BTX Notes in Constitutional Law 1 Midterms

July 19, 2017 | Author: ChristianneNoelleDeVera | Category: United States Constitution, Constitutional Amendment, Sovereignty, Sovereign Immunity, Constitution
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BTX San Beda College-Manila College of Law

BTX Notes in Constitutional Law 1 Bugayong Notes

GENERAL PRINCIPLES Q: What is the definition of Political Law? A: Political Law is that branch of public law which deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. (People vs. Perfecto) Q: What are the sources used in the study of Political Law? A: The main source is the 1987 Philippine Constitution. It also includes pertinent statutes, executive orders and decrees, judicial decisions, and current political events in which the purposes of the law are applied (or misapplied). It also includes the previous constitutions of the Philippines (1935 and 1973). It also includes the different organic (from the word “organ”, which refers to the bodies or parts of the government) laws of the Philippines that were in effect during the American occupation. It also includes the United States (US) Constitution and the decisions of the US Supreme Court because they are considered as extrinsic aids. These two (organic laws and US Supreme Court decisions) can be used in determining the meaning of some of the provisions of our Constitution that originated from the US Constitution. Q: What is the scope of Political Law? A: Constitutional Law I and II, Administrative Law, the Law of Public Officers, Election Law, and the Law on Municipal Corporations Q: What is the difference between Political Law and Constitutional Law (aside from the latter being a branch of Political law) A: Political Law deals with the organization and operations of the governmental organs of the State and defines the relations of the State with the inhabitants of its territory. On the other hand, Constitutional Law deals with the maintenance of the proper balance between authority as represented by the three (3) inherent powers of the State and liberty as guaranteed by the Bill of Rights. Q: What is public law? A: Public law is understood as dealing with matters affecting the state, the act of state agencies, and the protection of state interests. (e.g. Political Law, Criminal Law, Public International Law) BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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Q: What is private law? A: Private law deals with regulation of the conduct of private individuals in relation with one another. (e.g. Civil Law, Commercial Law) Q: What is the reason for the change in the title of Political Law to Constitutional Law 1? A: In Constitutional Law I, we are generally studying the three branches of the government. We study their powers, duties and responsibilities. If the title of this subject is still Political Law, then we must also study administrative law, local government, election laws and the bill of rights. These are covered by other subjects offered in a different semester or year level. Q: What is the nature of our Constitution? A: It is rigid because it can only be amended by strictly following the provisions of Article XVII. It is written because it is embodied in a single document. It is conventional because it is formally “struck off” at a definite time and place following a conscious effort taken by a constituent body. Q: What is the definition of the Constitution? A: It is the fundamental organic law of a State which contains the principles on which government is founded, and regulates the division and exercise of sovereign powers. (Justice Cooley) Q: What are the classes of Constitution? A: Cumulative and conventional; written and unwritten; rigid and flexible Q: Who changes a cumulative constitution? A: Legitimate authority/body Q: Where can you find the constitution if it is unwritten? A: Statutes, judicial decisions, commentaries, customs and traditions, common law principles Q: What is the classification of the Philippine Constitution? A: Written, rigid, and conventional Q: When was the Philippine Constitution enacted? A: February 2, 1987 as pronounced by the Supreme Court in the case of De Leon vs. Esguerra. Q: What are the essential parts of a good constitution? A: constitution of liberty, constitution of government, constitution of sovereignty

BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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Q: Describe the three (3) parts of the Constitution. A: 1. Constitution of liberty – provides for the civil and political rights of citizens and the limitations on the powers of government to secure those rights. 2. Constitution of government – provides for the organization of government, and enumerates the powers of the same. 3. Constitution of sovereignty – provides the manner for changing the fundamental law and making amendments thereto.

