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consti 1

consti 1

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Published by: ken on Sep 25, 2010
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I.Political Law
A.Definition of Political LawB.Subdivisions of Political LawC.Basis of Philippine Political Law
A.Definition of ConstitutionB.Philosophical View of the ConstitutionC.Purpose of ConstitutionD.Classifications of ConstitutionsE.Qualities of a Good Written ConstitutionF.Essential Parts of a Good Written ConstitutionG.Permanency and Generality of constitutionsH.Interpretation/Construction of ConstitutionI.Brief Constitutional HistoryJ.The 1987 Constitution
III.Constitutional Law
A.Concept of Constitutional LawB.Types of Constitutional Law
IV.Basic Concepts
A.ConstitutionalismB.Philippine ConstitutionalismC.Doctrine of Constitutional SupremacyD.RepublicanismE.Principle of Separation of PowersF.System of Checks and BalancesG.Judicial ReviewH.Due Process
I. POLITICAL LAWA. Definition of Political Law
Branch of public law which deals with the organization and operation of thegovernmental organs of the state and defines the relations of the state with theinhabitants of its territory.
B. Subdivisions of Political Law
1.Law of public administration2.Constitutional law3.Administrative law4.Law of public corporations
C. Basis of Philippine Political Law
The principles of government and political law of the Philippines arefundamentally derived from American jurisprudence. This conditions was theinevitable outcome of the establishment of the American rule in the Philippines.When Spain ceded the Phils. to the US, the Spanish Political laws wereautomatically displaced by those of the US.
II. CONSTITUTIONA. Definition of Constitution
Comprehensive Definition
That body of rules and maxims in accordancewith which the powers of sovereignty are habitually exercised. (Cooley)
 American sense
A constitution is a written instrument by which thefundamental powers of government are established, limited, and defined andby which these powers are distributed among several departments, for their more safe and useful exercise, for the benefit of the body politic. (Justice Miller quoted by Bernas)
With particular reference to the Philippine Constitution
: That writteninstrument enacted by direct action of the people by which the fundamentalpowers of the government are
and bywhich those powers are
among several departments for their safeand useful exercise for the benefit of the body politic. (Malcolm, PhilippineConstitutional Law, p. 6)
In other words:
It is the
supreme written law of the land
B. Philosophical View of the Constitution
The Constitution is a social contract. (Marcos v. Manglapus)Viewed in the light of the Social Contract Theories, the Constitution may beconsidered as the Social Contract itself in the sense that it is the very basis of the decision to constitute a civil society or State, breathing life to its juridicalexistence, laying down the framework by which it is to be governed,enumerating and limiting its powers and declaring certain fundamental rightsand principles to be inviolable.The Constitution as a political document may be considered as the concretemanifestation or expression of the Social Contract or the decision to abandonthe ‘state of nature’ and organize and found a civil society or State.
According to Dean Baustista, “the Constitution is a social contract between thegovernment and the people, the governing and the governed.”
(ASM: I don’t necessarily agree with this statement. As a social contract, the Constitution, I think is a contract between and among the people themselves and not between the government and the people. The government is only an “effect” or consequence of the social contract of the people. In other words, thegovernment is only a creature of the Constitution. Hence, the government cannot be a party to a contract that creates it. In the 1987 PhilippineConstitution, it reads, “We the sovereign Filipino people…in order to build a …society and establish a government… ordain and promulgate thisConstitution.”)
According to Dean Bautista, “the Constitution reflects majoritarian values butdefends minoritarian rights.”
C. Purpose of the Constitution
To prescribe the permanent framework of a system of government, to assign tothe several departments their respective powers and duties, and to establishcertain first principles on which the government is founded. (11 Am. Jur. 606cited in Cruz)
Why would a society generally committed to majority rule choose to begoverned by a document that is difficult to change?
a)To prevent tyranny of the majorityb)Society’s attempt to protect itself from itself.c)Protecting long term values form short term passions.
D. Constitution as a Municipal Law
A constitution is a municipal law. As such, it is binding only within the territoriallimits of the sovereignty promulgating the constitution.
E. Classification
A.(1) Rigid(2) FlexibleB. (1) Written(2) UnwrittenC.(1) Evolved(2) EnactedD. (1) Normative- adjusts to norms(2) Nominal –not yet fully operational(3) Semantic-perpetuation of power The Constitution of the Philippines is written, conventional and rigid.
F. Qualities of good written constitution
G. Essential parts of a good written constitution
1.Constitution of government2.Constitution of liberty3.Constitution of sovereignty[Social and economic rights]
H. Interpretation/Construction of the Constitution
