utopia consti reviewer 2010 part i version 3[1]

8/6/2019 Utopia Consti Reviewer 2010 Part I Version 3[1]

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FRATERNAL ORDEROF UTOPIAATENEO DE MANILA UNIVERSITYSCHOOLOFLAW

Atty. ARIS S. MANGUERA

MANGUERA OUTLINE 2010CONSTITUTIONAL LAW I

PART IVERSION3.0

PRELIMINARIES

I. Political LawA. Definition of Political LawB. Subdivisions of Political Law

C. Basis of Philippine Political Law

II. ConstitutionA. Definition of Constitution

B. Philosophical View of the ConstitutionC. Purpose of Constitution

D. Classifications of ConstitutionsE. Qualities of a Good WrittenConstitution

F. Essential Parts of a Good WrittenConstitutionG. Permanency and Generality ofconstitutionsH. Interpretation/Construction ofConstitutionI. Brief Constitutional HistoryJ. The 1987 Constitution

III. Constitutional LawA. Concept of Constitutional LawB. Types of Constitutional Law

IV. Basic ConceptsA. ConstitutionalismB. Philippine ConstitutionalismC. Doctrine of Constitutional SupremacyD. RepublicanismE. Principle of Separation of PowersF. System of Checks and BalancesG. Judicial ReviewH. Due Process

I. POLITICAL LAW

A. Definition of Political Law

Branch of public law1 which deals with theorganization and operation of the governmental

1Public law is understood as dealing with matters affecting the state,

the act of state agencies, the protection of state interests. Private law

deals with the regulation of the conduct of private individuals in their

relation with one another.

organs of the state and defines the relations of thestate with the inhabitants of its territory.2

B. Subdivisions of Political Law

1. Law of public administration2. Constitutional law3. Administrative law

4. Law of public corporations3

C. Basis of Philippine Political Law

The principles of government and political law of

the Philippines are fundamentally derived fromAmerican jurisprudence. This conditions was theinevitable outcome of the establishment of theAmerican rule in the Philippines. When Spainceded the Phils. to the US, the Spanish Politicallaws were automatically displaced by those of theUS.4

II. CONSTITUTION

A. Definition of Constitution

Comprehensive Definition: That body of rulesand maxims in accordance with which the powersof sovereignty are habitually exercised.5(Cooley)

American sense: A constitution is a writteninstrument by which the fundamental powers ofgovernment are established, limited, and definedand by which these powers are distributed amongseveral departments, for their more safe and usefulexercise, for the benefit of the body politic. (JusticeMiller quoted by Bernas)

With particular reference to the PhilippineConstitution: That written instrument enacted bydirect action of the people by which thefundamental powers of the government are

established, limited and defined, and by whichthose powers are distributed among several

As thus conceived public law consists of political law, criminal law

and public international law. Private law includes civil and

commercial law.2

Vicente Sinco, Philippine Political Law 1, 10 th ed., 1954.3



This definition is comprehensive enough to cover written and

unwritten constitutions. (Cruz, Constitutional Law)

I sweat, I bleed, I soar

Service, Sacrifice, Excellence1


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departments for their safe and useful exercise forthe benefit of the body politic. (Malcolm, PhilippineConstitutional Law, p. 6)

In other words: It is thesupreme written law ofthe land.6

B. Philosophical View of the Constitution

The Constitution is a social contract. (Marcos v.Manglapus)

Viewed in the light of the Social Contract Theories,the Constitution may be considered as the SocialContract itself in the sense that it is the very basisof the decision to constitute a civil society or State,breathing life to its juridical existence, laying downthe framework by which it is to be governed,enumerating and limiting its powers and declaringcertain fundamental rights and principles to beinviolable.

The Constitution as a political document may beconsidered as the concrete manifestation orexpression of the Social Contract or the decision toabandon the state of nature and organize andfound a civil society or State.

According to Dean Baustista, the Constitution is asocial contract between the government and thepeople, the governing and the governed.7(ASM: Idont necessarily agree with this statement. As asocial contract, the Constitution, I think is acontract between and among the peoplethemselves and not between the government andthe people. The government is only an effect or

consequence of the social contract of the people.In other words, the government is only a creatureof the Constitution. Hence, the government cannotbe a party to a contract that creates it. In the 1987Philippine Constitution, it reads, We the sovereignFilipino peoplein order to build a society andestablish a government ordain and promulgatethis Constitution.)

According to Dean Bautista, the Constitutionreflects majoritarian values but defendsminoritarian rights.8

See Constitition as Compact of the People byChief Justice Puno in his Separate Concurring

6See People v. Pomar, 46 Phil 440. Bernas Commentary xxxvii

(2003 ed).7

Andres D. Bautista, Introduction to Constitutional Law 1, Slide 3

June 16, 2007.8Andres D. Bautista, Introduction to Constitutional Law 1, Slide 3June 16, 2007.; Majoritarianism is a traditional political philosophywhich asserts that a majority of the population is entitled to a certain

degree of primacy in the society, and has the right to make decisions

that affect the society.

Opinion in the case of Province of North Cotabatov. GRP

C. Purpose of the Constitution

To prescribe the permanent framework of a systemof government, to assign to the severaldepartments their respective powers and duties,and to establish certain first principles on which thegovernment is founded.9 (11 Am. Jur. 606 cited inCruz)

Why would a society generally committed tomajority rule choose to be governed by adocument that is difficult to change?

a) To prevent tyranny of the majorityb) Societys attempt to protect itself from

itself.

c) Protecting long term values from shortterm passions.10

D. Constitution as a Municipal Law

A constitution is a municipal law. As such, it isbinding only within the territorial limits of thesovereignty promulgating the constitution.11

E. Classification

A. (1) Rigid12

(2) FlexibleB. (1) Written13

(2) UnwrittenC. (1) Evolved14

(2) Enacted

D. (1) Normative- adjusts to norms(2) Nominal not yet fully operational(3) Semantic-perpetuation of power

9

10Andres D. Bautista, Introduction to Constitutional Law 1, Slide 4

June 16, 2007.11

Bernas Commentary, p 5(2003 ed).12

Rigid constitution is one that can be amended only by a

formal and usually difficult process; while a flexibleconstitution is one that can be changed by ordinarylegislation. (Cruz, Constitutional Law p 5)13

A writtenconstitution is one whose precepts are embodied

in one document or set of documents; while an unwrittenconstitution consists of rules which have not been integrated

into a single, concrete form but are scattered in varioussources, such as statues of a fundamental character, judicialdecisions, commentaries of publicists, customs and traditions,and certain common law principles. (Cruz, Constitutional Lawpp 4-5)14

An enacted or conventional constitution is enacted,

formally struck off at a definitive time and place following aconscious or deliberate effort taken by a constituent body orruler; while a cumulative or evolved is the result of politicalevolution, not inaugurated at any specific time but changing byaccretion rather than by systematic method. (Cruz,Constitutional Law p 5)




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The Constitution of the Philippines is written,conventional and rigid.

F. Qualities of good written constitution

1. Broad15

2. Brief16

3. Definite17

G. Essential parts of a good written constitution

1. Constitution of government18

2. Constitution of liberty19

3. Constitution of sovereignty20

[Social and economic rights]

H. Interpretation/Construction of the Constitution21

In Fransisco v HR, the SC made reference to theuse of well-settled principles of constitutionalconstruction, namely:

1. Verba Legis22

2. Ratio legis et anima23

3. Ut magis valeat quam pereat24

I. Permanence and Generality of constitutions

A constitution differs from a statute, it is intendednot merely to meet existing conditions, but togovern the future.

15 Broad. Because it provides for the organization of the entire

government and covers all persons and things within the territory of

the State and also because it must be comprehensive enough toprovide for every contingency. (Cruz, Constitutional Law pp 5-6)16

Brief. It must confine itself to basic principles to be implemented

with legislative details more adjustable to change and easier to

amend. (Cruz, Constitutional Law pp 4-5)17

Definite. To prevent ambiguity in its provisions which could result

in confusion and divisiveness among the people. (Cruz,

Constitutional Law pp 4-5)18

Constitution of Government. The series of provisions outlining

the organization of the government, enumerating its powers, laying

down certain rules relative to its administration and defining the

electorate. (ex. Art VI, VII, VIII and IX)19

Constitution of Liberty. The series of proscriptions setting forth

the fundamental civil and political rights of the citizens and imposing

limitations on the powers of government as a means of securing the

enjoyment of those rights. (Ex. Article III)

20 Constitution of Sovereignty. The provisions pointing out the

mode or procedure in accordance with which formal changes in the

fundamental law may be brought about. (Ex. Art XVII)21

Antonio B. Nachura, Outline/Reviewer in Political Law (2006

ed.)22

Plain meaning rule. Whenever possible the words used in the

Constitution must be given their ordinary meaning except when

technical terms are employed.23

Interpretation according to spirit. The words of the Constitution

should be interpreted in accordance with the intent of the framers.24

The constitution has to be interpreted as a whole.

