Distinguish Hard Law and Soft Law in International Law
Means binding laws; to constitute law, a rule, instrument or decision must be authoritative and prescriptive. In international law, hard law includes treaties or international agreements, as well as customary laws. These instruments result in legally enforceable commitments for countries (states) and other international subjects.
These are non-binding rules of international law. Soft law is of relevance and importance to the development of international law because it: (1) has the potential of law-making, i.e. it may be a starting point for later ‘hardening’ of non-binding provisions (e.g. UNGA resolutions may be translated into binding treaties); (2) may provide evidence of an existing customary rule; (3) may be formative of the opinio juris or of State practice that creates a new customary rule; (4) may be helpful as a means of a purposive interpretation of international law; (5) may be incorporated within binding treaties but in provisions which the parties do not intend to be binding; and (6) may in other ways assist in the development and application of general international law.
The importance of soft law is emphasized by the fact that not only States but also non-State actors participate in the international law-making process through the creation of soft law. Nevertheless, soft law is made up of rules lacking binding force, and the general view is that it should not be considered as an independent, formal source of international law despite the fact that it may produce significant legal effects.
Philippine Bar Exams Reviewer for Political Law Part 2 The Constitution – General Considerations
#1. National Territory
The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. 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.
#2. Archipelagic Doctrine
A body of water studded with islands, or the islands surrounded with water, is viewed as a unity of islands and waters together forming one integrated unit. [N.B. Embodied in Art. II.]
#3. Straight Baseline Method
Consists of drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast, in order to delineate the internal waters from the territorial waters of an archipelago
A community of persons, permanently occupying a definite portion of territory, independent of external control, and possessing a government to which a great body of the inhabitants render habitual obedience. [Collector of Internal Revenue v. Campos Rueda (1971)]
#5. Basis of State Immunity from Suit
Constitutional Basis: “The State may not be sued without its consent.” [Const., Art. XVI, Sec. 13].
InternationalLawBasis:“Parinparemimperiumnonhabet”i.e.“Anequalhasnopower over an equal”
Positivist Theory: There can be no legal right as against the authority that makes the laws. Also called the doctrine of Royal Prerogative of Dishonesty. [Kawananakoa v. Polyblank (1907)]
Sociological Theory: If the State were suable, all its time would be spent defending itself and this would prevent it from its other functions. [Republic vs. Villasor (1973)]
#6. Suit Against the State
A suit is against the State regardless of who is named the defendant if:
It produces adverse consequences to the public treasury in terms of disbursement of public funds and loss of government property.
#7. Suit Not Against the State A suit is not against the State when
When the action is not in personam with the government as the named defendant, but an action in rem that does not name the government in particular.
#8. Express Consent of the State
The express consent of the state is effected only by the will of the legislature through the medium of a duly enacted statute; may be embodied either in a general law or a special law.
#9. Express consent through General Law
The express consent through general law authorizes any person who meets the conditions stated in the law to sue the government in accordance with the procedure in the law (e.g. Act No. 3083; Civil Code, art. 2180(6), 2189)
As to the vicarious liability under CC, Art. 2180(6): The Government is only liable for the acts of its agents, officers, and employees when they act as special agents, i.e. receive a definite and fixed order or commission, foreign to the exercise of the duties of his office. [Merritt v. Gov’t of the Philippine Islands, (1916)]
#10. Express consent Special Law
Express consent in special law may come in the form of a private bill authorizing a named individual to bring suit on a special claim.
#11. Implied Consent of the State
There is implied consent of the state when:
(1) When the State enters into a private contract that is not incidental to a government function
(2) The State acts in a proprietary function
(3) When the government files a complaint, e.g. defendant may file a counterclaim against it.
(4) When it would be inequitable for the State to invoke its immunity.
(5) In instances of Eminent Domain when the State takes private property for public use or purpose.
#10. Separation Powers
Separation of Powers is a fundamental principle in our system of government. It is obtained not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. [Angara v. Electoral Commission (1936)].
