Consti Law 1, midterms RAVS MVR notes Quizzes:
1. June 24 a. The Constitution is what the Supreme Court says it is b. To support a conclusion, the best best basis is to cite SC rulings. Several SC ruling constitute a doctrine. In the absence of doctrine or SC rulings, CA rulings can be used. Absent these, the law itself itself may be cited. c. Discussion on current events—question of whether we are “de facto” or “de jure” with regard to CJ Corona’s appointment within proscribed period. i. It is de facto because that is what the SC says. ii. Note: Atty. Florenz Regalado, Regalado, bar topnotcher, topnotcher, magna cum laude 1954. Highest and unbeaten bar exam exam record 96.7%. 1967 SC ruling 9-0 against him. him. He made a motion for for reconsideration—0-9 in his favor. d. A political question is a matter that has to be brought to the people for voting (e.g. FM burial question at LMB). LMB). It involves a question of policy as distinguished from a justiciable question. e. Constitutions of the Philippines: i. Biak na Bato ii. Malolos iii. Commonwealth 1935 iv. Japanese v. 1973 vi. Freedom 1986 vii. 1987 f. Is PNoy immune from suit? suit? Yes for all matters matters in relation to his official acts. When his mother was president and decided to mothball the BNPP, she could not be sued for such decision. To invoke presidential immunity, it must be job related. Our Constitution Constitution is patterned after the American Constitution and their presidents get sued all the time. g. How can a president stop being president? i. DRIED 1. Death 2. Resignation 3. Impeachment (must also be convicted, not enough to be impeached) a. Art. VII, Removal Removal from office. office. Erap could have been dealt with in this way. 4. Expiration of term 5. Disability of a permanent kinds
h. Immunity of State is lost if it… i. Consents ii. Contract is entered iii. Counter-Claim iv. Confiscates 1. e.g. road-widening project. a. Govt should negotiate purchase with owner, or b. Ask for donation, or c. File eminent domain or expropriation case 2. In any case, there should be just compensation. 3. Amigable v. Cuenca. a. Pg 37 b. Question raised was the right of plaintiff to sue the gov’t for recovery of t he value of her property, which had been converted into public streets without payment to her of just compensation. Although it was was shown she she did not file her claim with the Auditor General as normally required (after which it’ll go to SC on certiorari, effectively suing the State with its consent), the SC decided in her favor reiterating the pronouncement in the earlier case, Ministerio v. City of Cebu. 4. Ministerio v. City of Cebu a. Pg 38 b. Constitutional mandate that the owner be compensated for property taken for public use must be respected. Doctrine of governmental; governmental; immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen…If government had observed procedural regularity, may it then have the right to enter in and upon the land and appropriate the same for public use. 2. July 9, 2011 a. May a tax bill originate from the Senate? No. The Constitution (Sec 24 Art VI) provides that tax bills can only originate from the House of Representatives. This is based on the presumption that being representatives mean they are closer to the “ground”. However, the House of Senate may propose or submit amendments to the same. In the case of Tolentino v. DOF Secretary Secretary regarding the EVAT Law, the Senate by substitution filed a Bill which eventually became the law.
Note: Tolentino vs. Secretary of Finance G.R. No. 115455, August 25, 1994 Facts: The value-added tax (VAT) is levied on the sale, barter or exchange of goods and properties as well as on the sale or exchange of services. RA 7716 seeks to widen the tax base of the existing VAT system and enhance its administration by amending the National Internal Revenue Code. There are various suits challenging the constitutionality of RA 7716 on various grounds.
One contention is that RA 7716 did not originate exclusively in the House of Representatives as required by Art. VI, Sec. 24 of the Constitution, because it is in fact the result of the consolidation of 2 distinct bills, H. No. 11197 and S. No. 1630. There is also a contention that S. No. 1630 did not pass 3 readings as required by the Constitution. Issue: Whether or not RA 7716 violates Art. VI, Secs. 24 and 26(2) of the Constitution Held: The argument that RA 7716 did not originate exclusively in the House of Representatives as required by Art. VI, Sec. 24 of the Constitution will not bear analysis. To begin with, it is not the law but the revenue bill, which is required by the Constitution to originate exclusively in the House of Representatives. To insist that a revenue statute and not only the bill which initiated the legislative process culminating in the enactment of the law must substantially be the same as the House bill would be to deny the Senate’s power not only to concur with amendments but also to propose amendments. Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff or tax bills, bills authorizing an increase of the public debt, private bills and bills of local application must come from the House of Representatives on the theory that, elected as they are from the districts, the members of the House can be expected to be more sensitive to the local needs and problems. Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, so long as action by the Senate as a body is withheld pending receipt of the House bill.
The next argument of the petitioners was that S. No. 1630 did not pass 3 readings on separate days as required by the Constitution because the second and third readings were done on the same day. But this was because the President had certified S. No. 1630 as urgent. The presidential certification dispensed with the requirement not only of printing but also that of reading the bill on separate days. That upon the certification of a bill by the President the requirement of 3 readings on
separate days and of printing and distribution can be dispensed with is supported by the weight of legislative practice. b. May Congress declare war against China? No. Our constitution unequivocally states we cannot declare war (Sec. 2, Art 2) , only a “state of war” (Sec 23(1), Art VI). The latter emphasizes the recognition of the reality of war but not of declaring war on another country (war of aggression)> “No man is allowed to be the judge of his own cause.”
