constitutional law 1 lecture on territory and provisions

7/31/2019 Constitutional Law 1 Lecture on Territory and Provisions

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POLITICAL LAW That branch of public law which deals with the organization

and operations of the governmental organs of the State anddefines the relations of the State with the inhabitants of itsterritory.

SCOPE/DIVISIONSOF POLITICAL LAW:

Constitutional Lawthe study of the maintenance of the proper balancebetween

authority as represented by the three inherent powers of the state and liberty asguaranteed by the Bill of Rights.

Administrative Law-- That branch of public law which fixes the organization,

determines the competence of administrative authorities who executes thelaw, and indicates to the individual remedies for the violation of his right.

Law on Municipal Corporations

Law of Public Officers

Elections Law


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BASIS:

1. 1987 Constitution

2. 1973 and 1935 Constitutions

3. Organic laws made to apply to the PhilippinesX

a. Philippine Bill of 1902b. Jones Law of 1916

c. Tydings-McDuffie Law of 1934

4. Statutes, executive orders and decrees, and

judicial decisions5. US Constitution


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PHILIPPINE CONSTITUTION

Constitutionit is the document which serves as thefundamental law of the State; that body of rules and maxims inaccordance with which the power of sovereignty are habituallyexercised.

That written instrument enacted by direct action of the peopleby which the fundamental powers of the government areestablished, limited and defined, and by which those powersare distributed among the several departments for their safeand useful exercise for the benefit of the body politic.

It is the basic and paramount law to which all other laws mustconform and to which all persons, including the highestofficials of the land, must defer. No act shall be valid, however

noble its intention, if it conflicts with the Constitution. TheConstitution must ever remain supreme. All must bow to themandate of this law. Right or wrong, the Constitution must beupheld as long as the sovereign people have not changed it.


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CLASSIFICATION

Written or Unwritten

Written: one whose precepts are embodied in onedocument or set of documents

Unwritten: consists of rules which have not been

integrated into a single, concrete form but are scatteredin various sources.

Enacted (conventional) or Evolved (Cumulative) Enacted: Formally struck off at a definite time and place

following a conscious or deliberate effort taken by aconstituent body or ruler.

Evolved: the result of political evolution, not inauguratedat any specific time but changing by accretion ratherthan by any systematic method.


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Rigid or Flexible

Rigid: one that can be amended only by a formal andusually difficult process.

Flexible: One that can be changed by ordinarylegislation.

The Philippine Constitution is written,conventional and rigid. It is embodied in onedocument and can be amended only by aformal and usually difficult process.


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INTERPRETATION

1. Verba Legiswhenever possible, the words used in theConstitution must be given their ordinary meaning exceptwhere technical terms are employed.

2. When there is Ambiguityratio legis et anima--A doubtfulprovision shall be examined in the light of the history of the

times and the conditions and circumstances under which theConstitution was framed.

3. Ut magis valeat quam pereatthe Constitution has to beinterpreted as a whole.

If the plain meaning of the word is not found to be clear, resort toother aids is availableconstrue the Constitution from whatappears upon its face. The proper interpretation, therefore,depends more on how it was understood by the peopleadopting it than in the framers understanding thereof.


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In case of doubt, the provision should be

considered as self-executing; mandatory ratherthan directory; and prospective rather thanretroactive.

Self-executing provisionone which iscomplete in itself and becomes operativewithout the aid of supplementary or enablinglegislation, or that which supplies a sufficient rule bymeans of which the right it grants may be enjoyedor protected.


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ESSENTIAL QUALITIESOFTHE WRITTENCONSTITUTION

1. Broad;

2. Brief; and

3. Definite.

ESSENTIALPARTSOFAGOODWRITTENCONSTITUTIONa. Constitution of Libertysets forth the fundamental civil and political rights ofthe citizens and imposes limitations on the powers of the government as ameans of securing the enjoyment of those rights. e.g. Bill of Rights

b. Constitution of Governmentoutlines the organization of the government,enumerates its powers, lays down certain rules relative to its administration anddefines the electorate. e.g. Legislative, Executive and Judicial Departments,Constitutional Commissionsc. Constitution of Sovereigntythe provisions pointing out the mode orprocedure in accordance with which formal changes in the fundamental law may

be brought about. e.g. Art. XVII-Amendments or Revisions


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EFFECTSOF DECLARATIONOFUNCONSTITUTIONALITY

a. ORTHODOX VIEW

i. an unconstitutional act is not a law;

ii. it confers no rights;

iii. it imposes no duties;

iv. it affords no protection;v. it creates no office;

vi. it is inoperative, as if it had not been passed at all.

b. MODERN VIEWCourts simply refuse to recognize the lawand determine the rights of the parties as if the statute had no

existence. Certain legal effects of the statute prior to itsdeclaration of unconstitutionality may be recognized.

