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CONSTI

1 – ATTY. BRETCH NOTES


I. GENERAL CONSIDERATIONS ▪ THE CENTRAL PURPOSE OF CONSTITUTIONALISM: In determining whether the Lambino proposal involves an amendment or a
The central purpose of constitutionalism is to limit governmental power – to check revision, the Court considered the two-part test. First, the quantitative test asks
Political Law, Defined and restrain the persons who hold public office and exercise political authority. whether the proposed change is so extensive in its provisions as to change directly the
- That branch of public law which deals with the organization and operations of the ▪ That is why, it has been said, that a constitution is not actually the “source” of “substance entirety” of the Constitution by the deletion or alteration of numerous
governmental organs of the State and defines the relations of the State with the governmental powers, but is in fact the “limitation” to these powers, which would provisions. The court examines only the number of provisions affected and does not
inhabitants of its territory. otherwise be unlimited. consider the degree of the change. Second, the qualitative test, which inquires into the
▪ Public Law – deals with the matters affecting the State, its agencies and protection ▪ Classifications of Constitutions: qualitative effects of the proposed change in the Constitution. The main inquiry is
of state interests. Kinds: political law, criminal law, public international law - Codified (Written) vs. Uncodified (Unwritten) whether the change will “accomplish such far-reaching changes in the nature of our
▪ Private Law – deals with the regulation of the conduct of private individuals with one - Conventional vs. Cumulative basic governmental plan as to amount to a revision”.
another. Kinds: civil law, commercial law - Rigid vs. Flexible The Lambino proposal constituted a revision, not simply an amendment, of the
Branches of Political Law ▪ Essential Qualities of Good Written Constitution: Constitution, because it involved a change in the form of government, from presidential
▪ Consti 1 (powers and structure of Philippine government), Consti 2 (inherent powers - Broad, Brief, and Definite to parliamentary, and a shift from the present bicameral to a a unicameral legislature
of the state and the bill of rights), public corporation, administrative law, law of public The Constitution and the Court
▪ Essential Parts of a Good Written Constitution:
officers, and election laws - Constitution of Government ▪ Judicial Power
- Constitution of Liberty - Sec. 1, Article VIII, 1987 Constitution
Constitutional Law, Defined - Constitution of Sovereignty A. Judicial Power Proper – to settle controversies/disputes between parties involving
▪ Refers to set of laws embodied in the constitution and the principles growing out of Constitutional Interpretation demandable legal rights through the application of law (statute or constitution). (Here,
the interpretation of the provisions. there is no judgment on the validity of governmental acts)
▪ What is meant by “interpretation” vs. “construction”?
▪ In sum: constitutional law = constitution + jurisprudence B. Judicial Review – Ordinary Judicial Review (Constitutional Review)
▪ In general: Textualism, Orginalism (Original Intent Theory & Original Understanding
Constitution, Defined a. Ordinary Judicial Review (Constitutional Review)
Theory), Holistic Political & Moral Right Theory (Dworkinian), Critical Theory
- A body of rules and maxims in accordance with which powers of sovereignty are b. Expanded Judicial Review (Extraordinary Certiorari Jurisdiction)
▪ In Philippine Constitutionalism: Verba Legis; Ratio legis est anima; Ut magis valeat
habitually exercised. quam pereat Ordinary Judicial Review
▪ “in accordance with which”: powers are established (by prescribing framework), ▪ Presumption in Constitutional Interpretation: It involves determination of constitutionality of a governmental act (whether or not an
limited (by assigning the powers), and defined (by establishing fixed principles). 1. Constitution is Self-Executing (otherwise, it will be dependent on legislature’s act of a governmental branch violates the constitution)
Sample Problem 1 whims and caprices) - if legislative act: constitutionality
During the interregnum from February 26, 1986 (the day Corazon C. Aquino took her 2. Constitution is Mandatory (otherwise, no one is compelled to observe it) - if executive act: legality and constitutionality
oath as President) to March 24, 1986 (immediately before the adoption of the Freedom 3. Constitution is Prospective (otherwise, vested rights will be prejudiced)
Constitution), some members of the Police Force effected search and seizure operations ▪ In Madison vs. Marbury case, the US Supreme Court declared that “judicial review is
inherent in judicial power in a system of separation of powers and checks and
without warrant against a businessman. It was found out that the searches and seizures Methods and Stages of Changing the Constitution:
were even conducted without probable cause. When the businessman invoked his balances” because it is through judicial review that the judiciary is able to check the
A. Proposal Stage acts of the other departments of the government.
constitutional right against unreasonable search and seizure, the Police argued that 1. Congress (acting as Con Ass)
there was no constitution operating at the time they conducted the search, and ▪ But, while it is inherent, American constitutionalism only gives the Supreme Court
2. Constitutional Convention (Con-Con)
therefore, no constitutional right can be invoked. The businessman also argued that if ordinary judicial review power, and that is only to determine legality or
3. People’s Initiative (for amendment only)
that is the case, then the police could not have also validly conducted a search as no constitutionality of governmental acts.
B. Ratification Stage
constitution also authorized the exercise of such power. Who is correct? ▪ In the Philippine Constitutionalism, we “expanded” the power to include
- plebiscite
“determination of existence of grave abuse of discretion.”

Supremacy of the Constitution Expanded Judicial Review
People’s Inititiative
The Constitution is higher than and takes precedence over all other laws of the society, 1. There should be an enabling law on PI to amend the Constitution. ▪ “Certiorari jurisdiction/authority” means the power of a higher court to correct acts
or community. All other laws, to be valid and enforceable, must be in accord with the 2. The proposal must only be an “amendment” of lower courts (“to correct” means to nullify/set aside and to tell the lower court
higher and superior law of the Constitution. An official decision or action of any what is the correct act).
▪ ‘Revision’ involves change in “fundamental principle” in the constitution
governmental institution or office, to be upheld as constitutional, must be in harmony ▪ In Philippine Constitutionalism, we “expanded” the power to include “determination
▪ Tests: quantitative / qualitative
with the Constitution – the supreme law of the land. In short, the legislature, the of existence of grave abuse of discretion”, when ordinarily, discretionary acts are
Q: Did Lambino’s petition pass the two tests? What was Lambino’s theory about
executive, and the courts must follow the Constitution. beyond judicial scrutiny. According to Fr. Bernas, “we’ve cut already the umbilical
“amendment” and “revision”?
Thus, a constitution is supreme because: cord” with American constitutionalism.
Lambino v. Comelec, enumerates the distinctions between revision and
- it is higher than and takes precedence over all other laws and acts ▪ Hence, we now distinguish “pure political question” from “not pure political
amendment, as follows: Revision broadly implies a change that alters a basic principle
- supreme, imperious and absolute; no amount of nobility in one’s act can justify non- question”, and only the latter is subject to judicial review.
in the Constitution, like altering the principle of separation of powers or the system of
compliance of the constitution How is Juridical Review exercised? (Sec. 4(2), Art. VIII, 1987 Constitution)
checks and balances. There is also revision if the change alters the substantial entirety
- prescribes framework, assigns power and establish fixed principles ▪ Supreme Court en banc; majority of the Members who actually took part in the
of the Constitution. On the other hand, amendment broadly refers to a change that
- deemed written into every law and every contract deliberations on the issues in the case and voted thereon: so, majority of 15 is 8, and
adds, reduces, deletes, without altering the basic principle involved. Revision generally
majority of 8 is 5. So, 5 justices can exercise judicial review.
affects several provisions of the Constitution; while amendment generally affects only
Constitutionalism Who may exercise Judicial Review? (Secs. 1, 4(2) & 5(2)(A), Art VIII, 1987 Constitution)
the specific provision being amended.

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CONSTI 1 – ATTY. BRETCH NOTES
▪ Supreme Court and the RTCs can exercise judicial review. Reasons: (1) RTC has speech, gender, or race as well as other fundamental rights as expansion from its D. The decision on the constitutional question must be determinative of the case itself
“general jurisdiction” (incapable of pecuniary estimation cases) which then includes earlier applications to equal protection. (the constitutional question must be the very lis mota)
constitutionality cases, and (2) SC exercises appellate review powers on decisions of ❖ Void for Vagueness Rule – a statute or act may be said to be vague when it lacks
trial courts involving constitutionality issues. (Mirasol vs. CA) comprehensible standards that men of common intelligence must necessarily
Functions of Judicial Review guess at its meaning and differ in its application. II. THE PHILIPPINES AS A STATE
▪ Checking – declaring an illegal or unconstitutional act null and void. ▪ The doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
▪ Legitimating – affirming an act as legitimate and valid. developed for testing “on their faces” statutes in free speech cases. However, these The Law of the Sea
▪ Symbolic – to educate the bench and the bar, when the issue is capable of repetition, are not applicable in facial challenges of penal statutes. For the latter laws, challenges ▪ Governed by the 1982 UNCLOS III (UNCLOS I – 1958; UNCLOS II – 1960)
yet evading review must be “as applied” to petitioner. (Estrada vs. Sandiganbayan) ▪ Basic Zones: (1) Internal Waters, (2) Territorial Sea, (3) Contiguous Zone, (4) Exclusive
Requisites of Judicial Review ▪ Distinguished from an as-applied challenge which considers only extant facts Economic Zone, and (5) High Seas
A. Actual Case or Controversy; Ripeness of Controversy affecting real litigants, a facial invalidation is an examination of the entire law, ▪ Baseline (Low-water mark Method vs. Straight Baseline Method)
▪ “ACTUAL CASE”: pinpointing its flaws and defects, not only on the basis of its actual operation to the Measurements of Zones of Sea
❖ not hypothetical, not abstract parties, but also on the assumption or prediction that its very existence may cause Competences in Zones of the Sea
❖ There is real contrariety of legal rights others not before the court to refrain from constitutionally protected speech or Internal Waters
activities. (Southern Hemisphere vs. Anti-Terrorism Council) ▪ Include ports, harbors, rivers, lakes and canals
❖ Controversy is neither “premature” (no case yet) nor “moot and academic” (no
▪ The coastal state can prohibit entry into its internal waters by foreign ships, except
more case)
B. Legal Standing (Locus Standi) for ships in distress
▪ “RIPENESS OF CONTROVERSY”
▪ “REAL PARTY-IN-INTEREST” VS. LOCUS STANDI (Kilosbayan vs. Morato; Southern ▪ When already within internal water, different legal questions arise depending on the
❖ “The challenged act has a direct adverse effect on the person challenging it” and
Hemisphere vs. Anti-Terrorism Council) kind of vessel that is within the internal water: merchant ships, warships, other
“something had by then been accomplished or performed by either of the other
❖ The question as to “real party-in-interest” is whether he is “the party who would foreign non-commercial ships.
branches of the government”. But, the fact that law or act in question is not yet
be benefited or injured by the judgment, or the “party entitled to the avails of the
effective does not negate ripeness, because “even a singular violation of the
suit.” (Salonga v. Warner Barnes & Co., Ltd.) [applicable in private litigation cases] Territorial Sea
Constitution and/or the law is enough to awaken judicial duty”
❖ The question in “standing” is whether such parties have “alleged such a personal ▪ Not exceeding 12 nm from the baseline
❖ vs. “Declaratory Relief” (petition for judicial construction of rights under contract,
stake in the outcome of the controversy as to assure that concrete adverseness ▪ Baselines: (1) Normal Baseline (Low-Water Mark Method), and (2) Straight Baseline
deed, ordinance, etc. while there is no violation yet, there is imminent danger of
which sharpens the presentation of issues upon which the court so largely Method
litigation, hence, still ripe for judicial determination)
depends for illumination of difficult constitutional questions.” (Baker v. Carr) ▪ Limitation: “Right of Innocent Passage” by foreign ships. It is innocent if not