Q: What is sovereignty? A: It is the supreme and uncontrollable power inherent in a State by which that State is governed. (Garner, Political Science and Government) Juristically speaking, it is the supreme, uncontrollable power, the jures summi imperri, the absolute right to govern. It is the supreme will of the State, the power to make laws and enforce them by all means of coercion it cares to employ. (Gonzales, Philippine Political Law) Q: What are the four (4) kinds of sovereignty? A: 1. Legal sovereignty – is the authority by which a state has the power to issue final commands. (Gilebrist, Principles of Political Science) 2. Political sovereignty – the sum total of all the influences in a State which lie behind the law; roughly defined as the power of the people; the sovereignty of the electorate, or in its general sense, the sovereignty of the whole body politic. (Gonzales, Philippine Political Law) 3. Internal sovereignty – management of our domestic affairs; the supremacy of a person or body of persons in the State over the individuals or association of individuals within the area of its jurisdiction. (Gonzales, Philippine Political Law) 4. External sovereignty – freedom from external control. It is the supremacy of the State as against all foreign wills. (Gonzales, Philippine Political Law) Q: Who is the legal sovereign? A: Government and not merely the Congress. After the Congress enacts the law, it will be enforced by the Executive branch. The law will then be applied by the Judiciary to settle actual controversies. Without the Executive and Judiciary, laws promulgated by the Congress are useless. Q: Who is the political sovereign? A: People Q: Is there really a difference between the two? BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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A: None, it is like a fine diamond with different sides. One side is the legal sovereign and the other side is the people representing the political sovereign. (Bugayong) Q: What Article states the provisions on sovereignty? A: Article 17: Amendments or Revisions Q: What is an amendment? A: It refers to isolated or piecemeal change in the Constitution. Q: What is a revision? A: It is a revamp or rewriting of the whole Constitution. Q: What is the difference between amendment and revision? A: In the case of Lambino vs. COMELEC, it was discussed that revision broadly implies a change that alters a basic principle in the Constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the Constitution, as when the change affects substantial provisions of the Constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the Constitution, while amendment generally affects only the specific provision being amended. Q: How can people amend/revise the Constitution? A: Through proposal and ratification Q: How do you propose amendments? A: 1. By the Congress, upon a vote of three-fourths (3/4) of all its members/through the Congress acting as a constituent assembly; or 2. By a constitutional convention; or 3. Direct proposal by the people through initiative/people’s initiative Q: How do you propose revisions? A: 1. By the Congress, upon a vote of three-fourths (3/4) of all its members/through the Congress acting as a constituent assembly; or 2. By a constitutional convention which is called by two-thirds (2/3) vote of all the members of the Congress, or by a majority vote of all the members of the Congress in case the question of calling such a convention is submitted to the electorate BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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Q: What differentiates the present Constitution from the previous Constitutions? A: The present Constitution (The 1987 Constitution of the Republic of the Philippines) includes a provision on people’s initiative in Article XVII (Amendments or Revisions) thereof as an attribute of constitution of sovereignty. Constitution of sovereignty is found in Art XVII of the Constitution. Q: If there is a two-word change in the Constitution, is it an amendment or a revision? A: It depends if the entirety of the Constitution will be changed. (e.g. The entirety of the Constitution will be changed even if there is only a two-word change in cases of amendment of provisions about system of government/structure of government) Q: Why is constituent assembly called as such? A: The word “constituent” means citizens. The power to amend the Constitution is not inherent in the Congress. It is inherent in the people. However, by express provision of the Constitution, the people (who, in the first place, made the Constitution) gave the Congress the power to amend. Hence, the Congress is not acting in its ordinary capacity to legislate, but as people themselves. Q: Differentiate constituent assembly from constitutional convention. A: As to its members, constituent assembly is composed of the Congress while constitutional convention is composed of delegates voted by the people from each legislative district through an election called for that purpose. Q: Where would the delegates of a constitutional convention come from? A: The delegates would come from each legislative district. Who has the right/power amendments/revisions? A: Congress Q:

to

choose

what

mode

to

use

in

proposing

Q: What are the requirements in people’s initiative? A: 1. Petition 2. Full text of the proposed amendments which must be embodied in number 1 or at least attached thereto and such fact of attachment is stated in the petition 3. Twelve percent (12%) of total registered voters; three percent (3%) of registered voters in each representative district/legislative district * Authentication of the signatures by the Commission on Elections (COMELEC) 4. Amendment, not revision 5. Once every five (5) years BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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6. Enabling law from the Congress 7. Must contain only one topic (Hodgepodge or log-rolling is not allowed. The proposed amendment must embrace only one topic because if it contains two topics, the people will be forced to accept two changes even if they do not want the other.) Q: Where do you put the full text of all the changes? A: The proposed amendments in full text shall be embodied in the petition itself/attached to the petition.

CONCEPT OF STATE Q: What is a State? A: It is a community of persons, more or less numerous, permanently occupying a definite territory, independent of external control, and possessing a government to which a great body of inhabitants render habitual obedience. Q: What are the elements of a State? A: People, territory, government, sovereignty (Note: Other legal scholars opined that there are two other elements. These are recognition by the international community/other states and sufficient degree of civilization) Q: Is state the same as nation? A: No. The state is a political/legal concept while the nation is an ethnic/racial concept. The state as a political/legal concept means that the state is an abstract, ideal person, existing only in contemplation of law. It is composed of its elements, to wit, people, territory, government, and sovereignty. The nation as an ethnic/racial concept means that the people are bound by common social origin, language, customs and traditions (e.g. Filipinos as coming from the Malay race). Q: What do you mean by people? A: It refers to the inhabitants of the State or the mass of population living within the State. Without people, there can be no functionaries to govern and no subjects to be governed. (Albano, Philippine Government and Constitution) Q: How many people are needed to form a State? A: There is no requirement as to the number of people that should compose a State. They must be numerous enough to be self-sufficing and to defend themselves and small enough to be easily administered and sustained. *Reputedly, the smallest State in point of population is the Vatican. Its estimated five hundred (500) citizens, mainly clerics and some Swiss guards, are ruled by the Pope. The island Republic BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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of Nauru has a total population of only nine thousand (9,000). China is the largest state in point placed at more than one billion (1,000,000,000). Q: Can you have a State where the people are all men or all women? A: No. There would be no procreation, thus, the State would not be able to sustain or survive. The State should be able to maintain its existence, thus, continuity of the race is a must. Q: What do you mean by territory? A: It is the fixed portion of the earth inhabited by the people of the State. Q: Would a classroom be sufficient to be considered as territory? A: No. The territory should be able to provide the needs of the population. There are no natural resources in the classroom. There is no source of food in the classroom. Thus, the classroom cannot be considered as territory. *The territory should be neither too big as to be difficult to administer and defend nor too small as to be unable to provide for the needs of the population such as food and natural resources. Q: Can a ship sailing on the sea qualify as a territory? A: No. It is not a fixed portion of the earth. Q: Without Article I, can we claim that we have a territory? What is the purpose of Article I? A: Yes. It is not the legal basis of our territory because if it is, then without Article I, we will not have a territory, therefore, we will not be a State. Our territory existed since time immemorial. Q: Can we invoke Article I against other States? A: No because the constitution is a municipal law (enforceable or binding only within the territorial limits of the sovereignty promulgating the constitution). It does not bind other states. But if it is further supported by an international treaty or a principle of international law, then it can bind other States. Q: What are the components of territory? A: 1. Terrestrial Domain – composed of the land 2. Maritime Domain – maritime belt/sea belt/marginal belt Fluvial Domain – inland waters such as rivers, lakes, lagoons, canals 3. Aerial Domain – the air space above the land and waters, excluding outerspace

BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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* Sovereignty over airspace extends only until where outerspace begins. (50-100 miles from the earth) Q: What do you mean by archipelago? A: It is a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such. Simply stated, it is a body of water studded or surrounded by islands. (Bernas) Q: Why is the Philippines an archipelago? A: It is an archipelago because it is located on a body of water surrounded by seven thousand one hundred seven (7,107) islands. Q: What is the Archipelagic Doctrine? A: It is a principle which considers the group of islands as one integrated unit. For this purpose, it requires that straight baselines be drawn by connecting the appropriate points of the outermost islands to encircle the islands within the archipelago. We consider all the waters enclosed by the straight baselines as internal waters. Q: Is there a part of Article I which confirms that the Philippines adopts the archipelagic doctrine? A: Yes. It is found in the last sentence of Article I which states that “The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.” Q: How do you describe the maritime domain of the Philippines? A: It consists of its territorial sea, the sea bed, the subsoil, the insular shelves, and other submarine areas. Q: Where do you reckon the twelve (12) nautical miles? A: It is reckoned from the baseline, the lowest water mark which will then become our maritime domain. Q: How do you make the 7,107 islands into one integrated unit? A: Use the straight baseline method. Q: What are the two (2) kinds of baseline method? BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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A: 1. Normal baseline method 2. Straight baseline method Q: What is the difference between normal baseline method and straight baseline method? A: Normal baseline method follows the sinuses and curvatures of the islands while straight baseline method determines the outermost points of the outermost islands then connects them. Q: Why does the Philippines adopt the straight baseline method? A: If the Philippines does not adopt the straight baseline method, then the internal waters will not be covered as part of our territory. Q: What is the purpose of the straight baseline method? A: Primarily, to protect our territorial security and integrity; incidentally, to enlarge or expand our territorial sea. The main purpose is to protect our territorial security and integrity because if we use the normal baseline method, there would be pocket seas (areas or high seas that would not be part of our territory because of the twelve nautical miles rule).

Q: Why do you call the three (3) nautical miles the canon-shot rule? A: That time, the rule was you can only own what you can defend. In the eighteenth (18th) century, the strongest weapon was the canon, the effective range of which was only three (3) nautical miles. Q: What is government? A: It is the agency or instrumentality through which the will of the State is formulated, expressed, and realized. Q: What you mean by the government is the agency of the State? A: Since the State is a legal concept, (it is an abstract or ideal person existing only in contemplation of law), it can only act through the government which is its agent or representative. Q: What is the difference between State and government? A: Both are legal concepts. But the State can only act through the government. Q: What is the difference between government and administration? BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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A: Government is a legal concept. It can only act through the administration that runs the government for the time being. Q: What do you mean by the State as a legal concept? A: You cannot see the State. It is an ideal, invisible, intangible, immutable, abstract person, existing only in contemplation of law. You can only see it through its four (4) elements. Q: What are the functions of the government? A: 1. Constituent functions 2. Ministrant functions Q: What is the difference between constituent functions and ministrant functions? A: Constituent functions are the basic functions of the government and are thus compulsory while ministrant functions are those undertaken to advance the general interests of society and are thus optional. Q: What are the other names for constituent and ministrant? A: Constituent – governmental, core Ministrant – proprietary Q: Is the difference between governmental and proprietary functions still relevant? A: No. In PVTA vs.CIR, the Supreme Court held that such distinction has been blurred because of the repudiation of the laissez faire policy in the Constitution. The government, under the Constitution, is under an obligation to promote social justice (Sec 10, Art II)

