DOCTRINE OF SEPARATION OF POWERS

Originally suggested by Aristotle in his treatise on Politics, and later on recognized by Marsiglio of Padua, Cromwell, Locke and Montesquieu,the doctrine of separation enunciates the idea of grouping the powers of government into three classes and of their apportionment among three coordinate departments, separate from and independent of each other.

This doctrineis beingcarried out until this modern day that it is now incorporated in the constitutions of many states. Among which is the United States of America. Kilbourne vs. Thompson, 103 US 168, 190, 25L.ed. 377, ruled:

It operates to maintain the legislative powers to the legislative department, executive powers to the executive department, and those which are judicial in character to the judiciary. Through this allocation of powers, the person entrusted shall not be permitted to encroach upon the power confided to the others, but that each shall, by the law of its creation, be limited to the exercise of the powers appropriate to its own department and no other. There must be independence and equity of the several departments.

Photo source: http://w4.nkcsd.k12.mo.us/~kcofer/k2_branches.jpgIn essence, the separation of powers means thatthemaking of the laws belongsto Congress, theexecution of the laws is to the executive and the settlement of controversiesrests in the Judiciary. Each is prevented from invading the domain of the others. The purpose of the separation of powers is to prevent concentration of authority in onedepartmentand thereby avoid tyranny.

The separation of powers however should not be interpreted as complete separation and absolute exclusion. The doctrine carries that althoughthe three branchesare not subject to the control by either of the others and each is supreme within its own sphere, they are still equal and coordinate. Equal because they all derive their powers from the same common sovereign through the constitution. And coordinate because they cannot simply ignore the acts done by other departments as nugatory and not binding. THE PHILIPPINE GOVERNMENT

This paperdiscusses the three departments of the Philippine Government (legislative, executive, and judicial department) and three Constitutional Commissions, the principles and doctrines underlying their structure and composition, and their respective roles, powers, and functions. The paper basically discusses the Constitution of Government.

At the end of the discussion, the students must be able to:

1. Explain the basic political law doctrines involving the Philippine Government;

2. Explain and distinguish the three branches of the government;

3. Identify and compare the respective roles, functions and composition of the branches of the government; and

4. Explain and distinguish the powers, functions, and jurisdiction of the three Constitutional Commissions.

PRELIMINARIES

1. Definition of Government. Government has been defined as that institution or collection of institutions through which a sovereign society makes and implements law which enable men to live with each other or which are imposed upon the people forming the society by those who have the authority of prescribing them.2. Definition of Government of the Republic of the Philippines. Under Section 2(1) of the Administrative Code of the Philippines, the Government of the Republic of the Philippines is defined as the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal, or barangay subdivisions, or other forms of local government. In other words, it refers to the corporate institution which acts as an instrument through which the people exercise their sovereignty. It is composed of the central or national government and local government units.3. Overview of the Structure of the Philippine Government. As provided in Article II of the Constitution, the Philippine Government is democratic and republican. It follows the separation of powers, so that as provided in Articles VI, VII and VIII, it divides itself into three branches: Legislative, Executive, and Judicial. Although these branches have their own particular powers and functions, they form only one coherent government with a common purpose. Independent Constitutional Commissions were also created as constitutional safeguards for the other aspects of governance in the Philippines, such as audit of public funds, conduct of elections, and maintenance of civil service. The intricacies of Philippine bureaucracy are laid down in the Constitution of Government, which will be discussed below.

SEPARATION OF POWERS

Meaning of the Doctrine

The Doctrine of Separation of Powers entails: first, the division of the powers of the government into three, which are legislative, executive, and judicial; and second, the distribution of these powers to the three major branches of the government, which are the Legislative Department, Executive Department, and the Judicial Department. Basically, it means that the Legislative Department is generally limited to the enactment of the law and not to implementation or interpretation of the same; the Executive Department is generally limited to the implementation of the law and not to the enactment or interpretation of the same; and the Judicial Department is generally limited to the interpretation and application of laws in specific cases and not to the making or implementation of the same.

Purpose of the DoctrinePrevention of Monopoly of Power. Separation of powers is said to be an attribute of republicanism, in that, among other reasons, it seeks to prevent monopoly or concentration of power to one person or group of persons, and thereby forestalls dictatorship or despotism. Sovereignty resides in the people, and it should remain that way. Government officials, who are the representatives of the people, must exercise the powers of their office in the interest of the public. While representational exercise of power brings out the essence of republicanism, too much concentration of power rips it apart, as was experienced some administrations.Separation not ExclusiveImportant to understand is the meaning of separation not as exclusivity but as collaboration. While each of the Departments exercises its respective power, it does so in collaboration with the other Departments because in the end they all belong to one unified government with a common purpose. Appointment, for example, of Members of the Supreme Court by the President must be upon the recommendation of the Judicial and Bar Council. In here before the President, who belongs to the executive branch, appoint a Supreme Court justice, a recommendation must first be given to him by the JBC, which is an independent body in the judiciary. Another example would be the use of public funds. In here, the President prepares the budget, on the basis of which the Congress enacts an appropriations bill which will then be submitted and approved by the President.

Checks and Balances

From the examples above one can understand the corollary doctrine of checks and balances. Under the doctrine, there is no absolute separation of the three branches of the government, but to maintain their coequality each department checks the power of the others. Generally, the departments cannot encroach each others power, but constitutional mechanisms allow each one of them to perform acts that would check the power of others to prevent monopoly, concentration, and abuse of power. For example, the Judicial and Bar Council recommends nominees to the President so that the latter will not capriciously appoint someone whom he can easily convert into a puppet and thereby become his medium to control the judiciary. In the same way, the disbursement of public funds cannot depend solely upon the discretion of the President, but must be based on legislation by the Congress.

Presidential System

The Philippines has a presidential form of government because it observes the principle of separation of powers. The ordinary connotation of presidential system is that it is headed by a president, as distinguished from a parliamentary system which is headed by a prime minister. The real essence, however, of the presidential system and that which distinguishes it from the parliamentary is its strict observance of the separation of powers. Under the presidential system, any governmental act in violation of the said doctrine is null and void. The government is divided into three branches and each is limited to the power delegated to it. On the contrary, under the parliamentary form, the legislative and executive branches are coordinate branches so that the two organs are fused together as one body performing both legislative and executive functions. The Prime Minister, for example, is chosen from among the lawmakers in the parliament to become the head of the state. His term is at the pleasure of the parliament, thus, making the executive branch intrinsically merged with the legislative.

THE LEGISLATURE AND THE LEGISLATIVE PROCESS

Legislative Power

1. Meaning. The word legislative is derived from the Latin lex which means law. In general, legislative power refers to the power to make and unmake laws. Laws are rules or collection of rules, whether written or unwritten, prescribed under the authority of a political society for the common good. The Legislative Department (Legislature) is the law-making branch of the government.2. Delegation to the Congress. Fundamentally, legislative power is an attribute of sovereignty, in that the Constitution itself, the fundamental law of the State, is a legislation of the sovereign people. However, through the Constitution, the people delegated the legislative power to the Congress of the Philippines. Section 1, Article VI states that Legislative power shall be vested in the Congress of the Philippines The delegation of power entails a surrender of authority to the representatives, or in the case of legislative power, to the Congress. Thus, law-making can only be performed by the Congress, even if the law it enacts involves the people.3. Reservation to the People. The Constitution, however, makes a reservation as to the delegation, in that it explicitly states: except to the extent reserved to the people by the provision on initiative and referendum. In other words, there is no complete delegation of law-making power to the Congress, as the power is reserved to the people in cases of initiative and referendum. Thus, laws are made or unmade, first, by the Congress in the form of statutes, and second, by the people in initiatives and referendums; legislative power is exercised by the Congress and the sovereign Filipino people.4. Legislative Power as Exercised by Congress. Legislative power as exercised by Congress manifests itself more specifically in the Constitution as power of appropriation, power of taxation, and power of concurrence.(a) Power of Appropriation. Section 29 (1), Article VI speaks of the power to appropriate. It states, No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. Appropriation means the authorization by law for the use of a certain sum of the public funds. An appropriations law is necessary before public funds may be spent by the government for its projects. The government needs money in all its activities and projects so that the power of appropriation, also known as the power of the purse, is said to be one of the most important prerogatives of the Congress.(b) Power of Taxation. The power, which is one of the inherent powers of the state, is generally exercised by the legislative department. The Constitution limits such power as follows: The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. As was discussed in Chapter 4, taxation must be uniform, equitable, and progressive. Any law passed by the Congress contrary to this provision is null and void.(c) Power of Concurrence. Section 21, Article VII states that no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. This refers to the power of concurrence of the Congress in which no treaty can become binding and effective as a domestic law without the two-thirds concurrence of the Members of the Senate.

