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Consti Prelims – Atty.

Gorospe
PRELIMINARY CONSIDERATIONS Election Law
Political Law - it deals with the study of the means by which the
- that branch of public law which deals with the people choose their officials for definite and fixed
organization and operation of the governmental periods and to whom they entrust for the time being
organs of the State and define the relations of the state as their representatives the exercise of the powers of
with the inhabitants of its territory the government
- it is a discipline falling at the juncture of
Political law embraces constitutional law and political science. It researches
1. Constitutional Law the politics of law and the law of politics
2. Law of Public Corporations
3. Administrative Law Law of Public Officers
4. Law on Public Officers and elections - it treats the study of public office, its elements,
creations and termination, and of public officers, their
Constitutional Law qualifications, powers, duties, rights and liabilities
- treats of the nature of constitutions, and the validity
of legal enactments as tested by the criterion of their Law on Public Corporations
conformity to the fundamental law - it deals with the study of quasi- and municipal
- treats of constitutions – their nature, formation, corporations, such as municipalities, provinces,
amendment, operation, construction and chartered cities and barangays
interpretation
- it determines the political organization of the state, CONSTITUTION AND CONSTITUTIONALISM
and regulates the political relations between the state The Very Idea of Having a Constitution or a
and the individuals who compose it Fundamental Law
Primary Function of Constitutional Law - is to provide a higher law by which all other laws,
- to ascertain the political center of gravity of any given rules and government actions may be measured
state against
- that those standards through which the fundamental
stability of the state and its organs is legally regulated Constitution
and protected - it is a definition of the powers of government and the
power its grants, it also restrains
*Basic Framework of the Philippine Government - it is the foundation of the entire legal system, the
- it has been patterned after the American system bedrock of legal order
- it is a basic postulate of our democratic system of
Administrative Law government
- treats of that part of public law which fixes the - it is a social contract whereby the people have
organization of government, determines the surrendered their sovereign powers to the State for
competence of the authorities that execute the law, the common good
and indicates to the individual the remedies fir the - it is considered as the supreme law of the land – the
violation of his rights standard to which the other acts of those in the
- that branch of modern law under which the executive government have to adopt and adapt to, and obey
department of the Government, acting in a quasi- - the shore of legislative authority against which the
legislative or quasi-judicial capacity, interferes with waves of legislative enactment may dash, but over
the conduct of the individual fir the purpose of which they cannot leap
promoting the well-being of the community - it embodies the people’s sovereign will, is the bible of
this court
- it being supreme and paramount, any legislative or
executive act contrary to its terms cannot survive

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Consti Prelims – Atty. Gorospe
- it is not a road map for maximally efficient - it should provide a checking mechanism on what may
government, but a system of ‘carefully crafted be economically expedient
restraints’ designed to protect the people from the - it does not necessarily mean that a State cannot exist
improvident exercise of power without it

Judicial Interpretation Present Constitution (1987)


- it entails the convergence of social realities and social - adopted on February 2, 1987
ideals - drafted by the Constitutional Commission
constituted by then President Corazon C. Aquino
Article 7 of the Civil Code - From February 25 to March 24, 1986, there was no
- when the courts declare a law to be inconsistent with higher law than the edicts and directives of the
the Constitution, the former shall be void and the revolutionary government
latter shall govern
Freedom Constitution
Manila Prince Hotel vs GSIS - it was in force until the 1987 Charter was ratified by
Value of a Constitution the people in 1987
- a constitution is a system of fundamental laws for the - from March 25, 1986 to February 1, 1987
governance and administration of a nation. It is - it was in the nature of a transitory stop-gap charter,
supreme, imperious, absolute and unalterable except adapted from the 1973 Constitution
by the authority from which it emanates
- it has been defined as the fundamental and Before the 1987 Charter
paramount law of the nation - the Philippines had the 1935 and 1973 Constitution
- it prescribes the permanent framework of a system
of government, assigns to the different departments During the Interregnum
their respective powers and duties, and establishes - the directives and orders of the revolutionary
certain fixed principles on which government is government were the supreme law because no
founded constitution limited the extent and scope of such
- it is a supreme law to which all other laws must directives and orders
conform and in accordance with which all private
rights must be determined and all public authority 1987 Charter
administered - it is the present charter and has been labeled a
Doctrine of Constitutional Supremacy “People Power Chapter”
- if a law of contract violates any norm of the
constitution that law or contract violates any norm of Under the American Regime
the constitution that law or contract whether - the Philippines had the Organic Acts – like the U.S.
promulgated by the legislative or by the executive President’s Instructions to the Commission of April 7,
branch or entered into by private persons for private 1900 and the Philippine Autonomy Act – which served
purposes is null and void and without any force and as the fundamental laws for the land
effect
- since the Constitution is the fundamental, paramount Springer vs Government
and supreme law of the nation, it is deemed written in Organic Act
every statute and contract - it is the enactment on August 29, 1916
- it constitutes the fundamental law of the Philippine
The Constitution, as the Embodiment of the Island and bears a relation to their governmental
National Conscience affairs not unlike that borne by a state constitution to
- it is the North Star, the compass, by which the the State
judiciary is guided in resolving the often complex and
labyrinthian legal issues presented before it

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Consti Prelims – Atty. Gorospe
Section 10, Article 10 of the 1987 Constitution - deals with the framework of government and its
- it addressed the undesirable practice in the past powers, laying down certain rules for its
whereby local government units were created, administration and defining the electorate
abolished, merged or divided on the basis of the
vagaries of politics and not of the welfare of the people Constitution of Sovereignty
- a set provisions pointing out the mode of procedure
Since the Constitution lays down the Basic and in accordance with which formal changes in the
Fundamental Framework for Government and fundamental law may be brought about
Society - it prescribes the mode or procedure for amending or
- it must have characteristics which provide for revising the constitutions
relative permanence and certitude without being
unnecessarily complex and complicated that it would Essential Requisites of a Good Written
be difficult for its primary audience to understand and Constitution
appreciate 1. Broad
2. Brief
Unwritten Constitution 3. Definite
- an example is one for the United Kingdom, consisting
of an accumulation of laws, judicial decisions and Broad
traditions, evolving and getting encrusted into the - it would provide the basic and general outline of
body of basic rules of a particular state government and the relations between it and the
- it simply grows and amasses more rules, principles people
and doctrines with each new law, decision or tradition
- more flexible than the written one Brief
- it only provides the fundamentals leaving the details
Written Constitution to be worked out in ordinary legislation
- more rigid than the unwritten constitution
3 Parts Definite
1. Constitution of Liberty - in order to ensure an orderly society free from much
2. Constitution of Government ambiguities and uncertainties, a set of rules by which
3. Constitution of Sovereignty the governors and governed could very well
determine without much difficulties what is and what
Constitution of Liberty is not allowed
- a series of prescription setting forth the fundamental - any vagueness which may lead to opposing
civil and political rights of the citizens and imposing interpretations of essential features may cause
certain limitations on the power of the government as incalculable harm
a means of securing the employment of those rights
- it sets forth the fundamental rights of the people and Principles of Constitutional Construction
imposes certain limitations on the powers of the 1. Verba Legis
government as a means of securing the employment of 2. Ratio Legis Est Anima
these rights 3. Ut Magis Valeat Quam Pereat

Constitution of Government Verba Legis


- those provisions outlining the organization of - whenever possible, the words used in the
government, enumerating its powers, laying down Constitution must be given their ordinary meaning
certain rules relative to the administration and except where technical terms are employed
administration and defining the electorate

