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Introduction

Political law – branch of public law which

deals with the organization and operations
of the governmental organs of the State
and defines the relations of the State with
Philippine the inhabitants of its territory. [People v.
Perfecto, 43 Phil 88, 1922]
Constitution

Introduction Introduction
Scope of Political Law - The entire field of Constitutional law designates the law embodied in
political law may be subdivided into: the Constitution and the legal principles growing
out of the interpretation and application of its
(1)  constitutional law
provisions by the courts in specific cases.
(2)  the law of public officers
It is the study of the maintenance of the proper
(3)  administrative law balance between the authority as represented by
the three inherent powers of the State and liberty
(4)  Election law as guaranteed by the Bill of Rights.
(5)  the law of public corporations It is the fundamental law of the land.

Basis of the study Brief Constitutional History

1.) 1987 Constitution 1.  The Malolos Constitution

2.) 1973 and 1935 Constititions 2.  The American Regime and the Organic Acts

3. ) Other organic laws made to apply to the Philippines, 3.  The 1935 Constitution
e.g. Philippine Bill of 1902, Jones Law of 1916 and
Tydings-McDuffie Law of 1934 4.  The Japanese Belligerent Occupation

4.) Statutes, executive orders and decrees and judicial 5.  The 1973 Constitution
decisions
6.  The Freedom Constitution
5.) U.S. Constitution (re: Bill of Rights)
7.  The 1987 Constitution

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The American Regime and Organic Acts
1.  The Treaty of Paris – December 10, 1898
2.  US President McKinley’s Instructions – April 7, 1900
3.  The Spooner Amendment to the Army Appropriation
Bill – March 2, 1901
4.  The Philippine Bill of 1902 – July 1, 1902
5.  The Jones Law (Philippine Autonomy Act) – August 29,
1916
6.  The Tydings McDuffie Act (Philippine Independence
Act) – March 24, 1934
The 1987 Constitution
§  18 Articles
§  1935 Constitution’s provisions pertaining
to legislative department (bicameral
system) and the executive department
(Presidential system) have been
restored.
§  Independence of the Judiciary has been
strengthened
Kinds of Constitution
Written v. unwritten
A written constitution is one whose precepts
are embodied in one document or set of
documents.
An unwritten constitution consist of rules
which have not been integrated into a single,
concrete form but are scattered in various
sources, such as statutes of fundamental
character, judicial decisions, commentaries of
publicists, customs and traditions.
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The 1987 Constitution
Proclamation No. 9 – created the
Constitutional Commission composed of
50 members appointed by then President
Corazon Aquino; the members were
charged to frame a new charter.
The Supremacy of the Constitution
§  Is the fundamental law of the land to
which all other laws must conform and
to which all persons, including the
highest officials of the land, must defer.
§  No law /act shall be valid if it conflicts
with the Constitution.
Kinds of Constitution
Enacted (conventional) v. evolved (cumulative)
A conventional constitution is enacted, formally
struck off at a definite time and place following a
conscious or deliberate effort taken by a
constituent body or ruler.
A cumulative constitution is the result of political
evolution, not inaugurated at any specific time
but changing by accretion rather than by any
systematic method
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Kinds of Constitution
Rigid v. flexible
A rigid constitution is one that can be
amended only by a formal and usually
difficult process.
A flexible constitution is one that can be
changed by an ordinary legislation.
POLITICAL QUESTION vs. JUSTICIABLE CONTROVERSY
Santiago vs Guingona, 134577, Nov. 18, 1998
POLITICAL QUESTIONS are those questions, which, under
the Constitution, are to be  decided by the people  in their
sovereign capacity, or in regard to which  full discretionary
authority has been delegated to the legislative or executive
branch of the government. It is concerned with issues
dependent upon the  wisdom, not [the] legality, of a
particular measure.
 
