LECTURE ON POLITICAL LAW

Part 1

1. Political law is that branch of public law which deals with the organization and
operation of the government organs of the state and defines the relations of the state
with the inhabitants of its territory. (Sinco, Philippine Political Law 1, 11th ed., 1962)

2. The scope of political law covers (a) the law of public administration which deals
with the organization and management of the different branches of the government,
(b) constitutional law which deals with the guaranties of the constitution to the
individual rights and the limitation on governmental action, (c) administrative law
which deals with the exercise of the executive power in the making of rules and the
decision of questions affecting private rights, and (d) the law of public corporations
which deals with governmental agencies for local government or for other special
purposes.

3. In Macariola vs. Asuncion, a provision of law partakes of the nature of political law
when it regulates the relationship between the government and certain public officers
and employees, notwithstanding its incorporation in the Code of Commerce which is
part of the commercial laws of the country. Moreover, political laws of the former
sovereign, whether compatible or not with those of the new sovereign, are deemed
abrogated upon the transfer of sovereignty, unless they are expressly re-enacted by the
affirmative act of the new sovereign. In that case, the Supreme Court ruled that
Article 14 of the Code of Commerce which prohibits judges from engaging in
commerce is political in nature for it partakes more of the nature of an administrative
law as it regulates the conduct of certain public officers and employees with respect to
engaging in business.

4. In People vs. Perfector, Article 256 of the Spanish Civil Code was considered crime
“lesse majeste” as it punishes those who insults the Ministers of the Crown. With the
change of sovereignty, the said provision had been automatically abrogated. The
Supreme Court held that the said provision is “political in nature” as it governed the
acts of the inhabitants towards the State.

5. Constitutional law is a subdivision of political law which deals with the legal
principles affecting the nature, adoption, amendment, and operation of the
constitution. (Sinco 67.) Constitutional law is a term used to designate the law
embodied in the constitution and the legal principles growing out of the interpretation
and application made by courts of the provisions of the constitution in specific cases.

6. Constitutional law is a term used to designate the law embodied in the constitution
and the principles growing out of the interpretation and application made by courts of
the provisions of the constitution in specific cases. In the Philippines, constitutional
law also lies scattered in a series of Philippine Reports and SCRA. Constitutional law
is the body of law created by applying and interpreting the Constitution with its
successive amendments.

7. In the case of Legaspi vs. Minister of Finance: Constitutional law is not simply the
literal application of the words of the charter. The ancient and familiar rule of
constitutional construction that has consistently maintained its intrinsic and
transcendental worth is that the meaning and understanding conveyed by the
language, albeit, plain, or any of its provisions, do not only portray the influence of
 current events and developments but likewise the inescapable imperative
considerations rooted in the historical background and environment at the time of its
adoption and thereby caused their being written as part and parcel thereof.

8. A written constitution, according to Justice Malcolm, as the written instrument by

which the fundamental power of the government are established, limited and defined,
and by which these powers are distributed among the several departments for their
safe and useful exercise for the benefit of the body politic.

9. The three essential requisites of a good written constitution are breadth, brevity and
definiteness. It must be broad in its scope because it must outline an organization of
the government for the whole state. A statement of the province and functions of
government, and of the relations between government bodies and the governed,
requires a comprehensive document. A constitution must be brief because it is not a
the place in which the details of organization should be set forth. Its nature, therefore,
requires that only its great outline should be marked, its important objects be deducted
from the nature of the objects themselves. Lastly, the constitution must be definite. In
a statement of principle as underlying the essential nature of a state, any vagueness
which may lead to opposing interpretations of essential features cause incalculable
harm.

10. The purpose of a constitution is to prescribe the permanent framework of a system of

government, to assign to the different departments their respective powers and duties,
and to establish certain fixed principles on which government is founded. The
fundamental conception, in other words, is that of a supreme law to which all other
laws must conform and in accordance with which all private rights must be
determined and all public authority administered.

