Category Archives: Political Law

Political Law

Political Law (Constitutional Law) – Article VIII

ARTICLE VIII. THE JUDICIAL DEPARTMENT

 

Sec. 1.  JUDICIAL POWER

Scope:

1. Judicial power is the authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violations of such rights.

2.  Vested in the Supreme Court and such lower courts as may be established by law.

3. Since the courts are given ‘judicial power’ and nothing more, courts may neither attempt to assume or be compelled to perform non-judicial functions.  They may not be charged with administrative functions except when reasonably incidental to the fulfillment of their duties.

4.  In order that courts may exercise this power, there must exist the following:

  1. An actual controversy with legally demandable and enforceable rights;
  2. Involving real parties in interest;
  3. The exercise of such power will bind the parties by virtue of the court’s application of existing laws.

5.  Judicial power cannot be exercised in vacuum.  Without any laws from which rights arise and which are violated, there can be no recourse to the courts.

6.  The courts cannot be asked for advisory opinions.

7.  Judicial power includes:

  1. The duty of the courts to settle actual controversies involving rights which are legally demandable and enforceable; and
  1. To determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

Political Questions:

1.  A ‘political question’ is one the resolution of which has been vested by the Constitution exclusively in either the people, in the exercise of their sovereign capacity, or in which full discretionary authority has been delegated to a co-equal branch of the Government.

2.  Thus, while courts can determine questions of legality with respect to governmental action, they cannot review government policy and the wisdom thereof, for these questions have been vested by the Constitution in the Executive and Legislative Departments.

Sec. 2.  ROLES OF CONGRESS

1.  Defining enforceable and demandable rights and prescribing remedies for violations of such rights; and

2.  Determining the court with jurisdiction to hear and decide controversies or disputes arising from legal rights.

3.  Thus, Congress has the power to define, prescribe and apportion the jurisdiction of various courts.

  1. BUT, Congress cannot deprive the Supreme Court of its jurisdiction over cases provided for in the Constitution.
  2. Creation and abolition of courts:
    1. The power to create courts implies the power to abolish and even re-organize courts.
    2. BUT this power cannot be exercised in a manner which would undermine the security of tenure of the judiciary.
    3. If the abolition/re-organization is done in good faith and not for political or personal reasons, then it is VALID.  (same rule applies for civil servants)

Sec. 3.  FISCAL AUTONOMY

  1. The entire judiciary shall enjoy fiscal autonomy.
  2. Annual appropriations for the judiciary cannot be reduced below the amount appropriated for the previous year.
  3. Once approved, appropriations shall be automatically and regularly released.

Secs. 4-7; 12 JUDICIARY

Composition of the Supreme Court:

  1. Chief Justice and
  2. 14 Associate Justices

Note:  Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.

Qualifications of members of the SC:

1.  Natural born citizen of the Philippines

2.  At least 40 years old

3.  At least 15 years of experience as a judge or in the practice of law in the Philippines

4.  Person of proven competence, integrity, probity and independence.

Qualifications of members of lower collegiate courts (CA, CTA, Sandiganbayan)

1.  Natural born citizen of the Philippines

2.  Member of the Philippine bar

3.  Possesses other qualifications prescribed by Congress

4.  Person of proven competence, integrity, probity and independence.

Qualifications of judges of lower non-collegiate courts:

1.  Citizen of the Philippines (may be a naturalized citizen)

2.  Member of the Philippine Bar

3.  Possesses other qualifications prescribed by Congress

4.  Person of proven competence, integrity, probity and independence.

Section 8.  JUDICIAL AND BAR COUNCIL

1.  The Judicial and Bar Council is under the supervision of the SC.

A.  Is under the supervision of the Supreme Court and is composed of:

  1. Chief Justice, as ex-officio chairman
  2. Secretary of Justice, as an ex-officio member
  3. Representative of Congress, as an ex-officio member
  4. Representative of the Integrated Bar
  5. A professor of law
  6. A retired member of the SC; and
  7. Private sector representative

Note:  The last four re the regular members of the JBC.  Regular members are appointed by the President with CA approval.  Regular members serve for 4 years, with staggered terms.

B.  Functions of JBC

  1. Principal function:  recommend appointees to the Judiciary
  2. Exercise such other functions as the SC may assign to it.

C.  Appointments to the Judiciary  

  1. President shall appoint from a list of at least 3 nominees for each vacancy, as prepared by the JBC.
  2. No CA confirmation is needed for appointments to the Judiciary.
  3. Vacancies in SC should be filled within 90 days from the occurrence of the vacancy.
  4. Vacancies in lower courts should be filled within 90 days from submission to the President of the JBC list.

Sec. 10.  SALARIES

1.  Salaries of SC Justices and judges of lower courts shall be fixed by law.

2.  Cannot be decreased during their continuance in office, but can be increased.

3.  Members of the Judiciary are NOT exempt from payment of income tax.

Sec. 11.  TENURE/DISCIPLINARY POWERS OF SC

1.  Members of the SC and judges of the lower courts hold office during good behavior until

a.  The age of 70 years old; or

b.  They become incapacitated to discharge their duties.

2.  Disciplinary action against judges of lower courts:

a.  Only the SC en banc has jurisdiction to discipline or dismiss judges of lower courts.

b.  Disciplinary action/dismissal:  Majority vote of SC Justices who took part in the deliberations and voted therein.

3.  Removal of SC Justices:

a.  Only by IMPEACHMENT.

b.  Cannot be disbarred while they hold office.

Secs. 4-6, 13.  THE SUPREME COURT

Hearing of cases:

  1. En banc; or
  2. Divisions of 3, 5, or 7.

Cases required to be heard en banc:

1.  All cases involving constitutionality of a/an:

a.  Treaty

b.  International or executive agreement or

c.  Law.

2.  All cases required to be heard en banc under the Rules of Court:

a.  Appeals from Sandiganbayan; and

b.  From the Constitutional Commissions

3.  All cases involving the constitutionality, application or operation of

a.  Presidential decrees

b.  Proclamations

c.  Orders

d.  Instructions

e.  Ordinances; and

f.   Other regulations.

4.  Cases heard by a division where required majority of 3 was not obtained.

5.  Cases where SC modifies or reverses a doctrine or principle of law laid down by the SC en banc or by a division.

6.  Administrative cases to discipline or dismiss judges of lower courts; and

7.  Election contests for President and Vice-President.

Cases heard by division

1.  Must be decided with the concurrence of a majority of the members who took part in the deliberations and voted thereon.

2.  Majority vote in a division should be at least 3 members.

Powers of the SC

1.  SC has ORIGINAL jurisdiction over

a.  Cases affecting ambassadors, other public ministers and consuls.

Note:  This refers to foreign ambassadors, etc., stationed in the Philippines.

b.  Petitions for certiorari, prohibiton, mandamus, quo warranto, and habeas corpus.

2.  SC has APPELLATE jurisdiction over final judgments and orders in the following:

a.  All cases involving the constitutionality or validity of any

  1. treaty
  2. international or executive agreement
  3. law
  4. presidential decree
  5. proclamation
  6. order
  7. instruction
  8. ordinance, or
  9. regulation;

b.  All cases involving the legality of any

  1. tax
  2. impost
  3. assessment or
  4. toll or
  5. any penalty imposed in relation thereto;

c.  All cases in which the jurisdiction of any lower court is in issue

d. Criminal cases where the penalty imposed is reclusion perpetua or higher; and

e.  All cases where ONLY errors or questions of law are involved.

3.  Temporarily assign lower court judges to other stations in the public interest.

Note:  Temporary assignment shall not exceed 6 months without the consent of the judge concerned.

4.  Order a change of venue or place of trial to avoid a miscarriage of justice.

5.  Promulgate rules concerning:

a.  The protection and enforcement of constitutional rights;

b.  Pleading, practice and procedure in all courts;

c.  Admission to the practice of law;

d.  The Integrated Bar; and

e.  Legal assistance to the underprivileged.

Limitations on Rule Making Power

a. It should provide a simplified and inexpensive procedure for the speedy disposition of cases.

b.  It should be uniform for all courts of the same grade.

c.  It should not diminish, increase, or modify substantive rights.

6.  Appoint ALL officials and employees of the Judiciary, in accordance with Civil Service Law.

7. Exercise administrative supervision over ALL courts and the personnel thereof.

Decisions of the Supreme Court:

1. Reached in consultation before being assigned to a member for the writing of the opinion.

2. A certification to this effect must be signed by the Chief Justice and attached to the record of the case and served upon the parties.

3. Members of the SC who took no part, or who dissented or abstained must state the reasons therefore.

Note:  This procedure shall also be observed by all lower collegiate courts (CA, CTA, and the Sandiganbayan).

JUDICIAL REVIEW

Definition

1.  Judicial Review is the power of the SC to declare a law, treaty, ordinance etc. unconstitutional.

2.    Lower courts may also exercise the power of judicial review, subject to the appellate jurisdiction of the SC.

3.   Only SC decisions are precedent, and thus, only SC decisions are binding on all.

Requisites                                            Code:   [A R S Co R]

1.  An ACTUAL CASE calling for the exercise of judicial power

2.  The question involved must be RIPE FOR ADJUDICATION, i.e. the government act must have had an adverse effect on the person challenging it.

3.  The person challenging the governmental act must have ‘STANDING’, i.e. a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement.

4.  The question of Constitutionality must be raised in the first instance, or at the earliest opportunity.

5.  Resolution of the issue of constitutionality is unavoidable or is the very lis mota.

Effect of a declaration of unconstitutionality:

1.  Prior to the declaration that a particular law is unconstitutional, it is considered as an ‘operative fact’ which at that time had to be complied with.

2.  Thus, vested rights may have been acquired under such law before it was declared unconstitutional.

3. These rights are not prejudiced by the subsequent declaration that the law is unconstitutional.

Sec. 14.  DECISIONS

1.  Decisions MUST state clearly and distinctly the facts and the law on which it is based.

2.  Refusal to give due course to petitions for review and motions for reconsideration must state the legal basis for such refusal.

3.  Memorandum decisions, where the appellate court adopts the findings of fact and law of the lower court, are allowed as long as the decision adopted by reference is attached to the Memorandum for easy reference.

4.  These rules only apply to courts.  They do not apply to quasi-judicial or administrative bodies nor to military tribunals.

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

Political Law (Constitutional Law) – Article VII

ARTICLE VII.  THE EXECUTIVE DEPARTMENT

Section 1.  EXECUTIVE POWER

Scope:

1)    Executive power is vested in the President of the Philippines.

2)    The scope of this power is set forth in Art. VII of the Constitution.  But this power is not limited to those set forth therein.  The SC, in Marcos v. Manglapus, referred to the RESIDUAL powers of the President as the Chief Executive of the country, which powers include others not set forth in the Constitution.  EXAMPLE:  The President is immune from suit and criminal prosecution while he is in office.

3)    Privilege of immunity from suit is personal to the President and may be invoked by him alone.  It may also be waived by the President, as when he himself files suit.

4)    BUT The President CANNOT dispose of state property unless authorized by law.

Section 2.  QUALIFICATIONS

1)    Natural-born citizen of the Philippines

2)    Registered voter;

3)    Able to read and write;

4)    At least 40 years old on the day of election

5)    Philippine resident for at least 10 years immediately preceding such election.

Note:  The Vice-President has the same qualifications & term of office as the President.  He is elected with & in the same manner as the President.  He may be removed from office in the same manner as the President.

Section 4.  MANNER OF ELECTION/ TERM OF OFFICE

Manner of Election

1)    The President and Vice-President shall be elected by direct vote of the people.

2)    Election returns for President and Vice-President, as duly certified by the proper Board of Canvassers shall be forwarded to Congress, directed to the Senate President.

3)    Not later than 30 days after the day of the election, the certificates shall be opened in the presence of both houses of Congress, assembled in joint public session.

4)    The Congress, after determining the authenticity and due execution of the certificates, shall canvass the votes.

5)    The person receiving the highest number of votes shall be proclaimed elected.

6)    In case of a tie between 2 or more candidates, one shall be chosen by a majority of ALL the members of both Houses, voting separately.  In case this results in a deadlock, the Senate President shall be the acting President until the deadlock is broken.

7)    The Supreme Court en banc shall act as the sole judge over all contests relating to the election, returns, and qualifications of the President or Vice-President and may promulgate its rules for the purpose.

Term of Office

1)    President

a)    6 years beginning at noon on 30 June immediately following the election and ending at noon on the same day 6 years later.

b)    Term limitation: Single term only; not eligible for any reelection.

c)    Any person who has succeeded as President, and served as such for more than 4 years shall NOT be qualified for election to the same office at any time.

2)    Vice-President:

a)    6 years, starting and ending the same time as the President.

b)    Term limitation: 2 successive terms.

c)    Voluntary renunciation of the office for any length of time is NOT an interruption in the continuity of service for the full term for which the Vice-President was elected.

Section 6.  SALARIES AND EMOLUMENTS

1)    Official salaries are determined by law.

2)    Salaries cannot be decreased during the TENURE of the President and the Vice-President.

3)    Increases take effect only after the expiration of the TERM of the incumbent during which the increase was approved.

4)    Prohibited from receiving any other emolument from the government or any other source during their TENURE

Sections 7-12, PRESIDENTIAL SUCCESSION

  1. Vacancies at the beginning of the term

VACANCY

SUCCESSOR

President-elect fails to qualify or to be chosen VP-elect will be Acting President until someone is qualified/chosen as President.
President-elect dies or is permanently disabled. VP becomes President.
Both President and VP-elect are not chosen or do not qualify or both die, or both become permanently disabled.
  1. Senate President or
  2. In case of his inability, the Speaker of the House shall act as President until a President or a VP shall have been chosen and qualified.