Amarga v. Abbas, 98 Phil. 739 (1956) Facts: Municipal Judge Samulde conducted a preliminary investigation (PI) of Arangale upon a complaint for robbery filed by complainant Magbanua, alleging that Arangale harvested palay from a portion of her land directly adjoining Arangale’s land. After the PI, Samulde transmitted the records of the case to Provincial Fiscal Salvani with his finding that “there is prima facie evidence of robbery as charged in the complaint”. Fiscal Salvani returned the records to Judge Samulde on the ground that the transmittal of the records was “premature” because Judge Samulde failed to include the warrant of arrest (WA) against the accused. Judge Samulde sent the records back to Fiscal Salvani stating that although he found that a probable cause existed, he did not believe that Arangale should be arrested. Fiscal Salvani filed a mandamus case against Judge Samulde to compel him to issue a WA. RTC dismissed the petition on the ground that the fiscal had not shown that he has a clear, legal right to the performance of the act to be required of the judge and that the latter had an imperative duty to perform it. Nevertheless, Judge Samulde was ordered to issue a WA in accordance with Sec. 5, Rule 112 of the 1985 Rules of Court. ISSUE: Whether it is mandatory for the investigating judge to issue a WA of the accused in view of his finding, after conducting a PI, that there exists prima facie evidence that the accused committed the crime charged. HELD: THE PURPOSE OF A PRELIMINARY INVESTIGATION DOES NOT CONTEMPLATE THE ISSUANCE OF A WA BY THE INVESTIGATING JUDGE OR OFFICER. Under Rule 112 of the 1985 ROC, a PI is conducted on the basis of affidavits to determine whether or not there is sufficient ground to hold the accused for trial. To determine whether a WA should issue, the investigating judge must have examined in writing and under oath the complainant and his witnesses by searching questions and answers; he must be satisfied
that a probable cause exists; and there must be a need to place the accused under immediate custody in order not to frustrate the ends of justice. It is not obligatory, but merely discretionary, upon the investigating judge to issue a WA, for the determination of whether it is necessary to arrest the accused in order not to frustrate the ends of justice, is left to his sound judgment or discretion. The fiscal should, instead, have filed an information immediately so that the RTC may issue a warrant for the arrest of the accused. c. Instances of prohibited measures. Ex-post facto law Bill of attainder d. Who do you side with, Sara or the Sheriff?
3. July 16, 2011 a. Does a Pres enjoy immunity? For official acts, yes. Criminal acts, no. b. May PNoy run for VP in 2016? Maxim: What you are not allowed to do directly you are not allowed to do indirectly. Hence, PNoy running for VP would be a clear case of circumvention of term. c. May a logger as Congressman file a bill to lift the logging ban? Yes, but he must identify his interest. There is no prohibition for him to lobby or campaign for the special interest group of loggers. He can file in favor of his own interest. Or, against- the CARP Law was filed and passed by a Congress made up of landowners who essentially then voted against their own personal interests. d. May a Senator file a tax bill? (see above) e. What other sanctions if any may you propose (per Maceda suggesting Speaker Belmonte consider deducting portions of salaries from top 5 Reps absent—Mikey Arroyo, Joy Bernas, Iggy Arroyo, Manny Pacquiao, Jules Ledesma)?
f.
How long did Marcos’ tyrannical rule last?
Sept. 23, 1972 – Feb 25, 1986. A little under 14 years. g. We know qualifications for high elective offices. We know what candidates should be. What should they not be? They should not be re-electionists or nuisance candidates. 4. July 23, 2011 (see handout) st
a. Everybody wants to grade PNoy after his 1 year. How will you grade Pinoy after a year? b. Who should decide where an accused may be detained in general? As to where he may be examined and treated? And for how long? The court? The Prez? The DOJ? The doctors?
c. Page, 191, do you agree that “removal from office” is self explanatory? 5. July 9, 2011 a. Critique practice of CJ and JBC (started by former CJ Davide re changing/new list of appointees for PGMA) after PNoy turned down st CJ Corona’s 1 list due to perceived Arroyo connections. Should they have done so? i. When may the Prez ask for a new JBC list? b. SC ruled with finality that so-called Truth Commission is unconstitutional for being focused on the Arroyos and not others. Former CJ Davide now says he has lost faith in the SC, which he once headed. Critique the criticism.
