Constitutional Law Prelims Reviewer

7/30/2019 Constitutional Law Prelims Reviewer

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CONSTITUTIONAL LAW

1.What is the purpose of the Constitutional Lawbook by Justice Cruz, according to him?- To inform the reader of the liberties he enjoys

under the Bill of Rights and, by reminding him inRizals words that he who submits to tyrannyloves it, encourage him to assert and defend

them when they are threatened or violated.

2.What is the true role of authority in a democraticsociety?- The exaltation of liberty

3.What is constitutional law?- Constitutional law is the study of the

maintenance of the proper balance betweenauthority as represented by the threeinherent powers of the State and liberty asguaranteed by the Bill of Rights.

4.What are the fundamental powers of the state?- Police power, Power of Eminent Domain, Power

of Taxation


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5.Name some of the safeguards in the Bill ofRights?

- The right to due process and equal protection,- the prohibition against unreasonable searches

and seizures,- freedom of expression,- the impairment clause- the guarantees against injustice to the accused.

6.What are to common objectives and ultimategoal of the Powers of the State and the Bill ofRight?- Co-existence is the common objective and a

well-ordered society based on the inviolability ofrights which although they may not be curtailedarbitrarily, may nevertheless be regulated for thecommon good is the ultimate goal.

7.What is the meaning ofcommon weal?- A general state of well-being, prosperity,

happiness

8.What is the definition of constitution?- According to Cooley: A body of rules and

maxims in accordance with which thepowers of sovereignty are habituallyexercised.


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- According to Justice Malcolm: The writteninstrument enacted by direct action of the

people by which the fundamental powers ofthe government are established, limited anddefined, and by which those powers aredistributed among the several departmentsfor their safe and useful exercise for thebenefit of the body politic.

9.What is the purpose of the Constitution?- To prescribe the permanent framework of a

system of government, to assign to severaldepartments their respective powers andduties, and to establish certain first fixed

principles on which government is founded.

10. What is the doctrine of Supremacy of theConstitution?- The Constitution is the basic and paramount law

to which all other laws must conform and towhich all persons, including the highest officials

of the land, must defer. No act shall be valid,however noble its intentions, if it conflicts withthe Constitution. It must ever remain supreme.


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11. What are the different classifications ofconstitutions and explain each?

a.Written Constitution: is one whose preceptsare embodied in one document or set ofdocuments.

b.Unwritten Constitution: consists of ruleswhich have not been integrated into a single,concrete form but are scattered in various

sources, such as statutes of a fundamentalcharacter, judicial decisions, commentaries ofpublicists, customs and traditions and certaincommon law principles.

c.Conventional Constitution: is an enactedconstitution, formally struck off at a definitetime and place following a conscious or

deliberate effort taken by a constituent bodyor ruler.

d.Cumulative Constitution: is the result ofpolitical evolution, not inaugurated at anyspecific time but changing by accretion ratherthan any systematic method.

e.Rigid Constitution: is one that can beamended only by a formal and usually difficultprocess

f. Flexible Constitution: is one that can bechanged by ordinary legislation.


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12. What is the classification of theConstitution of the Philippines?

- Ours iswritten, conventional and rigid.13. What are the essential qualities of the

written constitution and explain each quality.

Broad because it provides for the organizationof the entire government and covers all personsand things within the territory of the State, toembody the past, to reflect the present and toanticipate the future.

Brief must confine to basic principles to beimplemented with legislative details more

adjustable to change and easier to amend.

Clearlest ambiguity in its provisions result inconfusion and divisiveness among the peopleand perhaps even physical conflict.

14. What is the meaning of malleable?1. able to be shaped and bent: describes a metal or other su

that can be shaped or bent without breaking

2. easily influenced: easily persuaded or influenced by others


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15. What are the essential parts of the writtenconstitution and explain each part?

Constitution of liberty: setting forth thefundamental civil and political rights of the citizensand imposing limitations on the powers ofgovernments as a means of securing theenjoyment of those rights.

Constitution of Government: consists of series ofprovisions outlining the organization of thegovernment, enumerating its powers, laying downcertain rules relative to its administration anddefining the electorate.

Constitution of Sovereignty: consists ofprovisions pointing out the mode or procedure inaccordance with which formal changes in thefundamental law may be brought about.

16. Explain the principle on the Permanence ofthe Constitution and its advantages anddisadvantages.- It is the capacity to resist capricious or whimsical

change dictated not by legitimate needs not onlyby passing fancies, temporary passions oroccasional infatuations of the people with ideas

or personalities.


