Reviewer in Political Law A

8/4/2019 Reviewer in Political Law A

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REVIEWER IN POLITICAL LAW A. Definition and Division of Political Law Political Law is that branch of

public law which deals with the organization and operations of the governmental organs of the State

and defines the relations of the State with the inhabitants of its territory. a. Constitutional Law b.

Administrative law c. Election Law d.Law of Public Officers e.Law on Municipal Corporations In case of

Macariola vs. Asuncion, the court says ;Upon the transfer of sovereignty from Spain to the United States

and later on from the United States to the Republic of the Philippines, Article 14 of this Code of

Commerce must be deemed to have been abrogated because where there is change of sovereignty, the

political laws of the former sovereign, whether compatible or not with those of the new sovereign, are

automatically abrogated, unless they are expressly re- enacted by affirmative act of the new sovereign.

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as

heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to

America, because it is political in nature. B. Definition of Constitutional Law Constitutional Law may be

defined as that branch of Public Law which treats of constitution, their nature, formation, amendment,

and interpretation. It refers to the law embodied in the Constitution as well as the principles growing

out of the interpretation and application made by the courts of the provisions of the Constitution in

specific cases. Thus, the Philippine Constitution itself is brief but the law of the Constitution lies

scattered in thousands of Supreme Court decisions. Distinguished Constitutional Law from Political Law

Political Law deals specifically with the study of the structure and powers of our government.

Constitutional Law is one of the division of Political Law that defines the specific duties and

responsibilities of our government together with their privileges and rights and as a fundamental or

supreme law of the land, it enumerates the rights of every citizens with their corresponding functions

where the sovereignty resides in the people and all government authority emanates from them. C.

Constitution (1987 Constitution) a. Definition Constitution -define as the supreme law of the land and

established by the people which prescribes the permanent framework of the system of government,

which establishes basic principles upon which the government founded, and which defines and allocates

to the various organs of government their respective powers and duties. Social Contract Theory People

entrust their rights to the government. The government in return does their part and gives the people

what due to them.

b. Function

(1) Serves as the supreme or fundamental law

(2) Establishes basic framework and underlying principles of

government (3) Defines and allocates to the various organs of government their respective powers and

duties. c. Classification A Constitution may be written or unwritten, conventional or cumulative, and

rigid or flexible. (i) Written is one which has been given definite written form at a particular time. (ii)

Unwritten is one which has not been reduced to writing at any specific time but it is the collective

product of a gradual political development, consisting of unwritten usages and customary rules, judicial

decisions, and legislative enactments of a fundamental character written but scattered in various

records without having any compact form in writing. (iii) Conventional enacted deliberately and

consciously by a constituent body or ruler, at a certain time and place. (iv) Cumulative is a product of



gradual political development. (v) Rigid is one which can be amended through a formal and difficult

process. (vi) Flexible is one which can be changed by ordinary legislation. The 1987 Philippine

Constitution is a written, conventional and rigid Constitution.

d. Essential Qualities of a Written Constitution

(i) As to form, a good written constitution should be:

Brief because if a constitution is too detailed, it would lose the advantage of a fundamental law

which in a few provisions outlines the government of the whole state and the rights of the citizens.

Broad- because a statement of the powers and functions of government, and of the relations

between the governing body and the governed, requires that it be as comprehensive as possible.

Definite- because otherwise the application of its provisions to concrete situations may prove unduly

difficult if not impossible. (ii) As to contents, it should contain at least three sets of provisions;

Constitution of GovernmentConstitution of LibertyConstitution of Sovereignty e. Parts of a

Constitution f. Interpretation of the Constitution In Francisco vs House of Rep., G.R. No. 160261, The

Supreme Court ruled that; The separation of powers is a fundamental principle in our

system of government. It obtains not through express

provision but by actual division in our Constitution. Each

department of the government has exclusive cognizance of

matters within its jurisdiction, and is supreme within its own

sphere. But it does not follow from the fact that the three

powers are to be kept separate and distinct that the

Constitution intended them to be absolutely unrestrained

and independent of each other. The Constitution has

provided for an elaborate system of checks and balances to

secure coordination in the workings of the various

departments of the government. And the judiciary in turn,

with the Supreme Court as the final arbiter, effectively

checks the other departments in the exercise of its power to

determine the law, and hence to declare executive and

legislative acts void if violative of the Constitution.