TGIF Columns: 1. June 24, What Price Closure a. FM burial honors (July 15 2003 SC decision the Marcoses are kleptocrats b. Quo usque tandem abutere patientia nostra? (Opening lines of Cicero’s famous oration against fellow politician, Catilina. “How much longer will you abuse our patience?..”) c. Wealth and resources so unevenly distributed i. Bishops taunt PNoy about Luisita ii. Unequal treatment: e.g. Titanic (women and children first) iii. Nightmare of policy of hostility to human rights victims we are duty bound to compensate under the ‘87 Constitution (Art XIII, Sec 17(6) 2. July 1, 2011, Fair Play for Cory and Hubert a. San Beda and Ninoy b. NBI shames SC who freed Hubert Webb after 15+ years in jail for Vizconde massacre 3. SONA and Victor’s Justice a. No SONA may be separated from 3 decades of Marcos “garbage”. As much as GMA may have contributed to “backsliding”, she deserves due process. Ombudsman Chit Carpio-Morales will see to that. MMDA v Bel-Air. 328 SCRA 836 (2000) b. Yet, for GMA he does not advocate “Victor’s Justice”. In HLS he once said that Yamashita had no right to complain about victor’s justice as Japan should not have invaded the Philippines in the first place. But in 2001, former Philippine Governor General Frank Murphy dissented on the “American military commission established to try a fallen military commander of a conquered nation…such an exception is contrary to the whole philosophy of human rights that makes the Constitution the great living document that it is. The high feelings of the moment doubtless will be satisfied. But in the sober afterglow will come the realization of the boundless and dan gerous implications of the procedure sanctioned today…Atrocities do not justify abandonment of our devotion to justice in dealing with a fallen enemy commander. Stark retribution will be free to masquerade in a cloak of false legalism…The people’s faith in the fairness and objectiveness of the law can be seriously undercut by that spirit…” c. “Human rights” is a universal concept. i. Marcoses ruled by SC as kleptocrats on July 15, 2003 ii. RAVS cannot therefore join the mob going after the Arroyos…cannot deny them due process that Pres Erap arguable never got in being tried by a Special Division not created for the Marcoses and their cronies. 1. The correct ground would have been “removal from
office”…not “resigned”. d. The SC rightfully trashed the Truth Commission —it would have been an unacceptab le form of Victor’s Justice.
4. July 15, 2011 Mayors Naning, Rudy, Sara and school ties a. Mayor Sara should be punished as we cannot have mayors assaulting sheriffs. Perhaps only with a warning in consideration of fact she was exhausted in caring for the poor. b. Her dad, VM Rudy, replaced her. Someone should have challenged his eligibility to run for vice mayor in 2010. “What may not be done directly may not be done indirectly.” A Prez running for VP simply wants to be Prez again, disrespecting the constitutional intent against reelection. He can run for congress, bgy dogcatcher etc but not for VP. Similarly a three-term mayor should not be allowed to run for Vice Mayor immediately. c. The NBI using phantom witnesses I Hubert Webb case. But, we cannot erase the constitutional right to confront an accuser, lest we pass from savagery to decay without passing civilization. 5. August 5, 2011 Migs Zubiri, Azkals and rascals a. Migz gave up what he could have dribbled for 23 more months. Counter to culture “mortir -antes-de-dimitir” (better to die first than to resign). i. Question: Who will accept Migz resignation? The RPC makes the public officer liable if before the acceptance of his resignation he shall abandon his office to the detriment of public service and shall suffer the penalty of arresto mayor. b. Who are we? The only indigenous Pinoys would be the native Pinoys in the “reservations”. We are all half -breds, mestizos, mongrels, askals… c. Am not sure if poll violations have prescribed, given the recency of the discovery of evidence.
2010 exam review questions & notes:
1. What are political questions? Give the 2 kinds.
Definition: A political question is a matter that has to be brought to the people for voting (e.g. FM burial question at LMB). It involves a question of policy as distinguished from a justiciable question. But what in the first place is a "political question?" Tanada v. Cuenco spelled out its classic definition as follows: "The term political question connotes in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum, it refers to those questions, which under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure." As to source, there are two types of political questions: 1. those that are decided directly by the people themselves-- like the wisdom of electing movie stars, media practitioners and sports personalities; and, 2. those delegated to Congress and the Presidency-- like the wisdom of enacting more tax laws, or of pardoning certain convicts. With the activist mandate firmly imbedded in the Constitution, is the "political question" principle no longer an available defense at present? Are the courts required to pass upon each and eve ry act of the political branches of government?
2. Justiciability a. A definite and concrete dispute toching on the legal relations of parties having adverse legal interests whih may be reslved through a court of law through applictuon of a law. b. Requisites: i. Actual controversy or dispute among parties ii. Interests of parties be adverse iii. Matter of controversy capable of eing adjudicated by judicial power iv. Determination of controversy will result in practia relief of complainants (Nachura on De Castro v JBC)
3. What is an Act of State? Give an example.
a. An Act of State is an act done by the sovereign power of a country, or by its delegate, within the limits of the power vested in him. It cannot be questioned or made the subject of legal proceedings in a court of law. With particular reference to Political Law, an act of State is an act done by the political departments of the government and not subject to judicial review. b. Example- decision of the President, in the exercise of his diplomatic power, to extend recognition to a newly established foreign State or government. 4. What are the requisites of constitutionality? Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court needs to ascertain whether the requisites for a valid exercise of its power of judicial review are present. Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: 1. Actual case or controversy-- there must be an actual case or controversy calling for the exercise of judicial power; 2. Proper party-- the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; Locus standi 3. Earliest Opportunity-- the question of constitutionality must be raised at the earliest opportunity; and 4. Necessary to a final determination of a case-- the issue of constitutionality must be the very lis mota of the case. 5. What are the instances wherein d state waives its immunity?
a. b. c. d.
