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Political Law (Constitutional Law) – ARTICLE XVII- AMENDMENTS OR REVISIONS

Political Law (Constitutional Law) – Article XVII

ARTICLE XVII- AMENDMENTS OR REVISIONS

Definitions:

1) Amendment:  an alteration of one or a few specific provisions of the Constitution.  Its main purpose is to improve specific provisions of the Constitution.  The changes brought about by amendments will not affect the other provisions of the Constitution.

2) Revision:  An examination of the entire Constitution to determine how and to what extent it should be altered.  A revision implies substantive change, affecting the Constitution as a whole.

Constituent power v. Legislative power

1)      Constituent power is the power to formulate a Constitution or to propose amendments to or revisions of the Constitution and to ratify such proposal. Legislative power is the power to pass, repeal or amend or ordinary laws or statutes (as opposed to organic law).

2)      Constituent power is exercised by Congress (by special constitutional conferment), by a Constitutional Convention or Commission, by the people through initiative and referendum, and ultimately by sovereign electorate, whereas legislative power is an ordinary power of Congress and of the people, also through initiative and referendum.

3)      The exercise of constituent power does not need the approval of the Chief Executive, whereas the exercise of legislative power ordinarily needs the approval of the Chief Executive, except when done by people through initiative and referendum.

Three (3) steps necessary to give effect to amendments and revisions:

1) Proposal of amendments or revisions by the proper constituent assembly;

2) Submission of the proposed amendments or revisions; and

3) Ratification

Proposal of amendments:

Amendments may be proposed by:

A. Congress, acting as a constituent assembly, by a 3/4 vote of all its members.

• The power of Congress to propose amendments is NOT part of its ordinary legislative power.
• The only reason Congress can exercise such power is that the Constitution has granted it such power.

B. Constitutional Convention:

1) How a Constitutional Convention may be called

a). Congress may call a ConCon by a 2/3 vote of all its members; or

b). By a majority vote of all its members, Congress may submit to the electorate the question of whether to call a ConCon or not.

2) Choice of which constituent assembly (either Congress or ConCon) should initiate amendments and revisions is left to the discretion of Congress.  In other words, it is a political question.

3) BUT:  The manner of calling a ConCon is subject to judicial review, because the Constitution has provided for vote requirements.

4) If Congress, acting as a constituent assembly, calls for a ConCon but does not provide the details for the calling of such ConCon, Congress – exercising its ordinary legislative power – may supply such details.  But in so doing, Congress (as legislature) should not transgress the resolution of Congress acting as a constituent assemble.

5) Congress, as a constituent assembly and the ConCon have no power to appropriate money for their expenses.  Money may be spent from the treasury only to pursuant to an appropriation made by law.

C. People’s Initiative

1) Petition to propose such amendments must be signed be at least 12% of ALL registered voters.

2) Every legislative district represented by at least 3% of the registered voters therein.

3) Limitation:

It cannot be exercised oftener than once every 5 years.

Note:

1)      While the substance of the proposals made by each type of constituent assembly is not subject to judicial review, the manner the proposals are made is subject to judicial review.

2)      Since these constituent assemblies owe their existence to the Constitution, the courts may determine whether the assembly has acted in accordance with the Constitution.

3)      Examples of justiciable issues:

a)      Whether a proposal was approved by the required number of votes in Congress (acting as a constituent assembly).

b)      Whether the approved proposals were properly submitted to the people for ratification.

Proposal of Revisions

1)      By Congress, upon a vote of 3/4 of its members

2)      By a constitutional convention

Ratification

1)      Amendments and revisions proposed by Congress and/or by a ConCon:

a)      Valid when ratified by a MAJORITY of votes cast in a plebiscite.

b)      Plebiscite is held not earlier than 60 days nor later than 90 days from the approval of such amendments or revisions.

2)      Amendments proposed by the people via initiative:   

a)      Valid when ratified by a MAJORITY of votes cast in a plebiscite.

b)      Plebiscite is held not earlier than 60 days nor later than 90 days after the certification by COMELEC of the petition’s sufficiency

3)      Requisites of a valid ratification:

a)      Held in a plebiscite conducted under the election law;

b)      Supervised by the COMELEC; and

c)      Where only franchised voters (registered) voters take part.