The Constitution did not intend to leave the matter of

impeachment to the sole discretion of Congress. Instead, it

provided for certain well-defined limits, or "judicially

Prepared by: Madelyn Taytayon, Edcel Quiben, Jilliane Oria and Prince Lising

discoverable standards" for determining the validity of the

exercise of such discretion, through the power of judicial

review. There is indeed a plethora of cases in which this

Court exercised the power of judicial review over

congressional action. Finally, there exists no constitutional

basis for the contention that the exercise of judicial review

over impeachment proceedings would upset the system of

checks and balances. Verily, the Constitution is to be

interpreted as a whole and "one section is not to be allowed to defeat another." Both are integral

components of the calibrated system of independence and

interdependence that insures that no branch of government

act beyond the powers assigned to it by the Constitution.

g. Supremacy of the Constitution The Constitution is the basic and paramount law to which all other

laws must conform and to which all persons, including the highest official of the land, must defer. No act

shall be valid, however noble its intentions, if it conflicts with the Constitution. The Constitution must

ever remain Supreme. All must bow to mandate of this law. Expediency must not be allowed to sap its

strength nor greed for power debase its rectitude.

In case of Mutuc vs COMELEC;

Iss ue : Whether the taped jingles fall under the phrase and

the like. Held: Under the well-known principle of ejusdem generis, the general words following any

enumeration are applicable only to things of the same kind or class as those

specifically referred to.It is quite apparent that what was

contemplated in the Act was the distribution of gadgets of



the kind referred to as a means of inducement to obtain a

favorable vote for the candidate responsible for its

distribution. The Constitutional Convention Act

contemplated the prohibition on the distribution of gadgets

of the kind referred to as a means of inducement to obtain a

favorable vote for the candidate responsible for its

distribution (distribution of electoral propaganda gadgets,

mention being made of pens, lighters, fans, flashlights,

athletic goods or materials, wallets, bandanas, shirts, hats,

matches, and cigarettes, and concluding with the words

and the like.). Taped jingles therefore were not prohibited.

NOTE:E jus de m-Ge ne ris - Latin: of the same kind. A rule of statutory construction, generally accepted

by both state and federal courts, "that where general words follow enumerations of particular classes or

persons or things, the general words shall be construed as applicable only to persons or things of the

same general nature or kind as those enumerated IN CUSTODIA LEGIS.In the custody of the law.In

general, when things are in custodia legis, they cannot be

distrained, nor otherwise interfered with by custodia legis,

they cannot be distrained, nor otherwise interfered with by a

private person.

In case of Alih vs Castro; The Supreme Court declared those seized in custodia legis and declared that

the operation conducted by Maj. Gen. Castro was ILLEGAL. The respondents have all the time to obtain

a search warrant granted that they have about 10 trial courts. The SC also held the protection of the

petitioner's human rights as stated in Art IV Sec 3 and 4 of the 1973 Constitution regarding illegal search

and seizure. The presumption of innocence of the petitioners should be observed and that they cannot

be subjected to self-incriminating instances like paraffin tests, photographing and finger printing. In this

case, "The Constitution is a law for rulers and people, equally in war and in peace, and covers with the

shield of its protection all classes of men, at all times and under all circumstances. No doctrine, involving

more pernicious consequences, was ever invented by the wit of man than that any of its provisions can

be suspended during any of the great exigencies of government." In case of Manila Prince Hotel vs GSIS;

In its plain and

ordinary meaning, the term patrimony pertains to heritage.



When the Constitution speaks of national patrimony, it

refers not only to the natural resources of the Philippines, as

the Constitution could have very well used the term natural

resources, but also to the cultural heritage of the Filipinos. It

also refers to Filipinos intelligence in arts, sciences and

letters. In the present case, Manila Hotel has become a

landmark, a living testimonial of Philippine heritage. While it

was restrictively an American hotel when it first opened in

1912, a concourse for the elite, it has since then become

the venue of various significant events which have shaped

Philippine history. In the granting of economic rights,

privileges, and concessions, especially on matters involving

national patrimony, when a choice has to be made between

a qualified foreigner and a qualified Filipino, the latter

shall be chosen over the former.