Thus, a public officer who implemented an unconstitutional lawprior to the declaration of unconstitutionality cannot be heldliable.


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PARTIAL UNCONSTITUTIONALITY

Requisites:

a. The legislature must be willing to retain the validportion(s), usually shown by the presence of aseparability clause in the lawINTENT OF THELEGISLATIVE; and

b. The valid portion can stand independently as lawINDEPENDENCE OF THE PROVISIONS.


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PREAMBLE

WE, THE SOVEREIGN FILIPINO PEOPLE,IMPLORING THE AID OF ALMIGHTY GOD, INORDER TO BUILD A JUST AND HUMANESOCIETY AND ESTABLISH A GOVERNMENT

THAT SHALL EMBODY OUR IDEALS ANDASPIRATIONS, PROMOTE THE COMMONGOOD, CONSERVE AND DEVELOP OURPATRIMONY, AND SECURE TO OURSELVESAND OUR POSTERITY THE BLESSINGS OF

INDEPENDENCE AND DEMOCRACY UNDERTHE RULE OF LAW AND A REGIME OF TRUTH,JUSTICE, FREEDOM, LOVE, EQUALITY, ANDPEACE, DO ORDAIN AND PROMULGATE THISCONSTITUTION.


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The Preamble is not a source of power or right for anydepartment of

government. It sets down the origin, scope, and purpose ofthe Constitution. It bears witness to the fact that theConstitution is the manifestation of the sovereign will of theFilipino people.

The identification of the Filipino people as the author of theconstitution calls attention to an important principle: that thedocument is not just the work of representatives of the peoplebut of the people themselves who put their mark approval byratifying it in a plebiscite.

1. It does not confer rights nor impose duties.

2. Indicates authorship of the Constitution; enumerates theprimary aims and aspirations of the framers; and serves as anaid in the construction of the Constitution.


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ARTICLE INATIONAL TERRITORY


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ARTICLE I

The national territory comprises the Philippine

archipelago, with all the islands and watersembraced therein, and all other territories overwhich the Philippines has sovereignty or

jurisdiction, consisting of its terrestrial, fluvial andaerial domains, including its territorial sea, theseabed, the subsoil, the insular shelves, and othersubmarines areas. The waters around, between

and connecting the islands of the archipelago,regardless of their breadth and dimensions, formpart of the internal waters of the Philippines.


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TWO PARTSOF NATIONAL TERRITORY

1. The Philippine archipelago with all the islands andwaters embraced therein; and

2. All other territories over which the Philippines hassovereignty or jurisdiction.


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DOYOUCONSIDERTHE SPRATLYS GROUPOFISLANDSASPARTOF PHILIPPINEARCHIPELAGO?

Spratlys Group of Islands was only discovered sometime inthe 1950s by a Filipino, Tomas Cloma. The latter waived hisrights over the islands in favor of the Philippine Government.In effect, the government stepped into the shoes of thediscoverer. By then President Marcos, what he did themoment Tomas Cloma waived his rights over the Spratlys

Group of Islands, is to have the islands immediately occupiedby Philippine troops. He then issued PD 1596, constituting theSpratlys Group of Islands as a regular municipality claiming itthe Municipality of Kalayaan placing it under the Province ofPalawan. And then he had the elections immediately held inthe islands so from that time on until now, we continue to holdelections there. The Philippine exercises not only jurisdictionbut also sovereignty over the Spratlys Group ofIslands, yet it is not part of the Philippine Archipelago.Geographically, it is too far away from the PhilippineArchipelago.


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DOYOUCONSIDERTHE SPRATLYS GROUPOFISLANDSASPARTOF PHILIPPINEARCHIPELAGO?

On May 20, 1980, the Philippines registered itsclaim with the UN Secretariat. The Philippine claimto the islands is justified by reason of history,indispensable need, and effective occupation and

control. Thus, in accordance with the internationallaw, the Spratlys Group of islands is subject to thesovereignty of the Philippines.


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DOYOUCONSIDERTHE SPRATLYSGROUPOFISLANDSASPARTOFOUR NATIONAL TERRITORY?

