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2015 BAR EXAM

PRE-WEEK NOTES IN POLITICAL LAW
Atty. Anjo David

DOCTRINE OF CONSTITUTIONAL SUPREMACY

a. Expressed in the Civil Code

ARTICLE 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall
be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they are
not contrary to the laws or the Constitution.

- A.D.: This is the orthodox view on constitutional supremacy. (Serrano de Agbayani v.
Philippine National Bank, 148 Phil. 443, 447-448, 1971). The modern view is expressed
in the doctrine of operative fact.

The doctrine of operative fact is an exception to the general rule, such that a judicial
declaration of invalidity may not necessarily obliterate all the effects and
consequences of a void act prior to such declaration. (CIR v. San Roque Power
Corporation, G.R. No. 187485, October 8, 2013)

- A.D.: When does it apply? Note the requirements!

(1) For the operative fact doctrine to apply, there must be a "legislative or executive
measure," meaning a law or executive issuance, that is invalidated by the court.
From the passage of such law or promulgation of such executive issuance until
its invalidation by the court, the effects of the law or executive issuance, when
relied upon by the public in good faith, may have to be recognized as valid. An
administrative practice is neither a law nor an executive issuance. (CIR v. San
Roque Power Corporation, G.R. No. 187485, October 8, 2013)

(2) In cases where nullification of the effects will result in inequity and injustice,
the operative fact doctrine may apply. (Araullo v. Aquino [Resolution], G.R. No.
209287, February 3, 2015)

- A.D.: When the doctrine of operative fact is applied, does it include a finding of
liability on the part of the officer/s who performed the legislative/executive act
declared unconstitutional? NO! But these officers may be held liable, according to
the Supreme Court, “by the proper tribunals.”

The presumption of good faith stands despite the obiter pronouncement [in the
Decision]. Note that the proper tribunals can make "concrete findings of good faith
in their favor" only after a full hearing of all the parties in any given case, and such a
hearing can begin to proceed only after according all the presumptions, particularly

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Anjo David that of good faith. No.R. 2009) INTERGENERATIONAL RESPONSIBILITY A. Constitution deemed written in every contract Under the doctrine of constitutional supremacy. Article III. G. plaintiffs or accusers to first establish their complaints or charges before the respondent authors. September 16. if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. file a class suit. Jr. Non-establishment and Free Exercise At the outset. G. by initially requiring the complainants. This takes many forms. G. Section 5 of the Constitution. an independent body with a specific constitutional mandate.R.R. paramount and supreme law of the nation. Thus: Petitioners minors assert that they represent their generation as well as generations yet unborn. July 30. No. Swift. Thus. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned (Arigo v. v. proponents and implementors of the DAP. HRET. No. for instance provides: 2 . since the Constitution is the fundamental. for others of their generation and for the succeeding generations. 101083. February 3. 2015 BAR EXAM PRE-WEEK NOTES IN POLITICAL LAW Atty. 2015) b.R. 206510. 185401. it is deemed written in every statute and contract. (Henry "Jun" Dueñas. No. February 3. the Constitution mandates the separation of church and state.R. (Manila Prince Hotel v. G. Awareness of the proper scope of its power of judicial review in cases involving the HRET. Jr. Factoran. this Court ruled that not only do ordinary citizens have legal standing to sue for the enforcement of environmental rights. G. July 21. 122156.: The doctrine is relevant when it comes to the question of locus standi. No. they can do so in representation of their own and future generations. 209287.D. We find no difficulty in ruling that they can. except in clear cases of grave abuse of discretion. 2014 citing Oposa v. 1993) SEPARATION OF CHURCH AND STATE a. Constitution as a check upon the branches of government The supremacy of the Constitution serves as the safety mechanism that will ensure the faithful performance by this Court of its role as guardian of the fundamental law. 1997) c. GSIS. for themselves. behooves the Court to stay its hands in matters involving the exercise of discretion by that body. On the novel element in the class suit filed by the petitioners minors in Oposa. Aquino [Resolution]. (Araullo v.

Lemon test – A regulation is constitutional when: (1) it has a secular legislative purpose. without discrimination or preference. 205728. We also do not agree with the petitioner that the principle of separation of church and State precludes the State from qualifying the church "blessing" into a marriage ceremony. The first is the non-establishment clause. G. COMELEC. or prohibiting the free exercise thereof. July 2. The free exercise and enjoyment of religious profession and worship. No. They exist within a society that is regulated by law. See Diocese of Bacolod v. G. as amended. People of the Philippines.R. bishops. See Rene Ronulo v. 2015 BAR EXAM PRE-WEEK NOTES IN POLITICAL LAW Atty. (2) it neither advances nor inhibits religion. "IBASURA RH Law". There are two aspects of this provision.: What happened here? The Bishop of Bacolod caused the posting of the tarpaulin within a private compound housing the San Sebastian Cathedral of Bacolod with the message. The religious also have a secular existence. No religious test shall be required for the exercise of civil or political rights. Contrary to the petitioner’s allegation.D. 2015) b. The discussion on this issue is quite long. A. This pronouncement gives any religion or sect the freedom or latitude in conducting its respective marital rites. or any other religious make such act immune from any secular regulation.R. Anjo David Section 5. let’s focus only on the religious speech issue.D. subject only to the requirement that the core requirements of law be observed.: This case involves the non-establishment clause. (Diocese of Bacolod v. and “Conscience Vote" and lists candidates as either "(Anti-RH) Team Buhay" with a check mark. January 21. 205728. ustadz. No. COMELEC issued Notice to Remove Campaign Materials. COMELEC. 182438. No law shall be made respecting an establishment of religion. Second is the free exercise and enjoyment of religious profession and worship.R. Is this violative of freedom of religion? NO! How do we know? Apply the Lemon test! Not all acts done by those who are priests. and (3) it 3 . or "(Pro-RH) Team Patay" with an "X" mark. 2015 A. G. January 21. For purposes of these notes. No. this principle has been duly preserved by Article 6 of the Family Code when it provides that no prescribed form or religious rite for the solemnization of marriage is required. imams.D. The main issue here is – Does the COMELEC have the competence to limit expressions made by the citizens — who are not candidates — during elections? The answer is no. shall forever be allowed. 2014: The only issue to be resolved is whether the alleged "blessing" by the petitioner is tantamount to the performance of an "illegal marriage ceremony" which is punishable under Article 352 of the RPC. A. c.