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Consti Prelims – Atty. Gorospe
Ratio Legis Est Anima Right to Information
- the words of the Constitution should be interpreted - it is self-executory
in accordance with the intent of its famers - it is a public right that belongs to and can be invoked
by the people
Ut Magis Valeat Quam Pereat - consequently, every citizen has the ‘standing’ to
- the Constitution is to be interpreted as a whole challenge any violation of the right and may seek its
enforcement
Proceedings of the Constitutional Convention
- are less conclusive of the proper construction of the Non-Self-Executing Provisions in the 1987
instrument than are legislative proceedings of the Constitution
proper construction of a statute 1. Article 2 (State Principles and Policies)
- we are endeavoring to arrive at the intent of the 2. Article 13 (Social Justice and Human Rights)
people through the discussions and deliberations of 3. Section 2, Article 14
their representatives
- have persuasive force
Article 2 of the 1987 Constitution (State Principles
Consider the Historical Background and the and Policies)
Underlying Rationale for the Constitution - it is not intended to be self-executing principles
- for the inclusion of certain provisions ready for enforcement through the courts
- its interpretation must take into account the - they are used by the judiciary as aids or as guides in
complexities and realities and politics attendant to the the exercise of its power of judicial review, and by the
operation of the political branches of government legislature in its enactment of laws
- the disregards of said provisions would not give rise
The Constitution have to be Relevant to the Ever- to any cause of action before the courts
Changing Times - being mere statements of principles and policies,
- it is intended to endure for ages to come, and must mere directives addressed to the executive and the
adapt itself to a future that can only be seen dimly legislative departments
- it is not a printed finality but a dynamic process - if unheeded, the remedy will not lie with the courts;
rather the electorate’s displeasure may be manifested
Unless it is Expressly Provided that a Legislative in their votes
Act is Necessary to Enforce a Constitutional Characterized as “moral incentives to legislation”
Mandate
- the presumption is that all provisions of the THE STATE
constitution are self-executing State
- For if they are not treated as self-executing, the - a community of persons more or less numerous,
mandate of the fundamental law can be easily nullified permanently occupying a definite portion of territory,
by the inaction of Congress independent of external control, and possessing an
organized government to which the great body of
Manila Prince Hotel vs GSIS inhabitants render habitual obedience
- a constitutional provision is self-executing if the - it must have a specific area that its people occupy,
nature and extent of the right conferred and the over which its political authority is exercised, and an
liability imposed are fixed by the constitution itself, so institution which manages its affairs, as well as the
that they can be determined by an examination and authority to enforce obedience to its mandates free
construction of its terms, and there is no language from the control of other states
indicating that the subject is referred to the legislature
for action Necessary Elements
1. People 3. Government
2. Territory 4. Sovereignty

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Consti Prelims – Atty. Gorospe
People - for this purpose, straight baselines are drawn joining
- for people to constitute a State, they must be the outermost points of the outermost islands and
sufficient enough to be self-sustaining, but not so dying reefs of the archipelago
much as to be incapable of governance - all the islands and the waters included within such
- in regard to inhabitant, the terms national and citizen baselines would be considered as a single body
may be used interchangeably - no matter what the waters between the islands might
National be more than 24 miles wide, they would still be
- would refer to membership based more on cultural considered as internal waters
and social ties
Citizen Internal Waters under Article 1 of the 1987
- in reference to political ties Constitution
- those belonging in a republican State - termed as “archipelagic waters” under UNCLOS III
Subject - The sovereignty of an archipelagic State extends to
- would have reference to those belonging to a the waters enclosed by the archipelagic baselines
monarchy drawn in accordance with Article 47, described as
archipelagic waters, regardless of their depth or
Territory distance from the coast
- a state must have a definite place to call its own, a
space consisting of the land, the waters around it, as Baselines of the Philippines for determining the
well as the airspace above said territory Extent of the Different Maritime Zones
Classifications 1. Territorial Sea – 12 nautical miles from the baseline
1. Terrestrial (landmass) 2. Contiguous Zone – 24 nautical miles from the
2. Fluvial (rivers) baseline
3. Maritime (sea) 3. Exclusive Economic Zone – 200 nautical miles from
4. Aerial (airspace) the baselines

Article 1 of the 1987 Constitution Magallona vs Ermita


The national territory comprises the Philippine - questioned the constitutionality of RA No. 9522
archipelago, with all the islands and waters embraced RA No. 9522
therein, and all other territories over which the - adjusted the country’s archipelagic baselines
Philippines has sovereignty or jurisdiction, consisting - the court explained that the statute was a tool to
of its terrestrial, fluvial, and aerial domains, including demarcate the country’s maritime zones and
its territorial sea, the seabed, the subsoil, the insular continental shelf, not to delineate Philippine territory
shelves, and other submarine areas. The waters - it was designed to have the country’s baselines
around, between, and connecting the islands of the compliant with the United Nations Convention on the
archipelago, regardless of their breadth and Law of the Sea (UNCLOS III)
dimensions, form part of the internal waters of the - UNCLOS III has nothing to do with the acquisition or
Philippines loss of territory

Archipelagic Doctrine Baseline Laws


- the “waters, around, between, and connecting the - nothing but statutory mechanisms for UNCLOS III
islands…regardless of their breadth and dimensions, States parties to delimit with precision the extent of
form part of the internal waters of the Philippines.” their maritime zones and continental shelves
- it is a concept which considered the entire - it gives notice to the rest of the international
archipelago as one integrated cohesive unit of community of the scope of the maritime zones and
territory, not as comprising various disparate and continental shelves
separate islands

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Consti Prelims – Atty. Gorospe
Article 47 (3) of UNCLOS III - Subsequently, the United States agreed to turn over
The drawing of such baselines shall not depart to any these bases to the Philippines; and with the expiration
appreciable extent from the general configuration of of the RP-US Military Bases Agreement in 1991, the
the people territory covered by these bases were finally ceded to
the Philippines
Article 47 (2) of UNCLOS III
The length of the baselines shall not exceed 100 Form of Governments
nautical miles 1. Democracy – rule of the many
2. Monarchy – rule of one person
Article 121 of UNCLOS III 3. Aristocracy – rule of a few powerful men
Any naturally formed area of land, surrounded by
water, which is above water at high tide, such as Manner in which the Government Leaders are
portions of the KIG, qualifies under the category of Determined
“regime islands” whose islands generate their own 1. Election
applicable maritime zones – the territorial sea, the 2. Hereditary Succession
contiguous zone, and the exclusive economic zone 3. Membership in a Particular Class of Society