Q: What is the laissez faire policy? A: “Let alone”, free trade/free enterprise/free market society Q: Does it mean that there would be no instance where governmental functions need to be distinguished? A: No. There is - Doctrine of State Immunity. Q: What is the Doctrine of Parens Patriae? A: It means parent of the country. The State acts as the guardian of persons under disabilities. Q: What are the kinds of government? A: 1. De jure government 2. De facto government BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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Q: What is a de jure government? A: It is a government of right. It has rightful title but no power or control, either because this has been withdrawn from it or because it has not yet actually entered into the exercise thereof. It is a government established according to the Constitution of the State, and lawfully entitled to recognition and supremacy but is actually ousted from power or control. It is the true and lawful government. (e.g. Government of the Philippines) Q: What is a de facto government? A: It is a government of fact. It actually exercises power or control but without legal title. It is that government which unlawfully gets the possession and control of the rightful legal government and maintains itself there by force and arms against the will of the rightful legal government, and claims to exercise the powers thereof. Q: What are the three (3) kinds of de facto government? A: 1. By violence/force/the voice of the majority (e.g. Government of England under the Commonwealth, first by Parliament and later by Cromwell as Protector) 2. By insurrection (*insurrection – rebellion on a smaller scale) (e.g. Government of the Southern Confederacy in revolt against the Union during the war of secession in the United States) 3. By military forces/war/government of paramount force (e.g. Castine in Maine, which was reduced to a British possession in the war of 1812; Tampico, Mexico, occupied during the war with Mexico by the troops of the United States; Second Republic of the Philippines established by the Japanese belligerent during the occupation of the Philippines in World War II) Q: What kind of government is the Cory Aquino government? A: It is neither a de jure nor a de facto government. It is not a de jure government because it exercises power or control just like a de facto government. However, it is not a de facto government because it has legal title just like a de jure government. (Bugayong) Q: Was there a time that we had a de jure government and a de facto government? A: Yes, during the time of Japanese Occupation. The Japanese belligerent occupants established a de facto government (of the third kind). The Commonwealth of the Philippines, under the presidency of Roxas, is the de jure government. Q: What is the effect of belligerent occupation on: (1) Sovereignty; (2) Laws; and (3) Judicial Decisions, of the occupied territory? A: (1) Sovereignty – Sovereignty itself is not suspended, only the exercise of sovereignty. Sovereignty cannot be suspended because it is permanent, exclusive, comprehensive, absolute, indivisible, inalienable, and imprescriptible (Laurel vs. Misa). BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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(2) Laws – Political laws are merely suspended, subject to revival under the jus postliminium upon the end of the occupation. Non-political laws are deemed continued unless changed by the belligerent occupant since they are intended to govern the relations of individuals as among themselves and are not generally affected by changes in regimes or rulers. However, the rule suspending political laws affects only the civilian inhabitants of the occupied territory and is not intended to bind the enemies in arms. It also does not apply to the law on treason although decidedly political in character. This rule only covers the civilian inhabitants of the occupied territory. It does not bind enemies at war. (Ruffy vs Chief of Staff) (3) Judicial Decisions –They are valid during the occupation and even beyond except those of a political complexion, which are automatically annulled upon the restoration of the legitimate authority (Co Kim Chan vs. Valdez Teh). Thus, a person convicted of treason against the Japanese Imperial Forces was, after the occupation, entitled to be released on the ground that the sentence imposed on him for his political offense had ceased to be valid (Peralta vs. Director of Prisons). But if the conviction was for a non-political offense like, say, defamation, the sentence would not be affected by the termination of the occupation. Q: Why are we a republic? A: It is because of the political sovereignty of the people as provided in Article II, Section 1 of the Constitution. Article II, Section 1 provides: “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.” Q: What is the Doctrine of Jus Postliminium? A: It is used for de facto government of the third kind – belligerent occupation or government of paramount force. At the end of the belligerent occupation, when the occupant is ousted from the territory, the political laws which had been suspended during the occupation shall automatically become effective again. Q: Is there an instance of change of sovereignty? When? A: Spanish government ceded the Philippines to the American government. Q: What are the effects of change of sovereignty? BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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A: Where there is a change of sovereignty, the political laws of the former sovereign are not merely suspended but abrogated. As they regulate the relations between the ruler and the ruled, these laws fall to the ground ipso facto unless they are retained or re-enacted by positive act of the new sovereign. Non-political laws, by contrast, continue in operation, for the reason also that they regulate private relations only, unless they are changed by the new sovereign or are contrary to its institutions. (Read the cases of People vs. Perfecto and Macariola vs. Asuncion)

STATE IMMUNITY Q: What is the Doctrine of State Immunity? A: It means that “the State may not be sued without its consent.” This provision reflects nothing less than a recognition of the sovereign character of the State and an express affirmation of the unwritten rule insulating it from the jurisdiction of the courts of justice. It is based on the very essence of sovereignty. Q: What is the logical reason for the State immunity? A: There can be no legal right against the authority which makes the law on which the right depends. (Justice Holmes) Q: What is the practical reason for the State immunity? A: The demands and inconveniences of litigation will divert the time and resources of the State from the more pressing matters demanding its attention, to the prejudice of the public welfare. Otherwise stated, funds for projects or other legitimate purposes will be used for cases filed against the State. The practical reason is the service that will be lost if the money will be diverted. Q: Is the Doctrine of State Immunity applicable to other States in local jurisdiction? Why or why not? A: Yes. Par in parem non habet imperium. An equal has no power over an equal. All States as sovereign equals cannot assert jurisdiction over one another. The United States of America cannot be sued here in the Philippines without its consent. (see USA vs. Guinto)

BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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Q: How do you know if a suit is against the State? A: 1) X vs. Republic of the Philippines (RP) – suit against the State *What will the judge do if this is the case? – The judge will find out if the State gave its consent. If not, the case will be dismissed. * But often, what lawyers do is that they file the case against the government officers so that it will not be dismissed outright. 2) X vs. Public Officer (e.g. Secretary of Department of Justice) or X vs. Government Agency (e.g. Department of Justice) *If you do this, it is not obvious that the suit is against the State. Then how do you know that the suit is against the State? Test: If X wins, will it require the government to do an affirmative act? Affirmative act may be in the form of: money, payment of damages, fund, appropriation. Q: What are the qualifications for a suit against public officers? A: As enumerated in Sanders vs. Veridiano, there are exceptions in which a public officer may be sued without prior consent of the State, to wit: (1) to compel him to do an act required by law; (2) to restrain him from enforcing an act claimed to be unconstitutional; (3) to compel the payment of damages  refund; (4) to secure a judgment that the officer impleaded may satisfy by himself without the State having to do a positive act to assist him; and (5) where the government itself has violated its own laws (e.g. recovery of property unjustly taken) General Rule/Test: If it requires an affirmative act of the State, the case will be dismissed. Exception: If there would be an injustice as enumerated above, the case will not be dismissed. Rationale: The Doctrine of State Immunity cannot be used to perpetrate an injustice. Q: What is a charter? A: In a corporation, it is the Articles of Incorporation. BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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In an incorporated government agency, it is a special law creating a government-owned orcontrolled corporation

