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Gelo Notes Political Law Reviewer

Interpretation of the Constitution posterity the blessings of independence and


democracy under the rule of law and a regime of
It must be interpreted in such a way as to give effect to truth, justice, freedom, love, equality, and peace, do
the intendment of the framers. ordain and promulgate this Constitution.

This intention is discoverable either in the document - The preamble is not a source of substantive right since
itself or through the use of extrinsic aids, such as the its purpose is only to introduce. It enumerates the
records of the constitutional convention. primary aims and expresses the aspirations of the
framers.
- In case of doubt, the provisions of the Constitution
must be considered self-executing (which would be We, the sovereign Filipino people…do ordain and
directly or indirectly applicable without need of statutory promulgate this Constitution.
implementation) rather than non-self-executing (which
Making and Changing the Constitution
would remain dormant unless they are activated by
legislative implementation.
- Relate to Art. XVII of the Constitution which provides
Note that Art. II has been interpreted as generally not a for the two-step procedure for amending or revising the
Constitution, that is, proposal and ratification.
source of enforceable rights. Sections 5 (maintenance of
peace and order), and section 18 (labor as a primary
- A change in the Constitution may be effected by mere
social economic force) are not self-executing provisions. modification of the judicial interpretation of any of its
(Jurisprudence). Also provisions on social justice.) Also provisions, as in the subsequent abandonment by the
the provision of Art. XIII (social justice and human rights) Supreme Court of its ruling in People vs. Pomar, where it
are not judicially enforceable rights by itself, without the considered a subsequent law providing for maternity
application of the equal protection clause, has no life or benefits for employees as subordinated to the non-
force of its own. (jurisprudence) impairment clause which protected a contract of
employment existing at the time of the promulgation of
- In the absence of a clear showing of a contrary said law.
intention, the provisions of the Constitution should be
Proposal
regarded as mandatory. Otherwise, the fundamental
law would have no more force or prestige that a set of
The proposal is usually made either directly by congress
directions which the government and the people would or by a constitutional convention. A special case is
be free to disregard. provided for in the 1987 Constitution where the proposal
may be made directly by the people through initiative.
- The provisions of the Constitution should be given only
a prospective application unless the contrary is clearly SECTION 1. Any amendment to, or revision of, this
intended. Were the rule otherwise, rights already Constitution may be proposed by:
acquired or vested might be unduly disturbed or
withdrawn even in the absence of an unmistakable (1) The Congress, upon a vote of three-fourths of all its
intention to place them within the scope of the Members; or
Constitution.
(2) A constitutional convention.
In Republic vs. CA, we stated that mining rights acquired
under the Philippine Bill of 1902 and prior to the SECTION 2. Amendments to this Constitution may
effectivity of the 1935 Constitution were vested rights likewise be directly proposed by the people through
that could not be impaired even by the government. initiative upon a petition of at least twelve per centum of
Indeed, the mining patents of Yinlu were issued pursuant the total number of registered voters, of which every
legislative district must be represented by at least three
to the Philippine Bill of 1902 and were subsisting prior to
per centum of the registered voters therein. No
the effectivity of the 1935 Constitution. Consequently, amendment under this section shall be authorized within
Yinlu and its predecessors-in-interest had acquired five years following the ratification of this Constitution nor
vested rights in the disputed mineral lands that could oftener than once every five years thereafter.
and should not be impaired even in light of their past
failure to comply with the requirement of registration and The Congress shall provide for the implementation of the
annual work obligations. (Jurisprudence) exercise of this right.

PREAMBLE SECTION 3. The Congress may, by a vote of two-thirds


of all its Members, call a constitutional convention, or by
a majority vote of all its Members, submit to the
We, the sovereign Filipino people, imploring the aid electorate the question of calling such a convention.
of Almighty God, in order to build a just and humane
society and establish a Government that shall
embody our ideals and aspirations, promote the (Section 2 of Art. XVII does not apply to revision. It is not
common good, conserve and develop our self-executory)
patrimony, and secure to ourselves and our

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Philippians 4:13 I can do all things through Christ[a] who strengthens me.
Gelo Notes Political Law Reviewer

Note: Votes required under section 1 (1) and section 3 of Thus, a change in the nature of the basic governmental
art. XVII are qualified absolute majority votes. ¾ and 2/3. plan includes change in its fundamental framework or
Absolute majority vote or majority of all its members with the fundamental powers of its branches. A change in the
respect to their referral to the electorate of the question
nature of the basic governmental plan also includes
calling such constitutional convention.
changes that jeopardize the traditional form of
government and the system of check and balances.
Note further that, unlike under the 1935 Constitution,
these votes are not required to be made separately, or (Lambino vs. Comelec)
by each chamber of congress, “in joint session
assembled,” although the popular view is that these A change in the structure of government is a revision of
votes must be done separately, the basic argument the Constitution. A shift from a Bicameral-Presidential to
being the fact that our legislature is bicameral and that, Unicameral-Parliamentary system, involving the abolition
considering that ordinary legislation requires a separate of the office of the president and the abolition of one
vote, a similar vote is more so justified or warranted if a chamber of congress, is beyond doubt a revision, not a
proposal to amend or revise the constitution were to be
mere amendment.
made directly by congress acting as a constituent, and
not merely as a legislative assembly.
Where the proposed change applies only to a specific
provision of the Constitution without affecting any other
(See page 13-17 for quorum, voting and percentage
section or article, the change may generally be
requirements under the constitution)
considered an amendment and not a revision. For
Amendment or revision (political question as per class example, a change reducing the voting age from 18
discussion) years to 15 years47 is an amendment and not a revision.
Similarly, a change reducing Filipino ownership of mass
- Revision broadly implies a change that alters a basic media companies from 100 percent to 60 percent is an
principle in the constitution, like altering the principle of amendment and not a revision.48 Also, a change
separation of powers or the system of checks and requiring a college degree as an additional qualification
balances. There is also revision if the change alters the for election to the Presidency is an amendment and not
substantive entirety of the constitution, as when the
a revision.
change affects substantial provisions of the constitution.
However, there can be no fixed rule on whether a
Amendment broadly refers to a change that adds,
change is an amendment or a revision. A change in a
reduces, or deletes without altering the basic principle
involved. single word of one sentence of the Constitution may be a
revision and not an amendment. For example, the
Revision generally affects several provisions of the substitution of the word "republican" with "monarchic" or
constitution, while amendment generally affects only the "theocratic" in Section 1, Article II50 of the Constitution
specific provision being amended. (Lambino vs. radically overhauls the entire structure of government
Comelec) and the fundamental ideological basis of the
Constitution. Thus, each specific change will have to be
Tests (amendment vs. Revision) examined case-by-case, depending on how it affects
other provisions, as well as how it affects the structure of
It is important to determine whether or not a proposed government, the carefully crafted system of checks-and-
change in the Constitution would be an amendment or balances, and the underlying ideological basis of the
revision thereof because Section 2 of Art. XVII of the
Constitution allows the people, through the process existing Constitution.
known as initiative, to propose only amendments to
the constitution. Under both the quantitative and qualitative tests, the
Lambino Group's initiative is a revision and not merely
- The quantitative test asks whether the proposed an amendment. Quantitatively, the Lambino Group's
change is “so extensive in its provisions as to change proposed changes overhaul two articles - Article VI on
directly the ‘substantial entirety’ of the constitution by the the Legislature and Article VII on the Executive -
deletion or alteration of numerous existing provisions.” affecting a total of 105 provisions in the entire
Constitution.40Qualitatively, the proposed changes alter
The court examines only the number or provisions substantially the basic plan of government, from
affected and does not consider the degree of the presidential to parliamentary, and from a bicameral to a
change. unicameral legislature. (Lambino vs. Comelec)

- The qualitative test inquires into the qualitative effects A quorum is defined as any number sufficient to
of the proposed change in the constitution. The main transact business. (jurisprudence)
inquiry is whether the change will “accomplish such far
reaching changes in the future of our basic Absolute majority is required for a quorum in either
governmental plan as to amount to a revision.” Whether houses of the congress.
there is an alteration in the structure of government is a
proper subject of inquiry. Absolute majority – majority of all the members.

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Philippians 4:13 I can do all things through Christ[a] who strengthens me.
Gelo Notes Political Law Reviewer

Simple majority – majority of a quorum. First, the people must author and thus sign the entire
proposal. No agent or representative can sign on their
(See page 17-21 of carlo cruz volume 1 for summary of behalf.
quorum, voting and percentage requirements under the
constitution) Second, as an initiative upon a petition, the proposal
must be embodied in a petition. The full text of the
Constitutional Convention proposed amendments may be either written on the face
of the petition, or attached to it. If so attached, the
- Congress, acting as a constituent assembly, may, with
petition must state the fact of such attachment. (Lambino
the concurrence of two thirds of all its members, call a
vs. Comelec) – Specific changes must appear in the
constitutional convention in general terms only.
face of the document (disclose) as per class discussion)
Thereafter, the same congress, acting this time as a
legislative body, may pass the necessary implementing Ratification
law providing for the details of the constitutional
convention. (Imbong vs. Comelec) Under Section 4 of Art. XVII of the Constitution, Any
amendment to, or revision of, this Constitution under
- During its existence, the Constitutional Convention Section 1 hereof shall be valid when ratified by a
may, under the so-called Theory of Conventional majority of the votes cast in a plebiscite which shall be
Sovereignty, be considered as supreme over the other held not earlier than sixty days nor later than ninety days
departments of the government because the powers it after the approval of such amendment or revision.
exercises are in the nature of sovereign powers;
Any amendment under Section 2 hereof shall be valid
Inferior to the other departments since it is merely a when ratified by a majority of the votes cast in a
creation of the legislature; or plebiscite which shall be held not earlier than sixty days
nor later than ninety days after the certification by the
Independent of and co-equal of the other departments of Commission on Elections of the sufficiency of the
the government, so long as it confines itself within the petition.
sphere of its jurisdiction.
- A plebiscite may be scheduled on the same day of a
The third of these theories is observed in our jurisdiction. regular election. (Gonzales vs. Comelec)
(jurisprudence)
Note the dissenting opinion of Justice Sanchez
Initiative on amendment of the constitution concurred in by Justice J.B.L. Reyes, In Gonzales,
where he said that, in order that the proposed
(see Sec. 2 of Art. XVII) amendments could be considered to have been properly
submitted, “They must be afforded ample opportunity to
- The law (R.A. 6735) does not provide for the mull over the original provisions compare them with the
proposed amendments, and try to reach a conclusion as
mechanics for an initiative on the constitution. It is
the dictates of their conscience suggest, free from the
“incomplete, inadequate or wanting in essential terms incubus of extraneous or possibly in insidious influences.
and conditions insofar as initiative on amendments to the .There must be fair submission, intelligent, consent or
constitution is concerned. (Santiago vs. Comelec) – it rejection. Such fair submission he believed, would be
remains as doctrine as per class discussion possible only if the plebiscite were scheduled on a
special day. (Doctrine of proper submission as per class
R.A. 6735 - “An act providing for a system of initiative discussion?)
and referendum and appropriating funds thereof”
- In Tolentino vs. Commission on Elections, the SC ruled
- It should be noted that, in its resolution dated that a proposal to lower the voting age from 21 to 18
November 21, 2006 providing for the denial of the cannot be submitted or scheduled for ratification
motions for reconsideration in the case of Lambino vs. independently, or prior to the approval by a constitutional
convention, of all the other changes or amendments it
Comelec, where the Court declared that “there is even
shall be making. The use of the word “election” (under
no need to revisit Santiago, as the present petition the 1935 constitution) in the singular, according to the
warrants dismissal based alone on the Lambino Groups SC, meant that the entire constitution must be submitted
glaring failure to comply with the basic requirements of for ratification at one plebiscite only. Furthermore, the
the Constitution,” the SC acknowledged that “ten people were not given a proper “frame of reference” in
members of the court reiterate their position, as shown arriving at their decision because they had at the time no
by their various opinions already given when the idea yet of what the rest of the revised constitution would
ultimately be and therefor would be unable to assess the
decision herein was promulgated, that R.A. 6735 is proposed amendment in the light of the entire document.
sufficient and adequate to amend the Constitution
through people’s initiative. - Courts may inquire into whether or not the prescribed
procedure for amendment has been observed.
- Two essential elements must be present: (jurisprudence)

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Philippians 4:13 I can do all things through Christ[a] who strengthens me.
Gelo Notes Political Law Reviewer

…imploring the aid of almighty god… That her indiscretion, which resulted in her pregnancy
out of wedlock, is anathema to the doctrines of the
Religion is acknowledged as referring to any specific Catholic Church. However, viewed against the prevailing
system of belief, worship, conduct etc., often involving a norms of conduct, the petitioner’s conduct cannot be
code of ethics and philosophy… The existence of a considered as disgraceful or immoral; such conduct is
divine being is not inherent in religion… not denounced by public and secular morality. It may be
an unusual arrangement, but it certainly is not
Separation of Church and State (see page 25-41 of disgraceful or immoral within the contemplation of the
law.
carlo cruz volume 1 for cases)

ARTICLE II SECTION 6. The separation of Church and To stress, pre-marital sexual relations between two
consenting adults who have no impediment to marry
State shall be inviolable.
each other, and, consequently, conceiving a child out of
wedlock, gauged from a purely public and secular view
Verily, the principle of separation of Church and State is of morality, does not amount to a disgraceful or immoral
based on mutual respect. Generally, the State cannot conduct under Section 94(e) of the 1992 MRPS. (Leus
meddle in the internal affairs of the church, much less vs. St. Scholastica’s College Westgrove)
question its faith and dogmas or dictate upon it. It cannot
favor one religion and discriminate against another. On
Guarantee of religious freedom is comprised of two
the other hand, the church cannot impose its beliefs and
parts / religious profession and worship has twofold
convictions on the State and the rest of the citizenry. It
aspects:
cannot demand that the nation follow its beliefs, even if it
sincerely believes that they are good for the country.
(Imbong vs. Ochoa) 1. Freedom to believe – absolute
2. Freedom to act on one’s belief – subject to
In the case at bench, it is not within the province of the regulation where the belief is translated into
Court to determine whether the use of contraceptives or external act that affect the public welfare.
one's participation in the support of modem reproductive
health measures is moral from a religious standpoint or Conscientious Objectors
whether the same is right or wrong according to one's
dogma or belief. For the Court has declared that matters - A conscientious objector may not refuse, by reason of
dealing with "faith, practice, doctrine, form of worship, his religious beliefs, to render personal military or civil
ecclesiastical law, custom and rule of a church ... are service, as required under Art. II, Section 4 of the
unquestionably ecclesiastical matters which are outside Constitution. (People vs. Zosa)
the province of the civil courts." The jurisdiction of the
Court extends only to public and secular morality. Note: The “conscientious objector status” with respect to
Whatever pronouncement the Court makes in the case military conscription has been acknowledged by the
at bench should be understood only in this realm where justice department of the United States on the basis of
it has authority. Stated otherwise, while the Court stands three test: (requisites to invoke conscientious
without authority to rule on ecclesiastical matters, as objector)
vanguard of the Constitution, it does have authority to
determine whether the RH Law contravenes the 1. An applicant’s objection must be against participating
guarantee of religious freedom. (Imbong vs. Ochoa)
in war in any form, not just a particular war;

Establishment and Free Exercise Clauses


2. an applicant’s objection to service in the military must
be based on religious training and belief; and
ARTICLE III SECTION 5. No law shall be made
respecting an establishment of religion, or prohibiting the
3. that an applicant’s objection must be sincere.
free exercise thereof. The free exercise and enjoyment
of religious profession and worship, without
discrimination or preference, shall forever be allowed. While the RH Law, in espousing state policy to promote
No religious test shall be required for the exercise of civil reproductive health manifestly respects diverse religious
or political rights. beliefs in line with the Non-Establishment Clause, the
same conclusion cannot be reached with respect to
Sections 7, 23 and 24 thereof. The said provisions
- It is no part of the business of government to compose
commonly mandate that a hospital or a medical
official prayers for any group to recite as part of a practitioner to immediately refer a person seeking health
religious program carried on by the government. care and services under the law to another accessible
(jurisprudence)
healthcare provider despite their conscientious
objections based on religious or ethical beliefs.
- The state may not require the daily reading of bible
verses in public schools, even if done without comment. The Court is of the view that the obligation to refer
(jurisprudence) imposed by the RH Law violates the religious belief and
conviction of a conscientious objector. Once the medical
- Admittedly, the petitioner is employed in an educational practitioner, against his will, refers a patient seeking
institution where the teachings and doctrines of the information on modem reproductive health products,
Catholic Church, including that on pre-marital sexual services, procedures and methods, his conscience is
relations, is strictly upheld and taught to the students. immediately burdened as he has been compelled to

