Transcription in Constitutional Law: June 8, 2016

Essential requisites of an effective written constitution:

1. Broad
2. Brief
3. Definite.
Kinds of Constitution (According to how it originated)
1 Enacted or Conventional if it was deliberately made for a certain period of time by the
people themselves
4. Cumulative or Evolved one that is a result of a day-in and out activities of the people. It
takes a number of not just days but years or centuries. In an unwritten constitution, some of
the sources are the conventions, traditions, and customs. A practice is not a convention or a
custom if it has not been followed for a number of years. It takes time, so it is cumulative. In
the parliament, it does not make parliament acts or laws only for a day or two, for as long as
the government is operating, they continue to create parliament acts which form part of the
constitution (this is an example of cumulative constitution).
Constitutions of the Philippines
1 Malolos Constitution - drafted by Felipe Calderon, et. al.
5. Revolutionary - ie. Katipunan
6. Constitution of the Republic of Biak na Bato - by Aguinaldo
7. The American Regime and the Organic Acts
8. 1935 Constitution (enacted pursuant to the Tydings-McDuffie)
9. 1973 Constitution
10.1987 Constitution (Pursuant to Proclamation No. 09 to draft a constitution)

1987 Constitution - took effect upon the ratification by the people. Under Section 27,
Article 18 of the 1987 Constitution:

SECTION 27. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose and shall supersede all
previous Constitutions. The above provision is different from the 1973 Constitution as the latter
took effect upon the declaration of President Marcos under Presidential Proclamation 1102.
Hence, it was duly ratified on January 17, 1973.
In De Leon v Esguerra, the effectivity was based on the date the people ratified it pursuant to the
provision of the Constitution (Section 27, Article 18). The effectivity is important because there
were provisions in the 1973 Constitution that were not carried to the 1987 Constitution (ie. death
penalty - abolished in the present Constitution except for compelling reasons)

The Philippine Constitution is a rigid constitution as opposed to a flexible constitution. A

procedure has to be followed:

1. Proposal Changes that can be made: amendment or revision. In Lambino v Comelec,

there is amendment when the only change pertains to certain provision/s without
changing the principle of the Constitution. In revision, there is overhauling of the
constitution, the change is on the principle.
Examples: term of office of the president - an amendment as it is a change of the
system, not a change of principle; a change from presidential to parliament - a revision as
it changes the form of government, and thus practically the entire constitution.
2. Submission
3. Ratification

Who can propose amendment and revision

The President cannot propose a revision nor amendment.
This was settled in the case of North Cotabato. Presidents Arroyos signing of the MOAD
for the establishment of a juridical entity (a sub-state) is a proposal to the revise the
Constitution. This cannot be done as the President does not have that power.
There were, however, times when the President had the power to propose revisions to the
Constitution. One was the time of Martial Law when then President Marcos possessed
legislative powers. Another was during the time of then President Corazon Aquino under
the revolutionary government when she, in the exercise of her legislative powers, issued a
Proclamation No. 3 promulgating the Freedom Constitution. So if the question in the Bar
Exam is was there a time when the President can propose amendments to the
Constitution? Yes. But under the 1987 Constitution, the President does not anymore have
that power.

Only the following can propose revision or amendment:

1) Congress
o Can propose amendments and revisions
o Requires vote in the Senate and in the House of Representatives
o This is an exercise of Congress power as a constituent assembly, which is distinct
from its power as a lawmaker. These are two independent powers. When they
appropriate funds for the operation of the constituent assembly, then they are
acting as ordinary lawmakers.
2) Constitutional convention
o Can propose amendments and revisions
o How is a ConCon created?
Congress, in its discretion, can create a ConCon by 2/3 vote.
If the 2/3 vote cannot be obtained, the remedy is for Congress to submit it to
the people in a referendum, asking the people if they want to have a ConCon
in order to propose the changes.
o The proposal is then submitted to the people. The requirement is that it should not
be given or submitted to the people on installment basis/piece-meal. The whole
document should be submitted to the people so that they will understand the
relationship between the parts of the proposals.
o Then, there will be a plebiscite to be called which should not be earlier than 60 days
nor later than 90 days from the approval of the proposal.
o Majority of the votes cast in the plebiscite is needed for approval/ratification/make
the proposal effective. In the case of the 1987, it took effect on Feb. 2, 1987 (De
Leon vs. Esguerra).
3) The people, in general
o People can only propose amendment, not revision. (Lambino vs. Comelec)
o Must be initiated by at least 12% of the registered voters with at least 3% from each
legislative district. These 2 requirements must concur.
o Cannot be as often as once every 5 years.
o In the Santiago case, the Supreme Court declared that RA 6735 (Initiative and
Referendum Act) is not sufficient to provide for a system of amendments to the
Constitution. It only clearly provided for amendment to statutes. Although Sec. 32,