[applicable in “public interest cases”] prejudicial to the peace, good order or security of the coastal state. Fishing vessels
Sample Problem 2
A law is passed “prohibiting the use of mobile phones or any communication device while ▪ “DIRECT AND PERSONAL INTEREST” must comply with local laws and submarines must navigate on the surface and show
on board a vehicle.” The law imposes the penalty of “one (1) month imprisonment or a ❖ “Legal standing” or locus standi has been defined as a personal and substantial their flag.
fine of 10,000.00 at the discretion of the court.” The law requires the Department of interest in the case such that the party has sustained or will sustain direct injury ▪ SOVEREIGNTY, subject to the LAW OF THE SEA CONVENTION (Art. 2)
Transportation and Communication (DOTC) Secretary to implement the statute. as a result of the governmental act that is being challenged. (IBP vs. Zamora, 1. The sovereignty of a coastal State extends beyond its land territory and internal
However, even before the DOTC could issue the Implementing Rules, some Southern Hemisphere case) waters and, in the case of an archipelagic State, its archipelagic waters, to an
telecommunication companies and manufacturers of mobile phones in the country filed ❖ The “interest” must not be “general”, i.e. shared with the rest of the members of adjacent belt of sea, described as the territorial sea.
a petition in the Supreme Court challenging the constitutionality of the law. Will it the community. 2. This sovereignty extends to the air space over the territorial sea as well as to its
prosper or not? Why or why not? ❖ “Direct Injury Test” – petitioner must show that he has sustained a direct injury as bed and subsoil.
▪ EXCEPTIONS TO “MOOT AND ACADEMIC RULE” a result of that action, and it is not sufficient that he has a general interest 3. The sovereignty over the territorial sea is exercised subject to this Convention and
❖ Courts are not prevented from deciding cases, otherwise moot and academic, if: common to all members of the public. to other rules of international law.
1. there is a grave violation of the Constitution; ▪ REQUIREMENTS FOR TAXPAYERS, CITIZENS, VOTERS, AND LAWMAKERS SUIT ▪ RIGHTS OF SHIPS – INNOCENT PASSAGE (Arts 17-18)
2. the situation is of exceptional character and of paramount public interest; ❖ cases involve constitutional issues; ❖ Art. 17: Subject to this Convention, ships of all States enjoy the right of innocent
3. the constitutional issue raised requires formulation of controlling principles ❖ for taxpayers, there must be a claim of illegal disbursement of public funds passage through the territorial sea
to guide the bench, the bar and the public; and (appropriated by Congress) or that the tax measure is unconstitutional; ❖ Art. 18:
4. the case is capable of repetition yet evading review. ❖ for voters, there must be a showing of obvious interest in the validity of the 1. Passage means navigation through the territorial sea for the purpose of:
▪ APPLICABILITY OF “FACIAL CHALLENGE” election law in question; a. Traversing that sea without entering internal waters or calling at a roadstead
❖ Overbreadth Doctrine – a governmental purpose may not be achieved by means ❖ for concerned citizens, there must be a showing that the issues raised are of or port facility outside internal waters; or
which sweep unnecessarily broadly and thereby invade the area of protected transcendental importance which must be settled early; and b. Proceeding to or from internal waters or a call at such roadstead or port
freedoms. ❖ for legislators, there must be a claim that the official action complained of facility.
❖ Doctrine of Strict Scrutiny – refers to the standard for determining the quality and infringes their prerogatives as legislators. 2. Passage shall be continuous and expeditious. However, passage includes
the amount of State interest brought to justify the regulation of fundamental stopping and anchoring, but only in so far as the same are incidental to ordinary
freedoms. It is used to test the validity of laws dealing with the regulation of C. The constitutional question must be raised at the earliest possible opportunity navigation or are rendered necessary by force majeure or distress or for the
purpose of rendering assistance to persons, ships or aircraft in danger or
distress.

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CONSTI 1 – ATTY. BRETCH NOTES
▪ MEANING OF INNOCENT PASSAGE (Art. 19) effective occupation. Island of Palmas Case (Netherlands vs. US, Arbitrator Max filed with the Civil Registry accompanied by oath of allegiance to the Constitution
❖ Passage is innocent so long as it is not prejudicial to the peace, good order or Huber of PCIJ, 1928) and Government)
security of the coastal State. Such passage shall take place in conformity with this “Government” ▪ The 1973 Constitution took effect on January 17, 1973 which makes “jus sanguinis”
Convention and with other rules of international law. ▪ “Effective Control Test”: sovereignty, not legitimacy, required; mere existence of fully applicable (to either father or mother). It also recognized as natural-born those
❖ Passage of a foreign ship shall be considered to be prejudicial to the peace, good government is not sufficient; who elected Philippine citizenship under the 1935 Constitution.
order or security of the coastal State if in the territorial sea, it engages in any of the ▪ Kinds of Control: Internal and External ▪ The 1987 Constitution took effect on February 2, 1987, adopting the same provisions
following activities: ▪ The case of Palestine (“State of Palestine” as declared in 1988 by PLO) in the 1973 Constitution
- threat or use of force, weapon exercise, espionage, launching or landing of aircraft ▪ However, in case of temporary deprivation of effective control, the state does not ▪ Republic Act No. 9139 was enacted on June 8, 2001 which provides for
or other military device, violation of customs, fiscal, immigration or sanitary laws, cease to exist. (e.g. Congo, Rwanda and Somalia) “Administrative Naturalization” in certain cases
wilful and serious pollution, fishing, research or surveying activities, interfering “Capacity to enter into relations with other states” ▪ Republic Act No. 9225 (Citizenship Retention and Reacquisition Act of 2003) was
with communications or other facilities, or “any other activity not having a direct ▪ Article 3, Montevideo Convention: “The political existence of the State is enacted on Aug. 29, 2003.
bearing on passage” independent of recognition by the other States. Even before recognition, the
State has the right to defend its integrity and independence….” JUS SANGUINIS rule in the Philippines
Contiguous Zone ▪ “Limited Capacity” to enter into international relations does not prevent the ▪ 1935 Constitution (applicable to father only)
▪ 24 nm from the baseline existence of a State, like in the cases of “Protectorates”, “Trusteeships” and ▪ 1973 and 1987 Constitutions (applicable to father or mother)
▪ Coastal State is limited to Protective Jurisdiction only, that is, to prevent infringement “Associated States”. ▪ Applicable only in natural filiation, excluding filiation by adoption
of its customs, fiscal, immigration or sanitary regulations CITIZENSHIP ▪ In the past, the rule is that only legitimate children can acquire the citizenship of
Continental Shelf (Isobath Rule) ▪ “Citizen” vs. “Subject” vs. “National” legitimate father, so that illegitimate children follow the nationality of the mother
High Seas ▪ Modes of Acquiring Citizenship in general: who exercises parental authority over the child. However, the SC in Tecson vs.
▪ Beyond 200 nm from the baseline (1) Birth (jus soli or jus sanguinis) COMELEC said that this rule is applicable if such rule is beneficial to the child. Amici
▪ May be used freely by ships of all nations (inc land-locked states) (2) Naturalization (judicial, administrative, congressional) Curiae Fr, Bernas, Justice Mendoza, and Dean Magallona opined that even an
▪ “Freedom on the high seas” includes: freedom of navigation, freedom of fishing, (3) Marriage illegitimate child should follow the citizenship of his father.
freedom to lay submarine cables and pipelines and freedom to fly over the high seas. ▪ Modes of acquiring Philippine Citizenship: ▪ Concurrence of jus sanguinis and jus soli may result to either “dual citizenship” of
These freedoms are however subject to certain conventions and agreements. (1) Birth [jus soli between Apr. 11, 1899 to July 1, 1902; jus sanguinis beginning 1935 “stateless person”. In the latter case, his personal law is to be determined by domicile
Continental Shelf (General Measurements) Constitution (Filipino father only until 1973 Constitution)] (permanent residence) or, in its absence, residence (temporary residence), in
STATE (2) Naturalization (judicial, administrative (2001) and congressional) accordance with international law.
▪ Elements of “State”: (G-PET) Citizenship Laws and Important Dates Res Judicata in Citizenship
1. Permanent population ▪ Before Apr. 11, 1899 (Treaty of Paris), no “Citizens of the Philippines” (only Spanish ▪ In order that the doctrine of res judicata may be applied in cases of citizenship, the
2. Defined territory “Subjects”) following must be present: (Valles vs. COMELEC)
3. Government ▪ From Apr. 11, 1899 – July 1, 1902 (Philippines Bill of 1902), citizenship was governed 1. A person’s citizenship must be raised as a material issue in a controversy where
4. Capacity to enter into relations with other States by “jus soli” (as it was and still is the one followed in the United States) said person is a party;
(Art. 1, 1933 Montevideo Convention on the Rights and Duties of States) ▪ On July 1, 1902, the Philippine Bill of 1902 defines “Citizens of the Philippines” as 2. The Solicitor General or his authorized representative took active part in the
“Permanent Population” those who were: resolution thereof; and
▪ How many people are required? 1. Spanish subjects (native or otherwise) on Apr. 11, 1899 (including their children 3. The finding on citizenship is affirmed by the SC.
(Liechtenstein with 34,000 in 1990 and Nauru with 14,000 people in 1999, became born thereafter), Citizens of the Philippines
UN Members of Vatican City has about less than 500 citizens and about 800 2. who remain inhabitants of the Philippines, and ▪ Kinds:
residents. Other mini states are Micronesia, Tonga, San Marino, Palau, and Monaco) 3. did not become citizens of another state. [excluding those who declared to remain 1. Natural Born
Q: In case a new state is established, is new nationality conferred on the under Spain] 2. Naturalized (including “mass naturalization”) (Philippine Bill of 1902 and Jones
population? ▪ On Aug. 29, 1916, Jones Law of 1916 reiterated Philippine Bill of 1902 Law of 1916)
“Defined Territory” ▪ On March 22, 1920, Act No. 2927 (old Naturalization Law) was enacted 3. By Election (under 1935 Constitution)
▪ See again North Sea Continental Shelf Cases on whether definition of borders is a ▪ On May 14, 1935, the 1935 Constitution took effect which provided for “jus Citizens of the Philippines under the 1935 Constitution
requirement: ”sufficient consistency”, not “accurate definition”; sanguinis”. But only those born of Filipino fathers can be Filipinos by birth. Those (1) Those who are citizens of the Philippine Islands at the time of the adoption of this
▪ Extent of and jurisdiction over Territory: born of Filipino mothers and alien fathers had to elect Philippines citizenship upon Constitution;
1. Mode of Acquiring Territory reaching age of majority (meaning, these children were considered alien during their (2) Those born in the Philippine Islands of foreign parents who, before the adoption of
2. Law of the Sea (1982 UNCLOS or UNCLOS III) minority), but decisions of courts still applying jus soli in certain cases would have to this Constitution, had been elected to public office in the Philippine Islands;
3. Airspace be respected because of res judicata. (3) Those whose fathers are citizens of the Philippines;
4. Criminal Jurisdiction, etc.; Extradition (4) Those whose mothers are citizens of the Philippines and upon reaching the age of
▪ On June 17, 1939, C.A. No. 473 (new Naturalization Law) took effect
▪ “Territorial Sovereignty”: It refers to the right to exercise in a territory, to the majority, elect Philippine citizenship;
▪ On June 7, 1941, C.A. No. 625 was enacted providing for the manner of electing
exclusion of any other state, the functions of a state. It must be open and public. (5) Those who are naturalized in accordance with law.
Philippine citizenship as required by the 1935 Constitution (sworn statement to be
Discovery could only exist as an inchoate title, as a claim to establish sovereignty by