Government Presidential Parliamentary


- it is the entity which exercises power and with - characterized by a - a predominant parliament
appropriate authority to enforce and command separation of powers where executive power is
obedience from the people among co-equal and exercised by a prime
- that institution or aggregation of institutions by independent branches of minister who is a member
which an independent society makes and carries out government headed by a of, dependent on, and
those rules of action which are necessary to enable president accountable to the
legislative body
men to live in a social state, or which are imposed
upon the people forming that society by those who
Note: The Philippines, a democratic and republican
possess the power or authority of prescribing them
State, has the presidential type of government
- it is the rudder which steers the ship of state
- it is the collective name for the agency, or
Under the 1973 Constitution
organization, through which the will of the state is
- it attempted to shift to a parliamentary form, the
formulated, expressed, and realized
same never got to be fully implemented since during
the intended transition, the country was headed by a
Philippine Bill of 1902
strong president
- it laid the basis for the Philippine Commonwealth,
and eventually, for the recognition of independence,
Legal Authority of the Government
the United States agreed to cede to the Philippines all
De Jure De Facto
the territory it acquired from Spain under the Treaty
- the government is - connotes one who has the
of Paris, plus a few islands later added to its realm,
rightfully and legally in actual exercise of power but
EXCEPT certain naval ports and/or military bases and possession of the powers not legally entitled to the
facilities, which the United States retained for itself same
- Clark and Subic and the other places in the - may take the form of
Philippines covered by the RP-US Military Bases Government that gets
Agreement of 1947 were not Philippine territory, as possession and control of, or
they were excluded from the cession and retained by usurps, by force or by voice
the US of the majority, the rightful
- The Philippines had No Jurisdiction Over these Bases legal government and
except to the extent allowed by the United States maintains itself against the
will of the latter, or one
established as an
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Consti Prelims – Atty. Gorospe
independent government by advancement of its
the inhabitants of a county international interests
who rise in insurrection
against the parent state, or Functions which our Government is Required to
that which is established Exercise
and maintained by military 1. To promote its objectives as expressed in our
forces who invade and Constitution and which are exercised by it as an
occupy a territory of the
attribute of sovereignty
enemy in the course of war,
2. It may exercise to promote merely the welfare,
and which is denominated
as a government of progress, and prosperity of the people
paramount force
Principles determining whether or not a
Functions of Government Government shall exercise certain of these
1. Constituent optional functions
2. Ministrant 1. That a government should do for the public welfare
those things which private capital would not naturally
Constituent Ministrant undertake
- those which constitute the - those that are 2. That a government should do these things which by
very bonds of society and undertaken only by way of its very nature it is better equipped to administer for
are compulsory in nature advancing the general the public welfare than is any private individual or
interests of society, and group of individuals
Constituent Functions: are merely optional
1. The keeping of order and Parents Patriae
providing for the protection Most Important of the - the State as the parent or guardian of the country and
of persons and property Ministrant Functions: the people
from violence and robbery 1. Public Works - its prerogative is inherent in the supreme power of
2. The fixing of the legal 2. Public Education every state
relations between man and 3. Public Charity
- it is often necessary to be exercised in the interests
wife and between parents 4. Health and Safety
and children Regulations of humanity, and for the prevention of injury to those
3. The regulation of the 5. Regulations of Trade who cannot protect themselves
holding, transmission, and and Industry - the government has the obligation of protecting the
interchange of property, less fortunate members of society who could not
and the determination of its otherwise stand for themselves
liabilities for debt or for
crime Inherent and Fundamental Powers
4. The determination of - those which come to exist by the mere fact that the
contract rights between State has come into being
individuals - they do not need any particular law in order to be
5. The definition and vested in the government and they exist independent
punishment of crime
of the Constitution
6. The administration of
- if ever the fundamental law has any relevance to
justice in civil cases
7. The determination of the them, it is for the purpose of providing some
political duties, privileges, limitations on their exercise, otherwise they might be
and relations of citizens abused or otherwise used in arbitrary and capricious
8. Dealings of the state with manner
foreign powers: the 1. Police Power
preservation of the state 2. Power of Eminent Domain
from external danger or 3. Power of Taxation
encroachment and the
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Consti Prelims – Atty. Gorospe
Police Power
- it is the most pervasive, illimitable and plenary Salus Populi Est Suprema Lex
power affecting liberty and property of individuals for - the welfare of the people is the supreme law
the advancement of the common good
- it is essentially the power used to promote the public Sic Utere Tuo Ut Alienum Non Laedas
welfare by restraining and regulating liberty and the - use your own property in such a manner as not to
use of property injure that of another
- may be generally described as that great power by
which the government may regulate society and its Note: Laws cannot be impugned as unconstitutional
inhabitants through restrictions on life, liberty and for being violative of the due process clause
property of the people and the other aspects of the
country RA No. 7160
- it is the plenary power vested in the legislature to Section 16 – General Welfare
make, ordain, and establish wholesome and Every local government unit shall exercise the powers
reasonable laws, statutes and ordinances, not expressly granted, those necessarily implied
repugnant to the Constitution, for the good and therefrom, as well as powers necessary, appropriate,
welfare of the people or incidental for its efficient and effective governance,
- the most essential, insistent and the least limitable of and those which are essential to the promotion of the
powers extending as it does to all the great public general welfare.
needs
- it was originally limited in scope Two Branches of General Welfare Clause
- it was anchored in the limitations that the courts had 1. General Legislative Power
imposed upon individual rights - authorizes the municipal council to enact ordinances
- it requires the State to “assume an affirmative duty and make regulations not repugnant to law, as may be
to eliminate the excesses and injustices that are the necessary to carry into effect and discharge the
concomitants of an unrestrained industrial economy powers and duties conferred upon the municipal
- it is now exerted to further the public welfare – a council by law
concept as vast as the good of society itself 2. Police Power Proper
- governmental authority to further the welfare of - authorizes the municipality to enact ordinances as
society that is the basic end of all government may be necessary and proper for the health and safety,
- lodged in Congress, however, it may be delegated to prosperity, morals, peace, good order, comfort, and
the President, administrative agencies and local convenience of the municipality and its inhabitants,
governments and for the protection of their property
- but the delegates may only exercise such power in
accordance with the extent of the authority allowed Eminent Domain
them. They could not therefore come up with - the authority to take what it needs provided that it is
regulations or rules which would go against the for public use and that there is payment of just
national policy or the laws enacted by Congress itself compensation, also often referred to as expropriation
- delegation of police power to local government units - the highest and most exact idea of property
is through the so-called General Welfare Clause remaining in the government that may be acquired for
some public purpose through a method in the nature
2 Tests to Exercise Police Power of a forced purchase by the State
1. The interest of the public generally, as distinguished - it is a right to take or reassert dominion over
from that of a particular class, requires its exercise property within the state for public use or to meet a
2. The means employed are reasonably necessary for public exigency
the accomplishment of the purpose and not unduly - it is a form of forcible taking justified by the higher
oppressive upon individuals purpose to be subserved by the property in
government hands or other authorized entity

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Consti Prelims – Atty. Gorospe
- it represents the ultimate right of the sovereign transfer of ownership, whether permanent or
power to appropriate any property within its temporary
territorial sovereignty for a public purpose thru a - the private entity-owner cannot claim just
method that partakes the nature of a compulsory sale compensation for the use of the said business and its
- the concept of public use is not limited to traditional properties as the temporary takeover by the
purposes government is in exercise of its police power and not
- principally lodged in Congress, it may only be of its power of eminent domain
exercised by others through valid delegation
- the legislature has delegated the power to the Note: Look at the nature and effects of the challenged
President, local government units, some public governmental act and decide, on the basis thereof to
entities and even private corporations engaged in determine whether the act is the exercise of police
public service, such as public utilities engaged in the power or eminent domain
supply of electricity, water, telecommunications
services, and some transportation firms Potential Profits or Income Gross Sales
- it serves as an indicia when a regulation has gone
Note: It is important to determine whether the taking “too far” as to amount to a “taking” under the power of
of property is under eminent domain or police power eminent domain
because for the former there is need for the payment
of just compensation but for the latter there is no need When the Deprivation or Reduction of Profits or
Income/Gross Sales is shown to be Unreasonable,
Possessory Taking Regulatory Taking Oppressive or Confiscatory
- it occurs when the - it occurs when the - the challenged governmental regulation may be
government confiscates government’s regulation nullified for being a “taking” under the power of
or physically occupies leaves no reasonable eminent domain
property economically viable use of
the property Note: Subject regulation is a valid exercise of police
- government regulation power
is a taking if it leaves no
reasonable economically
Taxation
viable use of property in a
manner that interferes - it is a necessary attribute of a viable society, and as
with reasonable taxes are what the people pay for a civilized society,
expectations for use they constitute the lifeblood of the nation
- derives its source from the very existence of the state
Restriction on Use of Property whose social contract with its citizens obliges it to
- may also constitute a “taking” if not reasonably promote public interest and common good
necessary to the effectuation of a substantial public - the theory behind the exercise of power to tax
purpose or if it has an unduly harsh impact on the emanates from necessity
distinct investment-backed expectations of the owner - it refers to that power of the State to impose a charge
or burden upon person, property, or property rights,
Temporary Takeover of the Operation of Business for the use and support of the government
Affected with Public Interest in times of National - the power to tax involves the power to destroy
Emergency - the Constitution mandates that the rule of taxation
- this would not entail the payment of just shall be uniform and equitable
compensation - The Congress shall evolve a progressive system of
- it extends only to the operation of the business and taxation
not to the ownership thereof - tax laws may not be extended by implication beyond
- the government is not required to compensate the the clear import of their language, nor their operation
private entity-owner of the said business as there is no

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Consti Prelims – Atty. Gorospe
enlarged so as to embrace matters not specifically - it implies a state’s lawful control over its territory
provided generally to the exclusion of other states, authority to
- an inherent limitation on the power to tax that the govern in that territory, and authority to apply law
proceeds be for a public purpose there

Exercise of the Power of Taxation Classifications of Sovereignty


- constitutes a deprivation of property under the due 1. Legal
process clause, and the taxpayer’s right to due process 2. Political
is violated when arbitrary or oppressive methods are 3. Internal
used in assessing and collecting taxes 4. External
- it should be exercised with caution to minimize
injury to the proprietary rights of a taxpayer Legal Sovereignty
- it must be exercised fairly, equally and uniformly - would refer to the authority based on the law
- resides in the legislature which body may rightfully
determine whom or what to tax as well as how much Political Sovereignty
to tax - would refer to the authority of the people themselves

Taxes Internal Sovereignty


- implied burdens that ensure that individuals and - relates to the ability of the State itself to have its will
business prosper in a conducive environment assured imposed and followed by all those within its
by good and effective government jurisdiction
- these burdens do not amount to a confiscatory
outcome External Sovereignty
- taxes are not and should not be construed to drive - independence from outside authority
businesses into insolvency - not necessarily complete from outside influence

