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Fernandez, Perfecto (1983) Separation of Powers as Juristic Imperative. Philippine Law Journal Volume 58 Year 1983. Sixth University of the Philippines Law Alumni Association Chair on Jurisprudence Lecture.

University of the Philippines VisayasDivision of Social SciencesCollege of Arts and SciencesPolitical Science ClusterPolitical Science 14(Philippine Government and Politics)Lecture Notes No.3 , Gacayan 2014

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeWhats for today?

-Review on Introductory Topics-Tripartite System as a mechanism of SOP-SOP in historical perspective-Todays concept of Power-Take stock on what SOP is a Juristic Imperative

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperative

Lecture Notes No.1 , Gacayan 20134Separation of Powers as Juristic Imperativeinstitutional arrangement or situation, which combines a definite structure of government with a set or relationships among component elementse.g. mom & dads take on your nightlife

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperativepolicy, position or principle advocated, taught or put into effect concerning the acquisition and exercise of the power to govern or administrate in societye.g. Mystery of light in rosaries and all dogmas (?)

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperativewrongly identified with political ideology. However, doctrine lacksthe actional aspectof ideologyXmainly a theoretical discourse, which "refers to a coherent sum of assertions regarding what a particular topic should be" (Bernard Crick)

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperative=a rationally elaborated set of values, which may precede the formation of a political identity per se. It is concerned with philosophical orientations on ameta-theoretical level

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeJuristic Imperative? ?

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperative?Juristic=Jurisrpudence= study and theory of lawImperative=Imperative=of vital importance; crucial. E.g. "immediate action was imperative"synonyms:vitally important, of vital importance, all-important, vital, crucial, critical, essential, necessary, indispensable, urgent

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperative?Why is separation of powers indispensible to constitutionalism (adherence of a type of government to written laws). )

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperative=(1)Structure for limited government(2)Power interrelationships for free and independent judiciary(3)Basic institutional safeguard for democracy and civil liberty(4)Cornerstone of the constitution

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperative

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Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeTripartite system

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeTripartite system -powers of Legislation, Execution, and Adjudication are each lodged in a separate Branch of government

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeTripartite system must have a definite legal relationship to and with each otherX

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperative_Tripartite system relationships are summed up in principles of equality and separation

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativePrinciples of Tripartite system=EQUALITY+SEPARATION

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeEQUALITY=each Branch is the equal of the others; hence, it may not be controlled by the others, and in turn, it may not control either or both of them.

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeEQUALITY=in Philippine set-up these come in the form of checks balancesCheck this out!

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperative

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Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeSEPARATION=each Branch is separate and distinct from the other branches, and may exercise only the Power lodged with it but not other Powers.

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperative

Separation of power = doctrine

Tripartite system = mechanism

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperative?

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeSeparation of Powers in Historical Perspective

#1) -Philippine state is premature because its claim to statehood is based on regional sentiment.

-Anti-colonial sentiment was a result of oppression from occupationA) First statement is true, second statement is falseB)First statement is false, second statement is trueC) Both statements are trueD) Both statements are false#2-5) The three original demands of native indios that are never resolved up to todays government#6) -Philippine state is premature because legitimacy is challenged

-Philippine state is considered legitimate by virtue of international supportA) First statement is true, second statement is falseB)First statement is false, second statement is trueC) Both statements are trueD) Both statements are false#7) What is not produced by weak and premature states?A) weak institutions of governanceB) inability to manage diversitiesC) weaker statesD) Both A and B#8) All of these reasons warrants why Separation of Power is indispensible to constitutionalism, except that SOP providesa) Structure for limited governmentb)Power interrelationships for free and independent judiciaryc) Basic institutional safeguard for democracy and civil libertyd) Cornerstone of the law

#9)Is said to be the medium where the political ideals of Filipino peasants were best articulated#10)Reynaldo Ileto is to History from Below as ___________is to History from Above. #11 ) Is a set up where powers of Legislation, Execution, and Adjudication are each lodged in a separate Branch of government

#12) Globalization is the root cause of tensions in Philippine society.

-Poverty is the result as well of Globalization. A) First statement is true, second statement is falseB)First statement is false, second statement is trueC) Both statements are trueD) Both statements are false#13 ) Un-abbreviated version of the acronym ILAGA.#14 )Looking at David Martinezs A Country of our Own, how many sub-nations does the Philippine state has?#15) A major resistance group in the Philippines called Mujahideen but claims to be the true vanguard of Islamic Movement in Mindanao.a)BIFFb)MILFc)MNLFd) Abu Sayyaf#16)May be a policy or sum of coherent assertions of what things should be but often wrongly identified with political ideology#17) All states should strive to have a common nation.