In case of death or disability of (1) and (2), Congress shall determine, by law, who will be the acting President.

2.  Vacancies after the office is initially filled:

VACANCY

SUCCESSOR

President dies, is permanently disabled, is impeached, or resigns. Vice-President becomes President for the unexpired term.
Both President and Vice-President die, become permanently disabled, are impeached, or resign.
  1. Senate President or
  2. In case of his inability, the Speaker of the House shall act as President until the President or VP shall have been elected and qualif

3)    Vacancy in office of Vice-President during the term for which he was elected:

a)    President will nominate new VP from any member of either House of Congress.

b)    Nominee shall assume office upon confirmation by majority vote of ALL members of both Houses, voting separately.  (Nominee forfeits seat in Congress)

4)    Election of President and Vice-President after vacancy during tem

a)     Congress shall convene 3 days after the vacancy in the office of both the President and the VP, without need of a call.  The convening of Congress cannot be suspended.

b)     Within 7 days after convening, Congress shall enact a law calling for a special election to elect a President and a VP.  The special election cannot be postponed.

c)     The special election shall be held not earlier than 45 days not later than 60 days from the time of the enactment of the law.

d)     The 3 readings for the special law need not be held on separate days.

e)     The law shall be deemed enacted upon its approval on third reading.

BUT:  No special election shall be called if the vacancy occurs within 18 months before the date of the next presidential election.

5)    Temporary disability of the President:

The temporary inability of the President to discharge his duties may be raised in either of two ways:

a)    By the President himself, when he sends a written declaration to the Senate President and the Speaker of the House.  In this case, the Vice-President will be Acting President until the President transmits a written declaration to the contrary.

b)    When a majority of the Cabinet members transmit to the Senate President and the Speaker their written declaration.

(i)            The VP will immediately be Acting President.

(ii)           BUT:  If the President transmits a written declaration that he is not disabled, he reassumes his position.

(iii)          If within 5 days after the President re-assumes his position, the majority of the Cabinet retransmits their written declaration, Congress shall decide the issue.  In this event, Congress shall reconvene within 48 hours if it is not in session, without need of a call.

(iv)         Within 10 days after Congress is required to assemble, or 12 days if Congress is not in session, a 2/3 majority of both Houses, voting separately, is needed to find the President temporarily disabled, in which case, the VP will be Acting President.

6)    Presidential Illness:

a)    If the President is seriously ill, the public must be informed thereof.

b)    Even during such illness, the National Security Adviser, the Secretary of Foreign Affairs, and the Chief of Staff of the AFP are entitled to access to the President

Section 13.  DISQUALIFICATIONS

SUBJECT

SOURCE OF DISQUALIFICATION

President, Vice-President, Cabinet Members, Deputies or Assistants of Cabinet Members Prohibited from:

  1. Holding any office or employment during their tenure, UNLESS:

 

  1. otherwise provided in the Constitution (e.g.  VP can be appointed a Cabinet Member, Sec. of Justice sits on Judicial and Bar Council); or
  2. the positions are ex-officio and they do not receive any salary or other emoluments therefor (e.g. Sec. of Finance is head of Monetary Board).

 

  1. Practicing, directly or indirectly, any other profession during their tenure;

 

  1. Participating in any business;

 

  1. Being financially interested in any contract with, or in any franchise, or special privilege granted by the government or any subdivision, agency or instrumentality thereof, including GOCC’s or their subsidiaries.

 

N.B.  The rule on disqualifications for the President and his Cabinet are stricter than the normal rules applicable to appointive and elective officers under Art. IX-B, Sec. 7.

Spouses and 4th degree relatives of the President (consanguinity or affinity) Cannot be appointed during President’s tenure as:

 

  1. Members of the Constitutional Commissions;
  2. Office of the Ombudsman;
  3. Department Secretaries;
  4. Department under-secretaries;
  5. Chairman or heads of bureaus or offices including GOCC’s and their subsidiaries.

 

N.B.

  1. If the spouse, etc., was already in any of the above offices at the time before his/her spouse became President, he/she may continue in office.  What is prohibited is appointment and reappointment, NOT continuation in office.
  2. Spouses, etc., can be appointed to the judiciary and as ambassadors and consuls.

 

Sections 14-16.  POWER TO APPOINT

Principles:

1)     Since the power to appoint is executive in nature, Congress cannot usurp this function.

2)     While Congress (and the Constitution in certain cases) may prescribe the qualifications for particular offices, the determination of who among those who are qualified will be appointed is the President’s prerogative.

Scope:

The President shall appoint the following:

1)    Heads of executive departments (CA confirmation needed):

2)    Ambassadors, other public ministers, and consuls (CA confirmation needed).

3)    Officers of AFP from rank of colonel or naval captain (CA confirmation needed).

4)    Other officers whose appointment is vested in him by the Constitution (CA confirmation needed), such as:

a)    Chairmen and members of the COMELEC, COA and CSC.

b)    Regular members of the Judicial and Bar Council.

c)    The Ombudsman and his deputies;

d)    Sectoral representatives in Congress.

  • N.B. President also appoints members of the Supreme Court and judges of the lower courts, but these appointments do not need CA confirmation.

5)    All other officers whose appointments are not otherwise provided for by law; and those whom he may be authorized by law to appoint.

a)     This includes the Chairman and members of the Commission on Human Rights, whose appointments are provided for by law NOT by the Constitution.

b)     Congress may, by law, vest the appointment of other officers lower in rank in the President alone or in the courts, or in the heads of departments, agencies, boards or commissions.

c)     BUT:  Congress cannot, by law, require CA confirmation of the appointment of other officers for offices created subsequent to the 1987 Constitution (e.g. NLRC Commissioners, Bangko Sentral Governor).

d)      ALSO: Voluntary submission by the President to the CA for confirmation of an appointment which is not required to be confirmed does not vest the CA with jurisdiction.  The President cannot extend the scope of the CA’s power as provided for in the Constitution.

Procedure:

1)    CA confirmation needed:

a)    Nomination by President

b)    Confirmation by CA

c)    Appointment by President; and

d)    Acceptance by appointee.

Note:  At any time before all four steps have been complied with, the President can withdraw the nomination/appointment.

2)    No CA confirmation:

a)    Appointment; and

b)    Acceptance.

Note:  Once appointee accepts, President can no longer withdraw the appointment.

Ad-interim appointments:

1)    When Congress is in recess, the President may still appoint officers to positions subject to CA confirmation.

2)    These appointments are effective immediately, but are only effective until they are disapproved by the CA or until the next adjournment of Congress.

3)    Appointments to fill an office in an ‘acting’ capacity are NOT ad-interim in nature and need no CA approval.

Appointments by an Acting President:

These shall remain effective UNLESS revoked by the elected President within 90 days from his assumption or re-assumption of office.

Limitation

1)    2 months immediately before the next Presidential elections, and up to the end of his term, the President or Acting President SHALL NOT make appointments.  This is to prevent the practice of ‘midnight appointments.”

2)    EXCEPTION:

a)    Can make TEMPORARY APPOINTMENTS

b)    To fill EXECUTIVE POSITIONS;

c)    If continued vacancies therein will prejudice public service or endanger public safety.

Section 17.  Power of Control and Supervision

Power of Control:

The power of an officer to alter, modify, or set aside what a subordinate officer has done in the performance of his duties, and to substitute the judgment of the officer for that of his subordinate.  Thus, the President exercises control over all the executive departments, bureaus, and offices.

The President’s power over government-owned corporations comes not from the Constitution but from statute.  Hence, it may be taken away by statute.

Qualified Political Agency:

1)    Since all executive and administrative organizations are adjuncts of the Executive Department, the heads of such departments, etc. are assistants and agents of the President.

2)    Thus, generally the acts of these department heads, etc, which are performed and promulgated in the regular course of business, are presumptively the acts of the President.

3)    Exception:  If the acts are disapproved or reprobated by the President.

4)    Under Administrative Law, decisions of Department Secretaries need not be appealed to the President in order to comply with the requirement of exhaustion of administrative remedies.

5)    Qualified political agency does NOT apply if the President is required to act in person by law or by the Constitution.  Example:  The power to grant pardons must be exercised personally by the President.

Disciplinary Powers:

1)    The power of the President to discipline officers flows from the power to appoint the, and NOT from the power control.

2)    BUT While the President may remove from office those who are not entitled to security of tenure, or those officers with no set terms, such as Department Heads, the officers, and employees entitled to security of tenure cannot be summarily removed from office.

Power of Supervision:

1)    This is the power of a superior officer to ensure that the laws are faithfully executed by subordinates.

2)    The power of the president over local government units is only of general supervision.  Thus, he can only interfere with the actions of their executive heads if these are contrary to law.

3)    The execution of laws is an OBLIGATION of the President.  He cannot suspend the operation of laws.

4)    The power of supervision does not include the power of control; but the power of control necessarily includes the power of supervision.

Section 18.  COMMANDER-IN-CHIEF POWERS

Scope:

1)    The President is the Commander-in-Chief of the Armed Forces.

2)    Whenever necessary, the President may call out the AFP to PREVENT or SUPPRESS:

a)    Lawless violence;

b)    Invasion; or

c)    Rebellion.

3)    The President may also:

a)    Suspend the privilege of the writ of habeas corpus; and

b)    Proclaim a state of martial law.

Suspension of the privilege of the writ of habeas corpus and declaring martial law;

  1. Grounds
  1. Invasion or
  2. Rebellion; and
  3. Public safety requires it.
  1. The invasion or rebellion must be ACTUAL and not merely imminent.
  1. Limitations:
  1. Suspension or proclamation is effective for only 60 days.
  1. Within 48 hours from the declaration or suspension, the President must submit a report to Congress.
  1. Congress, by majority vote and voting jointly, may revoke the same, and the President cannot set aside the revocation.
  1. In the same manner, at the President’s initiative, Congress can extend the same for a period determined by Congress if:

i.  Invasion or rebellion persist and

ii.  Public safety requires it.

NOTE:  Congress CANNOT extend the period motu propio.

  1. Supreme Court review:

i.  The appropriate proceeding can be filed by any citizen.

ii.  The SC can review the FACTUAL BASIS of the proclamation or suspension.

iii.  Decision is promulgated within 30 days from filing.

  1. f.      Martial Law does NOT:

i.  Suspend the operation of the Constitution.

ii.  Supplant the functioning of the civil courts or legislative assemblies.

iii.  Authorize conferment of jurisdiction on military courts over civilians where civil courts are able to function and

iv.  Automatically suspend the privilege of the writ.

  1. Suspension of privilege of the writ:

i.  Applies ONLY to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

ii.  Anyone arrested or detained during suspension must be charged within 3 days.  Otherwise he should be released.

Note:  While the suspension of the privilege of writ and the proclamation of martial law is subject to judicial review, the actual use by the President of the armed forces is not.  Thus, troop deployments in times of war is subject to the President’s judgment and discretion.

Section 19: EXECUTIVE CLEMENCY

Scope:

1.)    The President may grant the following: [ Pa R C Re]

  1. Pardons (conditional or plenary)
  2. Reprieves
  3. Commutations
  4. Remittance of fines and forfeitures

2.)    These may only be granted AFTER conviction by final judgment.

3.)    ALSO: The power to grant clemency includes cases involving administrative penalties.

4.)    Where a conditional pardon is granted, the determination of whether it has been violated rests with the President.

Limitations:

1.)    As to scope:

Cannot be granted:

a.)    Before conviction

b.)    In cases of impeachment

c.)    For violations of election laws, rules, and regulation without the favorable recommendation of the COMELEC

d.)    In cases of civil or legislative contempt

2.)    As to effect:

a.)    Does not absolve civil liabilities for an offense.

b.)    Does not restore public offices already forfeited, although eligibility for the same may be restored.

Amnesty:

1.)    An act of grace concurred in by Congress, usually extended to groups of persons who commit political offenses, which puts into oblivion the offense itself.

2.)    President alone CANNOT grant amnesty.  Amnesty needs concurrence by a majority of all the members of Congress.

3.)    When a person applies for amnesty, he must admit his guilt of the offense which is subject to such amnesty.  If his application is denied, he can be convicted based on this admission of guilt.

4.)    Amnesty V. Pardon

AMNESTY

PARDON

Addressed to POLITICAL offenses Addressed to ORDINARY offenses
Granted to a CLASS of persons Granted to INDIVIDUALS
Need not be accepted Must be accepted
Requires concurrence of majority of all members of Congress No need for Congressional concurrence
A public act. Subject to judicial notice Private act of President. It must be proved.
Extinguishes the offense itself Only penalties are extinguished.

May or may not restore political rights. Absolute pardon restores. Conditional does not.

Civil indemnity is not extinguished.

May be granted before or after conviction Only granted after conviction by final judgement

Section 20. Power to Contract or Guarantee Foreign Loans

Limitations:

(1) The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board; and

(2) Subject to such limitations as may be provided by law.

Section 21. Foreign Relations Powers include:

(1)  Power to negotiate treaties and other international agreements

(a)  BUT: Such treaty of international agreement must be concurred in by at least 2/3 of all Senators in order to be valid and effective in our country.

(b)  Options of Senate when a treaty is submitted for its approval:

(i)                 Approve with 2/3 majority;

(ii)               Disapprove outright; or

(iii)             Approve conditionally, with suggested amendments.

(c)  If treaty is not re-negotiated, no treaty

(d)  If treaty is re-negotiated and the Senate’s suggestions are incorporated, the treaty will go into effect without need of further Senate approval.

