CONSTITUTIONAL LAW I (PRELIM EXAM)

WITH SUGGESTED ANSWERS

1. a) When may the State invoke its immunity from suit? What is the Restrictive Theory of State
Immunity?

Answer: a) The State may invoke its sovereign immunity from suit in the following instances:

i. When the Republic is sued by name;
ii. When the suit is against an unincorporated government agency as the same is so
called because it has no separate juridical personality but is merged in the
general machinery of the government; or
iii. When the suit is on its face against a government officer but ultimate liability will be
on the government as it will require the latter to perform an affirmative act like
appropriating public funds for the satisfaction of the judgment.
The Restrictive Theory of State Immunity means that a State may be said to have descended to the level
of an individual and can thus be deemed to have tacitly given its consent to be sued only when it enters
into business contracts. However, the restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or
economic affairs. It does not apply where the contract relates to the exercise of its sovereign
functions. (United States vs. Ruiz)

b) What is the effect of the expanded jurisdiction of the Supreme Court under section 1 of
Article VIII of the 1987 Constitution on the political question doctrine?

Ans. The so-called expanded jurisdiction of the Supreme Court particularly under the second
clause of the second paragraph of section 1 of Article VIII of the 1987 Constitution actually limits
the political question doctrine which, heretofore, was forbidden territory for the courts. Under this
expanded jurisdiction, a political question is no longer an insurmountable obstacle to the exercise
of judicial power.

However, this expanded jurisdiction does not do away with the political question
doctrine. It was inserted in the Constitution to prevent courts from making use of the doctrine to
evade what otherwise are justiciable controversies. The intendment is to stop weak courts and
judges from seeking refuge behind the political question doctrine when afraid to displease the
powerful.

2. The President proposes amendments to the Constitution advocating a shift from the
Presidential system of government to a Parliamentary one and calls for a plebiscite,
appropriating public funds therefor, in which to submit said proposal to the people for
ratification. Mr. Walang Packy, a citizen and a taxpayer, challenges the Presidential acts
aforesaid. In turn the Solicitor General contends: i) that Mr. Packy has no locus standi to
bring the action; ii) that the issue is not justiciable; and iii) that there is no law or
constitutional provision that prohibits the President from proposing amendments to the
Constitution. Decide.

Ans. Mr. Packy has locus standi to bring the action. This involves a valid taxpayers
suit. The settled rule is that a taxpayer like Mr. Packy has substantial interest in inquiring into the
legality of official acts that involve expenditure of public funds.

The issue raised is legal and justiciable. Where the vortex of the controversy refers to
the legality or validity of the contested acts, the matter is definitely justiciable or non-political. It
does not concern itself with the wisdom of the act of the President in proposing amendments to
the Constitution, but his constitutional authority to perform such act or to assume the power of a
constituent assembly. Whether the Constitution confers on the President that power to propose
amendments to the Constitution is therefore a downright justiciable question. Since the
Constitution provides how it may be amended, the judiciary as the interpreter of the Constitution,
can declare whether the procedure followed or the authority assumed in proposing amendments
thereto is valid or not. (Sanidad vs. Commission on Elections)

While it may be true that there is no law or Constitution provision that prohibits the
President from proposing amendments to the Constitution, it is equally true that there is no law or
constitutional provision that empowers the President to propose amendments to the Constitution
or to assume the power of a constituent assembly. Article XVII of the Constitution expressly
provides that amendments to the Constitution may be proposed by Congress, acting as a
constituents assembly, by a constitutional convention, or directly by the people through
initiative. Amendment of the Constitution, being an exercise of sovereignty, must be construed
against the existence of the power to propose amendments in a person or entity not authorized
by the people. A departure from the procedure laid down by the people is pro tanto the
establishment of a new constitution. It is doing for the people what they have not chosen to do for
themselves a mockery of our constitutional system.