It has been said that the term constitution impliesan instrument of a permanent nature.25

J. Brief Constitutional History

1. Malolos Constitution2. The American Regime and the Organic Acts

3. The 1935 Constitution4. The Japanese (Belligerent) Occupation5. The 1973 Constitution6. The 1987 Constitution

K. The 1987 Constitution

The 1987 Constitution is the 4th fundamental law togovern the Philippines since it becameindependent on July 4, 1946.Background of the 1987 Constitution

1. Proclamation of the Freedom Constitutiona. Procalamation No. 1, February 25, 1986,

announcing that she (Corazon Aquino) and

VP Laurel were assuming power.b. Executive Order No.1, (Febrauary 28, 1986)c. Procalamation No.3, March 25, 1986,

announced the promulgation of theProvisional (Freedom) Constitution, pendingthe drafting and ratification of a newConstitution. It adopted certain provisions inthe 1973 Constitution, contained additionalarticles on the executive department, ongovernment reorganization, and on existinglaws. It also provided of the calling of aConstitutional Commission to be composedof 30-50 members to draft a newConstitution.

2. Adoption of the Constitutiona. Proclamation No. 9, creating the

Constitutional Commission of 50members.

b. Approval of the draft Constitution by theConstitutional Commission on October 15,1986

c. Plebiscite held on February 2, 1987d. Proclamation No. 58, proclaiming the

ratification of the Constitution.3. Effectivity of the 1987 Constitution: February 2,

1987

Features of 1987 Constitution26

1. The new Constitution consists of 18

articles and is excessively long compared tothe 1935 and 1973 constitutions.2. The independence of the judiciaryhas been strengthened with new provisionsfor appointment thereto and an increase inits authority, which now covers even politicalquestions formerly beyond its jurisdiction.

25Ruling Case Law, vol.6, p16)

26Cruz, Political Law.




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3. The Bill of Rights of theCommonwealth and Marcos constitutionshas been considerably improved in the 1987Constitution and even bolstered with thecreation of a Commission of Human Rights.

III. CONSTITUTIONAL LAW

A. Concept of Constitutional Law

Constitutional law is a body of rules resulting fromthe interpretation by a high court of cases in whichthe validity, in relation to the constitutionalinstrument, of some act of governmenthas beenchallenged. (Bernas Commentary xxxviii)

Constitutional law is a term used to designate thelaw embodied in the constitution and the legalprinciples growing out of the interpretation andapplication made by courts of the constitution in

specific cases. (Sinco, Phil. Political Law)

Constitutional law is the study of the maintenanceof the proper balance between authorityrepresented by the three inherent powers of theState and liberty as guaranteed by the Bill ofRights. (Cruz, Constitutional Law)

Constitutional law consist not only of theconstitution, but also of the cases decided by theSupreme Court on constitutional grounds, i.e.,every case where the ratio decidendi is based on aconstitutional provision. (Defensor-Santiago,Constitutional Law)

B. Types of Constitutional law27

1. English type28

2. European continental type29

3. American type30

C. Weight of American Jurisprudence

In the case of Francisco v. HR, (2003) The SupremeCourt speaking through Justice Carpio Morales opined:

American jurisprudence and authorities, muchless the American Constitution, are of dubiousapplication for these are no longer controllingwithin our jurisdiction and have only limitedpersuasive merit insofar as Philippineconstitutional law is concerned. As held inthe case of Garcia vs. COMELEC, "[i]nresolving constitutional disputes, [this Court]

27Vicente Sinco, Philippine Political Law 67, 10 th ed., 1954.

28Characterized by the absence of a written constitution.

29There is a written constitution which gives the court no power to

declare ineffective statutes repugnant to it.30

Legal provisions of the written constitution are given effect

through the power of the courts to declare ineffective or void

ordinary statutes repugnant to it.

should not be beguiled by foreign jurisprudence some of which are hardlyapplicable because they have been dictated bydifferent constitutional settings and needs."Indeed, although the Philippine Constitutioncan trace its origins to that of the UnitedStates, their paths of development have longsince diverged. In the colorful words of FatherBernas, "[w]e have cut the umbilical cord."

(But see the case of Neri v. Senate Committeeswhere the Court cited many American cases)

IV. BASIC CONCEPTS

ConstitutionalismPhilippine ConstitutionalismDoctrine of Constitutional SupremacyRepublicanismPrinciple of Separation of PowersSystem of Checks and BalancesJudicial ReviewDue Process

A. Constitutionalism

Constitutionalism refers to the position or practicethat government be limited by a constitution.

The doctrine or system of government in which thegoverning power is limitedby enforceable rules oflaw, and concentration of power is limited byvarious checks and balances so that the basicrights of individuals and groups are protected.

B. Philippine Constitutionalism

Constitutionalism in the Philippines, understood inthe American sense, dates back to the ratificationof Treaty of Paris. Then it grew from a series oforganic documents. These are:

(1) Pres. Mc Kinleys Instruction to theSecond Phil. Commission,(2) Phil. Bill of 1902,

(3) Phil. Autonomy Act of 1916. (Bernas,Commentary xxxviii)

C. Doctrine of Constitutional Supremacy (2004 BarExam Question)

If a law violates any norm of the constitution, thatlaw is null and void; it has no effect. (This is anoverstatement, for a law held unconstitutional isnot always wholly a nullity)

The American case of Marbury v. Madison laiddown the classic statement on constitutionalsupremacy It is a proposition too plain to becontested, that the Constitution controls anylegislative act repugnant to it.




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Constitutional supremacy produced judicialreview.31

D. Republicanism

The essence of republicanism is representation

and renovation, the selection by the citizenry of acorps of public functionaries who derive theirmandate from the people and act on their behalf,serving for a limited period only, after which theyare replaced or retained at the option of theirprincipal.32

(More discussion of Republicanism under Article II)

E. Principle of Separation of Powers

Essence. In essence, separation of powers meansthat legislation belongs to Congress, execution tothe executive, settlement of legal controversies tothe judiciary. Each is prevented from invading thedomain of others. (Bernas, Commentary 656, 2003

ed.)Division and Assignment. Its starting point is theassumption of the division of the functions of thegovernment into three distinct classestheexecutive, the legislative and the judicial. Itsessence consists in the assignmentof each classof functions to one of the three organs ofgovernment.33

Theory. The theory is that a power definitelyassigned by the Constitution to one departmentcan neither be surrendered nor delegated bythat department, nor vested by statute in anotherdepartment or agency.34

Reason. The underlying reason of this principle isthe assumption that arbitrary rule and abuse ofauthority would inevitably result from theconcentration of the three powers of government inthe same person, body of persons or organ.35

More specifically, according to Justice Laurel, thedoctrine of separation of powers is intended to:

1. Secure action2. To forestall overaction3. To prevent despotism

4. To obtain efficiency36

History. Separation of powers became the pith and

core of theAmerican system of government largelythrough the influence of the French political writerMontesquieu. By the establishment of the

31Defensor Santiago, Constitutional Law 7.

32Cruz, Political Law.

33Vicente Sinco, Philippine Political Law 131, 10th ed., 1954.

34Williams v. US, 289 US 553 (1933).

35Vicente Sinco, Philippine Political Law 131, 10th ed., 1954.

36Pangasinan Transportaion Co. v. PSC, 40 O.G., 8th Supp. 57.

American sovereignty in the Philippines, theprinciple was introduced as an inseparable featureof the governmental system organized by theUnited States in this country.37

Limitations on the Principle1. System of Checks and Balances

2. Existence of overlapping powers38

F. Checks and Balances

The Constitution fixes certain limits on theindependence of each department. In order thatthese limits may be observed, the Constitutiongives each department certain powers by which itmay definitely restrain the other from exceedingtheir authority. A system of checks and balances isthus formed.39

To carry out the system of checks and balances,the Constitution provides:

1. The acts of the legislative departmenthave to be presented to the executive forapproval or disapproval.2. The executive department may vetothe acts of the legislature if in its judgmentthey are not in conformity with theConstitution or are detrimental to theinterests of the people.3. The courts are authorized todetermine the validity of legislativemeasures or executive acts.4. Through its pardoning power, theexecutive may modify or set aside the

judgments of the courts.