Consents Contract is entered Counter-Claim Confiscates i. e.g. road-widening project. 1. Govt should negotiate purchase with owner, or 2. Ask for donation, or
3. File eminent domain or expropriation case ii. In any case, there should be just compensation. Amigable case
Question raised was the right of plaintiff to sue the gov’t for recovery of the value of her property, which had been converted into public streets without payment to her of just compensation. Although it was shown she did not file her claim with the Auditor General as normally required (after which it’ll go to SC on certiorari, effectively suing the State with its consent), the SC decided in her favor reiterating the pronouncement in the earlier case, Ministerio v. City of Cebu. Ministerio v. City of Cebu
Constitutional mandate that the owner be compensated for property taken for public use must be respected. Doctrine of governmental; immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen…If government had observed procedural regularity, may it th en have the right to enter in and upon the land and appropriate the same for public use.
6. What was the holding in Sabbatino?
That the Act of State doctrine was inapplicable wgere the relevant foreign act was in violation of international law. Banco Nacional de Cuba v. Sabbatino
In 1964, the United States Supreme Court applied the Act of State Doctrine in Banco Nacional de Cuba v. Sabbatino , 376 U.S. 398 (1964). The case arose when Cuba nationalized its sugar industry, taking control of sugar refineries and other companies in the wake of the Cuban revolution. A large number of Americans who had invested in those companies lost their investments without compensation when the Cuban government assumed control. However, despite the loss suffered by United States nationals, the Supreme Court upheld the Act of State Doctrine by assuming the validity of Cuba's domestic action and therefore rejected the claim of US nationals against Cuba for their lost investments. a. The Court in Banco Nacional de Cuba v. Sabbatino stated that although the Doctrine is not found in the Constitution, explicitly or implicitly, it does have constitutional underpinnings in the concept of separation of powers. The Supreme Court reasoned that because the Executive had exclusive authority to conduct foreign affairs with other nations on behalf of the United States, disputes arising from the official actions of foreign sovereign powers should not be settled by the Judiciary because those
decisions could interfere with the Executives' conduct of foreign affairs. b. The Act of State Doctrine says that a nation is sovereign within its own borders, and its domestic actions may not be questioned in the courts of another nation. i. The Act of State Doctrine enters consideration most often in cases where a foreign sovereign has expropriated the property of a U.S. national located in that foreign territory (e.g. through nationalization). Rather than pursuing recourse through the courts, United States nationals are to take their claims against foreign sovereign governments to the Executive so that the government can either espouse the claims of all U.S. nationals as a group or seek recourse through diplomatic channels. The United States employs the Act of State Doctrine more broadly and with more frequency than other countries. ii. The doctrine is not required by international law (neither customary international law nor treaty law), but it is a principle recognized and adhered to by United States federal courts. Its aim is not to protect other nations' sovereignty by intervention from the U.S. but rather to protect the US Executive's prerogatives in foreign affairs from being frustrated by a decision issuing from U.S. courts.
7. Osmena v. Pendatun, et al.
This confirmed Art VI, Sec 16(3), that Congress exercises disciplinary powers on its members and congressmen cannot be questioned in any other place. Parliamentary immunities: 1. Arrest (while in session for all offenses punishable by not more than 6 years) 2. speech and debate a. 2 requisites: i. remarks made while legislature or leg committee is functioning (in session) ii. made in connection with discharge of official duties FACTS:
Congressman Osmena petitioned for declaratory relief, certiorari and prohibition with preliminary injunction against Congressman Pendatun and 14 others in their capacity as member of the Special Committee created by House Resolution # 59. Specifically, petitioner asked for the annulment of the resolution on the ground of infringement of his parliamentary immunity; and asked the
member of the Special Committee be enjoined from proceeding, as provided by Resolution # 59, requiring the petitioner to substantiate his charges against the President during his privilege speech entitled “A Message to Garcia” wherein he spoke of derogatory remarks of the President’s administration selling pardons. (IMPLIED BRIBERY, P10 MIO) For refusing to provide evidence as the basis of his allegations, Osmena was suspended for 15 months for the serious disorderly behavior. ISSUES: 1. Whether or not petitioner has complete parliamentary immunity as provided by the Constitution. 2. Whether or not petitioner’s words constitute disorderly conduct. 3. Whether or not the taking up of other business matters bars the House from investigating the speech and words of Osmena. 4. Whether or not the House has the power to suspend its members. HELD:
Petitioner has immunity but it does not protect him from responsibility before the legislative body itself as stated in the provision that “xxx shall not be questioned in any other place”. What constitutes disorderly conduct is within the interpretation of the legislative body and not the judiciary, because it is a matter that depends mainly on the factual circumstances of which the House knows best. Anything to the contrary will amount to encroachment of power. Resolution # 59 was unanimously approved by the House and such approval amounted to the suspension of the House Rules, which according to the standard parliamentary practice may be done by unanimous consent. For unparliamentary conduct, members of the Congress have been, or could be censured, committed to prison, even expelled by the votes of their colleagues. 8. Separation of powers, in relation to the present SC. Is CJ Corona de facto or de jure SC?
