Constitutional Law Review.pdf

8/15/2019 Constitutional Law Review.pdf

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Political Law Review Notes (Atty. Edwin Sandoval)Prepared by: Atty Joan P. Gamboa

THE JUDICIARY

ART. VIII Sec. 1 Par. 1- ―The judicial power shall be vested in one SupremeCourt and in such lower courts as may be established by law‖

*The Supreme Court is the only constitutional court.

Q. SB?

A. No. It is not a constitutional court, although mentioned in the Constitution.It is only a constitutionally mandated court.

*Judicial power is not vested in the Supreme Court alone.

*It is vested as well in such lower courts as may be established by law.

―Such lower courts as may be established by law‖ (BP 129 JudiciaryReorganization Act of 1980)

*Court of Appeals- referred to as lower collegiate courts

*Regional Trial Courts- courts of general jurisdiction

*Courts of limited jurisdiction- (1) Metropolitan Trial Courts (2) MTCC[chartered cities] (3) Municipal Trial Courts/ Municipal Circuit Trial Courts

*Sandiganbayan- special court having jurisdiction over public officers; co-equal with the Court of Appeals.

*Court of Tax Appeals- special court having jurisdiction over tax appealscases.

*SHARIAH COURTS- pursuant to Muslim Code; 2 levels:

(1) Shariah District Court- equivalent to RTC

(2) Shariah Circuit Court- equivalent to MTC

*QUASI JUDICIAL BODIES- strictly speaking, they are not courts- do notform part of the judicial system.

- They are administrative bodiesperforming quasi-judicial functions.

- In Remedial Law, referred to loosely as ―special courts‖ - Doctrine ofPrimary Jurisdiction.

- Part of the executive.

Ex. CSC, SEC, COA, COMELEC

*Since quasi-judicial bodies are not strictly courts, their jurisdiction is strictlyconstrued against them.

JUDICIAL POWER AND POLITICAL QUESTION DOCTRINE

Q. What is JUDICIAL POWER?

A. JUDICIAL POWER includes the duty of the courts of justice to settleactual controversies involving rights which are legally demandable andenforceable, and to determine whether or not there has been a grave abuseof discretion amounting to lack or excess of jurisdiction on the part of anybranch or instrumentality of the government. (Art. VIII, Sec. 1, Par. 2)

- Definition of Judicial Power.

- Not found in the 1935 and 1973 Constitution.

- Represents a broadening of judicial power to enable the courts of justice toreview what was before forbidden territory.

―DUTY‖

-The provision uses the word DUTY

-The settlement of controversies and the determination of whether or notthere has been grave abuse of discretion is not merely a power- it is a duty

of the courts as well.

-in power, the power holder has discretion to exercise.

-if it was only a power, then the courts has the discretion to exercise it or not.

-Since it is a duty, there is no such discretion- the exercise of the power isobligatory and mandatory upon the courts.

TWO PARTS OF THE DEFINITION


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1. To settle actual controversies involving rights which are legallydemandable and enforceable. (TRADITIONAL)

-Very limited definition.

-Maybe defeated by the political question doctrine.

2. To determine whether or not there has been grave abuse of discretionamounting to lack or excess of jurisdiction on the part of any branch orinstrumentality of the Government. (EXPANDED)

-Expanded Power of Judicial Review or the Extraordinary Power toDetermine Grave Abuse of Discretion as referred to by the Supreme Court.

-Political question doctrine has been greatly diminished.

Q. How does the definition of judicial power under the present Constitutionaffected the political question doctrine?

A. The 1987 Constitution expands the concept of judicial review. Under theexpanded definition, the Court cannot agree xxx that the issues involved is apolitical question beyond the jurisdiction of the court to review. When thegrant of power is qualified, conditional or subject to limitations, the issue ofwhether the prescribed qualifications or conditions have been met or thelimitations respected is justiciable – the problem being one of legality orvalidity, not its wisdom. Moreover, the jurisdiction to delimit constitutionalboundaries has been given to this court. When political questions areinvolved, the Constitution limits the delimitation as to whether or not therehas been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned.

Q. What are political questions?

A.-Origin: The principle of separation of powers.

-In turn, this principle is the result of our Presidential System of Government.

(In a Parliamentary government, the executive and the legislative branchesare welded together)

-Thus, legislative power is given to Congress; executive power is given tothe President and judicial power is given to the Supreme Court- 3 greatpowers distributed among 3 branches of government.

-The legislative and the executive are called POLITICAL BRANCHES of thegovernment, where policies are formulated, enacted and implemented.

-Questions of policy that are formulated by the political branches and thuscannot be the subject of judicial review. This includes questions involving thewisdom, propriety, efficacy or morality of an act.

TAÑADA VS. CUENCO

-Classic definition of political question.

-POLITICAL QUESTIONS refer to those questions which under theConstitution are to be decided by the people in their sovereign capacity, or inregard to which full discretionary authority has been delegated to thelegislative or executive branch of the government.

TWO TYPES OF POLITICAL QUESTIONS

1. Those questions which under the Constitution are to bedecided by the people in their sovereign capacity.

Ex. Recall under the LGC

-A mode of removing a local elective official even before the 3 year term onthe ground of loss of trust/confidence.

-There is only one ground for recall-loss of confidence.

EVARDONE VS. COMELEC

*Loss of confidence as a ground for recall is a political question.

*After all, the initiation of the recall process is not the recall itself.

*In the recall election, the people will decide whether or not they have losttheir confidence in the official concerned.

*Hence, it is a question which has to be decided by the people in theirsovereign capacity.

*When? In the recall election itself.

*Not subject to judicial review.

ESTRADA VS. DESIERTO-EDSA 1


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*Lawyers League for a Better Philippines vs. Aquino

*Oliver Lozano filed a petition before the Supreme Court questioning thelegitimacy of the Cory government.

*According to the petition, most of the people who went to EDSA are not

really serious in overthrowing the Marcos government. (Most were vendors)

SC: dismissed the petition.

*No matter, We will no longer inquire into the motives of the people in goingto EDSA. The facts were: because of the magnitude of the people who werein EDSA, Marcos fled to Hawaii, so that the Cory government was able totake effective control of the machinery of the State without resistance fromthe people. Furthermore, the international community has recognized theCory Government. Hence, there can be no more question as to the de jurestatus of the said government.

*The Aquino government was the result of a successful revolution by thesovereign people-it was installed through a direct exercise of the power ofthe Filipino people, in defiance of the provisions of the 1973 Constitution.The legitimacy of a government sired by a successful revolution by peoplepower is beyond judicial scrutiny; such government automatically orbits outof the constitutional loop.

Estrada vs. Desierto

*Desierto argues that the legitimacy of Arroyo‘s assumption to thepresidency is a political question, and invokes the ruling in the LawyersLeague case.

SC: No. (Justice Reynato S. Puno)

*Arroyo‘s government is not revolutionary in character. The oath she took isthe oath under the 1987 Constitution. Indeed, she has stressed that she isdischarging the powers of the presidency under the authority of the 1987Constitution.

LEGAL DISTINCTIONS BETWEEN EDSA 1 AND EDSA 2

EDSA 1 EDSA 2

-Involves the exercise of the peoplepower of revolution which

-Involves the exercise of the peoplepower of freedom of speech andfreedom to assemble, to petition the

overthrows the whole government.

-Extra-constitutional and thelegitimacy of the new government

that resulted from it cannot be thesubject of judicial review.

-Presented a political question.

government for redress ofgrievances which only affected theOffice of the President.

-Intra-constitutional and theresignation of the sitting President

that it caused and the succession ofthe Vice President as president aresubject to judicial review.

-Involves legal questions.

2. Those in regard to which full discretionary authority has beendelegated by the Constitution to the executive or legislativebranch of the government.Ex. Calling out power of the President under Article VII, Sec. 18

IBP VS. ZAMORA

*During the time of President Estrada, he issued a LOI ordering thedeployment of Marines in the metropolis to conduct joint visibility patrols withmembers of the PNP in various shopping malls.

*IBP asks that the exercise of such power be subjected to judicial review.

SC: No.

*When the President calls the armed forces to prevent or suppress lawless

violence, invasion or rebellion, he necessarily exercises a discretionarypower solely vested in his wisdom. This is clear from the intent of theframers and from the text of the Constitution. Thus, the Court cannot becompelled upon to overrule the President‘s wisdom or substi tute its own.However this does not prevent an examination of whether such power wasexercised within permissible constitutional limits or whether it was exercisedin a manner constituting grave abuse of discretion.

3 powers under Art. VII, Sec. 18

1. Calling out power as commander-in-chief of AFP


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2. Declare Martial Law

3. Suspend the privilege of the writ of habeas corpus

*Unlike in the past, the power to declare martial law and to suspend theprivilege of the writ of habeas corpus were expressly made subject of judicial

review.

