1 selected canonical-principles-in-political-law-msu

For MSU bar examinees only.
1
law.marawicampus@msumain.edu.ph
law.iligancampus@msumain.edu.ph
law.gensancampus@msumain.edu.ph
A MEMBER-PARTNER OF ASIA LEGAL INFORMATION NETWORK
MINDANAO STATE UNIVERSITY
COLLEGE OF LAW
SELECTED CANONICAL PRINCIPLES IN POLITICAL LAW
IN PLAIN ENGLISH
2020/21 BAR EXAM
Norhabib Bin Suod S. Barodi
Disclaimer: The author does not claim this brief
reviewer to be authoritative. It is
especially prepared for MSU bar
examinees. It is presented in plain
English. Errors in substance and
language are solely attributable to the
author. May this bring a sense of moral
support from your Alma Mater. This is
version 1.
How to use this brief reviewer: Read calmly. All the principles explained
here in plain English are already familiar
to you. The readings you have done for
many months are more comprehensive
than this reviewer. This reviewer is
patterned after the abbreviated syllabus
of Political Law and International Law.
Some principles were not included here.

2
The Law Pertaining to the State
and Its Relationship with Its Citizens
Basic principles of political law; separation of powers; structure of
government; process of legislation
Our tripartite government is characterized by separation or
constitutional demarcation of the powers of the three branches of
government.
The Legislative Department – consisting of the Senate and the
House of Representatives, a feature known as the principle of
bicameralism – makes laws but can neither execute nor
interpret/apply them. If it does so – like executing budget after being
enacted into general appropriation law or disapproving an IRR
promulgated by an administrative agency (legislative veto) – it
violates the Constitution because of a violation of the principle of
separation of powers. Budget execution and administrative issuance
of IRR of a law are executive actions not covered by legislative
power. Because of separation of powers, the Congress, as a rule,
can neither delegate to nor abdicate legislative power in favor of
another branch of government. This is known as the principle of
non-delegability of legislative power. The Constitution delegated
legislative power to Congress, so the latter cannot delegate it to the
Executive Department. But this has exceptions namely: delegation:
(PETAL) – to the people at large, of emergency powers to the

3
President, of tariff powers to the President, to administrative
agencies, and to local governments.
Members of Congress are, while Congress is in session even if
they are absent in their respective session halls, privileged from
arrest in all offenses punishable by not more than six years of
imprisonment. They also enjoy privilege of speech and of debate by
virtue of which they cannot be questioned nor be held liable in any
other place, like the courts, for their speech or debate in the
Congress or in any committee thereof. However, Members of
Congress are subject to the power of each house to punish its
Members for disorderly behavior.
The Executive Department through the President exercises
executive power. The President executes/enforces/implements the
laws passed by Congress. During the incumbency of the President,
he is immune from any suit that exacts of him criminal, civil, or
administrative liability. It is only through impeachment by which a
sitting President may be removed from office or, under the context of
Republic v. Sereno, through quo warranto. But a non-sitting
President cannot claim immunity from suit for acts performed during
his incumbency in violation of law or the Constitution.
But there is only one President. The multifarious functions
flowing from his duty to execute laws cannot practically be performed
by him all at once. He needs assistants like the Cabinet Secretaries.
When these Secretaries act, their official acts are presumptively the

4
acts of the President himself in what is known as the Alter Ego
Doctrine or the Doctrine of Qualified Political Agency. But these
Secretaries are subject to the power of control of the President.
They are his subordinates. He can alter, modify, nullify, or set aside
what his subordinates have done in the performance of their duties or
substitute his own judgment to that of his subordinates. The President
must also see to it that laws are faithfully executed. For instance,
the President cannot altogether abandon his constitutional duty to
enforce the GAA but he can suspend spending in what is known as
executive impoundment.
The Supreme Court and lower courts exercise judicial power,
which has been expanded under the 1987 Constitution to include the
power of judicial review. The courts decide on legal questions or, in
the context of judicial review, justiciable questions. Courts do not
decide on questions of policy because courts are not policy-makers.
They cannot engage in judicial legislation for that would violate the
principle of separation of powers. Legislation is a function of
Congress. But the Supreme Court, through judicial power, can
exercise its symbolic function to guide the bench, the bar, and the
public.
From the principle of separation of powers arose the Political
Question Doctrine, which in essence, provides that questions of
policy should be decided by the political branches of government, i.e.,
legislative and executive departments. When a power is textually
demonstrable to be committed to a political branch of government,