Art. VI of the Constitution mandates Congress to pass a law to provide for the
procedure of amendment to the Constitution through initiative and referendum (the
provision is not self-executing but requires an enabling law), the law passed was
unfortunately insufficient for this purpose.
In Lambino vs. Comelec, the Supreme Court ruled that because the people are the
authors of the proposal, the petition should be signed by the people. Copies of the
petitions are not as much as the number of signatures, indicating that the people
signed without reading. Thus, the petition was not given due course.

Forms of government established

If the government is democratic that means we have a democratic Constitution.
If the government is presidential then the Constitution is Presidential.
Parts of the Constitution
1) Constitution of sovereignty
o These are the provisions on amending the Constitution
2) Constitution of liberty
o Bill of rights
3) Constitution of government
o Powers and functions of the government.
Construction of the provisions of the Constitution
-

If the word is ordinary then it has to be given ordinary meaning. But if it has a special
meaning or if you are in doubt, you go into the intent of the framers of the Constitution.

Provisions are presumed to be self-executing, as a general rule. Exceptions are those

which only provide guidelines or principles for executive action, such as Art. II on
Declaration of Principles and State Policies. These cannot be used as bases for judicial
action because legislative enactment is needed for these to be implemented.

The provisions are mandatory, as a general rule. There are certain provisions, however,
that are merely directory, such as the giving of highest priority to education in the budget
(Carague case).

Judicial review
Judicial power the power to settle controversies involving rights and obligations based on an
existing provision of the Constitution or a statute, and to determine whether there has been
grave abuse of discretion in the exercise of powers of the other branches of government.
Judicial review the power to test the validity of executive and legislative actions in relation to
the Constitution.
In the case of Aquino vs. Araullo, the Supreme Court said that the previous constitutions equally
recognized the extent of the power of judicial review and the great responsibility of the judiciary
in maintaining the allocation of powers among the 3 great branches of the government.

What judicial review includes

Judicial review includes:
1. Checking
If the law or executive act is contrary to the Constitution, the court will declare it as
unconstitutional, therefore null and void ab initio.
2. Legitimating
If it is in conformity with the Constitution, the court will ratify or legitimize the law which is
presumed valid when enacted.
3. Educating
Ultimately, may it be checking or legitimating, the court educates the judges and lawyers
by providing guidelines, principles and precepts because in the event that the same issue
will arise then they will be guided accordingly in how to resolve the conflict.

Who exercises judicial review

Judicial review is not exclusive to the Supreme Court. It is also exercised by the lower courts.
Although, ultimately, the Supreme Court makes the final determination whether the act is in
conformity with the Constitution, lower courts like the RTC may also review.
In Garcia vs. Drilon, it was held that the Family Court is a court of the same rank as the RTC
which has the power to review the constitutionality of RA 9262 as being allegedly discriminatory
against the males.
The bases for the power of lower courts are:
a. Sec. 1 Art. 8 which provides that judicial power is vested in the Supreme Court and
such other courts as may be established by law.
b. Sec. 5 Art. 8 on Supreme Courts review of validity of statutes, acts, ordinances,
etc. If the lower courts will not exercise the power, then there is nothing for the
Supreme Court to review.
However, the lower courts are cautioned. Although they must not shy away from the duty of
determining whether the act is in conformity with the Constitution or not, they must exercise the
power with utmost prudence and caution because it will create disability.
An example is the ordinance on the clamping of illegally parked vehicles. One RTC branch in
Cebu City says it is unconstitutional as the owner is not being informed that the vehicle will be
clamped and towed, thus property is being taken without due process of law. The decision
became final for failure of the losing party, the Cebu City government, to appeal. In another case
brought before another RTC branch, the same question was raised. This case eventually reached
the Supreme Court and it was ruled that such act of clamping is not unconstitutional. There is no
need to inform the owner because he was not even there in the first place and the vehicle is
already obstructing the traffic flow. One of the arguments of the party is that there is already a
judgment by an RTC that the act is unconstitutional and thus the SC must abide. This is of
course, incorrect. Only decisions of the SC bind the whole world. Those of the lower courts bind
only the parties.
Reason for judicial review
The basic reason for judicial review is to uphold the supremacy of the Constitution, not the
supremacy of the Supreme Court nor the judiciary.
Requisites for judicial review