Non-Delegation of Powers

1. Meaning and Explanation. The Congress cannot further delegate the power delegated to it by the people. This is in keeping with the principle of non-delegation of powers which is applicable to all the three branches of the government. The rule states that what has been delegated cannot further be delegated potestas delegata non delegari potest. A delegated power must be discharged directly by the delegate and not through the delegates agent. It is basically an ethical principle which requires direct performance by the delegate of an entrusted power. Further delegation therefore constitutes violation of the trust reposed by the delegator on the delegate. The people, through the Constitution, delegated lawmaking powers to the Congress, and as such, it cannot as a rule delegate further the same to another.2. Exceptions. In order to address the numerous and complex demands of legislative function, the Constitution provides exceptions to the rule. Further delegation is permitted in the following cases:(a) Delegation to the people at large. The Congress further delegates its legislative power by allowing direct legislation by the people in cases of initiative and referendum;(b) Delegation of emergency powers to the President. Section 23 (2), Article VI of the Constitution states that 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. Emergency powers are delegated to the President by the Congress to effectively solve the problems caused by war or other crisis which the Congress could not otherwise solve with more dispatch than the President;(c) Delegation of tariff powers to the President. Section 28 (2), Article VI of the Constitution states that the Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. Tariff powers are delegated to the President by the Congress to efficiently and speedily solve economic problems posed by foreign trade which the Congress could not otherwise address with more dispatch than the President;(d) Delegation to administrative bodies. The Congress delegates the so called power of subordinate legislation to administrative bodies. Due to the growing complexity of modern society, it has become necessary to allow specialized administrative bodies to promulgate supplementary rules, so that they can deal with technical problems with more expertise and dispatch than the Congress or the courts. Regulations or supplementary rules passed by the administrative bodies are intended to fill-in the gaps and provide details to what is otherwise a broad statute passed by Congress. For the rules and regulations to be valid and binding, they must be in accordance with the statute on which they are based, complete in themselves, and fix sufficient standards. If any of the requirements is not satisfied, the regulation will not be allowed to affect private rights; and(e) Delegation to the local governments. This delegation is based on the principle that the local government is in better position than the national government to act on purely local concerns. Legislative power is therefore given to them for effective local legislation.

Bicameralism and Composition of Congress

1. Bicameralism in the Congress. The Constitution prescribes bicameralism in the Congress. Congress, to whom legislative power is vested, shall consist of a Senate and a House of Representatives. Bicameralism is a traditional form of legislative body consisting of two chambers or houses, one representing regional interests and the other representing national interests. The Congress of the Philippines is said to be bicameral because it consists of two houses: the House of Representatives, which is concerned with local issues, and the Senate, which is concerned with national issues. These two are co-equal branches and their primary function is law-making.2. The Senate. The Senate and its members are described in the Constitution as follows:(a) Composition. The Senate is composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law. It is said to be the training ground of future Presidents because membership in the Senate requires national constituency and demands a broad circumspection of the issues and problems of the country.(b) Qualifications of a Senator. To be a senator, one must be 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.(c) Term. Each Senator shall have a term of six years and he shall serve for not more than two consecutive terms.3. The House of Representatives. The House and its members are described in the Constitution as follows:(a) Composition. The House of Representatives is composed of District Representatives and Party-list Representatives. On the one hand, district representatives or congressmen as they are commonly called, whose number is now fixed by law, are elected from the legislative districts in provinces and cities. On the other hand, party-list representatives are elected at large through a party-list system of registered national, regional, and sectoral parties or organizations. Twenty percent of the total number of all the members of the House of Representatives constitutes the party-list representatives.(b) Qualifications of a Member. To be a member of the House of Representatives, one must be 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.(c) Term. Each Member has a term of three years and shall serve for not more than three consecutive terms.4. The Officers of the Congress are the Senate President, who heads the sessions in the Senate, and the House Speaker, who heads the House of Representatives. They are elected by majority vote of all their respective members. If it deems necessary, each House can choose other officers.

Party-list Representation

1. Meaning and Purpose. The party-list system aims at establishing representation of the underprivileged. It is a social justice tool designed not just to make the underprivileged mere beneficiaries of law but to make them lawmakers themselves. It opens up the political system to the prejudiced and underrepresented sectors of the society. Under the present rule, however, party-list representatives need not represent only the marginalized and the underrepresented; national political parties can participate through their sectoral wings provided they are registered separately in the COMELEC. Party-list representatives after all may represent not just a marginalized or underrepresented sectors but also ideologies germane to democracy.2. Parameters for Allocation of Seats. As to the allocation of seats of party-list representatives in the House of Representatives, the parameters are:(a) Twenty percent allocation in the House (Sec. 5(2), Art. VI);(b) To qualify to a seat, at least two percent of the votes is casted on the party;(c) A qualified party is entitled to a maximum of three seats; and(d) Proportional representation as to the number of additional seats vis--vis the total number of votes cast.

Sessions and Quorum

1. Kinds of Session. The Congress has regular sessions and special sessions. On the one hand, the regular sessions are conducted once a year starting on the fourth Monday of July and continue as long as the Congress deems it necessary but only until thirty days before the next regular session. On the other hand, special sessions are conducted anytime upon the call of the President on subjects he wishes to consider. This can last for as long as the Congress wants.2. Quorum. In order to transact business during its regular or special sessions, each House must meet the quorum or majority of the body. One half of the members plus one is the majority. No law can be passed or a legislative function discharged unless the quorum is reached. In determining the quorum, however, members who are abroad, suspended or otherwise prevented from participating are not counted. Only those who are in the Philippines and on whom the Congress has coercive power to enforce its authority and command are counted. For example, if one of the members of the Senate is outside the Philippines, the base number is twenty three because the Senator abroad is not counted. The quorum is therefore twelve since it is the majority of twenty three.3. Recess. Thirty days before the next regular sessions, the Congress shall have its compulsory recess or adjournment. But each House can adjourn for a voluntary recess provided that the consent of the other House is obtained if the adjournment is for three days or to any other place than that to which the two Houses are sitting.