5. The legislature may pass laws that ineffect amend or completely revokedecisions of the courts if in its judgmentthey are not in harmony with its intentionor policy which is not contrary to theConstitution.40

6. President must obtain theconcurrence of Congress to completecertain significant acts.

7. Money can be released from thetreasury only by authority of Congress.41

G. Judicial Review

37US v. Bull, 15 Phil 7, 27.

38The power of appointment is one of these. Although this is

executive in nature, it may however be validly exercised by any of

the three departments in selecting its own subordinates precisely to protect its independence. (Vicente Sinco, Philippine Political Law

136, 10th ed., 1954).39

Vicente Sinco, Philippine Political Law 135, 10th ed., 1954.40

Tarlac v. Gale, 26 Phil. 338 cited in Vicente Sinco, Philippine

Political Law 135, 10th ed., 1954.41

Bernas, Commentary 656, 2003 ed.




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Definition. Judicial review refers to the power ofthe courts to test the validity of governmental actsin light of their conformity with a higher norm (e.g.the constitution).

Expression of Constitutional Supremacy.Judicial review is not an assertion of superiority bythe courts over the other departments, but merelyan expression of the supremacy of theConstitution.42 Constitutional supremacy produced

judicial review, which in turn led to the acceptedrole of the Court as the ultimate interpreter of theConstitution.43

Judicial Review in Philippine Constitution.Unlike the US Constitution44 which does notprovide for the exercise of judicial review by theirSupreme Court, the Philippine Constitutionexpressly recognizes judicial review in Section 5(2) (a) and (b) of Article VIII of the Constitution.(More discussion of Judicial Review under Article

VIII)

H. Due Process

Origin: By the 39th chapter of the Magna Cartawrung by the barons from King John, the despotpromised that no man shall be taken, imprisonedor disseized or outlawed, or in any mannerdestroyed; nor shall we go upon him, nor send him,but by the lawful judgment of his peers or by thelaw of the land.In 1335, King Edward IIIs Statute 28 declared thatno man, of what state or condition whoever be,shall be put out of his lands, or tenements, nortaken, nor imprisoned, nor indicted, nor put to

death, without he be brought in to answer by dueprocess of law. It is this immortal phrase that hasresounded through the centuries as the formidablechampion of life, liberty and property in all-freedomloving lands. (Cruz)

Definition45: Embodiment of the sporting idea offair play.46 It is the responsiveness to thesupremacy of reason, obedience, to the dictates of

justice.47 Due process is a guaranty against

42Angara v. Electoral Commission, 63 Phil 139.

43See Cooper v. Aaron, 358 US 1 (1956)

44The case of Marbury v. Madison established the doctrine of

judicial review as a core legal principle in American constitutionalsystem: So if a law be in opposition to the constitution; of both the

law and the constitution apply to a particular case, so that the court

must either decide that case conformably to the law, disregarding the

constitution; or conformably to the constitution, disregarding the law;

the court must determine which of these conflicting rules governs thecase. This is the very essence of judicial duty.45

The idea that laws and legal proceedings must be fair. Due process

is best defined in one word- fairness.46

Frankfurter, Mr. Justice Holmes and the Supreme Court pp

32-3347

Ermita-Malate Hotel & Motors Association v. City of Manila

arbitrariness on the part of the government.Observance of both substantive and proceduralrights is equally guaranteed by due process.48

(More discussion of Due Process under Article III)

48(Tupas v. CA)




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PREAMBLE

I. Meaning II. FunctionIII. Social Contract Theory

I. Meaning

Preamble means to walk before. (Praeambulus:Walking in front)

II. Function

FunctionOrigin/AuthorshipScope and Purpose

A. Functions

1. It sets down the origin, scope and purpose ofthe Constitution.49

2. It enumerates the primary aims and expressesthe aspirations of the framers in drafting theConstitution.50

3. Useful as an aid in the construction andinterpretation of the text of the Constitution.51

Thus, Preamble is a source of light.52 It is not asource of rights or obligations. (Jacobson v.Massachusetts, 197 U.S. 11, 22 (1905).

B. Origin/Authorship

Its origin, or authorship, is the will of the sovereignFilipino people.

The identification of the Filipino people as theauthor of the constitution also calls attention to animportant principle: that the document is not justthe work of representatives of the people but of thepeople themselves who put their mark of approvalby ratifying it in a plebiscite.53

C. Scope and Purpose

To build a just and humane society as to establisha government that shall embody our ideals and

aspirations, promote the common good, conserveand develop our patrimony, and secure toourselves and our posterity the blessings of

49Bernas Primer at 1 (2006 ed.)

50Cruz, Philippine Political Law, p. 49 (1995 ed).



53Bernas Commentary, p 4(2003 ed).

independence and democracy under the rule of lawand the regime of truth, justice, freedom, love,equality and peace.

III. Social Contract Theory

ASM: I submit that the Preamble is somehow amanifestation of the Social Contract Theory as itstates: We the sovereign Filipino peopleinorder to build asociety and establish agovernment do ordain and promulgate thisconstitution.




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ARTICLE I: NATIONAL TERRITORY

I. Territory

II. ArchipelagoIII. Archipelagic Principle

I. Territory

A. What is Territory

Territory is the fixed portion of the surface of theearth inhabited by the people of the state.54

Territory as an element of a state means an areaover which a state has effective control.55

(Read Province of Cotabato v. GRP. October 14,

2008)

B. What does territory include?

Territory includes land, maritime areas, airspaceand outer space.56

Airspaceo Each state has exclusive jurisdiction

over the air above its territory.

o The consent for transit must be

obtained from the subject nation.o Aircrafts not engaged in international

air service, shall have the right to make

flights into or in transit non-stop across itsterritory and to make steps for non-trafficpurposes without the necessity of obtainingprior permission and subject to the right ofthe State flown over to require landing.(Chicago Convention on International CivilAction)

Outerspaceo Sovereignty over airspace extends

only until where outerspace begins. (50-100miles from earth)

Different areas beyond the land territoryo Territorial Seas (12 N.mi from

baseline)o Contiguous Zone (24 N.mi from

baseline)


55Bernas, An Introduction to Public International Law, 97 (2002

ed).56

Bernas, An Introduction to Public International Law, 97 (2002

ed).

o Exclusive Economic Zone/Patrimonial

Sea (200 N.mi from baseline)o High seas (Waters beyond territorial

sea)

C. Significance of Territory

Control over territory is of the essence of a state(Las Palmas case). Certain rights and authority areexercised within the states territory.

1. States sovereignty is over its:o Land territory (and airspace above it)

o Internal Waters (and airspace above it

and seabed under it)o Archipelagic Waters( and airspace

above it and seabed under it)o Territorial Sea (and airspace above it

and seabed under it)2. The coastal state has a right against innocentpassage57in its internal waters.

3. The coastal state exercises authority over thearea (contiguous zone) to the extent necessary toprevent infringement of customs, fiscal, immigrationor sanitation authority over its territorial waters orterritory and to punish such infringement.4. The coastal state has rights over the economicresources of the sea, seabed and subsoil.

D. Scope of Philippine National Territory Defined inArticle I, Section 1.

It includes:(1) The Philippine archipelago;(2) All other territories over which the Philippines

has sovereignty or jurisdiction;

(3) The territorial sea, seabed, subsoil, insularshelves and other submarine areascorresponding to (1) and (2). Moreover, (1)and (2) consist of terrestrial, fluvial and aerialdomains.58

E. Territories Covered under the Definition of Article1

1. Those ceded to the US by virtue of the Treatyof Paris on December 10, 1898.

2. Those defined in the treaty concluded betweenthe US and Spain (Treaty of Washington) onNovember 7, 1990, which were not defined inthe Treaty of Paris, specifically the islands of

Cagayan, Sulu and Sibuto.3. Those defined in the treaty concluded on

January 2, 1930, between the US and GreatBritain(Treaty with Great Britain), specificallythe Turtle and Mangsee islands.

57Passage that is not prejudicial to the peace, good order or

security of the coastal state.58

Bernas Primer at 4 (2006 ed.)




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4. The island of Batanes, which was coveredunder a general statement in the 1935Constitution.