In Fransisco v HR, the SC made reference to the use of well-settled principlesof constitutional construction, namely:1.Verba Legis2.Ratio legis et anima3.Ut magis valeat quam pereat
I. Permanence and Generality of constitutions
A constitution differs from a statute, it is intended not merely to meet existingconditions, but to govern the future.It has been said that the term ‘constitution’ implies an instrument of apermanent nature.
J. Brief Constitutional History
1.Malolos Constitution2.The American Regime and the Organic Acts3.The 1935 Constitution4.The Japanese (Belligerent) Occupation5.The 1973 Constitution6.The 1987 Constitution
K. The 1987 Constitution
The 1987 Constitution is the 4
fundamental law to govern the Philippinessince it became independent on July 4, 1946. 
Background of the 1987 Constitution
1. Proclamation of the Freedom Constitutiona.
Procalamation No. 1
, February 25, 1986, announcing that she (CorazonAquino) and VP Laurel were assuming power.b.
Executive Order No.1,
(Febrauary 28, 1986)c.
Procalamation No.3,
March 25, 1986, announced the promulgation of theProvisional (Freedom) Constitution, pending the drafting and ratificationof a new Constitution. It adopted certain provisions in the 1973Constitution, contained additional articles on the executive department,on government reorganization, and on existing laws. It also provided of the calling of a Constitutional Commission to be composed of 30-50members to draft a new Constitution.2. Adoption of the Constitution
Proclamation No. 9
, creating the Constitutional Commission of 50members.b. Approval of the draft Constitution by the Constitutional Commission onOctober 15, 1986c. Plebiscite held on February 2, 1987d.
Proclamation No. 58,
proclaiming the ratification of the Constitution.3. Effectivity of the 1987 Constitution:
February 2, 1987Features of 1987 Constitution
1.The new Constitution consists of 18 articles and is excessively longcompared to the 1935 and 1973 constitutions.2.The independence of the judiciary has been strengthened with newprovisions for appointment thereto and an increase in its authority,which now covers even political questions formerly beyond its jurisdiction.3.The Bill of Rights of the Commonwealth and Marcos constitutions hasbeen considerably improved in the 1987 Constitution and evenbolstered with the creation of a Commission of Human Rights.
III. CONSTITUTIONAL LAWA. Concept of Constitutional Law
Constitutional law is a body of rules resulting from the interpretation by a highcourt of cases in which the validity, in relation to the constitutional instrument,of some act of government…has been challenged. (Bernas Commentaryxxxviii)Constitutional law is a term used to designate the law embodied in theconstitution and the legal principles growing out of the interpretation andapplication made by courts of the constitution in specific cases. (Sinco, Phil.Political Law)Constitutional law is the study of the maintenance of the proper balancebetween authority represented by the three inherent powers of the State andliberty as guaranteed by the Bill of Rights. (Cruz, Constitutional Law)Constitutional law consist not only of the constitution, but also of the casesdecided by the Supreme Court on constitutional grounds, i.e., every casewhere the ratio decidendi is based on a constitutional provision. (Defensor-Santiago, Constitutional Law)
B. Types of Constitutional law
1. English type2. European continental type3. American type
C. Weight of American Jurisprudence
In the case of Francisco v. HR, (2003) The Supreme Court speaking throughJustice Carpio Morales opined:
American jurisprudence and authorities, much less the AmericanConstitution, are of dubious application for these are no longer controllingwithin our jurisdiction and have only
limited persuasive merit insofar asPhilippine constitutional law is concerned
. As held in the case of 
Garcia vs. COMELEC 
"[i]n resolving constitutional disputes, [this Court]should not be beguiled by foreign jurisprudence some of which are hardlyapplicable because they have been dictated by different constitutionalsettings and needs." Indeed, although the Philippine Constitution can traceits origins to that of the United States, their paths of development havelong since diverged. In the colorful words of Father Bernas,
"[w]e havecut the umbilical cord
(But see the case of 
Neri v. Senate Committees
where the Court cited many  American cases)
ConstitutionalismPhilippine ConstitutionalismDoctrine of Constitutional Supremacy RepublicanismPrinciple of Separation of PowersSystem of Checks and BalancesJudicial Review Due Process
A. Constitutionalism
Constitutionalism refers to the position or practice that government be limitedby a constitution.The doctrine or system of government in which the governing power 
is limited 
by enforceable rules of law, and concentration of power is limited by variouschecks and balances so that the basic rights of individuals and groups areprotected.
B. Philippine Constitutionalism
Constitutionalism in the Philippines, understood in the American sense, datesback to the ratification of Treaty of Paris. Then it grew from a series of organicdocuments. These are:(1)Pres. Mc Kinleys’ Instruction to the Second Phil. Commission,(2)Phil. Bill of 1902,(3)Phil. Autonomy Act of 1916. (Bernas, Commentary xxxviii)
C. Doctrine of Constitutional Supremacy
(2004 Bar Exam Question)

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