*Article VII, Sec. 18, Par 3- ―The Supreme Court may review in anappropriate proceeding filed by any citizen, the sufficiency of the factualbasis of the proclamation of martial law or the suspension of the privilege ofthe writ or the extension thereof, and must promulgate its decision withinthirty days from its filing.‖

CALLING OUT POWER

-It is a political question.

-A question in regard to which full discretionary authority has been delegatedby the Constitution to the President.

SC: It is the unclouded intent of the Court to grant to the President fulldiscretionary authority. The hands of the President should not be tied;otherwise, this could be a veritable proscription for disaster. Unless graveabuse of discretion is shown, the President‘s exercise of the power shouldnot be questioned. Mere abuse of discretion will not suffice. To doubt is tosustain.

Q. What is the effect of the EXPANDED CONCEPT OF JUDICIAL POWERon the political question doctrine?

A. It has lessened the political question doctrine. Thus, even if it is a politicalquestion, if there appears to be abuse of discretion, the Court may review it.

*The burden is upon petitioners- the ones assailing the act.

*It must be grave abuse of discretion to warrant judicial intervention.

*Mere abuse of discretion is not enough.

*To doubt is to sustain the act of the person.

Q. Why the difference in treatment?

A. Calling out power is the lesser and more benign power while the power todeclare martial law and to suspend the privilege of the writ of habeas corpusare the greater powers which involve direct curtailment of civil libertiesthereby necessitating safeguards of Congress and judicial review of theCourt. (IBP VS. ZAMORA)

DAVID VS. GMA

*PGMA exercised the calling out power when she issued GO 5 and PP1017, not the martial law power. The acts taken purportedly to carry out theissuances were ultra vires, hence, unconstitutional. The exercise of thecalling out power does not involve the direct curtailment and suppression ofcivil liberties and individual freedoms. However GO 5 and PP1017 areconstitutional. Petitioners failed to counteract the factual bases therefore asalleged by the Solgen.

Q. Why not the martial law powers?

A. There was no case of invasion or rebellion. President will be required tosubmit report to (kulang page ko, sorry...)

Q. What are the THREE IMPORTANT FUNCTIONS OF THE COURT?

A. 1. Checking

2. Legitimizing

3. Symbolic

SYMBOLIC FUNCTION OF THE COURT

- It is the duty of the Court to formulate guiding and controllingprinciples, precepts, doctrines or rules. It has the symbolic function

of educating the bench and the bar on the extent of protection givenby Constitutional guaranties.Q. What are the requisites for a proper exercise of the power of JUDICIALREVIEW?

A. The time-tested standards for the exercise of judicial review are:

1. The existence of an appropriate case;

2. An interest personal and substantial by the party raising theconstitutional question;


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3. The plea that the function be exercised at the earliestopportunity; and

4. The necessity that the constitutional question be passed upon inorder to decide the case.

THE MEANING OF ACTUAL CASE OR CONTROVERSY

-It means an existing case or controversy which is both ripe for resolutionand susceptible of judicial determination and that which is not conjectural orclarificatory, or that which seeks to resolve hypothetical or feignedconstitutional problems. (IBP VS. ZAMORA)

*There must also be a conflict of rights-opposing views or contentions-if not,the Court would be resolving issues that remain unfocused because theylack concreteness.

*The controversy must also be justiciable-meaning susceptible of judicialdetermination.

Q. May courts render advisory opinions?

A. No, courts can only decide actual controversies, not hypotheticalquestions or cases.

-There must be an actual case or controversy to be resolved.

-The definition of judicial power under Art. VIII is clear. The evil sought to beavoided is the possible violation of due process. It is also repugnant to thePrinciple of Separation of Powers. If a case is bought involving the sameissue, the court might be forced to follow.

*On the other hand, INTERNATIONAL COURT OF JUSTICE can render

advisory opinions.

Q. Basis?

A. 1. Statute of ICJ itself

2. UN Charter

2 MAIN FUNCTIONS OF THE ICJ:

1. To resolve contentious cases

2. To render advisory opinions to UN organs

MOOT AND ACADEMIC CASES

- A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a

declaration thereon would be of no practical use or value.Generally, courts decline jurisdiction over such case or dismiss it onground of mootness. (David vs. GMA)

*The moot and academic principle is not a magical formula that canautomatically dissuade the courts in resolving a case. Courts will decidecases, otherwise moot and academic, if:

1. There is a grave violation of the Constitution;2. The exceptional character of the situation and the paramount public

interest involved;3. When constitutional issue raised requires formulation of controlling

principles to guide the bench, the bar, and the public; and4. The case is capable of repetition yet evading review. (David vs.

GMA)

PROPER PARTY REQUIREMENT

Q. What is the meaning of locus standi?

A. LEGAL STANDING or LOCUS STANDI has been defined as a personaland substantial interest in the case, such that a party has sustained or willsustain direct injury as a result of the governmental act that is being

challenged.

The term INTEREST means a material interest, an interest in issueaffected by the decree, as distinguished from mere interest in the questioninvolved, or a mere incidental interest.

*The gist of the question of standing is whether a party alleges suchpersonal stake in the outcome of the controversy as to assure that concreteadverseness which sharpens the presentation of issues upon which thecourt depends for illumination of difficult constitutional questions. (IBP vs.Zamora)


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IBP VS. ZAMORA

*IBP has no locus standi. The mere invocation of its duty to preserve the ruleof law is a too general interest. It has not shown any injury it has suffered norwill suffer by virtue of the act complained of. The presumed injury is notpersonal, too vague, highly speculative and uncertain to confer locus standi.

However, IBP has advanced constitutional issues which deserve attention ofthis court, in view of their seriousness, novelty and weight as precedents.

TAXPAYER‘S SUIT

To constitute a taxpayer‘s suit, two requisites must be met, namely:

1. That public funds are disbursed by a political subdivision orinstrumentality and in doing so, a law is violated or some irregularityis committed; and

2. That the petitioner is directly affected by the alleged ultra vires act.

KILOSBAYAN VS. MORATO

*Kilosbayan filed 2 petitions as a taxpayer.

SC: Taxpayer suit does not lie because the issue does not involve thedisbursement of public funds. Rather, what is involved was the interpretationof the charter of the PCSO.

THE CONSTITUTIONAL QUESTION MUST BE RAISED AT THEEARLIEST OPPORTUNE TIME

- It is not the date of the filing of the petition that determines whetherthe constitutional issue was raised at the earliest opportunity. Theearliest opportunity to raise a constitutional issue is to raise it in the

pleadings before a competent court that can resolve the same,such that, ―if it is not raised in the pleadings, it cannot beconsidered at the trial, and if not considered at the trial, it cannot beconsidered on appeal. (Matibag vs. Benipayo)

- However in criminal cases, the accused may raise the constitutionalquestion even for the first time on appeal. This is because criminalcases involve the basic rights of the accused to life and liberty.

MATIBAG VS. BENIPAYO

*Matibag questioned the legality of the appointments of Benipayo, Borra andTuason on 03 August 2001, when their first appointments were issued on 22 April 2001. Thus, it is argued that the constitutional question was not raisedon the earliest possible opportunity.

SC: No. It is not the date of the filing that determines whether the

constitutional question was raised at the earliest possible opportunity. Theearliest opportunity to raise a constitutional issue is to raise it in thepleadings before a competent court that can resolve it, such that if not raisedin the pleadings, it cannot be raised on appeal. Here, Matibag questionedthe legality of said appointments when she filed her petition before theSupreme Court, which is the earliest opportunity for pleading theconstitutional issue before a competent body.

THE CONSTITUTIONAL QUESTION MUST BE THE VERY LIS MOTA OFTHE ENTIRE CONTROVERSY

*The constitutional question must be the main issue of the controversy.

*There is no way that the Court may resolve the entire case, unless it firstresolves the constitutional question raised.

AMENDMENTS OR REVISIONS (ARTICLE XVII)

3 ESSENTIAL ELEMENTS OF A GOOD WRITTEN CONSTITUTION:

1. Constitution of Government: Articles VI, VII, VIII, IX, X

2. Constitution of Liberty: Article III (Bill of Rights)

3. Constitution of Sovereignty: Article XVII (Amendatory Process)

AMENDMENT REVISION

-refers to a change that adds,reduces or deletes without alteringthe basic principle involved.

-affects only the specific provisionbeing amended.

-implies a change that alters a basicprinciple in the Constitution.

-if the change alters the substantialentirety of the constitution, as whenthe changes affect substantialprovisions of the constitution.

-affects several provisions in theconstitution.


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-isolated or piecemeal changes in theConstitution.

Ex. Lowering of the voting age.

-overhaul of the whole Constitution.

Ex. Altering the principle ofseparation of powers or the systemof checks and balances.