The power of judicial review needs to be exercised with caution, lest it will violate the principle of
separation of powers and intrude into the sphere of a co-equal branch of government. Thus,
there are certain requisites that must be complied with for the exercise of the power of judicial
review.
Requisites for the exercise of judicial power:
1) Actual case or controversy
2) Raised by the proper party
3) Raised at the earliest opportunity or time
4) Issue of constitutionality is the lismota or ultimate issue
On actual case or controversy
- When we say PREMATURE, no right yet has been established or ripened; no violation of a
right has been done yet that would call for a review of the law.
EXAMPLE: A law is going to be passed that will result in the loss of ones job
(reorganization of office). To stop this, he asks the court to enjoin the implementation of
the law. By doing this, he questions the validity of the law for being violative of his
security of tenure. Is there an actual case or controversy? NONE, because he has not lost
his job yet. In fact, the law hasnt been enforced yet. The court should therefore not
entertain such petition, because then it would amount to asking for advice or opinion of
the court based on a hypothetical situation. This would then be a violation of the
separation of powers.
The issue has to be a continuing one. It has to exist all throughout the case, until it is resolved by
the court.
- It should not become MOOT AND ACADEMIC (It does not exist anymore).
- Formento v Estrada: Erap ran for President. The issue was as to his qualification to run as
president. The case was dismissed by the Supreme Court because, ultimately, he was not
elected. Thus, the issue is moot and academic.
- Arroyo case: President declared a state of rebellion. Subsequently, this was lifted. The SC
dismissed the petition questioning the Presidents declaring of a state of rebellion since
the issue had already become moot and academic as there was no more rebellion to
review as it was already lifted. Although, in the Drilon case, The SC proceeded in
reviewing the issue of constitutionality of the declaration of a state of national emergency,
notwithstanding the fact that the declaration was lifted.
What is the EXCEPTION to this rule? When will the court decide on the case despite it
already being moot? CASE: David et al. v Arroyo: The moot and academic principle is not a
magical formula that can automatically dissuade the courts from resolving a case. The cases
must still be decided however moot and academic when:
There is clear/patent violation of the Constitution.
Exceptional character of the issue; is of transcendental importance or of paramount
interest
There is a possibility that the issue will be repeated in the future and will evade any
review
Requires formulation of controlling principles to guide the bench, bar and the public
Note: these requisites were also repeated in Belgica v Ochoa (PDAF), where even though
the practice of PDAF was already discontinued, the SC still decided on the case because
there was still a controversy. The character of the issue is of transcendental importance
or of paramount public interest.

 Nature of the question that may be subject of judicial review: GENERALLY has to be a
question pertaining to the constitutionality or legality of the executive act or law, to be a
justiciable question. Otherwise, it is a political question.
What is a political question? It is one where what is questioned is the WISDOM or RATIONALE
of the law. Such question can only be answered by the people in their sovereign capacity,
which capacity has been delegated to either the president or to congress.
o

EXAMPLE: On the MORALITY of the RH Law. This is not subject of judicial review.
What can be questioned are only matters relating to the Constitution, rather than
the reasoning on why the law was passed (Imbong v Ochoa). Political questions are
beyond the ambit of judicial inquiry.