5
like the President’s power over foreign relations, the exercise of
which is purely a political question. Thus, the Supreme Court cannot
compel the President through the Department of Foreign Affairs to
espouse the claim of Filipina comfort women for reparations and
public apology against Japan.
Political questions are forbidden territory for courts, except
when the decision of the political branches over these questions is
attended by grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of these branches. According to the
Supreme Court, the Expanded Judicial Power greatly diminished
the Political Question Doctrine.
Nonetheless, the principle of separation of powers is not
absolute. It admits of two exceptions, namely: Principle of Checks
and Balances and the Principle of Blending of Powers. Each of
the three branches of government can check and balance one
another in the exercise of their respective powers. For instance, the
Congress can check and balance the highly discretionary Presidential
power of appointment through the Commission on Appointments.
This commission consists of the Senate President as ex officio
Chairman, 12 Senators and 12 Members of the HOR. Distinguish this
from the electoral tribunals, i.e., Senate Electoral Tribunal and HR
Electoral Tribunal, each of which is composed of three Associate
Justices of the Supreme Court with the most senior as the chairman,
and six members of the Senate or the HOR respectively, who are
chosen on the basis of proportional representation. These electoral

6
tribunals shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members. Another
tribunal is the Presidential Electoral Tribunal. This tribunal is the
Supreme Court sitting en banc.
The President can check and balance the law-making power of
Congress through his veto power, which in turn is checked and
balanced by the Congressional power to override the Presidential
veto.
The Supreme Court can check and balance Congress and the
President through judicial review of their acts. The Supreme Court
can declare as unconstitutional congressional and executive acts that
violate the Constitution. When the Supreme Court does so, it is not
an assertion of its supremacy but the supremacy of the Constitution.
Parenthetically, by virtue of the principle of supremacy of the
Constitution, the Constitution is deemed written in congressional acts
or executive orders. Same is true with any IRR.
There are situations when the branches of government have to
blend their powers for government to function efficiently. For
instance, while the power of appropriations belongs to Congress but
actually the basis of the general appropriations bill to be passed by
Congress is the budget proposal of the President. In the event that
there is no budget proposal for an ensuing fiscal year, there cannot
be a general appropriations law. What will happen is that that the

7
previous general appropriations law shall be automatically
reenacted.
The process of legislation starts actually in either house of
Congress by the introduction of a bill by either a Member of the HOR
or a Senator. Recall that our Congress is bicameral. Nonetheless,
there are bills that must originate exclusively in the HOR. These are
referred to as the “APRIL” bills: namely: Appropriations bills, Private
bills, Revenue bills, bills authorizing Increase in the public debts, and
bills of Local application. However, even though these bills must
originate exclusively in the HOR, the Senate can still concur with
amendments. This includes amendments by substitution. After all,
it is only the bill, not the law itself, that must exclusively originate in
the HOR. So while an “APRIL” bill is pending in the HOR, the Senate
version of the bill may already be introduced in the Senate in
anticipation of the HOR bill.
The bill will undergo three readings on separate days in both
the HOR and the Senate. This is referred to as the “three readings
on separate days” rule. This rule may however be waived when the
President certifies as to the necessity of the immediate enactment of
the bill to meet a public calamity or emergency. Another rule that is
waived when the President so certifies is the requirement of
distribution of the printed copies of the bill in its final form to Members
of Congress three days before the passage of the bill.

8
If there are differences in the House and Senate approved
versions of the bill, the Bicameral Conference Committee will have
to convene and come up with a reconciled version of the bill. The
reconciled version, if approved by both houses of Congress, will then
be presented to the President for his approval. This presentment to
the President is also known as the Rule on Bill Presentment. This
presentment gives the President the opportunity to consider the bill
and either approve or disapprove it by exercising his veto power or
the President can simply allow the bill to lapse into law by not acting
on it within thirty days from receipt thereof. As a rule, partial veto is
not allowed. Either the President approves the bill in toto or vetoes it
in its entirety. But there are bills which are subject to the line or item
veto of the President. These are the “ART” bills, namely:
appropriations bills, revenue bills, and tariff bills.
The bill must contain only one subject which must be stated in
the title of the bill to prevent a rider or a provision “which has no
relation whatsoever with the main subject matter of the bill and which
may be the subject of a separate piece of legislation by itself.”
[Sandoval lectures] This is referred to as the “one subject, one title”
rule. The title though need not be an index or catalog of the contents
thereof. “There is substantial compliance for as long as the various
provisions are germane or related to the main subject matter which is
the one required to be expressed in the title of the bill.” [Sandoval
lectures]

