Political Law a.

Branch of public law which deals with the operation and organization of the government organs of the state b. Defines the relationship (rights and obligations) between the state and the inhabitants of its territory

Branches of Political Law: (CALL) 1. Constitutional Law 2. Administrative Law - Law on Public Officers, Election Laws 3. Laws on Public Administration 4. Laws on Public Corporations Public Law - branch of law which deals with the State, state agencies, and the protection of state interests Political Law Criminal Law International Law Private Law - branch of law which deals with the relationship between and among individuals Civil Law Commercial/Mercantile Law

*Public Law/Political Law - abrogated when there is a transfer in sovereignty unless expressly reenacted or retained by the new sovereign (Macariola vs. Asuncion) * Private Law - retained unless expressly abrogated Constitutional Law - study of the constitution and the principles growing out of the interpretations of the provisions of the constitution Constitution: a. Body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised b. Serves as a limitation of a states power (state has inherent powers)

Is the constitution the source of power of the state? No. The constitution merely defines, limits, and establishes the powers of the State, therefore it is not the source of power. The source is the State itself. The constitution is the limitation of the otherwise limitless powers of the sovereign. Nature of the Constitution: Fundamental Supreme - Doctrine of Constitutional Supremacy Characteristics of the Constitution: 1. Limitation of the limitless power of the State. 2. Doctrine of constitutional supremacy - all laws must conform to the constitution *The constitution is the fundamental, paramount, and supreme law of the nation. It is deem written in every statute and contract. (Manila Prince Hotel vs. GSIS) Kinds of Constitution: 1. Written or Unwritten - according to when it is adopted Written: conventional or enacted Written at one time; provisions of which have been reduced into writing and embodied in one or more instruments at a particular time. Ex. 1987 Philippine Constitution (ratified 02/02/1987) Unwritten: cumulative or evolved Gradually developed by political evolution; has not been committed to writing at any specific time but is the collective product of gradual political development Ex. English constitution 2. Rigid or Flexible - according to amendment process Rigid: process is difficult Created by a special body other than that which makes the ordinary laws to which it is superior and may only be amended or repealed according to a special process Ex. 1987 Philippine Constitution Flexible Proceeds from the same source as ordinary laws to which it is not superior but equal in authority and may be altered as an ordinary law Ex. British constitution B. The 1987 Philippine Constitution Amendment and Revision

How do you change the 1987 Constitution? There are 2 ways: a. Amendment (3 ways) - changing a particular portion of the constitution b. Revision (2 ways) - overhauling the whole constitution Is it possible for an isolated change to be considered a revision? Yes, if it will change the fundamental, philosophical under spinning of the constitution. Sec.1, Art. 17 of the 1987 Constitution Section 1. Any amendment to, or revision of, this may be proposed by:

1. 2.

Congress, of members (voting separately) Constitutional convention - 2/3 members of congress

How to amend the 1987 Constitution? 1. Proposal (amendment & revision) Amendment Constituent Assembly - Congress transforms itself to a CA through a vote (voting separately) Constitutional Convention - called by Congress by a vote of 2/3 of all its members or by a majority vote of all its Members Peoples Initiative - petition of 12% of total # of registered voters; each district should be represented by 3%; not selfexecutory; there should be an enabling law Draft of proposal should be on the face/attached to the petition; no draft, petition is invalid Present to COMELEC (determines sufficiency of signatures); COMELEC submits certification of authentication Ratification: after certification by COMELEC is submitted 2. Ratification If proposal is done through CC/CA - majority of votes cast in a plebiscite no earlier than 60 days and not later than 90 days after approval If proposal is done through PI - majority of votes cast in a plebiscite after certification by COMELEC of the sufficiency of votes *It is important to identify if amendment or revision is need to identify the number of ways in proposing a change in the constitution. *RA 6735: Initiative Referendum Law; peoples initiative is for national/local legislation amendments only; not for constitut ional revisions (since revisions require cooperation and debate -> collegial body needed) How to revise the 1987 Constitution? 1. Constituent Assembly or Constitutional Convention 2. Ratification Qualitative Test - refers to how many provisions will be changed; if extensive, it will be considered a revision Quantitative Test - main inquiry is whether the change will change the nature of the basic government plan Doctrine of Fair and Proper Submission Wherein the people have sufficient time to an intelligent appraisal of the questions proposed in the amendments in connection with the other provisions in order to harmonize the constitution as a whole. All amendments to be proposed must be submitted at one time. Doctrine of Constitutional Supremacy If a law violates any norm of the constitution, that law is null and void; it has no effect. ( This is an overstatement, for a law held unconstitutional is not always wholly a nullity ) If a law or contract violates any norm of the constitution, that law or contract whether promulgated by the legislative or executive branch or entered into by any private persons for private purposes, is null and void without any force and effect.