Public Purpose Concept of Auto-Limitation


- it is not defined - the State may, consistent with membership in the
- it should be given a broad interpretation family of nations, agree to some restriction on what it
may do or not do in consistent with its self-interests in
Each Local Government Unit dealing with other States
- shall have the power to create its own sources of - it has to be exclusive; if it were not thus, there is a
revenues and to levy taxes, fees, and charges subject to diminution of its sovereignty
such guidelines and limitations as the Congress may
provide, consistent with the basic policy of local Note:
autonomy - a state, if it chooses to, may refrain from the exercise
- such taxes, fees, and charges shall accrue exclusively of what otherwise is illimitable competence
to the local governments - almost every time a state enters into an international
agreement, it voluntarily sheds off part of its
Sovereignty sovereignty
- it represents the supreme power of the state to
command and enforce obedience, the power to which Doctrine of Act of State
all interests are practically subject, and all wills - the acts of a State may not be questioned in any other
subordinate State
- it denotes supreme and final legal authority, above - every sovereign state is bound to respect the
and beyond which no further legal power exists independence of every other state, and the courts of
- a claim of right one country will not sit in judgment on the acts of the
government of another, done within its territory

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Consti Prelims – Atty. Gorospe
- redress of grievances by reason of such acts must be Aka Royal Prerogative of Dishonesty
obtained through the means open to be availed of by - it is because the privilege it grants the state to defeat
sovereign powers as between themselves any legitimate claim against it by simply invoking its
- States prevent their national courts from deciding non-suability
disputes which relate to the internal affairs of another - the doctrine is not absolute and does not say the state
State may not be sued under any circumstance
- it is an avoidance technique that is directly related to
a State’s obligation to respect the independence and An Unincorporated Government Agency Without
equality of other States by not requiring the to submit Any Separate Juridical Personality of its Own
to adjudication in a national court or to settlement of - enjoys immunity from suit because it is invested with
their disputes without their consent an inherent power of sovereignty

When there is a Change of Sovereignty Even if the Office being Sued is an Unincorporated
- the political laws – those regulating the relations Agency of the Government
sustained by the inhabitants to the former sovereign - the defense of immunity from suit will not avail if the
are deemed abrogated only causes if action directed against it are
- they became inoperative or lost their force upon the preliminary injunction and mandamus
cession of the Philippine Islands to the United States, - the defense of state immunity from suit does not
but if they are among that great body of municipal law apply in causes of action which do not seek to impose
which regulates private and domestic rights’, they a charge or financial liability against the State
continued in force and are still in force unless they
have been repealed by the present government Government-Owned or Controlled Corporations
- they are considered as separate and distinct from the
STATE (SOVEREIGN) IMMUNITY government itself
Doctrine of State Immunity - they may sue and be sued in return
- the state, as the embodiment of sovereignty includes
the attribute of being non-suable, as a general rule Government Officials
- the State may not be sued without its consent - the principle of state immunity applies to them when
- a sovereign is exempt from suit not because of any they are sued in their official capacity
formal conception or obsolete theory, but on the - if the judgment against such officials will require the
logical and practical ground that there can be no legal state itself to perform an affirmative act to satisfy the
right as against the authority that makes the law on same, the suit must be regarded as against the state
which the right depends itself although it has not been formally impleaded
- this doctrine is derived from the laws and practices Government Officials Cannot Hide Behind the
of our English ancestors, from King Edward I – it lies Doctrine of State Immunity
on the absurdity of the King’s sending a writ to himself - if they are being sued for having exceeded the powers
to command the King to appear in the King’s Court conferred upon them or abused their capacity
- this doctrine applies in regard to suits against the - the rule does not apply for acts that are unauthorized
government itself, or any of its unincorporated or unlawful and injurious to the rights of others
agencies. It extends because they have no independent
personality – they are part and parcel of the Waiver of State Immunity
government itself. However, this is true only if such - must be unequivocally expressed in statutory text,
agencies are not performing proprietary functions and that any ambiguities in the statutory language are
- Even if they are engaged in some proprietary to be construed in favor of immunity
undertaking but the same is incidental to its Two Ways
governmental function, there is no waiver of sovereign 1. Express Consent
immunity - it must come from the legislature in the form of a
general law or special law

11 | P a g e
Consti Prelims – Atty. Gorospe
2. Implied Consent Stability of Local Governments
- it is when the state enters into a contract or it - local governments are part of the State itself and
commences a litigation partake of its immunity specially in regard to the
- when the government files a complaint, thus opening discharge of governmental functions
itself to counterclaim - However, by virtue of their charters or the laws
When the Government enters into a Contract providing for their creation and regulation, they are
- it is deemed to have descended to the level of the given separate and distinct personalities that allow
other contracting party and divested of its sovereign them to sue and be sued
immunity from suit with its implied consent - Accordingly, they could not invoke the defense of
- not all contracts entered into by the government will state immunity. Still, though they may be suable, the
operate as a waiver of its non-suability – distinction claim against them must still be duly proven and
must be made between its sovereign or governmental shown to be their liability
functions and proprietary or commercial activities If the function is governmental
When the Government Files a Complaint - the municipality cannot be held liable for the torts
- it opens itself to counterclaim committed by its regular employee, who was then
- suability will result only where the government is engaged in the discharge of governmental functions
claiming affirmative relief from the defendant - the municipal corporation is liable for damages
attributable to the negligence of the municipality’s
Note: officers, employees or agents
The State is not liable for the torts committed by its
officers or agents whom it employs, except when Liability of the Government
expressly made so by legislative enactment, is well - waiver of sovereign immunity does not amount to
settled acknowledging liability
- depends on the applicable law and established facts
Local Government Code of 1991
- it vests local government units with certain Suability
corporate powers, including the power to sue and be - it depends on the consent of the state to be sued
sued - by consenting to be sued, a state merely gives remedy
- the special law can also take the form of the original to enforce a preexisting liability and submits itself to
charter of the incorporated government agency the jurisdiction of the court, subject to its right to
interpose any lawful defense
Application of the Doctrine of Immunity from Suit
- it has been restricted to sovereign or governmental Note:
activities (jus imperii) A state is suable does not necessarily mean that it is
- the mantle of state immunity cannot be extended to liable; on the other hand, it can never be held liable if
commercial, private and proprietary acts (jus it does not first consent to be sued.
gestionis)
Paragraph 5 of Article 1903 of the Spanish Civil
In a Case Involving Taking of Property for Street Code
Expansion Without Any Expropriation The state is liable in this sense when it acts through a
Proceedings having been filed special agent, but not when the damage should have
- The Court did not allow state immunity to stand in been caused by the official to whom properly it
the way of the owner in seeking just compensation pertained to do the act performed, in which case the
- the doctrine of governmental immunity from suit provisions of the preceding article shall be applicable
cannot serve as an instrument for perpetrating an
injustice on a citizen

12 | P a g e
Consti Prelims – Atty. Gorospe
Paragraph 6 of Article 2180 of the New Civil Code Disbursements of Public Funds
- The State is responsible in like manner when it acts - must be governed by the corresponding
through a special agent; but not when the damage has appropriation as required by law
been caused by the official to whom the task is done - the functions and public services rendered by the
properly pertains, in which case what is provided in State cannot be allowed to be paralyzed and disrupted
Article 2176 shall be applicable by the diversion of public funds from their legitimate
and specific objects, as appropriated by law
Special Agent
- it is one who receives a definite and fixed order or Even After a Judgment Against the State is
commission, foreign to the exercise of the duties of his Rendered
office if he is a special official - execution could not be had as a matter of course
- the responsibility of the state is limited to that which - there must still be an appropriation by Congress to
it contracts through a special agent and not where the satisfy the same
claim is based on acts or omissions imputable to a - the same rule applies to local governments
public official charged with some administrative or
technical office who can be held to the proper While Congress could not be compelled to
responsibility in the manner laid down by the law of appropriate funds to satisfy the judgment
civil responsibility - mandamus could be resorted for the purpose of
- the State’s agent if a public official, must not only be having a local government pay what has been
specially commissioned to do a particular task but that adjudged against it
such task must be foreign to said official’s usual
government function The Rule on Immunity of Public Funds from
- if the State’s agent is not a public official and is Seizure or Garnishment
commissioned to perform non-governmental - does not apply where the funds sought to be levied
functions, then the State assumes the role of an under execution are already allocated by law
ordinary employer and will be held liable as such for specifically for the satisfaction of the money judgment
its agent’s tort against the government
- Where the government commissions a private - in such a case, the monetary judgment may be legally
individual for a special government task, it is acting enforced by judicial processes
through a special agent within the meaning of the
provision Upon Determination of State Liability
- the prosecution, enforcement or satisfaction thereof
Judgments and Execution must still be pursued in accordance with the rules and
If the State is proven to be Liable procedures lad down in PD No. 1445 or the
- that would necessitate another consent on the part of Government Auditing Code of the Philippines
the government
Note: All Money Claims against the Government
Where the State gives its consent to be sued by - must first be filed with the Commission on Audit
private parties either by general or special law which must act upon it within 60 days
- it may limit claimant’s action only up to the - rejection of the claim will authorize the claimant to
completion of proceedings anterior to the stage of elevate the matter to the Supreme Court on certiorari
execution and in effect, sue the State thereby
- the power of the Courts ends when the judgment is
rendered since government funds and properties may In Regard to Liquidated Claims
not be seized under writs of execution or garnishment - the Commission on Audit has primary jurisdiction
to satisfy such judgments, is based on obvious
considerations of public policy