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CONSTI 1 – ATTY. BRETCH NOTES
▪ In par. (1), who were citizens of the Philippine Islands at the time of the adoption of ▪ Section 2 of the same article also further provided that: (Republic vs. Liyao)
the 1935 Constitution? “A female citizen of the Philippines who marries an alien retains her Philippine It is indisputable that a certificate of naturalization may be cancelled if it is subsequently
1. Those who were citizens (and their children) of the Philippines under the citizenship, unless by her act or omission she is deemed, under the law, to have discovered that the applicant therefor obtained it by misleading the court upon any
Philippine Bill of 1902 and Jones Law of 1916 (“En Masse Naturalization”) unless renounced her citizenship.” material fact. Law and jurisprudence even authorize the cancellation of a certificate of
they lost Philippine citizenship by November 15, 1935 (date of inauguration of Citizens of the Philippines under the 1987 Constitution naturalization upon grounds or conditions arising subsequent to the granting of the
the Commonwealth Government) (1) Those who are citizens of the Philippines at the time of adoption of this certificate. Moreover, a naturalization proceeding is not a judicial adversary proceeding,
2. Those who became naturalized under the old Naturalization Law (March 22, Constitution; the decision rendered therein not constituting res judicata as to any matter that would
1920, Act No. 2927) unless they lost Philippine citizenship on May 14, 1935. (2) Those whose fathers or mothers are citizens of the Philippines; support a judgment cancelling a certificate of naturalization on the ground of illegal or
▪ In par. (4), when must the mother be Filipino citizen: upon child’s birth, upon election (3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine fraudulent procurement thereof.
of Philippine citizenship by the child, or some other time? citizenship upon reaching the age of majority; and
Illustration: (4) Those who are naturalized in accordance with law. Finally, taking into account the fact that naturalization laws should be rigidly enforced
a. X (Filipina) married Y (German) in 1954 What is the citizenship of a Filipino Woman who married a foreigner? in favor of the Government and against the applicant, this Court has repeatedly
S was born to X and Y in 1958 ▪ Prior to 1973 Constitution: if she acquired her husband’s nationality, she lost maintained the view that where the applicant failed to meet the qualifications required
Could S have validly elected Philippine citizenship in 1980? Philippine citizenship otherwise, she remained a Filipino. for naturalization, the latter is not entitled to Filipino citizenship.
▪ Yes, becaue the mother was still a Filipina at the time of marriage. ▪ Under the 1973 Constitution: A Filipina who marries an alien shall retain her
b. X (Filipina) married Y (German) in 1954 Philippine citizenship, unless by her act of omission, she is deemed, under the law, More specifically, the Court has had occasion to state: “Admission to citizenship is one
X divorced Y in 1955 to have renounced her citizenship. (Art III, Sec. 2) of the highest privileges that the Republic of the Philippines can confer upon an alien.
X married Z (Argentinian) in 1957 ▪ Under the 1987 Constitution: Citizens of the Philippines who marry aliens shall retain It is a privilege that should not be conferred except upon persons fully qualified for it,
S was born to X and Z on 1958 their citizenship, unless by their act or omission, they are deemed, under the law, to and upon strict compliance with the law.” Philippine citizenship is a pearl of great price
Could S have validly elected Philippine citizenship in 1980? have renounced it. (Art. IV, Sec. 4) which should be cherished and not taken for granted. Once acquired, its sheen must be
▪ No, because the mother was a German citizen at the time of marriage. What is the citizenship of an alien woman who married a Filipino? burnished and not stained by any wrongdoing which could constitute ample ground for
How to “elect Philippine Citizenship”? divesting one of said citizenship. Hence, compliance with all the requirements of the law
▪ Before Mo Ya (Oct. 4, 1971) – if she had all the qualifications and none of the
must be proved to the satisfaction of the Court.
▪ The statutory (C.A. 625) formalities of electing Philippine citizenship are: (Ma v. disqualifications for Philippine Citizenship, she would become a Filipino, PROVIDED

Fernandez, Jr.) (SOR) that she is able to prove these facts in a proper proceeding.
Judicial Naturalization
1. A statement of election under oath; ▪ After Mo Ya – Under Sec. 15 of the C.A. 473 (Revised Naturalization Law), an alien
Qualifications:
2. An oath of allegiance to the Constitution and Government of the Philippines; woman marrying a Filipino, becomes ipso facto a Filipino, PROVIDED she is not
and ▪ Not less than 21 on the date of hearing of the petition
disqualified to be a Filipino citizen under C.A. 473.
3. Registration of the statement of election and of the oath with the nearest civil Naturalization ▪ Resided in the Philippines for 10 yrs (5 yrs in certain cases)
registry. Basic Principles: ▪ Of good moral character and believes in the principles of the constitution and must
When to “elect Philippine Citizenship”? ▪ Citizenship is not a right, it is only a privilege; Naturalization process involves public have conducted himself in a proper and irreproachable manner in his relation with
▪ “Elect Philippine Citizenship upon reaching the age of majority” means 3 yrs. (Gen. interest. government and with community
Rule) [exception in certain cases when delay is justifiable]. In the case of Ching, it took ▪ Conditions for naturalization are to be determined by Congress and the courts ▪ Must have owned real estate worth P5,000.00 or must have lucrative trade or
him 14 years before he elected Philippine citizenship, hence, not in compliance with cannot modify them. occupation
the law. His acts of “allegiance” did not vest him “Philippine Citizenship” which is a ▪ Only foreigners may be naturalized. ▪ Able to speak and write English or Spanish and any principal language
“privilege”. (Application of Ching, Bar Matter No. 914) ▪ Grant of naturalization may be revoked or cancelled. A final judgment of ▪ Must have enrolled his minor children of school age in schools teaching Philippine
▪ 3 year (but not inflexible) (Dy Cuenco vs. Sec. of Justice) naturalization can never truly become final. history or government.
▪ But, where “the election of citizensh ip has in fact been done and documented Administrative Naturalization (RA 9139)
▪ Naturalization demands allegiance to our constitutional laws, and government.
within the constitutional and statutory timeframe, the registration of the documents a. The applicant must be born in the Philippines and residing therein since birth;
▪ Naturalization is a proceeding in rem.
of election beyond the frame should be allowed if in the meanwhile, positive acts of b. The applicant must not be less than 18 yrs of age, at the time of filing;
(Republic vs. Dela Rosa [1994] )
citizenship have publicly, consistently, and continuously been done. The actual c. The applicant must be of good moral character and believes in the underlying
▪ A decision in a petition for naturalization becomes final only after 30 days from its principles of the Constitution, and must have conducted himself/herself in a proper
exercise of Philippine citizenship, for over half a century by the herein petitioners, is
promulgation and, insofar as the Solicitor General is concerned, that period is and irreproachable manner;
actual notice to the Philippine public which is equivalent to formal registration of the
counted from the date of his receipt of the copy of the decision. d. The applicant must have received his/her primary and secondary education in any
election of Philippine citizenship.” (Ma. V. Fernandez, Jr.)
▪ Sec. 1 of R.A. No. 530 provides that no decision granting citizenship in naturalization public school or private educational institution duly recognized by the Department
Citizens of the Philippines under the 1973 Constitution
proceedings shall be executory until after two years from its promulgation in order of Education, Culture and Sports, where Philippine history, government and civics are
(1) Those who are citizens of the Philippines at the time of the adoption of this
to be able to observe if: taught and prescribed as part of the school curriculum, and where enrolment is not
Constitution;
(1) the applicant has not left the country; limited any race or nationality: Provided that should he/she have minor children of
(2) Those whose fathers or mothers are citizens of the Philippines;
(2) the applicant has dedicated himself continuously a lawful calling or profession; school age, he/she must have enrolled them in similar schools;
(3) Those who elect Philippine citizenship pursuant to the provisions of the
(3) the applicant has not been convicted of any offense or violation of government e. The applicant must have a known trade, business, profession or lawful occupation;
Constitution of 1935;
promulgated rules; and f. The applicant must be able to read, write and speak Filipino or any of the dialects of
(4) Those who are naturalized in accordance with law;
(4) the applicant has not committed any act prejudicial to the interest of the country the Philippines; and

or contrary to government announced policies.
4 | Page| ALIANZA, K.D.
CONSTI 1 – ATTY. BRETCH NOTES
g. The applicant must have mingled with the Filipinos and evinced a sincere desire to Generally: - Those who are candidates for or are occupying public office in the country which
learn and embrace the customs, traditions and ideals of the Filipino people. The person desiring to reacquire Philippine citizenship would not even be required to they are naturalized and/or those in the active service of the armed forces of the
Status of Alien Wife and Minor Children – After the approval of the petition for file a petition in court, and all that he had to do was to take an oath of allegiance to the country which they are naturalized citizens.
administrative naturalization and cancellation of applicant’s alien certificate of RP and to register that fact with the civil registry in the place of his residence or where
registration, applicant’s alien lawful wife and minor children may file a petition for he had last resided in the Philippines. R.A. 9225 and Absentee Voting Law (R.A. 9189)
cancellation of their alien certificates of registration with the Committee subject to the Under RA 8171: As may be noted, there is no provision in the dual citizenship law – R.A. 9225 – requiring
payment of the filing fee of P20,000.00 and naturalization fee of P40,000.00 payable as “Sec. 2. Repatriation shall be effected by taking the necessary oath of allegiance to the “duals” to actually establish residence and physically stay in the Philippines first before
follows: P20,000.00 upon the approval of the petition and P20,000.00 upon the taking RP and registration in the proper civil registry and in the Bureau of Immigration. The they can exercise their right to vote. On the contrary, RA 9225, in implicit
of the oath of allegiance to the Republic of the Philippines. Bureau of Immigration shall thereupon cancel the pertinent alien certificate of acknowledgment that “duals” are most likely non-residents, grants under its Section
registration and issue the certificate of identification as Filipino citizen to the 5(1) the same right of suffrage as that granted an absentee voter under RA 9189. It
Section 12. Status of Alien Husband and Minor Children – if the applicant is a married repatriated citizen.” cannot be overemphasized that RA 9189 aims, in essence, to enfranchise as much as
woman, the approval of her petition for administrative naturalization will not benefit The law is clear that repatriation is effected “by taking the oath of allegiance to the RP possible all overseas Filipinos who, save for the residency requirements exacted of an
her alien husband, but her minor children may file a petition for cancellation of their and registration in the proper civil registry and in the Bureau of Immigration.” ordinary voter under ordinary conditions, are qualified to vote. (Nicolas-Lewis v.
alien certificates of registration with BI subject to the requirements of existing laws. Hence, in addition to taking the Oath of Allegiance to the RP, the registration of the COMELEC)
Certificate of Repatriation in the proper civil registry and the Bureau of Immigration is a
LOSS OF CITIZENSHIP prerequisite in effecting the repatriation of a citizen. (Altarejos vs. COMELEC) Dual Citizenship vs. Dual Allegiance
▪ Dual citizenship arises “when, as a result of the concurrent application of the
CA No. 63: Parenthetically, under these statutes [referring to RA Nos. 965 and 2630], the person different laws of two or more states, a person is simultaneously considered a national
1. By naturalization in a foreign country; desiring to reacquire Philippine citizenship would not even be required to file a petition by the said states.”
2. By express renunciation of citizenship; in court, and all that he had to do was to take an oath of allegiance to the RP and to ▪ Dual allegiance, on the other hand, “refers to the situation in which a person
3. By subscribing to an oath of allegiance to support the constitution or laws of a foreign register that fact with the civil registry in the place of his residence or where he had last simultaneously owes, by some positive act, loyalty to two or more states.”
country upon attaining 21 yrs of age or more (cf. Doctrine of Indelible Allegiance); resided in the Philippines. (Angat v. Republic) ▪ While dual citizenship is involuntary, dual allegiance is the result of an individual’s
4. By accepting commission in the military, naval or air service of a foreign country; Moreover, repatriation results in the recovery of the original nationality. This means that volition. (Mercado v. Manzano)
5. By cancellation of the certificate of naturalization; a naturalized Filipino who has lost his citizenship will be restored to his prior status as a Dual Allegiance and RA 9225
6. By having been declared by competent authority, a deserter of the Philippine armed naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen The fact that the application taking the oath recognizes and accepts the supreme
forces in time of war, unless subsequently, a plenary pardon or amnesty has been before he lost his Philippine citizenship, he will be restored to his former status as authority of the Philippines is an unmistakable and categorical affirmation of his
granted; and natural-born Filipino. (Bengson vs. HRET) undivided loyalty to the Republic.
7. In case of woman, upon her marriage to a foreigner if, by virtue of the laws in force But to remove all doubts on this important issue, we also hold that the repatriation of The legislature still has to enact the law on dual allegiance. In Secs. 2 and 3 of RA
in her husband’s country, she acquires his nationality. Frivaldo RETROACTED to the date of the filing of his application on Aug. 17, 1994. [even 9225, the framers were not concerned with dual citizenship per se, but with the status
(Coquilla vs. COMELEC) when he took an oath of allegiance only on June 30, 1995, the date of his assumption of naturalized citizens who maintain their allegiance to their countries of origin even
In Caasi v. CA, this Court ruled that immigration to the US by virtue of a “green card” into office.] (“Frivaldo Doctrine”) [Frivaldo vs. COMELEC] after their naturalization. Congress was given a mandate to draft a law that would set
which entitles one to reside permanently in that country, constitutes abandonment of RA No. 9225 specific parameters of what really constitutes dual allegiance. Until this is done, it would
domicile in the Philippines. With more reason then does naturalization on a foreign Reacquisition: be premature for the judicial department, including this Court, to rule on issues
country result in an abandonment of domicile in the Philippines. Sec. 3. Retention of Philippine Citizenship – any provision of law to the contrary pertaining to dual allegiance. (Calilung vs. Datumanong)
Hence, petitioner can only be held to have waived his status as an alien and as a non- notwithstanding, natural-born citizens by reason of their naturalization as citizens of a (Maquiling vs. COMELEC)
resident only on Nov. 10, 2000 upon taking his oath as a citizen of the Philippines under foreign country are hereby deemed to have re-acquired Philippine citizenship upon Arnado, by using his US passport after renouncing his American citizenship, has
RA No. 8171. He lacked the requisite residency to qualify him for the mayorship of Oras, taking the following oath of allegiance to the Republic: xxx recanted the same Oath of Renunciation he took. Section 40 (d) of the Local
Eastern Samar. Government Code applies to his situation. He is disqualified not only from holding the
Retention: public office but even from becoming a candidate.
MODES OF REACQUIRING CITIZENSHIP Natural-born citizens of the Philippines who, after the effectivity of this Act, become Arnado’s category of dual citizenship is that by which foreign citizenship is acquired
▪ Naturalization [CA No. 63 (vs. CA No. 473, naturalization law to “acquire” citizenship)] citizens of a foreign country shall retain their Philippine citizenship upon taking the through a positive act of applying for naturalization.
▪ Repatriation aforesaid oath. This is distinct from those considered dual citizens by virtue of birth, who are not
▪ Direct Act of Congress required by law to take the oath or renunciation as the mere filing of the certificate of
Repatriation Laws Sec. 4. Derivative Citizenship candidacy already carries with it an implied renunciation of foreign citizenship. Dual
▪ Sec. 4, CA No. 63 [desertion of Armed Forces] The unmarried child, whether legitimate, illegitimate or adopted, below 18 yrs of age, citizens by naturalization, on the other hand, are required to take not only the Oath of
of those who re-acquire Philippine citizenship upon effectivity of this Act shall be Allegiance to the RP but also to personally renounce foreign citizenship in order to
▪ Sec. 1, RA No. 965 (1953) [service in the Allied Forces during the WW II]
deemed citizens of the Philippines. qualify as a candidate for public office.
▪ Sec. 1, RA No. 2630 (1960) [service in the Armed Forces of the US at any given time]

