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UP L AW 2012 B AR R EVIEWER PP P OO O LL L II
UP L AW 2012 B AR R EVIEWER PP P OO O LL L II

UP LAW

2012

BAR REVIEWER

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Constitutional Law 1 Constitutional Law 2 Law on Public Officers Administrative Law Election Law Local Governments Public International Law

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Dean Danilo L. Concepcion Dean, UP College of Law

Prof. Concepcion L. Jardeleza Associate Dean, UP College of Law

Prof. Ma. Gisella D. Reyes Secretary, UP College of Law

Prof. Florin T. Hilbay Faculty Adviser, UP Law Bar Operations Commission 2012

Ramon Carlo F. Marcaida Commissioner

Eleanor Balaquiao Mark Xavier Oyales Academics Committee Heads

Rogelio Benjamin Redoble Moises Ronette Colobong Political Law Subject Heads

Graciello Timothy Reyes Layout

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POLITICAL LAW TEAM 2012 Faculty Editor | Prof. Florin T. Hilbay Subject Heads |Rogelio Benjamin Redoble Moises Ronette Colobong Contributors| Alferri Bayalan Cielo Gono Noel Luciano

LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible Noel Luciano RM Meneses Jenin Velasquez Mara Villegas Naomi Quimpo Leslie Octaviano Yas Refran Cris Bernardino Layout Head| Graciello Timothy Reyes

BAR OPERATIONS COMMISSION 2012

EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor

COMMITTEE HEADS Eleanor Balaquiao Mark Xavier Oyales | Acads Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel Miranda (D) |Special Lectures Patricia Madarang Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo Jose Lacas |Logistics Angelo Bernard Ngo Annalee Toda|HR Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo Katrina Maniquis |Mock Bar Krizel Malabanan Karren de Chavez |Bar CandidatesWelfare Karina Kirstie Paola Ayco Ma. Ara Garcia |Events

OPERATIONS HEADS Charles Icasiano Katrina Rivera |Hotel Operations Marijo Alcala Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva Charlaine Latorre |Food Kris Francisco Rimban Elvin Salindo |Transpo Paula Plaza |Linkages

|Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages UP LAW BAR OPERATIONS COMMISSION

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2012 UP Law Bar Reviewer

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Copyright and all other relevant rights over this material are owned jointly by the University of the Philippines College of Law and the Student Editorial Team.

The ownership of the work belongs to the University of the Philippines College of Law. No part of this book shall be reproduced or distributed without the consent of the University of the Philippines College of Law.

All Rights reserved.

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Constitutional Law 1 A. The Constitution 11 I. Definition, Nature and Concepts 11 II. Parts

Constitutional Law 1

A.

The Constitution

11

I. Definition, Nature and Concepts

11

II. Parts

 

12

III. Amendments and Revisions

12

IV. Self-Executing and Non-Self-

Executing Provisions

16

V.

General Provisions

16

B.

General Considerations

16

I. National Territory

16

II. State Immunity

17

III. Principles and Policies

19

IV. Separation of Powers

20

V. Forms of Government

21

C.

Legislative Department

22

I. Who May Exercise Legislative Power 22

II. Houses of Congress

22

III. Legislative Privileges, Inhibitions and

Disqualifications

24

IV. Quorum and Voting Majorities

25

V. Discipline of Members

26

VI. Electoral Tribunals and the

Commission on Appointments

26

VII. Powers of Congress

28

D.

Executive

Department

32

I.

Privileges, Inhibitions and

Disqualifications

32

II.

Powers

36

D.

Judicial Department

48

I. Concepts

 

48

II. Constitutional Safeguards of the

Supreme Court

50

III. Judicial Restraint

51

IV. Appointments to the Judiciary

51

F.

Constitutional Commissions

54

I. Institutional Independence Safeguards

 

54

 

II. Powers and Functions

54

III. Judicial Review

57

G.

Citizenship

 

57

1.

Natural-Born Citizens and Public

Office

 

58

2. Naturalization and Denaturalization 58

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3. Loss of Citizenship

59

4. Repatriation

60

H. National Economy & Patrimony

60

1. Regalian Doctrine

60

2. Nationalist and Citizenship

Requirement Provisions

60

3.

Exploration, Development and

Utilization of Natural Resources

61

4. Franchises, Authority and Certificates

for Public Utilities

62

5.

Acquisition, Ownership and Transfer

of Public and Private Lands

63

6. Practice of Professions

63

7. Organization and Regulation of

Corporations, Private and Public

63

8.

Monopolies, Restraint of Trade and

Unfair Competition

63

I. Social Justice & Human Rights

64

1. Concept of Social Justice

64

2. Commission on Human Rights

64

J. Education, Science, Technology, Arts,

Culture and Sports

65

1.

Academic Freedom

65

Constitutional Law 2

A. Fundamental Powers of the State

67

1. Concept and Application

67

2. Requisites for Valid Exercise

70

3. Similarities and Differences

71

4. Delegation

72

B. Private Acts & the Bill of Rights

73

1. In General

73

2. Bases and Purpose

73

3. Accountability

74

C. Due Process

74

1. Relativity of Due Process

75

2. Procedural and Substantive Due

Process

75

3.

Constitutional and Statutory Due

Process

76

4. Hierarchy of Rights

76

5. Judicial Standards of Review

77

D. Equal Protection

77

1. Concept 2. Requisites for Valid Classification E. Searches and Seizures 1. 2. 3. Warrantless

1. Concept

2. Requisites for Valid Classification

E. Searches and Seizures

1.

2.

3. Warrantless Searches

4. Warrantless Arrests

5. Administrative Arrests

6. Drug, Alcohol and Blood Tests

Concept Warrant Requirement

77

77

79

79

79

80

83

85

85

F. Privacy of Communications and

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L. Eminent Domain

98

1.

Concept

98

2. Expansive Concept of ―Public Use‖ . 99

3. Just Compensation

100

4. Abandonment of Intended Use and

Right of Repurchase

101

5.

Miscellaneous Application

101

M. Contracts Clause

102

1. Application of the Contract Clause 102

2. Contemporary Application of the

Correspondence

85

Contract Clause

102

 

1. Private and Public Communications 85

 

3.

Limitations

103

Intrusion, When Allowed

85

2. Writ of Habeas Data

86

N. Legal Assistance and Free Access to

 

1. Concept and Scope

86

Courts

 

103

2. Content-Based and Content-Neutral

 

Regulations

87

O. Rights of Suspects

103

Content-Neutral Restrictions

89

1. Availability

104

3.

Facial Challenges and the

2. Requisites

105

Overbreadth Doctrine

90

3. Waiver

106

4. Tests

91

5. State Regulation of Different Types of

P. Rights of the Accused

106

Mass Media

91

1. Criminal Due Process

107

6. Commercial Speech

93

2. Bail

107

7. Private v. Government Speech

93

3. Presumption of Innocence

109

8. Heckler‘s Veto

93

4. Right to be Heard

109

 

5. Assistance of Counsel

109

H.