A provision which is complete in itself and becomes operative without the aid of supplementary or

enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be

enjoyed or protected, is self-executing. Thus a constitutional provision is self- executing if the nature and

extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they

can be determined by an examination and construction of its terms, and there is no language indicating

that the subject is referred to the legislature for action. In self-executing constitutional provisions, the

legislature may still enact legislation to facilitate the exercise of powers directly granted by the

constitution, further the operation of such a provision, prescribe a practice to be used for its

enforcement, provide a convenient remedy for the protection of the rights secured or the determination

thereof, or place reasonable safeguards around the exercise of the right. The mere fact that legislation

may supplement and add to or prescribe a penalty for the violation of a self-executing constitutional

provision does not render such a provision ineffective in the absence of such legislation. The omission

from a constitution of any express provision for a remedy for enforcing a right or liability is not

necessarily an indication that it was not intended to be self- executing. The rule is that a self-executing

provision of the constitution does not necessarily exhaust legislative power on the subject, but any

legislation must be in harmony with the constitution, further the exercise of constitutional right and

make it more available. II. AMENDMENT TO THE CONSTITUTION ARTICLE XVII AMENDMENTS OR



REVISIONS Section 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The

Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention. Section 2.

Amendments to this Constitution may likewise be directly proposed by the people through initiative

upon a petition of at least twelve per centum of the total number of registered voters, of which every

legislative district must be represented by at least three per centum of the registered voters therein. No

amendment under this section shall be authorized within five years following the ratification of this

Constitution nor oftener than once every five years thereafter. The Congress shall provide for the

implementation of the exercise of this right. Section 3. The Congress may, by a vote of two-thirds of all

its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the

electorate the question of calling such a convention. A. Amendment vs Revision Prepared by: Madelyn

Taytayon, Edcel Quiben, Jilliane Oria and Prince Lising

Amendment is a change or alteration for the better; an amendment or change within the lines of the

original instrument which will bring about improvement Revision is the rewriting or overhauling of the

entire instrument. B. Proposal is the motion of initiating suggestions or proposals on amendment or

revision, which may either be by;

(a) Congress, upon vote of ¾ of all its members;

(b) Constitutional Convention

(c) The people thru initiative

In case of Santiago vs COMELEC; R.A. 6735 is inadequate to cover the system of initiative on

amendments to the Constitution. Under the said law, initiative on the Constitution is confined only to

proposals to AMEND. The people are not accorded the power to "directly propose, enact, approve, or

reject, in whole or in part, the Constitution" through the system of initiative. They can only do so with

respect to "laws, ordinances, or resolutions." The use of the clause "proposed laws sought to be

enacted, approved or rejected, amended or repealed" denotes that R.A. No. 6735 excludes initiative on

amendments to the Constitution. Also, while the law provides subtitles for National Initiative and

Referendum and for Local Initiative and Referendum, no subtitle is provided for initiative on the

Constitution. This means that the main thrust of the law is initiative and referendum on national and

local laws. If R.A. No. 6735 were intended to fully provide for the implementation of the initiative on

amendments to the Constitution, it could have provided for a subtitle therefor, considering that in the

order of things, the primacy of interest, or hierarchy of values, the right of the people to directly

propose amendments to the Constitution is far more important than the initiative on national and local

laws. While R.A. No. 6735 specially detailed the process in implementing initiative and referendum on

national and local laws, it intentionally did not do so on the system of initiative on amendments to the

Constitution. In case of Lambino vs COMELEC; The essence of amendments directly proposed by the

people through initiative upon a petition is that the entire



proposal on its face is a petition by the people. This means

two essential elements must be present. First, the people must author and thus sign the entire proposal.