-All nations are states. A) First statement is true, second statement is falseB)First statement is false, second statement is trueC) Both statements are trueD) Both statements are false#18)this particular provision of law is suspended during declaration of martial laws#19) -Separation of power is to doctrine. -Tripartite system is to mechanism. A) First statement is true, second statement is falseB)First statement is false, second statement is trueC) Both statements are trueD) Both statements are false#20) More than political mobilization and support, this is said to be controlled by elites/patron under the model of oppressive triangular structure of Philippine Society1:B 2-5: Freedom from taxation, reform of tenancy, re-establishment of communal life3: 6: C7: C8: D9: Pasyon and Revolution10: Rommel Banlaoi11:Tripartite system12: D13: Iloilo Land Grabbers Association14: 515: B16:doctrine17: A18: writ of habeas corpus19: C20: culture

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeIn Athens and Rome, distribution of powers was IN, separation of powers was OUT.

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeDIRECT DEMOCRACY. Vs. REPRESENTATIVE DEMOCRACYEcclesia of the Greek City States and Concilium Plebis of ancient Rome Vs. Lower and Higher Floor of (Insert your name)s Piggery

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeImagine!

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperative

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeJudiciary as the first branch to develop in the tripartite system.

Judiciary had an edge in administering law that was immutable based on TRADITION AND CUSTOM.

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeTRADITION AND CUSTOM hindered Legislative growth.

pervasive homogeneity of their population, culture and tradition resulted into levels of conflict that are low and within-the-capacity of T & C fix.

The more legislations, the more conflict.

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeC & T are unable to resolve resultant differences because of Substantial differentiation

Change, re-adapt, re-interpretation or re-invent and make a new lie (legal fictions) ! = puff! Miriam and the rests

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperative

In Great Britain..... creator of the Common Law was the Judiciary under the authority of the Kingtechniques were Interpretation and Legal FictionsIndustrial Revolution redefined class lines and cleared economic disparityCommon Law (tradition and custom) cannot contain societal conflict

Thus creating this legislators weird hair

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeIn the United States..... Great depression precipitated the creation of the Welfare StateWhile production boomed, the net product or income was held largely by the industrial, commercial and banking elite. The insufficiency of disposable income meant demand was well below the available supply; hence, prices fell and the stock market crashed.

Federal regulatory agencies were set up on matters of inter state commerceSenate had a proactive role

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeTodays Concept of Powers

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeWhat does the three branches of the government have in common?exercise of Legislative Power generally yields statutes; the exercise of Executive Power yields orders; and the exercise of Judicial Power yields judgments

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeLegislative Powerto create legal duty which is generally obligatory with characteristics of creative and original, because by the act of legislation, legal duty arises and is imposed, where none existed beforelegal duty created and imposed is not imposed by express terms of the law itself on a specific or particular person, but is made obligatory generally.

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeExecutive PowerAdministration of Primary Duties provided in such General Law, whether Conditional or Unconditional.Primary Duties, are the legal duties that must be complied with or fulfilled, in order to avoid the sanction annexed hereto. Conditional and unconditional means either of POWER DEPENDENT DUTIES (duty is dependent on particular law involving exercise of human will) And FACT DEPENDENT DUTIES (conditions are in the form of legal facts, known circumstances, events or data where relative certainty is established)

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeJudicial PowerAdministration of Secondary Duties or Sanctions thereof. Judicial Power can only be exercised, where there is a violation of a Primary Duty, whether actual or threatened. On the other hand, Executive Power may be exercised independently of a violation of any law.

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeThe three branches as Sui Generis?

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeLegislation is the creation of the General Law, which ideally should be be the expression of the general will of the society. It is therefore its social function to reflect the consensus, i.e., the shared values and interests within the society.

(Ideally but not in our case)is adequate representation of social interests institutionalized through a legislature consisting of a fairly large number of representatives, freely elected by their constituencies in the different electoral districts in the country. free Debate as the method for determining the consensusinstitution of Majority Vote for securing a decision on controversial measures

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeAdjudication is the creation of Particular Law in the form of Judgments, thus the realization of Justice according to the Law in the particular case

There is justice when? there is rectification of a violation of law when determined to existsuch determination is made on the basis of facts found on the evidence of record

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeExecutive is centered on the exercise of Discretionary Authority, rather than on the performance of ministerial duties. The outcome of such exercise is generally Intermediate Law, in the form of Orders and Proclamations geared to the creation of official duties towards implementation of Primary Duties

(Ideally but not in our case)

Functions for faithful and speedy implementation of the laws, according to perceived priorities and in the national interest. Performs on methods on advantages of method has the advantages of initiative, decisiveness, and swiftness of actioncan act, if he wishes, on the basis of informed judgment, for he can have the best advisers and experts in the land.

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic ImperativeTripartite System as a mechanism HistoryPower

Lecture Notes No.1 , Gacayan 2014Separation of Powers as Juristic Imperative+1 =differentiation of social function