What is the EXCEPTION to this rule? When there is GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION. Thus, even if political questions are the
prerogative of the legislative or executive branch, this can still be inquired into by the
judicial department exercising its judicial review power.
Ochoa case: On the issue of health, as guaranteed under the Constitution, and on
womens right. If there is any question on its validity or constitutionality you have to refer
to a Constitutional provision rather than on to the reasoning why the law was passed
because that is beyond the realm of the courts to inquire into as that is being stead in
Congress to determine as to the rationale or the wisdom of the enactment of the law.

Subject of Judicial Review:

As a rule, only justiciable questions
Political questions are beyond the ambit of Judicial Inquiry
Except:
when there is questions of grave abuse of prerogative or discretion amounting to lack or excess
of jurisdiction.
There are even questions of political in nature or prerogatives of the Executive or Legislative
Department can be inquired into by the Supreme Court exercising its Judicial Review power.
Elements of Judicial Review:
(1) He must be a proper party;
One who has the legal standing to appear in court
Who stands to the benefit or to be aggrieved by the decision of the court on the issue.
If one who is directly injured or in the imminent danger of sustaining injury, in other words, injury
must be direct or potential. So, what we follow in this jurisdiction is Direct Injury Principle.
Two exemptions of the Direct Injury Principle:

1. Question on the validity of the ratification of the Constitution, any citizen can be a
proper party even if he is not directly injured, pertaining to the ratification or any amendment or
changes of the Constitution;
2. Questioning the factual basis of the declaration of the Martial Law or of the
suspension of the privilege of the Writ of Habeas Corpus, even if he was not arrested or
any warrant or account of the suspension of the privilege of the Writ of Habeas Corpus he can
still be a proper party to question the validity of the Declaration of the Martial Law or suspension
of the privilege of the Writ of Habeas Corpus.

 Oposa vs. Secretary of DENR: where the minor children are considered as the proper
party being the representative of the next generation, that if there is no stopping to the
illegal logging or the cutting of trees, it is certain as the sun will rise in the east and that
there will be no trees for them to inherit. And they have the Right to Healthful and
Balanced Ecology under the Principle of Intergenerational Responsibility.
-

Taxpayer:
When is a taxpayer considered a proper party?
Two instances:
When there is an illegal disbursement of public funds. Or anomalous or irregular disbursement of
public fund or a misapplication of public fund. Then in which case a taxpayer is a proper party;
When it involves exorbitant impositions of taxes amounting to taking of property without due
process of law.
Voter:
When is a voter a proper party?
It must show that it pertains to his right of suffrage, right to vote or it affects his right to run in
public office.
Members of Congress:
Are they considered proper party questioning the validity of an Executive Act?
Yes. When it involves the prerogatives as members of Congress or it impairs the exercise of their
legislative powers.
Drilon questioned the validity of EO 464 (re: invocation of Executive Privilege by Cabinet
Members) and the Supreme Court sustained the personality of Drilon as a proper party because
the law being questioned impairs a Legislative Prerogative insofar as Legislative Inquiry is
concerned.
Government, in general:
Can it be a proper party?
Yes.
In one of the cases mentioned, the question of the constitutionality of the Probation Law was
raised as it was applied only in provinces where there are available funds, so if you were
convicted in a province where there is no available funds, you have to serve your sentence even
if the penalty is just six years or lower and it is considered a violation of the Equal Protection
clause and that is the question of constitutionality of the government itself and the Supreme
Court sustained the position of the government as a proper party.
Corporate Entity:
Can a corporate entity be a proper party?
Yes.
The party suing must have a substantial relation to the third party and the third party cannot
assert its constitutional right, the right of the third party will be diluted unless the party of the
court is allowed to espouse the partys constitutional claim.
Political Law vs. Civil Law (Proper party):
When we speak of a proper party here in political law, this is not the same as in civil law when we
have an actionable right. Otherwise, if you have no such actionable right then you are not
considered as a proper party. The case can be dismissed for the lack of cause of action and that
is not the kind of proper party in political law.