Incorporated Agency - Has a charter, therefore, has a juridical or separate personality - Examples: National Power Corporation (NPC); University of the Philippines (UP) Unincorporated Agency - Part of the entire government machinery - Lined agency - Example: DOJ and all other departments under the Executive branch - Not chartered, but it does not mean that it is not created by law. It could only mean that it is not stated whether or not it can sue and be sued. - Has no separate/juridical personality - Rule: Distinguish whether function is governmental or proprietary Governmental – suit against the State Proprietary – not suit against the State Suit against the State: - Determine whether the agency is incorporated or unincorporated. - If incorporated, determine whether primary function is governmental or proprietary. - If governmental, it is a suit against the State. Consent must be determined. - If proprietary, it is not a suit against the State. Case should not be dismissed. X vs. NPC Is this a suit against the State? Look at the charter  law creating/establishing the agency If the charter provides that it can sue and be sued, then it is not a suit against the State. The Articles of Incorporation is what gives the corporation or agency a juridical personality. This is what makes it a legal concept. *Not all agencies created by law are chartered. *Generally, a charter provides that the agency can sue and be sued. Why is it that generally, if it is a chartered agency, it is not a suit against the State? -

Not performing governmental functions

BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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-

Has juridical or separate personality

The charter explicitly provides whether the agency can be sued or not. If the charter does not provide for the agency’s suability, then it cannot be qualified as incorporated. If it is chartered or incorporated, then it is not a suit against the State.

Q: What do you mean by consent? A: It means approval. Q: Why do you call the consent a waiver? A: It is because the State abandons or relinquishes its right to be immune from suit. It waives its immunity. Q: How does the State give its consent? A: 1. Express – general law one which applies to the whole State and operates throughout the State alike upon all the people or all of a class; applies to all; no particular person is mentioned as to who can avail of the law. – special law  one which applies to a particular community, individual or thing; applies to a specific person. (e.g. charter – created for the particular government agency, special to such government agency) 2. Implied (a) State itself commences litigation or files a suit. (b) State enters into a contract in its proprietary capacity. (c) State is an interpleader/intervenor in a case – in which case it applies only if the State intervenes not for the purpose of invoking its immunity Q: Is suability the same as liability? Why or why not? A: No. Suability depends on the consent of the State to be sued; liability on the applicable law and the established facts. The circumstance that a State is suable does not necessarily mean that it is liable. On the other hand, it can never be held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the State has allowed itself to be sued. When the State waives its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable. The State, in many cases, may be suable but not liable. BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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Q: If the State is liable, does it mean that you can already execute the judgment? A: No. As held in Republic vs. Villasor, every disbursement of public funds shall be covered by a corresponding appropriation passed by the Legislature. A judgment against the State, in a case where it consents to be sued, simply implies that the Legislature will recognize the judgment as final and make provisions for its satisfaction. Garnishment General Rule: Whether the money is deposited by way of general or special deposit, it remains as government funds and may not be subject to garnishment. Exception: When a law or an ordinance has been enacted appropriating a specific amount to pay a valid government obligation, then the money can be garnished.

