2015 BAR EXAM

PRE-WEEK NOTES IN POLITICAL LAW

Atty. Anjo David

DOCTRINE OF CONSTITUTIONAL SUPREMACY

a. Expressed in the Civil Code

ARTICLE 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall
be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they are
not contrary to the laws or the Constitution.

- A.D.: This is the orthodox view on constitutional supremacy. (Serrano de Agbayani v.

Philippine National Bank, 148 Phil. 443, 447-448, 1971). The modern view is expressed
in the doctrine of operative fact.

The doctrine of operative fact is an exception to the general rule, such that a judicial
declaration of invalidity may not necessarily obliterate all the effects and
consequences of a void act prior to such declaration. (CIR v. San Roque Power
Corporation, G.R. No. 187485, October 8, 2013)

- A.D.: When does it apply? Note the requirements!

(1) For the operative fact doctrine to apply, there must be a "legislative or executive
measure," meaning a law or executive issuance, that is invalidated by the court.
From the passage of such law or promulgation of such executive issuance until
its invalidation by the court, the effects of the law or executive issuance, when
relied upon by the public in good faith, may have to be recognized as valid. An
administrative practice is neither a law nor an executive issuance. (CIR v. San
Roque Power Corporation, G.R. No. 187485, October 8, 2013)

(2) In cases where nullification of the effects will result in inequity and injustice,
the operative fact doctrine may apply. (Araullo v. Aquino [Resolution], G.R. No.
209287, February 3, 2015)

- A.D.: When the doctrine of operative fact is applied, does it include a finding of
liability on the part of the officer/s who performed the legislative/executive act
declared unconstitutional? NO! But these officers may be held liable, according to
the Supreme Court, by the proper tribunals.

The presumption of good faith stands despite the obiter pronouncement [in the
Decision]. Note that the proper tribunals can make "concrete findings of good faith
in their favor" only after a full hearing of all the parties in any given case, and such a
hearing can begin to proceed only after according all the presumptions, particularly

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that of good faith, by initially requiring the complainants, plaintiffs or accusers to

first establish their complaints or charges before the respondent authors, proponents
and implementors of the DAP. (Araullo v. Aquino [Resolution], G.R. No. 209287,
February 3, 2015)

b. Constitution deemed written in every contract

Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the
constitution that law or contract whether promulgated by the legislative or by the executive
branch or entered into by private persons for private purposes is null and void and without
any force and effect. Thus, since the Constitution is the fundamental, paramount and
supreme law of the nation, it is deemed written in every statute and contract. (Manila
Prince Hotel v. GSIS, G.R. No. 122156, February 3, 1997)

c. Constitution as a check upon the branches of government

The supremacy of the Constitution serves as the safety mechanism that will ensure the
faithful performance by this Court of its role as guardian of the fundamental law.
Awareness of the proper scope of its power of judicial review in cases involving the HRET,
an independent body with a specific constitutional mandate, behooves the Court to stay its
hands in matters involving the exercise of discretion by that body, except in clear cases of
grave abuse of discretion. (Henry "Jun" Dueas, Jr. v. HRET, G.R. No. 185401, July 21, 2009)

INTERGENERATIONAL RESPONSIBILITY

A.D.: The doctrine is relevant when it comes to the question of locus standi.

On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled
that not only do ordinary citizens have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their own and future generations.
Thus:

Petitioners minors assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology
is concerned (Arigo v. Swift, G.R. No. 206510, September 16, 2014 citing Oposa v. Factoran,
Jr. G.R. No. 101083, July 30, 1993)

SEPARATION OF CHURCH AND STATE

a. Non-establishment and Free Exercise

At the outset, the Constitution mandates the separation of church and state. This takes many
forms. Article III, Section 5 of the Constitution, for instance provides:

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Section 5. No law shall be made respecting an establishment of religion, or prohibiting the

free exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.

There are two aspects of this provision. The first is the non-establishment clause. Second is the
free exercise and enjoyment of religious profession and worship. (Diocese of Bacolod v.
COMELEC, G.R. No. 205728, January 21, 2015)

b. See Rene Ronulo v. People of the Philippines, G.R. No. 182438, July 2, 2014:

The only issue to be resolved is whether the alleged "blessing" by the petitioner is tantamount to
the performance of an "illegal marriage ceremony" which is punishable under Article 352 of the
RPC, as amended.

We also do not agree with the petitioner that the principle of separation of church and State
precludes the State from qualifying the church "blessing" into a marriage ceremony. Contrary to
the petitioners allegation, this principle has been duly preserved by Article 6 of the Family
Code when it provides that no prescribed form or religious rite for the solemnization of
marriage is required. This pronouncement gives any religion or sect the freedom or latitude in
conducting its respective marital rites, subject only to the requirement that the core
requirements of law be observed.

A.D.: This case involves the non-establishment clause.

c. See Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015

A.D. The main issue here is Does the COMELEC have the competence to limit expressions
made by the citizens who are not candidates during elections? The answer is no. The
discussion on this issue is quite long. For purposes of these notes, lets focus only on the
religious speech issue.

A.D.: What happened here? The Bishop of Bacolod caused the posting of the tarpaulin within a
private compound housing the San Sebastian Cathedral of Bacolod with the message,
"IBASURA RH Law", and Conscience Vote" and lists candidates as either "(Anti-RH) Team
Buhay" with a check mark, or "(Pro-RH) Team Patay" with an "X" mark. COMELEC issued
Notice to Remove Campaign Materials. Is this violative of freedom of religion? NO! How do we
know? Apply the Lemon test!