Parliamentary Immunities

1. Meaning. Parliamentary immunity refers to the privilege given to Members of the Congress intended to ensure their effective discharge of legislative functions and maintenance of representation in the Congress.2. Two Kinds of Immunity. The Constitution provides two kinds of immunities: immunity from arrest and privilege of speech and debate. Section 11, Article VI states: A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. 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.(a) Immunity from arrest refers to the freedom of Senators and Members of the House of Representative from arrest while the Congress is in session, whether regular or special, from the time it convenes until its final adjournment. The offense, however, of which the arrest is made must not be punishable for more than six years of imprisonment. For example, if Senator Pedro is charged for the crime of simple theft while the Congress is still in session, he cannot be arrested because simple theft is not punishable for more than six years of imprisonment. But if he is charged for rape, he may be arrested even though the Congress is in session because rape is punishable by more than six years imprisonment.(b) Privilege of speech and debate refers to the freedom of Senators and Members of the House of Representatives from being questioned or held liable in any place for any speech or debate in the Congress or in any committee thereof. This is to give leeway to the members of the Congress to express their ideas without fear of being held liable in the courts of justice for the effective discharge of their duties. It must be noted, however, that the privilege is effective only in speeches and debates made in the Congress or in those uttered by the legislator in his capacity as member of the Congress. Moreover, although the legislator cannot be held liable before the courts, he could be held liable in the Congress itself for words or conduct unbecoming of a member. For example, if Congressman Pedro, during his speech before the House, uttered unsavory remarks against a fellow member, he cannot be charged for libel before the courts but he can be made liable in the House itself for words or conduct unbecoming of a member of the House.

Restrictions and Disqualifications

1. Conflict of Interest. The Constitution demands transparency in the Congress, particularly in the financial and business interests of its members, in order for the legislature to be aware of a potential conflict of interest. Potential conflict of interest happens when a legislator derives financial advantage from a law which he legislates or was legislated during his term and the body was not notified of such conflict. It constitutes betrayal of public trust in that the personal interest of the legislator is placed over that of the public. Note however that the legislator can still propose a law even if there is a potential conflict of interest for as long as he has notified the body about it. The purpose therefore of this requirement is to allow the House to better examine the legislation vis--vis the legislator.2. Incompatible Office. In keeping with doctrine of separation of powers, the Constitution provides that 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. This disqualification refers to the incompatible office which is any other office in the government that if held by a member of the Congress would result to the forfeiture of his seat in the Congress. The provision allows a member to hold an incompatible office but the result is the automatic forfeiture of his seat. For example, if during the term of Senator Pedro he becomes the head of a government-owned and controlled corporation, he will no longer be Senator because of the automatic forfeiture, the GOCC being an incompatible office.3. Forbidden Office. Another disqualification involves the so-called forbidden offices or offices which have been created or the emoluments of which were increased while the legislator was a member of the Congress. The purpose of this disqualification is to prevent legislators to create an office or to increase its emoluments for personal gain. Pursuant to this disqualification, a Senator, for example, cannot be appointed to a civil or military office which was created while he was still a senator. The disqualification lasts for the entire six-year term even if the member resigns before the end of his term.

Independent Bodies

1. The Constitution creates two independent bodies in the Congress especially to perform non-legislative functions and to check the appointing power of the Chief Executive, to wit: (a) the Electoral Tribunals and (b) Commission on Appointments. Although majority of their members come from the Congress, they considered independent bodies in that they have the exclusive right to prescribe their own rules of procedure, they have their own set of employees who are under their control and supervision, and they have their own function distinct from that of the Congress.2. Electoral Tribunal. To ensure fairness and impartiality in deciding election contests involving members of the Congress, each House in the Congress shall have an Electoral Tribunal: the Senate Electoral Tribunal in the Senate, and House of Representatives Electoral Tribunal in the House of Representatives. Each Electoral Tribunal shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each shall be composed of nine members, three are Justices of the Supreme Court, and six are members of the Senate or the House of Representatives, as the case may be. The Chairman shall be the senior Justice. While the member Justices are designated by the Chief Justice of the Supreme Court, the six other legislator members are chosen on the basis of proportional representation from political parties and party-list organizations (duly registered under the party-list system) in the Congress. Thus, if there is an election contest, for instance, involving the qualifications of Congressman Juan, the case shall be decided by the House of Representatives Electoral Tribunal which is the sole judge of election contests involving the Members of the House of Representatives.3. Commission on Appointments. Another independent body in the Congress is the Commission on Appointments which was created to check the appointing power of the President, specifically in appointments to importance offices in the government. It consists of twenty five members: the Senate President, as ex officio Chairman, twelve Senators, and twelve Members of the House of Representatives. The Senators and Members of the House are elected by their respective Houses based on proportional representation from the political parties and party-list organizations (duly registered under the party-list system) in the Congress. The function of the Commission is to approve or disapprove the nominations submitted to it by the President to appointments that require its approval. For example, before a Cabinet Member may be appointed, the President must first submit his nomination for approval to the Commission on Appointments. With the approval, there could be no appointment.

Procedure of How a Bill Becomes a Law

1. Bill vs. Statute. Among the most important things studied in Article VI, The Legislative Department, is the procedure of how a bill becomes a law. A bill is a proposed law. As such, it is not yet binding nor does it confer or affect the rights and duties of individuals. It becomes a law only after it has gone through all the formalities and solemnities of the legislation process as prescribed in the Constitution. The law enacted by the Congress is called a statute.2. The procedure is as follows:(a) A bill is introduced by any Member of the Senate or the House of Representatives by filing it with the Office of the Secretary where it is calendared for the First Reading. Some bills, however must originate exclusively from the House of Representatives, such as the appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills, although the Senate may propose or concur with amendments.(b) During the first reading the number, title, and name/s of author/s are read. The subject of the bill as expressed in its title must only be one in order to avoid hodge-podge or log-rolling legislation which entails insertion of many unrelated subjects. The bill is referred to an appropriate committee for study. Public hearings or consultations may be conducted by the committee before it recommends the bill for approval, with or without amendments, or for consolidation with similar bills, or for disapproval. If it is disapproved, the bill is said to be killed. If approved or reported out, it will calendared for the second reading.(c) During the second reading, which is the start of the most important stage, the bill is read in its entirety, together with the amendments introduced by the committee, if there are any. The bill will thereafter be debated upon and amended if the members deem it necessary.(d) The approved bill in the second reading is printed in its final form and copies of it are furnished to the members three days before the third reading. During the third reading, only the title of the bill is read, and immediately after, the Members will vote thereon and their votes (yeas and nays) will be entered in the journal. No further amendments are allowed.(e) The approved bill is referred to the other house where it also undergoes three readings on three separate days. If compromise or reconciliation of conflicting provisions is necessary because of the differences in the House Bill and Senate Bill version, the bill shall be submitted to a joint bicameral committee.(f) After the bill has been approved on third reading on both Houses it shall be submitted to the President for his action. He approves by signing the bill; he disapproves by vetoing and returning the bill with his objections to the House of origin. In order to override the veto of the President, two-thirds of all the Members of each house voting separately must agree to pass the bill. If the President will not act on the bill in thirty days, the bill shall become a law as if signed by him. Pocket veto is not allowed under the laws.(g) The enrolled bill or bill as printed and approved by the Congress and the President shall be published in a newspaper of general circulation or in the Official Gazette of the Government and shall become binding fifteen days following its publication unless another date is provided therein.3. Three Readings on Three Separate Days. What is important to remember in all these steps is the rule of three readings on three separate days. Except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency, no bill can become a law unless it passes three readings on three separate days in both Houses of the Congress.

