the "speech or d e b a t e " but, m o r e importantly, also to its
150
nature. As Jimenez v. Cabangbang put it:
Said expression refers to utterances made by Congressmen

in the performance of their official functions, such as speeches de-
livered, statements made, or votes cast in the halls of Congress,
while the same is in session, as well as bills introduced in Congress,
whether the same is in session or not, and other acts performed by
Congressmen, either in Congress or outside the premises housing
its offices, in the official discharge of their duties as members of
Congress and of Congressional Committees duly authorized to
perform its functions as such, at the time of the performance of the
151
acts in question.
""Tenney v. Brandhove, 341 U.S. 367.

150
17 SCRA 876, 878 (1966).
'"Vera v. Avelino, 77 Phil. 192; Tenney v. Brandhove, 341 U.S. 367; Coffin v. Coffin, 4
Mass. 1 See also Antonino v. Valencia, 57 SCRA 70 (May 27, 1974).
Sec. 12 ART VI - THE LEGISLATIVE DEPARTMENT 729
Two American cases shed further light on the nature of the legisla-
152
tive acts protected by the speech and debate clause. Gravel v. US. em-
phasized that although the speech and debate clause has been extended
beyond pure speech and debate, the essential requirement for its ap-
plicability has always been that the action involved must be legislative
action. Legislative action refers to the "deliberative and communicative
process" by which m e m b e r s participate in committee and House pro-
ceedings in the consideration of proposed legislation or of other matters
that the Constitution places within the jurisdiction of the legislature.
W h e n legislative action is involved, the testimonial privilege protects
even the agents and aides of the m e m b e r s of the legislature. In the light
of this, the Supreme Court found that Senator M i k e Gravel's alleged
arrangement for private publication of the Pentagon Papers was not an
integral part of the deliberative and communicative process of legisla-
tive activity protected by the speech and debate clause. The vote how-
ever was 5 to 4.
153
In Brewster v. US., the Supreme Court held that a United States
Senator was not protected by the speech and debate clause for solici-
tation and acceptance of a bribe in return for his vote on a legislative
question. Again the decision revolved around the nature of a legislative
act: "A legislative act has consistently been defined as an act gener-
ally done in Congress in relation to the business before it. In sum, the
Speech and Debate clause prohibits inquiry only into those things gen-
erally said or done in the House in the performance of official duties and
the motivation of those acts." A prosecution for taking a bribe does not
1 4
require such inquiry. Distinguishing the case from US. v. Johnson, '
the Chief Justice said that the Johnson case involved questioning about
the speech, who wrote it, and its factual basis. When however an action
is merely related to legislative responsibilities, it is not covered by the
clause. The purpose of the clause is merely to protect the integrity of the
legislative process. But again the vote was divided 6 to 3.
SEC. 12. 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
l52
408 U.S. 606 (1972).
,53
408 U.S.501 (1972).
IM
383 U.S. 169.
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.
1. Financial and business interests.
The first sentence of Section 12 sets down a policy of full dis-

closure of the financial and business affairs of a legislator. The second
sentence requires him to put the House on notice about any "potential
conflict of interest that may arise from the filing of a proposed legisla-
tion of which they are authors." However, it does not prevent the legis-
lator from filing the proposed legislation. It merely enables the House
to examine the arguments he might present with a sharper eye and in
the context of his personal interest. The advance disclosure would cre-
ate a presumption in favor of the legislator concerned should he later be
55
charged by his colleagues with conflict of interest.'
SEC 13. No SENATOR OR MEMBER OF THE HOUSE OF

REPRESENTATIVES MAY 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, DURING HIS TERM
WITHOUT FORFEITING HIS SEAT. NEITHER SHALL HE BE APPOINTED TO
ANY OFFICE WHICH MAY HAVE BEEN CREATED OR THE EMOLUMENTS
THEREOF INCREASED DURING THE TERM FOR WHICH HE WAS ELECTED.
1. Disqualifications.
A m e m b e r of Congress may not hold, during his tenure as m e m -

ber, any other office in the government or in any of its instrumentali-
ties, including government-owned or controlled corporations or their
subsidiaries. The prohibited offices include m e m b e r s h i p in the board of
regents, board of trustees, or board of directors of state universities and
156
colleges. Since the prohibition is only during his tenure, a legislator is
not prevented from accepting an appointment. However, if he chooses
157
to accept another office, he automatically forfeits his seat in C o n g r e s s .
'"II RECORD 165-168.

IJ6
W.at89.
'"Id. at 162-3. Compare this with a similar prohibition in Article IX, B, Section 7.
The disqualification in the second sentence, however, applies for

the duration of the six year term even if he resigns from Congress be-
fore the end of his term. Under the 1935 and 1973 Constitutions, to
c o m e under this disqualification, two conditions must concur: (1) the
office must be civil; and (2) such office must have been created or its
emoluments increased "while he was a m e m b e r " of the legislature. Un-
der the 1987 provision, the office need not be a civil one; it could be a
158
military office.
SEC. 1 4 . No SENATOR OR MEMBER OF THE HOUSE OF

REPRESENTATIVES MAY PERSONALLY APPEAR AS COUNSEL BEFORE
ANY COURT OF JUSTICE OR BEFORE THE ELECTORAL TRIBUNALS,
OR QUASI-JUDICIAL AND OTHER ADMINISTRATIVE BODIES. NEITHER
SHALL HE, DIRECTLY OR INDIRECTLY, BE INTERESTED FINANCIALLY IN
ANY CONTRACT WITH, OR IN ANY FRANCHISE OR SPECIAL PRIVILEGE
GRANTED BY THE GOVERNMENT, OR ANY SUBDIVISION, AGENCY, OR
INSTRUMENTALITY THEREOF, INCLUDING ANY GOVERNMENT-OWNED
OR CONTROLLED CORPORATION, OR ITS SUBSIDIARY, DURING HIS TERM
OF OFFICE. HE SHALL NOT INTERVENE IN ANY MATTER BEFORE ANY
OFFICE OF THE GOVERNMENT FOR HIS PECUNIARY BENEFIT OR WHERE
HE MAY BE CALLED UPON TO ACT ON ACCOUNT OF HIS OFFICE.
1. Prohibitions; lawyer legislators.
The prohibitions found in Section 14 are intended to prevent

members of Congress from taking advantage, pecuniary or otherwise,
of their position in their dealings with the courts, or in their business
operations, or in their dealings with any government agency or corpora-
tion.
The prohibition imposed on lawyer-legislators is a much strict-

er one than its counterpart in the 1935 or 1973 Constitution neither
159
of which had a blanket prohibition of appearances in court. Under
the 1987 provision, a lawyer legislator may not "personally appear as
counsel before any court of justice." This prohibition cannot be circum-
vented under the guise of appearing "in intervention" in one's behalf.
Puyat v. de Guzman™ dealt with an Assemblyman who bought a nomi-
l5,
W. at 45-6.
'"See Article VI, Section 17 (1935) and Article Vin, Section 11 (1973).
'"113 SCRA 31,37 (March 25, 1982).
nal amount of shares in a corporation which was party to a suit before

the Securities and Exchange Commission and then proceeded to appear
"in intervention" purportedly to protect his own interest. The Court saw
through the ruse and said:
A ruling upholding the "intervention" would make the con-

stitutional provision ineffective. All an Assemblyman need do, if
he wants to influence an administrative body is to acquire a mini-
mal participation in the "interest" of a client and then "intervene"
in the proceedings. That which the Constitution directly prohibits
may not be done by indirection.
One may infer from this conclusion of the Court that a legislator
may appear in person if in fact he is a genuine party in the case.
The extent of the prohibition imposed on lawyer legislators was

extensively discussed by the 1986 Constitutional Commission. The
original proposal submitted by the Conuriittee did not prohibit appear-
ance before collegiate courts. T h e final version, principally because of
the advocacy of Commissioner Colayco, prohibits appearance before
16
any court; ' however, it is not a blanket prohibition of the practice of
162
law.
When Commissioner Colayco, himself a j u d g e of fifteen years

experience, argued for an absolute prohibition of appearances before
any court, the proposal he was espousing read thus: " N o Senator or
Member of the House of Representatives may appear as counsel before
any court." Arguing against allowing Senators and Representatives to
163
appear even before collegiate courts, he said:
It may be argued that insofar as the Supreme Court is con-

cerned the danger may be minimal because they have nothing
more to expect as far as promotion is concerned. But what about
those below the Supreme Court? For instance, the members of
the Intermediate Appellate Courts and the Sandiganbayan always
hope that they will be promoted. And like good men, they do not
want to have any negative factor that may be an obstacle to their
promotion. Legislators are influential people whether they lift a
"II RECORD 123-127.

"W.at 105-6.
'"Id. at 123-4. Colayco was strongly supported by Romulo, id. 124, and strongly opposed
by Padilla,,d. 125-127.
finger or not. There is always that fear in the mind of the member
of the collegiate court that sometime in the future he may need
the help of the legislative member appearing before him, although
unsolicited.
Colayco's argument was followed by an interpellation by C o m -

164
missioner Suarez which went thus:
MR. SUAREZ. There is a phrase here which reads: "shall

appear as counsel." I suppose the proponent is referring to a per-
sonal appearance as counsel.
MR. COLAYCO. That is correct.
MR. SUAREZ. It would not preclude, for example, the law
firm to which this Senator or Member of the House would be con-
nected from appearing before any court?
MR. COLAYCO. I would include that in my prohibition.
MR. SUAREZ. In other words, the proponent would pro-
hibit even the law firm to which he or she may be a partner from
appearing before any court of justice.
MR. COLAYCO. That is correct, Madam President.
After this exchange, there were more spirited arguments from

both sides. But just before the vote, Colayco intervened again and pref-
aced his remarks by saying: "I would like to say a few words before
submitting my proposals to the body for a v o t e . . . . I am afraid I did not
know that my proposal will be so unpopular especially with the lawyers
165
who are Members of the legislature." Thereafter, he offered to read
166
his proposal:
MR. COLAYCO I would like to clarify that my proposal

covers only the personal appearance of the Members of the House
of Representatives and of the Senate.
THE PRESIDENT. So, how would the proposed amendment
be?
MR. COLAYCO. It will read: "No Senator or Member of the
House of Representatives MAY PERSONALLY appear as counsel
"*Id. at 125.
IM
W.at 127.
M
Id.
before any court OF J U S T I C E . " With this prohibition, the subse-

quent lines will be covered already.
Put to a vote immediately thereafter, the proposal was approved

25 to 10.
Did Colayco modify his answer to Commissioner Suarez relative
to the appearance of law firms? It would seem so. He modified his origi-
nal proposal and added "personally." It is quite clear that the personality
of a law partnership is distinct from that of its partners.
2. Prohibitions: conflict of interests.
Legislators are also prohibited from being '"directly or indirectly .

. . interested financially in any contract with, or in any franchise or spe-
cial privilege granted by the Government, or any subdivision, agency,
or instrumentality thereof, including any government-owned or con-
trolled corporation, or its subsidiary, during his term of office." T h u s ,
they cannot be members of the board of corporations with contract with
167
the government. Such would be at least indirect financial interest.
Neither may a legislator "intervene in any matter before any office

of the Government for his pecuniary benefit or where he m a y be called
upon to act on account of his office." T h e prohibited pecuniary benefit
could be direct or indirect and thus would cover pecuniary benefit for
168
relatives.
SEC. 1 5 . THE CONGRESS SHALL CONVENE ONCE EVERY YEAR

ON THE FOURTH MONDAY OF JULY FOR ITS REGULAR SESSION, UNLESS
A DIFFERENT DATE IS FIXED BY LAW, AND SHALL CONTINUE TO BE IN
SESSION FOR SUCH NUMBER OF DAYS AS IT MAY DETERMINE UNTIL
THIRTY DAYS BEFORE THE OPENING OF ITS NEXT REGULAR SESSION,
EXCLUSIVE OF SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS. THE
PRESIDENT MAY CALL A SPECIAL SESSION AT ANY TIME.
1. Sessions of Congress.
Unlike the regular session under the 1935 Constitution, which
lasted for only one hundred d a y s , the regular session under Section 15,
l67
W. at 106-7.
"*ld.at 128.
like that in the 1973 Constitution, may last for as long as Congress
wishes but only "until thirty days before the opening of its next regular
session, exclusive of Saturdays, Sundays, and legal holidays." How-
ever, the President may call Congress to a special session at any time.
A n d again unlike the special session under the 1935 Constitution which
was limited to thirty d a y s , the special session under Section 15, like that
in the 1973 Constitution, has no fixed limit. It can last for as long as the
Congress wants.
M a y the President limit the subjects which may be considered

during a special session called by him? Under the 1935 Constitution,
the President could, because Section 9, Article VI, said that the Presi-
dent could call a special session "to consider general legislation or only
such subjects as he may designate." T h e language of the 1987 Constitu-
tion is different: " T h e President may call a special session any time."
T h e language is not exclusive. T h e President is given the power to call
a session and to specify subjects he wants considered, but it does not
e m p o w e r h i m to prohibit consideration of other subjects. After all, Con-
gress, if it so wishes, may stay in regular session almost all year round.
SEC. 1 6 . ( 1 ) THE SENATE SHALL ELECT ITS PRESIDENT AND THE

HOUSE OF REPRESENTATIVES ITS SPEAKER, BY A MAJORITY VOTE OF
ALL ITS RESPECTIVE MEMBERS.
EACH HOUSE SHALL CHOOSE SUCH OTHER OFFICERS AS IT MAY

DEEM NECESSARY.
(2) A MAJORITY OF EACH HOUSE SHALL CONSTITUTE A

QUORUM TO DO BUSINESS, BUT A SMALLER NUMBER MAY ADJOURN
FROM DAY TO DAY AND MAY COMPEL THE ATTENDANCE OF ABSENT
MEMBERS IN SUCH MANNER, AND UNDER SUCH PENALTIES, AS SUCH
HOUSE MAY PROVIDE.
(3) EACH HOUSE MAY DETERMINE THE RULES OF ITS

PROCEEDINGS, PUNISH ITS MEMBERS FOR DISORDERLY BEHAVIOR,
AND WITH THE CONCURRENCE OF TWO-THIRDS OF ALL ITS MEMBERS,
SUSPEND OR EXPEL A MEMBER. A PENALTY OF SUSPENSION, WHEN
IMPOSED, SHALL NOT EXCEED SIXTY DAYS.
(4) EACH HOUSE SHALL KEEP A JOURNAL OF ITS PROCEEDINGS,

AND FROM TIME TO TIME PUBLISH THE SAME, EXCEPTING SUCH PARTS
AS MAY, IN ITS JUDGMENT, AFFECT NATIONAL SECURITY; AND THE YEAS
AND NAYS ON ANY QUESTION SHALL, AT THE REQUEST OF ONE-FIFTH OF
THE MEMBERS PRESENT, BE ENTERED IN THE JOURNAL.
EACH HOUSE SHALL ALSO KEEP A RECORD OF ITS PROCEEDINGS.
(5) NEITHER HOUSE DURING THE SESSIONS OF THE CONGRESS

SHALL, WITHOUT THE CONSENT OF THE OTHER, ADJOURN FOR MORE
THAN THREE DAYS, NOR TO ANY OTHER PLACE THAN THAT IN WHICH
THE TWO HOUSES SHALL BE SITTING.
1. Officers of Congress.
Congress becomes properly organized once the officers have been
chosen. The only officers prescribed by the Constitution are the Presi-
dent of the Senate and the Speaker of the House of Representatives,
both of whom are elected by a majority vote of all the M e m b e r s of their
respective Houses. Each House, however, may decide to have other of-
ficers. How these other officers are chosen is something that is within
the control of each House. T h u s , when Senator Tatad challenged the
validity of the election of Guingona as minority leader claiming that he
69
should be the minority leader, the Court said in Santiago v. Guingona'
that "in the absence of constitutional or statutory guidelines or specific
rules, this Court is devoid of any basis upon which to determine the
legality of the acts of the Senate relative thereto. On grounds of respect
for the basic concept of separation of p o w e r s , courts may not intervene
in the internal affairs of the legislature; it is not within the province of
courts to direct Congress h o w to do its work."
An interesting question which arose under the 1935 Constitution

was whether the judiciary could look into the legality of the election of
a Senate President. For the answer, one can look to the Supreme Court's
handling of the matter in Avelino v. Cuenco.™
During the Senate session of February 2 1 , 1 9 4 9 , Senate President

Avelino walked out of the session hall followed by nine other senators.
This left only twelve senators in the session hall. (Of the twenty-four
senators, one was in the United States and another in a local hospital.)
The Senate President Pro-Tempore then took over and, by a resolution
approved by the twelve remaining senators, the position of Senate Pres-
ident was declared vacant, and Senator C u e n c o was designated Acting
Senate President. Avelino brought the case to court asking whether the
'Santiago v. Guingona, G.R. No. 134577, November 18,1998

'83 Phil. 17 (1949).
twelve senators w h o had designated Cuenco Senate President consti-

tuted a quorum.
By a vote of 6-4, the Court refused to assume jurisdiction. It de-

clared that the controversy was political in nature and that the constitu-
tional grant to the Senate of the power to elect its own president should
not be taken over by the judiciary. T h e choice of a Senate President
"affects only the Senators themselves who are at liberty at any time
171
to choose their officers, change or reinstate them." Furthermore, the
172
Court said:
The Court will not sally into the legitimate domain of the
Senate on the plea that our refusal to intercede might lead into a
crisis, even a revolution. No state of things has been proved that
might change the temper of the Filipino people as a [sic] peaceful
and law-abiding citizens. And we should not allow ourselves to be
stampeded into a rash action inconsistent with the calm that should
characterize judicial deliberations.
Chief Justice Moran, Justices Tuason, Perfecto and Briones ar-

gued for assuming jurisdiction.
M o r a n argued that the question of quorum was a constitutional

issue which could be decided by neither of the two conflicting Sen-
ate factions. With the conflict remaining unsettled, the laws passed by
the Senate would be open to doubt. He warned against the "general
situation of uncertainty, pregnant with grave dangers" which was "de-
veloping into confusion and chaos with severe harm to the nation." He
therefore advocated intervention by the Court, the guardian of the Con-
stitution, through the exercise of "the utmost judicial temper and judi-
173
cial statesmanship."
174
Justice Tuason's reasoning ran thus:
Here the process sought is to be issued against an appointee

of a Senate, that, it is alleged, was not validly constituted to do
business because . . . there was no quorum. The Court is not asked
to interfere with an action of a coordinate branch of the govem-
n
'ld. at 21-2. But, jurisdiction or not, eight Justices voted 4-4 on the question.
m
ld.
m
ld. at 25-6.
,74
W.at66-7.
merit, so much as to test the legality of the appointment of the

respondent.
. . . Although this Court has no control of either branch of the
Congress, it does have the power to ascertain, whether or not one
who pretends to be its officer is holding his office according to law
or the Constitution. Political questions as a bar to jurisdiction can
only be raised by the supreme power, by the legislature, and not by
one of its creatures.
Justice Perfecto conceded that the Senate was the only body that
175
could determine from time to time " w h o is and shall be its President."
176
But, he added:
[I]n making such changes of leadership, the Senate and the

Senators are bound to follow the orderly processes set and outlined
by the Constitution and the rules adopted by the Senate as autho-
rized by the fundamental law. Any step beyond said legal bounds
may create a legal hiatus which, once submitted to the proper
courts of justice, the latter cannot simply wash their hands and
ignore the issue upon the pretext of lack of jurisdiction . . .
Justice Briones was for assuming jurisdiction because the heart

of the controversy was the business of legislation, one of the essentials
of a republic. Moreover, "el conflicto surgido . . . ha cobrado las pro-
porciones de una tremenda crisis nacional, prenada de graves peligros
para la estabilidad de nuestras instituciones politicas, para el orden
publicoypara la integridadde la existencia de la nation.""'' Finally, he
agreed with Werts v. Rogers that, besides justiciability, another ground
for courts to take cognizance of a case is "extrema necesidad."™
But six Justices remained unconvinced.
In the case of Alejandrino v. Quezon, Justice Ostrand had said: "It

is usually when courts fail in these respects [performance of duties],
and thus prove unfaithful to their trust, that their orders are disregarded
179
and trouble ensues." Whether or not the 6-4 vote in the original reso-
m
Id. at 38.
""Id. at 52.
177
W.at58.
m
Id. at 69.
l7,
16Phil. 142-3(1910).
lution of the Court in Avelino v. Cuenco meant a failure in judicial du-

ties will forever be a subject of debate. But trouble did ensue.
Following the constitutional provision that in the absence of a

quorum " a number may adjourn from day to day and may compel the
attendance of absent M e m b e r s , " the Cuenco group issued orders for the
arrest of absenting Senators. But the orders were ignored.
Originally, the Court had said that no circumstances had been

proved which could change the pacific and law-abiding temper of Fili-
pinos. N o w there were indications that the Filipino temper was being
taxed severely. Chief Justice M o r a n and Justice Briones had already
spoken of a situation pregnant with grave dangers. Thus it was that, in
the reconsideration of the case, the Court, by a vote of 7-4, decided to
a s s u m e jurisdiction "in the light of subsequent events which justify its
180
intervention."
181
T h e language of Justice Pablo was solemn and sacrificial:
Es un sano estadismo judicial evitarlo [fatales consecuen-

cias]y, si es necesario, impedirlo ... Como magistrado, no deben
importarme las consecuencias de mi opinion, emitida despues de
un estudio concienzudo; pero como ciudadano, me duele ver una
lucha enconada entre dos grupos en el senado sin fin practico ...Si
insisto en mi opinion anterior, fracasara todo esfuerzo de reajuste
de nuestras opiniones para darfin a la crisis en el Senado.
Justice Feria, however, was more radical. He was for establish-

ing "in this country, judicial supremacy, with the Supreme Court as
the final arbiter, to see that no one branch or agency of the government
transcends the Constitution, not only in justiciable but political ques-
2
tions as well"™
If Justice Feria's reasoning had been the decisive factor in the re-
consideration, this case would constitute a radical change in the Court's
attitude to political questions. But what caused the reversal of the
Court's original resolution were the peculiar circumstances that had de-
veloped in the political scene. The Court Resolution on reconsideration
l8
°83 Phil. 68 (1949).
"'Id. at 74-5.
'"Id. at 71. Italics added.
3
spoke of "subsequent events" which justified its intervention." Justice
Pablo, in reversing his stand, admittedly yielded only to a citizen's de-
sire for the settlement of the Senate crisis. Thus, when two years later,
in 1951, the case of Avelino v. Cuenco was invoked in the case of Cabili
v. Francisco as authority for the Supreme Court to intervene in the al-
legedly unconstitutional reorganization of the Commission on Appoint-
ments, the Court ruled that the conditions which impelled the Court to
184
assume jurisdiction in the Avelino case did not presently obtain.
2. "A quorum to do business."
For a long time the accepted practice in the House of Representa-