TWO PART TEST

1. QUANTITATIVE TEST: asks whether the proposed change is soextensive in its provisions as to change directly the substantialentirety of the Constitution by the deletion or alteration of numerousexisting provisions. The court examines only the number ofprovisions affected and does not consider the degree of change.

2. QUALITATIVE TEST: inquires into the qualitative effects of theproposed change in the Constitution. The main inquiry is whetherthe change will accomplish such far reaching changes in the natureof our basic governmental plan as to amount to a revision. Whetherthere is an alteration in the structure of government is a propersubject of inquiry.

*A change in the nature of the basic governmental plan includeschanges in its fundamental framework or the fundamental powers of itsbranches. A change in the nature of the basic governmental plan alsoincludes changes that ―jeopardize the traditional form of governmentand the system of checks and balances‖. (Lambino vs. COMELEC)

*LAMBINO VS. COMELEC

-Under both the quantitative and qualitative tests, the Lambino group‘sinitiative is a revision, not merely an amendment. QUANTITATIVELY, the

Lambino group‘s proposed changes overhaul two Articles-Article VI of theLegislature and Article VII on the Executive-affecting a total of 105provisions in the entire Constitution. QUALITATIVELY, the proposedchanges alter substantially the basic plan of government from presidential toparliamentary and from a bicameral to unilateral legislature.

STAGES IN THE AMENDATORY PROCESS

1. Proposal

2. Ratification

MODES OF PROPOSING AMENDMENTS OR REVISIONS

1. Congress acting as constituent assembly

-One of the non-legislative powers of Congress

-Congress meets in order to directly propose amendments or revisions

-Requires ¾ vote of all its members

2. Constitutional convention

-a separate body the members of which are elected

Article XVII Sec. 3- ―The Congress may, by a vote of 2/3 of all itsMembers, call a constitutional convention, or by a majority vote of all itsMembers, submit to the electorate the calling of such convention‖

2 ways:

a. Congress directly calls a CONCON by 2/3 vote of all its members.

b. The issue of calling a CONCON may be submitted to the people ina plebiscite by majority vote of all members of Congress.

3. People‘s initiative on the Constitution (RA 6735)

Article XVII, Sec. 2- ―Amendments to this Constitution may likewise bedirectly proposed by the people through initiative upon a petition of atleast 12 percentum of the total number of registered voters, of whichevery legislative district must be represented by at least 3 percentum ofthe registered voters therein. No amendment under this section shall beauthorized within 5 years, following the ratification of this Constitution or

oftener than every 5 years thereafter.

The Congress shall provide for theimplementation of the exercise of this right‖.

*This applies only to amendments not revisions.

*REQ: A petition signed by at least 12% of the total number ofregistered voters therein of which every legislative district must berepresented by at least 3% of registered voters therein.


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Q. Is the provision on people‘s initiative (Art XVII, Sec. 2) selfexecuting?

A. No. Note the second sentence says- ―The Congress shall providefor the implementation of the exercise of this right.‖ Thus Congressshould enact a law implementing this provision.

Q. Has Congress enacted such law?

A. Yes. Congress enacted a law RA 6735: Initiative and Referendum Act.

3 SYSTEMS OF INITIATIVE:

1. Initiative on the Constitution

2. Initiative on Statutes

3. Initiative on Local Legislation

SANTIAGO VS. COMELEC (re: Initiative on the Constitution)

*The right of the people to directly propose amendments to the Constitutionthrough the system of initiative would remain entombed in the cold niche ofthe Constitution until Congress provides for its implementation.

*RA 6735 miserably failed to satisfy the requirements in subordinatelegislation in so far as initiative to propose amendments to the Constitution isconcerned.

*If Congress intended to fully provide for the implementation of the initiativeon amendments to the Constitution, it could have provided for a subtitletherefore, considering that in the order of things, the primacy of interest, or

hierarchy of values, the right of the people to directly propose amendmentsto the Constitution is far more important than the initiative on national andlocal laws.

*SC declared RA 6735 inadequate to cover the system of initiative onamendments to the Constitution and have failed to provide a sufficientstandard for subordinate legislation (there is undue delegation of power toComelec). To this extent, RA 6735 is unconstitutional.

*Article XVII, Sec. 2 remains non self executing.

*People‘s Initiative on the Constitution is limited only to proposingamendments not revisions.

RATIFICATION

*Any proposed change must be submitted to the people in a plebiscite not a

referendum.

*Article XVII, Sec. 4- ―Any amendment to or revision of this Constitutionunder Sec. 1 hereof (Con Ass) shall be valid when ratified by a majority ofthe votes cast in a plebiscite which shall be held not earlier than 60 days notlater than 90 days after the approval of such amendment or revision.

―Any amendment under Sec. 2 hereof (Con Com)shall be valid when ratified by a majority of the votes cast in a plebiscitewhich shall be held not earlier than 60 days nor later than 90 days after thecertification by the Comelec of the sufficiency of the petition‖.

CHA-CHA NOT ALLOWED

*Article XVII, Sec. 2 remains to be non self executing. The implementing lawwas declared unconstitutional. (Santiago vs. Comelec)

*People‘s initiative is limited only to amendments.

DOCTRINE OF STATE IMMUNITY FROM SUIT

Article XVI, Sec. 3- ―The State may not be sued without its consent.‖

Q. What if the Constitution does not provide for state immunity?

A. Through the DOCTRINE OF INCORPORATION (Article II, Sec. 2), thePhilippines have adopted the generally accepted principles of international

law as part of the law of the land. State immunity from suit is a generallyaccepted principle of international law. Hence we are bound by it.

Q. Ethical basis?

A. ―There can be no legal right against the authority which makes the law onwhich the right depends‖. (Justice Holmes)

Q. Does the Doctrine of State Immunity form Suit apply also to foreignagreements?


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A. Yes. We are bound by the DOCTRINE OF SOVEREIGN EQUALITY. Allstates are sovereign equals. An equal may not assume jurisdiction overanother equal. Otherwise it will unduly vex the peace of nations. This isanother generally accepted principle of international law as expressed in theLatin maxim par in parem non habet imperium.

Q. Can you sue the State?

A. A State may not be sued without its consent. Hence, you can actually suethe State, for as long as the State gives i ts consent.

Q. How does a State waive its immunity from suit?

A. Either EXPRESSLY or IMPLIEDLY.

EXPRESSLY: Through the enactment by Congress of a general law orspecial law.

Q. May the Solgen validly waive immunity from suit?

A. No. A mere lawyer of the government cannot validly waive immunity fromsuit. Only the Congress can. (Republic vs. Purisima)

*Waiver of immunity constitutes a derogation of sovereignty. Hence, it isalways construed strictly or strictissimi juris.

1. GENERAL LAW

Ex. Act No. 3083- applies to any money claims arising from contracts withthe government whether express or implied.

-must be correlated with COMMONWEALTH ACT 387 as amended by PD1445 or the GENERAL AUDITING LAW- any money claim arising from

contract with the government whether expressed or implied must first bepresented to COA and only when COA refuses payment that a party cansue.

Q. Where?

A. SC. Decisions of COA are reviewable by SC via petition for certiorari.(DAR vs. NLRC, J. Vitug)

Q. A contract was entered into with DPWH for the construction of roads.When the roads were finished, the contractor was not paid. Contractor suedthe government before the RTC. Will the suit prosper?

A. No. It will be dismissed for lack of cause of action. He failed to exhaust alladministrative remedies provided for by law under CA 327 as amended byPD 1445.

2. SPECIAL LAWS

Ex. Article 2180, NCC- ―The State is responsible xxx when it acts though aspecial agent xxx.‖

Ex. Article 2189, NCC- ―Provinces, cities and municipalities shall be liable fordamages for the death of, or injuries suffered by any person by reason of thedefective condition of roads, streets, bridges, public buildings, and otherpublic works under their control or supervision.

TEOTICO VS. CITY OF MANILA

*City of Manila contends that it cannot be held liable under its charter.

*SC held that the provision in the charter is a general provision in a speciallaw. On the other hand, Article 2189 is a special provision found in a generallaw. A special provision found in a general law prevails over the generalprovision found in the charter of the City of Manila. City of Manila is liable.

KILATKO VS. CITY OF DAGUPAN

*City of Dagupan contended that the manhole is found in the national road.

*SC held that the ownership of the road is immaterial. Even if it is a nationalroad, the LGU is liable. Article 2189 merely requires supervision over themaintenance of the national road. City of Dagupan has supervision. Hence,liable.

Ex. Sec. 24, Local Government Code- ―Liability for Damages- Local

government units and their officials are not exempt from liability for death orinjury to persons or damage to property.‖

Ex. Charters of GOCC- GSIS, DBP, LBP

*Charter-special law creating GOCC

*The provision in the charter on whether i t may sue or be sued is an expresswaiver by special law.

IMPLIEDLY-2 ways:


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1. When the State itself commences litigation, thereby opening itselfto counterclaim.