Note:  While our municipal law makes a distinction between international agreements and executive agreements, with the former requiring Senate approval and the latter not needing the same, under international law, there is no such distinction.

Note: The President cannot, by executive agreement, undertake an obligation which indirectly circumvents a legal prohibition.

(e)  Conflict between treaty and municipal law.

(i)  Philippine court:

The later enactment will prevail, be it treaty or law, as it is the latest expression of the State’s will.

(ii)  International tribunal

Treaty will always prevail.  A State cannot plead its municipal law to justify noncompliance with an international obligation.

(2)  Power to appoint ambassadors, other public ministers, and consuls.

(3) Power to receive ambassadors and other public ministers accredited to the Philippines.

(4)  Power to contract and guarantee foreign loans on behalf of the Republic

(5)  Power to deport aliens

(a)    This power is vested in the President by virtue of his office, subject only to restrictions as may be provided by legislation as regards the grounds for deportation.

(b)   In the absence of any legislative restriction to authority, the President may still exercise this power.

(c)    The power to deport aliens is limited by the requirements of due process, which entitles the alien to a full and fair hearing.

BUT:    The alien is not entitled to bail as a matter of right.

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

Political Law (Constitutional Law) – Article VI

ARTICLE VI – THE LEGISLATIVE DEPARTMENT

Sec. 1.  The legislative power shall be vested in the Congress of the Philippines, which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.

 

Definition of Legislative Power:

The authority to make laws and to alter or repeal them.

Classification of legislative power: (O De CO)

  1. Original – Possessed by the people in their sovereign capacity
  2. Delegated – Possessed by Congress and other legislative bodies by virtue of the Constitution
  3. Constituent – The power to amend or revise the Constitution
  4. Ordinary – The power to pass ordinary laws

Note:

The original legislative power of the people is exercised via initiative and referendum.  In this manner, people can directly propose and enact laws, or approve or reject any act or law passed by Congress or a local government unit.

 

Limits on the legislative power of Congress:

  1. Substantive – limitations on the content of laws. E.g. no law shall be passed establishing a state religion.
  1. Procedural – limitations on the manner of passing laws. E.g. generally a bill must go through three readings on three separate days.

Note:

Provided that these two limitations are not exceeded, Congress’ legislative power is plenary.

 

Corollaries of legislative power:

  1. Congress cannot pass irrepealable laws.  Since Congress’ powers are plenary, and limited only by the Constitution, any attempt to limit the powers of future Congresses via an irrepealable law is not allowed.
  1. Congress, as a general rule, cannot delegate its legislative power.  Since the people have already delegated legislative power to Congress, the latter cannot delegate it any further.

EXCEPTIONS:

  1. Delegation of legislative power to local government units;
  2. Instances when the Constitution itself allows for such delegation [see Art. VI Sec. 23(2)]

What may Congress delegate:

Congress can only delegate, usually to administrative agencies, RULE-MAKING POWER or LAW EXECUTION.  This involves either of two tasks for the administrative agencies:

  1. “Filling up the details” on an otherwise complete statute; or
  2. Ascertaining the facts necessary to bring a “contingent” law or provision into actual operation.
Sections 2-4.  SENATE

Composition

24 senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law.

Qualifications

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

Note:  The qualifications of both Senators and Members of the House are limited to those provided by the Constitution.  Congress cannot, by law, add or subtract from these qualifications.

Term of Office:

6 years, commencing (unless otherwise provided by law) at noon, 30 June next following their election.

Term Limitations:

  1. No Senator shall serve for more than 2 consecutive terms.
  2. Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.
Sections 5-7.  HOUSE OF REPRESENTATIVES

Composition:

  1. Not more than 25 members, unless otherwise fixed by law; and
  2. Party-list Representative

Election of 250 members

  1. They shall be elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area.
  2. Legislative districts are apportioned in accordance with the number of inhabitants of each area and on the basis of a uniform and progressive ratio.
  1. Each district shall comprise, as far as practicable, contiguous, compact and adjacent territory;
  2. Each city with at least 250,000 inhabitants will be entitled to at least one representative.
  3. Each province will have at least one representative.
  4. Legislative districts shall be re-apportioned by Congress within 3 years after the return of each census.  According to Jack, however, while the apportionment of districts is NOT a political question, the judiciary CANNOT compel Congress to do this.
  5. The standards used to determine the apportionment of legislative districts is meant to prevent ‘gerrymandering’, which is the formation of a legislative district out of separate territories so as to favor a particular candidate or party.

Qualifications

  1. Natural born citizen of the Philippines;
  2. At least 25 years old on the day of the election;
  3. Able to read and write;
  4. Registered voter in the district he seeks to represent; and
  5. A resident of such district for at least one year immediately preceding the day of the election.

Term of Office

  1. Each member of the House shall be elected for a term of three (3) years which shall commence (unless otherwise provided for by law) at noon on 30 June next following their election.
  2. Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Term Limitations

No member of the House of Representatives shall serve for more than three (3) consecutive terms.

Distinctions between Term and Tenure

  1. Definition
  1. Terms means the period during which the elected officer is legally authorized to assume his office and exercise the powers thereof.
  2. Tenure is the actual period during which such officer actually holds his position.
  1. Limitation/Possible Reduction
    1. Term CANNOT be reduced.
    2. Tenure MAY, by law, be limited.  Thus, a provision which considers an elective office automatically vacated when the holder thereof files a certificate of candidacy for another elective office (except President and Vice-President) is valid, as it only affects the officers tenure and NOT his constitutional term.

Party-List Representatives

  1. Constitute 20% of the total number of representatives, including those under the party-list system (thus a maximum of 50 party-list members of the House)
  1. However, for 3 consecutive terms from 2 February 1987 (i.e., the 1987-92, 92-95 and 95-98 terms), 25 seats shall be allotted to sectoral representatives.  Under Art. XVIII, Sec. 7, the sectoral representatives are to be appointed by the President until legislation otherwise provides.
  1. Mechanics of the party-list system:
    1. Registered organizations submit a list of candidates in order of priority.
    2. During the elections, these organizations are voted for at large.
    3. The number of seats that each organization gets out of the 20% allotted to the system depends on the number of votes they get.
  1. Qualifications
  1. Natural born citizen of the Philippines
  2. At least 25 years of age on the day of the election
  3. Able to read and write

Sec. 9.  In case of vacancy in the Senate or in the House of Representatives, a special election may be called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of Representatives thus elected shall serve only for the unexpired term.  

Sec. 10.  Salaries of Senators and Members of the House

Determination of Salaries:

Salaries of Senators and Members of the House of Representatives shall be determined by law.

Rule on increase in salaries:

No increase in their salaries shall take effect until after the EXPIRATION OF THE FULL TERM (NOT TENURE) OF ALL THE MEMBERS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES APPROVING SUCH INCREASE.

Note: Since the Constitution ‘provides for rules on “salaries” and not on ‘emoluments,’ our distinguished legislators can appropriate for themselves other sums of money such as travel allowances, as well as other side ‘benefits.’

Sec. 11: CONGRESSIONAL IMMUNITIES

1.)    Immunity from arrest:

  1. Legislators are privileged from arrest while Congress is “in session” with respect to offenses punishable by up to 6 years of imprisonment.  Thus, whether Congress is in regular or special session, the immunity from arrest applies.
  2. If Congress is in recess, members thereof may be arrested.
  3. The immunity is only with respect to arrests and NOT to prosecution for criminal offenses.

2.)    Legislative privilege:

  1. No member shall be questioned or held liable in any forum other than his/her respective Congressional body for any debate or speech in the Congress or in any Committee thereof.
  1. Limitation on the privilege:

(i)                 Protection is only against forum other than Congress itself.  Thus for inflammatory remarks which are otherwise privileged, a member may be sanctioned by either the Senate or the House as the case may be.

(ii)               The ‘speech or debate’ must be made in performance of their duties as members of Congress.  This includes speeches delivered, statements made, votes cast, as well as bills introduced, and other activities done in performance of their official duties.

(iii)             Congress need NOT be in session when the utterance is made, as long as it forms part of ‘legislative action,’ i.e. part of the deliberative and communicative process used to participate in legislative proceedings in consideration of proposed legislation or with respect to other matters with Congress’ jurisdiction.

Sec. 12.  All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests.  They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors.

 

Sec. 13-14: CONGRESSIONAL DISQUALIFICATIONS:

Disqualifications:

DISQUALIFICATION                                WHEN APPLICABLE
1. Senator/Member of the House cannot hold any other office or employment in the     Government or any subdivision, agency or Instrumentality thereof, including GOCCS or their subsidiaries. During his term.  If he does so, he forfeits his seat.
2. Legislators cannot be appointed to any office. IF the office was created or the emoluments thereof increased during the term for which he was elected.
3. Legislators cannot personally appear as counsel before any court of justice, electoral tribunal, quasi-judicial and    administrative bodies. During his term of office.
4. Legislators cannot be financially interested directly or indirectly in any contract with or in any franchise, or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including any GOCC or its subsidiary.  During his term of office.
5. Legislators cannot intervene in any matter  before any office of the government. When it is for his pecuniary benefit or where he may be called upon to act on account of his office.

 

Sec. 15: REGULAR AND SPECIAL SESSIONS

Regular Sessions:

1.)    Congress convenes once every year on the 4th Monday of July (unless otherwise provided for by law)

2.)    Continues in session for as long as it sees fit, until 30 days before the opening of the next regular session, excluding Saturdays, Sundays, and legal holidays.

Special Sessions:

Called by the President at any time when Congress is not in session.

Sec. 16.  Officers:

1.)    Senate President;

2.)    Speaker of the House; and

3.)    Each House may choose such other officers as it may deem necessary.

Election of Officers

By a majority vote of all respective members.

Quorum to do business:

  1. Majority of each House shall constitute a quorum.
  2. A smaller number may adjourn from day to day and may compel the attendance of absent members.
  3. In computing a quorum, members who are outside the country and thus outside of each House’s coercive jurisdiction are not included.

Internal Rules:

  1. Each House shall determine its own procedural rules.
  2. Since this is a power vested in Congress as part of its inherent powers, under the principle of separation of powers, the courts cannot intervene in the implementation of these rules insofar as they affect the members of Congress.
  3. Also, since Congress has the power to make these rules, it also has the power to ignore them when circumstances so require.

Discipline:

1.)    Suspension

  1. Concurrence of 2/3 of ALL its members and
  2. Shall not exceed 60 days.

2.)    Expulsion

  1. Concurrence of 2/3 of ALL its members.

Congressional Journals and Records:

1.)    The Journal is conclusive upon the courts.

2.)    BUT an enrolled bill prevails over the contents of the Journal.

3.)    An enrolled bill is the official copy of approved legislation and bears the certifications of the presiding officers of each House.  Thus where the certifications are valid and are not withdrawn, the contents of the enrolled bill are conclusive upon the courts as regards the provision of that particular bill.

Adjournments:

1.)    Neither House can adjourn for more than 3 days during the time Congress is in session without the consent of the other House.

2.)    Neither can they adjourn to any other place than that where the two houses are sitting, without the consent of the other.

Section 17: THE ELECTORAL TRIBUNAL

The Senate and the House shall each have an Electoral Tribunal which shall be composed of:

  1. 3 Supreme Court Justices to be designated by the Chief Justice; &
  2. 6 Members of the Senate or House, as the case may be.

The senior Justice in the Electoral Tribunal shall be its Chairman.

Note: The congressional members of the ET’s shall be chosen on the basis of proportional representation from the political parties and party-list organizations.

Jurisdiction:

1.)    Each ET shall be the sole judge of all CONTESTS relating to the election, returns, and qualifications of their respective members.  This includes determining the validity or invalidity of a proclamation declaring a particular candidate as the winner.

2.)    An ‘election contest’ is one where a defeated candidate challenges the qualification and claims for himself the seat of a proclaimed winner.

3.)    In the absence of an election contest, the ET is without jurisdiction.  However, the power of each House to expel its own members or even to defer their oath-taking until their qualifications are determined may still be exercised even without an election contest.

Issues regarding the Electoral Tribunals:

1.)    Since the ET’s are independent constitutional bodies, independent even of the House from which the members are respectively taken, neither Congress nor the Courts may interfere with procedural matters relating to the functions of the ET’s, such as the setting of deadlines or filing their election contests with the respective ETs.

2.)    The ETs being independent bodies, its members may not be arbitrarily removed from their positions in the tribunal by the parties which they represent.  Neither may they be removed for not voting according to party lines, since they are acting independently of Congress.

3.)    The mere fact that the members of either the Senate or the House sitting on the ET are those which are sought to be disqualified due to the filing of an election contest against them does not warrant all of them from being disqualified from sitting in the ET.  The Constitution is quite clear that the ET must act with both members from the SC and from the Senate or the House.  If all the legislator-members of the ET were to be disqualified, the ET would not be able to fulfill its constitutional functions.

4.)    Judicial review of decisions of the ETs may be had with the SC only insofar as the decision or resolution was rendered without or in excess of jurisdiction or with grave abuse of discretion constituting denial of due process.

Section 18: THE COMMISSION ON APPOINTMENTS

Composition:

1.)    Senate President as ex-officio chairman;

2.)    12 Senators; and

3.)    12 Members of the House.

Note: The 12 Senators and 12 Representatives are elected on the basis of proportional representation from the political parties and party-list organizations.

Voting/Action

1.)    The chairman shall only vote in case of a tie.

2.)    The CA shall act on all appointments within 30 session days from their submission to Congress.

3.)    The Commission shall rule by a majority vote of all the Members.