tives of the United States, operating under a provision on quorum iden-
tical with the one found in Section 16(2), was that only members voting
on a proposition were counted for the purposes of determining a quo-
rum. In 1890, however, Speaker Reed ruled that all m e m b e r s present,
whether voting or not voting, should be counted. This ruling eventually
became Rule XV of the House and the U . S . Supreme Court upheld the
rule saying that, since the Constitution did not prescribe the method for
determining the presence of a majority, the H o u s e was competent "to
prescribe any method which shall be reasonably certain to ascertain the
185
fact."
The base for computing the majority of the legislative body for
the purpose of determining the existence of a q u o r u m should normally
be the total membership of the body. It will be noted, however, that
6
in the case of Avelino v. Cuenco™ the base used w a s twenty-three, al-
though the total membership of the Senate was twenty-four. Apparently
this was because the twenty-fourth senator w a s abroad and therefore
m
U. at 68.
I84
G.R. No. 4638, May 8,1951.16 LJ. 302,303. The facts of the case were as follows: As
a result of a new party alignment that divided the Senate into two factions, the Little Senate and
the Democratic Group, the latter commanding a majority, a reshuffle was made of the membership
in the Commission on Appointments. The Senators composing the so-called Little Senate filed a
petition with the Supreme Court seeking to annul the reorganization of the Commission on Ap-
pointments.
w
hile not assuming jurisdiction over the case, the Court discussed the legality of the reshuf-
fle. Four Justices held that membership in the Commission on Appointments should at all times
reflect party alignment. Four others held that the constitution contemplated stability of tenure for
the members, irrespective of subsequent change in party alignment.
•"United States v.Ballin, 144 U.S. 1,5-6(1892)
"*83 Phil. 17(1949).
187
beyond the coercive power of the Senate, although this manner of
approaching the subject can lead to the ridiculous should the majority
of the legislative body be abroad and beyond the coercive power of the
body.
3. Internal rules and discipline.
Inherent in any legislative body is its power of internal regula-

tion and discipline. As Justice Story said, "If the power did not exist,
it would be utterly impracticable to transact the business of the nation,
either at all, or at least with decency, deliberation, and order. The hum-
blest assembly of men is understood to possess this power; and it would
188
be absurd to deprive the councils of the nation of a like authority."
Article V I , Section 10(3) of the 1935 Constitution said: "Each

house may determine the rules of its proceedings, punish its members
for disorderly behavior, and, with the consent of two-thirds of all its
M e m b e r s , expel a member." T h e 1973 counterpart modified the above
rule by prescribing the number of votes needed to impose a suspension
and by limiting suspension to sixty days. The 1987 provision follows
that of 1973. In other respects, the 1935 provision has been preserved;
hence, jurisprudence prior to 1973, mutatis mutandis, still applies.
What stands out from the jurisprudence on the subject is that, ex-
cept for some limitations of detail found in the Constitution itself, there
is a clear recognition of the overall autonomy of the legislative body
both in the formulation and in the application of its rules. "The power to
make rules is not one which once exercised is exhausted. It is a continu-
ous power, always subject to be exercised by the House, and within the
limitations suggested, absolute and beyond the challenge of any other
189
body or tribunal."
The well-nigh absolute control which the legislature has over its
rules is well illustrated by the celebrated case of Osmefia, Jr. v. Penda-
m
tun. Disciplinary proceedings were initiated by the House of Repre-
sentatives against Congressman Sergio Osmeiia, Jr. for a speech he had
delivered on the floor of Congress. In a petition filed with the Supreme
"7d.at68.
'""STORY, COMMENTARIES 835 (1833).
"'United States v. Ballin, 144 U.S. 1.5 (1892).
"°109 Phil. 863 (1960).
Court for declaratory relief and certiorari and prohibition Osmefia al-
leged, among others, (1) that his speech did not constitute disorderly
behaviour and (2) that, by House Rule XVII, Section V, he could not
be censured for his speech since other business had transpired before
Congress decided to take action.
On the question whether Osmena's speech constituted disorderly
behavior, the Supreme Court simply said "that the House is the judge of
what constitutes disorderly behavior, not only because the Constitution
has conferred jurisdiction upon it, but also because the matter depends
mainly on factual circumstances of which the House knows best but
which can not be depicted in black and white for presentation to, and
adjudication by the C o u r t s . . . . The theory of separation of powers, fas-
tidiously observed by this Court, demands in such situation a prudent
191
refusal to interfere." On the question of the binding force of Rule
192
XVII, Section V, the Court said:
[CJourts have declared that "the rules adopted by delibera-

tive bodies are subject to revocation, modification or waiver at
193
the pleasure of the body adopting them." And it has been said
that "Parliamentary rules are merely procedural, and with their
observance, the courts have no concern. They may be waived or
disregarded by the legislative body." Consequently, "mere failure
to conform to parliamentary usage will not invalidate the action
(taken by a deliberative body) when the requisite number of mem-
194
bers have agreed to a particular measure."
It is thus clear that on matters affecting only the internal opera-

tion of the legislature, the legislature's formulation and implementation
of its rules is beyond the reach of the courts. In these matters, what is
referred to as the "expanded jurisdiction" of the Supreme Court found
in the second sentence of Article VIII, Section 1 does not apply. W h e n ,
however, the legislative rule affects private rights, the courts cannot
altogether be excluded. W h e n the construction to be given to a rule af-
fects persons other than the m e m b e r s of the legislature, "the question
195
presented is of necessity a judicial o n e . "
m
ld. at 871-2.
""Id. at 870-1.
3
" 67 CJ.S.870.
'"South Georgia Power v. Bauman, 169 Ga. 649; 159 S.W. 515.
m
United States v. Smith, 286 U.S. 6 (1932). See also Vera v. Avelino, 77 Phil. 192, 206
(1946)
196
The case of Paredes, Jr. v. Sandiganbayan presented a novel
question. Congressman Ceferino Paredes was charged with violations
of the Anti-Graft L a w allegedly committed while still a provincial gov-
ernor. T h e Sandiganbayan took action on the case while Paredes was
already in his second term as a m e m b e r of the House of Representa-
tives. Relying on the provision of the Anti-Graft Law which prescribes
a mandatory preventive suspension on all those charged the law, the
Sandiganbayan suspended him from the House of Representatives.
Claiming that under Section 16(3) of Article VI only the House could
suspend h i m , Paredes went to the Supreme Court on certiorari. On the
argument that the suspension imposed by the graft court was not based
on grounds found in Section 16(3), the Supreme Court upheld the sus-
pension. Whereupon the House erupted in protest.
O n e thing which must have rubbed the members of the House of

Representatives the wrong way was that, all Paredes got from the Court
was a one page resolution containing a curt "Nyet." Moreover, in an
earlier decision the Court had ruled that no judge of inferior courts may
be proceeded against by investigating bodies without prior clearance
from the Supreme Court. T h e Court demanded observance of the pro-
cedure prescribed by the Constitution which places administrative su-
pervision of lower courts in the exclusive hands of the Supreme Court.
T h e Court could have accorded the same procedural courtesy to

the House of Representatives; but it did not. Alternatively, the Court
might have said that the preventive suspension referred to by the Anti-
Graft Law was meant to be from the office the official held when he
committed the wrong doing. But the Court chose to be literal. Hence,
when the House decided not to implement the suspension, the Court
could do nothing.
4. Journals, Record: publicity and probative value; "en-

rolled bill" rule.
The duty to keep a journal has a dual purpose: (1) "to insure pub-
licity to the proceedings of the legislature, and a correspondent respon-
7
sibility of the members to their respective constituents,"" and (2) to
,w
G J i . 118364,August 10,1995.
""1 STORY, COMMENTARIES 840, quoted with approval in Field v. Clark, 143 U . S . 649, 670
(1892).
provide proof of what actually transpired in the legislature. Under the

1935 Constitution, Congress could impose secrecy at its discretion. The
1973 Constitution and the 1987 Constitution exempt from publication
only such matters "as may, [in each House's] judgment, affect national
security." This rule is an application of Section 7 of the Bill of Rights
which says:
The right of the people to information on matters of pub-

lic concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
It still remains to be seen, however, how the rule can be enforced

and who can enforce it against Congress.
The interesting cases on legislative journals involve their proba-

tive value when measured against other forms of evidence. In United
m
States v. Pons, the contention of the defendant was that the statute
under which he was being prosecuted was invalid for having been
passed after the last allowable day of legislative session. He claimed
that the legislature's clock had been stopped at midnight on the last
day of session and that it was in fact after midnight that the statute was
passed. The legislative journal, however, indicated that the statute was
passed before midnight when the legislature adjourned sine die. Could
the courts then look beyond the journal to determine the actual date of
adjournment?
199
The Court answered:
Counsel for the appellant, in order to establish his conten-

tion, must necessarily depend upon the memory or recollection of
witnesses, while the legislative journals are the acts of the Gov-
ernment or sovereign itself. From their very nature and object the
records of the Legislature are as important as those of the judiciary,
and to inquire into the veracity of the journals of the Philippine
Legislature, when they are, as we have said, clear and explicit,
would be to violate both the letter and the spirit of the organic
laws by which the Philippine Government was brought into exis-
""34 Phil. 729 (1916).

m
ld. at 733-34.
tence, to invade a coordinate and independent department of the

Government, and to interfere with the legitimate powers and func-
tions of the Legislature. But counsel in his argument says that the
public knows that the Assembly's clock was stopped on February
28, 1914, at midnight and left so until the determination of the
discussion of all pending matters. Or, in other words, the hands of
the clock were stayed in order to enable the Assembly to effect an
adjournment apparently within the time fixed by the Governor's
proclamation for the expiration of the special session in direct vio-
lation of the Act of Congress on July 1, 1902. If the clock was, in
fact, stopped, as here suggested, "the resultant evil might be slight
as compared with that of altering the probative force and character
of legislative records, and making the proof of legislative action
depend upon uncertain oral evidence, liable to loss by death or
absence, and so imperfect on account of the treachery of memory.
Long, long centuries ago, these considerations of public policy led
to the adoption of the rule giving verity and unimpeachability to
legislative records. If that character is to be taken away for one
purpose, it must be taken away for all, and the evidence of the laws
of the state must rest upon a foundation less certain and durable
than that afforded by the law to many contracts between private
individuals concerning comparatively trifling matters."
T h u s , what gives conclusive weight to the journal, when balanced

side by side with extraneous evidence, is the fact that it is an official act
of the legislature. W h a t happens, however, when the journal conflicts
200
with another official act of the Legislature? In Mabanag v. Lopez-Vito,
the Supreme Court discussed at length the correct resolution of a case
when the journal's content conflicts with what is found in an "enrolled
bill." The "enrolled bill" is a duly authenticated copy of a bill or resolu-
tion bearing the signature of the Speaker and of the Senate President
and the certification of the secretaries of both Houses that such bill was
201
passed. The Court arrived at the conclusion, based likewise on the re-
spect due from the courts to a co-equal body, that "a duly authenticated
202
bill or resolution imports absolute verity and is binding on the courts."
Although Mabanag was most emphatic in its acceptance of the

"enrolled bill rule," it cannot be regarded as establishing a definite dbc-
**ni Phil. 1 (1947).

^'Arroyov. De Venecia, GSL. No. 127255, June 26, 1988.
M2
7 8 Philat 12.
trine because, in fact, there was no evidence of conflict between the

203
journal and the enrolled bill. Withal, however, subsequent cases have
also been most emphatic in their adherence to the enrolled bill rule. As
10
the Court said in Casco Philippine Chemical Co. v. Gimenez: * "If there
has been any mistake in the printing of the bill before it was certified
by the officers of Congress and approved by the Executive, on which
we cannot speculate, without jeopardizing the principle of separation
of powers and undermining one of the cornerstones of our democratic
system, the remedy is by amendment or curative legislation, not by ju-
dicial decree."
The same principle was once more reiterated in Morales v. Subi-

m
do which, however, added a cautionary note:
By what we have essayed above we are not of course to be

understood as holding that in all cases the journals must yield to
the enrolled bill. To be sure there are certain matters which the
206
Constitution expressly requires must be entered on the journal of
each house. To what extent the validity of a legislative act may be
affected by a failure to have such matters entered on the journal,
207
is a question which we do not now decide. All we hold is that
with respect to matters not expressly required to be entered on the
journal, the enrolled bill prevails in the event of any discrepancy.
It should be noted that what gives special probative weight to

an enrolled bill is the certification it receives from the officers of the
legislature. In the case of Congress under the 1935 Constitution, the
signatures of the Speaker of the House of Representatives and of the
President of the Senate were what counted. T h u s , w h e n , as happened
10
in Astorga v. Villegas * not only the Senate President but also the Presi-
dent of the Philippines withdrew their signatures upon discovery of the
inaccuracies in the bill, the document was stripped of the character and
probative value of an enrolled bill and had to yield to the version found
209
in the journal. In Tolentino v. Secretary of Finance, even though the
m
Id.at 18.
•*»! SCRA 347, 350 (1963).
m
27 SCRA 131 (1969).
""Art. VI, Sees. 10(4), 20(1) and 21(1) (1935).
m
Cf. e.g., Wikes Country Comm'rs v. Color, 180 U.S. 506 (1900)
™56 SCRA 714,722-3 (April 30, 1974).
2 0 , 2 3 5
SCRA 630,672 (1994), affirmed on reconsideration GJt. Nos. 111206-08 October
6,1995.
challenge to the bill c a m e from an incumbent Senator and a former Sen-

ate President, the Court refused to go beyond the "enrolled bill."
In addition to a journal, each House is also supposed to keep a

210
Record. T h e journal is usually an abbreviated account of the daily
proceedings; the Record contains a word for word transcript of the de-
liberations of Congress.
5. Recess.
Both Houses may hold session practically all year round. They go
on compulsory recess thirty days before the opening of the next regular
session. Each House may also adjourn for a voluntary recess; but nei-
ther House may adjourn, without the consent of the other, for more than
three days nor to any place than that in which the two Houses shall be
sitting. This coordinative rule is necessary because the two houses form
only one legislative body.
SEC. 1 7 . THE SENATE AND THE HOUSE OF REPRESENTATIVES

SHALL EACH HAVE AN ELECTORAL TRIBUNAL WHICH SHALL BE
THE SOLE JUDGE OF ALL CONTESTS RELATING TO THE ELECTION,
RETURNS, AND QUALIFICATIONS OF THEIR RESPECTIVE MEMBERS.
EACH ELECTORAL TRIBUNAL SHALL BE COMPOSED OF NINE MEMBERS,
THREE OF WHOM SHALL BE JUSTICES OF THE SUPREME COURT TO BE
DESIGNATED BY THE CHIEF JUSTICE, AND THE REMAINING SIX SHALL
BE MEMBERS OF THE SENATE OR THE HOUSE OF REPRESENTATIVES,
AS THE CASE MAY BE, WHO SHALL BE CHOSEN ON THE BASIS OF
PROPORTIONAL REPRESENTATION FROM THE POLITICAL PARTIES AND
THE PARTIES OR ORGANIZATIONS REGISTERED UNDER THE PARTY-
LIST SYSTEM REPRESENTED THEREIN. THE SENIOR JUSTICE IN THE
ELECTORAL TRIBUNAL SHALL BE ITS CHAIRMAN.
1. Composition.
Section 17 sets down the composition of the two Electoral Tribu-
nals. Like the Electoral Tribunals of the 1935 Constitution, they are a
mixture of members of Congress and of the Supreme Court, "thus re-
flecting both the respect for parliamentary sovereignty and the need for
2l(
This provision, the second sentence of Section 16(4), was a last minute addition. V RE-
CORD 702.
2
legal impartial decisions." " The legislative part of the mix, however,
departs from the 1935 rule which gave three seats each to only the two
political parties having the largest number of votes in each House. The
1987 formula of proportional party representation reflects the Constitu-
tion's desire to encourage the growth of a multi-party system. It should
be noted, however, that representation in the Electoral Tribunals is giv-
en to "political parties and the parties or organizations registered under
the party-list system." There is no provision for the representation of
212
sectors except in so far as they might be part of the party-list system.
The Supreme Court has had occasion to deal with problems aris-
ing from the partisan element in the Electoral Tribunals. In Abbas v.
Senate Electoral Tribunal, Abbas sought to disqualify all six Senator
members of the Electoral Tribunal on the ground that they, together
with all the other Senators, were respondents in the contest filed by the
opposition party. He therefore wanted his case to be decided solely by
the three Supreme court justices in the Electoral Tribunal. In rejecting
213
such contention the Supreme Court said:
Where as here a situation is created which precludes the sub-

stitution of any Senator sitting in the Tribunal by any of his other
colleagues in the Senate without inviting the same objections to
the substitute's competence, the proposed mass disqualification if
sanctioned and ordered would leave the Tribunal no alternative
but to abandon a duty that no other court or body can perform but
which it cannot lawfully discharge if shorn of the participation of
its entire membership of Senators.
4
The case of Bondoc v. Pineda" involved a blatant attempt of a
political party to manipulate the decision of the Tribunal by manipulat-
ing its membership. On the eve of the promulgation of a decision of the
Tribunal against a m e m b e r of the Laban ng Demokxatikong Pilipino
(LDP), the L D P expelled C a m a s u r a from the party on the ground of
disloyalty. Camasura, the L D P m e m b e r of the Electoral Tribunal, had
confided to the L D P that he was voting against the party's candidate.
The Supreme Court considered the expulsion of C a m a s u r a from the
2
"U RECORD 45.
m
ld. at 590.
2I3
166 SCRA 651.655 (1988).
2I
*201 SCRA 792 (1991).
Tribunal a clear impairment of the Tribunals prerogative to be the sole

2 5
judge of election contests. '
2. Jurisdiction of the Electoral Tribunals.
What is the meaning and scope of the power of the Electoral Tri-
bunals to be j u d g e of congressional election contests? To answer this
question, it is useful to trace the history of the provision from its coun-
terpart in the United States Constitution and through the various Philip-
pine organic laws that preceded the present Constitution. The original
provision on this subject is found in Section 7 , paragraph 5, of the Act of
the United States Congress of July 1 , 1 9 0 2 . The Act provided that "the
assembly shall be the j u d g e of the elections, returns, and qualifications
of its m e m b e r s . " T h e provision was taken from Section 5, Article 1 of
the Constitution of the United States providing that "Each House shall
be the Judge of the Elections, Returns, and Qualifications of its own
M e m b e r s . " T h e Act of the United States Congress of August 2 9 , 1 9 1 6 ,
Section 18, paragraph 1, modified the provision to read "That the Sen-
ate and House of Representatives, respectively, shall be the sole judges
of the elections, returns, and qualifications of their elective members."
The effect of this modification was to emphasize the exclusive character
2 6
of the jurisdiction conferred upon each House. ' This exclusive grant
of jurisdiction at once effectively barred either House from interference
with the judgment of the other House and also completely removed the
subject matter from the jurisdiction of the courts in language that was
2 7
"full, clear and complete." '
The 1935 Constitution made a significant departure from earlier

provisions by providing in Article V I , Section 4, thus: "There shall be
an Electoral Commission composed of three Justices of the Supreme
Court designated by the Chief Justice, and of six Members chosen by
the National Assembly, three of w h o m shall be nominated by the party
having the largest number of votes, and three by the party having the
second largest number of votes therein. The Electoral Commission shall
be the sole judge of all contests relating to the election, returns, and
qualifications of all members of the National Assembly." Thus, a power
215
W. at 810-812. See dissent of Padilla and Sarmiento saying that the decision impairs the
independence of the House.
216
Angara v. Electoral Commission, 63 Phil. 139,162 (1936).
2l7
Veloso v. Board of Canvassers, 39 Phil. 886,888 (1919).
traditionally lodged in the legislative body itself was taken away and
218
given "to an independent, impartial and non-partisan tribunal." The
innovation was in answer to "the long-felt need of determining legisla-
2
tive contests devoid of partisan considerations." "
The effect of this provision, however, was not to divest the legisla-
ture of all power relative to the election, returns, and qualifications of its
members and thus render it powerless to protect its own integrity. What
was transferred to the Electoral Commission was merely the power to
be the "sole judge of all contests." The significance of this language was
220
explained in Vera v. Avelino thus:
The Convention did not intend to give it all the functions of

the Assembly on the subject of election and qualifications of its
members. The distinction is not without a difference. "As used in
constitutional provisions," election contest "relates only to statu-
tory contests in which the contestant seeks not only to oust the
221
intruder, but also to have himself inducted into office."
Where, therefore, no defeated candidate challenges the credentials

of a member in order not only to dislodge h i m but also to take his seat,
the legislative body itself, in the exercise of its inherent right of self-
preservation, may inquire into the credentials of the m e m b e r and j u d g e
his qualifications. W h e n a m e m b e r of the legislative body challenges
the qualification of another, an "election contest" does not thereby en-
sue, because the former does not seek to be substituted for the latter,
and, hence, it is the legislative body itself and not the C o m m i s s i o n ,
222
which has jurisdiction over the question raised.
W h e n the National Assembly of the 1935 Constitution was abol-

ished by a 1940 amendment which created a bicameral C o n g r e s s , the
identical powers given to the Electoral C o m m i s s i o n of the National
Assembly were transferred to the respective Electoral Tribunals of the
Senate and House of Representatives.
2I8
6 3 Phil, at 170.
2
"W. at 175. The Constitutional Convention debates on the subject are dealt with at length
id. at 164-170.
^ P h i l . 192,209(1946).
"'LAUREL on ELECTIONS, Second Edition, p. 250; 20 C J 58
m
ld. at 210-211.
Under the 1973 Constitution, these powers, as delineated in Vera

v. Avelino, were given to the Commission on Elections. There was no
Electoral Tribunal under the 1973 Constitution. Similarly, the same
powers to j u d g e qualifications retained by the National Assembly under
the 1935 Constitution and by the Senate and House of Representatives
under the 1940 amendment were retained by the Batasang Pambansa
under the 1973 Constitution.
Under the 1987 Constitution the C O M E L E C decides who the

winner is in an election. A person holding office in the House must yield
his or her seat to the person declared by the C O M E L E C to be the win-
223
ner and the Speaker is duty bound to administer the oath. The Speaker
should administer the oath on the winner.
But since the C O M E L E C administers all election laws, when

does a controversy leave the C O M E L E C ' s control? In election con-
tests, the jurisdiction of the C O M E L E C ends once a candidate has been
proclaimed and has taken his oath of office as a M e m b e r of Congress.
Jurisdiction then passes to the Electoral Tribunal of either the House or
the Senate. This is true even if there is allegation that the proclamation
224
was invalid. T h e Tribunal will decide that too.
But up to what point may the C O M E L E C entertain protests before

proclamation? This was the question in Sanchez v. COMELEC and 225
226
Chavez v. COMELEC. In both cases the candidates who were trailing
in the announced count wanted the C O M E L E C to withhold proclama-
tion until a recount could be m a d e of the votes. In Sanchez, the conten-
tion of the candidate was that the name of another Sanchez who had
been disqualified had not been removed from all the voting precincts.
He claimed that in the process of counting, a vote for Sanchez without
specification of given name had been considered an invalid vote. He
therefore wanted the ballot boxes reopened for purposes retrieving the
invalidated Sanchez votes. The situation in Chavez was similar.
In deciding against Sanchez the Court laid down the premise that
"the policy of the election law is that pre-proclamation controversies
223
Codilla v. de Venecia, G.R. No. 150605, December 10,2002.
Âggabao v. COMELEC, GR. No. 163756, January 26, 2005; Vinzons-Chato v. COM-
ELEC,GR.No. 172131, April 2,2007.
223
153 SCRA 67 (1987).
^ l l SCRA 315 (1992).
should be summarily decided, consistent with the law's desire that the
canvass and proclamation be delayed as little as possible." Hence, un-
der the Omnibus Election Code in effect then, the scope of pre-procla-
mation controversy was limited to incomplete returns, or returns with
material defects, or returns which appeared to be tampered with, falsi-
fied or prepared under duress, or containing discrepancies in the votes
credited to any candidate the difference of which would affect the re-
sults. Any thing else outside of these should be brought before the Elec-
227
toral Tribunal.
In Chavez, the Court reached an identical result. The policy of

the law enunciated in Sanchez was by then embodied in R . A . N o . 7166
which prescribed that no pre-proclamation controversies were allowed
for the election of President, Vice-President, Senators and M e m b e r s of
the House of Representatives except in the case of "manifest error in the
certificate of canvass or election returns." Errors which cannot be veri-
fied except by the opening of the ballot boxes are not "manifest errors."
Hence, as in Sanchez, the proper remedy was recourse to the Electoral
228
Tribunal.
Another question that need be answered is: W h a t does to "judge

qualifications" mean? In other w o r d s , can the Tribunal disqualify a
member on the basis of qualifications or disqualifications not found in
the Constitution itself? Or, put differently, can the legislature add to the
qualifications and disqualifications found in the Constitution?
229
Since a m e m b e r of Congress must be a "registered voter" and
230
since Congress may determine w h o are disqualified from voting, it is
evident that through its limited p o w e r over the right of suffrage C o n -
gress may in effect create disqualifications. T h e question of addition-
al "qualifications," however, is a different matter. F r o m the care with
which the qualifications were formulated and from the absence of an
explicit grant of power to add to the qualifications enumerated by the
Constitution, it may be inferred that the enumeration is meant to be
exclusive. It will be noted that in the instance where the Constitution
means to enumerate merely m i n i m u m qualifications, as in the case of
'153 SCRA at 75.

