Developments in Philippine Constitutional Law: The Year 2016 in Review

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Editor’s Note: Today we publish the 2016 Report on Philippine constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

Dante Gatmaytan, College of Law, University of the Philippines

I. Calm before the Storm

It was, for a very long time, revered as an institution untainted with corruption. But the Court squandered its reputation when, in 1973, it ruled in favor of extra-constitutional revision of the Constitution and allowed a dictatorship to take root and flourish. Ferdinand Marcos railroaded the adoption of a new constitution by creating citizens’ assemblies which, by a show of hands, allegedly approved his constitution. This was accomplished in an atmosphere of restricted civil liberties brought on by Marcos’s imposition of martial law.

The Supreme Court avoided confrontation with Marcos by invoking the “political question” doctrine—claiming that the issues raised before it were better decided by other branches of government. The post-Marcos 1987 Constitution empowered the Court to determine whether there has been an abuse of discretion on the part of other branches of government, thereby weakening the political question doctrine.

Because it had opted to support Marcos, the Philippine Supreme Court will always be under public scrutiny.

II. The Constitution and the Court

The Constitution of the Republic of the Philippines is thirty years old. It was drafted in 1986 after Ferdinand Marcos was forced out of office by days-long massive protests, and ratified overwhelmingly the following year. The Constitution was a response to the abuses of the Marcos regime, containing several innovations that are designed to strengthen the separation of powers, as well as checks and balances.

Some of the clearest attempts to prevent a reprise of dictatorial experience were the innovations to strengthen the judiciary. This was imperative because of the Supreme Court’s role in sanctioning and sustaining the dictatorship.

Constitutionally barred from seeking a third term, Marcos called for a constitutional convention to rewrite the Constitution and adopt a parliamentary form of government, which would then allow him to rule as Prime Minister. Marcos then attempted to railroad the adoption of the Constitution, ignored procedures for the amendment or revision of the Constitution, and created “citizens’ assemblies” (which included children) to signify their consent by raising their hands. In Javellana v. Executive Secretary, a majority of the Supreme Court members ruled that the Constitution was not validly ratified, although the Court also ruled that the new Constitution was already in force through the acquiescence of the people. It was a political question, not a legal one, and not something that could be decided by the Court. The Court would later use the “political question doctrine” to sanction almost every act by Ferdinand Marcos, allowing him to pervert the rule of law.

The 1987 Constitution expanded judicial power to include 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. This was designed to prevent courts from resorting to the political question doctrine and to rule on the merits of the case.

III. Constitutional Controversies

The Supreme Court is stronger under the 1987 Constitution, reviewing acts of the Executive and Legislative branches and striking them down on the ground that there was an abuse of discretion on their part. The Court is quick to point out, however, that the Constitution did not completely extinguish the political question doctrine. In 2016, the Court faced its first major case questioning an act of President Rodrigo Duterte—the burial of former President Marcos in the Libingan ng mga Bayani (Heroes’ Cemetery).

In that case, the petitioners argued that the burial of Marcos at the LNMB should not be allowed because it rewrites the history of revolting against an authoritarian ruler and it condones the abuses committed during the Martial Law regime, which would violate the letter and spirit of the Constitution, which they described as a “post-dictatorship charter” and a “human rights constitution”.

The Court held that the decision to have the remains of the former president interred at the Libingan ng mga Bayani was not a justiciable controversy because it involved a political question. According to the Court, the President decided a question of policy based on his wisdom that it would promote national healing and forgiveness. The Court held that his acts were consistent with the Constitution, pertinent statutes, international human rights laws, and jurisprudence.

Duterte will likely cross paths with the Supreme Court again. Unlike Marcos, who wanted the judiciary to provide the legal scaffolding for his work, Duterte despises checks and balances. When the Chief Justice wrote him about the constitutional procedures that should be followed in cases involving judges allegedly involved in illegal drugs, he told the Chief Justice: “I’m giving you a warning. Don’t create a crisis because I will order everybody in the Executive department not to honor you.” He accused the Chief Justice of interfering with his job and threatened to declare martial law.

The Philippines presently finds itself under this atmosphere of increased tension between the President and the Courts.

IV. Major Cases

Separation of Powers

Another constitutional change introduced in the 1987 Constitution was the creation of the Judicial and Bar Council (JBC), which vets aspirants to the judiciary and submits a list of names from which the President can nominate aspirants to judgeships. It reduces the President’s discretion and theoretically prevents the President from packing the Court with friends.

