Political Law Bar Q and A

Political Law Bar Questions and Answers

Bar Q and A #13

1.) SDO was elected Congressman. Before the end of his first year in office, he inflicted physical injuries on a colleague, ETI. In the course of a heated debate, charges were filed in court against him as well as in the House Ethics Committee. Later, the House of Representatives, dividing along party lines, voted to expel him. Claiming that his expulsion was railroaded and tainted by bribery, he filed a petition seeking a declaration by the Supreme Court that the House gravely abused its discretion and violated the Constitution. He prayed that his expulsion be annulled and that he should be restored by the Speaker to his position as Congressman. Is SDO’s petition before the Supreme Court justiciable?

While under Section 1, Article VIII of the 1987 Constitution the Supreme Court may inquire whether or not the decision to expel SDO is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the petition should be dismissed. In Alejandrino v. Quezon (46 Phil. 83 [1924J), the Supreme Court held that it could not compel the Senate to reinstate a Senator who assaulted another Senator and was suspended for disorderly behavior, because it could not compel a separate and coequal department to take any particular action. In Osmena v. Pendatun (109Phil. 863 [1960]), it was held that the Supreme Court could not interfere with the suspension of a Congressman for disorderly behavior, because the House of Representatives is the judge of what constitutes disorderly behavior. The assault of a fellow Senator constitutes disorderly behavior.

Textbox

2.) The President alone without the concurrence of the Senate abrogated a treaty. Assume that the other country-party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the Supreme Court, how should it be resolved?

The Supreme Court should dismiss the case. The jurisdiction of the Supreme Court over a treaty is only with respect to questions of its constitutionality or validity. In other words, the question should involve the constitutionality of a treaty or its validity in relation to a statute (Gonzales v. Hechanova, 9 SCRA 230). It does not pertain to the termination of a treaty.

The authority of the Senate over treaties is limited to concurrence. (Art. VIII, Sec. 21 of the 1987 Constitution) There being no express constitutional provision regulating the termination of treaties, it is presumed that the power of the President over treaty agreements and over foreign relations includes the authority to “abrogate” treaties. The termination of the treaty by the President without the concurrence of the Senate is not subject to constitutional attack, there being no Senate authority to that effect.

The Philippines is a party to the Vienna Convention on the Law of Treaties. Hence, the said Convention this becoming part of Philippine Law governs the act of the President in terminating the treaty. Article 54 of this Convention provides that a treaty may be terminated “At any time by consent of all the parties”. Apparently, the treaty in question is a bilateral treaty in which the other state is agreeable to its termination. Article 67 of the Convention adds the formal requirement that the termination must be in an instrument communicated to the other party signed by the Head of State or of Government or by the Minister of Foreign Affairs.

Textbox

3.) Mr. Yellow and Mr. Orange were the leading candidates in the vice-presidential elections. After elections, Yellow emerged as the winner by a slim margin of 100,000 votes. Undaunted, Orange filed a protest with the Presidential Electoral Tribunal (PET). After due consideration of the facts and the issues, the PET ruled that Orange was the real winner of the elections and ordered his immediate proclamation. a. Aggrieved, Yellow filed with the Supreme Court a Petition for Certiorari challenging the decision of the PET alleging grave abuse of discretion. Does the Supreme Court have jurisdiction? Explain. b. Would the answer in (a.) be the same if Yellow and Orange were contending for a senatorial slot and it was the Senate Electoral Tribunal (SET) who issued the challenged ruling? c. What is the composition of the PET? d. What is judicial power? Explain Briefly.

a. The Supreme Court has no jurisdiction over the petition. The Presidential Electoral Tribunal is not simply an agency to which the Members of the Senate Court were assigned. It is not separate from the Supreme Court. (Macalintal v. Presidential Tribunal Electoral Tribunal, 631 SCRA 239)

b. The Supreme Court would have jurisdiction if it were the Senate Electoral Tribunal who issued the challenged ruling. The Supreme Court can review its decision if it acted with grave abuse of discretion. (Lerias v. HRET, 202 SCRA 808)

c. The presidential Electoral Tribunal is composed of the Chief Justice and the Associate Justices of the Supreme Court en banc. (Section 4, Article VII of the Constitution)

d. Judicial power - Section 1(1) Art. 8 is the authority to settle justifiable controversies or dispute involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violation of such rights (Lopez v. Roxas, 17 SCRA 756). It includes the duty of the courts to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Section 1, Article VIII of the Constitution)

Textbox

4.) In keeping with the modern age of instant and incessant information and transformation, Congress passed Cybercrime Prevention Act to regulate access and use of the amenities of the cyberspace. While ostensibly the law is intended to protect the interests of society, some if its provisions were also seen as impermissibly invading and impairing widely cherished liberties of the people particularly the freedom of expression. Before the law could even be implemented, petitions were filed in the Supreme Court questioning said provisions by people who felt threatened, for themselves, as well as for the benefit of others who may be similarly affected nut not minded enough to challenge the law. The Solicitor General countered that there is no basis for the exercise of the power of judicial review since there has yet been no violation of the law, and that the petitioners have no locus standi since they do not claim to be in imminent danger of being prosecuted under the law. Can the Court proceed to decide the case even if the law has not yet become effective?