No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the

proposal must be embodied in a petition. These essential elements are present only if the full text of

the proposed amendments is first shown to the people who

express their assent by signing such complete proposal in a

petition. The full text of the proposed amendments may be

either written on the face of the petition, or attached to it. If

so attached, the petition must state the fact of such

attachment. This is an assurance that every one of the

several millions of signatories to the petition had seen the

full text of the proposed amendments before not after

signing.

Moreover, an initiative signer must be informed at the time

of signing of the nature and effect of that which is proposed

and failure to do so is deceptive and misleading which

renders the initiative void.

In the case of the Lambino Groups petition, theres not

a single word, phrase, or sentence of text of the

proposed changes in the signature sheet. Neither does

the signature sheet state that the text of the proposed

changes is attached to it. The signature sheet merely

asks a question whether the people approve a shift

from the Bicameral-Presidential to the Unicameral-

Parliamentary system of government. The signature

sheet does not show to the people the draft of the



proposed changes before they are asked to sign the

signature sheet. This omission is fatal.

An initiative that gathers signatures from the people without

first showing to the people the full text of the proposed

amendments is most likely a deception, and can operate as

a gigantic fraud on the people. Thats why the Constitution

requires that an initiative must be directly proposed by the

people x x x in a petition meaning that the people must

sign on a petition that contains the full text of the proposed

amendments. On so vital an issue as amending the nations

fundamental law, the writing of the text of the proposed

amendments cannot be hidden from the people under a

general or special power of attorney to unnamed, faceless,

and unelected individuals.

C. Submission- In case of Tolentino vs COMELEC; The Supreme Court held that in Section 1 of Article 15,

there should be only one election or plebiscite for the ratification of all amendments the Convention

may propose. D. Ratification: Article 17 Section 4, Paragraphs 1 and 2 Section 4. Any amendment to, or

revision of, this

Constitution under Section 1 hereof shall be valid when

ratified by a majority of the votes cast in a plebiscite

which shall be held not earlier than sixty days nor later

than ninety days after the approval of such amendment

or revision.

Any amendment under Section 2 hereof shall be valid

when ratified by a majority of the votes cast in a

plebiscite which shall be held not earlier than sixty

days nor later than ninety days after the certification by



the Commission on Elections of the sufficiency of the

petition.

E. The position of the Convention in our system of government There are three theories on the relative

position of the Constitutional Convention vis-à-vis the regular department of the government. The first,

as announced in Loomis v. Jackson, holds that the constitutional constitution is supreme over the other

departments of the government because the powers it exercises are in the nature of sovereign powers.

This theory is thus called the Theory of Conventional Sovereignty. The second, as announced in

Woods Appeal, considers the constitutional convention inferior to the other departments of the

government since it is merely a creation of the legislature. The third, as announced in Frantz vs Autry,

declares that as long as it exists and confines itself within the sphere of its jurisdiction, the constitutional

convention must be considered independent of and co-equal with the other departments of the

government. The third of these theories, which is the most popular, has been observed in our

government since the case of Mabanag vs. Vito. III. History and Background A. The Philippine Revolution

and the Malolos Constitution On June 29,1898, Gen, Aguinaldo established the RevolutionaryGovernment replacing the Dictatorial Government with himself as the President and a Congress whose

function was advisory and ministerial. The decree making such change stated Prepared by: Madelyn


that the aims of the new government were to struggle for the independence of the Philippines, until all

nations including Spain will expressly recognize it, and to prepare the country for the establishment of

a real Republic. On September 15, 1898, revolutionary Congress of Filipino representatives met in

Malolos, Bulacan at the call of the Revolutionary Government. The Malolos Congress ratified on Sept.

