Constitutional Law Review Guide.docx

1 Public Law – deals with the sovereign capacity of the state; deals with issues that affect the general public or state - society as a whole. Some of the laws that its wide scope covers are:     

Administrative law - laws that govern government agencies, like the Department of Education and the Equal Employment Opportunity Commission Constitutional laws are laws that protect citizens' rights as afforded in the Constitution Criminal laws are laws that relate to crime Municipal laws are ordinances, regulations and by-laws that govern a city or town International laws are laws that oversee relations between nations

Political law - is that branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. Laws political in nature are abrogated during the change of sovereignty Civil Law – general law that governs family and property relations of the Philippines; a legal system originating in Europe, intellectualized within the framework of late Roman law, and whose most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law. Common law – is characterized by case law developed by judges, courts, and similar tribunals, when giving decisions in individual cases that have precedential effect on future cases. The body of past common law binds judges deciding later cases to ensure consistent treatment and so that consistent principles applied to similar facts yield similar outcomes. In common law cases, where the parties disagree on what the law is, the court is usually bound to follow the reasoning used in past decisions of relevant courts. If the court finds that the current dispute is fundamentally distinct from previous cases, judges have the authority and duty to make law by creating precedent. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of common law systems, but connotations of the term "common law" vary according to context, both in present-day use and historically. Constitutional Law a.

Constitution – is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract; if a law or contract violates any norm of the constitution is null and void and without any force and effect; a written document which embodies the legal principles of the state and the individual rights of its citizens. Latin word CONSTITUO (fixed, established, settled)

b.

Constitutional law – a branch of public law which deals with the constitution itself; their nature, formation, amendment, and interpretation; Constitutionalism – Political scientists use the word constitutionalism to describe the belief that a government's authority is dictated by a specific law or group of laws — a constitution

c.

Types of Constitution 1. 2. 3. 4. 5. 6.

Written Constitution – a type of constitution whose provisions are contained in a single document Unwritten constitution – provisions are not contained in a single document but rather in different documents (uncompiled constitution) Conventional or enacted – formulated by a constitutional convention that is called to draft a constitution Cumulative or evolved – not drafted by a positive act of the state but it developed as a part of the history of the nation Rigid or inelastic – one which cannot be easily amended unless such amendment is provided for by the constitution itself Flexible or elastic – one which can be easily changed anytime

Parts of a Constitution 1. 2. 3.

Constitution of Government – refers to those provisions which set up the governmental structure Constitution of Liberty – provisions which guarantee individual fundamental liberties against governmental abuse Constitution of Sovereignty – provisions which outline the process whereby the sovereign people may change the constitution

Essential qualities of a written Constitution 1. 2. 3.

Broad – provides for the organization and structure of the entire government; must embody the political history of the nation, the present realities and the future prospects Brief – must limit itself to the basic principles and leave the implementation of such to the legislative department Definite – in order to avoid unnecessary ambiguities which may lead to confusion brought about by different interpretation and constructions of its provisions.

Three Branches of the Government

2 Sovereignty is equal among these three: 1. 2. 3.

Executive – is the branch that the President works in, along with the Executive and Cabinet departments. It also has independent government agencies. Their main responsibility is to enforce the laws that the Legislative branch creates. They have the power to veto bills that they make, and can also appoint judges and pardon power in the Judicial branch. Legislative – is the branch of Congress, which is made up of the House of Representatives and Senate. Their main responsibility is to create laws. They also have the power of impeachment towards the President and can override vetoes with 2/3 the majority vote. The can also approve of federal judges. Judicial – is the branch of the Courts. It is made up of the Supreme Court, the Courts of Appeal, and District Courts. Their main responsibility is to interpret the laws that the Legislative branch has created. They also have the power to declare presidential acts as unconstitutional, and can declare laws as unconstitutional.

Rule of law – powers when not properly defined will be abused; this is what the Constitution is trying to achieve. Constitution per Country 1.