11. The concept of a Constitution as the fundamental law, setting forth the criterion for
the validity of any public act whether proceeding from the highest official or the
lowest functionary, is a postulate of our system of government. That is to manifest
fealty to the rule of law, with priority accorded to that which occupies the top most
rung in the legal hierarchy. The three departments of government in the discharge of
the functions with which it is entrusted have no choice but to yield obedience to its
commands.

12. The Constitution, as the direct enactment of the sovereign people, is the highest law of
the state. The validity of every act of government must depend on its being in
conformity with the constitution. Statutes, executive orders or regulations, ordinances
and treaties in conflict with the constitution are void and unenforceable. This is what
is meant by supremacy of the constitution.

13. A constitution is a written instrument by which the fundamental powers of

government are established, limited and defined, and by which those powers are
distributed among the several departments for their safe and useful exercise for the
benefit of the body politic. (Malcolm) A constitution is both a legal document and a
political plan. It, therefore, embodies legal rules as well as political principles.

14. In general, there are three types of Constitutional Law. The English Type is
characterized by the absence of a written constitution and the absence of judicial
review by the courts. The European type is one that has been reduced into writing but
which gives the courts no power to declare ineffective statutes contrary to it. The
 American type is one where the legal provisions of the written constitution are given
effect albeit the courts have the power to declare ineffective or void statutes repugnant
to it.

15. Constitutions may be classified as to form and amendment process. As to form,

constitutions may be written or unwritten. A written constitution is embodied in one
or more instruments at a particular time. An unwritten constitution is one which has
not been committed to writing at any specific time but is the accumulated product of
gradual political and legal development. As to amendment process, constitutions may
be rigid or flexible. A Constitution is considered rigid when it may not be amended
except through a special process distinct from and more involved than the method of
changing ordinary laws. A Constitution is flexible when it may be changed in the
same manner and through the same body that enacts ordinary legislation. The
Philippine Constitution is both written and rigid (See Art. XVII on the Amendment
process).

16. The essential substantive parts of a written constitution are: (1) bill of rights; (2)
provisions defining, distributing and limiting the powers of government; (3) method
of amendments.

17. The history of the 1987 Constitution began with the Treaty of Paris where the
Philippines was ceded by Spain to the United States. Spain relinquished its
sovereignty over the Philippine Islands by cession, and with this, all laws of a political
nature were automatically abrogated. The Treaty provided that the civil and political
status of all inhabitants of the islands was to be determined by the US Congress. The
Philippines in turn, was not given the status of an "incorporated territory" (as to make
it a candidate for statehood) and so ex proprio vigore, the US Constitution did not
apply to the Philippines unless the US Congress expressly enacted its provisions.

18. President McKinley, in his capacity as Commander-in-Chief, issued on 7 April 1900

his "Letter of Instruction to the Second Philippine Commission" setting up a "divided
civil and military government" with the existing Military Governor as the Executive,
and a Philippine Commission, as the Legislative, both representing the US President
as Commander-in-Chief. It also extended to the Philippines all the rights in the Bill of
Rights of the US Federal Constitution, except the right to bear arms (because the
country was in rebellion) and the right to a trial by jury (because the Americans
distrusted the Filipinos capacity to be a just judge of his peers). This was the first
Organic Act (a law which establishes the structure and limitations of the government)
of the Philippines. What it lacked, as a constitution, were the ratification by the
people, and the right of amendment (which was reserved solely to the US President).
The judiciary was subsequently established with the Supreme Court, Court of First
Instance and and Justice of Peace Courts.

19. On 4 July 1901, the Spooner Amendment, changed the then "divided, military and
civil government" into a fully civil government, under the US Congress.

20. The US Congress being in control of the Philippines, ratified all the organic acts of
the President, in order to prevent disruption of government, and on 1 July 1900,
passed the Philippine Bill of 1902, which was to be organic act of the Philippines
from 1902 to 1906. The organic act introduced significant provisions to constitutional
history. It established a bicameral house, with the Philippine Commission as the upper
house and the Philippine Assembly as the lower house composed entirely of Filipinos.
 The Governor General retained all executive power. The Bill also defined for the first
time who the citizens of the Philippines were.

