Art.

7
EXECUTIVE DEPARTMENT
Section 1. The executive power shall
be vested in the President of the
Philippines.
Section 2. No person may be elected
President unless he is a natural-born
citizen of the Philippines, a registered
voter, able to read and write, at least
forty years of age on the day of the
election, and a resident of the
Philippines for at least ten years
immediately preceding such election.
Section 3. There shall be a VicePresident who shall have the same
qualifications and term of office and
be elected with, and in the same
manner, as the President. He may be
removed from office in the same
manner as the President.
The Vice-President may be appointed
as a Member of the Cabinet. Such
appointment requires no confirmation.
Section 4. The President and the VicePresident shall be elected by direct
vote of the people for a term of six
years which shall begin at noon on the
thirtieth day of June next following the
day of the election and shall end at
noon of the same date, six years
thereafter. The President shall not be
eligible for any re-election. No person
who has succeeded as President and
has served as such for more than four
years shall be qualified for election to
the same office at any time.
No Vice-President shall serve for more
than two successive terms. Voluntary
renunciation of the office for any
length of time shall not be considered
as an interruption in the continuity of
the service for the full term for which
he was elected.
Unless otherwise provided by law, the
regular election for President and VicePresident shall be held on the second
Monday of May.
The returns of every election for
President and Vice-President, duly
certified by the board of canvassers of
each province or city, shall be
transmitted to the Congress, directed
to the President of the Senate. Upon
receipt of the certificates of canvass,

the President of the Senate shall, not

later than thirty days after the day of
the election, open all the certificates in
the presence of the Senate and the
House of Representatives in joint
public session, and the Congress, upon
determination of the authenticity and
due execution thereof in the manner
provided by law, canvass the votes.
The person having the highest number
of votes shall be proclaimed elected,
but in case two or more shall have an
equal and highest number of votes,
one of them shall forthwith be chosen
by the vote of a majority of all the
Members of both Houses of the
Congress, voting separately.
The Congress shall promulgate its
rules for the canvassing of the
certificates.
The Supreme Court, sitting en banc,
shall be the sole judge of all contests
relating to the election, returns, and
qualifications of the President or VicePresident, and may promulgate its
rules for the purpose.
Section 5. Before they enter on
the execution of their office, the
President, the Vice-President, or
the Acting President shall take
the following oath or affirmation:
I do solemnly swear [or affirm]
that
I
will
faithfully
and
conscientiously fulfill my duties
as President [or Vice-President or
Acting
President]
of
the
Philippines, preserve and defend
its Constitution, execute its laws,
do justice to every man, and
consecrate myself to the service
of the Nation. So help me
God. [In case of affirmation, last
sentence will be omitted].
Section 6. The President shall have an
official residence. The salaries of the
President and Vice-President shall be
determined by law and shall not be
decreased during their tenure. No
increase in said compensation shall
take effect until after the expiration of
the term of the incumbent during
which such increase was approved.
They shall not receive during their
tenure any other emolument from the
Government or any other source.

Section 7. The President-elect and the

Vice President-elect shall assume
office at the beginning of their terms.
If the President-elect fails to qualify,
the Vice President-elect shall act as
President until the President-elect shall
have qualified.
If a President shall not have been
chosen, the Vice President-elect shall
act as President until a President shall
have been chosen and qualified.
If at the beginning of the term of the
President, the President-elect shall
have died or shall have become
permanently
disabled,
the
Vice
President-elect
shall
become
President.
Where no President and Vice-President
shall have been chosen or shall have
qualified, or where both shall have
died or become permanently disabled,
the President of the Senate or, in case
of his inability, the Speaker of the
House of Representatives, shall act as
President until a President or a VicePresident shall have been chosen and
qualified.
The Congress shall, by law, provide for
the manner in which one who is to act
as President shall be selected until a
President or a Vice-President shall
have qualified, in case of death,
permanent disability, or inability of the
officials mentioned in the next
preceding paragraph.
Section 8. In case of death, permanent
disability, removal from office, or
resignation of the President, the VicePresident shall become the President
to serve the unexpired term. In case of
death, permanent disability, removal
from office, or resignation of both the
President and Vice-President, the
President of the Senate or, in case of
his inability, the Speaker of the House
of Representatives, shall then act as
President until the President or VicePresident shall have been elected and
qualified.
The Congress shall, by law, provide
who shall serve as President in case of
death,
permanent
disability,
or
resignation of the Acting President. He
shall serve until the President or the
Vice-President shall have been elected
and qualified, and be subject to the
same restrictions of powers and

disqualifications
President.

as

the

Acting

Section 9. Whenever there is a

vacancy in the Office of the VicePresident during the term for which he
was elected, the President shall
nominate a Vice-President from among
the Members of the Senate and the
House of Representatives who shall
assume office upon confirmation by a
majority vote of all the Members of
both Houses of the Congress, voting
separately.
Section 10. The Congress shall, at ten
oclock in the morning of the third day
after the vacancy in the offices of the
President and Vice-President occurs,
convene in accordance with its rules
without need of a call and within
seven days, enact a law calling for a
special election to elect a President
and a Vice-President to be held not
earlier than forty-five days nor later
than sixty days from the time of such
call. The bill calling such special
election shall be deemed certified
under paragraph 2, Section 26, Article
VI of this Constitution and shall
become law upon its approval on third
reading
by
the
Congress.
Appropriations for the special election
shall be charged against any current
appropriations and shall be exempt
from the requirements of paragraph 4,
Section 25, Article VI of this
Constitution. The convening of the
Congress cannot be suspended nor
the special election postponed. No
special election shall be called if the
vacancy
occurs
within
eighteen
months before the date of the next
presidential election.
Section 11. Whenever the President
transmits to the President of the
Senate and the Speaker of the House
of
Representatives
his
written
declaration that he is unable to
discharge the powers and duties of his
office, and until he transmits to them a
written declaration to the contrary,
such powers and duties shall be
discharged by the Vice-President as
Acting President.
Whenever a majority of all the
Members of the Cabinet transmit to
the President of the Senate and to the
Speaker
of
the
House
of
Representatives
their
written
declaration that the President is
unable to discharge the powers and
duties of his office, the Vice-President

shall immediately assume the powers

and duties of the office as Acting
President.
Thereafter,
when
the
President
transmits to the President of the
Senate and to the Speaker of the
House of Representatives his written
declaration that no inability exists, he
shall reassume the powers and duties
of his office. Meanwhile, should a
majority of all the Members of the
Cabinet transmit within five days to
the President of the Senate and to the
Speaker
of
the
House
of
Representatives,
their
written
declaration that the President is
unable to discharge the powers and
duties of his office, the Congress shall
decide the issue. For that purpose, the
Congress shall convene, if it is not in
session, within forty-eight hours, in
accordance with its rules and without
need of call.
If the Congress, within ten days after
receipt of the last written declaration,
or, if not in session, within twelve days
after it is required to assemble,
determines by a two-thirds vote of
both Houses, voting separately, that
the President is unable to discharge
the powers and duties of his office, the
Vice-President shall act as President;
otherwise, the President shall continue
exercising the powers and duties of his
office.
Section 12. In case of serious illness of
the President, the public shall be
informed of the state of his health. The
members of the Cabinet in charge of
national security and foreign relations
and the Chief of Staff of the Armed
Forces of the Philippines, shall not be
denied access to the President during
such illness.
Section 13. The President, VicePresident, the Members of the
Cabinet, and their deputies or
assistants shall not, unless otherwise
provided in this Constitution, hold any
other office or employment during
their tenure. They shall not, during
said tenure, directly or indirectly,
practice
any
other
profession,
participate in any business, or be
financially interested in any contract
with, or in any franchise, or special
privilege granted by the Government
or any subdivision, agency, or
instrumentality
thereof,
including
government-owned
or
controlled
corporations or their subsidiaries. They