STATE POLICY Q: What is the State’s policy on the family? A: The first part of Article II, Section 12 states that “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.” It means that the State is enjoined to strengthen the family or is prohibited from adopting measures which can impair the solidarity of the Filipino family. Calling the family a “basic” social institution is an assertion that the family is anterior to the State and is not a creature of the State. The categorization of the family as “autonomous” is meant to protect the family against instrumentalization by the State. Q: Considering the policy on the family, do you think the Congress can enact a law on divorce? A: Yes. The constitutional provisions on marriage do not imply that the Legislature cannot enact a law allowing absolute divorce. While it is fundamental that marriage must be protected, it is likewise to be acknowledged that there may be certain cases where the parties might have undergone a marriage ceremony to bind themselves together but, subsequently, no functional marital life would exist. Hence, there is no marriage to preserve at all. The Legislature has the plenary power to decide what sort of situations allowing absolute divorce may be recognized within the limits allowed by the Constitution. (Sta. Maria) Q: What is the prime duty of the government? A: To serve and protect the people. BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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Q: What is the policy of the State with respect to war? Is it contradictory to Section 4 of Article II which states that “The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service.”? A: Section 2 of Article II states that “The Philippines renounces war as an instrument of national policy xxx.” No. What is renounced by the Philippines through the Constitution is aggressive war, not defensive war, because of its membership in the United Nations (UN) whose charter renounces war as an instrument of national policy of its member-States. As a signatory to the UN Charter, the Philippines adheres to Article 2 (4) of the UN Charter which states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” It does not renounce defensive war because the Government is duty-bound to protect the people, as provided in Section 4 of Article II. The power to wage a defensive war is the very essence of sovereignty. The Philippines is also a signatory to the Kellog-Briand Pact, a treaty renouncing war as an instrument of national policy of the signatory States. Q: Can President Aquino write you a letter ordering you to report to the military headquarters to render military service? Can you refuse? A: Yes, and I cannot refuse. As held in the case of People vs. Lagman, the duty of the Government to defend the State cannot be performed except through an army. To leave the organization of an army to the will of the citizens would be to make this duty of the Government excusable should there be no sufficient men who volunteer to enlist therein. Q: What is the difference between aggressive war and defensive war? A: In aggressive war, it is the State which initiates the war (the Philippines as an active subject) as opposed to defensive war in which it is another foreign country which initiates the war and the State only acts to defend itself (the Philippines as a passive subject). Q: Without Section 2, do we still renounce war? A: Yes. Even without Section 2, our policy on renunciation of war can still be traced from our membership in the United Nations whose charter also renounces war as an instrument of national policy of its member-States. BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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Q: What is the incorporation clause? A: It can be found in Section 2 which states that “The Philippines...adopts the generally accepted principles of international law as part of the law of the land...” This provision makes the Philippines one of the States which makes a specific declaration that international law has the force also of domestic law. International law therefore can be used by Philippine courts to settle domestic disputes in much the same way that they would use the Civil Code or the Penal Code and other laws passed by the Congress. Q: Under the incorporation clause, without a law stating that the international law is incorporated, the law is not incorporated in the land. Is this right? A: No. Under the incorporation clause, incorporation is automatic. Q: Can Section 4 apply even without war? A: Yes. The citizens can be compelled to render personal, military, or civil service in times of peace in preparation for a war which may ensue in the future. Q: When is civilian authority supreme over the military? A: Section 3 explicitly provides that “Civilian authority is, at all times, supreme over the military. Q: What is the manifestation of civilian supremacy? A: The external manifestation that civilian authority is supreme over the military is the fact that the President, a civilian, is the Commander-in-Chief of the Armed Forces of the Philippines. (Sec. 18, Art. VII, 1987 Constitution) Q: What is the principle of equality of women and men? A: Section 14 provides that “The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.” Q: What is the fundamental equality between women and men? A: Since there can be no absolute equality between women and men because of obvious biological differences, fundamental equality espouses that women and women, as much as practicable, should be accorded the same rights and treatment so that there would be “fundamental equality before the law”. Filipino women have proven their worth and heroism in various aspects of the country. They have led battles, led the country in the executive, legislative and judiciary. They have not only become partners in nation-building; they have become leaders as well. (Albano, Philippine Government and Constitution) BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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Q: What is the policy on social justice? A: Section 10 provides that “The State shall promote social justice in all phases of national development.” Social justice does not mean absolute equality between the rich and the poor. It only means that the underprivileged must be protected. This is in consonance with the words of former President Ramon Magsaysay, “Those who have less in life should have more in law.” Social justice cannot be invoked to perpetrate injustice. It cannot be invoked to trample upon the rights of property owners, who, under the Constitution and laws, are entitled to protection. It is not meant or intended to take away a right from one and give it to another not entitled thereto simply because he is poor. It cannot nullify the law on obligations and contracts. Q: What do you mean by social justice? A: As beautifully defined by Justice Laurel in Calalang vs. Williams, “Social justice is neither communism, nor despotism, nor atomism, nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the component elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex.” Q: What is the policy on the private sector? A: Section 20 provides that “The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments.” This provision should be read together with Section 19 stating that “The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.” The Constitution recognizes the private sector as a catalyst in the development of the economy, since the resources of the government are not enough to develop the economy without sacrificing public service. The private sector through its investments employing a lot of people is a potent force in the advancement of the State. (Albano, Philippine Government and Constitution) Q: What is the policy of the State on women and children, especially with regard to the unborn? A: Section 12 provides that “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of the moral character shall receive the support of the Government.” Q: What is more important for the State, the life of the mother or the life of the unborn? A: Both. Section 12, in clear and unequivocal terms, explicitly states that “It shall equally protect the life of the mother and the life of the unborn from conception.” Q: What is the principle of the separation of Church and State? A: Section 6 provides that “The separation of Church and State shall be inviolable.” It means that on the one hand, the State is prohibited from interfering with purely ecclesiastical affairs and on the other hand, the Church is prohibited from meddling in purely secular affairs. But it does not mean that there is total or absolute separation. The better rule is symbiotic relations between the Church and State. (Albano, Philippine Government and Constitution) (see Aglipay vs. Ruiz) Q: Does it mean that the Church is not allowed to express its opinion regarding the affairs of the State and vice-versa? A: No. If the Church issues a statement on public and important issues concerning the State, it is not a violation of the separation of Church and State. It is a part of the exercise of the freedom of expression because it is in the open market of ideas that the aims of the State of promoting a peaceful, honest, safe, educated, humane and just society may be attained. The Church and State are partners in promoting the common good for the people. (Albano, Philippine Government and Constitution)

Q: What are the two (2) important aspects of the principle of separation of Church and State? A: (1) Non-establishment clause – “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof...” (Sec. 5, Art. III, 1987 Constitution) (2) Free exercise clause – “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.”

