Pre-midterm memory aid for Constitutional Law 1

Pervasive Power

Preliminary Examination For Constitutional Law 1 – E.H. 401

Memory Aid for Constitutional Law IConstitutional Law The study of the maintenance of the proper

balance between authority as represented by the three inherent powers of the State and liberty as guaranteed by the Bill of Rights

Political Law It is the branch of public law which deals with the

organization and obligations of the various instrumental organs of the state and defines the relationship of the state and the inhabitants of its territory.

THREE INHERENT POWERS OF THE STATE

1. Police Power2. Power of Eminent Domain3. Power of Taxation

Philippine Constitution According to Cooley:

“The body of rules and maxim in accordance with which the powers of sovereignty are habitually exercised”

According to Justice Malcolm:“The written instrument enacted by direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic”

PURPOSE OF THE CONSTITUTION:a. To prescribe the permanent framework of a

system of governmentb. To assign to the several departments their

respective powers and functionsc. To outline the basic principles upon which the

government or state must govern

“The Constitution merely recognizes and protects these

rights and does not bring them into existence”

“No act shall be valid, however noble its intentions, if it conflicts with the Constitution”

Why do we have to study the Philippine Constitution To know how our delegates are acting whether

or not they are acting in accordance to our Constitution

The study of Constitution is mandatory pursuant to art.14, sec.3, par.1 of the 1987 Constitution

CLASSIFICATION OF CONSTITUTIONS

Written Constitution - Its precepts are embodied in one document or

set of documents.

Unwritten Constitution

- Consists of rules which have not been integrated into a single, concrete for but are scattered in various sources such as statutes, judicial decisions, customs and traditions and common law principles.

Conventional Constitution - An enacted constitution, formally struck off at a

definite time and place following a conscious or deliberate effort taken by a constituent body or ruler.

Cumulative Constitution - The result of political evolution, not inaugurated

at any specific time but changing by accretion rather than by any systematic method.

Rigid Constitution - One that can be amended only by a formal and

usually difficult process Flexible Constitution

- One that can be changed by ordinary legislation

“The Philippine Constitution is written, conventional and rigid”

Advantage- It has the capacity to withstand capricious changes of those

who are in power.

Disadvantage- If there is a legitimate need, the Constitution will impede

progress

“The Constitution cannot be amended by the exigent passage of a law by Congress, because the Constitution is superior to any and all laws and laws passed by Congress is inferior to the Constitution”

ESSENTIAL QUALITIES OF A WRITTEN CONSTITUTION

BROAD- So it can provide for the organization of the

entire government and covers all persons and things within the territory of the State and so it could also embody the past, reflect the present and to anticipate the future.

- It must be comprehensive enough to provide for every contingency.

BRIEF- Provides for the basic principle leaving some

details susceptible for the legislation as may be enacted by Congress.

DEFINITE/CLEAR- To avoid ambiguity in its provisions that may

result to confusion and divisiveness among the people.

ESSENTIAL PARTS OF A WRITTEN CONSTITUTIONConstitution of Liberty Bill of Rights: Sets forth the civil and political

rights of the peopleConstitution of Government Refers to the part of the Constitution which

provides for the framework for the organization

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of the government, sets forth the powers of the government:a. Article 6: Legislative Branchb. Article 7: Executive Branchc. Article 8: Judiciary d. Article 9: Various constitutional commission

Constitution of Sovereignty Consists of the provisions pointing out the mode

or procedure in accordance with which formal changes in the fundamental law may be brought about.

RULES IN CONSTITUTIONAL CONSTRUCTION

Verbal Legis It means that in interpreting the provisions in the

Constitution that the words used there in must be interpreted in their ordinary or literal sense except where technical terms are used.

Ratio Legis Et Anima If there are ambiguities in interpreting the provisions

of the 1987 Constitution then we must delve into the intent of the lawmakers behind its enactment.(Francisco vs House of Representatives)

Ut Magis Valiat Cuam Periat The provisions of the Constitution which deals with

the same subject matter must be construed or interpreted altogether so as to give meaning and effect to the same provisions. (Bayan vs Zamora)

Self-Sustaining/Executing Provisions The Constitution does not need any statutory

implementation The Constitution does need to enabling laws for it to

be effective

AMENDMENT or REVISION

Amendments These are isolated changes in some provision/s

in the Constitution and this can be done by adding, subtracting or deleting a portion of the provision therein.

Piecemeal change

Revision This is the complete rewriting or overhaul of the

Constitution. Also refers to isolated changes in the

Constitution that would drastically alter the basic principles underlining the Constitution.