'211 SCRAat321,324.
'Article VII, Sections 3 and 6.
'Article V, Section 1.
judges of lower courts, the Constitution explicitly says that Congress

may prescribe qualifications over and above the minimum which the
231
Constitution prescribes. Moreover, it should also be recalled that Phil-
ippine legislative bodies are patterned after their American counterpart
and that therefore American doctrine on the subject is not without ap-
plication to the Philippine situation.
American jurisprudence on the subject points to the conclusion

that the Constitution leaves the legislature "without power to exclude
any member-elect w h o meets all the Constitution's requirements for
232
membership." This conclusion was arrived at by a historical analysis
of early English and American colonial exclusion precedents, of the
debates at the Philadelphia Convention, and of early post-ratification
233
precedents. The analysis concludes:
Had the intent of the Framers emerged from these materi-

als with less clarity, we would nevertheless have been compelled
to resolve any ambiguity in favor of a narrow construction of the
scope of Congress' power to exclude members-elect. A fundamen-
tal principle of our representative democracy is, in Hamilton's
words, "that the people should choose whom they please to govern
234
them." As Madison pointed out at the Convention, this principle
is undermined as much by limiting whom the people can select as
by limiting the franchise itself. In apparent agreement with this
basic philosophy, the Convention adopted his suggestion limiting
the power to expel. To allow essentially that same power to be
exercised under the guise of judging qualifications, would be to
ignore Madison's warning, borne out in the Wilkes case and some
of Congress' own post-Civil War exclusion cases, against "vesting
235
an improper and dangerous power in the Legislature." Moreover,
it would effectively nullify the Convention's decision to require
a two-third vote for expulsion. Unquestionably, Congress has an
interest is preserving its institutional integrity, but in most cases
that interest can be sufficiently safeguarded by the exercise of its
power to punish its members for disorderly behavior and, in ex-
treme cases, to expel a member with the concurrence of two-thirds.
"'Article VIII, Section 7(2).

J
" Powell v. McCormack, 395 U.S. 486,547 (1969). See also Maquera v. Bona, 15 SCRA
7 (1965), which deals with an attempt to add a property qualification.
m
ld. at 522-547.
Elliot's Debates 257.
U 5
2 Farrand 249.
In short, both the intention of the Framers, to the extent it can

be determined, and an examination of the basic principles of our
democratic system persuade us that the Constitution does not vest
in the Congress a discretionary power to deny membership by a
majority vote.
For these reasons, we have concluded that Art. I, Section 5,
is at most a "textually demonstrable commitment" to Congress to
judge only the qualifications expressly set forth in the Constitu-
tion. Therefore, the "textual commitment" formulation of the po-
litical question doctrine does not bar federal courts from adjudicat-
ing petitioners' claims.
Our Court, however, has decided not to follow the above Ameri-
can teaching. The right of Farinas to sit in the House of Representatives
was challenged on the ground that his certificate of candidacy was in-
valid. He had failed to satisfy the statutory requirements for certificate
of candidacy. Farinas had already been proclaimed winner and w a s ac-
tually holding office. Moreover, he had all the qualifications prescribed
by Section 17. Was this an issue which could be decided by the House
Electoral Tribunal? The Court ruled that it was:
. . . [AJrticle VI, Section 17 of the Constitution cannot be

circumscribed lexically. The word "qualifications" cannot be read
as qualified by the term "constitutional." Ubi lex non distinguit
noc nos distinguire debemos. Basic is the rule in statutory con-
struction that where the law does not distinguish, the courts should
not distinguish. There should be no distinction in the application
of a law where none is indicated. For firstly, the drafters of the
fundamental law, in making no qualification in the use of a gen-
eral word or expression, must have intended no distinction at all.
Secondly, the courts could only distinguish where there are facts
or circumstances showing that the lawgiver intended a distinction
or qualification. In such a case, the courts would merely give effect
to the lawgiver's intent.
It is submitted, however, that, although the Court's conclusion is

correct, the issue here is not about qualifications. W h e n the Constitu-
tion enumerates qualifications without a generic clause like "and such
other qualifications which may be provided by law," the rule is that
the qualifications are exclusive and may not be added to by Congress.
Farinas had all the qualifications prescribed by Section 6. His prob-
lem, however, was failure to follow the requirements for a certificate
of candidacy. T h u s , this is not a contest involving "qualification" but a

contest involving "election" over which the Electoral Tribunal also has
jurisdiction.
6
The case of Garcia v. HRET," also involved a procedural rule
promulgated by the Electoral Tribunal itself. Petitioners, seeking to
disqualify Harry Angping failed to m a k e the cash deposit required by
the rules of the H R E T . W h e n the petition was dismissed, they claimed
grave abuse of discretion. T h e Court said that challenging the right of a
m e m b e r of Congress to hold office on the ground that he was not a natu-
ral born Filipino citizen was a serious charge. In view of the delicate na-
ture and importance of this charge, the observance of the H R E T Rules
of Procedure must be taken seriously if they are to attain their objective,
i.e., the speedy and orderly determination of the true will of the elector-
ate. Imperative justice requires the proper observance of technicalities
precisely designed to ensure its proper and swift dispensation.
The Court has also clarified the rule on w h o should assume the
position should the candidate w h o received the highest number of votes
is disqualified. T h e second m rank does not take his place. The reason
is simple: "It is of no m o m e n t that there is only a margin of 768 votes
between protestant and protestee. Whether the margin is ten or ten thou-
sand, it still remains that protestant did not receive the mandate of the
majority during the elections. T h u s , to proclaim him as the duly-elected
representative in the stead of protestee would be anathema to the most
basic precepts of republicanism and democracy as enshrined within our
237
Constitution."
3. Independence of the Electoral Tribunals.
Although six members of the Electoral Tribunals are members of

Congress, the Tribunals themselves are not part of either House of Con-
gress. They are independent constitutional creations which have power
238
to create their own rules and are not under the supervision or control
23 240
of Congress. ' As Suanes v. Chief Accountant said:
236
G.R. No. 134792, August 12,1999.
237
Ocampo v. HRET, G.R. No. 158466, June 15,2004.
238
n RECORD 87-88.
a
' W . at 112. Angara v. Electoral Tribunal, 63 Phil. 139.
""SI Phil. 818,827-28 (1948).
Considering then that the Electoral Tribunals are constitu-

tional creations, designed as bodies distinct from and independent
of the Congress, so that they may carry out their constitutional
mission with independence and impartiality, it follows that within
the precise sphere of their functions, they are as sovereign over
their internal affairs as are each of the other powers of government
over their respective domains. Consequendy, the employees of an
Electoral Tribunal are its own, and not of the Senate nor of the
House of Representatives nor of any other entity, and it stands to
reason that the appointment, the supervision and the control over
said employees rest wholly within the Tribunal itself. ...
The fact that the appropriation for the Senate Electoral Tri-
bunal is included in the budget corresponding to the Senate, does
not and cannot mean that the employees of the Electoral Tribunal
are also employees of the Senate, for both institutions are separate
and independent of each other under the Constitution....
Similarly, the Electoral Tribunals are independent of the C o m m i s -

sion on Elections. H e n c e , cases before the Electoral Tribunal are gov-
erned not by the rules of procedure for election controversies prescribed
241
by the Commission on Elections but by the Tribunal's o w n rules. But
since the jurisdiction of Electoral Tribunals is over "election contests"
in the statutory sense, they do not have jurisdiction over pre-proclama-
tion controversies which c o m e under the jurisdiction of the Conrmis-
242
sion on Elections.
Finally, since the Constitution has constituted the Tribunals as

"sole j u d g e " of legislative election contests, their decisions on such
243
controversies are not subject to appeal to the S u p r e m e Court. H o w -
ever, the Supreme Court is not totally excluded. U n d e r Article VIII,
Section 1, judicial power includes the authority "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
244
the government." On this basis, the S u p r e m e Court has invalidated
a final vote tally made by the Electoral Tribunal without supporting
245
evidence.
"'Lazatin v. Electoral Tribunal, 168 SCRA 391 (1988).

ÎI RECORD 111.
"Vrf.at 113.
^Robles v. House Electoral Tribunal, 181 SCRA 780 (1990); Co v. House Electoral Tri-
bunal, 199 SCRA 692 (1991).
^Lerias v. House Electoral Tribunal, 202 SCRA 808 (1991); Arroyo v. House Electoral
Tribunal, G.R. No. 118597, July 14, 1995.
Sees .18-19 ART. VI - THE LEGISLATIVE DEPARTMENT 757
S E C . 1 8 . T H E R E SHALL BE A COMMISSION ON APPOINTMENTS

CONSISTING OF THE P R E S I D E N T OF T H E S E N A T E , AS EX-OFFIC10
C H A I R M A N , TWELVE SENATORS AND TWELVE M E M B E R S OF THE
H O U S E OF REPRESENTATIVES, ELECTED BY EACH H O U S E ON T H E BASIS
O F PROPORTIONAL REPRESENTATION F R O M THE POLITICAL PARTIES
AND PARTIES OR ORGANIZATIONS REGISTERED UNDER THE PARTY-LIST
SYSTEM REPRESENTED T H E R E I N . THE C H A I R M A N OF THE C O M M I S S I O N
SHALL NOT V O T E , EXCEPT IN CASE OF A T I E . THE C O M M I S S I O N SHALL
ACT ON ALL APPOINTMENTS SUBMITTED TO IT WITHES THIRTY SESSION
DAYS OF THE C O N G R E S S F R O M THEIR SUBMISSION. THE COMMISSION
SHALL RULE BY A MAJORITY VOTE OF ALL THE M E M B E R S .
SEC. 19. T H E E L E C T O R A L TRIBUNALS AND T H E COMMISSION

ON APPOINTMENTS SHALL BE CONSTITUTED WITHIN THIRTY DAYS
AFTER THE SENATE AND T H E H O U S E OF REPRESENTATIVES SHALL HAVE
BEEN ORGANIZED WITH T H E ELECTION OF T H E PRESIDENT AND THE
S P E A K E R . T H E COMMISSION ON APPOINTMENTS SHALL MEET ONLY
WHILE THE C O N G R E S S IS IN SESSION, AT THE CALL OF ITS CHAIRMAN
OR A MAJORITY OF ALL ITS M E M B E R S , TO DISCHARGE SUCH POWERS
AND FUNCTIONS AS ARE HEREIN CONFERRED UPON I T .
1. C o m m i s s i o n on Appointments: composition, nature,

functions.
T h e Commission on Appointments consists of "the President of

the Senate, as ex-ojficio Chairman, twelve Senators and twelve M e m -
bers of the House of Representatives, elected by each House on the
basis of proportional representation from the political parties and par-
ties or organizations registered under the party list system represented
therein." With the Chairman, therefore, the total complement is twenty-
246
five, thus making it easier to allow for representation of more parties.
Like the composition of the Electoral Tribunals, the structure of

the Commission on Appointments departs from that of its counterpart in
the 1935 Constitution which gave preferential representation only to the
two largest political parties represented in each House. The 1987 Con-
stitution calls for proportional representation of all political parties and
parties and organizations registered under the party-list system. And, as
with the Electoral Tribunals, sectors will be represented only in so far
as they form part of the party-list system.
"*A proposed amendment to reduce the total to thirteen was not approved. II RECORD
139-140.
The arithmetic involved in the formation of the Commission on

Appointments has occasioned a number of controversies. The first of
2
these was Coseteng v. Mitra, Jr. " Coseteng was the only member of
Congress from the political party K A I B A . Was she entitled to one of
the twelve seats in the Commission? The answer was simple arithmetic.
Since the total membership of the House of Representatives was 2 0 2 , to
be entitled to a seat in the Commission a party must have 16.8 members
in the House or 8.4% of the total membership. K A I B A was obviously
short of the required number even if she had the support of members not
belonging to her party.
24
The second case, Guingona, Jr. v. Gonzales, * involved the Senate
contingent in the Commission. The senatorial elections of 1992 yielded
15 L D P senators, 5 N P C , 3 L a k a s - N U C D , and 1 L P - P D P - L A B A N . On
the basis of proportional representation, therefore, the Commission on
Appointments could contain 7.5 LDP, 2.5 N P C , 1.5 L a k a s , and .5 L P -
P D P - L A B A N . The Senate, however, put in 8 L D P by rounding up 7 . 5 ,
2 N P C by ignoring .5, 1 L A K A S also by ignoring . 5 , and 1 L P - P D P
by rounding out .5 to 1. Was this constitutional? T h e Court ruled that
rounding out 7.5 to 8 and .5 to 1 was unconstitutional because it de-
prived Lakas and N P C of .5 each. Nor can the holders of .5 each, while
belonging to distinct parties, form a unity for purposes of obtaining a
seat in the Commission. T h u s , under the Court's arithmetic, the result
would be a total of only 11 m e m b e r s . But the Court ruled that a full
complement of 12 was not mandatory.
Since the composition of the C o m m i s s i o n on Appointments is

proportional to the size of the political parties and organizations in
Congress, periodic reorganization may be necessary in order to reflect
changes in the proportion within C o n g r e s s . This principle w a s e m -
249
phasized in Daza v. Singson. However, to justify reorganization, the
changes in the political complexion of the H o u s e must be permanent
250
and not temporary in character:
M7
1 8 7 SCRA 377 (1990).
24e
214 SCRA 789 (1992). The case of Lorenzo Tanada being given a seat in the Commis-
sion on Appointments in the old Senate in spite of his being the only member of the Citizens Party
was cited as justification for reconsidering the decision. The Court did not consider the case of the
older Tanada as precedent because the action of the Senate then was never challenged in court.
Guingona, Jr. v. Gonzales, 219 SCRA 326 (1993).
"•180 SCRA 496 (1989).
""Cunanan v. Tan, 5 SCRA at 4.
Sees. 18-19 ART. VI - THE LEGISLATIVE DEPARTMENT 759
In other words, a shifting of votes at a given time, even if

due to arrangements of a more or less temporary nature ... does
not suffice to authorize a reorganization of the membership of the
Commission for said House. Otherwise, the Commission on Ap-
pointments may have to be reorganized as often as votes shift from
one side to another in the House. The framers of our Constitution
could not have intended to thus place a constitutional organ, like
the Commission on Appointments, at the mercy of each House of
Congress.
"In order that the members of the Commission could properly

discharge their duties as such, it is essential that their tenure therein
be provided with a certain measure of stability to insure the necessary
251
freedom of action."
Although the Commission on Appointments is formed through the

instrumentality of the t w o Houses of Congress, the Commission itself,
252
once formed, is independent of Congress:
The Commission on Appointments is a creature of the Con-

stitution. Although its membership is confined to members of Con-
gress, said Commission is independent of Congress. The powers of
the Commission do not come from Congress, but emanate direcdy
from the Constitution. Hence, it is not an agent of Congress. In
fact, the functions of the Commission are purely executive in na-
ture.
253
As an independent body, it can promulgate its own rules and the
Supreme Court cannot pass upon the correctness of the interpretation
254
placed by the Commission of its own rules.
Section 19 prescribes that the Electoral Tribunals and the Com-

mission on Appointments shall be constituted within thirty days after
the Senate and the House of Representatives shall have been organized
with the election of the President and Speaker. T h u s , the two Commis-
sions are not coaetaneous with Congress. However, the Commission
l u n a r i a n v.Tan, 5 SCRA 1,3 (1962).

3
" II RECORD .at 88.
""Advincula v. Commission On Appointments, 7 SCRA 1 (January 12,1963). In the origi-
nal petition, 5 SCRA 1179 (1962), the Court had said that it could not determine the correctness of
the Commission's interpretation of its own rules "without violating the fundamental principle of
separation of powers." See also Quimsing v. Tajanglangit, GJt. No. 19981, February 29,1964 and
Altarejos v. Molo, 25 SCRA 550 (1968).
on Appointments may meet only while Congress is in session, at the

call of its Chairman or a majority of all its Members. "How often and
how long it shall meet is left entirely to the discretion of the Commis-
sion, as long as it is during the session of the Congress . . . . Therefore,
if the Commission itself decides that its working days should be from
Monday through Friday of the week, excluding Saturday and Sunday,
it would be exercising its lawful authority and would not be infringing
255
any constitutional provision."
Since the Commission can meet only when Congress in session,

Article VII, Section 16 makes provision for appointments made by the
President when Congress is not in session. M o r e on this later on.
The function of the Commission on Appointments is to consent

to or confirm nominations or appointments submitted to it by the Presi-
dent pursuant to Article VII, Section 16 which enumerates the appoint-
ments which need action by the Commission on Appointments. T h e
Commission is thus intended to serve as an administrative check on
the appointing authority of the President. T h e powers of the C o m m i s -
sion, however, can be abused. H e n c e , in order to lessen the possibil-
ity that political vindictiveness might m a k e the C o m m i s s i o n freeze the
confirmation of unwanted nominees or allow one m e m b e r to block the
confirmation of a nominee, the rule w a s added that the C o m m i s s i o n
shall act on all appointments submitted to it within thirty session days
of Congress from their submission and that the C o m m i s s i o n should rule
256
by majority vote.
S E C . 20. T H E RECORDS AND BOOKS O F ACCOUNTS O F T H E

C O N G R E S S SHALL BE PRESERVED AND BE OPEN TO T H E PUBLIC IN
ACCORDANCE WITH LAW, AND SUCH BOOKS SHALL BE AUDITED BY
THE C O M M I S S I O N ON A U D I T W H I C H SHALL PUBLISH ANNUALLY AN
ITEMIZED LIST O F AMOUNTS PAID T O AND EXPENSES INCURRED F O R
EACH M E M B E R .
S E C . 2 1 . T H E SENATE O R T H E H O U S E O F REPRESENTATIVES O R
ANY OF ITS RESPECTIVE COMMITTEES MAY CONDUCT INQUIRIES IN AID
OF LEGISLATION IN ACCORDANCE W I T H ITS DULY PUBLISHED RULES OF
PROCEDURE. T H E RIGHTS OF PERSONS APPEARING IN OR AFFECTED BY
SUCH INQUIRIES SHALL BE RESPECTED.
ay
J SCRA at 3.
256
The principal sponsor of this rule was Commissioner de Castro who related his own sad
experiences with the pre-martial law Commission on Appointments. II RECORD 141-144.
1. Legislative investigations.
The foundation of the power of legislative investigation and the

means for enforcing it were stated by Justice Ozaeta thus in Arnault v.
251
Nazareno:
Although there is no provision in the [1935] Constitution

expressly investing either House of Congress with power to make
investigations and exact testimony to the end that it may exercise
its legislative functions advisedly and effectively, such power is so
far incidental to the legislative function as to be implied. In other
words, the power of inquiry — with process to enforce it — is an
essential and appropriate auxiliary to the legislative function. A
legislative body cannot legislate wisely or effectively in the ab-
sence of information respecting the conditions which the legisla-
tion is intended to affect or change; and where the legislative body
does not itself possess the requisite information — which is not in-
frequently true — recourse must be had to others who do possess it.
Experience has shown that mere requests for such information are
often unavailing, and also that information which is volunteered is
not always accurate or complete; so some means of compulsion is
258
essential to obtain what is needed. The fact that the Constitution
expressly gives to Congress the power to punish its Members for
disorderly behavior, does not by necessary implication exclude the
259
power to punish for contempt any other person.
What was implicit under the 1935 Constitution, as influenced by

American jurisprudence, became explicit under the 1973 Constitution
and under the 1987. Likewise, for the protection of the rights of wit-
nesses, Section 21 has made explicit the limitations on the power of
legislative investigation: (1) it must be "in aid of legislation"; (2) it
must be "in accordance with its duly published rules of procedure;" and
(3) "The rights of persons appearing in or affected by such inquiries
shall be respected."
No person can be punished for contumacy as a witness unless his
testimony is required in a matter into which the legislature or any of its
260
committees has jurisdiction to inquire. The requirement that the inves-
t s ? Phil. 29,45(1950).
"'McGrain v. Daugherty, 273 U.S., 135; 71 L. ed.,580; 50A.L.R., 1.
"'Anderson v. Dunn, 6 Wheaton, 204; 5 L. ed., 242.
2
«°87Phil.at45.
762 T H E 1987 C O N S T I T U T I O N Sec.21
OF T H E R E P U B L I C OF T H E PHILIPPINES
tigation be "in aid of legislation" is an essential element for establish-

ing the jurisdiction of the legislative body. It is, however, a requirement
which is not difficult to satisfy because, unlike in the United States,
where legislative power is shared by the United States Congress and the
state legislatures, the totality of legislative power is possessed by the
Congress and its legislative field is well-nigh unlimited. "It would be
difficult to define any limits by which the subject matter of its inquiry
261
can be bounded." Moreover, it is not necessary that every question
propounded to a witness must be material to a proposed legislation.
"In other words, the materiality of the question must be determined by
its direct relation to the Subject of the inquiry and not by its indirect
relation to any proposed or possible legislation. The reason is that the
necessity or lack of necessity for legislative action and the form and
character of the action itself are determined by the sum total of the
information to be gathered as a result of the investigation, and not by a
262
fraction of such information elicited from a single question."
On the basis of this interpretation of what "in aid of legislation"

means, it can readily be seen that the phrase contributes practically
nothing towards protecting witnesses. Practically any investigation
can be in aid of the broad legislative p o w e r of Congress. T h e limita-
tion, therefore, cannot effectively prevent what Kilbourn v. Thomp-
son™ characterized as "roving c o m m i s s i o n s " or what Watkins v. United
264
States labeled as exposure for the sake of exposure.
In spite of the broad scope of investigation "in aid of legislation,"

however, the Court found in Bengzon, Jr. v. Senate Blue Ribbon Com-
265
mittee that the committee had gone beyond what was allowable. T h e
case started with a speech by Senator Enrile suggesting the need to
determine the existence of violation of law in the alleged transfer of
some properties of " K o k o y " R o m u a l d e z to the L o p a G r o u p of C o m p a -
nies. On this basis, the Senate Blue Ribbon C o m m i t t e e decided, pur-
portedly in aid of legislation, to investigate the transaction. M e a n w h i l e ,
too, the petitioners in this case had been charged criminally before the
Sandiganbayan in connection with the same transaction. W h e n the Blue
M
ld. at 46.
M
W.at48.
263
103 U . S . 168(1881).
2 M
3 5 4 U . S . 178,200(1957).
M
203 S C R A 767(1991).
Ribbon Committee summoned the petitioners to appear, they asked the