Jurisdiction

1.)    CA shall confirm the appointments by the President with respect to the following positions:

  1. Heads of the Executive Departments (except if it is the Vice-President who is appointed to the post).
  2. Ambassadors, other public ministers or consuls.
  3. Officers of the AFP from the rank of Colonel or Naval Captain: and
  4. Other officers whose appointments are vested in him by the Constitution (e.g. COMELEC members).

2.)    Congress CANNOT by law prescribe that the appointment of a person to an office created by such law shall be subject to confirmation by the CA.

3.)    Appointments extended by the President to the above-mentioned positions while Congress is not in session shall only be effective until disapproval by the CA or until the next adjournment of Congress.

Meetings of the CA

1.)    CA meets only while Congress is in session.

2.)    Meetings are held either at the call of the Chairman or a majority of all its members.

3.)    Since the CA is also an independent constitutional body, its rules of procedure are also outside the scope of congressional powers as well as that of the judiciary.

Note:  The ET and the CA shall be constituted within 30 days after the Senate and the House of Representative shall have been organized with the election of the President and the Speaker.

Sections 21-22: LEGISLATIVE INQUIRIES

Scope:

  1. Either House or any of their committees may conduct inquires ‘in aid of legislation’.
  2. “In aid of legislation” does not mean that there is pending legislation regarding the subject of the inquiry.  In fact, investigation may be needed for purposes of proposing future legislation.
  3. If the stated purpose of the investigation is to determine the existence of violations of the law, the investigation is no longer ‘in aid of legislation’ but ‘in aid of prosecution’.  This violates the principle of separation of powers and is beyond the scope of congressional powers.

Enforcement:

  1. Since experience has shown that mere requests for information does not usually work, Congress has the inherent power to punish recalcitrant witnesses for contempt, and may have them incarcerated until such time that they agree to testify.
  1. The continuance of such incarceration only subsists for the lifetime, or term, of such body.  Once the body ceases to exist after its final adjournment, the power to incarcerate ceases to exist as well.  Thus, each ‘Congress’ of the House lasts for only 3 years.  But if one is incarcerated by the Senate, it is indefinite because the Senate, with its staggered terms, is a continuing body.
  1. BUT, in order for a witness to be subject to this incarceration, the primary requirement is that the inquiry is within the scope of Congress’ powers. i.e. it is in aid of legislation.
  1. The materiality of a question is determined not by its connection to any actually pending legislation, but by its connection to the general scope of the inquiry.
  1. The power to punish for contempt is inherent in Congress and this power is sui generis.  It cannot be exercised by local government units unless they are expressly authorized to do so.

Limitations:

  1. The inquiry must be conducted in accordance with the ‘duly published rules of procedure’ of the House conducting the inquiry; and
  1. The rights of persons appearing in or affected by such inquiries shall be respected.  Ex. The right against self-incrimination.

Appearance by department heads before Congress:

  1. Since members of the executive department are co-equals with those of the legislative department, under the principle of separations of powers, department heads cannot be compelled to appear before Congress.  Neither may the department heads impose their appearance upon Congress.
  1. Department heads may appear before Congress in the following instances.
  1. Upon their own initiative, with the consent of the President (and that of the House concerned); or
  1. Upon the request of either House (which cannot compel them to attend)
  1. The appearance will be conducted in EXECUTIVE SESSION when:
  1. Required by the security of state or required by public interest; and
  2. When the President so states in writing

Sections 23-24.  DECLARATION OF WAR/EMERGENCY POWERS

Vote requirement:  (to declare the existence of a state of war)

  1. 2/3 of both Houses, in joint session
  2. Voting separately

Emergency powers:

  1. During times of war or other national emergency, Congress may, BY LAW, authorize the President to exercise powers necessary and proper to carry out a declared national policy.
  1. Limitations:
    1. Powers will be exercised for a limited period only; and
    2. Powers will be subject to restrictions prescribed by Congress
  1. Expiration of emergency powers
    1. By resolution of Congress or
    2. Upon the next adjournment of Congress

Sections 24-27, 30-31 LEGISLATION

Bills that must originate from the House of Representatives (Section 24)   

CODE: A R T Pu Lo P

  1. Appropriation bills
  2. Revenue bills
  3. Tariff bills
  4. Bills authorizing the increase of public debt
  5. Bills of local application
  6. Private bills

Note:  The Senate may, however, propose or concur with amendments.

Appropriation bills

  1. The primary and specific aim of an appropriation bill is to appropriate a sum of money from the public treasury.
  1. Thus, a bill enacting the budget is an appropriations bill.
  1. BUT:  A bill creating a new office, and appropriating funds therefor is NOT an appropriation bill.

Revenue Bill

  1. A revenue bill is one specifically designed to raise money or revenue through imposition or levy.
  1. Thus, a bill introducing a new tax is a revenue bill, but a provision in, for instance, the Videogram Regulatory Board law imposing a tax on video rentals does not make the law a revenue bill.

Bills of local application

A bill of local application, such as one asking for the conversion of a municipality into a city, is deemed to have originated from the House provided that the bill of the House was filed prior to the filing of the bill in the Senate even if, in the end, the Senate approved its own version.

Limitations:

  1. For appropriation bills:
  1. Congress cannot increase the appropriations recommended by the President for the operation of the Government as specified in the budget.
  1. Each provision or enactment in the General Appropriations Bill must relate specifically to some particular appropriation therein and any such provision or enactment must be limited in its operation to the appropriation to which it relates.
  1. The procedure in approving appropriations for Congress shall strictly follow the procedure for approving appropriations for other departments and agencies.
  1. A special appropriations bill must specify the purpose for which it is intended and must be supported by funds actually available as certified by the National Treasurer or to be raised by a corresponding revenue proposal therein.
  1. Transfer of appropriations:
  1. Rule:  No law shall be passed authorizing any transfer of appropriations
  2. BUT the following may, BY LAW, be authorized to AUGMENT any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations

-          President

-          President of the Senate

-          Speaker of the House of Representatives

-          Chief of Justice of the Supreme Court

-          Heads of the Constitutional Commissions

  1. Discretionary funds appropriated for particular officials shall be:
    1. Disbursed only for public purposes;
    2. Should be supported by appropriate vouchers; and
    3. Subject to guidelines as may be prescribed by law.
  1. If Congress fails to pass General Appropriations Bill (GAB) by the end of any fiscal year:

i.  The GAB for the previous year is deemed reenacted

ii.  It will remain in full force and effect until the GAB is passed by Congress.

  1. For law granting tax exemption

It should be passed with the concurrence of a MAJORITY of ALL the members of Congress.

  1. For bills in general
  1. Every bill shall embrace only one (1) subject, as expressed in the title thereof

i.          As a mandatory requirement

ii.         The title does not have to be a complete catalogue of everything stated in the bill.  It is sufficient if the title expresses the general subject of the bill and all the provisions of the statute are germane to that general subject.

iii.        A bill which repeals legislation regarding the subject matter need not state in the title that it is repealing the latter.  Thus, a repealing clause in the bill is considered germane to the subject matter of the bill.

  1. Readings
  1. In order to become a law, each bill must pass three (3) readings in both Houses.
  2. General rule: Each reading shall be held on separate days & printed copies thereof in its final form shall be distributed to its Members three (3) days before its passage.
  3. Exception:  If a bill is certified as urgent by the President as to the necessity of its immediate enactment to meet a public calamity or emergency, the 3 readings can be held on the same day.
  4. First reading – only the title is read; the bill is passed to the proper committee

Second reading – Entire text is read and debates are held, and amendments introduced.

Third reading – only the title is read, no amendments are allowed.  Vote shall be taken immediately thereafter and the yeas and nays entered in the journal.

Veto power of President:

  1. Every bill, in order to become a law, must be presented to and signed by the President.
  1. If the President does not approve of the bill, he shall veto the same and return it with his objections to the House from which it originated.  The House shall enter the objections in the Journal and proceed to reconsider it.
  1. The President must communicate his decision to veto within 30 days from the date of receipt thereof.  If he fails to do so, the bill shall become a law as if he signed it.
  1. This rule eliminates the ‘pocket veto’ whereby the President would simply refuse to act on the bill.

 

  1. To OVERRIDE the veto, at least 2/3 of ALL the members of each House must agree to pass the bill.   In such case, the veto is overriden and becomes a law without need of presidential approval.
  1. Item veto
  1. The President may veto particular items in an appropriation, revenue or tariff bill.
  1. This veto will not affect items to which he does not object.
  1. Definition of item

TYPE OF BILL                                                        ITEM

1.  Revenue/tax bill                 Subject of the tax and the tax rate imposed thereon

2.  Appropriations bill             Indivisible sum dedicated to a stated purpose

  1. Veto of RIDER
  1. A rider is a provision which does not relate to a particular appropriation stated in the bill.
  2. Since it is an invalid provision under Section 25(2), the President may veto it as an item.

Specific limitations on legislation

  1. No law shall be enacted increasing the Supreme Court’s appellate jurisdiction without the SC’s advice and concurrence.
  1. No law shall be enacted granting titles of royalty or nobility.

Section 28.  POWER TO TAX

Limitations:

1)      The rule of taxation should be UNIFORM

2)      It should be EQUITABLE

3)      Congress should evolve a PROGRESSIVE system of taxation.

4)      The power to tax must be exercised for a public purpose because the power exists for the general welfare

5)      The due process and equal protection clauses of the Constitution should be observed.

Delegation of power to fix rates

1)      Congress may, BY LAW, authorize the President to fix the following:

a)      Tariff rates

b)      Import and Export Quotas

c)      Tonnage and wharfage dues

d)     Other duties and imposts

Within the framework of the national development program of the Government

2)      The exercise of such power by the President shall be within the specified limits fixed by Congress and subject to such limitations and restrictions as it may impose.

Constitutional tax exemptions:

1)      The following properties are exempt from REAL PROPERTY taxes

(CODE: Cha Chu M- CA)

a)      Charitable institutions

b)      Churches, and parsonages or convents appurtenant thereto

c)      Mosques

d)     Non-profit cemeteries; and

e)      All lands, buildings and improvements actually, directly and exclusively used for religious, charitable, or educational purposes.

2)      All revenues and assets of NON-STOCK NON-PROFIT EDUCATIONAL institutions are exempt from taxes and duties PROVIDED that such revenues and assets are actually, directly and exclusively used for educational purposes.  (Art. XIV Sec 4 (3))

3)      Grants, endowments, donations or contributions used actually, directly and exclusively for educational purposes shall be exempt from tax.  This is subject to conditions prescribed by law.  (Art. XIV. Sec 4 (4))

Section 29.  Power of the Purse

1)      No money shall be paid out of the National Treasury EXCEPT in pursuance of an appropriation made by law.

a)      This places the control of public funds in the hands of Congress.

b)      BUT:  This rule does not prohibit continuing appropriations. e.g. for debt servicing.  This is because the rule does not require yearly, or annual appropriation.

2)      Limitations.

a)      Appropriations must be for a PUBLIC PURPOSE

b)      Cannot appropriate public funds or property, directly or indirectly, in favor of

(i)                 Any sect, church, denomination, or sectarian institution or system of religion or

(ii)               Any priest, preacher, minister, or other religious teacher or dignitary as such.

EXCEPT if the priest, etc is assigned to:

-          the Armed Forces; or

-          any penal institution; or

-          government orphanage; or

-          leprosarium

c)      BUT the government is not prohibited from appropriating money for a valid secular purpose, even if it incidentally benefits a religion, e.g. appropriations for a national police force is valid even if the police also protects the safety of clergymen.

d)     ALSO, the temporary use of public property for religious purposes is valid, as long as the property is available for all religions

3)      Special Funds

a)      Money collected on a tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only.

b)      Once the special purpose is fulfilled or abandoned, any balance shall be transferred to the general funds of the Government

Section 32.  INITIATIVE AND REFERENDUM

1)      Through the system of initiative and referendum, the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body.

2)      Required Petition

a)      Should be signed by at least 10% of the total number of registered voters

b)      Every legislative district should be represented by at least 3% of the registered voters

c)      Petition should be registered

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

Political Law (Constitutional Law) – Article V

ARTICLE V – SUFFRAGE

 

Qualifications:                                                CODE:  CD18RR

1)      Citizen of the Philippines

2)      Not Disqualified by law

3)      At least 18 years old

4)      Resident of the Philippines for at least 1 year

5)      Resident of the place wherein he/she proposes to vote for at least 6 months immediately preceding the election.

Note:  NO literacy, property or other substantive requirement can be imposed on the exercise of suffrage.

 

Residency requirement

Residency, under Article V has 2 senses:

1.  DOMICILE – This is in reference to the 1 year residency requirement in the Philippines.

2.  TEMPORARY RESIDENCE – This is in reference to the 6 month residency requirement in the place where one wants to vote.  In this case, residence can either mean domicile or temporary residence.

 

Disqualifications:

1)      Any person sentenced by final judgment to imprisonment of not less than 1 year, which disability has not been removed by plenary pardon.

2)      Any person adjudged by final judgment of having violated his allegiance to the Republic of the Philippines.

3)      Insane or feeble-minded persons.

 

Note:  Under the 2nd disqualification, the right to vote is automatically re-acquired upon the expiration of 5 years after the service of sentence.

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

Political Law (Constitutional Law) – Article IV

ARTICLE IV – CITIZENSHIP

 

Who are citizens of the Philippines?

1)      Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution

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

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

4)      Those who are naturalized in accordance with law.