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Philippians 4:13 I can do all things through Christ[a] who strengthens me.
Gelo Notes Political Law Reviewer

perform an act against his beliefs. As Commissioner - Our constitution adheres to the benevolent neutrality
Joaquin A. Bernas (Commissioner Bernas) has written, approached that gives room for accommodation of
"at the basis of the free exercise clause is the respect for religious exercises as required by the free exercise
the inviolability of the human conscience. clause. xxx the solicitor general failed to appreciate that
benevolent neutrality could allow for accommodation of
In case of conflict between the religious beliefs and morality based on religion, provided it does not offend
moral convictions of individuals, on one hand, and the compelling state interest.
interest of the State, on the other, to provide access and
information on reproductive health products, services, Finally, even assuming that the OSG has proved a
procedures and methods to enable the people to compelling state interest, it has to further demonstrate
determine the timing, number and spacing of the birth of that the state has used the least intrusive means
their children, the Court is of the strong view that the possible so that the free exercise is not infringed any
religious freedom of health providers, whether public or more than necessary to achieve the legitimate goal of
private, should be accorded primacy. Accordingly, a the state, i.e., it has chosen a way to achieve its
conscientious objector should be exempt from legitimate state end that imposes as little as possible on
compliance with the mandates of the RH Law. If he religious liberties.
would be compelled to act contrary to his religious belief
and conviction, it would be violative of "the principle of Escritor’s conjugal arrangement cannot be penalized as
non-coercion" enshrined in the constitutional right to free she has made out a case for exemption from the law
exercise of religion. (Imbong vs. Ochoa) based on her fundamental right to freedom of religion.
xxx In the area of religious exercise, as a preferred
Religious Accommodation - There will be no violation freedom, however, man stands accountable to an
of the establishment clause if: authority higher than the state, and so the state interest
to be upheld must be so compelling that its violation will
1. The statute has a secular legislative purpose; erode the very fabric of the state that will also protect the
freedom. In the absence of a showing that such state
2. Its principal or primary effect is one that neither interest exists, man must be allowed to subscribe to the
infinite. (jurisprudene)
advances nor inhibits religion; and

Related Provisions and Cases


3. It does not foster an “excessive government
entanglement with religion.”
Art. VI. (3) Charitable institutions, churches and
Principe of benevolent neutrality parsonages or convents appurtenant thereto, mosques,
non-profit cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively used for
In Estrada,50 this court ruled that in religious freedom religious, charitable, or educational purposes shall be
cases, the test of benevolent neutrality should be exempt from taxation.
applied. Under the test of benevolent neutrality, religious
freedom is weighed against a compelling state
- The exemption here covers only estate taxes, and not
interest:chanRoblesvirtualLawlibrary
gift taxes. “A gift tax is not a property tax, but an excise
Benevolent neutrality recognizes that government must tax imposed on the transfer of property by way of gift
inter vivos, the imposition of which on property used
pursue its secular goals and interests but at the same
exclusively for religious purposes does not constitute an
time strives to uphold religious liberty to the greatest
impairment of the Constitution.” (jurisprudence)
extent possible within flexible constitutional limits. Thus,
although the morality contemplated by laws is
secular, benevolent neutrality could allow Art. XIV. (2) Educational institutions, other than those
for accommodation of morality based on religion, established by religious groups and mission boards,
provided it does not offend compelling state shall be owned solely by citizens of the Philippines or
interests.51 (Emphasis in the original) corporations or associations at least sixty per centum of
the capital of which is owned by such citizens. The
Congress may, however, require increased Filipino
We find that there is no compelling state interest that
may limit respondent judge's right to participate in equity participation in all educational institutions.
religious and merely ceremonial acts that are non-
violative of other people's rights and with no legally Art. VI. Sec. 29 (2) No public money or property shall be
binding effect. The institution of marriage is not appropriated, applied, paid, or employed, directly or
threatened when we accommodate respondent judge's indirectly, for the use, benefit, or support of any sect,
freedom to participate in such ceremonies even if they church, denomination, sectarian institution, or system of
have secular counterparts under our laws… religion, or of any priest, preacher, minister, or other
religious teacher, or dignitary as such, except when such
priest, preacher, minister, or dignitary is assigned to the
However, benevolent neutrality and claims of religious
armed forces, or to any penal institution, or government
freedom cannot shield respondent judge from liability for
misconduct under our laws. Respondent judge orphanage or leprosarium.
knowingly entered into a civil marriage with her first
husband. She knew its effects under our laws. She had (see page 39-40 of carlo cruz volume 1 for other related
sexual relations with her second husband while her first cases)
marriage was subsisting. (Jurisprudence)

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Philippians 4:13 I can do all things through Christ[a] who strengthens me.
Gelo Notes Political Law Reviewer

..in order to build a just and humane society… National Territory

(see page 41-45 of carlo cruz volume 1 for related The national territory comprises the Philippine
provisions and cases) archipelago, with all the islands and waters
embraced therein, and all other territories over
..and establish a Government that shall embody our which the Philippines has sovereignty or
ideals and aspirations… jurisdiction, consisting of its terrestrial, fluvial, and
aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other
Note the provisions of Art. VI, on the Legislative
submarine areas. The waters around, between, and
Department, VII, on the Executive Department, on VIII,
connecting the islands of the archipelago,
the Judicial Department, IX-A-IX-D, on the Constitutional
regardless of their breadth and dimensions, form
Commissions X, on Local Government and XI, on
part of the internal waters of the Philippines.
Accountability of Public Officers.

..promote the common good… Territory is defined as the fixed portion of the surface of
the earth inhabited by the people of the state.
Note that this is the basic justification for the exercise by
Among its characteristics are permanence its must be
the State of its fundamental powers, namely, its police
power, power of eminent domain and the power of indicated with precision because its limits generally
taxation. define the jurisdiction of the state; it must be large
enough to provide for the needs of the population, small
enough or not so extensive as to be difficult to
…conserve and develop our patrimony… administer or defend from external aggression.

Patrimony is property inherited from ancestors, or an - Even assuming arguendo that the MOA-AD would not
endowment or inheritance. necessarily sever any portion of Philippine territory, the
spirit animating it – which has betrayed itself by is use of
Apart from Sec. 19 of Art.II, which provides that the the concept of association – runs counter to the national
“state shall develop a self-reliant and independent sovereignty and territorial integrity of the Republic.
national economy effectively controlled by Filipinos” ,the (Province of Cotabato)
provisions in the Constitution pertinent to this phrase in
the preamble are principally found in Art. XII. Modes of Acquisition

(see page 46-50 of carlo cruz volume 1) The acknowledged modes of acquisition of territory are:

…and secure to ourselves and our posterity the - Discovery and occupation;
blessings of independence and democracy under - Prescription;
the rule of law and a regime of truth, justice, - Cession;
freedom, love, equality, and peace, do ordain and - Accretion
promulgate this Constitution… - Subjugation

The use of the phrase “under the rule of law” - UNCLOS III and its ancillary baselines laws play no
underscores that ours is a government of laws and not of role in the acquisition, enlargement or, as petitioners
men,” a principle which stands as among the hallmarks claim, diminution of territory. Under traditional
of republican regimes. (Villavicencio vs. Lukban) international law typology, States acquire (or conversely
lose) territory through occupation, accretion, cession and
It is significant that love has, among other grounds, been prescription, not by executing multilateral treaties on the
invoked by our Supreme Court in dispensing justice. regulation of sea-use rights or enacting statutes to
Thus – comply with the treaty’s terms to delimit maritime zones
and continental shelves. Territorial claims to land
With the finding that there is no substantial evidence of features are outside UNCLOS III, and are instead
the imputed immoral acts, it follows that the alleged governed by the rules on general international law.
violation of the Code of Ethics governing school teachers (Magallona vs. Ermita)
would have no basis. Private respondent utterly failed to
show that petitioner took advantage of her position to - UNCLOS III has nothing to do with the acquisition (or
court her student. If the two eventually fell in love, loss) of territory. It is a multilateral treaty regulating,
despite the disparity in their ages and academic levels, among others, sea-use rights over maritime zones
this only lends substance to the truism that the heart
has reasons of its own which reason does not know. (i.e., the territorial waters (12 nautical miles from the
But definitely, yielding to this gentle and universal baselines), contiguous zone (24 nautical miles from the
emotion is not to be so casually equated with immorality. baseline), exclusive economic zone (200 nautical miles
The deviation of the circumstances of their marriage from the baseline) and continental shelves that UNCLOS
from usual societal pattern cannot be considered as a III delimits.
defiance of contemporary social mores. (jurisprudence)
(see page 55-56 of carlo cruz volume 1)
ARTICLE I

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Philippians 4:13 I can do all things through Christ[a] who strengthens me.
Gelo Notes Political Law Reviewer

Loss of Territory Sovereignty is the possession of sovereign power while


jurisdiction is the conferment by law of power and
Territory may be lost by: authority to apply the law.

- Cession; - The second sentence of Art. I constitutionalizes the


- Abandonment or dereliction; Archipelago Doctrine. Thus, “The waters around,
- Prescription; between, and connecting the islands of the archipelago,
- Erosion; regardless of their breadth and dimensions, form part of
- Revolution; the internal waters of the Philippines.” This provision
- Natural causes; applies the straight baseline method, under which
- Subjugation straight lines are made to connect appropriate points on
the coast without departing radically from its general
direction, as opposed to the normal baseline method,
Accretion may also be a mode of losing territory as when
where the territorial sea is simply drawn from the low
an island is submerged to the bottom of the sea because
water mark of the coast, to the breadth claimed,
of a volcanic eruption, or by bombardment.
following its sinuosities and curvatures but excluding the
internal waters in bays and gulfs.
Terrestrial, Maritime and Aerial Domains
- In fine, the relevance of UNCLOS provisions to the
The components of territory are the terrestrial domain, or present controversy is beyond dispute. Although the said
the land mass, the maritime and fluvial domain, which treaty upholds the immunity of warships from the
includes the inland and external waters, and the aerial jurisdiction of Coastal States while navigating the latter’s
domain, which covers the air space above the land and territorial sea, the flag states shall be required to leave
waters. the territorial sea immediately if they flout the laws and
regulations of the Coastal State, and they will be liable
The terrestrial domain is the land mass on which for damages caused by their warships or any other
people live. government vessel operated for non-commercial
purposes under Art. 31. (Arigo vs. Swift)
It refers to the land mass, which may be integrated, like
Iran, or dismembered, like the United States or party (See page 57-70 of carlo cruz volume 1 for cases and
bounded by water (Myanmar) or consists of one whole discussions)
island (Iceland) or composed of several islands
(Philippines), which are mid ocean archipelagos, as Concept of a State
distinguished from coastal archipelagos like Greece.
(see page 73-80 for elements, constituent and ministrant
The aerial domain consists of the airspace above the functions and parens patriae)
terrestrial domain and the maritime and fluvial domain of
the state, to an unlimited altitude but not including outer
Sovereignty – Is the supreme and uncontrollable power
space.
inherent in a state by which that state is governed.
Outer space, like the open seas, is res communes
Sovereignty is permanent, exclusive, comprehensive,
(public domain) and is not susceptible to discovery and
occupation. It is not subject to national appropriation by absolute, indivisible, inalienable and imprescriptible.
claim of sovereignty.
Legal Sovereignty – Is the authority which has the
“Under the terms of existing international conventions power to issue final commands.
and customary international law, states have complete
and exclusive sovereignty in the air-space above their Political sovereignty – Is the power behind the legal
territories and territorial waters. The current existence of sovereign, or the sum of the influences that operate
region in space which is not subject to the same regime upon it.
raises such questions as where airspace ends and
where outer space begins. It was noted that these limits Internal sovereignty – Refers to the power of the state to
do not necessarily coincide.” control its domestic affairs.

Jurisdiction (see page 67-70) External sovereignty – Which is the power of the state to
direct its relations with other states, is also known as
- Had Congress in R.A. 9522 enclosed the KIG and the independence.
Scarborough Shoal as part of the Philippine archipelago,
adverse legal effects would have ensued. xxx Hence, far - Sovereignty is not deemed suspended although acts of
from surrendering the Philippines claim over the KIG and sovereignty cannot be exercised by the legitimate
the Scarborough Shoal, congress’ decision to classify authority as during the Japanese Occupation.
the KIG and the Scarborough Shoal as “Regime of
Islands” under the Republic of the Philippines consistent Then political laws, like the Constitution, were merely
with Art. 121 of UNCLOS III manifests the Philippine
suspended subject to revival under the jus postliminium
State’s responsible observance of its pacta sunt
servanda obligation under UNCLOS III. upon the end of the occupation.

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POSTLIMINIUM. That right in virtue of which persons an An illustration is the decision of the president in the
d things taken by the enemy are restored to their former exercise of his diplomatic power to extend recognition to
state,when coming again under the power of the nation t a newly established foreign state or government.
o which they belong.
(Note:See Rosas vs. Montor (Oct. 14, 2015), where the
- Suspension of political laws affects only the civilians, SC stated: “We have stated that the power to deport
and not the soldiers or “enemies in arms.” aliens is an act of state, an act done by or under the
(jurisprudence) authority of the sovereign power. It is a police measure
against undesirable aliens whose continued presence in
- Said suspension also does not apply to the law on the country is found to be injurious to the public good
treason. (jurisprudence) and domestic tranquility of the people.”)
- Non-political laws like the Civil Code, remain effective, DOCTRINE OF STATE IMMUNITY (see 131 – 150 of
unless changed by the belligerent occupant. Carlo Cruz book for cases)

- Judicial decisions, such as a conviction for defamation, - The Constitution declares that “the state may not be
are valid during a belligerent occupation except those of sued without its consent.”
political complexion. Thus, those convicted for treason
against the Japanese forces are entitled to be released - The doctrine is also available to foreign states insofar
upon the end of the occupation. (jurisprudence) as they are sought to be sued in the courts of the local
state.
(If it is political in character, it will be abrogated at the
end of belligerent occupation) – class discussion. The added basis in this case is the principle of the
sovereign equality of states, under which one state
- When there is a change of sovereignty, the political cannot assert jurisdiction over another in violation of the
laws of the former sovereign are not merely suspended maxim par in parem non habet imperium. “To do so
but abrogated. would unduly vex the peace of nations”

Non-political laws by contrasts, continue in operation, for (see page 32 – 36 (cruz 2002) for application)
the reason also that they regulate private relations only
unless they are changed by the new sovereign or are Test: Whether, assuming the decision is rendered
contrary to its institutions. against the public officer impleaded, enforcement thereof
will require an affirmative act from the state, such as the
- Thus, the SC acquitted in People vs. Perfecto an appropriation of the needed amount to satisfy the
accused who had written an editorial against the Phil. judgment.
Senate and was prosecuted under the Spanish Penal
Code. It held that the particular article of the said Code If it does, the suit is one against the state and its
had been automatically abrogated, being political in inclusion as party defendant is necessary.
nature, upon the advent of American Sovereignty.
If, on the other hand, the officer impleaded may by
A similar ruling was held in connection with Art. 14 of the himself alone comply with the decision of the court
Code of Commerce prohibiting judges from engaging in without the necessity of involving the state, then the suit
commerce, which was characterized as political in can prosper against him and will not be considered a
nature and was therefore considered abrogated with the claim against the state.
end of Spanish rule in the country. (jurisprudence)
- It is understood, of course, that where a public officer
Conversely, a debt incurred during the Spanish regime acts without or in excess of jurisdiction, any injury
was held to be still enforceable against the city even caused by him is his own personal liability and cannot be
after the change to American sovereignty since the imputed to the state.
obligation was assumed by the city in its private or
proprietary character. (jurisprudence) Waiver of Immunity

Act of state – Is one done by the sovereign power of a - The state may be sued if it gives its consent.
country, or by its delegate within the limits of the power
Forms of consent
vested in him. An act of state cannot be questioned or
made the subject of legal proceedings in a court of law. Express consent – may be manifested either through a
general law or a special law.
With particular reference to Political Law, an act of state
is an act done by the political departments of the Implied consent – is given when the state itself
government not subject to judicial review. commences litigation or when it enters into a contract.