Court for a restraining order on the ground among others that the inves-
tigation was not in aid of legislation and that their appearance before
the investigating body could prejudice their case before the Sandigan-
bayan, thus violating due process, because it could result in the weaken-
ing of their case.
The Court ruled that the investigation was not in aid of legisla-
tion because "the speech of Senator Enrile contained no suggestion of
contemplated legislation" but merely pointed to the need to determine
whether "the relatives of President A q u i n o , particularly Mr. Ricardo
266
Lopa, had violated the law."
In effect, therefore, on the basis of the speech of one member of

the Senate, the Court second guessed the intention of the Blue Rib-
267
bon C o m m i t t e e . Having m a d e this conclusion, the Court no longer
looked into the due process allegation of Bengzon. If it had done so,
it could have found a valid foundation for stopping the investigation
in the provision that the "rights of persons appearing in or affected by
such inquiries shall be respected." T h e general rule of fairness, which is
what due process is about, could have justified exclusion of respondents
from appearance before the Committee. Which would not mean that the
Committee should not go ahead with the investigation making use of
other witnesses, if any there were. In other words, one must distinguish
between the jurisdiction of the Committee, which it had, and the limits
on that jurisdiction, which are prescribed by the Constitution.
26
In Standard Charter v. Senate, * when bank officers who had been
summoned used the Bengzon argument as their defense, the Court said
that the factual milieu in Bengzon did not obtain in the case. Resolution
N o . 166 calling for the hearing was explicit about the subject and nature
of the inquiry to be conducted by the respondent Committee. The Court
found that the hearing was clearly in aid of legislation.
It should also be noted that the Constitution explicitly recognizes

the power of investigation not just of Congress but also of "any of its
committees." This is significant because it constitutes a direct conferral
of investigatory power upon the committees and it means that the means
* M . at 781.
241
See dissents of Justices Gutierrez and Cruz.
""G.R.No. 167173, December 27,2007.
which the Houses can take in order to effectively perform its investiga-
tive function are also available to the committees. This is unlike the
situation under the 1935 Constitution where the investigatory powers
of committees were conferred by the legislature. Hence, for the purpose
of protecting witnesses against the improper use of the compulsory pro-
269
cess by committees, Watkins v. United States could require "that the
instructions to an investigating committee spell out that group's juris-
diction and purpose with sufficient particularity." This requirement of
particularity of purpose was intended to enable the witness to determine
the pertinence of the committee's questions. Now, however, that inves-
tigatory power has been directly conferred on committees, the com-
mittees themselves as far as subject matter jurisdiction is concerned,
are limited only by the broad requirement that their investigations be
"in aid of legislation" on subjects pertaining to the particular commit-
tees. Provided that the committees act within the broad legislative area
assigned to them by Congress, they would not exceed their investiga-
tory jurisdiction. The problem of affording witnesses the opportunity to
determine for themselves the pertinence of the questions can be solved
270
by clarificatory statements by the committee itself. A n d , it should be
recalled, the measure of pertinence is not the question's relation to a
271
specific legislation but merely to the general subject of the enquiry.
The significance of the second limitation on the investigatory

power — that the inquiry be "in accordance with its duly published
rules of procedure" — can, perhaps, be appreciated by considering it
side by side with the control Congress has over its rules when they
affect merely matters internal to it. As already seen in Osmefia, Jr. v.
212
Pendatun where Congress suspended the operation of a H o u s e rule
which could have protected C o n g r e s s m a n Osmefia, the Supreme Court
accepted the view that parliamentary rules " m a y be waived or disre-
273
garded by the legislative body." This view can be accepted as appli-
cable when private rights are not affected. W h e n , however, the private
rights of witnesses in an investigation are involved, Section 21 now
prescribes that Congress and its committees must follow the "duly p u b -
2w
354U.S.at201.
27t
This, in fact was the procedure accepted in Barenblatt v. United States, 360 U.S. 109
(1959), a decision which came after Watkins.
27
'87 Phil, at 48.
272
109 Phil. 863 (1960).
273
109 Phil, at 871.
lished rules of procedure." Moreover, Section 21 may also be read as

requiring that Congress must have "duly published rules of procedure"
for legislative investigations. Violation of these rules would be an of-
fense against due process.
T h e need for publication b e c a m e a focus in the case of Neri v.

21
Senate * case where it was shown that the Senate currently conduct-
ing the investigation had not published its rules. The Court emphasized
that publication gives the notice that is required for due process since
investigations can affect the rights of non-members of Congress. More-
over, the Court through the concurring and dissenting opinion of Justice
Antonio Carpio added:
The present Senate under the 1987 Constitution is no lon-

ger a continuing legislative body. The present Senate has twenty-
four members, twelve of whom are elected every three years for a
term of six years each. Thus, the term of twelve Senators expires
every three years, leaving less than a majority of Senators to
continue into the next Congress. The 1987 Constitution, like the
1935 Constitution, requires a majority of Senators to "constitute a
quorum to do business." Applying the same reasoning in Arnault v.
Nazareno, the Senate under the 1987 Constitution is not a continu-
ing body because less than majority of the Senators continue into
the next Congress. The consequence is that the Rules of Procedure
must be republished by the Senate after every expiry of the term
of twelve Senators.
In a later Resolution on the same case the Court would elaborate

thus:
On the nature of the Senate as a "continuing body," this Court

sees fit to issue a clarification. Certainly, there is no debate that the
Senate as an institution is "continuing," as it is not dissolved as
an entity with each national election or change in the composition
of its members. However, in the conduct of its day-to-day business
the Senate of each Congress acts separately and independently of
the Senate of the Congress before it. The Rules of the Senate itself
confirms this when it states:
In effect, in the absence of published rules, investigation cannot

proceed.
2,4
G.R. No. 180643, March 25,2008.
115
The later case of Garcillano v. Senate, would reject the conten-
tion that previously published Senate Rules had never been changed.
The Court said:
The absence of any amendment to the rules cannot justify

the Senate's defiance of the clear and unambiguous language of
Section 21, Article VI of the Constitution. The organic law in-
structs, without more, that the Senate or its committees may con-
duct inquiries in aid of legislation only in accordance with duly
published rules of procedure, and does not make any distinction
whether or not these rules have undergone amendments or revi-
sion. The constitutional mandate to publish the said rules prevails
over any custom, practice or tradition followed by the Senate.
Likewise the Court rejected the contention that the rules could
already be found published in the internet:
The invocation by the respondents of the provisions of R.A.

No. 8792, otherwise known as the Electronic Commerce Act of
2000, to support their claim of valid publication through the inter-
net is all the more incorrect. R.A. No. 8792 considers an electronic
data message or an electronic document as the functional equiva-
lent of a written document only for evidentiary purposes. In other
words, the law merely recognizes the admissibility in evidence
(for their being the original) of electronic data messages and/or
electronic documents. It does not make the internet a medium for
publishing laws, rules and regulations.
Finally, however, the Court was willing to concede that if the pre-
viously published rules had stated that their adoption shall remain in
force until they are amended or repealed, the rules would then subsist
beyond the Senate that adopted it.
The third limitation on legislative investigatory p o w e r is that "the

rights of persons appearing in or affected by such inquiries shall be
respected." This is just another way of saying that legislative investi-
gations must be "subject to the limitations placed by the Constitution
276
on governmental action." And since all governmental action must be
exercised subject to constitutional limitations, principally found in the
'G.R. No. 170338, December 28,2008.

'Barenblatt v. United States. 360 U.S. at 112.
Bill of Rights, this third limitation really creates no new constitutional

right. But it emphasizes such fundamentals as the right against self-
incrimination and unreasonable searches and seizures and the right to
d e m a n d , under due process, that Congress observe its own rules.
In addition to the above express limitations on the power of Con-

gress is the implicit limitation that the power of Congress to commit a
witness for contempt terminates when the legislative body ceases to ex-
ist upon its final adjournment. "This must be so, inasmuch as the basis
of the p o w e r to impose such a penalty is the right which the Legislature
has to self-preservation, and which right is enforceable during the exis-
277
tence of the legislative body." T h u s , unlike the Senate which contin-
ues as an institution even after an election, the term of whose members
278
expire at different times and is therefore a continuing body, the life
of the House of Representatives terminates upon its final adjournment.
With the termination of its life, the power to punish for the purpose of
preserving that life must also end. However, there is legally nothing
to prevent the subsequent House of Representatives from continuing
the investigation and reincarcerating a witness who persists in being
contumacious.
Finally, it must be remembered that the exercise of this awesome

power of Congress may be looked into by the Supreme Court under its
expanded jurisdiction given by Article VIII, Section 1.
H o w Section 21 operates in relation to Section 22 is explained

under Section 2 2 .
SEC. 22. THE HEADS OF DEPARTMENTS MAY UPON THEIR OWN

INITIATIVE, WITH THE CONSENT OF THE PRESIDENT, OR UPON THE
REQUEST OF EITHER HOUSE, AS THE RULES OF EACH HOUSE SHALL
PROVIDE, APPEAR BEFORE AND BE HEARD BY SUCH HOUSE ON ANY
MATTER PERTAINING TO THEIR DEPARTMENTS. WRITTEN QUESTIONS
SHALL BE SUBMITTED TO THE PRESIDENT OF THE SENATE OR THE
SPEAKER OF THE HOUSE OF REPRESENTATIVES AT LEAST THREE DAYS
BEFORE THEIR SCHEDULED APPEARANCE. INTERPELLATIONS SHALL
NOT BE LIMITED TO WRITTEN QUESTIONS, BUT MAY COVER MATTERS
Âvancena, CJ., concurring in Lopez v. de los Reyes, 55 Phil. 170, 186 (1930). See Vivo
v. Ganzon, 57 SCRA 255 (May 31, 1974).
"'Article XVm, Section 2; Arnault v. Nazareno, 87 Phil, at 61.
768 THE 1987 CONSTITUTION Sec. 2 2
RELATED THERETO. WHEN THE SECURITY OF THE STATE OR THE PUBLIC

INTEREST SO REQUIRES AND THE PRESIDENT SO STATES IN WRITING,
THE APPEARANCE SHALL BE CONDUCTED IN EXECUTIVE SESSION.
1. Congress and Heads of Departments.
Section 21 deals with the inherent power of legislative investi-

gation in aid of legislation for which Congress or its committees are
authorized to summon witnesses. Because of separation of powers,
however, and the peculiar position which heads of departments hold
in relation to the President, the relationship of Congress to the official
family of the President is also delicate. Section 22 deals with this deli-
cate relationship.
The rule governing the subject has evolved over the years and it
remains not without points of unclarity. Before the 1935 Constitution,
the rule was found in the Administrative C o d e which said: " T h e Secre-
taries may be called, and shall be entitled to be heard, by either of the
two Houses of the Legislature, for the purpose of reporting on matters
pertaining to their Departments, unless the public interest shall require
otherwise and the Governor-General shall so state in writing." T h e o b -
vious purpose was to enable the department heads to be heard by the
legislature and thereby achieve cooperation between the executive and
legislative departments. The practice was for various legislative c o m -
mittees to request department secretaries either to appear before legisla-
279
tive committees or to furnish written information.
In the drafting of the 1935 Constitution, the Convention debated

whether the statutory provision should be elevated to the level of a con-
stitutional provision. Those w h o opposed incorporation of the rule in
the Constitution saw the administrative code provision as a feature of a
parliamentary system and therefore contrary to the system of separation
of powers. Moreover, the "initiative" given to Secretaries w a s seen as
opening the door to Cabinet lobbying for pet items. But the provision
was adopted nonetheless in order to obviate any constitutional chal-
lenge to a department head c o m m u n i n g with Congress and in order to
keep dealings between department heads and Congress in the open. On
the whole it was thought that information given by Secretaries would
ARUEGO, THE FRAMING OF THE PHILIPPINE CONSTITUTION 447-450 (1936).

Sec. 2 2 ART. VI — THE LEGISLATIVE DEPARTMENT 769
improve the quality of legislation. Thus the provision incorporated into

the 1935 Constitution read: "The heads of departments upon their own
initiative or upon the request of the National Assembly may appear be-
fore and be heard by the National Assembly on any matter pertaining to
their departments, unless the public interest shall require otherwise and
280
the President shall so state in writing."
T h e whole tenor of the provision was permissive: the department

heads could appear but the legislature was not obliged to entertain them;
reciprocally the legislature could request their appearance but could not
oblige t h e m especially if the President objected. Nobody adverted to
the possibility or need of enforcement through formal legislative sum-
monses or through the use of legislative contempt powers because ev-
erything would be a gentlemanly g a m e between equals.
T h e rules radically changed with the adoption of the 1973 Con-

stitution. T h e original 1973 Constitution adopted a parliamentary form
of government and, with it, the parliamentary devise of the "question
281
hour" which was intended to serve not so much as an aid to legis-
lation but as an instrument for keeping administration in line. Since
in a parliamentary system administration is answerable to Parliament,
the Prime Minister, the real executive, and Cabinet Members could be
""required to appear and answer questions and interpellations" to give
an account of their stewardship. W h e n in 1981 the Constitution was
revised to revert to the presidential system and thereby revert executive
power to the President, the "question hour" was retained with regard to
the Prime Minister and members of the Cabinet but the President was
kept free from legislative summonses.
During the deliberations of the 1986 Constitutional Commission,

the report of the Legislative Committee called for the adoption of the
"question hour" during which "the Members of the Cabinet and their
deputies may be required to appear and answer questions and interpel-
lations by Members of the National Assembly." The sponsorship argued
that the "procedure [would provide] the opposition with a means of
discovering the government's weak points and because of the publicity
""IV PROCEEDINGS OF THE PHILIPPINE CONSTITUTIONAL CONVENTION 740-

750 (Laurel ed.).
2 , 1
Article VIII, Section 12(1), 1973 Constitution.
282
it generates, it has a salutary effect on the administration." The pro-
posal, however, was vigorously resisted as being essential to the parlia-
mentary system and therefore contrary to the essence of separation of
283
powers in a presidential system. After much debate and after a series
284
of reformulations, and much against the wishes of the sponsorship be-
cause the appearance of department heads would not be mandatory but
285 286
directory, the present provision was unanimously approved: "The
heads of departments may upon their own initiative, with the consent of
the President, or upon the request of either H o u s e , as the rules of each
House shall provide, appear before and be heard by such House on any
matter pertaining to their departments. W h e n the security of the State or
the public interest so requires and the President so states in writing, the
appearance shall be conducted in executive session." Should the depart-
ment head appear, however, whether on his own initiative or upon the
request of the House, the appearance will be done "as the rules of each
House will prescribe." The provision thus rejects the original proposal
patterned after the 1973 version and reflects instead its 1935 counter-
part. The tenor is once more permissive. The President may or may not
consent to the appearance of department heads; and even if he d o e s , he
may require that the appearance be in executive session. Reciprocally,
Congress may refuse the initiative taken by the department secretary.
Even after all this discussion, and after the approval of the radi-
cally amended provision, Commissioner Davide still insisted that heads
of departments could be compelled under pain of contempt to appear,
no longer, however, in virtue of Section 22 but in virtue of the power
287
of legislative investigation in Section 21 . Such a position, however,
fails to take into consideration the fact that Section 22 w a s first incor-
porated into the 1935 Constitution in recognition of the tradition that
the inherent power of legislative investigation could run afoul with as-
sertion of executive privilege. American legislative tradition, whence
Philippine tradition originated, has generally regarded congressional
contempt power as an inappropriate device for regulating executive
a 2
n RECORD 4 6 , 9 2 , 1 0 7 , 1 3 2 .
m
ld. at 133.
Îd.at 133-134, 1 4 7 - 1 5 1 .
"Vd.at 1 4 7 - 1 4 8 .
m
U. at 151.
™Id. at 199-200.
288
claims of privilege. H e n c e , although the task of legislation demands
adequate information and although the Bill of Rights guarantees the
289
right of the people to information on matters of public concern, the
dynamics of legislative-executive relations would dictate that Congress
find ways of obtaining information from department heads other than
by compulsion. On the other hand, department heads should be aware
that information vital to legislation legitimately requested by Congress
should not, for the welfare of the nation, be withheld.
2
Senate v. Ermita *> specified who may and who may not be sum-
moned to Section 21 hearings. Under this rule, even a Department Head
w h o is an alter ego of the President may be summoned. T h u s , too, the
Chairman and m e m b e r s of the Presidential Commission on Good Gov-
ernment ( P C G G ) are not exempt from s u m m o n s in spite of the exemp-
tion given to them by President Cory Aquino during her executive rule.
The Court ruled that anyone, except the President and Justices of the
291
Supreme Court, m a y be summoned. N o r may a court prevent a wit-
292
ness from appearing in such hearing.
Section 2 2 , for its part, establishes the rule for the exercise of
what is called the "oversight function" of Congress. Such function is
intended to enable Congress to determine how laws it has passed are
being implemented. In deference to separation of powers, however, and
because Department Heads are alter egos of the President, they may
not appear without the permission of the President. This was explicitly
mentioned in the deliberations of the 1935 Constitutional Convention
where some Delegates had doubts about the propriety or constitutional-
ity of Department Heads appearing in Congress.
It should be noted, however, that the exemption from summons

applies only to Department Heads and not to everyone who has Cabinet
rank.
S E C . 2 3 . ( 1 ) T H E CONGRESS, BY A VOTE OF TWO-THIRDS OF

BOTH HOUSES IN JOINT SESSION ASSEMBLED, VOTING SEPARATELY,
"'See, e.g., United States v. Nixon, 418 U.S. 683 (1974), where the Supreme Court lent
its blessing on the executive right to withhold information as flowing from separation of powers.
"'Article III, Section 7.
"°G.R. No. 169777, April 20,2006.
2
"Sabio v. Gordon, GJL No. 174318, October 17,2006.
292
Senate Blue Ribbon Committee v. Judge Majaducon. GR. No. 136760, July 29,2003.
SHALL HAVE THE SOLE POWER TO DECLARE THE EXISTENCE OF A STATE

OF WAR.
(2) 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. U N L E S S SOONER WITHDRAWN BY
RESOLUTION OF THE C O N G R E S S , SUCH POWERS SHALL CEASE UPON THE
NEXT ADJOURNMENT THEREOF.
1. Declaration of the existence of a state of war.

293
War is denned as "armed hostilities between two states." T h e
1935 Constitution, in Article VI, Section 2 5 , gave to Congress "the sole
power to declare war;" the present provision, following that of Article
VIII, Section 14(2) of the 1973 Constitution, gives to Congress, in joint
session assembled and voting separately, "the sole power to declare the
existence of a state of war." The difference between the t w o phraseolo-
gies is not substantial but merely in emphasis.
The two phrases were interchangeable, even under the 1935

294
Constitution; but the second phrase emphasizes m o r e the fact that the
Philippines, according to Article II, Section 2, renounces aggressive
295
war as an instrument of national policy.
The provision does not prohibit the waging of a defensive war

even in the absence of a declaration of war or of a declaration of the
existence of a state of war. T h u s , during the 1935 Convention, Delegate
Salvador Araneta asked: "En caso de que Filipinos fuera invadida por
una nation extranjera, no estando la legislatura en funciones; que ac-
tion podria tomar el gobierno entonces para defender la invasion?"
Delegate Singson-Encamacion's answer was unequivocal: "Resistir
296
con todas susfuerzas armadas." In other w o r d s , while the Constitu-
tion gives to the legislature the p o w e r to declare the existence of a state
of war and to enact all measures to support the war, the actual p o w e r
to make war is lodged elsewhere, that is, in the executive p o w e r which
M3
II RECORD 169.
'"X PROCEEDINGS OF THE 1935 CONSTITUTIONAL CONVENTION 468-9 (LAUREL
Ed.).
™U RECORD 168.
""IV PROCEEDINGS at 942-3.
holds the sword of war. The executive power, when necessary, may
297
m a k e war even in the absence of a declaration of war. In the words of
the American Supreme Court, war being a question of actualities, "the
President was bound to meet it in the shape it presented itself, without
waiting for Congress to baptize it with a n a m e ; and no name given to it
298
by him or them could change the fact."
2. Delegation of emergency p o w e r s .
Section 2 6 , Article V I , of the 1935 Constitution said:
In times of war or other national emergency, the Congress

may by law authorize the President, for a limited period and sub-
ject to such restrictions as it may prescribe, to promulgate rules
and regulations to carry out a declared national policy.
T h e pre-conditions for the grant of emergency powers found in

the 1935 Constitution have been preserved in the present provision:
"war or other national emergency." However, the nature of the power
which the legislature is allowed to delegate has been altered. The 1935
Constitution allowed the delegation of the power "to promulgate rules
and regulations to carry out a declared national policy." In constitution-
al law parlance, the power "to promulgate rules and regulations" is not a
299
power to m a k e laws but a power merely to execute the law. It is clear
from the debates of the 1935 Constitutional Convention that it was not
300
that Convention's intention to give legislative power to the President.
This was affirmed by the Supreme Court in Araneta v. Dinglasan:™
"The point is, under this framework of government, legislation is pre-
served for Congress all the time, not excepting periods of crisis no mat-
ter how serious."
Under the present provision, which follows the phraseology of the

1973 Constitution which was more expansive in its grant of powers to
the President, Congress may authorize the President "to exercise pow-
ers necessary and proper to carry out a declared national policy." It is
a formula well suited to the looser separation of executive and legisla-
t e Prize Cases, 2 Bl. 635 (U.S. 1863).

