Preliminary Examination For Constitutional Law 1 E.H.

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Memory Aid for Constitutional Law I

Constitutional Law The study of the maintenance of the proper balance between authority as represented by the three inherent powers of the State and liberty as guaranteed by the Bill of Rights Political Law It is the branch of public law which deals with the organization and obligations of the various instrumental organs of the state and defines the relationship of the state and the inhabitants of its territory.
THREE INHERENT POWERS OF THE STATE 1. 2. 3. Police Power Power of Eminent Domain Power of Taxation

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

Pervasive Power

Philippine Constitution According to Cooley:

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

Conventional Constitution - An enacted constitution, formally struck off at a definite time and place following a conscious or deliberate effort taken by a constituent body or ruler. Cumulative Constitution - The result of political evolution, not inaugurated at any specific time but changing by accretion rather than by any systematic method. Rigid Constitution - One that can be amended only by a formal and usually difficult process Flexible Constitution - One that can be changed by ordinary legislation
The Philippine Constitution is written, conventional and rigid Advantage It has the capacity to withstand capricious changes of those who are in power. Disadvantage If there is a legitimate need, the Constitution will impede progress The Constitution cannot be amended by the exigent passage of a law by Congress, because the Constitution is superior to any and all laws and laws passed by Congress is inferior to the Constitution

According to Justice Malcolm:

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

PURPOSE OF THE CONSTITUTION:

a. To prescribe the permanent framework of a system of government b. To assign to the several departments their respective powers and functions c. To outline the basic principles upon which the government or state must govern The Constitution merely recognizes and protects these rights and does not bring them into existence
No act shall be valid, however noble its intentions, if it conflicts with the Constitution

ESSENTIAL QUALITIES OF A WRITTEN CONSTITUTION BROAD

So it can provide for the organization of the entire government and covers all persons and things within the territory of the State and so it could also embody the past, reflect the present and to anticipate the future. It must be comprehensive enough to provide for every contingency. Provides for the basic principle leaving some details susceptible for the legislation as may be enacted by Congress. To avoid ambiguity in its provisions that may result to confusion and divisiveness among the people.

Why do we have to study the Philippine Constitution To know how our delegates are acting whether or not they are acting in accordance to our Constitution The study of Constitution is mandatory pursuant to art.14, sec.3, par.1 of the 1987 Constitution
CLASSIFICATION OF CONSTITUTIONS

BRIEF

DEFINITE/CLEAR

Written Constitution - Its precepts are embodied in one document or set of documents.
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ESSENTIAL PARTS OF A WRITTEN CONSTITUTION

Constitution of Liberty Bill of Rights: Sets forth the civil and political rights of the people

Preliminary Examination For Constitutional Law 1 E.H. 401

Constitution of Government Refers to the part of the Constitution which provides for the framework for the organization of the government, sets forth the powers of the government: a. Article 6: Legislative Branch b. Article 7: Executive Branch c. Article 8: Judiciary d. Article 9: Various constitutional commission Constitution of Sovereignty Consists of the provisions pointing out the mode or procedure in accordance with which formal changes in the fundamental law may be brought about.
RULES IN CONSTITUTIONAL CONSTRUCTION

PROCESS OF AMENDING or REVISING THE CONSTITUTION

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

Stages of Amendment or Revision 1. Proposal - It is at this stage that the proposed amendments or revisions are being formulated. 2. Ratification - It is at this stage the proposed amendment or revision would be submitted to the people for approval or ratification.
PROPOSAL STAGE

Who can Propose Amendments or Revisions?

CONGRESS votes of all its members The HOR and Senate voting separately Congress must transform itself as a Constituent Assembly: The reason for this is because its primary task now is to propose amendments or revisions to the Constitution By transforming itself into a ConAs, Congress in effect would propose amendments not in the exercise of its ordinary legislative function but it is performing special powers to propose the change in fundamental law of the land. Composed of members of Congress CONSTITUTIONAL CONVENTION

Verbal Legis
It means that in interpreting the provisions in the Constitution that the words used there in must be interpreted in their ordinary or literal sense except where technical terms are used.