shall strictly avoid conflict of interest

in the conduct of their office.
The
spouse
and
relatives
by
consanguinity or affinity within the
fourth civil degree of the President
shall not, during his tenure, be
appointed
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.
Section 14. Appointments extended by
an Acting President shall remain
effective, unless revoked by the
elected President, within ninety days
from his assumption or reassumption
of office.
Section 15. 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, except temporary
appointments to executive positions
when continued vacancies therein will
prejudice public service or endanger
public safety.
Section 16. The President shall
nominate and, with the consent of the
Commission on Appointments, appoint
the
heads
of
the
executive
departments,
ambassadors,
other
public ministers and consuls, or
officers of the armed forces from the
rank of colonel or naval captain, and
other officers whose appointments are
vested in him in this Constitution. He
shall also appoint all other officers of
the Government whose appointments
are not otherwise provided for by law,
and those whom he may be authorized
by law to appoint. The Congress may,
by law, vest the appointment of other
officers lower in rank in the President
alone, in the courts, or in the heads of
departments, agencies, commissions,
or boards.
The President shall have the power to
make appointments during the recess
of the Congress, whether voluntary or
compulsory, but such appointments
shall
be
effective
only
until
disapproved by the Commission on
Appointments or until the next
adjournment of the Congress.
Section 17. The President shall have
control
of
all
the
executive

departments, bureaus, and offices. He

shall ensure that the laws be faithfully
executed.
Section 18. The President shall be the
Commander-in-Chief of all 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. In case of invasion or
rebellion, when the public safety
requires it, he may, for a period not
exceeding sixty days, suspend the
privilege of the writ of habeas
corpus or place the Philippines or any
part thereof under martial law. Within
forty-eight
hours
from
the
proclamation of martial law or the
suspension of the privilege of the writ
of habeas corpus, the President shall
submit a report in person or in writing
to the Congress. The Congress, voting
jointly, by a vote of at least a majority
of all its Members in regular or special
session,
may
revoke
such
proclamation or suspension, which
revocation shall not be set aside by
the President. Upon the initiative of
the President, the Congress may, in
the same manner, extend such
proclamation or suspension for a
period to be determined by the
Congress, if the invasion or rebellion
shall persist and public safety requires
it.
The Congress, if not in session, shall,
within twenty-four hours following
such proclamation or suspension,
convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an
appropriate proceeding filed by any
citizen, the sufficiency of the factual
basis of the proclamation of martial
law or the suspension of the privilege
of the writ of habeas corpus or the
extension
thereof,
and
must
promulgate its decision thereon within
thirty days from its filing.
A state of martial law does not
suspend
the
operation
of
the
Constitution,
nor
supplant
the
functioning of the civil courts or
legislative assemblies, nor authorize
the conferment of jurisdiction on
military courts and agencies over
civilians where civil courts are able to
function, nor automatically suspend
the privilege of the writ of habeas corpus.

The suspension of the privilege of the writ

of habeas corpus shall apply only to persons
judicially charged for rebellion or offenses
inherent in, or directly connected with, invasion.
During the suspension of the privilege of the
writ of habeas corpus, any person thus arrested
or detained shall be judicially charged within
three days, otherwise he shall be released.
Section 19. Except in cases of impeachment, or
as otherwise provided in this Constitution, the
President may grant reprieves, commutations,
and pardons, and remit fines and forfeitures,
after conviction by final judgment.
He shall also have the power to grant amnesty
with the concurrence of a majority of all the
Members of the Congress.
Section 20. The President may contract or
guarantee foreign loans on behalf of the
Republic of the Philippines with the prior
concurrence of the Monetary Board, and subject
to such limitations as may be provided by law.
The Monetary Board shall, within thirty days
from the end of every quarter of the calendar
year, submit to the Congress a complete report
of its decision on applications for loans to be
contracted or guaranteed by the Government or
government-owned and controlled corporations
which would have the effect of increasing the
foreign debt, and containing other matters as
may be provided by law.
Section 21. 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.
Section 22. The President shall submit to the
Congress, within thirty days from the opening of
every regular session as the basis of the general
appropriations bill, a budget of expenditures and
sources of financing, including receipts from
existing and proposed revenue measures.
Section 23. The President shall address the
Congress at the opening of its regular session.
He may also appear before it at any other time.
ARTICLE VIII
JUDICIAL DEPARTMENT
Section 1. The judicial power shall be vested in
one Supreme Court and in such lower courts as
may be established by law.
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.
Section 2. The Congress shall have the power to
define, prescribe, and apportion the jurisdiction
of the various courts but may not deprive the
Supreme Court of its jurisdiction over cases
enumerated in Section 5 hereof.
No law shall be passed reorganizing the
Judiciary when it undermines the security of
tenure of its Members.
Section 3. The Judiciary shall enjoy fiscal
autonomy. Appropriations for the Judiciary may
not be reduced by the legislature below the
amount appropriated for the previous year and,
after approval, shall be automatically and
regularly released.
Section 4. (1) The Supreme Court shall be
composed of a Chief Justice and fourteen
Associate Justices. It may sit en banc or in its
discretion, in division of three, five, or seven
Members. Any vacancy shall be filled within
ninety days from the occurrence thereof.
(2) All cases involving the constitutionality of a
treaty, international or executive agreement, or
law, which shall be heard by the Supreme
Court en banc, and all other cases which under
the Rules of Court are required to be heard en
banc,
including
those
involving
the
constitutionality, application, or operation of
presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations,
shall be decided with the concurrence of a
majority of the Members who actually took part
in the deliberations on the issues in the case and
voted thereon.
(3) Cases or matters heard by a division shall be
decided or resolved with the concurrence of a
majority of the Members who actually took part
in the deliberations on the issues in the case and
voted thereon, and in no case without the
concurrence of at least three of such Members.
When the required number is not obtained, the
case shall be decided en banc: Provided, that no
doctrine or principle of law laid down by the
court in a decision rendered en banc or in
division may be modified or reversed except by
the court sitting en banc.
Section 5. The Supreme Court shall have the
following powers:

(1) Exercise original jurisdiction over cases

affecting ambassadors, other public ministers
and consuls, and over petitions for certiorari,
prohibition, mandamus, quo
warranto,
and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on
appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders
of lower courts in:
(a) All cases in which the constitutionality or
validity of any treaty, international or executive
agreement,
law,
presidential
decree,
proclamation, order, instruction, ordinance, or
regulation is in question.
(b) All cases involving the legality of any tax,
impost, assessment, or toll, or any penalty
imposed in relation thereto.
(c) All cases in which the jurisdiction of any
lower court is in issue.
(d) All criminal cases in which the penalty
imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question
of law is involved.
(3) Assign temporarily judges of lower courts to
other stations as public interest may require.
Such temporary assignment shall not exceed six
months without the consent of the judge
concerned.
(4) Order a change of venue or place of trial to
avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection
and enforcement of constitutional rights,
pleading, practice, and procedure in all courts,
the admission to the practice of law, the
integrated bar, and legal assistance to the
underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not
diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasijudicial bodies shall remain effective unless
disapproved by the Supreme Court.
(6) Appoint all officials and employees of the
Judiciary in accordance with the Civil Service
Law.

