Sandoval Poli Rev Lecture Notes

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THE JUDICIARY

ART. VIII Sec. 1 Par. 1- ―The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law‖

*The Supreme Court is the only constitutional court. Q. SB?

A. No. It is not a constitutional court, although mentioned in the Constitution. It is only a constitutionally mandated court.

*Judicial power is not vested in the Supreme Court alone.

*It is vested as well in such lower courts as may be established by law. ―Such lower courts as may be established by law‖ (BP 129 Judiciary Reorganization Act of 1980)

*Court of Appeals- referred to as lower collegiate courts *Regional Trial Courts- courts of general jurisdiction

*Courts of limited jurisdiction- (1) Metropolitan Trial Courts (2) MTCC [chartered cities] (3) Municipal Trial Courts/ Municipal Circuit Trial Courts *Sandiganbayan- special court having jurisdiction over public officers; co-equal with the Court of Appeals.

*Court of Tax Appeals- special court having jurisdiction over tax appeals cases.

*SHARIAH COURTS- pursuant to Muslim Code; 2 levels: (1) Shariah District Court- equivalent to RTC (2) Shariah Circuit Court- equivalent to MTC

*QUASI JUDICIAL BODIES- strictly speaking, they are not courts- do not form part of the judicial system.

- They are administrative bodies performing quasi-judicial functions.

- In Remedial Law, referred to loosely as ―special courts‖- Doctrine of Primary Jurisdiction.

- Part of the executive.

Ex. CSC, SEC, COA, COMELEC

*Since quasi-judicial bodies are not strictly courts, their jurisdiction is strictly construed against them.

JUDICIAL POWER AND POLITICAL QUESTION DOCTRINE Q. What is JUDICIAL POWER?

A. JUDICIAL POWER includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Art. VIII, Sec. 1, Par. 2) - Definition of Judicial Power.

- Not found in the 1935 and 1973 Constitution.

- Represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory.

―DUTY‖

-The provision uses the word DUTY

-The settlement of controversies and the determination of whether or not there has been grave abuse of discretion is not merely a power- it is a duty of the courts as well.

-in power, the power holder has discretion to exercise.

-if it was only a power, then the courts has the discretion to exercise it or not. -Since it is a duty, there is no such discretion- the exercise of the power is obligatory and mandatory upon the courts.

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1. To settle actual controversies involving rights which are legally demandable and enforceable. (TRADITIONAL)

-Very limited definition.

-Maybe defeated by the political question doctrine.

2. To determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (EXPANDED)

-Expanded Power of Judicial Review or the Extraordinary Power to Determine Grave Abuse of Discretion as referred to by the Supreme Court. -Political question doctrine has been greatly diminished.

Q. How does the definition of judicial power under the present Constitution affected the political question doctrine?

A. The 1987 Constitution expands the concept of judicial review. Under the expanded definition, the Court cannot agree xxx that the issues involved is a political question beyond the jurisdiction of the court to review. When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected is justiciable – the problem being one of legality or validity, not its wisdom. Moreover, the jurisdiction to delimit constitutional boundaries has been given to this court. When political questions are involved, the Constitution limits the delimitation as to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. Q. What are political questions?

A.-Origin: The principle of separation of powers.

-In turn, this principle is the result of our Presidential System of Government. (In a Parliamentary government, the executive and the legislative branches are welded together)

-Thus, legislative power is given to Congress; executive power is given to the President and judicial power is given to the Supreme Court- 3 great powers distributed among 3 branches of government.

-The legislative and the executive are called POLITICAL BRANCHES of the government, where policies are formulated, enacted and implemented. -Questions of policy that are formulated by the political branches and thus cannot be the subject of judicial review. This includes questions involving the wisdom, propriety, efficacy or morality of an act.

TAÑADA VS. CUENCO

-Classic definition of political question.

-POLITICAL QUESTIONS refer to 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 legislative or executive branch of the government.

TWO TYPES OF POLITICAL QUESTIONS

1. Those questions which under the Constitution are to be decided by the people in their sovereign capacity.

Ex. Recall under the LGC

-A mode of removing a local elective official even before the 3 year term on the ground of loss of trust/confidence.

-There is only one ground for recall-loss of confidence. EVARDONE VS. COMELEC

*Loss of confidence as a ground for recall is a political question. *After all, the initiation of the recall process is not the recall itself.

*In the recall election, the people will decide whether or not they have lost their confidence in the official concerned.

*Hence, it is a question which has to be decided by the people in their sovereign capacity.

*When? In the recall election itself. *Not subject to judicial review. ESTRADA VS. DESIERTO-EDSA 1

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*Lawyers League for a Better Philippines vs. Aquino

*Oliver Lozano filed a petition before the Supreme Court questioning the legitimacy of the Cory government.

*According to the petition, most of the people who went to EDSA are not really serious in overthrowing the Marcos government. (Most were vendors) SC: dismissed the petition.

*No matter, We will no longer inquire into the motives of the people in going to EDSA. The facts were: because of the magnitude of the people who were in EDSA, Marcos fled to Hawaii, so that the Cory government was able to take effective control of the machinery of the State without resistance from the people. Furthermore, the international community has recognized the Cory Government. Hence, there can be no more question as to the de jure status of the said government.

*The Aquino government was the result of a successful revolution by the sovereign people-it was installed through a direct exercise of the power of the Filipino people, in defiance of the provisions of the 1973 Constitution. The legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny; such government automatically orbits out of the constitutional loop.

Estrada vs. Desierto

*Desierto argues that the legitimacy of Arroyo‘s assumption to the presidency is a political question, and invokes the ruling in the Lawyers League case.

SC: No. (Justice Reynato S. Puno)

*Arroyo‘s government is not revolutionary in character. The oath she took is the oath under the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution.

LEGAL DISTINCTIONS BETWEEN EDSA 1 AND EDSA 2

EDSA 1 EDSA 2

-Involves the exercise of the people power of revolution which

-Involves the exercise of the people power of freedom of speech and freedom to assemble, to petition the

overthrows the whole government.

-Extra-constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review.

-Presented a political question.

government for redress of grievances which only affected the Office of the President.

-Intra-constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as president are subject to judicial review.

-Involves legal questions.

2. Those in regard to which full discretionary authority has been delegated by the Constitution to the executive or legislative branch of the government.

Ex. Calling out power of the President under Article VII, Sec. 18 IBP VS. ZAMORA

*During the time of President Estrada, he issued a LOI ordering the deployment of Marines in the metropolis to conduct joint visibility patrols with members of the PNP in various shopping malls.

