BASIC CONCEPTS

f Separation of Powers
of Powers
of Checks and Balances
e Question
uestion
n of Powers
WHAT IS THE DOCTRINE OF
SEPARATION OF POWERS?
 DOCTRINE OF SEPARATION OF POWERS

The Doctrine of Separation of Powers states that each of the three great
branches of the government has exclusive cognizance of and is supreme in
matters falling within its own constitutionally allocated sphere.
 EXAMPLE OF DOCTRINE OF SEPARATION OF POWERS

EXECUTIVELEGISLATIVE JUDICIARY
enforce or apply the laws create laws interpret laws

The legislature is generally limited to the enactment of laws and may

not enforce or apply them; the executive to the enforcement of laws
and may not enact or apply them; and the judiciary to the
application of laws and may not enact or enforce.
WHAT IS BLENDING OF
POWERS?
 BLENDING OF POWERS

There are instances under the Constitution when powers are not confined
exclusively within one department but are in fact assigned to or shared by
several departments.
 EXAMPLES OF BLENDING OF POWERS

A. ENACTMENT OF THE GENERAL APPROPRIATIONS LAW, which

begins with the preparation by the President of the budget, which becomes
the basis of the bill adopted by the Congress and subsequently submitted by it
to the President, who may then approve it.
B.

C. GRANT OF AMNESTY by the President which requires the concurrence of

a majority of all the Members of the Congress.
WHAT IS THE PRINCIPLE OF
CHECKS AND BALANCES?
 PRINCIPLE OF CHECKS AND BALANCES

Under the Principle of Checks and Balances, one department is allowed

to resist encroachments upon its prerogatives or to rectify mistakes of
excesses committed by the other departments.
 EXAMPLES OF PRINCIPLE OF CHECKS AND
BALANCES

A. The law-making power of the Congress is checked by the President through

his veto power, which in turn may be overridden by the legislation.
B.

C. The Congress may limit the jurisdiction of the Supreme Court and that of
inferior courts and even abolish the latter tribunals.
D.

E. The Supreme Court has the power to invalid an act done by the Congress,
the President and his subordinates, or the Constitutional Commissions.
WHAT IS A JUSTICIABLE QUESTION?
 JUSTICIABLE QUESTION

A purely justiciable question implies a given right, legally demandable

and enforceable, an act or omission violative of such right, and a
remedy granted and sanctioned by law, for said breach of right.
(Casabang vs. Aquino)
WHAT IS A POLITICAL
QUESTION?
 POLITICAL QUESTION

Political Question refers to those questions which, under the

Constitution, are to be decided by the people in their sovereign capacity;
or in regard to which full discretionary authority has been delegated to
the legislative or executive branch of the government.

It is concerned with issues dependent upon the wisdom, not legality, of a

particular measure.
 POLITICAL QUESTION VS JUSTICIABLE QUESTION

POLITICAL QUESTION JUSTICIABLE QUESTION

- issues dependent upon the -issues dependent upon the
wisdom legality

NOT SUBJECT TO SUBJECT TO JUDICIAL

REVIEW JUDICIAL REVIEW
(General Rule)
EXAMPLE OF POLITICAL QUESTION VS JUSTICIABLE QUESTION

Under the Constitution, the suspension or expulsion of a member of the

Congress, which must be based upon the ground of “disorderly behavior” and
concurred in by at least two-thirds of all his colleagues.

The determination of what constitutes disorderly behavior is a political

question because it depends upon the wisdom of the Congress and therefore not
subject to judicial review/cognizable by the courts.

However, if the disciplinary measure may nonetheless be unauthorized if

it was supported by less than the required vote and becomes a justiciable
question because it depends upon the legality of the said disciplinary measure
and therefore subject to review/cognizable by the courts.
 EXPANDED JUDICIAL REVIEW/JUDICIAL POWER UNDER
THE 1987 CONSTITUTION

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.

-includes POLITICAL QUESTION

-Judicial Power is available against the
executive and legislative departments, including the
President and the Congress, in the exercise of their
discretionary powers provided there has been a grave abuse of
discretion; if NO grave abuse of discretion or lack or excess
of jurisdiction, NO JUDICIAL REVIEW
(Section 1, Article VIII, 1987 Constitution)
 PRINCIPLE OF NON-DELEGATION OF
POWERS

This principle states that what has been delegated cannot further
be delegated – potestas delegata non delegari potest.