When the grant of power is qualified, conditional or subject
to limitations, the issue of whether or not the prescribed
qualifications or conditions have been met, or the limitations
respected is JUSTICIABLE OR NON-POLITICAL, the crux of
the problem being one of  legality or validity  of the
contested act, not its wisdom.
DOCTRINE OF EXPANDED JUDICIAL POWER
Bondoc vs Pineda, 201 SCRA 792
That duty is a part of the judicial power vested in
the courts by an express grant under Section 1,
Article VIII of the 1987 Constitution of the
Philippines which defines judicial power as
both authority and duty of the courts 'to settle actual
controversies involving rights which are legally
demandable and enforceable, and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government."
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Kinds of Constitution
The Constitution of the Philippines is
written, conventional and rigid.
The 1987 Constitution took effect on
February 2, 1987, the date of its ratification
in the plebiscite held on the same date,
and not on the date its ratification was
proclaimed. [De Leon v. Esguerra,
No.L-78059, August 31, 1987]
THE DOCTRINE OF SUPREMACY OF THE
CONSTITUTION
Bondoc vs Pineda, 201 SCRA 792
The duty of the courts to look into the constitutionality and
validity of legislative or executive action, especially when
private rights are affected came to be recognized. A showing
that plenary power is granted either department of government
may not be an obstacle to judicial inquiry, for the improvident
exercise or the abuse thereof may give rise to a justiciable
controversy. Since "a constitutional grant of authority is not
usually unrestricted, limitations being provided for as to what may
be done and how it is to be accomplished, necessarily then, it
becomes the responsibility of the courts to ascertain whether the
two coordinate branches have adhered to the mandate of the
fundamental law. The question thus posed is judicial rather than
political. The duty remains to assure that the supremacy of the
Constitution is upheld.
Article XVII – Amendments or Revisions
Amendment – refers to an addition or change
within the lines of the original constitution as
will effect an improvement, or better carry out
the purpose for which it was framed. It refers to
a change that adds, reduces or deletes without
altering the basic principles involved. It affects
only the specific provision being amended.
(Lambino v. Comelec. G.R. No.174153. October
25, 2006).
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Article XVII – Amendments or Revisions Article XVII – Amendments or Revisions

Revision – broadly implies a change that This distinction is significant because

alters a basic principle in the constitution, like the 1987 Constitution allows people‘s
altering the principle of separation of powers initiative only for the purpose of
or the system of checks-and-balances. There
is also revision if the change alters the
amending, not revising, the
substantial entirety of the constitution, as Constitution.
when the change affects substantial
provisions of the constitution (Lambino v.
Comelec. G.R. No.174153. October 25, 2006).

Steps in the Amendatory Process:

1st step: Proposal - The adoption of the suggested Steps in the Amendatory Process:
change in the Constitution. 2nd step: Ratification

a.) By Congress (as a constituent assembly) – a vote of

The proposed amendment shall be submitted to the
¾ of ALL its members. people and shall be deemed ratified by the majority of
b.) Constitutional Convention – which may be called into the votes cast in the plebiscite, held not earlier than 60
existence by 2/3 of all the members of Congress. The days nor later than 90 days:
Congress, upon a majority vote of all its members may
submit the question of whether to call a constitutional a.) After approval of the proposal by Congress or
convention to be resolved by the people in a plebiscite. Constitutional Convention;
[Sec. 3, Art. XVII].
b.) After certification by the COMELEC of sufficiency of
c.) People, through the power of initiative – A petition petition of the people.
of an at least 12% of the total number of registered
voters of which every legislative district must be
represented by at least 3% of the registered voters
therein.

Gonzales v. COMELEC,
CONGRESS AS CONSTITUENT ASSEMBLY G.R. L-28196, November 9, 1967
Gonzales v. COMELEC,
G.R. L-28196, November 9, 1967

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BY CONSTITUTIONAL CONVENTION BY CONSTITUTIONAL CONVENTION

Del Rosario v. COMELEC, Imbong v. COMELEC,
35 SCRA 367 (1970) G.R. L-32432, 11 September 1970

Doctrine of Proper Submission

Plebiscite may be held on the same day as
regular election provided people are
sufficiently informed of the amendments to
be voted upon, for them to conscientiously
deliberate thereon, to express their will in a
genuine manner.
Submission of piecemeal amendments is
unconstitutional. All amendments must be
submitted for ratification in one plebiscite
only. [Gonzales v. COMELEC, 21 SCRA 774].
The use of the word election in the
s i n g u l a r m e a n t t h a t t h e e n t i re
Constitution must be submitted for
ratification at one plebiscite only;
furthermore, the people must have a
proper frame of reference. [Tolentino v.
Comelec, 41 SCRA 702].