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Gelo Notes Political Law Reviewer

Example of general law providing for the consent of the - Finally, it should be observed that when the State gives
state to be sued: Act No. 3083, declaring that “the its consent to be sued, it does not thereby also consent
government of the Phil. Islands hereby consents and to the execution of the judgment against it. The rule is
submits to be sued upon any moneyed claim involving that, such execution will require another waiver, lacking
liability arising from contract, express or implied, which which the decision cannot be enforced against the state.
could serve as a basis of civil action between private
parties.” - … That public funds cannot be the object of
garnishment proceedings even if the consent to be sued
Example of the second kind of express consent is the had been previously granted and state liability adjudged.
special law enacted by the Phil. Legislature authorizing
an individual to sue the Phil Govt. for injuries he had … Since government funds and properties may not be
sustained when his motorcycle collided with a seized under writs of execution or garnishment to satisfy
government ambulance.” such judgments is based on obvious considerations of
public policy. Disbursement of public funds must be
- The state may not waive its immunity by mere covered by the corresponding appropriation as required
manifestation of counsel for the government. by law…. (jurisprudence)
(jurisprudence)
- Funds of public corporation which can sue and be sued
- An agreement to submit any dispute to arbitration may were not exempt from garnishment. (jurisprudence)
be construed as an implicit waiver of immunity from suit.
- It is the Department of Foreign Affairs (DFA) which can
(see page 37 – 42 (2002 Cruz) for cases) make a determination of immunity from suit, which may
be considered as conclusive upon the courts. This
- It was held in the case of US vs. Ruiz that suability authority is exclusive to the DFA. (jurisprudence)
would follow only if the contract is entered into by the
government in its proprietary capacity. Governmental - In fine, the relevance of UNCLOS provisions to the
contracts do not result in implied waiver of the present controversy is beyond dispute. Although the said
immunity. treaty upholds the immunity of warships from the
jurisdiction of Coastal States while navigating the latter’s
The traditional rule of State immunity exempts a State territorial sea, the flag States shall be required to leave
from being sued in the courts of another State without its the territorial sea immediately if they flout the laws and
consent or waiver. This rule is a necessary consequence regulations of the Coastal State, and they will be liable
of the principles of independence and equality of States. for damages caused by their warships or any other
However, the rules of International Law are not petrified; government vessel operated for non-commercial
they are constantly developing and evolving. And purposes under Art. 31. (Arigo vs. Swift)
because the activities of states have multiplied, it has
been necessary to distinguish them-between sovereign - …As it is, the waiver of the state immunity under the
and governmental acts (jure imperii) and private, VFA pertains only to criminal jurisdiction and not to
commercial and proprietary acts (jure gestionis). The special civil actions such as the present petition for the
result is that State immunity now extends only to acts issuance of kalikasan. (Arigo vs. Swift)
jure imperil The restrictive application of State immunity
is now the rule in the United States, the United Kingdom In fact, it can be inferred from Section 17, Rule 7 of the
and other states in western Europe. Rules that a criminal case against a person charged with
a violation of an environmental law is to be filed
xxx xxx xxx separately:

The restrictive application of State immunity is proper SEC. 17. Institution of separate actions.-The filing of a
only when the proceedings arise out of commercial petition for the issuance of the writ of kalikasan shall not
transactions of the foreign sovereign, its commercial preclude the filing of separate civil, criminal or
activities or economic affairs. Stated differently, a State administrative actions.
may be said to have descended to the level of an
In any case, it is our considered view that a ruling on the
individual and can thus be deemed to have tacitly
application or non-application of criminal jurisdiction
given its consent to be sued only when it enters into provisions of the VFA to US personnel who may be
business contracts. It does not apply where the found responsible for the grounding of the USS
contract relates to the exercise of its sovereign functions. Guardian, would be premature and beyond the province
of a petition for a writ of Kalikasan. We also find it
In this case the projects are an integral part of the naval unnecessary at this point to determine whether such
base which is devoted to the defense of both the United waiver of State immunity is indeed absolute. In the same
States and the Philippines, indisputably a function of the vein, we cannot grant damages which have resulted
government of the highest order; they are not utilized for from the violation of environmental laws. The Rules
allows the recovery of damages, including the collection
nor dedicated to commercial or business purposes. (US
of administrative fines under R.A. No. 10067, in a
vs. Ruiz)
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Gelo Notes Political Law Reviewer

separate civil suit or that deemed instituted with the - The Bureau of Printing is likewise immune from suit
criminal action charging the same violation of an even if its incidentally or as a sideline engaged in
environmental law. (Arigo vs. Swift) proprietary enterprises. (jurisprudence)

Suits strictly against officers of the state Suits against Municipal Corporations

- A suit purely for the revocation of a donation on the Municipal corporations may be suable because their
ground of the failure of the government to comply with its charters grant them the competence to sue and be sued;
obligations is not a suit against the state. (jurisprudence) but they are generally not liable for torts committed by
them in the discharge of governmental functions and can
- An officer of the state may be sued without involving be held answerable only if it can be shown that they
the state, as in the claim for the recovery of taxes were acting in a proprietary capacity,
unlawfully assessed or collected; in a claim for recovery
only of the title to or possession of property in a suit As when an injury arises from the repair of a street or
against the director of public works, who took over w/o when the tort (injury caused by the collapse of a stage)
authority property belong to the plaintiff and constructed is committed in connection with the celebration of a town
thereon an irrigation canal was considered suit against fiesta which was considered proprietary function.
the defendant in his personal capacity; and in a suit for (jurisprudence)
the recovery of value of property which had been
converted into public streets w/o just compensation, Suability vs. Liability
which can prosper even w/o previously filing her claim
- Suability depends on the consent of the state to be
with the auditor general. (jurisprudence)
sued; liability on the applicable law and established
- The doctrine of sovereign immunity cannot be facts. The circumstance that a state is suable does not
successfully invoked to defeat a valid claim for necessarily mean that it is liable; on the other hand, it
compensation arising from the taking without just can never be held liable if it does not first consent to be
compensation and without the proper expropriation sued. Liability is not conceded by the mere fact that the
proceedings being first resorted to of the plaintiff’s state has allowed itself to be sued.
property.
When the state does waive its sovereign immunity, it is
The doctrine of sovereign immunity is not an instrument only giving the plaintiff the chance to prove, if it can, that
for perpetrating any injustice on a citizen. (jurisprudence) the defendant is liable. (jurisprudence)

Suits Against Government Agencies Enforcement of State Liability

- If the agency is incorporated, the test of its suability is - All money claims against the Government must first be
found in its charter. The simple rule is that it is suable if filed with the Commission on Audit which must act upon
its charter says so, and this is true regardless of the it within 60 days. Rejection of the claim will authorize the
function it is performing. (jurisprudence) claimant to elevate the matter to the SC on certiorari.
(P.D. 1445, Sections 49-50) (UP vs. Dizon 2012)
- Jurisprudence further instructs that when a suit is
directed against an unincorporated government agency, The Commission on Audit has exclusive jurisdiction to
which, because it is unincorporated, possesses no decide on the allowance or disallowance of money
juridical personality of its own, the suit is against the claims arising from the implementation of R.A. No. 6758.
agency’s principal, i.e., the state. (jurisprudence) RTC acted prudently in halting implementation of the writ
of execution to allow the parties recourse to the
- To actually determine whether or not a government processes of the COA. (jurisprudence)
agency which is not incorporated is immune from suit, it
would be necessary to determine the nature of the (see page 144-147 of Carlo Cruz for decided cases)
functions in which the agency is engaged, so as to hold
Exemption from the Legal Requirements and
it suable if they are proprietary and not suable if they are
Principles
governmental.
- The state is not required to put up a bond for damages,
The test in every case is the nature of the primary
since it can be assumed it is always solvent. Neither is
functions being discharged.
interest generally chargeable against it, nor may it be
- The Bureau of Customs is immune from suit required to pay legal fees. (jurisprudence)
notwithstanding its being engaged in arrastre service,
Statute of limitations do not run against the state, unless
which is proprietary enterprise, because the same is
the contrary is expressly provided by law, although this
merely incidental to its primary governmental functions.
rule is not observed where the state is engaged in
(jurisprudence)
private business. (jurisprudence)

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Gelo Notes Political Law Reviewer

- Since the Land Bank of the Phil. Is performing a The scholarly discourse of Mr. Justice (now Chief
governmental function in agrarian reform proceedings, it Justice) Puno on the concept of congressional
is exempt from the payment of costs of the suit as oversight in Macalintal v. Commission on Elections34 is
illuminating:
provided under Rule 142, Sec. 1 of the Rules of Court.
(jurisprudence)
Concept and bases of congressional oversight
- …As a matter of doctrine, illegal acts of government
agents do not bind the state and the Government is Broadly defined, the power of oversight embraces all
activities undertaken by Congress to enhance its
never estopped from questioning the acts of its officials,
understanding of and influence over
more so if they are erroneous, let alone irregular. the implementation of legislation it has enacted.
Clearly, oversight concerns post-
This principle applies in land registration cases. enactment measures undertaken by Congress:
Certainly, the state will not be allowed to abdicate its
authority over lands of the public domain just because its (a) to monitor bureaucratic compliance with program
agents and officers have been negligent in the objectives,
performance of their duties.
(b) to determine whether agencies are properly
(see page 148 – 150 of Carlo Cruz for decided cases) administered,

SEPERATION OF POWERS (c) to eliminate executive waste and dishonesty,


(see page 81 – 103 of Carlo Cruz)
(d) to prevent executive usurpation of legislative
authority, and
Purpose – The doctrine of separation of powers is
intended to prevent a concentration of authority in one
(e) to assess executive conformity with the
person or group of persons that might lead to an
congressional perception of public interest.
irreversible error or abuse in its exercise to the detriment
of our republican institution. The power of oversight has been held to be intrinsic in
the grant of legislative power itself and integral to the
- To achieve these purposes, the legislature is generally checks and balances inherent in a democratic system of
limited to the enactment of laws and may not enforce or government. x x x x x x x x x
apply them; the executive to the enforcement of laws
and may not enact or apply them; and the judiciary to the Categories of congressional oversight functions
application of laws and may not enact or enforce them.
The acts done by Congress purportedly in the exercise
- It has been ruled that “the requirement that the of its oversight powers may be divided
implementing rules of law be subjected to approval by into three categories,
Congress as a condition for their effectivity violates namely: scrutiny, investigation and supervision.
cardinal constitutional principles of bicameralism and the
so called rule on presentment. Thus, “every bill passed a. Scrutiny
by Congress must be presented to the President for
approval or veto. In the absence of presentment to the Congressional scrutiny implies a lesser intensity and
continuity of attention to administrative operations. Its
president, no bill passed by Congress can become a
primary purpose is to determine economy and efficiency
law. In this sense, law-making under the Constitution is a of the operation of government activities. In the exercise
joint act of the Legislature and of the executive. of legislative scrutiny, Congress may request information
Assuming that legislative veto is a valid legislative act and report from the other branches of government. It can
with the force and effect of law, it cannot take effect give recommendations or pass resolutions for
without such presentment even if approved by both consideration of the agency involved.
chambers of Congress.
xxx xxx xxx
From the moment the law becomes effective, any
provision of law that empowers Congress or any of its b. Congressional investigation
members to play any role in the implementation or
enforcement of the law violates the principle of While congressional scrutiny is regarded as a passive
separation of powers and is thus unconstitutional. process of looking at the facts that are readily
available, congressional investigation involves a more
Under this principle, a provision that requires Congress
intense digging of facts. The power of Congress to
or its members to approve the implementing rules of a conduct investigation is recognized by the 1987
law after it has already taken effect shall be Constitution under section 21, Article VI,
unconstitutional, as is a provision that allows Congress xxx xxx xxx
or its members to overturn any directive or ruling made
by the members of the executive branch charged with c. Legislative supervision
the implementation of the law.
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Gelo Notes Political Law Reviewer

The third and most encompassing form by which (1) scrutiny based primarily on Congress’ power
Congress exercises its oversight power is thru legislative of appropriation and the budget hearings
supervision. "Supervision" connotes a continuing and conducted in connection with it, its power to ask
informed awareness on the part of a congressional heads of departments to appear before and be
committee regarding executive operations in a given heard by either of its Houses on any matter
administrative area. While both congressional scrutiny pertaining to their departments and its power of
and investigation involve inquiry into past executive confirmation40 and
branch actions in order to influence future executive
branch performance, congressional supervision allows (2) investigation and monitoring41 of the
Congress to scrutinize the exercise of delegated law- implementation of laws pursuant to the power of
making authority, and permits Congress to retain part of Congress to conduct inquiries in aid of
that delegated authority. legislation.42

Congress exercises supervision over the executive Any action or step beyond that will undermine the
agencies through its veto power. It typically utilizes veto separation of powers guaranteed by the Constitution.
provisions when granting the President or an executive Legislative vetoes fall in this class.
agency the power to promulgate regulations with the
force of law. These provisions require the President or
Legislative veto is a statutory provision requiring the
an agency to present the proposed regulations to
President or an administrative agency to present the
Congress, which retains a "right" to approve or
proposed implementing rules and regulations of a law to
disapprove any regulation before it takes effect. Such
Congress which, by itself or through a committee formed
legislative veto provisions usually provide that a by it, retains a "right" or "power" to approve or
proposed regulation will become a law after the
disapprove such regulations before they take effect. As
expiration of a certain period of time, only if Congress
such, a legislative veto in the form of a congressional
does not affirmatively disapprove of the regulation in the
oversight committee is in the form of an inward-turning
meantime. Less frequently, the statute provides that a
delegation designed to attach a congressional leash
proposed regulation will become law if Congress (other than through scrutiny and investigation) to an
affirmatively approves it. agency to which Congress has by law initially delegated
broad powers.43 It radically changes the design or
In Macalintal, given the concept and configuration of the structure of the Constitution’s diagram of power as it
power of congressional oversight and considering the entrusts to Congress a direct role in enforcing, applying
nature and powers of a constitutional body like the or implementing its own laws.
Commission on Elections, the Court struck down the
provision in RA 9189 (The Overseas Absentee Voting
Congress has two options when enacting legislation to
Act of 2003) creating a Joint Congressional Committee.
define national policy within the broad horizons of its
The committee was tasked not only to monitor and
legislative competence.45 It can itself formulate the
evaluate the implementation of the said law but also to
details or it can assign to the executive branch the
review, revise, amend and approve the IRR promulgated responsibility for making necessary managerial
by the Commission on Elections. The Court held that
decisions in conformity with those standards.46 In the
these functions infringed on the constitutional
latter case, the law must be complete in all its essential
independence of the Commission on Elections.36
terms and conditions when it leaves the hands of the
legislature.47 Thus, what is left for the executive branch
With this backdrop, it is clear that congressional or the concerned administrative agency when it
oversight is not unconstitutional per se, meaning, it formulates rules and regulations implementing the law is
neither necessarily constitutes an encroachment on the to fill up details (supplementary rule-making) or ascertain
executive power to implement laws nor undermines the facts necessary to bring the law into actual operation
constitutional separation of powers. Rather, it is integral (contingent rule-making).48
to the checks and balances inherent in a democratic
system of government. It may in fact even enhance the Administrative regulations enacted by administrative
separation of powers as it prevents the over-
agencies to implement and interpret the law which they
accumulation of power in the executive branch.
are entrusted to enforce have the force of law and are
entitled to respect.49 Such rules and regulations partake
However, to forestall the danger of congressional of the nature of a statute50 and are just as binding as if
encroachment "beyond the legislative sphere," the they have been written in the statute itself. As such, they
Constitution imposes two basic and related constraints have the force and effect of law and enjoy the
on Congress.37 It may not vest itself, any of its presumption of constitutionality and legality until they are
committees or its members with either executive or set aside with finality in an appropriate case by a
judicial power.38 And, when it exercises its legislative competent court.51 Congress, in the guise of assuming
power, it must follow the "single, finely wrought and the role of an overseer, may not pass upon their legality
exhaustively considered, procedures" specified under by subjecting them to its stamp of approval without
the Constitution,39 including the procedure for enactment disturbing the calculated balance of powers established
of laws and presentment. by the Constitution. In exercising discretion to approve or
disapprove the IRR based on a determination of whether
Thus, any post-enactment congressional measure such or not they conformed with the provisions of RA 9335,
as this should be limited to scrutiny and investigation. In Congress arrogated judicial power unto itself, a power
particular, congressional oversight must be confined to exclusively vested in this Court by the Constitution.
the following:

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Gelo Notes Political Law Reviewer

- A law subjecting COMELEC rules (implementing R.A. - no cross-boarder transfer


9189) to approval by a Congressional oversight
committee is invalid; constitutes a legislative veto (which - Accordingly, the item referred to by Section 25 (5) of
entitles Congress, pursuant to its “oversight functions,” the Constitution is the last and indivisible purpose of a
to disapprove (or approve) administrative regulations program in the appropriation law, which is distinct from
promulgated by the Executive Branch, pursuant to a the expense category or allotment class. There is no
validly delegated power; in the course of its enforcement specificity, indeed, either in the Constitution or in the
of duly enacted law); contradicts the independence of relevant GAAs that the object of augmentation should be
the COMELEC and pre-empts the judiciary in its the expense category or allotment class. In the same
exercise of review. (Jurisprudence) vein, the President cannot exercise his veto power over
an expense category; he may only veto the item to which
Courts “cannot amplify the scope of R.A. 9903 on the that expense category belongs to. Nonetheless, this is
ground of equal protection, and acquit petitioner and modified interpretation does not take away the caveat
other delinquent employers like him; it would in essence that only DAP projects found in the appropriate GAAs
be an amendment of R.A. No. 9903, an act of judicial may be the subject of augmentation by legally
legislation abjured by the principle of separation of accumulated savings. (Araullo vs. Aquino)
powers among three branches of the government.
(Mendoza vs. People) - In the second place, this is a policy question about the
wisdom of allowing the presence of U.S. personnel
Note: - WHEREFORE, the Court PARTIALLY GRANTS within our jurisdiction and is therefore outside the scope
the petitions for certiorari and prohibition; and of judicial review. (Saguisag vs. Executive Secretary)
DECLARES the following acts and practices under the
Disbursement Acceleration Program, National Budget - Therefore, there is no basis to invalidate EDCA on
Circular No. 541 and related executive issuances fears that it increases the threat to our national security.
UNCONSTITUTIONAL for being in violation of Section If anything, EDCA increases the likelihood that, in an
25(5), Article VI of the 1987 Constitution and the doctrine event requiring a defensive response, the Philippines will
of separation of powers, namely: be prepared alongside the U.S. to defend its islands and
insure its territorial integrity pursuant to a relationship
(a) The withdrawal of unobligated allotments from the built on the MDT and VFA. (Saguisag vs. Executive
implementing agencies, and the declaration of the Secretary)
withdrawn unobligated allotments and unreleased
appropriations as savings prior to the end of the fiscal - The President’s “disapproval of a bill” commonly known
year and without complying with the statutory definition as a veto, is essentially a legislative act.” (Belgica vs.
of savings contained in the General Appropriations Acts; Executive Secreatry)

