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Preliminary Examination For Constitutional Law 1 – E.H.


Memory Aid for Constitutional Law I

Constitutional Law Unwritten Constitution
 The study of the maintenance of the proper - Consists of rules which have not been integrated
balance between authority as represented by into a single, concrete for but are scattered in
the three inherent powers of the State and various sources such as statutes, judicial decisions,
liberty as guaranteed by the Bill of Rights customs and traditions and common law principles.
Conventional Constitution
Political Law - An enacted constitution, formally struck off at a
 It is the branch of public law which deals with the definite time and place following a conscious or
organization and obligations of the various deliberate effort taken by a constituent body or
instrumental organs of the state and defines the ruler.
relationship of the state and the inhabitants of its Cumulative Constitution
territory. - The result of political evolution, not inaugurated
at any specific time but changing by accretion
THREE INHERENT POWERS OF THE STATE rather than by any systematic method.
1. Police Power Rigid Constitution
2. Power of Eminent Domain Pervasive - One that can be amended only by a formal and
3. Power of Taxation Power usually difficult process
Flexible Constitution
Philippine Constitution - One that can be changed by ordinary legislation
 According to Cooley:
“The body of rules and maxim in accordance with which “The Philippine Constitution is written, conventional and
the powers of sovereignty are habitually exercised” rigid”
 According to Justice Malcolm: Advantage
“The written instrument enacted by direct action of the - It has the capacity to withstand capricious changes of those
people by which the fundamental powers of the who are in power.
government are established, limited and defined, and by
which those powers are distributed among the several Disadvantage
departments for their safe and useful exercise for the - If there is a legitimate need, the Constitution will impede
benefit of the body politic” progress

“The Constitution cannot be amended by the exigent

passage of a law by Congress, because the Constitution
a. To prescribe the permanent framework of a is superior to any and all laws and laws passed by
system of government Congress is inferior to the Constitution”
b. To assign to the several departments their
c. To outline the basic principles upon which the
government or state must govern
- So it can provide for the organization of the
entire government and covers all persons and
“The Constitution merely recognizes and protects these
things within the territory of the State and so it
rights and does not bring them into existence”
could also embody the past, reflect the present
“No act shall be valid, however noble its intentions, if it
and to anticipate the future.
conflicts with the Constitution” - It must be comprehensive enough to provide for
every contingency.
Why do we have to study the Philippine BRIEF
Constitution - Provides for the basic principle leaving some
 To know how our delegates are acting whether details susceptible for the legislation as may be
or not they are acting in accordance to our enacted by Congress.
 The study of Constitution is mandatory pursuant - To avoid ambiguity in its provisions that may
to art.14, sec.3, par.1 of the 1987 Constitution result to confusion and divisiveness among the

Written Constitution Constitution of Liberty

- Its precepts are embodied in one document or  Bill of Rights: Sets forth the civil and political
set of documents. rights of the people

Preliminary Examination For Constitutional Law 1 – E.H. 401
Constitution of Government CONSTITUTION
 Refers to the part of the Constitution which Article 17, Sections 1,2,3 and 4 of the 1987 Constitution
provides for the framework for the organization
of the government, sets forth the powers of the Stages of Amendment or Revision
government: 1. Proposal
a. Article 6: Legislative Branch - It is at this stage that the proposed amendments
b. Article 7: Executive Branch or revisions are being formulated.
c. Article 8: Judiciary
d. Article 9: Various constitutional commission 2. Ratification
- It is at this stage the proposed amendment or
Constitution of Sovereignty
revision would be submitted to the people for
 Consists of the provisions pointing out the mode
approval or ratification.
or procedure in accordance with which formal
changes in the fundamental law may be brought PROPOSAL STAGE
Who can Propose Amendments or Revisions?
 ¾ votes of all its members
 The HOR and Senate voting separately
Verbal Legis
 It means that in interpreting the provisions in the Congress must transform itself as a Constituent
Constitution that the words used there in must be Assembly:
interpreted in their ordinary or literal sense except - The reason for this is because its primary task
where technical terms are used. now is to propose amendments or revisions to
the Constitution
Ratio Legis Et Anima - By transforming itself into a “ConAs”, Congress in
 If there are ambiguities in interpreting the provisions effect would propose amendments not in the
of the 1987 Constitution then we must delve into the exercise of its ordinary legislative function but it is
intent of the lawmakers behind its enactment. performing special powers to propose the change
(Francisco vs House of Representatives) in fundamental law of the land.
- Composed of members of Congress
Ut Magis Valiat Cuam Periat
 The provisions of the Constitution which deals with CONSTITUTIONAL CONVENTION
the same subject matter must be construed or  This body is composed of members elected
interpreted altogether so as to give meaning and by the people particularly for the
effect to the same provisions. Constitutional Convention
(Bayan vs Zamora)