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- Advantage: Not likely to be easily tampered withto suit political expediency, personal ambitions

or ill-advised agitation for change.- Disadvantage: Unable to adjust to the need for

change justified by new conditions andcircumstances.

17. How should the Constitution beinterpreted?-It should be interpreted in such a way as to giveeffect to the intendment of the framers.

18. Should the Constitution be petrified orprogressive?- The Constitution must change with the changing

times lest it impede the progress of the peoplewith antiquated rules grown ineffective in amodern age.

19. Differentiate a self-executing from a non-self-executing provision of the Constitution.

Give examples. Self-executingprovision is a rule that

by itself is directly or indirectlyapplicable without need of statutoryimplementation.


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Non-executing provision is one thatremains dormant unless it is activated

by legislative implementation.

20. Distinguish between amending theConstitution, revising the constitution andmodifying the interpretation of the Constitution.

Amendment means isolated or piecemeal changeonly

Revision is a revamp or rewriting of the wholeinstrument

Modification the interpretation by the courts of

justice is done when the provisions of theconstitution are ambiguously worded-perhapsdeliberately so that judges may read out of them, inthe light of altered conditions, meanings that at anearlier time were considered heretical.

21. Explain the procedures for the amendmentor revision of the Constitution.

a)Proposal: generally made either directly by theCongress or by a constitutional convention. If amere amendment or change of particular

provisions is intended, the proposal is better


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made by direct legislative action. The vote of atleast of all the members of the Congress shall

be needed. But if what is envisioned is theoverhaul of the entire Constitution, it will beadvisable to entrust the task to a constitutionalconvention, which will have more time,opportunity and presumably also the neededexpertise to discharge it.

b)Ratification: The Constitution provides that anyamendment to or revision shall be valid whenratified by a majority of the votes cast in aplebiscite held not earlier than sixty days norlater than ninety days after the approval of suchchange by the Congress or the constitutional

convention or after the certification by theCommission on Elections of the sufficiency ofthe petition under Section2.

22. What are the 3 theories on the relativeposition of the constitutional convention vis--

vis the regular department of the government.Explain.

a)Theory of Conventional Sovereignty: Theconstitutional convention is supreme over theother departments of the government because


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the powers it exercises are in the nature ofsovereign powers.

b)The Constitutional Convention is inferior to theother departments of the government since it ismerely a creation of the legislature.

c)The Constitutional Convention, as long as itexists and confines itself within the sphere of itsjurisdiction, it must be considered independentof and co-equal with the other departments ofthe government.

23. What are the requisites for a judicial inquiryinto a constitutional question? Explain.

1.There must be an Actual Case: which involvesa conflict of legal rights, an assertion ofopposite legal claims susceptible of judicialadjudication.

2.The question of constitutionality must beraised by the proper party

3.The constitutional question must be raised atthe earliest possible opportunity

4.The decision of the constitutional questionmust be necessary to the determination of thecase itself.


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24. Can and should the SC respond to a formalrequest for an advisory opinion involving a

constitutional issue? Explain.A request for advisory opinion cannot come inthe category of an actual case or controversysince the issue raised does not involve anyconflict in law that has assumed the

proportions of a full-blown dispute. The Court

should only counsel and not to decide.

25. Who is the proper party in a judicial inquiryinto a constitutional question?

- A proper party is one who has sustained or is inimmediate danger of sustaining an injury as a resultof the act complained of.

26. When must a constitutional question beraised? What are the exceptions, if any?

It must be raised at the earliest possible opportunity,such that if it is not raised in the pleadings, it cannot

be considered at the trial and if not considered at thetrial, it cannot be considered on appeal.

Exceptions:a)in criminal cases, the constitutional question can

be raised at any time in the discretion of the court


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b)in civil cases, the constitutional question can beraised at any stage if it is necessary to the

determination of the case itselfc)in every case, except where there is estoppels, the

constitutional question can be raised at any stage ifit involves the jurisdiction of the court

27. What are the effects of a declaration by the SC

that a particular law is unconstitutional?

Orthodox view: an unconstitutional act is not a law, itconfers no rights, it imposes no duties, it affords no

protection, it creates no office, it is in legalcontemplation, inoperative, as if it had not been

passed.

Modern View: the court in passing upon the questionof constitutionality does not annul or repeal the statuteif it finds it in conflict with the Constitution. It simplyrefuses to recognize it and determines the rights ofthe parties just as if such statute had no existence.