*IBP asks that the exercise of such power be subjected to judicial review. SC: No.

*When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution. Thus, the Court cannot be compelled upon to overrule the President‘s wisdom or substitute its own. However this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion.

3 powers under Art. VII, Sec. 18

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2. Declare Martial Law

3. Suspend the privilege of the writ of habeas corpus

*Unlike in the past, the power to declare martial law and to suspend the privilege of the writ of habeas corpus were expressly made subject of judicial review.

*Article VII, Sec. 18, Par 3- ―The Supreme Court may review in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision within thirty days from its filing.‖

CALLING OUT POWER -It is a political question.

-A question in regard to which full discretionary authority has been delegated by the Constitution to the President.

SC: It is the unclouded intent of the Court to grant to the President full discretionary authority. The hands of the President should not be tied; otherwise, this could be a veritable proscription for disaster. Unless grave abuse of discretion is shown, the President‘s exercise of the power should not be questioned. Mere abuse of discretion will not suffice. To doubt is to sustain.

Q. What is the effect of the EXPANDED CONCEPT OF JUDICIAL POWER on the political question doctrine?

A. It has lessened the political question doctrine. Thus, even if it is a political question, if there appears to be abuse of discretion, the Court may review it. *The burden is upon petitioners- the ones assailing the act.

*It must be grave abuse of discretion to warrant judicial intervention. *Mere abuse of discretion is not enough.

*To doubt is to sustain the act of the person. Q. Why the difference in treatment?

A. Calling out power is the lesser and more benign power while the power to declare martial law and to suspend the privilege of the writ of habeas corpus are the greater powers which involve direct curtailment of civil liberties thereby necessitating safeguards of Congress and judicial review of the Court. (IBP VS. ZAMORA)

DAVID VS. GMA

*PGMA exercised the calling out power when she issued GO 5 and PP 1017, not the martial law power. The acts taken purportedly to carry out the issuances were ultra vires, hence, unconstitutional. The exercise of the calling out power does not involve the direct curtailment and suppression of civil liberties and individual freedoms. However GO 5 and PP1017 are constitutional. Petitioners failed to counteract the factual bases therefore as alleged by the Solgen.

Q. Why not the martial law powers?

A. There was no case of invasion or rebellion. President will be required to submit report to (kulang page ko, sorry...)

Q. What are the THREE IMPORTANT FUNCTIONS OF THE COURT? A. 1. Checking

2. Legitimizing 3. Symbolic

SYMBOLIC FUNCTION OF THE COURT

- It is the duty of the Court to formulate guiding and controlling principles, precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar on the extent of protection given by Constitutional guaranties.

Q. What are the requisites for a proper exercise of the power of JUDICIAL REVIEW?

A. The time-tested standards for the exercise of judicial review are: 1. The existence of an appropriate case;

2. An interest personal and substantial by the party raising the constitutional question;

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3. The plea that the function be exercised at the earliest opportunity; and

4. The necessity that the constitutional question be passed upon in order to decide the case.

THE MEANING OF ACTUAL CASE OR CONTROVERSY

-It means an existing case or controversy which is both ripe for resolution and susceptible of judicial determination and that which is not conjectural or clarificatory, or that which seeks to resolve hypothetical or feigned constitutional problems. (IBP VS. ZAMORA)

*There must also be a conflict of rights-opposing views or contentions-if not, the Court would be resolving issues that remain unfocused because they lack concreteness.

*The controversy must also be justiciable-meaning susceptible of judicial determination.

Q. May courts render advisory opinions?

A. No, courts can only decide actual controversies, not hypothetical questions or cases.

-There must be an actual case or controversy to be resolved.

-The definition of judicial power under Art. VIII is clear. The evil sought to be avoided is the possible violation of due process. It is also repugnant to the Principle of Separation of Powers. If a case is bought involving the same issue, the court might be forced to follow.

*On the other hand, INTERNATIONAL COURT OF JUSTICE can render advisory opinions.

Q. Basis?

A. 1. Statute of ICJ itself 2. UN Charter

2 MAIN FUNCTIONS OF THE ICJ: 1. To resolve contentious cases

2. To render advisory opinions to UN organs MOOT AND ACADEMIC CASES

- A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness. (David vs. GMA)

*The moot and academic principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if:

1. There is a grave violation of the Constitution;

2. The exceptional character of the situation and the paramount public interest involved;

3. When constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and

4. The case is capable of repetition yet evading review. (David vs. GMA)

PROPER PARTY REQUIREMENT Q. What is the meaning of locus standi?

A. LEGAL STANDING or LOCUS STANDI has been defined as a personal and substantial interest in the case, such that a party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.

The term INTEREST means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest.

*The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. (IBP vs. Zamora)

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IBP VS. ZAMORA

*IBP has no locus standi. The mere invocation of its duty to preserve the rule of law is a too general interest. It has not shown any injury it has suffered nor will suffer by virtue of the act complained of. The presumed injury is not personal, too vague, highly speculative and uncertain to confer locus standi. However, IBP has advanced constitutional issues which deserve attention of this court, in view of their seriousness, novelty and weight as precedents. TAXPAYER‘S SUIT

To constitute a taxpayer‘s suit, two requisites must be met, namely:

1. That public funds are disbursed by a political subdivision or instrumentality and in doing so, a law is violated or some irregularity is committed; and

2. That the petitioner is directly affected by the alleged ultra vires act. KILOSBAYAN VS. MORATO

*Kilosbayan filed 2 petitions as a taxpayer.

SC: Taxpayer suit does not lie because the issue does not involve the disbursement of public funds. Rather, what is involved was the interpretation of the charter of the PCSO.

THE CONSTITUTIONAL QUESTION MUST BE RAISED AT THE EARLIEST OPPORTUNE TIME

- It is not the date of the filing of the petition that determines whether the constitutional issue was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, ―if it is not raised in the pleadings, it cannot be considered at the trial, and if not considered at the trial, it cannot be considered on appeal. (Matibag vs. Benipayo)

- However in criminal cases, the accused may raise the constitutional question even for the first time on appeal. This is because criminal cases involve the basic rights of the accused to life and liberty. MATIBAG VS. BENIPAYO

*Matibag questioned the legality of the appointments of Benipayo, Borra and Tuason on 03 August 2001, when their first appointments were issued on 22 April 2001. Thus, it is argued that the constitutional question was not raised on the earliest possible opportunity.

