CHECKS AND BALANCES

The ends of government are better achieved if the system of checks and balances will be observed.

Under the system of checks and balances, one department is given certain powers by which it may definitely restrain the others from exceeding constitutional authority. It may object or resist any encroachment upon its authority, or it may question, if necessary any act or acts which unlawfully interferes with its sphere of jurisdiction and authority. (Suarez, 2005).

The following are illustrations where there are checks and balances:

1. the lawmaking power of the Congress is checked by the President through its veto power, which in turn maybe overturn by the legislature
2. the Congress may refuse to give its concurrence to an amnesty proclaimed by the President and the Senate to a treaty he has concluded
3. the President may nullify a conviction in a criminal case by pardoning the offender
4. the Congress may limit the jurisdiction of the Supreme Court and that of inferior courts and even abolish the latter tribunals
5. the Judiciary in general has the power to declare invalid an act done by the Congress, the President and his subordinates, or the Constitutional Commissions.

BLENDING OF POWERS

With the intricateness of the operations of government, it is unwise and impracticable to effect a strict and complete separation of powers. There are instances when certain powers are to be reposed in more than one department so they may better collaborate with, and in the process check each other for the sake of a good and efficient government. Thus, the necessity of blending of powers.

Blending of powers is actually sharing of powers of the different departments of government whereby one department helps and coordinates with the other in the exercise of a particular power, function or responsibility.

The following are examples under the 1987 Philippine Constitution where powers are not confined exclusively within one department but are in fact shared:

1. The President and Congress help one another in the making of laws. Congres enacts the bill and the President approves it.
2. The President prepares a budget and Congress enacts an appropriation bill pursuant to that budget.
3. The President enters into a treaty with foreign countries and the Senate ratifies the same.
4. The Supreme Court may declare a treaty, international or executive agreement, or law, as unconstitutional, and it has also the power to declare invalid any act done by the othe departments of government.
5. The grant of amnesty by the President is subject to the concurrence of a majority of all the members of the Congress.

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DOCTRINE OF SEPARATION OF POWERS

Originally suggested by Aristotle in his treatise on Politics, and later on recognized by Marsiglio of Padua, Cromwell, Locke and Montesquieu, the doctrine of separation enunciates the idea of grouping the powers of government into three classes and of their apportionment among three coordinate departments, separate from and independent of each other.

This doctrine is being carried out until this modern day that it is now incorporated in the constitutions of many states. Among which is the United States of America. Kilbourne vs. Thompson, 103 US 168, 190, 25L.ed. 377, ruled:

It operates to maintain the legislative powers to the legislative department, executive powers to the executive department, and those which are judicial in character to the judiciary. Through this allocation of powers, the person entrusted shall not be permitted to encroach upon the power confided to the others, but that each shall, by the law of its creation, be limited to the exercise of the powers appropriate to its own department and no other. There must be independence and equity of the several departments.

photo source: http://w4.nkcsd.k12.mo.us/~kcofer/k2_branches.jpg

In essence, the separation of powers means that the making of the laws belongs to Congress, the execution of the laws is to the executive and the settlement of controversies rests in the Judiciary. Each is prevented from invading the domain of the others. The purpose of the separation of powers is to prevent concentration of authority in one department and thereby avoid tyranny.

The separation of powers however should not be interpreted as complete separation and absolute exclusion. The doctrine carries that although the three branches are not subject to the control by either of the others and each is supreme within its own sphere, they are still equal and coordinate. Equal because they all derive their powers from the same common sovereign through the constitution. And coordinate because they cannot simply ignore the acts done by other departments as nugatory and not binding.

ARISTOTLE'S FORMS OF GOVERNMENT

Aristotle, a Greek philosopher and student of Plato, classified government into three. They are:

1. government based on rule by the one,
2. government based on rule by the few, and
3. government based on rule by the many.

Government based on rule by the one. 

Monarchy (or royalty) is a form of government in which only a single ruler governs. The monarch rules for the benefit of the people. His concern is for good law, order and social justice.

The perverse form of monarchy is called tyranny. He rules for his own benefits and ego, accumulates wealth and satisfies his lust for power. Such a ruler is not legitimate and the people has the right and the duty to remove him in power.

Government based on rule by the few.

Aristocracy is a form of government where only quite a few people participates in governance. The number ranges from ten to twenty, and they are considered the wisest, the most just and the most honest people in the state. They are more contemplative and careful in their actions. Together, they make governmental decisions.

The perverse form of aristocracy is oligarchy where the few people, again perhaps ten to twenty, collectively take over the power of government not for the welfare of the people, but rather for their own material and vainglory. This form of government is more difficult to be overthrown as compared with tyranny.

photo source: http://upload.wikimedia.org

Government based on rule by the many.
The best form of government but probably the most difficult to achieve is polity. A polity occurs when all relevant citizens of the state participate in the decision making through open discussion, compromise, and conciliation. Of course, this is only possible in the small city-states that Aristotle knew so well. Again, the characteristics of this government are just, the highest form of wisdom is compromise and conciliation, and government that generally works for the benefit of all.
The perverse form of polity was labeled as democracy. Democracy is a form of government where people would go into the chambers of government not to do social justice but rather seek for their own ends. No one is willing to compromise inorder to achieve solutions to problems. This causes a breakdown in the process of government and eventually a collapse of government.

Over the years, the Aristotle's polity became synonymous with representative government or democracy and his perverse form of polity was renamed as mob rule or anarchy.

RIGHT TO REVOLT

The constitution in any democratic state enshrines the rule of law. Any action that operates beyond the framework of the rule of law is considered illegal. It sometimes happens, that the people rise in revolt against the existing administration and through force or threats succeed in altering the constituted organs of government. (Sinco, 1962).