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28. What are the fundamental powers of the State?Briefly explain each and explain what are their

similarities, differences and limitations.

Police Power: power of the State to regulate libertyand property for the promotion of the general welfare.

Power of Eminent Domain: enables the State to

forcibly acquire private property upon payment of justcompensation for some intended public use.

Power of Taxation: the State is able to demand fromthe members of the society their proportionate shareor contribution in the maintenance of the government.

Similarities:a.they are inherent in the State and may be

exercised by without need of express constitutionalgrant

b.they are not only necessary but indispensable.c.They are methods by which the State interferes

with private rightsd.They all presuppose an equivalent compensation

for the private rights interfered withe.They are exercised primarily by the legislature


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Differences:a.the PP regulates both liberty and property. PED

and POT affect only property rightsb.The PP and the POT may be exercised only by the

government. PED may be exercised by someprivate entities.

c.The property taken in the exercise of the policepower is destroyed because it is noxious or

intended for a noxious purpose. The property takenunder the power of eminent domain and the powerof taxation is intended for a public use or purposeand is therefore wholesome.

d.The compensation of the person subjected to thepolice power is the intangible altruistic feeling thathe has contributed to the general welfare. The

compensation involved in the other powers is moreconcrete, to wit, a full and fair equivalent of theproperty expropriated or protection and publicimprovements for the taxes paid.

Limitations:

The exercise of these fundamental powers is subjectat all times to the limitations and requirements of theConstitution and may in proper cases be annulled by thecourts of justice.


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29. What is the meaning ofnoxious?1. physically harmful: harmful to life or health, especially by bein

poisonous2. morally harmful: likely to cause moral, spiritual, or social harm

corruption

3. disgusting: very unpleasant

noxious smell

30. What is the definition of police power?- The power of promoting the public welfare by

restraining and regulating the use of liberty andproperty.

31. Explain why police power is regarded asinfinitely more important than eminent domain?

PED affects not all of the people directly but onlythose whose property is needed for conversion topublic use. PP regulates not only property but,

more importantly, the liberty of private persons andvirtually all the people. Thus, it is regarded asinfinitely more important than eminent domain.


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32. What is meaning of pervasive?present everywhere: spreading widely or present

throughout something

33. What is the characteristic of police power?- is considered the most pervasive, the least limitable,and the most demanding of the three powers.

34. What is the justification of police power?- The justification of PP in found in the ancient latin

maxims, salus populi est suprema lex and sic uteretuo ut alienum non laedus, which call for thesubordination of individual benefit to the interests ofthe greater number.

35. Can the legislature curtail or restrict the scopeof the police power of the State? Why or why not?

The legislature cannot bargain away the policepower of a State. Irrevocable grants of propertyand franchises may be made if they do not impairthe supreme authority to make laws for the rightgovernment of the State. Thus, no legislature cancurtail the power of its successors to make suchlaws as they may deem proper in matters of police.


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36. Who can exercise police power? Explain youranswer?

- The exercise of the police power lies in thediscretion of the legislative department.

37. Can the legislative department be compelled toexercise police power? Why or why not?

The PP is lodged primarily in the nationallegislature. Given a police problem, it is entirely up tothe legislature to decide whether or not, in the firstplace, it should act against the problem. If it does, welland good, but if it does not, it may not be compelledto do so by judicial process. No mandamus isavailable to coerce the exercise of the PP.

38. What are the tests to determine the validity of apolice measure? Explain.

a.the interests of the public generally, asdistinguished from those of a particular class,require the exercise of the PP

b.the means employed are reasonablynecessary for the accomplishment of thepurpose and not unduly oppressive uponindividuals.


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39. Is the enactment of the Bouncing Checks Law(or BP22) a valid exercise of police power? Why

or why not?

Yes, the enactment of Bouncing Checks Law is avalid exercise of the police power and is notrepugnant to the constitutional inhibition againstimprisonment for debt because the effects of the

issuance of a worthless check transcends the privateinterests of the parties directly involved in thetransaction and touches the interest of the communityat large. The mischief it creates is not only a wrong tothe payee or holder, but also an injury to the public.

40. What is the definition of eminent domain?- also called the power of expropriation. It is describedas the highest and most exact idea of propertyremaining in the government that may be acquired forsome public purpose through a method in the natureof a compulsory sale to the State.