BY PEOPLE’S INITIATIVE
Initiative Santiago v. COMELEC,
G.R. 127325, 19 March 1997
Initiative is the power of the people to propose
amendments to the Constitution or to propose and enact
legislation.

3 Kinds of Initiative

1.  Initiative on the Constitution – petition proposing

amendments to the Constitution.

2.  Initiative on Statutes – petition proposing to enact a

national legislation.

3.  Initiative on local legislation – petition proposing to

enact a regional, provincial, municipal, city or
barangay law, resolution or ordinance.

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Legal Test: The Court in Lambino considered the two-
part test: the quantitative test and the qualitative test.
The quantitative test asks whether the
proposed change is so extensive in its
provisions as to change directly the
substantial entirety of the constitution by the
deletion or alteration of numerous existing
provisions. The court examines only the
number of provisions affected and does not
consider the degree of the change.
LAMBINO VS., ET AL. VS. COMELEC
G.R. No. 174153, October 25, 2006
Under both the quantitative and qualitative tests, the
Lambino Group's initiative is a revision and not merely an
amendment.
Quantitatively, the Lambino Group's proposed changes
overhaul two articles - Article VI on the Legislature and
Article VII on the Executive - affecting a total of 105
provisions in the entire Constitution.
Qualitatively, the proposed changes alter substantially
the basic plan of government, from presidential to
parliamentary, and from a bicameral to a unicameral
legislature.
LAMBINO VS., ET AL. VS. COMELEC
G.R. No. 174153, October 25, 2006
By any legal test and under any jurisdiction,
a shift from a Bicameral-Presidential to a
Unicameral-Parliamentary system, involving the
abolition of the Office of the President and the
abolition of one chamber of Congress, is
beyond doubt a revision, not a mere
amendment. On the face alone of the Lambino
Group's proposed changes, it is readily
apparent that the changes will radically alter
the framework of government as set forth in
the Constitution.
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Legal Test: The Court in Lambino considered the two-
part test: the quantitative test and the qualitative test.
The qualitative test inquires into the qualitative
effects of the proposed change in the constitution.
The main inquiry is whether the change will
“accomplish such far reaching changes in the
nature of our basic governmental plan as to
amount to a revision.” Whether there is an
alteration in the structure of government is a
proper subject of inquiry. Thus, “a change in the
nature of basic governmental plan” includes
“change in its fundamental framework or the
fundamental powers of its Branches.” A change in
the nature of the basic governmental plan also
includes changes that “jeopardize the traditional
form of government and the system of check and
balances.”
LAMBINO VS., ET AL. VS. COMELEC
G.R. No. 174153, October 25, 2006
A change in the structure of government is a
revision of the Constitution, as when the three
great co-equal branches of government in the
present Constitution are reduced into two. This
alters the separation of powers in the
Constitution. A shift from the present Bicameral-
Pr e s i d e n t i a l s y s t e m t o a U n i c a m e r a l -
Parliamentary system is a revision of the
Constitution. Merging the legislative and
executive branches is a radical change in the
structure of government.
LAMBINO VS., ET AL. VS. COMELEC
G.R. No. 174153, October 25, 2006
Where the proposed change applies only to a specific
provision of the Constitution without affecting any other
section or article, the change may generally be
considered an amendment and not a revision.
For example, a change reducing the voting age from
18 years to 15 years is an amendment and not a
revision. Similarly, a change reducing Filipino
ownership of mass media companies from 100
percent to 60 percent is an amendment and not a
revision. Also, a change requiring a college degree as
an additional qualification for election to the
Presidency is an amendment and not a revision.
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LAMBINO VS., ET AL. VS. COMELEC G.R. LAMBINO VS., ET AL. VS. COMELEC
No. 174153, October 25, 2006 - G.R. No. 174153, October 25, 2006 -

Clearly, the framers of the Constitution intended The essence of amendments “directly
that the “draft of the proposed constitutional proposed by the people through initiative
amendment” should be “ready and shown” to upon a petition” is that the entire proposal
the people “before” they sign such proposal.  on its face is a petition by the people.  This
The framers plainly stated that “before they sign
means two essential elements must be
there is already a draft shown to them.”  The
framers also “envisioned” that the people
present. First, the people must author and
should sign on the proposal itself because the thus sign the entire proposal.  No agent or
proponents must “prepare that proposal and representative can sign on their behalf. 
pass it around for signature.”  Second, as an initiative upon a petition, the
proposal must be embodied in a petition.