Separation of powers is founded on the belief that, by establishing equilibrium among the three power holders, harmony will result, power will not be concentrated and thus tyranny will be avoided [Bernas].
#11. Checks and Balances
The Constitution did not intend the three powers to be absolutely unrestrained and independent of each other. It has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. [Angara, supra]
#12. Delegation of Powers
As a general rule, “Delegata potestas non potest delegari” – what has been delegated can no longer be delegated.
#13. Non-Delegation of Legislative Powers As a general rule, only Congress (as a body) may exercise, with the following exemptions: (1) Delegated legislative power to local governments [See Art. IX, Sec. 9]
(2) Constitutionally-grafted exceptions through (1) Emergency power delegated to the Executive during State of War or National Emergency [Art. VI, Sec.23(2)]; and (2) Certain taxing powers of President [Art. VI, sec.28(2)].
#14. The Two tests of Valid Delegations
A. Completeness test – the law sets forth the policy to be executed, carried out, or implemented by the delegate (Abakada, infra), such that there is nothing left for the delegate to do but to enforce the law [Pelaez v.Auditor General (1965)]
B. Sufficient standard test – the standard test is sufficient if it defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. [Edu v. Ericta (1970)]
A corporate governmental entity through which the functions of government are exercised throughout the Philippines [Rev. Admin. Code]
#16. De jure government (1) Has rightful title; but (2) No power or control [In re Letter of Justice Puno (1992)]
#17. De facto government
Government of fact, that is, it actually exercises power or control without legal title. [Co Kim Cham v. Valdes, (1945)]
Philippine Bar Exams Reviewer for Political Law Part 1 The Constitution – Concepts and Definitions
POLITICAL LAW REVIEW CONSTITUTIONAL LAW 1
PART I – THE CONSTITUTION #1. WHAT IS POLITICAL LAW?
Political Law deals with organization and operations of governmental organs and defines the relations of the State with the inhabitants of its territory. [People v. Perfecto (1922)]
#2. WHAT IS CONSTITUTIONAL LAW
Constitutional Law is the law embodied in the Constitution and the legal principles growing out of the interpretation and application of its provisions by the courts in specific cases.
#3. DEFINE CONSTITUTION
The Constitution is a document which serves as the fundamental law of the state; that written instrument enacted by the direct action of the people by which the fundamental powers of the government are established, limited and defined. [Malcolm, Phil. Const. Law]
#4. WHAT ARE THE CLASSIFICATION OF CONSTITUTIONS?
(1) Written v. unwritten (2) Enacted (conventional) v. evolved (cumulative) (3) Rigid v. flexible
The Philippine Constitution is written, enacted and rigid. #5. WHAT IS THE DATE OF EFFECTIVITY OF THE 1987 CONSTITUTION?.
February 2, 1987, the date of the plebiscite, and not on the date its ratification was proclaimed. [De Leon v. Esguerra (1987)]
#6. WHAT ARE THE BASIC PRINCIPLES OF CONSTITUTIONAL INTERPRETATION?
(1) Verba legis (give words their ordinary meaning) (2) Ratio legis est anima (intent of the framers) (3) Ut magis valeat quam pereat (interpret as a whole)
#7. WHAT ARE THE PARTS OF THE CONSTITUTION?
(1) Constitution of Government –e.g. Art. VI, VII, VIII, IX (2) Constitution of Sovereignty–i.n.Art.XVII (3) Constitution of Liberty–e.g.Art.III
#8. DEFINE AMENDMENT
An addition or change within the lines of the original constitution; adds, reduces or deletes without altering the basic principles involved; affects only the specific provision being amended. [Lambino v. COMELEC (2006)]
#9. DEFINE REVISION
A change that alters a basic principle in the constitution; alters the substantial entirety of the constitution. [Id.] The 1987 Constitution allows people’s initiative only for the purpose of amending, not revising, the Constitution.[Id.]