13 | P a g e
Consti Prelims – Atty. Gorospe
Sovereign Immunity, Foreign States and Suing a Representative of a State
International Organizations - in effect suing the state itself
- we recognize and adopt the generally accepted
principles and international law as part of the law if Par in Parem Non Habet Imperium
the land - all states are sovereign equals and cannot assert
jurisdiction over one another
Immunity
- it is the exemption of the state and its organs from With regard to the Determination of Diplomatic
the judicial jurisdiction of another state Status and Entitlement to Diplomatic Immunity
- the same is primarily with the Executive Department
Principle of the Sovereign Equality of States - executive declaration is not necessarily binding and
- one state cannot assert jurisdiction over another in conclusive
violation of the maxim par in parem non habet - courts cannot blindly adhere and take on its face the
imperium (an equal has no power over an equal) communication from the DFA that petitioner is
covered by any immunity
Functionary of a Foreign Embassy - the DFA’s determination that a certain person is
- the Court did not agree that an Assistant Attache was covered by immunity is only preliminary which has no
entitled to diplomatic immunity, officials are not binding effect in courts
generally regarded as members of the diplomatic - the Supreme Court is not precluded from making an
mission, nor are they normally designated as having inquiry into the intrinsic correctness of such
diplomatic rank certification

Article 16, Section 3 of the 1987 Constitution Where the Plea of Immunity is Recognized and
-the rule that a state may not be sued without its Affirmed by the Executive Branch
consent is one of the generally accepted principles of - it is the duty of the courts to accept this claim so as
international law that we have adopted as part of the not to embarrass the executive arm of the government
law of our land under Article 2, Section 2 in conducting the country’s foreign relations

Doctrine of Incorporation International Organizations


- as accepted by the majority of states, such principles - some form of immunity is also recognized as
are deemed incorporated in the law of every civilized attaching to them and their personnel
state as a condition and consequence of its - being a member of the United Nations and a party to
membership in the society of nations the Convention on the Privileges and Immunities of
- the state is automatically obligated to comply with the Specialized Agencies of the United Nations, the
these principles in its relations with other states Philippine Government adheres to the doctrine of
immunity granted to the United Nations and its
A State Cannot be Sued in the Courts of a Foreign specialized agencies
State - both treaties have the force and effect of law
- this is a long-standing rule of customary - generally used to describe an organization set up by
international law agreement between two or more states
- if the acts giving rise to a suit are those of a foreign - endowed with some degree of international legal
government done by its foreign agent, although not personality such that they are capable of exercising
necessarily a diplomatic personage, but acting in his specific rights, duties and powers
official capacity, the complaint could be barred by the - they are organized mainly as a means for conducting
immunity of the foreign sovereign from suit without general international business in which the member
its consent states have an interest

14 | P a g e
Consti Prelims – Atty. Gorospe
Immunity Note:
- it is necessary to assure unimpeded performance of A state called upon to admit an official of an
their functions international organization does not have a capacity to
declare him persona non grata
Waiving such Immunity accorded International
Organizations Functions of the Diplomat
- the same must be done in accordance with whatever - functions in the national interest
procedure is provided for
Functions of the Ambassador
Diplomatic Immunity International Immunity - to represent his state, and its specific interest at the
1. Members of the 1. May be specially capital of another state
diplomatic staff of a mission important in relation to
may be appointed from the state of which the Functions of the International Official
among the nationals of the official is a national - are carried out in the international interest
receiving State only with - he does not represent a state or any specific state
the express consent of the 2. There is no sending - he does not usually “represent” the organization in
state. Apart from State and an equivalent for
the true sense of the term
inviolability and immunity the jurisdiction of the
- his functions are normally administrative, although
from jurisdiction in respect sending state therefore
of official acts performed in has to be found either in they may be judicial or executive, but they are rarely
the exercise of their waiver of immunity or in political or functions of representation, such as those
functions, nationals enjoy some international of the diplomat
only such privileges and disciplinary or judicial
immunities as may be procedure Note:
granted by the receiving - a diplomatic envoy is immune from criminal
state. 3. International jurisdiction of the receiving State for all acts, whether
immunities enjoy no private or official, and hence he cannot be arrested,
2. Immunity of a diplomatic similar protection as prosecuted and punished for any offense he may
agent does not exempt him diplomatic immunities commit, unless his diplomatic immunity is waived
from the jurisdiction of the under the principle of - officials of international organizations enjoy
sending State reciprocity and the danger
functional immunities, that is, only those necessary for
of retaliation by the
3. The effective sanctions aggrieved party the exercise of the functions of the organization and
which secure respect for the fulfillment of its purposes
diplomatic immunity are Basis:
the principle of reciprocity Treaty or Conventional Section 36 of the Corporate Code
and the danger of Law Every corporation incorporated under this Code has
retaliation by the aggrieved the power and capacity x x x to sue and be sued in its
State corporate name

Basis: In the absence of evidence to the contrary


Customary international - foreign laws on a particular subject are presumed to
law be the same as those of the Philippines, and following
the most intelligent assumption we can gather
Customary International
Law
- places no obligation on a Note:
state to recognize a special What applies to the government likewise finds
status of an international application in regard to suits that may be taken against
official or to grant him foreign governments and certain international
jurisdictional immunities organizations

15 | P a g e
Consti Prelims – Atty. Gorospe
SEPARATION OF POWERS, BALANCED AND NON- - while each branch has to do its job, it must ever be
DELEGABLE aware that it has to work with the other branches to
Purpose of Separation of Powers enable the State to move forward to bring about the
- there is a need to institute a system by which the kind of policies and programs to benefit and advance
people are protected against possible, abusive, the interest and welfare of the people
oppressive and tyrannical exercise of power - it obtains not through express provision but by actual
- designed by its originators to secure action and to division in our Constitution
forestall overaction which necessarily results from - each department of the government has exclusive
undue concentration of powers, and thereby obtain cognizance of matter within its jurisdiction, and is
efficiency and prevent despotism supreme within its jurisdiction and is supreme within
- Lord Action sad “power tends to corrupt and its own sphere
absolute power corrupts absolutely” - each department being co-equal and coordinate, and
supreme in its own sphere
Principle of Non-Delegation of Powers - the mandate for each branch is to ensure that its
- each branch must discharge and exercise its powers assigned constitutional duties are duly performed, all
and authority as its own responsibility for which it is for the one nation that the three branches are sworn
accountable and not try to pass it on to others to serve, obey, and protect