Yes. Article I of the Constitution provides: The

national territory comprises the Philippinearchipelago, x x x, and all other territories overwhich the Philippines has sovereignty or

jurisdiction, x x x.The Spratlys Group of islandsfalls under the second phrase and all other

territories over which the Philippines hassovereignty or jurisdiction. It is part of our national

territory because Philippines exercise sovereignty(through election of public officials) over SpratlysGroup of Islands.


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WHATWASTHEBASISOFTHE PHILIPPINESCLAIMOVERTHE SPRATLYS?

Through discovery of Tomas Cloma and occupation


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MODESOFACQUIRINGTERRITORIES

1. Discovery and Occupationwhich are terra nullius (land belonging to no one)

Doctrine of Effective Occupationdiscovery alone is not enough. Merediscovery gives only an inchoate right to the discoverer. For title to finally vest,discovery must be followed by effective occupation in a reasonable time andattestation of the same.

2. Cession by Treaty. Examples are Treaty of Paris, treaty between France and USceding Louisiana to the latter and treaty between Russia and US ceding Alaska to

the latter;3. Prescriptionwhich is a concept under the Civil Code. Territory may also beacquired through continuous and uninterrupted possession over a long period oftime. However, in international law, there is no rule of thumb as to the length oftime for acquisition of territory through prescription. In this connection, consider theGrotius Doctrine of immemorial prescription, which speaks of uninterruptedpossession going beyond memory.

4. Conquest or Subjugation (conquistadores)this is no longer recognized,

inasmuch as the UN Charter prohibits resort to threat or use of force against theterritorial integrity or political independence of any state; and

5. Accretionanother concept in the Civil Code. It is the increase in the land area ofthe State, either through natural means, or artificially, through human labor.


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PHILIPPINE ARCHIPELAGO

1. Treaty of Paris, December 10, 1898Cession ofthe Philippine Islands by Spain to the United States;

2. Treaty between Spain and US at Washington,November 7, 1900inclusion of Cagayan, Suluand Sibuto;

3. Treaty between US and GB, January 2, 1930inclusion of Turtle and Mangsee Islands.


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OTHERTERRITORIESOVERWHICHTHEPHILIPPINESHASSOVEREIGNTYORJURISDICTION

1. Batanes(1935 Constitution);

2. Those contemplated under Article I, 1973Constitutionbelonging to the Philippines byhistoric right or legal title;

3. PD 1596, June 11, 1978-- constituting the SpratlysGroup of Islands as a regular municipality claimingit the Municipality of Kalayaan, placing it under theProvince of Palawan.


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XXX THEWATERSAROUND, BETWEENANDCONNECTINGTHEISLANDSOFTHEARCHIPELAGO, REGARDLESSOFTHEIRBREADTHANDDIMENSIONS, FORMPARTOF

THEINTERNALWATERSOFTHE PHILIPPINES.This second sentence of Article I is not the

Archipelago Doctrine. This is only ourrestatement/reaffirmation of our adherence to the

Archipelago Doctrine simply because we are anarchipelago consisting of 7,107 islands. It isessential for our national survival that we adhere tothe archipelago principle.


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ARCHIPELAGO DOCTRINE

-Merely emphasizes the unity of lands and waters. Itis a body of waters interconnected with other naturalfeatures. Under the United Nation Convention on theLaw of Sea (UNCLOS), it consists of drawing

imaginary baseline connecting the outermost islandsof the archipelago in which all waters, islands isconsidered as one integrated whole. An archipelagois defined as group of islands, interconnecting waters

and other natural features which are so closelyinterrelated that such islands, waters and naturalfeatures form an intrinsic geographical, economicaland political entity, or which historically beenregarded as such.


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ARCHIPELAGO DOCTRINE

Correlate this doctrine to right of innocent ofpassage, right of arrival under stress and UNCLOSrequiring the designation of archipelagic seawaysso that foreign vessels may pass through an

archipelago.


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2 KINDSOF ARCHIPELAGO

1. Coastal Archipelagosituated close to amainland and may be considered a part thereof.

2. Mid-Ocean Archipelagosituated in the ocean atsuch distance from the coasts of firm land. ThePhilippines is classified as mid-ocean archipelago

just like Indonesia. The Philippines is not in anyway connected physically with the Asia mainland.


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ii. Bays and gulfsa bay is a well-markedindentation whose penetration is in such proportion to the widthof its mouth as to contain a land-locked waters and constitutesmore than a curvature of the coast. Also referred to as juridical

bay. The area must be as large as, or larger than, a semi-circlewhose diameter is a line drawn across the mouth of suchindentation, or if the mouth is less than 24 miles wide. e.g.Hudson Bay in Canada, one whose waters areconsideredinternal because of the existence of a historic title.

iii. Straitsnarrow passageways connecting 2bodies of water. If the distance between the 2 opposite coast is

not more than 6 miles, they are considered internal waters.