9
Once a bill is enrolled, the bill becomes conclusive upon the
courts as to its due enactment. This is referred to as the enrolled bill
doctrine. Courts may no longer validly inquire into whether that bill
has been duly and regularly enacted. For instance, courts can no
longer inquire whether the bill has undergone three readings on
separate days or whether printed copies thereof in its final form have
been distributed to Members of Congress three days before the
passage of the bill. The Enrolled Bill Doctrine is also based on the
principle of separation of powers.
Sovereignty
Sovereignty is the right to exercise the functions of a State to
the exclusion of any other State. It is often referred to as the power
of imperium, which is defined as the government authority possessed
by the State. On the other hand, dominion, or dominium, is the
capacity of the State to own or acquire property such as lands and
natural resources. (Separate Opinion, Kapunan, J., in Isagani Cruz v.
Secretary of DENR, G.R. No. 135385, December 6, 2000)
Fundamental powers of the State
It is easy to determine whether a governmental
act/regulation/interference is within the coverage of police power. As
long as that act/regulation/interference has bearing on the promotion
of the general welfare (which encompasses promotion of public

10
safety, health, morals, etc.), then it is deemed to comply with the
requirement of lawful subject. But in constitutional law, the ends do
not justify the means. Both the subject and the means must be
lawful. Usually, questions on police power in general call for the
application of the two tests to determine the validity of an exercise of
police power. First, the interests of the public, generally, as
distinguished from those of a particular class, require the exercise of
police power. And second, the means employed are reasonably
necessary for the accomplishment of the purpose and not unduly
oppressive upon individuals.
When the government exercises police power not for the public
in general, then such an exercise will most likely violate the Equal
Protection Clause unless there is valid classification, which has
the following requisites: a) substantial distinctions which make for real
differences, b) the classification is germane to the purposes of the
law, c) classification applies to future conditions as well, and d) the
classification applies to all members of the same class.
When the exercise of police power is unduly oppressive upon
individuals, it violates the Due Process Clause. An exercise of police
power, particularly in the form of a law, must comply with both
substantive due process and procedural due process. When the
law itself is capricious, arbitrary, whimsical, unreasonable, and
oppressive, it violates substantive due process. Nonetheless, even if
the law complies with substantive due process, when the manner of

11
its enforcement is capricious, arbitrary, whimsical, unreasonable, and
oppressive, it violates procedural due process.
No person shall be deprived of property without due process of
law. Private property shall not be taken for public use without just
compensation. Notice the difference in the words used, “deprivation”
in Section 1, Article III, and “taken” in Section 9 of the same article.
This means that not every taking is compensable. One may be
deprived of his property upon observance of due process of law,
which does not necessarily entail payment of just compensation. The
classic example of this is the demolition of a building on the verge of
collapse. The owner is not entitled to payment for the destruction of
his building.
Nonetheless, deprivation in this context should comply with
due process. For instance, a Mayor cannot simply order the
confiscation of magazines by sheer allegation that these are
obscene. He has to go to the court and convince the court that the
materials sought to be confiscated are obscene. Besides, to
determine whether the material is obscene is a judicial function. Only
upon an order issued by the court that the Mayor may direct the
confiscation of the materials. This is because the owner of the
magazines cannot be deprived of his property without due process of
law. Parenthetically, when there is a warrant to confiscate that
obscene materials, the owner is not entitled to payment.

