BAR MATERIALS IN POLITICAL LAW 2015

1. What is writ of Pamana/Kasaysayan?

Ans. A writ of pamana (heritage) or (and) kasaysayan (history) do not exists

yet in the Philippines. It was an idea brought about by the petitioner Knights
of Rizal against DMCI Homes, Inc. in its petition with the SC urging the SC to
promulgate rules for the protection of culturally-important structures, just like
the Writ of Kalikasan (nature). The petition seeks the demolition of the Torre
de Manila that obstructs the view of Rizal monument. Simply stated, pamana
and/or kasaysayan writ would be a writ available to prevent or enjoin any
construction of buildings or any structures that would obstruct or impede the
view, or may diminish the historical value of monuments protected by law as
classified as such by the National Historical Commission.

2. Explain briefly what is the Doctrine of “constitutional supremacy”?

Ans. Under the doctrine of constitutional supremacy, if a law or contract

violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force
and effect. Thus, since the Constitution is the fundamental, paramount and
supreme law of the nation, it is deemed written in every statute and contract
[Manila Prince Hotel v. GSIS, 335 Phil. 101 (1997].

3. Who are nuisance candidates?

Ans. Section 69 of the Omnibus Election Code as amended by Section 5

of Republic Act No. 6646 (The Electoral Reforms Law of 1987) defines a
“nuisance candidate” as:
 one who files his candidacy to put the election process in mockery or
disrepute;
 one who causes confusion among the voters by the similarity of the
names of the registered candidates;
 one who, based on demonstrable circumstances or acts, has no bona fide
intention to run for office for which the certificate of candidacy has been filed
and thus prevent a faithful determination of the true will of the electorate..

4. What is “Intergenerational Responsibility” to preserve our natural

resources?

Ans. Essentially, the principle means that we hold the natural resource
treasures of the earth in trust for the benefit, enjoyment and use of the
generations of humankind yet to come. It is therefore a trust endowed upon us
as trustee and depository to use and enjoy. While our generation has the right
to use the earth’s resources, as a trustee and depository, we are also duty
bound not to misuse or exhaust it, so that those of our species to come in
much later years will still have something to use. This, in simple terms is the
meaning of sustainable development, using natural resources without
exhausting them. “We find no difficulty in ruling that they can, for themselves, for
others of their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on the concept
of intergenerational responsibility insofar as the right to a balanced and healthful ecology is
concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of
nature." Nature means the created world in its entirety. Such rhythm and harmony
indispensably include, inter alia, the judicious disposition, utilization, management,
renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife,
off-shore areas and other natural resources to the end that their exploration, development
and utilization be equitably accessible to the present as well as future generations. 10
Needless to say, every generation has a responsibility to the next to preserve that rhythm
and harmony for the full enjoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound environment constitutes, at the
same time, the performance of their obligation to ensure the protection of that right for the
generations to come.” (Oposa v. Factoran, G.R. No. 101083 July 30, 1993).

5. What is Incorporation Theory?

Ans. Doctrine of incorporation. Intl. Law. The doctrine that states that the rules
of Intl. Law form part of the law of the land and no legislative action is
required to make them applicable to a country. The Phils. follows this doctrine,
because Sec. 2. Art. II of the Const. states that the Phils. adopts the generally
accepted principles of international law as part of the law of the land.

6. Concept, Doctrine of Separation of church and state.

Ans. The doctrine enshrined in Sec. 6, Art. II of the 1987 Phil. Const. which
provides that: “The separation of Church and State shall be inviolable.” The
idea advocated by this principle is to delineate the boundaries between the
two institutions and thus avoid encroachments by one against the other
because of a misunderstanding of the limits of their respective exclusive
jurisdictions. [Austria v. NLRC, GR 124382, 16 August 1999]. The separation
exemplifies confinement of issues deemed religious which are under the
confine of the church and issues that should be under the power, authority and
responsibilities of the state. This type of issue exemplifies the strength to
which the state could use its influence and power particularly on matters that
can be considered political.

7. Concept, Doctrine of State immunity from suit.

Ans. Doctrine of sovereign immunity. 1. [Doctrine] expressly provided in Art.
XVI of the 1987 Consti., viz: “Sec. 3. The State may not be sued without its
consent.” 2. [The doctrine which holds that] a sovereign is exempt from suit,
not because of any formal conception or obsolete theory, but on the logical
and practical ground that there can be no legal right as against the authority
that makes the law on which the right depends. Also called Doctrine of non-
suability.