Modes of acquiring citizenship:

1)      Jus Soli – acquisition of citizenship on the basis of place of birth

2)      Jus Sanguinis – acquisition of citizenship on the basis of blood relationship

3)      Naturalization – the legal act of adopting an alien and clothing him with the privilege of a native-born citizen.

Note:  The Philippines follows (2) and (3)

Election of citizenship under the 1987 Constitution:

Prior to the 1973 Constitution, if a Filipina married an alien, she lost her Filipino citizenship.  Hence, her child would have to elect Filipino citizenship upon reaching the age of majority.  Under the 1973 Constitution, however, children born of Filipino mothers were already considered Filipinos.  Therefore, the provision on election of citizenship under the 1987 Constitution only applies to those persons who were born under the 1935 Constitution.  In order for the children to elect Filipino citizenship, the mothers must have been Filipinos at the time of their marriage.  So, if your mother was a Filipina who married an alien under the 1935 constitution and you were born before January 17, 1973, you can elect Filipino citizenship upon reaching the age of majority.

When must the election be made:

The election must be made within a reasonable period after reaching the age of majority.

Effects of naturalization:

1)      The legitimate minor children of the naturalized father become Filipinos as well.

2)      The wife also becomes a Filipino citizen, provided that she does not have any disqualification which would bar her from being naturalized.

Natural-born citizens:

1)      Citizens of the Philippines from birth who do not need to perform any act to acquire or perfect their Philippine citizenship.

2)      Those who elect Philippine citizenship under Art. IV, Sec. 1(3) of 1987 Constitution.

Marriage of Filipino with an alien:

1)      General Rule:  The Filipino RETAINS Philippine citizenship

2)      Exception:  If, by their act or omission they are deemed, under the law, to have renounced it.

Examples of renunciation of Philippine citizenship:

1)      Voluntarily obtaining foreign passport

2)      Pledging allegiance to another country (ex. by becoming a naturalized citizen of another country)

Re-acquisition of citizenship

Natural-born Filipinos who are deemed to have lost their citizenship may re-acquire the same via repatriation proceedings.  This involves taking an oath of allegiance and filing the same with the civil registry.

How may one lose citizenship:

  1. By naturalization in a foreign country
  2. By express renunciation of citizenship
  3. By subscribing oath or allegiance to a foreign Constitution
  4. By serving in the armed forces of an enemy country
  5. By being a deserter of the armed forces of one’s country

How may one reacquire citizenship:

  1. By direct act of Congress
  2. By naturalization
  3. By repatriation

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

Political Law (Constitutional Law) – Article III

ARTICLE III – BILL OF RIGHTS

Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.

 

Definition of “Police Power”:

1)      Power vested in the legislature

2)      By the Constitution

3)      To make, ordain, and establish

4)      All manner of wholesome and reasonable laws, statutes, and ordinances

5)      Either with penalties or  without

6)      Not repugnant to the constitution

7)      As they shall judge to be for the good and welfare of the commonwealth and of the subjects of the same.

Aspects of “Due Process”:

  1. Procedural due process – refers to the mode of procedure which government agencies must follow in the enforcement and application of laws.
  2. Substantive due process – prohibition against arbitrary laws.

Note:  PROCEDURAL DUE PROCESS:

  1. A law which hears before it condemns.
  2. Due process of law contemplates notice and opportunity to be heard before judgment is rendered affecting one’s person or property (Lopez v. Dir. of Lands)
  3. Due process depends on circumstances; it varies with the subject matter and the necessities of the situation.

Requisites of PROCEDURAL due process:

For JUDICIAL proceedings:  CODE:  C J N O H
  1. A court or tribunal clothed with judicial power to hear and determine the matter before it.
  2. Jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceedings.
  3. The defendant must be given notice and an opportunity to be heard.
  4. Judgment must be rendered upon a lawful hearing.

For ADMINISTRATIVE proceedings: CODE: H E D S H I P

  1. The right to a hearing, which includes the right to present one’s case and submit evidence in support thereof.
  2. The tribunal must consider the evidence presented.
  3. The decision must have something to support itself.
  4. Evidence supporting the conclusion must be substantial.
  5. The decision must be based on the evidence presented at the hearing or at least contained in the record and disclosed to the parties affected.
  6. The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision.
  7. The board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved and the reasons for the decision rendered.

Note:

  1. What is required is not actual hearing, but a real opportunity to be heard.
  2. The requirement of due process can be satisfied by subsequent due hearing.
  3. Violation of due process: when same person reviews his own decision on appeal.
  4. Notice and hearing are required in judicial and quasi-judicial proceedings, but not in the promulgation of general rule.

For SCHOOL DISCIPLINARY proceedings:  CODE: W A In A D P

  1. The student must be informed in writing of the nature and cause of any accusation against them.
  2. The student shall have the right to answer the charges against him, with the assistance of counsel if desired.
  3. The student has the right to be informed of the evidence against him.
  4. The student has the right to adduce evidence in his own behalf.
  5. The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.
  6. The penalty imposed must be proportionate to the offense.

Note:

  1. The school has a contractual obligation to afford its students a fair opportunity to complete the course a student has enrolled for.
  2. Exceptions:
  3. Serious breach of discipline; or
  4. Failure to maintain the required academic standard.
  5. Proceedings in student disciplinary cases may be summary; cross-examination is not essential

Instances when hearings are NOT necessary:

  1. When administrative agencies are exercising their quasi-legislative functions.
  2. Abatement of nuisance per se.
  3. Granting by courts of provisional remedies.
  4. Cases of preventive suspension.
  5. Removal of temporary employees in the government service.
  6. Issuance of warrants of distraint and/or levy by the BIR Commissioner.
  7. Cancellation of the passport of a person charged with a crime.
  8. Issuance of sequestration orders (considered a provisional remedy).
  9. Judicial order which prevents an accused from travelling abroad in order to maintain the effectivity of the court’s jurisdiction.
  10. Suspension of a bank’s operations by the Monetary Board upon a prima facie finding of liquidity problems in such bank.

Note:

  1. The right to counsel is a very basic requirement of substantive due process and has to be observed even in administrative and quasi-judicial bodies.
  2. The right to appeal is a statutory privilege that may be exercised only in the manner in accordance with law.

Requisites of SUBSTANTIVE due process: CODE: I M

  1. The INTERESTS of the public generally, as distinguished from those of a particular class, requires the interference by the government and
  2. The MEANS employed are necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.

Requirements of a valid ordinance:

  1. Must not contravene the Constitution or any statute
  2. Must not be unfair or oppressive
  3. Must not be partial or discriminatory
  4. Must not prohibit, but may regulate trade
  5. Must be general and consistent with public policy
  6. Must not be unreasonable
When is a law VAGUE?
  1. When it lacks COMPREHENSIBLE STANDARDS
  2. That men of ordinary intelligence must necessarily GUESS as to its meaning
  3. And differ as to its application

Equal Protection of the law

The equality that it guarantees is legal equality or the equality of all persons before the law.  It does not demand absolute equality.  It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced.

Requisites for valid classification for purposes of the equal protection clause

The classification must:        CODE:  SGEE

  1. Rest on SUBSTANTIAL DISTINCTIONS
  2. Be GERMANE to the purposes of the law
  3. Not limited to existing conditions only
  4. APPLY EQUALLY to all members of the SAME CLASS.

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the person or things to be seized.

General Rule: Search and seizures are unreasonable unless authorized by a validly issued search warrant or warrant of arrest

Requisites for a valid warrant:            CODE:                P  J  E  D

  1. It must be issued upon PROBABLE CAUSE.
  2. The existence of probable cause is determined personally by the JUDGE.
  3. The judge must EXAMINE UNDER OATH the complainant and the witnesses he may produce.
  4. The warrant must PARTICULARLY DESCRIBE the place to be searched and person or things to be seized.
Definition of “PROBABLE CAUSE”

For the issuance of a warrant of arrest:

Probable cause refers to such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.

For the issuance of a search warrant:

Probable cause would mean such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place to be searched.

Note:   Probable cause for the issuance of a search warrant does NOT require that the probable guilt of a specific offender be established, unlike in the case of a warrant of arrest.

Existence of probable cause “DETERMINED PERSONALLY BY THE JUDGE”

The judge is NOT required to personally examine the complainant and his witnesses. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause (Soliven v. Makasiar, 167 SCRA 394).

To be sure, the Judge must go beyond the prosecutor’s certification and investigation report whenever necessary (Lim v. Felix).

Procedure:

  1. The judge personally evaluates the report and supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest or
  2. If on the basis thereof, the judge finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at the conclusion as to the existence of probable cause.

Examination “UNDER OATH OR AFFIRMATION OF THE COMPLAINANT AND WITNESSES”

  1. The oath required must refer to the truth of the facts within the personal knowledge of the complainant or his witnesses because the purpose is to convince the judge of the existence of probable cause (Alvarez v. CFI, 64 Phil. 33).
  2. The true test of sufficiency of an affidavit to warrant the issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for the damages caused (Alvarez v. CFI).

PARTICULARITY OF DESCRIPTION (SEARCH WARRANT)

  1. A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow or
  2. When  the description expresses a conclusion of fact – not of law – by which the warrant officer may be guided in making the search and seizure or
  3. When  the things described are limited to those which bear a direct relation to the offense for which the warrant is being issued (Bache and Co. v. Ruiz, 37 SCRA 823).

JOHN DOE WARRANT

A “John Doe” warrant can satisfy the requirement of particularity of description if it contains a descriptio personae such as will enable the officer to identify the accused (People v. Veloso, 48 Phil. 159)

GENERAL WARRANT

A general warrant is one that does not allege any specific acts or omissions constituting the offense charged in the application for the issuance of the warrant. It contravenes the explicit demand of the Bill of Rights that the things to be seized be particularly described.

VALID WARRANTLESS SEARCH

  1. Search made as an incident to lawful arrest
  1. An officer making an arrest may take from the person arrested:
    1. Any money or property found upon his person which was used in the commission of the offense or
    2. Was the fruit thereof or
    3. Which might furnish the prisoner with the means of committing violence or escaping or
    4. Which may be used in evidence in the trial of the case
  1. The search must be made simultaneously with the arrest and it may only be made in the area within the reach of the person arrested
  1. Search of moving vehicles
  1. This exception is based on exigency. Thus, if there is time to obtain a warrant in order to search the vehicle, a warrant must first be obtained.
  2. The search of a moving vehicle must be based on probable cause.
  1. Seizure of goods concealed to avoid customs duties/authorized under the Tariffs and Customs Code
  1. The Tariffs and Customs Code authorizes persons having police authority under the Code to effect search and seizures without a search warrant to enforce customs laws.
  2. Exception: A search warrant is required for the search of a dwelling house.
  3. Searches under this exception include searches at borders and ports of entry. Searches in these areas do not require the existence of probable cause.
  1. Seizure of evidence in plain view
  1. To be a valid warrantless search, the articles must be open to the eye and hand.
  2. The peace officer comes upon them inadvertently.
  1. Waiver of right
  1. Requisites of a valid waiver:
  1. The right exists.
  2. The person had actual or constructive knowledge of the existence of such right.
  3. There is an actual intention to relinquish such right.
  1. The right against unreasonable searches and seizures is a personal right. Thus, only the person being searched can waive the same.
  2. Waiver requires a positive act from the person. Mere absence of opposition is not a waiver.
  3. The search made pursuant to the waiver must be made within the scope of the waiver.

Note:

  1. Checkpoints: as long as the vehicle is neither searched nor its occupants subjected to a body search and the inspection of the vehicle is limited to a visual search = valid search (Valmonte V. De Villa)
  2. Carroll rule: warrantless search of a vehicle that can be quickly moved out of the locality or jurisdiction
  3. The 1987 Constitution has returned to the 1935 rule that warrants may be issued only by judges, but the Commissioner of Immigration may order the arrest of an alien in order to carry out a FINAL deportation order.

VALID WARRANTLESS ARRESTS

  1. When the person to be arrested has committed, is actually committing, or is about to commit an offense in the presence of the arresting officer.
  1. When an offense has in fact just been committed and the arresting officer has personal knowledge of facts indicating that the person to be arrested has committed it.
  1. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
  1. Waiver of an invalid arrest: 

When a person who is detained applies for bail, he is deemed to have waived any irregularity which may have occurred in relation to his arrest.

  1. Hot pursuit

A.  The pursuit of the offender by the arresting officer must be continuous from the time of the commission of the offense to the time of the arrest.

B.  There must be no supervening event which breaks the continuity of the chase.

  1. Stop and frisk

When a policeman observes suspicious activity which leads him to believe that a crime is about to be committed, he can investigate the suspicious looking person and may frisk him for weapons as a measure of self-protection. Should he find, however, a weapon on the suspect which is unlicensed, he can arrest such person then and there for having committed an offense in the officer’s presence.

Section 3.  (1)  The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

(2)    Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceedings.

 

R.A. 4200 (Anti-Wiretapping Act)

  1. The law does not distinguish between a party to the private communication or a third person.  Hence, both a party and a third person could be held liable under R.A. 4200 if they commit any of the prohibited acts under R.A. 4200 (Ramirez v. Ca)
  1. The use of a telephone extension to overhear a private conversation is not a violation of R.A. 4200 because it is not similar to any of the prohibited devices under the law.  Also, a telephone extension is not purposely installed for the purpose of secretly intercepting or recording private communication.  (Gaanan v. IAC, 145 SCRA 112)

Types of communication protected:

Letters, messages, telephone calls, telegrams and the like.

Exclusionary rule:

Any evidence obtained shall be inadmissible for any purpose in any proceeding.  However, in the absence of governmental interference, the protection against unreasonable search and seizure cannot be extended to acts committed by private individuals. (People v. Martin)

Section 4.  No law shall be passed abridging the freedom of speech, of expression, or of the press, or of the right of the people peaceably to assemble and petition the government for redress of grievances.

