University of the Philippines Visayas

Division of Social Sciences

College of Arts and Sciences
Political Science Cluster

Political Science 14
(Philippine Government and Politics)

Fernandez, Perfecto (1983) Separation of Powers as Juristic Imperative.

Philippine Law Journal Volume 58 Year 1983.
Sixth University of the Philippines Law Alumni Association Chair on
Jurisprudence Lecture.

Lecture Notes No.3 , Gacayan 2014

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Whats for today?

-Review on Introductory Topics
-Tripartite System as a mechanism of
SOP
-SOP in historical perspective
-Todays concept of Power
-Take stock on what SOP is a Juristic
Imperative

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Institution
al Set-up

Separati
on of
Powers

Doctrine
Juristic
Imperativ
e

Lecture Notes No.1 , Gacayan 20134

Separation of Powers as Juristic Imperative

institutional arrangement or
situation, which combines a
definite structure of
government with a set or
relationships among
component elements
e.g. mom & dads take on
your nightlife

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

policy, position or principle

advocated, taught or put
into effect concerning the
acquisition and exercise of
the power to govern or
administrate in society
e.g. Mystery of light in
rosaries and all dogmas (?)

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

wrongly identified with

political ideology. However,
doctrine lacks the actional
aspect of ideology
mainly a theoretical
discourse, which "refers to a
coherent sum of assertions
regarding what a particular
topic should be" (Bernard
Crick)

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

a rationally elaborated set of

values, which may precede
the formation of a political
identity per se. It is
concerned with
philosophical orientations on
a meta-theoretical level

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Juristic
Imperative?

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Juristic=Jurisrpudence= study and

theory of law
Imperative=
Imperative=of vital importance;
crucial. E.g. "immediate action was
imperative"
synonyms: vitally important, of
vital importance, all-important,
vital, crucial, critical, essential,
necessary, indispensable, urgent

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Why is separation of powers

indispensible to constitutionalism
(adherence of a type of
government to written laws). )

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

(1) Structure for limited

government
(2) Power interrelationships for
free and independent judiciary
(3) Basic institutional safeguard
for democracy and civil liberty
(4) Cornerstone of the
constitution

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Tripartite system

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Tripartite system -powers

of Legislation,
Execution, and
Adjudication are each
lodged in a separate
Branch of government

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Tripartite system must have a

definite legal relationship to and
with each other

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Tripartite system relationships

are summed up in principles
of equality and separation

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Principles of Tripartite system=

EQUALITY+SEPARATION

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

EQUALITY=each Branch is
the equal of the others;
hence, it may not be
controlled by the others, and
in turn, it may not control
either or both of them.

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

EQUALITY=in Philippine setup these come in the form of

checks balances

Check this out!

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

SEPARATION=each Branch is
separate and distinct from
the other branches, and may
exercise only the Power
lodged with it but not other
Powers.

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Separation of power = doctrine

Tripartite system = mechanism

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Separation of Powers in Historical

Perspective

#1) -Philippine state is premature because its claim to

statehood is based on regional sentiment.
-Anti-colonial sentiment was a result of oppression from
occupation

A) First statement is true, second statement is

false
B)First statement is false, second statement is
true
C) Both statements are true
D) Both statements are false

#2-5) The three original demands of

native indios that are never resolved up
to todays government

#6) -Philippine state is premature because legitimacy is

challenged
-Philippine state is considered legitimate by virtue of
international support

A) First statement is true, second statement is

false
B)First statement is false, second statement is
true
C) Both statements are true
D) Both statements are false

#7) What is not produced by

weak and premature states?

A) weak institutions of governance

B) inability to manage diversities
C) weaker states
D) Both A and B

#8) All of these reasons warrants why

Separation of Power is indispensible to
constitutionalism, except that SOP provides

a) Structure for limited government

b)Power interrelationships for free and independent
judiciary
c) Basic institutional safeguard for democracy and civil
liberty
d) Cornerstone of the law

#9)Is said to be the medium where the

political ideals of Filipino peasants were
best articulated

#10)Reynaldo Ileto is to History from

Below as ___________is to History from
Above.

#11 ) Is a set up where powers of Legislation, Execution,

and Adjudication are each lodged in a separate Branch of
government

#12) Globalization is the root cause of tensions in

Philippine society.
-Poverty is the result as well of Globalization.

A) First statement is true, second statement is

false
B)First statement is false, second statement is
true
C) Both statements are true
D) Both statements are false

#13 ) Un-abbreviated version

of the acronym ILAGA.

#14 )Looking at David Martinezs A

Country of our Own, how many subnations does the Philippine state has?

#15) A major resistance group in the Philippines

called Mujahideen but claims to be the true
vanguard of Islamic Movement in Mindanao.

a)BIFF
b)MILF
c)MNLF
d) AbuSayyaf

#16)May be a policy or sum of coherent

assertions of what things should be but often
wrongly identified with political ideology

#17) All states should strive to have a common

nation.
-All nations are states.

A) First statement is true, second statement is

false
B)First statement is false, second statement is
true
C) Both statements are true
D) Both statements are false

#18)this particular provision of law is

suspended during declaration of martial
laws

#19) -Separation of power is to doctrine

.