Ratio Legis Et Anima If there are ambiguities in interpreting the provisions of the 1987 Constitution then we must delve into the intent of the lawmakers behind its enactment.
(Francisco vs House of Representatives)

Ut Magis Valiat Cuam Periat The provisions of the Constitution which deals with the same subject matter must be construed or interpreted altogether so as to give meaning and effect to the same provisions.
(Bayan vs Zamora)

This body is composed of members elected by the people particularly for the Constitutional Convention Who can call a Constitutional Convention?
(Article 17, Sec. 3)

Self-Sustaining/Executing Provisions The Constitution does not need any statutory implementation The Constitution does need to enabling laws for it to be effective AMENDMENT or REVISION

a. Congress A Constitutional Convention may called by congress upon 2/3 of all its members; the House of Representatives and Senate voting separately. b. Delegate to the People The congress may delegate the question of calling a Constitutional Convention to the people by a majority of vote.
Can Congress while calling a Constitutional Convention pass another law prescribing how ConCon works by majority vote?

Amendments These are isolated changes in some provision/s in the Constitution and this can be done by adding, subtracting or deleting a portion of the provision therein. Piecemeal change Revision This is the complete rewriting or overhaul of the Constitution. Also refers to isolated changes in the Constitution that would drastically alter the basic principles underlining the Constitution.

Yes, this is allowed:

According to the Supreme Court, any such later enactment done by Congress by a simple majority vote is valid since what is important is that the creation of the Constitutional Convention is done in accordance with what is prescribed in the 1987 Constitution furthermore, the following enactments done by Congress are only suppletory laws (Imbong vs COMELEC)
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Preliminary Examination For Constitutional Law 1 E.H. 401

How do we regard the Constitutional Convention as compared to the other body of government? According to Frantz vs. Aurtry:
It is independent and coequal with the other body of government as along as it confines itself within the sphere of its jurisdiction

RATIFICATION STAGE
Article 17, Section 4

Ratification must be held not earlier than 60 days and not later than 90 days. When will the period start: a. Congress or Constitutional Convention As of the date of approval for the proposed amendment. b. For Peoples Initiative The period will start from the day the proposed amendment is found sufficient in form or substance. In this stage the proposed amendments or revision would be voted upon by the people in a plebiscite called for that purpose. May ratification be held simultaneously with a general election? Yes (Gonzales vs. COMELEC)
According to the Supreme Court, in as much as the law or the Constitution mentions only of an election without distinction as to what kind of election is that, then could not make a distinction Rule as of now, that any ratification may be validly done simultaneously with a general election

When is the best time to call for a Constitutional Convention? For revision or complete overhaul of the Constitution At the end of the day, the matter of calling a constitutional assembly is addressed to the sound discretion of congress whether or not the changes proposed are for revision or amendment only. When is it proper to call for a Constituent Assembly? For amendments and piece-meal changes in the constitution Can congress call for a Constitutional Convention and at the same time propose amendments to the Constitution? Yes, ruling of the Supreme Court:
While it is not practicable for congress to call a constitutional convention and at the same time propose amendments to the constitutional body itself, there is nothing in law which would prevent the congress from doing both
(Gonzales vs. COMELEC)

May there be a piece-meal submission of proposed amendments for ratification to the people? No (Tolentino vs. COMELEC)
There can never be a piece-meal submission of amendments for ratification by the people

PEOPLES INITIATIVE
(Article 17, Section 2 of the 1987 Constitution)

Limitations of Peoples Initiative: The people initiative would only apply to amendments and never to revisions. The petition to amend the constitution must be supported by at least 12% of the registered voters of the Philippines provided that each and every administrative district is represented by at least 3% of the registered voters therein. The petition must be signed by the people themselves and cannot be done on their behalf. The proposed amendatory provision must be incorporated on the petition itself. The system on peoples initiative cannot be exercised within 5 years following the adoption or ratification of the 1987 Constitution. It cannot be availed of more than once every 5 years following thereafter. There has to be a law to govern the system on peoples initiative. Congress has to provide the regulations on the implementation of this system. The system of peoples initiative can only be used for amendments and never for revision.
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PROPOSAL vs. REFERENDUM (Sanidad vs. COMELEC) Referendum This is the process of getting the consensus of the public in a particular public issue. Consultative in nature Plebiscite This is associated to the process of approving or ratifying the proposed amendments or revision to the Constitution. It has something to do with the approval or disapproval of amendments or revision to the Constitution for a particular law.