Non-legislative and other Powers of Congress1. Non-Lawmaking Powers. Aside from lawmaking, Congress performs non-lawmaking functions, such as initiation and holding of impeachment (Art. XI, Sec. 2), acting as a constituent assembly (Article XVII, Sec. 1), declaration of existence of war (Art. VI, Sec. 1), approval of Presidential appointments through the Commission on Appointments (Art. VI, Sec. 17), and deciding election cases involving its members (Art. VI, Sec. 16).2. Power to Declare the Existence of War. Section 23 (1), Article VI states that the Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. This means that when the Philippines is under attack by foreign invaders, the Congress by means of enacting a law, affirms that the Philippines is already at war with the enemy. War is not solely controlled by the President who is the commander in chief of the military; it is likewise controlled by the legislature because it has power over the money used in the war.3. Legislative Inquiries. The Congress also conducts legislative inquiries which power is necessarily implied in its power to legislate. Legislative inquiry is a process held in the Congress especially conducted to compulsorily obtain requisite information from witnesses in aid of legislation. The process and the requite information taken are necessary to legislate wisely and effectively. The Constitution provides limitations, to wit: (1) the inquiries must be in aid of legislation; (2) it must be in accordance with the duly published rules of procedure of the Congress; and (3) the rights of persons appearing shall be respected.4. Question Hour. Inquiries may also be conducted to obtain information from the heads of departments on matters pertaining to how laws are implemented. This is called the question hour. The manner of obtaining information, however, is not compulsory because of the doctrine of separation of powers. The heads of the departments are alter egos of the President; to maintain the co-equality of the executive and legislative branch, either House of Congress may only request for the appearance of the department heads. Conversely, the department heads may appear but the Congress is not obliged to hear them. Question hour is different from legislative inquiry in that appearance in the former is not compulsory, while appearance in the latter is compulsory; information derived in the former is in exercise of oversight functions, while informative derived in the latter is in aid of legislation; and the former is not among the traditional processes of a presidential government, while the latter is an inherent legislative power under a presidential government.

THE EXECUTIVE AND EXECUTIVE PROCESS

Executive Power1. Meaning. Executive power includes, first, the power to implement and administer the law, and, second, other powers necessary to carry out the same. Section 1, Article VII provides that the executive power shall be vested in the President of the Philippines, so that his primary role is to ensure that the laws are faithfully executed. That executive power is given to the President alone makes him the most potent official in the government. But while much is given to him, much is also expected. The limits of his awesome powers are structurally provided in the Constitution to prevent irresponsible and despotic exercise thereof.2. Doctrine of Qualified Political Agency. While executive power is given only to the President, the President can appoint Members of his Cabinet whom the law considers as his alter egos (extensions of himself). Under the doctrine of qualified political agency, the acts of the Members of the Cabinet are deemed to be the acts of the President unless reprobated or altered by him. The Cabinet Members are political agents of the President who help him discharge his powers and duties which alone he cannot efficiently perform. They are the heads of the departments who serve as presidential advisers. Just as the President has the power of control over them, he also has the power to remove them, him being still the chief of administration.

Presidential Privileges1. Meaning. Presidential privilege refers to an immunity or privilege granted to the President intended for the effective performance of his executive functions and duties.2. Kinds. The President is granted the privilege of immunity from suit and executive privilege.(a) Immunity from suit means that the President cannot be sued, if he invokes such privilege, for any civil or criminal action during his tenure. In one case, the Court said that the rationale for the grant of the privilege of immunity from suit is to assure the exercise of the Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office-holders time, also demands undivided attention. After his tenure, however, the President can no longer invoke immunity for non-official acts.(b) Executive privilege refers to the power of the President to withhold confidential information from the other branches of the Government and the public. Among these types of information covered by the privilege are: (i) conversations and correspondence between the President and the public officials (covered by E.O. 464); (ii) military, diplomatic, and other national security matters which in the interest of national security should not be divulged; (iii) information between inter-government agencies prior to the conclusion of treaties and executive agreements; (iv) discussion in close-door Cabinet meetings; and (v) matters affecting national security and public order. These types of information are closed or withheld from the other branches and the public because they are crucial for the exercise of executive functions and to prevent the potential harm resulting from the disclosure of the same. Thus, the President and the Cabinet Members, for instance, can invoke executive privilege even in the Congress during legislative investigations.Qualifications, Manner of Election, and Term1. The President. The Constitution provides the qualifications, manner of election, and term of the President as follows:(a) Qualifications. Section 2, Article VII of the Constitution provides the qualifications of a President, to wit: (i) he must be a natural-born citizen of the Philippines; (ii) a registered voter; (iii) able to read and write; (iv) at least forty years of age on the day of the election; and (v) a resident of the Philippines for at least ten years immediately preceding such election.(b) Manner of Election. He is elected at large by the direct vote of all qualified citizens.(c) Term. His term is six years, for which he cannot seek for reelection. He may be removed from office through impeachment.2. The Vice-President. Section 3, Article VII states that the Vice-President has the same qualifications and term of office as the President, for the reason that his primary role is to succeed the President in case of vacancy due to the latters death, permanent disability, or resignation. He may also be removed from office in the same manner as the President. However, the Vice-President may serve for two consecutive terms.3. When Qualifications must be Present. It must be noted that the qualifications must be present on the day of the election and not on the day of filing the Certificate of Candidacy or the day of proclamation of the President-elect. Thus, one can still run for President even if he is still thirty nine years old on the day of filling the certificate of candidacy, for as long as he is forty years old on the day of the election. Worthy of note also is the Constitutional limitation on the term of the President, that is, he cannot seek for reelection. The manifest purpose of this is to prevent despotism and to protect the highest public official from being consumed by the overwhelming powers of Presidency.

Presidential Succession1. Two Rules on Presidential Succession. Section 7 and Section 8, Article VII prescribe the rules for presidential succession or the manner of filling a vacancy in the presidency. Section 7 talks of succession when vacancy happens at the start of the term of the President-elect, while Section 8 talks of succession when vacancy happens at the mid part of the term of the incumbent President. These rules are important because they provide immediate remedy for filling the vacancy in the highest and most crucial seat of the land.2. Succession at the Start of the Term. Under Section 7, Article VII, the rule is:(a) The Vice-President becomes the Acting President in the event that the President-elect fails to qualify, or when no President was chosen;(b) The Vice-President becomes the President in the event that the President-elect dies or becomes permanently disabled; and(c) The Senate President or, in case of his inability, the House Speaker, becomes the Acting President on the event that no President and Vice-President are chosen or qualified, or where both died or become permanently disabled.In the first case, the Vice-President acts as President until a President-elect is qualified and chosen. In the second case, the Vice-President does not only act as President but becomes the President. And in the third case, the Senate President or, in his inability, the House Speaker acts as President until a President or a Vice-President are chosen and qualified.3. No Presidential Hold-Over. Note well that the former President, whose term already expired, has no right of hold-over. So as not to repeat the dictatorship of the past, the Constitution is strict with the six-year term limit. No extensions are allowed, not even in a hold-over capacity. Thus, if no President assumes office after the election, the former President is not allowed to continue discharging the functions of the presidency.4. Succession at the Mid-Part of the Term. Under Section 8, Article VII, the rule is:(a) the Vice-President becomes the President for the unexpired term in case of the latters death, permanent disability, removal from office, or resignation; and(b) if the same happens to both the President and the Vice-President, then the Senate President or, in case of his inability, the House Speaker, will act as President until the President or Vice-President will be elected and qualified.5. Vacancy in the Office of the Vice-President. If the Office of the Vice-President is vacant as a consequence of presidential succession, the President shall nominate a Vice-President from among the Members of Congress who shall assume office upon confirmation of the Members of Congress. For example, when former President Joseph Estrada was ousted from Malacanang through People Power, he was succeeded by then Vice- President Gloria Arroyo. As a matter of course, the Office of the Vice-President became vacant. Thus, the new President, Gloria Arroyo, nominated then Senator Teofisto Ginggona for Vice-President whose nomination was confirmed by the Members of Congress. Note that President Arroyo could have nominated any Member of the Congress, that is, either a Senator or a Member of the House of Representatives for Vice-Presidency.6. Temporary Disability of the President. And lastly, Presidential succession also happens when the President is temporarily disabled. The temporary disability of the President, of which the public must be informed, is determined by:(a) the President himself through a written declaration transmitted to the Senate President and House Speaker, in which case the Vice-President becomes the Acting President;(b) majority of Cabinet Members through a written declaration transmitted to the two officials, in which case the Vice-President becomes the Acting President; and(c) 2/3 vote of both Houses of Congress, voting separately, in case there is a dispute between the President and the Cabinet Members, in which case the Vice-President also becomes the Acting President.Presidential incapacity is said to be terminated when the President or his Cabinet Members transmit to the Congress that the inability no longer exists, or in case the temporary disability was declared by the Congress, when both Houses by 2/3 vote, each voting separately, declare the termination of presidential incapacity.