▪ Sec. 1, RA No. 8171 (1995) [Marriage of a Filipina Woman to an alien] Sovereignty and State Immunity
▪ Sec. 1, RA No. 8171 (1995) [Losing Philippine citizenship for Political and Economic Sec. 5. Restoration of Civil and Political Rights
Reasons] ▪ Sovereignty comes from the Latin word “superanus” – supreme, great, highest for
- Civil and political rights are restored, but subject to certain conditions and additional that exactly what sovereignty means
How to Repatriate? requirements.
5 | Page| ALIANZA, K.D.
CONSTI 1 – ATTY. BRETCH NOTES
Kinds of Sovereignty 2. Theories/Jurisprudence: Article II, par. 8, Annex “B” of Service Contract 38 states that legal expenses, including
▪ Legal (the authority to issue commands) – refers to Congress, the agency that issues a. Positivist/Legal Theory “judgments obtained against the Parties or any of them on account of the Petroleum
command in the form of law vs. - A logical and practical ground that there can be no legal right as against the Operations”, can be recovered by Shell as part of operating expenses to be deducted
▪ Political (power behind the legal sovereign) – refers to people; we have given the authority that granted the right. from gross proceeds. This signifies that the State itself acknowledged the suability of
Congress to legislate b. Sociological Theory Shell. Since payment of claims and damages pursuant to a judgment against Shell can
▪ Internal (ability to command obedience without foreign assistance) vs. - If it can be sued by just anyone, it would be spending time and resources which be deducted from gross proceeds, the State will not be required to perform any
▪ External (ability to independently conduct foreign relations) – not unless the could compromise the delivery of services to the people. Your interest as an additional affirmative act to satisfy such a judgment.
assistance is offered or institutionalized under a treaty in which case there is a individual may be subordinated by the interest of the many. If you permit suits
submission to a foreign state’s authority to conduct foreign relations but with the against the State, everyone will accordingly sue the State for every complaint, Is a suit against public official, one against the State?
consent of the state concerned (North Cotabato vs. Govt of Phil) even how petty it is. - not automatically a suit against the State. Distinguish from: a suit against a public
c. Equality among States (Westphalian concept of sovereignty) official (1) in his official capacity or (2) in his personal capacity.
- Doctrine of non-suability of state is applicable to cases filed before the Phil court The doctrine of state immunity from suit applies to complaints filed against public
▪ Doctrine of Self Auto-Limitation: power of a State to limit the exercise of its own
as against the Phils, as well as against foreign states. officials for acts done in the performance of their duties. The rule is that the suit must
sovereignty.
- If X files a suit in the RTC against the USA, then you are asking the Phil court to be regarded as one against the state where satisfaction of the judgment against the
▪ In the work of Professor John Jackson, he explained that because of the inter-
exercise jurisdiction of another state. public official concerned will require the state itself to perform a positive act, such as
relationship between states especially in the field of trade and commerce, we have
- “No state shall ever be subjected to the jurisdiction of other state.” appropriation of the amount necessary to pay the damages awarded to the plaintiff
however limited power as sovereignty but that limitation is self-imposed. So don’t
- If you file an injunction suit against the government (stop from implementing a (Shauf v. Court of Appeals) or delivery of public property to the plaintiff, including
think that when the exercise of sovereignty is limited by reason of treaties, there is a
particular law), you are asking to simply cease from performing an act. A suit is properties held in custodia legis. (Calub vs. CA)
diminution of sovereignty (different from diminution of the exercise of sovereignty).
against the state if the enforcement of a judgment requires an affirmative act The rule does not apply where the public official is charged in his official capacity for
▪ If the limitation is self-imposed, that is not a violation of sovereignty. from the state in the form of (1) loss of public funds (ex. damages) and (2) loss of acts that are unlawful and injurious to the right of others. Public officials are not exempt,
▪ Westphalian concept of sovereignty – traditional concept of sovereignty; it has been property (ex. recovery of property / replevin). If the action does not call for any of in their personal capacity, from liability arising from acts committed in bad faith. (City
modified in view of the growing inter-relationships between and among states. To this one, then the discussion about non-suability of state becomes irrelevant. of Angeles v. CA)
end the cold war in Europe, the states agreed to enter into this treaty of Westphalia, Reason: There is a principle in constitutional law that our public funds and Neither does it apply where the public official is clearly being sued not in his official
recognizing that each state actually is to be treated as equal with each other properties can only be paid out of our treasury through appropriation made by capacity but in his personal capacity, although the acts complained of may have been
(principle of co-equality) Congress. If we don’t apply this doctrine, then there would be a situation that the committed while he occupied a public position. (Lansang vs. Garcia) Grounds that will
▪ Principle of monopolization of power – has the ability to command authority without court forces the government to take public funds or properties out from the permit suit against public official in his personal capacity: (1) performed the act in bad
foreign assistance; ability to conduct foreign relations; in a given territory, that treasury without the appropriation by the Congress. faith; (2) with malice; (3) outside of the authority granted. Only those acts that are
sovereign power has the monopoly of the exercise of that power, exercises this regular, in accordance and within the authority of the law shall be imputable to the
power to the exclusion of all others. Theories of State Immunity from Suit state.
▪ Legal Theory
Dual Capacities: Holmes: “A sovereign is exempt from suit, not because of any formal conception or Forms of Consent
▪ Imperium (authority of the state to govern; governmental) obsolete theory, but on the logical and practical ground that there can be no legal ▪ Express
▪ Dominium (capacity of the state to own properties; proprietary) re: Regalian Doctrine right as against the authority that makes the law on which the right depends.” ❖ General Law (see Act No. 3083, Act No. 327 as amended by P.D. 1445; Sec. 22 of
– from ‘regal’ which means king; presumption that all properties or lands belong to ▪ Sociological Theory: Local Government Code of 1991)
the crown or the king, that all lands are presumed to belong to the State. “a continued adherence to the doctrine of non-suability is not to be deplored for as ❖ Special Law (see Charter of LGU)
Consequently, there is a high threshold in proving that you have been granted the against the inconvenience that may be caused private parties, the loss of ▪ Implied
right to own a parcel of land. governmental efficiency and the obstacle to the performance of its multifarious ❖ When State initiates action
functions are far greater if such a fundamental principle were abandoned and the
Jurisdiction (a manifestation of sovereignty): availability of judicial remedy were not thus restricted.” (Republic vs. Villasor) Act No. 3083
(Jurisdiction of the court – authority to adjudicate; Jurisdiction of Congress – authority ▪ An Act Defining the Conditions under which the Government of the Philippine Islands
to pass laws; Jurisdiction of the Executive Department – authority to enforce laws) When is a suit one against the state?
May be Sued
▪ Territorial – state’s authority can be exercised within its territory (as distinguished ▪ (Republic v. Feliciano) ▪ Sec. 1 – xxx, the Government of the Philippine Islands hereby consents and submits
from generality principle) (ex. power to punish crimes) When it is the State that is ultimately held liable: if the enforcement of the judgment to be sued upon moneyed claim involving liability arising from contract (liability ex
▪ Personal – state’s authority can be exercised over all its citizens regardless of their will require an affirmative act from the State in the form of: contractu), expressed or implied (no contract but there have been a transaction that
locations (ex. matters of status) (nationality principle) (a) Loss of public funds or could have been covered by a contract and the government have already received
▪ Extraterritorial – state’s authority can be exercised even not within its territory (b) Loss of property benefits from such transaction), which could serve as a basis of civil action between
(SFION) (ex. citizens earning income abroad are liable to pay taxes) ▪ (Del Mar v. PVA) private parties.
Sovereign Immunity: Doctrine of Non-Suability of State The rule well-settled in this jurisdiction on the immunity of the Government from suit ▪ Sec. 2 – A person desiring to avail himself of the privilege herein conferred must show
▪ Basis: without its consent holds true in all actions resulting in “adverse consequences on that he has presented his claim to the Insular Auditor 1 (now, COA) and that the latter
1. Constitution: Section 3, Art. XVI the public treasury, whether in the disbursements of funds or loss of property.” did not decide the same within 2 months from the date of its presentation.
With or without this, all states are immune from suits without its consent. In fact, ▪ (Shell Philippines vs. Jalos)
it has already achieved the level of a customary international law.
6 | Page| ALIANZA, K.D.
CONSTI 1 – ATTY. BRETCH NOTES
▪ So, go first to COA, which has the primary jurisdiction over moneyed claims against representation of the state and being bound to act as an agent thereof he executed
government agencies and instrumentalities. If no action or denies your claim within (Air Transportation Office vs. Ramos) – proprietary function the trust confided to him. This concept does not apply to any executive agent who is
2 months, then that’s the time you can go to court. However, COA’s jurisdiction is The CA thereby correctly appreciated the juridical character of the ATO as an agency of an employee of the active administration and who in his own responsibility performs
limited to liquidated claims only. the Government not performing a purely governmental or sovereign function, but was the functions which are inherent in and naturally pertain to his office and which are
instead involved in the management and maintenance of the Loakan Airport, an activity regulated by law and the regulations.” (Meritt vs. GPI)
CA No. 327, as amended by PD 1445 that was not the exclusive prerogative of the State in its sovereign capacity. Hence, the
▪ COA has primary jurisdiction over money claims against government agencies and ATO had no claim to the State’s immunity from suit. Framework of Analysis in State Immunity Problem
instrumentalities o Is it a suit against the state?
▪ Sec. 1. Original Jurisdiction – The Commission Proper shall have original jurisdiction Jure Imperii Contracts Consider:
over: (a) Money claims against the Government, (b) xxx In the Philippines, the Supreme Court had considered the following transactions by a - requiring affirmative act (appropriation of fund or property)
▪ However, COA’s jurisdiction is limited to “liquidated claims” (determined or readily foreign state with private parties as acts jure imperii: If no, we don’t apply the rules.
determinable from vouchers, invoices, and such other papers within reach of (1) The lease by a foreign government of apartment buildings for use of its military If yes, we apply the rules and ask:
accounting officers) officers (Syquia vs. Lopez); o Is the act jure gestionis or jure imperii?
(2) The conduct of public bidding for the repair of a wharf at a US Naval Station (USA If jure gestionis, state is suable.
The Restrictive Theory of State Immunity or Doctrine of Qualified State Immunity vs. Ruiz); If jure imperii, we ask:
(3) the change of employment status of base employees; and o Was there consent to be sued?
▪ The traditional rule of State Immunity exempts a State from being sued in the courts
(4) maintenance and upkeep of diplomatic mission and official residence of an If none, case will not prosper
of another State without its consent or waiver. This rule is a necessary consequence
ambassador (Rep. of Indonesia vs. Vinzon) Consider:
of the principles of independence and equality of States.
- suit against “unincorporated” agency (no separate personality, a suit against the
▪ However, the rules of international law are not petrified; they are constantly
Jure Gestionis Contracts state) vs. suit against “incorporated” agency (has distinct and separate personality)
developing and evolving. And because the activities of states have multiplied, it has
(1) Hiring of a cook in the recreation center, consisting of three restaurants, a cafeteria, - ex contractu? (Act 3038) (applicable to Philippine State)
been necessary to distinguish them – between sovereign and governmental acts (jure
a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio - against “officer”? (depends on the nature of the suit, not on the title but the
imperii) and private, commercial and proprietary acts (jure gestionis). The result is
City, to cater to American serviceman and the general public (USA vs. Rodrigo) allegations on the complaint; in his personal capacity) (Lansang vs. Garcia)
that State immunity now extends only to acts jure imperii.
(2) Bidding for the operation of barber shops in Clark Air Base (USA vs. Guinto) - state initiates the suit? (implied submission of the state to the jurisdiction of the
▪ The restrictive application of State immunity is now the rule in the United States, the (3) Management and Maintenance of Loakan Airport (ATO vs. Ramos) court; ex. expropriation cases)
United Kingdom and other states in Western Europe. - amount already appropriated? (Shell Philippines vs. Jalos)
▪ When we are dealing with a foreign state (foreign state being sued in a local court), Who can validly give Express Consent to be sued? - perpetration of injustice? (ATO vs. Ramos)
we apply this doctrine. ▪ Only Congress can validly give express consent to be sued - violation of law?
If yes, case will prosper to determine “liability”
▪ Thus, in (Rep. of Indonesia vs. Vinzon), the SC said that “the existence alone of a
(USA vs. Ruiz) Then we ask:
paragraph in a contract stating that any legal action arising out of the agreement
A State may be said to have descended to the level of an individual and can thus be o Has the State consented to be liable?
shall be settled according to the laws of the Philippines and by a specified court of the
deemed to have tacitly given its consent to be sued only when it enters into business Consider:
Philippines is not necessarily a waiver of sovereign immunity from suit. It may also be
contracts. It does not apply where the contract relates to the exercise of its sovereign - “Special Agent”
meant to apply where the sovereign party elects to sue in the local courts. Submission
functions. In this case, the projects are an integral part of the naval base which is - if it involves moneyed claims of liquidated amount arising out from contract or “ex
by a foreign state to local jurisdiction must be clear and unequivocal.”
devoted to the defense of both the US and the Philippines, indisputably a function of contractu” suit (Act 327) thru COA (don’t go to court right away; 60-day period)