GENERAL RULE:
The Constitution delegated law-making powers to the Congress.
As such, the Congress cannot further delegate the power delegated to
it by the people.
IS THE RULE ON NON-DELEGATION OF
POWERS ABSOLUTE?
 EXCEPTIONS TO THE PRINCIPLE OF NON-DELEGATION
OF POWERS

Delegation of legislative powers is permitted in the following cases:

a) Delegation of tariff powers to the President;
b) Delegation of emergency powers to the President;
c) Delegation to the people at large;
d) Delegation to local governments;
e) Delegation to administrative bodies
 DELEGATION OF TARIFF POWERS TO THE
PRESIDENT

“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.”
(SECTION 28 (2), ARTICLE VI, 1987 CONSTITUTION)

-The reason for this delegation is the necessity, not to say expediency, of
giving the chief executive the authority to act immediately on certain matters
affecting the national economy.
 DELEGATION OF EMERGENCY POWERS TO THE
PRESIDENT

”In times of war or other national emergency, the Congress may by law,
authorize the President, for a limited period and subject to restrictions
as it may prescribe, to exercise powers necessary and power to carry out
a declared national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon its next adjournment.”
(SECTION 23(2), ARTICLE VI, 1987 CONSTITUTION)
WHAT ARE THE CONDITIONS FOR THE
VESTURE OF EMERGENCY POWERS IN
THE PRESIDENT?
 The conditions for the vesture of emergency powers in the
President are the following:
a) There must be war or national emergency.
b) The delegation must be for a limited period only.
c) The delegation must be subject to such restrictions as the
Congress as may prescribe;
d) The emergency powers must be exercised to carry out a national
policy declared by the Congress.
 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.
 DELEGATION TO 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.
 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 than
Congress.
WHAT ARE THE TWO TESTS FOR A
VALID DELEGATION?
 TESTS FOR A VALID DELEGATION

(A) The Completeness Test

-The law must be complete in all its essential terms and conditions
when it leaves the legislature so that there will be nothing left for the
delegate to do when it reaches him except enforce it.
(B) Sufficient Standard Test
-It is intended to map out the boundaries of the delegate’s authority
by defining the legislative policy and indicating the circumstances under
which it is to be pursued and effected.
 BELGICA VS OCHOA
(GR Nos. 208566, 208493 &209251, November
19, 2013)
 BELGICA VS OCHOA (PDAF/PORKBARREL
CASE)

PHILIPPINE PORK BARREL SYSTEM

CONGRESSIONAL PRESIDENTIAL
PORK BARREL PORK BARREL
(PDAF)

Substantive Issues:
Separation of Powers 3. Principle of Checks and Balances
Principle of Non-Delegation of Powers
 CONGRESSIONAL PORK BARREL

SUBSTANTIVE ISSUES:

SEPARATION OF POWERS
PRINCIPLE OF NON-DELEGATION OF POWERS
PRINCIPLE OF CHECKS AND BALANCES
ACCOUNTABILITY
POLITICAL DYNASTY
 I. SEPARATION OF POWERS

The separation of powers between the Executive and the Legislative Departments has
been violated.
Any provision of law that empowers Congress or any of its members to play any role in
the implementation or enforcement of the law violates the principle of separation of
powers and is thus unconstitutional.
In this case, the post-enactment measures including project identification, fund release,
and fund realignment are not related to functions of congressional oversight and, hence,
allow legislators to intervene and/or assume duties that properly belong to the sphere of
budget execution, which belongs to the executive department.
"from the moment the law becomes effective, any provision of law that empowers
Congress or any of its members to play any role in the implementation or enforcement of
the law violates the principle of separation of powers and is thus unconstitutional
 CONGRESS OVERSIGHT FUNCTIONS

Any post-enactment congressional measure x x x should be limited to scrutiny and

investigation. In particular, congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress‘ power of appropriation and the budget
hearings conducted in connection with it, its power to ask heads of departments to
appear before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation; and
(2) investigation and monitoring of the implementation of laws pursuant to the
power of Congress to conduct inquiries in aid of legislation.
Any action or step beyond that will undermine the separation of powers guaranteed by
the Constitution. 
 PRINCIPLE OF NON-DELEGATION OF POWERS

The principle of non-delegability of legislative powers has been violated.

The 2013 PDAF Article, insofar as it confers post-enactment identification

authority to individual legislators, violates the principle of non-delegability since
said legislators are effectively allowed to individually exercise the power of
appropriation, which – as settled in Philconsa – is lodged in Congress.

That the power to appropriate must be exercised only through legislation is clear from
Section 29(1), Article VI of the 1987 Constitution which states that: ― No money
shall be paid out of the Treasury except in pursuance of an appropriation made by
law.