41. What is the procedure in expropriating aproperty for public use? Explain.

A private property can be expropriated when it isneeded for conversion to some public use. The first

thing obviously that the government should do is to


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offer to buy it. If the owner is willing to sell and theparties can agree on the price and the other

conditions of the sale, a voluntary transaction canthen be concluded and the transfer effected withoutthe necessity of judicial action. However, if theowner of the private property is unwilling to partwith it, or, being willing, cannot agree to theconditions of the transfer, then it will be necessary

for the government to use its coercive authoritythrough power of eminent domain upon payment ofjust compensation.

42. Who may exercise the power of eminentdomain? Explain.

a)the congressb)the president of the Philippinesc)the various local legislative bodiesd)certain public corporations like the Land

Authority and National Housing Authoritye)quasi-public corporations like the Phil

National Railways, the Phil Long Distance

Telephone Co and the Meralco

43. Distinguish between eminent domain anddestruction from necessity.

Destruction of Necessity can validly beundertaken even by private individuals while in

eminent domain, it is not allowed.


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The right of necessity arises under the lawsof society or society itself. It is the right of self-

defense, of self-preservation, whether applied topersons or to property. It is a private right vested inevery individual and with which the right of thestate or state necessity has nothing to do.

The right of eminent domain is a public right;

it arises from the laws of society and is vested inthe state or its grantee, acting under the right andpower of the state, or benefit of the state or thoseacting under it.

44. Can the courts look into and inquire on thenecessity or wisdom of the exercise of the power

of eminent domain in particular instances?Explain.

Yes. The power of the legislature to confer,upon municipal corporations and other entitieswithin the State, general authority to exercise the

right of eminent domain cannot be questioned bycourts, but whether or not the municipalcorporation or entity is exercising the right in aparticular case under the conditions imposed bythe general authority, is a question which thecourts have the right to inquire into.


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45. Can a property already devoted to public usestill be a subject or object of expropriation?

Explain.

Yes provided that it is done directly by thenational legislature or under a specific grant ofauthority to the delegate.

46. Distinguish the nature of the properties to beaffected in police power and in expropriation.

The property subject of expropriation must be byits nature or condition wholesome, as it is intendedto be devoted to a public use. It differs fromproperty taken under the police power, which is

sought to be destroyed because it is noxious orintended for a noxious purpose.

47. Is it possible to legally take private propertyfor public purpose without paying justcompensation. Explain.

Yes. For instance, a building on the verge ofcollapse may be ordered demolished in the interestof public safety and the owner will not be entitled topayment for the loss he has sustained even if hehas been completely deprived of his property. In

this case, there is a valid exercise of police power


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aimed at improving the general welfare, andwhatever damages are sustained by the property

owners are regarded as merely incidental to aproper exertion of such power. The onlyrecompense available to the owners is the altruisticfeeling that they have somehow, by their sacrifice,contributed to the well-being of the people ingeneral.

48. What are the requisites of taking or privateproperty in eminent domain?

a)the expropriator must enter a private propertyb)the entry must be for more than a momentary

periodc)the entry must be under warrant or color of

legal authorityd)the property must be devoted to public use or

otherwise informally appropriated or injuriouslyaffected

e)the utilization of the property for public usemust be in such a way as to oust the owner

and deprive him of beneficial enjoyment of theproperty

49. What is the meaning of inter alia?- among other things


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50. What isjust compensation?

Just Compensation is described as a full andfair equivalent of the property taken from the

private owner by the expropriator.

51. How is just compensation ascertained?

Explain.

To ascertain just compensation, the courtshould determine first the actual or basic value ofthe property. Where the entire property is notexpropriated, there should be added to the basicvalue the owners consequential damages after

deducting therefrom the consequential benefitsarising from the expropriation. If the consequentialbenefits exceed the consequential damages, theseitems should be disregarded altogether as thebasic value of the property should be paid in everycase.

52. When can the title of the property expropriatedbe transferred?

The title to the property shall not betransferred until after actual payment of just

compensation is made to the owner.


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53. What are taxes?

Taxes are the enforced proportionalcontributions from persons and property, levied bythe State by virtue of its sovereignty, for thesupport of government and for all public needs.

54. What is the bases for taxation?

The importance of taxation derives from theunavoidable obligation of the government to protectthepeople and extend them benefits in the form ofpublic projects and services. It is duty imposedupon the individual by the mere fact of his

membership in the body politic and his enjoymentof the benefits available from such membership.

55. Distinguish taxes from licenses?

Taxes are levied to raise revenues whereas

licenses are imposed for regulatory purposes only.Licenses are justified under the police power, andthe amount of the fees required is usually limitedonly to the cost of the regulation.

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