La Bugal-B'Laan Tribal Association, Inc. v. Ramos: as the case involves Constitutional

questions the Supreme Court is not concerned with whether the petitioners are real parties in
interest but whether they have legal standing. It is not based on real parties in interest but
whether the parties have legal standing.
Proper Party:
As a rule, proper party is required.
However, the requirement of proper party may be set aside as a mere procedural
technical principlewhen the issue involved is of transcendental importance or of
paramount of public interest.
David et. al. vs. Arroyo: where the Supreme Court said in the exercise of discretion the
Supreme Court may set aside the requirement of proper party even when the petitioners have
failed to show direct injury they are be allowed to sue under the principle of transcendental
importance of over-reaching of the significance of society or of the paramount of public interest.
Ochoa case: on whether or not the petitioners are proper party, they were allowed to intervene
even if they may have no direct interest on the outcome of the case because the issue involved
is over-reaching or of significance of transcendental importance to the society even if they are
not directly injured by the act of the complaint of and they were considered as proper party.
(2) It must be raised at the earliest opportunity of time:
which means that the earliest opportunity is when you filed your complaint you must take that
already questioning the constitutionality of the act either of the President or the Congress. But, if
you still have the chance to state that in your pleadings, at least, you should have presented or
you should have raised the issue during the presentation of the evidence.
How do you go about that?
If you were the complainant, you state that in your complaint. If you were the defendant or
respondent, you should have stated that in your Answer to the issue on of constitutionality, for
example, you were the complainant, you say the law you are asking for relief, such as, an
injunction to stop the law which is contrary to the Constitution, that must be stated in the
complaint. But, if there was no mention at all about it and you were the defendant and you use it
as a defense then you should have stated that in your Answer that the law is not
unconstitutional.
Exception:
In criminal cases:
The issue of constitutionality can be raised anytime even for the first time on appeal.
Why? for an act to be considered a crime or an omission to be considered as a crime, there has
to be a law defining it as a crime, and if that law will be declared unconstitutional, then it would
be as if there is no law punishing the act and if there is no law punishing the act then there is no
crime committed.
Or the issue is jurisdiction? Anytime, may be criminal or civil because if the court does not have
jurisdiction then the proceedings are void and that can always be challenged at any stage of the
proceedings even for the first time on appeal.
In civil cases:
even if it was raised for the first time on appeal it can still be entertained by the court if it is the
lis mota of the case which means the case cannot be decided or the main case cannot be
decided on the merit without first resolving the issue of constitutionality.
(3) The issue of constitutionality must be the lis mota or the ultimate issue:
to the extent that the case cannot be decided on its merit without first resolving the issue of
constitutionality.

In reference to the Separation of Powers, the courts should refrain from reviewing the
prerogatives of co-equal branches of government and must resolve the issue on other grounds, if
possible. For example, without going to the merit of the case, the Supreme Court can dismiss the
petition outright because the person who raised it is not a proper party where that it is still
premature or the issue has already become moot and academic or the person who raised it is in
estoppel or the court has no jurisdiction without getting into the merit of the issue being
complained of.
Basically, in order to maintain the separation of the three branches only when there is grave
violation of the constitution where the Supreme Court may look into the validity or of the
constitutionality of the act of complained of either of the President or that of Congress.
If the court finds the law to be contrary to the Constitution, there has to be a declaration that the
law is unconstitutional. If it is in conformity with the Constitution, then the declaration is that it is
not unconstitutional (double negative).
If the law is declared unconstitutional:
Under the Orthodox (conservative) view, the law is considered void ab initio, i.e. as if it
has never been passed. It creates no office, affords no rights nor creates no obligation.
Under the modern view, the law is considered valid until declared unconstitutional, i.e. it
is voidable. The operative fact doctrine is followed.
Operative fact doctrine doctrine that recognizes the existence of the law or executive
act prior to the determination of its unconstitutionality as an operative fact that produce
consequences that cannot be erased, ignored or disregarded. In short, it nullifies the void
law or executive act but sustains its effects. It applies only to cases where (1)
extraordinary circumstances exist; and (2) the extraordinary circumstances have met the
stringent conditions that will permit its application.
For reasons of equity, it may not be fair and just to simply ignore the effects of the law
which took place before it was declared unconstitutional.
- An example was the DAP, which was eventually declared unconstitutional. There are
already posts, bridges and other projects installed prior to the declaration.
- In the case of Chavez vs. JBC where the issue is the composition of the JBC, the
practice was to have 2 representatives in the JBC coming from Congress while the
Constitution requires only 1 representative each from the executive, legislative and
judiciary. The SC eventually declared that the practice of having 2 representatives is void.
So what happens to the nominations? The operative fact doctrine was applied so that the
declaration does not affect the prior nominations.
Fundamental powers of the State
Inherent powers
- Police power, power of eminent domain, power of taxation
- Considered inherent because even without Constitutional conferment it is
understood that the State can exercise those powers; because without those powers the
State cannot exist
- Methods by which State interferes with or limits the rights of individuals