-Tripartite system is to mechanism.

A) First statement is true, second statement is

false
B)First statement is false, second statement is
true
C) Both statements are true
D) Both statements are false

#20) More than political mobilization and support,

this is said to be controlled by elites/patron under
the model of oppressive triangular structure of
Philippine Society

 1:B
2-5: Freedom from taxation, reform
of tenancy, re-establishment of
communal life3: 6: C
7: C
8: D
9: Pasyon and Revolution
10: Rommel Banlaoi

11:Tripartite system
12: D
13: Iloilo Land Grabbers Association
14: 5
15: B
16:doctrine
17: A
18: writ of habeas corpus
19: C
20: culture

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

In Athens and Rome, distribution of

powers was IN, separation of powers
was OUT.

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

DIRECT DEMOCRACY.
Vs.
REPRESENTATIVE
DEMOCRACY

Ecclesia of the Greek City States and Concilium Plebis of ancient Rome
Vs.
Lower and Higher Floor of (Insert your name)s Piggery

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Imagine!

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Judiciary as the first branch to

develop in the tripartite system.
Judiciary had an edge in
administering law that was
immutable based on
TRADITION AND CUSTOM.

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

TRADITION AND CUSTOM

hindered Legislative growth.
pervasive homogeneity of
their population, culture and
tradition resulted into levels
of conflict that are low and
within-the-capacity of T & C
fix.
The more legislations, the more
conflict.

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

C & T are unable to resolve resultant

differences because of Substantial
differentiation
Change, re-adapt, reinterpretation or re-invent
and make a new lie (legal
fictions) ! = puff! Miriam
and the rests

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

In Great Britain.....
creator of the Common Law was the Judiciary under the authority
of the King
techniques were Interpretation and Legal Fictions
Industrial Revolution redefined class lines and cleared economic
disparity

Common Law (tradition and custom) cannot contain

societal conflict
Thus creating this
legislators weird
hair

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

In the United States.....

Great depression precipitated the creation of the Welfare State
While production boomed, the net product or income was held
largely by the industrial, commercial and banking elite.
The insufficiency of disposable income meant demand was well
below the available supply; hence, prices fell and the stock market
crashed.

Federal regulatory
agencies were set
up on matters of
inter state
commerce
Senate had a
proactive role

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Todays Concept of
Powers

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

What does the three

branches of the government
have in common?
exercise of Legislative Power generally yields
statutes;
the exercise of Executive Power yields orders;
and the exercise of Judicial Power yields
judgments

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Legislative Power
to create legal duty
which is generally
obligatory with
characteristics of
1) creative and original,
because by the act of
legislation, legal duty arises
and is imposed, where none
existed before
2) legal duty created and
imposed is not imposed by
express terms of the law
itself on a specific or

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Executive Power

Administration of Primary
Duties provided in such
General Law, whether
Conditional or Unconditional.
Primary Duties, are the legal duties that
must be complied with or fulfilled, in
order to avoid the sanction annexed
hereto.
Conditional and unconditional means
either of POWER DEPENDENT DUTIES
(duty is dependent on particular law
involving exercise of human will)
And FACT DEPENDENT DUTIES (conditions
are in the form of legal facts, known

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Judicial Power
Administration of
Secondary Duties or
Sanctions thereof.

Judicial Power can only be

exercised, where there is a
violation of a Primary Duty,
whether actual or
threatened. On the other
hand, Executive Power may
be exercised independently
of a violation of any law.

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

The three branches as

Sui Generis?

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Legislation is the creation of the General

Law, which ideally should be be the
expression of the general will of the
society. It is therefore its social function to
reflect the consensus, i.e., the shared
values and interests within the society.
(Ideally but not in our case)
is adequate representation of social
interests institutionalized through a
legislature consisting of a fairly large
number of representatives, freely elected
by their constituencies in the different
electoral districts in the country.
free Debate as the method for
determining the consensus
institution of Majority Vote for securing a
decision on controversial measures

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Adjudication is the creation of Particular

Law in the form of Judgments, thus the
realization of Justice according to the Law in
the particular case

There is justice
when?
there is rectification of a violation of law
when determined to exist
such determination is made on the basis
of facts found on the evidence of record

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Executive is centered on the exercise of

Discretionary Authority, rather than on the
performance of ministerial duties. The
outcome of such exercise is generally
Intermediate Law, in the form of Orders and
Proclamations geared to the creation of official
duties towards implementation of Primary
Duties
(Ideally but not in our case)
Functions for faithful and speedy
implementation of the laws, according to
perceived priorities and in the national
interest.
Performs on methods on advantages of
method has the advantages of initiative,
decisiveness, and swiftness of action
can act, if he wishes, on the basis of
informed judgment, for he can have the

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Institution
al Set-up

Separati
on of
Powers

Doctrine

Juristic
Imperativ
e

Tripartite
System
as a
mechanis
m
Histor
y
Power

Lecture Notes No.1 , Gacayan 2014

Separation of Powers as Juristic Imperative

Institutio
nal Setup

Separati
on of
Powers

+1

Doctrine

Juristic
Imperati
ve

=differentiation of social

function