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FUNDAMENTAL PRINCIPLES
AND STATE POLICIES
Fundamental Principles and
State Policies
Article II of the 1987 Constitution lays
down the rules underlying our system of
government.
It must be adhered to in the conduct of
public affairs and the resolution of public
issues.
Article II, Section 1
“The Philippines is a democratic and republican
State. Sovereignty resides in the people and all
government authority emanates from them.”
Democratic State – shown by aspects of direct
democracy such as initiative and referendum.
Republic – a representative government, a government
run by and for the people. A republican state is one
wherein all government authority emanates from the
people and is exercised by representative chosen by
the people.
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The Preamble
The Preamble is not a source of substantive right. Its
purpose is only to introduce, i.e., “to walk before” the
Constitution.
It serves to indicate the AUTHOR of the Constitution.
It enumerates the primary aims and expresses the
aspiration of the framers in drafting the Constitution
and also useful as an aid in the construction and
interpretation of the text of the Constitution.
Article II – Declaration of Principles
and State Policies
General Rule – the general provisions are NOT self-
executing provision of the Constitution. They have
been invariably considered as NOT sources of
enforceable rights and serve merely as guides in
formulating and interpreting implementing
legislation.
Exceptions – Section 15 (peoples right to health),
Section 16 (people’s right to a balanced and
healthful ecology) and Section 28 (policy of full
public disclosure).
Manifestations of Republicanism
1.  Ours is a government of laws and not of men.
2.  Rule of majority (plurality in election)
3.  Accountability of public officials
4.  Bill of rights
5.  Legislature cannot pass irrepealable laws.
6.  Separation of powers
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Villavicencio v. Lukban – 39 Phil. 778
Justo Lukban, as Manila City's Mayor, together with
Anton Hohmann, the city's Chief of Police, took
custody of about 170 women at the night of
October 25 without their consent and knowledge
and shipped them to Davao where they were
signed as laborers.
Said women are inmates of the houses of
prostitution situated in Gardenia Street, in the
district of Sampaloc. Villavicencio thus filed a
petition for habeas corpus.
Article II, Section 2
“The Philippines renounces war as an
instrument of national policy, adopts the
generally accepted principles of
international law as part of the law of the
land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and
amity with all nations.”
Article II, Section 2
Doctrine of Incorporation
Every State, by reason of membership in
the family of nations, is bound by the
generally accepted principles of
international law, which are considered to
be automatically part of its own laws.
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Villavicencio v. Lukban – 39 Phil. 778
The Supreme Court granted the petition,
reasoning that public officials, within the reach
of process, may not be permitted to restrain a
fellow citizen of her liberty by forcing her to
change her domicile and to avow the act with
impunity in the courts, while the person who has
lost her birthright of liberty has no effective
recourse.
Article II, Section 2
§  The Philippines renounces AGGRESSIVE,
not DEFENSIVE war.
§  The State is duty bound to defend its
citizens.
§  Under the Constitution, the prime duty of
the government is to serve and protect the
people.
“Generally accepted principles of
international law” refers to norms of
general or customary international law
which are binding on all states.
For example:
ü  renunciation of war as an instrument of
national policy,
ü  the principle of sovereign immunity,
ü  a person’s right to life, liberty and due
process, and.
ü   pacta sunt servanda
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q Generally accepted principles of international law,
by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even
if they do not derive from treaty obligations.
q The classical formulation in international law sees
those customary rules accepted as binding result
from the combination of two elements: the
established, widespread, and consistent practice on
the part of States; and a psychological element known
as the opinion juris sive necessitates (opinion as to law
or necessity).
q Customary rules are established by a process of
reasoning based on the common identity of all legal
systems.  force of domestic law.
Treaties become part of the law of the land
through transformation pursuant to Article
VII, Section 21 of the Constitution which
provides that “no treaty or international
agreement shall be valid and effective unless
concurred in by at least two-thirds of all the
members of the Senate.”
Treaties or conventional international law
must go through a process prescribed by the
Constitution for it to be transformed into
municipal law that can be applied to
domestic conflicts.  impliedly, as a member of the family of nations.
Secretary of Justice v. Lantion
G.R. No. 139465
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Under the 1987 Constitution, international law
can become part of the sphere of domestic
law either by transformation or
incorporation.
ü  The transformation method requires that
an international law be transformed into a
domestic law through a constitutional
mechanism such as local legislation.
ü  The incorporation method applies when,
by mere constitutional declaration,
international law is deemed to have the
Transformation vs. Autolimitation
q  Doctrine of Transformation – generally accepted
rules of international law are not per se binding
upon the state but must first be embodied in
legislation enacted by the lawmaking body and so
transformed into municipal law.
q  Doctrine of Autolimitation – While sovereignty
has traditionally been deemed absolute and all
encompassing on the domestic level, it is however