 

What are considered protected speech:

Protected speech includes every form of expression, whether oral, written, tape or disc recorded.  It includes motion pictures as well as what is known as symbolic speech such as the wearing of an armband as a symbol of protest.  Peaceful picketing has also been included within the meaning of speech.

Prohibitions under Section 4
  1. Prohibition against PRIOR RESTRAINT
  1. Prohibition against SUBSEQUENT PUNISHMENT
Prohibition against prior restraint
  1. Prior restraint means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.
  2. Examples/forms of prior restraint
    1. movie censorship
    2. judicial prior restraint = injunction against publication
    3. license taxes based on gross receipts for the  privilege of engaging in the business of advertising in any newspaper
    4. flat license fees for the privilege of selling religious books
When prohibition does not apply
  1. During a war.  Ex.  Government can prevent publication about the number/locations of its troops (Near v. Minnesota, 238 US 697)
  2. Obscene publications.
Standards for allowable subsequent punishment

    TEST                                                   CRITERION

1.  Dangerous Tendency Test                         There should be a RATIONAL CONNECTION between the speech and the evil apprehended.

2.  Clear and Present Danger Test                  There should be a clear and present danger that the words when used under such circumstances are of such a nature as to create a CLEAR AND PRESENT DANGER that they will bring about the substantive evils that the State has a right to prevent.

3.  Balancing of Interests Test                        The courts should BALANCE the PUBLIC INTEREST served by legislation on one hand and the FREEDOM OF SPEECH (or any other constitutional right) on the other.  The courts will then decide where the greater weight should be placed.

Freedom of Speech

The doctrine on freedom of speech was formulated primarily for the protection of “core” speech, i.e. speech which communicates political, social or religious ideas.  These enjoy the same degree of protection.  Commercial speech, however, does not.

 

Commercial Speech

  1. A communication which no more than proposes a commercial transaction.
  1. To enjoy protection:
    1. It must not be false or misleading; and
    2. It should not propose an illegal transaction.
  1. Even truthful and lawful commercial speech may be regulated if:
    1. Government has a substantial interest to protect;
    2. The regulation directly advances that interest; and
    3. It is not more extensive than is necessary to protect that interest.  (Central Hudson Gas and Electric Corp. v. Public Service Commission of NY, 447 US 557)

Unprotected Speech

  1. 1.      LIBEL
  1. FAIR COMMENT (U.S. Rule).  These are statements of OPINION, not of fact, and are not considered actionable, even if the words used are neither mild nor temperate.  What is important is that the opinion is the true and honest opinion of the person.  The statements are not used to attack personalities but to give one’s opinion on decisions and actions.
  1. OPINIONS.  With respect to public personalities (politicians, actors, anyone with a connection to a newsworthy event), opinions can be aired regarding their public actuations.  Comment on their private lives, if not germane to their public personae, are not protected.
  1. 2.      OBSCENITY
  1. Test for obscenity (Miller v. California)
  1. Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest.
  2. Whether the work depicts or describes, in a patently offensive way, sexual conduct, specifically defined by law.
  3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
  1. Procedure for seizure of allegedly obscene publications
  1. Authorities must apply for issuance of search warrant.
  2. Court must be convinced that the materials are obscene.  Apply clear and present danger test.
  3. Judge will determine whether they are in fact “obscene”.
  4. Judge will issue a search warrant.
  5. Proper action should be filed under Art. 201 of the RPC.
  6. Conviction is subject to appeal.

Right of Assembly and Petition

  1. The standards for allowable impairment of speech and press also apply to the right of assembly and petition.
  1. Rules on assembly in public places:
  1. Applicant should inform the licensing authority of the date, the public place where and the time when the assembly will take place.
  1. The application should be filed ahead of time to enable the public official concerned to appraise whether there are valid objections to the grant of the permit or to its grant, but in another public place.  The grant or refusal should be based on the application of the Clear and Present Danger Test.
  1. If the public authority is of the view that there is an imminent and grave danger of a substantive evil, the applicants must be heard on the matter.
  1. The decision of the public authority, whether favorable or adverse, must be transmitted to the applicants at the earliest opportunity so that they may, if they so desire, have recourse to the proper judicial authority.
  1. Rules on assembly in private properties:

Only the consent of the owner of the property or person entitled to possession thereof is required.

Section 5.  No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.  The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.  No religious test shall be required for the exercise of civil or political rights.

 

Clauses under Section 5

  1. Non-establishment clause
  2. Free exercise of Religion

Distinction between the clauses (School District v. Schempp, 374 US 203)

  1. The non-establishment clause does not depend upon any showing of direct governmental compulsion.  It is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not.  The test of compliance with the non-establishment clause can be stated as follows: What are the purposes and primary effect of the enactment?  If either is the advancement or inhibition of religion, the law violates the non-establishment clause.  Thus, in order for a law to comply with the non-establishment clause, two requisites must be met.  First, it has a secular legislative purpose.  Second, its primary effect neither advances nor inhibits religion.
  1. The free exercise of religion clause withdraws from legislative power the exertion of any restraint on the free exercise of religion.  In order to show a violation of this clause, the person affected must show the coercive effect of the legislation as it operates against him in the practice of his religion.  While the freedom to believe (non-establishment) is absolute, the moment such belief flows over into action, it becomes subject to government regulation.

Requisites for government aid to be allowable:

  1. It must have a secular legislative purpose;
  2. It must have a primary effect that neither advances nor inhibits religion;
  3. It must not require excessive entanglement with recipient institutions.

Section 6.  The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court.  Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as may be provided by law.

 

Rights guaranteed under Section 6:

  1. Freedom to choose and change one’s place of abode.
  2. Freedom to travel within the country and outside.

 

Curtailment of rights:

RIGHT                                                                        MANNER OF CURTAILMENT

1.  Liberty of abode                            Lawful order of the court and within the limits prescribed by law.

2.  Right to travel                                May be curtailed even by administrative officers (ex. passport officers) in the interest of national security, public safety, or public health, as may be provided by law.

Note:  The right to travel and the liberty of abode are distinct from the right to return to one’s country, as shown by the fact that the Declaration of Human Rights and the Covenant on Human Rights have separate guarantees for these.  Hence, the right to return to one’s country is not covered by the specific right to travel and liberty of abode.  (Marcos v. Manglapus)

Section 7.  The right of the people to information on matters of public concern shall be recognized.

 

Rights guaranteed under Section 7

  1. Right to information on matters of public concern
  2. Right of access to official records and documents

Persons entitled to the above rights

Only Filipino citizens.

Discretion of government

The government has discretion with respect to the authority to determine what matters are of public concern and the authority to determine the manner of access to them.

Recognized restrictions on the right of the people to information:

  1. National security matters
  2. Intelligence information
  3. Trade secrets
  4. Banking transactions
  5. Diplomatic correspondence
  6. Executive sessions
  7. Closed door cabinet meetings
  8. Supreme Court deliberations

Section 8.  The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law, shall not be abridged.

The right to form associations shall not be impaired without due process of law and is thus an aspect of the right of liberty.  It is also an aspect of the freedom of contract.  In addition, insofar as the associations may have for their object the advancement of beliefs and ideas, the freedom of association is an aspect of the freedom of speech and expression, subject to the same limitation.

The right also covers the right not to join an association.

Government employees have the right to form unions.  They also have the right to strike, unless there is a statutory ban on them.

Section 9.  Private property shall not be taken for public use without just compensation.

Who can exercise the power of eminent domain:

1)      The national government

  1. Congress
  2. Executive, pursuant to legislation enacted by Congress

2)      Local government units, pursuant to an ordinance enacted by their respective  legislative bodies (under LGC)

3)      Public utilities, as may be delegated by law.

When is the exercise of the power of eminent domain necessary?

It is only necessary when the owner does not want or opposes the sale of his property.  Thus, if a valid contract exists between the government and the owner, the government cannot exercise the power of eminent domain as a substitute to the enforcement of the contract.

Elements of the power of eminent domain

1)      There is a TAKING of private property

2)      Taking is for PUBLIC USE

3)      Payment of JUST COMPENSATION

“TAKING”

 

A.  Elements:  CODE:  E P A P O

  1. The expropriator enters the property
  2. The entrance must not be for a momentary period, i.e., it must be permanent
  3. Entry is made under warrant or color of legal authority
  4. Property is devoted to public use
  5. Utilization of the property must be in such a way as to oust the owner and deprive him of the beneficial enjoyment of his property.

B.  Compensable taking does not need to involve all the property interests which form part of the right of ownership.  When one or more of the property rights are appropriated and applied to a public purpose, there is already a compensable taking, even if bare title still remains with the owner.

“PUBLIC USE”

  1. Public use, for purposes of expropriation, is synonymous with public welfare as the latter term is used in the concept of police power.
  1. Examples of public use include land reform and socialized housing.


“JUST COMPENSATION”

  1. Compensation is just if the owner receives a sum equivalent to the market value of his property.  Market value is generally defined as the fair value of the property as between one who desires to purchase and one who desires to sell.
  2. The point of reference use in determining fair value is the value at the time the property was taken.  Thus, future potential use of the land is not considered in computing just compensation.

Judicial review of the exercise of the power of eminent domain

  1. To determine the adequacy of the compensation
  2. To determine the necessity of the taking
  3. To determine the “public use” character of the taking.  However, if the expropriation is pursuant to a specific law passed by Congress, the courts cannot question the public use character of the taking.

When municipal property is taken by the State:

Compensation is required if the property is a patrimonial property, that is, property acquired by the municipality with its private funds in its corporate or private capacity.  However, if it is any other property such a public buildings or legua comunal held by the municipality for the State in trust for the inhabitants, the State is free to dispose of it at will.

Point of reference for valuating a piece of property:

General rule:  The value must be that as of the time of the filing of the complaint for expropriation.

Exception:  When the filing of the case comes later than the time of taking and meanwhile the value of the property has increased because of the use to which the expropriator has put it, the value is that of the time of the earlier taking.  BUT if the value increased independently of what the expropriator did, then the value is that of the latter filing of the case.

Section 10.  No law impairing the obligation of contracts shall be passed.

When does a law impair the obligation of contracts:

1)      If it changes the terms and conditions of a legal contract either as to the time or mode of performance

2)      If it imposes new conditions or dispenses with those expressed

3)      If it authorizes for its satisfaction something different from that provided in its terms.

A mere change in PROCEDURAL REMEDIES which does not change the substance of the contract, and which still leaves an efficacious remedy for enforcement does NOT impair the obligation of contracts.

A valid exercise of police power is superior to obligation of contracts.

Section 12.  Rights of person under investigation for the commission of an offense.

Rights of person under investigation for the Commission of an offense CODE:  SCISI

1)      Right to remain silent

2)      Right to have competent and independent counsel, preferably of his own choice

3)      Right to provided with the services of counsel if he cannot afford the services of one.

4)      Right to be informed of these rights.

When rights are available:

1)      AFTER a person has been taken into custody or

2)      When a person is otherwise deprived of his freedom of action in any significant way.

3)      When the investigation is being conducted by the government (police, DOJ, NBI) with respect to a criminal offense.

4)      Signing of arrest reports and booking sheets.

When rights are not available:

1)      During a police line-up.  Exception:  Once there is a move among the investigators to elicit admissions or confessions from the suspect.

2)      During administrative investigations.

3)      Confessions made by an accused at the time he voluntarily surrendered to the police or outside the context of a formal investigation.

4)      Statements made to a private person.

Exclusionary rule

1)      Any confession or admission obtained in violation of this section shall be inadmissible in evidence against him (the accused).

2)      Therefore, any evidence obtained by virtue of an illegally obtained confession is also inadmissible, being the fruit of a poisoned tree.

Requisites of valid waiver:

1)      Waiver should be made in WRITING

2)      Waiver should be made in the PRESENCE OF COUNSEL.

Section 13.  Right to bail

Who are entitled to bail:

1)      All persons ACTUALLY DETAINED

2)      shall, BEFORE CONVICTION

3)      Be entitled to bail.

Who are not entitled to bail:

1)        Persons charged with offenses PUNISHABLE by RECLUSION PERPETUA or DEATH, when evidence of guilt is strong

2)        Persons CONVICTED by the trial court.  Bail is only discretionary pending appeal.

3)        Persons who are members of the AFP facing a court martial.

Other rights in relation to bail.

1)      The right to bail shall NOT be impaired even when the privilege of the writ of habeas corpus is suspended.

2)      Excessive bail shall not be required.

Factors considered in setting the amount of bail:

1)      Ability to post bail

2)      Nature of the offense

3)      Penalty imposed by law

4)      Character and reputation of the accused

5)      Health of the accused

6)      Strength of the evidence

7)      Probability of appearing at the trial

8)      Forfeiture of previous bail bonds

9)      Whether accused was a fugitive from justice when arrested

10)  If accused is under bond in other cases

Implicit limitations on the right to bail:

  1. The person claiming the right must be in actual detention or custody of the law.
  2. The constitutional right is available only in criminal cases, not, e.g. in deportation proceedings.

Note: 

  1. Right to bail is not available in the military.
  2. Apart from bail, a person may attain provisional liberty through recognizance.

Section 14. Rights of an accused

Rights of a person charged with a criminal offense

  1. Right to due process of law
  2. Right to be presumed innocent
  3. Right to be heard by himself and counsel
  4. Right to be informed of the nature and cause of the accusation against him
  5. Right to have a speedy, impartial and public trial
  6. Right to meet the witnesses face to face
  7. Right to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf

 

“DUE PROCESS”

This means that the accused can only be convicted by a tribunal which is required to comply with the stringent requirements of the rules of criminal procedure.

