Separation of Powers and Checks and Balances Flashcards
Principle of Separation of Powers
This refers to the constitutional demarcation of the three fundamental powers of the government.
Legislative - power to make laws
Executive - power to enforce laws
Judicial - power to interpret laws
Each department has exclusive cognizance of matters within its jurisdiction and is supreme within its own sphere
What is a legislative veto?
It s a statutory provision requiring the President or admin agency to present the proposed IRR of a law to Congress which retains a right to approve or disapprove such regulations before they take effect.
Restrictive rule of state immunity
A distinction must be made between sovereign and governmental acts of the government (jure imperii) and private commercial and proprietary acts (jus gestonis). State immunity only applies to governmental acts
Par in parem non habet imperium
All states are sovereign equals and cannot assert jurisdiction over one another and is the basis for state immunity of instate against other states.
When is the doctrine of state immunity applicable to complaints against the officials of the State
State immunity is equally applicable to complaints filed against officials of the state for acts allegedly perfumed by them in the discharge of their duties. If the judgment against such officials will require the state itself to perform an affirmative act (ex. Appropriation for damages) the suit must be regarded as one against the even if the state has not been formally impleaded.
Under the doctrine of immunity from suit, how may the state give its consent.
Consent may either be express or implied. Express consent can only be given by an act of the legislative body either through a general law or special law
Implied consent may be shown by: 1. When the state commences the litigation, except when the purpose of the intervention is to resist a claim against it 2. When the state itself enters into a business contract except if such contract is incidental to a governmental function 3. When it is inequitable for the state to invoke immunity 4. In actions for payment by the owner in eminent domain cases
May GOCC’s be sued?
A GOCC may be sued. A suit against it is not a suit against the State, because it has a separate juridical personality.
Test for a valid delegation of powers
- Completeness Test - all the terms and conditions of the law must leave nothing to the delegate but to implement it.
- Sufficient Standard Test - Necessitates the presence of limitations and guidelines to determine the scope of authority of the delegate.
What are the requisites for an Executive Order to be valid?
- Promulgation must be authorized by the the legislature
- It must be promulgated in accordance with prescribed procedure
- It must be within the scope of authority given by the legislature
- It must be reasonable
Delegata potestas non potest delegari
What has once been delegated by Congress can be further delegated or relegated by the original delegate to another
Police Power
It is characterised as the most essential, insistent and least limitable of the powers, extending as it does to all the great public needs.
It is the power to promote public welfare by restraining and regulating the use and enjoyment of liberty and property.
What are the tests for a valid exercise of police power?
It must be for a lawful subject - interests of the public, generally as distinguished from those of a particular class
It must be done by lawful means - must be reasonably necessary for the accomplishment of purpose and not unduly oppressive upon individuals
Do LGU’s have police power? To what extent?
Yes. The PP of a state is delegated to LGUs, generally exercised by them under the General Welfare Clause of the LGC.
General Welfare Clause - every LGU shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance and those which are essential to the promotion of the general welfare
Requisites for a valid ordinance
- Must not contravene the Constitution or any statute.
- Must not be fair or oppressive
- Must not be partial or discriminatory
- Must not prohibit but may regulate trade
- Must be general and consistent with public policy.
- Must not be unreasonable
May a law be given retroactive effect and impair contracts already in existence?
Yes. A law enacted in the exercise of police power envisioned to regulate certain activities or transactions could be given a retroactive effect.
It may reasonably impair vested rights.
Police power is applicable not only to future contracts but also to those already in existence
Laws issued in exercise of valid police power must be read into every contract.
What is the power of eminent domain
The right of eminent domain is the right of the sovereign power to appropriate, not only the public but the private property of all citizens within its territorial sovereignty, to public purpose.
Is the exercise of eminent domain subject to judicial review?
Yes, the court can exercise the power of judicial review in thew following areas of concern:
- Adequacy of compensation
- Necessity of taking, except when exercised by the Congress
- Public-use character of the purpose of the taking.
What are the mandatory requirements of eminent domain?
- That is for a PARTICULAR public purpose
- That just compensation be paid to the property owner
When is there a taking of the property?
The following requisites must concur:
- The expropriator must enter the private property.
- The entrance into private property must be for more than a momentary period
- The entry into the property should be under warrant or color of legal authority
- The property must be devoted to a public use or otherwise informally appropriated or injuriously affected; and
- The utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property.
Is an actual and complete deprivation of property needed before an act can amount to a taking?
No. Actual and completer deprivation of the property is not required. It is settled that the taking of privater property for public use, to be compensable, need not be an actual physical taking or appropriation.
Compensable taking includes destruction, restriction, diminution, or interruption of the rights of ownership or the common and necessary use of the property.
What is public use in relation to eminent domain?
Now defined to any use that is of “usefulness, utility or advantage pr what is productive of general benefit to the public”
What is just compensation under eminent domain?
It is defined as the full and fair equivalent of the loss of the property taken from its owner by the expropriator.
Its true measure is not the taker’s gain but the owner’s loss.
Explain the two stages in expropriation proceedings
- Determination of the propriety condemning the property
- This begins with the filing of the complaint before the court, and then tasked to ascertain the purpose of the taking.
- If found for a public purpose, the court shall issue an order condemning the property, otherwise, it must dismiss the case.
- Determination of just compensation
- The trial court shall appoint appoint commissioners, who will be assigned in ascertaining the fair value of the whole property.
What are the factors that the court must consider in determining the sufficiency of an expropriation complaint?
- The property taken must be private property;
- There must be genuine necessity to take the private property;
- The taking must be for public use;
- There must be a payment of just compensation
- The taking must comply with due process
- For entities exercising a mere delegated power of expropriation there is a need to demonstrate possession of the authority to exercise such power of expropriation.