Freedom of Religion

93

6. Right to be Informed

109

1. Non-Establishment Clause

93

7. Right to Speedy, Impartial and Public

2. Free Exercise Clause

94

Trial

109

 

8. Right of Confrontation

110

I. Liberty of Abode and Freedom of

 

9. Compulsory Process

110

Movement

95

10.

Trials In Absentia

110

 

1.

Limitations

95

Right to Travel

95

Q. Writ of Habeas Corpus

111

2.

Return to One‘s Country

95

 

R. Writ of Amparo

112

J. Right to Information

95

 

1. Limitations

96

S. Self-Incrimination Clause

114

2. Publication of Laws and Regulations 96

 

1. Scope and Coverage

114

3. Access to Court Records

96

2. Application

115

4. Right to Information Relative to

97

3. Immunity Statutes

115

K. Right to Association

97

T. Involuntary Servitude and Political

 

1. Labor Unionism

98

Prisoners

115

2. Communist and Similar Organizations

 
 

98

U.

Excessive Fines and Cruel and

 
 

3. Integrated Bar of the Philippines

98

Inhuman Punishments

116

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W. Double Jeopardy

117

G. Rights of Public Officers

133

 

1. Requisites

117

I. In General

133

2. Motions for Reconsideration and

II. Right to Compensation

134

Appeals

118

III. Other Rights

134

3.

Dismissal with Consent of Accused.118

 
 

H. Liabilities of Public Officers

135

X.

Ex Post Facto and Bills of Attainder118

Preventive Suspension and Back Salaries

I.

136

Law on Public Officers

A.

General Principles

121

I. Concept and Application

121

II. Public Officer

123

III. Classification of Public Offices and

Public Officers

124

B.

Modes of Acquiring Title to Public

Office

 

124

 

I. Classification of Appointments

125

II. Steps in Appointment Process

125

III. Presidential Appointees

125

IV. Discretion of Appointing Official

126

V. Effectivity

of Appointment

127

VI. Effects of a Complete, Final and

Irrevocable Appointment

127

D.

Eligibility and Qualification

Requirements

 

127

 

I. Definition

127

II. Power to Prescribe Qualifications

127

III. Time of Possession of Qualifications

 

128

IV. Eligibility is Presumed

128

V. Qualifications Prescribed By

Constitution

128

VI. Religious Test or Qualification is not

 

Required

129

VII. Qualification Standards and Requirements under the Civil Service Law

129

E.

Disabilities and Inhibitions of Public

Officers

130

F. Powers and Duties of Public Officers

132

I. Classification of Powers and Duties 132

II. Source of Powers and Authority

132

III. Duties of Public Officers

133

II. Illegal Dismissal, Reinstatement and

Back Salaries

137

I. Immunity of Public Officers

137

J. De Facto Officers

137

I. De Facto Doctrine

137

II. De Facto Officer Defined

138

III. Elements of a De Facto Officership

139

IV. Office created under an

unconstitutional statute

139

V.

Legal Effect of Acts of De Facto

Officers

139

VII. Right to Compensation of De Facto

Officer

140

K. Termination of Official Relation

140

Expiration of the term or tenure of office

I.

140

 

II.

Reaching the age limit (retirement)

 

140

 

III.

Death or permanent disability

140

IV.

Resignation

140

V.

Acceptance of an incompatible office

 

141

 

VI.

Abandonment of office

141

VII.

Prescription of right to office

141

IX.

Impeachment

141

X.

Abolition of office

141

XI.

Conviction of a crime

141

XII.

Recall

142

L. The Civil Service

142

 

I.

Scope

142

Civil Service Commission’s (CSC’s)

Jurisdiction

142

II. Appointments to the Civil Service

142

III. Personnel Actions

142

M.

Accountability of Public Officers

143

  I. Impeachment 143 II. Ombudsman 144 III. Sandiganbayan 144 IV. Ill-Gotten Wealth 145
 

I.

Impeachment

143

II. Ombudsman

144

III. Sandiganbayan

144

IV. Ill-Gotten

Wealth

145

N.

Term Limits

146

Administrative Law

A. General Principles

148

 

I. Definitions

148

II. Historical Considerations

148

B. Administrative Agencies

148

I. Modes of Creation of Administrative Agencies

II. When is an agency administrative? 148

148

III. Types of Administrative Agencies .148

C. Powers of Administrative Agencies 148

I. Quasi-Legislative (Rule Making) Power

148

III. Fact-Finding, Investigative, Licensing

and Rate-Fixing Powers

II. Doctrine of Exhaustion of

Administrative Remedies

III. Doctrine of Finality of Administrative

152

153

Action

154

Election Law

_Toc324721036

A. Suffrage

156

I. Scope

156

II. Election Period

156

B. Qualification and Disqualification of

Voters

156

156

157

I.

II. Overseas Absentee Voter

Qualifications

C. Registration of Voters

Definition

157

157

II. System of Continuing Registration of

I.

Voters

157

III. Illiterate or disabled voters

158

IV. Election Registration Board

158

V. Change of residence or

address

158

VI. Challenges to right to register

158

VII. Deactivation of Registration

158

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VIII. Reactivation of Registration

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158

IX. Certified List of Voters

159

X. Annulment of Book of Voters

159

XI. Overseas Absentee Voter

159

D. Inclusion and Exclusion Proceedings

 

159

E. Political Parties

160

I.

Party System

160

III.

Purpose

160

IV.

Procedure for Registration

160

V.

Who May Not be Registered

160

VI.

Grounds for refusal and/or

cancellation of registration

160

VII. Parameters in Allocation of Seats

 

for Party-List Representatives

161

VIII.

Effect of Change of Affiliation

161

IX.

Nomination of Party-List

Representative

161

F.

Candidacy

162

I. Qualifications of Candidates

162

II. Filing of Certificates of Candidacy .163

G.

Campaign

165

I. Premature Campaigning

165

II. Prohibited Contributions

167

H.

Board of Canvassers

168

I. Composition of Board of Canvassers 168

II. Prohibitions on BOC

169

III. Canvass by

the BOC

169

IV. Certificate of Canvass and Statement

of Votes

169

V.

Proclamation

169

I. Remedies and Jurisdiction in Election

Law

 

170

 

Petition Not to Give Due Course to Certificate of Candidacy

I.

170

II.

Petition to Declare Failure of

Elections

170

III. Pre-Proclamation Controversy

171

IV. Election Protest

172

V. Quo Warranto

173

J.

Prosecution of Election Offenses

173

I. Jurisdiction over Election Offenses .173

II. Preferential Disposition of Election P PP O OO L LL I II T TT

II.

Preferential Disposition of Election

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Offenses

173

A.

Concepts

210

III. Election Offenses

173

1. Obligations Erga Omnes

210

IV. Arrests in Connection with Election

 

2. Jus Cogens

210

Campaign

175

3. Concept of Aequo Et Bono

210

V. Prescription

175

VI. Prohibited Acts Under R.A. 9369

175

B.

International and National Law

210

 

Relationship between PIL and Municipal

Local Governments

 

Law

210

   

C.