Kt
W . at 669.
™See supra, on Non-delegability of Legislative Power.
""X PROCEEDINGS at 951-6.
W1
8 4 Phil. 369,382 (1949).
302
tive powers in the 1973 system. Note that the nature of the delegated
power is not specified. It thus lends support to the conclusion that this
authorizes delegation of real legislative power. In fact, when the 1973
text was being formulated, the explanation was made on the floor of the
1971 Convention that emergency powers would include the power to
303
rule by "executive fiat." This meaning too can be read as carried into
the 1987 text; but, since even a martial law situation does not allow the
President to supplant the legislature, the authority which can be given
by the legislature must necessarily be a very limited one and certainly
304
not amounting to the legislature's abdication of its power.
There are, moreover, two limits on the emergency powers. First,

it can be given only "for a limited period." If Congress does not set
a limit, the provision adds: "Unless sooner withdrawn by resolution
of the Congress, such powers shall cease upon the next adjournment
thereof." It should thus be noted that the powers may be withdrawn by
"resolution"; it is not necessary that the withdrawal be done through a
statute. The distinction is important because a resolution does not need
the approval of the President whereas a statute, to be effective, needs
the President's approval. It should also be noted that the automatic ces-
sation of the President's emergency powers takes place upon the next
adjournment. In other words, ironically, when the Congress is not in
session and therefore unable to act on emergency situations, the Presi-
dent himself is stripped of his emergency p o w e r s .
Secondly, the emergency powers are subject to such restrictions

as the Congress may provide. T h u s , the emergency powers can be as
narrow or as broad as the Congress may m a k e them.
SEC. 24. ALL APPROPRIATION, REVENUE OR TARIFF B I L L S ,

BILLS AUTHORIZING INCREASE OF T H E PUBLIC D E B T , BILLS OF LOCAL
APPLICATION, AND PRIVATE BILLS SHALL ORIGINATE EXCLUSIVELY IN
THE H O U S E OF REPRESENTATIVES, BUT T H E SENATE MAY P R O P O S E OR
CONCUR WITH AMENDMENTS.
M2
In fact, the provision was rendered useless by Amendment 6 which under the 1973 Con-
stitution gave to the President all the emergency powers he needed and more.
^"Delegate I. Veloso, Session of July 23, 1972
RECORD 88.
1. Origin of m o n e y bills, private bills and bills of local ap-

plication.
An appropriation bill is one whose purpose is to set aside a sum

of money for public use. Only appropriation bills in the strict sense of
the word are comprehended by the provision; bills for other purposes
which incidentally set aside money for that purpose are not included.
Similarly revenue or tariff bills are those which are strictly for the
raising of revenues; bills for other purposes which incidentally create
revenue are not comprehended.
Bills of local application are those whose reach is limited to spe-

cific localities, such for instance as the creation of a town. Private bills
are those which affect private persons, such for instance as a bill grant-
ing citizenship to a specific foreigner.
The theory behind the rule requiring that these originate in the
House of Representatives is that district Representatives are closer to
the pulse of the people than senators are and are therefore in a better po-
sition to determine both the extent of the legal burden they are capable
of bearing and the benefits that they need.
The meaning of origination from the House and the scope of the
Senate's power to introduce amendments were thoroughly discussed in
1 5
Tolentino v. Secretary of Finance " involving R.A. N o . 7716, the Value
Added Tax (VAT) law. After the House version of the bill was sent to
the Senate, the Senate introduced a substitute bill which apparently it
had prepared in anticipation of the House bill. Later the President certi-
fied to the urgency of passing the Senate version of the bill. After the
two versions had gone through a Conference Committee, the House ap-
proved the Conference Committee report which for all practical purpos-
es was the Senate bill. Was there a violation of the rule on origination?
The constitutional rule is that revenue bills must "originate

exclusively" from the House of Representatives. The Court said that the
exclusivity of the prerogative of the House of Representatives means
simply that the House alone can initiate the passage of a revenue bill,
such that, if the House does not initiate one, no revenue law will be
™235 SCRA 630 (1994), affirmed on reconsideration G.R. Nos. 111206-08, October 6,
1995.
passed. But once the House has approved a revenue bill and passed it
on to the Senate, the Senate can completely overhaul it, by amendment
of parts or by amendment by substitution, and come out with one
completely different from what the House approved. It does not matter
whether the Senate already anticipated a bill from the House and
formulated one to take the place of whatever the House might send. The
Court rejected the idea that the Senate is bound to retain the essence of
what the other House approved. Textually, it is the "bill" which must
exclusively originate from the House; but the " l a w " itself which is the
product of the total bicameral legislative process originates not just
306
from the House but from both Senate and House.
SEC 25. (1) THE CONGRESS MAY NOT INCREASE THE

APPROPRIATIONS RECOMMENDED BY THE PRESIDENT FOR THE
OPERATION OF T H E G O V E R N M E N T AS SPECIFIED IN T H E BUDGET. T H E
F O R M , CONTENT, AND MANNER OF PREPARATION OF THE BUDGET SHALL
BE PRESCRIBED BY LAW.
(2) NO PROVISION OR ENACTMENT SHALL BE EMBRACED IN

THE GENERAL APPROPRIATIONS BELL UNLESS IT RELATES SPECIFICALLY
TO SOME PARTICULAR APPROPRIATION T H E R E I N . A N Y SUCH PROVISION
OR ENACTMENT SHALL BE LIMITED IN ITS OPERATION TO THE
APPROPRIATION TO WHICH IT RELATES.
(3) T H E PROCEDURE IN APPROVING APPROPRIATIONS FOR THE

CONGRESS SHALL STRICTLY F O L L O W T H E PROCEDURE F O R APPROVING
APPROPRIATIONS FOR OTHER DEPARTMENTS AND AGENCIES.
(4) A SPECIAL APPROPRIATIONS BILL SHALL SPECIFY THE

PURPOSE FOR WHICH IT IS INTENDED, AND SHALL BE SUPPORTED
BY FUNDS ACTUALLY AVAILABLE AS CERTIFIED BY T H E NATIONAL
TREASURER, OR TO BE RAISED BY A CORRESPONDING REVENUE
PROPOSAL THEREIN.
(5) No LAW SHALL BE PASSED AUTHORIZING ANY TRANSFER

O F APPROPRIATIONS; H O W E V E R , T H E P R E S I D E N T , T H E PRESIDENT O F
THE SENATE, THE S P E A K E R O F T H E H O U S E O F REPRESENTATIVES,
THE C H I E F JUSTICE O F THE S U P R E M E C O U R T , AND T H E HEADS O F
CONSTITUTIONAL COMMISSIONS MAY, BY LAW, BE AUTHORIZED
TO AUGMENT ANY ITEM IN THE GENERAL APPROPRIATIONS LAW FOR
THEIR RESPECTIVE OFFICES FROM SAVINGS IN O T H E R ITEMS OF THEIR
RESPECTIVE APPROPRIATIONS.
Id. at 661-662.
(6) DISCRETIONARY FUNDS APPROPRIATED FOR PARTICULAR

OFFICIALS SHALL BE DISBURSED ONLY FOR PUBLIC PURPOSES TO
BE SUPPORTED BY APPROPRIATE VOUCHERS AND SUBJECT TO SUCH
GUIDELINES AS MAY BE PRESCRIBED BY LAW.
(7) IF, BY THE END OF ANY FISCAL YEAR, THE C O N G R E S S

SHALL HAVE FAILED TO PASS T H E GENERAL APPROPRIATIONS BILL
FOR THE ENSUING FISCAL YEAR, THE GENERAL APPROPRIATIONS LAW
FOR T H E PRECEDING FISCAL YEAR SHALL BE DEEMED RE-ENACTED
AND SHALL REMAIN IN F O R C E AND EFFECT UNTIL THE GENERAL
APPROPRIATIONS BILL IS PASSED BY THE CONGRESS.
1. Limits on p o w e r to appropriate.
T h e provision that " N o money shall be paid out of the Treasury

307
except in pursuance of an appropriation m a d e by law" is a limit not on
the power of Congress but on the disbursing authority of the executive
308
department. This does not m e a n , however, that Congress is complete-
ly free to appropriate money in any manner and for whatever purpose it
may choose. Article V I , Sections 2 4 , 2 5 and 2 9 , and Article VII, Section
22 contain a list of explicit restrictions on the power of Congress.
First, as already seen, "All appropriation, revenue or tariff bills,

bills authorizing increase of the public debt, bills of local application,
and private bills shall originate exclusively in the House of Representa-
309
tives, but the Senate may propose or concur with amendments."
Secondly, "The Congress may not increase the appropriations rec-

ommended by the President for the operation of the Government as
310
specified in the budget."
Thirdly, the Congress may not clutter the general appropriation

law with provisions not specifically related to some particular item of
appropriation, and every such provision shall be limited in its operation
3
to the appropriation item to which it relates. "
""Article VI, Section 29(1).

""Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937). The restriction also applies
to local executives in relation to local government funds. City of Manila v. Posadas, 48 Phil. 309
(1925).
""Section 24.
""Section 25(1).
'"Section 25(2).
Fourth, Congress may not adopt a procedure for approving ap-

propriations for itself different from the procedure for other appropria-
312
tions.
Fifth, special appropriation bills must specify the purpose for
which they are intended and must be supported by funds certified as
available by the National Treasurer. If the funds are not actually avail-
able, the special appropriation bill must provide a corresponding rev-
313
enue proposal.
Sixth, Congress has limited discretion to authorize transfer of

314
funds.
Seventh, "Discretionary funds appropriated for particular officials
shall be disbursed only for public purposes to be supported by appro-
priate vouchers and subject to such guidelines as may be prescribed by
law." This is a new provision intended to prevent abuse in the use of
discretionary funds.
Eighth, Congress cannot cripple the operation of government by

its failure or refusal to pass a general appropriations bill. Section 25(7)
provides for automatic re-enactment of the general appropriations law
of the preceding fiscal year. Such "reappropriation" remains in force
until the new general appropriations law is approved.
Ninth, Section 29(2) prohibits the expenditure of public money

or property for religious purposes. T h e scope of this prohibition is dis-
cussed under the religion clause of the Bill of Rights.
Finally, the general appropriation law must be based on the budget

315
prepared by the President. This is discussed under Article VII.
Aside from the explicit limitations found in Sections 2 4 , 25 and

2 9 , there is also the all important implicit limitation that public money
can be appropriated only for a public purpose. This limitation arises
from the relation between the p o w e r to spend and the p o w e r to tax.
"The right of the legislature to appropriate public funds is correlative
with its right to tax, and, under constitutional provisions against taxa-
3l2
Section 25(3).
3,3
Section 25(4).
3l4
Section 25(5).
315
Article VII, Section 22.
Sec. 25 ART. VI - THE LEGISLATIVE DEPARTMENT
779
tion except for public purposes ... no appropriation of state funds can
3 6
be made for other than a public purpose." '
2. Prohibition of increase.
Article V I , Section 25(1) says: " T h e Congress may not increase

the appropriations r e c o m m e n d e d by the President for the operation of
the Government as specified in the budget." This text is different from
Article V I , Section 19(1) of the 1935 Constitution which said in part:
" T h e Congress may not increase the appropriations recommended by
the President for the operation of the Government as specified in the
Budget, except the appropriations for the Congress and the Judicial
Department." W h a t is the significance of this difference? Does the
1987 text prohibit Congress from increasing the budget for Congress
and the Judicial Department?
This prohibition was not contained in the original draft of Article

VI of the n e w Constitution. Comrnissioner Natividad noted this and
said: "Is there no prohibition to increase the presidential budget? The
historic practice is that the presidential budget may be decreased but not
increased." He explained that this historic prohibition was intended to
prevent big budget deficits. For this reason, Commissioner Natividad
hinted that he would propose an amendment to incorporate the prohibi-
317
tion explicitly.
Eventually Natividad proposed the amendment which became the

present provision. In announcing the Committee's acceptance of the
Natividad amendment, Comrnissioner Davide simply said: "I do not
think this would require any explanation because this is in the 1935
318
Constitution." In acceding to the amendment, therefore, Davide's in-
tention was to revert to the 1935 rule. In fact, too, Natividad's express
concern was only about the "presidential budget" and not about the
budget for Congress or for the judiciary.
3. Prohibition of "riders" in appropriation bills.

Provisions unrelated to the appropriation bill are considered pro-
hibited "riders." T h u s , a provision on the reversion of reserved officers
31
*81 CJ.S.p. 1147.
31,
n RECORD 107-8.
'"Id. 164.
into active duty which was inserted in the Appropriation Act of 1956-
1957 was found to be unrelated to any provision in the appropriation
319
act and therefore unconstitutional. Even if this specific prohibition did
not exist, however, riders in appropriation bills would still be prohibited
under the general prohibition of riders in Section 26(1) to be discussed
below.
The rule on riders combined with the President's power of "item-
veto" and the with the doctrine on "inappropriate provisions" has given
to the President tremendous control over money legislation. This will
be treated below under Section 27.
4. Transfer of funds.
The rule on the transfer of funds says: " N o law shall be passed
authorizing any transfer of appropriations; however, the President, the
President of the Senate, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, and the heads of Constitutional
Commissions may, by law, be authorized to augment any item in the
general appropriations law for their respective offices from savings in
other items of their respective appropriations."
The list of those who may be authorized to transfer funds under

this provision is exclusive. H e n c e , the Chief of Staff of the A r m e d Forc-
320
es may not be given such authority. Likewise, individual m e m b e r s of
Congress may not be given such authority and must seek approval from
the Speaker or the Senate President if these latter have been authorized
321
by law.
An almost identical provision was contained in Article VILT, Sec-

322
tion 16(5) of the 1973 Constitution under which Demetria v. Alba™
was litigated. At issue in Demetria was the first paragraph of Section 44
of Presidential Decree N o . 1177 which said:
The President shall have the authority to transfer any fund,

appropriated for the different departments, bureaus, offices and
3
"Garcia v. Mata, 65 SCRA 517, 521 (1975).
320
Philippine Constitutional Association v. Enriquez, 235 SCRA 506,544 (1994).
m
ld. at 528.
32J
The 1973 provision differed from the 1987 text only in that in the former the officers
who could be authorized to make transfers were the President, the Prime Minister, the Speaker, the
Chief Justice and the heads of Constitutional Commissions.
323
G.R. No. 71977, February 27, 1987.
agencies of the Executive Department, which are included in the

General Appropriations Act, to any program, project or activity of
any department, bureau, or office included in the General Appro-
priations Act or approved after its enactment.
C o m m e n t i n g on the constitutional text, the Court said that the

provision is intended "to afford the heads of the different branches of
the government and those of the constitutional commissions consider-
able flexibility in the use of public funds and resources" but that the
leeway granted was limited. " T h e purpose of augmenting an item and
such transfer may be m a d e only if there are savings from another item
in the appropriation of the government branch or constitutional body."
Pointing out that P.D. N o . 1177 empowered the President "to indiscrim-
inately transfer funds ... without regard as to whether or not the funds
to be transferred are actually savings in the item from which the same
are to be taken," the Court declared the law unconstitutional.
T h e defect of Section 44 of P.D. N o . 1177 was later corrected by

R . A . N o . 6 6 7 0 . T h e effectivity of this statute has survived through the
application of the doctrine on "inappropriate provisions" in Gonzales v.
Macaraig, Jr. discussed below under Section 27.
5. Appropriations m u s t be for a public purpose.
T h e power to appropriate is as broad as the power to tax. Public

funds "can never accomplish the objects for which they were collected,
324
unless the power to appropriate is as broad as the power to tax." If the
purpose of the appropriation is one for which a tax may be collected, the
appropriation is legitimate. Put differently, "The test of the constitution-
ality of a statute requiring the use of public funds is whether the statute
is designed to promote the public interest, as opposed to the furtherance
of the advantage of individuals, although such advantage to individuals
325
might incidentally serve the public."
326
A case in point is Pascual v. Secretary of Public Works. The case
is interesting because it may have overtaxed the requirement of public
purpose. At issue was the appropriation of 85,000 pesos for a projected
feeder road which ran through a private subdivision and over property
324
United States v. Butler, 297 U.S. at 65.
JU
8 1 CJ.S.p. 1147.
"*110 Phil. 331 (1960).
782 T H E 1987 C O N S T I T U T I O N Sec. 26
O F T H E R E P U B L I C O F T H E PHILIPPINES
owned by respondent operator Zulueta. The Court invalidated the ap-

propriation saying that inasmuch "as the land on which the projected
feeder roads were to be constructed belonged to respondent Zulueta,
327
the result is that said appropriation sought a private purpose." The
fact that some five months after the approval of appropriation the prop-
erty was donated to the government was found quite irrelevant to the
validity of the appropriation. "The validity of a statute depends upon
the powers of Congress at the time of its passage or approval, not upon
328
events occurring, or acts performed, subsequently thereto."
One could very well question whether the private character of the
property conclusively established the private purpose of the appropria-
tion. A road, after all, even if it runs through a private subdivision, can
serve a very legitimate public purpose, especially if the subdivision
is populous. In the circumstances of the case, the more valid question
which should have been asked was not whether the projected feeder
roads would run on private property but whether the private property
was a proper object for expropriation for the construction of a feeder
road. If expropriation could have been d o n e , the appropriation, even
without expropriation, would also have been for a public purpose albeit
with incidental private benefit.
Jurisprudence on social justice also has a bearing on this provi-

sion. Appropriations for the implementation of social justice p r o g r a m s ,
even if directly they benefit mainly private individuals, must be consid-
329
ered to be for a public purpose.
S E C . 2 6 . ( 1 ) EVERY BILL PASSED B Y T H E C O N G R E S S SHALL

EMBRACE ONLY ONE SUBJECT W H I C H SHALL BE EXPRESSED IN T H E
TITLE T H E R E O F .
(2) No BILL PASSED BY EITHER H O U S E SHALL BECOME A

LAW UNLESS IT HAS PASSED T H R E E READINGS ON SEPARATE DAYS, AND
PRINTED COPIES T H E R E O F IN ITS FINAL F O R M HAVE BEEN DISTRIBUTED
TO ITS M E M B E R S T H R E E DAYS BEFORE ITS PASSAGE, E X C E P T WHEN
THE PRESIDENT CERTIFIES TO T H E NECESSITY OF ITS IMMEDIATE
ENACTMENT TO M E E T A PUBLIC CALAMITY OR E M E R G E N C Y . U P O N
321
ld. at 334.
^ M . at 341.
,29
See the discussion of public purpose in eminent domain cases under the Bill of Rights
and under Article XIV, Section 13.
T H E LAST READING OF A B I L L , NO AMENDMENT THERETO SHALL BE

A L L O W E D , AND T H E VOTE THEREON SHALL BE TAKEN IMMEDIATELY
T H E R E A F T E R , AND T H E YEAS AND NAYS ENTERED IN THE J O U R N A L .
1. Subject a n d title of bills: general prohibition of "riders."
T h e requirement that "Every bill shall embrace only one subject

which shall be expressed in the title t h e r e o f is mandatory and not di-
rectory and compliance with it is essential to the validity of legisla-
350
tion. An early decision explained the purpose of this limitation on
331
legislative power thus:
The object sought to be accomplished and the mischief pro-

posed to be remedied by this provision are well known. Legisla-
tive assemblies, for the dispatch of business, often pass bills by
their titles only without requiring them to be read. A specious title
sometimes covers legislation which, if its real character had been
disclosed, would not have commanded assent. To prevent surprise
and fraud on the legislature is one of the purposes this provision
was intended to accomplish. Before the adoption of this provision
the title of a statute was often no indication of its subject or con-
tents.
An evil this constitutional requirements was intended to cor-
rect was the blending in one and the same statute of such things as
were diverse in their nature, and were connected only to combine
in favor of all the advocates of each, thus often securing the pas-
sage of several measures no one of which could have succeeded
on its own merits. Mr. Cooley thus sums up in his review of the
authorities defining the objects of this provision: "It may there-
fore be assumed as settled that the purpose of this provision was:
First, to prevent hodge-podge or log-rolling legislation; second, to
prevent surprise or fraud upon the legislature by means of provi-
sions in bills of which the titles gave no information, and which
might therefore be overlooked and carelessly and unintentionally
adopted; and, third, to fairly appraise the people, through such
publication of legislative proceedings as is usually made, of the
subjects of legislation that are being considered, in order that they
may have opportunity of being heard thereon by petition or other-
332
wise if they shall so desire."
""Central Capiz v. Ramirez, 40 Phil. 883,891 (1920).

331
W. at 891, quoting Walker v. State, 49 Ala. 329.
2
" COOLEY'S CONSTITUTIONAL LIMITATIONS, p. 143.
Although the requirement is mandatory, it should not be so con-

strued as to cripple or impede proper legislation. Numerous decisions
have dealt with this provision and the trend ever since Sumulong v.
1 334
Commission on Elections " has been, as noted by Justice Fernando,
towards giving the constitutional requirement a liberal interpretation.
As the Supreme Court said in Sumulong, the requirement "should be
given a practical rather than a technical construction. It should be suf-
ficient compliance with such requirement if the title expresses the gen-
eral subject and all the provisions of the statute are germane to that
335 336
general subject." Or, in the language of Justice Sanchez: "Of course,
the Constitution does not require Congress to employ in the title of an
enactment language of such precision as to mirror, fully index or cata-
logue all the contents and the minute details therein. It suffices if the
title should serve the purpose of the constitutional demand that it in-
form the legislators, the persons interested in the subject of the bill and
the public, of the nature, scope and consequences of the proposed law
and its operation. And this, to lead them to inquire into the body of the
bill, study and discuss the same, take appropriate action thereon, and,
thus, prevent surprise or fraud upon legislators." T h u s , the title " A n
Act Amending Certain Sections of Republic Act N u m b e r e d O n e Thou-
sand One Hundred Ninety-Nine, otherwise k n o w n as the Agricultural
Tenancy Act of the Philippines" was sufficient to include a provision
authorizing the Secretary of Justice, acting through a tenancy media-
tion division, to carry out a national enforcement p r o g r a m , including
337
the mediation of tenancy disputes. Similarly, the title " A n Act to Fur-
ther Amend Commonwealth Act N u m b e r e d O n e Hundred Twenty, as
amended by Republic Act N u m b e r e d Twenty Six Hundred and Forty-
O n e " was found sufficiently expressive of the provision limiting the al-
lowable margin of profit for corporations receiving at least fifty percent
338
of its power from the National P o w e r Corporation. T h e Court has also
ruled that the title " A n Act Creating the Videogram Regulatory B o a r d "
was sufficiently broad to cover a regulatory tax provision included in
333
7 3 Phil. 288 (1941).
""Malayan v. National Power Corporation, 24 SCRA 172, 180 (1968)
5
" 73 Phil, at 291.
,56
Lidasan v. Commission on Elections, L-28089, Oct. 25, 1967; Insular Lumber v. CTA,
104 SCRA 710-17 (May 29, 1981).
'"Cordero v. Cabatuando, 6 SCRA 418 (1962).
J36
Alalayan v. National Power Corporation, 24 SCRA 172 (1968).
339
the act. Similarly, the title " A n Act Creating the Philippine Postal Cor-
poration, Defining Its Powers, Functions and Responsibilities, Provid-
ing for the Regulation of the Industry and for Other Purposes Connect-
ed Therewith" was found to be sufficiently broad to cover the removal
340
of the franking privileges of the judiciary. Similarly, the title "An Act
Converting the Municipality of Mandaluyong Into a Highly Urbanized
City of M a n d a l u y o n g " was d e e m e d to include the resulting conversion
of such city into a congressional district in compliance with Article VI,
34
Section 5(3) of the Constitution. '
Such liberality, however, has not prevented the Court from invali-
dating obvious violations. T h u s , the title "An Act Amending Subsection
(c), Section Twelve of C o m m o n w e a l t h Act Numbered One Hundred
Eighty-Six, as amended by Republic Act Numbered Thirty Hundred
Ninety-Six," was not deemed to include a provision allowing retire-
ment gratuity and commutation of vacation and sick leave to members
of Congress because the acts mentioned in the title referred to members
of the Government Service Insurance System whereas Senators and
342
members of the House were not members of the System.
Similarly, the title " A n Act Creating the Municipality of Diana-

ton in the Province of Lanao del N o r t e " was not found sufficient to
cover a provision which in fact created the municipality of Dianaton
out of barrios some of which were outside the province of Lanao del
343
Norte. Under current laws on local governments, however, this is of
little importance. The Constitution now requires that the creation of
new municipalities must have the approval of the political subdivisions
344
to be affected. Such political subdivisions would necessarily have to
be notified in a more effective way than through the title of a bill.
2. Three readings.
In order to ensure a more thorough study of the bills, Section
26(2), copying the text of Article VIII, Section 19(2) of the 1973 Con-
"Tio v. Videogram Regulatory Board, G.R. No. 75697, June 18, 1987.
^Philippine Judges Association v. Prado, 227 SCRA 703 (1993). But the provision on the
franking privileges of the judiciary was declared unconstitutional on equal protection grounds.
"'Tobias v. Abalos, 239 SCRA 106, 110-111 (1994). Also Mariano, Jr. v. Commission on
Elections, G.R. 118702, March 16,1995.
PHILCONSA v. Gimenez, 15 SCRA479 (1965). Also Garcia v. Mata, 65 SCRA 517,522
M2
(July 30,1975). Also Tan v. del Rosario, Jr., 237 SCRA 324 (1994).
"'Lidasan v. COMELEC, 21 SCRA 496 (1967); but see dissent of Fernando, J.
ÂrticleX, Section 10.
stitution, not only requires that there be three separate readings but also
that the separate readings be on "separate days" and that printed copies
of the bill in its final form should be distributed three days before its
passage. The only exception to the rule is when the President certifies to
the necessity of its immediate enactment. The effect of the certification
by the President is to dispense from the requirement that the readings
be on separate days and that the bill be printed in its final form and dis-
tributed three days before third reading.
The 1935 Constitution did not expressly require that bills undergo
three readings. However, on the basis of the 1935 Article V I , Section
345
21 (2) which spoke of a "last reading," the rules of both Houses pre-
scribed three readings. What lies behind this rule is sad experience. T h e
1934 Constitutional Convention noted the tendency of legislators, on
the last day of the legislative year when legislators were eager to go
h o m e , to rush bills through and to insert matters which would not oth-
erwise stand scrutiny in leisurely debate. T h e idea of the 1935 change
was to force legislators to take a deep breath before making the final
346
plunge of approval.
In Tolentino v. Secretary of Finance,™ there was no dispute that