5. Those contemplated in the phrase belongingto the Philippines by historic right or legal titlein the 1973 Constitution.59

E. All other territories which the Philippines hassovereignty and jurisdiction.

This includes any territory which presently belongsor might in the future belong to the Philippinesthrough any of the internationally modes ofacquiring territory.

o Batanes islands

o Those belonging to the Philippines by

historic right or legal title (Sabah, theMarianas, Freedomland)

II. Archipelago

ArchipelagoArchipelagic StateArchipelagic WatersPhilippine Archipelago

A. Archipelago

Archipelago is a body of water studded withislands.60

Q: Do you consider the Spratlys Group of Islandsas part of Philippine Archipelago?A: No. It is far from the three main islands of thePhilippines and it is not covered by what was

ceded in the Treaty of Paris.

Q: Do you consider the Spratlys group of Islandsas part of the National Territory?A: Yes. Under the 2nd phrase, and all otherterritories over which the Philippines hassovereignty and jurisdiction Basis: Discovery ofTomas Cloma in the 1950s. Cloma waived hisrights over the islands in favor of the Philippinegovernment. Philippine troops then occupied theislands. Marcos issued PD 1956 constitutingSpratllys islands as a regular municipality(Municipality of Kalayaan) under the Province ofPalawan. In May 20, 1980, the Philippinesregistered its claim with the UN Secretariat.

B. Archipelagic State

Archipelagic state means a state constituted whollyby one or more archipelagos and may includeother islands. (Article 46 (a) of UNCLOS)



C. Archipelagic Waters

According to UNCLOS, Archipelagic waters refersto areas enclosed as internal waters by using thebaseline method which had not been previouslyconsidered as internal waters. (See Article 53 of

UNCLOS)

Article 8(2) of UNCLOS: Where theestablishment of a straight baseline inaccordance with the method set forth in Article7 has the effect of enclosing as internal watersareas which had not previously beenconsidered as such, a right of innocent passageas provided in this Convention shall exist inthose waters.

According to UNCLOS, in archipelagic waters, aright of innocent passage shall exist in thesewaters. But, the Philippines made a reservation,thus, The concept of archipelagic waters is similarto the concept of internal waters under the

Constitution of the Philippines, and removes straitsconnecting these waters with the economic zone orhigh sea from the rights of foreign vessel to transit

passage for international navigation.

Bernas: The reservation is ad cautelam. The claimmade in the Constitution took effect in 1973 beforethe 1982 Law of the Sea Convention wasformulated. Article 8(2) of the Convention itselfsays that the new rule on archipelagic watersapplies only to areas which had not previouslybeen considered as internal waters.61

D. Philippine Archipelago

The Philippine archipelago is that body of waterstudded with islands which is delineated in theTreaty of Paris, modified by the Treaty ofWashington and the Treaty of Great Britain.

III. Archipelagic Principle

Archipelagic DoctrineArchipelago Doctrine of Article IElements of Archipelagic DoctrinePurpose of Archipelagic Doctrine

A. Archipelagic Doctrine

(1989 Bar Question)

It is the principle whereby the body of waterstudded with islands, or the islands surroundedwith water, is viewed as a unity of islands andwaters together forming one integrated unit. Forthis purpose, it requires that baselines be drawn byconnecting the appropriate points of the outermostislands to encircle the islands within the

61Bernas Commentary, p 28(2003 ed).




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archipelago. We consider all the waters enclosedby the straight baselines as internal waters.62

B. Elements of Archipelagic Doctrine

1. Definition of internal waters63

2. The straight line method of delineating the

territorial sea.

Straight Baseline Method- drawn connectingselected points on the coast without departing toany appreciable extent from the general directionof the coast. RA 3046 and RA 5446 have drawnstraight baselines around the Philippines.

(The problem with the straight baseline method isthat it conflicts with the Law of the Sea because itrecognizes the right of innocent passage inarchipelagic waters. That is why we made areservation. However, as Bernas pointed out, thereservation is ad cautelam)

C. Purposes of Archipelagic Doctrine

1. Territorial Integrity2. National Security3. Economic reasons

It is said that the purpose of archipelagic doctrine isto protect the territorial integrity of the archipelago.Without it, there would be pockets of high seasbetween some of our islands and islets, thusforeign vessels would be able to pass throughthese pockets of seas and would have no

jurisdiction over them.

D. Archipelago Doctrine in Article I, Section 1

(1989 Bar Question)The waters around, between and connecting the

islands of the archipelago, regardless of theirbreadth and dimensions, form part of internalwaters of the Philippines

Q: Differentiate archipelagic waters, territorialsea and internal waters. (2004 Bar Question)A:

According to UNCLOS, Archipelagic waters refersto areas enclosed as internal waters by using thebaseline method which had not been previouslyconsidered as internal waters. (See Article 53 of

UNCLOS)

Territorial sea is an adjacent belt of sea with abreadth of 12 nautical miles measured from the


63Internal waters refer to all waters landwards from the

baseline of the territory.Note: The Philippines considers all waters connecting the

islands as internal waters.

baselines of a state and over which the state hassovereignty. (Article 2, 3 of UNCLOS)

Internal waters refer to all waters landwards fromthe baseline of the territory. Is from which thebreadth of territorial sea is calculated. (Brownlie,Principles of PIL) No right of innocent passage forforeign vessels exist in the case of internal waters.(Harris, Cases and Material on International Law,5th ed., 1998, p.407)

Under Section 1, Article I of the 1987 Constitution,the internal waters of the Philippines consist of thewaters around between and connecting the islandsof the Philippine archipelago regardless of theirbreadth and dimensions including the waters inbays, rivers, and lakes.

Q: Distinguish briefly but clearly between thecontiguous zone and the exclusive economiczone. (2004 Bar Question)

Contiguous zone is a zone contiguous to theterritorial sea and extends up to twelve nauticalmiles from the territorial sea and over which thecoastal state may exercise control necessary toprevent infringement of its customs, fiscal,immigration or sanitary laws and regulations withinits territory or territorial sea. (Article 33 of theConvention on the Law of the Sea.)

The EEZ extends 200 nautical miles from thebaseline. The EEZ is recognized in the UNConvention on the Law of the Sea. Although it isnot part of the national territory, exclusiveeconomic benefit is reserved for the country within

the zone.

By virtue of PD 1599, the Philippine declares that ithas sovereign rights to explore, exploit, conserveand manage the natural resources of the seabed,subsoil, and superjacent waters. Other states areprohibited from using the zone except fornavigation and overflight, laying of submarinecables and pipeline, and other lawful uses relatedto navigation and communication.

Q: Distinguish the flag state and the flag ofconvenience. (2004 Bar Question)

Flag state means a ship has the nationality of theflag of the state it flies, but there must be a genuine

link between the state and the ship. (Article 91 ofthe Convention on the Law of the Sea)

Flag of convenience refers to a state with which avessel is registered for various reasons such aslow or non-existent taxation or low operating costsalthough the ship has no genuine link with thestate. (Harris, Cases and Materials on InternationalLaw, 5th ed., 1998, p. 425.)




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ARTICLE IIDECLARATIONOF PRINCIPLESAND

STATE POLICIES

I. Principles and State Policies

II. State as a Legal ConceptPRINCIPLES

III. Republicanism ( 1)

IV. Incorporation Clause (2)V. Supremacy of Civilian

Authority(3)

VI. Defense of State (4)

VII. Peace and Order(5)VIII. Separation of Church and

State (6)

STATE POLICIESIX. Independent Foreign

Policy(7)

X. Freedom from NuclearWeapons(8)

XI. Just and Dynamic SocialOrder(9)

XII. Promotion of Social Justice(10)

XIII. Respect for HumanDignity(11)

XIV. Family, Rearing the Youth( 12-13)

XV. Women(14)XVI. Health (15)

XVII. Balanced and healthfulEcology(-16)

XVIII. Education, Science andTechnology(17)

XIX. Labor(18)XX. Economy(19)

XXI. Private Sector and PrivateEnterprise (20)

XXII. Comprehensive RuralDevelopment(21)

XXIII. Indigenous CulturalCommunities (22)

XXIV. Sectoral Organizations (23)XXV. Communication and

Information (24)

XXVI. Local Autonomy(25)XXVII. Equal Access to

Opportunities (26)

XXVIII. Public Service (27)

XXIX. Full Public Disclosure (28)

I. Principles and State Policies

A. Description

This portion of the Constitution (Article II) might becalled the basic political creed of the nation.64

By its very title, Article II of the Constitution is adeclaration of principles and state policies. x xx.These principles in Article II are not intended tobe self-executing principles ready for enforcementthrough the courts. They are used by the judiciaryas aids or as guides in the exercise of its power of

judicial review, and by the legislature in itsenactment of laws. (Tanada v. Angara cited inTondo Medical Center Employees Association v.CA, July 17, 2007)