Not all acts done by those who are priests, bishops, ustadz, imams, or any other religious make
such act immune from any secular regulation. The religious also have a secular existence. They
exist within a society that is regulated by law. Lemon test A regulation is constitutional when:
(1) it has a secular legislative purpose; (2) it neither advances nor inhibits religion; and (3) it

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does not foster an excessive entanglement with religion. (Diocese of Bacolod v. COMELEC, G.R.
No. 205728, January 21, 2015)

INCORPORATION THEORY

- A.D. Where can you find it? Section 2, Article II of the Constitution provides that "[t]he
Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity with nations."

- Under the doctrine of incorporation, rules of international law form part of the law of the
land and no further legislative action is needed to make such rules applicable in the
domestic sphere. The doctrine of incorporation is applied whenever municipal tribunals (or
local courts) are confronted with situations in which there appears to be a conflict between a
rule of international law and the provisions of the constitution or statute of the local state.
(Secretary of Justice v. Lantion, G.R. No. 139465, January 18, 2000)

- On the other hand, the transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local
legislation. (Pharmaceutical and Health Care Association of the Philippines v. Duque III, G.R. No.
173034, October 9, 2007)

- What exactly do we incorporate? All sources of international law? NO. Only generally
accepted principles of international law. What do we mean by that?

We characterized "generally accepted principles of international law" as norms of general or

customary international law that are binding on all states. The classical formulation in
international law sees those customary rules accepted as binding result from the
combination [of] two elements: (1) the established, widespread, and consistent practice on
the part of States; and (2) a psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the
practice in question is rendered obligatory by the existence of a rule of law requiring it.
(Razon v. Tagitis, G.R. No. 182498, December 3, 2009)

In Razon, the Supreme Court said: While the Philippines is not yet formally bound by the
terms of the Convention on enforced disappearance (or by the specific terms of the Rome
Statute) and has not formally declared enforced disappearance as a specific crime, the above
recital shows that enforced disappearance as a State practice has been repudiated by the
international community, so that the ban on it is now a generally accepted principle of
international law, which we should consider a part of the law of the land, and which we
should act upon to the extent already allowed under our laws and the international
conventions that bind us.

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- How is conflict between a international law and municipal law and/or the constitution
resolved? (Secretary of Justice v. Lantion, G.R. No. 139465, January 18, 2000)

(1) Efforts should first be exerted to harmonize them, so as to give effect to both since it is
to be presumed that municipal law was enacted with proper regard for the generally
accepted principles of international law in observance of the observance of the Incorporation
Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed.,
p. 55).

(2) In a situation, however, where the conflict is irreconcilable and a choice has to be made
between a rule of international law and municipal law, jurisprudence dictates that
municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil.
1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961])
for the reason that such courts are organs of municipal law and are accordingly bound by it
in all circumstances (Salonga & Yap, op. cit., p. 13).

(3) The fact that international law has been made part of the law of the land does not pertain
to or imply the primacy of international law over national or municipal law in the municipal
sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of
international law are given equal standing with, but are not superior to, national legislative
enactments. Accordingly, the principle lex posterior derogat priori takes effect a treaty
may repeal a statute and a statute may repeal a treaty.

(4) In states where the constitution is the highest law of the land, such as the Republic of the
Philippines, both statutes and treaties may be invalidated if they are in conflict with the
constitution.

TRANSFER OF APPROPRIATED FUNDS (DAP CASE)

Araullo v. Aquino, G.R. No. 209287, July 1, 2014

The transfer of appropriated funds, to be valid under Section 25(5), Article VI of the 1987
Constitution, must be made upon a concurrence of the following requisites, namely:

(1) There is a law authorizing the President, the President of the Senate, the Speaker of the
House of Representatives, the Chief Justice of the Supreme Court, and the heads of the
Constitutional Commissions to transfer funds within their respective offices;

- Article VI, Section 25(5), not being a self-executing provision of the Constitution,
must have an implementing law for it to be operative. That law, generally, is the
GAA of a given fiscal year. To comply with the first requisite, the GAAs should
expressly authorize the transfer of funds.

(2) The funds to be transferred are savings generated from the appropriations for their
respective offices;

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- The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013,
reflected this interpretation and made it operational, viz:

Savings refer to portions or balances of any programmed appropriation in this Act

free from any obligation or encumbrance which are: (i) still available after the
completion or final discontinuance or abandonment of the work, activity or purpose
for which the appropriation is authorized; (ii) from appropriations balances arising
from unpaid compensation and related costs pertaining to vacant positions and
leaves of absence without pay; and (iii) from appropriations balances realized from
the implementation of measures resulting in improved systems and efficiencies and
thus enabled agencies to meet and deliver the required or planned targets, programs
and services approved in this Act at a lesser cost.

The three instances listed in the GAAs aforequoted definition were a sure indication
that savings could be generated only upon the purpose of the appropriation being
fulfilled, or upon the need for the appropriation being no longer existent.

(3) The purpose of the transfer is to augment an item in the general appropriations law for
their respective offices.

- The third requisite for a valid transfer of funds is that the purpose of the transfer
should be "to augment an item in the general appropriations law for the respective
offices." The term "augment" means to enlarge or increase in size, amount, or
degree. In other words, an appropriation for must first be determined to be
deficient before it could be augmented from savings.