PROCESS OF AMENDING or REVISING THE CONSTITUTION

Article 17, Sections 1,2,3 and 4 of the 1987 Constitution

Stages of Amendment or Revision1. Proposal

- It is at this stage that the proposed amendments or revisions are being formulated.

2. Ratification- It is at this stage the proposed amendment or

revision would be submitted to the people for approval or ratification.

PROPOSAL STAGE Who can Propose Amendments or Revisions ?

CONGRESS ¾ votes of all its members The HOR and Senate voting separately

Congress must transform itself as a Constituent Assembly:- The reason for this is because its primary task

now is to propose amendments or revisions to the Constitution

- By transforming itself into a “ConAs”, Congress in effect would propose amendments not in the exercise of its ordinary legislative function but it is performing special powers to propose the change in fundamental law of the land.

- Composed of members of Congress

CONSTITUTIONAL CONVENTION This body is composed of members elected

by the people particularly for the Constitutional Convention

Who can call a “Constitutional Convention”?(Article 17, Sec. 3)

a. Congress A Constitutional Convention may called

by congress upon 2/3 of all its members; the House of Representatives and Senate voting separately.

b. Delegate to the People The congress may delegate the

question of calling a “Constitutional Convention” to the people by a majority of vote.

Can Congress while calling a Constitutional Convention

pass another law prescribing how “ConCon” works by majority vote?

Yes, this is allowed:“According to the Supreme Court, any such later enactment done by Congress by a simple majority vote is valid since what is important is that the creation of the Constitutional Convention is done in accordance with what is prescribed in the 1987 Constitution furthermore, the following enactments done by Congress are only suppletory laws” (Imbong vs COMELEC)

How do we regard the Constitutional Convention as compared to the other body of government?

According to Frantz vs. Aurtry:

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“It is independent and coequal with the other body of government as along as it confines itself within the sphere of its jurisdiction”

When is the best time to call for a Constitutional Convention? For revision or complete overhaul of the

Constitution At the end of the day, the matter of calling a

constitutional assembly is addressed to the sound discretion of congress whether or not the changes proposed are for revision or amendment only.

When is it proper to call for a Constituent Assembly ? For amendments and piece-meal changes in the

constitution

Can congress call for a Constitutional Convention and at the same time propose amendments to the Constitution?

Yes, ruling of the Supreme Court:“While it is not practicable for congress to call a constitutional convention and at the same time propose amendments to the constitutional body itself, there is nothing in law which would prevent the congress from doing both”(Gonzales vs. COMELEC)

PEOPLE’S INITIATIVE(Article 17, Section 2 of the 1987 Constitution)

Limitations of People’s Initiative:

The people initiative would only apply to amendments and never to revisions.The petition to amend the constitution must be supported by at least 12% of the registered voters of the Philippines provided that each and every administrative district is represented by at least 3% of the registered voters therein.The petition must be signed by the people themselves and cannot be done on their behalf.The proposed amendatory provision must be incorporated on the petition itself.The system on people’s initiative cannot be exercised within 5 years following the adoption or ratification of the 1987 Constitution.It cannot be availed of more than once every 5 years following thereafter.There has to be a law to govern the system on people’s initiative. Congress has to provide the regulations on the implementation of this system.The system of people’s initiative can only be used for amendments and never for revision.

RATIFICATION STAGEArticle 17, Section 4

Ratification must be held not earlier than 60 days and not later than 90 days.

When will the period start:a. Congress or Constitutional Convention

As of the date of approval for the proposed amendment.

b. For People’s Initiative The period will start from the day the

proposed amendment is found sufficient in form or substance.

In this stage the proposed amendments or revision would be voted upon by the people in a plebiscite called for that purpose.

May ratification be held simultaneously with a general election?

Yes (Gonzales vs. COMELEC)“According to the Supreme Court, in as much as the law or the Constitution mentions only of an election without distinction as to what kind of election is that, then could not make a distinction”

“Rule as of now, that any ratification may be validly done simultaneously with a general election”

May there be a piece-meal submission of proposed amendments for ratification to the people?

No (Tolentino vs. COMELEC)“There can never be a piece-meal submission of amendments for ratification by the people”

PROPOSAL vs. REFERENDUM(Sanidad vs. COMELEC)

Referendum This is the process of getting the consensus of the

public in a particular public issue. Consultative in nature

Plebiscite This is associated to the process of approving or

ratifying the proposed amendments or revision to the Constitution.

It has something to do with the approval or disapproval of amendments or revision to the Constitution for a particular law.

Can the Supreme Court or any Courts of Law review the amendatory process or the observance thereof? Or is this issue a Political Question?