12
But when the governmental act amounts to taking (revisit
Republic v. Castellvi requisites) for public use, the government has to
pay just compensation which, to be just, must be prompt. When the
government fails to pay just compensation within five years from the
finality of the judgment in the expropriation proceeding granting the
said compensation, the property owner has the right to recover
possession of his property. And when the government abandons the
original purpose for which the property was expropriated, the former
property owner has the right to repurchase the property. However,
the government can justify the continuing dispossession by instituting
another expropriation proceeding.
Bill of Rights
As explained above, due process is of two kinds: Substantive
Due Process and Procedural Due Process. The first limits the
lawmaking power of Congress itself. Congress cannot enact laws that
are capricious, arbitrary, whimsical, oppressive, and unreasonable
laws. The second limits how the law shall be enforced. Even if the law
itself is constitutional, but the enforcement of which may be
unconstitutional for failure to comply with due process. This is why a
law that convicts a person without judicial determination of guilt
violates due process. This kind of law is referred to as a bill of
attainder. Furthermore, a law that is vague is void for it violates due
process. A vague law is void for its “failure to accord persons,
especially the parties targeted by it, fair notice of the conduct to
avoid.” This is the void-for-vagueness doctrine.

13
In addition to the pertinent discussions above, equal protection
is actually a limitation against selective treatment by the State. Those
who are similarly situated must be treated alike both as to the
conferment of rights and imposition of obligations. The government
cannot engage in the act of singling out a person in the absence of a
valid classification. For instance, singling out the Arroyo
administration as the subject of investigation by the Philippine Truth
Commission of 2010 violates the Equal Protection Clause. This is
because the Arroyo administration is but a member of the same class
of past administrations. It cannot be singled out as the only past
administration to be investigated by the Philippine Truth Commission
of 2010.
Congress cannot pass a law abridging freedom of speech or of
expression. When Congress does so, a facial challenge of this law
may be made under the Overbreadth Doctrine. “The overbreadth
doctrine posits that the government is prohibited in banning
unprotected speech if a substantial amount of protected speech is
restrained or chilled in the process.” (2014 MCQ in Political Law) It
decrees that “a governmental purpose may not be achieved by
means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms.” [Estrada vs. Sandiganbayan]
Invalidation of the statute “on its face”, rather than “as applied”, is
permitted in the interest of preventing a “chilling effect” on freedom
of expression. [Mendoza, concurring opinion in Cruz v. DENR]

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Freedom of expression consists of freedom from previous
restraint or censorship and freedom from subsequent
punishment. When the government regulates what speech could
one make, the regulation is content-based. When his speech is
regulated as to time, place, and manner of expression, the regulation
is content-neutral. The validity of content-based regulation is
determined by the standard of the clear and present danger rule.
The government must prove that there is clear and present danger of
a substantive evil that the state has the right to prevent. Thus, the
state regulates libel by punishing it as a crime, for it produces the
substantive evil of tarnishing the offended party’s reputation.
There are four (4) aspects of press freedom: a) Freedom from
prior restraint, b) Freedom from punishment subsequent to
publication, c) Freedom of access to information, and d) Freedom of
circulation.
There are zones or premises upon which the government
cannot intrude, for these are protected by the right against
unreasonable searches and seizures. Nonetheless, the intrusion may
not be violative of this right if it is excused by law or in accordance
with customary process like the issuance of search warrant by a
judge. “Can the police conduct a warrantless intrusive search of a
vehicle on the sole basis of an unverified tip relayed by an
anonymous informant?” The Supreme Court finally settles this in the
negative in People v. Sapla.

15
Judicial review
“The prevailing rule in constitutional litigation is that no question
involving the constitutionality or validity of a law or governmental act
may be heard and decided by the Court unless there is compliance
with the legal requisites for judicial inquiry, namely:
(a) there must be an actual case or controversy calling for the
exercise of judicial power;
(b) the person challenging the act must have the standing to
question the validity of the subject act or issuance;
(c) the question of constitutionality must be raised at the earliest
opportunity ; and
(d) the issue of constitutionality must be the very lis mota of the
case. Of these requisites, case law states that the first two are the
most important and, therefore, shall be discussed forthwith.”
“Even on the assumption of mootness, jurisprudence,
nevertheless, dictates that "the moot and academic‘ principle is not a
magical formula that can automatically dissuade the Court in
resolving a case." The Court will decide cases, otherwise moot, if:
first, there is a grave violation of the Constitution; second, the
exceptional character of the situation and the paramount public
interest is involved; third, when the constitutional issue raised
requires formulation of controlling principles to guide the bench, the

