consti2 midterms

7/28/2019 Consti2 Midterms

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Constitution

a body of rules and maxims in accordance with whichthe powers of sovereignty are habitually exercised.

the supreme law of the land as ordained andestablished by the people which prescribes thepermanent framework of government, whichestablishes the principles upon which the government

is founded, and which defines and allocates to thevarious organs of government their respective powersand functions

shield of protection to all classes of men, at all times,and under al circumstances, as it is a law for rulers andpeople, equally in war and in peace (also referred to asthe social contract doctrine)

Constitution Vs Statute

Constitution StatutePrimary being acommand of the sovereignestablishing the

government machine andthe most general rules foroperation

States general principles

Legislation direct from thepeople acting in theirsovereign capacity

Intended not merely tomeet existing conditionsbut also to govern thefuture

May be abrogated,repealed or modified onlyby the power whichcreated it, namely, thepeople

Secondary being acommand of thesovereign having

reference to theexigencies of the timeand place resulting fromthe ordinary working ofthe machine

Provides the details ofwhich it treats

Legislation from thepeoples representativessubject to thelimitations prescribedby the superior

authority

Intended to meetpresent conditions

May be repealed orchanged by thelegislature

Kinds of Constitution

Written constitution one the provisions of whichhave been reduced to writing and embodied in one ofmore instruments at a particular time. Example:

Constitution of the Republic of the Philippines; USA

Unwritten constitution one which has not beencommitted to writing at any specific time but is thecollective product of gradual political development,consisting of unwritten usages and customs, judicialdecisions, dicta of statesmen, and legislativeenactments of fundamental character written butscattered in various records without having anycompact form in writing. Example: Constitution ofEngland; Athens; Rome

Supremacy of the Constitution

The Constitution is said to be the supreme law of theland. It is considered as the god of all man-madelaws. This is the Doctrine of Constitutional Supremacy

Isagani A. Cruz captures the essence of this greadoctrine in this wise:

The Constitution is the basic and paramount law towhich all other laws must conform and to which alpersons, including the highest officials of the landmust defer. No act shall be valid, however noblyintentioned, if it conflicts with the Constitution. TheConstitution must ever remain supreme. All must bowto the mandate of this law. Expediency must not beallowed to sap its strength nor greed for power debaseits rectitude. Right or wrong, the Constitution must beupheld as long as it has not been changed by thesovereign people lest its disregard result in theusurpation of the majesty of the law by the pretendersto illegitimate power.

The Constitution is the basis of the validity of all laws

and governmental acts. It is the basis of the legitimacyof the very existence of government. It is the basis ofthe legitimacy of the exercise by government opowers that interfere with personal autonomy andliberty. It is the anchorage of all legitimacy.

Legitimacy of the Constitution

The Constitution does not become legitimate justbecause it is a constitution and while it cannot beunconstitutional, it can however be illegitimateConstitutionality therefore is one thing and legitimacyis another. Constitutionality is an attribute ogovernmental acts and laws that do not contravene the

Constitution; legitimacy is an attribute ogovernmental acts and laws, including theConstitution, that makes them at the least, juridicallyright, acceptable, and necessary.

As the anchorage of all legitimacy, the Constitutionmust itself be legitimate. Its legitimacy cannot rests onmere conjectures or shaky theories. It cannot simply beassumed. It must rest on solid ground if it is to thebasis of the legitimacy of all governmental acts andlaws that depend on it for their own legitimacyRichard H. Fallon, Jr. in his article Legitimacy and theConstitution argues that the term legitimacy invitesappeal to three distinct kinds of criteria that in turnsupport three distinct but partly overlapping concepts

of legitimacy legal, sociological, and moral. He writes

When legitimacy functions as a legal conceptlegitimacy and illegitimacy are gauged by legal normsAs measured by sociological criteria, the Constitutionor a claim of legal authority is legitimate insofar as it isaccepted (as a matter of fact) as deserving of respector obedience or, in a weaker usage that I shalexplain below, insofar as it is otherwise acquiesced inA final set of criteria is moral. Pursuant to a moraconcept, legitimacy inheres in the moral justification, if


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any, for claims of authority asserted in the name of thelaw.

Constitutional legitimacy involves consent. It is not acommitment which can be coerced however muchpeople can be coerced into obedience to a particularregime. Consensual legitimacy is utterly necessary fora constitution to have real meaning and to last. Thevery fact that, while rule can be imposed by force,constitutions can only exist as meaningful instrumentsby consent, is another demonstration that constitution-making is the preeminent political act.

Essential parts of a written constitution

Constitution of Liberty contains thefundamental and political rights of the citizens as wellas the limitations on the powers of the government tosee to it that the said rights are safeguarded

Constitution of Government outlines theorganization of the government, enumerating itspowers, laying down certain rules relative to itsadministration, and defining the electorate

Constitution of Sovereignty contains the provisionson how to amend or revise our constitution and whensuch amendment or revision is considered valid

Self-Executing vs Non-Self Executing Provisionsof the Constitution

Non self-executing provisions of the Constitution arethose provisions which lay down a general principle,such as those found in Article II of the 1987Constitution.

A self-executing provision is complete in itself andbecomes operative without the aid of supplementary or

enabling legislation, or that which supplies sufficientrule by means of which the right it grants may beenjoyed, or protected.

When are acts of persons considered StateAction covered by the Constitution?

In constitutional jurisprudence, the act of personsdistinct from the government are considered stateaction covered by the Constitution (1) when theactivity it engages in is a public function; (2) when thegovernment is so significantly involved with the privatesector as to make the government responsible for hisaction; and (3) when the government has approved or

authorized the action.

Amendment/Revision to the Constitution

Steps in revising or amending the constitution

The two steps required in the process of amending orrevising the constitution are;

1. Proposal which is the motion of initiatingsuggestions or proposals on the amendment orevision, which may either be by congressconstitutional convention or peoples initiativeand

2. Ratification which is the sovereign act vestedin the Filipino people to either reject or approvethe proposals to amend or revise theConstitution.

In amending the constitution, there are threemodes of proposal. These are

1. by Congress, upon a vote of three-fourths of alits Members;

2. by a Constitutional Convention; or3. by Peoples Initiative

In revising the Constitution, there are only twomodes.

1. by Congress, upon a vote of three-fourths of alits members; or2. by Constitutional Convention.

Should the Congress choose to call a ConstitutionaConvention, it may call the Convention by two-thirdsvotes of all its Members, or submit to the electoratethe question of calling such Convention by a majorityvote of all its Members.

Requirements for Peoples Initiative

1. written petition which must have at least 12%of the total registered voters as signatories

2. out of the 12% total registered voters, everylegislative district must be represented by atleast 3% of the registered voters therein

Contents of petition

1. Contents or text of law sought to be enactedapproved or rejected, amended or repealed, asthe case may be;

2. The proposition3. Reason/s therefore4. That it is not one of the exceptions provided

therein5. Petitioners must be registered voters

Constitutional Law 1 Reviewer, page 2


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6. Abstract or summary proposition in not morethan one hundred words shall be printed orlegibly written at the top of every page of thepetition

Limitations for the exercise of Peoples Initiative

1. shall be exercised five years after theratification of the 1987 constitution

2. may be exercised only every five yearsthereafter

Comelecs Action on the Petition

Within 30 days from receipt of the petition, theComelec shall, upon determining the sufficiency of thepetition, publish the same in Filipino and English atleast twice in newspaper of general and localcirculation and set the date of the initiative orreferendum which shall not be earlier than 45 days butnot later than 90 days from the determination of thesufficiency of the petition.

Effectivity of Amendment through peoplesinitiative

The proposition in an initiative on the Constitution willbecome effective if approved by a majority of the votescast in the plebiscite as of the day of the plebiscite.

Plebiscite is the electoral process by which aninitiative on the Constitution is approved or rejected bythe people.

Submission of Amendment or Revision to thePeople in a Plebiscite

The amendment or revision of the Constitution must besubmitted to the people in a plebiscite called for thepurpose not earlier than sixty days nor later than

ninety days after the approval of such amendment orrevision.

Is the power to amend or revise the Constitutionincluded in the general grant of legislativepower to Congress?

The power to amend or revise the Constitution is notincluded in the general grant of legislative power toCongress. It is part of the inherent powers of thepeople as the repository of sovereignty in a RepublicanState. It cannot be exercised by Congress unlessexpressly granted to it by the Constitution. Congressmay propose amendments to the Constitution merely

because the same expressly grants such powers.