Sources

211

A. Public Corporations

1. Concept

2. Classifications

178

178

178

1. Treaty as Source of Law

2. Customary International Law

3. General Principles of Law

211

211

213

B. Municipal Corporations

1. Elements

178

178

4. Subsidiary Source: Judicial Decisions

5. Subsidiary Source: Publicists

213

214

2. Nature and Functions

179

 

3. Requisites for Creation, Conversion,

Division, Merger or Dissolution

179

D.

Subjects

214

   

1. States

214

C. Principles of Local Autonomy

183

2. International Organizations

3. Individuals

216

217

1.

State Policy, Principles of

Decentralization

183

2. Local Autonomy

3. Decentralization

4. Devolution (asked in 1999)

183

183

184

E.

Diplomatic and Consular Law

217

217

217

1.

Functions and Duties

2. Diplomatic Immunities and Privileges

Agents of Diplomatic Intercourse

D. Powers of Local Government Units

 

3. Consular Relations

218

220

(LGUs)

184

1. Police Power (General Welfare Clause)

   

184

186

187

188

2. Eminent Domain [Sec. 19, LGC]

3. Taxing Power [Sec. 18, LGC]

4. Closure and Opening of Roads [Sec.

21, LGC]

5. Legislative Power [Secs. 48-59, LGC]

F.

Treaties

1. Definition

2. Requisites for Validity

3. The Treaty-Making Process

4. Invalid Treaties

5. Grounds for Termination

221

221

222

222

223

223

189

194

194

6. Corporate Powers

7. Liability of LGUs

Liability for Torts, Violation of the Law

and Contracts

8. Settlement of Boundary Disputes

9. Succession of Elective Officials

Rules on Succession

195

196

196

197

G.

Nationality and Statelessness

223

223

224

226

1. Nationality

2. Statelessness

Definition of Human Rights

2.

Political Rights (ICCPR)

3.

Social and Cultural Rights (ICESCR)

International Covenant on Civil and

226

International Covenant on Economic,

227

10. Discipline of Local Officials

199

 

11. Recall

203

12. Term Limits

204

J.

and Neutrality

International Humanitarian Law (IHL)

227

Public International Law

 

2.

Core International Obligations of

States in IHL

228

3. Principles of IHL 4. Law on Neutrality K. Law of the Sea 1. 2.

3. Principles of IHL

4. Law on Neutrality

K. Law of the Sea

1.

2. Archipelagic States

3. Internal Waters

4. Territorial Sea

5. Exclusive Economic Zone

6. Continental Shelf

7. Tribunal of the Law of the Sea

Baselines

L. International Environment Law

228

230

230

230

230

231

231

232

232

233

234

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UP LAW

2012

BAR REVIEWER

UP L AW 2012 B AR R EVIEWER P PP O OO L LL I II

PPPOOOLLLIIITTTIIICCCAAALLL

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POLITICAL LAW TEAM 2012 Faculty Editor | Florin T. Hilbay Subject Heads| Rogelio Benjamin Redoble Moises Ronette Colobong Contributors| Alferri Bayalan Cielo Gono Noel Luciano

LAYOUT TEAM 2012 Layout Artists | Alyanna Apacible Noel Luciano RM Meneses Jenin Velasquez Mara Villegas Naomi Quimpo Leslie Octaviano Yas Refran Cris Bernardino Layout Head| Graciello Timothy Reyes

Constitutional Law 1

BAR OPERATIONS COMMISSION 2012

EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor

COMMITTEE HEADS Eleanor Balaquiao Mark Xavier Oyales | Acads Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel Miranda (D) |Special Lectures Patricia Madarang Marinella Felizmenio |Secretariat Victoria Caranay |Publicity and Promotions Loraine Saguinsin Ma. Luz Baldueza |Marketing Benjamin Joseph Geronimo Jose Lacas |Logistics Angelo Bernard Ngo Annalee Toda|HR Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise Graciello Timothy Reyes |Layout Charmaine Sto. Domingo Katrina Maniquis |Mock Bar Krizel Malabanan Karren de Chavez |Bar CandidatesWelfare Karina Kirstie Paola Ayco Ma. Ara Garcia |Events

OPERATIONS HEADS Charles Icasiano Katrina Rivera |Hotel Operations Marijo Alcala Marian Salanguit |Day-Operations Jauhari Azis |Night-Operations Vivienne Villanueva Charlaine Latorre |Food Kris Francisco Rimban Elvin Salindo |Transpo Paula Plaza |Linkages

|Food Kris Francisco Rimban • Elvin Salindo |Transpo Paula Plaza |Linkages UP LAW BAR OPERATIONS COMMISSION

UP LAW BAR OPERATIONS COMMISSION

CONSTITUTIONAL LAW 1

Constitutional Law 1

 

POLITICAL LAW

Constitutional Law 1 Constitutional Law 2 Law on Public Officers Administrative Law Election Law Local Governments Public International Law

A. The Constitution

B. General Considerations

C. Legislative Department

D. Executive Department

E. Judicial Department

F. Constitutional Commissions

 
 

G. Citizenship

H. National Economy and Patrimony

I. Social Justice and Human Rights

J. Education, Science, Technology, Arts, Culture and Sports

A. The Constitution

I. Definition, Nature and Concepts

II. Parts

III. Amendments and Revisions

IV. Self-Executing and Non-Self Executing Provisions

V. General Provisions

I. Definition, Nature and Concepts

Political law branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. [People v. Perfecto, 43 Phil 88, 1922]

Scope of Political Law - The entire field of political law may be subdivided into:

(1)

the law of public administration;

(2)

constitutional law,

(3)

administrative law, and

(4)

the law of public corporations.

These four subdivisions may be briefly described for the time being, as follows: The first deals with the organization and management of the different branches of the government; the second, with the guaranties of the constitution to individual rights and the limitations on governmental action; the third, with the exercise of executive power in the making of rules and the decision of questions affecting private rights; and the last, with governmental agencies for local government or for other special purposes. [Sinco 1]

Constitutional Law designates the law embodied in the Constitution and the legal principles growing out of the interpretation and application of its provisions by the courts in specific cases. It is the study of the maintenance of the proper balance between the authority as represented by the three inherent powers of the State and liberty as guaranteed by the Bill of Rights.

Types of Constitutional Law. In general, there are three (3) different types of constitutional law, namely,

(1) The English type - characterized by the absence of a written constitution (Sinco 67). An

POLITICAL LAW REVIEWER

unwritten constitution, and the power of judicial review by the courts. Thus, the courts cannot inval¬idate the acts of the parliament as being unconstitutional be¬cause of "parliamentary supremacy."

be¬cause of "parliamentary supremacy." 11 (2) The European continental type - where there is a

11

(2) The European continental type - where there is a written constitution w/c gives the courts no power to declare ineffective statutes contrary to it [Sinco 67]. A written constitution but no power of judicial review by the courts. The so- called Con¬stitutional Courts of France do not exercise real judicial review but only render advisory opinions on constitutional questions upon the request of the government, not of parties in actual litigation.

(3) The American type - where the legal provisions of the written constitution are given effect through the power of the courts to declare ineffective or void ordinary statutes repugnant to it. [Sinco 67].