8. Concept, Doctrine of Separation of powers.

Ans. A basic postulate that forbids one branch of government to exercise
powers belonging to another co-equal branch; or for one branch to interfere
with the other’s performance of its constitutionally-assigned functions.
[Velasco, Jr., concurring op., Neri v. Senate Committee on Accountability of
Public Officers and Investigations, GR 180643, Mar. 25, 2007].
9. Concept, Doctrine of Non-delegation of powers.
Ans. 1. The Congress cannot further delegate the power delegated to it by the
people. This is in keeping with the principle of non-delegation of powers
which is applicable to all the three branches of the government. The rule
states that what has been delegated cannot further be delegated – potestas
delegata non delegari potest. A delegated power must be discharged directly
by the delegate and not through the delegate’s agent. It is basically an ethical
principle which requires direct performance by the delegate of an entrusted
power. Further delegation therefore constitutes violation of the trust reposed
by the delegator on the delegate. The people, through the Constitution,
delegated lawmaking powers to the Congress, and as such, it cannot as a rule
delegate further the same to another. “[The principle that] delegated power
constitutes not only a right but a duty to be performed by the delegate through
the instrumentality of his own judgment and not through the intervening
mind of another. 2. The recognized exceptions to this principle are as follows:
(1) Delegation of tariff powers to the Pres. under Sec. 28 (2) of Art. VI of the
Consti.; (2) Delegation of emergency powers to the Pres. under Sec. 23(2) of
Art. VI of the Consti.; (3) Delegation to the people at large; (4) Delegation to
local governments; and (5) Delegation to administrative bodies.” [Abakada
Guro Party List v. Ermita, GR 168056, Sept. 1, 2005, 469 SCRA 1, 115-116].

10. Briefly explain the ff. powers of the President:

A. Appointing Power –Section 16, Article VII of the 1987 Philippine

Constitution provides that

“[T]he President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the armed forces from the
rank of colonel or naval captain, and other officers whose appointments are
vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in rank in the President
alone, in the courts, or in the heads of departments, agencies, commissions, or
boards.”

Special Limitations on the Appointing Powers of the President

Section 15, Article VII of the 1987 Philippine Constitution provides that two
months immediately before the next presidential elections and up to the end
of his term, a President or acting President shall not make appointments
except temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public safety.

The Power to Remove

As a general rule, the power of removal may be implied from the power of
appointment. However, the President cannot remove officials appointed by
him where the Constitution prescribes certain methods for separation of such
officers from public service, e.g., Chairmen and Commissioners of
Constitutional Commissions who can be removed only by impeachment, or
judges who are subject to the disciplinary authority of the Supreme Court. In
the cases where the power of removal is lodged in the President, the same may
be exercised only for cause as may be provided by law, and in accordance with
the prescribed administrative procedure. (from nachura reviewer)

B. Pardoning Power – Section 19. Except in cases of impeachment, or as

otherwise provided in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after conviction
by final judgment.

He shall also have the power to grant amnesty with the concurrence of a
majority of all the Members of the Congress.

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Section 5. No pardon, amnesty, parole, or suspension of sentence for violation
of election laws, rules, and regulations shall be granted by the President
without the favorable recommendation of the Commission.

It is apparent from the foregoing constitutional provisions that the only

instances in which the President may not extend pardon remain to be in:

(1)impeachment cases;
(2) cases that have not yet resulted in a final conviction; and
(3) cases involving violations of election laws, rules and regulations in which
there was no favorable recommendation coming from the COMELEC.
Therefore, it can be argued that any act of Congress by way of statute cannot
operate to delimit the pardoning power of the President.

In Cristobal v. Labrador and Pelobello v. Palatino, which were decided under

the 1935 Constitution, wherein the provision granting pardoning power to the
President shared similar phraseology with what is found in the present 1987
Constitution, the Court then unequivocally declared that “subject to the
limitations imposed by the Constitution, the pardoning power cannot be
restricted or controlled by legislative action.” The Court reiterated this
pronouncement in Monsanto v. Factoran, Jr. thereby establishing that, under
the present Constitution, “a pardon, being a presidential prerogative, should
not be circumscribed by legislative action.” Thus, it is unmistakably the long-
standing position of this Court that the exercise of the pardoning power is
discretionary in the President and may not be interfered with by Congress or
the Court, except only when it exceeds the limits provided for by the
Constitution.
This doctrine of non-diminution or non-impairment of the President’s power
of pardon by acts of Congress, specifically through legislation, was strongly
adhered to by an overwhelming majority of the framers of the 1987
Constitution when they flatly rejected a proposal to carve out an exception
from the pardoning power of the President in the form of “offenses involving
graft and corruption” that would be enumerated and defined by Congress
through the enactment of a law (Vidal et al. v. COMELEC et al., G.R. No. 206666,
January 21, 2015[the ESTRADA PARDON]). PARDONMAY BE ABSOLUTE OR
CONDITIONAL.

C. Appropriating Power - The President wields considerable control

over public spending through the exercise of budget impoundment. The
Administrative Code has given the President specific authority, when in his
judgment the public interest requires and upon due notice to the head of office
concerned, to suspend or otherwise stop further expenditure of funds allotted
for any agency (Section 38, Chapter 5 Book VI of E.O. No. 292). Under Article
VI Section 25 (1) of the 1987 Constitution provides that "Congress may not
increase the appropriations recommended by the President for the operation
of the Government as specified in the budget. Hence, as the "power of the
sword" belongs to the President, "the power of the purse" resides in Congress.
The president likewise can exercise line-veto or item- veto.