16
bar, and the public; and fourth, the case is capable of repetition yet
evading review.” [Belgica vs. Exec. Sec. Ochoa]
Natural resources
“In the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give preference to
qualified Filipinos.” [Filipino First Policy, Sec 10, Art XII, Constitution]
“The State shall protect the nation’s marine wealth in its
archipelagic waters, territorial sea, and exclusive economic zone, and
reserve its use and enjoyment exclusively to Filipino citizens. The
Congress may by law, allow small-scale utilization of natural
resources by Filipino citizens, as well as cooperative fish farming,
with priority to subsistence fishermen and fishworkers in rivers, lakes,
bays, and lagoons. The President may enter into agreements with
foreign-owned corporations involving either technical or financial
assistance for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the general
terms and conditions provided by law, based on real contributions to
the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of
local scientific and technical resources.” [Sec 2, Art XII, Constitution]

17
“Save in cases of hereditary succession, no private lands shall
be transferred or conveyed except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain.”
[Sec 7, Art XII, Constitution] “Notwithstanding the provisions of
Section 7 of this Article, a natural-born citizen of the Philippines who
has lost his Philippine citizenship may be a transferee of private
lands, subject to limitations provided by law.” [Sec 8, Art XII,
Constitution]
Amendment and Revision
The provisions on amendment and revision indicate that our
Constitution is a rigid type of constitution. There are two stages in the
amendatory process. The proposal stage and the ratification stage. At
the proposal stage, it is important to determine whether the proposal
amounts to amendment or revision. While both implies a change in
the Constitution, however the difference lies in the fact that people’s
initiative, as one of the mode of effecting a change in the Constitution,
applies only to amendment. It does not apply to revision. When the
proposed change amounts to a revision, then the revision can only be
done through a Constitutional Convention (ConCon) called for by
Congress or through Congress itself acting as a Constituent
Assembly (ConAss). I do not think Justice Leonen will ask whether
the voting by the ConAss is separately or jointly. That is not yet
settled.

18
To determine whether the proposal amounts to an amendment
or revision, the two-part test in Lambino must be used. These are the
“Quantitative Test” and the “Qualitative Test”.
“First, QUANTITATIVE TEST, which asks whether the
proposed change is so extensive in its provisions as to change
directly the “substance entirety” of the Constitution by the deletion or
alteration of numerous provisions. The court examines only the
number of provisions affected and does not consider the degree of
the change. [How many provisions will be affected by the proposed
change? Quantity.] Second, QUALITATIVE TEST, which inquires into
the qualitative effects of the proposed change in the Constitution. The
main inquiry is whether the change will “accomplish such far-reaching
changes in the nature of our basic governmental plan as to amount to
a revision.” [What kind of change is sought to be effected by the
proposal?]” [Sandoval lectures]
International law (sources of international law; relationship with
domestic law)
The first source of international law is ‘international treaties and
conventions’. The VCLT defines treaty as “an international agreement
concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two

19
or more instruments and whatever its particular designation.” But
there can an oral treaty although such a treaty will not be governed
by the VCLT, for it requires treaties to be in written form.
Jus cogens refers to peremptory norm of international law,
which is accepted and recognized by the international community of
states as a whole as a norm that does not permit derogation. Jus
cogens can be modified or replaced only by a subsequent norm of
general international law of the same character. States cannot enter
into treaties which are contrary to the principle of jus cogens. So this
means that jus cogens is a limitation to the treaty-making capacity of
states. The law on genocide is an example. Thus, State A and State
B cannot enter into a treaty to promote genocide. That treaty is void.
Obligations erga omnes are obligations of a State towards the
international community as a whole. These obligations involve rights
that are so important so they interest all states. When a norm reaches
the status of jus cogens, it becomes an obligation erga omnes
because states cannot derogate from that jus cogens norm. The
obligation to prevent and punish genocide is an example of obligation
erga omnes.
The principle of ex aequo et bono allows states to agree to
settle their disputes based solely on equity, disregarding rules of
international law. For instance, State A and State B can agree to

20
have their maritime dispute settled on the basis of equity, not on the
basis of the United Nations Convention on the Law of the Sea.
In relation to international law, the Philippines is dualist. The
Constitution prevails over international law for states which adopt the
dualist theory. This theory provides that international law and
domestic law are two different systems of law, thus bringing the
possibility of conflict between the two.
Nonetheless, customary international law or generally accepted
principles of international law are automatically part of the law of the
Philippines because of our adherence to the doctrine of incorporation.
For international law which does not belong to that category to
become part of Philippine law, it has to be embodied in a treaty that
must be concurred in by the Senate. This is indicative of the
transformation method. NBS
***

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