In international law, when a strait within a country has a width ofmore than six (6) miles, the center lane in excess of the three (3)miles on both sides is considered international waters.

iv. Canalsthe most famous is the Suez Canal,which is neutralized, and the Panama Canal, which is open toeveryone in times of war or peace.


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b. Archipelagic watersare the waters enclosed by the archipelagicbaselines, regardless of their depth or distance from the coast.

Archipelagic Statea state made up wholly of one or two archipelagos. It

may include other islands.

Straight Archipelagic Baselineto determine the archipelagic waters,the state shall draw straight baselines connecting the outermost points ofthe outermost islands and drying reefs, provided that the ratio of the areaof the water to the area of the land, including atolls, is between 1:1 and9:1. The length of such baselines shall not exceed 100 nautical miles,

except up to 3% of the total number of baselines enclosing anyarchipelago may exceed that length, up to a maximum 125 miles. Thebaselines drawn should not depart, to any appreciable extent, from thegeneral configuration of the archipelago. All the waters within thebaselines shall then be considered internal waters. The breadth of the12-mile territorial sea, the contiguous zone, the exclusive economic zoneand the continental shelf shall then be measured from the archipelagicbaselines.

Vessels may be allowed innocent passage within the archipelagic waters,but this right may be suspended, after publication, in the interest ofinternational security. The coastal state may also designate archipelagicsea lanes for continuous, unobstructed transit of vessels.


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c. Territorial Seathe belt of the sea locatedbetween the coast and the internal waters of thecoastal state on the other hand, and the high seas

on the other, extending up to 12 nautical miles fromthe low-water mark, orin the case of archipelagicstates, from the baseline

Baselineis a line from which the breadth of theterritorial sea, the contiguous zone and theexclusive economic zone is measured in order todetermine the maritime boundary of the coastal

state.Types of baseline:

i. Normal Baseline Method

ii. Straight Baseline method


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d. Contiguous Zoneextends up to 12 nautical milesfrom the territorial sea; this shall not exceed 24 nauticalmiles from the archipelagic baselines.

The coastal state may exercise limited jurisdiction over thecontiguous zone:

1. To prevent infringement of customs, fiscal immigrationor sanitary laws and regulations within its territory orterritorial sea; and

2. To punish infringement of the above laws andregulations committed within its territory.

e. Exclusive Economic Zoneshall not extend beyond200 nautical miles from the archipelagic baselines.


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f. Continental shelfit is the seabed and subsoil of thesubmarine areas extending beyond the Philippine territorialsea throughout the natural prolongation of the land territory. Itextends up to:

i. The outer edge of the continental margin; orii. A distance of 200 nautical miles from the archipelagicbaselines, whichever is the farthest.

The continental shelf does not form part of the Philippineterritory. The Philippines has the sovereign rights over the

continental shelf for the purpose of exploring it and exploitingits natural resources.

g. High Seastreated as res communes, thus, not territory ofany particularState. These are the waters which do notconstitute the internal waters, archipelagic waters, territorial

sea and exclusive economic zones of a state. They arebeyond the jurisdiction and sovereign rights of States.

Freedom of navigationrefers to the right to sail ship onthe high sea, subject to international law and the laws of theflag of the state.


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III.Aerialthis refers to the air space above the landand waters of the State.


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ARTICLE IIDECLARATION OF PRINCIPLES AND STATE POLICIES


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ARTICLE II, SEC. 1

The Philippines is a democratic and republican State.Sovereignty resides in the people and all governmentauthority emanates from them.

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1. Essential features: (1) Representation and (2) Renovation.

2. Manifestations:

Ours is a government of law and not of men (Villavicencio vs.Lukban, 39 Phil 778).

Rule of the majority. (Plurality in elections)

Accountability of public officials

Bill of rights

Legislature cannot pass irrepealable laws.

Separation of powers.


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REPUBLICANISM

What is a republican form of government?

It is a government of the people, by the people, and for thepeople, a representative government wherein thepowers and duties of government are exercised anddischarged for the common good and welfare.

Characteristics of a republican form of government:

1. The people do not govern themselves directly butthrough their representatives;

2. It is founded upon popular suffrage;3. There is the tripartite system of the government, the

mutual interdependence of the three departments of thegovernment.


