whohoo almost there.docx - Political and International Law Reviewer By Atty Enrique Dela Cruz 1 POLITICAL AND INTERNATIONAL LAW Political Law \u2013

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Unformatted text preview: Political and International Law Reviewer By: Atty. Enrique Dela Cruz 1 POLITICAL AND INTERNATIONAL LAW Political Law – Constitutional Law – Supremacy of the Constitution Q: BNN Republic has a defense treaty with EVA Federation. According to the Republic’s Secretary of Defense, the treaty allows temporary basing of friendly foreign troops in case of training exercises for the war on terrorism. The Majority Leader of the Senate contends that whether temporary or not, the basing of foreign troops however friendly is prohibited by the Constitution of BNN which provides that, “No foreign military bases shall be allowed in BNN territory.” In case there is indeed an irreconcilable conflict between a provision of the treaty and a provision of the Constitution, in a jurisdiction and legal system like ours, which should prevail: the provision of the treaty or of the Constitution? Why? Explain with reasons, briefly. (5%) (2004 Bar Question) SUGGESTED ANSWER; In case of conflict between a provision of a treaty and a provision of the Constitution, the provision of the Constitution should prevail. Section 5(2)(a), Article VIII of the 1987 Constitution authorizes the nullification of a treaty when it conflicts with the Constitution. (Gonzales v. Hechanova, 9 SCRA 230 [1963]). The Doctrine of Constitutional Supremacy Under this doctrine, 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. 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, GR No. 122156, February 3, 1997) Amendment and Revision An amendment is an isolated or piecemeal change merely by adding, deleting, or reducing without altering the basic principles involved. A revision, on the other hand, is a revamp or rewriting of the whole instrument altering the substantial entirety of the Constitution. How do you determine whether a proposed change is an amendment or a revision? Political and International Law Reviewer By: Atty. Enrique Dela Cruz 2 Quantitative test – asks whether the proposed change is so extensive in its provisions as to change directly the ‘substantial entirety’ of the Constitution by the deletion or alteration of numerous existing provisions. One examines only the number of provisions affected and does not consider the degree of the change. Qualitative test – whether the change will accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision. (Lambino v. Comelec, G.R. No. 174153, Oct. 25, 2006) Can the President form a 25-man Con-com that will prepare draft amendments to the Constitution, which will then be submitted to Congress acting as a Con-Ass? Yes. There is no prohibition to combine the two. In effect, the amendments will still be enacted by Congress upon a vote of ¾ of all its members acting as Constituent Assembly (ConAss); “Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; (Art. XVII, Sec. 1, 1987 Constitution) A respected Constitutionalist, Fr. Joaquin Bernas, points to the record of the Constitutional Convention that “the two houses of Congress vote separately” in reaching the required 3/4 vote. Can the plebiscite for the new constitution be held together with the 2019 elections? The doctrine of fair and proper submission to the people of proposed constitutional amendments as enunciated by the Court in Tolentino vs. Comelec (41 SCRA 702, 729) mandates that "in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time, but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole." There must be fair submission and intelligent consent or rejection. The people must be "sufficiently informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner." Ratification Amendments or revisions to the Constitution by Constituent Assembly or Constitutional Convention shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the approval of such amendment or revision. Amendments by People’s Initiative shall be valid when ratified by a majority of Political and International Law Reviewer By: Atty. Enrique Dela Cruz 3 the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the certification by the COMELEC of the sufficiency of the petition. Requisites for a valid Ratification 1. Held in a plebiscite conducted under the Election Law; 2. Supervised by COMELEC; 3. Only registered voters take part. Doctrine of Proper Submission The people must be sufficiently informed of the amendments to be voted upon, for them to conscientiously deliberate thereon, to express their will in a genuine manner. Submission of piece-meal amendments is unconstitutional. Political Law – Constitutional Law- Amendments and revisions Q: State the various modes of and steps in revising or amending the Philippine Constitution. (1997) SUGGESTED ANSWER; There are three modes of amending the Constitution. 1. Under Section 1. Article XVIII of the Constitution. Congress may by threefourths vote of all its Members propose any amendment to or revision of the Constitution. 2. Under the same provision, a constitutional convention may propose any amendment to or revision of the Constitution. According to Section 3. Article XVII of the Constitution. Congress may by a two-thirds vote of all its Members call a constitutional convention or by a majority vote of all its Members submit the question of calling such a convention to the electorate. 