4)      Issues regarding ratification:

a)      The Constitution does not require that amendments and revisions be submitted to the people in a special election. Thus, they may be submitted for ratification simultaneously with a general election.

b)      The determination of the conditions under which proposed amendments/revisions are submitted to the people falls within the legislative sphere. That Congress could have done better does not make the steps taken unconstitutional.

c)      All the proposed amendments/revisions made by the constituent assemblies must be submitted for ratification in one single plebiscite. There cannot be a piece-meal ratification of amendments/revisions.

d)      Presidential proclamation is NOT required for effectivity of amendments/revisions, UNLESS the proposed amendments/revisions so provide.

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations

Political Law (Constitutional Law) – ARTICLE XVI – GENERAL PROVISIONS

Political Law (Constitutional Law) – Article XVI

ARTICLE XVI – GENERAL PROVISIONS

Sections 1-2. Symbols of Nationality

1) Flag

• Red, white, and blue.
• With a sun and 3 stars
• The design may be changed by constitutional amendment.

2) Congress may, by law, adopt a new:

(a) Name for the country,

(b) National anthem, or

(c) National seal.

Note: Law will take effect upon ratification by the people in a NATIONAL REFERENDUM.

Section 3.  State Immunity

Suability of State

1) The State cannot be sued without its consent.

2) When considered a suit against the State

a).  The Republic is sued by name;

b).  Suits against an un-incorporated government agency;

c).  Suit is against a government official, but is such that ultimate liability shall devolve on the government

i.  When a public officer acts in bad faith, or beyond the scope of his authority, he can be held personally liable for damages.

ii.  BUT:  If he acted pursuant to his official duties, without malice, negligence, or bad faith, they are not personally liable, and the suit is really one against the State.

3) This rule applies not only in favor of the Philippines but also in favor of foreign states.

4) The rule likewise prohibits a person from filing for interpleader, with the State as one of the defendants being compelled to interplead.

Consent to be sued

A. Express consent:

1). The law expressly grants the authority to sue the State or any of its agencies.

2). Examples:

a). A law creating a government body expressly providing that such body “may sue or be sued.”

b). Art. 2180 of the Civil Code, which creates liability against the State when it acts through a special agent.

B. Implied consent:

1). The State enters into a private contract.

a). The contract must be entered into by the proper officer and within the scope of his authority.

b). UNLESS:  The contract is merely incidental to the performance of a governmental function.

2). The State enters into an operation that is essentially a business operation.

a). UNLESS:  The operation is incidental to the performance of a governmental        function (e.g. arrastre services)

b). Thus, when the State conducts business operations through a GOCC, the latter can generally be sued, even if its charter contains no express “sue or be sued” clause.

3). Suit against an incorporated government agency.

a) This is because they generally conduct propriety business operations and have charters which grant them a separate juridical personality.

4). The State files suit against a private party.

UNLESS:  The suit is entered into only to resist a claim.

Garnishment of government funds:

1) GENERAL RULE:  NO.  Whether the money is deposited by way of general or special deposit, they remain government funds and are not subject to garnishment.

2) EXCEPTION:  A law or ordinance has been enacted appropriating a specific amount to pay a valid government obligation, then the money can be garnished.

Consent to be sued is not equivalent to consent to liability:

1) The Fact that the State consented to being sued does not mean that the State will ultimately be held liable.

2) Even if the case is decided against the State, an award cannot be satisfied by writs of execution or garnishment against public funds.  Reason:  No money shall be paid out of the public treasury unless pursuant to an appropriation made by law.

Section 4.  THE ARMED FORCES OF THE PHILIPPINES

Composition:

A citizen armed force

Prohibitions and disqualifications:

1) Military men cannot engage, directly or indirectly, in any partisan political activity, except to vote.

2) Members of the AFP in active service cannot be appointed to a civilian position in the government, including GOCCs or their subsidiaries.

The Chief of Staff:

1) Tour of duty: Not exceed to three years

2) EXCEPTION:  In times of war or other national emergency as declared by Congress, the President may extend such tour of duty.