Thus, when exercising the same, the legislators act notas members of Congress, but as component elementsof a constituent assembly. When acting as such, theMembers of Congress derive their authority from theConstitution, unlike the people, when performing thesame function, for their authority does not emanatefrom the Constitution they are the very source of alpowers of government, including the Constitution itself

State

is a community of persons, more or less numerouspermanently occupying a fixed territory, andpossessed or an independent government organizedfor political ends to which the great body of inhabitantsrender habitual obedience

Two schools of thought on when a given entitybegins to exist as a state

1. Constitutive School of Thought: therecognizing states constitute the new state asa being in International Law through theiwillingness to deal with it as a state

2. Declaratory School of Thought: a givenentity becomes a State from the moment ipossesses the essential attributes of aninternational person, and that is when it fulfillsthe conditions of statehood. According to itsadvocate, recognition is merely declaratory ofan existing fact. It is a political act that isentirely a matter of policy and discretion on thepart of the recognizing state.

Elements of State

1. People2. Territory3. Government

4. Sovereignty

People

How many people should constitute a state?

There is no specific number of people who shouldconstitute a state is required, nor is there a legarequirement as to their number. In fact, the number ofinhabitants in different states differ greatly, with somehaving millions of billions of people, and some only afew hundred thousands of people. The onlyrequirement is that the people must be numerousenough to be self-sufficient and to defend themselves

and small enough to be easily administered.

Government



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Government Vs State

Government StateIs an agent and within thesphere of the agency, a perfectrepresentative; but outside ofthat, a useless usurpation

Refers to the person or group ofpersons in who hands theorganization of the State placesfor the time being the functionof political control.

Institution or aggregate ofinstitutions by which anindependent society makes orcarries out those rules of actionwhich are necessary to enablemen to live in a social state, orwhich are imposed upon thepeople forming that society bythose who possess the power orauthority of prescribing them

State is anideal person,intangible,indivisibleandimmutable.

Prime duty of the government

The prime duty of the government is to serve andprotect the people. There are three ways by which thegovernment may be able to comply with this duty,thus:

1. The government may call upon the people todefend the State. (Section 4, Art. II)

2. The government may require all citizens underconditions provided by law to render personalmilitary or civil service. (Section 4, Art. II)

3. The government may use the Armed Forces ofthe Philippines to repel any threat to itssecurity (Section 4, Art. XVI)

Functions of Government

Constituent/Government Function which is thecompulsory function of the government whichconstitute the very bonds of society. They are: OLP-4C-F

1. the keeping of order and providing for theprotection of persons and property fromviolence and robbery

2. the fixing of the legal relations betweenman and wife and between parents andchildren

3. the regulation of the holding, transmissionand interchange of property, and thedetermination of its liabilities for debt ocrime

4. the determination of contract rightsbetween individuals

5. the definition and punishment ofcrime6. the administration of justice in civil cases7. the determination of the political duties

privileges and relations ofcitizens8. dealings of the state with foreign powers

the preservation of the state from externadanger or encroachment and theadvancement of its international interest

Ministrant/Proprietary functions are the optionafunctions of the government intended for achieving abetter life for the community. The principles fodetermining whether or not a government shalexercise certain of these optional functions are:

1. that a government should do for the publicwelfare those things which private capitawould not naturally undertake; and

2. that a government should do those things

which by its very nature it is betteequipped to administer for the publicwelfare that is any private individual ogroup

De Jure Government vs De Facto Government

A de jure government is an organized government ofthe State that has the general support of the people. Ade facto government, on the other hand, ischaracterized by the fact that it is not founded by theconstitutional law of the state but merely exercisingpowers as if it was legally constituted.

Territory

is the fixed area or surface of the earth where theinhabitants of a State live and where they maintain agovernment of their own

The National Territory of the Philippines Art. 1,1987 Phil. Constitution

The national territory comprises the Philippinearchipelago, with all the islands and waters embracedtherein, and all other territories over which thePhilippines has sovereignty or jurisdiction, consisting of

its terrestrial, fluvial, and aerial domains, including itsterritorial sea, the seabed, the subsoil, the insularshelves, and other submarine areas. The waters



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around, between and connecting the islands of thearchipelago, regardless of their breadth anddimensions, form part of the internal waters of thePhilippines.

Words deleted from Art. 1, 1973 Constitution

all the other territories belonging to thePhilippines by historic right or legal title

Have we dropped our claim over Sabah onaccount of said deletion of said words?

Fr. Joaquin Bernas: the words all other territoriesover which the Philippines has sovereignty orjurisdiction do not include Sabah, but does notexclude it either because of our adherence to thegenerally accepted principles of international law whichenables the nation to acquire a territory by cession,purchase, and so forth. If at some future time, thePhilippine government exercises jurisdiction overSabah, it will be part of our territory.

Archipelago doctrine

Archipelago doctrine -The Philippine archipelago isconsidered as one integrated unit instead of beingdivided into more than seven thousand islands. Thisassertion, including the straight base line method,where the outermost points of our archipelago areconnected with straight baselines and all waters insidethe baselines are considered as internal waters. On thestrength of this assertion, the large bodies of waterconnecting islands of the archipelago such as theMindanao Sea, the Sulu Sea and the Sibuyan Sea areconsidered by the Philippines as internal waters.

Is there a prescribed size for the territory?

There is no specific size for a territory before it can beconsidered an element of a state. There are statesthat have big territories such as Russia and China andthere are those states like Taiwan and Singapore thathave small territories. The only requirement is that theterritory should be small enough to be easilyadministered and big enough to provide for the needsof the population.

Jurisdiction of state

A. The state has power and jurisdiction overpersons and things within its territory,except the following: H-F-A-M-A-O

1. Head of states of foreign countries, diplomaticrepresentatives and consul of certain degree;

2. Foreign state property such as embassiesconsulates, and public vessels engaged in noncommercial activities;

3. Act of states

4. Foreign merchant vessels that exercised theright of innocent passage or involuntary entrysuch as arrival under stress

5. Foreign armies passing through or stationed inthe territory with permission

6. Other persons and things includingorganizations like the United Nations, ovewhich, it may, by agreement, waivejurisdiction.

B. The state has power and jurisdiction outsideof its territory: E -L-E-V-N-C-C

1. When it asserts personal jurisdiction to itsnational or when an alien commits an offensewhich is against national security;

2. When the local state waives its jurisdictionupon persons and properties within itsterritory;

3. When a state establishes a coloniaprolectorate;

4. When it enjoys easements and servitudes;

5. When it exercises its jurisdiction over itsvessels in the high seas;

6. When it exercises its limited jurisdiction on thecontiguous zone; and

7. When it exercises the principle ofextraterritoriality.

Sovereignty

the supreme power in a State by which that State isgoverned. It is also defined as the union and exerciseof all human powers possessed in a State. It is thepower to do everything in a State withoutaccountability to make laws, to execute and applythem, to impose and collect taxes and levycontributions, to make war or peace, to form treaties ofalliance or commerce with foreign nations, and the like

Four kinds of sovereignty



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1. Legal sovereignty is that determinateauthority which is able to express in legal formthe highest commands of the State thatpower which can override the prescriptions ofdivine law, the principles of morality, and themandates of public opinion.

2. Political sovereignty is that power behindthe legal sovereign which is legally unknown,unorganized and incapable of expressing thewill of the State in the form of legal command,yet without power to whose mandates the legalsovereign will in practice bow and whose willmust ultimately prevail in the State.

3. Internal sovereignty implies the power of theState to make and alter its system ofgovernment, and to regulate its private affairs,as well as the rights and relations of itscitizens, without any dictation, interference, orcontrol on the part of any person or body ofState outside the particular politicalcommunity.

4. External sovereignty implies that the State

spoken of is not subject to the control,dictation, or government of any other power. Itnecessarily implies the right and power toreceive recognition as an independent powerfrom other powers, and to make treaties withthem on equal terms, make war or peace withthem, send diplomatic agents to them, acquireterritories by conquest or occupation, andotherwise to manifest its freedom andautonomy.

Sovereignty vs Dominium; Imperium

Sovereignty is the right to exercise the functions of a

State to the exclusion of any other state. It is oftenreferred as the power of imperium, which is defined asthe government authority possessed by the State.

Dominion, or dominium, is the capacity of the State toown or acquire property such as lands and naturalresources.

Sovereignty vs Independence

Sovereignty Independence

Supreme power of thestate by which thatstate is governed

Internal aspect powerinherent in the people

Externalmanifestation ofrecognition by

other States inorder to render aState perfect and

or vested in its ruler bythe Constitution togovern the State

External aspect consists in theindependence of onepolitical society inrespect to all otherpolitical societies.

complete.