B. Function of the Declaration of Principles andState Policies in the Constitution

It is the statement of the basic ideological principlesand policies that underlie the Constitution. As such,the provisions shed light on the meaning of theother provisions of the Constitution and they are aguide for all departments of the government inthe implementation of the Constitution.65

C. What are Principles? What are Policies?

Principles are binding rules which must beobserved in the conduct of the government.66

Policies are guidelines for the orientation of thestate.67

Note: The distinction between principles andpolices is of little significance because not all of thesix principles are self-executory and some of thepolicies already anchor justiciable rights.68

o Section 5 (maintenance of peace and

orderpromotion of general werlfare) is amere guideline.

o (Section 16 (right of the people to a

balanced and healthful ecology is right-conferring provisions. (Oposa vs. Factoran)

o Section 28 is self-executory (Provinceof North Cotabato v. GRP)

64See Tanada v. Angara. See Vicente Sinco, Philippine Political Law

116 (11th ed., 1962).65

Bernas Primer at 7(2006 ed.)66

See IV RECORD OF THE CONSTITUTIONAL COMMISSION

768 and 580.67

See IV RECORD OF THE CONSTITUTIONAL COMMISSION

768 and 580.68

Bernas Commentary, p 37(2003 ed).




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Section 1. The Philippines is ademocratic and republican State.Sovereignty resides in the people andall government authority emanatesfrom them.

II. State as a Legal Concept

Definition of a StateElements of a StateGovernment

Acts of StateState Immunity

A. Definition of a State

A state refers to a community of persons, more orless numerous, permanently occupying a definiteportion of territory, independent of external control,and possessing an organized government to which

the great body of inhabitants render habitualobedience.69

B. Elements of a State

1. People2. Territory3. Sovereignty4. Government

1. People

A community of persons sufficient in number andcapable of maintaining the continued existence ofthe community and held together by a commonbond of law.70

Different Meanings of People as used in theConstitution:

1. Inhabitants71

2. Electors72

3. Citizens73

4. Sovereign. The people organizedcollectively as a legal association is thestate which sovereignty resides.74

2. Territory

Territory is the fixed portion of the surface of theearth inhabited by the people of the state.75

69Bernas Commentary, p 39 (2003 ed).70

Bernas Commentary, p 40 (2003 ed).71

Article II, Section 15, 16; Article III, Section 2; Article XIII,

Section 1.72

Article VII, Section 4; Article XVI, Section 2; Article XVIII,

Section 25)73

Article II, Section 4; Article III, Section 7.74 Preamble; Article II, Section 1.75

Cruz, Philippine Political Law, p. 16 (1995 ed).

Territory as an element of a state means an areaover which a state has effective control.76

Read Province of North Cotabato v.Government of the Republic of the Philippines

3. Sovereignty

DefinitionKindsCharacteristicsEffects of Belligerent OccupationEffects of Change in SovereigntyDominium v. ImperiumJurisdictionSovereignty resides in the people

a. Sovereignty

The supreme and uncontrollable power inherent ina State by which that State is governed.77

In auto-limitation terms: It is the property of a State-force due to which it has the exclusive capacity oflegal determination and restriction.

b. Kinds:1. Legal2. Political3. Internal4. External

Legal Sovereignty.Cruz: Legal sovereignty is the authority whichhas the power to issue final commands. In ourcountry, the Congress is the legal sovereign.78

Bernas: Legal sovereignty is the supremepower to affect legal interests either bylegislative, executive or judicial action. This islodged in the people but is normally exercisedby state agencies79

(Bernas: Political writers distinguish betweenlegal sovereignty and political sovereignty.The former is described as the supreme powerto make laws and the latter as the sum total ofall influences in a state, legal or non-legal,

76Bernas, An Introduction to Public International Law, 97 (2002

ed).77

Garner cited in Cruz, Philippine Political Law, p. 26 (1995 ed).78

Cruz, Philippine Political Law, p. 26 (1995 ed).79

Bernas Primer at 8 (2006 ed.); Section 1 of Article II says:

Sovereignty resides in the people an all government authorityemanates from them. Sovereignty in this sentence therefore can be

understood as the source of ultimate legal authority. Since the

ultimate law in the Philippine system is the constitution, sovereignty,

understood as legal sovereignty, means the power to adapt or alter a

constitution. This power resides in the people understood as thosewho have a direct hand in the formulation, adoption, and amendment

or alteration of the Constitution. (Bernas Commentary, p 55 (2003

ed).




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which determine the course of law. Sincoprefers not to make the distinction and placeslegal sovereignty in the state itself consideredas a juridical person.)

Political SovereigntySum total of all the influences of a State, legaland non-legal which determine the course oflaw.

Internal SovereigntyIt refers to the power of the State to control itsdomestic affairs. It is the supreme power overeverything within its territory.

External SovereigntyAlso known as Independence, which isfreedom from external control. It is the powerof State to direct its relations with otherStates.80

c. Characteristics of Sovereignty

It is permanent, exclusive, comprehensive,absolute, indivisible, inalienable, andimprescriptible.81

But wait, in the case of Tanada v. Angara, it washeld that sovereignty of a state cannot beabsolute. It is subject to limitations imposed bymembership in the family of nations and limitationsimposed by treaties. The Constitution did notenvision a hermit-type isolation of the country fromthe rest of the world. (2000 Bar Question)

(Read Province of Cotabato v. GRP. October 14,

2008)

d. Effects of Belligerent Occupation

As to political laws. No change of sovereigntyduring a belligerent occupation, the political laws ofthe occupied territory are merely suspended,subject to revival under the jus postliminium uponthe end of the occupation.

Note that the rule suspending political laws affectsonly the civilian inhabitants of the occupiedterritory and is not intended to bind the enemies inarms. Also, the rule does not apply to the law ontreason although decidedly political in character.

As to non-political laws. The non-political lawsare deemed continued unless changed by thebelligerent occupant since they are intended togovern the relations of individuals as amongthemselves and are not generally affected bychanges in regimes of rulers.


81Laurel v. Misa, 77 Phil 856.

As for judicial decisions. As for judicial decisionsthe same are valid during the occupation and evenbeyond except those of a political complexion,which are automatically annulled upon therestoration of the legitimate authority.82

e. Effects of Change in Sovereignty

As to political laws. Where there is a change insovereignty, the political laws of the formersovereign are not merely suspended butabrogatedunless they are retained or re-enactedby positive act of the new sovereign.

As to non-political laws. Non-political laws,continue in operation.

f. Imperium v. Dominium

Imperium. States authority to govern. Covers suchactivities as passing laws, governing territory,

maintaining peace and order over it, and defendingagainst foreign invasion. This is the authoritypossessed by the State embraced in the concept ofsovereignty.

Dominium. Capacity of the State to own property.Covers such rights as title to land, exploitation anduse of it, and disposition or sale of the same.

g. Jurisdiction

Jurisdiction is the manifestation of sovereignty. The jurisdiction of the state is understood as both itsauthority and the sphere of the exercise of thatauthority.

Kinds of Jurisdiction:

1. Territorial jurisdiction- authority of thestate to have all persons and things withinits territorial limits to be completely subjectto its control and protection.83

2. Personal jurisdiction- authority of thestate over its nationals, their persons,property, and acts whether within oroutside its territory (e.g. Art. 15,CC)

82Cruz, Philippine Political Law, p. 28 (1995 ed

83Exempt are:

1. Foreign states, heads of state, diplomatic representatives,

and consuls to a certain degree;

2. Foreign state property, including embassies, consulates,

and public vessels engaged in non-commercial activities;

3. Acts of state;4. Foreign merchant vessels exercising the rights of innocent

passage or involuntary entry, such as the arrival under

stress;

5. Foreign armies passing through or stationed in its territory

with its permission;6. Such other persons or property, including organizations

like the United Nations, over which it may, by agreement,

waive jurisdiction.