Inhibitions and Disqualifications

The Constitution provides many inhibitions and disqualifications on the President, Vice-President, Cabinet Members, and their deputies and assistants. The subjects of the inhibitions and disqualifications are: (1) increase in their salaries and emoluments; (2) the holding of other offices; (3) appointment of relatives; and (4) midnight appointment.1. Inhibition on Salary. The Congress fixes by law the salaries of the President and Vice-President. The salaries cannot be decreased during their tenure, but the same can be increased. The increase takes effect only after the expiration of the term of the President and Vice-President during whose term the increase was approved.2. Disqualification on Holding Other Offices. They cannot also receive during their tenure any other compensation or allowances from the Government or any other source. The reason for this is that they cannot hold any other office or employment, unless otherwise provided in the Constitution. Their office, being very important and crucial in the government, demands their full time and attention. The disqualification also prevents them from extending special favors to their own private business which comes under their official jurisdiction, and assures the public that they will be faithful and dedicated in the performance of their functions. Public office is public trust, so that it cannot be used for personal benefit and familial advantage. Thus, they shall strictly avoid conflict of interest in the conduct of their office.It should be noted that the Vice-President can be appointed as Member of the Cabinet and his appointment need not go through the Commission on Appointments. This is an exception to the above prohibition, of which its purpose is to give due reverence to the second highest office of the land and more importantly to give him a function other than being a mere President Reserve.3. Prohibition against Appointment of Relatives. Nepotism is prohibited by the Constitution. Nepotism happens when the President, during his tenure, appoints his spouse and relatives by consanguinity or affinity within the fourth civil degree as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries. Public office is not a property, nor can it be shared and passed as a matter of right to family members. The Philippines is not the kingdom of the President; his office is only entrusted to him by the people who are the sovereign rulers of the country and to whom he must serve with utmost responsibility, integrity, loyalty, and efficiency.4. Prohibition against Midnight Appointments. Midnight appointments are also prohibited by the Constitution. Midnight appointment refers to presidential appointment after election but before assumption to office of the next President. Section 15, Article VII provides that two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments. This is essentially a limitation to the appointing power of the President. The purpose of the prohibition is to avoid using the Presidency for partisan considerations and for vote buying. It is also rude and unstatesman-like for an outgoing President to appoint within the said period so as to prevent the incoming President to exercise his prerogative of selecting his own set of officers.