(b) The cross-border transfers of the savings of the - While it is the judiciary which sees to it that the
Executive to augment the appropriations of other offices constitutional distribution of powers among the several
outside the Executive. xxx departments of the government is respected and
observed, this does not mean that it is superior to the
The Court further DECLARES VOID the use of other departments. The correct view is that when SC
unprogrammed funds despite the absence of a mediates to allocate constitutional boundaries or
certification by the National Treasurer that the revenue invalidates the act of a coordinate body, what it is
collections exceeded the revenue targets for non- upholding is not its own supremacy but the supremacy
compliance with the conditions provided in the relevant of the Constitution. (Angara vs. Electoral Commission)
General Appropriations Acts. (Araullo vs. Aquino)
- Here, the Constitution has entrusted to the Executive
(5) No law shall be passed authorizing any transfer of Department the conduct of foreign relations for the
appropriations; however, the President, the President of Philippines. Whether or not to espouse petitioner’s claim
the Senate, the Speaker of the House of against the Government of Japan is left to the exclusive
Representatives, the Chief Justice of the Supreme determination and judgment of the Executive
Court, and the heads of Constitutional Commissions Department. The Court cannot interfere with or question
may, by law, be authorized to augment any item in the the wisdom of the conduct of foreign relations by the
general appropriations law for their respective offices Executive Department. Accordingly, we cannot direct the
from savings in other items of their respective Executive Department, either by writ of certiorari or
appropriations. injuction, to conduct our foreign relations with Japan in a
certain manner. (Vinuya vs. Executive Secretary)
(Not self-executing)
(see page 101 – 104 for other cases)
Class discussion: cross boarder transfer of funds
(unconstitutional). See Art. VI. Section 25 (5) Blending of Powers

- must start at the beginning of the fiscal year; - There are instances under the Constitution when
powers are not confined exclusively within one
- exclusive in character; department but are in fact assigned to or shared by
several departments.
- must be certified the national treasurer;

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Gelo Notes Political Law Reviewer

As a result of this “blending of powers,” as it is called, invalidates the acts of coordinate body, what it is
there is some difficulty in classifying some of them as upholding is the supremacy of the Constitution.
definitely legislative, executive or judicial.
- In the determination of whether a given power has
Example: the power of appointment which can rightfully been validly exercised by a particular department, the
be exercised by each department, over its own test applied is not necessarily or always the nature of the
administrative personnel. power.

It is often necessary for certain powers to be reposed in The first criterion and the safest is: whether or not the
more than one department, so that they may better power in question, regardless of its nature, has been
collaborate with, and in the process check, each other constitutionally conferred upon the department claiming
for the public good. its exercise. The grant being ascertained, the exercise of
the power is sustained.
Illustration of such coordination:
(see page 78 of Cruz (2002) for illustration of powers not
- Enactment of the general appropriations law (which reposed in one department but are still valid)
begins with the preparation by the president of the
budget, which becomes the basis of the bill adopted by - Even in the absence of an express conferment, the
the Congress and subsequently submitted by it to the exercise of a given power may be justified under the
President, who may then approve it), doctrine of implication.

- Grant of amnesty by the president, (which requires the Doctrine of Implication – Which is based on the theory
concurrence of a majority of all the members of the that the grant of an express power carries with it all other
Congress). powers that may be reasonably inferred from it.

Check and Balances - Mention must also be made of those powers which
although not specifically granted by the Constitution
- One department is allowed to resist encroachments either expressly or by implication may be justified as
upon its prerogatives or to rectify mistakes or excesses inherent or incidental.
committed by the other departments.
(see page 79 of cruz (2002) for illustration)
The Constitution itself provides for this system of
counteraction. Justiciable and Political Questions

Illustrations: Justiciable question – A purely justiciable question


implies a given right, legally demandable and
- The lawmaking power of the Congress is checked by enforceable, an act or omission violative of such right,
the President through his veto power, which in turn may and a remedy granted and sanctioned by law, for said
be overridden by the legislature. breach of right. (Casibang vs. Aquino)

- The congress may refuse to five its concurrence to an Political Question – The term political question connotes
amnesty proclaimed by the President, and the Senate to what it means in ordinary parlance, a question of policy.
a treaty he has concluded. It refers to those questions which, under the Constitution
are to be decided by the people in their sovereign
- The President may nullify a conviction in a criminal
capacity; or in regard to which full discretionary authority
case by pardoning the offender.
has been delegated to the legislative or executive
- The congress may limit the jurisdiction of the SC and branch of the government. It is concerned with issues
that of inferior courts and even abolish the latter dependent upon the wisdom, not legality, of a
tribunals. particular measure.

- The judiciary in general, it has the power to declare (see page 81 – 88 for illustrations and cases)
invalid an act done by the Congress, the President and
Political Questions under the New Constitution
his subordinates, or the Constitutional Commission.
- Under the new Constitution the scope of the political
The Role of the Judiciary
question appears to have been considerably constricted
- While it is the judiciary which sees to it that the (compressed) because of the new definition of judicial
constitutional distribution of powers among the several power, which now “includes the duty… to determine
departments of the government is respected and whether or not there has been a grave abuse of
observed, this does not mean that it is superior to the discretion amounting to lack or excess of jurisdiction on
other departments. The correct view is that when the SC the part of any branch or instrumentality of the
mediates to allocate constitutional boundaries or government.”

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This duty and power is available even against the dues, and other duties or imposts within the framework
executive and legislative departments, including the of the national development program of the Government.
president and the congress, in the exercise of their
discretionary powers. - The subject of this constitutional provision “is not the
power to negotiate treaties and international
- In the session of Constitutional Commission, it was agreements, but the power to fix tariff rates, import and
agreed that the above provision would not do away export quotas, and other taxes,” and, accordingly, should
entirely with the political question doctrine. not be considered as a source of the power of the
President to negotiate international trade agreements.
DELEGATION OF POWERS (AKBAYAN vs. Aquino)

- The rule is potestas delegate non delegari potest: what 2. Emergency Powers
has been delegated cannot be delegated.
Art. VI Sec. 23(2). In times of war or other national
It is based upon the ethical principle that such delegated emergency, the Congress may, by law, authorize the
power constitutes not only a right but a duty to be President, for a limited period and subject to such
performed by the delegate through the instrumentality of restrictions as it may prescribe, to exercise powers
his own judgment and not through the intervening mind necessary and proper to carry out a declared national
of another. policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next
- The principle of non-delegation of powers is applicable
adjournment thereof.
to all the three major powers of the government but is
especially important in the case of the legislative power Conditions for the vesture of emergency powers in
because of the many instances when its delegation is the president:
permitted.
1. There must be war or other national emergency;
This has led to the observation that the delegation of
legislative power has become the rule and its non- 2. The delegation must be for a limited period only;
delegation the exception.
3. The delegation must be subject to such restrictions as
Reason: The increasing complexity of the task of the the congress may prescribe;
government and the growing inability of the legislature to
cope directly with the many problems demanding its 4. The emergency powers must be exercised to carry
attention. out a national policy declared by the congress.

Example: regulation of common carriers (Congress may - There cannot be any delegation of emergency powers
then create an administrative body like the Board of in the absence of an emergency. Furthermore, the
Transportation and empower it to promulgate the emergency powers are self-liquidating unless sooner
needed rules and regulations, subject only to certain withdrawn, in the sense that they will automatically
statutory limitations or broad policies pre-determined by cease upon the end of the emergency that justified their
the legislature itself.) delegation.

Permissible Delegation - Conferment of emergency powers on the president is


not mandatory on the congress.
Delegation of legislative powers is permitted in the
following cases: - The emergency does not automatically confer
emergency powers on the president.
1. Delegation of tariff powers to the president;
- The specific requirement of the Constitution is that the
2. Delegation of emergency powers to the president; president may be authorized to exercise powers
“necessary and proper” only for the purpose of carrying
3. Delegation to the people at large; out a national policy declared not by him but by the
congress. Any Act of the President that is not in keeping
4. Delegation to local governments;
with this national policy can be challenged as beyond the
5. Delegation to administrative bodies. scope of his delegated authority.

1. Tariff Powers - The next adjournment obviously refers to the session


called after the adjournment of the first session when the
Art. VI Sec. 28(2). The Congress may, by law, authorize emergency powers were delegated. This would be the
the President to fix within specified limits, and subject to adjournment of the next regular, and not the next
such limitations and restrictions as it may impose, tariff special, session. (Araneta vs. Dinglasan)
rates, import and export quotas, tonnage and wharfage
(see page 95-99 (cruz 2002) for cases)

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Art. XII Section 17. In times of national emergency, when Note also Section 2 and 4 of Art. XVII of the Constitution
the public interest so requires, the State may, during the which provide:
emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any Section 2. Amendments to this Constitution may likewise
privately-owned public utility or business affected with be directly proposed by the people through initiative
public interest. upon a petition of at least twelve per centum of the total
(there must be a law. Different from Art. VI (23) (2). In number of registered voters, of which every legislative
sec 18 Art. XII there must be just compensation) district must be represented by at least three per
centum of the registered voters therein. No amendment
- While the President alone can declare a state of under this section shall be authorized within five years
national emergency under this provision, he may not
following the ratification of this Constitution nor oftener
invoke it to authorize him during the emergency “to take
than once every five years thereafter.
over or direct the operation of any privately owned public
utility or business affected with public interest without
authority from Congress. (David vs. Arroyo) The Congress shall provide for the implementation of the
exercise of this right.
- Sec 5 of Republic Act No. 7477 now provides that (a)
special right is hereby reserved to the president of the
Phil. In times of rebellion, public peril, calamity, Section 4. Any amendment to, or revision of, this
emergency, disaster or disturbance of peace and order, Constitution under Section 1 hereof shall be valid when
to temporarily take over and operate the stations of the ratified by a majority of the votes cast in a plebiscite
grantee, temporarily suspend the operation of any which shall be held not earlier than sixty days nor later
stations in the interest of public safety, security and than ninety days after the approval of such amendment
public welfare, or or revision.

authorize the temporary use and operation thereof by


Any amendment under Section 2 hereof shall be valid
any agency of the Government upon, due compensation
to the grantee, for the use of said stations during the when ratified by a majority of the votes cast in a
period when they shall be so operated. (Divinagracia vs. plebiscite which shall be held not earlier than sixty days
Consolidated Broadcasting System Inc.) nor later than ninety days after the certification by the
Commission on Elections of the sufficiency of the
3. Delegation to the people
petition.
- According to Cooley, “the prevailing doctrine in the
courts appears to be, that, except in those cases where, - Under R.A. 6735, a referendum is “the power of the
by the Constitution, the people have expressly reserved electorate to approve or reject a legislation through an
to themselves a power of decision, the function of election called for the purpose” (Sec. 3(c)) while
legislation cannot be exercised by them, even to the
extent of accepting or rejecting a law which has been Plebiscite is “the electoral process by which an initiative
framed for their consideration. on the Constitution is approved or rejected by the
people.” (Sec. 3 (e))
- Courts have sustained the delegation of legislative
power to the people at large although some authorities (take note of the traditional distinctions of referendum
maintain that this may not be done. (People vs. Vera) and plebiscite)

Note Section 32 of Article VI of the Constitution which - A referendum is defined as a method of submitting an
provides: important legislative measure to a direct vote of the
whole people.
Section 32. The Congress shall, as early as possible,
provide for a system of initiative and referendum, and It differs from the plebiscite in that the question
the exceptions therefrom, whereby the people can submitted in the latter are intended to work more
directly propose and enact laws or approve or reject any permanent changes in the political structure, like a
act or law or part thereof passed by the Congress or proposal to amend the Constitution.
local legislative body after the registration of a petition
therefor signed by at least ten per centum of the total The term plebiscite means literally decree of the people.
number of registered voters, of which every legislative The plebiscite is a device to obtain a direct popular vote
district must be represented by at least three per on a matter of political importance, but chiefly in order to
centum of the registered voters thereof. create some more or less permanent political condition.

4. Delegation to local governments

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- This traditional exception is based on the recognition procedure or authority conferred by law upon the
that local legislatures are more knowledgeable than the administrative agency have the force and effect, or
national lawmaking body on matters of purely local partake the nature of a statute.
concern and are therefore in a better position to enact
the necessary and appropriate legislation thereon. - They may be interpretative, or merely to clarifiy the
provisions of a law for proper observance by the people.
- It is a cardinal principle of our system of government, They are at best advisory for it is the courts that finally
that local affairs shall be managed by local authorities, determine what the law means. (Jurisprudence)
and general affairs by the central authority…
- They may also be legislative, which is classified into
- Accordingly, the power of eminent domain and, under supplementary, which makes explicit what is only
the general welfare clause, the police power have been general for purposes of enlarging upon a statute, subject
expressly delegated by the legislature to the local only to the standards fixed therein, to ensure its effective
lawmaking bodies. The power of taxation is, however, enforcement in accordance with the legislative will, or
derived by them directly from the Constitution, subject
only to limitations that may be imposed by the congress. Contingent, where administrative agencies are allowed
to ascertain the existence of particular contingencies and
(Power of taxation not inherent in LGU. Once Power to on the basis thereof enforce or suspend the operation of
tax is granted, it cannot be nullified. Power of eminent law.
domain – there must be an ordinance and not a
resolution.) - With this power, administrative bodies may implement
the broad policies laid down in a statute by “filling in” the
5. Delegation to administrative bodies details which the congress may not have the opportunity
or competence to provide. This is effected by their
Administrative agency – A body endowed with quasi- promulgation of what are known as supplementary
legislative and quasi-judicial powers for the purpose of regulations.
enabling it to carry out laws entrusted to it for
enforcement or execution. Example: implementing rules issued by the DOLE on the
Labor Code. These regulations have the force and effect
- Note that the exercise of quasi - legislative or quasi - of law.
judicial power would merely be incidental to the main
function of administrative agencies, which is the - Administrative agencies may also issue contingent
enforcement of the law. It is thus possible for regulations pursuant to a delegation of authority to
administrative agencies not to be conferred with either or determine some fact or state of things upon which the
both powers, as in the case of Carino vs. CHR, where enforcement of a law depends.
the SC held that the CHR had the power merely to
investigate but not to adjudicate. In other words, they are allowed to ascertain the
existence of particular contingencies and on the basis
(also read Simon vs. CHR wherein SC held that CHR thereof enforce or suspend the operation of a law.
has no power to adjudicate)
(See page 102 (Cruz 2002) for a case as an example)
- With the proliferation of specialized activities and their
attendant peculiar problems, the national legislature has Requisites for the validity of administrative rules:
found it more and more necessary to entrust to
1. Promulgation must be authorized by the legislature;
administrative agencies the “power of subordinate
legislation” as it is called. 2. must be within the scope of authority given by the
legislature;
Power of subordinate legislation - … Permitting the
delegation of greater powers by the legislative and 3. it must be promulgated in accordance with the
vesting a large amount of discretion in administrative prescribed procedure; and
and executive officials, not only in the execution of the
laws , but also in the promulgation of certain rules and 4. it must be reasonable.
regulations calculated to promote public interest.
(Calalang vs. Williams) - Thus, authority to promulgate the rule must be
conferred by the charter itself of the administrative body
Quasi-legislative power – The authority delegated by or by the law it is supposed to enforce. In Araneta vs.
the law-making body to the administrative body to adopt Gatmaitan, the SC held that the president in his exercise
rules and regulations intended to carry out the provisions of his power of control, may directly promulgate a rule
of a law and implement legislative policy. despite the absence of express authorization for him to
do so, said authority having been lodged under the law
In general, rules and regulations issued by in his subordinate, the Secretary of Agriculture and
administrative or executive officers pursuant to the

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Natural Resources. (take note of qualified political - Contrary to petitioner’s contention, the assailed JBC
agency principle) policy need not be filed in the ONAR because the
publication requirement in the ONAR (University of the
Doctrine of qualified political agency or alter Philippines Law Center Office of the National
ego principle means that the acts of the
Administrative Register) is confined to issuances of
secretaries of the Executive departments
performed and promulgated in the regular administrative agencies under the Executive branch of
course of business are presumptively the acts of the government. Since the JBC is a body under the
the Chief Executive. (Villena v. Secretar y of the supervision of the SC, it is not covered by the publication
Interior, G.R. No. L46570, April 21, 1939) requirements of the Administrative Code.