subject to restrictions and limitations voluntarily
agreed to by the Philippines, expressly or
§  In 1994, an Extradition Treaty between the Republic of the Philippines
and USA was signed to answer their mutual concern for the
suppression of crime both in the state where it was committed and
the state where the criminal may have escaped.
§  In 1999, Secretary of Justice received from the Department of Foreign
Affairs US Note Verbale No. 777 containing a request for the
extradition of Mark Jimenez to the United States. The latter was
charged with (3) counts of attempt to evade tax, (7) counts of fraud by
television and (24) counts of election contribution.
§  Mark Jimenez contented and invoke that he should be afforded with
the right to free access of information as the Constitution provides,
requesting the Secretary of Justice for a copy of the complaint against
him as well as the extradition requested by the US.
§  The DOJ denied his request pursuant to Article 7 of the RP-US
Extradition Treaty which provides that the Philippine Government
must represent the interests of the United States in any proceedings
arising out of a request for extradition.
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ISSUE: Would private respondent's entitlement to
notice and hearing during the evaluation stage of
the proceedings constitute a breach of the legal
duties of the Philippine Government under the RP-
Extradition Treaty?
Assuming the answer is in the affirmative, is there
really a conflict between the treaty and the due
process clause in the Constitution?
§  In a situation, however, where the conflict is irreconcilable and
a choice has to be made between a rule of international law
and municipal law, jurisprudence dictates that municipal law
should be upheld by the municipal courts for the reason that
such courts are organs of municipal law and are accordingly
bound by it in all circumstances.
§  If there exists an unavoidable contradiction between them, the
principle of lex posterior derogat priori - a treaty may repeal a
statute and a statute may repeal a treaty - will apply. But if these
laws are found in conflict with the Constitution, these laws must
be stricken out as invalid. 
§  In states where the Constitution is the highest law of the land,
such as in ours, both statutes and treaties may be invalidated if
they are in conflict with the Constitution.
The doctrine of incorporation, as applied in most countries,
decrees that rules of international law are given equal
standing with, but are not superior to, national legislative
enactments.
In case of conflict, the courts should harmonize both laws first
and if there exists an unavoidable contradiction between
them, the principle of lex posterior derogat priori - a treaty
may repeal a statute and a statute may repeal a treaty - will
apply. But if these laws are found in conflict with the
Constitution, these laws must be stricken out as invalid. 
In states where the constitution is the highest law of the land,
such as in ours, both statutes and treaties may be invalidated
if they are in conflict with the constitution.
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§  Under the doctrine of incorporation, rules of international law
form part of the law of the and land no further legislative action
is needed to make such rules applicable in the domestic
sphere.
§  The doctrine of incorporation is applied whenever municipal
tribunals (or local courts) are confronted with situations in which
there appears to be a conflict between a rule of international
law and the provisions of the constitution or statute of the
local state.
§  Efforts should first be exerted to harmonize them, so as to
give effect to both since it is to be presumed that municipal law
was enacted with proper regard for the generally accepted
principles of international law in observance of the observance
of the Incorporation Clause.
§  In the case at bar, is there really a conflict between international
law and municipal or national law?  There is no occasion to
choose which of the two should be upheld. Instead, there is
a void in the provisions of the RP-US Extradition Treaty, as
implemented by Presidential Decree No. 1069, as regards the
basic due process rights of a prospective extraditee at the
evaluation stage of extradition proceedings.
§  After the filing of the extradition petition and during the judicial
determination of the propriety of extradition, the rights of
notice and hearing are clearly granted to the prospective
extraditee. However, prior to the filing of extradition
petition, the law is silent as to these rights.
§  An application of the basic twin due process rights of notice
and hearing will not go against the treaty or the
implementing law. In the case at bar, Mark Jimenez does not
only face a clear and present danger of loss of property or
employment, but of liberty itself, which may eventually lead to
his forcible banishment to a foreign land.
Article II, Section 3
Civilian authority is, at all times, supreme
over the military.
The Armed Forces of the Philippines is the
protector of the people and the State. Its
goal is to secure the sovereignty of the
State and the integrity of the national
territory.
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Article II, Section 3
How is civilian authority ensured?
1.  By the installation of the President, the
h i g h e s t c i v i l i a n a u t h o r i t y, a s t h e
Commander-in-chief of the Armed Forces
of the Philippines.
2.  Through the requirement that members of
the AFP swear to uphold and defend the
Constitution, which is the fundamental law
of the civil government.
Lagman v. Zosa:
The National Defense Law does not go against
the Constitution but is, on the contrary, in faithful
compliance therewith. The duty of the
Government to defend the State cannot be
performed except through an army.
To leave the organization of an army to the will of
the citizens would be to make this duty of the
Government excusable should there be no
sufficient men who volunteer to enlist therein.