Disputed constitutional provisions: Article VII, Section 15 and a. 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. Article VIII, Section 4(1)
a. 1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or, in its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof. x x x x
These are clear and speak for themselves on what the Constitution covers in banning appointments during the election period. One even posits that there is no conflict because both provisions can be given effect without one detracting against the full effectiveness of the other, although the effect is to deny the sitting President the option to appoint in favor of a deferment for the incoming President’s action. In my discussions in the Separate Opinion, I stated upfront my views on how the disputed provisions interact with each other. Read singly and in isolation, they appear clear (this reading applies the “plain meaning rule” that Tolentino advocates in his motion for reconsideration, as explained below). Arrayed side by side with each other and considered in relation with the other provisions of the Constitution, particularly its structure and underlying intents, the conflict however becomes obvious and unavoidable. Section 15 on its face disallows any appointment in clear negative t erms (“shall not make”) without specifying the appointmen ts covered by the prohibition. From this literal and isolated reading springs the argument that no exception is provided (except that found in Section 15 itself) so that even the Judiciary is covered by the ban on appointments. On the other hand, Section 4(1) is likewise very clear and categorical in its terms: any vacancy in the Court shall be filled within 90 days from its occurrence.27 In the way of Section 15, Section 4(1) is also clear and categorical and provides no exception; the appointment refers solely to the Members of the Supreme Court and does not mention any period that would interrupt, hold or postpone the 90 -day requirement. From this perspective, the view that no conflict exists cannot be seriously made, unless with the mindset that one provision controls and the other should yield. But this kind of mindset and the conclusion it inevitably leads to cannot be adopted; the provisions of the Constitution cannot be read in isolation from what the whole contains. To be exact, the Constitution must be read and understood as a whole, reconciling and harmonizing apparently conflicting provisions so that all of them can be given full force and effect, unless the Constitution itself expressly states otherwise. Not to be forgotten in reading and understanding the Constitution are the many established underlying constitutional principles that we have to observe and respect if we are to be true to the Constitution.
These principles – among them the principles of checks and balances and separation of powers – are not always expressly stated in the Constitution, but no one who believes in and who has studied the Constitution can deny that they are there and deserve utmost attention, respect, and even priority consideration. In establishing the structures of government, the ideal that the Constitution seeks to achieve is one of balance among the three great departments of government – the Executive, the Legislative and the Judiciary, with each department undertaking its constitutionally-assigned task as a check against the exercise of power by the others, while all three departments move forward in working for the progress of the nation. Thus, the Legislature makes the laws and is supreme in this regard, in the way that the Executive is supreme in enforcing and administering the law, while the Judiciary interprets both the Constitution and the law. Any provision in each of the Articles on these three departments that intrudes into the other must be closely examined if the provision affects and upsets the desired balance. Article VI for the Legislature, Article VII for the Executive, and Article VIII for the Judiciary. Under the division of powers, the President as Chief Executive is given the prerogative of making appointments, subject only to the legal qualification standards, to the checks provided by the Legislature’s Commission on Appointments (when applicable) and by the JBC for appointments in the Judiciary, and to the Constitution’s own limitations. Conflict comes in when the Constitution laid down Article VII, Section 15 limiting the President’s appointing power during the election period. This limitation of power would have been all-encompassing and would, thus, have extended to all government positions the President can fill, had the Constitution not inserted a provision, also on appointments, in the Article on the Judiciary with respect to appointments to the Supreme Court. This conflict gives rise to the questions: which provision should prevail, or should both be given effect? Or should both provisions yield to a higher concern – the need to maintain the integrity of our elections? A holistic reading of the Constitution – a must in constitutional interpretation – dictates as a general rule that the tasks assigned to each department and their limitations should be given full effect to fulfill the constitutional purposes under the check and balance principle, unless the Constitution itself expressly indicates its preference for one task, concern or standard over the others, or unless this Court, in its role as interpreter of the Constitution, has spoken on the appropriate interpretation that should be made. In considering the interests of the Executive and the Judiciary, a holistic approach starts from the premise that the constitutional scheme is to grant the President the power of appointment, subject to the limitation provided under Article VII, Section
15. At the same time, the Judiciary is assured, without qualifications under Article VIII, Section 4(1), of the immediate appointment of Members of the Supreme Court, i.e., within 90 days from the occurrence of the vacancy. If both provisions would be allowed to take effect, the limitation on the appointment power of the President under Article VII, Section 15 should itself be limited by the appointment of Members of the Court pursuant to Article VIII, Section 4(1), so that the provision applicable to the Judiciary can be given full effect without detriment to the President’s appointing authority. This harmonization will result in restoring to the President the full authority to appoint Members of the Supreme Court pursuant to the combined operation of Article VII, Section 15 and Article VIII, Section 4(1). Viewed in this light, there is essentially no conflict, in terms of the authority to appoint, between the Executive and Judiciary; the President would effectively be allowed to exercise the Executive’s traditional presidential power of appointment while respecting the Judiciary’s own pr erogative. In other words, the President retains full powers to appoint Members of the Court during the election period, and the Judiciary is assured of a full membership within the time frame given. Interestingly, the objection to the full application of