29, 1898 the proclamation of Philippine Independence made by Gen. Emilio Aguinaldo in Kawit, Caviteon June 12,1898 and framed the so-called Malolos Constitution.This Constitution was the first

democratic constitution ever promulgated in the whole Asia. It established a free and independent

Philippine Republic. However, it was not recognized by the family of nations. It had short- lived. B. The

Organic Laws under the American Period (1) Mckinleys Instructions (April 7, 1990) President McKinley's

instruction to the Philippine Commission in April 1900 directed that, "... Beginning with the 1st day of

September, 1900, the authority to exercise that part of the power of government in the Philippine

Islands which is of legislative nature, is to be transferred from the Military Governor to this

commission." The instruction also gave the Commission the power to appoint to officers under the

judicial, educational, and civil service systems and in the municipal and departmental governments. The

instruction charged the Commission, "... In all the forms of government and administrative provisions

which they are authorized to proscribe, the Commission should bear in mind that the government which

they are establishing is designed not for our satisfaction, or for the expression of our theoretical views,

but for the happiness, peace and prosperity of the people of the Philippine islands, and measures

adopted should be made to conform to their customs, their habits, and even their prejudices, to the

fullest extent consistent with the accomplishment of just and effective government." (2) The Spooner

Amendment (1901) The Army Appropriation Act, also known as the Spooner Amendment, is passed by



the US Senate. It provides that the US President governs the Philippines by the authority of Congress

and not as Commander-in-Chief of the Armed Forces, thereby formally ending the US military regime in

the archipelago. (3)The Philippine Bill of 1902, or the Cooper Act of July 1, 1902, provided for the

retention of executive powers of the Philippine Commission and the establishment of a bicameral

Philippine Legislature. It provided for the creation of the Philippine Assembly, a body that would share

legislative powers with the Philippine Commission and would function as the lower chamber of the

proposed Philippine Legislature. It also provided for a bill of rights for the Filipinos, and the appointment

of two Filipino resident commissioners to represent the Philippines in the United States Congress but

without voting rights. On October 16, 1907, the first session of the Philippine assembly opened, with an

elected lower house and the Philippine Commission, previously established, as the upper house. (4) The

Philippine Autonomy Act or Jones Law Statute announcing the intention of the United States

government to withdraw their sovereignty over the Philippine Islands as soon as a stable government

can be established therein. The U.S. had acquired the Philippines in 1898 as a result of the Spanish

American War; and from 1901 legislative power in the islands had been exercised through a Philippine

Commission effectively dominated by Americans. One of the most significant sections of the Jones Act

replaced the Commission with an elective Senate and, with minimum property qualifications, extended

the franchise to all literate Filipino males. The law also incorporated a bill of rights. C. Japanese

Occupation (1) The Philippine Executive Commission- a civil government composed of Filipinos was

organized by the military forced of occupation. The commission exercised both the executive and

legislative powers. The laws enacted were, however, subject to the approval of the Commander- in-chief

of the Japanese Forces. (2) The Japanese-sponsored Republic of the Philippines was inaugurated with

Jose Laurel as the President. The same as the Philippine Executive Commission. The ultimate source of

its authority was the Japanese military authority and government. D. The 1935 Constitution The original

1935 Constitution provided for unicameral National Assembly and the President was elected to a six-

year term without re-election. It was amended in 1940 to have a bicameral Congress composed of a

Senate and House of Representatives, as well the creation of an independent electoral commission. The

Constitution now granted the President a four-year term with a maximum of two consecutive terms in

office. A Constitutional Convention was held in 1971 to rewrite the 1935 Constitution. The convention

was stained with manifest bribery and corruption. Possibly the most controversial issue was removing

the presidential term limit so that Ferdinand E. Marcos could seek election for a third term, which many

felt was the true reason for which the convention was called. In any case, the 1935 Constitution was

suspended in 1972 with Marcos' proclamation of martial law, the rampant corruption of the

constitutional process providing him with one of his major premises for doing so. In case of Mabanag vs

Vito, the Court held; It is a doctrine too well established to need citation of authorities that political

questions are not within the province of the judiciary, except to the extent that power to deal with such

questions has been conferred upon the courts by express constitutional or statutory provision. This

doctrine is predicated on the principle of the separation of powers, a principle also too well known to

require elucidation or citation of authorities. If a political question conclusively binds the judges out of

respect to the political departments, a duly certified law or resolution also binds the judges under the