the VAT law bill had gone through second and third readings on the
same day. The petitioners contended that the Constitution had been
violated since certification by the President dispensed only from the
requirement of final printing and distribution three days before third
reading but not from the requirement of having the three readings on
separate days. T h e Court replied that "the ' u n l e s s ' clause must be read
in relation to the 'except' clause, because the t w o are really coordinate
348
clauses of the same sentence." H e n c e , what the provision m e a n s is
that the President's certification effects a dispensation from all the re-
quirements.
T h e 1935 rule also allowed for certification by the President but

it did not specify grounds for certification. It simply said that the Presi-
""'No bill shall be passed by either House unless it shall have been printed and copies
thereof in its final form furnished its Members at least three calendar days prior to its passage,
except when the President shall have certified to the necessity of its immediate enactment."
346
IV JOURNAL OF THE [1935] CONSTITUTIONAL CONVENTION (LAUREL Ed.)
436-437,440-441.
M7
235 SCRA 630 (1994), affirmed on reconsideration G.R. Nos. 111206-08. October 6,
1995.
3 4 1
Id. at 664.
dent may certify "to the necessity of [the bill's] immediate enactment."
In the 1987 rule, however, the only ground for certification by the Presi-
dent is "to meet a public calamity or emergency." But what is the nature
of the "public calamity or e m e r g e n c y " which will justify certification
of a bill?
Again Tolentino, the VAT bill had been certified by the President
because of a "growing budget deficit." Those w h o challenged the bill
contended that a growing budget deficit, although a perennial problem,
was not a "public calamity or emergency." T h e Court replied that Sen-
ate itself had not seen fit to controvert the President's certification and
349
had accepted it. It further observed:
The sufficiency of the factual basis of the suspension of the

writ of habeas corpus or declaration of martial law under Art. VII,
§ 18, or the existence of a national emergency justifying the del-
egation of extraordinary powers to the President under Art. VI,
§ 23(2), is subject to judicial review because basic rights of in-
dividuals may be at hazard. But the factual basis of presidential
certification of bills, which involves doing away with procedural
requirements designed to insure that bills are duly considered by
members of Congress, certainly should elicit a different standard
of review.
But the Court did not say what that standard should be nor did it
in fact bother to review the factual basis. In effect it saw no significance
in the distinction between the 1935 text and the 1987 text.
It is, however, curious that Justice Mendoza, in quoting the appli-

cable text, abbreviated it by simply saying "except when the President
certifies to the necessity of its immediate enactment, etc." The "etc."
stood for the crucial phrase "to meet a public calamity or emergency."
Having omitted this crucial phrase, the decision went on to justify the
departure from the rule by citing a 1968 example when the House of
Representatives passed a bill on second and third readings on the same
350
day "after the bill had been certified by the President as urgent." The
decision did not say that the basis for the 1968 action of the House of
Representatives was a different 1935 text.
"•23S SCRA at 666, affirmed on reconsideration GR. Nos. 111206-08, October 6,1995.
iiB
ld. at 664-665.
788 T H E 1987 C O N S T I T U T I O N Sec. 27
O F T H E REPUBLIC O F T H E PHILIPPINES
S E C . 2 7 . ( 1 ) EVERY BILL PASSED BY THE CONGRESS SHALL,

BEFORE IT BECOMES A LAW, BE PRESENTED TO THE PRESIDENT. I F
HE APPROVES THE SAME, HE SHALL SIGN I T ; OTHERWISE, HE SHALL
VETO IT AND RETURN THE SAME WITH HIS OBJECTIONS TO THE H O U S E
WHERE IT ORIGINATED, WHICH SHALL ENTER THE OBJECTIONS AT
LARGE IN ITS JOURNAL AND PROCEED TO RECONSIDER I T . I F , AFTER
SUCH RECONSIDERATION, TWO-THIRDS OF ALL THE M E M B E R S OF SUCH
HOUSE SHALL AGREE TO PASS THE BILL, IT SHALL BE SENT, TOGETHER
WITH THE OBJECTIONS, TO THE OTHER H O U S E BY WHICH IT SHALL
LIKEWISE BE RECONSIDERED, AND IF APPROVED BY TWO-THIRDS OF
ALL THE MEMBERS OF THAT H O U S E , n SHALL BECOME A LAW. IN
ALL SUCH CASES, THE VOTES OF EACH H O U S E SHALL BE DETERMINED
BY YEAS OR NAYS, AND THE NAMES OF THE M E M B E R S VOTING FOR
OR AGAINST SHALL BE ENTERED IN ITS J O U R N A L . T H E PRESIDENT
SHALL COMMUNICATE HIS VETO OF ANY BILL TO THE H O U S E WHERE
IT ORIGINATED WITHIN THIRTY DAYS AFTER THE DATE OF RECEIPT
THEREOF; OTHERWISE, IT SHALL BECOME A LAW AS IF HE HAD SIGNED
IT.
(2) T H E PRESIDENT SHALL HAVE T H E POWER TO VETO ANY

PARTICULAR ITEM OR ITEMS IN AN APPROPRIATION, REVENUE, OR
TARIFF BILL, BUT THE VETO SHALL NOT AFFECT T H E ITEM OR ITEMS TO
WHICH HE DOES NOT O B J E C T .
1. P a s s a g e of bills.
Two steps are required before a bill finally b e c o m e s a law. First,

it must be approved by both Houses of Congress. T h e legislative action
required of Congress is a positive act; there is no enactment of law by
351
legislative inaction. The votes of the m e m b e r s of Congress may be
obtained viva voce. However, there are instances when a roll call vote
is required and individual m e m b e r s must vote with a yea or a nay. Such
roll call vote is required (1) upon the last and third readings of a bill
[Art. VI, §26(2)]; (2) at the request of one-fifth of the M e m b e r s present
[Art. VI, §16(4)]; and (3) in re-passing a bill over the veto of the Presi-
352
dent [Art. V I , §27(1)], 277 S C R A 2 6 8 . Second, it must be approved
by the President. Approval by the President may be by positive act or by
inaction. If the President does not act on the bill within thirty days after
the receipt of the bill, the bill automatically becomes law.
"'Miller v. Mardo, 2 SCRA 398.908-9 (1961).

3 5 2
Arroyo v. De Venecia, G.R. No. 127255. August 14,1997.
In both the 1935 and 1973 Constitutions, there was no mechanism

which allowed verification of whether the President had acted on the
bill or not. H e n c e , if challenged, it was possible for the President to
say that he did act on the bill within the specified period even if in fact
he had sat on it. Under the new provision verification is now possible
because he is required to communicate his veto to the House where the
bill originated. "The President shall communicate his veto of any bill to
the House where it originated within thirty days after the date of receipt
thereof; otherwise, it shall b e c o m e a law as if he had signed it." From
the discussions of this provision it is clear that "otherwise" means "if
the President fails to m a k e such communication within the specified
353
period."
T h e final approval of a bill, however, does not make it immediate-

ly effective. Tanada v. Tuvera™ has m a d e it very clear that laws become
effective only after adequate publication. Tanada involved the inter-
pretation of Article 2 of the Civil C o d e which says: "Laws shall take
effect after fifteen days following the completion of their publication in
the Official Gazette, unless it is otherwise p r o v i d e d . . . . " The Court said
that the phrase "unless it is otherwise provided" refers "to the date of
effectivity and not to the requirement of publication itself, which can-
not in any event be omitted. This clause does not mean that the legisla-
ture may m a k e the law effective immediately upon approval, or on any
other date, without its previous publication." Omission of publication
"would offend due process insofar as it would deny the public knowl-
edge of the laws that are supposed to govern it. ... Significantly, this is
not true only of penal laws as is commonly supposed. One can think of
many non-penal measures, like a law on prescription, which must also
be communicated to the persons they may affect before they can begin
355
to operate."
2. Conference Committees.
In a bicameral system bills are independently processed by both
Houses of Congress. It is not unusual that the final version approved
by one House differs from what has been approved by the other. The
"conference committee," consisting of members nominated from both
'"n RECORD 134-136.

354
146 SCRA 446 (December 29,1986).
m
U. at 452-3.
Houses, is an extra-constitutional creation of Congress whose function

is to propose to Congress ways of reconciling conflicting provisions
found in the Senate version and in the House version of a bill. It per-
forms a necessary function in a bicameral system. However, since con-
ference committees have merely delegated authority from Congress,
they should not perform functions that Congress itself may not d o .
Moreover, their proposals need confirmation by both Houses of Con-
gress.
In Tolentino v. Secretary of Finance,™ the Court had the opportu-

nity to delve into the limits of what conference committees may do. T h e
petitioners contended that the consolidation of the House and Senate
bills made by the conference committee contained provisions which
neither the Senate bill nor the House bill had. In her dissenting opinion,
Justice Romero laid out in great detail the provisions that had been in-
serted by the conference committee. These provisions, according to the
petitioners, had been introduced "surreptitiously" during a closed door
meeting of the corrunittee.
The Court's answer to this was that in United States practice con-
ference committees could be held in executive sessions and amend-
ments germane to the purpose of the bill could be introduced even if
357
these were not in either original bill. But the Court did not bother to
check whether perhaps the American practice w a s based on a constitu-
tional text different from that of the Philippine Constitution.
There are as a matter of fact significant differences in the degree

of freedom American and Philippine legislators h a v e . T h e only rule that
binds the Federal Congress is that it may formulate its o w n rules of
procedure. For this reason, the Federal Congress is master of its o w n
procedures. It is different with the Philippine C o n g r e s s . O u r Congress
indeed is also authorized to formulate its o w n rules of procedure —
but within limits not found in American law. F o r instance, there is the
"three readings on separate d a y s " rule. Another important rule is that no
amendments may be introduced by either house during third reading.
These limitations were introduced by the 1935 and 1973 Constitutions
and confirmed by the 1987 Constitution as a defense against the in-
356
235 SCRA at 666-672.
357
W. at 668, citing also its own decision in Philippine Judges Association v. Prado, 227
SCRA 703, 709 (1993), allowing a foreign insertion. But the provision in Prado was invalidated
on equal protection grounds.
ventiveness of the stealthy and the surreptitious. These, however, were

disregarded by the Court in Tolentino in favor of contrary American
practice.
This is not to say that conference committees should not be al-

lowed. But an effort should be m a d e to lay out the scope of what confer-
ence committees may do according to the requirements and the reasons
of the Philippine Constitution and not according to the practice of the
American Congress. For instance, if the t w o Houses are not allowed to
introduce and debate amendments on third reading, can they circum-
vent this rule by coursing new provisions through the instrumentality
of a conference committee created by Congress and meeting in secret?
The effect of the Court's uncritical embrace of the practice of the Amer-
ican Congress and its conference committees is to dismantle the no-
amendment rule.
As to the secret meeting of the conference committee, Justice

M e n d o z a had this gem: " N o r is there anything unusual or extraordinary
about the fact that the conference coirirnittee met in executive sessions.
Often the only way to reach agreement on conflicting provisions is to
meet behind closed doors, with only the conferees present. Otherwise,
359
no compromise is likely to be m a d e . " This view of the Court may con-
stitute a standard of behavior tolerable for board of trustees wanting to
protect the interests of majority stockholders. In the matter of behavior
of public officials, however, the Constitution has different standards.
It c o m m a n d s the state to adopt and carry out "a policy of full public
disclosure of all its transactions involving public interest." Moreover,
the Bill of Rights guarantees the right of all citizens to information on
matters of public concern.
Finally, however, the Court was willing to paper over everything

35
under the "enrolled bill" rule ' which is treated under Section 16 above.
3. Veto power; ' i t e m veto."

In the veto power the Constitution has given to the President an
instrument of control over legislation completed by Congress. But Con-
gress may override a presidential veto by a vote of two-thirds of all its
3M
235SCRAat667.
""M. at 672.
members. The Constitution says: "If [the President] approves the same,
he shall sign it; otherwise, he shall veto it and return the same with
his objections to the House where it originated, which shall enter the
objections at large in its Journal and proceed to reconsider it. If, after
such reconsideration, two-thirds of all the Members of such House shall
agree to pass the bill, it shall be sent, together with the objections, to the
other House by which it shall likewise be reconsidered, and if approved
by two-thirds of all the Members of that House, it shall become a law."
As a general rule, if the President disapproves of a provision in a

bill approved by Congress, he should veto the entire bill. He is not al-
lowed to veto separate parts of a bill while retaining others. It is only in
the case of appropriation, revenue, and tariff bills that he is authorized
to exercise item-veto.
The item veto in the 1987 Constitution is a carry over from the
1973 and 1935 provisions. The 1935 provision was the outcome of an
intense debate during the 1934-1935 Constitutional Convention. M u c h
of the objection to giving the power of item-veto to the President was
grounded on the fear of giving too m u c h p o w e r to the executive and
thereby allowing him to mutilate an integral legislative act to the preju-
dice of the public welfare. The defenders of the provision, however,
looked on it more as a useful check on improvident use of public funds
360
and on oppressive revenue measures.
For the purpose of this provision, an appropriation bill is under-

stood as one whose purpose is to set apart a certain sum from the public
361
revenue for a specified purpose. No set form of words is required
to make out an appropriation. Moreover, the appropriation bill that is
subject to item-veto is any appropriation bill and not just the general
362
appropriation bill.
"Revenue bills" are those intended to levy taxes in the strict sense
of the word and do not include bills for other purposes which inciden-
363
tally create revenue.
""IV JOURNAL OF THE [ 1 9 3 5 ] CONSTITUTIONAL CONVENTION (Laurel ed.) 7 5 6 -

819.
"'Bengzon v. Secretary of Justice, 62 Phil. 9 1 2 , 9 1 6 ( 1 9 3 6 ) .
M
Id. at 9 1 9 . But see Villa-Real, J., dissenting.
3 6 3
1 STORY, COMMENTARIES, Sec. 880, cited in CORWIN, CONSTITUTION OF THE UNITED STATES OF
AMERICA 1 3 4 ( 1 9 6 4 ) explaining the phrase "bills for raising revenue."
A tariff bill is one which imposes duties or imposts whether for

364
revenue or for regulation.
An item in a bill "is the particulars, the details, the distinct and
365
severable parts ... of the bill." It can be an entire section of a bill or a
severable portion of a section. T h u s , in Commissioner of Internal Rev-
166
enue v. Court of Tax Appeals, where the President vetoed the portion
of Section 42 of R . A . 6110 referring to 2 0 % caterers tax on restaurants
operated by hotels, motels and rest houses but leaving the rest of the
section intact, the Court upheld the veto saying:
An "item" in a revenue bill does not refer to an entire section

imposing a particular kind of tax , but rather to the subject of the
tax and the tax rate. In the portion of a revenue bill which actually
imposes a tax, a section identifies the tax and enumerates the per-
sons liable therefore with the corresponding tax rate. To construe
the word "item" as referring to the whole section would tie the
President's hand in choosing either to approve the whole section at
the expense of also approving a provision therein which he deems
unacceptable or veto the entire section at the expense of foregoing
the collection of the kind of tax altogether. The evil which was
sought to be prevented in giving the president the power to disap-
prove items in a revenue bill would be perpetrated rendering that
power inutile.
161
In Bengzon v. Drilon, however, the veto was declared invalid.
The case involved the General Appropriations Act of 1992. The law
appropriated 500,000,000 pesos "For general fund adjustment for op-
erational and special requirements as indicated hereunder." Among
the several authorized uses of the fund was the adjustment of pension
of justices as authorized by an earlier law. The President vetoed the
use of the fund for the adjustment of the pension of justices. In declar-
ing the veto invalid, the Court said that it was not the veto of an item.
The item was the entire 500,000,000 peso allocation out of which un-
avoidable obligations not adequately funded in separate items could be
met. What the President had vetoed, according to the Court, was the
**See Hampton & Co. v. United States, 276 U.S. 394,411-12 (1928).
Bengzon v. Secretary of Justice, 62 Phil, at 916.
36i
M
IK5 SCRA 329, 334-335 (1990).
7
* 208 SCRA 133(1992).
method of meeting unavoidable obligations or the manner of using the

361
500,000,000 pesos.
The 1935 Constitution had this additional sentence: "When a pro-
vision of an appropriation bill affects one or more items of the same,
the President cannot veto the provision without at the same time veto-
369
ing the particular item or items to which it relates." T h u s , in Bolinao
310
Electronics v. Valencia, a veto of a condition in an appropriation bill
which did not include a veto of the items to which the condition related
was deemed invalid and without effect whatsoever.
This sentence in the 1935 Constitution did not appear in the 1973
version; neither does it appear in the 1987 Constitution. It is submitted
nonetheless that the rule is also applicable under the present Constitu-
tion because all that the sentence does is to emphasize that an item
which can be subject of a separate veto must be a "distinct and sever-
371
able part" of a bill. This view was applied in Philippine Constitu-
312
tion Association v. Enriquez where the Court invalidated the veto of
a restriction on the use of funds for road maintenance and a restriction
on the use of funds for the purchase of medicines since the veto did not
include a veto of the appropriated funds themselves.
4. The new "doctrine of inappropriate provisions."

313
Gonzales v. Macaraig, Jr., marks the Court's acceptance of what
eventually would be referred to as the "doctrine of inappropriate provi-
sions." What the doctrine says is that a provision that is constitutionally
inappropriate for an appropriation bill m a y be singled out for veto even
if it is not an appropriation or revenue " i t e m . "
Gonzales involved the 1989 and 1990 General Appropriation

Acts. The General Appropriations Act of 1989 contained the following
provision:
**Id. at 144. This case, however, grew not so much out of a failure to understand item
veto as from some unfortunate historical misimpressions on the part both of Congress and of the
President. These are explained in the decision.
369
Article VI, Section 20(2), 1935 Constitution.
370
Bolinao Electronics v. Valencia, 11 SCRA 486,492-93 (1964)
37l
62Phil.at916.
372
235 SCRA 506,538-541 (1994).
373
191 SCRA 452 (1990).
Section 55. Prohibition Against the Restoration or Increase

of Recommended Appropriations Disapproved and/or Reduced by
Congress. — No item of appropriation recommended by the Presi-
dent . . . which has been disapproved or reduced in this Act shall
be restored or increased by the use of appropriations authorized
for other purposes by augmentation. An item of appropriation for
any purpose recommended by the President in the Budget shall be
deemed to have been disapproved by Congress if no correspond-
ing appropriation for the specific purpose is provided in this act.
The General Appropriations Act for 1990 contained a similar one:
Sec. 16. Use of Savings. — ... Provided, That no item of ap-

propriation recommended by the President in the Budget... which
has been disapproved or reduced by Congress shall be restored or
increased by the use of appropriations authorized for other pur-
poses in this Act by augmentation. An item of appropriation for
any purpose shall be deemed to have been disapproved by Con-
gress if no corresponding appropriation for the specific purpose is
provided in this Act.
Exercising the p o w e r of "item v e t o " the President vetoed the simi-

lar provisions. Were the vetoed sections " i t e m s " of an appropriation
bill?
T h e Court said that they were not "items." Explaining the Court
374
said:
The terms item and provision in budgetary legislation and

practice are concededly different. An item in a bill refers to the par-
ticulars, the details, the distinct and severable parts x x x of the bill.
It is an indivisible sum of money dedicated to a stated purposes.
The United States Supreme Court ... declared "that an 'item' of
an appropriation bill obviously means an item which in itself is
a specific appropriation of money, not some general provision of
law, which happens to be put into an appropriation bill.
Having said that the sections were not budgetary items, the Court
nevertheless said that the veto was an allowable veto of distinct and
severable provisions on the basis of Article VI, Section 11(2) of the
1935 Constitution which said: "When a provision of an appropriation
374
W.at465.
bill affects one or more items of the same, the President cannot veto the
provision without at the same time vetoing the particular item or items
to which it relates."
It is submitted, however, that, although the final conclusion is
defensible, this is a misapplication of the cited provision of the 1935
Constitution. The Bolinao Electronics case cited above involved a pro-
vision that was related to items of an appropriation bill. The veto of
the provision could be allowed but only if the items to which it was
related would also be vetoed. In effect, the cited 1935 provision was
a subsidiary rule to the rule that only items may be vetoed separately
in an appropriation bill. It was not a rule saying that separable provi-
sions which are not "items" could be vetoed separately from the entire
bill. The proper remedy in a case of a provision that has no relation to
any other in the appropriation bill is to consider it an unconstitutional
5
"rider" under Section 25(2). Gonzales did in fact consider it a rider."
In Philippine Constitution Association v. Enriquez,™ the Court re-

iterated its view that the President possesses the power to veto a provi-
sion in an appropriation bill even if it is not an item. This time, however,
the Court argued not from the omitted 1935 provision on item veto
but from what it called "the doctrine of 'inappropriate provisions.'" It
377
said:
As the Constitution is explicit that the provision which

Congress can include in an appropriations bill must "relate
specifically to some particular appropriation therein" and "be
limited in its operation to the appropriation to which it relates," it
follows that any provision which does not relate to any particular
item, or which extends in its operation beyond an item of
appropriation, is considered "an inappropriate provision" which
can be vetoed separately from an item. Also to be included in
the category of "inappropriate provisions" are unconstitutional
provisions and provisions which are intended to amend other laws,
because clearly these kind of laws have no place in an appropriation
bill. These are matters of general legislation more appropriately
dealt with in separate enactments.
m
ld. at 467.
37
*235 SCRA 506 (1994).
>ri
ld. at 534.
The intent behind this doctrine, which is not original but borrowed
by the Court from Henry v. Edwards,™ is to prevent the legislature from
forcing the President to veto an entire appropriation law thereby para-
lyzing government. The Philippine Constitution's answer to this pos-
sibility is Section 25(7) which provides for the automatic re-enactment
of the General Appropriation L a w of the previous year as a provisional
measure to serve until a new General Appropriations L a w is approved.
The Court's answer, however, is an alternative one, namely the formu-
lation of the broad doctrine that an unconstitutional provision in an A p -
propriation L a w may be singled out for veto.
It should be noted that the Philippine Constitution Association

case goes beyond Bolinao Electronics and Gonzales. In Bolinao, the
vetoed condition had relation to an appropriation which was not vetoed;
the veto of the condition was not allowed. In Gonzales, the provisions
vetoed had no relation to any item of appropriation. It was thus rejected
as a "rider" in the sense of Section 25(2). In Philippine Constitutional
Association the President vetoed conditions imposed on the use of ap-
propriations for the military equipment. The conditions therefore were
not riders. Following the Bolinao Electronic case, the Court should have
invalidated the veto of the conditions because the veto did not include
a veto of the appropriation. But the condition imposed by the bill was
that prior approval by Congress must be obtained for the release of such
funds and that such funds may not be used for the payment of planes al-
ready contracted for. The Court upheld the veto, on the ground that the
conditions were "inappropriate provisions," but allowed the funds to
stay in the budget. The condition requiring prior congressional approval
was considered "inappropriate" because: "Any provision blocking an
administrative action in implementing a law or requiring legislative ap-
proval of executive action must be incorporated in a separate and sub-
stantive bill." The prohibition of the use of the funds for the payment of
planes already contracted for was considered "inappropriate" because it
would involve violation of the obligation of contracts.
What all this comes down to is that under the new doctrine of
"inappropriate provisions," any provision or condition in an appropria-
tion bill which in the judgment of the President violates the Constitu-
tion may be vetoed separately from the entire bill without need to veto
"'La., 346 So., 2d., 153 (1977).

the appropriation to which they are attached. This is a judge-made rule

which expands the "item veto" rule so much debated in 1935. It ex-
pands the power of the President because admittedly it is more expedi-
tious than forcing the President to go to court to challenge the validity
of a provision in an appropriation bill.
5. Executive ' i m p o u n d m e n t . "

Another way of exercising executive veto is through what is called
"impoundment." Impoundment simply means refusal of the President
to spend funds already allocated by Congress for a specific purpose.
There is no provision in the Constitution on the subject. Impoundment
came up also in Philippine Constitution Association v. Enriquez. To the
amount appropriated by Congress for the compensation and separation
benefits of members of C A F G U was attached a provision that "it shall
be used for the compensation of C A F G U ' s including the payment of
their separation benefit not exceeding one (1) year subsistence allow-
37
ance for the 11,000 members w h o will be deactivated in 1994." ' T h e
President did not veto the provision but said instead in his veto message
that the implementation of the provision would be subject to his prior
approval taking into consideration the peace and order situation in the
affected localities.
Those who challenged the veto contended that the provision effec-
tively required the deactivation of the C A F G U ' s and that the President
had no choice but to implement the law. T h e President on the other
hand justified his impoundment of the provision on the basis of his
Commander-in-Chief powers and on the dangerous argument that the
duty to implement the law includes the duty to desist from implement-
ing it when implementation would prejudice public interest. As Justice
Roberto Concepcion pointed out in an earlier case, "after all we still live
380
under a rule of law."
The Court, however, found in the doctrine on inappropriate provi-

sion a way out of having to decide whether i m p o u n d m e n t was legal. It
381
said:
"'235 SCRA at 544.