SC: No. It is not the date of the filing that determines whether the constitutional question was raised at the earliest possible opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve it, such that if not raised in the pleadings, it cannot be raised on appeal. Here, Matibag questioned the legality of said appointments when she filed her petition before the Supreme Court, which is the earliest opportunity for pleading the constitutional issue before a competent body.

THE CONSTITUTIONAL QUESTION MUST BE THE VERY LIS MOTA OF THE ENTIRE CONTROVERSY

*The constitutional question must be the main issue of the controversy. *There is no way that the Court may resolve the entire case, unless it first resolves the constitutional question raised.

AMENDMENTS OR REVISIONS (ARTICLE XVII)

3 ESSENTIAL ELEMENTS OF A GOOD WRITTEN CONSTITUTION: 1. Constitution of Government: Articles VI, VII, VIII, IX, X 2. Constitution of Liberty: Article III (Bill of Rights)

3. Constitution of Sovereignty: Article XVII (Amendatory Process)

AMENDMENT REVISION

-refers to a change that adds, reduces or deletes without altering the basic principle involved.

-affects only the specific provision being amended.

-implies a change that alters a basic principle in the Constitution.

-if the change alters the substantial entirety of the constitution, as when the changes affect substantial provisions of the constitution. -affects several provisions in the constitution.

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-isolated or piecemeal changes in the Constitution.

Ex. Lowering of the voting age.

-overhaul of the whole Constitution. Ex. Altering the principle of separation of powers or the system of checks and balances.

TWO PART TEST

1. QUANTITATIVE TEST: asks whether the proposed change is so extensive in its provisions as to change directly the substantial entirety of the Constitution by the deletion or alteration of numerous existing provisions. The court examines only the number of provisions affected and does not consider the degree of change. 2. QUALITATIVE TEST: inquires into the qualitative effects of the

proposed change in the Constitution. The main inquiry is whether the change will accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision. Whether there is an alteration in the structure of government is a proper subject of inquiry.

*A change in the nature of the basic governmental plan includes changes in its fundamental framework or the fundamental powers of its branches. A change in the nature of the basic governmental plan also includes changes that ―jeopardize the traditional form of government and the system of checks and balances‖. (Lambino vs. COMELEC) *LAMBINO VS. COMELEC

-Under both the quantitative and qualitative tests, the Lambino group‘s initiative is a revision, not merely an amendment. QUANTITATIVELY, the Lambino group‘s proposed changes overhaul two Articles-Article VI of the Legislature and Article VII on the Executive-affecting a total of 105 provisions in the entire Constitution. QUALITATIVELY, the proposed changes alter substantially the basic plan of government from presidential to parliamentary and from a bicameral to unilateral legislature.

STAGES IN THE AMENDATORY PROCESS 1. Proposal

2. Ratification

MODES OF PROPOSING AMENDMENTS OR REVISIONS 1. Congress acting as constituent assembly

-One of the non-legislative powers of Congress

-Congress meets in order to directly propose amendments or revisions -Requires ¾ vote of all its members

2. Constitutional convention

-a separate body the members of which are elected

Article XVII Sec. 3- ―The Congress may, by a vote of 2/3 of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the calling of such convention‖ 2 ways:

a. Congress directly calls a CONCON by 2/3 vote of all its members. b. The issue of calling a CONCON may be submitted to the people in

a plebiscite by majority vote of all members of Congress. 3. People‘s initiative on the Constitution (RA 6735)

Article XVII, Sec. 2- ―Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least 12 percentum of the total number of registered voters, of which every legislative district must be represented by at least 3 percentum of the registered voters therein. No amendment under this section shall be authorized within 5 years, following the ratification of this Constitution or oftener than every 5 years thereafter.

The Congress shall provide for the implementation of the exercise of this right‖.

*This applies only to amendments not revisions.

*REQ: A petition signed by at least 12% of the total number of registered voters therein of which every legislative district must be represented by at least 3% of registered voters therein.

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Q. Is the provision on people‘s initiative (Art XVII, Sec. 2) self executing?

A. No. Note the second sentence says- ―The Congress shall provide for the implementation of the exercise of this right.‖ Thus Congress should enact a law implementing this provision.

Q. Has Congress enacted such law?

A. Yes. Congress enacted a law RA 6735: Initiative and Referendum Act.

3 SYSTEMS OF INITIATIVE: 1. Initiative on the Constitution 2. Initiative on Statutes

3. Initiative on Local Legislation

SANTIAGO VS. COMELEC (re: Initiative on the Constitution)

*The right of the people to directly propose amendments to the Constitution through the system of initiative would remain entombed in the cold niche of the Constitution until Congress provides for its implementation.

*RA 6735 miserably failed to satisfy the requirements in subordinate legislation in so far as initiative to propose amendments to the Constitution is concerned.

*If Congress intended to fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle therefore, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far more important than the initiative on national and local laws.

*SC declared RA 6735 inadequate to cover the system of initiative on amendments to the Constitution and have failed to provide a sufficient standard for subordinate legislation (there is undue delegation of power to Comelec). To this extent, RA 6735 is unconstitutional.

*Article XVII, Sec. 2 remains non self executing.

*People‘s Initiative on the Constitution is limited only to proposing amendments not revisions.

RATIFICATION

*Any proposed change must be submitted to the people in a plebiscite not a referendum.

*Article XVII, Sec. 4- ―Any amendment to or revision of this Constitution under Sec. 1 hereof (Con Ass) shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days not later than 90 days after the approval of such amendment or revision.

―Any amendment under Sec. 2 hereof (Con Com) shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the certification by the Comelec of the sufficiency of the petition‖.

CHA-CHA NOT ALLOWED

*Article XVII, Sec. 2 remains to be non self executing. The implementing law was declared unconstitutional. (Santiago vs. Comelec)

*People‘s initiative is limited only to amendments. DOCTRINE OF STATE IMMUNITY FROM SUIT

Article XVI, Sec. 3- ―The State may not be sued without its consent.‖ Q. What if the Constitution does not provide for state immunity?

A. Through the DOCTRINE OF INCORPORATION (Article II, Sec. 2), the Philippines have adopted the generally accepted principles of international law as part of the law of the land. State immunity from suit is a generally accepted principle of international law. Hence we are bound by it.

Q. Ethical basis?

A. ―There can be no legal right against the authority which makes the law on which the right depends‖. (Justice Holmes)

Q. Does the Doctrine of State Immunity form Suit apply also to foreign agreements?

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A. Yes. We are bound by the DOCTRINE OF SOVEREIGN EQUALITY. All states are sovereign equals. An equal may not assume jurisdiction over another equal. Otherwise it will unduly vex the peace of nations. This is another generally accepted principle of international law as expressed in the Latin maxim par in parem non habet imperium.