Can the Supreme Court or any Courts of Law review the amendatory process or the observance thereof? Or is this issue a Political Question?
The current rule is that courts of law particularly the Supreme Court can now review the amendatory process to determine whether or not the amendatory process as enshrined in Article 17 of the Constitution is properly observed. It is no longer considered a political question

Preliminary Examination For Constitutional Law 1 E.H. 401

The Supreme Court has jurisdiction to review the amendatory process for amendments or revision however the wisdom of the proposed amendments remains as a political question

POWER of JUDICIAL REVIEW

Judicial Review - If the question deals with the legality of an act then this may not be considered a purely political question and so this can reviewed by courts of law. Who can exercise Judicial Review?
Article 8, Section 5 , paragraph 2 (a):
- The Supreme Court including the Lower Courts has jurisdiction on all cases in which constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation is in question.

Power of Judicial Review - Refers to the power of courts of law or courts of justice to check the validity of legislative or executive acts in light to its conformity to the provisions of the Constitution. According to Article 8, Section 1 (2) The power of courts of justice to settle actual controversies involving rights which are legally enforceable and demandable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction of any branch or instrumentality of the government According to Article 8, Section 1 (1) The courts of law can now review the acts of the legislative or executive branch to determine whether or not these branches acted with grave abuse of discretion amounting to lack or excess of jurisdiction.

This means that lower courts can validly review on the constitutionality of a law, however lower court decisions may still be appealed at the Supreme Court. Appeals - This is a continuation of the proceeding that happened in the court below. Certiorari - This is an independent civil action. Quasi-Judicial Body or the Ombudsman - Cannot validly review or tackle questions regarding the constitutionality or validity of a law.
(Serrano vs. Gallant Maritime) DECLARATORY RELIEF
(Pursuant to Section 3, Rule 63, of the 1997 Rules of Civil Procedure)

SUPREMACY of THE CONSTITUTION (Article 8, Section 4 (2), of the 1987 Constitution) Vests upon the Supreme Court the power to decide all cases involving the constitutionality of a treaty, international or executive agreement or law which must be decided by the Supreme Court En Banc including the constitutionality application and operation of presidential decrees, proclamation, orders, ordinances, instructions and other regulations.
The Supreme Court is not superior to other branches of the government since it is only exercising its duty as mandated by the provisions of the Constitution. This is considered an indication of the supremacy of the Constitution.

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

It is the Office of the Solicitor General which would defend the interest of the state since they are ones entrusted to act as the counsel for the state. Must be filed only at Regional Trial Court, this cannot be filed directly to the Supreme Court of Court of Appeals If questioning the constitutionality of National
Laws - There should be a notice to the OSG

JUDICIAL REVIEW vs. POLITICAL QUESTION

Political Question Those questions which under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislature or executive branch of government. It is concerned with issues dependent upon the wisdom, not the legality of a particular measure. (Taada vs. Cuenco)
If the question pertains to the wisdom of an act If it is a purely political question then it is beyond the arbiter of judicial review
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If questioning the constitutionality of Local or

Provincial, Municipal or City Ordinance - There should be a notice sent to the provincial, municipal or city attorney so they can be notified of the petition and they can participate in the proceedings.

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FUNCTIONS of POWER OF JUDICIAL REVIEW 1. Checking Function

General Rule: In any case that is moot and academic

should be dismissed outright.

Exceptions:

To check the validity of the executive or legislative acts in light with the 1987 Constitution. (Osmea vs. COMELEC) The determination of whether the particular agency or department concerned has stayed within its own sphere of authority observing the constitutional limitations projected for actions within such sphere, or whether it has trespassed into the zone of immunity or privacy guaranteed to individuals by the Constitution. To enunciate or to promulgate sound doctrine to guide the bench and the bar.

2.

Legitimating/ Legitimizing Function

1. Grave and culpable violation of the Constitution. 2. Paramount Public Interest 3. If there is a need for formulation of controlling doctrines for the guidance of the bench and the bar. 4. Capable of repetition yet evading review. 5. Issue is ripe for adjudication.
Proper Party

3.