EXCEPTIONS: (Note: Nevertheless, the assailed JBC policy requiring 5


years of service as judges of first-level courts before
1. In cases wherein the Chief Executive is they can qualify as applicants to second-level courts
required by the Constitution or by the la w
should have been published.
to act in person or
As a general rule, publication is indispensable in order
2. the exigencies of the situation demand that
he act personally, the multifarious executive that all statutes, including administrative rules that are
and administrative functions of the Chief intended to enforce or implement existing laws attain
Executive are performed by and through the binding force and effect.
executive departments.
Exceptions:

- Moreover, the rules must not be ultra vires (beyond the - Interpretative regulations and those merely internal in
powers). Administrative rules and regulations cannot nature, which regulate only the personnel of the
amend laws, as in the case of People vs Maceren, administrative agency and not the public.
where the SC invalidated the conviction of the accused
for his violation of the rule of the Department of - Letter of instructions issued by admin. superiors
Agriculture and Natural Resources prohibiting concerning the rules or guidelines to be followed by their
“electrofishing” on the ground that this was not among subordinates in the performance of their duties.
the acts it prohibits, considering that it was authorized to
- For administrative rules and regulations with penal
punish fishing only with the “use of obnoxious or
sanctions to be valid, the law itself must make the
poisonous substances.”
violation of the administrative regulation punishable; the
- A Central Bank Circular cannot repeal a law. Only a law itself must impose and specify the penalty for the
law can repeal another law. violation of the regulation; and the regulation must be
published…
- All administrative rules and regulations must be
properly promulgated but only such rules which affect Quasi-Judicial Power – The power or the
the public in general require actual publication, in administrative authorities to make determination of facts
accordance with the prescribed procedure. in the performance of their official duties and to apply the
law as they construe it to the facts so found.
Take note: While E.O. 464 applies only to officials of the
executive branch, it does not follow that the same is Determinative powers – include the enabling powers
exempt from the need for publication. On the need for and directing powers.
publishing even those statutes that to not directly apply
Enabling Powers – Are those that permit the doing of
to people in general, Tanada vs. Tuvera states:
an act which the law undertakes to regulate and which
The term laws refer to all laws and not only to those of would be unlawful without governmental approval.
general application, for strictly speaking all laws relate to
Ex. The issuance of licenses to engage in businesses or
the people in general although there are some that to not
occupations.
apply to them directly….
Directing powers – Order the doing or performance of
Although the above statement was made in reference to
particular acts to ensure compliance with the law and are
statutes, logic dictates that the challenged order must be
often exercised for corrective purposes.
covered by the publication requirement. As explained
above, E.O. 464 has a direct effect on the right of the Ex. DOTC requires common carriers to install safety
people to information on matters of public concern. It is devices in their vehicles to prevent accidents.
therefore, a matter of public interest which members of
the body politic may question this court. Due process These directing powers would include:
requires that the people should have been apprised of
this issuance before it was implemented. (Senate vs.
Ermita)
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Dispensing power – Which allows the administrative - Said appeals, if required by law, would invariably
officer to relax the general operation of law or exempt require to be made up to the Office of the President, who
from the performance of a general duty. may always exercise his prerogative to review
administrative adjudications on the basis of his power of
Ex. Student excused from PE requirements for health control.
reasons.
- Failure to exhaust admin. remedies would not affect the
Examining power – Which, if allowed by law, enables jurisdiction of the reviewing court and would merely
the administrative agencies to inspect the records and result in the lack of a cause of action which may be
premises, and investigate the activities of persons or invoked in a motion to dismiss.
entities coming under its jurisdiction, which covers the
authority among others to issue: - Executive control is not absolute. It may be effectively
limited by the Constitution, by law, or by judicial
Subpoenas, call for the production of books, papers and decisions.
records, conduct hearings and even issue writs of
preliminary injunction or punish for contempt. Exceptions to the doctrine of exhaustion of
administrative remedies:
Summary Power – Which involves the use by
administrative authorities of force upon persons or things 1. Question raised is purely legal;
without necessity of previous judicial warrant, as when 2. When administrative body is in estoppel;
the mayor’s office padlocks filthy restaurants or theaters 3. When the act complained of is patently illegal;
exhibiting obscene movies or when Banko Sentral ng 4. When there is urgent need for judicial
Pilipinas takes over mismanage banks. intervention;
5. When the claim is involved is small;
Requisites of quasi-judicial power 6. When irreparable damage will be suffered;
7. When there is no plain, speedy and adequate
1. Jurisdiction must be properly acquired by the
remedy;
administrative body;
8. When strong public interest is involved;
2. Due process must be observed in the conduct of the 9. When the subject of the controversy is private;
proceedings. 10. Qua warranto proceedings.

Doctrine of Prior Resort – Simply calls for the Judicial Review – When courts review the adjudication
determination of administrative questions, which are of administrative agencies, they usually consider the
ordinarily questions of fact, by administrative agencies latter’s findings of facts as conclusive unless there exist
rather than or before the courts of justice. certain exceptional circumstances which would warrant a
(jurisprudence) review of such questions, such as when the findings are
grounded entirely on speculation, or when there is grave
Doctrine of Primary Jurisdiction – While it is true that abuse of discretion, when the judgment is based on
the regular courts are possessed of general jurisdiction misapprehension of facts, or when the findings of facts
over say actions for damages, it would nonetheless be are conflicting. Otherwise, courts would generally merely
proper for the courts to yield its jurisdiction in favour of confine themselves to a consideration of questions of
an administrative body when the determination of law…
underlying issues requires the special competence or
knowledge of the latter. (jurisprudence) Tests of Delegation

This doctrine further provides that, where two or more - Assuming that the delegation of legislative power
administrative agencies share concurrent jurisdiction comes under any of the permissible exceptions, there is
with respect to a particular issue, that body or agency still the question of whether or not the delegation has
that first takes cognizance of the complaint shall been validly made.
exercise jurisdiction to the exclusion of others.
To be valid, the delegation itself must be circumscribed
(jurisprudence)
by legislative restrictions, not a “roving commission” that
Doctrine of Exhaustion of Administrative Remedies will give the delegate unlimited legislative authority.
– It provides that where the enabling statute indicates a
1. The Completeness Test
procedure for administrative review, and provides for a
system of administrative appeal, or reconsideration, the - Ideally, the law must be complete in all its essential
courts, for reason of law, comity and convenience, will terms and conditions when it leaves the legislature so
not entertain the case unless the available administrative that there will be nothing left for the delegate to do when
remedies have been resorted to and the appropriate it reaches him except enforce it.
authorities have been given an opportunity to act and to
correct the errors committed in the administrative forum.

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(see page 103-104 (cruz 2002) for a case on and this is worse — to unmake it, by adopting measures
completeness test) inconsistent with the end sought to be attained by the
Act of Congress, thus nullifying the principle of
2. The sufficient Standard Test separation of powers and the system of checks and
balances, and, consequently, undermining the very
- Even if the law does not spell out in detail the limits of foundation of our Republican system.
the delegate’s authority, it may still be sustained if the
delegation of legislative power is made subject to a Section 68 of the Revised Administrative Code does not
sufficient standard. meet these well settled requirements for a valid
delegation of the power to fix the details in the
enforcement of a law. It does not enunciate any policy to
A sufficient standard is intended to map out the
be carried out or implemented by the President. Neither
boundaries of the delegate’s authority by defining the does it give a standard sufficiently precise to avoid the
legislative policy and indicating the circumstances under evil effects above referred to.
which it is to be pursued and effected.
Declaration of Principles and State Policies
Examples of sufficient standards – public interest;
optimization of the revenue-generating capability and A principle may be defined as a fundamental truth or
collection of Bureau of Internal Revenue and The law upon which others are based.
Bureau of Customs; infused with public interest;
simplicity, economy and efficiency; public welfare; justice A policy, on the other hand, refers to a plan to be
and equity; national security. pursued for purposes of carrying out a principle.

- The purpose of the sufficient standard is usually - Art. II has been interpreted as generally not a source of
indicated in the law delegating legislative power. enforceable rights. Sections 5 (maintenance of peace
and order), and section 18 (labor as a primary social
- But even if the law itself does not expressly pinpoint the economic force) are not self-executing provisions.
standard, the courts will bend over backward to locate (Jurisprudence). Also provisions on social justice.
the same elsewhere in order to spare the statute from
constitutional infirmity. (see page 105 (cruz 2002) for - Art. II provides for mere legislative guides, which,
illustration) absent enabling legislation, “do not embody judicially
enforceable rights.” Art. II provisions serve as guides in
(see page 104 – 108 for illustration and cases on formulating and interpreting implementing legislation, as
well as in interpreting executor provisions of the
sufficient standard test)
Constitution. (Jurisprudence)
The Pelaez Case
- For instance, Sec. 4 of Art. II expressly provides that
- SC ruled that the completeness test and sufficient the citizens may required to render personal military or
civil service “under the conditions provided by law”.
standard test, which had theretofore been applied
alternatively, must be applied together or concurrently.
- Policy of public disclosure under Art. II, section 28 need
not await the passing of a statute. (jurisprudence)
SC declared:

Principles
Although1a Congress may delegate to another branch of
the Government the power to fill in the details in the
execution, enforcement or administration of a law, it is SECTION 1. The Philippines is a democratic and
essential, to forestall a violation of the principle of republican State. Sovereignty resides in the people
separation of powers, that said law: and all government authority emanates from them.

(a) be complete in itself — it must set forth therein the Section 1. The Philippines is a democratic… State.
policy to be executed, carried out or implemented by the
delegate2 — and - The Constitution now describes the Philippines as, not
only as republican but also a democratic state.
(b) fix a standard — the limits of which are sufficiently Democracy is essentially government by the people.
determinate or determinable — to which the delegate
must conform in the performance of his functions. Note the provisions on initiative on national and local
legislation. (Art. VI, Section 32) -
Indeed, without a statutory declaration of policy, the
delegate would in effect, make or formulate such policy, SECTION 32. The Congress shall, as early as possible,
which is the essence of every law; and, without the provide for a system of initiative and referendum, and
aforementioned standard, there would be no means to the exceptions therefrom, whereby the people can
determine, with reasonable certainty, whether the directly propose and enact laws or approve or reject any
delegate has acted within or beyond the scope of his act or law or part thereof passed by the Congress or
authority.2b Hence, he could thereby arrogate upon
local legislative body after the registration of a petition
himself the power, not only to make the law, but, also —

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therefor signed by at least ten per centum of the total (class discussion, relate to sec. 7 and 8)
number of registered voters, of which every legislative
district must be represented by at least three per centum SECTION 2. The Philippines renounces war as an
of the registered voters thereof. instrument of national policy…

And initiative on amendment of the Constitution (Article Relate to Art. VI, Section 23 (1), which provides that the
XVII, Section 2) – “Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the
SECTION 2. Amendments to this Constitution may sole power to declare the existence of a state of war”
likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of (class discussion, the word war means defensive war
the total number of registered voters, of which every not offensive war.)
legislative district must be represented by at least three
War is considered both as a specific action, or an
per centum of the registered voters therein. No
armed contention between the public forces of states or
amendment under this section shall be authorized within
other belligerent communities, implying the employment
five years following the ratification of this Constitution nor
of force between the parties for the purpose of imposing
oftener than once every five years thereafter.
their respective demands upon each other, or as a
- Besides, the 1987 Constitution accords to the citizens a
Specific status, such that it may be said to exist even
greater protection in the affairs of government. Indeed it
without the use of force, as when one state formally
provides for people’s initiative, the right to information on
refuses to be governed by the laws of peace in its
matters of public concern (including the right to know the
relations with another state even if actual hostilities have
state of health of their president), as well as the right to
not taken place between them.
file cases questioning the factual bases for the
suspension of the privilege of writ of habeas corpus or War may start with:
declaration of martial law.
- A declaration of war;
These provisions enlarge the people’s right in the - With the rejection of an ultimatum; or
political as well as the judicial field. It grants them the - Commission of an act of force regarded by at
right to interfere in the affairs of government and least one of the parties as an act of war.
challenge any act tending to prejudice their interest.
(Petitioner Organization vs. Executive Secretary) Section 2…..adopts the generally accepted
principles of international law as part of the law of
See page 151-153 of Carlo Cruz (volume 1) for other the land…
provisions in the Constitution according “to the citizens
greater participation in the affairs of government” - The Incorporation Clause or Doctrine of Incorporation
refers to the automatic adoption of “generally accepted
Section 1. The Philippines is a…republican State. principles of international law as part of the law of the
land.”
- A republic is a representative government.
It is to be distinguished from the Doctrine of
- The essence of republicanism is representation and
Transformation under which accepted rules of
renovation. A republican government is a responsible
international law must first be enacted into legislation, as
government whose officials hold and discharge their
when the Senate concurs with a treaty or international
positions as a public trust and shall, according to the
agreement with two-thirds vote of all its members.
Constitution, “at all times be accountable to the people.”
(Art.VII, Section 21)
The purpose of republican government is the promotion
Both Doctrines are applicable in our jurisdiction.
of the common welfare according to the will of the
(Pharmaceutical and Health Care Association vs. Health
people themselves. This will is usually determined by the
Secretary)
rule of the majority, but may be arrived at on the basis of
a mere plurality, if allowed under the Constitution or the International law – refers to that body of legal rules
law, because “ours is a government of laws and not of which apply between sovereign states and such other
men.” (Villavicencio vs. Lukban). Among the features or entities as have been granted international personality.
characteristics is the doctrine of separation of powers.
Its fundamental divisions are the laws of peace, of war
SECTION 2. The Philippines renounces war as an and of neutrality.
instrument of national policy, adopts the generally
accepted principles of international law as part of Among the generally accepted principles of international
the law of the land and adheres to the policy of law are:
peace, equality, justice, freedom, cooperation, and
amity with all nations.

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- Renunciation of war as an instrument of national 1. the established, widespread and consistent


policy; practice on the part of states; and a
- The principle of sovereign immunity;
- A person’s right to life, liberty and due process; 2. psychological element known as the opinion
- And pacta sunt servanda. (Mijares vs. Ranada) juris sive necessitates (opinion as to law or
necessity.
Doctrine of pacta sunt servanda – Is a doctrine which
requires the observance of treaties in good faith. - Implicit in the latter element is a belief that the
practice in question is rendered obligatory by the
Rebus sic stantibus (XPN to the pacta sunt servanda)
existence of a rule of law requiring it.
– Justifies the non-performance of a treaty obligation if
the conditions in relation to which the parties contracted - The principles found in two conventions, while yet
have changed so materially and so unexpectedly as to ungratified by the Philippines, are generally accepted
create a situation in which the exaction of performance principles of international law. The first is Art. 14 the
would be unreasonable. 1930 Hague Convention on Certain Questions Relating
to the Conflict of Nationality Laws under which a
Example: In the case of a treaty involving the use of a
foundling is presumed to have the :nationality of the
port when the port is lost or destroyed.
country of birth.
- This principle applies only to treaties of indefinite
The second is the principle that a foundling is presumed
duration;
born of citizens of the country where he is found,
- The change in circumstance must have been
contained in Art. 2 of the 1961 United Nations
unforeseen;
Convention on the Reduction of Statelessness.
- It must be invoked within a reasonable period
from the occurrence; That the Philippines is not a party to the 1930 Hague
- And cannot operate retroactively upon the Convention nor to the 1961 Convention on the
provisions of the treaty already executed prior to Reduction of Statelessness does not mean that their
the change in the circumstance. principles are not binding… In Razon vs. Tagitis, this
Court noted that the Philippines had not signed or
- In Razon Jr. vs. Tagitis, the Court applied the generally
ratified the “international convention for the protection of
accepted principles of international law and adopted the
all persons from enforced disappearances.” Yet, we
International Convention for the Protection of all persons
ruled that the proscription against enforced
from Enforced Disappearances in defining the “enforced
disappearances in the said convention was nonetheless
disappearance.”
binding as a “generally accepted principle of
- …although the US to date has not ratified the international law.”
UNCLOS, as a matter of long-standing policy the US
Another case where the number of ratifying countries
considers itself bound by customary international rules
was not determinative is Mijares vs. Ranada, where only
on the “traditional uses of the oceans” as codified in the
four countries had “either ratified or acceded to the 1966
UNCLOS, as can be gleaned from previous declarations
“convention on recognition and enforcement of foreign
by former Presidents Reagan and Clinton, and the US
judgments in civil and commercial matters when the
judiciary in the case of United States vs. Royal
case was decided in 2005…There was pronouncement
Caribbean Cruise Lines, Ltd… non-membership in the
that recognition of foreign judgments was widespread
UNCLOS does not mean that US will disregard the rights
practice.
of the Philippines as a Coastal State over its
international waters and territorial sea… (Arigo vs. Swift) Our approach in Razon and Mijares effectively takes into
account the fact that “generally accepted principles of
- Foundlings are likewise citizens under international
international law” are based not only on international
law. (Poe-Llamanzazres vs. COMELEC)
custom, but also on “general principles of law recognized
Generally accepted principles of international law by civilized nations,”…Justice, fairness, equity and the
include: policy against discrimination, which are fundamental
principles underlying the bill of rights and which are
- international custom as evidence of a general basic to legal systems generally,” support the notion that
practice accepted as law, and the right against enforced disappearances and the
recognition of foreign judgments, were correctly
- general principles of law recognized by civilized considered as “generally accepted principles of
nations. international law” under the incorporation clause.

International customary rules are accepted as binding as Treaties and Executive Agreements
a result from the combination of two elements:

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- Treaty is a formal agreement, usually but not other international


necessarily in writing, which is entered into by states or persons.
entities possessing the treaty-making capacity, for the
purpose of their mutual relations under the law of
- International law - While violation of
nations.
breaches are resolved municipal laws are
through state-to-state redressed through local
It covers conventions, declarations, covenants, acts and transactions ranging from administrative and judicial
pacts. peaceful methods like processes.
negotiation and arbitration
Executive agreement is not a treaty insofar as the to hostile arbitrament of
Senate’s concurrence thereto may not be required under force like reprisals and
our Constitution. even war.