3. As an aftermath of the Escalante Massacre, the President issued E.O. # 19 which created the
Escalante Commission for the purpose of conducting an investigation into the incident. The
commission recommended that the victims or their heirs be compensated by the
government. Based on this recommendation, the victims filed an action for damages against
the Republic and the military officers involved in the incident. The Solicitor General moved to
dismiss the suit invoking state immunity, consent not having been first obtained. The victims
argued that there was waiver of state immunity when the commission recommended the
indemnification of the victims or their heirs. a) Was there a waiver of state immunity? b) Is
the State liable for damages?

Ans. a) No, there was no valid waiver of state immunity. The recommendations of the
commission can not be construed as a waiver of the immunity of the State from suit. Waiver of
immunity, being a derogation of sovereignty, will not be inferred lightly, but must be construed in
strictissimi juris. Moreover, the recommendation is not a legislative act. The consent of the State
to be sued must emanate from statutory authority. Waiver of State immunity can only be made by
an act of the legislative body. (Republic vs. Feliciano)

b) The State is not liable for damages. Where a public officer acted beyond the scope
of his authority or in bad faith, no liability attaches to the State as the latter only authorizes the
legal acts of its officers. The State as a person can do no wrong. (Shauf vs. Court of Appeals)

In addition, the recommendation made by the commission to compensate the victims or
their heirs does not in any way mean that liability automatically attaches to the State. The
Commission was created merely for the purpose of conducting an investigation into the
incident, Thus, its recommendation does not in any way bind the State. (Republic vs. Sandoval)

Furthermore, the State can never be held liable if it does not first consent to be
sued. (Municipality of San Fernando, La Union vs. Judge Firme)

4. a) Distinguish constituent power from legislative power? b) What is the source and basis of
the authority of Congress when it acts as a constituent assembly? c) Are the acts of
Congress, acting as a constituent assembly, justiciable?

Ans. a) Constituent power is the power to make or amend the Fundamental Law. Legislative
power, on the other hand, is essentially lawmaking power. It is the power to make laws and to
alter or repeal them. A general grant of legislative power to the legislature under the Constitution
does not include the grant of constituent power. Constituent power is part of the inherent powers
of the people as the repository of sovereignty in a republican state, such as ours to make,
and, hence, to amend their own Fundamental Law. (Tolentino vs. Commission on Elections)

b) The source and basis of the authority of Congress when it acts as a constituent assembly is
the Constitution itself. Congress may propose amendments to the Constitution merely because
the same explicitly grants such power, unlike the people, when performing the same function, (of
amending the Constitution) for their authority does not emanate from the Constitution they are
the very source of all powers of government including the Constitution itself. (Tolentino vs.
Commission on Elections)

c) The acts of Congress when acting as a constituent assembly are obviously justiciable. Since,
when proposing, as a constituent assembly, amendments to the Constitution, the members of
Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not
have the final say on whether or not their acts are within or beyond constitutional limits.
Otherwise. they could brush aside and set the same at naught, contrary to the basic tenet that
ours is a government of laws, not of men, and to the rigid nature of our Constitution.

In short, the issue whether or not the acts of Congress - acting as a constituent assembly - are
legal or constitutional is essentially justiciable and not political, and, hence, subject to judicial
review.

5. Mr. Lukas Lakatlangit was born in the United States of a Filipino father and a Russian mother
on January 16, 1973. He returned to the Philippines when he was eighteen years of age,
carrying an American passport and he was registered as an alien with the Bureau of
Immigration. Lukas ran and won in the congressional elections of 1998. Mr. Perde Gana, the
losing candidate for Congressman, filed a quo warranto case against Lukas on the ground
that the latter is disqualified for not being a Filipino citizen. Decide.

Ans. Whether or not Lukas is a Filipino citizen would depend on whether he is a legitimate
child or not.

Assuming that Lukas is a legitimate child, he is a Filipino citizen. All the constitutions
(Constitutions of 1935, 1973, and 1987) that governed the Philippines provide that those whose
fathers are citizens of the Philippines are Filipino citizens. The registration of a Filipino citizen as
an alien with the Commission on Immigration does not necessarily amount to a renunciation of
his Filipino citizenship. Likewise, the mere use of a foreign passport is not a ground for loss of
Philippine citizenship. He is therefore qualified to run for Congressman.