Symbolic Function

a. Citizen Suit - Petitioner assailing the citizen suit must have incurred injury directly caused by the questioned law. b. Taxpayer Suit - The petitioner must be able to establish that the questioned act involves illegal disbursement of public funds and that the illegal disbursement of public funds is done in connection with the taxing or spending power of Congress.
Otherwise, even if the act assailed of involves the illegal disbursement of public funds but there is no showing that it is directly connected with the taxing or spending power of congress then the action may be dismissed since it is not a proper action of taxpayer suit. (Kilosbayan vs. Morato)

Can courts of law automatically exercise Judicial Review? - No, since courts of law including the Supreme Court is considered passive instruments, in that they only function when their jurisdiction is invoked. - Any courts of law cannot exercise its power of Judicial Review without being invoked by the proper property.
ESSENTIAL REQUISITES for a JUDICIAL REVIEW

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

Legislator Suit - In this action, it is necessary that the member of congress must show that the questioned act infringes his legal right and prerogatives as a legislator.
(Francisco vs. HOR; Senate vs. Office of Executive Secretary)

This means that there should be an actual conflict or claims or conflicting claims of authority susceptible to adjudication before the courts of law can validly exercise its power of judicial review. Any hypothetical question will not satisfy the requirement.
Declaratory Relief
(Rule 63 of the 1997 of Rules of Civil Procedure)

d. Voter Suit - The petitioner assailing this legal standing must be able to establish that the questioned act or law infringes his right as a voter.
(Loida Nicolas-Lewis, et. al vs. COMELEC)

Exceptions: 1. The issue if the Transcendental Importance - The issue is accompanied with paramount or important public interest. 2. A matter of Public Right 3. The questioned act is instituted by way of Facial Challenge - Assailing the questioned statute as being vague or cannot be easily understood and that ordinary man will be confused as to the legal meaning of the statute.

If there is a contract, a will, a deed, a written instrument, a law or ordinance for that matter anybody may file a petition to have his right declared. Petitions for declaratory relief are not hypothetical questions since the contract, will, deed, written instrument, law or ordinance already exists, what the petitioner only wants is that his right be acknowledge in the particular subject matter.

Preliminary Examination For Constitutional Law 1 E.H. 401

Assailing that the questioned statute has a scope which is too broad such that the law would appear as valid to the petitioner but there is a good chance that it would be invalid if assailed by another person. This can only be instituted if the questioned law deals with freedom of speech or freedom of expression.

3. Any issue regarding the jurisdiction of the tribunal may also be raised at any time during the trial except after final judgment the petitioner is already barred due to the rule of estoppel.
The Issue must be determinative or the very Lis Mota of the case

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

As a Rule: Out of respect to the other branches of government, courts of law should refrain or avoid from ruling on the issue of validity or invalidity of a law.
EFFECT of DECLARATION of UNCONSTITUTIONALITY

Two Effects:
a. The Orthodox View

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

Does IBP have a legal standing in questioning a law since it is an organization who is supposedly for the upholding of the rule of law? No (IBP vs. Zamora)
The Supreme Court ruled that IBP has no legal standing to bring the petition on the pretext that it is an organization tasked to uphold the rule of law without establishing that any of its members suffered an injury directly caused by the questioned act or law

b.

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

What happens if the petition is assailed by a person without a legal standing? It is dismissed outright.
In the case of In Re: Saturnino Bermudez

- The petition was dismissed outright since Bermudez does not have any legal standing on the case for he is not claiming the position of the president which is the one he is questioning about.
Raised at Earliest Opportunity at a Forum with Jurisdiction

Any question dealing with the validity or invalidity of a law must be raised in the initiatory pleading as either a complaint or a petition; otherwise the question cannot be concerned anymore at the succeeding trial or by appeal. It must also be raised in a forum which has the competence to rule the validity or invalidity of a law. Exceptions: 1. Criminal Proceeding: - The question dealing with the validity or invalidity of law may be raised at the sound discretion of the judge. 2. Civil Proceeding: - Any question dealing with the validity or invalidity of a law may be raised at any stage of the proceeding if such issue is crucial or determinative of the case.