The term “exchange of notes and executive agreements


have been used interchangeably, exchange of notes - International law usually - Municipal law entails
being considered a form of executive agreement that entails collective individual responsibility.
responsibility.
becomes binding through executive action.

On the other hand, executive agreements concluded by


the president “sometimes take the form of exchange of
notes and at other times that of more formal documents
denominated “agreements” or “protocols.” (Bayan Muna
vs. Romulo) Conflicts between International Law and Municipal
Law
- The distinction between treaties and executive
agreements is purely municipal and has no international - Where there appears to be a conflict between
significance. From the standpoint of international law, international law and municipal law, efforts should first
they both constitute equally binding obligations upon the be exerted to harmonize them, so as to give effect to
nation. (Bayan Muna vs. Romulo) both. For this purpose, it should be presumed that the
municipal law was enacted with proper regard for the
- A treaty has greater “dignity” than an executive generally accepted rules of international law.
agreement, because its constitutional efficacy is beyond (jurisprudence)
doubt, a treaty having behind it the authority of the
President, the Senate, and the people; a ratified treaty, - Withal, the fact that international law has been made
unlike an executive agreement, takes precedence over part of the law of the land does not by any means imply
prior statutory enactments. (Bayan Muna vs. Romulo) the primacy of international law over the national law in
the municipal sphere. Under the doctrine of incorporation
(Class discussion: There are no longer any limitations as applied in most countries, rules of international law
with regard to subjects of executive agreements and are given a standing equal, not superior, to national
treaties) legislation. (jurisprudence)

International Law Municipal Law - …It is a basic rule that Philippine courts cannot take
judicial notice of foreign judgment or order. We can only
- International law is - While municipal law is recognize and/or enforce a foreign judgment or order
generally not imposed, but issued by a political
adopted as a common rule superior for observance by after a conclusive and a final finding by Philippine courts
of action among states. those under its authority. that:

1. The foreign court or tribunal has jurisdiction over the


- International law is - While municipal law case;
derived not from any consists mainly of
particular legislation but enactments from the 2. the parties were properly notified;
from such sources as lawmaking authority.
treaties, international 3. there was no collusion, fraud, or clear mistake of law
customs, international or fact. (jurisprudence)
conventions and general
principles of law. If the conflict between international and municipal
law is irreconcilable –

- The police power, being inherent in a state, cannot be


- International law applies - While municipal law bargained away or surrendered through the medium of a
to the relations inter se regulates relationship of
(between or among individuals. treaty. (Gonzales vs. Hechanova 9 SCRA 230) The rule-
themselves) of states and making authority of the Supreme Court takes

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precedence as against treaties. (In re Garcia 2 SCRA have taken up arms against legitimate
984) governments);
- Certain international administrative bodies (like
- As regards the question whether an international international law monetary fund and the
agreement may be invalidated by our courts, suffice it to international labor organization,
say that the Constitution of The Philippines has clearly - And even certain individuals.
settled it in the affirmative, by providing, in Section 2 of
Art. VIII thereof, that the SC may not be deprived of its - AN object of international law refers to the person or
jurisdiction to review, revise, reverse, modify, or affirm thing in respect of which rights are held and obligations
on appeal, certiorari, or writ of error as the law or the are assumed by the subject.
rules of court may provide, final judgments and decrees
of inferior courts in – (1) All cases in which the It is not directly governed by the rules of international law
constitutionality or validity of any treaty, law, ordinance, and its rights are asserted and its responsibilities
or executive order or regulation is in question. In other imposed indirectly through the instrumentality of an
words, our Constitution authorizes the nullity of a treaty intermediate agency, which is the subject.
not only when it conflicts with the fundamental law, but
The individual is traditionally regarded as an object of
also when it runs counter to an act of congress.
international law who can act only through the
(Gonzales vs. Hechanova 9 SCRA 230)
instrumentality of his own state in matters involving
But note – relations with other states, There is however growing
tendency to regard the individual as a subject of
- A stipulation in a treaty or executive agreement international law.
providing for a state with the option to waive its criminal
jurisdiction to prosecute foreigners who commit crimes For instance, the doctrine of incorporation makes the law
within its territory is not to be considered as an of nations part of the law of the state and, hence, directly
abdication of its sovereignty. “Almost every time a state applicable to its individual inhabitants; the united nations
enters into an international agreement, it voluntarily charter reaffirms faith in fundamental human rights, in
sheds off paty of its sovereignty. xxx. On the rationale the dignity and worth of the human person and in the
that the Philippines has adopted the general principles of equal and inalienable rights of all members of the human
international law as part of the law of the land, a portion family….
of sovereignty may be waived without violating the
Section 2. … and adheres to the policy of peace,
Constitution. Such waiver does not amount to an
equality, justice, freedom, cooperation, and amity
unconstitutional diminution or deprivation of jurisdiction
with all nations.
of Philippine courts. (Bayan Muna vs. Romulo, 641
SCRA 17) Relate to Art. II, Section 7, which provides that the “State
shall pursue an independent foreign policy. In its
A state that has contracted valid international obligations
relations with other states, the paramount consideration
is bound to make in its legislations those modifications
shall be: national sovereignty, territorial integrity, national
that may be necessary to ensure the fulfilment of
interest, and the right to self-determination.
obligations undertaken. Thus, laws and issuances must
ensure that the reliefs granted under tax treaties are Relate also to Art. II, Section 8, which declares that the
accorded to the parties entitled thereto. The BIR must “Philippines, consistent with the national interest, adopts
not impose additional requirements that would negate and pursues a policy of freedom from nuclear weapons
the availment of the reliefs provided for under in its territory.”
international agreements. (Deutsche Bank)
SECTION 3. Civilian authority is, at all times,
Subjects and objects of International Law supreme over the military. The Armed Forces of the
Philippines is the protector of the people and the
- A subject of international law is an entity that has
State. Its goal is to secure the sovereignty of the
rights and responsibilities under that law.
State and the integrity of the national territory.
Example:
Relate to Art. VII, Section 18, which vests in the
- states, President military powers as the commander-in-chief of
- the united nations, the armed forces of the Philippines.
- colonies and dependencies,
Art. VII Section 18 reads in part: The President shall be
- mandates and trust territories,
the Commander-in-Chief of all armed forces of the
- the Vatican city,
Philippines and whenever it becomes necessary, he may
- belligerent communities (described as groups of
call out such armed forces to prevent or suppress
rebels under organized civil governments who
lawless violence, invasion or rebellion.

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Gelo Notes Political Law Reviewer

Note that the Government is an element of a state. - These are among the constituent functions of
government. This is not a self-executing provision.
- The net effect of Art. II, Section 3, when read with Art.
VII, Section 18, is that a civilian president is the SECTION 6. The separation of Church and State
ceremonial, legal and administrative head of the armed shall be inviolable.
forces. The Constitution does not require that the
President must possessed of military training and The rationale of the rule is summed up in the familiar
talents, but as commander-in-chief, he has the power to saying. “strong fences make good neighbors.”
direct military operations and to determine military
- Relate to Art. III, Section 5, which provides, among
strategy.
others, that “no law shall be made respecting an
Normally, he would be expected to delegate actual establishment of religion or prohibiting the free exercise
command of the armed forces to military experts; but the thereof;” and
ultimate power is his. As commander-in-chief, he is
Art. VI, Section 29 (2) which states that: No public
authorized to direct the movements of the naval and
money or property shall be appropriated, applied, paid,
military forces placed by law at his command, and to
or employed, directly or indirectly, for the use, benefit, or
employ them in the manner he may deem most effective.
support of any sect, church, denomination, sectarian
(Kulayan vs. Tan)
institution, or system of religion, or of any priest,
- The power of the president to confirm, mitigate and preacher, minister, or other religious teacher, or dignitary
remit a sentence of erring military personnel is a clear as such, except when such priest, preacher, minister, or
recognition of the superiority of civilian authority over the dignitary is assigned to the armed forces, or to any penal
military. (jurisprudence) institution, or government orphanage or leprosarium.

- The military power of the president includes the power State Policies
to prevent as commander-in-chief, military personnel
SECTION 7. The State shall pursue an independent
from testifying in legislative inquiries. (jurisprudence)
foreign policy. In its relations with other states the
SECTION 4. The prime duty of the Government is to paramount consideration shall be national
serve and protect the people. The Government may sovereignty, territorial integrity, national interest,
call upon the people to defend the State and, in the and the right to self-determination.
fulfillment thereof, all citizens may be required,
- The right to self-organization is the right to freely
under conditions provided by law, to render
determine their political status and freely pursue their
personal military or civil service.
economic, social, and cultural development.
Relate to Art. XVI, Section 4, which provides that the
Internal self-determination (autonomy) refers to a
armed forces of the Philippines shall be composed of a
people’s pursuit of its political, economic, social and
citizen armed force which shall undergo military training
cultural development within the framework of an existing
and serve, as may be provided by law. It shall keep a
state, while
regular force necessary for the security of the state.
External self-determination (independence) pertains to
- The National Defense Law, in so far as it established
the establishment of a sovereign and independent state,
compulsory military training service, does not go against
the free association or integration with an independent
this constitutional provision but is, on the contrary, in
state or the emergence into any other political status
faithful compliance therewith. The duty of the
freely determined by the people.
Government to defend the state cannot be performed
except through an army. To leave the organization of an The people’s right to self-determination should not,
army to the will of the citizens would be to make this duty however, be understood as extending to a unilateral right
of the government excusable should there be no of secession. (Province of North Cotabato vs. The
sufficient men who volunteer to enlist therein. Government of the Republic of the Philippines Peace
(jurisprudence) Panel on Ancestral Domain)
- Note that citizens may be required to personally render SECTION 8. The Philippines, consistent with the
military and civil service. Note also that the extent of said national interest, adopts and pursues a policy of
personal military or civil service is subject to the freedom from nuclear weapons in its territory.
discretion of the legislature.
- Additionally, the charge that EDCA (Enhanced Defense
SECTION 5. The maintenance of peace and order, Cooperation Agreement) allows nuclear weapons within
the protection of life, liberty, and property, and the the Phil. Territory is entirely speculative. It is noteworthy
promotion of the general welfare are essential for that the agreement in fact specifies that the
the enjoyment by all the people of the blessings of prepositioned materiel shall not include nuclear
democracy.
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Gelo Notes Political Law Reviewer

weapons. Petitioners argue that only prepositioned force to those who, notwithstanding their more
nuclear weapons are prohibited by EDCA; and that, comfortable position in life, are equally deserving of
therefore, The U.S. insidiously bring nuclear weapons to protection from the courts. Social justice is not a license
to trample on the rights of the rich in the guise of
Phil. territory. The general prohibition on nuclear
defending the poor, where no act of injustice or abuse is
weapons, whether prepositioned or not, is already being committed against them. (jurisprudence)
expressed in the 1987 Constitution. It would be
unnecessary or superfluous to include all prohibitions SECTION 11. The State values the dignity of every
already in the Constitution or in the law through a human person and guarantees full respect for
document like EDCA. (Saguisag vs. Executive human rights.
Secretary)
- Failure to meet the three-day notice rule for filing
SECTION 9. The State shall promote a just and motions and to obtain the concurrence of the public
dynamic social order that will ensure the prosperity prosecutor to move for an interlocutory relief in a criminal
and independence of the nation and free the people prosecution cannot be excused by general exhortation of
from poverty through policies that provide adequate human rights. (Laude vs. Hon. Ginez)
social services, promote full employment, a rising
standard of living, and an improved quality of life for - Upholding human rights pertaining to access to justice
all. cannot be eschewed to rectify an important procedural
deficiency that was not difficult to comply with. Human
SECTION 10. The State shall promote social justice rights are not a monopoly of petitioners. The accused
in all phases of national development. also enjoys the protection of these rights. (Laude vs.
Hon. Ginez)
The social justice provisions in the Constitution are
found in: SECTION 12. The State recognizes the sanctity of
family life and shall protect and strengthen the
- Art. II, Sec. 9 (on the promotion of just and family as a basic autonomous social institution. It
dynamic social order);
shall equally protect the life of the mother and the
- Sec. 10 (on the promotion of social justice in all
phases of national development); life of the unborn from conception. The natural and
- Sec. 11 (on human dignity and human rights); primary right and duty of parents in the rearing of
- Sec. 18 (on labor as a primary social economic the youth for civic efficiency and the development of
force); moral character shall receive the support of the
- Sec. 21 (on rural development and agrarian Government.
reform);
- Art. XIII (on social justice and human rights) Relate to Art. XV. Note Section 3 (1) thereof, provides
that the state shall defend the right of spouses to found a
Social justice is “neither communism, nor despotism, nor family in accordance with their religious convictions and
atomism, nor anarchy,” but the humanization of laws and
the demands of responsible parenthood; and
the equalization of social and economic forces by the
State so that justice in its rational and objectively secular
Sec 3 (4) which states that the state shall likewise
conception may at least be approximated.
defend the right of families or family associations to
Social justice means the promotion of the welfare of all participate in the planning and implementation of policies
the people, the adoption by the Government of and programs that affect them.
measures calculated to insure economic stability of all
the competent elements of society, through the Section 12. ...It shall equally protect the life of the
maintenance of a proper economic and social mother and the life of the unborn from conception.
equilibrium in the interrelations of the members of the
community, constitutionally, through the adoption of - Life commences upon “conception, that is, upon
measures legally justifiable, or extraconstitutionally, fertilization.” Hence, the obligation upon the state to
through the exercise of powers underlying the existence “equally protect the life of the mother and the life of the
of all governments on the time-honored principle of salus unborn from conception” and “to prevent the legislature
populi est suprema lex.
from enacting a measure legalizing abortion.” (Imbong
vs. Ochoa)
- For sure, the NHA’s order of relocating petitioner to her
assigned lot and demolishing her property on account of
- A zygote is a human organism and that the life of new
her refusal to vacate was consistent with the law’s
fundamental objective of promoting social justice in the human being commences at a scientifically well-defined
manner that will inure to the common good. xxx. Indeed, moment of conception, that is, upon fertilization. (Imbong
petitioner cannot invoke the social justice clause at the vs. Ochoa)
expense of the common welfare. (jurisprudence)
- An unborn child can be considered a dependent. The
- Laws which have for their object the preservation and term child can be understood to include the unborn fetus
maintenance of social justice are not only meant to favor in the mother’s womb. (jurisprudence)
the poor and the underprivileged. They apply with equal

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An illegitimate child can be registered using the surname SECTION 13. The State recognizes the vital role of
of his deceased father. (jurisprudence) the youth in nation-building and shall promote and
protect their physical, moral, spiritual, intellectual,
Section 12. … The natural and primary right and duty and social well-being. It shall inculcate in the youth
of parents in the rearing of the youth for civic patriotism and nationalism, and encourage their
efficiency and the development of moral character involvement in public and civic affairs.
shall receive the support of the Government.
The State shall protect and promote the right of all
- Equally deplorable is the debarment of parental
citizens to quality education at all levels and shall take
consent in cases where the minor, who will be appropriate steps to make such education accessible to
undergoing a procedure, is already a parent or has had all. (Art. XIV, Section 1)
a miscarriage. Section 7 of the RH law provides:
(1) All educational institutions shall include the study of
Sec. 7 Access to family planning – No person shall be the Constitution as part of the curricula.
denied information and access to family planning
services, whether natural or artificial: provided, that (2) They shall inculcate patriotism and nationalism,
minors will not be allowed access to modern methods of foster love of humanity, respect for human rights,
family planning without written consent from their appreciation of the role of national heroes in the
parents or guardians except when the minor is already historical development of the country, teach the rights
and duties of citizenship, strengthen ethical and spiritual
a parent or has had a miscarriage.
values, develop moral character and personal discipline,
encourage critical and creative thinking, broaden
There can be no other interpretation of this provision
scientific and technological knowledge, and promote
except that when a minor is already a parent or has had vocational efficiency.
a miscarriage, the parents are excluded from the
decision making process of the minor with regard to (3) At the option expressed in writing by the parents or
family planning. Even if she is not yet emancipated, the guardians, religion shall be allowed to be taught to their
parental authority is already cut off just because there is children or wards in public elementary and high schools
a need to tame population growth. within the regular class hours by instructors designated
or approved by the religious authorities of the religion to
xxx It is an affront to constitutional mandate to protect which the children or wards belong, without additional
and strengthen the family as an inviolable social cost to the Government. Art. XIV SECTION 3.)
institution.
- It is incompetent for the government to prohibit the
More alarmingly, it disregards and disobeys the teaching of the German language to students between
certain age levels since there is nothing inherently
constitutional mandate that the natural and primary
harmful in the language that will impair the upbringing of
rights and duty of parents in the rearing of the youth for the child; and in fact such a subject could improve his
civic efficiency and the development of moral character academic background. (US jurisprudence)
shall receive the support of the government.
- A law prohibiting the establishment of private schools
xxx (Sec.12. Art. II) Notably, it places more importance and in effect confining the education of the youth to
on the role of parents in the development of their public institutions of learning is invalid.
children by recognizing that said role shall be “primary,”
that is, that the right of parents in upbringing the youth is - Note Article XIV, Section 5 (3) which provides that
superior to that of the state. (Imbong vs. Ochoa) “every citizen has a right to select a profession or course
of study, subject to fair, reasonable and equitable
- It is also the inherent right of the state to act as parens admission and academic requirements.”
patriae to aid parents in the moral development of the
youth. xxx Rule 10, Sec. 11.01 of the RH-IRR and Sec. Note laws designed to protect children or the youth such
4(t) of the RH Law itself provides for the teaching of as:
responsible teenage behaviour, gender sensitivity and
physical and emotional changes among adolescents – - R.A.7610 to protect them against sexual abuse;
- R.A. 9262, to protect them from violence;
the court finds that the legal mandate provides under the
- The Child and Youth Welfare Code, which
assailed provision supplements, rather the supplants entitled youthful offenders to be released on
the rights and duties of the parents in the moral mere recognizance;
development of their children. (Imbong vs. Ochoa) - R.A. 9344 which favors children in conflict with
the law and provides for their rehabilitation and
- The state cannot, without a compelling state interest, provides for their confinement in agricultural
take over the role of parents in the care and custody of a camps.
minor child, whether or not the latter is already a parent
or has had a miscarriage. Only a compelling state - In no case shall the school administrator, teacher or
interest can justify a state substitution of their parental individual engaged in child care exercising special
parental authority inflict corporal punishment upon the
authority. (Imbong vs. Ochoa)
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Gelo Notes Political Law Reviewer