Section 6. The Supreme Court shall have

administrative supervision over all courts and
the personnel thereof.
Section 7. (1) No person shall be appointed
Member of the Supreme Court or any lower
collegiate court unless he is a natural-born
citizen of the Philippines. A Member of the
Supreme Court must be at least forty years of
age, and must have been for fifteen years or
more, a judge of a lower court or engaged in the
practice of law in the Philippines.
(2) The Congress shall prescribe the
qualifications of judges of lower courts, but no
person may be appointed judge thereof unless he
is a citizen of the Philippines and a member of
the Philippine Bar.
(3) A Member of the Judiciary must be a person
of proven competence, integrity, probity, and
independence.
Section 8. (1) A Judicial and Bar Council is
hereby created under the supervision of the
Supreme Court composed of the Chief Justice
as ex officio Chairman, the Secretary of Justice,
and a representative of the Congress as ex
officio Members, a representative of the
Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a
representative of the private sector.
(2) The regular members of the Council shall be
appointed by the President for a term of four
years with the consent of the Commission on
Appointments. Of the Members first appointed,
the representative of the Integrated Bar shall
serve for four years, the professor of law for
three years, the retired Justice for two years, and
the representative of the private sector for one
year.
(3) The Clerk of the Supreme Court shall be the
Secretary ex officio of the Council and shall
keep a record of its proceedings.
(4) The regular Members of the Council shall
receive such emoluments as may be determined
by the Supreme Court. The Supreme Court shall
provide in its annual budget the appropriations
for the Council.
(5) The Council shall have the principal function
of recommending appointees to the Judiciary. It
may exercise such other functions and duties as
the Supreme Court may assign to it.

Section 9. The Members of the Supreme Court

and judges of the lower courts shall be appointed
by the President from a list of at least three
nominees prepared by the Judicial and Bar
Council for every vacancy. Such appointments
need no confirmation.
For the lower courts, the President shall issue
the appointments within ninety days from the
submission of the list.
Section 10. The salary of the Chief Justice and
of the Associate Justices of the Supreme Court,
and of judges of lower courts, shall be fixed by
law. During their continuance in office, their
salary shall not be decreased.
Section 11. The Members of the Supreme Court
and judges of lower courts shall hold office
during good behavior until they reach the age of
seventy years or become incapacitated to
discharge the duties of their office. The Supreme
Court en banc shall have the power to discipline
judges of lower courts, or order their dismissal
by a vote of a majority of the Members who
actually took part in the deliberations on the
issues in the case and voted thereon.
Section 12. The Members of the Supreme Court
and of other courts established by law shall not
be designated to any agency performing quasijudicial or administrative functions.
Section 13. The conclusions of the Supreme
Court in any case submitted to it for decision en
banc or in division shall be reached in
consultation before the case is assigned to a
Member for the writing of the opinion of the
Court. A certification to this effect signed by the
Chief Justice shall be issued and a copy thereof
attached to the record of the case and served
upon the parties. Any Member who took no part,
or dissented, or abstained from a decision or
resolution, must state the reason therefor. The
same requirements shall be observed by all
lower collegiate courts.
Section 14. No decision shall be rendered by any
court without expressing therein clearly and
distinctly the facts and the law on which it is
based.
No petition for review or motion for
reconsideration of a decision of the court shall
be refused due course or denied without stating
the legal basis therefor.

Section 15. (1) All cases or matters filed after

the effectivity of this Constitution must be
decided or resolved within twenty-four months
from date of submission for the Supreme Court,
and, unless reduced by the Supreme Court,
twelve months for all lower collegiate courts,
and three months for all other lower courts.
(2) A case or matter shall be deemed submitted
for decision or resolution upon the filing of the
last pleading, brief, or memorandum required by
the Rules of Court or by the court itself.
(3) Upon the expiration of the corresponding
period, a certification to this effect signed by the
Chief Justice or the presiding judge shall
forthwith be issued and a copy thereof attached
to the record of the case or matter, and served
upon the parties. The certification shall state
why a decision or resolution has not been
rendered or issued within said period.
(4) Despite the expiration of the applicable
mandatory period, the court, without prejudice
to such responsibility as may have been incurred
in consequence thereof, shall decide or resolve
the case or matter submitted thereto for
determination, without further delay.
Section 16. The Supreme Court shall, within
thirty days from the opening of each regular
session of the Congress, submit to the President
and the Congress an annual report on the
operations and activities of the Judiciary.
DOCTRINE OF OPERATIVE FACTS IN THE
RULE OF LAW
MARCH 2, 2015 / JUDGE ELIZA B. YU, LLM,
DCL
Acting on the Free Condom Law passed by
Congress that did not appropriate public funds
for it, President X issued a memorandum for the
funding of the free condoms to the Budget
Department that implemented it by releasing
P100 Million. The free condoms were
distributed to the local government units thru the
mayors who executed contracts with local
condom manufacturers due to insufficient
condom supplies. Consequently, the mayors
disbursed public funds in the amount of P50
Million each for the enforcement of the
contracts by transferring funding in one item in
their approved local budgets. In the Free
Condom Law, the mayors are required to put up
an office with two staff who will administer the
distribution of free condoms to the public. The

mayors followed this. Each of the mayor spent

P10 Million in a year for the creation of an
office and hired two staff who are paid salaries
regularly. Taxpayer Y challenged the
constitutionality of Free Condom Law and
alleged the illegality of the disbursement of
P100 Million by President X thru Budget Chief
XX because there was no appropriation by
Congress for it. The Supreme Court declared the
Free Condom Law unconstitutional. Taxpayer Y
sued all the Mayors who distributed the free
condoms using public funds.
Are the mayors, who invoked the Doctrine of
Operative Facts, civilly, criminally and
administratively liable? The answer is in the
affirmative.
In Planters Products, Inc. v. Fertiphil
Corporation, G.R. No. 166006, March 14, 2008,
the Supreme Court stated: The general rule is
that an unconstitutional law is void. It produces
no rights, imposes no duties and affords no
protection. It has no legal effect. It is, in legal
contemplation, inoperative as if it has not been
passed. The general rule is supported by Article
7 of the Civil Code, which provides:
ART. 7. Laws are repealed only by subsequent
ones, and their violation or non-observance shall
not be excused by disuse or custom or practice
to the contrary. When the courts declare a law to
be inconsistent with the Constitution, the former
shall be void and the latter shall govern.
The doctrine of operative fact, as an exception to
the general rule, only applies as a matter of
equity and fair play. It nullifies the effects of an
unconstitutional law by recognizing that the
existence of a statute prior to a determination of
unconstitutionality is an operative fact and may
have consequences which cannot always be
ignored. The past cannot always be erased by a
new judicial declaration. The doctrine is
applicable when a declaration of
unconstitutionality will impose an undue burden
on those who have relied on the invalid law.
Thus, it was applied to a criminal case when a
declaration of unconstitutionality would put the
accused in double jeopardy or would put in
limbo the acts done by a municipality in reliance
upon a law creating it. The operative fact
doctrine never validates or constitutionalizes an
unconstitutional law. Under the operative fact
doctrine, the unconstitutional law remains
unconstitutional, but the effects of the
unconstitutional law, prior to its judicial
declaration of nullity, may be left undisturbed as
a matter of equity and fair play. In short, the