Q. Can you sue the State?

A. A State may not be sued without its consent. Hence, you can actually sue the State, for as long as the State gives its consent.

Q. How does a State waive its immunity from suit? A. Either EXPRESSLY or IMPLIEDLY.

EXPRESSLY: Through the enactment by Congress of a general law or special law.

Q. May the Solgen validly waive immunity from suit?

A. No. A mere lawyer of the government cannot validly waive immunity from suit. Only the Congress can. (Republic vs. Purisima)

*Waiver of immunity constitutes a derogation of sovereignty. Hence, it is always construed strictly or strictissimi juris.

1. GENERAL LAW

Ex. Act No. 3083- applies to any money claims arising from contracts with the government whether express or implied.

-must be correlated with COMMONWEALTH ACT 387 as amended by PD 1445 or the GENERAL AUDITING LAW- any money claim arising from contract with the government whether expressed or implied must first be presented to COA and only when COA refuses payment that a party can sue.

Q. Where?

A. SC. Decisions of COA are reviewable by SC via petition for certiorari. (DAR vs. NLRC, J. Vitug)

Q. A contract was entered into with DPWH for the construction of roads. When the roads were finished, the contractor was not paid. Contractor sued the government before the RTC. Will the suit prosper?

A. No. It will be dismissed for lack of cause of action. He failed to exhaust all administrative remedies provided for by law under CA 327 as amended by PD 1445.

2. SPECIAL LAWS

Ex. Article 2180, NCC- ―The State is responsible xxx when it acts though a special agent xxx.‖

Ex. Article 2189, NCC- ―Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision.

TEOTICO VS. CITY OF MANILA

*City of Manila contends that it cannot be held liable under its charter. *SC held that the provision in the charter is a general provision in a special law. On the other hand, Article 2189 is a special provision found in a general law. A special provision found in a general law prevails over the general provision found in the charter of the City of Manila. City of Manila is liable. KILATKO VS. CITY OF DAGUPAN

*City of Dagupan contended that the manhole is found in the national road. *SC held that the ownership of the road is immaterial. Even if it is a national road, the LGU is liable. Article 2189 merely requires supervision over the maintenance of the national road. City of Dagupan has supervision. Hence, liable.

Ex. Sec. 24, Local Government Code- ―Liability for Damages- Local government units and their officials are not exempt from liability for death or injury to persons or damage to property.‖

Ex. Charters of GOCC- GSIS, DBP, LBP *Charter-special law creating GOCC

*The provision in the charter on whether it may sue or be sued is an express waiver by special law.

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1. When the State itself commences litigation, thereby opening itself to counterclaim.

Ex. Government sued A and A filed an answer with a counterclaim. The government cannot ask for the dismissal of the counterclaim on the ground of state immunity from suit. Otherwise, it would be the height of injustice.

2. When the State enters into a contract with private party.

*Here, the government is deemed to have gone down into the level of a private entity; there is parity now with the contracting parties; therefore, it is deemed to have waived its immunity from suit.

*This rule used to be absolute. (US vs. Lyons) *However, this rule is no longer absolute- US VS. RUIZ

*This involved the construction of wharves in Subic Bay at the time Subic was still under the US pursuant to a treaty.

*Contractor was not paid so he sued the Subic Naval Authorities. *Subic Naval Authorities moved to dismiss invoking State Immunity from Suit.

*On the other hand, the contractor contends that the State entered into a contract (relying on the old rule).

SC: The traditional rule of immunity exempts a state from being sued in courts of another state without its consent or waiver. This rule is a necessary consequence of the principle of independence and equality of states. However, rules of international law are not petrified; they are constantly developing and evolving. And because the activities of the states have multiplied, it has been necessary to distinguish them between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that state immunity now extends only to acts jure imperii. The restrictive application of state immunity is now the rule in the US, UK and other states in Western Europe.

*A state may be said to have descended to the level of an individual and thus deemed to have tacitly given its consent to be sued only when it enters into business contracts.

*The purpose of the wharves is the defense of US troops and of the Philippines. Defense of the state is of the highest order and hence, is jure imperii.

*Case was dismissed because there was no waiver.

*Not all contracts are deemed to be a waiver of state immunity; must distinguish between:

ACTA JURE IMPERII: contracts entered into by the government in its sovereign capacity; no waiver of state immunity from suit.

ACTA JURE GESTIONIS: contracts entered into by the government in its commercial and proprietary capacity; there is waiver of state immunity from suit. (Restrictive Doctrine of State Immunity from Suit) Q. In the Ruiz case, can the contractor invoke Act No. 3083?

A. No. Because Act No. 3083 waives the immunity of the Philippine government only; not of other governments.

Q. What is the remedy of the contractor?

A. Under international law, he will have to convince his state through the assistance of the Department of Foreign Affairs to take his case up with the other state.

Q. Raintree contracted with the Armed Forces of the Philippines for the supply of ponchos to be used by the soldiers. Raintree was not paid. Can Raintree sue?

A. Yes, under Act No. 3083. This is a money claim arising from contract. There is no need to invoke implied waiver, since there is already an express waiver.

US VS. GUINTO

*A Filipino cook in a restaurant inside Camp John Hay poured urine into the soup stock used in cooking the vegetables served to the customers.

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*He filed a complaint for damages against the US Air Force Recreation Center at Camp John Hay who operates the restaurant.

*The latter invoked the Doctrine of Immunity from Suit and moved to dismiss. SC: The restaurant services offered partake of the nature of a business enterprise undertaken by the US government in its proprietary capacity. Such services are not extended to the American servicemen for free as a perquisite of membership in the Armed Forces of the US. Neither does it appear that they are exclusively offered to these servicemen; on the contrary, it is well known that they are available to the general public as well, including the tourists in Baguio City, many of whom make it a point to visit John Hay for this reason. All persons availing themselves of this facility pay for the privilege like all other customers in ordinary restaurants. Although the prices are concededly reasonable and relatively low, such services are undoubtedly operated for profit as a commercial and not a governmental activity.

*The case was remanded to the Labor arbiter. There is waiver of immunity. *SUABILITY VS. LIABILITY

*The circumstance that a state is suable does not necessarily mean that it is liable. A state can never be held liable if it does not first consent to be sued. SUABILITY is just a matter of a state giving its consent to be sued.

*LIABILITY is a matter of applicable law and circumstance of the case. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable.