"enrolled bill rule" born of that respect. If ratification of an amendment is a political question, a proposal

which leads to ratification has to be a political question. The two steps complement each other in a

scheme intended to achieve a single objective. It is to be noted that the amendatory process as provided



in section I of Article XV of the Philippine Constitution "consists of (only) two distinct parts: proposal and

ratification." There is no logic in attaching political character to one and withholding that character from

the other. Proposal to amend the Constitution is a highly political function performed by the Congress in

its sovereign legislative capacity and committed to its charge by the Constitution itself. The exercise of

this power is even in dependent of any intervention by the Chief Executive. If on grounds of expediency

scrupulous attention of the judiciary be needed to safeguard public interest, there is less reason for

judicial inquiry into the validity of a proposal then into that of a ratification. E. The 1973 Constitution

The 1973 Constitution, composed of a preamble and 17 articles, provides for the shift from presidential

to parliamentary system of government. The Constitution vests the legislative power in the National

Assembly. A Prime Prepared by: Madelyn Taytayon, Edcel Quiben, Jilliane Oria and Prince Lising

Minister is elected from among the members of the National Assembly and serves as the head of

government and commander-in-chief of the Philippine Armed Forces. A President is elected from among

the members of the National Assembly and serves as the symbolic head of state with a six-year term.

The judicial power is vested in the Supreme Court, composed of a Chief Justice and 14 Justices. The

National Assembly exercises the power to define, prescribe and apportion the jurisdiction of the lower

courts. All justices of the Supreme Court and judges of the lower courts are appointed by the Prime

Minister. This Constitution retains the independence of the Commission on Elections and establishes

two independent Constitution al bodies [Civil Service Commission and the Commission on Audit] as well

as the National Economic Development Authority [NEDA]. On 24 August 1970, Congress enacted RA No.

6132, otherwise known as the Constitution al Convention Act, for the purpose of convening a

Constitution al Convention. The 320 delegates met from June 1971 until 30 November 1972, when they

approved the draft of the new Charter. While in the process of drafting a new Constitution , President

Ferdinand Marcos declared Martial Law on 21 September 1972. The draft Constitution was submitted tothe Citizen's Assemblies from January 10 to 17, 1973 for ratification. On 17 January 1973 , President

Marcos issued Proclamation No. 1102, announcing the ratification of the Constitution of the Republic of

the Philippines. The above constitution was amended in 1976, 1980 and in 1981. There were minor

amendments done in 1984. In case of Sanidad vs COMELEC; The Constitutional Convention intended to

leave to the

President the determination of the time when he shall

initially convene the interim National Assembly, consistent

with the prevailing conditions of peace and order in the

country. When the Delegates to the Constitutional

Convention voted on the Transitory Provisions, they were

aware of the fact that under the same, the incumbent

President was given the discretion as to when he could



convene the interim National Assembly. In sensu striciore,

when the legislative arm of the state undertakes the

proposals of amendment to a Constitution, that body is not

in the usual function of lawmaking. It is not legislating when

engaged in the amending process. Rather, it is exercising a

peculiar power bestowed upon it by the fundamental charter

itself. In the Philippines, that power is provided for in Article

XVI of the 1973 Constitution (for the regular National

Assembly) or in Section 15 of the Transitory Provisions (for

the interim National Assembly). While ordinarily it is the

business of the legislating body to legislate for the nation by

virtue of constitutional conferment, amending of the

Constitution is not legislative in character. In political

science a distinction is made between constitutional content

of an organic character and that of a legislative character.

The distinction, however, is one of policy, not of law. Such

being the case, approval of the President of any proposed

amendment is a misnomer. The prerogative of the President

to approve or disapprove applies only to the ordinary cases

of legislation. The President has nothing to do with

proposition or adoption of amendments to the Constitution.