Note: Legislative Power


Checks and balances - Congress is the repository of legislative power, it
- were the foundation of a structure of government enacts the laws, with the corollary authority to amend
that would protect liberty or repeal them
Claims of Individuals (not of Government - prescribes general rules for the government of
Departments) society
- have been the principal source of judicial decisions - Congress participates in the role of dealing with the
concerning separation of powers and checks and international community since its enactments could
balances also affect the ability of the President to negotiate and
Constitutional Structure of our Government enter into agreements with other States, and the
- is designed first and foremost not to look after the Senate confirms the ratification of treaties and other
interests of the respective branches, but to protect international agreements
individual liberty - the Senate has the prerogative to either accept or
reject the proposed agreement and whatever action it
Principle of Separation of Powers takes in the exercise of its wide latitude of discretion,
- the governmental powers are distributed among the pertains to the wisdom rather than legality of the act
three branches of the government (legislature, - power to spend the public wealth resides in Congress
executive, and judiciary) - acts as the guardian of the public treasury in faithful
- no one should unduly interfere with, or arrogate unto discharge of its power of the purse whenever it
it, what has been entrusted to the others deliberates and acts on the budget proposal submitted
- the separate powers were not intended to operate by the Executive
with absolute independence - its power of the purse, encompasses the capacity to
- the rule is separation and cooperation, not mutual generate money for the Government, to appropriate
antagonism public funds, and to spend the money
- does not create a “hermetic division among the - with regard to crimes, it is for the Congress to decide
Branches” but “a carefully crafted system of checked which acts are to be considered punishable, and the
and balanced power within each Branch” kind of penalties to be imposed therefor, as well as the
- it enjoins upon its branches separateness but duration of imprisonment – and to amend, modify or
interdependence, autonomy but reciprocity repeal the same

16 | P a g e
Consti Prelims – Atty. Gorospe
- the Congress is vested exclusive domain on - the framers of the Constitution adopted the American
substantive matters type where the written constitution is interpreted and
- the 1987 Constitution took away the power of given effect by the judicial department
Congress to repeal, alter, or supplement rules - before the courts can determine whether a law is
concerning pleading, practice, and procedure constitutional or not, it will have to interpret and
- policy determination is essentially a job for Congress ascertain the meaning not only of said law, but also of
2 Governing Principles on Appropriation the pertinent portion of the Constitution in order to
1. Principle of the Public Fiscal decide whether there is a conflict between the two,
- asserting that all monies received from whatever because if there is, then the law will have to give way
source by any part of the government are public funds and has to be declared invalid and unconstitutional
2. Principle of Appropriations Control - it has the power to declare what laws or acts of the
- prohibiting expenditure of any public money without other branches and instrumentalities of the
legislative authorization government are constitutional or legal
Executive Power - the judiciary pronounces what may or may not be
- the President executes and enforces the law done
- his ascendancy in foreign relations has also been - courts are simply to apply the law no matter that they
recognized for he is the face of the nation in so far as might have misgivings about it, unless it falls within
other States are concerned the context of constitutionally proscribed statutes,
- the President is the sole organ of the nation in its such as when it prescribes, excessive, cruel and
negotiations with foreign countries inhuman punishments
- by constitutional fiat and by the intrinsic nature of his - it may decide to provide a rule of preference in the
office, the President, as head of State, as the sole organ imposition of penalties, such as favoring fine rather
and authority in the external affairs of the country than imprisonment when the law provides for such
- the President is the chief architect of the nation’s alternative sanctions
foreign policy; his “dominance in the field of foreign - the Supreme Court cannot modify the range of
relations is then conceded penalties because that would constitute judicial
- the President may, under the American legislation
constitutional system enter into a transaction which is - what the legislature’s perceived failure in amending
prohibited by statutes enacted prior thereto the penalties provided for in the said crimes cannot be
- he may not defeat legislative enactment that have remedied through this Court’s decisions, as that would
acquired the status by law by indirectly repealing the be encroaching upon the power of the legislative
same through an executive agreement providing for - the primordial duty of the Court is merely to apply
the performance of the very act prohibited by said the law in such a way that it shall not usurp legislative
laws powers by judicial legislation and that in the course of
- the executive department may not by its own fiat, such application or construction, it should not make or
impose the judgment of one of its own agencies upon supervise legislation, or under the guise of
the judiciary interpretation, modify, revise, amend, distort, remodel
Enumerated Powers of the President under the or rewrite the law, or give the law a construction
Constitution which is repugnant to its terms
- Power of Appointment - the Court shall apply the law in a matter that would
- Power of Control and Supervision give effect to their letter and spirit, especially when
- Executive Clemency the law is clear as to its intent and purpose
- Prerogative to Command the Armed Forces - the Court should give Congress a chance to perform
its primordial duty of lawmaking
Judicial Power - the Court should not pre-empt Congress
- Courts have the prerogative to interpret and apply - the Court does not have the unbridled authority to
the Constitution and the laws rule on just any and every claim of constitutional
violation

17 | P a g e
Consti Prelims – Atty. Gorospe
- in the exercise of its powers, it must also stay within When a law or a provision of law is null because it
what is judicial and not venture into administrative is inconsistent with the Constitution
matters - the nullity cannot be cured by reincorporation or
- the Supreme Court and its members should not and reenactment of the same or a similar law or provision
cannot be required to exercise any power or to - a law or provision of law that was already declared
perform any trust or to assume any duty not unconstitutional remains as such unless
pertaining to or connected with the administering of circumstances have so changed as to warrant a
judicial functions reverse conclusion
- it has been granted greater autonomy and authority The Conduct of the Foreign Relation of our
both in terms of its rule-making, fiscal and Government
administrative affairs - it is committed by the Constitution to the executive
- the 1987 Constitution vests in the Supreme Court the and legislative (the political departments)
power to promulgate rules concerning the protection - the propriety of what maybe done in the exercise of
and enforcement of constitutional rights, pleading, this political power is not subject to judicial inquiry or
practice, and procedure in all courts, the admission to decision
the practice of law, the Integrated Bar, and legal Administrative Agencies
assistance to the underprivileged - are not considered courts; they are neither part of the
- the Court has exclusive domain when it comes to judicial system nor are they deemed judicial tribunals
procedural rules With respect to the Power of Executive Clemency
- the power to promulgate rules of pleading, practice or the power to Grant Pardons
and procedure within the sole province of this Court - Congress cannot by way of statute delimit the same
- the judiciary is not precluded from exercising the otherwise it may result in a violation of the principle
power to control the execution of its decisions, of separation of powers
including when it comes to the implementation of The powers of the Executive, the Legislative and
death penalty the Judiciary to Save the Life of a Convict
- includes the duty of the courts of justice to settle - do not exclude each other for the simple reason that
actual controversies involving rights which are legally there is no higher right that the right to life
demandable and enforceable, and to determine To contend that only the Executive can protect the
whether or not there has been a grave abuse of right to life of an accused after his conviction
discretion amounting to lack or excess of jurisdiction - is to violate the principle of co-equal and coordinate
on the part of any branch or instrumentality of the powers of the 3 branches of government
government
Bill of Attainder
Court’s Mandate - it is essentially a usurpation of judicial power by a
- to keep the different branches within the exercise of legislative body
their respective assigned powers and prerogatives - it envisages and effects the imposition of a penalty –
through the Rule of Law the deprivation of life or liberty or property – not by
ordinary processes of judicial trial, but by legislative
Article 3, Section 19 of the 1987 Constitution fiat
Excessive fines shall not be imposed, nor cruel,
degrading, or inhuman punishment inflicted Violation of the Separation of Powers
- when one branch of government unduly encroaches
Note: on the domain of another
The act of interpreting the Constitution or any part - there is a violation when there is impermissible
thereof by the Legislature interference with and/or assumption of another
- is an invasion of the province and jurisdiction of the department’s functions
Judiciary 2 ways of Violating the Principle of Separation of
Powers

