POLITICAL LAW REVIEWER

2013 Bar Examinations PART 2

Reynaldo G. Paris

General Considerations
National Territory
The CONSTITUTION

Archipelagic Doctrine

It is defined as the waters around, between and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. It emphasizes the unity of the land and waters by defining an archipelago as group of islands surrounded by waters or a body of waters studded with islands.

State Immunity

The general rule is that a state may not be sued without its consent. While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself, although it has not been formally impleaded.

It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of plaintiff. Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of govt. officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. The doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.

The cloak of immunity is removed from the moment the public official is sued in his individual capacity such as where he acts without authority or in excess of the powers vested in him. A public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction. In this case, the officers are liable for damages.

The doctrine is also available to foreign States insofar as they are sought to be sued in the courts of the local State. The added basis in this case i s the principle of the sovereign equality of States, under w/c one State cannot assert jurisdiction over another in violation of the maxim par in parem non habet imperium. To do so would "unduly vex the peace of nations." (Cruz.) The consent to be sued, in order to be effective, must come from the State, acting through a duly enacted statute. Waiver of state immunity can only be made by an act of legislative body.

Principles and Policies

Principles
Binding rules which must be observed in the conduct of the government (Tanada vs. Angara, see Vicente Sinco, Phil. Political Law 116 (11th ed. 1962)

The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.

Manifestations of a Republican State

A. Ours is a government of laws and not of men. Its essence is that all persons, from the highest official of the land down to the lowest level of the citizenry, must respect the laws, and nobody, how great and painful might he have suffered in the hands of his persecutors or oppressors, must resort to the rule of law rather than taking the law into his hands. It is a weapon of reason and civility. The SC castigated a Mayor for expelling alleged prostitutes from Manila and dumped them against their will in Davao. The Court said that such act constitutes a wanton violation of the principle that ours is a government of laws and not of men. (Villavicencio vs. Lukban, 39 Phil. 778, March 25, 1919)

B. Rule of the majority (Plurality in elections) C. Accountability of public officials D. Bill of rights

Doctrine of Incorporation

The courts have applied the rules of international law in a number of cases even if such rules had not previously been subject of statutory enactments, because these generally accepted principles of international law are automatically part of our own laws.
The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not subject to, national legislative enactments. Accordingly, the principle of lex posterior derogat priori takes effect. In states where the constitution is the highest law of the land, such as the Philippines, both statutes and treaties

may be invalidated if they are in conflict with the constitution. (Secretary of Justice v. Lantion, G.R. No. 139465, January 18, 2000) The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service.

The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy. The separation of Church and State shall be inviolable.

The separation of Church and State shall be inviolable and the same is reinforced by: 1. 2. 3. 4. Freedom of religion clause; Non-establishment of religion clause; No religious test clause [Sec. 5, Art. III]; No sectoral representative from religious sector [Sec. 5 (2), Art. VI ]; 5. Prohibition against appropriation for sectarian benefits. [Sec. 29(2), Art. VI]; and 6. Religious denominations and sects cannot be registered as political parties [Sec. 2 (5) Art. IX-C].

The exceptions are: 1. Churches, personages, etc., actually, directly and exclusively used for religious, charitable and educational purposes shall be exempt from taxation [Sec. 28 (3), Art. VI]; 2. Prohibition against appropriation for sectarian purposes, except when, priest etc., is assigned to the armed forces, or to any penal institution or government orphanage or leprosarium [Sec. 29(2), Art. VI]; 3. Optional religious instruction for public elementary and high school students [Sec. 3 (3), Art. XIV];and

4. Filipino ownership requirement for educational institutions, except those established by religious groups and mission boards [Sec. 4 (2) , Art. XIV].

How Civilian Authority is ensured

1. the installation of the President, the highest civilian authority as the commander -in-chief of the military [Sec. 18, Art. VII]; 2. the requirement that the members of the AFP swear to uphold and defend the Constitution , which is the fundamental law of the civil government; 3. the professionalization of the service and the strengthening of the patriotism and nationalism, and respect for human rights, of the military; 4. insulation of the AFP from partisan politics;

5. prohibition against appointment to a civil position; 6. compulsory retirement of officers, so as to avoid propagation of power; 7. a 3-year limitation on the tour of duty of the Chief of Staff, which although extendible in case of emergency by the President, depends on Congressional declaration of emergency; 8. requirement of professional recruitment, so as to avoid any regional clique from forming within the AFP [Sec. 5, Art. XVI]; and 9. the establishment of a police force that is not only civilian in character but also under the local executives [Sec. 6, Art. XVI].