Ex. Government sued A and A filed an answer with a counterclaim. Thegovernment cannot ask for the dismissal of the counterclaim on theground of state immunity from suit. Otherwise, it would be the height of

injustice.

2. When the State enters into a contract with private party.

*Here, the government is deemed to have gone down into the level of aprivate entity; there is parity now with the contracting parties; therefore,it is deemed to have waived its immunity from suit.

*This rule used to be absolute. (US vs. Lyons)

*However, this rule is no longer absolute-

US VS. RUIZ

*This involved the construction of wharves in Subic Bay at the timeSubic was still under the US pursuant to a treaty.

*Contractor was not paid so he sued the Subic Naval Authorities.

*Subic Naval Authorities moved to dismiss invoking State Immunity fromSuit.

*On the other hand, the contractor contends that the State entered intoa contract (relying on the old rule).

SC: The traditional rule of immunity exempts a state from being sued incourts of another state without its consent or waiver. This rule is a

necessary consequence of the principle of independence and equalityof states. However, rules of international law are not petrified; they areconstantly developing and evolving. And because the activities of thestates have multiplied, it has been necessary to distinguish thembetween sovereign and governmental acts (jure imperii) and private,commercial and proprietary acts (jure gestionis). The result is that stateimmunity now extends only to acts jure imperii. The restrictiveapplication of state immunity is now the rule in the US, UK and otherstates in Western Europe.

*A state may be said to have descended to the level of an individual andthus deemed to have tacitly given its consent to be sued only when itenters into business contracts.

*The purpose of the wharves is the defense of US troops and of thePhilippines. Defense of the state is of the highest order and hence, is

jure imperii.

*Case was dismissed because there was no waiver.

*Not all contracts are deemed to be a waiver of state immunity; mustdistinguish between:

ACTA JURE IMPERII: contracts entered into by the government in itssovereign capacity; no waiver of state immunity from suit.

ACTA JURE GESTIONIS: contracts entered into by the government inits commercial and proprietary capacity; there is waiver of stateimmunity from suit. (Restrictive Doctrine of State Immunity from Suit)

Q. In the Ruiz case, can the contractor invoke Act No. 3083?

A. No. Because Act No. 3083 waives the immunity of the Philippinegovernment only; not of other governments.

Q. What is the remedy of the contractor?

A. Under international law, he will have to convince his state through theassistance of the Department of Foreign Affairs to take his case up with theother state.

Q. Raintree contracted with the Armed Forces of the Philippines for thesupply of ponchos to be used by the soldiers. Raintree was not paid. Can

Raintree sue?

A. Yes, under Act No. 3083. This is a money claim arising from contract.There is no need to invoke implied waiver, since there is already an expresswaiver.

US VS. GUINTO

*A Filipino cook in a restaurant inside Camp John Hay poured urine into thesoup stock used in cooking the vegetables served to the customers.

*He was dismissed.


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Distinguish:

1. INCORPORATED AGENCIES: These are agencies with separatecharters creating them.

-They have personality separate and distinct from the Philippine

government.

-The test of suability will depend whether or not its charter allows it tosue and be sued.

Ex. SSS, GSIS, PCSO, Phil. Postal Corporation

2. UNINCORPORATED AGENCIES: These agencies have nocharter.

-They do not have separate personality.

-A suit against them is really a suit against the government.

-Test of suability depends upon whether or not it is performing agovernmental or proprietary function.

SUIT AGAINST PUBLIC OFFICIALS

Q. When do you consider a suit against public officials as a suit against thestate itself?

A. The suit must be regarded as one against the State where the satisfactionof judgement against the public official concerned will require the State itselfto perform a positive act such as appropriation of the amount necessary topay the damages awarded to the plaintiff. (LANSANG VS. GARCIA)

*The official was charged in his official capacity in the performance of officialduties.

*In this case, the official was acting only as an agent of the State.

*However, this rule does not apply if:

-Acts were unlawful or illegal

-Acts were done in a personal capacity

REPUBLIC VS. SANDOVAL

*This case does not qualify as a suit against the State. xxx While theRepublic in this case is sued by name, the ultimate liability does not pertainto the government. Although the military officers and personnel weredischarging their official functions when the incident occurred, their functionsceased to be official the moment they exceeded their authority. Based on thecommission findings, there was lack of justification by the government forces

in the use of firearms. Moreover, the members of the police and militarycrowd dispersal units committed a prohibited act under BP 180 as there wasunnecessary firing by them in dispersing the marchers.

EXCEPTIONAL CASES: The doctrine of State Immunity from Suit cannotserve as an instance to perpetuate injustice on a citizen.

*However, this should not be invoked indiscriminately because thecircumstances obtaining in the following cases are peculiar.

AMIGABLE VS. CUENCA

*Amigable owned a lot in Cebu City. There is no annotation in favor of thegovernment in the TCT. Then without prior appropriation or negotiated sale,the government used a portion of the said lot for the construction of roads. Amigable then filed a complaint against the Republic, and Cuenca, in thelatter‘s capacity as Commissioner of Public Highways.

SC: Where the government takes away property from a private landownerfor public use without going through the legal process of expropriation ornegotiated sale. The aggrieved party may properly maintain a suit againstthe government without thereby violating the doctrine of governmentalimmunity from suit without its consent.

REASON-MINISTERIO VS. CFI OF CEBU

*The doctrine of governmental immunity from suit cannot serve as an

instrument of perpetration of injustice on a citizen. Had the governmentfollowed the procedure indicated by the governing law (Rule 87) at the time,a complaint would not have been filed by it and only upon payment ofcompensation fixed by the judgement or after tender of the party entitled tosuch payment of the amount fixed. May it ―have the right to enter in andupon the land so condemned, to appropriate the same to the public usedefined in the judgement.‖

*Actually, in Amigable and Ministerio cases there is an implied waiver. Thisimplied waiver lies in the failure to commence the proper action. The actionfiled by the petitioners amount to a counterclaim, had the government fled


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the proper action. It only became a petition because the government did notfollow the legal procedure.

CITIZENSHIP

(ARTICLE IV, 1987 CONSTITUTION)

The following are the citizens of the Philippines (Sec. 1)

1. Those who are citizens of the Philippines at the time of the adoption of the1987 Constitution.

Q. When was the 1987 Constitution adopted?

A. 02 Feb. 1987- at the time of the plebiscite

*Not 11 Feb. 1987=When Pres. Aquino declared its ratification.

2. Those whose fathers or mothers are citizens of the Philippines.

*Note that the provision says ―OR‖- not ―and‖

*This means that as long as 1 of your parents is a Filipino, you area Filipino.

*This is in accordance with our adherence to the principle of jussanguinis.

*This results in complications when the country where you are bornapplies the principle of jus soli.

*Complications arise with respect to the matter of dual allegiance.(See Sec. 5)

VALLES VS. COMELEC (337 SCRA 543, 09 Aug. 2000)

*Rosalind Lopez was born in 1934, in Australia to a Filipino-father, who wasborn in 1879, and an Australian-mother. When she came to the Philippines,she was holding an Australian passport and was registered as an alien in theBID. Then, Rosalind ran for governor.

SC: Rosalind is a Filipino citizen. (1) Her father is a Filipino- Her father is aSpanish subject. In 1898, when the Spanish ceded the Philippines to the US,under the Jones Law and the Philippine Bill of 01 July 1902, all inhabitants ofthe Philippines who were Spanish subjects are deemed to be Philippine

citizens. [This is the first time that there came to be Filipino citizens. It wasan ―en masse citizenship‖ because of a change of sovereignty].

(2) Rosalind is a Filipino- Philippine law on citizenship adheres to theprinciple of jus sanguinis, where a child follows the nationality of the parentsregardless of the place of his/her birth. Hence, Rosalind‘s father is a Filipino,

she is a Filipina. Her being born in Australia is not tantamount to her losingher Philippine citizenship. Even if Australia follows jus soli, it only results toher possessing dual citizenship.

(3) Effect of holding an Australian passport- mere holding of an Australianpassport does not mean renunciation of Philippine citizenship. In order tolose Philippine citizenship by renunciation, such renunciation must beexpress—the person renouncing must perform a positive act. (See Mercadovs. Manzano and Aznar vs. Comelec)

3. Those born before 17 January 1973, of Filipino mothers, who electPhilippine citizenship upon reaching the age of majority

3 Requisites for the application of this provision:

(1) They were born before 17 Jan. 1973.

(2) Their mother is a Filipino.

(3) They elect Philippine citizenship upon reaching the age ofmajority.

*History of the provision:

-Under the 1935 Constitution, legitimate minor children follow thecitizenship of their father.

-Thus one with an alien father and a Filipina, mother,would, during minority, be an alien.

-Hence, he is given, upon reaching the age of majority, theoption to elect.

-Note that this is the reason why the provision applies only to thoseborn of ―Filipino mothers‖.