Self-Sustaining/Executing Provisions Who can call a “Constitutional Convention”?

(Article 17, Sec. 3)
 The Constitution does not need any statutory
a. Congress
 The Constitution does need to enabling laws for it to
 A Constitutional Convention may called
be effective
by congress upon 2/3 of all its members;
AMENDMENT or REVISION the House of Representatives and
Senate voting separately.
 These are isolated changes in some provision/s b. Delegate to the People
 The congress may delegate the
in the Constitution and this can be done by
adding, subtracting or deleting a portion of the question of calling a “Constitutional
provision therein. Convention” to the people by a majority
of vote.
 Piecemeal change
Can Congress while calling a Constitutional Convention
Revision pass another law prescribing how “ConCon” works by
 This is the complete rewriting or overhaul of the majority vote?
Constitution. Yes, this is allowed:
 Also refers to isolated changes in the “According to the Supreme Court, any such later
Constitution that would drastically alter the basic enactment done by Congress by a simple majority vote
is valid since what is important is that the creation of the
principles underlining the Constitution.
Constitutional Convention is done in accordance with
what is prescribed in the 1987 Constitution furthermore,
the following enactments done by Congress are only
suppletory laws” (Imbong vs COMELEC)

Preliminary Examination For Constitutional Law 1 – E.H. 401
How do we regard the Constitutional Convention as RATIFICATION STAGE
Article 17, Section 4
compared to the other body of government?
Ratification must be held not earlier than 60 days
According to Frantz vs. Aurtry:
“It is independent and coequal with the other body of
and not later than 90 days.
government as along as it confines itself within the
sphere of its jurisdiction” When will the period start:
a. Congress or Constitutional Convention
When is the best time to call for a Constitutional  As of the date of approval for the proposed
Convention? amendment.
 For revision or complete overhaul of the
Constitution b. For People’s Initiative
 At the end of the day, the matter of calling a  The period will start from the day the
constitutional assembly is addressed to the proposed amendment is found sufficient in
sound discretion of congress whether or not the form or substance.
changes proposed are for revision or
amendment only. In this stage the proposed amendments or revision
would be voted upon by the people in a plebiscite
When is it proper to call for a Constituent Assembly? called for that purpose.
 For amendments and piece-meal changes in the
constitution May ratification be held simultaneously with a
general election?
Can congress call for a Constitutional Convention
and at the same time propose amendments to the Yes (Gonzales vs. COMELEC)
“According to the Supreme Court, in as much as the law
Constitution? or the Constitution mentions only of an election without
Yes, ruling of the Supreme Court: distinction as to what kind of election is that, then could
“While it is not practicable for congress to call a not make a distinction”
constitutional convention and at the same time propose
amendments to the constitutional body itself, there is “Rule as of now, that any ratification may be validly
nothing in law which would prevent the congress from done simultaneously with a general election”
doing both”
(Gonzales vs. COMELEC)
May there be a piece-meal submission of proposed
PEOPLE’S INITIATIVE amendments for ratification to the people?
(Article 17, Section 2 of the 1987 Constitution)
No (Tolentino vs. COMELEC)
Limitations of People’s Initiative: “There can never be a piece-meal submission of
amendments for ratification by the people”
The people initiative would only apply to
amendments and never to revisions. PROPOSAL vs. REFERENDUM
The petition to amend the constitution must be (Sanidad vs. COMELEC)
supported by at least 12% of the registered Referendum
voters of the Philippines provided that each and  This is the process of getting the consensus of the
public in a particular public issue.
every administrative district is represented by at
 Consultative in nature
least 3% of the registered voters therein.
The petition must be signed by the people Plebiscite
themselves and cannot be done on their behalf.  This is associated to the process of approving or
The proposed amendatory provision must be ratifying the proposed amendments or revision to the
incorporated on the petition itself. Constitution.
The system on people’s initiative cannot be  It has something to do with the approval or
exercised within 5 years following the adoption disapproval of amendments or revision to the
or ratification of the 1987 Constitution. Constitution for a particular law.
It cannot be availed of more than once every 5
years following thereafter. Can the Supreme Court or any Courts of Law review
There has to be a law to govern the system on the amendatory process or the observance thereof?
people’s initiative. Congress has to provide the Or is this issue a Political Question?
regulations on the implementation of this “The current rule is that courts of law particularly the
system. Supreme Court can now review the amendatory process
to determine whether or not the amendatory process as
The system of people’s initiative can only be enshrined in Article 17 of the Constitution is properly
used for amendments and never for revision. observed. It is no longer considered a political