the government of the highest order; they are not utilized for nor dedicated to
Suability vs. Liability
commercial or business purposes. Government
▪ Where the State gives its consent to be sued by private parties either by general or
▪ From the Latin term “gubernare” – to direct, rule, guide, govern
special law, it may limit claimant’s action “only up to the completion of proceedings
(Syquia vs. Lopez)
anterior to the stage of execution.”
That the correct test for the application of State Immunity is not the conclusion of a Government, in general:
contract by a State but the legal nature of the act. ▪ To make the state liable, there must be another “Consent to be held Liable.” (Meritt
vs. GPI) ▪ “that institution or aggregate of institutions by which an independent society makes

▪ Purpose of permitting suability if in the end, no consent of liability: to give the and carries out those rules of action which are necessary to enable men to live in a
(USA vs. Guinto) – national defense is involved (governmental)
plaintiff the opportunity to prove that under circumstances, the state actually is also social state, or which are imposed upon the people forming that society by those
There is no question that the USA, like any other state, will be deemed to have impliedly
liable. who possess the power on authority of prescribing them.” (US v. Dorr)
waived its non-suability if it has entered into a contract in its proprietary or private
▪ The state admits liability if it acts through a special agent. ▪ “the agency or instrumentality through which the will of the State is formulated,
capacity. It is only when the contract involves its sovereign or governmental capacity
expressed and realized”. (Poindexter vs. Greenhow)
that no such waiver may be implied. This was our ruling in USA v. Ruiz, where the
When is State Liable?
transaction in question dealt with the improvement of the wharves in the naval
“Government of the Philippines Islands”
installation at Subic Bay. As this was a clearly governmental function, we held that the ▪ “That the responsibility of the state is limited by Art 1903 to the case wherein it acts
through a special agent (and a special agent, in the sense in which these words are Section 2, Administrative Code of the Philippines:
contract did not operate to divest the US of its sovereign immunity from suit.
Note: in case of foreign state sued in local courts, we apply the maxim “par in parem, employed, is one who receives a definite and fixed order or commission, foreign to ▪ Government of the Philippine Islands is a term which refers to the corporate
non habet imperium” (“no state can exercise jurisdiction over another co-equal state) the exercise of the duties of his office if he is a special official) so that in governmental entity through which the functions of government are exercised
throughout the Philippine Islands, including, save as the contrary appears from the
7 | Page| ALIANZA, K.D.
CONSTI 1 – ATTY. BRETCH NOTES
context, the various arms through which political authority is made effective in said against the successor govt; ex. political – if in the course of the revolution, the powers of the federal govt are enumerated: national defense, currency, foreign
islands, whether pertaining to the central government or to the provincial branches predecessor govt has entered into a contract with a supplier of weapons to be used affairs, interstate commerce, international relations; that’s why those not
or other form of local government. against the rebels; personal – incurred by the govt that were not really intended for enumerated such as penal laws and personal laws vary among the states in US)
▪ Government of the Philippines = National Government (Leg, Exec, Jud) + Political the use of the public; by the corrupt officials), but not those arising out of regular
Subdivisions (LGUs) [excluding entities with separate juridical personality, unless administration of government. Residual powers – powers that are not expressly nor impliedly granted or vested by
they perform governmental functions] the Constitution to any branch of government; unenumerated unspecified powers
Kinds of Government of the government;
“Government” vs. “State” vs. “Administration”
▪ Republic of the Philippines (Government) A. Based on Number of People: C. Based on Legitimacy: (presupposes that there are at least 2 contending govts in a
▪ Philippines (State) ▪ Monarchy – ‘mono’; one person (by the king, or the like) only possessing the particular territory)
▪ Duterte Administration (Administration) sovereign powers of the government; an arcade system of government during the ▪ De Jure – a govt that has the legal authority to govern
▪ When you speak of administration, you’re not referring to the institution times of kings and monarchs ▪ De Facto – a govt that is actually governing but it does not have the legal authority
(government) – includes the three branches of govt; but if you talk about ▪ Aristocracy – another arcade form of government; powers of the government are to govern; a change of govt not in accordance with the manner provided for by
administration, only referring to the individuals in whose hands the reins of in the hands of the very few individuals; normally, they exercise governmental the Constitution (extra-constitutional) can be a de facto at first instance (ex.
government are for the time being. powers because also of their status in the society, mostly influenced by their revolutionary government)
▪ Why is it important to distinguish? Because there is such a thing as……. wealth, powers, etc. ▪ Extra-constitutional – changing the government outside the 4 corners of the
▪ Democracy – ‘demos’ which means people; as described by US Pres Abraham Constitution (de facto)
“Doctrine of State Continuity” Lincoln during the civil war, democracy is a government of the people, by the ▪ Intra-constitutional – changing within the 4 corners of the Constitution (de jure)
▪ The moment a State is established as an international person, the State continues to people and for the people. (ex of a perverted form of democracy is Mobocracy – ▪ So, Aquino’s government started as a de facto government because EDSA
be the same corporate person whatever changes may take place in its internal instead of govt of the people, already by the mob not following rules) Revolution was the method of changing the government but the Supreme Court
organization. This continuity of the legal personality of the State may withstand even [Anarchy (‘ana’ means none; -archy/-cracy from the term ‘cratus’ which means rules said in the Lawyer’s League of the Phils case, while it may have actually been
the most radical transformations in its constitutions. Thus, temporary absence of or system) – no order] established as a de facto government because it was through revolution, it
governmental control (e.g. civil war) will not change statehood. nevertheless received in acceptance not only by the people of the Philippines,
B. Based on Distribution of Powers: from whom the sovereign power belongs, but also the family of nations. So it
▪ If a treaty has been entered into in 1980, and the government of Marcos has been
overthrown, the treaty still continues even after the EDSA Revolution because of this ▪ Horizontal – distribution to the different branches of the govt became a de jure government afterwards.
doctrine and since the treaty is entered as a state. o Presidential – powers are distributed separately; follows the doctrine of ▪ Whether de jure or de facto is not a purely legal question, it’s a question of fact.
separation of powers among the legislative, executive and judiciary So there’s an aspect of political question in this regard. We’re not referring to the
▪ Even if there is a civil war, when there is a temporary absence of governmental
departments; prohibited for one official to possess and perform 2 incompatible ‘validity’ of government. There’s no such thing as a valid government because at
control, it will not change statehood.
office or functions; ex. a senator who gets appointed to be the National Defense the end of the day, it’s a question of acceptance. Only the sovereign people can

Secretary (executive function), his seat as a senator is automatically forfeited; tell whether it is a government that they will obey.
“State Succession” (opposite of doctrine of state continuity)
residual powers are given to the president (Marcos v Manglapus)
▪ Where there is a change in legal personality of a state, “state succession” occurs. This
o Parliamentary – fusion of executive and legislative departments; during (Co Kim Cham v Tan Keh)
involves substitution of new sovereign over a territory. This happens in cases of
elections, they would elect members of the parliament only, don’t elect a ▪ De Jure
cession, annexation, merger, consolidation and decolonization. It will have legal
president; among the members of the parliament, they will choose who will be ▪ De Facto
effects in treaty and international obligations of the predecessor State (Cf: “Clean
the Prime Minister – head of the legislative department which is the parliament o By Force of Voice of the Majority against the rightful government and maintains
Slate Doctrine” {Tabula Rasa} vs. “Government Succession”)
and at the same time becomes the Chief Executive; members of the parliament itself against the will of the latter (ex. EDSA Revolution)
▪ Colonized territories are given three options: (1) to become a new and independent can be qualified to be the members of the cabinet; residual powers are given to
state; (2) to remain a territory of the colonizing state; (3) to be annexed to a third o By Insurrection – by inhabitants of a country against a parent or colonizing state
the parliament (parliamentary system) (ex. Aguinaldo govt when he declared independence from the Spain)
state other than the colonizing state.
▪ Vertical (national and local governments) o By Military Occupation – paramount force
▪ Whenever there is a state succession, treaties entered into by state for and behalf of o Unitary – don’t expect political autonomy on the part of local governments since
the territory of the Philippines with another state after our cession, when we were
they exist precisely because they are creatures of the national govt; in our Functions of Government
ceded to the US, when the US accepted us, Tabula Rasa to sya – clean slate, meaning system of govt, for instance, an LGU can only be created by Congress; Local
all treaties will not be assumed by the US unless it expresses that it will assume the ▪ Ministrant – optional functions (ex. housing)
Government Codes provides the powers that may be exercised by the local govt;
treaties entered into by Spain affecting the Philippine Islands. But if there’s only ▪ Constituent – compulsory functions (ex. maintenance of peace and order)
powers of political subdivision are granted, scope of which is also dependent on
Government Succession, treaty continues. ▪ Their distinction have been rendered blurred or obsolete by the repudiation of the
the central authority; normally, residual powers are vested on the central
laissez faire doctrine, especially in the 1987 Constitution (see Declaration of
government; the powers of political subdivisions or LGUs are enumerated or
Effects of “Government Succession” (ex. EDSA Revolution) Principles and State Policies)
expressed by law, if not listed, cannot be exercised by them; Congress possesses
1. All rights of predecessor government are inherited by the new government; Laissez faire
the plenary powers
2. If change is by peaceful means (through constitutional change), new government o Federal – you expect political autonomy or independence on the part of states, ▪ Doctrine of Parens Patriae – the government as guardian of the rights of the people
inherits all obligations; the extent of which will vary depending on the jurisdiction; residual powers must (GP v Monte de Piedad)
3. If change is by violent means (through revolution), new government has the option reside in the political subdivisions; the central government will only be exercising
to reject political and personal obligations (incurred by the predecessor govt as enumerated powers; federal states possess the plenary powers; (in US, the III. STATE PRINCIPLES AND POLICIES