Powers of the President

The President of the Philippines has specific powers provided in the Constitution, to wit: (1) appointing power; (2) power of control and supervision; (3) military power; (4) pardoning power; (5) diplomatic power; (6) residual power; (7) delegated power; and (8) veto power.1. Power of Appointment.(a) Meaning. Appointment is one mode of putting a person in office in which an appointing authority selects a person to discharge the functions of an appointive office. The power is exercised by the President, although legislative and judicial officials can also appoint their respective personnel.(b) Types of Appointment. There are four types of presidential appointments:(i) Appointment by an Acting President ;(ii) Temporary appointment ;(iii) Regular appointment ; and(iv) Ad interim appointment.(c) Appointments Distinguished from Each Other. Appointment by an Acting President may be revoked by the elected President within ninety days from his assumption or reassumption of office. If it were not revoked, the appointment remains effective, as if it were the President-elect who made the appointment. Temporary appointment is appointment made prior a presidential election that is subject to a possible cancellation or revocation of the President-elect. As an exception to midnight appointments, temporary appointments may be extended by an outgoing President to executive positions when continued vacancies therein will prejudice public service or endanger public safety. Regular appointment is presidential appointment made with or without the consent of the Commission on Appointments. And Ad interim appointment is appointment made during the recess of the Congress, whether voluntary or compulsory, which is effective until disapproved by the Commission on Appointments or until the next adjournment of the Congress.(d) Ad Interim Appointment vs. Regular Appointment. Ad interim appointment is different from regular appointment, in that the purpose of the former is to prevent hiatus or lull in government offices, while that of the latter is to simply fill an office in the ordinary course of business; an ad interim appointee immediately assumes office, while a regular appointee does not, since confirmation by the Commission on Appointments is still required. Moreover, an ad interim appointment is different from temporary appointment. Although the former is subject to the revocation of the Congress (through the Commission on Appointments), it is not temporary because it takes effect immediately and cannot be revoked or withdrawn by the President if the ad interim appointee is qualified. In fact, ad interim appointment is permanent and its subsequent disapproval does not change its nature. Lastly, an ad interim appointment is different from appointment in acting capacity, in that the former requires confirmation of the Commission on Appointments, while the latter does not; the former is permanent, while the latter is temporary; and the former is made during recess, while the latter in made either during recess or not.(e) Appointments Requiring Confirmation. Section 16, Article VII provides an exclusive list of Presidential appointees whose appointments require the confirmation of the Commission on Appointments. These officials are: (1) the department secretaries, ambassadors, other public ministers and consuls; (2) officers of the armed forces from the rank of colonel or naval captain; (3) other officers whose appointments are vested in him in the Constitution; (4) all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint; and (5) the heads of departments, agencies, commissions, boards, those lower in rank in the President. Members of the Constitutional Commissions and regular members of the Judicial and Bar Council are officers whose appointments are vested in him in the Constitution. The list is exclusive, thus, other appointments by the President do not require consent of the Commission on Appointments.The appointees are subject to the control of the President in line with the doctrine of the qualified political agency. The President has the power to change and set-aside their acts.2. Power of Control and Supervision.(a) Control. The President has control over all executive departments, bureaus, and offices; as chief administrator, he has the primary duty to ensure that the laws are faithfully executed. Power of control refers to the power of the President, being the Chief Executive, to alter, modify or set aside the acts of his subordinates and substitute his judgment for that of the latter. His subordinates include the Cabinet Members or heads of the executive departments, heads of bureaus and offices, and their subordinates and assistants. The Cabinet Members are alter egos of the President as enunciated in the doctrine of qualified political agency; thus, the President has the power to alter or set aside their acts. Moreover, the power of control is connected to the appointing power of the President. Just as he can put people to appointive positions, he can also investigate, discipline, suspend, and remove them when they become inefficient or corrupt.(b) Supervision. The power of control includes the power of supervision. The power of supervision refers to the authority to oversee a subordinate officer and to see to it that he performs his functions and duties in accordance with law. It generally includes the power to investigate. It must be noted that the power of control is broader than the power of supervision, since the former includes the latter. The President has power of supervision over local government units, in which he can investigate and see to it that they perform their duties in accordance to established laws. He does not, however, have power of control over them, so that he cannot change their acts or substitute his judgment for their judgment.3. Military Powers.The President is granted military powers, the primary purpose of which is to maintain civilian supremacy over the military. The power includes: (a) calling-out power; (b) power to suspend the privilege of the writ of habeas corpus; and (c) power to declare martial law.(a) President as Commander-in-Chief. Section 18, Article VII states that the President is the Commander-in-Chief of the armed forces of the Philippines, and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. As the highest civilian officer, the President is also the highest military authority. This is so because civilian authority should, at all times, be supreme over the military in the democratic, republican Philippines. The military is the single most power institution equipped by law to use violence and force. Thus, to prevent military takeover, the fundamental law makes a civilian the commander-in-chief of the military. Although the President lacks military training, the ideals of democracy dictate that he should possess the tremendous power of controlling and directing the military even in times of war. While he may delegate to, and ask advice from, military men, the ultimate authority to direct and call out the armed forces is with him. Not even the courts can question him in exercise of this prerogative of calling the armed forces to prevent or suppress lawless violence, invasion or rebellion.(b) Suspension of the Privilege of Habeas Corpus. Section 18, Article VII also expressly gives the President the power to suspend the privilege of the writ of habeas corpus. The writ of habeas corpus is a written order issued by the court directing a person detaining another to produce (habeas) the body (corpus) of the latter and to explain before the court his authority for detaining the latter. Habeas corpus is a special proceeding which provides speedy remedy for the immediate release of an unlawfully detained person. Thus, a person who was arrested and detained without a valid warrant may file a petition for habeas corpus for his immediate release, after the judge determines that there is no valid ground for his detention. Under Section 18, this privilege of habeas corpus may be suspended by the President in case of invasion or rebellion, and when public safety requires it. The rationale for such power is to allow the President to expediently reestablish peace and order by detaining apparent offenders without the hindrance or threat of their immediate release. Note, however, that what is suspended is the privilege, not the right to file the petition for habeas corpus. Thus, even when the President suspends the privilege, persons unlawfully detained may still file a petition for habeas corpus. Only the privilege of immediate release is suspended.(c) Martial Law. The power to declare martial law is likewise expressly granted in Section 18. Martial law, within the Constitutional context, means temporary military rule especially declared not to replace civilian authority but to help it recover in case of invasion or rebellion, and when public safety requires it. Martial law, unlike a military takeover, does not suspend the operation of the Constitution and guarantee for respect of human rights. It is not permanent; it is declared only for a limited duration, that is, for not more than sixty days. In addition, the President must also report in writing to the Congress within forty eight hours from proclamation, and the Congress may conduct special sessions even without the call of the President. As far as the courts are concerned, the military courts do not acquire jurisdiction over cases involving civilians if civil courts are still able to function. These constitutional limitations are intended to uphold democracy and civilian supremacy in the Philippines, as well as to prevent the rise of an abusive military regime that does not respect due process and takes for granted the liberties of the sovereign people.(d) Comparison of the Military Powers. To compare the military powers of the President, it must be noted that the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus are the greater powers since it curtails the freedoms and civil liberties of the citizens. The calling out power is said to be lesser or benign power, in that it has no such effect. Thus, the Constitution limits the former powers by making them susceptible to review by the courts, whereas the calling out power is exercised by the President with full discretion and wisdom as the commander-in-chief of armed forces, not subject to judicial review.4. Pardoning Power.The pardoning power of the President refers to the exercise of executive clemency. It includes: (a) pardon; (b) commutation; (c) reprieve; (d) amnesty; and (e) parole.(a) Pardon is an act of grace which exempts an individual from serving his sentence or punishment which the law inflicts for the crime he committed. It forgives the offender by not letting him pay for the crime he committed. For pardon to be given, a person must first be declared guilty of a crime by final judgment of the court, and the President thereafter extends pardon. Instead of making him serve his sentence, the President exempts him through his personal act of grace. What the convict is exempted from is criminal liability not civil liability.There are two kinds of pardon: absolute and conditional. Absolute pardon is one that absolves the convict from criminal liability without any conditions whatsoever, while condition pardon absolves the convict from criminal liability under the penalty of recommitment to prison in case any condition provided is violated.It must be remembered, however, that pardon cannot be granted in cases of impeachment; or in violations of election laws without favorable recommendation of the COMELEC; or in cases of legislative contempt or civil contempt; or can it restore forfeited public offices.(b) Commutation refers to reduction or mitigation of the penalty. For example, instead of serving ten years of imprisonment, reduction has the effect of reducing the penalty to five years, for instance, at the discretion of the President.(c) Reprieve refers to the postponement of sentence or stay of execution. This was applicable when death penalty was still effective. For instance, the execution of a death convict may be postponed by the President to another date if he extends reprieve.(d) Parole is probational release from imprisonment. It is given to a convict who has served the minimum sentence of his penalty and has acted in good behavior inside the penal institution. Parole does not fully restore the freedom of the parolee since he is still in the custody of the law although not in confinement.(e) Amnesty is an act of grace by the President extended to groups of persons who committed political offenses. It requires the concurrence of the legislature and puts into oblivion the offense itself. It is distinguished from pardon, in that: the former forgives political offenses (such as treason and rebellion) deemed expedient for the public welfare than prosecution of the same, while the latter forgives crimes against the peace of the state (such as homicide and murder); the former is usually given to groups of offenders, whereas the latter is given to an individual; the former requires concurrence of the Congress, while the latter does not; the former is a public act which the courts takes judicial notice, whereas the latter is a private act of the President which must be pleaded by the person pardoned for the court to take judicial notice; and the former looks backward and abolishes the criminal and civil liability of the offenders, while the latter looks forward and relieves only the criminal liability of the offender.5. Diplomatic Powers.The President has diplomatic powers because, as the head of the State, he is the spokesman of the nation on matters of external affairs. He may deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enters into treaties, and otherwise transact with the business of foreign relations, The Constitution, however, limits this power of the President, as it expressly states no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. Thus, if the President, for instance, enters into an international agreement with the United States of America for the establishment of civilian rights mutually benefiting the citizens of both countries, then on the part of the Philippines, least two-thirds of all the Members of the Senate must concur with the said international agreement.6. Residual Powers.The President, as the head of the State, is given residual powers. Under the presidential system, the President is not a mere symbolic head; he is the chief executive granted with powers, so broad to include even those not mentioned in the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on Executive Department and in scattered provisions of the Constitution. He has unstated powers called residual powers which are implied from the grant of executive powers and necessary for the exercise of his duties under the Constitution. It is called residual because it is whatever power which the legislature or the judiciary does not possess and which the President could, thus, legitimately exercise consistent with his functions. This is not to foster another dictatorship or an unbridled exercise of power as was experienced during the Marcos administration; nor is it a violation of the Constitutional intent to limit the specific powers of the President to avoid another abusive regime (since appropriate measures are already provided in the new Constitution). The grant of residual powers, rather, is just in recognition of the general grant of executive power to the President.7. Delegated Powers.As previously discussed, the Congress can delegate legislative powers to the President, among which are emergency powers (Section 23(2), Article VI) and tariff powers (Section 28(2), Article VI).8. Veto Power.The President exercises veto power in relation to his role of checking the power of the Congress. If he thinks that a bill enacted by Congress should be disapproved, he exercises his veto power and returns the same with his objections to the House of origin. As a general rule, the veto must pertain to the entire bill, so that he is not allowed to veto separate items of the bill. The exception, however, is item veto allowed in case of appropriation, revenue and tariff bill. The Constitution expressly provides that President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.