In a case involving multiple vacancies in the Sandiganbayan (a special court created to deal with graft cases), the JBC clustered nominees in six separate lists. Then President Benigno Aquino III disregarded the clusters when he appointed the Justices to fill the vacancies. His acts were challenged before the Supreme Court. The Court sided with the President and held that the JBC, in sorting the qualified nominees into six clusters, one for every vacancy, could influence the appointment process beyond its constitutional mandate of recommending qualified nominees to the President. Clustering impinges upon the President’s power of appointment as well as restricts the chances for appointment of the qualified nominees because (1) the President’s option for every vacancy is limited to the five to seven nominees in the cluster; and (2) once the President has appointed from one cluster, then he is proscribed from considering the other nominees in the same cluster for the other vacancies. The said limitations are utterly without legal basis and in contravention of the President’s appointing power.

Rights and Freedoms

The Committee on Trade and Related Matters (CTRM) of the National Economic and Development Authority held a meeting where it resolved to recommend to then President Gloria Macapagal-Arroyo the lifting of the suspension of the tariff reduction schedule on petrochemicals and certain plastic products, thereby reducing the Common Effective Preferential Tariff rates on certain products. A stakeholder in the petrochemical industry filed a case to compel the CTRM to provide the minutes of the meeting that led to the CTRM’s recommendation. The trial court dismissed the case and the issue that was elevated to the Supreme Court was whether the CTRM may be compelled to furnish the petitioner with a copy of the minutes of the meeting based on the constitutional right to information on matters of public concern and the State’s policy of full public disclosure. The Court affirmed the dismissal of the case.

According to the Court, two requisites must concur before the right to information may be compelled by writ of mandamus. First, the information sought must be in relation to matters of public concern or public interest. Second, it must not be exempt by law from the operation of the constitutional guarantee. There is a need to strike a balance between the right of the people and the interest of the Government to be protected. In this case, the need to ensure the protection of the privilege of non-disclosure is necessary to allow the free exchange of ideas among Government officials as well as to guarantee the well-considered recommendation free from interference of the inquisitive public.

Another case involved a Davao City ordinance which imposed a ban against aerial spraying as an agricultural practice. The Filipino Banana Growers and Exporters Association challenged the constitutionality of the ordinance, alleging that it was an unreasonable exercise of police power and a violation of the equal protection clause, and amounted to the confiscation of property without due process of law. The Court ruled in favor of the respondents on all counts, holding the ordinance unconstitutional.

The City justified the prohibition against aerial spraying by insisting that the occurrence of drift causes inconvenience and harm to the residents and degrades the environment. The Court noted, however, that drift occurs regardless of how pesticides are released. Another flaw in the Ordinance was that it required the maintenance of the 30-meter buffer zone regardless of the area of the agricultural landholding, geographical location, topography, crops grown, and other distinguishing characteristics that ideally should bear a reasonable relation to the evil sought to be avoided.

An election-related case involved Rappler, Inc., which filed a petition for certiorari and prohibition against respondent Andres Bautista, in his capacity as Chairman of the Commission on Elections, to nullify a part of the Memorandum Agreement on the 2016 presidential and vice-presidential debates. Rappler claimed that they were being executed without or in excess of jurisdiction and that they were violating its fundamental constitutional rights. The parts sought to be nullified allowed the debates to be shown or streamed on other websites, and allowed a maximum of two minutes of excerpt from the debates to be used for news reporting or fair use by other media or other entities. Rappler contended that it was being discriminated against because the MOA granted radio stations the right to simultaneously broadcast live the audio of the debates, even if they were not obliged to perform any obligation under the MOA. Despite this, Rappler and other online media entities were denied the right to broadcast by live streaming the audio online. The Court partially granted the petition, allowing the debates to be livestreamed unaltered on other websites, including Rappler’s, subject to the copyright condition that the source be clearly indicated.

In ruling for Rappler, the Supreme Court held that the presidential and vice-presidential debates are held to assist the electorate in making informed choices on election day. The political nature of the national debates and the public’s interest in the wide availability of the information for the voters’ education certainly justify allowing the debates to be shown or streamed on other websites for wider dissemination, in accordance with the MOA.

The debates should be allowed to be livestreamed on other websites, including the petitioner’s, as expressly mandated in the MOA. The respondent, as representative of the Commission on Elections (COMELEC), which provides over-all supervision under the MOA, including the power to “resolve issues that may arise among the parties involved in the organization of the debates,” should be directed by this Court to implement Part VI (C), paragraph 19 of the MOA, which allows the debates to be shown or livestreamed unaltered on petitioner’s and other websites subject to the copyright condition that the source is clearly indicated.