21. On 29 August 1916, the US Congress passed the Jones Law, otherwise known as the
Philippine Autonomy Act. It established a tripartite government with real separation
of powers; this was the prototype of our present set-up. The executive power was in
the hands of an American Governor-General, who was independent of the Legislature.
The Legislature was composed of the Senate and the House of Representatives, all
composed of Filipinos. The judiciary continued to be made up of the Supreme Court,
the CFIs and Justice of Peace Courts.

22. Tydings-McDuffie Law, while not an organic act, was to be the enabling statute for
the adoption of the Constitution of an independent Philippines. It called for a
Constitutional Convention to draft a constitution that would establish a republican
government, with a bill of rights and separation of church and state. Complete
independence was to take place ten (10) years after its effectivity.

23. On 15 November 1935, upon the inauguration of the Commonwealth, the 1935
Constitution took effect. This Constitution was to serve as the charter of the
Commonwealth, and upon withdrawal of US sovereignty, of the Republic. The
Constitution provides for a tripartite government, with the executive lodged in the
President who had a six-year term, the legislative in a unicameral National Assembly,
and the judiciary in a Supreme Court, CFIs and Justice of Peace Courts as before.

24. The 1935 Constitution was first amended in 1940 to provide for (a) a bicameral
Congress with a Senate and a House of Representatives; (b) a term of four years for
the President, but with re-election and (c) the establishment of an independent
constitutional body known as the Commission on Elections.

25. War ensued, and the Philippines was so devastated that the declaration of its
independence, due 15 November 1945 had to be postponed. At any rate, on 23 April
1946, the election of the first officials of the Philippine Republic was held, and on 4
July 1946, the Republic was inaugurated and the Philippines became "politically"
independent of the US.

26. Theoretically, to an extent that sovereignty is never granted to a people but is earned
by them as they assert their political will, then it is a misnomer to say that 4 July 1946
was the day US granted independence to the Philippines. More appropriately, it was
the day when the US withdrew its sovereignty over the Philippines, thus giving the
Filipino people an occasion to assert their own independence.

27. However, on 30 April 1946, one week after the election, the US Congress passed the
Bell Trade Act which would grant Philippine prime exports entry to the US free of
customs duties from 1946 to 1954, and a gradual increase in duties from 1954 to 1974
(Laurel-Langley agreement), provided that the Philippines would grant US citizens
and corporations the same privileges, and in addition, the right to explore natural
resources of the Philippines in parity with the Filipinos, and to operate public utilities.
This must be accepted by Congress, embodied in an Executive Agreement, and
reflected as an amendment in the Constitution.

28. The Senate approval of this bill gave rise to the case of Vera vs. Avelino. The Senate
then had 11 Nacionalistas and 13 Liberals. Three Nacionalista Senators-elect (Vera,
 Diokno and Romero), known to be against the Bell Trade Act, were prevented by the
rest of the Senate, in what is known as "exclusion proceedings," on grounds that their
elections were marred with fraud. The political motivation was clear but the SC was
conned into lifting the injunction it issued for the withholding of the suspension,
because of the unfulfilled promise that the Senate would not carry out the suspension.
With the balance of power offset, the Bell Trade Act was passed. Subsequently, the
SC had to dismiss the petition on the ground that the principle of separation of
powers, it could not order a co-equal branch to reinstate a member.

29. The Senate authorized President Roxas to enter into an Executive Agreement, which
he did on 3 July 1946, the eve of the declaration of Philippine Independence.

30. Then came the second amendment of the Constitution in order to include the Parity
Rights Agreement, which gave rise to the case of Mabanag vs. Lopez Vito (1947).
Under the Amendatory Provisions of the 1935 Constitution, Congress, acting as
constituent body, needed 3/4 vote to propose an amendment to the Constitution. But
with the three Senators still suspended, only the 21 remaining were used as the basis
for computing the 3/4 requirement. When this was raised in court, it begged off from
ruling on the ground that it was a political question. It also used the Enrolled Bill
Theory. So with the amendment proposed, it was subsequently ratified on 5 March
1947.