18 | P a g e
Consti Prelims – Atty. Gorospe
1. One branch may interfere impermissibly with the an appropriate exercise of the executive’s domestic
other’s performance of its constitutionally assigned decisional and policy making functions, that is, those
function documents reflecting the frank expression necessary
2. When one branch assumes a function that more in intra-governmental advisory and deliberative
properly is entrusted to another communications
- recognized only in relation to certain types of
information of a sensitive character
Executive Legislative - a claim may be valid or not depending on the ground
Powers/Functions Powers/Functions invoked to justify it and the context in which it is made
- execution of the laws - law making - the extraordinary character of the exemption
passed - Congress has the final indicates that the presumption inclines heavily against
- the President proposes say on matters of executive secrecy and in favor of disclosure
the budget appropriations - executive privilege may still be invoked relative to
congressional hearings in aid of legislation subject to
Congress Supreme Court certain guidelines
- substantive matter - procedural matter - the certain information must, as a matter of
- appropriate standard - determining court fees
necessity, be kept confidential in pursuit of the public
of just compensation which includes how it
interest
- to fix the standard of shall he paid and under
just compensation what conditions a write - the privilege being an exemption from the obligation
- not authorized to of possession may be to disclose information, in this case to Congress, the
exempt certain entities issued necessity must be of such high degree as to outweigh
from the payment of the the public interest in enforcing that obligation in a
same particular case
- the Court finds it essential to limit to the President
Note: the power to invoke the privilege
From the moment the law becomes effective, any - the privilege being an extraordinary power, it must
provision of law that empowers Congress or any of its be wielded only by the highest official in the executive
members to play any role in the implementation or hierarchy
enforcement of the law violates the principle of - the President may not authorize her subordinates to
separation of powers and is thus unconstitutional exercise such power
- the Executive has a right to withhold documents that
Executive Privilege might reveal military or state secrets, identity of
- presidential conservations, correspondences, or government informers in some circumstances, and
discussions during closed-door Cabinet meetings are information related to pending investigation
recognized as confidential - this privilege is highly revered in foreign relations
- this kind of information cannot be pried open by a co- - a claim of executive privilege is subject to balancing
equal branch of government against other interest
- it is essential to protect the independence of - the President’s broad interest in confidentiality of
decision-making of those tasked to exercise communications will not be vitiated by disclosure of a
presidential power limited number of conversations preliminary shown
- it may be invoked which would have the effect of to have some bearing on the pending criminal cases
exempting the executive from disclosure - executive privilege cannot prevail over the
requirements applicable, where such exemption is fundamental demands of due process of law in the fair
necessary to the discharge highly important executive administration of criminal justice
responsibilities involved in maintaining governmental
operations When an official is being summoned by Congress
- this privilege extends not only to military and on a matter which his own judgment might be
diplomatic secrets but also to documents integral too covered by executive privilege

19 | P a g e
Consti Prelims – Atty. Gorospe
- such official must be afforded reasonable time to 2. The communication must be authored or “solicited
inform the President or the Executive Secretary with and received” by a close advisor of the President or the
fair opportunity to consider whether the matter President himself. The judicial test is that an advisor
indeed calls for a claim of executive privilege must be in “operational proximity” with the President
- if, after the lapse of reasonable time, neither the 3. The presidential communications privilege remains
President nor the Executive Secretary invokes the a qualified privilege that may be overcome by a
privilege, Congress is no longer bound to respect the showing of adequate need, such that the information
failure of the official to appear before Congress and sought “likely contains important evidence and by the
may then opt to avail of the necessary legal means to unavailability of the information elsewhere by an
compel his appearance appropriate investigating authority

2 Kinds of Executive Privilege Deliberative Process Privilege


1. Presidential Communications Privilege - includes advisory opinions, recommendations and
2. Deliberative Process Privilege deliberations comprising part of a process by which
governmental decisions and policies are formulated
Presidential Communications Privilege - applies to decision-making of executive officials
- - it pertains to communications, documents or other - rooted on common law privilege
materials that reflect presidential decision-making
and deliberations that the President believes should Legislative Privilege
remain confidential - executive sessions of either house of Congress is
- applies to decision-making of the President recognized as confidential
- it is rooted in the constitutional principle of - this kind of information cannot be pried open by a co-
separation of power and the President’s unique equal branch of government
constitutional role - it is essential to protect the independence of
- applies to documents in their entirety, and covers decision-making of those tasked to exercise legislative
final and post-decisional materials as well as pre- power
deliberative ones - Congress has the right to know why the executive
- judicial negation of the presidential communications considers the requested information privileged
privilege is always subject to greater scrutiny than - Congress must not require the executive to state the
denial of the deliberative process privilege reasons for the claim with such particularity as to
- the official covered by this privilege is only to compel disclosure of the information which the
Malacañang Staff that has operational proximity to privilege is meant to protect
direct presidential decision-making - A senator may invoke legislative privilege, when he
- the privilege is meant to encompass only those or she is questioned outside the Senate about
functions that form the core of presidential authority, information gathered during an executive session of
involving what the court characterized as the Senate’s legislative inquiry in aid of legislation
“quintessential and non-delegable Presidential
power”, such as commander-in-chief power, Judicial Privilege
appointment and removal power, the power to grant - internal deliberations of the Supreme Court and
pardons and reprieves, the sole authority to receive other collegiate courts
ambassadors and other public officers, the power to - this kind of information cannot be pried open by a co-
negotiate treaties etc. equal branch of government
- it is essential to protect the independence of
Elements of Presidential Communications decision-making of those tasked to exercise judicial
Privilege power
1. Protected communication must relate to - in the judiciary, privileges against disclosure of
“quintessential and non-delegable presidential official records create a hierarchy of rights that protect
power” certain confidential relationships over and above the

20 | P a g e
Consti Prelims – Atty. Gorospe
public’s evidentiary need or right to every man’s CHECKS AND BALANCES
evidence The System of Checks and Balances
- certain information contained in the records of cases - while each branch has its own sphere of authority
before the Supreme Court are considered confidential where it is supreme, it could not, however, just do
and are exempt from disclosure whatever it wants if the other branches would find the
- a justice of the court or a judge may invoke judicial act unwarranted, unwise or downright
privilege in the Senate sitting as an Impeachment unconstitutional
Court, for proceedings in the performance of his or her - Congress legislates, but this could also be checked by
own judicial functions the President through the veto power, and the courts
- what applies to magistrates applies with equal force through the exercise of judicial review
to court officials and employees who are privy to these - Even as it is for Congress to enact rules for society,
deliberations. They may likewise claim exemption the President may disapprove through his veto power
when asked about this privileged information potential laws which are in his opinion
unconstitutional or unwise, or otherwise uncalled for.
Note: And if Congress really thinks that the intended law is
- however, the mere fact that a type of information is not constitutionally infirm or is indeed needed, it may
recognized as privileged does not necessarily mean proceed or override such presidential veto
that it would be considered privileged in all instances - As for the courts, they may check on the Congress and
the President by declaring laws or other acts of said
In Determining the Validity of a Claim of Privilege branches to be contrary to the fundamental law
- the question that must be asked is not only whether - the President has the power of appointment, but this
the requested information falls within one of the is also checked by Congress through the Commission
traditional privileges, but also whether that privilege on Appointments which may disapprove of his choices
should be honored in a given procedural setting for certain positions
- The appointing power of the President when it comes
Principle of Comity to the judiciary and the Office of the Ombudsman is
- the practice of voluntarily observing inter- also limited by the institution of the Judicial and Bar
departmental courtesy in undertaking their assigned Council which screens potential appointees
constitutional duties for the harmonious working of - there is still the ever-hovering authority of the courts
government to look into the question of validity or grave abuse of
- the judiciary applies the principle of comity at the discretion in the exercise of such power
first instance in its interpretation and application of - the power of the President to suspend the privilege
laws of the writ of habeas corpus or to declare martial law
- the courts tread carefully; they exercise restraint and is subject to the power of Congress to override it, or
intervene only when the grave abuse of discretion is not to extend it beyond 60 days
clear and even then must act with carefully calibrated - the judiciary could also decide whether such acts are
steps, safely and surely made within constitutional in accordance with the Constitution or not, or even to
bounds determine the factual basis of such presidential acts
- the two other branches may also observe the - the diplomatic powers of the President even as he
principle of comity by voluntarily and temporarily may enter into treaties and other international
refraining from continuing with acts questioned agreements, this is subject to the right of the Senate to
before the courts either concur or reject the same
- inter-departmental courtesy demands that the - Congressional check on the judiciary includes the
highest levels of each department be exempt from the prerogative to define and delimit the jurisdiction of
compulsory processes of the other departments on the courts, except to the extent such power is limited
matters related to the functions and duties of their by the Constitution itself
office - Congress thereby decides on what matters the courts
can decide and the extent of their authorities to do so