THE JUDICIARY AND THE JUDICIAL PROCESS

Judicial Power1. Meaning in General. In a broad sense, judicial power refers to the power of the different courts of justice to interpret and apply the laws in particular cases. Interpretation, on the one hand, refers to the process by which the court discovers the true meaning of the language used by the law. Its purpose is to give effect to the intent or spirit of the law. The application of the law, on the other, refers the process by which the court relates the pertinent legal provisions to the set of facts of a particular case.2. Strict Meaning. In a strict sense, the Constitution provides that judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The definition includes two aspects of judicial power: (a) duty to settle actual controversies; and (b) authority to determine if there is grave abuse of discretion.(a) The first aspect, settlement of actual controversies, is the traditional meaning of judicial power. In here, there exists an actual controversy which, if properly filed, the court has duty to settle. For an actual controversy to exist there must be a legally demandable or enforceable right which is violated by another who, in turn, has the correlative duty to respect it. If the other party asserts an opposite legal claim, then it becomes susceptible of judicial adjudication. A right is legally demandable or enforceable if it is recognized by law and enforceable before the courts. A right which has no basis in law cannot be enforced in the courts and violation of which does not produce an actual controversy. Thus, while a woman has a right to demand for financial support from the father of her son, she does not have the right to demand for marriage from a person who impregnated her because the right has no basis in law; the first can give rise to an actual controversy, while the other cannot.(b) The second aspect, determination of grave abuse of authority, is the expanded part of judicial power. It is said to be expanded because traditionally the courts cannot question the political acts of the other departments of the government (executive and legislative political departments). The courts can only settle justiciable questions or questions involving rights and laws, and not political questions or questions addressed to the wisdom or discretion of political departments. But with the expanded authority, the courts can now determine if the political departments gravely abused the exercise of their discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion refers to such capricious and arbitrary exercise of judgment as is equivalent, to the eyes of the law, to lack of jurisdiction and for it to be covered by judicial power, abuse of discretion must be palpably grave. Thus, the President and the Congress cannot escape the authority of the courts in determining whether or not their political acts are void, even if they invoke that their political acts are matters of political question. This is manifestly in line with the principle of checks and balances, and consequently, with the doctrine of separation (in the sense of collaboration) of powers.For example, the President is given the so-called calling out power which is a discretionary power solely vested in him. Generally, the courts cannot inquire in this and substitute it for its own decision since this is a political question. But if it can be shown that there is a grave abuse of discretion on the part of the President, it will be subject to judicial review. This is now the effect of the expanded power of the judiciary.3. Who Exercises Judicial Power. Section 1, Article VIII, states that judicial power is vested in one Supreme Court and in such lower courts as may be established by law. This means that the power to interpret and apply the laws in actual controversies is given to, first, the Supreme Court, and, second, to other/lower courts.4. Supreme Court and Other Lower Courts. There could only be one Supreme Court, and its supremacy puts finality to all legal disputes. The other courts are all lower than it, thus, they are referred as lower courts. Lower courts are also called statutory courts because they are created by the act of Congress. The only Constitutional court is the Supreme Court, while statutory courts include the Court of Appeals, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court, Municipal Circuit Trial Court, Sandiganbayan, and Court of Tax Appeals, among others. The Court of Appeals, Regional Trial Courts, Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit Trial Court are regular courts created by the Judiciary Reorganization Law (as amended). Sandiganbayan and the Court of Tax Appeals are special courts respectively created by P.D. No. 1606 and R.A. No. 1125 (as amended). These courts comprise the judicial department which exercises judicial power.Power of Judicial Review1. Meaning. The courts also have the power of judicial review or the power to test the validity or constitutionality of the legislative and executive acts, such as treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation. It is an aspect of judicial power, in that it is essentially derived from the duty of the court to settle controversies between conflicting parties by applying the appropriate law. The applicable law may be the Constitution or some appropriate statute; in case of conflict between the two, the Constitution must prevail, and the statute which is not in accordance with it must be stricken out, or at least some parts of it. The Constitution is the fundamental law and therefore all the acts or laws passed by the government must be in accordance with it.2. Requisites. The requisites of judicial review are: (a) there must be an actual controversy; (b) the question of constitutionality must be raised by the proper party; (c) the question is raised at the earliest opportune time; and (d) the resolution of the constitutional question is the main issue.3. Explanatory Example. Pedro is running for reelection for his third term as congressman. However, the Congress passed a law prohibiting reelection for the third term. Apparently, the statute is in conflict with the Constitution which allows reelection of a congressman for his third term. He questions the validity of the statute. Judicial review is proper in this case. There is an actual controversy between Pedro and the government. He likewise has a legal standing because he has a personal and substantial interest in the case such that he will be directly benefited or injured by the decision to the case. The question was raised in the earliest possible time and the resolution of the constitutional question is the main issue.

Judicial IndependenceThe Judicial Department plays an indispensable role in the government as the administrator of justice. The government and consequently the State will not survive without the judiciary. It preserves the cohesiveness of the different governmental organs, always seeing to it that they function in accordance with the Constitution. And inasmuch as the Philippines is a government of laws and not of men, the judiciary protects the very essence of democracy being guardian of rights and legal processes. Thus, in order for the judiciary to function effectively and impartially, the Constitution provides safeguards for its independence, to wit:(1) The Supreme Court, as a constitutional body, cannot be abolished by law passed by the Congress;(2) Members of the Supreme Court can only be removed through impeachment;(3) The Supreme Court cannot be deprived of its minimum and appellate jurisdiction; appellate jurisdiction may not be increased without its advice or concurrence;(4) The Supreme Court has administrative supervision over all inferior courts and personnel;(5) It has exclusive power to discipline judges/justices of inferior courts;(6) Members of the judiciary have security of tenure;(7) Members of the judiciary may not be designated to any agency performing quasi-judicial or administrative functions;(8) Salaries of judges may not be reduced;(9) The judiciary enjoys fiscal autonomy;(10) The Supreme Court alone can initiate the Rules of Court;(11) It alone may order temporary detail of judges; and(12) It can appoint all officials and employees of the judiciary.

Jurisdiction1. Meaning. Jurisdiction is the power and authority of the court to hear and decide cases. Judicial power is exercised by the various courts within their respective jurisdictions, so that if judicial power is exercised without or in excess of jurisdiction, then the decisions of the courts are said to be null and void.2. Role of Congress. The various courts have their respective jurisdiction. Each jurisdiction is defined, prescribed, and apportioned by the Congress, except that of the Supreme Court whose jurisdiction (as enumerated in Section 5, Article VIII) is Constitutionally prescribed so that it cannot be lessened or taken away by the Congress.3. Kinds of Jurisdiction. Jurisdiction could be general or limited, original or appellate, and exclusive or concurrent. On the one hand, a court has a general jurisdiction when it is empowered to hear and decide all disputes filed before it except those falling in the jurisdiction of other courts; on the other hand, a court is said to have a limited jurisdiction if it can hear and decide specific cases only. Example of a court of general jurisdiction is the Regional Trial Court, and an example of a court of limited jurisdiction is the Court of Tax Appeals. Moreover, a court has an original jurisdiction, on the one hand, if it is empowered to hear and decide cases filed for the first time, whereas a court has appellate jurisdiction, on the other, if it can review a decision rendered by a lower court. The Municipal Trial Court, for instance, has original jurisdiction over forcible entry cases, while the Regional Trial Court has appellate jurisdiction to review the decisions of the Municipal Trial Court. And lastly, a court has exclusive jurisdiction if it alone has authority to hear and decide a case filed before it, while it has concurrent jurisdiction if other courts can hear and decide a case which could be filed before it. For example, a Regional Trial Court acting as Family Courts has exclusive jurisdiction over family cases, whereas it (Regional Trial Court) has current jurisdiction with the Court of Appeals and Supreme Court over habeas corpus cases.

Qualifications and Tenure1. Qualifications of Members of the Supreme Court. Section 7(1), Article VIII provides the qualifications of a Member of the Supreme Court or any lower collegiate court: (a) he must be a natural-born citizen of the Philippines; (b) at least forty years of age; (c) must have been a judge of a lower court or engaged in the practice of law in the Philippines for fifteen years or more; and (d) must be a person of proven competence, integrity, probity, and independence. The qualifications of judges in lower courts shall be prescribed by Congress, but the qualifications must include Philippine citizenship and membership in the Philippine Bar.2. Tenure. Justices and judges can hold office until they reach the age of seventy or become incapacitated to discharge the duties of their office. They must be in good behavior during their tenure; otherwise they (judges) may be disciplined or dismissed by the Supreme Court (sitting en banc).