The legislators are individually exercising the power of appropriation because each
of them determines (a) how much of their PDAF fund would go to and (b) a specific
project or beneficiary that they themselves also determine.
Section 8 of PD No. 910 and Section 12 of PD No. 1869 constitutes undue
delegation of legislation powers.
The phrase “and for such other purposes as may be hereafter directed by
the President” under Section 8 of PD 910 constitutes an undue
delegation of legislative power insofar as it does not lay down a sufficient
standard to adequately determine the limits of the President‘s authority
with respect to the purpose for which the Malampaya Funds may be used.
This phrase gives the President wide latitude to use the Malampaya
Funds for any other purpose he may direct and, in effect, allows him to
unilaterally appropriate public funds beyond the purview of the law.
 QUESTION:

DISTINGUISH LEGISLATIVE INQUIRY

(SECTION 21) FROM QUESTION HOUR
(SECTION 22).
 SAMPLE PROBLEM:

The House Committee on Appropriations conducted an inquiry in aid of

legislation into alleged irregular and anomalous disbursements of the
Countrywide Development Fund (CDF) and Congressional Initiative
Allocation (CIA) of Congressmen as exposed by X, a Division Chief of the
Department of Budget and Management (DBM). Implicated in the
questionable disbursements are high officials of the Palace. The House
Committee summoned X to appear and testify. X refused to appear.
(a) May X be compelled to appear and testify?
(b) If yes, what sanction may be imposed on him?
SEC 21 (LEGISLATIVE INQUIRY )VS SECTION22 (QUESTION
HOUR)

A distinction was thus made between inquiries in aid of legislation and the
question hour. While attendance was meant to be discretionary in the
question hour, it was compulsory in inquiries in aid of legislation.
Sections 21 and 22, therefore, while closely related and complementary to each
other, should not be considered as pertaining to the same power of Congress.
One specifically relates to the power to conduct inquiries in aid of
legislation, the aim of which is to elicit information that may be used for
legislation, while the other pertains to the power to conduct a question hour,
the objective of which is to obtain information in pursuit of Congress’
oversight function.
 CASE LAWS
(SEC 21 & SEC 22, ART.VI, 1987
CONSTITUTION)
 WAS THE EXECUTIVE
ORDER(E.O.) 464 ISSUED BY
PRESIDENT MACAPAGAL-
ARROYO CONSTITUTIONAL
464?
 APPEARANCE BY HEADS OF DEPARTMENTS
BEFORE CONGRESS

SECTION 1.
Appearance by Heads of Departments Before Congress. – In accordance with Article VI,
Section 22 of the Constitution and to implement the Constitutional provisions on the
separation of powers between co-equal branches of the government, all heads of
departments of the Executive Branch of the government shall secure the consent of
the President prior to appearing before either House of Congress.
When the security of the State or the public interest so requires and the President so states
in writing, the appearance shall only be conducted in executive session.

CONSTITUTIONAL
(QUESTION HOUR)
 NATURE, SCOPE AND COVERAGE OF
EXECUTIVE PRIVILEGE

Executive privilege covers all confidential or classified information between the

President and the public officers covered by this executive order, including:
a) Conversations and correspondence between the President and the public official
covered by this executive order;
b) Military, diplomatic and other national security matters which in the interest of

national security should not be divulged;

c) Information between inter-government agencies prior to the conclusion of treaties
and executive agreements;
d) Discussion in close-door Cabinet meetings;

e) Matters affecting national security and public order 

NOTE:
-  Executive privilege, as discussed above, is properly invoked in
relation to specific categories of information and not to categories of
persons.
When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid
claim of privilege. They are not exempt by the mere fact that they
are department heads. Only one executive official may be exempted
from this power — the President on whom executive power is
vested, hence, beyond the reach of Congress except through the power
of impeachment. It is based on her being the highest official of the
executive branch, and the due respect accorded to a co-equal branch of
government which is sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are also exempt
from this power of inquiry. Unlike the Presidency, judicial power is
vested in a collegial body; hence, each member thereof is exempt on the
basis not only of separation of powers but also on the fiscal autonomy and
the constitutional independence of the judiciary. 
Executive privilege, as already discussed, is recognized with respect to
information the confidential nature of which is crucial to the
fulfillment of the unique role and responsibilities of the executive
branch.
The elements of presidential communications privilege:
1) The protected communication must relate to a “quintessential and
non-delegable presidential power.”
2) The communication must be authored or “solicited and received” by
a close advisor of the President or the President himself. The judicial
test is that an advisor must be in “operational proximity” with the
President.

3) The presidential communications privilege remains a qualified

privilege that may be overcome by a showing of adequate need, such
that the information sought “likely contains important evidence” and by
the unavailability of the information elsewhere by an appropriate
investigating authority.