SEPARATION OF POWERS Q: What is separation? BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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A: Allocation/distribution of governmental powers Q: What is the true test? A: TRUE TEST: Whether or not the power in question, regardless of its nature, has been constitutionally conferred upon the department claiming its exercise. NOTE: The conferment is usually done expressly, as in the vesture of the legislative power in the Congress, the executive power in the President, and the judicial power in the Supreme Court and such lower courts as may be established by law. Even in the absence of an express conferment, the exercise of a given power may be justified under the DOCTRINE OF IMPLICATION, which is based on the theory that the grant of an express power carries with all other powers that may be reasonably inferred from it. Q: What are the legislative powers? A: MAR Make, amend/alter, repeal laws Q: What are the Executive powers? A: Execute/implement laws Q: What are the Judiciary powers? A: Apply/interpret laws Note: Separation of powers is inherent in a republican system of government. The major powers of government are actually distributed by the constitution among the several departments and the constitutional commissions. Constitutional Commissions: 1. Commission on Audit (COA) 2. Commission on Elections (COMELEC) 3. Civil Service Commission (CSC) Q: Is the principle of separation of powers absolute? A: No. It should be applied in accordance with the principle of checks and balances. Q: Is there a provision in the Constitution that states that the Philippines follows separation of power? A: None. We follow separation of powers because it is one of the manifestations of a republican state. (Note: Do not just say that it is inherent in a republican state) BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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GRABE-SBC-D Government of laws, not of men Rule of Majority Accountability of Public Officers Bill of Rights Election of Public Officers Separation of Powers Blending of Powers Checks and Balances Delegation Q: What are the purposes of separation of powers? A: (1) intended to prevent a concentration of authority in one person or group of persons that might lead to an irreversible error or abuse in its exercise to the detriment of our republican institutions (2) designed to prevent the accumulation of powers in the same hands, which result of tyranny. (3) to secure action, to forestall overaction, to prevent despotism and to obtain efficiency (Justice Laurel) Q: Explain the penumbra A: The three departments of government are coordinate, co-equal and co-important. While interdependent, in the sense that each is unable to perform its functions fully and adequately without the other, they are nonetheless in many instances independent of each other. That is to say, one department may not control or even interfere with another in the exercise of its particular functions. PENUMBRA

Q: Describe the relationship of the three departments. A: 1. The three departments are interdependent of one another. BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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2. They are co-equal and coordinate. 3. They allow for checks and balances. Q: What is the principle of blending of powers? A: It is a situation where there is a sharing of two or more departments in the performance of a given constitutional task. One department acts in a manner complementary or supplementary to another. Examples: 1. Enactment of general appropriations 2. Grant of amnesty by the president 3. Deputization by Commission on Elections (COMELEC) of law enforcement agencies and instrumentalities. Q: What is check and balances? A: It means that one department is allowed to resist encroachments upon its prerogatives or rectify mistakes or excesses committed by the other department. Q: What are the powers of the three departments? A: Each department is given certain powers with which to check the other, thus: 1. Checks by the President President may veto or disapprove bills enacted by Congress [Art. 6, Sec. 27 (1)]. Through the pardoning power, he/she may modify or set aside the judgments of courts (Article 7 Sec.19). 2. Checks by Congress  Congress may override the veto of the President [Art. 6, Sec. 27 (1)]; revoke the proclamation of martial law or suspension of the privilege of the writ of habeas corpus by the President; and amend or revoke decisions of the courts (by the enactment of a new law or by an amendment of the old, giving it such meaning and interpretation as to wipe out the effect of such decisions). It has the power to define, prescribe and apportion the jurisdiction of the various acts (Art. 8, Sec. 2); prescribe the qualifications of judges of lower courts; determine the salaries of the President and Vice President (Art. 7, Sec. 6), the members of the Supreme Court (SC) and judges of lower courts (Art. 8, Sec. 10); and impeach the President and members of SC (Art. 11, Sec. 2). 3. Checks by the Judiciary BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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The judiciary, with the SC as the final arbiter, may declare legislative measures or executive acts unconstitutional [Art. 8, Sec. 4(2)] and determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Congress or the President. Judicial Review – ultimate “check” on the two departments Q: By judicial review, does it mean that the Judiciary is supreme over the two other departments? A: No, what it is upholding is not its own supremacy but the supremacy of the Constitution. Q: What is a justiciable question? A: It implies a given right, legally demandable and enforceable, an act or omission, violative of such right, and a remedy granted and sanctioned by law for said breach of right. (e.g. compliance with a voting requirement; qualifications of an appointee of the President) Q: What is a political question? A: It is a question of policy, that question which under the constitution is 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 the government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. (e.g. interpretation of phrases such as “other high crimes”, “disorderly behaviour”, etc.) Illustration: X – power Y; Y cannot delegate such power to Z Legend: X= people; Y= government agency (LEJ); Z= anyone Q: What is the basis of the principle of delegation? A: The basis is the principle of potestas delegata non potest delegare. Q: What is the meaning of potestas delegata non potest delegare? A: Delegated power cannot be further delegated or what has been delegated cannot be delegated. It means that a delegated power constitutes not only a right but a duty to be performed by the delegate by the instrumentality of his own judgment and not through the intervening mind of another. Q: Why is it that a power delegated cannot be further delegated? BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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A: It is because of the trust reposed by the people to the three departments. Q: Is the principle of non-delegation of powers absolute? A: No. There are permissible delegations.