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3. Extra-territorial jurisdiction- authority ofthe State over persons, things, or acts,outside its territorial limits by reason oftheir effect to its territory.Examples:1. Assertion of its personal jurisdiction over

its nationals abroad; or the exercise of itsrights to punish certain offensescommitted outside its territory against itsnational interests even if the offenders arenon-resident aliens;

2. By virtue of its relations with other statesor territories, as when it establishers acolonial protectorate, or a condominium,or administers a trust territory, or occupiesenemy territory in the course of war;

3. When the local state waives its jurisdictionover persons and things within its territory,as when a foreign army stationed thereinremains under the jurisdiction of thesending states;

4. by the principle of extra territoriality, asillustrated by the immunities of the head of

state in a foreign country;5. Through the enjoyment or easements or

servitudes, such as the easement ofinnocent passage or arrival under stress;

6. The exercise of jurisdiction by the state inthe high seas over its vessels; overpirates; in the exercise of the right to visitand search; and under the doctrine of hotpursuit;

7. The exercise of limited jurisdiction overthe contiguous zone and the patrimonialsea, to prevent infringement of itscustoms, fiscal, immigration or sanitaryregulations.

h. Juristic Theory of Sovereignty

The legalistic and analytical view of sovereigntyconsiders the state as a corporate entity, a

juridical person.84 It takes the state purely as alegal organism. It does not have anything to do atall with its social and historical background.

i. Sovereignty resides in the PEOPLE

The people in the sense in which it is used hererefers to the entire citizenry considered as aunit.85

4. Government

Government. That institution or aggregate of

institutions by which an independent society makesand carries out those rules of action which arenecessary to enable men to live in a social state, orwhich are impose upon the people forming thatsociety by those who possess the power orauthority of prescribing them.86

84Sinco, Philippine Political Law, p 18 (1954ed).


C Government

1. Government of the Republic of thePhilippines

The Government of the Republic of the Philippinesis a term which refers to the corporate

governmental entity through which the functionsof government are exercised throughout thePhilippine Islands, including, save as the contraryappears from context, the various arms throughwhich political authority is made effective in saidIslands, whether pertaining to the centralGovernment or to the provincial or municipalbranches or other form of local government.(Section 2 of the Revised Administrative Code(1917).On the national scale, the term government of thePhilippines refers to the three great departments.On the local level, it means the regional provincial,city municipal an barangay governments.It does not include government entities which are

given a corporate personality separate and distinctfor the government and which are governed by thecorporation law.

2. Government v. Administration

Government is the institution through which thestate exercises power. Administration consists ofthe set of people currently running the institution.87

3. Functions of Government

(1) Governmental (Constituent)- are thecompulsory functions which constitute the verybonds of society.

(2) Proprietary (Ministerial)optional functions ofthe government for achieving a better life forthe community. (Bacani v. NACOCO)

Governmental Function

Implementation of the land reform may not strictly be

constituent in the sense of Bacani but thecompelling urgency with which the Constitutionspeaks of social justice does not leave any doubt thatland reform is not an optional but a compulsoryfunction of sovereignty. (ACCFA v. CUGCO)

The functions of the Veterans Federation of thePhilippines fall within the category of sovereignfunctions. (Veterans Federation of the Phils. V. Reyes483 SCRA 526)

The Manila International Airport Authority is agovernmental instrumentality vested with corporatepowers to perform its governmental function. Itperforms government functions essential to theoperation of an international airport. (MIAA v. CA)

Housing is a governmental function since housing isconsidered an essential service. (PHHC v. CIR)

86US v. Dorr, 2 Phil 332 cited in Bacani v. NACOCO, 100 Phil. 468

(1956).87

Bernas Commentary, p 44(2003 ed).




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The NHA is tasked with implementing thegovernmental program of providing mass housing tomeet the needs of Filipinos for decent housing. TheNHA is exempt from paying docket fees in suits inrelation to its governmental functions. (Badillo v.Tayag)

The (RCA) Rice and Corn Administration is a

government machinery to carry out declaredgovernment policy to stabilize the price of palay, rice,and corn and making it within the reach of averageconsumers. Its activity of buying and selling corn isonly an incident to its government function. Hence,it is exempt from posting an appeal bond. (Republicv. CFI)

The AFP Retirement and Benefits System is agovernment entity and its funds are in the nature ofpublic funds (People v. Sandiganbayan)

Proprietary Function Undertaking to supply water for a price is considered

a trade and not a governmental activity. (SpousesFontanilla v. Maliaman)

Civil Aeronautics Administration is in charge of the

administration of MIA, it is performing proprietaryfunctions, hence it can be sued even when the claim

is based on a quasi-delict. (CAA v. CA)

4. Doctrine of Parens Patriae

Literally, parent of the people. One of theimportant tasks of the government is to act for theState asparens patriae, or guardian of the rights ofthe people.88

5. Classification of Government on the Basis ofLegitimacy

1. De Jure Government2. De Facto Government

De Jure Government. One established byauthority of the legitimate sovereign.89

De Facto Government. One established indefiance of the legitimate sovereign.90 It actuallyexercises power or control without legal title.91

3 Kinds of De Facto Government:

1. The government that getspossession and control or, or usurps,by force or by the voice of majority, therightful legal government and maintainsitself against the will of the latter. (Such asthe government of England under theCommonwealth, first by Parliament and

later by Cromwell as Protector.)

2. Established and maintained byinvading military forces. Thatestablished as an independent





government by the inhabitants of acountry who rise in insurrection againstthe parent state (Such as the governmentof the Southern Confederacy in revoltagainst the Union during the war ofsecession in the United States.)

3. Government of paramount force.That which is established and maintainedby military forces who invade and occupya territory of enemy in the course of war. 92

(Such as the cases of Castine in Maine,which was reduced to a British possessionin the war of 1812, and Tampico, Mexico,occupied during the war with Mexico bythe troops of the US.) (Co Kim Chan v.Valdez , 75 Phil 113)

Note:The government under Cory Aquino and theFreedom Constitution is a de jure government.It was established by authority of the legitimate

sovereign, the people. It was a revolutionarygovernment established in defiance of the1973 Constitution. (In Re Letter of AssociateJustice Puno, 210 SCRA 589 (1992).

The government under President GloriaMacapagal Arroyo established after the ousterof President Estrada is de jure government.93

Sinco on Revolution or Direct State Action:It sometimes happens that the people rise inrevolt against the existing administration[government] and through force or threatssucceed in altering the constituted organs ofthe government. From the point of view of the

92It has been held that the Second Republic of the Philippines was a

de facto government of paramount force, having been established by

the Japanese belligerent during the occupation of the Philippines in

World War II.

The characteristics of this kind of de facto government are:1. Its existence is maintained by active military power

within the territories, and against the rightful authority of

an established and lawful government.

2. During its existence, it must necessarily be obeyed in civilmatters by private citizens who, by acts of obedience

rendered in submission to such force, do not become

responsible, as wrongdoers, for those acts, though not

warranted by the laws of the rightful government. Actual

governments of this sort are established over districtsdiffering greatly in extent and conditions. They are

usually administered by military authority, supportedmore or less directly by military force. (Co Kim Chan v.Valdez , 75 Phil 113)

By contrast, the Supreme Court unanimously held in LawyersLeague for a Better Philippines v. Corazon Aquino that thepeople have made the judgment; they have accepted thegovernment of President Corazon Aquino which is in effectivecontrol of the entire country so that it is not merely a de factogovernment but in fact and law a de jure government.Moreover, the community of nations has recognized thelegitimacy of the present government.93

Bernas Primer at 9 (2006 ed.)




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existing constitutional plan, that act is illegal;but considered from the point of view of thesate as a distinct entity not necessarily boundto employ a particular government oradministration to carry out its will, it is thedirect act of the state itself because it issuccessful. As such, it is legal, for whatever isattributable to the state is lawful. This is thelegal and political basis of the doctrine ofrevolution.94

5. Presidential v. Parliamentary form ofgovernment (2006 Bar Exam Question)

The presidential form of governments identifyingfeature is what is called the separation ofpowers.95

The essential characteristics of a parliamentaryform of government are:

1. The members of the government or

cabinet or the executive arm are, as arule, simultaneously members of thelegislature;

2. The government or cabinet consisting ofthe political leaders of the majority party orof a coalition who are also members of thelegislature, is in effect a committee of thelegislature;

3. The government or cabinet has apyramidal structure at the apex of which isthe Prime Minister or his equivalent;

4. The government or cabinet remains inpower only for so long as it enjoys thesupport of the majority of the legislature;

5. Both government and legislature are

possessed of control devices which eachcan demand of the other immediatepolitical responsibility. In the hands of thelegislature is the vote of non-confidence(censure) whereby government may beousted. In the hands of the government isthe power to dissolve the legislature andcall for new elections.96

Q: What constitutional forms of governmenthave been experienced by the Philippinessince 1935?A: Presidential and presidential only.97

C. Acts of State





An act of State is done by the sovereign power of acountry, or by its delegate, within the limits of thepower vested in him.98

Within particular reference to Political Law, an actof State is an act done by the political departmentsof the government and not subject to judicialreview. An illustration is the decision of thePresident, in the exercise of his diplomatic power,to extend recognition to a newly-establishedforeign State or government.99

D. State Immunity

The State cannot be sued without its consent.(Article XVI, Section 3)

(State immunity will be discussed under Article XVI,Section 3)

PRINCIPLES

III. Republicanism

Section 1. The Philippines is ademocratic and republican State.Sovereignty resides in the people andall government authority emanatesfrom them.