Constitution defined (1) It is the document which serves as the fundamental law of the state; that written instrument enacted by the direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise, for the benefit of the body politic [Malcolm, Phil. Constitutional Law]. (2) "A law for the government, safeguarding individual rights, set down in writing." [Hamilton] (3) According to Schwartz, "a constitution is seen as an organic instrument, under which governmental powers are both conferred and circumscribed. Such stress upon both grant and limitation of authority is fundamental in American theory. 'The office and purpose of the constitution is to shape and fix the limits of governmental activity.'" [Fernando, The Constitution of the Philippines, 20-21, 2nd ed.,

1977]

Classification of Constitutions

1. Written v. unwritten. A written constitution is one whose precepts are embodied in one document or set of documents; while an unwritten constitution consist of rules which have not been integrated into a single, concrete form but are scattered in various sources, such as statutes of fundamental character, judicial decisions, commentaries of publicists, customs and traditions. [Cruz, Constituional Law, pp. 4- 5; Nachura, Outline Reviewer in Political Law, p. 2]

2. Enacted (conventional) v. evolved (cumulative). A conventional constitution is enacted, formally struck off at a definite time and place following a conscious or deliberate effort taken by a constitutent body or ruler; while a cumulative body is the result of political

CONSTITUTIONAL LAW 1

evolution, not inaugurated at any specific time but changing by accretion rather than by any systematic method. [Cruz, ibid, p.5].

3. Rigid v. flexible - A constitution is classified as rigid when it may not be amended except through a special process distinct from and more involved than the method of changing ordinary laws. It is supposed that by such a special procedure, the constitution is rendered difficult to change and thereby acquires a greater degree of stability. A constitution is classified as flexible when it may be changed in the same manner and through the same body that enacts ordinary legislation. The British Constitution is flexible.

Note: A constitution's stability depends upon other factors than the mere rigidity or flexibility of the amending process, such as (1) the general temperament of the people and their leaders and (2) the degree of a nation's political maturity and social homogenity. [Sinco 68-70]

The Philippine Constitution is written, enacted and rigid.

The 1987 Constitution took effect on February 2, 1987, the date of its ratification in the plebiscite held on the same date, and not on the date its ratification was proclaimed [De Leon v. Esguerra, No.L-78059, August 31, 1987]

State a community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing a government to which a great body of the inhabitants render habitual obedience; a politically organized sovereign community independent of outside control bound by ties of nationhood, legally supreme within its territory, acting through a government functioning under a regime of law. [Collector of Internal Revenue v. Campos Rueda, No.L-13250, October 29, 1971]

II. Parts

Parts of the Constitution (1) Constitution of Government establishes the structure of government, its branches and their operation.

(2) Constitution of Sovereignty provides how the Constitution may be changed.

(3)

Constitution of Liberty states the fundamental rights of the people.

[Lambino v. Comelec. G.R. No.174153. October 25,

2006]

III. Amendments and Revisions

Article XVII Amendments or Revisions

Amendment refers to an addition or change within the lines of the original constitution as will effect an improvement, or better carry out the purpose for which it was framed. It refers to a change that adds,

POLITICAL LAW REVIEWER

reduces or deletes without altering the basic principles involved. It affects only the specific provision being amended. (Lambino v. Comelec. G.R. No.174153. October 25, 2006).

( Lambino v. Comelec. G.R. No.174153. October 25, 2006). 12 Revision – broadly implies a change

12

Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution (Lambino v. Comelec. G.R. No.174153. October 25, 2006).

Difference between amendment and revision Courts have long recognized the distinction between an amendment and a revision of a constitution. xxx Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended [Lambino v. Comelec. G.R. No.174153. October 25, 2006]. This distinction is significant because the 1987 Constitution allows people‘s initiative only for the purpose of amending, not revising, the Constitution. (See tables below)

Legal Test: The Court in Lambino considered the two-part test: the quantitative test and the qualitative test.

(1) The quantitative test asks whether the proposed change is ―so extensive in its provisions as to change directly the ‗substantial entirety‘ of the constitution by the deletion or alteration of numerous existing provisions.‖ The court examines only the number of provisions affected and does not consider the degree of the change.

(2)

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will ―accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision.‖ Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, ―a change in the nature of [the] basic governmental plan‖ includes ―change in its fundamental framework or the fundamental powers of its Branches.‖ A change in the nature of the basic governmental plan also includes changes that ―jeopardize the traditional form of government and the system of check and balances.‖ [See Lambino Case]

Steps in the Amendatory Process

CONSTITUTIONAL LAW 1

(1) Proposal The adoption of the suggested change in the Constitution.

POLITICAL LAW REVIEWER

be

represented by at least 3% of the

legislative district must

 

a.

By Congress (as a constituent assembly) a vote of ¾ of ALL its members.

 

registered voters therein.

 
   

i.

Limitation:

 

No

 

amendment

in

this

 

b.

Constitutional Convention which may be called into existence by 2/3 of all the members of Congress. The Congress, upon a majority vote of all its members may submit the question of whether to call a constitutional convention to be resolved by the people in a plebiscite. [Sec. 3, Art. XVII].

3 Theories on the Constitutional Position of Conventions

A Convention as a body of very limited powers, purely delegated by the

people directly or by the regularly constituted legislature.

i.

manner

shall

be

 

authorized within 5 years

following the ratification

of

this

Constitution

nor

more often

than

once

every 5 years thereafter.

(2) Ratification the proposed amendment shall be submitted to the people and shall be deemed ratified by the majority of the votes cast in the plebiscite, held not earlier than 60 days nor later than 90 days:

a. After approval of the proposal by Congress or Concon;

b. After certification by the COMELEC of sufficiency of petition of the people.

ii.

Theory

of

conventional

Doctrine of Proper Submission plebiscite may be held on the same day as regular election [Gonzales v. COMELEC, 21 SCRA 774]. The use of the word ―election‖ in the singular meant that the entire Constitution must be submitted for ratification at one plebiscite only; furthermore, the people must have a ―proper frame of reference‖. [Tolentino v. Comelec, 41 SCRA 702].

Judicial Review of Amendments The question in now regarded as subject to judicial review, because invariably, the issue will boil down to whether or not the constitutional provisions had been followed.

iii.

sovereignty the convention as the supreme organ of the people, a representative body. Constitutional convention as one of the coordinate departments of the existing government. [Sinco, p. 55-56].

 

c.

People,

through

the

power of

 

initiative A petition of an at least

 

12% of the total number of registered voters of which every

 

Amendments or Revisions

 

(Three Stages)

 

Proposal

 

Submission

 

Ratification

 

Both amendments and revisions

     

a. Congress, upon a vote of ¾ of all its members

b. Constitutional Convention 1. Congress may, by a vote of 2/3 of all its Members, call a ConCon 2. By a majority vote of all its Members, submit to the electorate the question of calling such a convention (Sec.3)

(Prevailing view) Congress, through a law calling for plebiscite

The people, through a majority of the votes cast in a plebiscite held not earlier than 60 days nor later than 90 days after the approval of such amendment or revision

Amendments only

   

c.

People, 1.through initiative 2.upon a petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein (Sec.2)

The people, through a majority of the votes cast in a plebiscite held not earlier than 60 days nor later than 90 days after the certification by the COMELEC of the sufficiency of the petition.