“The current rule is that courts of law particularly the Supreme Court can now review the amendatory process to determine whether or not the amendatory process as enshrined in Article 17 of the Constitution is properly observed. It is no longer considered a political question”“The Supreme Court has jurisdiction to review the amendatory process for amendments or revision however the wisdom of the proposed amendments remains as a political question”

POWER of JUDICIAL REVIEW

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Power of Judicial Review- Refers to the power of courts of law or courts of

justice to check the validity of legislative or executive acts in light to its conformity to the provisions of the Constitution.

- According to Article 8, Section 1 (2)“The power of courts of justice to settle actual controversies involving rights which are legally enforceable and demandable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction of any branch or instrumentality of the government”

- According to Article 8, Section 1 (1)The courts of law can now review the acts of the legislative or executive branch to determine whether or not these branches acted with grave abuse of discretion amounting to lack or excess of jurisdiction.

SUPREMACY of THE CONSTITUTION(Article 8, Section 4 (2), of the 1987 Constitution)

Vests upon the Supreme Court the power to decide all cases involving the constitutionality of a treaty, international or executive agreement or law which must be decided by the Supreme Court En Banc including the constitutionality application and operation of presidential decrees, proclamation, orders, ordinances, instructions and other regulations.

The Supreme Court is not superior to other branches of the government since it is only exercising its duty as mandated by the provisions of the Constitution. This is considered an indication of the supremacy of the Constitution.

JUDICIAL REVIEW vs. POLITICAL QUESTION

Political Question Those questions which under the Constitution,

are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislature or executive branch of government.

It is concerned with issues dependent upon the wisdom, not the legality of a particular measure.(Tañada vs. Cuenco)

- If the question pertains to the wisdom of an act - If it is a purely political question then it is

beyond the arbiter of judicial reviewJudicial Review- If the question deals with the legality of an act

then this may not be considered a purely political question and so this can reviewed by courts of law.

Who can exercise Judicial Review ?

Article 8, Section 5 , paragraph 2 (a) :- The Supreme Court including the Lower Courts has

jurisdiction on all cases in which constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation is in question.

This means that lower courts can validly review on the constitutionality of a law, however lower court decisions may still be appealed at the Supreme Court.

Appeals- This is a continuation of the proceeding that

happened in the court below.

Certiorari- This is an independent civil action.

Quasi-Judicial Body or the Ombudsman- Cannot validly review or tackle questions

regarding the constitutionality or validity of a law.(Serrano vs. Gallant Maritime)

DECLARATORY RELIEF(Pursuant to Section 3, Rule 63, of the 1997 Rules of Civil Procedure)

Notice must be sent to the Office of the Solicitor General (OSG) if what is involved is a question regarding the validity or invalidity of a law. It is the Office of the Solicitor General which

would defend the interest of the state since they are ones entrusted to act as the counsel for the state.

Must be filed only at Regional Trial Court, this cannot be filed directly to the Supreme Court of Court of Appeals

If questioning the constitutionality of National Laws- There should be a notice to the OSG

If questioning the constitutionality of Local or Provincial, Municipal or City Ordinance- There should be a notice sent to the

provincial, municipal or city attorney so they can be notified of the petition and they can participate in the proceedings.

FUNCTIONS of POWER OF JUDICIAL REVIEW

1. Checking Function- To check the validity of the executive or

legislative acts in light with the 1987 Constitution. (Osmeña vs. COMELEC)

2. Legitimating/ Legitimizing Function4


- The determination of whether the particular agency or department concerned has stayed within its own sphere of authority observing the constitutional limitations projected for actions within such sphere, or whether it has trespassed into the zone of immunity or privacy guaranteed to individuals by the Constitution.

3. Symbolic Function- To enunciate or to promulgate sound doctrine to

guide the bench and the bar.

Can courts of law automatically exercise Judicial Review?- No, since courts of law including the Supreme

Court is considered passive instruments, in that they only function when their jurisdiction is invoked.

- Any courts of law cannot exercise its power of Judicial Review without being invoked by the proper property.

ESSENTIAL REQUISITES for a JUDICIAL REVIEW

There must be an actual case or controversy. The question of constitutionality must be raised by the proper property.The Constitutional question must be raised at the earliest possible opportunity.The decision of the Constitutional question must be decisive or the very “lis mota” of the case.

-----¤¤¤-----Actual Case or Controversy- This means that there should be an actual conflict or

claims or conflicting claims of authority susceptible to adjudication before the courts of law can validly exercise its power of judicial review.

- Any hypothetical question will not satisfy the requirement.