2015) INCORPORATION THEORY . widespread. Lantion. G. (Diocese of Bacolod v. December 3. which we should consider a part of the law of the land. January 18.R. equality. G. rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere.R. On the other hand. Anjo David does not foster an excessive entanglement with religion. October 9. The classical formulation in international law sees those customary rules accepted as binding result from the combination [of] two elements: (1) the established. and which we should act upon to the extent already allowed under our laws and the international conventions that bind us. the above recital shows that enforced disappearance as a State practice has been repudiated by the international community. (Secretary of Justice v. 139465. so that the ban on it is now a generally accepted principle of international law. No. Only generally accepted principles of international law. (Razon v. freedom. and (2) a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). adopts the generally accepted principles of international law as part of the law of the land. Tagitis.D. No. COMELEC.R. Duque III. No. 182498. The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. 205728. cooperation and amity with nations. 2015 BAR EXAM PRE-WEEK NOTES IN POLITICAL LAW Atty. 2007) . G. (Pharmaceutical and Health Care Association of the Philippines v. What do we mean by that? We characterized "generally accepted principles of international law" as norms of general or customary international law that are binding on all states. Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. the transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. G. 2000) . No. 4 . justice.R. Under the doctrine of incorporation. What exactly do we incorporate? All sources of international law? NO. 173034. and consistent practice on the part of States. January 21. Article II of the Constitution provides that "[t]he Philippines renounces war as an instrument of national policy. the Supreme Court said: While the Philippines is not yet formally bound by the terms of the Convention on enforced disappearance (or by the specific terms of the Rome Statute) and has not formally declared enforced disappearance as a specific crime." . A. 2009) In Razon. and adheres to the policy of peace. Where can you find it? Section 2.

That law. not being a self-executing provision of the Constitution. To comply with the first requisite. 101 Phil. 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap. (4) In states where the constitution is the highest law of the land. How is conflict between a international law and municipal law and/or the constitution resolved? (Secretary of Justice v. op. Hechanova. 13). . No. to be valid under Section 25(5). cit.. however. January 18. 9 SCRA 230 [1963]. 209287. decrees that rules of international law are given equal standing with. 5 . (2) The funds to be transferred are savings generated from the appropriations for their respective offices. July 1. Anjo David . 1155 [1957]. as applied in most countries. 2015 BAR EXAM PRE-WEEK NOTES IN POLITICAL LAW Atty. namely: (1) There is a law authorizing the President. Hernandez. must be made upon a concurrence of the following requisites. the President of the Senate. such as the Republic of the Philippines. p. (3) The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. No. 2014 The transfer of appropriated funds. must have an implementing law for it to be operative. TRANSFER OF APPROPRIATED FUNDS (DAP CASE) Araullo v. Gonzales vs. both statutes and treaties may be invalidated if they are in conflict with the constitution.R. jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. the principle lex posterior derogat priori takes effect — a treaty may repeal a statute and a statute may repeal a treaty. Article VI. The doctrine of incorporation. Philippine Political Law. G. generally. and the heads of the Constitutional Commissions to transfer funds within their respective offices. In re: Garcia. so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the observance of the Incorporation Clause in the above-cited constitutional provision (Cruz. but are not superior to.. Accordingly. 1996 ed. the GAAs should expressly authorize the transfer of funds. p. is the GAA of a given fiscal year. (2) In a situation. Lantion. the Speaker of the House of Representatives.R. Section 25(5). 55). where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law. Aquino. the Chief Justice of the Supreme Court. 2000) (1) Efforts should first be exerted to harmonize them. national legislative enactments. G. 139465. Article VI of the 1987 Constitution.

6 . or upon the need for the appropriation being no longer existent. The three instances listed in the GAAs’ aforequoted definition were a sure indication that savings could be generated only upon the purpose of the appropriation being fulfilled. In other words. activity or purpose for which the appropriation is authorized. viz: Savings refer to portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance which are: (i) still available after the completion or final discontinuance or abandonment of the work. The definition of "savings" in the GAAs. (ii) from appropriations balances arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay. programs and services approved in this Act at a lesser cost. an appropriation for must first be determined to be deficient before it could be augmented from savings. 2012 and 2013." The term "augment" means to enlarge or increase in size. and (iii) from appropriations balances realized from the implementation of measures resulting in improved systems and efficiencies and thus enabled agencies to meet and deliver the required or planned targets. Anjo David . (3) The purpose of the transfer is to augment an item in the general appropriations law for their respective offices. particularly for 2011. or degree. reflected this interpretation and made it operational. amount. . The third requisite for a valid transfer of funds is that the purpose of the transfer should be "to augment an item in the general appropriations law for the respective offices. 2015 BAR EXAM PRE-WEEK NOTES IN POLITICAL LAW Atty.