31. The third time the Constitution was amended was in 1967. A Resolution of both
houses provided for (a) the amendment of the Constitution by a Convention, (b) the
increase of seats in the House of Representatives to make the Concon sufficiently
representative, and (c) allowing members of the House as delegates without forfeiting
their seats. The first was approved, the second and third were rejected. This became
the subject matter of Gonzales v COMELEC.

32. Election of delegates to the Concon took place on 10 November 1970. Then the
ConCon met on 1 June 1971. Before it finished its work, it came up with a resolution
calling for an amendment to the 1935 Constitution reducing the voting age from 21 to
18, so that a wider base could vote in the ratification of the Constitution then being
drafted. A plebiscite was set by the COMELEC for 8 November 1971 but this was
enjoined by the SC in the case of Tolentino v COMELEC, the court ruling that a
piece-meal amendment was not allowed by the 1935 Constitution since it provided
that the amendments were to be ratified at "an election" which meant only one
election. The Court upheld its jurisdiction over the ConCon by arguing that since the
Concon derived its power from the Constitution, it was thus limited by the
Constitution.

33. But it was subsequently overtaken by Martial Law. On 30 November 1972, the
Convention submitted its "draft" to the President, who called on a plebiscite to ratify
the Constitution. This was questioned in the case of Planas v COMELEC, on the
ground that there can be no freedom of expression under Martial Law. But the case
was rendered moot and academic when the President cancelled the plebiscite and
instead held a citizens' assembly on 10 to 15 January, 1973. On 17 January 1973, the
President came up with a proclamation that the Constitution had come to full force
and effect after its overwhelming ratification by the people in a viva voce vote.

34. The validity of the ratification process was questioned in the case of Javellana vs.
Executive Secretary, 50 SCRA 30 (1973) but the failure of the SC to come up with
 the necessary votes to declare the act as unconstitutional forced it into the conclusion
that "there are no further obstacles to considering the constitution in force and effect."

35. The first amendment, in 1976, gave the President, legislative powers even if the
Interim Batasang Pambansa was already operating.

36. The second amendment, in 1980 was not significant. It merely raised the retirement
of justices of the SC from 65 to 70 as to keep Fernando for five more years.

37. The third amendment, in 1980 changed the form of government from Parliamentary to
Presidential.

38. The fourth amendment, in 1984, responded to the succession problem by providing
for a Vice-President.

39. The start of the end of the Marcos years, of course, could be treated as early as 21
August 1983. But its immediate precursor was the Snap Election which the President
was forced to call and set on 7 February 1986 to respond to the clamor for popular
mandate.

40. The validity of the "Snap Election Law" called by the Batasang Pambansa was raised
in the case of Philippine Bar Association v COMELEC. The issue was raised because
of the conditional letter of resignation sent by Mr. Marcos to the Batasan, making his
resignation effective only upon (i) the holding of a Presidential election, (ii) the
proclamation of a winner, (iii) the assumption into office by the winning candidate.
It was contended that a conditional resignation was not allowed under the 1973
Constitution, for it did not create a vacancy, and without a vacancy, there was no
reason to call for an election. But the SC failed to issue a preliminary injunction to
enjoin the COMELEC from preparing for the election, thus making "the initially legal
question into a political one." In the meantime, the political parties have started
campaigning and the people were so involved in the election that to stop it on legal
grounds would frustrate their very will. And so, failing to come up with the majority
to hold the Snap Election Law unconstitutional, the SC could not issue the injunction
prayed for. The election went ahead.

41. The rest is history. The results of the election were proclaimed by the Batasan,
naming Marcos and Tolentino as the winners. But the February 2 to 25, 1986, EDSA
revolution took place. On 25 February, Marcos was proclaimed in Malacanang by
Makasiar, while Aquino was proclaimed in Club Filipino by Teehankee. Later that
evening, Marcos fled to Hawaii.

42. What was the basis of the Aquino government? Did it assume power pursuant to the
1973 Constitution, or was it a revolutionary government?

43. Proclamation No. 1, 25 February 1986 (Provisional government).-- But Proclamation

No. 3 which announced the Provisional Constitution, seemed to suggest that it was a
revolutionary government, since in one of its whereases it announced that the "new
government was installed, through a direct exercise of the power of the Filipino
people assisted by units of the New Armed Forces," referring to the EDSA revolution.