However, assuming that Lukas is an illegitimate child, he is not qualified to run for
Congress. An illegitimate child follows the citizenship of his known parent his mother. Since
his mother is a Russian, he will also be a Russian citizen, even is his father is a Filipino
citizen. (In re Mallare)

6. In 1986, the Republic of the Philippines filed a case against XYZ Corporation to recover alleged
ill-gotten assets. Before the case could be set for hearing, Mr. Mando Rugas, together with
other stockholders of XYZ Corporation, filed a motion with the Sandiganbayan for leave to
intervene by attaching their answer in intervention. The Sandiganbayan granted the motion
and admitted their answer in intervention. The Solicitor General contends that the
Sandiganbayan acted erroneously because the Republic being a sovereign state cannot be
sued without its consent and the intervention is in legal effect a suit against the state. The
Supreme Court invited you as amicus curiae to give your comments on the contentions of the
Solicitor General. What will your comments be?

Ans. The Solicitor Generals contention that Mr. Rugas intervention is a suit or counter suit
against the State is bereft of merit. Mr. Rugas and the other stockholders merely assumed a
defensive position vis--vis the Republics suit against XYZ Corporation, of which they are
stockholders. The fact that they interjected themselves into the case at their own initiative does
not alter the essential nature of theirintervention. They intervened merely to unite with the
defendant XYZ Corporation in resisting the claims of the Republic, as plaintiff. It would have
been different if they were the ones who took the initiative in an action against the Republic by
filing a complaint in intervention or a complaint. Therefore, the suit in intervention is not a suit or
counter suit against the State that can bring into operation the fundamental postulate of our
system of government that the state may not be sued without its consent. (Republic vs.
Sandiganbayan, Feb. 28, 1990)

7. Ms. Wayna Dudla, because of her extraordinary achievement of flunking the Philippine Bar
Exams for a record 29 times, was granted honorary citizenship by the State of Utopia, a
country where lawyering is considered a crime. Wayna readily accepted such citizenship. Did
Wayna lose her Filipino citizenship?

Ans. No, Wayna did not lose her Filipino citizenship.

Section 3 of Article IV of the Constitution provides that Philippine citizenship may be
lost or reacquired in the manner provided by law. The law governing loss of Philippine citizenship
is Commonwealth Act No. 63, as amended. The grounds, however, for the loss of Filipino
citizenship, as provided in said law, do not include the acceptance of the grant of honorary
citizenship in another country. The elementary principle of statutory construction that when the
law contains an express enumeration of items, what is not included should be excluded, finds
application in this case. Expressio unios est exclusio alterius. As long as Wayna would not
expressly renounce her Filipino citizenship or subscribe to an oath of allegiance support the
constitution or laws of a foreign country, she would not lose her Filipino citizenship.

8. Mr. Nan Gigil raped Ms. Gin Lugus (not her real name), a pretty girl of tender age. However,
before Gin could file criminal charges, she died of cancer of the toenails. Since Gin was a
minor who had no known parents, grandparents or guardian, in what capacity may the State
help in vindicating the violation of her womanhood?

Ans. The State may, in its capacity as parens patriae or guardian of the rights of its people,
help in vindicating the outrage done to Ms. Gin Lugus by bringing her abuser to justice. To the
State is cast the duty of protecting the rights of persons or individuals who, because of age or
incapacity, are in an unfavorable position vis--vis other parties.

This prerogative of parens patriae is inherent in the supreme power of every State,
whether that power is lodged in a royal person or in the legislature, and has no affinity to those
arbitrary powers which are sometimes exerted by irresponsible monarch to the great detriment of
the people and the destruction of their liberties. On the contrary, it is a most beneficent function,
and often necessary to be exercised in the interest of humanity, and for the prevention of injury to
those who cannot protect themselves. (Government of P.I. vs. Monte de Piedad)

9. In 19 February 1994, Jane Roe, a victim of rape who was then in the first trimester of her
pregnancy, filed a petition to declare Art. 258 of the Revised Penal Code unconstitutional. The
said article punishes abortion practiced by the woman herself. She contends that said article
violates the equal protection clause for it fails to distinguish between those who became
pregnant by being raped and those who are pregnant by their own consented act. However,
while Janes petition was pending in the Supreme Court, she had given birth to the son of her
abuser. The termination of her pregnancy rendered the case moot and academic as she is no
longer exposed to the punitive effects of Art. 258. Will the mooting of the case foreclose the
exercise by the Supreme Court of its power of judicial review?