Estrada v. Escritor
492 SCRA 1
In the Philippine context, the
Supreme Court categorically ruled
that “the Filipino people, in
adopting the Constitution,
manifested their adherence to the
benevolent neutrality approach that
re q u i re s a c c o m m o d a t i o n s i n
interpreting their religion clauses.
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Article II, Section 4
The prime duty of the Government is to
serve and protect the people.
The Government may call upon the
people to defend the State and, in the
fulfillment thereof, all citizens may be
required, under the conditions provided
by law, to render personal military or civil
service.
Article II, Section 6
“The separation of church and state shall
be inviolable.”
Cross refer to Art. III, Sec. 5 of Bill of Rights:
“No law shall be made respecting an
establishment of religion or prohibiting the
free exercise thereof.”
§  The Supreme Court dismissed the immorality
charges against respondent Escritor based on her
having cohabited with a person other than her
husband upon finding said arrangement was
sanctioned under her religion, invoked, among
other principles, the so-called benevolent
neutrality approach.
§  The benevolent neutrality approach gives room
for accommodation of religious exercises as
required by the Free Exercise Clause and for
accommodation of morality based on religion,
provided it does not offend compelling state
interests.
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§  The Court held that conjugal arrangement cannot
be penalized as she has made out a case for
exemption from the law based on her fundamental
right to freedom of religion.
§  In the area of religious exercise as a preferred
freedom, however, man stands accountable to an
authority higher than the state, and so the state
interest sought to be upheld must be so
compelling that its violation will erode the very
fabric of the state that will also protect the
freedom.
§  In the absence of a showing such state interest
exists, man must be allowed to subscribe to the
Infinite.
Oposa v. Factoran
224 SCRA 792
An action was filed by several minors represented by
their parents against the Department of Environment
and Natural Resources to cancel existing timber license
agreements in the country and to stop issuance of new
ones. It was claimed that the resultant deforestation
and damage to the environment violated their
constitutional rights to a balanced and healthful
ecology and to health.
Do minors have cause of action to prevent
misappropriation or impairment of Philippine
rainforest?
Article II, Section 25
“The State shall ensure the autonomy of
local governments.”
q  Cross refer to Art. X – Local Government,
1987 Constitution.
q  The LGUs are the small republics from which
great one derives its strength. The vitalization
of the LGUs will enable its inhabitants to
develop their resources and thereby
contribute to the progress of the whole
nation.
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Article II, Section 16
“The State shall protect and advance
the right of the people to a balanced
and healthful ecology in accord with
the rhythm and harmony of nature.”
RULING: The Supreme Court, recognizing the
intergenerational responsibility of the petitioners
as the basis of their standing, held that the right to a
balanced and healthful ecology is explicitly provided
in Art. II, Sec. 16 of the Constitution.
While it is found under the Declaration of Principles
and State Policies, not Bill of Rights, but it is not any
less important than any civil and political rights
enumerated in the latter.
It concerns nothing less than self-preservation and
self-perpetuation and is assumed to exist from the
inception of mankind. Thus, those provisions are
self-executing.
q  The power of local government to impose
taxes and fees is always subject to
limitations which Congress may provide by
law. The principle of local autonomy under
the 1987 constitution simply means
decentralization.
q  It does not make local governments
sovereign within the state of an
“imperium in imperio” (unlike in a Federal
System).
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Article II, Section 26
“The State shall guarantee equal
access to opportunities for public
service and prohibit political
dynasties as may be defined by
law.”
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Article II, Section 26
§  This does not mean that everyone can run;
it is subject to the provisions of applicable
statutes.
§  All are given the opportunity but Article II,
Section 26 is not a matter of right. Thus, this
provision is not self-executing; it merely
specifies a guideline for legislative action.
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SEPARATION OF POWERS
Purpose
§  To prevent the concentration of authority in
one person or group of persons that might
lead to irreparable error or abuse in its
exercise to the detriment of republican
institutions.
§  The purpose is not to avoid friction, but, by
means of the inevitable friction incident to
the distribution of governmental powers
among the three departments, to save the
people from autocracy.
Blending of Powers
§  The instance when powers are not
confined exclusively within one
department but are in fact assigned to
or shared by several departments.
§  As a result, there is some difficulty in
classifying some of them as definitely
legislative, executive or judicial.
21/09/20
Separation of Powers
§  It means that the legislation belongs to
t h e C o n g re s s , e x e c u t i o n t o t h e
Executive, and settlement of legal
controversies to the Judiciary.
§  Each is therefore prevented from
invading the domain of the others.
Purpose
The keynote of conduct of the various
agencies of the government under the
doctrine of separation of powers is not
independence but interdependence.
- Justice Laurel
Blending of Powers:
Enactment of General Appropriations Law
1.  President prepares the budget
2.  Budget becomes the basis of the bill
adopted by Congress
3.  Bill is submitted by Congress to the
President who may then approve it
1