3. Under Section 2, Article XVII of the Constitution, the people may directly propose amendments to the Constitution through initiative upon a petition of at least twelve percent of the total number of registered voters, of which every legislative district must be represented by at least three per cent of the registered Political and International Law Reviewer By: Atty. Enrique Dela Cruz 4 voters therein. According to Section 4. Article XVII of the Constitution, to be valid any amendment to or revision of the Constitution must be ratified by a majority of the votes cast in a plebiscite. Political Law – Constitutional Law- Amendments And Revisions Q: An amendment to or a revision of the present Constitution maybe proposed by a Constitutional Convention or by the Congress upon a vote of three-fourths of all its members. Is there a third way of proposing revisions of or amendments to the Constitution? If so, how? (5%) (2004 Bar Question) SUGGESTED ANSWER: There is no third way of proposing revisions to the Constitution; however, the people through initiative upon petition of at least twelve per cent of the total number of registered voters, of which every legislative district must be represented by at least three per cent of the registered voters in it, may directly propose amendments to the Constitution. This right is not operative without an implementing law. (Section 2, Article XVI of the 1987 Constitution.) Political Law- Constitutional Law – Amendment of the Constitution Q: True or False. Briefly explain your answer. (2007 Bar Question) An amendment to the Constitution shall be valid upon a vote of three-fourths of all the Members of the Congress. SUGGESTED ANSWER; The statement is false. First, an amendment proposed by Congress must be approved by at least three-fourths (3/4) vote of the members of the Senate and of the House of Representatives voting separately. It is inherent in a bicameral Political and International Law Reviewer By: Atty. Enrique Dela Cruz 5 legislature for the two houses to vote separately. (II Record of the Constitutional Commission493). Second, the amendment shall be valid only when ratified by a majority of the votes cast in a plebiscite (Constitution, Art. XVII, sec. 4). Political Law – Constitutional Law - Initiative and Referendum Q: The present Constitution introduced the concepts and processes of Initiative and Referendum. Compare and differentiate one from the other. (3%) (2005 Bar Question) SUGGESTED ANSWER: Initiative is the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose (Section 3(a), Republic Act No. 6735). Referendum is the power of the electorate to approve or reject a legislation through an election called for the purpose. (Section 3(c), Republic Act No. 6735). Political Law – Constitutional Law – People’s Initiative; Amendment of the Constitution Q: What are the essential elements of a valid petition for a people’s initiative to amend the 1987 Constitution? Discuss. (2%) (2010 Bar Question) SUGGESTED ANSWER: The elements of a valid petition for a people’s initiative are the following: 1. At least twelve per cent (12%) of the registered voters, of which every legislative district must be represented by at least three per cent (3%) of the registered voters in it, should directly sign the entire proposal; and 2. The draft of the proposed amendment must be embodied in the petition (Lambino v. Commission on Elections, 505 SCRA 160 [2006]). Further Discussion: Q: All public officers and employees shall take an oath to uphold and defend the Constitution. FIRST ALTERNATIVE ANSWER: Political and International Law Reviewer By: Atty. Enrique Dela Cruz 6 The statement is true. This is expressly provided for in Section 4, Article IX-B of the 1987 Constitution. SECOND ALTERNATIVE ANSWER: The statement is false. The Constitution states: “All public officers and employees shall take an oath or affirmation to uphold and defend this Constitution” (1987 Constitution, Art. IX-B, sec. 4). Amendment and Revision An amendment is an isolated or piecemeal change merely by adding, deleting, or reducing without altering the basic principles involved. A revision, on the other hand, is a revamp or rewriting of the whole instrument altering the substantial entirety of the Constitution. How do you determine whether a proposed change is an amendment or a revision? Quantitative test – asks whether the proposed change is so extensive in its provisions as to change directly the ‘substantial entirety’ of the Constitution by the deletion or alteration of numerous existing provisions. One examines only the number of provisions affected and does not consider the degree of the change. Qualitative test – whether the change will accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision. (Lambino v. Comelec, G.R. No. 174153, Oct. 25, 2006) Can the President form a 25-man Con-com that will prepare draft amendments to the Constitution, which will then be submitted to Congress acting as a Con-Ass? Yes. There is no prohibition to combine the two. In effect, the amendments will still be enacted by Congress upon a vote of ¾ of all its members acting as Constituent Assembly (ConAss); “Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; (Art. XVII, Sec. 1, 1987 Constitution) A respected Constitutionalist, Fr. Joaquin Bernas, points to the record of the Constitutional Convention that “the two houses of Congress vote separately” in reaching the required 3/4 vote. Can the plebiscite for the new constitution be held together with the 2019 elections? The doctrine of fair and proper submission to the people of proposed constitutional amendments as enunciated by the Court in Tolentino vs. Comelec (41 Political and International Law Reviewer By: Atty. Enrique Dela Cruz 7 SCRA 702, 729) mandates that "in order that a plebiscite for the ratification of an amendment to the Constitution may be validly held, it must provide the voter not only sufficient time, but ample basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole." There must be fair submission and intelligent consent or rejection. The people must be "sufficiently informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner." Ratification Amendments or revisions to the Constitution by Constituent Assembly or Constitutional Convention shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the approval of such amendment or revision. Amendments by People’s Initiative shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the certification by the COMELEC of the sufficiency of the petition. Requisites for a valid Ratification 1. Held in a plebiscite conducted under the Election Law; 2. Supervised by COMELEC; 3. Only registered voters take part. Doctrine of Proper Submission The people must be sufficiently informed of the amendments to be voted upon, for them to conscientiously deliberate thereon, to express their will in a genuine manner. Submission of piece-meal amendments is unconstitutional. Initiative Power of the people to propose amendments to the Constitution or to propose and enact legislation. What are the kinds of initiative under the Initiative and Referendum Act? Political and International Law Reviewer By: Atty. Enrique Dela Cruz 8 1. Initiative on the Constitution—refers to a petition proposing amendments to the Constitution. 