Table of Cases re: Constitutional Amendments

the petition. Table of Cases re: Constitutional Amendments 13 Date/Timeline What happened Case and ratio May

13

Date/Timeline

What happened

Case and ratio

May 14, 1935

Electorate ratifies the 1935 Constitution

-------

1940

1940 Amendments

(Amended to create a bicameral Congress; an independent Electoral Commission; and a four year term for the President

CONSTITUTIONAL LAW 1

POLITICAL LAW REVIEWER

Date/Timeline

 

What happened

Case and ratio

   

with a maximum of 2 consecutive terms of office)

1947

Parity Amendment

Mabanag vs. Lopez Vito petitioners seek to prevent enforcement of the Resolution of Congress proposing the Parity Amendment to the people was assailed on the grounds that it did not comply with the ¾ rule prescribed by the Constitution. Held: Proposal of amendments to the constitution is a political question. Moreover, the enrolled copy of the resolution in which it was certified that the proposal had been approved by the required vote was conclusive upon the courts. Petition dismissed.

1967`

Resolution calling for the

Gonzales vs. COMELEC involves three resolutions passed by Congress acting as Constituent Assembly. Res.1 called for increase in the membership of the HOR, Res.2 called for a Constitutional Convention, and Res.3 called for amendment of Sec.16, Art.VI to allow members of Congress to become delegates to the ConCon without losing their seats. Petitioners seek to restrain respondents from enforcing the law passed by Congress providing that amendments in Res.1 and 3 be submitted for approval by the people at the general elections scheduled to held on November 1967. Held: Petition denied. 1.) Proposal of amendments is not a political but a justiciable question subject to judicial review; 2.) Congress may propose amendments and at the same time call for a Constituent Assembly; 3.) Ratification may be done simultaneous with a general election or in a special election called specifically for that purpose 4.) There is proper submission

1971

Constitutional

Convention

1971

1971

Constitutional

Tolentino vs. COMELEC involves the validity of a resolution of the ConCon submitting the proposal to lower the voting age to 18 for ratification. The question here is whether piecemeal amendments to the Constitution could be submitted to the people for ratification or rejection. Held: All amendments proposed by the same Constitutional Convention shall be submitted to the people in a single election. Petition granted.

Convention convened

September 10,

Marcos declared Martial

(some delegates of the 1971 ConCon went to hiding, gone missing, some remained, etc. The revised Constitution was miraculously ―finished‖ two months after the declaration of Martial Law)

1972

Law

1973

Plebiscite cases

Planas v. COMELEC - Petitioners seek to enjoin respondents from implementing PD 73, which called for a plebiscite (to be held on January 15, 1973) for the constitution approved by the ConCon on 1972, on the theory that: a.) the power to submit is lodged exclusively in Congress, and b.) there is no proper submission to the people. Held: The issue of validity of calling for a plebiscite (submission) is justiciable. BUT, Issue became moot. Petition dismissed.

Ratification cases

Javellana vs. Executive Secretary Petitioners now seek to enjoin the respondents from implementing any of the provisions of the ―new constitution‖ not found in the 1935 Constitution, on the theory that it was not validly ratified in accordance with the provisions of Art.1, Section XV. Held: Although the question of whether a Constitution was validly ratified is a justiciable question, the question whether a Constitution has come into force and effect is a political question beyond the competence of the SC to decide.

1976

1976

Amendments

Sanidad vs. COMELEC petitioners question the authority of the President in issuing several PDs proposing amendments to the New Constitution and calling for a national referendum- plebiscite for the said amendments. Held: The amending process, both as to proposal and ratification, raises a judicial question.

the said amendments. Held: The amending process, both as to proposal and ratification, raises a judicial

14

CONSTITUTIONAL LAW 1

POLITICAL LAW REVIEWER

Date/Timeline

 

What happened

Case and ratio

   

Held: In a crisis government, the President shall have the power to assume the constituent power to propose amendments lodged in the Legislative body.

1981

Martial Law lifted.

Mitra vs. COMELEC I consider this a belated continuation of

1981

Amendments

the Ratification Cases. At the core, the petitioners are arguing that the 1973 Constitution never validly took effect, the ruling in Javellana aside. Their theory is that the 1973 Constitution was still and is still at the stage of proposal, and in the event it was rejected by the people in a plebiscite, the 1935 Constitution, which was merely suspended by the declaration of Martial Law, could be one more operative Held: Even without valid ratification, a new Constitution could come into force and effect by the acquiescence of the people. Popular acquiescence to a new Constitution gives the document the force and effect of the Fundamental Law of the Land, regardless of the method of ratification. If it is accepted by the people, in whom sovereignty resides according to the Constitution, then the courts cannot refuse to yield assent to such a political deicision.

 

(Legazpi vs. Minister of Finance) President retained his legislative powers even after the lifting of Martial Law and the 1981 Amendments to the 1973 Constitution (which vested executive powers back to the President) by virtue of Amendment

No.6

1986

EDSA Revolution

Lawyers’ League for a Better Philippines vs. Aquino The question of legitimacy of a new government arising from a successful revolution is a political question beyond the pale of review by the courts.

In re: Saturnino V. Bermudez Reaffirmed Lawyers League for a Better Philippines. vs Aquino. The ―President‖ referred to in the Draft (1987) Constitution is Pres. Aquino, not Pres.Marcos who was proclaimed under authority of the 1973 Constitution.

February 2, 1987

1987

Constitution ratified

De Leon vs. Esguerra Power granted by a superseded constitution is deemed terminated the day the new constitution was ratified.

1997

PIRMA case

Santiago et al. vs. COMELEC Petitioners seek to enjoin respondent COMELEC from acting on the petition by the PIRMA group asking for an order fixing details on how to collect signatures for a people‘s initiative to amend the Constitution Held: Court agreed with the position of petitioners. The system of initiative found in Article XVII, Sec.2 is not self- executory. It needs an enabling law before the right of the people to could be exercised. However, an examination of its provisions reveals that RA 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. COMELEC permanently enjoined from entertaining or taking cognizance of any petition for initiative until a sufficient law shall have been validly enacted to provide for the implementation of the system.

2001

EDSA II

Estrada vs. Desierto Legal distinction between EDSA I and EDSA II: The government arising from EDSA I was extraconstitutional, while EDSA II was a constitutional exercise of the right to free speech, freedom of assembly, and to petition the government for redress.

2007

People‘s Initiative of PGMA

Lambino vs. COMELEC The constituent power reserved to people under Art.XVII Sec.2 is limited to the power to propose amendments to, not revision of, the Constitution. Moreover, ―direct proposal by the people‖ means that the petition signed by the people should contain the full text of the proposed amendments to the Constitution.

that the petition signed by the people should contain the full text of the proposed amendments

15

CONSTITUTIONAL LAW 1

IV. Self-Executing and Non-Self- Executing Provisions

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times of war or other national emergency declared by the Congress

 

(4)

Police Force (Section 6)

―…a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating

a. One police force

b. National in scope

c. Civilian in character

(5)

Consumer Protection (Section 9)

(6)

Mass Media (Section 11)

that the subject is referred to the legislature for action.‖

―A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing.‖ [Manila Prince Hotel v. GSIS (1997)] o Exception: Sec. 16, Article II of the 1987 Constitution - ―As a matter of logic, by finding petitioners‘ cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form.‖ [Justice Feliciano, concurring opinion, Oposa v. Factoran (1993)]

a.