Effects of Japanese Occupation on Sovereignty

Sovereignty remained with the US although theAmericans could not exercise any control over theoccupied territory. What the belligerent occupant tookwas merely the exercise of the acts of sovereignty.

On Political Laws of Acquired Territory - politicalaws immediately cease to have effect, except insofaras they are continued in force by express consent ofthe new sovereign.

On the Municipal Laws municipal laws of theconquered territory, however, not in conflict with the

laws of the new sovereign continue in force without theexpress consent of the new sovereign

DoctrinesDoctrine ofJus Postliminii,

Political laws which are suspended during theoccupation is re-established under the doctrine of juspostliminii, which states that when a territory whichhas been occupied by the enemy comes again into thepower of the State during the progress of a wathrough conquest or otherwise, the legal state of thethings existing prior to the hostile occupation is reestablished.

Doctrine of Parens Patriae

Latin for "father of his country," the term for thedoctrine that the government is the ultimate guardianof all people under a disability, especially childrenwhose care is only "entrusted" to their parents. Underthis doctrine, in a divorce action or a guardianshipapplication the court retains jurisdiction until the childis 18 years old, and a judge may change custody, childsupport or other rulings affecting the child's well-beingno matter what the parents may have agreed or thecourt previously decided.

Parens Patriae means literally, "parent of thecountry." It refers traditionally to the role of the stateas a sovereign and guardian of persons under legadisability. Parens Patriae originates from the English



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common law where the King had a royal prerogative toact as guardian to persons with legal disabilities suchas infants.

The doctrine ofparens patriae is a concept ofstanding utilized to protect . . . quasi-sovereigninterests, such as health, comfort, and welfare of thepeople, when such interests are threatened and stategovernment intervention may be needed. Gibbs v.Titelman, 369 F. Supp. 38, 54 (E.D. Pa. 1973), revd onother grounds, 502 F.2d 1107 (3d Cir. 1974). Only asovereign (meaning, in the United States, a stategovernment) can intervene asparens patriae, acting asthe 'general guardian of all infants, lunatics, idiots.Fontain v. Ravenel, 58 U.S. 369 392-93 (1854) (Taney,J. concurring)(citing 3 W. Blackstone, Commentaries onthe Laws of England 48 (1769)).

In loco parentis

In loco parentis means in place of parent. The inloco parentis legal doctrine can be applied to bothgovernmental and non-governmental entities, and isimplicated when a person [or legal entity] undertakesthe care and control of another [person of legal

incapacity] in the absence of such supervision by thelatters natural parents and in the absence of formallegal approval. Blacks Law Dictionary 787 (6th Ed.1990)(quoting Griego v. Hogan, 377 P.2d 953, 955-56(N.M. 1963)). The doctrine most commonly applied tominors, but can apply in other contexts, such as adult-age persons who are suffering from permanent andsevere medical incapacity.

Application of the in loco parentis doctrine requires, atminimum, that 1) the minors parents are absent(either voluntarily by overt act or by forbearance, orbecause of an incident beyond the parents control), 2)the adult caretaker on the scene is not the minorslegal guardian or custodian, and 3) the adult caretaker

on the scene has, for the relevant time period,assumed control over the routine care and basiccontrol of the child (e.g. shelter, safety, food, medicalcare, bathing, clothing, transportation, education,nurturing).

The traditional in loco parentis doctrine entails atemporary delegation of parental power, not apermanent and involuntary derogation of parentalliberty. The natural parent is free to A) limit the scopeof the power delegated, B) direct the actions of thetemporary caretaker of the child, C) demandaccountability from the temporary caretaker of thechild, and D) terminate the delegation of power. The

doctrine has nothing to do with parental unfitness anddoes not entail any power to override direction from afit natural parent.

Regalian Doctrine of property ownership

A principle in law which means that all natural wealth -agricultural, forest or timber, and mineral lands of thepublic domain and all other natural resources belong tothe state. Thus, even if the private person owns theproperty where minerals are discovered, his ownershipfor such does not give him the right to extract or utilizesaid minerals without permission from the state towhich such minerals belong.

What are the limitations on right of propertyownership?

1. CONSTITUTIONAL - such as police powereminent domain or expropriation of privateproperty for public use, taxation and escheatwhen revision of private property to stateownership in case of death of property ownerwithout an heir;

2. LEGAL - zoning ordinances, regulations onsubdivision projects, building code, and otherspecial laws and regulations; and

3. CONCENSUAL/VOLUNTARY - easements andservitudes, usufructs, lease agreementsrestrictions in subdivision and condominiumdeeds or restriction.

Who can own land in the Philippines?

Acquisition and ownership of private lands in thePhilippines is limited and/or reserved to Filipinos or toCorporations or partnerships where at lease 60% of theauthorized capital of which is owned by Filipinocitizens, except:

1. When such property is acquired prior to the

1973 Constitution;

2. Acquisition by an alien or foreigner byhereditary succession;

3. Aliens/foreigners owning not more than 40%interest in a condominium project pursuant toRA 4726;

4. Where a former natural born Filipino whobecame a citizen of another country but is nowreturning to the Philippines to reside hereatpermanently. Hence, hay acquire through saledonation, or through a tax sale, foreclosure

sale, or execution sale not more than 1,000 sqm. for urban land or not more than 10,000 sq.m. for rural land to be used solely for



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residential purposes and subject to otherlimitations and requirements as provided underthe law (Batas Pambansa No. 185);

5. A Filipina who marries an alien retains herPhilippine citizenship (to avoid being stateless)unless by her own act or omission she isdeemed to have renounced her Filipinocitizenship, may acquire and own private landsin the Philippines.

Doctrine of Separation of Powers

The basis of the doctrine of separation of powers isthe Constitution itself which allocates powers to eachof the departments of government precisely onaccount of the principle that the Philippines is ademocratic and republican State.

It operates to maintain the legislative powers to thelegislative department, executive powers to theexecutive department, those which are judicial incharacter to the judiciary. Through this separation ofpowers, the persons entrusted with power in any of thedepartments of government shall not be permitted

to encroach upon the power confided to theothers, but that each shall, by the law of its creation,be limited to the exercise of the powers appropriate itsown department and no other.

However, there is no absolute separation of the threebranches of government. Each department is givencertain powers by which each may restrain the othersfrom exceeding their constitutional authority, underthe system of checks and balances.

Moreover, in actual practice, the branches ofgovernment blend their powers so that there is actualsharing of powers whereby one department helps andcoordinates with the other in the exercise of a

particular power, function or responsibility. It is in thisprocess of sharing and collaborating with each otherthat one department not only helps but also checks theother if for any valid reason it is deemed necessary forthe public good.

How Courts Enforce Separation of Powers

Examples of blending of powers

1. The President and Congress help one anotherin the making of laws. Congress enacts the billand the President approves the same.

2. The President prepares a budget and Congressenacts an appropriation bill pursuant to thatbudget.

3. The President enters into a treaty with foreigncountries and the Senate ratifies the same.

4. The Supreme Court may declare a treatyinternational or executive agreement, or law asunconstitutional, and it has also the power todeclare invalid any act done by the otherdepartments of government.

Checks and balances

Under the system of checks and balances, onedepartment is given certain powers by which it maydefinitely restrain the others from exceedingconstitutional authority. It may object or resist anyencroachment upon its authority, or it may question, ifnecessary, any act or acts which unlawfully interferewith its sphere of jurisdiction and authority.

Rule of Majority

is the will of the greater number of people, whetherreferring to the citizens of the Philippines who choose

their representatives, or to a number of people in acommunity or organization, who choose their officersHowever, in the choice of President, Vice PresidentSenators, Congressmen, and other public officials, thewinners are those who may have received the highestnumber of votes, but this may not necessarily be the amajority of the total votes cast. If at all, this vote ismerely a plurality because the votes are dividedamong the many presidential contenders.

There are different interpretations on the rule omajority. Some examples are the following

1. Revocation of proclamation of martial law orsuspension of the privilege of habeas corpus

- majority vote (one half plusone) of all members of Congress in a regular ospecial session

2. Quorum of each House majority of eachHouse shall constitute a quorum to do business

3. Suspension or expulsion of a member twothirds vote of all its members

4. Constitutionality of a treaty, international orexecutive agreement or law all cases whichshall be heard en banc by the Supreme Courtshall be decided with the concurrence of a

majority of the Members who actuallytook part in the deliberations on the issuesand the case and voted thereon.