2. Initiative on statutes—refers to a petition to enact a national legislation. 3. Initiative on local legislation—refers to a petition proposing to enact a regional, provincial, municipal, city, or barangay law, resolution or ordinance. (Sec. 2 [a], RA 6735) NOTE: Sec. 3 (b) of RA 6735 provides for: a. Indirect Initiative – Exercise of initiative by the people through a proposition sent to Congress or the local legislative body for action. b. Direct Initiative – The people themselves filed the petition with the COMELEC and not with Congress. Can the Constitution be revised directly by the people thru initiative under RA 6735? NO. RA 6735 applies only to initiative and referendum on national and local laws. Under RA 6735, initiative on the Constitution is confined only to proposals to amend. The proposals will then have to be submitted to Congress for enactment. (Defensor-Santiago v. COMELEC, G.R. No. 127325, March 19, 1997) Also, while the law provides subtitles for National Initiative and Referendum and for Local Initiative and Referendum, no subtitle is provided for initiative on the Constitution. This means that the main thrust of the law is initiative and referendum on national and local laws. If RA 6735 were intended to fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far more important than the initiative on national and local laws. While RA 6735 specially detailed the process in implementing initiative and referendum on national and local laws, it intentionally did not do so on the system of initiative on amendments to the Constitution (Defensor-Santiago v COMELEC, G.R. No. 127325, March 19, 1997) Referendum Power of the electorate to approve or reject legislation through an election called for that purpose. Political and International Law Reviewer By: Atty. Enrique Dela Cruz 9 Kinds of Referendum 1. Referendum on Statutes - Refers to a petition to approve or reject a law, or part thereof, passed by Congress. 2. Referendum on Local Law – Refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies. Initiative vs. Referendum (2000 Bar) An Initiative is the power of the people to propose amendments to the Constitution or to propse and enact legislations through an election called for the purpose. A Referendum is the power of the electorate to approve or reject legislation through an election called for that purpose. [RA No. 6735 [1989], Sec. 3(c)] The following cannot be subjects of an initiative or referendum: a. No petition embracing more than one (1) subject shall be submitted to the electorate. b. Statutes involving emergency measures, the enactment of which are specifically vested in Congress by the Constitution, cannot be subject to referendum until 90 days after their effectivity. (RA 6735, Sec. 10) NOTE: The Constitution may be amended not oftener than every 5 years through initiative. Revisions cannot be done through Initiative. (Lambino v. Comelec, G.R. No. 174153, Oct. 25, 2006) Limitations On Local Initiative 1. It shall not be exercised for more than once a year. 2. It shall extend only to subjects or matters which are within the legal powers of the sanggunian to enact. 3. If at any time before the initiative is held, the sanggunian concerned adopts in toto the proposition presented and the local chief executive approves the same, the initiative shall be canceled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided (LGC, Sec. 124). Political and International Law Reviewer By: Atty. Enrique Dela Cruz 10 Procedure In Conducting Local Initiative 1. Number of voters who should file petition with the Sanggunian concerned: a. Province and cities – not less than 1000 registered voters b. Municipality – at least 100 registered voters c. Barangay – at least 50 registered voters 2. The sanggunian concerned has 30 days to act on the petition. If the sanggunian does not take any favorable action, the proponents may invoke the powers of initiative, giving notice to sanggunian. 3. Proponents will have the following number of days to collect required number of signatures a. Provinces and cities – 90 days b. Municipalities – 60 days c. Barangay – 30 days 4. Signing of petition in a public place, before the election registrar or his designated representatives, in the presence of a representative of the proponent and of the sanggunian concerned. 5. Date of initiative is set by COMELEC if the required number of signatures has been obtained (LGC, Sec. 122) Effectivity of proposition If the proposition is approved by a majority of the votes cast, it will take effect 15 days after certification by the COMELEC (LGC, Sec. 123). Rule of COMELEC over local referendum The local referendum shall be held under the control and direction of the COMELEC within a. Provinces and cities – 60 days b. Municipalities – 45 days c. Barangay – 30 days The COMELEC shall certify and proclaim the results of the said referendum (LGC, Sec. 126). Rule On Repeal, Modification And Amendment Of An Ordinance Or Proposition Approve Through An Initiative And Referendum The same shall not be repealed, modified or amended by the Sanggunian within 6 months from the approval thereof. It may be amended, modified or repealed within 3 years thereafter by a vote of ¾ of all its members (LGC, Sec. 125). NOTE: In case of barangays, the period shall be 18 months after the approval thereof (LGC, Sec. 125). The Philippine Congress is bicameral in nature, composed of: 1. Senate 2. House of Representatives Political and International Law Reviewer By: Atty. Enrique Dela Cruz 11 a. District Representative...
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