-One with a Filipino-father and an alien mother would stillbe a Filipino, since he follows his father‘s citizenship.


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*These are Natural-Born Citizens (See Sec. 2)

*When Should Election Be Made- ―Reasonable Time from Reaching Age ofMajority‖—RE: Application for Admission to the Philippine Bar, Vicente D.Ching (Bar Matter No. 914, 01 Oct.1999)

*Ching was born in 1964, of Chinese father and Filipina mother. Ching nowseeks to elect Philippine citizenship so he can be admitted to the PhilippineBar.

SC: The 1935 Constitution only states that Philippine citizenship should bechosen upon age of majority. CA 625 states the child should be given areasonable time to elect Philippine citizenship. This reasonable time hasbeen construed to be 3 years upon reaching the age of majority.

Here, Ching seeks to elect only 14 years after reaching the agemajority. This is way beyond the contemplated period for electing Philippinecitizenship. One who is privileged to elect Philippine citizenship has only aninchoate right to such citizenship—as such, he should avail of the right withfervor, enthusiasm and promptitude.

4. Those who are naturalized in accordance with law

TECSON VS. COMELEC

*FPJ was born in 1939, of a Filipino father and an American mother. Hisparents got married only in 1940.

SC: FPJ is an illegitimate child because his parents got married only after hisbirth. However, the 1935 Constitution states that ―those whose fathers arecitizens of the Philippines‖ acquire Philippine citizenship. Thus, it did notdistinguish whether the child is legitimate or illegitimate.

The rule is different when it is the mother who is a Filipino. Here, ifthe child is legitimate—he can elect Philippine citizenship upon reaching theage of majority. If he is illegitimate, he will follow the mother‘s citizenship.The reason for this rule is to ensure Filipino nationality of the child so as notto prejudice. Normally, since he is illegitimate, the mother would havecustody and have parental authority.

*Natural-Born Citizens (Sec. 2)

2 Kinds of Natural-Born Citizens:

1. Those who are citizens of the Philippines from birth without having toperform any act to acquire or perfect their Philippine citizenship.

2. Those who elect Philippine citizenship in accordance with par (3), Sec. 1

-In this case, the person has to perform an act to perfect his

Philippine citizenship.

-Thus, this constitutes an exception to the 1 st kind ofNatural-Born Citizens.

BENGSON III VS. HRET (GR 142840, 07 May 2001)

*Cruz lost his Philippine citizenship when he rendered service in the US Armed Forces, but re-acquired it through repatriation under RA 2630. Hethen ran, and won, as Congressman. His qualification was questioned on theground that he is not a natural-born citizen.

SC: He is a natural-born citizen. (1) Effect of Repatriation—Repatriationresults in the recovery of the original nationality. Thus, a naturalized Filipino

who lost his citizenship will be restored to his prior status as a naturalizedFilipino. On the other hand, if he was originally a natural-born citizen beforehe lost his citizenship, he will be restored to this former status as a natural-born Filipino.

(2) Kinds of Citizens under the Constitution—There are only 2 classes ofcitizens under the Constitution—(a) natural-born and (b) naturalized inaccordance with law. A citizen who is not a naturalized Filipino—one who didnot undergo the process of naturalization—is a natural-born Filipino.Noteworthy is the absence in the enumeration of a separate category forpersons who, after losing Philippine citizenship, subsequently reacquires it.This is because such whether such persons are natural-born or naturalizeddepends on the reasons for the loss of their citizenship and the mode

prescribed by the applicable law for the reacquisition thereof.

Marriage to foreigners— Art. IV, Sec. 4

*‖Citizens of the Philippines who marry aliens shall retain their citizenship,unless by their act or omission they are deemed, under the law, to haverenounced it.‖

*History of the provision:

-This provision was carried over from the 1973 Constitution.


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-In the 1935 Constitution, there is no similar provision.

-Thus, women were prejudiced—when they marry a foreigner, theylose their Filipino citizenship.

Ex. Biel vs. Director of Public Schools

-A public School teacher was removed from her position because shemarried her Chinese lover.

-However, if the woman just maintains a live-in relationship with a foreigner,she does not lose her Philippine citizenship—there is no marriage.

-Thus, they are better situated than those who contracted marriagewith foreigners.

-Absurd!

*In relation to Sec. 1 (3)

-Under the 1935 Constitution, the children of a Filipina-mother and an alien-father who had a common law relationship are Philippine citizens.

-No need to elect.

Q. Why?

A. Being illegitimate children, they follow the citizenship of theirmothers, who remain to be Filipinos since they are not married to aliens.

-This is another absurdity.

Thus:

1. In 1970, Filipina married a foreigner

-Filipina loses Philippine citizenship.

-The 1935 Constitution had no provision similar to Art. IV, Sec. 4

2. In 1975, Filipina married a foreigner

-Filipina retains Philippine citizenship.

-The 1973 Constitution had a provision similar to Art. IV, Sec. 4.

Modes to Acquire Philippine Citizenship:

1. Birth

2. Naturalization

Loss and Re-Acquisition of Philippine Citizenship

-Art. IV, Sec. 3—―Philippine citizenship may be lost or reacquired in themanner provided by law‖.

Ways by which Philippine Citizenship may be Re-Acquired:

1. Naturalization

2. Repatriation

Naturalization vs. Repatriation

Naturalization Repatriation

1. As to Nature

2. As to process

-A mode of acquisitionand reacquisition ofPhilippine citizenship.

*As a mode ofacquisition- CA 473governs

*As a mode of re-acquisition- CA 63governs.

-Very cumbersome andtedious.

-A mode of re-acquisition of Philippinecitizenship.

-Simpler process

*Process is simple—requires only:

1. Take oath of allegiance

2. Registration with the Civil Registry

*Available when the loss of citizenship is due to:


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(1.) Desertion of the Armed Forces (CA 63)

(2.) Service in the Armed Forces of Allied Forces during WW 2 (RA 965)

(3.) Service in the US Armed Forces (RA 2630)

*See Bengzon III vs. HRET

(4.) Marriage of Filipino woman to an alien, political or economic necessity(RA 8171)

3. Direct Act of Congress

*Dual Allegiance— Art. IV, Sec. 5

*‖Dual allegiance of citizens is inimical to the national interest and shall bedealt with in accordance with law.‖

Q. Is this provision self executing?

A. No. It says ―shall be dealt with by law‖. It means a future law.

Q. Is there now a law that prohibits dual allegiance?

A. Yes. RA 7160, Sec. 40 (d) (Local Government Code)

―The following are disqualified from running for any elec tive local position:xxx

(d) Those with dual citizenship‖ (See Mercado vs. Manzano)

MERCADO VS. MANZANO (307 SCRA 630, 26 May 1999)

*Edu Manzano was born in the US, of Filipino parents. In 1998 he ran forvice-mayor of Makati. His qualification was challenged. Note that RA 7160,Sec. 40 (d) disqualifies those with dual citizenship from running for localelective office.

SC: He is qualified to run. (1) Manzano has dual citizenship —since hisparents are Filipinos, he is a Filipino; since he was born in the US, he is alsoa US citizen. Thus, he has dual citizenship.

(2) Dual Allegiance is Prohibited, Not Dual Citizenship—what is prohibited bythe Constitution is dual allegiance, not dual citizenship. The concern of theConstitutional Commission was not with dual citizens per se, but with

naturalized citizens who maintain their allegiance to their countries of origineven after their naturalization. Hence, the phrase ―dual citizenship‖ in RA7160, Sec. 40 (d) must be understood as referring to ―dual allegiance‖. Hence, persons with mere dual citizenship do not fall under thedisqualification.

Situations Where Dual Citizenship Arises:

a. Those born of Filipino fathers and/or mothers in foreign countries whichfollow the principle of jus soli.

b. Those born in the Philippines of Filipino mothers and alien fathers, if bythe laws of their father‘s country, such children are citizens of that country.

c. Those who marry aliens if by the laws of the latter‘s country the former areconsidered citizens, unless by their act or omission they are deemed to haverenounced their Philippine citizenship.

Dual Allegiance vs. Dual Citizenship

Dual Allegiance Dual Citizenship

1. As to how it results

2. As to voluntariness

-A situation where aperson simultaneouslyowes, by some positiveact, loyalty to 2 or morestates.

-Voluntary.

-Arises when, due tothe concurrentapplication of thedifferent laws of 2 ormore states, a person issimultaneouslyconsidered a nationalby said states.

Involuntary.

*RA 9225—Dual Citizenship Law (Citizenship Retention and Re-Acquisition Act of 2003)

RULE: Natural-born Filipinos who lost their Philippine citizenship bynaturalization as citizens of a foreign country shall re-acquire/retain theirPhilippine citizenship upon taking the Oath of Allegiance. (Sec. 3, RA 9225)

Effect of Re-Acquisition on Civil and Political Rights- the following rights canbe exercised, subject to certain conditions:


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1. Right to vote- RA 9225 Sec. 5 (1) - must meet requirements of Sec. 1, Art.V and of RA 9189 (Overseas Absentee Voting Act of 2003)

2. Elective Public Office – RA 9225 Sec. 5 (2) – must renounce foreigncitizenship before any public officer authorized to administer oath.