Police power
- The most pervasive and comprehensive
- The right limited or regulated is the right to liberty and property
- The limitation or regulation may only be on the use of the property for the purpose
of promoting the general welfare. It is not necessary that there is taking of the property.
Eminent domain

- Taking of private property for public use after payment of just compensation
- What is regulated is the ownership of property. The moment the property is
expropriated then you cease to be the owner therof.
Taxation
- Raising of revenues for government use
- What is being regulated is the use of the fruits of the property, not the ownership
unless taxes have not been paid where the property may be sold in public auction to pay
for the tax deficiency.

Authority

Compensation

Police Power
Exercised by
Congress in
general, being the
law-making body.
There are
exceptions though
under valid
delegation by
Congress.

Eminent Domain
Exercised by
Congress and
corporations
engaged in the
operation of public
utilities.

Taxation
Exercised by
Congress in
general, being the
law-making body.
There are
exceptions though
under valid
delegation by
Congress, e.g. the
determination of
tariff rates being
delegated to the
President.
No monetary
There is monetary The compensation
compensation. The compensation,
is in terms of
compensation is
which is just
services and
the altruistic
compensation.
infrastructures, not
feeling that the
monetary.
welfare of the
people is
promoted.

Police power
- Legal bases:
(1)Salus populi est suprema lex (the welfare of the people is the supreme law)
(2) (So, use what is yours in such a way that you will not harm what is not yours or
others)

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Exercised by Congress, except under permissible delegation of legislative powers

DISCUSSION ON THE INHERENT POWERS OF THE STATE
POLICE POWER

Justifications for police power:

1. The welfare of the people is the supreme law.
-

If there is a conflict between public welfare and individual rights, public welfare prevails.
Public welfare may take many forms such as public order, public policy and public health,
basically anything that pertains to the public. The purpose of which is to promote the welfare of
the people.
It is the most pervasive of all the powers of the state since laws govern us from the moment of
birth til death.
2. A person must make sure that he will not use what is his to harm the rights of others.
-

Your right stops the moment the right of another begins.

Who exercises the power: Congress except under permissible delegation of powers to:
-

The President exercising emergency powers whenever there is war or national emergency
under Sec. 23, Art. 6 of the Constitution. The power is exercised until withdrawn by Congress but
if not, it will last only until the next adjournment of session of Congress. (Read the case of Drilon
vs. Exec. Secretary)
Who declares a state of national emergency:

While we have the case of Lacson stating that the president has the power to declare a state of
rebellion prior to the declaration of Martial Law or suspension of the privilege of the writ of
Habeas Corpus, the president is also in a better position to declare a state of emergency
considering that the president is the Chief Executive and is the one administering the laws. The
president is also the Commander-in-Chief of the AFP whose concern is National Security. (Drilon
case)
However, the president cannot exercise emergency powers upon such declaration. Since the
power can only be exercised upon delegation by Congress so there has to be a legislative
enactment. (Sec. 23)
The exercise of the legislative power is limited and it must be used only to carry out the
legislative intent and this must be found in the law delegating the power. It is also for a limited
period of time. It can be withdrawn earlier, not by a statute but by a resolution. Because a
statute can be vetoed by the president while a resolution does not require the president's
signature.
- Administrative Bodies through the concept of subordinate legislation.
This is limited only to rule-making in order to execute a law.
Administrative bodies are expert in their field so they are in a better position to implement the
law to promote the general welfare
They define the parameters within which to implement the law or supplement when the law is
lacking on details.

