CONSTITUTION IN GENERAL Flashcards
What are the methods of interpreting the constitution?
- Plain Meaning Rule (Verba legis non est recedendum – from the words of a statute there should be no departure)
- Constitution Interpreted as a Whole (Ut Magis Valeat Quam Pereat)
- Constitution is to be Interpreted in accordance with the intent of the framers. (Ratio legis et anima)
- If plain meaning is not clear, resort to other aids.
- In case of conflict between constitution and a statute, constitution prevails
- If a law or administrative rule violates any norm of the Constitution, that issuance is null and void and without effect
- In case of doubt, the provisions should be self-executing; mandatory rather than directory;
and prospective rather than retroactive
Differentiate mandatory and directory rules.
“A “mandatory” provision in a statute is one which must be observed, as distinguished from a “directory” provision, which is one which leaves it optional with the department or officer to which it is addressed to obey it or not, as he may see fit. The directions in a statute which are not of the essence of the thing to be done, but which are given with a view to the orderly and prompt conduct of the business, any by a failure to do which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory.
A provision with no obligatory force is ‘directory’. A directory provision leaves the decree holder free to use or not his discretion.
Differentiate Originalist and Living Constitution.
Originalist - believes the constitution must be given the original public meaning that it would have had at the time it became a law.
Living - It believes that the meaning of the constitutional text changes over time, as social attitudes changes, even without the adoption of a formal constitutional amendment.
What is a self-executing provision?
A provision which is COMPLETE and becomes operative WITHOUT THE AID OF SUPPLEMENTARY, or that which supplies a sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. No need to pass an enabling legislation.
A constitutional provision is self-executing IF THE NATURE AND EXTENT OF THE RIGHT CONFERRED AND LIABILITIES IMPOSED ARE FIXED BY THE CONSTITUTION ITSELF, so that they can be determined by an examination and construction of its terms, and there is NO LANGUAGE INDICATING THAT THE SUBJECT IS REFERRED TO THE LEGISLATURE FOR ACTION.
T or F
A constitutional provision may be self-executing in one part and non-self-executing in another.
True. Article XII Section 10 of the Constitution is an example.
The first paragraph states …“Congress shall enact measures that will encourage measures (Needs legislation)…
The first paragraph is non-self executing. But the second and third are EXECUTING. Therefore, a constitutional provision may be self-executing in one part and non-self-executing in another. (Manila Prince Hotel vs GSIS)
Explain the Latin Maxim “Ubi jus ibi remendium”.
It means where there is a right there is a remedy.
What is a non-self executing provision?
A provision which lays down only a general principle, and is usually supplemented, such as Article II of the 1987 Constitution.
It can be implemented only through appropriate laws enacted by the Legislature, hence not self-executing.
T or F
In case of doubt, the constitution should be considered non self-executing rather than self-executing.
False.
In case of doubt, the constitution should be considered self-executing rather than non-self-executing. A CONTRARY RULE WOULD GIVE LEGISLATURE DISCRETION TO DETERMINE WHEN/ WHETHER
THEY SHALL BE EFFECTIVE. These provisions would be subordinated to the will of the lawmaking body, which could make the constitution entirely meaningless by simply refusing to pass the needed implementing statute.
It would be like the constitution is beholden to the legislature.
Briefly differentiate self-executing and non self-executing constitutional provisions.
Some constitutions are merely declarations of policies and principles. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. (Manila Prince vs GSIS)
Non-self executing provisions may include words such as:
“Under conditions provided by law”
“Through policies…”
Article II is supplemented and enacted by legislation.
How are self executing and non self executing provisions distinguished from one another?
To determine whether a particular provision of a Constitution is self-executing is a hard row to hoe. The key lies on the intent of the framers of the fundamental law oftentimes submerged in its language. A searching inquiry should be made to find out if the provision is intended as a present enactment, complete in itself as a definitive law, or if it needs future legislation for completion and enforcement. The inquiry demands a micro-analysis of the text and the context of the provision in question.
T or F
All provisions of the Constitution are presumed self-executing.
True, unless proven otherwise by the Constitution or as interpreted by the Supreme Court.
A contrary rule would give legislature discretion to determine when or whether they are effective.
T or F
May legislature still enact legislation to facilitate the exercise and further the operation of self executing provisions?
True.
T or F
A provision that lays down a general principle is usually not self executory.
True.
How many constitutions has the Philippines had?
6.
1. Malolos Constitution of 1899
- 1935 Constitution (May 14, 1935)
- 1943 Constitution (Japanese Occupation)
- 1973 Constitution (January 17, 1973)
- 1986 Freedom/ Provisional Constitution (March 25, 1986)
- 1987 Constitution (February 2, 1987)
How many members were there in the Constitutional Commission?
50 appointed by Cory Aquino, but became 48( 1 withdrew and 1 refused the appointment)
42 men, 6 women.