“PRESUMPTION OF INNOCENCE”

The Constitution does not prohibit the legislature from providing that proof of certain facts leads to a prima facie presumption of guilt, provided that the facts proved have a reasonable connection to the ultimate fact presumed.

Presumption of guilt should not be conclusive.

 

“RIGHT TO BE HEARD BY HIMSELF AND COUNSEL”

The right to be heard includes the following rights:

  1. Right to be present at the trial
  1. The right to be present covers the period from ARRAIGNMENT to PROMULGATION of sentence.
  1. After arraignment, trial may proceed notwithstanding absence of accused, provided 2 requisites are met. Note, that trial in absentia is allowed only if the accused has been validly arraigned.

(i)                 Accused has been duly notified; and

(ii)               His failure to appear is unjustifiable.

  1. The accused may waive the right to be present at the trial by not showing up. However, the court can still compel the attendance of the accused if necessary for identification purposes. Exception: If the accused, after arraignment, has stipulated that he is indeed the person charged with the offense and named in the information, and that any time a witness refers to a name by which he is known, the witness is to be understood as referring to him.
  1. While the accused is entitled to be present during promulgation of judgement, the absence of his counsel during such promulgation does not affect its validity.

2.  Right to counsel

(a)    Right to counsel means the right to EFFECTIVE REPRESENTATION.

(b)   If the accused appears at arraignment without counsel, the judge must:

(i)     Inform the accused that he has a right to a counsel before arraignment

(ii)   Ask the accused if he desires the aid of counsel

(iii) If the accused desires counsel, but cannot afford one, a counsel de oficio must be appointed

(iv) If the accused desires to obtain his own counsel, the court must give him a reasonable time to get one.

3.  Right to an impartial judge

4.  Right of confrontation and cross-examination

5.  Right to compulsory process to secure the attendance of witnesses

“RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST HIM”

Purposes of the right:

1)      To furnish the accused with a description of the charge against him as will enable him to make his defenses

2)      To avail himself of his conviction or acquittal against a further prosecution for the same cause

3)      To inform the court of the facts alleged.

If the information fails to allege the material elements of the offense, the accused cannot be convicted thereof even if the prosecution is able to present evidence during the trial with respect to such elements.

The real nature of the crime charged is determined from the recital of facts in the information. It is not determined based on the caption or preamble thereof nor from the specification of the provision of law allegedly violated

“RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL”

Factors used in determining whether the right to a speedy trial has been violated.

1)      Time expired from the filing of the information

2)      Length of delay involved

3)      Reasons for the delay

4)      Assertion or non-assertion of the right by the accused

5)      Prejudice caused to the defendant.

Effect of dismissal based on the ground of violation of the accused’s right to speedy trial

If the dismissal is valid, it amounts to an acquittal and can be used as basis to claim double jeopardy. This would be the effect even if the dismissal was made with the consent of the accused

Remedy of the accused if his right to speedy trial has been violated

He can move for the dismissal of the case.

If he is detained, he can file a petition for the issuance of writ of habeas corpus.

Definition of impartial trial

The accused is entitled to the “cold neutrality of an impartial judge”.

It is an element of due process.

Definition of public trial

The attendance at the trial is open to all irrespective of their relationship to the accused.  However, if the evidence to be adduced is “offensive to decency or public morals”, the public may be excluded.

The right of the accused to a public trial is not violated if the hearings are conducted on Saturdays, either with the consent of the accused or if failed to object thereto.

 

“RIGHT TO MEET WITNESS FACE TO FACE”

Purposes of the right:

  1. To afford the accused an opportunity to cross-examine the witness
  2. To allow the judge the opportunity to observe the deportment of the witness

Failure of the accused to cross-examine a witness

If the failure of the accused to cross-examine a witness is due to his own fault or was not due to the fault of the prosecution, the testimony of the witness should be excluded.

When the right to cross-examine is demandable

It is demandable only during trials. Thus, it cannot be availed of during preliminary investigations.

Principal exceptions to the right of confrontation
  1. The admissibility of “dying declarations”
  2. Trial in absentia under Section 14(2)
  3. With respect to child testimony

Section 16.  All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

Distinction between Section 14 and Section 16

While the rights of an accused only apply to the trial phase of criminal cases, the right to a speedy disposition of cases covers ALL phases of JUDICIAL, QUASI-JUDICIAL or ADMINISTRATIVE proceedings.

Section 17.  No person shall be compelled to be a witness against himself.

When is a question incriminating:

A question tends to incriminate when the answer of the accused or the witness would establish a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by the accused or the witness.

Distinction between an accused and an ordinary witness

  1. An accused can refuse to take the witness stand by invoking the right against self-incrimination.
  2. An ordinary witness cannot refuse to take the stand.  He can only refuse to answer specific questions which would incriminate him in the commission of an offense.

Scope of right

  1. What is PROHIBITED is the use of physical or moral compulsion to extort communication from the witness or to otherwise elicit evidence which would not exist were it not for the actions compelled from the witness.
  2. The right does NOT PROHIBIT            the examination of the body of the accused or the use of findings with respect to his body as physical evidence.  Hence, the fingerprinting of an accused would not violate the right against self-incrimination.  However, obtaining a sample of the handwriting of the accused would violate this right if he is charged for falsification.
  3. The accused cannot be compelled to produce a private document in his possession which might tend to incriminate him.  However, a third person in custody of the document may be compelled to produce it.

When the right can be invoked:

  1. In criminal cases
  2. In administrative proceedings if the accused is liable to a penalty (Ex. Forfeiture of property)

Who can invoke the right:

Only natural persons.  Judicial persons are subject to the visitorial powers of the state in order to determine compliance with the conditions of the charter granted to them.

Section 18.  Right against involuntary servitude

 

Definition of involuntary servitude

It is every condition of enforced or compulsory service of one to another no matter under what form such servitude may be disguised.

Exceptions:

  1. Punishment for a crime for which the party has been duly convicted
  2. Personal military or civil service in the interest of national defense
  3. Return to work order issued by the DOLE Secretary or the President

Section 19.  Prohibition against cruel, degrading and inhuman punishment

When is a penalty “cruel, degrading and inhuman”?

  1. A penalty is cruel and inhuman if it involves torture or lingering suffering.  Ex. Being drawn and quartered.
  2. A penalty is degrading if it exposes a person to public humiliation.  Ex.  Being tarred and feathered, then paraded throughout town.

Standards used:

  1. The punishment must not be so severe as to be degrading to the dignity of human beings.
  2. It must not be applied arbitrarily.
  3. It must not be unacceptable to contemporary society
  4. It must not be excessive, i.e. it must serve a penal purpose more effectively than a less severe punishment would.

Excessive fine

A fine is excessive, when under any circumstance, it is disproportionate to the offense.

Note:  Fr. Bernas says that the accused cannot be convicted of the crime to which the punishment is attached if the court finds that the punishment is cruel, degrading or inhuman.

Reason:  Without a valid penalty, the law is not a penal law.

Section 20.  No person shall be imprisoned for debt or non-payment of a poll tax.

Definition of debt under Section 20

1)      Debt refers to a CONTRACTUAL obligation, whether express or implied, resulting in any liability to pay money.  Thus, all other types of obligations are not within the scope of this prohibition.

2)      Thus, if an accused fails to pay the fine imposed upon him, this may result in his subsidiary imprisonment because his liability is ex delicto and not ex contractu.

3)      A FRAUDULENT debt may result in the imprisonment of the debtor if:

  1. The fraudulent debt constitutes a crime such as estafa and
  2. The accused has been duly convicted.

Section 21.  No person shall be twice put in jeopardy of punishment for the same offense.  If an act punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Requisites for a valid defense of double jeopardy:  CODE: ATS

1)      First jeopardy must have attached prior to the second.

2)      The first jeopardy must have terminated.

3)      The second jeopardy must be for the same offense as that in the first.

When does jeopardy ATTACH:  (1st requisite) CODE:  CICAV

1)      A person is charged

2)      Under a complaint or information sufficient in form and substance to sustain a conviction

3)      Before a court of competent jurisdiction

4)      After the person is arraigned

5)      Such person enters a valid plea.

When does jeopardy NOT attach:

1)      If information does not charge any offense

2)      If, upon pleading guilty, the accused presents evidence of complete self-defense, and the court thereafter acquits him without entering a new plea of not guilty for accused.

3)      If the information for an offense cognizable by the RTC is filed with the MTC.

4)      If a complaint filed for preliminary investigation is dismissed.

When does first jeopardy TERMINATE:  (2ND REQUISITE)

1)      Acquittal

2)      Conviction

3)      Dismissal W/O the EXPRESS consent of the accused

4)      Dismissal on the merits.

Examples of termination of jeopardy:

1)       Dismissal based on violation of the right to a speedy trial.  This amounts to an acquittal.

2)       Dismissal based on a demurrer to evidence.  This is a dismissal on the merits.

3)       Dismissal on motion of the prosecution, subsequent to a motion for reinvestigation filed by the accused.

4)       Discharge of an accused to be a state witness.  This amounts to an acquittal.

When can the PROSECUTION  appeal from an order of dismissal:

1)      If dismissal is on motion of the accused.  Exception:  If motion is based on violation of the right to a speedy trial or on a demurrer to evidence.

2)      If dismissal does NOT amount to an acquittal or dismissal on the merits

3)      If the question to be passed upon is purely legal.

4)      If the dismissal violates the right of due process of the prosecution.

5)      If the dismissal was made with grave abuse of discretion.

What are considered to be the “SAME OFFENSE”:  (under the 1st sentence of Section 21)

1)      Exact identity between the offenses charged in the first and second cases.

2)      One offense is an attempt to commit or a frustration of the other offense.

3)      One offense is necessarily included or necessary includes the other.

Note:  where a single act results in the violation of different laws or different provisions of the same law, the prosecution for one will not bar the other so long as none of the exceptions apply.

Definition of double jeopardy (2nd sentence of Sec. 21)

Double jeopardy will result if the act punishable under the law and the ordinance are the same.  For there to be double jeopardy, it is not necessary that the offense be the same.

SUPERVENING FACTS

1)      Under the Rules of Court, a conviction for an offense will not bar a prosecution for an offense which necessarily includes the offense charged in the former information where:

  1. The graver offense developed due to a supervening fact arising from the same act or omission constituting the former charge.
  2. The facts constituting the graver offense became known or were discovered only after the filing of the former information.
  3. The plea of guilty to the lesser offense was made without the consent of the fiscal and the offended party.

2)      Under (1)(b), if the facts could have been discovered by the prosecution but were not discovered because of the prosecution’s incompetence, it would not be considered a supervening event.

Effect of appeal by the accused:

If the accused appeals his conviction, he WAIVES his right to plead double jeopardy.  The whole case will be open to review by the appellate court.  Such court may even increase the penalties imposed on the accused by the trial court.

Section 22.  No ex post facto law or bill of attainder shall be enacted.

Definition of ex-post facto law.

1)       One which makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.

2)       One which aggravates the crime or makes it greater than when it was committed.

3)       One which changes the punishment and inflicts a greater punishment than that which the law annexed to the crime when it was committed.

4)       One which alters the legal rules of evidence and receives less testimony than the law required at the time of the commission of the offense in order to convict the accused.

5)       One which assumes to regulate civil rights and remedies only BUT, in effect, imposes a penalty or deprivation of a right, which, when done, was lawful.

6)       One which deprives a person accused of a crime of some lawful protection to which he has become entitled such as the protection of a former conviction or acquittal, or a proclamation of amnesty.

Note:  The prohibition on ex post facto laws only applies to retrospective PENAL laws.

Definition of BILL OF ATTAINDER

1)      A bill of attainder is a LEGISLATIVE act which inflicts punishment W/O JUDICIAL trial.

2)      The bill of attainder does not need to be directed at a specifically named person.  It may also refer to easily ascertainable members of a group in such a way as to inflict punishment on them without judicial trial.

3)      Elements of the bill of attainder

  1. There must be a LAW.
  2. The law imposes a PENAL burden on a NAMED INVIDIDUAL/EASILY ASCERTAINABLE MEMBERS of a GROUP.
  3. The penal burden is imposed DIRECTLY by the LAW W/O JUDICIAL trial.

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

Political Law (Constitutional Law) – Article II

ARTICLE II – DECLARATION OF PRINCIPLES AND STATE POLICIES

Selected principles

Sec 1.  The Philippines is a democratic and republican State.  Sovereignty resides in the people and all government authority emanates from them. 

Elements of a State (for municipal law purposes)              CODE:  PTSG

  1. A community of persons, more or less numerous (PEOPLE)
  2. Permanently occupying a definite portion of territory (TERRITORY)
  3. Independent of external control (SOVEREIGNTY)
  4. Possessing an organized government to which the great body of inhabitants render habitual obedience (GOVERNMENT)

Definition of “People”                                                           CODE:  CNCH

  1. A Community of persons;
  2. Sufficient in Number;
  3. Capable of maintaining the continued existence of the community; and
  4. Held together by a common bond of law.

Definition of “Sovereignty”

  1. LEGAL sovereignty
  1. The supreme power to make law.
  2. It is lodged in the people.

 

  1. POLITICAL sovereignty
  1. The sum total of all the influences in a state,
  2. Legal and non-legal,
  3. Which determine the course of law.
  1. According to the Principle of AUTO-LIMITATION:

Sovereignty is the property of the state-force due to which it has the exclusive capacity of legal self-determination and self-restriction.