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English / British a. characterized by the absence of written constitution b. no judicial power to review c. courts does not have any say on the constitution European a. Reduced into writing but no power of judicial review b. Constitution is not supreme c. Parliament is supreme American a. Written + power of judicial review b. Cannot be altered by Congress alone c. Submitted to the people for plebiscite

Constitution of the Republic of the Philippines 1) The 1935 Constitution Ratified on May 14, 1935Features: a) Established the Commonwealth Government. b) Provided a Democratic and Republican government c) Inclusion of the Bill of Rights 2) The 1973 Constitution Ratified on January 17, 1973Features: a) Establishment of a modified parliamentary government. b) Suspension of the Bill of Rights. c) Has given greater power to the Executive Department. 3) The 1987 Constitution Ratified on February 2, 1987Features: a) Reinstitution of a Democratic Government. b) Separation of Church and State. c) Sovereignty of the people. d) Renunciation of war as a national policy. e) Supremacy of Civilian authority over the military. f) Separation of Powers Preamble – FromLatin “preambulare” which means “to walk before”; Itis an introduction to the main subject; It is the prologue of the Constitution. Purpose and value 1) Sets down the origin and purposes of the constitution. 2)May serve as an aid in its interpretation. NOTE: The preamble has no legal implications. AMENDMENT OR REVISION OF THE CONSTITUTION (Art. XVII) Section 1. Any amendment to, or revision of, this Constitution may be proposed by: [1] The Congress upon a vote of ¾ of all its Members; or [2] A constitutional Convention.

3 NOTE: Amendments to, or revision of the Constitution is VALID only when approved by a majority of the votes cast during the plebiscite, not by the votes of the Members of Congress. SUPREMACY OF THE CONSTITUTION Judicial Power - is the authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violations of such rights. Composition of the Supreme Court: 1. 2.

Chief Justice and 14 Associate Justices

Note: Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.

A. Theory on Judicial Review Judicial Review is the power of the SC to declare a law, treaty, ordinance etc. unconstitutional. This came into light because of the abuse in power particularly during the Martial Law when power was concentrated on one person. Lower courts may also exercise the power of judicial review, subject to the appellate jurisdiction of the SC. Only SC decisions are precedent, and thus, only SC decisions are binding on all. As early as 1936, the Philippine Supreme Court had unequivocally asserted its constitutional authority to engage in judicial review. This power was affirmed in the Supreme Court decision in Angara v. Electoral Commission, 63 Phil. 139 (1936). Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. Marbury vs Madison (landmark case) Judicial Power to Review   

Germany – parliament is supreme; courts can review the act of parliament; the effect is not to invalidate but only advisory and to rectify errors France – courts can do judicial preview; not review! Philippines – 1987 constitution does not only grant power to the court but also duty to review

Requisites of Judicial Review 1. An ACTUAL CASE calling for the exercise of judicial power 2. The question involved must be RIPE FOR ADJUDICATION, i.e. the government act must have had an adverse effect on the person challenging it. 3. The person challenging the governmental act must have ‘STANDING’, i.e. a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. 4. The question of Constitutionality must be raised in the first instance, or at the earliest opportunity. 5. Resolution of the issue of constitutionality is unavoidable or is the very lis mota.

B. Conditions for the exercise of Judicial Review 1. Seven (7) rules of avoidance of constitutional questions (Ashwander Rules)       

Friendly, non-adversarial proceeding (no vital conflict Anticipation of a question Formulation of a broader rule that what is required Creation of other grounds Complaint by one who has no legal standing Instance of one who benefited from the act Possibility of the construction

2. Policy of strict necessity 3. Political Question - Under the "political question" doctrine, the Judicial Branch cannot decide questions "in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government" (Tañada vs. Cuenco 103 Phil.1068); Certain provisions of the Constitution may not be judicially enforceable, and the resolution of the controversy must be referred to the political branches. 4. Advisory Opinion - opinion of a court upon a legal question submitted by a legislature, government official, or another court. A court's nonbinding interpretation of law