A. Republic

Republic is a representative government run bythe people and for the people.100

Republican state is a state wherein allgovernment authority emanates from the peopleand is exercised by representatives chosen by thepeople.101








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B. Essential Features of Republicanism

The essence of republicanism is representationand renovation. The citizenry selects a corps ofpublic functionaries who derive their mandate fromthe people and act on their behalf, serving for a

limited period only, after which they are replaced orretained at the option of their principal.102

C. Manifestations of Republicanism

1. Ours is a government of laws and not of men.(Villavicencio v. Lukban, 39 Phil 778)

2. Rule of Majority (Plurality in elections)3. Accountability of public officials4. Bill of Rights5. Legislature cannot pass irrepealable laws6. Separation of powers

D. Democratic State

In the view of the new Constitution, the Philippinesis not only a representative or republican state butalso shares some aspects of direct democracysuch as initiative and referendum. The worddemocratic is also a monument to the FebruaryRevolution which re-won freedom through directaction of the people.

E. Constitutional Authoritarianism

Constitutional authoritarianism as understood andpracticed in the Marcos regime under the 1973Constitution, was the assumption of extraordinarypowers by the President, including legislative and

judicial and even constituent powers.103

Q: Is constitutional authoritarianism compatiblewith a republican state?A: Yes if the Constitution upon which the Executivebases his assumption of power is a legitimateexpression of the peoples will and if the Executivewho assumes power received his office through avalid election by the people.104

IV. Renunciation of War/ Incorporation Clause/Policy of PEJ-FCA with All Nations

Section 2. The Philippines renounceswar as an instrument of national

policy, adopts the generally acceptedprinciples of international law as partof law of the land and adheres to thepolicy of peace, equality, justice,freedom, cooperation, and amity withall nations.




A. Renunciation of War

The Philippines renounces war as an instrument ofnational policy(Read along Preamble, Article II Secs. 7 &8; Article

XVIII Sec. 25)

1. Aggressive War

The Philippines only renounces AGGRESSIVE waras an instrument of national policy. It does notrenounce defensive war.

2. Philippines Renounces Not Only War

As member of United Nations, the Philippines doesnot merely renounce war but adheres to Article 2(4)of the UN charter which says: All Members shallrefrain in their international relations from thethreat or use of force against the territorialintegrity or political independence of any state, orin any other manner inconsistent with Purposes of

the Untied Nations.

3. Historical Development of the PolicyCondemning or Outlawing War in theInternational Scene:

1. Covenant of the League of Nations-provided conditions for the right to go to war.

2. Kellogg-Briand Pact of 1928- alsoknown as the General Treaty for theRenunciation of War, ratified by 62 states,which forbade war as an instrument ofnational policy.

3. Charter of the United Nations- Prohibitsthe threat or use of force against the territorialintegrity or political independence of a State.

B. Incorporation Clause

The Philippinesadopts the generally acceptedprinciples of international law as part of law of theland

1. Acceptance of Dualist View

Implicit in this provision is the acceptance of thedualist view of legal systems, namely thatdomestic law is distinct from international law.Since dualism holds that international law andmunicipal law belong to different spheres,

international law becomes part of municipal lawonly if it is incorporated in to municipal law.105

2 Doctrine of Incorporation (1997 Bar Question)

Every state is, by reason of its membership in thefamily of nations, bound by the generallyaccepted principles of international law, which

105Bernas Commentary, p 61 (2003 ed).




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are considered to be automatically part of itsown laws. This is the doctrine of incorporation.106

3. International Law

International LawTraditional definition: It is a body of rules and

principles of action which are binding upon civilizedstates in their relation to one another.Restatement: The law which deals with the conductof states and of international organizations andwith their relations inter se, as well as with someother relations with persons, natural or juridical.

4. To What Elements of International Law doesthe principle of incorporation apply?

Since treaties become part of Philippine law onlyby ratification, the principle of incorporation appliesonly to customary law and to treaties whichhave become part of customary law. 107

5. Effect of Incorporation Clause

International law therefore can be used byPhilippine courts to settle domestic disputes inmuch the same way that they would use the CivilCode or the Penal Code and other laws passed byCongress.108

C. Policy of PEJ-FCA with All Nations

The Philippinesadheres to the policy of peace,equality, justice, freedom, cooperation, and amitywith all nations.

Q: Does the affirmation of amity will all nationsmean automatic diplomatic recognition of allnations?A: No. Amity with all nations is an ideal to be aimedat. Diplomatic recognition, however, remains amatter of executive discretion.109

V. Supremacy of Civilian Authority

Section 3. Civilian Authority is, at alltimes supreme over the military. TheArmed Forces of the Philippines isthe protector of the people and theState. Its goal is to secure thesovereignty of the State and integrityof the national territory.

A. Civilian Authority

That civilian authority is at all times supreme overthe military is implicit in a republican system.110






Still, it was felt advisable to expressly affirm thisprinciple in the Constitution to allay all fears of amilitary take-over of our civilian government.111

It was also fittingly declared that the President, whois a civilian official, shall be the commander-in-chiefof all the armed forces of the Philippines.112

Q: Does this mean that civilian officials are superiorto military officials?A: Civilian officials are superior to military officialonly when a law makes them so.113

B. Armed Forces of the Philippines

1. Reasons [in the constitution] for theexistence of the armed forces

(1) As protector of the people and the State(2) To secure the sovereignty of the State and the

integrity of the national territory.114

(3) They may be called to prevent or suppresslawless violence, invasion or rebellion.115

(4) All Members of the armed forces shall take anoath or affirmation to uphold and defend theConstitution.116

2. Composition

The Armed Forces of the Philippines shall becomposed of a citizen armed force which shallundergo military training and serve as may beprovided by law. (Article XVI, Section 4)

3. On Politics

The armed forces shall be insulated from partisanpolitics. No member of the military shall engagedirectly or indirectly in any partisan political activity,except to vote. (Article XVI, Section 5)

Q: Is the provision an assertion of the politicalrole of the military?A: No. The phrase protector of the peoplewas not meant to be an assertion of thepolitical role of the military. The intent of thephrase protector of the people was rather tomake it as corrective to military abusesexperienced during martial rule.117


112Article VII, Section 18.


114Article II, Section 3.

115Article VII, Section 18. See IBP v. Zamora.

116Article XVI, Seciton 5.





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Q: Does this mean that the military has nopolitical role?A: Bernas: The military exercise of politicalpower can be justified as a last resortwhencivilian authority has lost its legitimacy.118

(This is dangerous.)

4 . Bar Question (2003)

Q: Is the PNP covered by the same mandate underArticle II, Section 3?A: No. This provision is specifically addressed tothe AFP and not to the PNP, because the latter isseparate and distinct from the former. (Record ofthe Constitutional Commission, Volume V, p. 296;Manalo v. Sistoza, 312 SCRA 239)

VI. Defense of State

Section 4. The prime duty of thegovernment is to serve and protect

the people. The Government may callupon the people to defend the stateand, in the fulfillment thereof, allcitizens may be required, underconditions provided by law, to renderpersonal military or civil service.

VII. Peace and Order

Section 5. The maintenance ofpeace and order, the protection oflife, liberty and property, and thepromotion of general welfare are

essential for the enjoyment by all thepeople of the blessings of democracy.

Section 5 is not a self-executing provision. It ismerely a guideline for legislation. (Kilosbayan v.Morato)

Right to bear arms. The right to bear arms is astatutory, not a constitutional right. The license tocarry a firearm is neither a property nor a propertyright. Neither does it create a vested right. Even if itwere a property right, it cannot be consideredabsolute as to be placed beyond the reach ofpolice power. The maintenance of peace andorder, and the protection of the people againstviolence are constitutional duties of the State, andthe right to bear arms is to be construed inconnection and in harmony with theseconstitutional duties. (Chavez v. Romulo, 2004)

VIII. Separation of Church and State


Section 6. The separation of Churchand State shall be inviolable.