Foreign, International and/or Multilateral Relations

The Enhanced Defense Cooperation Agreement (EDCA) authorizes US military forces to have access to and conduct activities within certain “Agreed Locations” in the country. It was not transmitted to the Senate, on the executive’s understanding that it was not necessary. The Department of Foreign Affairs (DFA) and the US Embassy exchanged diplomatic notes confirming the completion of all necessary internal requirements for the agreement, after which it was ratified by President Benigno S. Aquino III. The petitioners challenged the procedure by which EDCA became law.

The Court upheld the constitutionality of EDCA because the President has the choice of entering into executive agreements instead of treaties, provided the law is confined to the adjustment of details regarding existing arrangements with foreign military forces. EDCA fulfills this requirement, as it is consistent with the content, purpose and framework of the existing Mutual Defense Treaty and the Visiting Forces Agreement. The only exception is when the agreement involves allowing foreign military bases and troops, which should be done through a treaty duly concurred in by the Senate.

The Court also had occasion to rule that a British national wrongly accused of rape could not ask the courts to enforce a United Nations Human Rights Committee View that under  International Covenant on Civil and Political Rights, the Philippines should compensate him for his detention. The Court held that there must be an act more than ratification to make a treaty applicable in the Philippines. The Court explained that while the Philippines is a signatory to the ICCPR and the Optional Protocol, nowhere in these instruments does it say that the View of the Committee forms part of the treaty.

Other Cases

Among the most significant cases decided by the Supreme Court involved the citizenship of Grace Poe, a Senator and presidential candidate in the May 2016 elections.

On March 8, 2016, the Philippine Supreme Court promulgated a landmark decision holding that Senator Grace Poe, a foundling, is a natural born citizen and eligible to run for President in the May 2016 national elections.

Poe had been naturalized as a citizen of the United States in 2001 after being petitioned by her husband, who has dual citizenship. After her father’s death, however, she gave up US citizenship and entered public life, serving briefly as the chair of the Movie and Television Regulatory and Classification Board. Thereafter, she for Senator in 2010, garnering the highest number of votes.

Immensely popular, political parties were eyeing Poe as a potential candidate either as President or as a Senator. Her status as a foundling, however, posed serious problems, because according to the Philippine Constitution, a Senator and the President must be natural born citizens.

When Poe filed her certificate of candidacy for President on October 15, 2015, a petition was filed to have it cancelled on the ground that she satisfied neither the citizenship nor residency requirements of the Constitution. The COMELEC ruled against Poe. Three other petitions filed to disqualify Poe from the elections on the same grounds were decided against her.

Poe brought the COMELEC rulings to the Supreme Court, and in a 9 to 6 ruling, the Court reversed decisions of the COMELEC and held that Poe satisfied both the citizenship and the ten-year residency requirements and was qualified to be a candidate for President in the May 2016 elections.

The challenge to Poe’s citizenship rested on the fact that foundlings are not expressly mentioned as citizens in any of the country’s Constitutions. On this point, the majority of the Supreme Court held that “As a matter of law, foundlings are, as a class, natural-born citizens. While the 1935 Constitution’s enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude foundlings either.” The Court examined the intent of the framers of the Constitution and found that there was an attempt to include foundlings in the enumeration of natural born citizens in the Constitution. This was not carried out “not because there was any objection to the notion that persons of ‘unknown parentage’ are not citizens but only because their number was not enough to merit specific mention.”

The Court could not discern any “intent or language permitting discrimination against foundlings” and instead found that all three Constitutions guarantee the basic right to equal protection of the laws and exhort the State to render social justice. It cited provisions in the present Constitution that do not show any intent to discriminate against foundlings “on account of their unfortunate status.”

On Poe’s residency, the Court criticized the COMELEC for reckoning her residency from the date stated in Poe’s “sworn declaration in her COC [certificate of candidacy] for Senator.” The COMELEC said that the statement was an admission that her residence in the Philippines began only in November 2006, falling short of the ten-year residency requirement.

This, said the Court, ignores case law that holds that it is the fact of residence, not the statement of the person, that determines residence for purposes of compliance with the constitutional requirement of residency for election as President. The Court explained that when Poe made the declaration in her COC for Senator that she has been a resident for a period of six years and six months counted up to the 13 May 2013 elections, “she naturally had as reference the residency requirements for election as Senator which was satisfied by her declared years of residence.” In other words, Poe had written down the period that satisfies the residency requirements for Senator; but there was evidence showing that she had established her residency earlier still.