Preliminary Examination For Constitutional Law 1 – E.H. 401
“The Supreme Court has jurisdiction to review the Judicial Review
amendatory process for amendments or revision
however the wisdom of the proposed amendments
- If the question deals with the legality of an act
remains as a political question” then this may not be considered a purely
political question and so this can reviewed by
POWER of JUDICIAL REVIEW courts of law.

Power of Judicial Review Who can exercise Judicial Review?

- Refers to the power of courts of law or courts of
justice to check the validity of legislative or Article 8, Section 5 , paragraph 2 (a):
executive acts in light to its conformity to the - The Supreme Court including the Lower Courts has
provisions of the Constitution. jurisdiction on all cases in which constitutionality or
validity of any treaty, international or executive
agreement, law, presidential decree, proclamation,
- According to Article 8, Section 1 (2) order, instruction, ordinance or regulation is in
“The power of courts of justice to settle actual question.
controversies involving rights which are legally  This means that lower courts can validly review
enforceable and demandable and to determine on the constitutionality of a law, however lower
whether or not there has been a grave abuse of court decisions may still be appealed at the
discretion amounting to lack or excess of Supreme Court.
jurisdiction of any branch or instrumentality of
the government” Appeals
- This is a continuation of the proceeding that
- According to Article 8, Section 1 (1) happened in the court below.
The courts of law can now review the acts of the
legislative or executive branch to determine Certiorari
whether or not these branches acted with grave - This is an independent civil action.
abuse of discretion amounting to lack or excess
of jurisdiction.
Quasi-Judicial Body or the Ombudsman
- Cannot validly review or tackle questions
regarding the constitutionality or validity of a law.
(Article 8, Section 4 (2), of the 1987 Constitution) (Serrano vs. Gallant Maritime)
 Vests upon the Supreme Court the power to
decide all cases involving the constitutionality DECLARATORY RELIEF
of a treaty, international or executive (Pursuant to Section 3, Rule 63, of the 1997 Rules of Civil Procedure)
agreement or law which must be decided by
the Supreme Court En Banc including the Notice must be sent to the Office of the Solicitor General
(OSG) if what is involved is a question regarding the validity
constitutionality application and operation of or invalidity of a law.
presidential decrees, proclamation, orders,  It is the Office of the Solicitor General which
ordinances, instructions and other would defend the interest of the state since they
regulations. are ones entrusted to act as the counsel for the
The Supreme Court is not superior to other branches of the
government since it is only exercising its duty as mandated
 Must be filed only at Regional Trial Court, this
by the provisions of the Constitution. This is considered an cannot be filed directly to the Supreme Court of
indication of the supremacy of the Constitution. Court of Appeals