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5. A majority vote of one a dissenting vote ofone Sandiganbayan Justice will prevent adecision of the two other members of thedivision as a unanimous vote is required forsuch decision. In that case, the lonedissenting vote is considered as amajority vote.

Political vs Justiciable Question

A political question is a question of policy. It refers tothose questions, which under the Constitution, are tobe decided by the people in their sovereign authority,or in regard to which full discretionary authority hasbeen delegated to the legislative or executive branchof government. Political questions are neatlyassociated with the wisdom, not the legality of aparticular measure. Where the vortex of thecontroversy refers to the legality or validity of thecontested act, that matter is definitely justiciable ornon-political.

Examples of political questions

1. The calling of snap elections on February 7,1986;

2. The calling of a referendum is within theexclusive discretion of President Ferdinand E.Marcos;

3. The authority of the Senate to punish anddetain a witness for contempt is a within itsdiscretionary power and authority andtherefore, it is a political question;

4. Whether or not the country should honor itsinternational debt

Examples of justiciable questions

1. the determination of whether or not anappointee has the prescribed qualifications

2. the determination of the Presidents authorityto propose amendments and the regularity ofthe procedure adopted for submission ofproposals to the people

3. the determination of whether or not aconstitutional provision has been followed ornot

4. the determination of whether or not asuspension for disorderly behavior is supportedby the required 2/3 votes

5. the determination of whether or not the votingrequirement prescribed by the Constitutionwas complied with

6. the determination of constitutionality olegality of an act

Legislative Inquiries in Aid of Legislation

InJohn T. Watkins vs. United States:

... The power of congress to conductinvestigations in inherent in the legislativeprocess. That power is broad. it encompassesinquiries concerning the administration oexisting laws as well as proposed, or possiblyneeded statutes. It includes surveys of defectsin our social,economic, or political system forthe purpose of enabling Congress to remedythem. It comprehends probes into departmentsof the Federal Government to exposecorruption, inefficiency or waste. But broadasis this power of inquiry, it is not unlimitedThere is no general authority to expose the

private affairs ofindividuals without justificationin terms of the functions of congress. This wasfreely conceded by Solicitor General in hisargument in this case. Nor is the Congress alaw enforcement or trial agency. These arefunctions of the executive and judiciadepartments of government. No inquiry is anend in itself; it must be related to and infurtherance of a legitimate task of Congress.Investigations conducted soly for the personalaggrandizement of the investigators or to"punish" those investigated are indefensible.

In Baremblatt vs. United States:

Broad as it is, the power is not, however,without limitations. Since congress may onlyinvestigate into those areas in which it maypotentially legislate or appropriate, it cannotinquire into matters which are within theexclusive province of one of the other branchesof the government. Lacking the judicial powergiven to the Judiciary, it cannot inquire intomattes that are exclusively the concern of theJudiciary. Neither can it suplant the Executivein what exclusively belongs to the Executive. ..

Now to another matter. It has been held that "acongressional committee's right to inquire is 'subject to

all relevant limitations placed by the Constitution ongovernmental action,' including "'the relevantlimitations of the Bill of Rights'."



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In Bengson vs Senate Blue Ribbon Committee

We do not here modify these doctrines. If we presentlyrule that petitioners may not be compelled by therespondent Committee to appear, testify and produceevidence before it, it is only becuase we hold that thequestioned inquiry is not in aid of legislation and, ifpursued, would be violative of the principle ofseparation of powers between the legislative and thejudicial departments of government, ordained by theConstitution.

Doctrine of Separation of Church and State

The separation of Church and State has beendeclared inviolable but this should not be viewed asabsolute lack of concern for each other. His Holiness,Pope Paul VI, in his Pastoral Constitution on the Churchin the Modern World explained that the church andthe political community in their own fields areautonomous and independent from each other. Yet,both under different titles, are devoted to the personaland social vocations of the same man. The more thatboth foster sounder cooperation between themselves

with due consideration for the circumstances f timeand place, the more effective will their serviceexercised for the good of all..

The separation, therefore, merely serves to delineatethe boundaries between the two institutions thereby,avoiding, as much as possible, any encroachment byone against the other. And the reason is plain: theunion of Church and State tends to destroy thegovernment and degrade the church.

Thus, each is independent within the sphere of theirrespective missions and prerogatives, but stillgoverned, both in theory and actual practice, bythe principle of cooperation to attain the common

good. After all, both institutions have commondenominators, that of promoting peace and order, theprotection of life, liberty and property, and thepromotion of general welfare so that the people willenjoy the blessings of democracy.

Doctrine of Incorporation

Under the doctrine of incorporation, a State is, byreason of its membership in the family of nations,bound by the generally accepted principles ofinternational law, the same being considered as part ofits own laws. In consonance with this doctrine, thePhilippines is bound by any resolution which is duly

approved by the United Nations General Assembly, orby any treaty, commitment, or agreement, reached inan international convention, especially when the

Philippines is a party or signatory to the saidagreement or treaty. But even if it is not a signatorythe Philippines is bound by the Hague Conventionbecause it embodied the generally accepted principlesof international law binding upon all States.

Even without such affirmation, we would still bebound by the generally accepted principles ointernational law under the doctrine ofincorporation. Under this doctrine, as accepted bythe majority of states, such principles are deemedincorporated in the law of every civilized state as acondition and consequence of its membership in thesociety of nations. Upon its admission to such society,the state is automatically obligated to comply withthese principles in its relations with other states. (USvs Guinto)

Reference: Section 2, Article II. The Philippinesrenounces war as an instrument of national policy,adopts the generally accepted principles ointernational law as part of the law of the land andadheres to the policy of peace, justice, freedom,cooperation, and amity with all nations.

Doctrine of State Immunity

The doctrine of state immunity asserts that a Statehas the inherent right to exist and to protect itself andits citizens from any act or acts which will defeat thegreat interest of the people which it is obligated toserve. This includes the right to protect itself againstindiscriminate suits which will necessarily require itsattention, time, and resources. All these couldotherwise be used for the benefit and interest of thegeneral welfare.

The doctrine is sometimes derisively called "the royalprerogative of dishonesty" because of the privilegeit grants the state to defeat any legitimate claim

against it by simply invoking its non-suability. That ishardly fair, at least in democratic societies, for thestate is not an unfeeling tyrant unmoved by the validclaims of its citizens. In fact, the doctrine is notabsolute and does not say the state may not be suedunder any circumstance. On the contrary, the rule saysthat the state may not be sued without its consent,which clearly imports that it may be sued if it consents.

In the words of Justice Vicente Abad Santos:

The traditional rule of immunity excepts a State frombeing sued in the courts of another State without itsconsent or waiver. This rule is a necessary

consequence of the principles of independence andequality of States. However, the rules of InternationalLaw are not petrified; they are constantly developing



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and evolving. And because the activities of states havemultiplied, it has been necessary to distinguish them between sovereign and governmental acts (jureimperii) and private, commercial and proprietary acts(jure gestionis). The result is that State immunity nowextends only to acts jure imperii. The restrictiveapplication of State immunity is now the rule in theUnited States, the United Kingdom and other states inWestern Europe.

The restrictive application of State immunity is properonly when the proceedings arise out of commercialtransactions of the foreign sovereign, its commercialactivities or economic affairs. Stated differently, aState may be said to have descended to the level of anindividual and can thus be deemed to have tacitlygiven its consent to be sued only when it enters intobusiness contracts. It does not apply where thecontract relates to the exercise of its sovereignfunctions. In this case the projects are an integral partof the naval base which is devoted to the defense ofboth the United States and the Philippines,indisputably a function of the government of thehighest order; they are not utilized for nor dedicated tocommercial or business purposes.

Doctrines on Presidential Appointments

1. Confirmation by the Commission onAppointments is required only for presidentialappointees mentioned in the first sentence ofSection 16, Article VII, including, those officerswhose appointments are expressly vested by theConstitution itself in the president (like sectoralrepresentatives to Congress and members of theconstitutional commissions of Audit, Civil Serviceand Election).

2. Confirmation is not required when the Presidentappoints other government officers whose

appointments are not otherwise provided for bylaw or those officers whom he may be authorizedby law to appoint (like the Chairman andMembers of the Commission on Human Rights).When Congress creates inferior offices but omitsto provide for appointment thereto, or providesin an unconstitutional manner for suchappointments, the officers are considered asamong those whose appointments are nototherwise provided for by law.