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STATE

a community of persons, more or less numerous,permanently occupying a definite portion of territory,independent of external control, and possessing agovernment to which a great body of inhabitants

render habitual obedience.


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ELEMENTSOFA STATE

1. Peoplethe inhabitants of the State; the # of which iscapable for self-sufficiency and self-defense; of bothsexes for perpetuity.

a. Inhabitants;

b. Citizens;

c. Electors.2. Territorya fixed portion of the surface of the earth

inhabited by the people ofthe State.

3. Governmentthe agency or instrumentality throughwhich the will of the State is formulated, expressed and

realized4. Sovereigntythe supreme and uncontrollable power

inherent in a State by which that State is governed. It isthe right to exercise the functions of a State to theexclusion of any other State.


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GOVERNMENT

Government of the Philippinesrefers to thecorporate governmental entity through which thefunctions of the government are exercisedthroughout the Philippines, including, save as the

contrary appears from the context, the various armsthrough which political authority is made effective inthe Philippines, whether pertaining to theautonomous regions, the provincial, city, municipal

or barangay subdivisions or other forms of localgovernment.


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DE JUREVS. DE FACTO


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PRESIDENTIALVS. PARLIAMENTARY


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FUNCTIONSOFTHEGOVERNMENT

a. Constituentcompulsory because constitutive ofthe society;

b. Ministrantundertaken to advance the generalinterest of the society; merely optional.

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Doctrine of Parens Patriaethe government asguardian of the rights of the people may initiatelegal actions for and in behalf of particular

individual.


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SOVEREIGNTY

While sovereignty has traditionally been deemed absolute and all-encompassing

on the domestic level, it is however subject to restrictions andlimitations voluntarily agreed to by the Philippines, expressly orimpliedly, as a member of the family of nations. In its Declaration ofPrinciples and State Policies, the Constitution adopts the generally

accepted principles of international law as part of the law of theland, and adheres to the policy of peace, equality, justice, freedom,cooperation and amity, with all nations. By the doctrine ofincorporation, the country is bound by generally accepted principlesof international law, which are considered to be automatically part ofour own laws.

Government of Laws and Not of Men.sovereignty of thepeople also includes the concept that government officials haveonly the authority given them by law and defined by law, and suchauthority continues only with the consent of the people.


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Kinds of Sovereignty:

a. Legalthe power to issue final commands;

b. Politicalthe sum total of all the influences which liebehind the law;

c. Internalthe supreme power over everything within itsterritory;

d. Externalalso known as independencefreedomfrom external control.

Characteristics:a. Permanence

b. Exclusiveness

c. Comprehensiveness

d. Absolutenesse. Indivisibility

f. Inalienability

g. Imprescriptibility


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Sovereignty, often referred to as Imperiumis theStates authority to govern; it includes passing lawsgoverning a territory, maintaining peace and order

over it, and defending it against foreign invasion.

It is the government authority possessed by the Stateexpressed in the concept of sovereignty.

Dominiumis the capacity of the State to own oracquire property such as lands and naturalresources. It necessarily includes the power toalienate what is owned. It was the foundation for

the early Spanish decrees embracing the feudaltheory ofjura regaliathat all lands were held fromthe Crown.


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Effect of Belligerent Occupationthere is no change in sovereignty.However, political laws, except those of treason, are suspended;municipal laws remain in force unless changed by the belligerentoccupant.

Principle of Jus Postliminiumat the end of the occupation, when theoccupant isousted from the territory, the political laws which have beensuspended shall automatically become effective again.

Effect of Change of Sovereigntypolitical laws of the former sovereign areabrogated unless they are expressly reenacted by the affirmative act of

the new sovereign. Municipal laws remain in force.

Effect of Revolutionary Governmentit is bound by no constitution.However, it did not repudiate the Covenant or Declaration in the sameway it repudiated the Constitution. As the de jure government, therevolutionary government could not escape responsibility for the Statesgood faith compliance with its treaty obligations under international law.

During the interregnum when no constitution or Bill of Rights existed,directives and orders issued by government officers did not exceed theauthority granted them by the revolutionary government. The directivesor orders should not have also violated the Covenant or the Declaration.


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Jurisdictionis the manifestation of sovereignty.

a. Territorialpower of the State over persons andthings within its territory subject to its control andprotection.

b. Personalpower of the State over its nationals,

which may be exercised by the state even if theindividual is outside the territory of the State.

c. Extraterritorialpower of the State over persons,things or acts beyond its territorial limits by reasonof their effects to its territory.

constitutional law 1 lecture on territory and provisions

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