Constitutional Law I Midterm Exam Review Guide Question: #1 Distinguish between De Jure and De Facto Government.

#2 Define the Doctrine of State Immunity. What are its bases? #3 Distinguish between Justiciable and Political Question. #4
Define the Principle of Checks and Balances. How does each branch of government checks its other co-equal branches and vice versa?

#5 What does potestas delegata non delegari potest mean? Explain. #6 #7

Can the Senate entirely replace a revenue bill initiated in the House of Representatives? Can the Senate enrol a revenue bill initiated in the House of Representatives without passing it through the Second and Third readings? Can two bills be the subject of a Bicameral Conference Committee, considering that the bill from one house had not been passed by the other and vice versa?

#8

#9 Can the Current Senate adopt the Rules of Procedure in Investigation in Aid
of Legislation created and published by the former Congress?

#10 Distinguish between Initiative and Referendum.

#11 Distinguish Congressional Inquiry from Congressional Question Hour. #12 Define Executive Privilege. Is Implied Claim of Executive Privilege Valid? #13 Can the current practice of the Judicial and Bar Council (JBC) to perform its
functions with eight (8) members, two (2) of whom are members of Congress, be upheld? In the event that it cannot be upheld, should the actions made by the JBC be declared inoperative as if it has not been passed at all?

Answers: #1 Distinguish between De Jure and De Facto Government.

Topic Chapter 3: The Concept of the State Suggested Answer: De Jure Government may be distinguished from De Facto Government as follows: The former has rightful title but no power or control, either because this has been withdrawn from it or because it has not yet actually entered into the exercise thereof, while the latter, is a government of fact, that is, it actually exercises power or control but without legal title.

#2 Define the Doctrine of State Immunity. What are its bases?

Topic Chapter 4: The Doctrine of State Immunity Suggested Answers: (1) The Doctrine of State Immunity, as provided by the law, declares that the state may not be sued without its consent. This doctrine recognizes the sovereign character of the state. (2) The bases of Doctrine of State Immunity are as follows:

a. Indiscriminate suits against the state challenges its supposed infallibility. b. Indiscriminate suits divert the time and resources of the State from the more pressing matters.

#3 Distinguish between Justiciable and Political Question.

Topic Chapter 6: Separation of Powers Suggested Answer: Justiciable Question may be distinguished from Political Question as follows: 1. The former questions the validity or legality of a particular measure or contested act, while the latter, questions its wisdom, efficacy or practicability. 2. More specifically, the former implies a given right, legally demandable and enforceable, an act or omission violative of such right, and a remedy granted and sanctioned by law, for said breach of right. It is a question which does not involve an encroachment upon the legislative or executive power. While the latter, is one which, is to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government; and 3. Since the former is a question that does not involve an encroachment upon the legislative or executive power, it is one which is proper to be examined or decided in courts of justice. While in the latter, since it is one which involves full discretionary authority delegated to the legislative and executive branch, the judicial department have no jurisdiction over these matters in order to avoid encroachment upon its other co-equal branch of government.

#4

Define the Principle of Checks and Balances. How does each branch of government checks its other co-equal branches and vice versa?

Topic Chapter 6: Separation of Powers Suggested Answers: (1) Under the law, there is no absolute separation among the three principal organs of government. The law, also, mandates a considerable amount of encroachment or checking by one department in the affairs of others. It is also observed along with the doctrine of separation of powers to make the presidential system work. (2) The Legislative, Executive, and Judicial Department check its other co-equal branch and vice versa as follows: a. The Legislative Department checks the president through the power vested in it to: override the veto of the president, reject appointments of president, determine the salaries of the president and vice-president, impeach the president and revoke the proclamation of martial law and suspension of the writ of habeas corpus. It checks the judiciary through the power vested in it to: define, prescribe, and apportion the jurisdiction of the various courts, prescribe the qualifications of judges of lower courts, amend or revoke decisions of the courts by enactment of new law, determine the salaries of the members of the Supreme Court and judges of lower courts, and impeach members of the Supreme Court. b. The Executive Department checks the congress through the power vested in it to veto or disapprove bills enacted by congress. It checks the judiciary through the power vested in it to modify or set aside judgments of courts (Pardoning Power) c. The Judicial Department checks the president and congress through the power vested in it to declare measures or executive acts unconstitutional and determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of Congress or the President.