operative fact doctrine affects or modifies only

the effects of the unconstitutional law, not the
unconstitutional law itself.
In CIR v. San Roque Power Corp., G.R. No.
187485, October 8, 2013: Administrative or
executive acts, orders and regulations shall be
valid only when they are not contrary to the laws
or the Constitution. The doctrine of operative
fact is an exception to the general rule, such that
a judicial declaration of invalidity may not
necessarily obliterate all the effects and
consequences of a void act prior to such
declaration (Republic v. Court of Appeals, G.R.
No. 79732, November 8, 1993).
In Serrano de Agbayani v. Philippine National
Bank, 148 Phil. 443, 447-448 (1971), the
application of the doctrine of operative fact was
discussed as follows: The decision now on
appeal reflects the orthodox view that an
unconstitutional act, for that matter an executive
order or a municipal ordinance likewise
suffering from that infirmity, cannot be the
source of any legal rights or duties. Nor can it
justify any official act taken under it. Its
repugnancy to the fundamental law once
judicially declared results in its being to all
intents and purposes a mere scrap of paper. As
the new Civil Code puts it: When the courts
declare a law to be inconsistent with the
Constitution, the former shall be void and the
latter shall govern. Administrative or executive
acts, orders and regulations shall be valid only
when they are not contrary to the laws of the
Constitution. It is understandable why it should
be so, the Constitution being supreme and
paramount. Any legislative or executive act
contrary to its terms cannot survive. Such a view
has support in logic and possesses the merit of
simplicity. It may not however be sufficiently
realistic. It does not admit of doubt that prior to
the declaration of nullity such challenged
legislative or executive act must have been in
force and had to be complied with. This is so
until after the judiciary, in an appropriate case,
declares its invalidity, it is entitled to obedience
and respect. Parties may have acted under it and
may have changed their positions. What could
be more fitting than that in a subsequent
litigation regard be had to what has been done
while such legislative or executive act was in
operation and presumed to be valid in all
respects. It is now accepted as a doctrine that
prior to its being nullified, its existence as a fact
must be reckoned with. This is merely to reflect
awareness that precisely because the judiciary is
the governmental organ which has the final say

on whether or not a legislative or executive

measure is valid, a period of time may have
elapsed before it can exercise the power of
judicial review that may lead to a declaration of
nullity. It would be to deprive the law of its
quality of fairness and justice then, if there be no
recognition of what had transpired prior to such
adjudication. In the language of an American
Supreme Court decision: The actual existence
of a statute, prior to such a determination of
unconstitutionality, is an operative fact and may
have consequences which cannot justly be
ignored. The past cannot always be erased by a
new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be
considered in various aspects, with respect to
particular relations, individual and corporate,
and particular conduct, private and official.
This language has been quoted with approval in
a resolution in Araneta v. Hill and the decision in
Manila Motor Co., Inc. v. Flores. An even more
recent instance is the opinion of Justice Zaldivar
speaking for the Court in Fernandez v. Cuerva
and Co., Clearly, for the operative fact doctrine
to apply, there must be a legislative or
executive measure, meaning a law or executive
issuance, that is invalidated by the court. From
the passage of such law or promulgation of such
executive issuance until its invalidation by the
court, the effects of the law or executive
issuance, when relied upon by the public in good
faith, may have to be recognized as valid.
Applying the Doctrine of Operative Facts, the
Free Condom Law remained unconstitutional
but the effects of the implementation of the Free
Condom Law prior to the declaration of their
nullity, such as the mayors receipt of the free
condoms coming from the P100 Million released
of public funds by the Budget Department thru
its Budget Chief XX in accordance to the
memorandum issued by President X are valid.
The mayors have no liability in accepting the
free condoms for distribution to the public.
Each of the mayor spent P10 Million in a year
for the creation of an office and hired two staff
who are paid salaries regularly pursuant to the
Free Condom Law, the same may be recognized
as valid and effective despite of the invalidity of
the law when it was declared as unconstitutional.
The Free Condom Law was void but the effects
of the implementation of this unconstitutional
law were left undisturbed as a matter of equity
and fair play to innocent people, like the mayors,
who may have relied on the presumed validity of
the Free Condom Law prior to the Courts
declaration of their unconstitutionality.

However, the mayors executed contracts with

local condom manufacturers due to insufficient
condom supplies and disbursed public funds for
the enforcement of the contracts in the amount
of P50 Million for each of them when the Free
Condom Law did not empower them to do so.
The Free Condom Law passed by Congress did
not appropriate public funds for it thus the
mayors have no legal basis to locally fund it.
Moreover, the mayors transferred the public
funding of an item in their local budgets to
finance the condom contracts. In doing so, the
mayors committed criminal acts that cannot be
obliterated by the Doctrine of Operative Facts.
Why is this so? Because the Doctrine of
Operative Facts rests upon the Principle of
Equity that cannot override the principle of
Supremacy of the Law. The criminal acts
committed by the mayors are punishable by law.
Equity is not a defense for the mayors to escape
their criminal liabilities that are defined in the
criminal statutes. Indeed, for all its conceded
merits, equity is available only in the absence of
law and not as its replacement. Equity is
described as justice without legality, which
simply means that it cannot supplant although it
may, as often happens, supplement the law
(Aguila v. Court of First Instance of Batangas,
160 SCRA 352, 359-360). To grant respondents
standing in the present case is to go against the
express language of the law. Equity cannot give
them this privilege. Equity can only supplement
the law, not supplant it (Tankiko et al. v. Cezar et
al., G.R. No. 131277. February 2, 1999). As to
the invocation of equity, we cannot, at this
instance, yield to such principle in the presence
of a law clearly applicable to the case. We
reiterate that the Supreme Court, while aware of
its equity jurisdiction, is first and foremost, a
court of law (National Housing Authority v.
Grace Baptist Church, G.R. No. 156437, March
1, 2004). While equity might tilt on the side of
one party, the same cannot be enforced so as to
overrule positive provisions of law in favor of
the other (BPI Family Savings Bank v. Sps.
Januario Antonio and Natividad Veloso, et al.,
G.R. No. 141974, 09 August 2004). Equity
cannot supplant or contravene the law (DBP v.
COA, G.R. No. 144516, February 11, 2004).
The rule must stand no matter how harsh it may
seem in the principle of Dura lex sed lex.
According to a Supreme Court in India, law
should prevail over equity and that judges
should not legislate as it would be violative of
the basic democratic principles. The courts
should not interpret rules on the basis of equity.