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because of the difficulty to really resolve our differences when it comes to property dispute. Under the UN Charter, we are also mandated that before we settle issues
State Principles – Secs. 1-6 rights dispute, we have decided to surrender part of our freedom to the government, through use of force (assuming that’s permitted), we should avail of all pacific means
State Policies – Secs. 7-28 just part not the entirety of our freedom unlike Thomas Hobbes’ social contract of dispute (filing arbitration case, ICJ, etc.)
theory, subject to the condition that such government will exercise that power to ▪ But if after occupying there, they are moving closer which reached the territorial sea
Characteristics of Preamble and Art. II promote the general welfare. The moment the government abuses those powers of the Philippines, armed with all kinds of weapons? Yes, Art. 51 of the UN Charter,
▪ The Preamble is not a source of right, it only introduces (“preambulare” means “to given to it by the sovereign people, then the people can actually change the notwithstanding Art. 2(4), permits all states to a right of self-defense in case of
walk before”) the 1987 Constitution. government, in a way rescind the contract, through the right to revolt. But do not aggression by another state. The right to self-preservation/self-defense is an
▪ The Declaration of Principles and State Policies is also not a source of substantive read it as forming part in the aforementioned phrase because it is basically inherent right. It could be done individually or collectively (mutual defense treaties,
rights; the provisions are not also self-executory (see Basco, Kilosbayan, Manila incompatible with any constitution. If you place the right to revolt in any constitution, regional defense treaties). And because it is inherent, it cannot be waived; hence,
Prince Hotel and Tañada cases) (except to the extent that some provisions are but you will carry with it the seeds of its own destruction. Because when you revolt, you our statement that the Philippines renounces war does not include the use of force
declarations of already enforceable legal precepts, e.g. in Oposa v Factoran) do away with the constitution, you throw it away. You install a government not on in self-defense.
▪ Both cannot be invoked as basis for a legal action in court the basis on what the constitution says but on something else. What we do in cases ▪ There is a need to interpret this phrase. We cannot interpret it as literally saying that
▪ But both the Preamble and the Declaration of Principles and Policies can be useful in of abuses of powers in the government is try to exercise first all our freedoms, our there’s no way we can engage in war just because it is in our constitution that
CONGRESS (in crafting laws), by the PRESIDENT (in implementing laws), in the rights in order to correct the wrongdoings in accordance with our own constitutional Philippines renounces war. We have to understand that this phrase only covers
JUDICIARY (in the interpretation of constitutional provisions), and by the PUBLIC (in and legal processes. However, if everything fails, then that’s the right time for the “aggressive war”. It does not include “use of force” in self-defense (either individually
understanding the mandate of the State and Government thereby promoting good people to exercise the people’s right to revolt. Therefore, the right to revolt is or collectively). Using (armed) force actually can be done either defensively or
citizenship) affirmed as a natural right. Even then, it must be exercised only for weighty and aggressively (ex. invading/attacking other states). This phrase is to abide or comply
serious reasons. Therefore, this phrase can only be taken as manifestation that with our commitment as a member of the United Nations, under Arts. 2(4) on the
▪ Filipino people – the authors of the Constitution, with the aid of the 1986
anyone who will exercise the powers of the government should be authorized by the Prohibition Against the Threat or Use of Force, all states must refrain from the threat
Constitutional Commission; the operative act of ordaining and promulgating it is the
people through the ballot. (J. Mendoza, Concurring opinion in Estrada v. Arroyo) or use of force affecting their territorial integrity and political independence of other
casting of our votes in that plebiscite on Feb 2, 1987. This Constitution took effect on
Feb. 2, 1987, the date of the plebiscite, the date we said yes to the Constitution. (De ▪ There’s a difference between overthrowing a government through revolution and states.
Leon vs. Esguerra) exercising freedom of expression through demonstrations and rallies in the street.
nd
Of course, it is part of the remedies available to the people. In fact, other than the 2 part of Sec 2. GAPIL as part of the law of the land
▪ We did not find it hard to accept that even the unborn would have a legal standing
ballot, there are no other readily available means of participating in the governance ▪ It forms part of our national legislation, not in the constitution. Thus, it will be treated
in this case because of the principle of intergenerational responsibility. Under the
but through the exercise of freedom of expression. Freedom of expression has been as a statute. In cases of conflict, apply rules in statutory construction. In case of
principle of stewardship, we have the obligation to take care of our environment
considered by our society as probably the most important constitutional right of the conflict between GAPIL and the constitution, latter prevails except when that GAPIL
because Mother Earth is not just for the present generation but for the future
people. It occupies a preferred status in the hierarchy of rights because without it, actually partakes of the nature of a jus cogens norm (pre-emptory norms where no
generation, as well.
this society cannot exist. That’s the only way we can make our government derogation is ever permitted) (Planas v Gil)
▪ It’s not a source of right, not self-executing except to the extent that Sec 15 (right to
accountable other than the ballot. ▪ International Law and Municipal/Domestic Law - which law prevails in case of
health) & Sec 16 provisions (right to a balanced and healthful ecology like as used in
▪ When do we exercise this sovereign power of letting anyone exercise government conflict?
Oposa case) are enforced by the Supreme Court in special cases.
powers through the ballot? (Dissenting Opinion of Justice Puno in Tolentino v Theories:

COMELEC) o Monism – ‘mono’ means one; in this world, there is only one legal system; highly
Sec 1. Sovereignty and Republicanism
o Election – people choose the representatives to whom they will entrust the influenced by natural law; universality of norms; ability to distinguish right from
▪ Democracy vs. Republicanism – Democracy is more general in scope. Generally,
exercise of powers of government wrong – universal and common to all of us; monists argue that because there is
democracy can be direct or indirect/representative democracy.
o Plebiscite – people ratify any amendment to or revision of the Constitution and only one legal system which refers to international law, in case of conflict,
▪ Direct Democracy – people themselves govern and exercise directly the may introduce amendments to the constitution international law always prevail
governmental powers but it seems to be difficult in the bigger society. o Initiative – people can directly propose legislation o Dualism – dualists believe, that in this world, there are 2 legal systems: IL & DL; in
▪ Indirect/Representative Democracy –people are the repository of the powers of the o Referendum – people will be asked to agree or disagree to a particular measure case of conflict, it depends upon the forum; expect that domestic court (Supreme
government but they don’t exercise the powers directy. They delegate it to or question submitted to them Court) will uphold domestic laws while international tribunal (International Court
representatives through election. o Recall – method of removing a local official from office before the expiration of of Justice) will uphold international law
▪ Purpose of stating that Philippines is both republican and democratic: To highlight his term because of loss of confidence ▪ How do rules of international law take effect in domestic legal system?
that while we are in a republican system of government, we still retain certain Theories:
characteristics and attributes of a direct democracy. At least in the area of legislation Incorporation – international law becomes part of the law of the land automatically
(Lambino case), 3 kinds of initiative: initiative to amend the constitution, initiative to Sec 2. Renunciation of War without a need of any positive or affirmative act by the government (Philip Morris v
propose for national legislation, initiative to propose for local legislation. So, under ▪ Covers “aggressive war” only; does not include “use of force” in self-defense (either CA)
Sec 32, Art. VI, we can legislate. Thus, there’s no redundancy. It’s for the purpose of individually or collectively) ‘pacta sunt servanda’ – observance in good faith; international agreements or
emphasis. ▪ Cf. Arts. 2(4) on the Prohibition Against the Threat or Use of Force and 51 of the UN treaties must be complied with by good faith
▪ Question: is there such a right of the people as the “Right to Revolt”? Charter on the Right of Self-Defense in case of Aggression by another state Transformation – international law becomes part of the law of the land through a
“Sovereignty resides in the people” phrase should not be interpreted as suggesting ▪ If China uses force against Philippines in order to physically control certain islands in positive or affirmative act on the part of the government
or that it implies the exercise the right to revolt. Yes, there’s such a thing as the right Spratlys that are within our exclusive economic zone, will the Philippines be permitted o Strong – IL can only be transformed only through legislative action (ex. in UK)
to revolt. Why? Because in most countries following constitutionalism, they are to use force considering that we have renounced war as an instrument of national o Weak – can be transformed not only through congressional act but also with other
actually practicing the Lockean principle, John Locke’s social contract theory – policy? No, we cannot use force that’s why what we did was peaceful settlement of means
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▪ Philippines follow both the doctrine of incorporation (Sec. 2, Art. II) and Doctrine of Sec 6. Separation of Church and State ▪ We believe that through this separation, we forestall and prevent possible abuse of
Transformation (Sec 21, Art VII) ▪ The separation of the church and the state shall be inviolable – cannot be violated powers brought about by over-concentration of powers as we’ve experienced during
▪ What is the status of Public International Law in Philippine Legal System? ▪ To the State are secular matters (health, maintenance of peace and order, promotion Martial Law
o Generally Accepted Principles of International Law (Sec. 2, Art. II) – can come to of the general welfare national defense, etc); to Religion, matters if faith (religious); ▪ Legal implication of this doctrine: As to its meaning, it simply results to a prohibition
our legal system through the frontdoor ▪ This separation is not meant to be hostile; there are instances where even religious of each branch of the government from interfering with the prerogatives of the other
o Treats-Based Principles of International Law (Sec. 21, Art VII) – can enter our legal sects are permitted to engage in matters that are secular; there isn’t much of a branches. The consequence is that any act that violates this principle will be
system through the backdoor, through the Senate concurrence of a treaty prohibition against the church from engaging in such affairs (ex. in education) considered as null and void.
▪ Treaty of comity between China and Philippines – treating Chinese fairly and without ▪ This section is primarily addressed to the state; this principle does not prohibit the ▪ This is not an absolute norm because there are instances that these branches share
discrimination in the Philippines and Filipinos are to be treated in the same way in church or any denomination from exercising political rights as members of the certain powers
China. Years after, the Phil govt noticed that Chinese businessmen controlled not just democratic society ▪ Doctrine of systems of checks and balances – we permit one branch to check the
wholesale business but even retail which put Filipino retailers at a great ▪ Does not prohibit the church, religious denominations, authorities and organizations prerogatives of the other branches since the idea of the separation of powers is really
disadvantage. Congress passed Retail Trade Nationalization Law, limiting retail from exercising political rights as members of a democratic society unless clearly to prevent over-concentration and abuse of powers
business to Filipinos only which the Chinese argued to be violating the treaty. prohibited by law (ex. party list system – religious organization cannot participate as ▪ One way to maintain this doctrine of separation is to prohibit delegation of powers
However, this statute is passed as a police measure to protect Filipino retailers. a party-list group); ▪ Separating the powers but permitting one branch to delegate its powers to others
Police power is the power of the state to regulate conduct for the promotion of the ▪ As members of the society, religious organizations are not barred from exercising will render the separation of powers meaningless
general welfare. It is the most pervasive least limitable powers of all to the extent freedom of expression provided it will follow the requirements ▪ More often than not, this prohibition on delegation is addressed to Congress, it being
that it cannot be bargained away even by a treaty. (Ichong vs. Hernandez) And ▪ But, it prohibits the State from engaging in primarily religious affairs. To be valid, the our legal sovereign (issues commands)
besides, even applying statutory construction, the Retail Trade Nationalization Law law must have a legitimate secular purpose (Purpose Prong), must have the primary
came after the treaty of amity and therefore deemed amended or repealed. effect of either advancing or inhibiting religion (Effect Prong), and must not result in Exceptions to Prohibition against Delegation of Powers
an excessive entanglement of government and religion (Entanglement Prong). [This ▪ Delegation to the President of Emergency Powers (Sec 23, Art VI) – in times of war
Sec 3. Civilian Supremacy
is also known as the “Lemon Test”] (Lemon vs. Kurtzman, US 1971; Aglipay vs Ruiz) and other national emergency; emergency powers are actually legislative powers
▪ The prime duty of the Government is no longer to serve the protect the “State”, but ▪ Sec 5, Art III – freedom of religion (presidential decrees and executive orders); not for the purpose of giving the pres
the “people” such privilege of legislating, but for the primary purpose of permitting the pres to act
▪ 2 important religious freedom:
▪ In defending the State, the Government may call upon the people to defend it o free exercise of religion – anyone is permitted to exercise freely his religious belief; swiftly on a national emergency). This is no violation to the prohibition of the
▪ Civilian authority is at all times supreme over the military – precisely to forestall of [1] freedom to believe (absolute), [2] freedom to exercise one’s belief (limited) – delegation of powers because for one, it is constitutionally permitted. The moment
prevent the application of military law in the Philippines you may exercise your rights but not to injure the rights of others it is constitutionally permitted, there is no other objection against it since the
▪ Sec 18, Art VII – declaration of martial law shall not suspend the operation of this o non-establishment of religion clause – the state must not support or favor any or constitution is the supreme law and the only limitation is when it violates jus cogens
Constitution – unless our Constitution is set aside, this country is fully governed only all religion norms (norms that are non-derogable) in international law
by civil law, not military law; even in the case of martial law, our civil courts were still ▪ In the Lemon case, the US appropriated fund to reimburse the spending of Catholic ▪ Delegation to the President to Fix Tariff Rates and Impose Import Quotas (Sec 28(2),
granted jurisdiction or authority to hear cases; unlike if under military law, at the schools in the payment of the salary of their teachers; US SC considered that as it’s Art VI) – fixing of tariff rates is an exercise of the power of taxation which is legislative
military tribunal causing the state to a possible excessive entanglement with religion in character (all inherent powers of the state are legislative in character since all of
▪ How is this illustrated? The President of the Republic of the Philippines is declared as ▪ In Aglipay case, the spending of millions of pesos for the making of stamps favoured them should be ín accordance with law or pursuant to a law); reason for exception:
Commander-in-chief of all armed forces of the Philippines (army, navy, marines, air the Catholic church but the SC said the threshold is whether or not it was the primary International trade is so complicated. Sometimes, foreign policy-making is done
force); the highest ranking official; the highest civilian official purpose of the govt in spending millions of pesos. The SC ruled that while depending on the dictates of the foreign market. There is a need of urgent action on
▪ The prime duty of the Government is no longer to serve or protect the “State”, but incidentally, it promoted the Catholic church, the secular and valid purpose of the the part of the government in fixing tariff rates and import quotas since international
the “people” spending however was to promote the Philippines as the seat of an international trade and market are very volatile and we cannot leave it to the congress to react to
▪ In defending the State, the Government may call upon the people to defend it event (tourism is secular) (another ex: spending for Sinulog because it is to promote international stimulus when doing so would probably be too late for our govt to
▪ We geared away from the thinking that this country, all interests must be protected Cebu) react. So it is better if it’s done by the Pres aside from the fact that the DFA has all
if it is in the name of the interests of the state; interpreted as opening the possibility the necessary information to guide the pres in coming up with a proper economic
of subordinating certain interests of the people in the name of the interests of the IV. POWERS AND STRUCTURE OF PHILIPPINE GOVERNMENT IN GENERAL foreign policy.
state; we have geared away from a utilitarian system of government to that of the ▪ Delegation to the People through Initiative (Sec 32, Art VI) – this is not really
democratic one; ▪ When we talk of forms of government, it’s nothing but the manner and extent of delegation. Theoretically speaking, sovereignty resides in the people so we are the
▪ The prime duty of the government is not anymore to serve and protect the state but power distribution (vertical and horizontal distribution of powers) original possessors of these powers. But in many cases such as Santiago vs COMELEC
the people ▪ Since we have adopted the presidential form of government, the doctrine of included this as one of the recognized exceptions
▪ International law and any law for that matter has evolved; in the past, the way we separation of powers is an inherent and embedded operative principle in our system ▪ Delegation to Local Government Units (Sec. 5, Art X) – under the principle of
think about law was state-centered; now, people-centered paradigm already of government subsidiarity, the natl govt in order to enable it to exercise and perform its functions
▪ Instead of looking the state as the end, it is now the welfare of the people that is now ▪ The mandate that the powers of the government should be separated is not in a given and usually wide territory, in order to effectively do so, it subdivides its
considered the paramount interest of the country expressly stated in the Constitution; what we can see is the actual separation of territory to several political subdivisions and grant them delegated powers. So if the
▪ In defending the state, the people are called upon to defend it that’s why we have powers; the mere fact that in our constitution, we separated Arts VI, VII and VIII is an natl government has 3 inherent powers, all LGUs also have those (ex. ordinances to
compulsory military and civil service in times of war indication that we have separated these 3 branches of the government regulate traffic – police power). Reason for exception: necessity; tradition has shown
that ever since, all LGUs have been delegated legislative powers.