The Supreme Court can proceed to decide the case even if the law has not yet become effective. Since the petitions filed sought to nullify the Cybercrime Prevention Act, because it violated several provisions of the Bill of Rights, the Supreme Court became duty-bound to settle the dispute (Tañada v. Angara, 272 SCRA 18). Since it is alleged that the Cybercrime Prevention Act violates various provisions of the Bill of Rights, including freedom of speech, freedom of the press, and the right against unreasonable searches and seizures, the issues raised are of paramount public interest, of transcendental importance and with far-reaching constitutional implications, that justify dispensation with locus standi and exercise of the power of judicial review by the Supreme Court (Chavez v. Gonzales, 545 SCRA 441). Jurisprudence provides that locus standi is not required when the action was filed to prevent a chilling effect on the exercise of the right to freedom of expression and overbreadth.

Textbox

5.) What is the concept of expanded judicial review under the 1987 Constitution?

The 1987 Constitution has narrowed the reach of the political doctrine when it expanded the power of judicial review of the court not only “to settle actual controversies involving rights which are legally demandable and enforceable” but also “to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government” as stated in the second paragraph of Section 1, Article VIII of the Constitution.

The new provision vests in the judiciary, and particularly, the Supreme Court, the power to review even the political decisions of the executive and the legislature and declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. (Cruz, 2014)

Textbox

6.) In Serrano v. Gallant Maritime Services, Inc., 582 SCRA 254 (2009), the Supreme Court declared as violative of the Equal Protection Clause the 5th paragraph of §10 R.A. No. 8042 (Migrant Workers and Overseas Filipinos Act of 1995) for discriminating against illegally dismissed OFWs who still had more than a year to their contract compared to those who only had less than a year remaining. The next year, Congress enacted R.A. No 10222, an amendment to the Migrant Workers and Overseas Filipinos Act, which practically reinstated the provision struck down in Serrano. Seamacho, an overseas seafarer who still had two years remaining on his contract when he was illegally terminated, and who would only be entitled to a maximum of six-month’s pay under the reinstated provision, engages you as his counsel. How are you to argue that the new law is invalid insofar as it brings back to the statute books a provision that has already been struck down by the Court?

I will argue that since Section 10 of Republic Act No. 8042 has already been declared unconstitutional by the Supreme Court, its nullity cannot be cured by reincorporation or reenactment of the same or similar law or provision. Once a law has been declared unconstitutional, it remains unconstitutional unless circumstances have changed as to warrant a reverse conclusion (Sameer Overseas Placement Agency v. Cabiles, G.R. No. 170139, August 5, 2014).

Textbox

7.) Define/explain: Doctrine of operative facts

The doctrine of operative facts means that before a law was declared unconstitutional, its actual existence must be taken into account and whatever was done while the law was in operation should be recognized as valid. (Rieta v. People, 436 SCRA 273, 2004)

Textbox

8.) Judicial power as defined in Sec. 1, 2nd par., Art. VIII, 1987 Constitution, now “included 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. This definition is said to have expanded the power of the judiciary to in include political questions formerly beyond its jurisdiction. a. Do you agree with such as interpretation of the constitutional definition of judicial power that would authorize the courts to review and, if warranted, reverse the exercise of discretion by the political departments (executive and legislative) of the government including the Constitutional Commissions? Discuss fully. b. In your opinion, how should such definition be construed so as not to erode considerably or disregard entirely the existing “political question” doctrine? Discuss Fully.

a. Yes, the second paragraph of Section 1, Article VIII of the 1987 Constitution has expanded the power of the Judiciary to include political questions. This was not found in the 1935 and the 1973 Constitution. Precisely, the framers of the 1987 Constitution intended to widen the scope of judicial review.

b. As pointed out in Marcos v. Manglapus (177 SCRA 668) so as not to disregard entirely the political question doctrine, the extent of judicial review when political questions are involved should be limited to a determination of whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose act is being questioned. If grave abuse of discretion is not shown, the courts should not substitute their questioned for that of the official; concerned and decide a matter which by its nature or by law is for the latter alone to decide.

Textbox

9.) To what extent, if at all, has the 1987 Constitution affected the “political question doctrine”?

Section 1, Article VIII of the Constitution has expanded the scope of judicial power by including 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. In Marcos vs. Manglapus (177 SCRA 668), the Supreme Court stated that because of this courts of justice may decide political questions if there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned.

Textbox

10.) The 1935, 1973 and 1987 Constitutions commonly provide that “Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.” What is the effect of the addition in the 1987 Constitution of the following provision: “Judicial power includes 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 grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government”? Discuss briefly, citing at least one illustrative case.

The effect of the second paragraph of Section 1, Article VIII of the 1987 Constitution is to limit resort to the political question doctrine and to broaden the scope of judicial inquiry into areas which the Judiciary, under the previous Constitutions, would have left to the political departments to decide. If a political question is involved, the Judiciary can determine whether or not the official whose action is being questioned acted with grave abuse of discretion amounting to lack or excess of jurisdiction (Marcos v. Manglapus, 177 SCRA 668; Daza v. Singson, 180 SCRA 496). Thus, although the House of Representatives Electoral Tribunal has exclusive jurisdiction to decide election contests involving members of the House of Representatives, the Supreme Court nullified the removal of one of its members for voting in favor of the protestant, who belonged to a different party. (Bondoc v. Pineda, 201 SCRA 792)

Textbox