Preliminary Examination For Constitutional Law 1 – E.H.

401

Memory Aid for Constitutional Law I

Constitutional Law Unwritten Constitution
 The study of the maintenance of the proper - Consists of rules which have not been integrated
balance between authority as represented by into a single, concrete for but are scattered in
the three inherent powers of the State and various sources such as statutes, judicial decisions,
liberty as guaranteed by the Bill of Rights customs and traditions and common law principles.
Conventional Constitution
Political Law - An enacted constitution, formally struck off at a
 It is the branch of public law which deals with the definite time and place following a conscious or
organization and obligations of the various deliberate effort taken by a constituent body or
instrumental organs of the state and defines the ruler.
relationship of the state and the inhabitants of its Cumulative Constitution
territory. - The result of political evolution, not inaugurated
at any specific time but changing by accretion
THREE INHERENT POWERS OF THE STATE rather than by any systematic method.
1. Police Power Rigid Constitution
2. Power of Eminent Domain Pervasive - One that can be amended only by a formal and
3. Power of Taxation Power usually difficult process
Flexible Constitution
Philippine Constitution - One that can be changed by ordinary legislation
 According to Cooley:
“The body of rules and maxim in accordance with which “The Philippine Constitution is written, conventional and
the powers of sovereignty are habitually exercised” rigid”
 According to Justice Malcolm: Advantage
“The written instrument enacted by direct action of the - It has the capacity to withstand capricious changes of those
people by which the fundamental powers of the who are in power.
government are established, limited and defined, and by
which those powers are distributed among the several Disadvantage
departments for their safe and useful exercise for the - If there is a legitimate need, the Constitution will impede
benefit of the body politic” progress

“The Constitution cannot be amended by the exigent

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”
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
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”
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.
BRIEF
- Provides for the basic principle leaving some
details susceptible for the legislation as may be
enacted by Congress.
DEFINITE/CLEAR
- To avoid ambiguity in its provisions that may
result to confusion and divisiveness among the
people.
ESSENTIAL PARTS OF A WRITTEN CONSTITUTION

Written Constitution Constitution of Liberty

- Its precepts are embodied in one document or  Bill of Rights: Sets forth the civil and political
set of documents. rights of the people

1
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
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)
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
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.
2
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
 ¾ 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
 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)
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?
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)
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”
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)
PEOPLE’S INITIATIVE
(Article 17, Section 2 of the 1987 Constitution)
Limitations of People’s 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 people’s 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
people’s initiative. Congress has to provide the
regulations on the implementation of this
system.
The system of people’s initiative can only be
used for amendments and never for revision.
3
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 People’s 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”
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”
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
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.
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.
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.
(Tañada 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
4
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.
 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)
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
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.
Preliminary Examination For Constitutional Law 1 – E.H. 401
FUNCTIONS of POWER OF JUDICIAL REVIEW
1. Checking Function
- To check the validity of the executive or
legislative acts in light with the 1987
Constitution. (Osmeña vs. COMELEC)
2. Legitimating/ Legitimizing Function
- 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.
3. Symbolic Function
- To enunciate or to promulgate sound doctrine to
guide the bench and the bar.
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
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
- 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)
- 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.
5
General Rule: In any case that is moot and academic
should be dismissed outright.
Exceptions:
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
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)
c. 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)
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.
- 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
Preliminary Examination For Constitutional Law 1 – E.H. 401
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.
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”
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”
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.
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.
6
The Issue must be determinative or the very “Lis Mota” of
the case
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.
b. Operative Fact Doctrine
- The effect of the law prior to its invalidation must be
respected.
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.