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▪ Delegation to Administrative Agencies – in many cases, these have been problematic (Eastern Shipping Lines v POEA): the discretion of POEA in crafting format of the the last 12 were only given 3 yrs; reason: to make the senate a continuing body;
since these are agents of the executive dept; the constitutional law is making sure contract is not unlimited; there is a sufficient standard: fair and equitable importance of having a continuing senate: to prevent constitutional political hiatus
that this delegation will not result to a total abdication of legislative powers. As a employment practices in our constitution; noon of June 30, all terms of national and local officials will end
general principle, for delegation to be valid, what can only be delegated is the o Example of “Sufficient Standard”: except the 12 senators; there’s a danger by reason of chaos or the like that the next
prerogative on how to implement the law, but what cannot be delegated is the - “fair and equitable employment practices” elected officials won’t be able to discharge their functions; imagine a situation where
prerogative to determine what the law is (Eastern Shipping Lines v POEA). In the past, - “public interest” newly elected officials cannot perform their functions because of some reasons –
society has regulated human affairs directly by Congress but society and the - “justice and equity” who will then act as pres? – active incumbent official remaining in the natl govt (ex.
multifarious activities of men have become more complicated. The modern - “public convenience and welfare” Senate Pres)
complexities in life necessitated the delegation of legislative powers to experts - “simplicity, economy and efficiency” ▪ House of Representatives = “not more than 250 members, unless otherwise provided
(admin agencies such as Department of Telecommunications) in certain areas. Note: However, the standard should not allow unbridled discretion (ex. “may see fit”) for by law” [now, 289 Members, inclusive of Party-List Representatives], elected by
Congress would no longer have the time and the expertise to deal with complicated district.
matters. Complexities in life had rendered congress incapable of addressing these There are what we call permissible delegations. This is the caveat: the moment ▪ Composition of HOR: (1) district representatives – they are not political subdivisions;
concerns swiftly and with expertise. So, what Congress will do is simply pass a law on delegation is permitted, there is however another limitation to that delegation: just an apportionment of a population to be represented by 1 district rep; (2) party-
a certain policy and the details on how to implement the policy set forth by the law, Doctrine of “Potestas delegata non delegari potest” list representatives
the admin agency will provide. ▪ A delegated power can never be further delegated ▪ In 1987, we have adopted a party-list system but it’s not yet readily enforceable and
▪ Public Service Commission (now LTFRB) allowed “bus operators” to “fix fare rates”. the congress still has to pass a law. In the meantime, while still drafting this law, our
2 Parts of Legislative Prerogatives: (KMU vs Garcia) – violation of the doctrine constitution provided that ½ of the seat for party-list rep will have to be occupied by
▪ Prerogative to determine what the law is – policy-level; this discretion cannot be ▪ The Director of Patents has been delegated by the Congress to determine which appointees of the pres from various sectors (sectoral reps). But in 1998, we have
delegated to the administrative agencies otherwise it is already total delegation inventions could be patented. It then further delegated to hearing officers and already elected party-list representatives, so no more sectoral representatives.
▪ Prerogative to determine the manner on how to implement the law – doctrine of lawyers the determination of facts of the applications for patent. However, it said
subordinate legislation; what can only be delegated to the admin agencies that ultimately, it shall still be the one to decide whether to approve or not. The SC House of Representatives
said that it’s not a violation of this doctrine because what has been delegated was ▪ Composed of (1) District Representatives and (2) Party-List Representatives
Tests of Delegation only the “discretion to ascertain facts” but did not include the “discretion to decide” ▪ Party-list Representatives “shall constitute 20% of the total number of
▪ Completeness Test: the law must be complete in all its terms and conditions when it on application for patents. (American Tobacco vs Director of Patents) – no violation representatives including those under the party-list”
leaves the legislature such that when it reaches the delegate the only thing he will since no total sub-delegation ▪ Sectoral Representatives occupied ½ of the seat for Party-list Reps since 1987-1998
have to do is enforce it. When you say “complete in all its terms and conditions”, the
delegation must be canalized within banks to keep it from overflowing. The purpose Structure District Representatives
is not to permit the delegate to run riot and become a robing commission. A delegate ▪ Bicameral Body – 2 chambers ▪ “Legislative District” is to be determined by law (General or Special Law) – when we
is always guided by the law that permits the delegation. ▪ Senate (Upper House) and House of Representatives (Lower House) adopted the 1987 Constitution, we made the first and original apportionment of
o When is a law “complete” for purposes of delegation? It must identify: ▪ Nothing to do with powers, hierarchy, authority legislative districts appended to the 1987 Constitution
- the SUBJECT MATTER to be delegated ▪ Something to do with the scope of the functions ▪ Legislative District shall comprise, as far as practicable (so not an absolute rule – it is
- WHO will do it ▪ Senate is expected to pay attention, although not to the exclusion of other interests, possible for one legislative district to be separated by an independent component
- HOW the delegate will do it (SCOPE OF AUTHORITY) to national and international concerns; precisely in the ratification of treaties, the like a highly urbanized city), contiguous, compact, and adjacent territory. [to prevent
The administrative agencies will issue implementing rules and regulations (IRR). Ex. senate has the function to concur such ratification made by the pres “gerrymandering”]
subject matter: regulation of the use of vehicle; penalty; definition of motor vehicles;
▪ HOR is expected, although not to say it is not permitted to also take care of national ▪ “Gerrymandering” – Gerry was a politician in the US. In order for him to win, he
definition of more than 15 yrs old – date of manufacture, date of original registration
concerns, to deal with local and parochial concerns. befriended congress to pass a law reapportioning the legislative district where he
or what?;
▪ This structure, having HOR, is for the various places to be well-represented in would run. What happened was that the state congress just selected territories
▪ Sufficient Standard Test: there must be adequate guidelines or limitations in the law where Gerry would definitely win. Instead of adjacent, compact and continuous, the
congress
to map out the boundaries of the delegate’s authority and prevent the delegation selected territories were scattered forming like a salamander.
▪ Advantage of bicameralism: the principle of checks and balance – one house will act
from running riot.
as fiscalizer of the other house; having senior leaders who will then become future ▪ “each city with at least 250,000 inhabitants” (note: not registered voters) or “each
o What is meant by “sufficient standard”?
presidents; specialization in certain concerns province” shall be entitled to at least one Legislative District. (Mariano vs COMELEC)
- one which defines LEGISLATIVE POLICY, marks its limits, maps out its boundaries
▪ Disadvantage of bicameralism: the possibility of inefficiency which can be translated – more theoretical than real because under the LGC, if you want to establish a
and specifies the public agency to apply it; indicates the circumstances under
to gridlock; ex. the bill submitted to the pres is the senate version but he likes the province, you also need at least 250,000 inhabitants.
which the legislative command is to be effected.
HOR version so he vetoes the bill; so the bill goes back to the house of origin to allow
o Must the “standard” be “determinate”?
them to override the veto power of the pres; however if the senate will not, there is A city with 250,000 inhabitants is entitled to “at least one” legislative district
- It must only be sufficiently determinate and determinable (express or implied)
no effective exercise of the override power ▪ “at least one” does not mean that for a city to have 2 legislative districts, there must
- Although it’s not required that the law must specify word for word that policy,
▪ Reason why there’s a bicameral conference committee – to iron out differences be 500,000 inhabitants (see Mariano vs COMELEC involving Makati City with only
what is required is that the policy be determinate or at least determinable
between the 2 houses 450,000 inhabitants);
- The court will have to inquire into the circumstances as to why that law was
passed to determine that legislative policy and make that the sufficient standard ▪ Senate = 24 Senators with a term of six (6) years, elected at large twelve (12 Senators ▪ A city whose population has increased to 250,000 is entitled to have a legislative
Both tests are intended to prevent a total transference of legislative authority to are elected every three (3) years); reason: those who were elected in 1987 were district only in the “immediately following election” after the attainment of the
the delegate. given 5 yrs of term until 1992; in 1992, 24 were elected; the first 12 were given 6 yrs, 250,000 population (Sec 3, Ordinance appended to the 1987 Constitution);