Article VIII, Section 4(1) do not, of course, cite reasons of power and the loss of the opportunity to appoint the Chief Justice based on the need to maintain the integrity of the elections through the avoidance of a “midnight appointment.” This “integrity” reason is a given in a democracy and can hardly be opposed on the theoretical plane, as the integrity of the elections must indeed prevail in a true democracy. The statement, however, begs a lot of questions, among them the question of whether the appointment of a full Court under the terms of Article VIII, Section 4(1) will adversely affect or enhance the integrity of the elections. But, the appointment of a Member of the Court even during the election period per se implies no adverse effect on the integrity of the election; a full Court is ideal during this period in light of the Court’s unique role during elections 1. During the election period, the court is not only the interpreter of the Constitution and the election laws; other than the Commission on Elections and the lower courts to a limited extent, the Court is likewise the highest impartial recourse available to decisively address any p roblem or dispute arising from the election. 2. It is the leader and the highest court in the Judiciary, the only one of the three departments of government directly unaffected by the election. 3. The Court is likewise the entity entrusted by the Constitution, no less, with the gravest election-related responsibilities. a. In particular, it is the sole judge of all contests in the election of the President and the Vice-President, with leadership and participation as well in the election tribunals that directly address Senate and House of Representatives electoral disputes. 4. With this grant of responsibilities, the Constitution itself has spoken on the trust it reposes on the Court on election matters. This reposed trust, to my mind, renders academic any question of whether an appointment
during the election period will adversely affect the integrity of the elections – it will not, as the maintenance of a full Court in fact contributes to the enforcement of the constitutional scheme to foster a free and orderly election. An incomplete Court “is not a whole Supreme Court; it will only be a Court with 14 members who would act and vote on all matt ers before it.” The importance of the presence of one Member of the Court can and should never be underestimated, particularly on issues that may gravely affect the nation. Many a case has been won or lost on the basis of one vote. On an issue of the constitutionality of a law, treaty or statute, a tie vote – which is possible in a 14 member court – means that the constitutionality is upheld. This was our lesson in Isagani Cruz v. DENR Secretary (Indigenous People’s ancestral domain, 7 -7). The ascendancy in the Court of a permanent sitting Chief Justice cannot be equaled. 1. He is the first among equals – a primus inter pares – who sets the tone for the Court and the Judiciary, and who is looked up to on all matters, whether administrative or judicial. 2. To the world outside the Judiciary, he is the personification of the Court and the whole Judiciary. i. chairs the Court en banc ii. chairs Presidential Electoral Tribunal (disputes Pres n VP) iii. Chair of the Judicial and Bar Council, iv. Chair of the Philippine Judicial Academy and, v. by constitutional command, presides over the impeachment of the President. Other than the texts of the disputed provisions, I prefer to examine their purposes and the consequences of their application, understood within the context of democratic values. The history of provisions, including the intents behind them, are primarily important to ascertain the purposes the provisions serve. Reality 1: JBC cannot, on its own due to lack of the proper authority, determine the appropriate course of action to take under the Constitution. Its principal function is to recommend appointees to the Judiciary and it has no authority to interpret constitutional provisions, even those affecting its principal function; the authority to undertake constitutional interpretation belongs to the courts alone. Reality 2: The disputed constitutional provisions do not stand alone and cannot be read independently of one another; the Constitution and its various provisions have to be read and interpreted as one seamless whole, giving sufficient emphasis to every aspect in accordance with the hierarchy of our constitutional values. The disputed provisions should be read together and, as reflections of the will of the people, should be given effect to the extent that they should be reconciled. Reality 3: In resolving the coverage of the election ban vis-à-vis the appointment of
the Chief Justice and the Members of the Court, provisions of the Constitution other than the disputed provisions must be taken into account. In considering when and how to act, the JBC has to consider that: a. The President has a term of six years which begins at noon of June 30 following the election, which implies that the outgoing President remains President up to that time. (Section 4, Article VII). The President assumes office at the beginning of his or her term, with provision for the situations where the President fails to qualify or is unavailable at the beginning of his term (Section 7, Article VII). b. The Senators and the Congressmen begin their respective terms also at midday of June 30 (Sections 4 and 7, Article VI). The Congress convenes on the 4th Monday of July for its regular session, but the President may call a special session at any time. (Section 15, Article VI) c. Judicial Review is the power of the courts to test the validity of executive and legislative acts for their conformity with the Constitution, Garcia v. Executive Secretary, G.R. No. 157584, April 2, 2009. d. Control is the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. It is distinguished from supervision in that the latter means overseeing, or the power or authority of an officer to see that subordinate officers perform their duties, and if the latter fail or neglect to fulfill them, then the former may take such action or steps as prescribed by to make them perform these duties.
9.
Soft impeachment (“censure”)
Another disciplinary measure besides expulsion or suspension; and deletion of unparliamentary remarks from the record. “If an overwhelming number of congressmen vote to impeach anyone, that determination would amount to ‘censure,’ or ‘soft impeachment’,” former Senator Rene Saguisag wrote in San Beda Law Journal 44 years ago. That would make “ trial and conviction superfluous”, he stressed in this 20-page article, titled: ”A Filipino Ombudsman.” The Ombudsman would lose the moral authority “to be credible, acceptable, legit and effective, in the eyes of millions of our countrymen” . In that case,. “resignation may be the patriotic option”. Gutierrez ignored this or “soft impeachment “.So, House Justice Committee chairman Neil Tupas hand carried the Articles of Impeachment to the Senate – which started to crank up preparations for what promises to a bruising trial.