*Waiver merely gives the claimant the opportunity to prove that the state is liable.

MUNICIPALITY OF SAN FERNANDO LA UNION VS. JUDGE FIRME *San Fernando owned a dump truck being driven by its official driver, while hauling gravel, it collided with a jeep, killing the latter‘s passenger. The heirs sued the municipality for damages. The municipality moved to dismiss on the ground of immunity of state from suit. Without resolving the motion, Judge Firme proceeded to resolve the case and held the municipality liable since its charter expressly provides that it may sue and be sued.

SC: Suability is not the same as liability. Municipality can invoke defenses- that at the time the accident happened, it was engaged in the performance

of governmental function (repair of municipal roads). This is a case of DAMNUM ABSQUE INJURIA (Damage without injury).

Q. What if the dump truck was then hauling lumber for the repair of a public market instead of gravel for the repair of municipal road?

A. The operation of a public market is a proprietary function. It is classified as a business enterprise of the local government. Hence, the municipal government would then be in the performance of a proprietary function. As such, it would not be a valid defense to liability.

TORIO VS. FONTANILLA

*The holding of a town fiesta even if the purpose is to commemorate a religious or historical event of the town is in essence an act for the special benefit of the community and not for the general welfare of the public performed in pursuance of a policy of the state. xxx It is a proprietary activity. Thus, the municipality may be held liable.

EXECUTION OF JUDGEMENT

Q. Assume that you are allowed by the State to sue. After trial, judgement was rendered in your favor, holding the State liable. Judgement thereafter attained finality. Can you garnish or levy government funds to execute the judgement?

A. No. It will paralyze the operations of the government. Waiver extends only up to the rendition of judgement. Execution requires another waiver. The disbursement of public funds requires an appropriate appropriation law. Q. Remedy?

A. To make representation with the proper legislative authority for the enactment of an appropriation law necessary to satisfy the judgement. Q. What if the legislative authority refuses to enact the law?

A. Go to the courts and ask for MANDAMUS to compel the legislative authority to enact the required law. True, the duty to appropriate is discretionary. The exception however, as in this case, is when there is already a money judgement against the government, the discretionary duty becomes ministerial. The state must be the first to respect and obey the decisions of the Courts. (Municipality of Makati vs. IAC)

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Distinguish:

1. INCORPORATED AGENCIES: These are agencies with separate charters creating them.

-They have personality separate and distinct from the Philippine government.

-The test of suability will depend whether or not its charter allows it to sue and be sued.

Ex. SSS, GSIS, PCSO, Phil. Postal Corporation

2. UNINCORPORATED AGENCIES: These agencies have no charter.

-They do not have separate personality.

-A suit against them is really a suit against the government.

-Test of suability depends upon whether or not it is performing a governmental or proprietary function.

SUIT AGAINST PUBLIC OFFICIALS

Q. When do you consider a suit against public officials as a suit against the state itself?

A. The suit must be regarded as one against the State where the satisfaction of judgement against the public official concerned will require the State itself to perform a positive act such as appropriation of the amount necessary to pay the damages awarded to the plaintiff. (LANSANG VS. GARCIA) *The official was charged in his official capacity in the performance of official duties.

*In this case, the official was acting only as an agent of the State. *However, this rule does not apply if:

-Acts were unlawful or illegal

-Acts were done in a personal capacity REPUBLIC VS. SANDOVAL

*This case does not qualify as a suit against the State. xxx While the Republic in this case is sued by name, the ultimate liability does not pertain to the government. Although the military officers and personnel were discharging their official functions when the incident occurred, their functions ceased to be official the moment they exceeded their authority. Based on the commission findings, there was lack of justification by the government forces in the use of firearms. Moreover, the members of the police and military crowd dispersal units committed a prohibited act under BP 180 as there was unnecessary firing by them in dispersing the marchers.

EXCEPTIONAL CASES: The doctrine of State Immunity from Suit cannot serve as an instance to perpetuate injustice on a citizen.

*However, this should not be invoked indiscriminately because the circumstances obtaining in the following cases are peculiar.

AMIGABLE VS. CUENCA

*Amigable owned a lot in Cebu City. There is no annotation in favor of the government in the TCT. Then without prior appropriation or negotiated sale, the government used a portion of the said lot for the construction of roads. Amigable then filed a complaint against the Republic, and Cuenca, in the latter‘s capacity as Commissioner of Public Highways.

SC: Where the government takes away property from a private landowner for public use without going through the legal process of expropriation or negotiated sale. The aggrieved party may properly maintain a suit against the government without thereby violating the doctrine of governmental immunity from suit without its consent.

REASON-MINISTERIO VS. CFI OF CEBU

*The doctrine of governmental immunity from suit cannot serve as an instrument of perpetration of injustice on a citizen. Had the government followed the procedure indicated by the governing law (Rule 87) at the time, a complaint would not have been filed by it and only upon payment of compensation fixed by the judgement or after tender of the party entitled to such payment of the amount fixed. May it ―have the right to enter in and upon the land so condemned, to appropriate the same to the public use defined in the judgement.‖

*Actually, in Amigable and Ministerio cases there is an implied waiver. This implied waiver lies in the failure to commence the proper action. The action filed by the petitioners amount to a counterclaim, had the government fled

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the proper action. It only became a petition because the government did not follow the legal procedure.

CITIZENSHIP

(ARTICLE IV, 1987 CONSTITUTION)

The following are the citizens of the Philippines (Sec. 1)

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

Q. When was the 1987 Constitution adopted? A. 02 Feb. 1987- at the time of the plebiscite

*Not 11 Feb. 1987=When Pres. Aquino declared its ratification. 2. Those whose fathers or mothers are citizens of the Philippines.

*Note that the provision says ―OR‖- not ―and‖

*This means that as long as 1 of your parents is a Filipino, you are a Filipino.

*This is in accordance with our adherence to the principle of jus sanguinis.

*This results in complications when the country where you are born applies the principle of jus soli.

*Complications arise with respect to the matter of dual allegiance. (See Sec. 5)

VALLES VS. COMELEC (337 SCRA 543, 09 Aug. 2000)

*Rosalind Lopez was born in 1934, in Australia to a Filipino-father, who was born in 1879, and an Australian-mother. When she came to the Philippines, she was holding an Australian passport and was registered as an alien in the BID. Then, Rosalind ran for governor.