State Policies

The Sate shall pursue an independent foreign policy, in its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.

The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.
The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies

that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.

Policy of freedom from nuclear weapons

The Constitution prescribes a policy of freedom from nuclear weapons. The policy includes the prohibition not only of the possession, control, and manufacture of nuclear weapons but also nuclear arm tests. Exception to this policy may be made by the political department; but it must be justified by the demands of the national interest. But the policy does not prohibit the peaceful uses of nuclear energy.

The State shall promote social justice in all phases of national development. It simply means the equalization of economic, political and social opportunities with special emphasis on the duty of the State to tilt the balance of social forces by favoring the disadvantaged in life. The State values the dignity of every human person and guarantees full respect for human rights.

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

The State recognizes the vital role of the youth in nationbuilding and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. R.A. 7610, which penalizes child prostitution and other sexual abuses, was enacted in consonance with the policy of the State to provide special protection to children from all forms of abuse; thus, the Court grants the victim full vindication and protection granted under the law. (People v. Larin, G.R. No. 128777, October 7, 1998)

The State recognizes the role of women in nationbuilding, and shall ensure the fundamental equality before the law of women and men. The State shall protect and promote the right to health of the people and instill health consciousness among them. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. This provision recognizes an enforceable right.

The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.

The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments. The State shall promote comprehensive development and agrarian reform. rural

The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.
The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.

The State shall promote comprehensive development and agrarian reform.

rural

The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

The requirement that a school must first obtain governmental authorization before operating is based on the State policy that educational programs and/or operations shall be of good quality and, therefore, shall at least satisfy minimum standards with respect to curricula, teaching staff, physical plant and facilities and administrative and management viability. (Philippine Merchant Marine School, Inc. v. CA, 244 SCRA 770)

The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.
The State shall promote comprehensive rural development and agrarian reform. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

The State shall encourage non-governmental, communitybased, or sectoral organizations that promote the welfare of the nation.
The State recognizes the vital role of communication and information in nation building. The State shall ensure the autonomy of local governments. Decentralization of Administration delegation of administrative powers to local government unit in order to broaden the base of governmental powers.

Decentralization of Powers abdication of political power in the favor of local governments units declared to be autonomous. (Limbonas v. Mangelin, 170 SCRA 786) The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.

The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.

Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

Separation of Powers

Legislative power is given to the Legislature whose members hold office for a fixed term; executive power is given to a separate Executive who holds office for a fixed term; and judicial power is held by an independent Judiciary.

The principle of separation of powers is based on the conception that if the totality of governmental powers were concentrated in one person or group of persons, the possibility of establishing a despotic and tyrannical regime capable of suppressing and suffocating the rights of the people becomes a tempting reality.

Purpose: to prevent concentration of authority in one person or group of persons that might lead to irreparable error or abuse in exercise to the detriment of republican institutions. (Pangasinan Transportation Co. v. Public Service Commission, G.R. No. 47065. June 26, 1940)

The SC nullified the veto exercised by the President adjusting the pension of Justices of the SC and the CA asserting in very strong terms that such an act palpably violates the doctrine of separation of powers.

The challenged veto has far-reaching implications which the Court cannot countenance as they undermine the principle of separation of powers. The Executive has no authority to set aside and overrule a decision of the SC. (Bengzon vs. Drilon, 208 SCRA 133, April 15, 1992)

Checks and Balances

This allows one department to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments, e.g. veto power of the President as check on improvident legislation.

Delegation of Powers

General Rule: Potestas delegata non potest delegare -premised on the ethical 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. Exceptions: 1. Tariff powers of the President 2. Emergency powers of President 3. Delegation to the people; 4. Delegation to Local Government units; and 5. Delegation to administrative bodies

Forms of Government

Presidential

One in which the state, the sovereign, makes the executive independent of the legislature, both in tenure and prerogative, and furnishes him with sufficient power to prevent the legislature from trenching upon the sphere marked out by the State as executive independence and prerogative. The principal identifying feature of a presidential form of government is embodied in the separation of powers doctrine. Each department of government exercises powers granted t o it by the Constitution and may not

control, interfere with or encroach upon the acts done within the constitutional competence of the others. However, the Constitution also gives each department certain powers by which it may definitely restrain the others from improvident action, thereby maintaining a system of checks and balances among them, thus, preserving the will of the sovereign expressed in the Constitution.