Q: What are permissible delegations? A: (1) Tariff powers to the President (2) Emergency powers to the President (3) People at large (4) Local Governments (5) Administrative Bodies

Q: What is the reason for delegation of powers? A: (1) Increasing complexity of the tasks of government (2) Growing inability of the Legislative to cope with the many problems demanding its attention Q: What is the delegation of tariff powers to the President [Article 6 Section 28(2)]? A: The President is granted stand-by or flexible tariff powers in the *Tariff and Customs Code. The reason for this delegation is NECESSITY, not to say expediency. It is recognized that the legislative process is much too cumbersome for the speedy solution of some economic problems, especially those relating to foreign trade. The President must exercise the authority given within the framework of the national development program of the government. TARIFF= TIE-TWO(ID) Tariff, Import/Export Quotas, Tonnage, Wharfage Dues, Other Imposts and Duties Q: What is the delegation of emergency powers [Article 6 Section 23(2)]? A: During grave emergencies, it may not be practicable for Congress to meet and exercise power. In such occasions, the *Constitution expressly permits Congress to grant legislative powers to the President subject to certain limitations: a.) The emergency powers may be granted by law to the President only in times of war or national emergency (rebellion, grave economic depression). It is the Congress that determines whether there is war or national emergency. BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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Q: When is there a national emergency? A: Majority is affected. The emergency must be of nationwide proportions and effect. b.) The said powers must be exercised only during a limited period, that is, for the duration of the war or other national emergency. If Congress said that the President can exercise the emergency power for one (1) year, but after 1 year the emergency still exists. Does the power of the President continue? No. According to Justice Paras, “emergency itself cannot and should not create power.” The mere continuance of the emergency does not necessarily continue the President’s emergency power if they have been granted to him for a shorter period. If Congress allowed one (1) year for the emergency power of the President but after 1 month the emergency ceased. Will the emergency power of the President continue? No. The emergency powers are self-liquidating unless sooner withdrawn, in the sense that they will automatically cease upon the end of the emergency that justified their delegation. c.) They must be exercised subject to such restrictions (limitations/ conditions) (e.g. requiring the President to make a report to the Congress when it meets in session). d.) They must be exercised to carry out a national policy as declared in the law delegating the authority. Q: When will the emergency power end? A: Adjournment Withdrawal  Cessation of Emergency  Period (Whichever comes first) NOTE: They shall automatically cease upon the next adjournment of Congress unless sooner withdrawn by resolution in view of its opinion that emergency has ceased. It is not necessary that the withdrawal be done through a statute. A resolution does not need the approval of the President whereas a statute, to be effective, needs the President’s approval. Q: What is delegation to the people (Article 17 Section 2)? *According to Atty. Bugayong, for him, this is not a permissible delegation X –power LEJ  X?? The Sovereignty of the people = Reserved power (Sec. 1 Art. 6) A; It is a method whereby the people themselves can directly propose amendments to the *Constitution. It is an application of the democratic concept embodied in Article 2, Section 1. BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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The government of the state is democratic, but it is a representative democracy, and in passing general laws the people act only through their representatives in the legislature. Such reference of the law to the people at large for acceptance or rejection is plain surrender of the law making power. Referendum: method of submitting an important legislative measure to a direct vote of the whole people. Plebiscite: questions submitted in the plebiscite are intended to work more permanent changes in the political structure, like a proposal to amend the constitution; device to obtain a direct popular vote on a matter of political importance, but chiefly in order to create some more or less permanent political condition. Q: What is delegation to the Local Government Units (LGUs) (Art. 10, Sec.3)?*Local Government Code A: This traditional exception is based on the recognition that local legislatures are more knowledgeable than the national law making body on matters of purely local concerns and are therefore in a better position to enact the necessary and appropriate legislation thereon. Q: What is delegation to administrative bodies? *Charter A: Administrative bodies may implement the broad policies laid down in a statute by filling in the details which the Congress may not have the opportunity or competence to provide. This is effected by their promulgation of what are known as Implementing Rules and Regulations (IRR), such as the implementing rules issued by the Department of Labor on Labor Code. These regulations have the force and effect of law. Contingent Regulations: They are allowed to ascertain the existence of particular contingencies and on the basis thereof enforce or suspend the operation of a law. Such also have the force and effect of law. Quasi-Legislative Power: It is the authority delegated by the law making body to the administrative body to adopt rules and regulations intended to carry out the provisions of a law and implement the legislative policy.

Q: How can the test of delegation be valid? A: To be valid, the delegation itself must be circumscribed by legislative restrictions which will not give the delegate unlimited legislative authority. BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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Q: What are the tests? A: 1.) COMPLETENESS TEST the law must be complete in all its essential terms and conditions when it leaves legislature so that there will be nothing left for the delegate to do when it reaches him except to enforce it. (US vs. Ang Tang Ho) 2.) SUFFICIENT STANDARD TESTintended to map out the boundaries of the delegate’s authority by (1) defining the legislative policy; and (2) indicating the circumstances under which it is to be pursued and effected. The standard is usually indicated in the law delegating legislative power (Ynot vs. IAC). But even if the law does not expressly pinpoint the standard, the courts will bend over backward to locate the same elsewhere in order to spare the statute, if it can, from constitutional infirmity. *Standards, parameter, guidelines *Are the two standards required alternately or should both tests be present for it to be considered validly delegated? Generally, one is enough. It depends on the situation. Even if the law does not spell out in details the limit of the delegate’s authority, it may still be sustained if the delegation of legislative power is made subject to a sufficient standard. HOWEVER, according to the Pelaez Case, the two tests must be applied concurrently and not alternatively. Completeness Test and Sufficient Standard Test must be applied together or concurrently. According to Justice Concepcion, “Although Congress may delegate, it is essential, to forestall a violation of the principle of separation of powers, said law should: (a) Be complete in itself – it must set therein the policy to be executed, carried out or implemented by the delegate. (b) Fix a standard – the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions

BTX Notes in Constitutional Law 1 Brotherhood. Trust. Xcellence. There’s no other way but the BTX Way.

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