C. The Constitution as interpreted by the Courts: Theory of Judicial Review Theory of Judicial Review

3 Types of Constitutionalism: a. British - no written constitution, uncodified b. Continental - written constitution, no judicial review c. American - written constitution, judicial review (Ex. 1987 Philippine Constitution) Judicial Review - power of the courts to declare that a law or executive act is not in accord with the constitution; enforces constitutional supremacy Judicial Power - duty of courts of justice to settle actual controversies and to determine whether or not there has been a grave abuse of discretion 1. JR is part and a parcel of JP JR is not supremacy of the courts but supremacy of the constitution -> doctrine of constitutional supremacy JR does not nullify the act of the other branches of the government but only asserts its solemn and sacred obligation assigned by the constitution The Philippines is the first in the world to define JUDICIAL POWER Conditions for the Exercise of Judicial Review (APEN) Actual Case or controversy There must be conflicting legal rights that would result to full blown legal disputes It must not be a hypothetical question otherwise the court will just provide an advisory opinion that does not command obedience a. Subverts the very idea of separation of powers b. Danger of taxing court resources c. Presumption of constitutionality takes more than hypothetical questions Filed by the Proper Party Party must have the locus standi or standing to sue Party must have sustained an injury or be in immediate danger of sustaining an injury Interests should be specific and substantial rather than general Exception: Courts can exercise JR even if not the proper party if it involves paramount national interest (subjective to the courts) or of transcendental importance Transcendental Importance - when there are instructive determinants (any, some, or all)

2.

Able to show the character of the assets involved in the case The presence of a clear case of disregard of constitutional prohibition Lack of any other party with a more direct and specific interest in raising the questions being raised Transcendental Importance (Lozano vs. Nograles) Should not be abused Subjective to the courts Not an open invitation for the ignorant to file their petitions that prove nothing but their cerebral deficit When do the following have standing to sue? Citizens - direct and personal interest; paramount public interest Taxpayers - disbursement of public funds; when there is an allegation of Congress abusing its taxing and spending powers Legislator - infringes his prerogatives as a legislator Congress - usurpation of the powers of Congress Voters - validity of Election Law

3.

Issue of constitutionality should be raised at the earliest time CQ must be raised at the earliest part/opportunity of the proceedings CQ cant just be an after-thought CQ cant just be moot and academic except if its a case capable of repetition yet evading review Exceptions: Criminal cases - CQ can be raised at any time in the discretion of the court Civil cases - CQ can be raised at any stage if its necessary to the determination of the case itself In ever case, except where there is estoppel, the constitutional question may be raised at any stage if it involves the jurisdiction of the court. Necessity in deciding the constitutional question The issue must be the lis mota (unavoidable question) of the case Must present a need to present a CQ; no other grounds present to base decision of the case Purposeful hesitation: willful hesitation to veer away constitutionality To doubt is to sustain Moot and academic: an action is considered moot when it no longer presents a justifiable controversy because the issues involved have become academic or dead 1. There has been a grave violation of the constitution 2. Issue is exceptional in character and involves matters of transcendental importance 3. For purposes of educating the bench and bar 4. Issue is capable of repetition yet evading review Functions of Judicial Review Checking - invalidating a law or executive act that is found to be contrary to the constitution Legitimating - upholding the validity of a law which results from a mere dismissal of a case challenging the validity of the law When the Court exercises this function, it uses the double negative by declaring that the law is "not unconstitutional". This is no mere semantics. The Court cannot declare the law constitutional for it enjoys the presumption of constitutionality, so that a declaration to that effect by the court would not make it more constitutional. On the other hand, anyone who challenges the validity of a law has the burden of proof to show its invalidity. Declaring that the law is not unconstitutional is tantamount to saying that the challenger has not met the burden required. Symbolic - to educate the bench at bar as to the controlling principles and concepts on matters of great public importance What Court May Exercise Judicial Review 1. Supreme Court 2. Lower Courts

4.

1. 2.

3.