-Done at the time of the filing of the certificate of candidacy.

-Thus, he will lose his dual citizenship- will have just 1 citizenship.

3. Appointive Public Office – RA 9225 Sec. 5 (3) – must also renounce.

4. Practice of Profession – subject to guidelines of proper regulatory agency.

-Art. 12, Sec. 14, 2nd par., 1987 Constitution- ―The practice of allprofessions in the Philippines shall be limited to Filipino citizens, save incases prescribed by law.‖

Q. X was born in the USA on Jan. 10, 1973, of a Filipino mother and American father. He studied and worked in the Philippines. Can he r un for

Mayor?

A. (1) Under the 1935 Constitution, which was governing at the time of X‘sbirth, he should elect Philippine citizenship upon reaching the age ofmajority.

(2) Under RA 9225, he is also a dual citizen—hence, he should firstrenounce his American citizenship.

*Res Judicata in Citizenship Cases

GR: No res judicata in cases of citizenship.

EXCEPTION: Burca vs. Republic (51 SCRA 248, 1973)

When the following requisites concur:

1. When the person‘s citizenship is raised as a material issue in acontroversy where said person is a party;

2. When the Solicitor General or his authorized representative took activepart in the resolution thereof; and

3. When the finding on citizenship is affirmed by the SC.

Structure of Government

3 Parts of a Written Constitution:

(1) Constitution of sovereignty – This refers to thee provisions pointing outthe modes or procedure in accordance with which Formal changes in theconstitution may be made.

Ex: Article XVIII – ―Amendments or Revisions‖

(2) Constitution of Liberty – the series of prescriptions setting forth thefundamental civil and political rights of the citizens and imposing limitationson the power of the government as a means of securing the enjoyment ofthose rights.

Ex: Article III – Bill or Rights

(3) Constitution of Government – provides for a structure and system ofgovernment; refers to the provisions outlining the organization of theGovernment, enumerating its powers, laying down certain rules relative to itsadministration and defining the electorate.

Ex: Article VI – Legislative Department

Article VII – Executive Department

Article VIII – Judicial Department

Article IX – Constitutional Commissions

Doctrine of Separation of Powers in a presidential type of government

The 3 great powers are distributed among the 3 great branches ofgovernment:

Legislative power – Legislative branch / Congress


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Article VI, Sec 1 – ―The legislative power shall be vested in the congress ofthe Philippines…”

This is also called the POWER OF THE PURSE.

Executive power – Executive branch / President

Article VII, Sec 1 – ―The executive power shall be vested in the President ofthe Philippines…‖

This also called the POWER OF THE SWORD

Judicial power – Judiciary / Supreme Court

Article VIII, Sec 1 – ―The judicial power shall be vested in one SupremeCourt and in such lower courts as may be established by law .‖

This is also called the POWER OF JUDICIAL REVIEW

The legislative and the executive branches are called the POLITICALBRANCHES.

Corollary to the principle of separation of powers:

Principles of checks and balances

Each branch of the government is a check of the others so that power willnot be concentrated which might lead to abuse and irreparable damage.

This allows 1 department to resist encroachments upon its prerogatives or torectify mistakes or excesses committed by the other departments.

Ex: veto power of the President.

Principle of non-delegation of Powers

GR – ―Potesta delegata non potest delegari‖ – Power delegated may nolonger be delegated.

XPNs: Instances of permissible delegation – PETAL

Delegation to the People under the systems of initiative and referendum(plebiscite, Art. VI, Sec 1)

Delegation to the President of Emergency powers (Art VI, Sec 23)

Delegation to the President of Tariff powers (Art VI, Sec 28[2])

Delegation to Administrative Bodies

Delegation to Local governments (Art. X)

There must always be an EXPRESS delegation! (by Law/Constitution)

Q. What are the requisites before emergency powers may be delegated tothe President?

A. Under Article VI. Section 23. there are four:

There must be a war or other national emergency.

The delegation shall be for a limited period only

The delegation must be pursuant to a declared national policy

The delegation is subject to such restrictions and limitations as Congressmay prescribe.

The power is delegated from the Congress to the President (David vs Arroyo)


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Representatives , except to the extent reserved to the people by the provisions on initiative and referendum.‖

Q. What power is vested in Congress?

A. Legislative Power under Article VI, Sec. 1 (The Power of the Purse).

Q. Is legislative power exclusively vested in Congress?

A. NO. Unlike in the 1935 constitution where the legislative power isexclusively vested in Congress, under the 1987 constitution, there is areservation made to the people (initiative and referendum). (Art VI, Sec1).

The legislative power is not exclusively vested in Congress! It is vested in:

Congress – made up of 2 houses:

Senate

House of Representatives

We have a Bicameral Congress

The houses are co-equal bodies; hence the terms ―upper house‖ and ―lowerhouse‖ are inaccurate!

Bicameral Conference Committee

See Phil. Judges Association vs. Hon. Prado, and

Tolentino vs. Secretary of Finance.

―…to the extent reserved to the People by initiative and referendum‖

Article VI, Sec. 32 – The Congress shall, as early as possible, provide for asystem of initiative and referendum, and the exceptions there from.

This is no self -executing.

Q. Has the Congress enacted a Law?

A. YES. R.A. 6735 (Initiative and Referendum Law) is the implementingprovision of Sec 1 Art VI, 1987 Constitution.

3 kinds of Initiative under RA 6735:

Initiative on the Constitution

declared unconstitutional (Santiago vs. COMELEC)

Initiative on Statutes

Implemented Article VI. Sec 1

Refers to petitions proposing to enact a national legislation

Valid

Initiative on Local Legislation

refers to petitions proposing to enact, amend, or repeal local ordinances.

Valid.

Bar Q: What is initiative? What is Referendum?

A: Initiative is the power of the people to propose amendments to theConstitution on to propose and enact legislations through an election for thepurpose (Sec 3(a), RA6735).

Referendum is the power of the electorate to approve or reject a legislationthrough an election called for the purpose (Sec. 3©, RA6735).


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Q: May the President enact laws?

A: NO. Legislative power is vested in Congress. Legislative power includesthe power to ENACT, AMEND, or REPEAL. The power vested on thePresident is the EXECTIVE POWER or the power to IMPLEMENT laws.

PRESIDENT’S PARTICIPATION IN THE LAW-MAKINGPROCESS

Q: Does the President have any participation in the Law-makingprocess?

Yes, in the following instances: [SBUVS]

When he exercises his veto power

Article VI, Sec 27. – ―Every bill passed by Congress shall before it becomesa law, be presented to the president. If he approves the same, he shall signit; otherwise, he shall veto it…‖

When the president vetoes a bill, that bill doesn‘t become a law.

When he calls for a special session

Art VI. Sec 15 – ―The president may call a special session at any time‖

In effect, he will initiate the process

When the president certifies as the urgency of the bill to meet a publiccalamity or emergency.

Art VI, sec 26 (2) ―No bill passed by either house shall become a law unlessit has passed three (3) readings on separate days x x x except when the president certifies as to the necessity of its immediate enactment to meet a public calamity or emergency .‖

The president hastens the process by dispensing with 3 separate readingson 3 separate days rule.

When the president signs a bill that becomes a law

Art VI, sec 27 – ―Every bill passed by Congress shall before it becomes alaw, be presented to the president. If he approves the same, he shall signit…‖

The president performs the last operative act for a bill to become a law.

When the president prepares a budget which is the basis of the GENERAL APPROPRIATIONS ACT.

Art VII, Sec 22 – ―The president shall submit to the congress x x x as basisof the general appropriations bill a budget for expenditures and sources offinancing, including receipts from existing and proposed revenue measures.‖

NON-LEGISLATIVE POWERS OF CONGRESS (9): [IBAWI PA CE]

Investigative power / power to conduct investigation (inquiries in aid oflegislation)

Art VI, Sec 21 – “The senate or the house of representatives or any of itsrespective committees may conduct inquiries in aid of legislation or inaccordance with its duly published rules of procedure…”

Power to declare the existence of a state of War

Art VI, Sec 23 – “The congress by a vote of 2/3 of both houses in jointsession assembled, voting separately, shall have the sole power to declarethe existence of a state of war.” [*then based on such declaration, delegateemergency powers to the President]

Power to confirm a presidential appointments [through commission on Appointments]

Art VII, Sec 16 – “The president shall nominate and with the consent of theCommission on Appointments, appoint the heads of the executivedepartments, ambassadors, other public ministers and consuls or officers ofthe armed forces from the rank of colonel or naval captain, and other officerswhose appointments are vested in him in this constitution.”