In other words, once we depart from the literal

rule, then any number of interpretations can be
put to a statutory provision, each judge having a
free play to put his own interpretation as he
likes. This would be destructive of judicial
discipline, and also the basic principle in a
democracy that it is not for the judge to legislate
as that is the task of elected representatives of
the people. Even if the literal interpretation
results in hardship or inconvenience, it has to be
followed. The full bench and single judge have
relied on equity, justice and good conscience,
rather than law. We are of the opinion that this
approach is incorrect. When there is a conflict
between law and equity, it is the law which is to
prevail. Equity can only supplement the law
when there is a gap in it, but it cannot supplant
the law.
Moreover, the mayors are presumed to know the
penal laws for surely, ignorance of the law
excuses no one from compliance therewith (See
Article 3 of the New Civil Code). Equity is not a
defense, so is ignorance of the law. Good faith is
a defense in the commission of mala in se
crimes defined by the Revised Penal Code. But
it is not a ground for the dismissal of a criminal
complaint during the preliminary investigation.
This is because the defense of good faith is
evidentiary in nature that should be threshed out
in a full blown trial. Good faith is not a defense
in the violation of mala prohibita special penal
laws involving graft crimes where the
prosecution has no burden of proof with respect
to the criminal intent of the offenders.
I - Two views on the effect of declaration of
unconstitutionality of a law:
1. Orthodox view - An unconstitutional law is no
law at all. It creates no office, it creates no
rights, it creates no obligation, it is not a source
of protection. It is stricken out of the statute
books.
It is treated as if it was never enacted at all.
2. Modern view (Operative Fact doctrine) - An
unconstitutional law is not stricken out of the
statute books. It remains there but the court
refuses to recognize it. This is because, before it
is declared unconstitutional, it enjoys the
presumption of constitutionality. At that time,
there may be parties who relied on the
provisions of that law. As to them it remains to
be valid. This is an operative fact that cannot be
denied. Because of this, the declaration of
unconstitutionality is not given retroactive
effect. It is always given prospective application.

II - Requisites before foreign military bases,

troops, or facilities may be allowed in the
Philippines (Section 25, Article XVIII, 1987
Constitution) like the Visiting Forces Agreement
(VFA) with the US.

Executive Agreements similar to treaties

except that they do not require legislative
concurrence.[4]

General Rule: No foreign military bases, troops,

or facilities may be allowed in the Philippines.

What is the distinction between a treaty and an

executive agreement?

Exception: They may be allowed provided that:

The difference between the two is sometimes

difficult of ready ascertainment.[5] Under
international law, there is no difference between
treaties and executive agreements in their
binding effect upon states concerned, as long as
the negotiating functionaries have remained
within their powers.[6] International law
continues to make no distinction between
treaties and executive agreements: they are
equally binding obligations upon nations.[7]

1. There must be a treaty duly concurred in by

the Senate;
2. When Congress so requires, the treaty must be
ratified by majority of the votes cast by the
people in a national referendum held for that
purpose; and
3. The treaty must be recognized also as a treaty
by the other contracting State.
Section 25, Article XVIII, 1987 Constitution, is
a special provision that applies to treaties
involving the presence of foreign military bases,
troops, or facilities in the Philippines, like the
VFA. Whereas Section 21, Article VII, 1987
Constitution, is a general provision that applies
to all kinds of treaties entered into by the
Philippines, regardless of subject matter, title or
designation. (Bayan v. Zamora)
All "Balikatan" Exercises held in several parts of
the Philippines are held under the auspices of the
VFA.
What is a treaty?
Under Philippine Laws, Treaties are
international agreements entered into by the
Philippines which require legislative
concurrence after executive ratification. This
term may include compacts like conventions,
declarations, covenants and acts.[1]
Under International Law, Treaty means an
international agreement concluded between
States in written form and governed by
international law, whether embodied in a single
instrument or in two or more related instruments
and whatever its particular designation.[2]
Not all international agreements are governed by
international law. The convention applies only to
those which are governed by the domestic law
of one of the parties or some other national law
chosen by the parties.[3]

What is an executive Agreement?

In our jurisdiction, we have recognized the

binding effect of executive agreements even
without the concurrence of the Senate or
Congress. Generally, treaties of any kind,
whether bilateral or multilateral, require Senate
concurrence[8] while executive agreements may
be validly entered into without such
concurrence.[9]
The members of the Constitutional Commission
acknowledged the distinction between a treaty
and an executive agreement during their
deliberations of Section 21 Article VII. One of
the issues in the discussions was trying to
identify the kind of international agreements that
require Senate concurrence.
Commissioner Joaquin Bernas made a
clarification by quoting from the decision of the
Supreme Court in the case of Commissioner of
Customs vs. Eastern Sea Trading:
The right of the executive to enter into binding
agreements without the necessity of subsequent
Congressional approval has been confirmed by
long usage. From the earliest days of our history,
we have entered into executive agreements
covering such subjects as commercial and
consular relations, most favored nation rights,
patent rights, trademark and copyright
protection, postal and navigation arrangements
and the settlement of claims. The validity of this
has never been seriously questioned by our
Courts.

Agreements with respect to the registration of

trademarks have been concluded by the
executive and various countries under the Act of

Congress of March 3, 1881 (21 Stat. 502) . . .

International agreements involving political
issues or changes of national policy and those
involving international agreements of a
permanent character usually take the form of
treaties. But international agreements
embodying adjustments of detail, carrying out
well established national policies and traditions
and those involving arrangements of a more or
less temporary nature usually take the form of
executive agreements.[10]
Commissioner Bernas further explained that
international agreements, which require Senate
concurrence, are those, which are permanent in
nature. Also, if it is with prior authorization from
Congress, it does not need subsequent
concurrence by Congress.[11]
The Department of Foreign Affairs in its press
release[12] said that in executive agreement,
there is no fundamental change in policy, nor
will there be need for legislation to fund the
agreement. It does not impinge on any existing
international legal obligation.

Adviser of the Department of Foreign Affairs

(DFA) and the Assistant Secretary on Legislative
Affairs and the Senate will be given opportunity
to comment on the nature of the agreement.
Consultation shall be made with the leadership
of the Senate. The Secretary of Foreign Affairs
shall make the proper recommendation to the
President.[14]
In 1997, Executive Order 459 was issued and
under Sec. 9 thereof, the DFA determines the
nature of an agreement. Said Executive Order is
silent if the determination by the DFA of the
nature of agreement can be overturned by the
President or not.
If asked which of the two issuances is
prevailing, as a rule, being a later act, E.O. 459
is controlling. However, newly appointed
Associate Justice of the Supreme Court Antonio
Eduardo Nachura, and prominent authors in
international law Jorge Coquia and Senator
Miriam Defensor Santiago (Chairman of the
Senate Committee on Foreign Relations before
adjournment of the 13th Congress) are of the
opinion that Memorandun Circular 89 is still
binding.[15]

What is the rationale for distinguishing a treaty

form an executive agreement?
What is the current framework for trade
negotiations?
The distinction between a treaty or international
agreement and an executive agreement is of
great significance in the Philippines because the
procedure followed in the process of ratification
is different.
If what is involved is a treaty, the concurrence
by at least two-thirds of all the Members of the
Senate is required.[13] On the other hand, if
what is involved is an executive, there is no such
requirement.

What is the procedure for determining whether

an agreement is a treaty or an executive
agreement?

a. Internal procedure within the Office of the

President and the DFA

In 1988, the Office of the President issued

Memorandum Circular 89 to set the guidelines
in case of conflict as to whether an agreement is
a treaty or an executive agreement. The Legal

a. Who has the power to negotiate or make

treaties?