In the impeachment of President Joseph Estrada, the “Craven Eleven” senators voted to seal the “second envelope”. Prosecutors walked out. Within hours, the impasse triggered People Power II.
10. Adaza v. Pacana
Petitioner and respondent were elected as gov and vice-gov of Misamis Oriental. Both ran for BP, but only Adaza (petitioner) won. Adaza then qualified as member of BP, and Pacana assumed governorship as statutory successor. Adaza challenged Pacana’s takeover contending that under the parliamentary system a legislator could concurrently serve as governor, hence there was no vacancy that Pacana could fill. SC rejected this and held that Adaza forfeited his governorship when he took his oath of office as a member of the BP. (incompatible w/legislative position)
11. Safeguards of judicial independence (14)
1. SC is a constitutional body and cannot be abolished by mere legislation. 2. SC members cannot be removed except by impeachment. 3. SC cannot be deprived of its minimum jurisdiction prescribed in Section 5, Article X of the Constitution. 4. The appellate jurisdiction of the Supreme Court cannot be increased by law without its advice and concurrence. 5. Appointees to the Judiciary are nominated by the Judicial and Bar Council and are not subject to confirmation by the Commission on Appointments. 6. SC has administrative supervision over all lower courts and their personnel. 7. SC has exclusive power to discipline Judges of lower courts. 8. The Members of the Judiciary have security of tenure, which cannot be undermined by a law reorganizing the Judiciary. 9. Members of the Judiciary cannot be designated to any agency performing quasi-Judicial or administrative functions. 10. The salaries of Members of the Judiciary cannot be decreased during their continuance in office. 11. The Judiciary has fiscal autonomy. 12. The Supreme Court has exclusive power to promulgate rules of pleading, practice and procedure. 13. Only the Supreme Court can temporarily assign judges to other stations. 14. It is the Supreme Court who appoints all officials and employees of the Judiciary. Cruz, Philippine Political Law, 1995 ed. (pp. 229 -31.)
12. Safeguards of Constitutional Commission Independence
1. They are constitutionally created; may not be abolished by statute; 2. Each is expressly described as “independent” 3. Each is conferred certain powers and functions, which cannot be reduced by statute; 4. The Chairmen and members cannot be removed except by impeachment;
5. The chairmen and the members are given a fairly a long term of office of 7 years; 6. The Chairmen and members may not be re-appointed or appointed in an acting capacity ( Brillantes v. Yorac , 192 SCRA 358) 7. The salaries of the Chairmen and members are relatively high and may not be decreased during continuance in office; 8. The Commissions enjoy fiscal autonomy; 9. Each Commission may promulgate its own procedural rules, provided they do not diminish, increase or modify substantive rights (though subject to disapproval by the SC.); 10. The Chairmen and members are subject to certain disqualifications calculated to strengthen their integrity; 11. The Commissions may appoint their own officials and employees in accordance with Civil Service Law 13. How much do justices of the SC make?
SG 37. In CA 35,000 plus allowance/matching, total 70k. So for SC around 150k basic plus allowance. a. As members of the PET? b. Tanada v Tuvera April 1985 i. Publication of decrees 14. CJ Corona on PLDT
Chief Justice Corona: SC didn't consider effects of PLDT ruling MANILA, Philippines - Chief Justice Renato Corona admitted on Thursday that the Supreme Court was concerned about the possible negative effects on the economy of its June 28 ruling that changed the calculation of foreign ownership in public utilities. At the sidelines of the membership meeting of the European Chamber of Commerce of the Philippines, Corona said the high court did not consider the economic implications of its decision. “It was purely legal. Nobody even mentioned anything about the economic implications of the decision.” The SC earlier directed the Securities and Exchange Commission (SEC) to study whether telecom giant Philippine Long Distance Telephone Co. (PLDT), a unit of Hong Kong-based First Pacific Co. Ltd., has breached the 40% limit on foreign ownership of public utilities as prescribed under the Constitution. Section 11, Article XII of the 1987 Constitution states that "no franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to
corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years." In assessing "capital," the high court ruled that only voting or common shares could be counted, and preferred or non-voting shares should be excluded. Gamboa petition
The SC ruling stemmed from the complaint filed by human rights lawyer Wilson Gamboa who sought to annul the sale of the government's 46% stake in Philippine Telecommunications Investment Corp. -- representing a 6.4% indirect interest in PLDT -- to First Pacific, which partly owns the telco. Gamboa stressed that as a consequence of the sale, foreign groups First Pacific and NTT DoCoMo, a PLDT minority stockholder, ended up owning 51.56% of PLDT equity, over and above the maximum allowable 40%. Corona said none of the parties involved in the case raised the positive negative impact on the business climate of the SC’s interpretation of capital. He said it was only after the court issued the ruling that they sounded the alarm. He said the court would hear oral arguments on the case soon. “We're just waiting for all the pleadings to be submitted to the court before we set the date.” PLDT chairman Manuel V. Pangilinan, PLDT president Napoleon Nazareno, the SEC, and the Philippine Stock Exchange (PSE) have filed separate motions for reconsideration of the court ruling. Pangilinan warned of serious repercussions on the economy. The PSE said the economy stands to lose more than P630 billion in allowable foreign investments in PSE-listed shares or 9% of the current total market value if it were to follow the SC ruling. The SEC, for its part, asked the court to abandon the ruling for being "premature” as Gamboa failed to exhaust administrative remedies with the securities regulators before bringing up the matter to the court. '60-40' ownership rule
Corona, meanwhile, said some provisions of the 1987 Constitution need to be reexamined and possibly changed because they are “restrictive” and may be “outmoded.”