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▪ Requirements for valid proof of population: First, certifications on demographic ▪ Originally considered a mere “ceiling” in Veterans case, BANAT Case reverses this; ▪ “We rule that, in computing the allocation of additional seats, the continued
projections can be issued only if such projections are declared official by the National the 20% parameter is now considered mandatory and that it must be filled up or fully operation of the two percent threshold for the distribution of the additional seats as
Statistics Coordination Board (NSCB). Second, certifications based on demographic occupied. found in the second clause of Section 11(b) of RA No 7941 is unconstitutional. This
projections can be issued only by the NSO Administrator or his designated certifying ▪ Formula: Court finds that the 2% threshold makes it mathematically impossible to achieve the
officer. Third, intercensal population projections must be as of the middle of every (No. of district reps / .8) x .2 = No. of Party-list Reps maximum number of available party list seats when the number of available party
year. (Aldaba v. COMELEC) list seats exceeds 50. The continued operation of the 2% threshold in the distribution
Formula for determining “Additional Seats” for the “First Party” of the additional seats frustrates the attainment of the permissive ceiling that 20%
Reapportionment, by general or special law In Veterans and CIBAC: of the members of the HORs shall consist of party-list representatives.”
▪ Reapportionment of legislative districts may be made through a special law, such as ▪ “We therefore strike down the 2% threshold only in relation to the distribution of
in the charter of a new city. The Constitution clearly provides that Congress shall be the additional seats as found in the second clause of Section 11(b) of RA No 7941.
composed of not more than 250 members, unless otherwise fixed by law. As thus The 2% threshold presents an unwarranted obstacle to the full implementation of
worded, the Constitution did not preclude Congress from increasing its membership Section 5(2), Article VI of the Constitution and prevents the attainment of “the
by passing a law, other than a general reapportionment law. This is exactly what was wherein the proportion of voters received by the first party (without rounding off) shall broadest possible representation of party, sectoral or group interests in the HORs.”
done by Congress in enacting RA No. 7854, “An Act Converting the Municipality of entitle it to additional seats:
th
Makati into a Highly Urbanized City to be known as the City of Makati”, and providing New 4 Parameter under BANAT:
for an increase in Makati’s legislative district. (Mariano vs COMELEC) 1. The parties, organizations, and coalitions shall be ranked from the highest to the
Proportion of votes received by the first party Additional seats
▪ After the return of census (3 yrs), some adjustments will be made to that original lowest based on the number of votes they garnered during the elections.
apportionment in 1987 because of the increase in population 2. The parties, organizations, and coalitions receiving at least 2% of the total votes cast
for the party-list system shall be entitled to one guaranteed seat each.
Equal to or at least 6% Two (2) additional seats
Creation of Legislative District does not require a plebiscite! 3. Those garnering sufficient number of votes, according to the ranking in paragraph 1,
▪ The creation of a new representative or legislative district is not the same as the shall be entitled to additional seats in proportion to their number of votes until all
creation of a new political subdivision. Hence, the requirement of a plebiscite in the the additional seats are allocated.
Equal to or greater than 4% but less than 6% One (1) additional seat
creation of a political subdivision under the Constitution does not apply to the 4. Each party, organization, or coalition shall be entitled to not more than 3 seats.
creation of a legislative district. (Bagabuyo vs Comelec) (In computing the additional seats, the guaranteed seats shall no longer be included
because they have already been allocated, at one seat each, to every two-percenter.)
Less than 4% No additional seat
Basic Party-List System / Law Questions:
1. What are the parameters in the allocation of party-list representatives? Basic Party-List System / Law Questions:
2. May a group that does not represent a marginalized and/or underrepresented sector 1. What are the parameters in the allocation of party-list representatives?
participate in the Party-List elections? Formula for determining “Additional Seats” for “Second Party, etc.” 2. May a group that does not represent a marginalized and/or underrepresented sector
3. LGBT, a group of lesbians, gays, bisexuals, and transsexuals wanted to join the party- In Veterans and CIBAC: participate in the Party-List elections?
list system. Is the group legally allowed to join the party-list system? 3. LGBT, a group of lesbians, gays, bisexuals, and transsexuals wanted to join the party-
4. If a Party-List group failed to obtain at least 2% votes in the last two preceding list system. Is the group legally allowed to join the party-list system?
elections, is it still qualified to participate in the next party-list election? 4. If a Party-List group failed to obtain at least 2% votes in the last two preceding
5. X is a lawyer and has as his clients the urban poor and laborers. “Ang Trabahador” is elections, is it still qualified to participate in the next party-list election?
a party-list group registered the Labor sector. Can X be a nominee of “Ang If the result in the above formula is less than 1, the concerned party is not entitled to 5. X is a lawyer and has as his clients the urban poor and laborers. “Ang Trabahador” is
Trabahador” and become its Representative? any additional seat. a party-list group registered as such with the Commission on Elections representing
6. What are the parameters in determining qualifications of party-list groups? the Labor sector. Can X be a nominee of “Ang Trabahador” and become its
Parameters in Allocating Party-list Representatives (per Veterans Case): New Formula in determining the “Additional Seats” for “Second Party, etc.” Representative?
1. Twenty percent allocation – the combined number of all party-list congressmen shall In BANAT (2009): 6. What are the parameters in determining qualifications of party-list groups?
not exceed 20% of the total membership of the HORs, including those elected under There are two steps in the second round of seat allocation. First, the percentage is
the party list. multiplied by the remaining available seats, 38, which is the difference between the 55 Who may be a Party-List Group?
2. Two percent threshold – only those parties garnering a minimum of 2% of the total maximum seats reserved under the Party-List System and the 17 guaranteed seats of ▪ The party-list system is composed of 3 different groups: (1) national parties or
valid votes cast for the party-list system are “qualified” to have a seat in the HORs the two-percenters. The whole integer of the product of the percentage and of the organizations; (2) regional parties or organizations; and (3) sectoral parties or
3. Three-seat limit – each qualified party, regardless of the number of votes it actually remaining available seats corresponds to a party’s share in the remaining available organizations. National and regional parties or organizations are different from
obtained, is entitled to a maximum of three seats; that is, one “qualifying” and 2 seats. Second, we assign one party-list seat to each of the parties next in rank until all sectoral parties or organizations. national and regional parties or organizations need
additional seats available seats are completely distributed. We distribute all of the remaining 38 seats in not be organized along sectoral lines and need not represent any particular sector.
4. Proportional representation – the additional seats which a qualified party is entitled the second round of seat allocation. Finally, we apply the three-seat cap to determine (Atong Paglaum, Inc vs Comelec)
to shall be computed “in proportion to their total number of votes.” [only those who the number of seats each qualified party-list candidate is entitled.
qualified were entitled to additional seats] e.g. BUHAY got 7.33%(38) = 2.7854 or 2.79 Enumeration of “sectors” in RA 7941, not exclusive
▪ The enumeration of marginalized and underrepresented sectors is not exclusive.
The Twenty Percent Parameter: BANAT Case (2009) The crucial element is not whether a sector is specifically enumerated, but whether

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CONSTI 1 – ATTY. BRETCH NOTES
a particular organization complies with the requirements of the Constitution and belong to the sector they represent. The nominees of sectoral parties or
RA 7941. (Ang Ladled LGBT Party v COMELEC) organizations that represent the “marginalized and underrepresented”, or that
represent those who lack “well-defined political constituencies”, either must belong
”Failure to obtain 2%” as ground for disqualification, modified to their respective sectors, or must have a track record of advocacy for their
▪ Section 6(8) of RA 7941 provides for 2 separate grounds for delisting; these grounds respective sectors. The nominees of national and regional parties or organizations
cannot be mixed or combined to support delisting; and (b) the disqualification for must be bona fide members of such parties or organizations.
failure to garner 2% party-list votes in 2 preceding elections should now be 6. National, regional, and sectoral parties or organizations shall not be disqualified if
understood, in light of the Banat ruling, to mean failure to qualify for a party-list some of their nominees are disqualified, provided that they have at least 1 nominee
seat in 2 preceding elections for the constituency in which it has registered. who remains qualified.
(Philippine Guardians Brotherhood, Inc v COMELEC)
Groups that receive funding or assistance from government, disqualified
Qualification on Nominees As stated by the COMELEC: “the purpose of this provision [disallowing the participation
▪ The party-list organization or party must factually and truly represent the in the party-list system of an adjunct of, or a project or an entity funded or assisted by
marginalized and underrepresented constituencies mentioned in Section 5. the government] is to avoid any groups [sic] that would be beholden to the government
Concurrently, the persons nominated by the party-list candidate - organization in exchange for the assistance received.” Notwithstanding the 6 parameters outlined in
must be “Filipino citizens belonging to marginalized and underrepresented sectors, Atong Paglaum, the rationale for this disallowance remains valid and compelling. (Binhi-
organizations and parties. (Ang Bagong Bayan-OFW v COMELEC (2001)) Partido ng mag Magsasaka Para sa mga Magsasaka v COMELEC (2014))
▪ The phrase “marginalized and underrepresented” should refer only to the sectors in
Sec 5 that are, by their nauture, economically “marginalized and underrepresented.” Qualifications and Term of Office
These sectors are: labor, peasant, fisherfolk, urban poor, indigenous cultural ▪ Qualifications: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5)
communities, handicapped, veterans, overseas workers, and other similar sectors. residency
For these sectors, a majority of the members of the sectoral party must belong to ▪ The COMELEC cannot, in the guise of enforcing and administering election laws or
the “marginalized and underrepresented.” The nominees of the sectoral party either promulgating rules and regulations to implement Sec 36 (g), validly impose
must belong to the sector, or must have a track record of advocacy for the sector qualifications on candidates for senator in addition to what the Constitution
represented. Belonging to the “marginalized and underrepresented” sector does prescribes. If Congress cannot require a candidate for senator to meet such
not mean one must “wallow in poverty, destitution or infirmity.” (Atong Paglaum, additional qualification, the COMELEC, to be sure, is also without such power. (Social
Inc. v Comelec (2013)) Justice Society v Dangerous Drugs Board (2008))
▪ Proof required if new residence is the locality for election:
6 Parameters in determining qualifications of Party-List Groups (Atong Paglaum case) o physical presence in new domicile
1. Three different groups may participate in the party-list system: (1) national parties or o animus manendi
organizations, (2) regional parties or organizations, and (3) sectoral parties or o animus non-revertendi of domicile of origin
organizations. ▪ Proof required if domicile of origin is the locality for election:
2. National parties or organizations and regional parties or organizations do not need o animus manendi
to organize along sectoral lines and do not need to represent any “marginalized and o animus revertendi
underrepresented” sector. ▪ Note: In Faypon case: out of domicile of origin to pursue studies, engage in business,
3. Political parties can participate in party-list elections provided they register under the or practice vocation, not sufficient to constitute abandonment of domicile of origin.
party-list system and do not field candidates in legislative district elections. A political On the other hand, in Coquilla case, naturalization in foreign country results in
party, whether major or not, that fields candidates in legislative district elections can abandonment. In Caasi case, cited in Coquilla, becoming a permanent immigrant
participate in party-list elections only through its sectoral wing that can separately (“greencard holder”) to the US constitutes abandonment. (Macalintal v COMELEC)
register under the party-list system. The sectoral wing is by itself an independent
sectoral party, and is linked to a political party through a coalition. Election
4. Sectoral parties or organizations may either be “marginalized and underrepresented” ▪ Senators and Party-List: Elected at large
or lacking in “well-defined political constituencies.” it is enough that their principal ▪ District Representatives: Elected by district
advocacy pertains to the special interest and concerns of their sector. The sectors
▪ In case of vacancy in the Senate or in the HORs, a special election may be called to
that are “marginalized and underrepresented” include labor, peasant, fisherfolk,
fill such vacancy in the manner prescribed by law, but the Senator or Member of
urban poor, indigenous cultural communities, handicapped, veterans, and overseas
the HORs thus elected shall serve only for the unexpired term. (Sec 9, Art VI)
workers. The sectors that lack “well-defined political constituencies” include
professionals, the elderly, women and the youth.
5. A majority of the members of sectoral parties or organizations that represent the
“marginalized and underrepresented” must belong to the “marginalized and
underrepresented” sector they represent. Similarly a majority of the members of
sectoral parties or organizations that lack “well-defined political constituencies” must
13 | Page| ALIANZA, K.D.