Composition of the Supreme Court1. Composition. The Supreme Court is composed of fifteen members: a Chief Justice and fourteen Associate Justices. Any vacancy must be filled within ninety days from its occurrence.2. How Cases are Heard. In hearing cases, the Supreme Court may either sit en banc or in division of three, five, or seven Members. On the one hand, if it sits en banc, majority of the members who actually took part in the deliberations of the case must concur or come up with the same vote, in order to resolve the case. En banc cases include those involving constitutionality of a treaty, international or executive agreement, or law, those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations. Also, only the Court sitting en banc can modify or reverse a doctrine or principle which it itself laid down. Discipline and dismissal of judges are likewise decided by the Court sitting en banc.On the other hand, if the Court sits in division, at least three members must take part in the deliberations and hearings of the case, and must have the same vote thereon in order to resolve the case. If the required number is not obtained, the case shall be decided en banc. For example, if the Court sits in division of seven, then at least three of the members must actually deliberate the case and have the same stand thereon. If only two concurred or have the same vote, then the case will now be decided by the Court en banc, meaning majority of all the fifteen Justices must take part in the deliberations and majority of those who took part must have the same stand on the case. Nonetheless, if Court sits in division of three, all the members must take part in the deliberations and come up with the same vote in order to resolve the case. This is because the at least three members requirement must also be followed.3. Prohibitions. It must be noted that the Members of the Supreme Court and the lower courts cannot be designated to any agency performing quasi-judicial or administrative functions. An agency is said to perform a quasi-judicial function if it acts like a court in that it hears and decides cases even if it is not a court. Administrative agencies are under the executive branch and may be delegated quasi-judicial powers in deciding specific cases which it could competently and efficiently resolve. Justices and judges cannot be designated to these agencies in accordance with the principle of separation of powers. If they are allowed to be designated to administrative agencies, then they are likewise performing executive function, thus violating the said principle.

Judicial and Bar Council1. Meaning. The Judicial and Bar Council (JBC) is a constitutional body under the supervision of the Supreme Court that has the principal function of recommending appointees to the Judiciary. As was previously discussed, the Justices or Members of the Supreme Court and judges of the lower courts are among the officials who are appointed by the President. For their appointments to be valid, they must first be nominated by the JBC. For every vacant seat in the judiciary, the Council prepares a list of at least three nominees from which the President shall select and appoint. Manifestly, this is form of constitutional check on the appointing power of the President which is already deemed sufficient even without the confirmation of the Commission on Appointments. Thus, if there is a vacancy for judgeship in a court, the JBC must first provide a list of at least three nominees. From the list the President shall select whom he shall appoint.2. Composition. The JBC is composed of seven members: (a) the Chief Justice as ex officio Chairman; (b) the Secretary of Justice as an ex officio member; (c) a representative of the Congress as ex officio member; (d) a representative of the Integrated Bar; (e) a professor of law; (f) a retired Member of the Supreme Court; and (g) a representative of the private sector. The ex officio members are the Chief Justice, Secretary of Justice, and representative of the Congress. The four others are called regular members. The ex officio members, on the one hand, are those who by reason of their office are also members of the Council. The regular members, on the other, are appointed by the President for a term of four years with the consent of the Commission on Appointments. The Secretary of the Council, who shall be in-charge with the records keeping, is the Clerk of the Supreme Court.Powers of the Supreme CourtThe powers of the Supreme Court are expressly provided in Section 5, Article VIII. Its powers are classified into: (1) its original jurisdiction; (2) its appellate jurisdiction; (3) power to temporarily assign judges; (4) power to change venue; (5) rule-making power; (6) power to appoint court personnel; and (7) administrative supervision over lower courts.1. Original jurisdiction means the authority to settle cases filed for the first time. Among the cases which can be filed and settled for the first time in the Supreme Court are, first, cases affecting ambassadors, other public ministers and consuls, and, second, petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.The first set of cases involves diplomatic agents, who under international law are considered representatives of the States where they are nationals. An ambassador, being a representative or extension of a sovereign State, has immunity from suits in the receiving state. The immunity is based on the international law doctrine of State immunity and the equality of sovereign states. For example, the ambassador of U.S. cannot be sued for a criminal offense committed in the Philippines, unless the immunity or privilege is waived. In here the Philippines is the receiving State and the ambassador is a representative of U.S. Note, however, Filipino ambassadors are not immune from suits here in the Philippines. A consul, likewise, although a diplomatic agent, has no diplomatic immunity. Nevertheless, all cases involving these diplomats, ambassadors, public ministers and consuls, may be heard for the first time in the Supreme Court.The second set of cases involves special civil actions (certiorari, prohibition, mandamus, and quo warranto) and a special proceeding (habeas corpus). The Rules of Court provide for their definition and the manner of their filing.(a) Certiorari is a special civil action which is filed by a person who is aggrieved by any tribunal, board or officer exercising judicial or quasi-judicial functions that had acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no plain and speedy remedy in the ordinary course of law. Its purpose is to invalidate a judgment rendered without or in excess of authority or jurisdiction.(b) Prohibition is a special civil action filed by a person aggrieved in the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, which proceedings are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no plain and speedy remedy in the ordinary course of law. Its purpose is to stop a tribunal or person from further engaging in proceedings done without or in excess of authority or jurisdiction.(c) Mandamus is a special civil action filed by a person aggrieved by any tribunal, corporation, board, officer or person, who unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, there is no plain, adequate, and speedy remedy in the ordinary course of law. Its purpose is to compel the performance of a ministerial duty or duty mandated by law to be performed under certain circumstances.(d) Quo Warranto is a special civil action instituted by the Philippine Government against a person, public officer, or association which usurps, unlawfully holds, intrudes into an office, position, or franchise. Its purpose is to recover an office or position from a usurper or from an officer, who has forfeited his office, and a franchise from a false corporation (one without legal personality).(e) Habeas corpus is a special proceeding the purpose of which is to grant speedy remedy for the release of a person illegally confined or detained, or for the grant of rightful custody over a child or person to someone from whom the custody is withheld or to whom it rightfully belongs.2. Appellate jurisdiction refers to the authority to review decisions of a lower court. The Supreme Court has appellate jurisdiction over final judgments and orders of lower courts in:(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.(c) All cases in which the jurisdiction of any lower court is in issue.(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.(e) All cases in which only an error or question of law is involved.The review of cases involves the right to appeal. As a general rule, the right to appeal is only statutory, meaning it is the Congress, by means of a statute, that determines whether a person can appeal an adverse decision of a lower court to a higher court. However, the present provision dealing with the appellate jurisdiction of the Supreme Court is not statutory but constitutional, meaning the Congress cannot diminish or lessen the Courts jurisdiction and consequently prevent a person from appealing thereto. Thus, persons adversely affected by final judgments and decrees of lower courts involving the above enumerated cases may file an appeal or certiorari in the Supreme Court if all the requirements are met.It could be gleaned also from the present provision that the power of judicial review is exercised also by lower courts. The constitutionality or validity of laws and decrees may be passed upon by the lower courts whose decisions may be subjected to review by the Supreme Court upon filing of the proper party.Important to note also that only cases involving error or question of law are appealable to the Supreme Court, except some cases. If it involves questions of fact or a mixture of fact and law, the case cannot be elevated to Supreme Court. On the one hand, a case involves a question of fact if it requires the determination of the truth or falsity of a fact in dispute as alleged in the pleadings of the parties. For example, if the issue of the case is whether or not the document is genuine, then it involves a question of fact. On the other hand, a case involves a question of law if it does not involve the determination of the truth or falsity of a fact but only