380
Gonzalez v. Hechanova, G.R. No. 21897 (October 26,1963). The Supreme Court! how-
ever, has heretofore refrained from passing judgment on the constitutionality of "impoundment."
See supra under Article VI, Section 27,
M
ld. at 546.
We do not find anything in the language used in the chal-
:nged Special Provision that would imply that Congress intended
> deny to the President the right to defer or reduce spending, much
:ss to deactivate 11,000 CAFGU members all at once in 1994. But
ven if such is the intention, the appropriation law is not the proper
ehicle for such purpose. Such intention must be embodied and
lanifested in another law considering that it abrades the powers
f the Commander-in-Chief and there are existing laws on the cre-
:ion of the CAFGU's to be amended. Again we state: a provision
i an appropriation act cannot be used to repeal or amend other
iws, in this case, P.D. No. 1597 and R.A. No. 6758.
S E C . 2 8 . ( 1 ) T H E RULE O F TAXATION SHALL B E UNIFORM AND

3CITABLE. T H E C O N G R E S S SHALL EVOLVE A PROGRESSIVE SYSTEM
F TAXATION.
(2) T H E C O N G R E S S MAY, B Y LAW, AUTHORIZE THE PRESIDENT

3 FIX WITHIN SPECIFIED L I M I T S , AND SUBJECT TO SUCH LIMITATIONS
SD RESTRICTIONS AS IT MAY I M P O S E , TARIFF RATES, IMPORT AND
( P O R T QUOTAS, TONNAGE AND WHARFAGE DUES, AND OTHER DUTIES
R IMPOSTS WITHIN T H E FRAMEWORK O F THE NATIONAL DEVELOPMENT
TOGRAM O F T H E G O V E R N M E N T .
(3) CHARITABLE INSTITUTIONS, CHURCHES AND PARSONAGES

R CONVENTS APPURTENANT THERETO, MOSQUES, NON-PROFIT
EMETERIES, AND ALL LANDS, BUILDINGS, AND IMPROVEMENTS
CTUALLY, DIRECTLY, AND EXCLUSIVELY USED FOR RELIGIOUS,
HABITABLE, OR EDUCATIONAL PURPOSES SHALL BE EXEMPT FROM
VXATION.
(4) NO LAW GRANTING ANY TAX EXEMPTION SHALL BE PASSED

ITHOUT THE CONCURRENCE OF A MAJORITY OF ALL THE M E M B E R S
F THE C O N G R E S S .
Power of taxation: scope and purpose.

l i e power to tax, like police power and the power of eminei
n, is an inherent power of government. "That the taxing pow<
rital importance; that it is essential to the existence of goven
382
are truths which it cannot be necessary to re-affirm." Henc<
wer need not be granted by the Constitution. Section 28, in fac
"Providence Bank v. Billings, 4 Pet. 514,561 (U.S. 1830).

is not a grant of power but an enumeration of limits on the inherent and

otherwise almost unlimited power.
Before looking into the limits which the Constitution has imposed,
it is necessary to look into the vastness of the power which Section 28
seeks to limit. Since there is no provision in the Philippine Constitution
which sets down the far-ranging scope of the power, one must look to-
wards the fountainhead of early Philippine constitutionalism. Article I,
Section 8, of the United States Constitution says: "The Congress shall
have the power to lay and collect taxes, duties, imposts and excises, to
pay the debts and provide for the c o m m o n defense and general welfare
of the United States. . . . " It is at least this same power which the Con-
gress of the 1935 Constitution had and which has been passed on to
both the Batasan of the 1973 Constitution and to the present Congress.
The extent of the taxing power is as broad as the purpose for

which it is given. The power to tax is given in order for government to
be able "to pay the debts and provide for the c o m m o n defense and gen-
eral w e l f a r e . . . . " When one considers the broad scope of "general wel-
fare," as it is understood in the jurisprudence on police power and the
power of eminent domain, one can easily see the almost endless uses
to which the power to tax can be put by government. As the American
Supreme Court has put it, the power "is exhaustive and embraces ev-
3
ery conceivable power of taxation" " and it "reaches every subject, and
384
may be exercised at discretion." N o r may the limitation on the power
of Congress be found in the comparative practice of other states. As the
Court put it, the Court "cannot subscribe to the theory that the tax rates
of other countries should be used as a yardstick in determining what
may be the proper subjects of taxation in our o w n country. It should be
pointed out that the aforementioned taxes and duties, the State, acting
through the legislative and executive branches, is exercising its sover-
eign prerogative. It is inherent in the power to tax that the State be free
to select the subjects of taxation, and it has been repeatedly held that
'inequalities which result from a singling out of one particular class for
385
taxation, or exemption, infringe no constitutional limitation.'"
The obvious primary and specific purpose of the p o w e r to tax is

to raise revenue. However, from the earliest days of the history of the
'Brushaber v. Union Pac. R.R., 240 U.S. 1, 12 (1916).

'License Tax Cases, 5 Wall. 462,471 (1867).
'Commissioner of Internal Revenue v. Santos, G.R. No. 119252, August 18, 1997
power of taxation, the power to tax has been recognized as an instru-

ment of national economic and social policy. It has, for instance, been
used as an instrument for the extermination of undesirable activities
and enterprises. Justice Marshall even went to the extent of calling it
386
the p o w e r to destroy, although Philippine jurisprudence frowns on the
notion of the power to tax as the power to destroy because taxation must
387
not be oppressive. Indeed the notion of equitable taxation excludes
388
oppressiveness. And as Tan v. del Rosario, Jr. says, "Of course, where
a tax measure becomes so unconscionable and unjust as to amount to
confiscation of property, courts will not hesitate to strike it down, for,
despite all its plenitude, the power to tax cannot override constitutional
prescriptions."
T h e power to tax has also been used as a tool for regulation. For
the purpose of regulating property the state can choose to exercise ei-
ther its police power or its power to tax. "It is beyond serious question
that a tax does not cease to be valid merely because it regulates, dis-
courages, or even definitely deters the activities taxed The principle
applies even though the revenue obtained is obviously negligible ... or
389
the revenue purpose of the tax may be secondary .. ."
Another aspect of the power to tax is what the United States Su-
390
preme Court has characterized as "the power to keep alive." This is
the foundation for the imposition of tariffs designed for the encour-
agement and protection of locally produced goods against competition
from imports. "The enactment and enforcement of a number of customs
revenue laws drawn with a motive of maintaining a system of protec-
tion, since the revenue law of 1789, are matters of history ... whatever
391
we may think of the wisdom of a protection policy."
2. Limitations on the power to tax.

The power to tax exists for the general welfare. Hence, implicit in
the power is the limitation that it should be exercised only for a public
3
"*McCulloch v. Maryland, 4 Wheat, 316,431 (U.S. 1819). The Philippine Supreme Court
frowns on the notion of the power to tax as the power to destroy.
'"See, e.g., Obillos, Jr. v. Commissioner of Internal Revenue, 139 SCRA436.439 (October
29, 1985).
388
237 SCRA 324, 332 (1994).
"'United States v. Sanchez, 340 U.S. 42,44 (1950).
""Nieol v.Ames, 173 U.S. 509,515 (1899).
'"Hampton and Co. v. United States, 276 U.S. 394,412 (1928).
purpose. In the words of Loan Association v. Topeka,™ "To lay, with

one hand, the power of the government on the property of the citizen,
and with the other to bestow it upon favored individuals to aid private
enterprises and build up private fortunes, is none the less a robbery be-
cause it is done under the forms of law and is called taxation."
It is one thing, however, to say that "there can be no lawful tax

which is not laid for a public purpose," and it is quite another thing
to determine whether a purpose specified by the legislature is public
or not. Yet, the determination of this question can be very crucial es-
pecially in dealing with revenue measures which accompany special
393
appropriations. The Loan Association case itself involved the utiliza-
tion of the taxing power to induce a bridge manufacturing company to
establish its plant in a city, and the United States Supreme Court invali-
dated the tax measure as not satisfying the public purpose test. But the
same Court later issued the warning that the Court's power to invalidate
a tax measure "must be exercised with the utmost extreme caution. ...
Otherwise, a state's power to legislate for the public welfare might be
seriously curtailed, a power which is a primary reason for the existence
394
of states."
The need for this caution can easily be seen from the expand-
ing scope of legitimate governmental concerns. This is clearly reflected
in recent Philippine jurisprudence on police p o w e r especially as it has
been influenced by the social justice provisions of the Constitution. As
the United States Supreme Court said in a case involving unemploy-
ment compensation, " W h e n public evils ensue from individual misfor-
tunes or needs, the legislature may strike at the evil at its source. If the
purpose is legitimate because public, it will not be defeated because the
395
execution of it involves payment to individuals." T h u s , a special tax
for the support of the agrarian reform program or for urban or housing
reform can be justified as for public purpose even if the immediate ben-
eficiaries are private individuals.
In Planters Products, Inc. (PPI) v. Fertiphil Corp.,™ the Court

had occasion to review the validity of L O I 1 4 6 5 , a martial rule product,
m
20 Wall. 655,664 (U.S. 1975).
3,3
Article VI, Section 25(4).
Êverson v. Board of Education, 330 U.S. 1,6 (1947).
3 5
* Carmichael v. Southern Coal and Coke Co., 301 U.S. 495,518 (1937)
""G-R No. 166006, March 14,2008.
which imposed a ten peso capital contribution for the sale of each bag
of fertilizer "until adequate capital is raised to m a k e PPI viable." PPI
was a private corporation. Clearly, therefore, the imposition was for
private benefit and not for a public purpose and therefore invalid. The
Court also found that, even if seen as an exercise of police power, the
imposition would still be invalid for not being for a public purpose.
Moreover, although the p o w e r to tax is legislative in nature, Sec-

tion 28(2) itself authorizes Congress to delegate it to the President. But
397
the President is bound by the conditions set by Congress. This is one
exception to the rule of non-delegability of legislative power.
3. Specific limits on the taxing power: "uniform and equi-

table."
T h e 1935 Constitution simply said that the "rule of taxation shall

398
be uniform." T h e new Constitution, like the 1973 Constitution, now
says that it "shall be uniform and equitable." Are the two notions, uni-
formity and equitableness, distinct limitations on the power to tax?
T h e concept of unifonnity of taxation is derived from Article

1, Section 8, of the United States Constitution which prescribes that
"all duties, imposts and excises shall be uniform throughout the Unit-
ed States." It will thus be seen that whereas the American provision
whence the Philippine rule derived has reference to "duties, imposts,
and excises," that is, to indirect taxes, the Philippine requirement of
uniformity applies to taxation in general. Philippine jurisprudence,
however, from its earliest days has interpreted "uniformity" in the Phil-
ippine Constitution in the same way as "uniformity" in the American
399
Constitution. In the words of Churchill v. Conception, "uniformity"
in the Constitution does "not signify an intrinsic, but simply a geo-
graphical uniformity. ... A tax is uniform, within the Constitutional re-
quirement, when it operates with the same force and effect in every
place where the subject of it is found." Or, in the words of the American
Court, "the words 'uniform throughout the United States' do not relate
to the inherent character of the tax as respects the operation on individu-
als, but simply requires that whatever plan or method Congress adopts
^Southern Cross v. Philippine Cement, GJt. No. 158540, July 8,2004.

3W
Article VI, Section 22(1) (1935).
Phil. 969,976-7 (1916).
for laying the tax in question, the same plan and the same method must
400
be made operative throughout the United States, and at the same rate."
Thus, since the uniformity rule requires merely geographical and
not intrinsic uniformity, a levy of a tax is not unconstitutional simply
because it is not intrinsically equal and uniform in its operation upon
individuals. In other words, the uniformity rule does not prohibit clas-
40
sification for purposes of taxation. ' The taxing power may be made to
fall more heavily upon some than upon others. W h e n this happens, the
test of constitutionality is not just the uniformity rule, a rule that is easy
to obey, but also the equal protection clause and the notion of "progres-
sive system of taxation."
The requirements for valid classification under the equal protec-

tion clause are discussed under the Bill of Rights. The same require-
ments are applicable to classification for purposes of taxation: (1) the
classification must be based upon substantial distinctions which m a k e
real differences; (2) it must be germane to the purpose of the law; (3) it
must apply not only to present conditions but also to future conditions
substantially identical to those of the present; (4) it must apply equally
402 403
to all those who belong to the same class. Or, as Tan v. del Rosario
put it, uniformity of taxation simply means that 1) the standards that
are used threfor are substantial and not arbitrary, (2) the categorization
is germane to achieve the legislative purpose, (3) the law applies, all
things being equal, to both present and future conditions, and (4) the
classification applies equally well to all those belonging to the same
class.
It may thus be noted that the requirement of uniformity corre-

sponds to the third and fourth requisites of the equal protection clause;
and that the first and second requirements of the equal protection clause
simply means that the statutory classification must bear some relation-
ship to the end sought to be attained. It bears emphasizing, however,
"that in the field of taxation, more than in other areas, the legislature
possesses the greatest freedom in classification. T h e reason for this is
^Knowlton v. Moore, 178 U.S. 41,84 (1900).

""See Report No. 2, Appendix E, of the Committee on Taxation and Debt Management,
1971 Constitutional Convention.
•""Pepsi Cola Bottling Co. v. City of Butuan, 24 SCRA 789, 795-96 (1968); Tan v. Del
Rosano, Jr., 237 SCRA 324 (1994).
m
231 SCRA 324(1994).
that traditionally, classification has been a device for fitting tax pro-
grams to local needs and usages in order to achieve an equitable distri-
404
bution of the tax burden." Court decisions would even go to the extent
of saying that reasonable relation between classification and legislative
purpose "has no application to a measure whose sole purpose is to raise
405
revenue."
Under the above approach to the constitutional precept on taxa-

tion, where does the word "equitable" of Section 28(1) fit in? While a
primary rule of constitutional construction is that every word must be
presumed to have a meaning that is all its o w n , this writer must none-
theless confess his inability to find any meaning which "equitable" can
add to the uniformity rule and to the equal protection clause except to
say that it is also another way of expressing "progressive system of
taxation."
4. Progressive system of taxation.
A tax is progressive when the rate increases as the tax base in-
creases. T h e second sentence of Section 28(1) commands Congress to
"evolve a progressive system of taxation." This is not to say that, absent
this provision, the Congress cannot adopt a progressive system of taxa-
tion. T h e existing system of income taxation, in fact, is progressive and
there was nothing in the old law which could prevent the legislature
406
from adopting a progressive system of taxation. The explicit men-
tion of progressive taxation in this provision reflects the wish of the
Convention that the legislature, following the social justice command,
should use the power of taxation as an instrument for a more equitable
distribution of wealth.
5. Delegated tax legislation.

As already seen, Congress may not delegate its law-making au-
thority. This rule, however, is not absolute and one exception to it is
that the power may be delegated in the instances where the Constitution
itself specifically authorizes the delegation. One such instance of allow-
able delegation is what is provided for in Section 28(2): "The Congress
""Gomez v. Palomar, 25 SCRA 827,834 (1968).

m
Id. at 834.
^Knowlton v. Moore, 178 U.S. 41,84 (1900).
may, by law, authorize the President to fix within specified limits, and
subject to such limitations and restrictions is 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 Philippines." The provision is a substantial reproduction of Ar-
ticle VI, Section 22(2) of the 1935 Constitution which Marc Donnelly
01
and Associates v. Agregado* interpreted as allowing the delegation of
0
a specific legislative power. Moreover, Garcia v. Executive Secretary* *
said that the rule that revenue bills must originate from the House of
Representatives under Article VI, Section 24 does not prevent Con-
gress from exercising this delegating authority. N o r does it invalidate
the delegated authority even if it involves authority to create revenue
measures.
The phrase "within the framework of the national development

program of the Philippines" was added by the 1987 Constitution to ear-
lier provisions. It is, however, a limit not on the President but on the
legislature's authority to impose limits on what it delegates. T h e phrase
409
was explained by Commissioner M o n s o d thus:
The reason I am proposing this insertion is that an economic

program has to be internally consistent. While it is directory to the
President — and it says "within specified limits" — there are situ-
ations where the limits prescribed to the President might, in fact,
be distortive of the economic program.
If I may give an example: When you are setting tariff rates,

there must be a certain consistency among the tariffs for finished
goods, intermediate inputs, and basic materials. Once you distort
this and put a low limit on the raw materials or intermediate goods,
then we encourage assembly at the end of the production cycle.
This we did in earlier years — very high tariffs for finished prod-
ucts — and what we got was industry that was only engaged in as-
sembly and packaging operations. On the other hand, an economic
program would naturally rationalize the system of tariffs in order
to make sure that we have a good industrial structure.
We are not taking away any power from Congress. We are

just saying that as a frame of reference, the authority and the lim-
""95 Phil. 142(1954).

""211 SCRA 219,223 (1992).
""II RECORD 191-193.
AKI V I — T H E L f c U l S L A U V E DEPARTMENT 8
s prescribed should be consistent with the economic program of

jvemment which the legislature itself approves.
Tax e x e m p t i o n s .
orollary to the power to tax is the power to exempt from ta

the s a m e general and specific limitations on the power to ti
ply to the p o w e r to create exemptions. T h e exemptions, ther
ust be for a public purpose, uniform and equitable, and in co
r
with the equal protection clause. Moreover, the Constitutic
lay create e x e m p t i o n s . W h e n it d o e s , the constitutional exem
elf b e c o m e s a limit on the p o w e r to tax.
ection 28(3) is one such exemption: "Charitable institution

is and parsonages or convents appurtenant thereto, mosque
jfit cemeteries, and all lands, buildings, and improvements, a
iirectly, and exclusively used for religious, charitable, or educ
mrposes shall be exempt from taxation."
his provision was originally Article V I , Section 22(3) of tl

!onstitution which read: "Cemeteries, churches, and parsonagi
rents appurtenant thereto, and all lands, buildings, and improvi
lsed exclusively for religious, charitable or educational purposi
i exempt from taxation."
he original proposal of the Committee on Taxation and Del

ement of the 1971 Constitutional Convention read thus: "Noi
:emeteries, and churches, chapels, mosques, synagogues, houst
ship and parsonages and convents appurtenant thereto and a
buildings, and improvements used actually and exclusively ft
0
us or charitable purposes shall be exempt from taxation."'" E>
g the provision, the Committee said:
The changes sought by the foregoing amendment are: 1)

5 limit the exemption of burial grounds to non-profit cemeter-
;s. Under the proposed provision, memorial parks will no longer
e exempt; 2) to remove or withdraw the exemption of lands and
uildings used for educational purposes, since private educational
istitutions are conducted for profit or operated as business; 3) to
imit the exemptions of lands and buildings owned by religious
'"Committee Report No. 5, Appendix H, 1971 Constitutional Convention.

institutions to those actually and exclusively used for religious

purposes, so that lands and buildings and apartments for rent, fish
ponds, haciendas, and similar income producing real estate will
not be entitled to exemption even if owned or operated by a reli-
gious institution, and regardless of the destination or use to which
such income is devoted.
Hence, the 1973 Constitution did not include the word "educa-
tional" but the 1987 Constitution restored it. And the word applies to
both profit and non-profit educational institutions with respect to realty
4
tax. " In justifying the restoration of the exemption for educational in-
stitutions, Commissioner Guingona said that the focus was on the ben-
412
efits which would redound to students through such exemption.
It must be pointed out, however, that the exemption created by the

constitutional provision is only for "taxes assessed . . . as property taxes,
413
as contra-distinguished from excise taxes." T h e properties exempted
are "lands, buildings and improvements actually, directly, and exclu-
414
sively used for religious, charitable, or educational purposes."
The policy on the law on tax exemptions is that, while they must
be applied strictly, they must also be applied fairly in a m a n n e r that will
4
achieve the intent for which the exemptions were created. " T h u s , it is
important to bear in mind that tax exemptions for charitable institutions
are given in order to enhance the service they are capable of giving; tax
exemptions for religious property are given in order to ensure religious
416
liberty; and tax exemptions for educational institutions are given for
417
the sake of making quality education affordable to all.
""II RECORD 90,92-93,200-202.