Ownership and management limited to citizens of the Philippines or to corporations, cooperatives or associations wholly-owned and managed by Filipino citizens

(7)

Advertising Industry (Section 11)

a. Can only be engaged in by Filipino citizens or corporations or associations at least 70% of which is owned by Filipino citizens

b. Participation of foreign investors is limited to their proportionate share in the capital

c. Managing officers must be Filipino citizen

V. General Provisions

Article XVI General Provisions

(1)

Flag of the Philippines (Section 1)

a. Red, white and blue, with a sun and three stars

b. Design of the flag may be changed only by constitutional amendment (Bernas)

(2) Name of the country, national anthem, and national seal (Section 2)

a. May be changed by Congress by law

b. Such law will only take effect upon ratification by the people in a national referendum

(3)

Armed Forces of the Philippines (Section 4)

a. Composed of a citizen armed force

b. Shall take an oath of affirmation to uphold and defend the Constitution (Section 5 (1))

c. May not be appointed or designated to a civilian position in the Government including government-owned or controlled corporations or any of their subsidiaries (Section 5 (4))

d. Laws on retirement of military officers shall not allow extension of their service (Section 5 (5))

e. Recruited proportionately from all provinces and cities as far as practicable (Section 5 (6))

f. Tour of duty of the Chief of Staff shall not exceed three years (Section 5 (7))

g. May be extended by the President in

B. General Considerations

I. National Territory

II. State Immunity

III. Principles and Policies

IV. Separation of Powers

V. Checks and Balances

VI.

Delegation of Powers

VI.

Forms of Government

I. National Territory

Scope of the national territory as defined in the Constitution (1) Philippine archipelago, with all the islands embraced therein. (2) All other territories over which the Philippines has sovereignty or jurisdiction (3) Territorial sea, Seabed, Subsoil, Insular shelves, and other submarine areas corresponding to (1) and (2) (4) (1) and (2) also consist of terrestrial, fluvial, and aerial domains

Treaty of Paris, Art. III ―Spain cedes to the United States the archipelago known as the Philippines Islands, and comprehending the islands lying within the following line‖ xxx

archipelago known as the Philippines Islands, and comprehending the islands lying within the following line‖ xxx

16

CONSTITUTIONAL LAW 1

C O N S T I T U T I O N A L L A

*Image taken from:

http://media.photobucket.com/image/philippine%20map%20image

%20international%20law/jibrael_2007/Jibrael%202008/map1_rpterri

tory.jpg

Archipelagic Doctrine - The basic concept of an archipelago is that body of water studded with islands, or the islands surrounded with water, is viewed as a unity of islands and waters together forming one unit.

The archipelagic doctrine is the principle that it is an integrated unit; everything within it comprises the archipelago.

The Constitutional provisions embodying this doctrine are :

(1) "archipelago, with all the island and waters embraced therein"

An archipelago is a body of water, studded with islands.

(2) "the waters around, between, and connecting the islands of the archipelago, regardless of the breadth and dimensions, form part of internal water"

Treaty Limits of the Philippine Archipelago

(1) Treaty of Paris of 10 December 1898.

Article 3 defines the metes and bounds of the archipelago by longitude and latitude, degrees and seconds. Technical descriptions are made of the scope of the archipelago as this may be found on the surface of the earth.

(2) Treaty

of

Washington

of

7

November

1900

between the United States and Spain.

Ceding Cagayan, Sibuto and Sulu.

(3) Treaty of 2 January 1930 between the United States and Great Britain.

POLITICAL LAW REVIEWER

the United States and Great Britain. POLITICAL LAW REVIEWER Ceding the Turtle and Mangsee Islands. 17

Ceding the Turtle and Mangsee Islands.

17

Straight baseline method consists of drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast, in order to delineate the internal waters from the territorial waters of an archipelago

NOTE: Please refer to PIL, Chap. 12, II for further discussion on Baselines

II. State Immunity

Doctrine of Sovereign Immunity (State Immunity from Suit)

Constitutional Basis:

―The State may not be sued without its consent.‖ (Sec 3, Art XVI).

International Law Basis:

“Par in parem non habet imperium”

Jurisprudential Basis:

(1) Positivist Theory - There can be no legal right as against the authority that makes the laws on which the right depends. Also called the doctrine of Royal Prerogative of Dishonesty. [Kawananakoa v. Polyblank (1907)]

(2) Sociological Theory - If the State is amenable to suits, all its time would be spent defending itself from suits and this would prevent it from performing it other functions. [Republic vs. Villasor (1973)]

A suit is against the State regardless of who is named the defendant if:

(1) It produces adverse consequences to the public treasury in terms of disbursement of public funds and loss of government property. (2) Cannot prosper unless the State has given its consent.

In the following instances, it was held that the suit is not against the State:

a. When the purpose of the suit is to compel an officer charged with the duty of making payments pursuant to an appropriation made by law in favor of the plaintiff to make such payment, since the suit is intended to compel performance of a ministerial duty. [Begoso v. PVA (1970)] b.When from the allegations in the complaint, it is clear that the respondent is a public officer sued in a private capacity; c. When the action is not in personam with the government as the named defendant, but an action in rem that does not name the government in particular.

How the State’s consent to be sued is given

CONSTITUTIONAL LAW 1

Express consent - It is effected only by the will of the legislature through the medium of a duly enacted statute. May be embodied either in a:

(1) General Law - authorizes any person who meets the conditions stated in the law to sue the government in accordance with the procedure in the law

a.

Money

express or implied

Claims

arising

from

contract

Act No. 3083. An Act Defining the Conditions under

which the Government of the be Sued.

Philippines may

Sec. 1. Subject to the provisions of this Act, the Government of the Philippines hereby consents and submits to be sued upon any moneyed claim involving liability arising from contract, express or implied, which could serve as a basis of civil action between private parties.

Sec. 2. A person desiring to avail himself of the privilege herein conferred must show that he has presented his claim to the Commission on Audit and that the latter did not decide the same within two months from the date of its presentation.

Sec. 3. Original actions brought pursuant to the authority conferred in this Act shall be instituted in the Regional Trial Court of the City of Manila or of the province where the claimant resides, at the option of the latter, upon which court exclusive original jurisdiction is hereby conferred to hear and determine such actions.

Sec. 4. Actions instituted as aforesaid shall be governed by the same rules of procedure, both original and appellate, as if the litigants were private parties.

Sec. 5. When the Government of the Philippines is plaintiff in an action instituted in any court of original jurisdiction, the defendant shall have the right to assert therein, by way of set-off or counterclaim in a similar action between private parties.

Sec. 6. Process in actions brought against the Government of the Philippines pursuant to the authority granted in this Act shall be served upon the Solicitor-General whose duty it shall be to appear and make defense, either himself or through delegates.