SC: Rosalind is a Filipino citizen. (1) Her father is a Filipino- Her father is a Spanish subject. In 1898, when the Spanish ceded the Philippines to the US, under the Jones Law and the Philippine Bill of 01 July 1902, all inhabitants of the Philippines who were Spanish subjects are deemed to be Philippine

citizens. [This is the first time that there came to be Filipino citizens. It was an ―en masse citizenship‖ because of a change of sovereignty].

(2) Rosalind is a Filipino- Philippine law on citizenship adheres to the principle of jus sanguinis, where a child follows the nationality of the parents regardless of the place of his/her birth. Hence, Rosalind‘s father is a Filipino, she is a Filipina. Her being born in Australia is not tantamount to her losing her Philippine citizenship. Even if Australia follows jus soli, it only results to her possessing dual citizenship.

(3) Effect of holding an Australian passport- mere holding of an Australian passport does not mean renunciation of Philippine citizenship. In order to lose Philippine citizenship by renunciation, such renunciation must be express—the person renouncing must perform a positive act. (See Mercado vs. Manzano and Aznar vs. Comelec)

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

3 Requisites for the application of this provision: (1) They were born before 17 Jan. 1973. (2) Their mother is a Filipino.

(3) They elect Philippine citizenship upon reaching the age of majority.

*History of the provision:

-Under the 1935 Constitution, legitimate minor children follow the citizenship of their father.

-Thus one with an alien father and a Filipina, mother, would, during minority, be an alien.

-Hence, he is given, upon reaching the age of majority, the option to elect.

-Note that this is the reason why the provision applies only to those born of ―Filipino mothers‖.

-One with a Filipino-father and an alien mother would still be a Filipino, since he follows his father‘s citizenship.

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*These are Natural-Born Citizens (See Sec. 2)

*When Should Election Be Made- ―Reasonable Time from Reaching Age of Majority‖—RE: Application for Admission to the Philippine Bar, Vicente D. Ching (Bar Matter No. 914, 01 Oct.1999)

*Ching was born in 1964, of Chinese father and Filipina mother. Ching now seeks to elect Philippine citizenship so he can be admitted to the Philippine Bar.

SC: The 1935 Constitution only states that Philippine citizenship should be chosen upon age of majority. CA 625 states the child should be given a reasonable time to elect Philippine citizenship. This reasonable time has been construed to be 3 years upon reaching the age of majority.

Here, Ching seeks to elect only 14 years after reaching the age majority. This is way beyond the contemplated period for electing Philippine citizenship. One who is privileged to elect Philippine citizenship has only an inchoate right to such citizenship—as such, he should avail of the right with fervor, enthusiasm and promptitude.

4. Those who are naturalized in accordance with law TECSON VS. COMELEC

*FPJ was born in 1939, of a Filipino father and an American mother. His parents got married only in 1940.

SC: FPJ is an illegitimate child because his parents got married only after his birth. However, the 1935 Constitution states that ―those whose fathers are citizens of the Philippines‖ acquire Philippine citizenship. Thus, it did not distinguish whether the child is legitimate or illegitimate.

The rule is different when it is the mother who is a Filipino. Here, if the child is legitimate—he can elect Philippine citizenship upon reaching the age of majority. If he is illegitimate, he will follow the mother‘s citizenship. The reason for this rule is to ensure Filipino nationality of the child so as not to prejudice. Normally, since he is illegitimate, the mother would have custody and have parental authority.

*Natural-Born Citizens (Sec. 2) 2 Kinds of Natural-Born Citizens:

1. Those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship.

2. Those who elect Philippine citizenship in accordance with par (3), Sec. 1 -In this case, the person has to perform an act to perfect his Philippine citizenship.

-Thus, this constitutes an exception to the 1st kind of Natural-Born Citizens.

BENGSON III VS. HRET (GR 142840, 07 May 2001)

*Cruz lost his Philippine citizenship when he rendered service in the US Armed Forces, but re-acquired it through repatriation under RA 2630. He then ran, and won, as Congressman. His qualification was questioned on the ground that he is not a natural-born citizen.

SC: He is a natural-born citizen. (1) Effect of Repatriation—Repatriation results in the recovery of the original nationality. Thus, a naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino. On the other hand, if he was originally a natural-born citizen before he lost his citizenship, he will be restored to this former status as a natural-born Filipino.

(2) Kinds of Citizens under the Constitution—There are only 2 classes of citizens under the Constitution—(a) natural-born and (b) naturalized in accordance with law. A citizen who is not a naturalized Filipino—one who did not undergo the process of naturalization—is a natural-born Filipino. Noteworthy is the absence in the enumeration of a separate category for persons who, after losing Philippine citizenship, subsequently reacquires it. This is because such whether such persons are natural-born or naturalized depends on the reasons for the loss of their citizenship and the mode prescribed by the applicable law for the reacquisition thereof.

Marriage to foreigners—Art. IV, Sec. 4

*‖Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it.‖

*History of the provision:

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-In the 1935 Constitution, there is no similar provision.

-Thus, women were prejudiced—when they marry a foreigner, they lose their Filipino citizenship.

Ex. Biel vs. Director of Public Schools

-A public School teacher was removed from her position because she married her Chinese lover.

-However, if the woman just maintains a live-in relationship with a foreigner, she does not lose her Philippine citizenship—there is no marriage.

-Thus, they are better situated than those who contracted marriage with foreigners.

-Absurd! *In relation to Sec. 1 (3)

-Under the 1935 Constitution, the children of a Filipina-mother and an alien-father who had a common law relationship are Philippine citizens.

-No need to elect. Q. Why?

A. Being illegitimate children, they follow the citizenship of their mothers, who remain to be Filipinos since they are not married to aliens.

-This is another absurdity. Thus:

1. In 1970, Filipina married a foreigner -Filipina loses Philippine citizenship.

-The 1935 Constitution had no provision similar to Art. IV, Sec. 4 2. In 1975, Filipina married a foreigner

-Filipina retains Philippine citizenship.

-The 1973 Constitution had a provision similar to Art. IV, Sec. 4.

Modes to Acquire Philippine Citizenship: 1. Birth

2. Naturalization

Loss and Re-Acquisition of Philippine Citizenship

-Art. IV, Sec. 3—―Philippine citizenship may be lost or reacquired in the manner provided by law‖.

Ways by which Philippine Citizenship may be Re-Acquired: 1. Naturalization 2. Repatriation Naturalization vs. Repatriation Naturalization Repatriation 1. As to Nature 2. As to process -A mode of acquisition and reacquisition of Philippine citizenship. *As a mode of acquisition- CA 473 governs

*As a mode of re-acquisition- CA 63 governs.

-Very cumbersome and tedious.