child. (Violation of the family Code Art. 233) 2. it results in or is likely in physical harm or suffering.
(Jurisprudence)
In Ang vs. CA, the Court enumerated the elements of
- Section 38 of R.A. 9344 provides that when child below crime of violence against women through harassment:
18 years of age who committed a crime and was found
guilty, the court shall place the child in conflict with the 1. The offender has or had a sexual or dating
law under suspended sentence even if such child has relationship with the offended woman;
reached 18 years or more at the time of judgment.
2. The offender, by himself or through another, commits
In People vs. Sarcia, we ruled on the applicablility of an act or series of acts of harassment against the
Section 38, R.A. 9344 even if the minor therein was woman; and
convicted of reclusion perpetua.
3. The harassment alarms or causes substantial
Although suspension of sentence still applies even if the emotional or psychological distress to her.
child in conflict with the law is already 18 yrs of age or
more at the time the judgment of conviction was
Notably, while it is required that the offender has or had
rendered, however, such suspension is only until the
a sexual or dating relationship with the offended woman,
minor reaches the maximum age of 21 as provided for R.A. 9262 to be applicable, it is not indispensable
under Sec. 40 of R.A. 9344. that the act of violence be a consequence of such
relationship. Nowhere in the law can such limitation be
The RTC did not suspend the sentence of appellant inferred. Hence, applying the rule on statutory
Allain pursuant to Sec. 38 of R.A. 9344. Appellant is now construction that when the law does not distinguish,
34 years old, thus, Section 40 is also no longer neither should the courts, then clearly, the punishable
applicable. Nonetheless, we have extended the acts refer to all acts of violence against women with
application of R.A. 9344 beyond the age of 21 years old whom the offender has or had a sexual or dating
to give meaning to the legislative intent of the said law… relationship.
Thus, appellant Allain shall be confined in an agricultural
camp or other training facility pursuant to Sec. 51 of R.A.
As correctly ruled by the RTC, it is immaterial whether
9344. (Jurisprudence)
the relationship had ceased for as long as there is
sufficient evidence showing the past or present
SECTION 14. The State recognizes the role of existence of such relationship between the offender and
women in nation-building, and shall ensure the the victim, when the physical harm was committed.
fundamental equality before the law of women and Consequently, the court cannot depart from the
men. parallelism in Ang and give credence to petitioner’s
assertion that the act of violence should be due to the
The State shall protect working women by providing safe sexual or dating relationship. (jurisprudence)
and healthful working conditions, taking into account
their maternal functions, and such facilities and SECTION 15. The State shall protect and promote
opportunities that will enhance their welfare and enable the right to health of the people and instill health
them to realize their full potential in the service of the consciousness among them.
nation. (Art. XIII, Sec. 144)
- A component to the right to life is the constitutional right
- R.A. 9262 has been enacted to protect women and to health. (Imbong vs. Ochoa)
their children from violence and threats to their personal
safety and security. This law has been upheld by the SC - Contrary to the respondent’s notion, however, these
as against a challenge as to its constitutionality on the
provisions are self-executing. Unless the provisions
ground of its purported violation of the equal protection
clearly express the contrary, the provisions of the
clause, as it applies only to women and not to men.
Constitution should be considered self-executory. There
is no need for legislation to implement these self-
The SC cited “the unequal power relationship between executing provisions. (Imbong vs. Ochoa)
women and men” and “the fact that women are more
likely than men to be victims of violence,” not to mention SECTION 16. The State shall protect and advance
“the widespread gender bias and prejudice against the right of the people to a balanced and healthful
women” as basic distinctions between women and men ecology in accord with the rhythm and harmony of
which justify the classification under the law. (Garcia vs. nature.
Drilon)
- Section 15 and 16 have been acknowledged as special
- The law (R.A. 9262) is broad in scope but specifies two
provisions which “need not even be written in the
limiting qualifications for any act or series of acts to be
Constitution for it is assumed, like other civil and political
considered as a crime of violence against women rights guaranteed in the Bill of rights, to exist from the
through physical harm, namely:
inception of humankind and it is an issue of
transcendental importance with intergenerational
1. it is committed against a woman or her child and the implications. (Oposa vs. Factoran)
woman has or had sexual or dating relationship or with
whom he has a common child; - Issue: Whether or not petitioners have locus standi
(legal standing) to file a class suit against respondent?
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This case, however, has a special and novel element. inherit nothing but parched earth incapable of sustaining
Petitioners minors assert that they represent their life. (Oposa vs. Factoran)
generation as well as generations yet unborn. We find
no difficulty in ruling that they can, for themselves, for - “Green Courts” have been established by the SC (SC-
others of their generation and for the succeeding AO No. 23-2008) to hear and decide environmental
generations, file a class suit. Their personality to sue cases, and to try and decide cases involving violations of
in behalf of the succeeding generations can only be environmental laws.” (Writ of Kalikasan)
based on the concept of intergenerational
responsibility insofar as the right to a balanced and
- This is so considering that the filing of a petition for the
healthful ecology is concerned. xxx Needless to say,
issuance of a writ of kalikasan under Sec. 1, Rule 7 of
every generation has a responsibility to the next to the Rules of Procedure for Environmental Cases does
preserve that rhythm and harmony for the full enjoyment not require that a petitioner be directly affected by an
of a balanced and healthful ecology. Put a little
environmental disaster. The Rule clearly allows juridical
differently, the minors' assertion of their right to a sound
persons to file the petition on behalf of persons whose
environment constitutes, at the same time, the
constitutional right to a balanced and healthful ecology is
performance of their obligation to ensure the protection violated, threatened with violation. (jurisprudence)
of that right for the generations to come.
- In our jurisdiction, locus standi in environmental cases
We do not agree with the trial court's conclusions that
has been given a more liberalized approach. While
the plaintiffs failed to allege with sufficient definiteness a
developments in Philippine legal theory and
specific legal right involved or a specific legal wrong jurisprudence have not progressed as far as Justice
committed, and that the complaint is replete with vague Douglas's paradigm of legal standing for inanimate
assumptions and conclusions based on unverified data.
objects, the current trend moves towards simplification of
A reading of the complaint itself belies these
procedures and facilitating court access in environmental
conclusions.
cases.

The complaint focuses on one specific fundamental Recently, the Court passed the landmark Rules of
legal right — the right to a balanced and healthful Procedure for Environmental Cases,51 which allow for
ecology which, for the first time in our nation's a "citizen suit," and permit any Filipino citizen to file an
constitutional history, is solemnly incorporated in the action before our courts for violations of our
fundamental law. Section 16, Article II of the 1987 environmental laws:
Constitution explicitly provides:
SEC. 5. Citizen suit. - Any Filipino citizen in
Sec. 16. The State shall protect and advance the right of representation of others, including minors or
the people to a balanced and healthful ecology in accord generations yet unborn, may file an action to enforce
with the rhythm and harmony of nature. rights or obligations under environmental
laws. Upon the filing of a citizen suit, the court shall
This right unites with the right to health which is provided issue an order which shall contain a brief description of
for in the preceding section of the same article: the cause of action and the reliefs prayed for, requiring
all interested parties to manifest their interest to
intervene in the case within fifteen (15) days from notice
Sec. 15. The State shall protect and promote the right to
health of the people and instill health consciousness thereof. The plaintiff may publish the order once in a
among them. newspaper of a general circulation in the Philippines or
furnish all affected barangays copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No.
While the right to a balanced and healthful ecology is to 9003 shall be governed by their respective provisions.
be found under the Declaration of Principles and State
Policies and not under the Bill of Rights, it does not Moreover, even before the Rules of Procedure for
follow that it is less important than any of the civil and Environmental Cases became effective, this Court had
political rights enumerated in the latter. Such a right already taken a permissive position on the issue of locus
belongs to a different category of rights altogether for it standi in environmental cases. In Oposa, we allowed the
concerns nothing less than self-preservation and self- suit to be brought in the name of generations yet unborn
perpetuation — aptly and fittingly stressed by the "based on the concept of intergenerational responsibility
petitioners — the advancement of which may even be insofar as the right to a balanced and healthful ecology
said to predate all governments and constitutions. As a is concerned." Furthermore, we said that the right to a
matter of fact, these basic rights need not even be balanced and healthful ecology, a right that does not
written in the Constitution for they are assumed to exist even need to be stated in our Constitution as it is
from the inception of humankind. If they are now assumed to exist from the inception of humankind,
explicitly mentioned in the fundamental charter, it is carries with it the correlative duty to refrain from
because of the well-founded fear of its framers that impairing the environment.
unless the rights to a balanced and healthful ecology
and to health are mandated as state policies by the In light of the foregoing, the need to give the Resident
Constitution itself, thereby highlighting their continuing Marine Mammals legal standing has been eliminated by
importance and imposing upon the state a solemn our Rules, which allow any Filipino citizen, as a steward
obligation to preserve the first and protect and advance of nature, to bring a suit to enforce our environmental
the second, the day would not be too far when all else laws. It is worth noting here that the Stewards are joined
would be lost not only for the present generation, but as real parties in the Petition and not just in
also for those to come — generations which stand to representation of the named cetacean species. The

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Stewards, Ramos and Eisma-Osorio, having shown in xxx Alongside the aforesaid uncertainties, the non-
their petition that there may be possible violations of implementation of the NBF in the crucial stages of risk
laws concerning the habitat of the Resident Marine assessment and public consultation, including the
Mammals, are therefore declared to possess the legal determination of the applicability of the EIS requirements
standing to file this petition. (Resident Mammals of to GMO field testing, are compelling reasons for the
Tanon Straights vs. DENR Sec. Angelo Reyes G.R. No. application of the precautionary principle.
180771)
There exists a preponderance of evidence that the
- It is of no moment that only five residents of West tower release of GMO’s into the environment threathens to
signed their acquiescence to the filing of the petition for damage our ecosystem and not just the field trial sites,
the issuance of the writ of kalikasan, as the merits of and eventually the health of our people once the Bt
such petition is, as aptly put by the CA, not measured eggplants are consumed as food. Adopting the
thereto, but on the existence of a prima facie case of a precautionary approach, the court rules that the
massive environmental disaster. (jurisprudence) principles of the NBF need to be operationalized first by
the coordinated actions of the concerned departments
- The filing of a petition for the issuance of a writ of and agencies before allowing the release into the
kalikasan does not require that a petitioner be directly environment of genetically modified egg-plant. The more
affected by an environmental disaster. The rule clearly prudent course is to immediately enjoin the Bt talong
allows juridical persons to file the petition on behalf of fieled trials and approval for its propagation or
persons whose constitutional right to a balanced and commercialization until the said government offices shall
healthful ecology is violated or threatened with violation. have performed their respective mandates to implement
(jurisprudence) NBF. (International Service for the Acquisition of Agri-
Biotech Applications, Inc. vs. Greenpeace Southeast
- The liberalized rule on standing is now enshrined in the Asia Phil.)
Rules of Procedure for environmental cases which
allows the filing of a citizen suit in environmental cases. SECTION 17. The State shall give priority to
The provision on citizen suit in the rules “collapses the education, science and technology, arts, culture,
traditional rule on personal and direct interest”, on the and sports to foster patriotism and nationalism,
principle that humans are steward of nature,” and aims accelerate social progress, and promote total human
to further encourage the protection of the environment. liberation and development.
- The question then is, can the validity of an ECC be
challenged via a writ of kalikasan? We answer in the - The qualifications of teaching and non-teaching
affirmative subject to certain qualifications… the writ of personnel of private schools, as well as the causes for
kalikasan is principally predicated on an actual or the termination of their employment, are an integral
threatened violation of the constitutional right to a aspect of the educational system of private schools… It
balanced and healthful ecology, which involves is thus within the authority of the Secretary of Education
environmental damage of a magnitude that transcends to issue a rule, which provides for the dismissal of
political and territorial boundaries. teaching and non-teaching personnel of private schools
based on their incompetence, inefficiency or some other
A party therefore, who invokes the writ based on alleged disqualification. (Leus vs. St. Scholastica’s College)
defects or irregularities in the issuance of an ECC must
not only allege and prove such defects or irregularities, SECTION 18. The State affirms labor as a primary
but must also provide a casual link or, at least a social economic force. It shall protect the rights of
reasonable connection between the defects or workers and promote their welfare.
irregularities in the issuance of an ECC and the actual or
threatened violation of the constitutional right to a This is among the social justice provisions in the
balanced and healthful ecology of the magnitude Constitution.
contemplated under the Rules.
Otherwise, the petition should be dismissed outright and The State shall afford full protection to labor, local and
the action re-filed before the proper forum with due overseas, organized and unorganized, and promote full
regard to the doctrine of exhaustion of administrative employment and equality of employment opportunities
remedies. (jurisprudence) for all.
Precautionary principle states that when human
It shall guarantee the rights of all workers to self-
activities may lead to threats of serious and irreversible
organization, collective bargaining and negotiations, and
damage to the environment that is scientifically plausible
peaceful concerted activities, including the right to strike
but uncertain, actions shall be taken to avoid or diminish
in accordance with law. They shall be entitled to security
that threat.
of tenure, humane conditions of work, and a living wage.
They shall also participate in policy and decision-making
(A.M. No. 09-6-8-SCRULES OF PROCEDURE FOR processes affecting their rights and benefits as may be
ENVIRONMENTAL CASES) provided by law.

- Assessing the evidence on record, as well as the The State shall promote the principle of shared
current state of GMO research worldwide, the Court responsibility between workers and employers and the
finds all the three conditions present in this case: preferential use of voluntary modes in settling disputes,
uncertainty, possibility of irreversible harm and the
possibility of serious harm.

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including conciliation, and shall enforce their mutual owned by the State. With the exception of agricultural
compliance therewith to foster industrial peace. lands, all other natural resources shall not be alienated.
The exploration, development, and utilization of natural
The State shall regulate the relations between workers resources shall be under the full control and supervision
and employers, recognizing the right of labor to its just of the State. The State may directly undertake such
share in the fruits of production and the right of activities, or it may enter into co-production, joint
enterprises to reasonable returns on investments, and to venture, or production-sharing agreements with Filipino
expansion and growth. (Art. XIII Sec.3) citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-
- The law, in protecting the rights of the laborers,
authorizes neither oppression nor self-destruction of the five years, renewable for not more than twenty-five
employer. (jurisprudence) years, and under such terms and conditions as may be
provided by law. In cases of water rights for irrigation,
water supply, fisheries, or industrial uses other than the
- While the Constitution is committed to the policy of development of water power, beneficial use may be the
social justice and the protection of the working class, it measure and limit of the grant.
should not be supposed that every labor dispute will be
automatically decided in favor of labor. Management
The State shall protect the nation’s marine wealth in its
also has its rights which are entitled to respect and
archipelagic waters, territorial sea, and exclusive
enforcement in the interest of simple fair play. Out of its
economic zone, and reserve its use and enjoyment
concern for the less privileged in life, the Court has
inclined, more often than not, toward the worker and exclusively to Filipino citizens.
upheld his cause in his conflicts with the employer. Such
favouritism however, has not blinded the court to the rule The Congress may, by law, allow small-scale utilization
that justice is in every case for the deserving, to be of natural resources by Filipino citizens, as well as
dispensed in the light of the established facts and the cooperative fish farming, with priority to subsistence
applicable law and doctrine. (jurisprudence) fishermen and fishworkers in rivers, lakes, bays, and
lagoons.
- The policy of social justice is not intended to
countenance wrongdoing simply because it is committed The President may enter into agreements with foreign-
by the underprivileged. At best it may mitigate the owned corporations involving either technical or financial
penalty but certainly will not condone the offense. assistance for large-scale exploration, development, and
Compassion for the poor is an imperative of every utilization of minerals, petroleum, and other mineral oils
humane society but only when the recipient is not a according to the general terms and conditions provided
rascal claiming an underserved privilege. xxx Those who by law, based on real contributions to the economic
invoke social justice may do so if their hands are clean growth and general welfare of the country. In such
and their motives blameless and not simply because agreements, the State shall promote the development
they happen to be poor… (jurisprudence) and use of local scientific and technical resources.