Ans. The general rule in our jurisdiction is that the power of judicial review may not be
exercised in vacuo, which means that an actual case or controversy must exist, not only at the
time of the filing of the action but more importantly at the time of the rendition of the
decision. Thus, it is axiomatic that the mooting of the case ipso facto results in the loss of the
jurisdiction over the case, thus foreclosing the exercise by the judiciary of its power of judicial
review.

However, the Supreme Court had the occasion to rule that the mooting of the case
does not preclude the exercise of judicial review. Even if a case were moot and academic, a
statement of the governing principles is appropriate for the guidance not only of the parties but
others similarly situated. This is referred to as the symbolic function of judicial review. It is the
act of conveying to the members of the bench as well as the bar the controlling doctrinal laws or
jurisprudential pronouncements of the Supreme Court to serve as guide in deciding cases with
parallel circumstances. (Eastern Broadcasting Corp. vs. Dans, Jr.)

It must be noted, however, that the exercise of the Supreme Court of this symbolic
function depends entirely upon its discretion. An examination of the cases where it used this
function shows that the Supreme Court exercises this prerogative only when the case it involves
protection and preservation of basic constitutional rights and guarantees or when the case
involves what is styled in American jurisprudence as capable of repetition, yet evading review.

Janes petition, aside from being moot and academic and patently unmeritorious, it
does not involve the protection or preservation of basic constitutional rights that would justify the
court to exercise the symbolic function of judicial review. The Constitution, far from providing the
right to abort, it expressly commands the State to equally protect the life of the mother and the life
of the unborn from conception.

10. Ms. Obra Maestra, in her capacity as a public school teacher, filed a petition assailing the
constitutionality of Commonwealth Act No. 007, prohibiting the teaching of the theory of
evolution in public schools. Her school adopted a biology textbook containing a chapter on
Darwin. The State, represented in this instance by the Solicitor General, surprisingly posed
no objections to the petition. In the course of the proceedings, it was proven that the said law
had been enacted during the Japanese occupation of the Philippines and that there was no
indication it had ever been enforced, and that the pallid, unenthusiastic, even apologetic
defense of the law presented by the State indicates that the State would make no attempt to
enforce the said law. a) Is Ms. Maestras petition a proper subject for judicial review? b) May
the State question the constitutionality of C.A. No. 007?

Ans. a) The petition is not a proper subject of judicial review for want of an actual case or
controversy. The exercise of the courts of the power of judicial review is predicated upon the
existence of a genuinely justiciable case or controversy as judicial review may not be exercised in
vacuo. (Epperson vs. Arkansas)

An actual case or controversy is one that involves a conflict of legal rights, an
assertion of opposite legal claims susceptible of judicial resolution. There must be a contrariety
of legal rights that can be interpreted and enforced on the basis of existing law and
jurisprudence. The controversy must be definite and concrete, touching the legal relations of
parties having adverse legal interests.

Furthermore, Ms. Maestra does not have the requisite standing to assail the validity of
the questioned law. There is no showing that she has suffered some threatened or actual injury
resulting from the enforcement of the putatively invalid law. This is buttressed by the fact that it
was proven that the law had never been enforced and that there are indications that the State
would make no attempt to enforce said law. (Warth vs. Seldin)

b) The State may properly question the constitutionality of C.A. No. 007. Unchallenged
is the rule that the person who impugns the validity of a statute must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a result
of its enforcement. It goes without saying that if C.A. No. 007 really violates the Constitution, the
People of the Philippines has a substantial interest in having it set aside. Of greater import than
the damage caused by the illegalexpenditure of public funds is the mortal wound inflicted upon
the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the
state can challenge the validity of its own laws. (People vs. Vera)