#5 What does potestas delegata non delegari potest mean? Explain.

Topic Chapter 7: Delegation of Powers Suggested Answer: The rule potestas delegata non delegari potest in English means what has been delegated cannot be delegated. It is based upon the ethical principle that such delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another. A further delegation of such power, unless permitted by the sovereign power, would constitute a negation of this duty in violation of the trust reposed in the delegate mandated to discharge it directly.

#6

Can the Senate entirely replace a revenue bill initiated in the House of Representatives?

Topic Chapter 9: Powers of the Congress; Article VI Section 24: Origin of Bills; Tolentino vs. Secretary of Finance Suggested Answer: Yes. The Senate have a power to entirely replace a revenue bill initiated in the House of Representatives. According to a Supreme Court decision, after a revenue bill is passed and sent over to it by the House, the Senate can pass its own version on the same subject matter. The Senate is allowed much leeway in the exercise of its power to propose or concur with amendments to the bills initiated by the House of Representatives. It is also accepted practice for the Senate to introduce what is known as an amendment by substitution, which may entirely replace the bill initiated in the House of Representatives.

#7

Can the Senate enrol a revenue bill initiated in the House of Representatives without passing it through the Second and Third readings?

Topic Chapter 9: Powers of the Congress; Article VI Section 26 (2): Formalities; Tolentino vs. Secretary of Finance Suggested Answer: Yes. The Senate can enrol a revenue bill initiated in the House of Representatives without passing it through the Second and Third Reading. The law provides that No bill passed by either House shall become a law unless it has passed three readings on separated days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Therefore, provided that, the president issued a certification as to the necessity of the immediate enactment of a law to meet a public calamity or emergency, the Senate may can enrol a revenue bill without passing it through the Second and Third readings.

#8

Can two bills be the subject of a Bicameral Conference Committee, considering that the bill from one house had not been passed by the other and vice versa?

Topic Chapter 9: Powers of the Congress; Tolentino vs. Secretary of Finance Suggested Answer: Yes. Two bills can be the subject of a Bicameral Conference Committee, considering that the bill from one house had not been passed by the other and vice versa. According to Legislative Precedent, creating a Bicameral Conference Committee in order to consider two bills passed by House of Representatives and Senate which have not been passed by the other and vice versa, is precisely the reason why the

Committee has been created. For if a house bill had been approved by the Senate there would have been no need of a conference.

#9 Can the Current Senate adopt the Rules of Procedure in Investigation in Aid
of Legislation created and published by the former Congress? Topic Chapter 9: Powers of the Congress; Article VI Section 21: Power of Congress to Investigate in Aid of Legislation; Garcillano vs. House of Representatives Suggested Answer: No. The Senate cannot adopt the Rules of Procedure in Investigation in Aid of Legislation created and published by the former Congress. The law provides that the Senate or House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. In connection to that, according to a Supreme Court decision, the Rules of Procedure must be republished by the Senate after every expiry of twelve senators. Therefore, the Senate cannot adopt the Rules of Procedure published by the former Congress because the law obliges the Senate to republish the Rules of Procedure after every expiry of the term of twelve senators.

#10 Distinguish between Initiative and Referendum.

Topic Chapter 9: Powers of the Congress Suggested Answer: Initiative may be distinguished from Referendum as follows: The former is a reserved power of the people to directly propose and enact laws at polls called for the purpose independently of Congress or of a local legislative body, while the latter, is a process by which any act or law or part thereof passed by Congress or by a local legislative body is submitted to the people for their approval or disapproval.

*Plebiscite a binding or nonbinding referendum on a proposed law, constitutional amendment, or significant public issue.

#11 Distinguish Congressional Inquiry from Congressional Question Hour.