F. The 1986 Provisional Constitution The 1986 Provisional Constitution, popularly known as the Freedom

Constitution, promulgated by President Corazon C. Aquino on March 25, 1986, was a provisional

constitution after a successful People Power Revolution. Under the Freedom Constitution, executive and

legislative powers are exercised by the President, and shall continue to exercise legislative powers until

a legislature is elected and convened under a new Constitution. Furthermore, the President is mandated

to convene a Constitutional Commission tasked to draft a new charter. (1) Snap Election In the

Philippines, the term "snap election" usually refers to the 1986 presidential election, where President



Ferdinand Marcos called elections earlier than scheduled, in response to growing social unrest. Marcos

was declared official winner of the election but was eventually ousted when it was alleged that he

cheated in the elections. In the current constitution, a snap election will be held for the positions of

president and vice president on the condition that both positions are vacant, and outside the 90-day

range of the next scheduled presidential election. (2)The February 1986 Revolution (3)Proclamation

No.1 , Feb. 25, 1986 Pres. Aquino declared that she and her vice- president were taking power in the

name and by the will of the Filipino People on the basis of the clear sovereign will of the people

expressed in the election of Feb. 7, 1986. In her oath, she swore to preserve and defend the

fundamental law (not the Constitution) and execute just laws ( instead of its laws).

(4)Proclamation No. 3, March 25, 1986 That the provisional government established thereunder was

revolutionary in character having been installed by direct action of the people or by people power,

deriving its existence and authority directly from the people themselves and not from the then

operating 1973 Constitution. G. The 1987 Philippine Constitution (1) The Constitutional Commission of

1986 The 1987 Constitution was drafted by a Constitutional Commission created under Article V of

Proclamation No. 3 issued on March 25, 1986 which promulgated the Freedom Constitution through a

direct exercise of the power of the Filipino people. (2) Proclamation No. 58 (Feb. 11, 1987) (3) When

Considered ratified? Article 18 Section 27 (1987 Constitution) This Constitution shall take effect

immediately upon its

ratification by a majority of the votes cast in a plebiscite

held for the purpose and shall supersede all previous

Constitutions.

The foregoing proposed Constitution of the Republic of

the Philippines was approved by the Constitutional

Commission of 1986 on October 12, 1986 and

accordingly signed on October 15, 1986 at the Plenary

Hall, National Government Center, Quezon City, by the

Commissioners whose signatures are hereunder

affixed/

IV. JUDICIAL REVIEW A.Theory and Justification of Judicial Review In case of Angara vs Electoral

Commission, the Court held that; In case of conflict, the judicial department is the only constitutional

organ which can be called upon to determine the proper allocation of powers between the several

departments and among the integral or constituent thereof. In case of Francisco vs House of

Representatives, the court ruled that; The judiciary in turn, with the Supreme Court as the final

arbiter, effectively checks the other departments in the



exercise of its power to determine the law, and hence to

declare executive and legislative acts void if violative of the

Constitution.

B.Requisites of Judicial Review Prepared by: Madelyn Taytayon, Edcel Quiben, Jilliane Oria and Prince

Lising

There must be an actual case or controversyThe question of constitutionality must be raised by the

proper party.The constitutional question must be raised at the earliest possible opportunity.The

decision of the constitutional question must be necessary to the determination of the case itself. Article

8 Sec.5, paragraph (2) (1)Actual Case or Controversy- involves a conflict of legal rights, an assertion of

opposite legal claims susceptible of judicial resolution. A controversy must be the one that is

appropriate for judicial determination. It must be definite and concrete, touching the legal relations of parties having adverse legal interests.Prematurity In the case of PACU vs. Secretary of Education the

petition contesting the validity of a regulation issued by the Secretary of Education requiring private

schools to secure a permit to operate was dismissed on the ground that all the petitioners have permits

and are actually operating under the same. The petitioners questioned the regulation because of the

possibility that the permit might be denied them in the future. This Court held that there was no

justiciable controversy because the petitioners suffered no wrong by the implementation of the

questioned regulation and therefore, they are not entitled to relief. A mere apprehension that the