#10. DISTINGUISH THE TWO-PART TEST? To determine whether amendment or revision:
(1) Quantitative test: Examines only number of provisions affected, not the degree of the change.
(2) Qualitative test: Inquires into the qualitative effects of the proposed change in the constitution, i.e. whether the change will “accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision.” [Id.]
#11. WHAT ARE THE STEPS IN THE AMENDATORY PROCESS?
Step 1. Proposal – The adoption of the suggested change in the Constitution. (a) Congress (as a Constituent Assembly) – a vote of 3⁄4 of ALL its members. (b) Constitutional Convention – Called into existence by (i) 2/3 of all members of Congress OR (ii) the electorate, in a referendum called for by a majority of all members of Congress [CONST., art. XVII, sec. 3] (c) People (through a People’s Initiative)- petition of at least 12% of the total number of registered voters; every legislative district must be represented by at least 3% of the registered voters therein.
○ (i) Limitation on Initiative: No amendment in this manner shall be authorized (1) within 5 years following the ratification of the 1987 Const. nor (2) more often than
once every 5 years thereafter. (ii) Enabling Law: Constitutional provision on amendments via People’s Initiative not self- executory [Defensor-Santiago v. COMELEC, 270 SCRA 170 (1997)]
Syep 2. Ratification – the proposed amendment shall be submitted to the people and shall be deemed ratified by the majority of the votes cast in a plebiscite, held not earlier than 60 days nor later than 90 days:
(a) After approval of the proposal by Congress or ConCon; (b) After certification by the COMELEC of sufficiency of petition of the people.
#12. WHAT IS THE DOCTRINE OF PROPER SUBMISSION?
A plebiscite may be held on the same day as a regular election [Gonzales v. COMELEC (1967)]. The entire Constitution must be submitted for ratification at one plebiscite only. The people must have a proper “frame of reference”. [Tolentino v. COMELEC (1971)]. No “piecemeal submission,” e.g. submission of age amendment ahead of other proposed amendments. [Id.]
#13. WHAT IS JUDICIAL REVIEW OF AMENDMENTS?
The validity of the process of amendment is not a political question because the Court must review if constitutional processes were followed; the issue is manner not wisdom. [See Lambino]
#14. WHAT ARE THE STEPS IN THE REVISION PROCESS?
Same as amendments in all respects except that it cannot be proposed via a People’s Initiative. [See Lambino, supra]
#15. WHAT ARE SELF-EXECUTING PROVISIONS?
Provisions which are complete in themselves and do not need enabling legislation for their operation; judicially enforceable per se.[Manila Prince Hotel v. GSIS (1997)].
General Presumption: All provisions of the constitution are self-executing. [Id.]
Exception: Statements of general principles, such as those in Art. II, are usually not self- executing.
#16. WHAT ARE NON-SELF EXECUTING PROVISIONS? Provisions which merely “la[y] down a general principle.” [Manila Prince, supra]
Note: A provision may be self-executing in one part, and non-self-executing in another. [Manila Prince, supra]
ConstiLaw Audiobook #6 Article 9 Common Provisions, 1987 Constitution, Political Law Review
THE 1987 CONSTITUTION OF THE PHILIPPINES
ARTICLE IX A. COMMON PROVISIONS
The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit.
No member of a Constitutional Commission shall, during his tenure, hold any other office or employment.
Neither shall he engage in the practice of any profession or in the active management or control of any business which, in any way, may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries.
The salary of the Chairman and the Commissioners shall be fixed by law and shall not be decreased during their tenure.
The Constitutional Commissions shall appoint their officials and employees in accordance with law.
The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released.
Each Commission en banc may promulgate its own rules concerning pleadings and practice before it or before any of its offices. Such rules, however, shall not diminish, increase, or modify substantive rights.
Each Commission shall decide by a majority vote of all its Members, any case or matter brought before it within sixty days from the date of its submission for decision or resolution.
A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself.
Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.
Section 8 Each Commission shall perform such other functions as may be provided by law.