The President has the power to make treaties

implicitly in the general grant of authority in
Section 1, Article VII that The executive power
is vested in the President of the Philippines, in
particular as this is applied in foreign relations.
[16]
By constitutional fiat and by the intrinsic nature
of his office, the President, as head of State, is
the sole organ and authority in the external
affairs of the country.[17] In many ways, the
President is the chief architect of the nations
foreign policy; his dominance in the field of
foreign relations is (then) conceded.[18]
Wielding vast powers an influence, his conduct
in the external affairs of the nation, as Jefferson
describes, is executive altogether."[19]
Since the President is the head of state in the
system of government of the Philippines, he is
the authority in the countrys external or foreign

relations.[20] Being vested with diplomatic

powers, the President formulates foreign policy,
deals with international affairs, represents the
state with foreign nations, maintains diplomatic
relations, and enters into treaties or international
agreements. Likewise, the power granted to the
Senate to concur in treaties[21] is to be
interpreted as referring to treaties which the
President makes and submits to the Senate for
concurrence.
Normally, it is the Head of State or the Head of
the Ministry of Foreign Affairs who binds States
in treaties. These persons do not need to produce
evidence of full powers to conclude a treaty.
Treaty ratification is one of the incidents of their
position. For purposes of adopting a text to a
treaty, the head of the diplomatic mission or
accredited representatives of States to an
international conference or one of its organs are
empowered to authenticate or accredit the text of
a treaty. If an act was performed without
authorization or without the full powers, a treaty
can still be given force and effect provided it is
subsequently confirmed by the State.[22]

b. Working procedure
Justice Isagani Cruz, in his book on International
Law, describes the treaty-making process in this
wise[23]:
The usual steps in the treaty-making process are:
negotiation, signature, ratification, and exchange
of the instruments of ratification. The treaty may
then be submitted for registration and
publication under the U.N. Charter, although this
step is not essential to the validity of the
agreement as between the parties.
1. Negotiation may be undertaken directly by the
head of state but he now usually assigns this task
to his authorized representatives. These
representatives are provided with credentials
known as full powers, which they exhibit to the
other negotiators at the start of the formal
discussions. It is standard practice for one of the
parties to submit a draft of the proposed treaty
which, together with the counter-proposals,
becomes the basis of the subsequent
negotiations. The negotiations may be brief or
protracted, depending on the issues involved,
and may even collapse in case the parties are
unable to come to an agreement on the points
under consideration.
In the Philippines, the negotiation phase of the
treaty making process is essentially performed

and controlled by the Executive branch of the

government through the Department of Foreign
Affairs and the respective government agencies
involved. Once a treaty proposal is received by
the Government the Department of Foreign is
tasked to determine whether or not said
agreement is a treaty or an executive agreement.
It is the Chief Executive, through the
recommendation of the DFA Secretary, who
designates the persons who will comprise the
Philippine delegation and the departments,
which will be involved and consulted in the
negotiation.
Pursuant to Executive Order 459, the lead
agency in the negotiation of a treaty or an
executive agreement or any amendment thereto
shall convene a meeting of the panel members
prior to the commencement of any negotiations
for the purpose of establishing the parameters of
the negotiating position of the panel. No
deviation from the agreed parameters shall be
made without prior consultation with the
members of the negotiating panel.
The panel of negotiators is normally composed
of several individuals from the different
agencies of government who are technical
experts and resource persons in certain areas of
specialization. This group of persons is normally
referred to as technical working groups. A treaty,
which has far-reaching effects on the different
industries, may involve several technical
working groups. The technical working groups
would meet and outline the Philippine position
and embody this position in writing. Ideally, the
Philippine position must be in conformity with
the outlined policies, development goals and
targets of the government and in general pursue
Philippine interest.
During the negotiation process, negotiators of
each State party would meet and discuss to
arrive at a mutually beneficial arrangement.
Battles over semantics and phrasing are normal
in treaty negotiations. This stage is very tedious
and negotiators must be very vigilant in looking
at each particular provision. Before concurring
to a particular provision, said negotiator must
agree to it only after consultation with other
negotiators and evaluate if it is in conformity
with the outlined Philippine position. In issues
of primordial importance or high significance,
public consultation must be performed to be able
to determine its overall impact on the industries
that are affected or parties who will be
prejudiced. Negotiators aside from being experts
must be strong, assertive and emphatic in
pursuing the Philippine position. Disagreements

among the negotiators over certain provisions is

also normal, but some experienced negotiators
have perfected the art of inserting provisions in
unexpected sections or rephrasing rejected
provisions to make it appear acceptable. The
quote timing is everything finds application in
the art negotiations, some negotiators will
invoke provisions of doubtful validity, during
such times when negotiators of the other party
are already quite tired or weary from long hours
spent on text analysis, interpretation and
revision. Once a final draft of the agreement is
reached, it will be sent to the office of the Chief
Executive who will signify his approval. If he
approves the agreement, he will forward it to the
Office of the Executive Secretary, who in turn,
will attest, to the authenticity and veracity of the
text signed or ratified. The Office of the
Executive Secretary receives texts in their final
form but can override these agreements on broad
grounds of it being against the Constitution, the
law or public policy, in general. [24]
2. If and when the negotiators finally decide on
the terms of the treaty, the same is opened for
signature. This step is primarily intended as a
means of authenticating the instrument and for
the purpose of symbolizing the good faith of the
parties; but, significantly, it does not indicate the
final consent of the state in cases where
ratification of the treaty is required. The
document is ordinarily signed in accordance
with the alternat, that is, each of the several
negotiators is allowed to sign first on the copy
which he will bring home to his own state.
3. Ratification, which is the next step, is the
formal act by which a state confirms and accepts
the provisions of a treaty concluded by its
representatives. The purpose of ratification is to
enable the contracting states to examine the
treaty more closely and to give them an
opportunity to refuse to be bound by it should
they find it inimical to their interests. It is for
this reason that most treaties are made subject to
the scrutiny and consent of a department of the
government other than that which negotiated
them. Ratification is generally held to be an
executive act, undertaken by the head of the
state or of the government, as the case may be,
through which the formal acceptance of the
treaty is proclaimed.[25] A State may provide in
its domestic legislation the process of
ratification of a treaty. The consent of the State
to be bound by a treaty is expressed by
ratification when: (a) the treaty provides for
such ratification, (b) it is otherwise established
that the negotiating States agreed that

ratification should be required, (c) the

representative of the State has signed the treaty
subject to ratification, or (d) the intention of the
State to sign the treaty subject to ratification
appears from the full powers of its
representative, or was expressed during the
negotiation.[26]
In our jurisdiction, the power to ratify is vested
in the President and not, as commonly believed,
in the legislature. The role of the Senate is
limited only to giving or withholding its consent,
or concurrence, to the ratification.[27]
4. The next step is the exchange of the
instruments of ratification, which usually also
signifies the effectivity of the treaty unless a
different date has been agreed upon by the
parties. Where ratification is dispensed with and
no effectivity clause is embodied in the treaty,
the instrument is deemed effective upon its
signature.[28] [emphasis supplied]
5. In our jurisdiction, for the treaty to be valid
and effective, it must be concurred in by the
Senate. The process of treaty concurrence by the
Senate follows the procedure under the 1987
Constitution on the passage of bills. Such rules
are supplemental by the Rules of the Senate. The
step-by-step process of treaty concurrence is
discussed below.
Initially, the President, through a letter to the
Senate, transmits to the Senate the Instrument of
Ratification and the text of the ratified treaty for
concurrence pursuant to Sec. 21, Art. VII of the
Constitution. The President transmits the same
by acting through the Executive Secretary, who
himself makes a letter of endorsement to the
Senate. [29]
The Senate receives the agreement through its
Legislative Bills and Index Services (Bills and
Index). The Bills and Index reproduces the text
of the agreement and includes it in the Order of
Business. It also indexes and publishes an
abstract of the agreement.
At the beginning of each Senate Session, the
Secretary of the Senate reports all bills,
proposed Senate resolutions, and
correspondences from the other branches of the
government, and such other matters included in
the Order of Business. Like an ordinary bill, the
international agreement undergoes three
readings.
In the first reading, only the title and number is
read. The title usually goes Concurrence in the
Ratification of (the treaty or international