4 5. Mootness - is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical value. As a rule, courts decline jurisdiction over such case, or dismiss it on ground of Mootness. Exceptions:  There is grave violation of the constitution  Paramount public interest is involved  Situation is exceptional in character  Guidance 6. Ripeness - The question involved must be RIPE FOR ADJUDICATION, i.e. the government act must have had an adverse effect on the person challenging it; opposite of mootness 7. No Standing - The person challenging the governmental act must have ‘STANDING’, i.e. a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. (Baker vs. Cari) Doctrine of Purposeful Hesitation – If Lower courts are confronted by the constitutionality, they should defer any judgment because the declaration of nullity is within the Supreme Court Power of Supervision – to determine whether or not the acts in the Local Government Code are constitutional Power of Control – substitution of judgment Legal Standing – even if you are just a representative, case may still prosper if paramount public interest or transcendental importance The following must be avoided

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Political Questions Advisory opinions Moot and academic issues No standing

C. Functions of Judicial Review 1. 2. 3.

Checking – validating the law Legitimating (Legitimizing) Symbolic – educate the bench or bar; supreme function

D. Effect of Declaration of Unconstitutionality 1. 2. 3.

Civil Code, Art. 7 – Rights are not prejudiced by the subsequent declaration that the law is unconstitutional. Retroactive Effect - vested rights may have been acquired under such law before it was declared unconstitutional. Operative Fact Doctrine – Prior to the declaration that a particular law is unconstitutional, it is considered as an ‘operative fact’ which at that time had to be complied with; the Supreme Court “recognizes the existence of the law or executive act prior to the determination of its unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded

State - an organized community living under a single political structure and government, sovereign or constituent Elements of the State    

People – the population living in a state Territory – includes the land, the rivers, the sea, and the air space which the jurisdiction of the sate extends Sovereignty – the power to command and enforce obedience free from foreign control Government – the agency through which the will of the state is formulated, expressed and carried out

Inherent Powers of the State 1.

Power of Eminent Domain - Eminent domain is the right or power of a sovereign state to appropriate private property to particular uses to promote public welfare. It is an indispensable attribute of sovereignty; a power grounded in the primary duty of government to serve the common need and advance the general welfare.

2.

Police Power – is the power of the government to regulate behaviors and enforce order within its territory, often framed in terms of public welfare, security, health, and safety. The exercise of police power can be in the form of making laws, compelling obedience to those laws through physical means with the aim of removing liberty, legal sanctions, or other forms of coercion and inducements.

5 3.

Power of Taxation – the power to impose and collect taxes and charges on individuals, goods, services, and other to support the operation of the government.

HISTORICAL BACKGROUND OF THE PRESENT CONSTITUTION A. Treaty of Paris  

The legal milestone that marked the commencement of constitutionalism in the country was the Treaty Paris of 1898 (December 10) which terminated the war between the United States and Spain. With its supplemental protocol of agreement extending the period for the declaration of Spanish national and the additional treaty for the cessation of certain small islands, because of their direct bearing on the Philippines, can be considered as part of the supreme law of the land.

B. MCKINLEY’S INSTRUCTIONS (APRIL 7, 1900) – for the guidance of the Taft commission (2nd Philippine Commission) Schurman Commission (First Philippine Commission) 

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The legislative power conferred upon the commission included: o the organization and establishment of courts o The organization and establishment of municipal and departmental governments The legislative power was vested in a unicameral body called the Philippine Commission

C. SPOONER AMENDMENT (MARCH 2, 1901)    

a bill giving unprecedented powers to the executive branch in the development of colonial policy in the Philippines The first action of the US congress asserting its right to govern the Philippines was expressed in the Spooner amendment. A form of rider to the Army Appropriations Bill a significant milestone in the development of U.S.–Philippine policy because it allowed the president to govern the Philippines by authority of Congress and not by his wartime authority as commander in chief

D. PHILIPPINE BILL OF 1902 (July 1 1902)       

An act to temporarily provide for the administration of civil government in the Philippine islands. Did not establish a new form of government Provided for the calling for a popular assembly known as Philippine Assembly Philippine legislature = Philippine Commission + Philippine Assembly Extended the Bill of Rights of the US Constitution Until 1907 legislative power was vested in the Philippine commission From 1907, legislative power was vested in a bicameral legislature (Philippine Commission + Philippine Assembly)

