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Latest Exam Results!
Constitutional Law I 1st Sem., S.Y. 2006-2007 Endterm Exam - 16 October 2006 Note: Claim your Results from Ms. Lynn! No Exam Permit - No Result!
COMPLETE LIST: (With Names of Top Ten)
AND THE EXPECTED ANSWERS
I. As a document of founding, what does the legitimacy of a constitution consist in, considering that it seems to be the anchorage of all legitimacy? Explain. (10 points)
In this item, I am not asking you to explain how or why the constitution is considered to be the anchorage of all legitimacy. The question is what does the legitimacy of the constitution consist in and nothing more. As explained in class during our discussions in the case of Javellana vs. Executive Secretary, the legitimacy of the constitution may be based on its formal ratification (legal justification) or in the acquiescence or acceptance by the people (sociological justification). So the expected discussion should be along that line. For further reference, see my blog on this matter at www.attyralph.blogspot.com.
II. A) Discuss the principal distinctions between presidential and parliamentary forms of government. (10 pts.)
Most of the answers I’ve read in this item were funny. They manifest an absolute ignorance of fundamental concepts in governmental systems. The knowledge of the principal points of distinctions between the two systems is essential to the understanding of the doctrinal concepts that underlie both forms. Answers saying that in a presidential system, the head is called president while in a parliamentary system, he is called prime minister are no better than answers from high school students. The expected answer would have been a discussion of the competing doctrinal concepts that distinguish the two, like: a) Separation of Powers vs. Fusion of Powers b) Power of Judicial Review vs. Parliamentary Supremacy c) SONA vs. Question Hour d) Impeachment vs. Vote of No-Confidence e) Popular Election of the President vs. Collegial Election of the Prime Minister
B) Is the doctrine of parliamentary supremacy consistent with the doctrine of judicial review? Explain. (5 pts.)
In British parliamentary tradition, the notion of courts striking down an Act of Parliament as unconstitutional or invalid is virtually alien. See the landmark English case of Edinburgh and Dalkeith Railway Co. v. Wauchope, (1842). However, some parliamentary democracies demonstrate that parliamentary supremacy may co-exist with judicial review if it is a parliamentary system established by written constitutions like in the case of the Japanese and French models.
For your reference, please note the following: · Art. 81, Japanese Constitution: “The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.” · Under Japanese political law, the power of judicial review covers both Legislative enactments and acts of the Executive; the check the Legislature exercises on the Supreme Court is impeachment; the check the Executive exercises on the Supreme Court is appointment. · The difference in attitude towards judicial review can be attributed to two factors: o History: The Japanese Constitution bears the imprint of American democratic traditions. o The fact that the British constitution is “unwritten” while the Japanese Constitution is written.
· Pertinent Provisions of the French Constitution: o Art. 61: The President, the Prime Minister, the President of the National Assembly or the President of the Senate, or 60 deputies, or 60 senators may refer to the Constitutional Council the issue of the constitutionality of an Act of Parliament that must rule within one month; o Art. 56: The Constitutional Council consists of nine members (term: 9 years): three members appointed by the President of the Republic, three appointed by the President of the National Assembly, three appointed by the President of the Senate; former Presidents of the Republic are ex officio life members; President of the Council appointed by the President of the Republic; o Art. 57: No member of the Constitutional Council may be a minister or a Member of Parliament.
III. A) Explain Chief Justice John Marshall’s ruling regarding the justification of judicial review in Marbury v. Madison. (5 pts.)
The expected answer here was to discuss John Marshall’s explanation on the justification of the existence of the power of judicial review despite the lack of an express constitutional grant of the power. The ruling was that the Judiciary has the power, implied from the Constitution, to review acts of Congress and if they are found to be repugnant to the Constitution, to declare them void. It is the province and duty of the judiciary to say what the law is. And any law, including acts of the legislature, which is repugnant to the Constitution, is void.
B) Write a dissenting opinion on the said ruling. (10 pts.)