agreement) with the corresponding Proposed

Senate Resolution Number. [30]
Afterwards, the treaty is referred to the
Committee on Foreign Relations. If the treaty
concerns other Committees, it is also referred to
such other Committees for their joint
consideration and recommendation. As an
illustration, the Visiting Forces Agreement
(VFA) was also referred to the Committee on
National Defense. If the treaty concerns almost
all or all the Senate Committees, it is referred to
what is called the Committee of the Whole. For
instance, the World Trade Organization (WTO)
was referred to the Committee of the Whole.
The role of the Committee is to study and
analyze the agreement. It makes consultations to
studies and position papers. It conducts public
hearings and considers public testimonies. The
final output and recommendations are
documented in the committee report. The
committee report is filed with the Bills and
Index, which then includes it in the Calendar of
Business for second reading. [31]
At the start of the second reading, the SenatorSponsor/s of the treaty endorses the committee
report to the Chamber through a sponsorship
speech. During the second reading, the treaty
would be opened to general debate and to
amendments. At the close of the debate, the
members of the Senate would vote.
If approved by the Senate, the bill would pass to
third reading. The Committee on Foreign
Relations will document any action taken in the
form of a Proposed Resolution. The Proposed
Resolution shall be engrossed and printed by the
Bills and Index, and distributed to each Senator
three (3) days before third reading. [32]
After three days from the distribution of the
resolution with the treaty attached thereto, the
Proposed Resolution shall be submitted for
nominal voting. The treaty shall be deemed
approved if 2/3 of the Senators voted for its
approval. A Senate Resolution concurring in the
ratification of the treaty is then adopted. The
adopted Senate Resolution is brought to the
Secretary of the Senate, who thereafter transmits
a copy thereof to the Secretary of Foreign
Affairs.
c. Opportunities/venues for private sector
participation

Although the Chief Executive is the sole

authority in treaty-making, it is nonetheless the

policy of the State that the people and their

organizations have the right to participate in
decision-making processes.[33] Organizations
refer to trade unions, peasant organizations,
urban poor, cooperatives, human rights groups,
religious groups, and also associations of
landowners and businessmen. The role of the
State, by enacting a law, would be mere
facilitation of the consultation mechanisms, and
not their creation, for consultation mechanisms
were already operating without the States action
by law. Also, people refers to all the people,
including minors.[34]
Also, the people shall have the right to access to
all transactions of the State that concern public
interest, subject to standards prescribed by law.
[35] During the deliberations of the
Constitutional Commission, Commissioner Blas
Ople, the sponsor of Sec. 28 Art. II, said that
transactions include not just the perfected
contract but also the steps and negotiations taken
that led to a contract. Commissioners Ople and
Napoleon Rama further explained that the
difference between the provision under State
Policies and that under the Bill of Rights is that
the latter affords the right of the people to
demand information while the former speaks of
the duty of the government to disclose
information even when nobody demands.[36] It
necessarily follows that in all negotiations made
by the President as to entering into international
agreements, it is the duty of the government to
disclose to the people, even without the latter
making a demand, all its acts, but always limited
by conditions prescribed by law.
The Supreme Court laid down in Chavez vs.
Presidential Commission on Good
Government[37] some of the restrictions to the
State policy of public disclosure and to the
exercise of the right to information: 1) National
security matters which include State secrets
regarding military and intelligence information,
diplomatic matters, and information on intergovernment exchanges prior to the conclusion of
treaties and executive agreements; 2) trade
secrets pursuant to the Intellectual Property
Code; 3) banking transactions as provided by the
Secrecy of Bank Deposits Act; 4) criminal
matters or classified law enforcement matters;
and 5) other confidential matters including
diplomatic correspondence, closed door Cabinet
meetings, executive sessions of Congress, and
internal deliberations of the Supreme Court.
The right guaranteed by Section 7 of the Bill of
Rights is the right to information on matters of
public concern.[38] A consequence of this right

is the right to access official records and

documents. These rights are subject to such
limitations as may be provided by law. It
follows that the limitations include regulations
on determining what information are matters of
public concern, and the manner of access to such
matters of public concern.
In the case of Legaspi vs. Civil Service
Commission,[39] the Supreme Court said that
public concern has no exact definition. It
encompasses an extensive scope of subjects
which the public may want to know, either
because it directly affects their lives or simply
because it arouses his interest. Each case must
be examined carefully.
It was also held in the above case that the duty
to disclose information of public concern and to
allow access to public records is not
discretionary on the part of the concerned
government agency. If denied of the enjoyment
of the Constitutional right, the remedy of the
citizen is to file a petition for mandamus to
compel the performance of the constitutional
obligation.
Indeed, under Sec. 1 of Art. II (Declaration of
Principles and State Policies) of the 1987
Constitution, The Philippines is a democratic
and republican State. Sovereignty resides in the
people and all government authority emanates
from them. Republicanism means all
government authority emanates from the people
and is exercised by representatives chosen by
the people. Hence, the people are declared
supreme.[40]

What is the significant role of the Legislative

branch in the treat-making process?

Notwithstanding the sole authority of the

President to negotiate and enter into treaties, the
1987 Constitution limits his power by requiring
the concurrence of 2/3 of all the members of the
Senate for the validity and effectivity of the
treaty entered into by him.[41] The role of the
Senate is confined to simply giving or
withholding its consent to the ratification.[42]
The involvement of the Senate in the treatymaking process manifests the adherence of the
Philippine system of government to the principle
of checks and balances. This indispensable
participation of the legislative branch by way of

concurrence provides the check to the

ratification of the treaty by the executive branch.

What is the effect of Senate Concurrence to a

treaty?

A treaty becomes valid and effective if

concurred in by two-thirds of all the members of
the Senate.[43] This means it forms part of
Philippine law by virtue of transformation. By
an act of the legislature, treaty rules may be
transformed into Philippine law, to be applied or
enforced as part of Philippine law. [44]
The treaty becomes part of the law of the land
and it becomes obligatory and incumbent on our
part, under the principles of international law, to
be bound by the terms of the agreement. In
Bayan vs. Zamora[45], the Supreme Court said
that with the ratification of the VFA, which is
equivalent to final acceptance, and with the
exchange of notes between the Philippines and
the United States of America, it now becomes
obligatory and incumbent on our part, under the
principles of international law, to be bound by
the terms of the agreement. Thus, no less than
Section 2, Article II of the Constitution,[46]
declares that the Philippines adopts the generally
accepted principles of international law as part
of the law of the land and adheres to the policy
of peace, equality, justice, freedom, cooperation
and amity with all nations.
As a member of the family of nations, the
Philippines agrees to be bound by generally
accepted rules for the conduct of its international
relations. While the international obligation
devolves upon the state and not upon any
particular branch, institution, or individual
member of its government, the Philippines is
nonetheless responsible for violations committed
by any branch or subdivision of its government
or any official thereof. As an integral part of the
community of nations, we are responsible to
assure that our government, Constitution and
laws will carry out our international obligation.
[47] Hence, we cannot readily plead the
Constitution as a convenient excuse for noncompliance with our obligations, duties and
responsibilities under international law.
Beyond this, Article 13 of the Declaration of
Rights and Duties of States adopted by the
International Law Commission in 1949
provides: Every State has the duty to carry out
in good faith its obligations arising from treaties

and other sources of international law, and it

may not invoke provisions in its constitution or
its laws as an excuse for failure to perform this
duty.[48]

[6] Hackworth, Digest of International Law, Vol.