Declaratory Relief (Rule 63 of the 1997 of Rules of Civil Procedure)

- If there is a contract, a will, a deed, a written instrument, a law or ordinance for that matter anybody may file a petition to have his right declared.

- Petitions for declaratory relief are not hypothetical questions since the contract, will, deed, written instrument, law or ordinance already exists, what the petitioner only wants is that his right be acknowledge in the particular subject matter.

General Rule: In any case that is moot and academic should be dismissed outright.

Exceptions: 1. Grave and culpable violation of the Constitution.2. Paramount Public Interest3. If there is a need for formulation of controlling

doctrines for the guidance of the bench and the bar.4. Capable of repetition yet evading review.5. Issue is ripe for adjudication.

Proper Party

a. Citizen Suit - Petitioner assailing the citizen suit must have

incurred injury directly caused by the questioned law.

b. Taxpayer Suit- The petitioner must be able to establish that the

questioned “act” involves illegal disbursement of public funds and that the illegal disbursement of public funds is done in connection with the taxing or spending power of Congress.

Otherwise, even if the act assailed of involves the illegal disbursement of public funds but there is no showing that it is directly connected with the taxing or spending power of congress then the action may be dismissed since it is not a proper action of taxpayer suit.

(Kilosbayan vs. Morato)

c. Legislator Suit- In this action, it is necessary that the member of

congress must show that the questioned “act” infringes his legal right and prerogatives as a legislator.(Francisco vs. HOR; Senate vs. Office of Executive Secretary)

d. Voter Suit- The petitioner assailing this legal standing must

be able to establish that the questioned “act” or law infringes his right as a voter. (Loida Nicolas-Lewis, et. al vs. COMELEC)

Exceptions:1. The issue if the Transcendental Importance

- The issue is accompanied with paramount or important public interest.

2. A matter of Public Right

3. The questioned act is instituted by way of Facial Challenge- Assailing the questioned statute as being vague

or cannot be easily understood and that ordinary man will be confused as to the legal meaning of the statute.

- Assailing that the questioned statute has a scope which is too broad such that the law would appear as valid to the petitioner but there is a good chance that it would be invalid if assailed by another person.

- This can only be instituted if the questioned law deals with freedom of speech or freedom of expression.

Can the government question the validity of its own laws?

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Yes (People vs. Vera)“The government has the legal standing to questions its own laws, and this is only practical for the government to see to it that the laws enacted are valid since the government is considered the protector of the people under the Doctrine of Parens Patriae”

Does IBP have a legal standing in questioning a law since it is an organization who is supposedly for the upholding of the rule of law?

No (IBP vs. Zamora)“The Supreme Court ruled that IBP has no legal standing to bring the petition on the pretext that it is an organization tasked to uphold the rule of law without establishing that any of its members suffered an injury directly caused by the questioned “act” or law”

What happens if the petition is assailed by a person without a legal standing?

It is dismissed outright.In the case of In Re: Saturnino Bermudez

- The petition was dismissed outright since Bermudez does not have any legal standing on the case for he is not claiming the position of the president which is the one he is questioning about.

Raised at Earliest Opportunity at a Forum with Jurisdiction

Any question dealing with the validity or invalidity of a law must be raised in the initiatory pleading as either a complaint or a petition; otherwise the question cannot be concerned anymore at the succeeding trial or by appeal.

It must also be raised in a forum which has the competence to rule the validity or invalidity of a law.

Exceptions:1. Criminal Proceeding:

- The question dealing with the validity or invalidity of law may be raised at the sound discretion of the judge.

2. Civil Proceeding:- Any question dealing with the validity or

invalidity of a law may be raised at any stage of the proceeding if such issue is crucial or determinative of the case.

3. Any issue regarding the jurisdiction of the tribunal may also be raised at any time during the trial except after final judgment the petitioner is already barred due to the rule of estoppel.

The Issue must be determinative or the very “Lis Mota” of the caseAs a Rule:

Out of respect to the other branches of government, courts of law should refrain or avoid from ruling on the issue of validity or invalidity of a law.

EFFECT of DECLARATION of UNCONSTITUTIONALITY

Two Effects:

a. The Orthodox View- The law is declared void in ab initio

Article 7 of the Civil Code:An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative as if it has not been passed at all.

b. Operative Fact Doctrine- The effect of the law prior to its invalidation must be

respected.

Which doctrine should we apply in a given case ?Orthodox View This view is applied when the validity of a

law is questioned immediately after it became effective.

Operative Fact Doctrine This view will govern when the law is

questioned of its validity only after some time or years after its passage or enactment, taking into consideration that the law has already taken effect which must be respected.