Which doctrine should we apply in a given case? Orthodox View This view is applied when the validity of a law is questioned immediately after it became effective. Operative Fact Doctrine This view will govern when the law is questioned of its validity only after some time or years after its passage or enactment, taking into consideration that the law has already taken effect which must be respected.
PARTIAL UNCONSTITUTIONALITY

Requisites: This will happen if there is a legislative intent to retain the valid provisions of the law and this is found on the Separability Clause found on the law itself. The remaining provisions must be able to independently stand on their own. Separability Clause - This provides that if any of the provision a law is declared invalid then the other remaining parts thereof shall remain valid. If the questioned provision is the heart and soul of the law or it is the be-all-and-end-all of a law then if it is declared unconstitutional, the result will be to invalidate the whole law.
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CONCEPT OF THE STATE

State A community of persons, more or less numerous, permanently occupying a fixed territory and possessed of an independent government organized for political ends to which the great body of inhabitants render habitual obedience. The legal concept Is an ideal person, invisible, intangible, immutable and existing only in contemplation of the law Nation Indicates a relation of birth or origin and implies a common race, usually characterized by community of language and customs. This is a racial or ethnic concept
There can be a nation, without a state. But there can never be a state, without a nation.

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

Government

The agency or instrumentality of through which the will of the State is formulated expressed and realized. It is the perfect agent of if it is acting within the sphere of its agency but a lawless usurper if its acting outside of its function. From viewpoint of International Law - No particular form of government is prescribed, provided only that the government is able to represent the State in its dealings with other States. From the viewpoint of our Constitution - It requires our government to be democratic and republican.
Function of the Government:

ESSENTIAL ELEMENTS OF THE STATE

1. 2. 3. 4.

People Territory Government Sovereignty

Constituent Function: - This constitutes the very bonds of society and therefore compulsory. Ministrant Function: - Those undertaken to advance the general interests of society.
To our Supreme Court, the distinction between constituent and ministrant functions is not relevant in our jurisdiction.

People

Refers to the inhabitants of the State It is generally agreed that they must be numerous enough to be self-sufficing and to defend themselves and small enough to be easily administered and sustained. The people must come from both sexes to be able to perpetuate themselves.
Territory

Parens Patriae - Guardian of the rights of the people

De Jure & De Facto Government

The fixed portion of the surface of the earth inhabited by the people of the State. It must neither be too big to be difficult to administer and defend nor too small as to be able to provide for the needs of the population. Components of Territory: Terrestrial Domain - the landmass Maritime & Fluvial Domain inland and external waters Aerial Domain the air space above the land and waters Archipelago Doctrine - This states that we must connect the outermost points of our archipelago with straight baseline and consider all the waters enclosed thereby as internal waters.

De Jure Government: - It has the rightful title but no power or control, either because this has been withdrawn from it or because it has not yet actually entered into the exercise thereof. De Facto Government: - It is considered government in fact, that is, it actually exercises or control but without legal title. Three Kinds of De Facto Government 1. The government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter. 2. That established as an independent government by the inhabitants of a country who rise in insurrection against the parent state.
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3. That which is established and maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is denominated as a government of paramount force. Administration The group of persons in whose hands the reins of the government are for the time being.
Administration is transitional whereas the government is permanent.

Act of State An act done by the sovereign power of a country, or by its delegate, within limits of the power vested in him. This cannot be questioned or made the subject of legal proceedings in a court of law. Example: An act done by the political departments of the government are not subject to judicial review.
Sovereignty is permanent, exclusive, comprehensive, absolute, indivisible, inalienable and imprescriptible. During a belligerent occupation, what the occupant took over was only the exercise of acts of sovereignty. There being no change of sovereignty during a belligerent occupation, the political laws of the land is only deemed suspended, subject to the revival upon the end of the occupation. Non-political laws are deemed to continue unless changed by the belligerent occupant. The rule suspending political laws affects only the civilian inhabitants of the occupied territory and is not intended to bind the enemies in arms.

Sovereignty

The supreme and uncontrollable power inherent in a State by which that State is governed. Legal Sovereignty - The authority which has the power to issue commands Political Sovereignty - The power behind the legal sovereign or the sum of the influences that operate upon it. Internal Sovereignty - Refers to the power of the State to control its domestic affairs. External Sovereignty/ Independence - The power of the State to direct its relations with other States

Judicial decisions are also valid during the occupation and even beyond except those of political complexion. When there is a change of sovereignty, the political laws of the former sovereign are not merely suspended but abrogated.

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There is something you must always remember... You are braver than you believe, Stronger than you seem, And smarter than you think.

~Winnie the Pooh