ConstiLaw Audiobook #5 Article 8 Judicial Department, 1987 Constitution, Political Law Review
THE 1987 CONSTITUTION OF THE PHILIPPINES
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.
No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its Members.
The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.
(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.
(2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc…
… including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.
(3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case without the concurrence of at least three of such Members.
When the required number is not obtained, the case shall be decided en banc: Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.
The Supreme Court shall have the following powers:
1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question of law is involved.
(3) Assign temporarily judges of lower courts to other stations as public interest may require.
Such temporary assignment shall not exceed six months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged.
Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
(6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law.
The Supreme Court shall have administrative supervision over all courts and the personnel thereof.
(1) No person shall be appointed Member of the Supreme Court or any lower collegiate court unless he is a natural-born citizen of the Philippines.
A Member of the Supreme Court must be at least forty years of age, and must have been for fifteen years or more, a judge of a lower court or engaged in the practice of law in the Philippines.
(2) The Congress shall prescribe the qualifications of judges of lower courts, but no person may be appointed judge thereof unless he is a citizen of the Philippines and a member of the Philippine Bar.
(3) A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence.
(1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.
(2) The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments.
Of the Members first appointed, the representative of the Integrated Bar shall serve for four years, the professor of law for three years, the retired Justice for two years, and the representative of the private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the Council and shall keep a record of its proceedings.
(4) The regular Members of the Council shall receive such emoluments as may be determined by the Supreme Court. The Supreme Court shall provide in its annual budget the appropriations for the Council.
(5) The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.
The Members of the Supreme Court and judges of the lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.
The salary of the Chief Justice and of the Associate Justices of the Supreme Court, and of judges of lower courts, shall be fixed by law. During their continuance in office, their salary shall not be decreased.
The Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office.
The Supreme Court en banc shall have the power to discipline judges of lower courts, or order their dismissal by a vote of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.
The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions.
The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court.
A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties.
Any Members who took no part, or dissented, or abstained from a decision or resolution, must state the reason therefor. The same requirements shall be observed by all lower collegiate courts.
No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.
No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating the legal basis therefor.
(1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts.
(2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of Court or by the court itself.
(3) Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties.
The certification shall state why a decision or resolution has not been rendered or issued within said period.
(4) Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay.
The Supreme Court shall, within thirty days from the opening of each regular session of the Congress, submit to the President and the Congress an annual report on the operations and activities of the Judiciary.
“The doctrine of overbreadth applies generally to statutes that infringe upon freedom of speech.” – Justice Kapunan, in his dissenting opinion on Estrada vs Sandiganbayan, G.R. No. 148560, November 2001
“The application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases.” – Southern Hemisphere Engagement Network, Inc. Cs Anti Terrorism Council, 632 SCRA 146
“The overbreadth and the vagueness doctrines have special application only to free-speech cases,” and are “not appropriate for testing the validity of penal statutes.” – Romualdez vs. Sandiganbayan, G.R. No. 152259, July 2004
The “void-for-vagueness” doctrine holds that a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application. – David v. Macapagal-Arroyo, supra., cited in Romualdez v. Commission on Elections, G.R. No. 167011, April 30, 2008
The Supreme Court held that the doctrine can only be invoked against that species of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. – Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001
The void-for-vagueness doctrine cannot be used to impugn the validity of a criminal statute using “facial challenge” but it may be used to invalidate a criminal statute “as applied” to a particular defendant.
No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. – 1987 Constitution, Art. III, Sec. 1
Due process means: 1. There shall be a law prescribed in harmony with the general powers of the legislature; 2. It shall be reasonable in its operation; 3. It shall be enforced according to the regular methods of procedure prescribed; and 4. It shall be applicable alike to all citizens of the State or to all of a class. – People v. Cayat, G.R. No. L-45987, May 5, 1939
The Philippines is a republic with a presidential form of government wherein power is equally divided among its three branches: Legislative (authorized to make laws), Executive (carries out laws), and Judicial (evaluates laws).