4
'7<z.at45,88-89,114.
4l3
Lladoc v. Commissioner of Internal Revenue, 14 SCRA 292, 295 (1965). The exemp-
tion from property tax applies to YMCA because it is a charitable institution. But YMCA does not
qualify for the income tax exemption in Article XIV, Section 4(3) because it is not an educational
institution. Commission of Internal Revenue v. Court of Appeals, G.R. No. 124043, October 14,
1998.
4,4
The rationale for the exemption of religious property, in relation to freedom of religion
and non-establishment, has already been discussed in the discussion of Walz v. Tax Commission,
397 U.S. 664 (1970), under Article IV, Section 8. See also II RECORD 109,113.
4l5
Catholic Church v. Hastings, 5 Phil. 701; Province of Abra v. Hernando, 107 SCRA 104,
109(1981).
4I
*II RECORD 209.
4l7
W.at 141.
In qualifying the use of the properties covered by the exemption,

it will be noted that under the 1935 Constitution the modifier was "ex-
clusively" and under the present provision the modifiers are "actually,
directly, and exclusively." The word "exclusively" has been explained
418
thus:
Moreover, the exemption in favor of property used exclusive-

ly for charitable or educational purposes is "not limited to property
actually indispensable" therefor, but extends to facilities which are
"incidental to and reasonably necessary for" the accomplishment
of said purposes, such as, in the case of hospitals, "a school for
training nurses, a nurses' home, property used to provide housing
facilities for interns, resident doctors, superintendents, and other
members of the hospital staff, and recreational facilities for student
nurses, interns and residents," such as "athletic fields," including
"a farm used for the inmates of the institution."
This meaning of exclusivity, which covers not just what is indis-

pensable but also what is incidental and reasonably necessary, affects
the meaning of the words "actually and directly." The 1986 Constitu-
tional Commission did not discuss this phrase as applied to realty tax.
But the same words are used in qualifying the tax-exempt revenues
and assets of non-profit educational institutions in Article XIV, Section
4(3). T h e spirit in which the words are to be understood is shown by an
419
exchange between Commissioners Azcuna and Suarez:
MR. AZCUNA. The proponent said that the revenues of

non-stock and nonprofit educational institutions must be actually,
directly and exclusively used for educational purposes. So, until
the revenues are plowed back to an educational purpose and are
just retained in the school for reserve, would the school have to
pay taxes on these revenues?
MR. SUAREZ. If the reserve will be used for educational
purposes, actually, directly and exclusively, the school will also
enjoy the same exemption.
MR. AZCUNA. But the taxable year is reckoned from year
to year and the reserve may not be actually used until five years
from then; so is the tax postponed until such time as it is used?
""Herrera v. Quezon City Board of Assessments, 3 SCRA 186, 192 (1961), citing COOLEY
andCJS.
4I
1 V RECORD 404.
M R . S U A R E Z . There is no postponement in the enjoyment

of the exemption because it could very well happen that there may
be reserved funds there but are intended for the purchase of labora-
tory equipment, library books, et cetera.
M R . A Z C U N A . How about "retained earnings," would they
have to pay taxes on retained earnings?
M R . S U A R E Z . No, retained earnings would have to be con-
sidered in the form of reserve, in the same category.
M R . A Z C U N A . So, there will be no tax on that.
M R . S U A R E Z . No, there will be no tax.
Incidentally, it was also in this spirit that the Court read the mean-
ing of "actual and direct" use of land for educational purposes in Cen-
420
tral Mindanao University v. Department of Agrarian Reform. The
Court's reading took into consideration the significant factor of growth
and expansion.
Illustrative of constitutional tax exemption is the case of the L u n g

Center of the Philippines because a m i n i m u m of 6 0 % of its hospital
beds are exclusively used for charity patients and the major thrust of its
hospital operation is to serve charity patients, the Center was d e e m e d
to be an exempt charitable institution. To determine whether an enter-
prise is a charitable institution/entity or not, the elements which should
be considered include the statute creating the enterprise, its corporate
purposes, its constitution and b y - l a w s , the methods of administration,
the nature of the actual work performed, the character of the services
rendered, the indefiniteness of the beneficiaries, and the use and occu-
21
pation of the properties."
It was a different matter, however, for the property whose ben-

eficial use was given to a C o m p u t e r College. T h e property itself was
not considered exempt because it was not "actually, directly and exclu-
sively" being used either for religious, charitable, or educational pur-
422
poses.
Section 28(4) is a provision which copies Section 17(4) of the

1973 Constitution. It says: " N o law granting any tax exemption shall
420
215 SCRA86,96(1992).
42l
Lung Center v. Quezon City, G.R. No. 144104, June 29, 2004.
422
Systeins Plus Computer College v. Caloocan City, G Jt. No. 146382, August 7,2003.
be passed without the concurrence of a majority of all the Members of

the Congress." This requirement of a qualified majority for the passage
of tax exemption laws is an added limitation on the power to tax. The
Committee believed that while the requirement of the concurrence of a
majority of all the m e m b e r s would impose a limitation on the legisla-
ture, the limitation itself would not be too constrictive as to prejudice
"worthwhile tax exemptions, especially those needed to support or pro-
423
mote industrial and economic development."
Exemptions granted, however whether by the Constitution or by

statute, should not be extended beyond what is covered. T h u s , although
the former C a m p John Hay was declared a special economic zone, that
fact did not by itself also give to John H a y the tax exemption given spe-
424
cifically to the Subic Special Economic Z o n e under R.A. N o . 7227.
S E C . 2 9 . ( 1 ) N o MONEY SHALL B E PAID OUT O F THE TREASURY

EXCEPT IN PURSUANCE OF AN APPROPRIATION MADE BY LAW.
(2) NO PUBLIC MONEY OR PROPERTY SHALL BE APPROPRIATED,

APPLIED, PAID, OR E M P L O Y E D , DIRECTLY OR INDIRECTLY, FOR THE
USE, BENEFIT, OR SUPPORT OF ANY S E C T , C H U R C H , DENOMINATION,
SECTARIAN INSTITUTION, OR SYSTEM OF RELIGION, OR OF ANY PRIEST,
PREACHER, MINISTER, OR OTHER RELIGIOUS TEACHER OR DIGNITARY
AS SUCH, EXCEPT WHEN SUCH PRIEST, PREACHER, MINISTER, OR
DIGNITARY IS ASSIGNED TO THE ARMED F O R C E S , OR TO ANY PENAL
INSTITUTION, OR GOVERNMENT ORPHANAGE OR LEPROSARIUM.
(3) A L L MONEY COLLECTED ON ANY TAX LEVIED FOR A

SPECIAL PURPOSE SHALL BE TREATED AS A SPECIAL FUND AND PAID OUT
FOR SUCH PURPOSE ONLY. IF T H E PURPOSE FOR WHICH A SPECIAL FUND
WAS CREATED HAS BEEN FULFILLED OR ABANDONED, THE BALANCE,
DT ANY, SHALL BE TRANSFERRED TO THE GENERAL FUNDS OF THE
GOVERNMENT.
1. Fiscal powers of Congress.

As already pointed out, Congress is the guardian of the public
treasury. It wields the tremendous power of the purse. "That the gov-
ernmental power of the purse is a great one is not now for the first
423
Appendix G, Report No. 5, Committee on Taxation and Debt Management, 1971 Con-
stitutional Convention.
424
John Hay Peoples Alternative Coalition v. Lim, GJt. No. 119775, October 24,2003.
time announced. Every student of the history of government and eco-

nomics is aware of its magnitude and of its existence in every civilized
125
government."'
The power of the purse comprehends both the power to generate
money for the government by taxation and the power to spend it. Sec-
tions 24, 25 and 29 together with Article VII, Section 22 contain the
limitations on the power to spend. Section 29 contains the limitations
on the power to tax.
The spending power of Congress is stated in Section 29(1): " N o
money shall be paid out of the Treasury except in pursuance of an ap-
propriation made by law." Congress alone can authorize the expendi-
ture of public funds through its power to appropriate. T h e power to
appropriate carries with it the power to specify not just the amount that
may be spent but also the purpose for which it may be spent.
Guingona, Jr. v. Carague dealt with the controversy surrounding

426
automatic appropriation for foreign debt servicing. Petitioners sought to

declare the various Presidential Decrees authorizing automatic appro-
priation of amounts to be used for servicing foreign debts. T h e principal
contention of petitioners was that (1) appropriation bills under Section
24 must originate in the House of Representatives and (2) there must be
definiteness, certainty and exactness in an appropriation. Answering the
427
first argument the Court said:
... [C]ertainly, the framers of the Constitution did not con-

template that existing laws in the statute books including existing
presidential decrees appropriating public money are reduced to
mere "bills" that must again go through the legislative mill. The
only reasonable interpretation of said provisions of the Constitu-
tion which refer to "bills" is that they mean appropriation mea-
sures still to be passed by Congress. If the intention of the framers
thereof were otherwise they should have expressed their decision
in a more direct or express manner.
Well-known is the rule that repeal or amendment by impli-

cation is frowned upon. Equally fundamental is the principle that
construction of the Constitution and law is generally applied pro-
spectively and not retrospectively unless it is so clearly stated.
425
United States v. Butler,297 U.S. 1, 86 (1936), Stone, J. dissenting.
426
196 SCRA 221 (1991).
427
W. at 233-234.
As to the second argument, the Court resolved it by applying the

428
principles on delegation:
The Court finds that in this case the questioned laws are
complete in all their essential terms and conditions and sufficient
standards are indicated therein.
The legislative intention in R.A. No. 4860, as amended, Sec-

tion 31 of P.D. No. 1177 and P.D. No. 1967 is that the amount
needed should be automatically set aside in order to enable the
Republic of the Philippines to pay the principal, interest, taxes and
other normal banking charges on the loans, credits or indebtedness
incurred as guaranteed by it when they shall become due without
the need to enact a separate law appropriating funds therefor as the
need arises. The purpose of these laws is to enable the government
to make prompt payment and/or advances for all loans to protect
and maintain the credit standing of the country.
Although the subject presidential decrees do not state specif-

ic amounts to be paid, necessitated by the very nature of the prob-
lem being addressed, the amounts nevertheless are made certain by
the legislative parameters provided in the decrees. The Executive
is not of unlimited discretion as to the amounts to be disbursed
for debt servicing. The mandate is to pay only the principal, inter-
est, taxes and other normal banking charges on the loans, credits
or indebtedness, or on the bonds, debentures or security or other
evidences of indebtedness sold in international markets incurred
by virtue of the law, as and when they shall become due. No un-
certainty arises in executive implementation as the limit will be the
exact amounts as shown by the books of the Treasury.
After Congress has made the appropriation, it is the executive that

actually spends the fund.
The controversy over the Countrywide Development Fund of 1994,
429
which is the deodorized appellation of the traditional "pork barrel,"
was resolved by the Court in a manner which might be described as
tongue-in-cheek. The General Appropriation Act set aside an amount to
4 2 8
W. at 234-235.
"The origin of the name may be traced to a degrading ritual to which slaves were subject-
ed. At a fixed day and hour, a barrel stuffed with pork would be rolled out and a multitude of black
slaves, herded together in a strategic comer of the ranch or plantation, would cast their famished
bodies into the porcine feast to assuage their hunger with morsels coming from the generosity of
their well-fed master. BERNAS, "FROM PORK BARREL TO BRONZE CASKETS, " Today, January 30, 1994.
be used for "infrastructure, purchase of ambulances and computers and

other priority projects and activities, and credit facilities to qualified
beneficiaries as proposed and identified by officials concerned." The
"officials concerned" were all Representatives, Senators and the Vice-
President who were each allocated an amount. The law was challenged
on the ground that the authority given to the enumerated officials to
propose and identify projects and activities was an encroachment into
legislative power. In upholding the validity of the law, the Court said
that Congress itself had specified the uses of the fund and that the power
given to the enumerated officials was merely recommendatory to the
President who could approve or disapprove the recommendation. T h e
430
Court praised the scheme as "imaginative" and "innovative!"
2. Special funds.
Section 29(3) is new. It says: "All money collected on any tax

levied for a special purpose shall be treated as a special fund and paid
out for such purpose only. If the purpose for which a special fund was
created has been fulfilled or abandoned, the balance, if any, shall be
transferred to the general funds of the G o v e r n m e n t . " This is intended to
prevent abuse in the disposition of special funds. As the Court said in
31
PCGG v. COCOFED:*
The fundamental rule is that tax proceeds may only be used

for a public purpose, which may either be a general public purpose
to support the existence of the state or a special public purpose to
pursue certain legitimate objects of government in the exercise of
police power, and none other. As a measure to ensure the proper
utilization of money collected for a specified public purpose, the
1987 Constitution, restating another general principle, treats the
proceeds as a special fund to be paid out for such purpose. If, how-
ever, that purpose has been fulfilled or is no longer forthcoming,
the balance, if any, shall then be transferred to the general funds
of the government, which may thereafter be appropriated by Con-
gress and expended for any legitimate purpose within the scope of
the general fund. An entity, whether public or private, which holds
the tax money has no authority to disburse it or to pay any of it to
anyone, the power to dispose of such money being vested in the
430
Philippine Constitution Association v. Enriquez, 235 SCRA 506 521-523 (1994)
431
GJ*. Nos. 147062-64, December 14,2001.
legislature. Thus, the 1987 Constitution, like its counterparts in the

1935 and the 1973 Constitution, mandates that no money shall be
paid out of the national treasury except in pursuance of an appro-
priation made by law.
12
In Osmefia v. Orbos* part of the controversy was whether the
money that went into the Oil Price Stabilization Fund [OPSF] was tax
money levied for a special purpose. As set up by law, it was a "trust
fund" which derived funding from four sources: (1) from increase in
the tax collection from ad valorem taxes on oil products; (2) from any
increase in the tax collection as a result of the lifting of tax exemptions
of government corporations; (3) from additional amounts imposed by
the Board of Energy on petroleum products; (4) from peso savings re-
sulting from the fluctuation of the peso against currencies used for the
importation of crude oil and petroleum products. T h e question centered
on whether the additional amounts imposed by the Board of Energy was
4
a tax. T h e Court answered: "
What is here involved is not so much the power of taxa-

tion as police power. Although the provision authorizing the ERB
to impose additional amounts could be construed to refer to the
power of taxation, it cannot be overlooked that the overriding con-
sideration is [not to raise revenue but] to enable the delegate to
act with expediency in carrying out the objectives of the law [to
protect consumers from constant fluctuation of oil prices] which
are embraced by the police power of the State.
S E C . 3 0 . No LAW SHALL BE PASSED INCREASING THE APPELLATE

JURISDICTION OF THE SUPREME COURT AS PROVIDED IN THIS
CONSTITUTION WITHOUT ITS ADVICE AND CONCURRENCE.
1. Appellate jurisdiction of the Supreme Court.

Section 2 of Article VIII gives to Congress the power to apportion
the jurisdiction of courts. T h u s , Congress is free to add to or subtract
from the powers of the courts except insofar as these have been fixed
by the Constitution. Section 30 is a response to the concern that the
Supreme Court might be swamped with jurisdictional concerns which
'220 SCRA 703 (1993).

'Id. at 711-712.
T H E 1987 C O N S T I T U T I O N Sees. 31-32
816
might inhibit it from an expeditious disposition of important cases. Sec-

tion 30 does not prohibit Congress from increasing the jurisdiction of
the Supreme Court but simply prescribes that any such increase should
be with the advice and concurrence of the Court. T h u s , Art. 82 of the
Omnibus Investment Code of 1987 granting the right of appeal to the
Supreme Court was invalidated because it was passed without the ad-
434
vice and concurrence of the Supreme Court.
S E C . 3 1 . No LAW GRANTING A TITLE OF ROYALTY OR NOBILITY

SHALL BE ENACTED.
1. Titles o f royalty o r nobility.
This provision has traditionally been a part of the Bill of Rights.

The 1986 Constitutional Commission decided to transfer it to Article
VI.
Speaking in support of a similar provision at the 1935 Constitu-

435
tional Convention, Delegate Laurel said:
The Federalist (No. 84), speaking of the importance of the

prohibition against titles of nobility in the Federal Constitution,
says: "This may truly be denominated the cornerstone of republi-
can government; for so long as they are excluded there can never
be serious danger that the government will be any other than that
of the people."
The Filipinos have also suffered under the misguided rule

of monarchy and upon the first chance of drafting a constitution
of their own they provided that no Filipino could accept "honors,
decorations or orders or titles of honor and nobility from foreign
nations without authorization of the government." The govern-
ment was also forbidden from establishing or granting them to any
Filipino. (Malolos Constitution, Art. 32, Title IV.)
S E C . 3 2 . T H E C O N G R E S S S H A L L , A S EARLY A S POSSIBLE, PROVIDE

FOR A SYSTEM OF INITIATIVE AND R E F E R E N D U M , AND T H E EXCEPTIONS
T H E R E F R O M , WHEREBY THE PEOPLE CAN DIRECTLY PROPOSE AND ENACT
4 3 4
F i r s t L e p a n t o C e r a m i c s v . C o u r t o f A p p e a l s , 237 S C R A 519 ( 1 9 9 4 ) ; F a b i a n v . D e s i e r t o ,
GR. N o . 129742, S e p t e m b e r 16, 1998; N a m u h e v . O m b u d s m a n , G . R . N o s . 124965. 124932 and
124913, O c t o b e r 29, 1998.
4 3 5
I I I J O U R N A L O F T H E ( 1 9 3 5 ) C O N S T I T U T I O N A L C O N V E N T I O N 1035.
LAWS OR APPROVE OR REJECT ANY ACT OR LAW OR PART THEREOF

PASSED BY THE CONGRESS OR LOCAL LEGISLATIVE BODY AFTER THE
REGISTRATION OF A PETITION THEREFOR SIGNED BY AT LEAST TEN PER
CENTUM OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH
EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST
THREE PER CENTUM OF THE REGISTERED VOTERS THEREOF.
1. Initiative a n d referendum.
This has been initially discussed under Section 1. When this sub-
ject was being considered by the 1986 Constitutional Commission, one
major objection to it was the matter of practicality and practicableness.
The C o m m i s s i o n , however, felt that Congress could wrestle with the
436
problem of implementation.
T h e current implementing law is R.A. N o . 6735 some of the de-

tails of which are:
Sec. 5. Requirements. — (a) To exercise the power of ini-

tiative or referendum, at least ten per centum (10%) of the total
number of the registered voters, of which every legislative district
is represented by at least three per centum (3%) of the registered
voters thereof, shall sign a petition for the purpose and register the
same with the Commission.
(c) The petition shall state the following:

1. contents or text of the proposed law sought to be
enacted, approved or rejected, amended or repealed, as the
case may be;
2. the proposition;
3. the reason or reasons therefor;
4. that it is not one of the exceptions provided here-
in;
5. signatures of the petitioners or registered voters;
and
6. an abstract or summary in not more than one hun-
dred (100) words which shall be legibly written or printed at
the top of every page of the petition.
4
*II RECORD 79-80.
THE 1987 CONSTITUTION Sec
Sec. 6. Special Registration. — The Commission on Elec-

tion shall set a special registration day at least three (3) weeks be-
fore a scheduled initiative or referendum.
Sec. 7. Verification of Signatures. — The Election Registrar
shall verify the signatures on the basis of the registry list of voters,
voters' affidavits and voters identification cards used in the imme-
diately preceding election.
Sec. 8. Conduct and Date of Initiative or Referendum. —
The Commission shall call and supervise the conduct of initiative
or referendum.
Within a period of thirty (30) days from receipt of the peti-
tion, the Commission shall, upon determining the sufficiency of
the petition, publish the same in Filipino and English at least twice
in newspapers of general and local circulation and set the date of
the initiative or referendum which shall not be earlier than forty-
five (45) days but not later than ninety (90) days from the determi-
nation by the Commission of the sufficiency of the petition.
Sec. 9. Effectivity of Initiative or Referendum Proposition.

— (a) The Proposition of the enactment, approval, amendment or
rejection of a national law shall be submitted to and approved by a
majority of the votes cast by all the registered voters of the Philip-
pines.
If, as certified to by the Commission, the proposition is ap-

proved by a y the Commission, the proposition to reject a national
law is approved by a majority of the votes cast, the said national
law shall be deemed repealed and the repeal shall become effective
fifteen (15) days following the completion of publication of the
proposition and the certification by the Commission in the Official
Gazette or in newspaper of general circulation in the Philippines.
However, if the majority vote is not obtained, the national

law sought to be rejected or amended shall remain in full force
and effect.
(c) A national or local initiative proposition approved by

majority of the votes cast in an election called for the purpose shall
become effective fifteen (15) days after certification and proclama-
tion by the Commission.
.32 ART. VI - THE LEGISLATIVE DEPARTMENT
Sec. 10. Prohibited Measures. — The following cannot be

the subject of an initiative or referendum petition:
(a) No petition embracing more than one (1) subject shall
be submitted to the electorate; and
(b) Statutes involving emergency measures, the enact-
ment of which are specifically vested in Congress by the Constitu-
tion, cannot be subject to referendum until ninety (90) days after
its effectivity.

Bernas - The 1987 Constitution (1) - 675-819

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Bernas - The 1987 Constitution (1) - 675-819

Uploaded by

Copyright:

Available Formats

ARTICLE VI

THE LEGISLATIVE DEPARTMENT

SECTION 1 . THE LEGISLATIVE POWER SHALL BE VESTED IN THE

Bicameralism is not a stranger to Philippine constitutionalism.

T h e original 1973 Constitution reverted to unicameralism by

The supposed advantages of unicameralism were simplicity of or-

2. Nature of legislative power.

Legislative power is the authority to m a k e laws and to alter and

Unlike the Constitution of the United States which contains only

'Constitutional Convention Session of July 12,1972.

essarily possessed by Congress, unless the organic act has lodged it

As corollary to this plenary grant of legislative power, it follows

Another corollary is that Congress cannot pass irrepealable laws.

To say that the legislature may pass irrepealable laws, is to

In the presidential system introduced by the 1935 Constitution

The purpose of separation of powers and "checks and b a l a n c e s "

The danger of tyranny arising from the concentration of powers

4. Limits on legislative power.

Speaking of the powers of the legislative department of govern-

Someone has said that the powers of the legislative depart-

Although the original 1973 Constitution adopted a parliamentary

5. The holders of legislative power: Congress; people

In republican constitutional theory, the original legislative power

or to supplement legislative inadequacies whether on the national level

The power of initiative and referendum is thus the power of the

The operationalization of initiative and referendum has been left

Other matters of detail were also left to Congress. As Commis-

It should also be noted that, whereas the legislative power of Con-

T h e emergency legislative power of the President will be dis-

6. The Once and Former Legislative power of President

Whenever in the judgment of the President (Prime Minister),

After the revision of 1981 was ratified, the continuing effectivity

The argument from the hybrid term "President (Prime Minister)"

As to the parenthetical mention therein of the Prime Minis-

in the Prime Minister, the President being merely the symbolical

W h e n the Legaspi case arose in 1982, the operative legislative

T h e Court affirmed that it was. Justice Barredo developed his

Barredo also added, to satisfy doubting Thomases, that the intent

considerations that are needed in order to safeguard the very existence

Immediately after the February 1986 revolution, President Cora-

powers until the first Congress is convened." T h u s , the only difference

7. Non-delegability of legislative power.

In his commentary on the Constitution of the United States, Cor-

At least three distinct ideas have contributed to the develop-

" C O R W I N , CONSTITUTION OF THE UNITED STATES OF AMERICA, 95 ( 1 9 6 4 ) .

do in seeking assistance from another branch, the extent and char-

In spite of the principle of non-delegability of legislative pow-

Under both of the above theories, the function performed by the

(a) be complete in itself — if must set forth therein the

"Wayman v. Southward, 10 Wheat 1,42 (1825).

is worse — to unmake it, by adopting measures inconsistent with

Provided the above requirements of completeness and sufficiency

The rationale behind allowing administrative agencies to promul-

(b) To furnish annually a detailed report of finances and

"Pelaez v. Auditor General, 15 SCRA 569,576-7 (1965).

Declaring the statute to be an unlawful delegation of legislative

As is apparent at a glance the provision conferring authority

Similarly, in declaring a price control act unconstitutional in 1919,

The question here involves an analysis and construction of

of State, for any cause resulting in an extraordinary rise in the price

"68 Phil. 328 (1939).

sale of speculative securities. However, the standard of "public interest"

no difficulty in upholding, in the context of the entire law, the prohibi-