Pardon, parole, reprieve, amnesty

Pardon is an act of grace given by those

charged with the power and authorityto execute laws, which exempts theindividuals subject of pardon from the

punishment which the law inflicts for acrime he has committed

Parole a person subject of parole is releasedfrom imprisonment but his liberty is notfully restored because he is stilconsidered in the custody of the lawalthough he is not in confinement

Reprieve the execution of sentence of a personwho is subject of a reprieve is stayed orpostponed

Amnesty is an act of grace given by thePresident with the concurrence ocongress. It is usually extended togroups of persons who committedpolitical offenses and abolishes theoffense itself.

Commutation penalty is mitigated or reduced

Par in Parem, Non Habet Imperium

In the case ofUnited States of America v. Guinto (182SCRA 644 [1990]):

As applied to the local state, the doctrine of stateimmunity is based on the justification given by JusticeHolmes that "there can be no legal right against theauthority which makes the law on which the rightdepends." (Kawanakoa v. Polybank, 205 U.S. 349)There are other practical reasons for the enforcementof the doctrine. In the case of the foreign state soughtto be impleaded in the local jurisdiction, the addedinhibition is expressed in the maxim par in parem,non habet imperium. All states are sovereignequals and cannot assert jurisdiction over oneanother.A contrary disposition would, in the languageof a celebrated case, "unduly vex the peace ofnations." (Da Haber v. Queen of Portugal, 17 Q. B. 171)

While the doctrine appears to prohibit only suitsagainst the state without its consent, it is alsoapplicable to complaints filed against officials of thestate for acts allegedly performed by them in thedischarge of their duties. The rule is that if thejudgment against such officials will require the stateitself to perform an affirmative act to satisfy the same,such as the appropriation of the amount needed to paythe damages awarded against them, the suit must beregarded as against the state itself although it has notbeen formally impleaded. (Garcia v. Chief of Staff, 16SCRA 120) In such a situation, the state may move todismiss the complaint on the ground that it has been

filed without its consent.

In Wylie vs Rarang:



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The question, therefore, arises are American navalofficers who commit a crime or tortious act whiledischarging official functions still covered by theprinciple of state immunity from suit? Pursuing thequestion further, does the grant of rights, power, andauthority to the United States under the RP-US BasesTreaty cover immunity of its officers from crimes andtorts? Our answer is No.

Killing a person in cold blood while on patrol duty,running over a child while driving with recklessimprudence on an official trip, or slandering a personduring office hours could not possibly be covered bythe immunity agreement. Our laws and, we presume,those of the United States do not allow the commissionof crimes in the name of official duty.

Jure Imperii vs Jure Gestionis

In Holy See vs Rosario (RTC ,Makati)

There are two conflicting concepts of sovereignimmunity, each widely held and firmly established.According to the classical or absolute theory, a

sovereign cannot, without its consent, be made arespondent in the courts of another sovereign.According to the newer or restrictive theory, theimmunity of the sovereign is recognized only withregard to public acts or acts jure imperii of a state, butnot with regard to private acts or acts jure gestionis(United States of America v. Ruiz, 136 SCRA 487[1987]; Coquia and Defensor-Santiago, PublicInternational Law 194 [1984]).

Some states passed legislation to serve as guidelinesfor the executive or judicial determination when an actmay be considered as jure gestionis. The United Statespassed the Foreign Sovereign Immunities Act of 1976,which defines a commercial activity as "either a

regular course of commercial conduct or a particularcommercial transaction or act." Furthermore, the lawdeclared that the "commercial character of the activityshall be determined by reference to the nature of thecourse of conduct or particular transaction or act,rather than by reference to its purpose." The CanadianParliament enacted in 1982 an Act to Provide For StateImmunity in Canadian Courts. The Act defines a"commercial activity" as any particular transaction, actor conduct or any regular course of conduct that byreason of its nature, is of a "commercial character."

The restrictive theory, which is intended to be asolution to the host of problems involving the issue of

sovereign immunity, has created problems of its own.Legal treatises and the decisions in countries whichfollow the restrictive theory have difficulty in

characterizing whether a contract of a sovereign statewith a private party is an act jure gestionis or an actjure imperii.

The restrictive theory came about because of the entryof sovereign states into purely commercial activitiesremotely connected with the discharge ofgovernmental functions. This is particularly true withrespect to the Communist states which took control ofnationalized business activities and internationatrading.

Acts Jure Imperii

This Court has considered the following transactions bya foreign state with private parties as acts jure imperii:

(1) the lease by a foreign government of apartmentbuildings for use of its military officers (Syquia vLopez, 84 Phil. 312 [1949];

(2) the conduct of public bidding for the repair of awharf at a United States Naval Station (United States ofAmerica v. Ruiz, supra.); and

(3) the change of employment status of baseemployees (Sanders v. Veridiano, 162 SCRA 88[1988]).

Acts Jure Gestionis

On the other hand, this Court has considered thefollowing transactions by a foreign state with privateparties as acts jure gestionis:

(1) the hiring of a cook in the recreation centerconsisting of three restaurants, a cafeteria, a bakery, astore, and a coffee and pastry shop at the John Hay AirStation in Baguio City, to cater to American servicemenand the general public (United States of America v

Rodrigo, 182 SCRA 644 [1990]); and

(2) the bidding for the operation of barber shops inClark Air Base in Angeles City (United States oAmerica v. Guinto, 182 SCRA 644 [1990]). Theoperation of the restaurants and other facilities open tothe general public is undoubtedly for profit as acommercial and not a governmental activity. Byentering into the employment contract with the cook inthe discharge of its proprietary function, the UnitedStates government impliedly divested itself of itssovereign immunity from suit.In the absence of legislation defining what activitiesand transactions shall be considered "commercial" and

as constituting acts jure gestionis, we have to comeout with our own guidelines, tentative they may be.



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Certainly, the mere entering into a contract by aforeign state with a private party cannot be theultimate test. Such an act can only be the start of theinquiry. The logical question is whether the foreignstate is engaged in the activity in the regular course ofbusiness. If the foreign state is not engaged regularlyin a business or trade, the particular act or transactionmust then be tested by its nature. If the act is inpursuit of a sovereign activity, or an incident thereof,then it is an act jure imperii, especially when it is notundertaken for gain or profit.

As held in United States of America v. Guinto, (supra):

There is no question that the United States ofAmerica, like any other state, will be deemedto have impliedly waived its non-suability if ithas entered into a contract in its proprietary orprivate capacity. It is only when the contractinvolves its sovereign or governmentalcapacity that no such waiver may be implied.

Can the Government of the Philippines be sued?

As a rule, the Government of the Philippines cannot be

sued without its consent. The consent of the State tobe sued may be given expressly or impliedly. Expressconsent may be manifested either through a generallaw or a special law.

Implied consent is given when the State itselfcommences litigation, or when it enters into a contractwith another citizen. In the former, the defendant isentitled to file a counterclaim against the State. In thecase of the latter, the State has divested itself of themantle of sovereign immunity and descended to thelevel of the ordinary individual, hence, it becomessubject to a suit in the courts of justice and to the usualsummons and processes of the court.

The standing consent of the State to be sued is Act No.3083, which declared that the Government of thePhilippine Islands hereby consents and submits to besued upon any money claim involving liability arisingfrom contract, express or implied, which could serve asa basis of a civil action between private parties.

We have held that not all contracts entered into by thegovernment will operate as a waiver of its non-suability; distinction must be made between itssovereign and proprietary acts. (United States ofAmerica v. Ruiz, 136 SCRA 487)

Can agencies of the Government of the Republic

of the Philippines be sued?

It depends on whether the government agency to besued is incorporated or unincorporated. It isincorporated, the rule is that it is suable if its chartersays so and regardless of the functions it is performingIf it is unincorporated, the rule is that it is suable if it isperforming proprietary functions, and not suable if it isperforming governmental functions.

In Farolan vs CTA:

Otherwise, to permit private respondent's claim toprosper would violate the doctrine of sovereignimmunity. Since it demands that the Commissioner ofCustoms be ordered to pay for actual damages itsustained, for which ultimately liability will fall on thegovernment, it is obvious that this case has beenconverted technically into a suit against the state. 29

On this point, the political doctrine that "the state maynot be sued without its consent," categorically applies30 As an unincorporated government agency withouany separate juridical personality of its own, theBureau of Customs enjoys immunity from suit. Alongwith the Bureau of Internal Revenue, it is invested withan inherent power of sovereignty, namely, taxation. Asan agency, the Bureau of Customs performs thegovernmental function of collecting revenues which isdefinitely not a proprietary function. Thus, privaterespondent's claim for damages against theCommissioner of Customs must fail.