Secretary of Education will withdraw the permit does not amount to a justiciable controversy. The

questioned regulation in the PACU case may be questioned by a private school whose permit to operate

has been revoked or one whose application therefor has been denied. NOTE: Courts do not sit toadjudicate mere academic questions. Courts will not pass upon the constitutionality of a law upon the

complaint of one who fails to show that he is injured by its operation. In case of Mariano vs COMELEC

held that the petition is premised on the occurrence of many contingent events, i.e., that Mayor Binay

will run again in this coming mayoralty elections; that he would be re-elected in said elections; and that

he would seek re-election for the same position in the 1998 elections. Considering that these

contingencies may or may not happen, petitioners merely pose a hypothetical issue which has yet to

ripen to an actual case or controversy. Petitioners who are residents of Taguig (except Mariano) are not

also the proper parties to raise this abstract issue. Worse, they hoist this futuristic issue in a petition for

declaratory relief over which this Court has no jurisdiction. The decided case of Cutaran vs DENR the

court defined the word justiciable controversy Court cannot rule on the basis of petitioners'speculation that the DENR will approve the application of the heirs of Carantes. There must be an actual

governmental act which directly causes or will imminently cause injury to the alleged right of the

petitioner to possess the land before the jurisdiction of this Court may be invoked. There is no showing

that the petitioners were being evicted from the land by the heirs of Carantes under orders from the

DENR; A justiciable controversy has been defined as, "a definite and concrete dispute touching on the

legal relations of parties having adverse legal interest which may be resolved by a court of law through



the application of a law. Courts have no judicial power to review cases involving political questions and

as a rule, will desist from taking cognizance of speculative or hypothetical cases, advisory opinions and in

cases that has become moot. Subject to certain well-defined exceptions courts will not touch an issue

involving the validity of a law unless there has been a governmental act accomplished or performed that

has a direct adverse effect on the legal right of the person contesting its validity. In the instant case of

Montecarlos vs COMELEC, there is no actual controversy requiring the exercise of the power of judicial

review. Petitioners' prayer to prevent Congress from enacting into law a proposed bill lowering the

membership age in the SK does not present an actual justiciable controversy. A proposed bill is not

subject to judicial review because it is not a law. A proposed bill creates no right and imposes no duty

legally enforceable by the Court. A proposed bill, having no legal effect, violates no constitutional right

or duty. The Court has no power to declare a proposed bill constitutional or unconstitutional because

that would be in the nature of rendering an advisory opinion on a proposed act of Congress. The power

of judicial review cannot be exercised in vacuo.22 The second paragraph of Section 1, Article VIII of the

Constitution states "Judicial power includes the duty of the courts of justice to settle actual

controversies involving rights which are legally demandable and enforceable, and to determine whether

or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part

of any branch or instrumentality of the Government." Thus, there can be no justiciable controversy

involving the constitutionality of a proposed bill. The Court can exercise its power of judicial review only

after a law is enacted, not before.Mootness In case of Gonzales vs Narvasa, that, with respect to the

PCCR, this case has become moot and academic. An action is considered moot when it no longer

presents a justiciable controversy because the issues involved have become academic or dead. The PCCR

submitted its recommendations to the President on December 20, 1999 and was dissolved by the

President on the same day.It had likewise spent the funds allotted to it. Thus, the PCCR has ceased to

exist, having lost its raison detre. Subsequent events have overtaken the petition and the Court has

nothing left to resolve. The staleness of the issue before us is made more manifest by the impossibility

of granting the relief prayed for by petitioner.Basically, petitioner asks this Court to enjoin the PCCR

from acting as such. Clearly, prohibition is an inappropriate remedy since the body sought to be

enjoined no longer exists.It is well established that prohibition is a preventive remedy and does not lie

to restrain an act that is already fait accompli. At this point, any ruling regarding the PCCR would simply

be in the nature of an advisory opinion, which is definitely beyond the permissible scope of judicial

power. In case of Defunis vs Odegaard; DeFunis did not cast his suit as a class action, and the only

remedy he requested was an injunction commanding his admission to the Law School. He was not only

accorded that remedy, but he now has also been irrevocably admitted to the final term of the final year

of the Law School course. The controversy between the parties has thus clearly ceased to be "definite

and concrete" and no longer "touches the legal relations of parties having adverse legal interests." There

is a line of decisions in this Court standing for the proposition that the "voluntary cessation of allegedly

illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not

make the case moot."These decisions and the doctrine they reflect would be quite relevant if the

question of mootness here had arisen by reason of a unilateral change in the Prepared by: Madelyn


Documents

Reviewer in Political Law A