Sec. 7. No execution shall issue upon any judgment rendered by any court against the Government of the Philippines under the provisions of this Act; but a copy thereof duly certified by the clerk of the Court in which judgment is rendered shall be transmitted by such clerk to the President of the Philippines, within five days after the same becomes final.

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Sec. 8. The President of the Philippines, at the commencement of each regular session of the Legislature, shall transmit to that body for appropriate action all decisions so received by him, and if said body determine that payment should be made, it shall appropriate the sum which the Government has been sentenced to pay, including the same in the appropriations for the ensuing year.

b.

Torts

same in the appropriations for the ensuing year. b. Torts 18 Art 2189, CC: Provinces, cities

18

Art 2189, CC: Provinces, cities and municipalities shall be liable for damages for the death or injuries suffered by any person by reason of the defective conditions of roads, streets, public buildings and other public works under their control and

supervision.

As to the vicarious liability under Art. 2180(6) of the CC: The Government is only liable for the acts of its agents, officers and employees, when they act as special agents within the meaning of Art. 2180 (6)

CC.

Special Agent - One who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a special official. [Merritt v. Govt of the Philippine Islands, (1916)]

(2) Special Law - may come in the form of a private bill authorizing a named individual to bring suit on a special claim

Implied consent (1) When the State enters into a business contract or itself commences litigation. (2) If the Govt. files a complaint, defendant may file a counterclaim against it. When the state files complaint, suability will result only where the government is claiming affirmative relief from the defendant. [US v. Guinto, (1990)] (3) When it would be inequitable for the State to invoke its immunity. (4) In instances when the State takes private property for public use or purpose.

Suits against Government Agencies Depends on whether the agency is incorporated (there is a separate charter) or unincorporated (no separate personality).

(1) Incorporated If the charter provides that the agency can sue, then suit will lie. The provision in the charter constitutes express consent. (see SSS v. Court of Appeals, 120 SCRA 707). (2) Unincorporated There must be an inquiry unto the principal functions of government.

a. If governmental NO suit without consent. (Bureau of Printing v. Bureau of Printing Employees Association).

b. If proprietary Suit will lie, because when the state engages in principally proprietary functions, then it descends to the level of a private individual, and may, therefore be vulnerable to suit.

CONSTITUTIONAL LAW 1

(Civil Aeronautics Administration v. Court of Appeals, 167 SCRA 29). State may only be liable for proprietary acts (jure gestionis) and not for sovereign acts (jure imperii).

Synthesis of the Rules

Incorporated

Regardless

of

If the Charter allows it to be sued CAN be sued

whether

it

performs

governmental

or

proprietary

 

functions

UNincorporated

Governmental

CANNOT

be

functions

sued

unless

consent

is

given

Proprietary

CAN be sued

functions

Suit against Public Officers The doctrine of state immunity also applies to complaints filed against officials of the State for acts perfomed by them in the discharge of their duties within the scope of their authority.

Unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State.

The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen, for acts without authority or in excess of the powers vested in him. [Lansang vs CA (2000)]

Caselaw provides that the following are well-

recognized exceptions when a public officer MAY be sued without the prior consent of the state:

(1)

law; (2) To restrain him from enforcing an act claimed to be unconstitutional; (3) To compel the payment of damages from an already appropriated assurance fund or to refund tax over-payments from a fund already available for the purpose; (4) To secure a judgment that the officer impleaded may satisfy by himself without the State having to do a positive act to assist him; and (5) Where the government itself has violated its own laws. [Sanders v. Veridiano, 162 SCRA

To compel him to do an act required by

88].

Scope of Consent: Suability v. Liability. There seems to be a failure to distinguish bet. suability and liability. Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it

POLITICAL LAW REVIEWER

does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the pltff the chance to prove, it can, that the def. is liable. (US v. Ceballos, 182 SCRA 644)

III. Principles and Policies

( US v. Ceballos, 182 SCRA 644) III. Principles and Policies 19 Art. II – Declaration

19

Art. II Declaration of Principles and State Policies

Principles: (Sections 1- 6) Binding rules which must be observed in the conduct of government (Bernas) (1) The Philippines is a democratic and republican state (Section 1)

a. The Philippines under the new Constitution is not just a representative government but also shares some aspects of direct democracy such, for instance, as the ―initiative and referendum‖ under Article VI, Section 32 (Bernas)

(2)

Renunciation of war (Section 2)

a. Only refers to wars of aggression, not

defensive war

(3) Adoption of the principle of international law (Section 2)

(4) Adherence to a policy of peace, freedom, and amity with all nations (Section 2)

(5)

Civilian supremacy (Section 3)

a.

Civilian authority (Section 3, Article II) is not defeated in a joint task force between the PNP and Marines for the enforcement of law and order in Metro Manila as long as control is left to the PNP. [IBP v. Zamora (2000)]

(6)

Role of the armed forces (Section 3)

a. Protector of the people and the State

b. Secure the sovereignty of the State and the integrity of the national territory

(7)

Compulsory military and civil service (Section 4)

a. Under conditions provided by law

(8) Maintenance of peace and order, promotion of general welfare (Section 5)

(9)

Recognition of a hierarchy of rights [Bernas]

a. Life

b. Liberty

c. Property

(10) Separation of Church and State (Section 6)

Policies: (Sections 7 28) Guidelines for the orientation of the state [Bernas]

(1)

Independent foreign policy (Section 7)

(2)

Freedom from nuclear weapons (Section 8)

(3) Promote a just and dynamic social order

(Section 9)

CONSTITUTIONAL LAW 1

(4) Promote social justice in all phases of national development (Section 10)

POLITICAL LAW REVIEWER

the Republic of the Philippines).

(5)

Personal dignity and human rights (Section 11)

Checks and Balances

(6)

Family as basic social institution (Section 12)

(7) Vital role of youth in nation-building (Section

13)

Role of women in nation-building (Section 14)

(8)

(9) Fundamental equality before the law of women and men (Section 14) (10) Right to health (Section 15) (11) Right to a balanced and healthful ecology (Section 16) (12) Priority to education, science and technology, arts, culture, and sports (Section 17) (13) Labor as a primary social economic force (Section 18) (14) Self-reliant and independent national economy (Section 19) (15) Role of private sector (Section 20) (16) Comprehensive rural development and agrarian reform (Section 21) (17) Recognition and promotion of rights of indigenous cultural communities (Section 22) (18) Community-based, sectoral organizations (Section 23) (19) Role of communication and information in nation-building (Section 24) (20) Autonomy of local governments (Section 25) (21) Equal access for public service and prohibition of political dynasties (Section 26) (22) Honesty and integrity in public service (Section

27)

(23) Policy of full public disclosure (Section 28)

IV. Separation of Powers

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government (Angara v. Electoral Commission, G.R. No. L-45081. July 15, 1936).

The government established by the Constitution follows fundamentally the theory of separation of power into the legislative, the executive and the judicial (Anagara v. Electoral Commission, G.R. No. L-45081. July 15, 1936).