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However, they can only implement the law when there is complete delegation there is therefore
no discretion left to the admin bodies to determine what the law is all they have to do is
implement it. To determine complete delegation you have to use the following:
1. Completeness Test (Santiago vs. Ramos)
2. Sufficiency of Standard Test.
Disini Case

There was a creation of a committee that would provide guidelines for the implementation of the
Anti-Cybercrime Law. The Issue here is the constitutionality of the creation of the committee
alleging that there is a violation of non-delegation of legislative powers.
Supreme Court: there was no violation since the law itself is complete on the functions and
duties of the committee.
The case of Department of Energy regarding the EPIRA Law

Supreme Court: the law is complete so there was no violation of the non-delegation of
legislative powers. The following test should be utilized to determine if there was complete
delegation of legislative powers:
1. The first test is that the law must be complete in all its terms and conditions such that it
reaches the delegate and the only thing he has to do is enforce it.
2. The second test is that there has to be adequate guidelines on limitations of the exercise of
the powers and prevent the delegation from running riot. The EPIRA is sufficient in all its
essential terms and standards.
On administrative bodies exercising police powers, it has to be with the approval or
imprimatur of the head of the administrative office.
Echegaray vs. Sec of Justice
Considering that the Manual for the execution of the death penalty through lethal
injection, which was prepared by the Director or the Bureau of Corrections (component of
DOJ), did not have the imprimatur of the DOJ Secretary, it was invalidated.
Delegation of police power to LGU
- Basis is Sec. 16 of RA 7160 on the general welfare clause
- LGUs are autonomous regions, provinces, cities, municipalities and barangays.
MMDA is not included because it is only an administrative coordinating body on the
delivery of basic services, not a political subdivision.
Limitations:
Not inherent, merely delegated. Thus, cannot rise above the source of the power. Hence,
cannot pass local legislation contrary to or amend existing statutes.
- If allowed by law, cannot prohibit. May only regulate.
Since lotto is allowed by the PCSO charter, the LGUs cannot pass an
ordinance prohibiting suertres.
- If prohibited by law, cannot allow.
Since prostitution is prohibited by law, the LGUs cannot allow the
establishment of a red district.

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Delegation of police power to the people, in general

- Why is this delegated to the people when it comes from the people in the first
place? It is because Sec. 32 Art. 6 granting that power to the people and the reservation of
the exercise of the power under Sec. 1 Art. 6 is not self-executing. That is why the
Constitution mandates the Congress to pass a law providing for a mechanism by which
people can exercise legislative powers, and that is why RA 6735 on initiative and
referendum was passed by Congress.
2 ways by which people can make laws:
(1)Through the exercise of initiative and referendum directly propose
amendments to the Constituion
(2)Wait for the proposal from local legislative bodies and approve or reject the
proposal
Requisites for valid exercise of police power
(1) Lawful subject must be for the promotion of the general welfare
(2) Lawful means must be reasonably necessary to achieve the purpose of the law and not
oppressive upon the rights of individuals
Police power vs. eminent domain: on just compensation
The rule is that, if the property is noxious, e.g. drugs, it is an exercise of police
power thus there is no monetary compensation. If the property is not noxious, e.g.
billboards, it is an exercise of the power of eminent domain and thus monetary
compensation is needed.
- When portions of private cemeteries are required by the State to be allotted to
pauper litigants, this is an exercise of the police power. It is for the promotion of the
general welfare as improper disposal of the bodies will affect public health, public safety,
etc. Being an exercise of police power, no just compensation, i.e. monetary compensation,
is required. It is enough that there is an altruistic feeling due to the promotion of public
welfare.
- In a case decided by the Supreme Court, billboards were being removed for the
purpose of the beautification project of the city. It was held that while it is for the welfare
of the people, because the property taken is not harmful or noxious to public welfare and
in fact it was used by the public, there has to be payment of just compensation. This is not
an exercise of police power but of eminent domain; or it could be police power but
implemented by eminent domain.
- Other examples when properties are not noxious: state universities required to
grant scholarships to poor, deserving students, Senior Citizens discount. These were done
in the exercise of police power. But since the properties taken here are not noxious, the
implementation is through eminent domain, hence there should be just compensation. In
the case of the Senior Citizens discount, the just compensation is the tax credit which can
be used by the Company granting the discount to offset its tax liabilities.
POWER OF EMINENT DOMAIN, ALSO KNOWN AS THE POWER OF EXPROPRIATION