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Power to punish for contempt

- Incidental to the power to conduct inquiries in aid of legislations.

Power to impeach and to try cases of impeachment

As a prosecutorial body: Art XI, Sec 3(1) – ―The House of Representativesshall have the exclusive power to initiate all cases of impeachment.

As an impeachment Court: Art XI, Sec 3(6) – ―The senate shall have thesole power to try and decide all cases of impeachment x x x ―

Power to judge election contests involving their members through theElectoral tribunal

Art VI, Sec 17 – “The senate and House of Representatives shall each have

electoral tribunals which is the sole judge of all contests relating to theelection returns and qualifications of their respective members x x x”

Power to concur in Amnesty Proclamation

Art VIII, Sec 19(2) – ―He shall have the power to grant amnesty with theconcurrence of a majority of all the members of the Congress‖

Power to propose amendments to, or revisions of the constitution, whenacting as constituent assembly

Art XVII, Sec 1(2) – “Any amendment to, or revision of, this constitution maybe done by: (1) The congress, upon a vote of ¾ of allits members; x x x”

Power to act as board of canvassers in presidential and vice-presidentialelections.

Art VII, Sec 4(4) – “Upon receipt of the certificates of canvass, the presidentof the Philippines shall, not later than 30 days after the day of the election,

open al certificates in the presence of the Senate of the House ofRepresentatives in joint and public session, and the Congress, upondetermination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.”

Composition of CONGRESS

Senate – 24 senators elected at large;

Term: 6 years

Term limit: 2 Consecutive terms

House of Representatives

Term: 3 years

Term limit: 3 consecutive terms

Art VI, Sec 5(1) – ―The HOR shall be composed of not more than 250members, unless otherwise fixed by law, who shall be elected fromlegislative districts apportioned among the provinces, cities, and themetropolitan manila area x x x‖

Senator Representative

(1) Citizenship Natural born

(2) LIteracy Able to read and write

(3) Voter Registered voter

(4) Age 35 years of age onthe day of election

25 years of age on the day of election

(5) Residence 2 years residence 1 year in the district he is representing.

(6) Term 6 years, 2consecutive term-limit

3 years; 3 consecutive term-limit.


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This provision is already Functus Officio!

Congress has the power to reapportion district every census, under

Art VI, Sec 5(4) –

Within 3 years following the term of every census, the congress shall make are-apportionment of legislative districts based on the standards provided inthis section.‖

Qualifications:

Marcos vs. COMELEC (248 SCRA 300 [1995])

In her application for candidacy, Imelda wrote ―7 monthsrequirement‖, then amended it and wrote, ―Since birth‖. The SC decided infavor of Imelda.

Supreme court held that in political law, ―residence‖ is considered as―domicile‖.

Kinds of Congressmen:

Art VI, Sec 5(1) – ―The HOR shall be composed of not more than 250members, unless otherwise fixed by law, who shall be elected fromlegislative districts x x x and those who, as provided by law, shall be electedthrough a party-list system of registered national, regional, and sectoral parties or organizations.”

District representatives

Party-list representatives

this absorbed the sectoral representatives

Art VI, Sec 5(2) – ―x x x for 3 consecutive terms after the ratifications of thisconstitution, ½ of the seats allocated to the party-list representatives shall befilled as provided by law, by selection or election from the labor, peasant,urban poor, indigenous cultural communities, women, youth, and such othersectors as may be provided by law, except the religious sector.‖

[other sectors: f isher folks, elderly, handicapped (Sec 5, RA7941)].

PUF – LICE – HWY – O

Xpn: Religious sector

Party list systemImplemented by RA7941 (Party-list law)

Adopted the German model of the party list system

1998 elections: first time we had party list election

Borrowed concept from parliamentary system

See: Ang bagong-bayani-OFW labor party vs. COMELEC (June 26, ‗01En Banc)

Q: What is the nature of the party-list system?

A: The party-list system is a social justice tool designed not only to

give more in life to the great masses of our people who have less in life, butalso

to enable them to become veritable (genuine/real) law makers themselves. It

intends to make the marginalized and underrepresented active participantsin the mainstream of representative democracy.

The party list system is one such tool intended to benefit those who hae lessin life. It gives the great masses of our people the genuine hope and genuinepower. It is a message to the destitute and the prejudiced, and even to thosein the underground (e.g. rebels), that change is possible. It is an invitation forthem to come our of their limbo and seize the opportunity.

Q: Is it open to all?


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A: No. It is not open to all but only to the marginalized and theunderrepresented.

Allowing all individuals and groups, including those which now dominate

district elections, to have the same opportunity to participate in the party-listelections would desecrate this lofty. Objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics (nosebleed!)

To make it open to all, without qualifications would not only weaken theelectoral chances of the marginalized and the underrepresented – it alsoprejudices them. To allow the non-marginalized and the overrepresented tovie under the party list system would not only dilute, but also prejudice thechance of the marginalized and underrepresented – contrary to the law‘sintention to enhance it. It would gut the substance of the party-list system.Instead of generating hope, it would create a mirage. Instead of enabling the

marginalized, it would further weaken them and aggravate theirmarginalization.

Uphold Social Justice principle – to give those who have less life, more inlaw.

Underground group – Rebels (p.27 3A notes)

Guidelines for screening party list participants (8)

The political party, sector, organization, or coalition must represent themarginalized and underrepresented sectors identified in Sec 5, RA7941.

Sec 5, RA7941 – ―x x x the sectors shall include labor, peasant, fisherfolk,urban poor, indigenous cultural communities, elderly, handicapped, women,youth, veterans, overseas workers, and professionals.‖

This enumeration is NOT exlusive

However, it demonstrates the clear intent of the law that NOT all sectors canbe represented under the party-list system.

While political parties may participate in the party-list system, then must

comply with the declared statutory policy of enabling ―Filipino citizensbelonging to the marginalized and underrepresented sectors x x x to beenelcted to the HOR.

They must show that they represent the interests of the marginalized and theunderrepresented.

Sec 5, RA 7941 – ―Any organized group of persons may regilster as a party,organization, or coalition for purposes of the party-list system x x x‖

Sec 7, Art IX-C, 1987 Const. – ―No votes cast in favor of a political party,organization, or coalition shall be valid, except for those registered under theparty-list system as provided in this constitution.

Sec 8, Art IX-C, 1987 Const. – ―Political parties or organizations or coalitionsregistered under the party list system shall not be represented in the voter‘sregistration boards x x x‖

Sec 5(1), Art VI, 1987 Const. – ―The HOR shall be composed of x x x andthose who x x x shall be elected through a party list system of registerednational, regional, and sectoral parties or organizations.

The religious sector may not be represented in the party-list system orregistered as a political party.

Art IX-C Sec 2(5) – ―The COMELEC shall exercise the following powers andfunctions x x x (5) Register x x x political parties, organizations x x x religiousdenomination shall not be registered.

Art VI, Sec 5(2) – ―x x x from the labor, peasant urban poor x x x and suchother sectors as may be provided by law, except religious sector‖

Sec 6(1), RA7941 – ―The COMELEC may x x x refuse or cancel x x x theregistration of any national regional or sectoral party, organization orcoalition on any of the following grounds: (1) If it is a religious sect ordenomination, organization or association organized for religious purposes.


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Ex: El Shaddai cannot register and participate in the party-list system

The prohibition is on any religious organization registering as a politicalparty. No prohibition against a priest running as a candidate. What isprohibited is the registration of a religious sect as a political party.

The party or organization must not be an adjunct of, or a project organizedby, or an entity funded or assisted by the government.

It must be independent of the government

By the very nature of the party-list system, the party or organization must bea group of citizens, organized and operated by ci tizens.

The participation of the government or its officials in the affairs of a party-listcandidate is not only illegal and unfair to others, but also deleterious to theobjective of the law.

Ex: MAD – Mamamayan Ayaw sa Droga

The party or organization must not be disqualified under sec 6, RA 7941:

Sec 6, RA 7941 – Ground for refusal and/or cancellation of registration:

It is a religious sector denomination, organization or association, organizedfor religious purposes;

It advocates violence or unlawful means to seek its goal;

It is a foreign party or organization;

It is receiving support from any foreign gov‘t, foreigh political party,foundation, organization, whether directly or through any of its officers ormembers or indirectly through 3rd parties for partisan election purposes.

It violates or fails to comply with laws, rules or regulations relating toelections;

It declares untruthful statements in its petition;

It has ceased to exist for at least 1 year;

It fails to participate in the last 2 preceding elections, or fails to obtain atleast 2% of the votes cast under the party list system in the 2 precedingelections for the constituency in which it has registered.

The party must not only comply with the requirements of the law; itsnominees must likewise do so x x x

The nominee must also be qualified.