Separation of powers is not expressly provided for in the Constitution. But it obtains from actual division found in Section 1 of Articles VI, VII, VIII, where the three great powers of the government are canalized.

Separation of powers is founded on the belief that, by establishing equilibrium among the three power holders, harmony will result, power will not be concentrated and thus tyranny will be avoided (Bernas, The 1987 Constitution of

It does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly. The President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointments of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. [Angara v. Electoral Commission, G.R. No. L-45081. July 15, 1936].

Delegation of Powers

GENERAL RULE on delegation of powers:

Delegata potestas non potest delegari what has been delegated can no longer be delegated. Since the powers of the government have been delegated to them by the people, who possess original sovereignty, these powers cannot be further delegated by the different government departments to some other branch or instrumentality of the government. The principle of non-delegation of powers is usually applied to legislative power. Since the legislative power of Congress is already a delegated power given to them by the people (thru Article 1, Section VI of the Constitution), Congress cannot pass laws delegating such power to some other department, branch, or instrumentality of the government.

EXCEPTIONS:

(1) Subordinate legislation made by administrative agencies Under the theory of Administrative Law, what is delegated is in fact not ―law- making‖ power, but ―law-executing power.‖ Hence, administrative agencies have the power to ―fill up the details‖ of a statute passed by

executing power.‖ Hence, administrative agencies have the power to ―fill up the details‖ of a statute

20

CONSTITUTIONAL LAW 1

Congress in the course of its implementation.

(2) Delegated

local

governments

allowed to legislate on purely local matters (Rubi vs. Provincial Board of Mindoro)

be

legislative

Local

power

to

governments

may

(3) Legislative power reserved to the people by the provision on initiative and referendum (Article VI, Sec.1) (4) Emergency power delegated to the Executive during State of War or National Emergency (Article VI, Sec.23 (2))

(5) Certain taxing powers of the President (Article VI, Sec.28 (2)). The Congress may 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.

Tests for Valid Delegation (1) Completeness test the law must be complete in all 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 to enforce it.

(2) Sufficient standard test a sufficient standard is intended to map out boundaries of the delegate‘s authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected.

BOTH tests must be complied with. [Pelaez v. Auditor General, 15 SCRA 569]

V. Forms of Government

Definition

Sec. 2(1) Administrative Code. ―Government of the Republic of the Philippines‖ is defined as:

the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including (1) the various arms through which political authority is made effective in the Philippines, whether pertaining to:

i. the autonomous regions, ii.the provincial, city, municipal, or barangay subdivisions, or

iii. other forms of local government.

―Government‖ is that institution or aggregate of institutions by which an independent society makes and carries out those rules of action which are necessary to enable men to live in a social state or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them. [US vs Dorr (1903)]

De Jure and De Facto Governments

(1)

POLITICAL LAW REVIEWER

De jure government a. Has rightful title but b.no power or control, either because this has been withdrawn from it, or because it has not yet actually entered into the exercise thereof. [In re Letter of Associate Justice Puno, (1992)]

thereof. [In re Letter of Associate Justice Puno, (1992)] 21 (2) De facto government - Government

21

(2) De facto government - Government of fact, that is, it actually exercises power or control without legal title. [Co Kim Cham v. Valdes, (1945)]

a The govt that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal govt and maintans itself against the will of the latter.

b That established as an independent govt by the inhabitants of a country who rise in insurrection against the parent state.

c That which is established and maintained by military forces who invade and occupy a territory of the enemey in the course of war, and w/c is denominated as a govt of paramount force, like the Second Republic of the Phils. established by the Japanese belligerent.

The legitimacy of the Aquino government is not

a justiciable matter. It belongs to the realm of

politics where only the people of the Philippines are the judge. And the people have made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire country so that it

is not merely a de facto government but in fact

and law a de jure government. Moreover, the community of nations has recognized the legitimacy of the present government. All the eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of

the Republic under her government. [In re Bermudez, (1986) citing Lawyers League for a Better Philippines v. Aquino, (1986)]

In the cited cases [Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al], we held that the government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution declared that the Aquino government was installed through a direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973 Constitution, as amended."

It is familiar learning that the legitimacy of a government sired by a successful revolution by

people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the

government

revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution. In her oath, she categorically swore to

not

of

respondent

Arroyo

is

CONSTITUTIONAL LAW 1

preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I

involves the exercise

of

of

the

people

power

revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra- constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra- constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal questions. xxx

Even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure, president made by a co-equal branch of government cannot be reviewed by this Court. [Estrada v Desierto/ Estrada v GMA, (2001)]

C. Legislative Department

I. Who May Exercise Legislative Power

II. Houses of Congress

III. Legislative Privileges, Inhibitions and

Disqualifications

IV. Quorum and Voting Majorities

V. Discipline of Members

VI. Electoral Tribunals and the Commission on

Appointments VII. Powers of Congress

I. Who May Exercise Legislative Power

Legislative power is the authority to make laws and to alter and repeal them. It is vested in:

(1) The Congress of the Philippines, which consists of a Senate and a House of Representatives (2) The people to themselves, by the system of initiative and referendum (Art. VI, Sec. 1)

Grant of legislative power to Congress is plenary. Congress may legislate on any subject matter provided that the limitations are observed.

Initiative and Referendum The power of initiative and referendum is the power of the people directly to ―propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body.‖ (Article VI, Section 32) o The operationalization of initiative and referendum has been left by the Constitution to Congress (Article VI, Section 32; Bernas, The 1987 Constitution of the

POLITICAL LAW REVIEWER

Republic of the Philippines)

RA 6735 – ―An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefore‖

II. Houses of Congress

and Appropriating Funds Therefore‖ II. Houses of Congress 22 Composition, Qualifications and Term of Office  

22

Composition, Qualifications and Term of Office

 

Senate (Art. VI secs. 2-4)

 

House of Representatives (Art. VI secs. 5-8)

Compo-

24 senators elected at large

Not more than 250 members, unless otherwise provided by law, consisting of:

sition

 

i.

District Repre-

sentatives

 

ii.

Party-List

Representa-

tives

 

iii.

Sectoral

Representa-

tives

 

Qualifi-

 

Natural-born

Natural-born

 

cations

 

citizen

   

citizens

 
 

At

least

35

At least 25 years old on the day of the election Able to read and

 

years

old

on

the day of the election

 

Able

to

read

write Registered voter

 

and write

 

A

registered

 

in the district he

 

voter

 

seeks

 

to

 

Resident

of

represent

 
 

the

A resident of the

Philippines for

 

said

district

for

at

least

2

at

least

1

year

years

immediately

immediately

preceding

 

the

preceding the

day

of

the

day

of

the

election

 

election

 

Term of

6 years

 

3 years

 

Office

Term

2

consecutive

3

consecutive

Limits

terms.

 

terms.

 

Senate (Art. VI Secs. 2-4)

Composition: 24 senators elected at large

Qualifications:

1) Natural-born citizen 2) At least 35 years old on the day of the election 3) Able to read and write 4) A registered voter 5) Resident of the Philippines for at least 2 years immediately preceding the day of the election

Term of Office: 6 years, commencing at noon on the 30 th