JUDICIAL REVIEW vs. POLITICAL QUESTION If questioning the constitutionality of National

Political Question - There should be a notice to the OSG
 Those questions which under the Constitution,
are to be decided by the people in their If questioning the constitutionality of Local or
sovereign capacity, or in regard to which full Provincial, Municipal or City Ordinance
discretionary authority has been delegated to - There should be a notice sent to the
the legislature or executive branch of provincial, municipal or city attorney so they
government. can be notified of the petition and they can
 It is concerned with issues dependent upon the participate in the proceedings.
wisdom, not the legality of a particular measure.
(Tañada vs. Cuenco)
- If the question pertains to the wisdom of an act
- If it is a purely political question then it is
beyond the arbiter of judicial review
Preliminary Examination For Constitutional Law 1 – E.H. 401
FUNCTIONS of POWER OF JUDICIAL REVIEW General Rule: In any case that is moot and academic
should be dismissed outright.
1. Checking Function
- To check the validity of the executive or Exceptions:
legislative acts in light with the 1987 1. Grave and culpable violation of the Constitution.
Constitution. (Osmeña vs. COMELEC) 2. Paramount Public Interest
3. If there is a need for formulation of controlling
2. Legitimating/ Legitimizing Function doctrines for the guidance of the bench and the bar.
- The determination of whether the particular 4. Capable of repetition yet evading review.
agency or department concerned has stayed 5. Issue is ripe for adjudication.
within its own sphere of authority observing the
constitutional limitations projected for actions Proper Party
within such sphere, or whether it has trespassed
into the zone of immunity or privacy guaranteed a. Citizen Suit
to individuals by the Constitution. - Petitioner assailing the citizen suit must have
incurred injury directly caused by the questioned
3. Symbolic Function law.
- To enunciate or to promulgate sound doctrine to
guide the bench and the bar. b. Taxpayer Suit
- The petitioner must be able to establish that the
Can courts of law automatically exercise Judicial questioned “act” involves illegal disbursement of
Review? public funds and that the illegal disbursement of
- No, since courts of law including the Supreme public funds is done in connection with the
Court is considered passive instruments, in that taxing or spending power of Congress.
they only function when their jurisdiction is
invoked. Otherwise, even if the act assailed of involves the illegal
disbursement of public funds but there is no showing that it
- Any courts of law cannot exercise its power of
is directly connected with the taxing or spending power of
Judicial Review without being invoked by the congress then the action may be dismissed since it is not a
proper property. proper action of taxpayer suit.
(Kilosbayan vs. Morato)
c. Legislator Suit
There must be an actual case or controversy. - In this action, it is necessary that the member of
congress must show that the questioned “act”
The question of constitutionality must be raised by
infringes his legal right and prerogatives as a
the proper property.
The Constitutional question must be raised at the (Francisco vs. HOR; Senate vs. Office of Executive
earliest possible opportunity. Secretary)
The decision of the Constitutional question must be
decisive or the very “lis mota” of the case. d. Voter Suit
-----¤¤¤----- - The petitioner assailing this legal standing must
Actual Case or Controversy be able to establish that the questioned “act” or
- This means that there should be an actual conflict or law infringes his right as a voter.
(Loida Nicolas-Lewis, et. al vs. COMELEC)
claims or conflicting claims of authority susceptible
to adjudication before the courts of law can validly Exceptions:
exercise its power of judicial review. 1. The issue if the Transcendental Importance
- Any hypothetical question will not satisfy the - The issue is accompanied with paramount or
requirement. important public interest.
Declaratory Relief 2. A matter of Public Right
(Rule 63 of the 1997 of Rules of Civil Procedure)
- If there is a contract, a will, a deed, a written
instrument, a law or ordinance for that matter anybody 3. The questioned act is instituted by way of Facial
may file a petition to have his right declared. Challenge
- Petitions for declaratory relief are not hypothetical - Assailing the questioned statute as being vague
questions since the contract, will, deed, written or cannot be easily understood and that ordinary
instrument, law or ordinance already exists, what the man will be confused as to the legal meaning of
petitioner only wants is that his right be acknowledge
the statute.
in the particular subject matter.
- Assailing that the questioned statute has a
scope which is too broad such that the law
would appear as valid to the petitioner but there
Preliminary Examination For Constitutional Law 1 – E.H. 401
is a good chance that it would be invalid if The Issue must be determinative or the very “Lis Mota” of
assailed by another person. the case
- This can only be instituted if the questioned law As a Rule:
deals with freedom of speech or freedom of Out of respect to the other branches of government,
expression. courts of law should refrain or avoid from ruling on
the issue of validity or invalidity of a law.
Can the government question the validity of its own
Yes (People vs. Vera)
“The government has the legal standing to questions its
Two Effects:
own laws, and this is only practical for the government
to see to it that the laws enacted are valid since the a. The Orthodox View
government is considered the protector of the people - The law is declared void in ab initio
under the Doctrine of Parens Patriae”
Article 7 of the Civil Code:
Does IBP have a legal standing in questioning a law An unconstitutional act is not a law; it confers no
since it is an organization who is supposedly for the rights; it imposes no duties; it affords no
upholding of the rule of law? protection; it creates no office; it is inoperative
No (IBP vs. Zamora) as if it has not been passed at all.
“The Supreme Court ruled that IBP has no legal
standing to bring the petition on the pretext that it is an
b. Operative Fact Doctrine
organization tasked to uphold the rule of law without
establishing that any of its members suffered an injury - The effect of the law prior to its invalidation must be
directly caused by the questioned “act” or law” respected.