Parliamentary

One in which the state confers upon the legislature the complete control of the administration of laws. Under this system, the Cabinet or Ministry is immediately and legally responsible to the legislature or one branch thereof, usually the more popular chamber, and mediately or politically responsible to the electorate, while the titular or nominal executive the King or Chief of Stateoccupies a position of irresponsibility.
The essential characteristic of a parliamentary form of government is the fusion of the legislative and executive branches in parliament; the prime minister, who is the

head of government, and the members of the cabinet, who are chosen from among the members of parliament and as such are accountable to the latter. Another feature is that the prime minister may be removed from office by a vote of loss of confidence by the parliament. There may be a head of state who may or may not be elected and who usually merely exercises ceremonial functions.

Unitary or Centralized

One in which the powers of government are vested in one supreme organ from which all local governing authorities derive their existence and powers. The Philippine government is an example of a unitary form of government.

The essence of a unitary form of government is the fact that a single organization has been created by the sovereign people (the people) through their constitution, to which is left the task of providing for the territorial distribution of governmental powers with which it is invested. (Aruego and L aguio)

Federal

One in which the governmental powers are, by common sovereign, distributed between a central government and the local government, each being supreme within its own sphere.

General Rule: Potestas delegata non potest delegare -premised on the ethical 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.

Exceptions: 1. Tariff powers of the President 2. Emergency powers of President 3. Delegation to the people; 4. Delegation to Local Government units; and 5. Delegation to administrative bodies

Legislative Department

Who May Exercise Legislative Power?

The power to propose, enact, amend and repeal laws.

a) Congress - The power of the Congress to legislate is complete, full and plenary embracing all subjects and extends to all matters of general concern except as limited by the Constitution, either explicitly or impliedly, or, substantively or procedurally. b) Regional/Local legislative power The power of a regional or local legislative body to make rules in the form of ordinances and resolutions of regional or local application that have the force and effect of law.
c) Peoples initiative on statutes

Initiative and Referendum

Initiative

Power of the people to propose amendments to the Constitution or to propose and enact legislation through an election called for the purpose. Classes of initiative: 1. Initiative on the Constitution petition proposing amendments to the Constitution; 2. Initiative on Statutes petition proposing to enact a national legislation; 3. Initiative on Local Legislation petition proposing to enact a regional, provincial, city, municipality or barangay law, resolution or ordinance.

Referendum

Power of the electorate to approve or reject legislation through an election called for that purpose.

Classes of Referendum: 1. Referendum on Statutes petition to approve or reject an act or law, or part thereof, passed by Congress; 2. Referendum on Local Laws legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the sanggunian. (Sec. 126, RA 7160 or the LGC of 1991)

Houses of Congress

a. Senate - Composed of 24 senators, elected at large by the qualified voters of the Philippines. b. House of Representatives - Composed of not more than 250 members consisting of: i. District Representatives elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area; ii. Party-list Representatives shall constitute 20% of the total number of representatives, elected through a party-list system of registered national, regional and sectoral parties or organizations. The Party-list organization must represent the marginalized and underprivileged and the nominees themselves must comply with this qualitative requirement (Ang Bagong Bayani, et al. vs. Comelec G.R. No. 147589, June 26, 2001)

District Representatives and Questions of Apportionment

Representative districts are apportioned among provinces, cities and municipalities in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio. The underlying principle behind
this rule for apportionment is the concept of equality of representation which is a basic principle of republicanism. One mans vote should carry as much weight as the vote of every other man.

Each province, irrespective of population, is entitled to one representation; each city with a population of at least 250,000 is entitled to at least one representative. Each district must be contiguous, compact and adjacent. Gerrymandering
(Formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party (Bernas, Reviewer in Philippine Constitution, P. 186) is not allowed.

Reapportionment within 3 years following return of every census. The Court held that the intent of the Constitutional Commission and the implementing statute, RA 7941, was not to allow all associations to participate indiscriminately in the party -list system but to limit participation to parties or organizations representing the marginalized and underprivileged.

Legislative Privileges, Inhibitions and Disqualifications

A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session.