The revolution, being an elemental right, is attributed to the state if it succeeds. It becomes legal since any action attributed to the state is legal. This is the legal and political basis of the doctrine of revolution.

In some other nations, the right to revolt is not included in their organic laws because it implies political instability of the state. From their points of view, to constitutionalize the right to revolt might encourage mob rule and set-off a chain of revolutions for capricious reasons.

The Philippines, provides otherwise. Section 1, Article II of the 1987 Philippine Constitution recognizes that the people, as the ultimate judges of their destiny, can resort to revolution as a matter of right. (De Leon, 1991). It recognizes the inherent right of the people to revolt if sufficiently provoked by oppression or abuses. From the time that the present Constitution took effect, twice that the people of the Philippines have exercised this basic right, but in the in more prudent and peaceful ways. In a span of 15 years, the Filipinos were able to overthrow two administrations haunted by graft and corruption and human rights violations. Those direct state actions were written in history as People Power 1 and People Power 2 respectively.

LOCATION OF SOVEREIGNTY

Where does sovereignty reside?

If we are to qualify, legal sovereignty resides in the lawmaking body of a state. The legislative body (Congress or Parliament) can pass a law without restraints whatsover except those of a physical or moral character.

But of course, at the back of this power is the power of the people or the political sovereign. This political sovereign can depose a King or a President or bring the Parliament down. In a democratic country, political sovereign may be understood to be the electorate or ultimately the whole mass of population. The real political sovereign is in all states the people, whether they actually control public affairs, whether they deliberately turn over these affairs to a ruling class, or whether they are voluntarily or involuntarily submit to the domination of a despot. (Aruego, 1981)

Therefore, political sovereignty resides in the people; but the legal sovereignty is in the hands of the lawmaking body.

Section 1, Article II of the 1987 Philippine Constitution states that

"xxx. Sovereignty resides in the people and all government authority emanates from them."

With this principle, the Filipino people have the right to constitute their own government, to change it, to form a new government and to organize it in a way that they deemed best. Government functionaries is not therefore the repository of sovereignty, rather they were delegated by the people to exercise sovereignty.

photos courtesy of www.pinasnapinas.blogspot.com and www.congress.gov.ph

ACQUISITION OF SOVEREIGNTY

It is given that sovereignty is inherent in a state. Thus, the existence of a state presupposes the existence of sovereignty.

Dependent states do not have sovereignty. They acquire sovereignty as soon as it withdraws itself from the sovereignty of the mother state. If it chooses to withdraw not upon the declaration by the mother state of its independence, sovereignty arises from the moment of such withdrawal. (Aruego, 1981). The existence of its sovereignty is founded upon the fact that it no longer recognizes allegiance or renders obedience to the old sovereignty, and not upon the fact that the old sovereignty has by a treaty or other form of declaration indicated that it no longer claims its allegiance. (Willoughby, ____). If a dependency chooses to revolt against the mother country and succeeds in the revolution, its sovereignty arises not from the time of its success, but from the time of the declaration of its independence.

Sovereignty cannot be acquired as a gift or grant of State. According to Willoughby, sovereignty cannot create another sovereignty because "legal authority cannot, by its own will or act, create another legal authority legally superior or even equal to itself." Therefore, the Treaty of Paris signed in 1930 contained recognition of independence of the Philippines not a grant of its sovereignty.

CHARACTERISTICS OF SOVEREIGNTY

Sovereignty is permanent, exclusive, comprehensive, inalienable, absolute and unified.

Permanence - So long as the state itself exists, sovereignty continues without interruption.
Exclusive - There can be but one supreme power in the state. Within the state, there is no other power that possesses equal or superior authority to it.
Comprehensiveness - Sovereign power extends over all persons, associations, and things within such territorial limits except those over which the state has voluntarily consented to waive the exercise of its jurisdiction.
Inalienability - An attribute of the state by virtue of which it cedes away any of its essential elements without self-destruction.
Absolutism - Sovereignty is a primary power. It does not derive its power from anything, There is no other body that determines the nature and the extent of the power as a matter of legal right.
Unity - Sovereignty cannot be divided without producing several wills of the people, which is inconsistent with the notiion of sovereignty.

KINDS OF SOVEREIGNTY

photo courtesy of http://www.lakbaypilipinas.com/

There are four kinds of sovereignty:

1. Legal sovereignty - is the authority which has the power to issue final commands. This is the supreme law making power.
2. Political sovereignty - is the power behind the legal sovereign, or the sum of the influences that operate upon it. This is legally unknown, unorganized and incapable of expressing the will of the state in the form of legal command. But it is this will that must ultimately prevail in the State. In a narrower sense, the electorate constitutes the political sovereign, and in a broader sense, the whole mass of population.
3. Internal sovereignty - refers to the power of the State to control its domestic affairs. It empowers the State to make and alter its system of government, and to regulate its private affairs, as well as the rights and relations of its citizens, without any dictation, interference, or control on the part of any person or body or State outside the particular political community.
4. External sovereignty - is the power of the State to direct its relations with other States. With this, the State is not subject to the control, dictation, or government of any other power. It implies the right and power to receive recognition as an independent power from other powers, and to make treaties with them on equal terms, make war or peace with them, send diplomatic agents to them, acquire territory by conquest or occupation, and otherwise to manifest the freedom and autonomy. (Suarez, 2005) This is also known as independence.

SOVEREIGNTY, DEFINED.

Sovereignty is the supreme power of the state to command and enforce obedience to its will from people within its jurisdiction and corollarily, to have freedom from foreign control. (De Leon, 1991) It is the supreme, absolute and uncontrollable power by which any state is governed.