When is a suit against public official deemed tobe a suit against the State?

The doctrine of state immunity from suit applies tocomplaints filed against public officials for acts done inthe performance of their duties. The rule is that the

suit must be regarded as one against the State wherethe satisfaction of the judgment against the publicofficial concerned will require the State itself toperform a positive act, such as the appropriation of theamount necessary to pay the damages awarded to theplaintiff.

The rule does not apply where the public official ischarged in his official capacity for acts that areunlawful and injurious to the rights of others. Publicofficials are not exempt, in their personal capacityfrom liability arising from acts committed in bad faithNeither does it apply where the public official is clearlybeing sued not in his official capacity but in hispersonal capacity, although the acts complained omay have been committed while he occupied a publicposition. (Amado J. Lansang v CA, GR No. 102667February 3, 2000)



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Tests to Determine if the Suit is Against theState

1. When the Republic is sued by name

2. When the suit is against an unincorporatedgovernment agency;

3. When the suit is on its face against agovernment official but the case is such that the

ultimate liability will belong not to the officer butto the government (Republic v Sandoval)

Rule on money Claims against the State

This is covered by a general consent to be sued from inCommonwealth Act No. 327, which reads in partSection 1. In all cases involving the settlement ofaccounts of claims other than those of accountableofficers, the Auditor General shall act and decide thesame within 60 days, exlusive of Sundays and holidaysafter their presentation. [ if accountable officers, 100days is the limit.]

What recourse is there for a private personwhose property has been taken for the State byan unauthorized act of a public officer?

If the property can still be restored, the suit forrestoration and damages must be against the officer inhis private capacity (Festejo v Fernando, 94 Phil 504)

If the property can no longer be restored and is in factbeing enjoyed by the State, then the State must bedeemed to have submitted to the jurisdiction of thecourt for purposes of fixing the just compensation.

(Ministeri v CFI, 40 SCRA 464).Consent to be sued, Scope of Consent

Process of Suggestion

In the United States, the procedure followed is theprocess of "suggestion," where the foreign state or theinternational organization sued in an American courtrequests the Secretary of State to make adetermination as to whether it is entitled to immunity.If the Secretary of State finds that the defendant isimmune from suit, he, in turn, asks the AttorneyGeneral to submit to the court a "suggestion" that thedefendant is entitled to immunity. In England, a similar

procedure is followed, only the Foreign Office issues acertification to that effect instead of submitting a"suggestion" (O'Connell, I International Law 130

[1965]; Note: Immunity from Suit of Foreign SovereignInstrumentalities and Obligations, 50 Yale Law Journa1088 [1941]).

In the Philippines, the practice is for the foreigngovernment or the international organization to firstsecure an executive endorsement of its claim osovereign or diplomatic immunity. But how thePhilippine Foreign Office conveys its endorsement tothe courts varies. In International Catholic MigrationCommission v. Calleja, 190 SCRA 130 (1990), theSecretary of Foreign Affairs just sent a letter directly tothe Secretary of Labor and Employment, informing thelatter that the respondent-employer could not be suedbecause it enjoyed diplomatic immunity. In WorldHealth Organization v. Aquino, 48 SCRA 242 (1972)the Secretary of Foreign Affairs sent the trial court atelegram to that effect. In Baer v. Tizon, 57 SCRA 1(1974), the U.S. Embassy asked the Secretary oForeign Affairs to request the Solicitor General tomake, in behalf of the Commander of the United StatesNaval Base at Olongapo City, Zambales, a "suggestion"to respondent Judge. The Solicitor General embodiedthe "suggestion" in a Manifestation and Memorandumas amicus curiae.

In the case at bench, the Department of ForeignAffairs, through the Office of Legal Affairs moved withthis Court to be allowed to intervene on the side ofpetitioner. The Court allowed the said Department tofile its memorandum in support of petitioner's claim ofsovereign immunity.

In some cases, the defense of sovereign immunity wassubmitted directly to the local courts by therespondents through their private counsels (Raquiza vBradford, 75 Phil. 50 [1945]; Miquiabas v. PhilippineRyukyus Command, 80 Phil. 262 [1948]; United Statesof America v. Guinto, 182 SCRA 644 [1990] andcompanion cases). In cases where the foreign states

bypass the Foreign Office, the courts can inquire intothe facts and make their own determination as to thenature of the acts and transactions involved.

What can a person do if aggrieved by acts of aforeign sovereign?

Private respondent is not left without any legal remedyfor the redress of its grievances. Under both PublicInternational Law and Transnational Law, a person whofeels aggrieved by the acts of a foreign sovereign canask his own government to espouse his cause throughdiplomatic channels.

Execution of Public Funds



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But, be that as it may, the claims of privaterespondents, i.e. for underpayment of wages, holidaypay, overtime pay and similar other items, arising fromthe Contract for Service, clearly constitute moneyclaims. Act No. 3083, aforecited, gives the consent ofthe State to be "sued upon any moneyed claiminvolving liability arising from contract, express orimplied, . . . Pursuant, however, to Commonwealth Act("C.A.") No. 327, as amended by Presidential Decree("P.D.") No. 1145, the money claim first be brought tothe Commission on Audit. Thus, in Carabao, Inc., vs.Agricultural Productivity Commission, 20we ruled:

(C)laimants have to prosecute theirmoney claims against the Governmentunder Commonwealth Act 327, statingthat Act 3083 stands now merely asthe general law waiving the State'simmunity from suit, subject to thegeneral limitation expressed in Section7 thereof that "no execution shall issueupon any judgment rendered by anyCourt against the Government of the(Philippines), and that the conditionsprovided in Commonwealth Act 327 for

filing money claims against theGovernment must be strictlyobserved."

In Republic vs. Villasor 22 this Court, in nullifying theissuance of an alias writ of execution directed againstthe funds of the Armed Forces of the Philippines tosatisfy a final and executory judgment, has explained,thus

The universal rule that where the State givesits consent to be sued by private parties eitherby general or special law, it may limit theclaimant's action "only up to the completion ofproceedings anterior to the stage of execution"

and that the power of the Courts ends whenthe judgment is rendered, since governmentfunds and properties may not be seized underwrits or execution or garnishment to satisfysuch judgments, is based on obviousconsiderations of public policy. Disbursementsof public funds must be covered by thecorrespondent appropriation as required bylaw. The functions and public services renderedby the State cannot be allowed to be paralyzedor disrupted by the diversion of public fundsfrom their legitimate and specific objects, asappropriated by law. 23

Principles

Principle of Republicanism

A republican government is a government which isrun by the people through their chosen representativeswho, in turn, are accountable to the sovereign will ofthe people. They derive their mandate from the peoplewho elect them for a period or term that is fixed bylaw. They cannot, strictly speaking, go against thespecific authority and the sovereign will of the peoplefor they are precisely the source of all governmentauthority and are merely the trustees who areexpected to act for and in their behalf for their benefit.

Manifestations of Republicanism

Principle of Civilian Supremacy

This principle of civilian supremacy is emphaticallydeclared in the Section 3, Article II of the 1987Constitution. It is not found in the 1973 nor in the 1935Constitutions. Section 3 of the new Constitution isentirely a new provision which provides, as follows:

Section 3. Civilian authority is, at all times,supreme over the military. The Armed Forces ofthe Philippines is the protector of the people and

the State. Its goal is to secure the sovereignty ofthe State and the integrity of the nationalterritory.

Other provisions in the Constitution that supportssupremacy of civilian over military:

Section 1, Article II. The Philippines is ademocratic and republican State. Sovereigntyresides in the people and all governmentauthority emanates from them.

Section 18, Article VII. The President shall bethe Commander-in-Chief of all the armed forcesof the Philippines and whenever it becomes

necessary, he may call out such armed forces toprevent or suppress lawless violence, invasion orrebellion. .xxx

Section 18, Article VII emphasizes that a civilian, thePresident, is the highest in the military chain ocommand.

Can a person refuse to register for militarytraining on account of religious or politicaconvictions?

There are several reasons to support the view that thegovernment can require compulsory military service

and they are as follows:



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1. What justifies compulsory military service isthe defense of the State, whether actual orwhether in preparation to make it moreeffective in case of need.

2. The duty of the Government to defend theState cannot be fulfilled except through thearmy. To leave the organization of the army tothe will of the citizens would be make this dutyof the Government excusable should there beno sufficient men who volunteer for enlistment.