Chief Justice Lourdes Sereno, in her concurring opinion, explained her approach to addressing the absence of any reference to foundlings in the Constitution. She said that in interpreting the Constitution, the Court “should strive to give meaning to its provisions not only with reference to its text or the original intention of its framers.” She cited ideals enumerated in the Preamble of the Constitution—their intent to “promote the general welfare”; to “build a just and humane society”; and to “secure the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace.” She concluded that any construction that would detract from these fundamental values cannot be countenanced. Using her approach, she opined that a declaration that foundlings are not natural-born citizens is unconscionable and would effectively render all children of unknown parentage stateless and would place them in a condition of extreme vulnerability. Depriving them of citizenship would leave foundlings without any right or measure of protection.

The legality of Poe’s election as a Senator was decided in another case. Rizalito David, a losing candidate in the 2010 senatorial elections, challenged her qualifications as a Senator before the Senate Electoral Tribunal (SET). The SET ruled in Senator Poe’s favour and this decision was elevated to the Supreme Court.

The Supreme Court upheld the SET’s conclusions, saying that they are in keeping with a faithful and exhaustive reading of the Constitution, one that proceeds from an intent to give life to all the aspirations of all its provisions.

The SET was confronted with a novel legal question: the citizenship status of children whose biological parents are unknown, considering that the Constitution, in Article IV, Section 1 (2) explicitly makes reference to one’s father or mother. It was compelled to exercise its original jurisdiction in the face of a constitutional ambiguity that, at that point, was without judicial precedent. Acting within this void, the Senate Electoral Tribunal was only asked to make a reasonable interpretation of the law while heedfully considering the established personal circumstances of the private respondent. It could not have asked the impossible of the private respondent, sending her on a proverbial fool’s errand to establish her parentage, when the controversy before it arose because the private respondent’s parentage was unknown and has remained so throughout her life.

The SET knew the limits of human capacity. It did not insist on burdening the private respondent with conclusively proving the one thing that she has never been in a position to know throughout her lifetime. Instead, it conscientiously appreciated the implications of all other facts known about her finding. Therefore, it arrived at conclusions in a manner in keeping with the degree of proof required in proceedings before a quasi-judicial body: not absolute certainty, not proof beyond reasonable doubt or preponderance of evidence, but “substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.” The Court held:

Equality, the recognition of the humanity of every individual, and social justice are the bedrocks of our constitutional order. By the unfortunate fortuity of the inability or outright irresponsibility of those who gave them life, foundlings are compelled to begin their very existence at a disadvantage. Theirs is a continuing destitution that can never be truly remedied by any economic relief.

If we are to make the motives of our Constitution true, then we can never tolerate an interpretation that condemns foundlings to an even greater misfortune because of their being abandoned. The Constitution cannot be rendered inert and meaningless for them by mechanical judicial fiat….

It is the empowering and ennobling interpretation of the Constitution that we must always sustain. Not only will this manner of interpretation edify the less fortunate; it establishes us, as Filipinos, as a humane and civilized people.

The petition was dismissed, and the Court held that the SET did not act without or in excess of its jurisdiction or without grave abuse of discretion in holding that Poe-Llamanzares was a natural-born citizen qualified to hold office as Senator of the Republic.


The Supreme Court’s plate in 2016 was a standard mix of cases implicating both the structure of government and the people’s rights. Some cases touched upon the national elections held in May of that year. On this score, the Court performed well by ruling on the qualifications of foundlings for national offices, and ensuring that the public be afforded every opportunity to make informed decisions.

The results of the elections will make 2017 more interesting. President Duterte’s approach to governance will trigger litigation that will reach the Supreme Court. More than 8,000 suspected drug users or pushers have been killed without the benefit of due process; there are no warrants of arrest, and no trials. His top critic, a Senator who conducted an investigation of the “war on drugs,” is now in jail. The Vice-President, also a critic of the drug war, is being threatened with impeachment. Most members of Congress have aligned themselves with the President. The Supreme Court is the only institution that can serve as a check on the President.

The rule of law in the Philippines will be tested very soon. There are cases challenging the President’s anti-drug program pending before the Supreme Court and the Office of the Ombudsman. The Court will be at a crossroads: in a position to either reprise its role in 1973 and bend to the Executive’s will or stand its ground and serve as a legitimate check on government excesses.


Agabin P, The Political Supreme Court (University of the Philippines Press 2012)

Gatmaytan D, Constitutional Law in the Philippines: Government Structure (Lexis Nexis 2015)

Gatmaytan-Magno D, “Changing Constitutions: Judicial Review and Redemption in the Philippines” (2007) 25 UCLA Pac Basin Law J 1

Vitug M, Shadow of Doubt: Probing the Supreme Court (Public Trust Media Group 2010)

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