Topic Chapter 9: Powers of the Congress; Article VI Section 21: Power of Congress to Investigate in Aid of Legislation & Article VI Section 22: Power of Congress to conduct a question hour; Ermita vs. Senate of the Philippines Suggested Answer: Congressional Inquiry may be distinguished from Congressional Question Hour as follows: 1. The former is the power of Congress to conduct inquiries in aid of legislation provided in Article VI Section 21 of the Constitution, while in the latter, it is the power of Congress to conduct a question hour provided in Article VI Section 22 of the Constitution. 2. The goal in the former is to elicit information that may be used in aid of legislation, while in the latter, it is merely to obtain information in pursuit of Congress oversight function. 3. The former is co-extensive with the congress power to legislate, while in the latter, it does not relate to any proposed specific legislation; and 4. Since the former is co-extensive with the Congress power to legislate, then, by this very nature it is mandatory. Congress has the power to compel the appearance of executive officials, while in the latter, since it does not relate to any proposed specific legislation of Congress, then, it is discretionary. The heads of the departments may be barred from appearing before either House without prior permission from the President.

#12 Define Executive Privilege. Is Implied Claim of Executive Privilege Valid?

Topic Ermita vs. Senate of the Philippines

Suggested Answers: (1) According to a Supreme Court Decision, Executive Privilege is the right of the President to withhold information from Congress, the courts, and the public. It exempts the executive from disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations, and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive domestic decisional and policy making functions, such as, but not limited to Presidential conversations, correspondences, and discussion in closed-door Cabinet meetings. (2) No. Implied Claim of Executive Privilege is not valid. According to a Supreme Court Decision, in order for the claim of an Executive Privilege to be valid, the reason for claim must be expressed in precise and certain words but, Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. In addition to that, Executive Privilege is recognized only in relation to certain types of information of a sensitive character. Therefore, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made.

#13 Can the current practice of the Judicial and Bar Council (JBC) to perform its
functions with eight (8) members, two (2) of whom are members of Congress, be upheld? In the event that it cannot be upheld, should the actions made by the JBC be declared inoperative as if it has not been passed at all? Topic Chavez vs. Judicial and Bar Council Suggested Answers: (1) No. The current practice of JBC of having eight (8) members, two (2) of whom are members of Congress, cannot be upheld.

According to a Supreme Court decision, the Constitutional provision that the Judicial and Bar Council (JBC) is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector is clear and unambiguous. The phrase a representative of Congress is unequivocal and leaves no room for any other construction. It is indicative of what the members of the Constitutional Commission had in mind, that is, Congress may designate only one (1) representative to the JBC. The unmistakable tenor of the aforementioned provision was to treat each ex-officio members as representing one co-equal branch of government. Thus, JBC was designed to have seven (7) voting members with the three ex-officio members having equal say in the choice of judicial nominees. Therefore, to allow legislature to have more quantitative influence in the JBC by more than one voice speak would negate the principle of equality among the three branches of government which is enshrined in the Constitution. In the case at bar, the current practice of JBC of having eight (8) members, two (2) of whom are members of Congress, cannot be upheld because it is Unconstitutional. It violates the letter and intent of the provision of the law which is to enable the three branches of the government (Legislative, Judiciary, and Executive) to have an equal say in the choice of judicial nominees. (2) No. Even if the current practice of the Judicial and Bar Council (JBC) would not be upheld, it does not follow that the actions made by the JBC should be declared inoperative as if it has not been passed at all. According to a Supreme Court decision, the general rule that an unconstitutional act is not a law is not absolute and provides for exception. An exception is the doctrine of operative facts. Under the doctrine of operative facts, actions previous to the declaration of unconstitutionality are legally recognized. They are not nullified. This doctrine is applied when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. In the case at bar, the doctrine of operative facts is applicable since a declaration of unconstitutionality on the current practice of JBC will impose an undue burden to the Government and to the public as it will cause delay in the selection of the candidates for nomination to the Chief Executive.

Therefore, in the event that the current practice of Judicial and Bar Council (JBC) would not be upheld, the actions made by the JBC may be held valid.