3. The right of the Government to require serviceis a consequence of its duty to defend theState and to protect the life, liberty andproperty of the citizens. In the UN, a moreradical view has been expressed by theSupreme Court. In Jacobson vs Massachusetts,the Supreme Court of the United States upheldthe view that without violating theConstitution, a person may be compelled, byforce, if need be against his will, against hispecuniary interests, and even against hisreligious or political convictions, to take hisplace in the ranks of the army of his country

and risk the chance of being shot down in itsdefense.

Principle of non-delegation of powers

Potestas delegata non delegari potest.

Power delegated cannot be further delegated. Thedelegate to whom a power is delegated has beenchosen precisely because trust is reposed on him and ifhe delegates further to another the power delegated tohim, that third person does not have the trust originallygiven to him. Moreover, the power delegatedconstitutes not only a right but also a duty to beperformed by the delegate through the use of his own

judgment and not through the judgment of another.

To sum up then, we find that the challenged measureis an invalid exercise of the police power because themethod employed to conserve the carabaos is notreasonably necessary to the purpose of the law and,worse, is unduly oppressive. Due process is violatedbecause the owner of the property confiscated isdenied the right to be heard in his defense and isimmediately condemned and punished. Theconferment on the administrative authorities of thepower to adjudge the guilt of the supposed offender isa clear encroachment on judicial functions andmilitates against the doctrine of separation of powers.

There is, finally, also an invalid delegation of legislativepowers to the officers mentioned therein who aregranted unlimited discretion in the distribution of the

properties arbitrarily taken. For these reasons, wehereby declare Executive Order No. 626-Aunconstitutional. (Ynot vs IAC)

Tests of Valid Delegation of Powers

It is valid only if

1. The law is complete in itself, settingforth therein the policy to be executed, carriedout, or implemented by the delegate; and

2. fixes a standard the limits of whichare sufficiently determinate and determinable to which the delegate must conform in theperformance of his function. A sufficient standardis one which defines legislative policy, marks itslimits, maps out its boundaries, and specifies thepublic agency to apply it. In idicates thecircumstance under which the legislativecommand is to be effected (Santiago v Comelec270 SCRA 106).

Tests to determine whether a given power hasbeen validly exercised

1. Is the power granted by the Constitution? If iis granted by the Constitution, the exercise ofsuch power is sustained.

2. If the power is not expressly implied by theConstitution, can the power sought to beexercised be reasonably inferred from, or is itnecessary to the proper exercise of, theexpress power granted to the departmenseeking to exercise said power? If it is, theexercise of the said power may be justifiedunder the doctrine of implication.

The doctrine of implication means that evenin the absence of an express conferment, theexercise of a given power may be justified orreasonable inferred from the express powealready granted, or that it may be necessary tothe proper exercise of the express powegranted to the department seeking to exercisethe said power.

3. If the power sought to be exercised is notgranted by the Constitution, either expressly oimpliedly, can its exercise be justified asinherent or incidental? If they are, the exercise

of said power may be sustained.-



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4. Has the power in question been performed inaccordance with the rules laid down by theConstitution? A good example is thecompliance required under Section 21, ArticleVI of the 1987 Constitution which provides thatthe power to conduct legislative investigation,although implied from the power of legislation,is now subject to the following restraints:

a) the legislative inquiry must be in aid oflegislation;

b) the conduct of investigation must bestrictly in accordance with the rules ofprocedure that must have beenpublished in advance for theinformation and protection of thewitnesses;

c) the rights of persons appearing in oraffected by such inquiries shall berespected,

Definition/Basis/Applicability

Standards to justify delegation of powers

Instances of Permissible Delegation

Can legislative power be delegated?

Legislative powers can be delegated in the followingcases:

1. When authorized by the Constitutions such asin granting emergency powers to the President,or when Congress grants law tariff powers tothe President;

2. Legislative powers may be delegated to local

government:

2.1 police power has been expressly delegated by the legislature to the local law- makingbodies

2.2 eminent domain

3. Legislative powers may be delegated to thepeople at large through referendum or plebiscite

4. Legislative powers may be delegated toadministrative bodies ( POEA, LTFRB, CAB,OWWA, BOI, BMI, etc.)

State Policies

Social Justice *

Social justice is neither communism, nor despotismnor atomism, nor anarchy, but the humanization oflaws and the equalization of social and economic forcesof the State so that justice in its rational andobjectively secular conception may at least beapproximated. Social justice means the promotion owelfare of all the people, the adoption by thegovernment of measures calculated to ensure theeconomic stability of all component elements osociety, through the maintenance of a proper economicand social equilibrium in the interrelations of themembers of the community, constitutionally, throughthe adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powersunderlying the existence of all governments on thetime-honored principle ofsolus populi est suprema lex.

*old meaning by Sen. Jose P. Laurel, Calalang vsWilliams

Expanded meaning of Social Justice

The new meaning of social justice embraces all phase

of development not only in terms of equitable diffusionnot only of wealth but also of political powerHowever, social justice does not champion division ofproperty or equality of economic status. What the1987 Constitution guarantees are equality oopportunity, equality of political rights, equality beforethe law, equality between values given and received,equitable sharing of the social and material goods onthe basis of efforts exerted in their production. It is acommand to advise social measures; but it cannot beused to trample upon the rights of others.

Social justice, therefore, must be founded on therecognition of the interdependence among diverseunits of a society and of the protection that should be

equally and evenly extended to all groups as acombined force in our social and economic lifeconsistent with the fundamental and paramountobjective of the State of promoting health, comfortand quiet of all persons, and of bringing about thegreatest good to the greatest number.

Under the 1987 constitution, the provisions thapromote social justice, in its new concept are asfollows:

Art. 2, Sec. 9 the State shall promote a justand dynamic social order that will ensure theprosperity and independence of the nation and

free the people from poverty through policiesthat provide adequate social services, promote



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full employment, a rising standard of living,and an improved quality of life for all.

Art. 2, Sec. 10 The State shall promote socialjustice in all phases of national development

Art. 2, Sec. 11 The State values the dignity ofevery human person and guarantees fullrespect for human rights.

Art. 2, Sec. 18. The State affirms labor as aprimary social economic force. It shall protectthe rights of workers and promote theirwelfare.

Art. 2, Sec. 21 The State shall promote acomprehensive rural development and agrarianreform.

Honesty and Integrity in Public Service

Sections 27 and 28 of the 1987 Constitution putemphasis to three basic principles concerning publicservice, as follows:

1. Public office is a public trust. Under thisprinciple, public officials in all ladders of ourgovernment should always remember that theywere merely entrusted by the people toperform the duties and responsibilities of theiroffices for a fixed period of time. They werechosen to serve the people, not to cheat them.Their offices are not their own, nor can they betreated as private properties which they canmanage or dispose of at their whim andcaprice.

2. Our government is a government of lawsand not of men. The law should be appliedequally without fear or favor.

3. Transparency in public service. Becausepublic officials are mere trustees of the people,they should observe loyalty and fidelity to thepeople who have entrusted to them specificduties for a specific tenure. The lessons thatwe have learned during the twenty years ofmartial rule teach us that graft and corruption,abuse of power, can bring about chaos andrevolution.

Free Competition

Free competition in the industry may also provide the

answer to a much-desired improvement in the qualityand delivery of this type of public utility, to improvedtechnology, fast and handy mobile service, and

reduced user dissatisfaction. After all, neither PLDT noany other public utility has a constitutional right to amonopoly position in view of the Constitutionaproscription that no franchise certificate oauthorization shall be exclusive in character or shallast longer than fifty (50) years (ibid., Section 11Article XIV, Section 5, 1973 Constitution; Article XIVSection 8, 1935 Constitution). Additionally, the State isempowered to decide whether public interest demandsthat monopolies be regulated or prohibited (1987Constitution, Article XII, Section 19).

Legislative, Executive and Judicial Powers

What is vested in Congress?

The legislative power is vested in Congress of thePhilippines which shall consist of a Senate and Houseof Representatives, except to the extent reserved tothe people by provision on initiative and referendumHowever, the Congress also performs powers of nonlegislative nature such as the following:

1. Power to confirm presidential appointments;

2. Power of impeachment;

a) in case the verified complaint oresolution of impeachment is filed by atleast one-third of all the Members ofthe House, the same shall constitutethe Articles of Impeachment;

b) the Senate shall have the sole power totry and decide all cases of impeachment.