Definition of “Government”

  1. That institution or aggregate of institutions
  2. by which an independent society
  3. makes and carries out those rules of action
  4. which are necessary to enable men to live in a social state
  5. or which are imposed upon the people forming that society by those who possess the power or authority of prescribing them.

Classification of governments

1.  De jure       – one established by the authority of the legitimate sovereign

2.  De facto      – one established in defiance of the legitimate sovereign

 

Classification of de facto governments

  1. De facto proper
    1. That government that gets possession and control of
    2. or usurps by force or by the voice of majority
    3. the rightful legal government
    4. and maintains itself against the will of the latter.
  1. Government of paramount force
    1. That which is established and maintained by military forces
    2. who invade and occupy a territory of the enemy
    3. in the course of war.
  1. That established as an independent government by the inhabitants of a country who rise in insurrection against the parent state.

Definition of “Republican State”

It is one wherein all government authority emanates from the people and is exercised by representatives chosen by the people.

Definition of Democratic State

This merely emphasizes that the Philippines has some aspects of direct democracy such as initiative and referendum.

Sec. 2.  The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

 

Kind of war renounced by the Philippines

The Philippines only renounces AGGRESSIVE war as an instrument of national policy.  It does not renounce defensive war.

Some “generally accepted principles of international law” recognized by the Court:

  1. Right of an alien to be released on bail while awaiting deportation when his failure to leave the country is due to the fact that no country will accept him (Mejoff v. Director of Prisons, 90 Phil. 70)
  2. The right of a country to establish military commissions to try war criminals (Kuroda v. Jalondoni, 83 Phil. 171)
  3. The Vienna Convention on Road Signs and Signals (Agustin v. Edu, 88 SCRA 195)

Amity with all nations

This does not mean automatic diplomatic recognition of all nations.  Diplomatic recognition remains a matter of executive discretion.

Sec 3.  Civilian authority is, at all times, supreme over the military.  The Armed Forces of the Philippines is the protector of the people and the State.  Its goal is to secure the sovereignty of the State and the integrity of the national territory.

 

Civilian authority/supremacy clause (1st sentence)

  1. Civilian authority simply means the supremacy of the law because authority, under our constitutional system, can only come from law.
  2. Under this clause, the soldier renounces political ambition.

 

Mark of sovereignty (2nd and 3rd sentences)

  1. Positively, this clause singles out the military as the guardian of the people and of the integrity of the national territory and therefore ultimately of the majesty of the law.
  2. Negatively, it is an expression of disapproval of military abuses.

 

Sec 4.  The prime duty of the Government is to serve and protect the people.  The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military, or civil service.

Sec. 5.  The maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.

Sec. 6.  The separation of Church and State shall be inviolable.

Selected state policies

Sec. 7.  The State shall pursue an independent foreign policy.  In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.

Sec. 8.  The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.

Policy of freedom from nuclear weapons
  1. The policy PROHIBITS:
    1. The possession, control and manufacture of nuclear weapons
    2. Nuclear arms tests.
  1. The policy does NOT prohibit the peaceful uses of nuclear energy.

Sec. 12.  The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.  It shall equally protect the life of the mother and the life of the unborn from conception. etc.

 

Principle that the family is not a creature of the state.

Protection for the unborn
  1. It is not an assertion that the unborn is a legal person.
  2. It is not an assertion that the life of the unborn is placed exactly on the level of the life of the mother.  Hence, when it is necessary to save the life of the mother, the life of the unborn may be sacrificed.
  3. Under this provision, the Roe v. Wade doctrine allowing abortion up to the 6th month of pregnancy cannot be adopted in the Philippines because the life of the unborn is protected from the time of conception.

Sec. 16.  The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

  1. While the right to a balanced and healthful ecology is found under the declaration of Principle and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. (Oposa v. Factoran)
  2. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment.  (Oposa v. Factoran)

Sec. 26.  The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.

Sec. 27.  The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.

Sec. 28.  Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

Political Law (Constitutional Law) – Article I

ARTICLE I – THE NATIONAL TERRITORY

The national territory of the Philippines comprises:

  1. The Philippine archipelago
  2. With all the islands and waters embraced therein
  3. And all other territories over which the Philippines has sovereignty or jurisdiction
  4. Consisting of its
    1. Terrestrial
    2. Fluvial; and                                                                       CODE:  TFA
    3. Aerial domains
  5. Including its
    1. Territorial sea
    2. The seabed
    3. The subsoil                                                                        CODE: TSSIO
    4. The insular shelves; and
    5. The other submarine areas
  6. The waters
    1. Around
    2. Between and
    3. Connecting
    4. The islands of the archipelago                                           CODE:  ABCI

Regardless of their breadth and dimensions

Form part of the INTERNAL WATERS of the Philippines

Definition of Archipelago

An archipelago is a body of water studded with islands.  The Philippine archipelago is that body of water studded with islands which is delineated in the Treaty of Paris (1898), as amended by the Treaty of Washington (1900) and the Treaty of Great Britain (1930).

Definition of “all other territories over which the Philippines has sovereignty or jurisdiction”

It includes any territory that presently belongs or might in the future belong to the Philippines through any of the internationally accepted modes of acquiring territory.

Archipelagic principle

Two elements:

  1. The definition of internal waters (as provided above);
  2. The straight baseline method of delineating the territorial sea – consists of drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast.

Important distances with respect to the waters around the Philippines

1.  Territorial sea                      –           12 nautical miles (n.m.)

2.  Contiguous zone                 –           12 n.m. from the edge of the territorial sea

3.  Exclusive economic zone   –          200 n.m. from the baseline [includes (1) and (2)]

 

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations 2001

Louie, Carrie, Evelyn, Thel, Gem, Ronald

 

Pre-Bar Quizzer in Political Law – Part 2: Constitution of Liberty 1-10

1.     Define police power.

It is the power vested in the legislature by the Constitution to make, ordain, establish all manner of wholesome and reasonable laws for the good and welfare of the State and its people. (ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967)

2. What are the basic purposes/aspects  of police power:

a.     to promote the general welfare, comfort and convenience of the people; (ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY, 175 SCRA 343; US VS. TORIBIO, 15 Phil. 85

b.     to promote and preserve public health; (VILLANUEVA VS. CASTANEDA, September 21, 1987; DECS VS. SAN DIEGO, 180 SCRA 533 [NMAT]; LORENZO VS. DIRECTOR OF HEALTH, 50 Phil. 595—apprehend and confine lepers in a leprosarium)

c.      to promote and protect public safety; (AGUSTIN VS. EDU, 88 SCRA 195; TAXICAB OPERATORS VS. JUINIO, 119 SCRA 897 )

d.     to maintain and safeguard peace and order; (GUAZON VS. DE VILLA)

e.      to protect public morals; (DE LA CRUZ VS. PARAS, 123 SCRA 569; ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967; JMM PROMOTIONS VS. CA, 260 SCRA 319; VELASCO VS. VILLEGAS, February 13, 1983)

f.       to promote the economic security of the people. (ichong vs. hernandez, 101 Phil. 11155)

3. Distinguish police power with power of eminent domain.

The distinctions are:

1.     The power of eminent domain is the inherent right of the State to condemn or to take private property for public use upon payment of just compensation while police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property without compensation;

2.     In the exercise of police power, enjoyment of a property is restricted because the continued use thereof would be injurious to public welfare. In such case, there is no compensable taking provided none of the property interests is appropriated for the use or for the benefit of the public. Otherwise, there should be compensable taking if it would result to public use.

3.     Properties condemned under police power are usually noxious or intended for noxious purpose; hence , no compensation shall be paid. Likewise, in the exercise of police power, property rights of private individuals are subjected to restraints and burdens in order to secure the general comfort, health and prosperity of the state. (Didipio earth savers multi purpose association vs. denr sec.  Elisea gozu, et al., 485 scra 586)

4. What are the tests for a valid exercise of police power

a.     the interests of the public, not mere particular class, require the exercise of police power; (LAWFUL SUBJECT)

b.     the means employed is reasonably necessary for the accomplishment of the purpose and not unduly oppressive to individuals. (LAWFUL MEANS). In short, the end does not justify the means.

5.  Define due process.

Due process is a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial (Per Daniel Webster in the DARTMOUTH COLLEGE CASE)

6. What are the Kinds of Due Process?

a.     substantive due process —requires the intrinsic validity of the law in interfering with the rights of the person to life, liberty or property. In short, it is to determine whether it has a valid governmental objective like for the interest of the public as against mere particular class.

b.     Procedural due process—one which hears before it condemns, or the procedure as pointed out by Daniel Webster.

7. What are the requisites of “judicial due process”?

As held in BANCO ESPANOL VS. PALANCA, 37 Phil. 921. The requisites are:

1.     There must be an impartial court or tribunal clothed with judicial power to hear and decide the matter before it;

2.     Jurisdiction must be lawfully acquired over the person of the defendant or over the property subject of the proceedings;

3.     The defendant must be given the opportunity to be heard;

4.     Judgment must be rendered only after lawful hearing.

          8. What are the requisites of due  process before administrative bodies?

As held in TIBAY VS. CIR, 69 Phil. 635, the requisites are:

a.     the right to a hearing which includes the right to present evidence;

b.     the tribunal must consider the evidence presented;

c.      the decision must have something to support itself;

d.     the evidence must be substantial;

e.      the decision must be based on the evidence presented during the hearing;

f.       the tribunal or body must act on its own independent consideration of the law or facts;

g.     the board or body shall in all controversial questions, render its decision in such a manner that the parties to the proceedings can know the various issues involved.

9. If an accused was represented by a non-lawyer during the trial of his criminal case, what right of the said accused was violated? Is he entitled to a new trial?

If an accused was represented by a non-lawyer during the trial (though he thought that he was a lawyer), his right to due process was violated and therefore entitled to a new trial. (DELGADO VS. CA, November 10, 1986)

10. What are the requisites of procedural due process in disciplinary actions against students?

As held in GUZMAN VS. NU, 142 SCRA 706, the requisites are:

1.   The students must be informed in writing of the nature and cause of any accusation against them;

2.   They shall have the right to answer the charges against them, with the assistance of counsel;

3.   They shall be informed of the evidence against them;

4.   They shall have the right to adduce evidence in their own behalf;

5.   The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.

Reference:

Pre-Bar Quizzer in Political Law (Doctrinal Rulings, Requisites and Definitions) July, 2008 by Atty. Larry D. Gacayan

College of Law, University of the Cordilleras

Baguio City

Pre-Bar Quizzer in Political Law – Part I: Constitution of Government 111-118

111. May a school punish its students for illegal acts committed outside the school premises and beyond school hours but within the semester where they are enrolled?

                   Yes because they still carry the name of the school and their actuations affect the reputation of the school. ( ANGELES VS. SISON, 112 SCRA 26) This rule was reiterated in the cased of DE LA SALLE UNIVERSITY VS. CA (2008) where a rumble between two fraternities took place outside the school campus but the students involved were EXPELLED by the school. The Supreme Court, however, while conceding the power of the school over its students held that the penalty of expulsion is too harsh a penalty. It should be EXCLUSION, meaning, they are not allowed to enroll at the De La sale but they should be given transfer credentials so that they may enroll in another school.

         

          112. What are the underlying principles behind the constitutional proscription that the State cannot be sued without its consent?

          By reason of public policy (if every citizen is allowed to sue the government, it will be distracted from performing its functions to serve the people and it will be left just answering cases in court), by reason of sovereignty (the people shall not be allowed to sue the very entity that gives it said right;) and by reason of consent (when the people ratified the Constitution which includes the provision that the State cannot be sued without its consent, it has consented or waived said right to sue).

 

113. How may the State gives its consent to be sued?

Expressly when there is a law allowing it and impliedly when it enters into a contract with an individual because in the latter, it descended to the level of an individual making it susceptible to counterclaims or suits.

 

114. May the government be sued in the exercise of its governmental functions?

Yes if the government agency has a charter which allows it to be sued.  (RAYO VS. CFI OF BULACAN, 110 SCRA 456). Also, the government is not allowed to invoke its immunity from suit if by doing so, it will be causing an injustice to its citizens. (MINISTERIO VS. CFI of Cebu, 40 SCRA and SANTIAGO VS. REPUBLIC, 87 SCRA 294)

 

115. Is the US Government also immune from suit in the Philippines in connection with the exercise of its governmental functions?

Yes. This was the ruling in  U.S. VS. RUIZ, 136 SCRA where it was held that even if there is a contract entered into by the US Government but the same involves its “jusre imperii”  functions (governmental functions”, it cannot be sued. It is only when the contract involves its “jus gestiones” or business or proprietary functions that it may be sued.

 

          116. Are local governments also entitled to invoke immunity from suit?

          Yes.

 

          117. May a municipality be held liable for damages as a result of the death of a person arising from the collapse of a stage constructed by the local government in connection with its town fiesta?

               No, a town fiesta I a business or proprietary function since no law requires any town, city, province or barangay to hold an annual fiesta. (TORIO VS. FONTANILLA, 85 SCRA 599)

 

          118. May the government still be held liable to a private individual if the contract it entered into is void but the other party had already complied with his obligations under said agreement?

          Yes, because the government shall not enrich itself at the expense of its citizens. (DEPARTMENT OF HEALTH VS. C.V. CANCHELA, et al., 475 SCRA 218)

 

Reference:

Pre-Bar Quizzer in Political Law (Doctrinal Rulings, Requisites and Definitions) July, 2008 by Atty. Larry D. Gacayan

College of Law, University of the Cordilleras

Baguio City

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