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Preliminary Examination For Constitutional Law 1 E.H.


Memory Aid for Constitutional Law I

Constitutional Law
The study of the maintenance of the proper
balance between authority as represented by
the three inherent powers of the State and
liberty as guaranteed by the Bill of Rights

Unwritten Constitution
Consists of rules which have not been integrated
into a single, concrete for but are scattered in
various sources such as statutes, judicial decisions,

customs and traditions and common law principles.

Conventional Constitution
- An enacted constitution, formally struck off at a
definite time and place following a conscious or
deliberate effort taken by a constituent body or
Cumulative Constitution
- The result of political evolution, not inaugurated
at any specific time but changing by accretion
rather than by any systematic method.
Rigid Constitution
- One that can be amended only by a formal and
usually difficult process
Flexible Constitution
- One that can be changed by ordinary legislation

Political Law
It is the branch of public law which deals with the
organization and obligations of the various
instrumental organs of the state and defines the
relationship of the state and the inhabitants of its

Police Power
Power of Eminent Domain
Power of Taxation


Philippine Constitution
According to Cooley:
The body of rules and maxim in accordance with which
the powers of sovereignty are habitually exercised

The Philippine Constitution is written, conventional and

It has the capacity to withstand capricious changes of those
who are in power.

According to Justice Malcolm:

The written instrument enacted by direct action of the
people by which the fundamental powers of the
government are established, limited and defined, and by
which those powers are distributed among the several
departments for their safe and useful exercise for the
benefit of the body politic

If there is a legitimate need, the Constitution will impede
The Constitution cannot be amended by the exigent
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


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

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.


Why do we have to study the Philippine

To know how our delegates are acting whether
or not they are acting in accordance to our
The study of Constitution is mandatory pursuant
to art.14, sec.3, par.1 of the 1987 Constitution

Provides for the basic principle leaving some

details susceptible for the legislation as may be
enacted by Congress.



To avoid ambiguity in its provisions that may

result to confusion and divisiveness among the


Constitution of Liberty
Bill of Rights: Sets forth the civil and political
rights of the people

Written Constitution
- Its precepts are embodied in one document or
set of documents.

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
a. Article 6: Legislative Branch
b. Article 7: Executive Branch
c. Article 8: Judiciary
d. Article 9: Various constitutional commission

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.

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


Who can Propose Amendments or Revisions?

votes of all its members
The HOR and Senate voting separately


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.

Congress must transform itself as a Constituent

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

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.


This body is composed of members elected

by the people particularly for the
Constitutional Convention

(Bayan vs Zamora)

Who can call a Constitutional Convention?

Self-Sustaining/Executing Provisions
The Constitution does not need any statutory
The Constitution does need to enabling laws for it to
be effective

(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.


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

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?

This is the complete rewriting or overhaul of the
Also refers to isolated changes in the
Constitution that would drastically alter the basic
principles underlining the Constitution.

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?

Article 17, Section 4

Ratification must be held not earlier than 60 days

and not later than 90 days.

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 will the period start:

a. Congress or Constitutional Convention
As of the date of approval for the proposed

When is the best time to call for a Constitutional

For revision or complete overhaul of the
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.

b. For Peoples 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.

When is it proper to call for a Constituent Assembly?

For amendments and piece-meal changes in the

May ratification be held simultaneously with a

general election?

Can congress call for a Constitutional Convention

and at the same time propose amendments to the
Yes, ruling of the Supreme Court:

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

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

Rule as of now, that any ratification may be validly

done simultaneously with a general election

(Gonzales vs. COMELEC)

May there be a piece-meal submission of proposed

amendments for ratification to the people?

(Article 17, Section 2 of the 1987 Constitution)

No (Tolentino vs. COMELEC)

Limitations of Peoples Initiative:

There can never be a piece-meal submission of

amendments for ratification by the people

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 peoples 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
peoples initiative. Congress has to provide the
regulations on the implementation of this
The system of peoples initiative can only be
used for amendments and never for revision.


(Sanidad vs. COMELEC)
This is the process of getting the consensus of the
public in a particular public issue.
Consultative in nature
This is associated to the process of approving or
ratifying the proposed amendments or revision to the
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

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

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.


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.

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

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

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.

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.

- This is an independent civil action.

- This is a continuation of the proceeding that
happened in the court below.

Quasi-Judicial Body or the Ombudsman

- Cannot validly review or tackle questions
regarding the constitutionality or validity of a law.


(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

(Serrano vs. Gallant Maritime)

(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
Must be filed only at Regional Trial Court, this
cannot be filed directly to the Supreme Court of
Court of Appeals

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.


If questioning the constitutionality of National

- There should be a notice to the OSG

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
It is concerned with issues dependent upon the
wisdom, not the legality of a particular measure.
(Taada vs. Cuenco)

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.

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

Preliminary Examination For Constitutional Law 1 E.H. 401



To check the validity of the executive or

legislative acts in light with the 1987
Constitution. (Osmea vs. COMELEC)


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.

Legitimating/ Legitimizing Function


should be dismissed outright.

Checking Function


General Rule: In any case that is moot and academic

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.

Proper Party

a. Citizen Suit
- Petitioner assailing the citizen suit must have
incurred injury directly caused by the questioned

Symbolic Function

To enunciate or to promulgate sound doctrine to

guide the bench and the bar.

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.

Can courts of law automatically exercise Judicial

- No, since courts of law including the Supreme
Court is considered passive instruments, in that
they only function when their jurisdiction is
- Any courts of law cannot exercise its power of
Judicial Review without being invoked by the
proper property.

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)


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.

(Francisco vs. HOR; Senate vs. Office of Executive


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.

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

(Loida Nicolas-Lewis, et. al vs. COMELEC)

1. The issue if the Transcendental Importance
- The issue is accompanied with paramount or
important public interest.

Declaratory Relief

2. A matter of Public Right

(Rule 63 of the 1997 of Rules of Civil Procedure)

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

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.

3. The questioned act is instituted by way of Facial

- 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

The Issue must be determinative or the very Lis Mota of

the case

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

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.

Can the government question the validity of its own

Yes (People vs. Vera)


Two Effects:

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


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.

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


Operative Fact Doctrine

The effect of the law prior to its invalidation must be

Which doctrine should we apply in a given case?

What happens if the petition is assailed by a person

without a legal standing?
It is dismissed outright.

Orthodox View
This view is applied when the validity of a
law is questioned immediately after it
became effective.

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.

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

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.


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

1. Criminal Proceeding:
- The question dealing with the validity or
invalidity of law may be raised at the sound
discretion of the judge.

The remaining provisions must be able to

independently stand on their own.

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.

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.

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.