44. The better view is the latter view. The Aquino government was not an offshoot of the
1973 Constitution for under that Constitution, a procedure was given for the election
 of the President --- proclamation by the Batasan --- and the candidate Batasan
proclaimed was Marcos.

45. This view was affirmed in Lawyers League vs. Aquino where the legitimacy of the
Aquino government is questioned on the ground that it was not established pursuant
to the 1973 Constitution. The SC ruled that petitioners had no personality to sue and
their petition states no cause of action. "For the legitimacy of the Aquino government
is not a justiciable matter. It belongs to the realm of politics where only the people of
the Philippines are the judge. And the people have made the judgment; they have
accepted the government of President Aquino which is in effective control of the
entire country so that it is not merely a de facto government but in fact and law a de
jure government. Moreover, the community of nations has recognized the legitimacy
of the present government. All the eleven members of this Court as reorganized, have
sworn to uphold the fundamental law of the Republic under her government."

46. The Aquino government was a result of a "direct state action." It was not as if a small
group revolted and succeeded in wresting power in the end. Rather, the entire state
revolted and overthrew the government, so that right from the beginning, the
installation was already lawful and the government was at all times de jure.

47. In this regard, it must be noted that there is no such thing as a constitutional right of
revolution. A revolution, from the point of view of a State, is always lawful since a
State can never go wrong; it can change its government in whatever way the
sovereign sees fit. But this right of revolution, inherent in sovereignty, cannot be
recognized in a Constitution, for this would be self-destructive. The nature of a
Constitution is to set-up a government and provide for an orderly way to change this
government. A revolution contradicts this nature.

48. The Provisional Constitution or Freedom Constitution was adopted on 25 March 1986
through Proclamation No. 3. It abrogated the legislative provisions of the 1973
Constitution, modified the provisions regarding the executive department, and totally
reorganized the government. (Its use of the 1973 Constitution, however, is not be to
construed that it was a continuation thereof.) Then it provided for the calling of a
Constitutional Commission, composed of 30 to 50 members appointed by the
President within 60 days. (In our history, all major constitutions --- Malolos, 1935,
1971 --- were drafted by elected delegates.)

49. The President appointed 48 Commissioners, who worked on the Constitution from 1
June to 15 October 1986. The draft was submitted to the people in a referendum on 2
February 1987. On 11 February 1987, the President, through Proclamation No. 58,
announced its overwhelming ratification by the people and that, therefore, it had come
into force and effect.

50. In the case of In Re: Saturnino Bermudez , the SC held, quoting the previous case of
Lawyers League v Aquino, that: [T]he legitimacy of the Aquino government is not a
justiciable matter. It belongs to the realm of politics where only the people of the
Philippines are the judge. And the people have made the judgment; they have
accepted the government of President Aquino which is in effective control of the
entire country so that it is not merely a de facto government but in fact and law a de
jure government. Moreover, the community of nations has recognized the legitimacy
of the present government. All the eleven members of this Court as reorganized, have
sworn to uphold the fundamental law of the Republic under her government.
51. 1987 Constitution, Art. XVIII, sec. 27 provides that: This Constitution shall take
effect immediately upon its ratification by a majority of the votes cast in a plebiscite
held for the purpose and shall supersede the all previous Constitutions. Proclamation
No. 58 (Proclaiming the Ratification of the 1987 Constitution). The 1987 Constitution
took effect on February 2, 1987 and not on February 11, 1987, the date of the
Proclamation issued by the President. This was affirmed by the Supreme Court in De
Leon vs. Esguerra citing the intent of the framers of the Constitution that its
effectivity will be on the date of ratification.

52. Who may interpret the Constitution? From force of circumstances and conditions
necessarily arising in the administration of government affairs, it is evident that those
who are charged with official duties, must necessarily construe the constitution.
Generally however, the construction of the constitution is the peculiar province of the
courts, and to them belongs, in the most though not in all cases, the authority of final
decision; and where a court of last resort has construed a constitutional provision,
such construction is binding on all departments of government.