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations

Political Law (Constitutional Law) – ARTICLE XIV – EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS

Political Law (Constitutional Law) – Article XIV

ARTICLE XIV – EDUCATION, SCIENCE AND TECHNOLOGY,

ARTS, CULTURE, AND SPORTS

Education

Goals of the State:

The State shall promote and protect:

1) The right to quality education at all levels;

2) The right to affordable and accessible education; and

3) Education that is relevant to the needs of people and society.

Right to Education and Academic Freedom

The right to education must be read in conjunction with the academic freedom of schools to require “fair, reasonable, and equitable admission requirements.”

Power to Dismiss Students

1) Schools have the power to dismiss students, after due process, for disciplinary reasons.

2)  Acts committed outside the school may also be a ground for disciplinary action if:

a) It involves violations of school policies connected to school-sponsored activities; or

b) The misconduct affects the student’s status, or the good name or reputation of the school.

Regulation of Right to Education

The right to education in particular fields may be regulated by the State in the exercise of its police power, e.g. the State may limit the right to enter medical school by requiring the applicants to take the NMAT.

Free Education

1) The State shall maintain a system of free education in:

a) Elementary level, and

b) High school level.

2) Elementary education is compulsory for all children of school age. However, this is a moral rather than a legal compulsion.

Educational Institutions

I. Filipinization

A. Ownership:

1). Filipino citizens, or

2). Corporations incorporated in RP and 60% Filipino-owned.

EXCEPT: Schools established by religious groups and mission boards.

3). Congress may increase Filipino equity requirements in ALL educational institutions.

B. Control and Administration:

1). Must be vested in Filipino citizens

2). Refers to line positions, such as President, Dean, Principal, and Trustees

3). Faculty members may be foreigners.

C.  Student Population:

1). GENERAL RULE: Cannot establish school exclusively for aliens. Aliens can only comprise up to 1/3 of total enrollment.

2). EXCEPTIONS: Schools established for foreign diplomatic personnel and their dependents, and unless otherwise provided for by law for other foreign temporary residents.

II. Tax Exemptions

A. Non-stock, non-profit educational institutions:

1) All revenues and assets actually, directly and exclusively used for educational purposes are exempt from taxes and duties.

2) This is self-executory

    B. Proprietary educational institutions, including cooperatives:

1) Entitled to exemptions as may be provided by law, including restrictions on dividends and re-investment

2) Requires an enabling statute

3) Grants, endowments, donations and contributions actually, directly and exclusively used for educational purposes are exempt from taxes, subject to conditions prescribed by law.

III. Academic Freedom

A. Educational Institutions

Schools have the freedom to determine:

1) Who may teach,

2) What may be taught,

3) How it shall be taught, and

4) Who may be admitted to study.

      B. Faculty members

1) Full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties.

2) Freedom in the classroom in discussing their subjects, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subjects.

3) When faculty members speak or write in their capacity as citizens, then they are free from institutional censorship or discipline.

     C. Students

They have the right to enjoy in school the guarantees of the Bill of Rights.

    D. Limitations

1) Dominant police power of the State

2) Social interest of the community

    E. Budgetary Priority:

1). Education must be assigned the highest budgetary priority.

2). BUT: This command is not absolute.  Congress is free to determine what should be given budgetary priority in order to enable it to respond to the imperatives of national interest and for the attainment of other state policies or objectives.

Religious Education in Public Schools:

Religion may be taught in public schools subject to the following requisites:

1) Express written option by parents and guardians;

2) Taught within regular class hours;

3) Instructors are designated and approved by the proper religious authorities; and

4) WITHOUT ADDITIONAL COST TO THE GOVERNMENT.

Section 6. Language

1) National language: Filipino

2) Official Languages: Filipino, and unless otherwise provided by law, English.

3) Regional languages are auxiliary to the official languages.

4 (Spanish and Arabic are promoted only on an optional and voluntary basis.