-A mode of re-acquisition of Philippine citizenship.

-Simpler process

*Process is simple—requires only: 1. Take oath of allegiance

2. Registration with the Civil Registry

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(1.) Desertion of the Armed Forces (CA 63)

(2.) Service in the Armed Forces of Allied Forces during WW 2 (RA 965) (3.) Service in the US Armed Forces (RA 2630)

*See Bengzon III vs. HRET

(4.) Marriage of Filipino woman to an alien, political or economic necessity (RA 8171)

3. Direct Act of Congress *Dual Allegiance—Art. IV, Sec. 5

*‖Dual allegiance of citizens is inimical to the national interest and shall be dealt with in accordance with law.‖

Q. Is this provision self executing?

A. No. It says ―shall be dealt with by law‖. It means a future law. Q. Is there now a law that prohibits dual allegiance?

A. Yes. RA 7160, Sec. 40 (d) (Local Government Code)

―The following are disqualified from running for any elective local position: xxx

(d) Those with dual citizenship‖ (See Mercado vs. Manzano) MERCADO VS. MANZANO (307 SCRA 630, 26 May 1999)

*Edu Manzano was born in the US, of Filipino parents. In 1998 he ran for vice-mayor of Makati. His qualification was challenged. Note that RA 7160, Sec. 40 (d) disqualifies those with dual citizenship from running for local elective office.

SC: He is qualified to run. (1) Manzano has dual citizenship—since his parents are Filipinos, he is a Filipino; since he was born in the US, he is also a US citizen. Thus, he has dual citizenship.

(2) Dual Allegiance is Prohibited, Not Dual Citizenship—what is prohibited by the Constitution is dual allegiance, not dual citizenship. The concern of the Constitutional Commission was not with dual citizens per se, but with

naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase ―dual citizenship‖ in RA 7160, Sec. 40 (d) must be understood as referring to ―dual allegiance‖. Hence, persons with mere dual citizenship do not fall under the disqualification.

Situations Where Dual Citizenship Arises:

a. Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli.

b. Those born in the Philippines of Filipino mothers and alien fathers, if by the laws of their father‘s country, such children are citizens of that country. c. Those who marry aliens if by the laws of the latter‘s country the former are considered citizens, unless by their act or omission they are deemed to have renounced their Philippine citizenship.

Dual Allegiance vs. Dual Citizenship

Dual Allegiance Dual Citizenship 1. As to how it results

2. As to voluntariness

-A situation where a person simultaneously owes, by some positive act, loyalty to 2 or more states.

-Voluntary.

-Arises when, due to the concurrent application of the different laws of 2 or more states, a person is simultaneously

considered a national by said states.

Involuntary.

*RA 9225—Dual Citizenship Law (Citizenship Retention and Re-Acquisition Act of 2003)

RULE: Natural-born Filipinos who lost their Philippine citizenship by naturalization as citizens of a foreign country shall re-acquire/retain their Philippine citizenship upon taking the Oath of Allegiance. (Sec. 3, RA 9225) Effect of Re-Acquisition on Civil and Political Rights- the following rights can be exercised, subject to certain conditions:

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1. Right to vote- RA 9225 Sec. 5 (1) - must meet requirements of Sec. 1, Art. V and of RA 9189 (Overseas Absentee Voting Act of 2003)

2. Elective Public Office – RA 9225 Sec. 5 (2) – must renounce foreign citizenship before any public officer authorized to administer oath.

-Done at the time of the filing of the certificate of candidacy. -Thus, he will lose his dual citizenship- will have just 1 citizenship. 3. Appointive Public Office – RA 9225 Sec. 5 (3) – must also renounce. 4. Practice of Profession – subject to guidelines of proper regulatory agency.

-Art. 12, Sec. 14, 2nd par., 1987 Constitution- ―The practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.‖

Q. X was born in the USA on Jan. 10, 1973, of a Filipino mother and American father. He studied and worked in the Philippines. Can he run for Mayor?

A. (1) Under the 1935 Constitution, which was governing at the time of X‘s birth, he should elect Philippine citizenship upon reaching the age of majority.

(2) Under RA 9225, he is also a dual citizen—hence, he should first renounce his American citizenship.

*Res Judicata in Citizenship Cases GR: No res judicata in cases of citizenship.

EXCEPTION: Burca vs. Republic (51 SCRA 248, 1973) When the following requisites concur:

1. When the person‘s citizenship is raised as a material issue in a controversy where said person is a party;

2. When the Solicitor General or his authorized representative took active part in the resolution thereof; and

3. When the finding on citizenship is affirmed by the SC.

Structure of Government

3 Parts of a Written Constitution:

(1) Constitution of sovereignty – This refers to thee provisions pointing out the modes or procedure in accordance with which Formal changes in the constitution may be made.

Ex: Article XVIII – ―Amendments or Revisions‖

(2) Constitution of Liberty – the series of prescriptions setting forth the fundamental civil and political rights of the citizens and imposing limitations on the power of the government as a means of securing the enjoyment of those rights.

Ex: Article III – Bill or Rights

(3) Constitution of Government – provides for a structure and system of government; refers to the provisions outlining the organization of the Government, enumerating its powers, laying down certain rules relative to its administration and defining the electorate.

Ex: Article VI – Legislative Department Article VII – Executive Department Article VIII – Judicial Department Article IX – Constitutional Commissions

Doctrine of Separation of Powers in a presidential type of government The 3 great powers are distributed among the 3 great branches of government:

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Article VI, Sec 1 – ―The legislative power shall be vested in the congress of the Philippines…”

This is also called the POWER OF THE PURSE.

Executive power – Executive branch / President

Article VII, Sec 1 – ―The executive power shall be vested in the President of the Philippines…‖

This also called the POWER OF THE SWORD

Judicial power – Judiciary / Supreme Court

Article VIII, Sec 1 – ―The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.‖

This is also called the POWER OF JUDICIAL REVIEW

The legislative and the executive branches are called the POLITICAL BRANCHES.

Corollary to the principle of separation of powers:

Principles of checks and balances

Each branch of the government is a check of the others so that power will not be concentrated which might lead to abuse and irreparable damage. This allows 1 department to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments.

Ex: veto power of the President. Principle of non-delegation of Powers

GR – ―Potesta delegata non potest delegari‖ – Power delegated may no longer be delegated.