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Consti Prelims – Atty. Gorospe
- the legislature could create and abolish lower courts - could ensure that the electoral exercises are free
than Supreme Court provided the guarantee of from interference from others which may compromise
security of tenure if not violated the integrity of the process
- the appropriations for the operations of the judiciary
also come from Congress, subject to certain Office of the Ombudsman
parameters set put in the Constitution itself - may provide additional mechanism to check on the
- Congress has the ability to undo certain decisions of proper or improper, abusive exercise of power, or the
the courts by simply amending the law in order to commission of graft and corruption
remove or modify the provisions which might have
been considered constitutionally impermissible Judicial Review
- Congress could also come up with new provisions in - it is essentially the authority of the judiciary to
order to avoid or change a construction placed by the determine and declare what the law is, and to
courts on a law pronounce whether the acts of the other branches and
- the Chief Executive could also provide a check on the agencies of the government are constitutional or legal
judiciary by his power to appoint those who would be - it is essentially for the maintenance and enforcement
in a position to determine how the law is to be read of the separation of powers and the balancing of
and understood powers among the three great departments of
- Congress may be able to somehow mold the judiciary government through the definition and maintenance
through the ideological leanings of the judges of the boundaries of authority and control between
appointed them
- it is not only a power but a constitutional duty of the
Section 5, Article 8 of the Constitution courts
- provides that the jurisdiction of the Supreme Court
as enumerated therein may not be reduced by Political Question Doctrine
Congress - a limitation on the power of judicial review
- courts should keep their hands off in the resolution
Section 30 of Article 6 of the Constitution of questions or problems that are basically entrusted
- requires that Congress to expand the appellate to the political departments to address
jurisdiction of the Supreme Court, it must first secure - they should limit themselves to those which are
the advice and concurrence of the latter justiciable
- while the courts can look into questions of legality
Independent Constitutional Commissions and the and constitutionality, they should not intrude into
Office of the Ombudsman questions of policy or the wisdom of enactments and
- these constitutional offices, by reason of their acts of the other branches because it is the latter that
independence, could provide a check on the great such issues for resolution are vested
branches of the government - the Courts should use only the standards set out in
the fundamental law, viewing the acts on the issue of
Civil Service Commission constitutionality or grave abuse of discretion
- the central personnel agency of the government, - political questions are concerned with issues
could provide guidelines by which government dependent upon the wisdom, not the legality, of a
employees and officials may be appointed, disciplined particular act or measure being assailed
or removed - the political question being a function of the
separation of powers, the courts will not normally
Commission on Audit interfere with the workings of another co-equal
- as watchdog, could check on the expenditure and use branch unless the case shows a clear need for the
of government funds and properties courts to step in to uphold the law and the
Constitution
Commission on Elections - it is a question of policy

22 | P a g e
Consti Prelims – Atty. Gorospe
- it refers to those questions which, under the The Determination of a truly Political Question
Constitution, are to be decided by the people in their from a Non-Justiciable Political Question
sovereign capacity, or in regard to which full - whether there are constitutionally imposed limits on
discretionary authority has been delegated to the powers or functions conferred upon political bodies
Legislature or executive branch of the government - if there are, then our courts are duty-bound to
- it is concerned with issues dependent upon the examine whether the branch or instrumentality of the
wisdom, not the legality, of a particular measure government properly acted within such limits
- are neatly associated with the wisdom, not the
legality of a particular act Note:
- vortex of the controversy refers to the legality or While discretion might have been given a political
validity of the contested act, that matter is definitely branch or official
justifiable or non-political - he cannot exercise it in a manner that would rise to
- debatable questions are for the legislature to decide the level of arbitrariness and improvidence
- courts have no judicial power to review cases
involving political questions Grave Abuse of Discretion
- the authority of the courts to look into certain - it is the arbitrary exercise of power due to passion,
questions has been enlarged while constricting the prejudice or personal hostility; or the whimsical,
areas where the political branches could claim arbitrary or capricious exercise of power that
exclusivity amounts to an evasion or refusal to perform a positive
duty enjoined by law or to act at all in contemplation
A Controversy is Justiciable of law
- if it refers to a matter which is appropriate for court - such an abuse must be patent and gross
review
- it pertains to issues which are inherently susceptible 2 Lessons in drafting the 1987 Constitution
of being decided on grounds recognized by law 1. The need to grant this Court the express power to
- the Court does not automatically assumer review the exercise of the powers of a commander-in-
jurisdiction over actual constitutional cases brought chief by the President and deny it of any discretion to
before it even in instances that are ripe for resolution decline its exercise
2. The need to compel the Court to be pro-active by
A case involves a Political Question when… expanding its jurisdiction and, thus, reject its laid back
- the impossibility of deciding without an initial policy stance against acts constituting grave abuse of
determination of a kind clearly for nonjudicial discretion on the part of any branch or instrumentality
discretions; or the impossibility of a court’s of government
undertaking independent resolution without
expressing lack of the respect due coordinate Expanded Judicial Power
branches of government, or an unusual need for - precludes this Court from using the political question
unquestioning adherence to a political decision doctrine as a means to avoid having to make decisions
already made; or the potentiality of embarrassment simply because they are too controversial, displeasing
from multifarious pronouncements by various to the President or Congress, inordinately unpopular,
departments on question or which may be ignored and not enforced
- Unless one of these formulations is inextricable from - the judiciary would still stay its hands in matters
the case at bar, there should be no dismissal for non- which are intrinsically for the other departments to
justiciability on the ground of a political question’s attend to, such as the presidential prerogative in
presence foreign relations, and congressional authority to
handle its own house rules
- courts can review questions which are not truly
political in nature

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Consti Prelims – Atty. Gorospe
Diplomatic Immunity 3 Distinct Ideas that have contributed to the
- it is a recognized principle of international law and development of the principle that Legislative
under our system of separation of powers, it is Power Cannot be Delegated
essentially a political question and courts should 1. The Doctrine of Separate Powers
refuse to look beyond a determination by the - Why go to the trouble of separating three powers of
executive branch of the government, and where the government if they can straightway remerge on their
plea of diplomatic immunity is recognized and own motion?
affirmed by the executive branch of the government as 2. Concept of Due Process of Law
in the case at bar - which precludes the transfer of regulatory functions
- the duty of the courts to accept the claim of immunity to private persons
upon appropriate suggestion by the principal law 3. Delegata Potestas Non Potest Delegari
officer of the government, the Solicitor General or - this is borrowed by John Locke and formulated as a
other officer acting under his direction dogma of Political Science

Note: Exceptions where Delegation may be Allowed


- the Constitution makes no distinction as to the kind 1. Emergency powers to the President
of legislation that may be subject to judicial scrutiny, 2. Tariff Powers to the President
be it I the form of social legislation or otherwise 3. Powers to Local Governments
4. Subordinate Legislation to Administrative Agencies
DELEGATION OF POWERS
Potestas delegate non delegare potest Note:
- what has been delegated should not be further Article 6, Section 1 of the Constitution
delegated “ The legislative power shall be vested in the Congress
of the Philippines which shall consist of a Senate and a
Doctrine of Delegation of Powers House of Representatives, except to the extent
- where the sovereign powers of the State has located reserved to the people by the provision on initiative
the authority, there it must remain; and by the and referendum”
constitutional agency alone the laws must be made - the present Constitution expressly reserved to the
until the constitution itself is changed people the power to legislate through initiative and
- it is based on the ethical principle that such delegated referendum
power constitutes not only a right but a duty to be
performed by the delegate by the instrumentality of is Emergency Powers
own judgment acting immediately upon the matter of - there may be occasions when they have to exercised
his own judgment acting immediately upon the matter by the President since as the sole official upon whom
of his own judgment and not through the intervening executive power is vested, he would be in a better
mind of another position to respond in a timely manner to emergencies
- it originated with the glossators, when it was and fast changing developments that are critical to the
introduced into English law through a misreading of welfare, safety or security of the nation
Bracton, there developed as a principle of agency, was - while emergency does not create power, emergency
established by Lord Coke in the English public law in may furnish the occasion for the exercise of power
decisions forbidding the delegation of judicial power - the fundamental law provides that the delegation
and find its way into America as an enlightened may done during war or other national emergency,
principle of free government. It has since become an allowing the President to exercise such powers which
accepted corollary principle of separation of powers are necessary and proper to carry out a declared
- it is not to be understood as an absolute prohibition national policy for a limited period, and subject to
against delegation restrictions prescribed by Congress
- Insofar as duration is concerned, if Congress does not
expressly take back the powers by means of a

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resolution, the same shall cease upon its next
adjournment
- the words ‘limited period’ as used in the Constitution
are beyond question intended to mean restrictive in
duration. In order to justify the delegation of
emergency powers, ‘must be temporary or it cannot be
said to be an emergency’. In other words, the law
delegating it was presumed with such limitation in
view (Araneta vs Dinglasan)

Tariff Powers
- Congress may not be able to act with dispatch to
respond to ever changing developments in
international trade and commerce.
-

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