E. JONES LAW (PHILIPPINE AUTONOMY ACT OF 1916)   

Superseded the Spooner amendment and the Philippine Bill 1902 Granted general legislative power except as otherwise provided therein to the Philippine Legislature Legislature is bicameral, 24 senate members representing 12 senatorial districts

F. Tydings-McDuffie Law (Philippine Independence Act o f 1934)  

Signed by President Franklin Roosevelt and approved by the Philippine Legislature Provides for the relinquishment of American sovereignty over the Philippines upon the expiration of a transition period of 1 year during which the archipelago was to be under the regime of an all-Filipino Commonwealth government established in accordance with a constitution

G. 1935 Constitution (May 14)       

The Tydings-McDuffie Law authorized the calling of a constitutional convention to provide for the adoption of a constitution and a form of government for the Philippines Sec 1 of the said law provided for the election of delegates to a constitutional convention which shall meet at the house of representatives The Philippine legislature (Legislative system is Bicameral) was required to appropriate the necessary funds to cover the expenses of the convention (202 delegates) Considered as a transition government for ten years before the granting of the Philippine independence. Philippine Legislature was replaced by National Assembly (unicameral) Presidential system of government Has a preamble, 17 articles and an ordinance appended thereto

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Provides for a republican form of government, follows the principle of separation of powers, contains bill of rights Guarantees freedom of speech, press and religion Modelled after the constitution of the US Has a National Assembly, Executive and independent judiciary Three amendments (1940) – Resolution No. 38, amended by Resolution No. 73 o In 1940, National Assembly was abolished and replaced with Congress (senate and HOR) o Term of pres and vice are decreased from 6 to 4 years o Commission on Election was created 1947 Amendment (first congress) o Parity rights was introduced – allow citizens of the US and business enterprises owned or control by them equal rights in the disposition, exploitation, development and utilization of natural resources and the operation of public utilities in the country o The Bell Trade Act of 1946, also known as the Philippine Trade Act, was an act passed by the United States Congress specifying policy governing trade between the Philippines and the United States following independence of the Philippines from the United States

H. 1973 Constitution 

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Parliamentary system of government o President (Head of State) o National Assembly (elected by the people) o Prime Minister (Elected by assembly) – will be assisted by a cabinet which will be appointed by him and mostly from the National Assembly Has a preamble, 17 Titled articles Official text is in English and Pilipino and translated into local dialects including Spanish and Arabic In case of conflict, the English text shall prevail President exercised lawmaking powers with the aid of Batasang Bayan Batasang Bayan o a quasi-legislative machinery set up in compliance with the mandate expressed in the referendum of July 1973 o served as a forum for discussing policies and programs of the crisis government o functioned as a mechanism for evaluating policies and programs of the local government units (barangay and sangguniang bayan) o appropriate legislative transition to the Interim batasang pambansa o composed of  cabinet members and officers with cabinet rank  members of the executive committee of the Katipunan ng mga Sanggunian  one representative each from the 13 regions  President as the presiding officer Underwent 7 amendments (PD No. 1033) o Granting of concurrent lawmaking powers to the President o Creation of Interim Batasang Pambansa (120 Members)  Will have the same power as National Assembly  To replace Congress of the 1935 Constitution o People’s assembly (elected regional members) o Made the incumbent President the regular President and regular Prime Minister o PD 1296 or Revised Election Code of 1978 – provided for the holding of elections for the IBP; representation is by region January 17, 1982, Martial Law was terminated January 30, 1982, the fourth republican government was restored August 21, 1983 – Ninoy Aquino was assassinated abolished the Executive Committee and restored the position of Vice-President

I. 1986 Freedom Constitution or Provisional Constitution (Proclamation No. 3)     

February 25, 1986, Corazon Aquino was proclaimed President of the Philippines Batasang Pambansa was abolished and replaced with revolutionary government Proclamation No. 1 declared that she and her vice president were taking power in the name and by the will of the Filipino people It adopted certain provisions from the 1973 Constitution while abolishing others. It granted the President broad powers to reorganize government and remove officials, as well as mandating the president to appoint a commission to draft a new, more formal Constitution. This document, described above, supplanted the "Freedom Constitution" upon its ratification in 198