XPNs: Instances of permissible delegation – PETAL

Delegation to the People under the systems of initiative and referendum (plebiscite, Art. VI, Sec 1)

Delegation to the President of Emergency powers (Art VI, Sec 23) Delegation to the President of Tariff powers (Art VI, Sec 28[2]) Delegation to Administrative Bodies

Delegation to Local governments (Art. X)

There must always be an EXPRESS delegation! (by Law/Constitution)

Q. What are the requisites before emergency powers may be delegated to the President?

A. Under Article VI. Section 23. there are four: There must be a war or other national emergency. The delegation shall be for a limited period only

The delegation must be pursuant to a declared national policy

The delegation is subject to such restrictions and limitations as Congress may prescribe.

 The power is delegated from the Congress to the President (David vs Arroyo)

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Q. What is meant by delegation to administrative bodies?

A. It is the delegation of quasi-legislative powers to administrative agencies.

refers to the rule making power or power of subordinate legislation or power to promulgate rules and regulations to implement a given law/legislative policy.

Operative word, ―or‖ meant equivalent terms The power to ENACT laws still belongs to Congress.

 Tests of valid delegation vs. abdication of power

Undue delegation to the

delegate

Completeness Test

The law delegating the power must be complete in itself in the sense that the body on whom the power is delegated must have no discretion to exercise the power but to enforce it.

The law must be complete in all its terms and conditions, such that there is nothing more to be done by the body but to enforce it.

The law must set forth the policy to be executed, carried out or implemented by the delegate.

The delegate must not be authorized to fill in the gaps.

Sufficiency of Standards Test

The law must provide for standards that are determinate or at least determinate, which will define the limits of a delegate‘s authority.

The standard will guide the delegate in the exercise of the delegated power which standards must be determinate/determinable.

Q. What is a sufficient standard?

A. It is one that defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it.

Ex: (1) Power to organize agencies was delegated to the President Standard: to streamline the bureaucracy for economy and sufficiency. (2) Power to issue franchises delegated to LTFRB

Standard: For public convenience and security

The standards need not be found in the law delegating the power. Instead, standards may be found in other laws – what is important is that the standards are determinate or at least determinable (Chong Bian vs Ci-Bos) If the delegation meets the tests, it is valid.

What is prohibited is undue delegation or a delegation running riot.

If there is undue delegation, it is no longer delegation of power but abdication of power in favor of the delegate, which violates the doctrine of separation of powers.

Ratio: You cannot expect the Congress to anticipate all.

Article VI – LEGISLATIVE DEPARTMENT

Legislative Power

Article VI, Sec 1: ―The legislative power shall be vested in the congress of the Philippines, which shall consist of a Senate and a House of

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Representatives, except to the extent reserved to the people by the provisions on initiative and referendum.‖

Q. What power is vested in Congress?

A. Legislative Power under Article VI, Sec. 1 (The Power of the Purse).

Q. Is legislative power exclusively vested in Congress?

A. NO. Unlike in the 1935 constitution where the legislative power is exclusively vested in Congress, under the 1987 constitution, there is a reservation made to the people (initiative and referendum). (Art VI, Sec1).

The legislative power is not exclusively vested in Congress! It is vested in: Congress – made up of 2 houses:

Senate

House of Representatives We have a Bicameral Congress

The houses are co-equal bodies; hence the terms ―upper house‖ and ―lower house‖ are inaccurate!

Bicameral Conference Committee

See Phil. Judges Association vs. Hon. Prado, and Tolentino vs. Secretary of Finance.

―…to the extent reserved to the People by initiative and referendum‖

Article VI, Sec. 32 – The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions there from.

This is no self-executing.

Q. Has the Congress enacted a Law?

A. YES. R.A. 6735 (Initiative and Referendum Law) is the implementing provision of Sec 1 Art VI, 1987 Constitution.

3 kinds of Initiative under RA 6735:

Initiative on the Constitution

declared unconstitutional (Santiago vs. COMELEC)

Initiative on Statutes

Implemented Article VI. Sec 1

Refers to petitions proposing to enact a national legislation Valid

Initiative on Local Legislation

refers to petitions proposing to enact, amend, or repeal local ordinances. Valid.

Bar Q: What is initiative? What is Referendum?

A: Initiative is the power of the people to propose amendments to the Constitution on to propose and enact legislations through an election for the purpose (Sec 3(a), RA6735).

Referendum is the power of the electorate to approve or reject a legislation through an election called for the purpose (Sec. 3©, RA6735).

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Q: May the President enact laws?

A: NO. Legislative power is vested in Congress. Legislative power includes the power to ENACT, AMEND, or REPEAL. The power vested on the President is the EXECTIVE POWER or the power to IMPLEMENT laws.

PRESIDENT’S PARTICIPATION IN THE LAW-MAKING PROCESS

Q: Does the President have any participation in the Law-making process?

Yes, in the following instances: [SBUVS] When he exercises his veto power

Article VI, Sec 27. – ―Every bill passed by Congress shall before it becomes a law, be presented to the president. If he approves the same, he shall sign it; otherwise, he shall veto it…‖

When the president vetoes a bill, that bill doesn‘t become a law.

When he calls for a special session

Art VI. Sec 15 – ―The president may call a special session at any time‖ In effect, he will initiate the process

When the president certifies as the urgency of the bill to meet a public calamity or emergency.

Art VI, sec 26 (2) ―No bill passed by either house shall become a law unless it has passed three (3) readings on separate days x x x except when the president certifies as to the necessity of its immediate enactment to meet a public calamity or emergency.‖

The president hastens the process by dispensing with 3 separate readings on 3 separate days rule.

When the president signs a bill that becomes a law

Art VI, sec 27 – ―Every bill passed by Congress shall before it becomes a law, be presented to the president. If he approves the same, he shall sign it…‖

The president performs the last operative act for a bill to become a law.

When the president prepares a budget which is the basis of the GENERAL APPROPRIATIONS ACT.

Art VII, Sec 22 – ―The president shall submit to the congress x x x as basis of the general appropriations bill a budget for expenditures and sources of financing, including receipts from existing and proposed revenue measures.‖

NON-LEGISLATIVE POWERS OF CONGRESS (9): [IBAWI PA CE] Investigative power / power to conduct investigation (inquiries in aid of legislation)

Art VI, Sec 21 – “The senate or the house of representatives or any of its respective committees may conduct inquiries in aid of legislation or in accordance with its duly published rules of procedure…”

Power to declare the existence of a state of War

Art VI, Sec 23 – “The congress by a vote of 2/3 of both houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.” [*then based on such declaration, delegate emergency powers to the President]

Power to confirm a presidential appointments [through commission on Appointments]

Art VII, Sec 16 – “The president shall nominate and with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this constitution.”

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