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It is the inherent power of the State to condemn private property to public use upon payment of
just compensation.
Requisites:
1. There is taking in the constitutional sense.
2. The property involved is a private property.
3. The private property is intended for public use.
4. There is just compensation.
5. There is observance of due process.
Requisites discussed one by one:
A. There is taking in the constitutional sense.
-

May include trespass without actual eviction of the owner, material impairment of the
value of the property or prevention of the ordinary uses for which the property was
intended.
When is taking compensable? Answer: NAPOCOR Case
NAPOCOR has a dam. Every time it rains, it overflows to the property of X which is planted
with potatoes killing all said plants. Is there taking that would entitle X to just
compensation? X was not evicted but he was deprived of the beneficial use of his property
and to the purpose from which the land is intended to be used. In that case, there is taking
which is compensable.
Case: There is a poultry owner who lives near the airport. Every time the airplane passes
through the property, all the chickens die. Held: There was taking because although the
owner was not evicted, he was deprived of the beneficial use of his property.
Case: NAPOCOR put up transmission lines and a warning was placed stating: Beware, do
not enter within 200 meters. If one lives adjacent to the said property which is just within
50 meters from the transmission lines, he will not enter his property for fear of being
electrocuted or otherwise for fear of dying because of radiation. Held: There is taking.

Requisites of Taking of Property in the Constitutional Sense: (Republic vsCastelvi)

1. The expropriator must enter a private property
2. Entry must be for more than a momentary period
3. Entry must be under warrant or color of authority
4. Property must be devoted to public use or otherwise informally appropriated or injuriously
affected
5. Utilization of the property must be in such a way as to oust the owner and deprive him of
beneficial enjoyment of the property.
-

Republic vsCastelvi: The government entered into a contract of lease with Castelvi. Upon
the expiration of the contract, the heirs of Castelvi did not want the renewal of the said
contract. The government then filed a case for expropriation.
Issue: When to reckon the payment of just compensation.
Held: The payment of just compensation must be reckoned from the time of taking. It
cannot be reckoned from the time the lease contract was entered into because one of the
requisites for taking that it be for more than a momentary period is not present; precisely
because the lease is only temporary. The owner was not also deprived of the beneficial use
of his property during the lease because he was receiving rentals. These two elements
were lacking in the lease contract. Therefore, the taking should be reckoned only at the
time that the expropriation case was filed because only then did all the requisites arise.

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More particularly, only then was the entry for more than a momentary period, and the
owner deprived of the beneficial use of his property.
B. The property involved is a private property.
-

The property is owned by a private individual or a private entity.

There are properties owned by the government in its proprietary or private capacity, not in
its sovereign capacity. These are called private properties owned by the government, more
particularly of municipal corporations. Specifically, we describe them as patrimonial
properties. When there is taking of the patrimonial property, it is compensable.
Dominium vs. Imperium: Dominium refers to the capacity to own or acquire property,
including lands held by the State in its proprietary capacity, while Imperium is the
authority possessed by the State embraced in the concept of Sovereignty.
Any private property may be taken including services as long as it may be subject to
appropriation (may be within the commerce of man).Services here does not refer to
services of man because that is tantamount to involuntary servitude. What is meant is
this: services of private companies engaged in the delivery of public utility services. A
property may be tangible or intangible, and services of public utilities are intangible that
may be subject to expropriation.
PLDT Case: The government wanted to put up a competition in the field of
telecommunications. It asked PLDT to give to the government some telephone lines so
that the government can enter into some telecommunications business. PLDT refused
prompting the government to file an expropriation case against it. PLDT objected alleging
that the government cannot expropriate its telephone lines.
Held: Services are properties, however intangible. Hence, it can be a subject of
expropriation for as long as it is for public use upon payment of just compensation.

Property that cannot be a subject of expropriation: money and choses in action

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