Congress must be in session, whether regular or special. It does not matter where the member of Congress may be found (attending the session, socializing in a private party, or sleeping at home ) ; so long as Congress is in session, freedom from arrest holds; The crime for which the member is to be arrested is punishable by 6 years of imprisonment or less. "Punishable" refers to the maximum possible penalty which a penal statute

attaches to the offense. It follows too that if the crime is punishable by 6 years and 1 day of prision mayor or more, the member can be arrested, even if he is session in the halls of Congress. Speech or debate includes utterances made in the performance of official functions, such as speeches delivered, statements made, votes cast, as well as bills i ntroduced and other acts done in the performance of official duties. (Jimenez vs. Cabangbang, 17 SCRA 876) To come under the privilege, it is not essential that the Congress be in session when the utterance is made. What is essential is that the utterance must constitute legislative action, that is, it must be part of the deliberative and communicative process by which legislators

participate in committee or congressional proceedings in the consideration of proposed legislation or of other matters which the Constitution has placed within the jurisdiction of the Congress. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.

This privilege protects the member concerned from any libel suit that may be filed against him for a speech made "in" the halls of Congress or in any of its committees. Speech is not confined to traditional speech but even to the casting of votes, the making of reports, a debate or discussion, even communicative actions, and any other form of expression. The speech, however, must be made "in" Congress in the discharge of legislative duty. Thus, All Members of the Senate and the House of Representatives shall, upon assumption of office, make a full disclosure of their financial and business interests.

They shall notify the House concerned of a potential conflict of interest that may arise from the filing of a proposed legislation of which they are authors. No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his

term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.
No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi -judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege corporation, or its subsidiary, during his term of office. He shall not intervene

in any matter before any officer of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.
An incompatible office is a post which a member cannot accept unless he waives or forfeits his seat in Congress. A sensu contrario, if he waives or forfeits his seat, he may accept the other post, since the incompatibility arises only because of his simultaneous membership in both. A forbidden office is one to which a member cannot be appointed even if he is willing to give up his seat in Congress. The effect of his resignation from the Congress

is the loss of his seat therein but his disqualification for the forbidden office nevertheless remains. The prohibition lies in the "fiduciary nature of the relationship involved. Such a member cannot resign in anticipation of the passage of the law creating such office or increasing its emolument as a way of circumventing the prohibition. However, the prohibition is not forever (as in the Jones Law) ; it is for the term for which he was elected.

What the Constitution prohibits in the case of members of Congress who are also members of the bar is their personal appearance before any of these bodies. This is not a prohibition against, the practice of law in any court. Thus, a member may still sign and file his pleadings, give legal advice, continue as partner, and have a partner or associate appear for him in court.

Quorum and Voting Majorities

A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide. The quorum required to conduct business is a majority (1/2 + 1) of all the members. But to pass a law, only the votes of the majority of those present in the sessio n, there being a quorum, are required. This is known as the "shifting majority". To illustrate: 13 members of the Senate

are sufficient to constitute a quorum. If only 13 members are present, a vote by 7 in favor of a bill is sufficient to pass it. But as the number of those present increases, the number of votes needed to pass a bill would correspondingly increase, i.e., shift. When a quorum cannot be had, a smaller number may adjourn from day to day, and compel the attendance of the absent (recalcitrant) members by the means of arrest or such other measures and penalties as the House may provide in its rules. The basis in determining the existence of a quorum in the Senate shall be the total number of Senators who are in the country and within the coercive jurisdiction of the Senate. (Avelino v. Cuenco, 83 Phil. 17)

Discipline of Members

Each house may punish its members for disorderly behavior (The determination of the acts which constitute disorderly behavior is within the full discretionary authority of the House concerned, and the Court will not review such determination, the same being a political question. (Osmena vs. Pendatun, 109 Phil. 863), and, with the concurrence of 2/3 of all its members, suspend (for not more than 60 days) or expel a member. A penalty of suspension, when imposed, shall not exceed sixty days.

Electoral Tribunals and the Commission on Appointments

Each house may punish its members for disorderly behavior (The determination of the acts which constitute disorderly behavior is within the full discretionary authority of the House concerned, and the Court will not review such determination, the same being a political question. (Osmena vs. Pendatun, 109 Phil. 863), and, with the concurrence of 2/3 of all its members, suspend (for not more than 60 days) or expel a member. A penalty of suspension, when imposed, shall not exceed sixty days.