Sec 9, RA 7941 – Qualifications for party list nominees

Natural-born citizen of the Philippines

Registered voter

Resident of the Philippines for a perioud of not less than 1 year immediatelypreceding the day of the electon.

Able to read and write

Bona fide member of the party or organization which he seeks to representfor at least 90 days preceding the day of the election.

Not only the candidate party or organization must represent marginalizedand underrepresented sectors; so also must its nominees.

The nominee must also represent the marginalized and underrepresented

Surely, the interests of the youth cannot be fully represented by a retiree;neither can those of the urban poor or the working class by an individualist.

While lacking a well-defined political constituency, the nominee mustlikewise be able to contribute to the formulation and enactment ofappropriate legislation that will benefit the nature of the whole.

4 inviolable parameters to determine the winners in a Party-list election


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(As mandated by the Constitution and RA7941) BarQuestion!

See VETERANS FEDERATION PARTY vs. COMELEC (October 6, 2000 EnBanc)

The twenty (20%) percent allocation

The combined member of all party list congressmen shall not exceed 20% ofthe total membership of the HOR, including those elected under the party-list.

Art VI, Sec 5(2) – ―The party-list representatives shall constitute 20% of thetotal number of representatives including those under the party-list .

The two (2%) percent threshold

Only those garnering a minimum of 2% of the total valid votes cast for the

party list system are qualified to have a seat in the HOR.

The base is the total votes cast for the party-list and not the total number ofregistered voters.

See RA 7941.

The three (3) seat limit

Each qualified part, regardless of the number of votes actually obtained, isentitled to a maximum of 3 seats – 1 qualifying and 2 additional seats.

Rationale: To avoid domination/monopoly – will go against the purpose ofthe party-list system.

Proportional Representation

The additional seats to which a qualified party is entitled to shall becomputed in proportion to their total number of votes.

Q: To determine the total votes cast for the party-list system, should thevotes tallied to the disqualified candidates be deducted/excluded incomputing the 2% threshold?

A: Yes. The votes for the disqualified parties should be excluded.

(Ang Bagong Bayani OFW vs. COMELEC [June 25, 2003 En Banc])

In the case of Labo vs. COMELEC, reaffirmed in the case of Grego vs.COMELEC, the court declred that the votes case for an ineligible ordisqualified candidate cannot be considered stray, because this woulddisenfranchise the voters/majority; valid votes.

However, votes cast for a notoriously disqualified candidate may beconsidered stray and excluded from the canvass.

This does not apply to the party-list elections!

Because of the express rule in Sec 10, RA 7941 – ―x x x that a vote cast fora party, sectoral organization or coalition not entitled to be voted for shall notbe counted x x x‖

The LABO doctrine applies only to SINGLE ELECTIVE POST/ELECTIONS(e.g. Mayor); In the party-list system, even the 2nd, 3 rd, etc... candidate mayget seats.

Concept and Bases of Congressional Oversight Functions

See MAKALINTAL vs. COMELEC

Q: What is the power of oversight?

A: Broadly defined, the power of oversight embraces all activities undertakenby Congress to enhance its understanding of and influence over theimplementation of legislation it has enacted. Clearly, oversight concernspost-enactment measures undertaken by Congress:

to monitor bureaucratic compliance with program objectives;

to determine whether agencies are properly administered;

to eliminate executive waste and dishonesty;


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to prevent executive usurpation of legislative authority; and

to assess executive conformity with the congressional perception of publicinterest

Q: What is/are the basis of oversight power of Congress? A: The power of oversight has been held to be (1) intrinsic in the grant oflegislative power itself and (2) integral to the checks and balances (3)inherent in a democratic system of government.

Q: what are the categories of congressional oversight functions? [SIS]

A: Three categories:

Scrutiny – primary purpose is to determine economy and efficiency of theoperation of government activities.

Based primarily on the power of appropriation of congress as under theconstitution, the ―power of the purse‖ belongs to the congress

Ex: Budget hearings – usual means of renewing policy and auditing the useof previous appropriation to ascertain whether they have been disbursed forpurposes authorized in an appropriation act.

Power of confirmation – [through COA,] provides congress an opportunity tofind out whether the nominee possesses the necessary qualifications,integrity and probity required for all public servants.

Congress may request information and report from the other branches ofgovernment. It can give recommendations / pass resolutions forconsideration of the agency involved.

Congressional Investigation – a more intense digging of facts.

This is an essential and appropriate auxiliary to the legislative functions,even in the absence of an express provision in the Constitution.

Sec 21 Art VI (in aid of legislation)

Sec 22 Art VI (Question hour)

Legislative Supervision – third and most encompassing form of oversightpower.

―Supervision‖ connotes a continuing and informed awareness on the part ofcongressional committee regarding executive operations in a givenadministrative area.

Allows congress to the exercise of delegated law-making authority andpermits congress to retain that part of delegated authority.

Ex: veto power of Congress.

Power to create public office / administrative agency – congress has anadditional power to supervise - properly implemented congress has reviewpowers over these public offices / administrative agencies.

Ex: GSIS.

Q: What is legislative veto?

A: It is the power of the congress to disapprove a subordinate law, rules andregulations promulgated/enacted by the executive branch pursuant to adelegation of authority by Congress.

Immunities and privileges of members of Congress

Sec 11, Article VI – ― A senator of member of the HOR shall, in all offenses punishable by not more than 6 years imprisonment, be privileged from arrestwhile the congress is in session. No member shall be questioned nor be heldliable in any other place for any speech or debate in Congress or in anycommittee thereof .‖

3 Privileges:

(1) Privilege from Arrest

(2) Freedom of speech and debate


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Ex: Freedom of speech and debate of members of Congress.

Qualifiedly privileged

Not actionable unless the author acted in bad faith.

This does NOT include Congress Itself!

Osmeňa vs. Pendatun: The Senate expelled Senator Osmeňa from theSenate when he maligned the President in his speech.

SC: The Senate‘s act is valid. Congress can punish their members [ Art VI,Secc 16(3)]. The freedom of speech and debate cannot be invoked inCongress itself. The constitution says, ―in any other place‖.

People vs. Jalosjos: To allow Jalosjos to attend congressional session willvirtually make him a free man; this would be a mockery of the correctionalsystem.

Immunity of Members of the Congress

arises from a constitutional provision

granted in a restrictive sense

cannot be extended by Intendment

Implication

Equitable considerations

Q: During pendency of his appeal from conviction of RTC, should he beallowed to post bail?

A. NO. Evidence of guild is strong; should wait for decision on appeal insidethe penitentiary.

1987 Constitution says…

Art III, Sec 13 ―All persons, except those charged with offenses punishableby reclusion perpetua, when the evidence of guilt is strong, shall, before

conviction, be bailable by sufficient sureties, or be released on recognizanceas may be provided by law. x x x‖

Rules of Court says…

Rule 114 Sec 4 – Bail, a matter of right; exception:

All persons in custody shall be admitted to bail as a matter of right, withsufficient sureties, or released on recognizance as prescribed by law or thisrule.

before / after conviction by the MTC; and

before conviction by RTC of an offense not punishable by death, R.P, or lifeimprisonment.

Rule 114 Sec 5 – Bail, when discretionary

Upon conviction by the RTC of an offense NOT punishable by death, RP, orLI, admission to bail is discretionary. x x x

Therefore:

Matter or Right – before conviction, punishable by penalty lower thanreclusion perpetua

Exception: charged with offense punishable by RP or death.

Matter of Discretion – before conviction punishable by penalty of reclusionperpetua or higher when the evidence of guilt is strong, there will be a

hearing to determine whether evidence of guilt is strong.

After conviction, go to Rule 114 sections 4 and 5.

Power to Conduct Investigations and Inquiries

Sec 21, Art VI – “The senate or the House of R epresentatives or any of itsrespective committees may conduct inquiries in aid of legislation inaccordance with its duly published rules of procedure. The rights of personsappearing in or affected by such inquiries shall be respected.”


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Power to Conduct a Question Hour

Art VI, Sec 22 – “The heads of departments may upon their own initiative,with the consent of the President, or upon the request of either house, as therules of each house shall provide, appear before and be heard by suchhouse on any matter pertaining to their departments x x x”

2 ways to initiate a question hour:

Own initiative, with the consent of the President

Upon request of either house.

Q: What is Question Hour?

A: It is a period of confrontation initiated by the parliament to hold the prime

minister and other ministers accountable for their acts and the operation ofthe government. (definition borrowed from a parliamentary government).

Senate of the Philippines vs Ermita

Sections 21 and 22, therefore, while closely related and complementary toeach other, should not be considered as pertaining to the same power ofCongress.

Section 21 Section 22

- relates to the power to conductinquiries in aid of legislation; the aimof which is to elicit information thatmay be used for legislation.

- pertains to the power to conduct aquestions hour; the aim of which is toobtai

Documents

Constitutional Law Review.pdf