- In the absence of an express or implied prohibition The President shall notify the Congress of every contract
against it, collection of both retirement benefits and entered into in accordance with this provision, within
separation pay upon severance from employment is thirty days from its execution.
allowed. This is grounded on the social justice policy that
should always be resolved in favor of labor rights. - All lands of the public domain and all natural resources
(Jurisprudence) – waters, mineral, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or
- xxx Stated otherwise, while the Court fully recognizes timber, wildlife, flora and fauna, and other natural
the special protection which the Constitution, Labor laws, resources – are owned by the State.
and social legislation accord the workingman, the Court
cannot, however, alter or amend the law on prescription The Constitution provides that in the exploration,
to relieve petitioners of the consequences of their development and utilization of these natural resources,
inaction. – Laws come to the assistance of the vigilant the state exercises full control and supervision, and may
not of the sleeping. (jurisprudence) undertake the same in four (4) modes:

SECTION 19. The State shall develop a self-reliant 1. The state may directly undertake such activities;
and independent national economy effectively
controlled by Filipinos. 2. The state may enter into co-production, joint venture
or production-sharing agreements with Filipino citizens
- Note the preamble provides for the conservation and or qualified corporations;
development of our patrimony.
3. Congress may, by law, allow small-scale utilization of
- Class discussion: This is an economic provision. natural resources by Filipino citizens;

Art. XII. SECTION 2.- All lands of the public domain, 4. For the large-scale exploration, development and
waters, minerals, coal, petroleum, and other mineral oils, utilization of minerals, petroleum and other miniral oils,
all forces of potential energy, fisheries, forests or timber, the president may enter into agreements with foreign-
wildlife, flora and fauna, and other natural resources are owned corporation involving technical or financial

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assistance. (Cruz vs. Secretary of Environmen and 1. That the foreign investors provide practically all the
Natural Resources J. Puno, Separate Opinion) funds for the joint investment undertaken by these
Filipino businessmen and their foreign partner;
Requisites of a service contract:
2. That the foreign investors undertake to provide
(In la Bugal case) Such service contracts may be practically all the technological support for the joint
entered into only with respect to minerals, petroleum and ventures;
other mineral oils. The grant thereof is subject to the
several safeguards among which are these 3. That the foreign investors, while being minority
requirements: stockholders, manage the company and prepare all
economic viability studies. Narra Nickel Mining and
1. The service contract shall be crafted in accordance Development, Corp. vs. Redmond Consolidated Mines
with a general law that will set standard or uniform Corp)
terms, conditions and requirements, presumably to attain
a certain uniformity in provisions and avoid the possible - In Narra Nickel Mining and Development, Corp. vs.
insertion of terms disadvantageous to the country. Redmond Consolidated Mines, the court held that the
“control test” is the prevailing mode of determining
2. The president shall be the signatory for the whether or not a corporation is Filipino. Under the
government because, supposedly before an agreement “control test,” shares belonging to corporations or
is presented to the president for signature, it will have partnerships at least 60% of the capital of which is
been vetted several times over at different levels to owned by Filipino citizens shall be considered as
ensure that it conforms to law and can withstand public Philippine nationality.
scrutiny.
It is only when based on the attendant facts and
3. Within thirty (30) days of the executive agreement, the circumstances of the case, there is, in the mind of the
President shall report it to Congres to give that court, doubt in the 60-40 Filipino-equity ownership in the
branch of government an opportunity to look over the corporation, that it may apply the “grandfather rule.” xxx.
agreement and interpose timely objections, if any. Applying the control test, 60% of SMTC’s 226,000,000
shares, that is 135,6000,000 shares, must be Filipino-
- Adhering to the aforementioned guidelines, this Court owned. From the above-table, it is clear that SMTC
finds that SC-46 is indeed null and void for non- reached this threshold amount to qualifiy as a Filipino-
owned corporation. (jurisprudence)
compliance with the requirements of the 1987
Constitution. (Resident Marine Mammals Case)
Art. XII. SECTION 11. No franchise, certificate, or any
- As this Court has held in La Bugal, our Constitution other form of authorization for the operation of a public
requires that the President himself be the signatory of utility shall be granted except to citizens of the
Philippines or to corporations or associations organized
service agreements with foreign-owned corporations
under the laws of the Philippines at least sixty per
involving the exploration, development, and utilization of
centum of whose capital is owned by such citizens, nor
our minerals, petroleum and other miniral oils. This
shall such franchise, certificate, or authorization be
power cannot be taken lightly. (Resident Marine
Mammals Case) exclusive in character or for a longer period than fifty
years.
- As explained in the April 21, 2012 Decision, the “doubt”
Neither shall any such franchise or right be granted
that demands the application of the grandfather rule in
addition to or in tandem with the control test is not except under the condition that it shall be subject to
confined to, or in tandem with the control test is not amendment, alteration, or repeal by the Congress when
the common good so requires.
confined to, or more bluntly, does not refer to the fact
that the apparent Filipino ownership of the corporation’s
equity falls below the 60% threshold. The State shall encourage equity participation in public
utilities by the general public. The participation of foreign
Rather, “doubt” refers to various indicia that the investors in the governing body of any public utility
enterprise shall be limited to their proportionate share in
beneficial ownership and control of the corporation do
its capital, and all the executive and managing officers of
not in fact reside in Filipino shareholders but in foreign
such corporation or association must be citizens of the
stakeholders. As provided in DOJ Opinion No. 165,
Philippines.
Series of 1984, which applied the pertinent provisions of
the Anti-Dummy Law in relation to the minimum Filipino
equity requirement in the Constitution, significant - The term “capital” in Section 11, Art. XII of the
indicators of the dummy status have been recognized in Constitution refers only to shares of stock entitled to vote
view of reports that some Filipino investors or in the election of directors and thus in the present case
businessmen are being utilized or are allowing only to common shares, and not to the total outstanding
themselves to be used as dummies by foreign investors capital stock comprising both common and non-voting
specifically joint ventures for national resource preferred shares. (jurisprudence)
exploitation. These indicators are:
- The term “capital” in Sec.11 of Art. XII of the 1987
Constitution refers to shares with voting rights, as well as
with full beneficial ownership. This is precisely because

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the right to vote in the election of directors, coupled with Section 215. Abatement of Dangerous Buildings. –
full beneficial ownership of stocks, translates to effective When any building or structure is found or declared to be
control of a corporation. Any other construction of the dangerous or ruinous, the Building Official Shall order its
term capital in Section 11, Art. XII of the Constitution repair, vacation or demolition depending upon the
contravenes the letter and intent of the Constitution. degree of danger to life, health or safety. This is without
prejudice to further action that may be taken under the
- In Pal vs. Civil Aeronautics Board, This Court provisions of Art. 482 694 to 707 of the Civil Code of the
enunciated: Congress has granted certain administrative Philippines.
agencies the power to grant licenses for, or to authorize
the operation of certain public utilities... It is generally Procedure for abatement / demolition of dangerous /
recognized that a franchise may be derived indirectly ruinous buildings / structures
from the state through a duly designated agency, and to
this extent, the power to grant franchises has frequently 5. Procedure for demolition of buildings
been delegated, even to agencies other than those of a
legislative nature. In pursuance of this, it has been held
The following steps shall be observed in the
that privileges conferred by grant by local authorities as abatement/demolition of buildings under this rule:
agents for the state constitute as much a legislative
franchise as though the grant had been made by an act
of the Legislature. It is thus clear that Congress does not 5.1 There must be a finding or declaration by the
have the sole authority to grant franchises for the Building official that the building/structure is a nuisance,
operation of public utilities. (jurisprudence) ruinous or dangerous.

(Note Section 19 of Art. II and Sections 10,11 and 12 of 5.2 Written notice or advice shall be given upon the
Art. XII can be considered as the “Filipino First” owner and occupant/s of such finding or declaration,
provisions under the Constitution) giving him at least 15 days within which to vacate or
cause to be vacated, repaired, renovated, demolished
and removed as the case may be, the nuisance, ruinous
SECTION 20. The State recognizes the indispensable
or dangerous building/structure or any part or portion
role of the private sector, encourages private
thereof.
enterprise, and provides incentives to needed
investments.
5.3 Within the fifteen-day (15) period, the owner may, if
he so desires, appeal to the Secretary the finding or
SECTION 21. The State shall promote
declaration of the Building Official and ask that a re-
comprehensive rural development and agrarian
inspection or re-investigation of the building/structure
reform.
be made.

(see page 210-215 for other related provisions and As a final note, the Court exhorts that absent compliance
cases)
with the laws allowing for summary eviction, respondents
cannot resort to the procedural shortcut of ousting
Art. XIII SECTION 4. The State shall, by law, undertake petitioners by the simple expedient of a summary
an agrarian reform program founded on the right of demolition order from the Office of the City Mayor. They
farmers and regular farmworkers, who are landless, to have to undergo the appropriate proceeding as set out in
own directly or collectively the lands they till or, in the the NBCP and its IRR or avail of the proper judicial
case of other farmworkers, to receive a just share of the process to recover the subject property from petitioners.
fruits thereof. To this end, the State shall encourage and In pursuing said recourse, it would also not be amiss for
undertake the just distribution of all agricultural lands, the parties to await the final resolution of any pending
subject to such priorities and reasonable retention limits case involving the subject property between petitioners
as the Congress may prescribe, taking into account and Ernesto, before the appropriate government
ecological, developmental, or equity considerations, and agencies, in order to avoid any further complication on
subject to the payment of just compensation. In the matter. (jurisprudence)
determining retention limits, the State shall respect the
right of small landowners. The State shall further provide SECTION 22. The State recognizes and promotes the
incentives for voluntary land-sharing. rights of indigenous cultural communities within the
framework of national unity and development.
- The right of retention is constitutionally guaranteed
right, which is subject to qualification by the legislature. It
(see page 215-216 for other related constitutional
serves to mitigate the effects of compulsory land provisions)
acquisition by balancing the rights of the landowner and
the tenant and by implementing the doctrine that social
justice was not meant to perpetuate an injustice against - Art. II, Section 22 of the Constitution must also be
the landowner. (jurisprudence) amended if the scheme envisioned in the MOA-AD is to
be effected. xxx. An associative arrangement does
not uphold national unity. While there may be a
- …it bears noting that it is the Building Official, and not
semblance of unity because of the associative ties
the City Mayor, who has the authority to order the
between the BJE and the national government, the act of
demolition of the structures under the NBCP (National
placing a portion of Philippine territory in a status which,
Building Code of the Philippines). international practice, has generally been a preparation

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for independence, is certainly not conducive to national Art. XVI. SECTION 11. (1) The ownership and
unity. (Province of Cotabato) management of mass media shall be limited to citizens
of the Philippines, or to corporations, cooperatives or
(Note: an association is formed when two states of associations, wholly-owned and managed by such
unequal power establish durable links. One state, the citizens.
associate, delegates certain powers to the other, the
principal, while maintaining its international status as a The Congress shall regulate or prohibit monopolies in
state. The associated state arrangement is a transitional commercial mass media when the public interest so
device of former colonies on their way to full requires. No combinations in restraint of trade or unfair
independence; it implies the recognition of the competition therein shall be allowed.
associated entity as a state.)
Art. XVI. SECTION 10. The State shall provide the policy
- Thus, ancestral lands and ancestral domains are environment for the full development of Filipino capability
not part of the lands of the public domain. They are and the emergence of communication structures suitable
private and belong to the ICCs/IPs. Section 3 of Art. XII to the needs and aspirations of the nation and the
on the national economy and patrimony of the 1987 balanced flow of information into, out of, and across the
constitution classifies lands of the public domain into four country, in accordance with a policy that respects the
categories: freedom of speech and of the press.

a) agricultural, b) forest or timber, c) mineral lands, and - The imposition of the must-carry rule is within the
d)national parks. NTC’s power to promulgate rules and regulation, as
public safety and interest may require, to encourage a
Section 5 of the same art XII mentions ancestral lands larger and more effective use of communications, radio
and ancestral domains but it does not classify them and television broadcasting facilities, and to maintain
under any of the said four categories. To classify them effective competition among private entities in these
as public lands under any one of the four classes will activities whenever the commission finds it reasonably
render the entire IPRA law a nullity… (Cruz vs. feasible. Further, as correctly observed by the CA, the
Secretary of Environment and Natural Resources) must-carry rule as well as the legislative franchises
granted to both ABS-CBN and PMDI are in consonance
with state policies enshrined in the Constitution,
- Indigenous peoples situated within states do not have a
general right to independence or secession from those specifically Section 9 (just and dynamic social order), 17
states under international law, but they do have rights (science and technology), and 24 (vital role of
communication in nation-building) of art. II on the
amounting to what was discussed above as the right to
Declarations of Principles and State Policies.
internal self-determination.
(jurisprudence)
- The declaration clearly recognized the right of
SECTION 25. The State shall ensure the autonomy of
indigenous people to self-determination, encompassing
local governments.
the right to autonomy or self-government, in matters
relating to their internal and local affairs, and to maintain
and strengthen their distinct political, legal, economic, Relate to Art. X on Local Government.
social and cultural institutions, while retaining their right
to participate fully if they so choose, in the political, SECTION 26. The State shall guarantee equal access
economic,, social and cultural life of the state. to opportunities for public service, and prohibit
political dynasties as may be defined by law.
- Self-government, as used in international legal
discourse pertaining to indigenous people, has been - Sec. 26 (of art. II) is not self-executing due to the
understood as equivalent to “internal self-determination.” qualifying phrase “as may be defined by law.”… since
there appears to be no standing law which crystalizes
SECTION 23. The State shall encourage non- the policy on political dynasties for enforcement, the
governmental, community-based, or sectoral courts must defer from ruling on this issue. (Belgica vs.
organizations that promote the welfare of the nation. Executive Secretary)

Relate to Art. III, Section 8 which provides that “the right SECTION 27. The State shall maintain honesty and
of the people, including those employed in the public and integrity in the public service and take positive and
private sectors, to form unions, associations and effective measures against graft and corruption.
societies for purposes not contrary to law shall not be
abridged.” Relate to art. XI on accountability of public officers.

This provision is among the reasons why our state is Note the various laws against graft and corruption, e.g.
now considered as democratic. R.A. 3019 or the Anti-Graft and Corrupt Practices Act,
and R.A. 7080, the Anti-Plunder Law.
(see page 218 for other related constitutional provisions)
SECTION 28. Subject to reasonable conditions
SECTION 24. The State recognizes the vital role of prescribed by law, the State adopts and implements
communication and information in nation-building. a policy of full public disclosure of all its
transactions involving public interest.

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Philippians 4:13 I can do all things through Christ[a] who strengthens me.
Gelo Notes Political Law Reviewer

Art. III SECTION 7. The right of the people to information involving public interest, but any matter contained in
on matters of public concern shall be recognized. official communications and public documents of the
Access to official records, and to documents, and papers government agency.
pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for Such relief must be granted to the party requesting
policy development, shall be afforded the citizen, subject access to official records, documents and papers
to such limitations as may be provided by law. relating to official acts, transactions and decisions that
are relevant to a government contract. (jurisprudence)
Art. XII SECTION 21. Foreign loans may only be
incurred in accordance with law and the regulation of the
monetary authority. Information on foreign loans
obtained or guaranteed by the Government shall be
made available to the public.

- Intended as a “splendid symmetry” to the right to


information under the bill of rights is the policy of
public disclosure under Sec. 28, Art. II of the
Constitution. The policy complements the right of access
to information on matters of public concern found in the
bill of rights.

The right to information guarantees the right of the


people to demand information, while Sec. 28 recognizes
the duty of officialdom to give information even when if
nobody demands. (Province of Cotabato)

- Indubitably, the effectivity of the policy of public


disclosure need not await the passing of a statute.
xxx. Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting
such policy. (Province of Cotabato)

- The foregoing constitutional provisions seek to promote


transparency in policy-making and in the operations of
the government, as well as provide the people sufficient
information to exercise effectively other constitutional
rights. They are also essential to hold public officials “at
all times xxx accountable to the people” for unless
citizens have the proper information, they cannot hold
public officials accountable for anything. Armed with the
right to information, citizens can participate in the public
discussions leading to the formulation of government
policies and their effective implementation. An informed
citizenry is essential to the existence and proper
functioning of any democracy. (jurisprudence)

- Accordingly, it has been held that, pursuant to these


constitutional provisions, the Commission on Elections
may be compelled to explain fully its preparations for an
election, and to disclose or publish the names of the
nominees of the various party-list groups named in the
petitions, notwithstanding a statutory prohibition
requiring it not to show the names of party-lists in its
certified lists. (jurisprudence)

- Unlike the disclosure of information which is mandatory


under the constitution, the other aspect of the people’s
right to know requires a demand or request for one to
gain access to documents and paper of the particular
agency.

Moreover, the duty to disclose covers only transactions


involving public interest,

while the duty to allow access has a broader scope of


information which embraces not only transactions

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Philippians 4:13 I can do all things through Christ[a] who strengthens me.