Answer could be something like this: Without an express grant of the power of judicial review in the Constitution, the judiciary’s function should be limited to interpreting the laws and should not extend to scrutinizing the legislature’s authority to enact them. The constitution is the definition and enumeration of all governmental powers. If the framers had intended judicial review to exist in the system, then they could have easily placed that in the Constitution as one of the enumerated powers of the Judiciary. Powers cannot be presumed to exist. They exist only by virtue of an express constitutional grant, or implied from those expressly granted.
IV. Explain the distinctions between EDSA People Power I and EDSA People Power II, particularly in regard to the justiciability of the challenges to the legitimacy of the governmental regimes resulting from them. (20 pts.)
Here, I did not ask you to give me the historical background of the said people power revolts, much less the reasons for the ouster of Marcos or of Estrada. This is not a history class. The item asks you to distinguish them specifically in regard to whether the suits filed against the Aquino & Arroyo administrations were justiciable or not. That was the issue.
The expected answer here should be based on the ruling of the Supreme Court in Estrada vs. Arroyo, viz.: “The legal distinction between EDSA People Power I and EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal questions.”
V. Italy, through its Ambassador, entered into a contract with Johnny Lukas for the maintenance and repair of the airconditioning units at its Embassy. It was stipulated that the agreement shall be effective for a period of five years and automatically renewed unless cancelled. Further, Section 19 of the contract provides that “any suit arising from the contract shall be filed with the proper courts in the City of Manila.” Claiming that the contract was arbitrarily terminated by the Ambassador, Johnny Lukas filed an action against the Ambassador for breach of contract before the courts of Manila.
A) Discuss the defense/s available to the Ambassador and the steps he should take in invoking the said defense/s. (10 pts.)
I only expect that you answer along the lines of constitutional law, i.e., using the doctrine of state immunity, not along the lines of public international law using diplomatic immunities and privileges.
So, the expected answer here, which a few got correctly, is that the suit is actually against the State of Italy, which is immune from suit. Note that in analyzing whether a contract was for a governmental or for a business purpose, the contract should be examined from the viewpoint of the state and not of the private individual or entity it contracts with. I am surprised why so many considered the contract to be for a business purpose (jure gestionis). While it was a business contract in the point of view of the Lukas because that he earns a living from that, it was not a business contract in the point of view of Italy. The latter did not enter into the said contract for profit.
B) Does Section 19 of the contract amount to a waiver of immunity? Explain. (10 pts.)
No, the existence alone of a provision in a contract stating that any legal action arising out of the agreement shall be filed before a specified court is not necessarily a waiver of sovereign immunity from suit. Submission by a foreign state to local jurisdiction must be clear and unequivocal. It must be given explicitly or by necessary implication. Waiver of immunity cannot be inferred lightly. It must be clear and unequivocal. (See Republic of Indonesia v. Vinzon, G.R. No. 154705, June 26, 2003)
VI. The Supreme Court held in some cases that the doctrine of state immunity is “the royal prerogative of dishonesty”, but it also held in some cases that the doctrine “cannot serve as an instrument for perpetrating an injustice on a citizen”. May the said rulings be reconciled? Explain. (10 pts.)
This was painstakingly discussed in class. Woe be unto those who do not attend classes. The first could be taken as a general description of the doctrine. The second specifically applies only where the doctrine of immunity is used to defeat a constitutionally protected right, like the right to just compensation in Art. III, Sec. 9 of the Constitution which should always prevail over the general rule on non-suability found in Art. XVI, Sec. 3. Your discussion should be along this line.
VII. Discuss the requirements, procedure and steps in introducing revisions to the 1987 constitution. (10 pts.)
All answers that mentioned people’s initiative as one of the steps or modes are wrong. This means that you cannot distinguish between revisions and amendments. So, the expected answer should just be a discussion based on Article XVII, particularly laying down the requirements and rules on proposing revisions and their ratifications.
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| Course Syllabi:
International Humanitarian Law
with Suggested Answers
Previous Exam Results:
October 16, 2006 (with Answers)
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