What happens if the petition is assailed by a person Which doctrine should we apply in a given case?
without a legal standing?
It is dismissed outright. Orthodox View
In the case of In Re: Saturnino Bermudez  This view is applied when the validity of a
- The petition was dismissed outright since law is questioned immediately after it
Bermudez does not have any legal became effective.
standing on the case for he is not claiming
the position of the president which is the Operative Fact Doctrine
one he is questioning about.  This view will govern when the law is
questioned of its validity only after some
Raised at Earliest Opportunity at a Forum with Jurisdiction
time or years after its passage or enactment,
 Any question dealing with the validity or invalidity of taking into consideration that the law has
a law must be raised in the initiatory pleading as already taken effect which must be
either a complaint or a petition; otherwise the respected.
question cannot be concerned anymore at the
succeeding trial or by appeal.
 It must also be raised in a forum which has the Requisites:
competence to rule the validity or invalidity of a law. This will happen if there is a legislative intent to
retain the valid provisions of the law and this is
Exceptions: found on the “Separability Clause” found on the law
1. Criminal Proceeding: itself.
- The question dealing with the validity or
invalidity of law may be raised at the sound The remaining provisions must be able to
discretion of the judge. independently stand on their own.
2. Civil Proceeding: Separability Clause
- Any question dealing with the validity or - This provides that if any of the provision a law is
invalidity of a law may be raised at any stage of declared invalid then the other remaining parts
the proceeding if such issue is crucial or thereof shall remain valid.
determinative of the case.
If the questioned provision is the heart and soul of
3. Any issue regarding the jurisdiction of the tribunal
the law or it is the be-all-and-end-all of a law then if it
may also be raised at any time during the trial
except after final judgment the petitioner is already is declared unconstitutional, the result will be to
barred due to the rule of estoppel. invalidate the whole law.