A. Rationale

Strong fences make good neighbors. The idea is to

delineate boundaries between the two institutions andthus avoid encroachments by one against the otherbecause of a misunderstanding of the limits of theirrespective exclusive jurisdictions.119

B. Who is Prohibited from Interfering

Doctrine cuts both ways. It is not only the State that isprohibited from interfering in purely ecclesiasticalaffairs; the Church is likewise barred from meddling inpurely secular matters.120(Cruz)

C. Separation of Church and State is Reinforced by:

1. Freedom of Religion Clause (Article III, Section5)

2. Religious sect cannot be registered as apolitical party (Article IX-C, Section 2(5))

3. No sectoral representatives from the religioussector. (Article VI, Section 5 (2))

4. Prohibition against appropriation againstsectarian benefit. (Article VI, 29(2)).

D. Exceptions

1. Churches, parsonages, etc. actually, directlyand exclusively used for religious purposesshall be exempt from taxation. (Article VI,Section 28(3)).

2. When priest, preacher, minister or dignitary isassigned to the armed forces, or any penalinstitution or government orphanage orleprosarium, public money may be paid tothem. (Article VI, Section 29(2))

3. Optional religious instruction for publicelementary and high school students. (ArticleXIV, Section 3(3)).

4. Filipino ownership requirement for educationinstitutions, except those established byreligious groups and mission boards. (ArticleXIV, Section 4(2)).

STATE POLICIES

IX. Independent Foreign Policy

Section 7. The State shall pursue anindependent foreign policy. In itsrelations with other states theparamount consideration shall benational sovereignty, territorial






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integrity, national interest, and theright to self-determination.

The word relations covers the whole gamut oftreaties and international agreements and otherkinds of intercourse.121

X. Freedom from Nuclear Weapons

Section 8. The Philippines consistentwith the national interest, adopts andpursues a policy of freedom fromnuclear weapons in its territory.

A. Scope of Policy

The policy includes the prohibition not only of thepossession, control, and manufacture of nuclearweapons but also nuclear arms tests.

B. Exception to the Policy

Exception to this policy may be made by thepolitical department but it must be justified by thedemands of the national interest.122

The policy does not prohibit the peaceful use ofnuclear energy.123

C. Implication of the Policy for the Presence ofAmerican Troops

Any new agreement on bases or the presence ofthe troops, if ever there is one, must embody the

basic policy of freedom from nuclear weapons.Moreover, it would be well within the power ofgovernment to demand ocular inspection andremoval of nuclear arms.124

XI. Just and Dynamic Social Order

Section 9. The State shall promote ajust and dynamic social order that willensure the prosperity andindependence of the nation and freethe people from poverty throughpolicies that provide adequate socialservices, promote full employment, a

raising standard of living, and animproved quality of life for all.





XII. Social Justice

Section 10. The State shall promotesocial justice in all phases of nationaldevelopment

A. Definition of Social Justice

Social Justice is neither communism, nordespotism, nor atomism, nor anarchy, but thehumanization of the laws and the equalizationof the social and economic forces by the Stateso that justice in its rational and objectivelysecular conception may at least beapproximated. (Calalang v. Williams)

Social justice simply means the equalization ofeconomic, political, and social opportunities withspecial emphasis on the duty of the state to tilt thebalance of social forces by favoring the

disadvantaged in life.125

XIII. Respect for Human Dignity

Section 11. The State values thedignity of every human person andguarantees full respect for humanrights.

The concretization of this provision is foundprincipally in the Bill of Rights and in the humanrights provision of Article XIII.126

Facts: Petitioners questioned the constitutionalityof PD 1869, which created the PAGCOR andauthorized it to operate gambling casinos, on theground that it violated Sections 11, 12 and 13 ofArticle II of the Constitution.Held: These provisions are merely statements ofpolicies which are not self-executing. A law has tobe passed to implement them. (Basco v. PAGCOR,197 DCRA 52)127

XIV. Family; Rearing the Youth

Section 12. The State recognizes thesanctity of family life and shall protectand strengthen the family as a basicautonomous social institution. It shallequally protect the life of the motherand the life of the unborn fromconception. The natural and primary



127Jacinto Jimenez, Political Law Compendium, 4 (2006 ed.)




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right and duty of parents in rearing ofthe youth for civic efficiency and thedevelopment of moral character shallreceive the support of thegovernment.

Section 13. The State recognizesthe vital role of the youth in nation-building and shall promote andprotect their physical moral, spiritual,intellectual, and social well-being. Itshall inculcate in the youth patriotismand nationalism, and encourage theirinvolvement in public and civic affairs.

A. Family

Family means a stable heterosexual relationship.The family is not a creature of the State.128

B. Effect of the Declaration of Family Autonomy

It accepts the principle that the family is anterior tothe State and not a creature of the State. It protectsthe family from instrumentalization by the State.129

C. Purpose of Assertion of Protection of the Unborn

The purpose of the assertion that the protectionbegins from the time of conception is to preventthe State form adopting the doctrine in Roe v.Wade which liberalized abortion laws up to thesixth month of pregnancy by allowing abortion anytime during the first six months of pregnancyprovided it can be done without danger to the

mother.

D. Legal Meaning of the Protection Guaranteed forthe Unborn.

1. This is not an assertion that the unborn isa legal person.

2. This is not an assertion that the life of theunborn is placed exactly on the level of the lifeof the mother. (When necessary to save thelife of the mother, the life of the unborn may besacrificed; but not when the purpose is merelyto save the mother from emotional suffering,for which other remedies must be sought, or tospare the child from a life of poverty, which

can be attended to by welfare institutions.)130

E. Education




In the matter of education, the primary and naturalright belongs to the parents. The State has asecondary and supportive role.

Foreign Language. The State cannot prohibit theteaching of foreign language to children before

they reach a certain age. Such restriction doesviolence both to the letter and the spirit of theConstitution. (Meyer v. Nebraska)

Public School. The State cannot require childrento attend onlypublic schools before they reach acertain age. The child is not a mere creature of theState. Those who nurture him and direct his destinyhave the right to recognize and prepare him.(Pierce v. Society of Sisters)

Religious Upbringing. The State cannot requirechildren to continue schooling beyond a certainage in the honest and sincere claim of parents thatsuch schooling would be harmful to their religious

upbringing. Only those interests of the State of thehighest order and those not otherwise served canoverbalance the primary interest of parents in thereligious upbringing of their children. (Wisconsin v.Yoder)

Parens Patriae. However, as parens patriae, theState has the authority and duty to step in whereparents fail to or are unable to cope with theirduties to their children.

XV. Women

Section 14. The State recognizes the

role of women in nation-building, andshall ensure the fundamental equalitybefore the law of women and men.

The provision is so worded as not to automaticallydislocate the Civil Code and the civil law

jurisprudence on the subject. What it does is togive impetus to the removal, through statutes, ofexisting inequalities. The general idea is for the lawto ignore sex where sex is not a relevant factor indetermining rights and duties. Nor is the provisionmeant to ignore customs and traditions.131

In Philippine Telegraph and Telephone Co. v.NLRC, 1997, the Supreme Court held that thepetitioners policy of not accepting or consideringas disqualified from work any woman worker whocontracts marriage , runs afoul of the test of, andthe right against discrimination, which isguaranteed all women workers under theConstitution. While a requirement that a womanemployee must remain unmarried may be justifiedas a bona fide qualification where the particular





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requirements of the job would demand the same,discrimination against married women cannot beadopted by the employer as a general principle.

XVI. Health

Section 15. The State shall protectand promote the right to health of thepeople and instill healthconsciousness among them.

The provisions which directly or indirectly pertain tothe duty of the State to protect and promote thepeoples right to health and well-being are not self-executory. They await implementation by Congress.132

XVII. Balanced and Healthful Ecology

Section 16. The State shall protect and

advance the right of the people to abalanced and healthful ecology inaccord with the rhythm and harmony ofnature.

Section 16 provides for enforceable rights. Hence,appeal to it has been recognized as conferringstanding on minors to challenge logging policiesof the government. (Oposa v. Factoran)

While the right to a balanced and healthfulecology is to be found under the Declaration ofPrinciples and State Policies and not under the Billof Rights, it does not follow that it is less importantthan any of the civil and political rights enumerated

in the latter. Such a right belongs to a differentcategory of rights for it concerns nothing less thanself-preservation and self-perpetuation. Thesebasic rights need not even be written in theConstitution for they are assumed to exist from theinception of humankind. (Oposa v. Factoran,1993)

On this basis too, the SC upheld the em

utopia consti reviewer 2010 part i version 3[1]

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