J. 1987 Constitution

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Proclamation No. 9 – called for a new draft of the constitution and created the Constitutional Commission of 1986 not republican but democratic state Its final draft was completed by the Constitutional Commission on October 12, 1986 and was ratified by a nationwide plebiscite on February 2, 1987 Three other previous constitutions have effectively governed the country in the past: o the 1935 Commonwealth Constitution o the 1973 Constitution, and o the 1986 Freedom Constitution. The 1899 Malolos Constitution, was never fully implemented throughout the Philippines The Constitutional Commission was composed of fifty members appointed by Aquino from varied backgrounds including several former members of the House of Representatives, former justices of the Supreme Court, a Roman Catholic bishop, and political activists against the Marcos regime. The Commission elected Cecilia Muñoz-Palma, a former Associate Justice of the Supreme Court, as its president. Several issues were of particular contention during the Commission's sessions, including the form of government to adopt, the abolition of the death penalty, the retention of the U.S. bases in Clark and Subic, and the integration of economic policies into the constitution. The Commission finished the final draft on October 12, 1986 and presented it to Aquino on October 15. The constitution was ratified by a nationwide plebiscite on February 2, 1987.

Cases: Labugal Case (Enumerate) Drilon vs Lim Arroyo vs David Baker vs Cari Magalona vs. Executive Secretary Marbury vs Madison Francisco vs House of Representatives Ashwander rules The Ashwander rules, articulated by Justice Louis D. Brandeis, are a set of principles used by the United States Supreme Court for avoiding constitutional rulings. Rules for Judicial Self-Restraint and Avoiding Constitutional Questions Justice Louis D. Brandeis, concurring in Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), summarized some prudential rules for exercising judicial self-restraint and avoiding ruling on the constitutionality of congressional legislation: The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

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The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions "is legitimate only in the last resort, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act."[1] The Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it." [2] "It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." [3] The Court will not "formulate a rule of constitutional law broader than is required by the Precise facts to which it is to be applied." [2] The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right to challenge to one who lacks a personal or property right. (While not mentioned in Ashwander, there are exceptions in the case of a First Amendment challenge where the party may raise the effect of a law on other person's First Amendment rights, the so called "chilling effect" doctrine.) The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." [4]

Kinds of Constitution

8 Form a. Written constitution – in text form; created by constitutional assembly Pros - It has the advantage of clearness and definiteness - Since the written constitution is a binding document, the rights of the citizen is more secured Cons - lies in the difficulty of its amendment. This prevents the immediate introduction of needed reforms and may thereby retard the healthy growth and progress of the State Requisites of a good written constitution BRIEF: because if a constitution is too detailed, it would lose the advantage of a fundamental law. It would never be understood by the public. BROAD: because a statement of the powers and functions of government, and of the relations between the governing body and the governed, requires that it be as comprehensive as possible. DEFINITE: because otherwise the application of its provision to concrete situations may prove unduly difficult if not impossible. b. Unwritten constitution – one which is entirely a product of political evolution, consisting largely of a mass of customs, usages, and judicial decisions Origin and History a. Cumulative - one which is a product of a long period of development originating in customs, traditions, judicial decisions etc., rather than from deliberate and formal enactment. (E.g. English Constitution) b. Conventional - one which is enacted by a constituent assembly or granted by a monarch to his subjects (e.g. Constitution of Japan) Manner a. Rigid- one regarded as a document of special sanctity, which cannot be amended or altered except by some special machinery other than ordinary legislative process b. Flexible - one which possesses no higher legal authority than ordinary laws and which may be altered in the same way as other laws. The 1987 Philippine Constitution is thus a conventional/enacted, written, and rigid/inelastic constitution.

Terms Lis Mota – the cause of the suit or action Locus Standi – Legal Standing Quo Warranto – petition questioning the public officer Apellate Jurisdiction – power of the court to review and change decisions of the lower courts Mandamus – a judicial remedy in the form of an order from a superior court Certiorari - a writ or order by which a higher court reviews a decision of a lower court.

Sources: http://www.slideshare.net/princekurt11/philippine-constitution-15452864