3. Power to declare the existence of a state owar.

4. Power to concur or confirm an amnestygranted by the President.

5. Power to canvass the votes based on thereturn of election for President and VicePresident

6. Power to propose amendment or revision of theConstitution upon a vote of three-fourths of althe members of Congress.

7. Power to ratify treaties granted to Senate.

Other examples of powers of Congress

Specific legislative powers

1. Power of appropriation



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2. Power of taxation3. Power of expropriation

Implied Powers

1. Power to punish or declare a person incontempt during or in the course of legislativeinvestigation

2. Power to issue summons and notices inconnection with matters subject of its investigation orinquiry

Inherent powers

1. Power to determine the rules of itsproceedings.

Immunities of the members of Congress

In all offenses punishable by not more than six years ofimprisonment, Members of the Congress have thefollowing immunities

1. They shall be privileged from arrest while

Congress is in session. This is to ensure theirattendance of the session so that theconstituents will enjoy representation.

2. They shall not be questioned nor held liable inany other place for any speech or debate in theCongress or in any committee thereof. This isto enable them to express his views on mattersof public interest without fear of accountability.

Prohibitions and restrictions on the power ofCongress

Prohibitions (imposed by Constitution)

1. No ex post facto law shall be passed

2. No bill of attainder shall be passed

3. No law impairing the obligation of contractsshall be passed

4. No law granting a title of royalty or nobilityshall be passed

5. No law shall be passed increasing the appellatejurisdiction of the Supreme Court as providedin this Constitution without its advice andconcurrence

6. No law granting tax exemption shall be passedwithout the concurrence of a majority of all theMembers of Congress

Restrictions (imposed by Constitution, law andjurisprudence)

1. No money shall be paid out of the Treasuryexcept in pursuance of an appropriation madeby law.

2. No public money or property shall beappropriated, applied, paid, or employeddirectly or indirectly for the use, benefit, orsupport of any sect, church, denominationsectarian institution, or system of religion, or ofany priest, preacher, minister, or othereligious teacher, or dignitary except whenthey are assigned to the armed forces, or toany penal institution, or governmentorphanage or leprosarium

3. All money collected on any tax levied for aspecial purpose shall be treated as a speciafund and paid out for such special purpose

only.

4. The rule of taxation shall be uniform andequitable.

5. All appropriate, revenue or tariff billsauthorizing the increase of public debt, bills oflocal application and private bills shall originateexclusively in the House of Representativesbut the Senate may propose or concur withamendments.

6. The Congress may not increase theappropriations recommended by the Presidentfor the operation of the Government as

specified in the budget. The form, content, andmanner of preparation of budget shall beprescribed by law.

7. No provision or enactment shall be embracedin the general appropriations bill unless itrelates specifically to some particulaappropriation therein. Any such provision oenactment shall be limited in its operations tothe appropriation to which it relates.

8. The procedure in approving appropriations fothe Congress shall strictly follow the procedurefor approving appropriations for othe

departments and agencies.



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9. A special appropriations bill shall specify thepurpose for which it is intended and shall besupported by funds actually available ascertified by the National Treasurer, or to beraised by a corresponding revenue proposaltherein.

10. Two-thirds vote of both Houses in joint sessionis needed to declare existence of a state ofwar.

11. Congress may, by law, authorize the Presidentto fix and impose tariff rules, etc.

12. Charitable institutions shall be exempt fromtaxation.

13. Tax exemption needs concurrence of amajority of the members of Congress.

Inhibitions and Disqualifications

There are three inhibitions and disqualifications for aMember of Congress:

1. During their term of office, they cannotpersonally appear as counsel in a) any court ofjustice; b) or before the Electoral Tribunal; orbefore quasi-judicial and other administrativebodies.

2. During their term of office, they cannot,directly or indirectly, be interested financiallya) in any contract with, b) or in any franchise orspecial privilege granted by, the government,or in any subdivision, agency or instrumentalitythereof, including any government-owned orcontrolled corporation.

3. During their term of office, they shall not

intervene in any matter before any office of theGovernment for their pecuniary benefit orwhere they may be called upon to act onaccount of their office.

Instances when Congress meets even withoutthe Presidents call

1. when Congress meets to canvass votes and thereturns of election of the President and VicePresident

2. When Congress convenes in accordance withits rules to enact a law calling for a special

election to elect a President and a VicePresident

3. When the House of Representatives acts on averified complaint for impeachment, oindorses the same, and the Senatesubsequently tries and decides on the Articlesof Impeachment indorsed by the House oRepresentatives

4. Following a proclamation of martial law osuspension of the writ of habeas corpus, andtwenty-four hours following such proclamationor suspension, Congress shall convene inaccordance with its rules without a need of acall.

Enrolled bill theory

The enrolled bill is conclusive upon the courts asregards the tenor of the measure passed by Congressand approved by the President. If a mistake is in factmade in the printing of the bill before it was certifiedby the officers of Congress and approved by the ChiefExecutive, the remedy is by amendment or correctivelegislation, not by judicial decree.

In case of conflict between an enrolled bill and a

journal, an enrolled bill shall prevail over thejournal. The reason for the rule is to avoid a situationwhere the courts will be inquiring into the conduct ofthe legislature which is a co-equal department, or to gobehind the enrolled bills, instead of giving it duerespect.

When does a bill become a law?

A bill becomes a law in any of the following manner:

1. When, after the same is presented to thePresident, the latter signs it;

2. When the President vetoes the said bill but the

said veto is overridden by two-thirds vote of althe members of the House;

3. When the President does not act upon the bilwithin thirty days after it is presented to him.

Can a bill be partially vetoed by the President?

As a rule, the President must either approve odisapprove a bill except in the case of appropriation,revenue or tariff bills. By express Constitutionaprovision, the veto of any particular item or items in anappropriation, revenue or tariff bill shall not affect theitem or items to which the President does not object.

New Definition of Judicial Power



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Section 1, Article VIII. The judicial power shall bevested in one Supreme Court and in such lower courtsas may be established by law.

The first part of judicial power (to settle actualcontroversies involving rights which are legallydemandable and enforceable) is what is known as thetraditional concept of judicial power. The second partof judicial power (to determine whether or not therehas been grave abuse of discretion amounting to lackor excess or jurisdiction on the part of any branch orinstrumentality of the Government) is what is nowknown and referred to as the expanded jurisdiction ofthe Supreme Court.

Powers of the Supreme Court

The Supreme Court, under Section 5 of the 1987Constitution, has the following powers

1. Jurisdiction of the SC over cases

Original Jurisdiction

The SC shall have the power to exerciseoriginal jurisdiction over cases affectingambassadors, other public ministers, and overpetitions for certiorari, prohibition, mandamus,quo warranto, and habeas corpus.

Appellate Jurisdiction

The SC shall have to power to review, revise,reverse, modify, or affirm on appeal orcertiorari, as the law or the Rules of Court mayprovide, final judgments and orders of lowercourts in:

a) all cases in which the constitutionality of

a treaty, international agreement,executive agreement or law is inquestion

b) all cases involving the legality of any tax,impost, assessment, or toll, or anypenalty imposed in relation thereto

c) All cases in which the jurisdiction of anylower court is in issue

d) all criminal cases in which the penaltyimposed is reclusion perpetua or higher

e) all cases in which only an error orquestion of law is involved

2. Auxillary Administrative Powers of theSupreme Court

a) Assign temporarily judges of lower courtsto other stations as public interest mayrequire. Such assignment shall notexceed six months without the consentof the judge concerned.

b) Order a change of venue or place of trialto avoid a miscarriage of justice.

c) Promulgate rules concerning theprotection and enforcement ofconstitutional rights, pleading, practice,and procedure in all courts, theadmission to the practice of law, the IBP,and legal assistance to theunderprivileged

d) Appoint all officials and employees of thejudiciary in accordance with the CivilService Law.

Requisites of judicial review or inquiry

The courts are without jurisdiction on matters, casesor questions not brought to their determination. Evenif such matters, cases or questions are brought to theidetermination but such questions are political innature, which under the Constitution, are to be decidedby the people in their sovereign capacity, or in regardto which full discretionary authority has beendelegated to the legislative or branch of thegovernment, the courts will not assume jurisdiction onsaid cases.

For a constitutional question to be heard and decidedby our courts, the following requisites must becomplied with:

1. There must be actual case or controversy

2. The question of constitutionality must be raisedby the proper party

3. The question of constitutionality must be raisedat the earliest possible time

4. The decision of the constitutional question musbe necessary to the determination of the caseitself.


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