PARTIAL UNCONSTITUTIONALITYRequisites:

This will happen if there is a legislative intent to retain the valid provisions of the law and this is found on the “Separability Clause” found on the law itself.

The remaining provisions must be able to independently stand on their own.

Separability Clause- This provides that if any of the provision a law is

declared invalid then the other remaining parts thereof shall remain valid.

If the questioned provision is the heart and soul of the law or it is the be-all-and-end-all of a law then if it is declared unconstitutional, the result will be to invalidate the whole law.

CONCEPT OF THE STATEState A community of persons, more or less

numerous, permanently occupying a fixed territory and possessed of an independent government organized for political ends to which the great body of inhabitants render habitual obedience.

The legal concept Is an ideal person, invisible, intangible,

immutable and existing only in contemplation of the law

Nation

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Indicates a relation of birth or origin and implies a common race, usually characterized by community of language and customs.

This is a racial or ethnic concept

There can be a nation, without a state. But there can never be a state, without a nation.

ESSENTIAL ELEMENTS OF THE STATE

1. People2. Territory3. Government4. Sovereignty

People Refers to the inhabitants of the State It is generally agreed that they must be

numerous enough to be self-sufficing and to defend themselves and small enough to be easily administered and sustained. The people must come from both sexes to be able to perpetuate themselves.

Territory The fixed portion of the surface of the earth

inhabited by the people of the State. It must neither be too big to be difficult to

administer and defend nor too small as to be able to provide for the needs of the population.

Components of Territory:Terrestrial Domain - the landmassMaritime & Fluvial Domain – inland and external watersAerial Domain – the air space above the land and waters

Archipelago Doctrine - This states that we must connect the

outermost points of our archipelago with straight baseline and consider all the waters enclosed thereby as internal waters.

- The entire archipelago is regarded as one integrated unit instead of being fragmented into so many thousands of islands.

Government The agency or instrumentality of through which

the will of the State is formulated expressed and realized.

It is the perfect agent of if it is acting within the sphere of its agency but a lawless usurper if it’s acting outside of its function.

From viewpoint of International Law- No particular form of government is

prescribed, provided only that the government is able to represent the State in its dealings with other States.

From the viewpoint of our Constitution

- It requires our government to be democratic and republican.

Function of the Government:Constituent Function:- This constitutes the very bonds of society and

therefore compulsory.

Ministrant Function:- Those undertaken to advance the general

interests of society.

To our Supreme Court, the distinction between constituent and ministrant functions is not relevant in our jurisdiction.

Parens Patriae - Guardian of the rights of the people

De Jure & De Facto Government

De Jure Government:- It has the rightful title but no power or control,

either because this has been withdrawn from it or because it has not yet actually entered into the exercise thereof.

De Facto Government:- It is considered government in fact, that is, it

actually exercises or control but without legal title.

Three Kinds of De Facto Government1. The government that gets possession and

control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter.

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

3. That which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is denominated as a government of paramount force.

Administration The group of persons in whose hands the reins

of the government are for the time being.

Administration is transitional whereas the government is permanent.

Sovereignty The supreme and uncontrollable power inherent

in a State by which that State is governed.Legal Sovereignty- The authority which has the power to issue

commandsPolitical Sovereignty

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- The power behind the legal sovereign or the sum of the influences that operate upon it.

Internal Sovereignty- Refers to the power of the State to control its

domestic affairs.External Sovereignty/ Independence- The power of the State to direct its relations with

other States

Act of State An act done by the sovereign power of a

country, or by its delegate, within limits of the power vested in him.

This cannot be questioned or made the subject of legal proceedings in a court of law.

Example: An act done by the political departments of the

government are not subject to judicial review.

Sovereignty is permanent, exclusive, comprehensive, absolute, indivisible, inalienable and imprescriptible.

During a belligerent occupation, what the occupant took over was only the exercise of acts of sovereignty. There being no change of sovereignty during a belligerent occupation, the political laws of the land is only deemed suspended, subject to the revival upon the end of the occupation.

Non-political laws are deemed to continue unless changed by the belligerent occupant.

The rule suspending political laws affects only the civilian inhabitants of the occupied territory and is not intended to bind the enemies in arms.

Judicial decisions are also valid during the occupation and even beyond except those of political complexion.

When there is a change of sovereignty, the political laws of the former sovereign are not merely suspended but abrogated.

------------------------ ***Nothing Follows***----------------------

There is something you must always remember...You are braver than you believe,

Stronger than you seem,And smarter than you think.

~Winnie the Pooh

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Pre-midterm memory aid for Constitutional Law 1