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations

Political Law (Constitutional Law) – ARTICLE XIII – SOCIAL JUSTICE AND HUMAN RIGHTS

Political Law (Constitutional Law) – Article XIII

ARTICLE XIII – SOCIAL JUSTICE AND HUMAN RIGHTS

Social Justice

1)   Social justice in the Constitution is principally the embodiment of the principle that those who have less in life should have more in law.

2)   The 1987 Constitution advances beyond what was in previous Constitutions in that it seeks not only economic social justice but also political social justice.

Principal activities in order to achieve social justice

1)   Creation of more economic opportunities and more wealth; and

2)   Closer regulation of the acquisition, ownership, use and disposition of property in order to achieve a more equitable distribution of wealth and political power.

Labor

• Section 3 of Article XIII elaborates on the provision in Article II by specifying who are protected by the Constitution, what rights are guaranteed, and what positive measures the state should take in order to enhance the welfare of labor.

Right to organize and to hold peaceful concerted activities

• Ø The right to organize is given to all kinds of workers BOTH in the PRIVATE and PUBLIC sectors.
• Ø The workers have a right to hold peaceful concerted activities except the right to strike, which is subject to limitation by law.

Right to participate in the decision making process of employers

The workers have the right to participate on matters affecting their rights and benefits, “as may be provided by law”.  This participation can be through

1)               collective bargaining agreements,

2)               grievance machineries,

3)               voluntary modes of settling disputes, and

4)               conciliation proceedings mediated by government.

Agrarian Reform

Goals:

Agrarian reform must aim at

1)  efficient production,

2)  a more equitable distribution of land which recognizes the right of farmers and regular farmworkers who are landless to own the land they till, and

3)  a just share of other or seasonal farmworkers in the fruits of the land.

CARL as an exercise of police power and power of eminent domain

• To the extent that the law prescribes retention limits for landowners, there is an exercise of police power. But where it becomes necessary to deprive owners of their land in excess of the maximum allowed there is compensable taking and therefore the exercise of eminent domain.

Reach of agrarian reform

• It extends not only to private agricultural lands, but also to “other natural resources,” even including the use and enjoyment of “communal marine and fishing resources” and “offshore fishing grounds”.

The Commission on Human Rights

Composition:

1)   Chairman; and

2)   4 members

Qualifications:

1)   Natural-born citizens of the Philippines;

2)   Majority of the Commission must be members of the Philippine Bar;

3)  Term of office, other qualifications and disabilities shall be provided by law;

4)  The appointment of the CHR members is NOT subject to CA confirmation; and

5)  The CHR is not of the same level as the COMELEC, CSC, or COA.

Powers:

1)  Investigate all forms of human rights violations involving civil or political rights

A. Violations may be committed by public officers or by civilians or rebels.

B. CHR cannot investigate violations of social rights.

C. CHR has NO adjudicatory powers over cases involving human rights violations.

D. They cannot investigate cases where no rights are violated.

E. Example: There is no right to occupy government land, i.e. squat thereon. Therefore, eviction therefrom is NOT a human rights violation.

2)  Adopt operational guidelines and rules of procedure.

3)  Cite for contempt for violations of its rules, in accordance with the Rules of Court.

4) Provide appropriate legal measures for the protection of the human rights of all persons, within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection.

A. CHR can initiate court proceedings on behalf of victims of human rights violations.

B. They can recommend the prosecution of human rights violators, but it cannot itself prosecute these cases.

C. BUT: The CHR cannot issue restraining orders or injunctions against alleged human rights violators. These must be obtained from the regular courts.

5)  Exercise visitorial powers over jails, prisons and other detention facilities.

6) Establish continuing programs for research, education and information in order to enhance respect for the primacy of human rights.

7)  Recommend to Congress effective measures to promote human rights and to provide compensation to victims of human rights violations or their families.

8)  Monitor compliance by the government with international treaty obligations on human rights.

9) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any CHR investigation.

10) Request assistance from any department, bureau, office, or agency in the performance of its functions.

11)  Appoint its officers and employers in accordance with law.

12)  Perform such other functions and duties as may be provided for by law

Reference:

Political Law (Constitutional Law) Reviewer & Memory Aid

Ateneo Central Bar Operations