"There are certain provisions that I think will have to be made responsive to the present time, remember this was written 1987, that was 24 years ago. Over the past years the international economic and business developments have improved by leaps and bound…That is it is really time to reexamine because people change, the way we do things change, business factors changed," Corona said. He declined to specify the provisions. Earlier, Trade Undersecretary Cristino Panlilio said the government was mulling amending the “60 -40” ownership rule in the Constitution to allow foreign companies to fully own investments in the country.
Isagani Cruz Textbook: Chapter 1: General Considerations Scope of the Study o o Necessity o Basis o Background Chapter 2: The Constitution of the Philippines Outstanding Features o Supremacy of the Constitution o Prospects of the Constitution o Chapter 3: The Concept of the State o Definition o Elements 1. People 2. Territory 3. Government a. Functions b. Doctrine of Parens Patriae c. De Jure and De Facto Governments d. Government of Philippines e. Administration 4. Sovereignty o Acts of State Chapter 4: The Doctrine of State Immunity Basis o Application o Waiver of Immunity o Forms of Consent o Suits against government agencies o Exemption from legal requirements o Suability vs. liability o
Chapter 5: Fundamental Principles and State Policies o Preamble o Republicanism The Defense of the State o o Peace and Order o The Incorporation Clause o Rearing of the Youth o Women o Social Justice o Separation of Church and State Supremacy of Civilian Authority o Local Autonomy o Economy o Miscellaneous o Chapter 6: Separation of Powers
o o o o o o o
Purposes Blending of Powers Checks and Balances The Role of the Judiciary Justiciable and political questions Application of the Doctrine Political questions under the New Constitution
Chapter 7: Delegation of Powers o Permissible Delegation 1. Tariff powers 2. Emergency powers 3. Delegation to the People 4. Delegation to Local Governments 5. Delegation to Administrative Bodies Tests of Delegation Completeness Test o Sufficient Standard Test o Pelaez Case Chapter 8: Legislative Department The Senate o Composition Qualification Term The House of Representatives o Composition The district reps Party list reps Qualifications Term Election o Salaries o Parliamentary Immunities o Privilege from Arrest Privilege of Speech and Debate Conflict of Interest o Incompatible and Forbidden Offices o Inhibitions and Disqualifications o Sessions o Officers o Quorum o o Discipline of Members o Journals o Adjournment o The Electoral Tribunals o The Commission on Appointments
o
Organization
Chapter 9: Powers of the Congress o Legislative powers in general o Procedure o Origin of Bills o Prohibited Measures o Title of Bills o Formalities o Approval of Bills o Legislative Inquiries o Appearance of Department Heads o The Power of Appropriation Appropriation defined Implied Limitations Constitutional Limitations Appropriations for Sectarian Purposes Automatic Re-Appropriation Special Funds o The Power of Taxation o The Power of Concurrence o The War Powers o Referendum and Initiative
Chapter 10: The Executive Department Executive Power o Qualifications o Election and Proclamation o Term o The Vie-President o Presidential Succession o Oath of Office o o Perquisites and Inhibitions o Presidential Immunity Chapter 11: Powers of the President o Appointing Power Removal Power o Control Power o The “take-Care” Cause Military Power o 3. Command of the Armed Forces 4. Habeas Corpus 5. Martial Law 6. Limitations of the Military Powers Pardoning Power o 1. Definitions
2. Limitations 3. Kinds of pardons 4. Effects of pardons 5. Distinctions 6. Amnesty Borrowing power Diplomatic power Budgetary power Informing power Other powers Resume Chapter 12: Judicial Department Independence of the Judiciary o Judicial power o Jurisdiction o o Appointments 1. Qualifications 2. The Judicial and Bar Council o Fiscal Autonomy o Composition of the SC En banc cases Division cases o Requisites f Judicial Inquiry Actual case Party proper Earliest opportunity Necessity of defending constitutional question o Effects of declaration of unconstitutionality Partial unconstitutionality o Powers of the SC 1. Original Jurisdiction 2. Appellate jurisdiction 3. Temporary assignment of judges 4. Change of venue or place of trial 5. Rule-making power 6. Appointment of court personnel 7. Administrative supervision of courts Tenure of Judges Consultations of the court Decisions of the court Salaries of judges Periods for decision Annual report Chapter 13: Constitutional Commissions Salaries o Disqualifications o o Staggering of Terms
Reappointment o Other Perquisites o Proceedings Chapter 14: The Civil Service Commission Chapter 15: Commission on Elections Composition ad Qualifications o Powers and functions o 1. Enforcement of election laws 2. Decision of election contests 3. Decision of administrative questions 4. Deputization of law-enforcement agencies 5. Registration of political parties 6. Improvement of elections Election period Party systems Funds Judicial review o