5, p. 395, cited in USAFE Veterans Association
Inc. vs. Treasurer of the Philippines, 105 Phil.
1030, 1037 [1959].

Equally important is Article 26 of the

convention which provides that Every treaty in
force is binding upon the parties to it and must
be performed by them in good faith. This is
known as the principle of pacta sunt servanda
which preserves the sanctity of treaties and have
been one of the most fundamental principles of
positive international law, supported by the
jurisprudence of international tribunals.[49]

[7] Richard J. Erickson, The Making of

Executive Agreements by the United States
Department of Defense: An agenda for
Progress, 13 Boston U. Intl. L.J. 58 [1995],
citing Restatement [third] of Foreign Relations
Law pt. III, introductory note [1987] and Paul
Reuter, Introduction to the Law of Treaties 22
[Jose Mico & Peter Haggemacher trans., 1989]
cited in Consolidated Memorandum, p. 32.

What is the effect if the Senate does not concur

to a treaty?

[8] Joaquin G. Bernas, S.J., Constitutional

Structure and Powers of Government, Second
Edition 1997

As provided for by the constitution, a treaty not

concurred in by the Senate will not be valid and
effective.[50]
Under the Philippine Legal System, how does a
treaty stand in relation to the Philippine
Constitution?

[9] Commissioner of Customs v. Eastern Sea

Trading, 3 SCRA 351
[10] The citation of said case is 3 SCRA 351.
[11] Bernas, Id.
[12] Press Release No. 314-03; 26 June 2003,
Department of Foreign Affairs

The Constitution is the basis for ascertaining the

legality or validity of the treaty. By virtue of
Article VIII, Section 5(2)(a) of the Constitution,
the Supreme Court may determine the
constitutionality of a treaty or declare it as
violative of a statute.[51]

How does a treaty stand in relation to a statute?

Being part of the law of the land and therefore
an internal law, a treaty is not superior to an
enactment of the Congress of the Philippines,
rather it would be in the same class as the latter.
[52]

[1] Section 2(b)Executive Order No. 459,

Providing for the Guidelines in the Negotiation
of International Agreements and its Ratification
[2] Article 2 (1) (a), Vienna Convention on the
Law of Treaties
[3] Merlin M. Magallona, Primer on the Law of
Treaties, p. 115

[13] Section 21, Article VII, 1987 Philippine

Constitution
[14] Memorandum Circular No. 89 of the Office
of the President (1988).
[15] Ramos, Infante, Pasco, Cabugao,
Memorandum on Negotiation and Treaty
Ratification Process
[16] Merlin M. Magallona, A Primer in
International Law in Relation to Philippine Law,
p.50
[17] Bayan vs. Zamora, G.R. No. 138570.
October 10, 2000
[18] Cortes, The Philippine Presidency a study
of Executive Power, 2nd Ed., p. 195.
[19] Cruz, Phil. Political Law, 1995 Ed., p. 223.
[20] Pimentel, Jr. vs. Office of the Executive
Secretary, 462 SCRA 622 (2005), p. 632, citing
Cortes, The Philippine Presidency: A Study of
Executive Power (1966), p. 187.
[21] Section 21, Article VII, 1087 Constitution

[4] Ibid. Sec.2(c)

[22] Id., Art. 8.

[5] Sayre, The Constitutionality of Trade

Agreements Acts 39 COLUMBIA L.R. 651,
755, quoted in 3 SCRA 357

[23] Pimentel vs. Office of the Executive

Secretary, G.R. No. 158088, July 6, 2005

[24] Ramos, Infante, Pasco, Cabugao, Interview,

Atty. Minerva Tan, Office of the Executive
Secretary, cited in the Memorandum on
Negotiation and Treaty Ratification Process
[25] Gerhard von Glahn, Law Among Nations,
An Introduction to Public International Law, 4th
Ed., p. 486.
[26] Article 14 of the Vienna Convention, cited
in Coquia and Defensor-Santiago, Intenational
Law, 1998 Ed., pp. 506-507.
[27] Cruz, Isagani, International Law, 1985
Ed., p. 175.
[28] Cruz, International Law (1998 Ed.), pp.
172-174.
[29] The Senate Archives have a compilation of
some of the documents and letters of
government officials and members of the
Philippine Mission to the United Nations
(including those of then President Fidel Ramos,
Executive Secretary Teofisto Guingona, and
Foreign Affairs Secretary Roberto Romulo)
regarding the World Trade Organization. This
compilation is indexed as CP-Senate Res. No.
97 B9-F97 in the Archives but it can be asked as
documents pertaining to the WTO deliberations.
[30] Rules of the Senate, Rule 36
[31] Interview with Eduardo Sibuma, supra.
[32] [32] Sec. 26(2), Art. VI of the 1987
Constitution. Under the same provision, the
requirements of three readings on separate days
and the distribution of the final copies of the bill
before its passage may be dispensed with by a
certificate of urgency issued by the President for
the purpose of meeting a public calamity or
emergency.

[33] Sec. 16, Art. XIII of the 1987 Constitution,

The right of the people and their organizations
to effective and reasonable participation at all
levels of social, political, and effective decisionmaking shall not be abridged. The State shall, by
law, facilitate the establishment of adequate
consultation mechanisms.
[34] Bernas, The Intent of the 1986 Constitution
Writers (1995), pp. 998-1004, citing II Record of
the Constitutional Commission, p. 608 and III
Record of the Constitutional Commission pp.
146-147, 162-163.

[35] Sec. 28, Art. II of the 1987 Constitution,

Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of
full public disclosure of all its transactions
involving public interest.
[36] Bernas, id, pp. 155-156, citing IV Record of
the Constitutional Commission, pp. 24-26, 29.
[37] 299 SCRA 744, pp. 763-765.
[38] Sec. 7, Art. III of the 1987 Constitution ,
The right of the people to information on
matters of public 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.
[39] 150 SCRA 530 (1987).
[40] Cruz, Philippine Political Law (2002 Ed.),
pp.51-52.
[41] Sec. 21, Art. VII of the 1987 Constitution,
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.
[42] Isagani Cruz, International Law, 2000,
p.174
[43] Section 21, Article VII, 1987 Constitution.
[44] Merlin M. Magallona, A Primer in
International Law in Relation to Philippine Law,
p. 49
[45] G.R. No. 138570. October 10, 2000
[46] Sec. 2. The Philippines renounces war as an
instrument of national policy, adopts the
generally accepted principles of international
law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.
[47] Louis Henkin, Richard C. Pugh, Oscar
Schachter, Hans Smit, International Law, Cases
and Materials, 2nd Ed American Casebook
Series, p. 136.
[48] Gerhard von Glah, supra, p. 487.
[49] Harris, p. 634 cited in Coquia, International
Law, supra, p. 512.
[50] Sec. 21, Art. VII of the 1987 Constitution

[51] Merlin M. Magallona, A Primer in

International Law in Relation to Philippine Law,
p.58

[52] Abbas v. Commission on Elections (179

SCRA 287)