Blending of Powers:
Grant of Amnesty by the President
1.  President grants amnesty to a group or
class of persons, usually for a political
offense.
2.  Concurrence of a majority of all the
members of the Congress is required
(Art. VI, Sec. 19).
Checks and Balances- EXECUTIVE CHECK
Executive Check on Legislative Department:
§  Through its veto power.
Executive Check on Judiciary:
§  Through its power of pardon, it may set aside the
judgment of the Judiciary.
§  Also by power of appointment, i.e., the power to
appoint members of the Judiciary.
Checks and Balances- LEGISLATIVE CHECK
Legislative Check on Judiciary:
1.  Revoke or amend the decisions by either:
enacting a new law or amending the old law
2.  Impeachment of the members of the Supreme
Court
3.  Define, prescribe, apportion jurisdiction of lower
courts: a) prescribe the qualifications of lower
court judges; b) Impeachment; c) determination
of salaries of judges
21/09/20
Checks and Balances
It allows one department to resist
encroachments upon its
prerogatives or to rectify mistakes
or excess committed by the other
departments.
Checks and Balances- LEGISLATIVE CHECK
Legislative Check on Executive Department:
1.  Override the veto of the President
2.  Reject certain appointments made by the
President
3.  Revoke the proclamation of martial law or
suspension of the privilege of the writ of
habeas corpus
4.  Impeachment
5.  Determine the salaries of the President or Vice-
President
Checks and Balances- JUDICIARY CHECK
It may declare (through the Supreme
Court as the final arbiter) the acts of
both the legislature and executive as
unconstitutional or invalid so long as
there is grave abuse of discretion.
2

The Role of the Judiciary
The Judiciary sees to it that the constitutional
distribution of powers among the
departments of the government is respected
and observed but this does not mean that is
it superior to the other departments.
What it is upholding is not its own
supremacy but the supremacy of the
Constitution.
Justiciable Question
A purely justiciable question implies a
given right, legally demandable and
enforceable, an act or omission violative
of such right, and a remedy granted
and sanctioned by law, for breach of
such right.
Gonzales
v.
Office of the President
GR No. 196231, September 4, 2012
Can a Deputy or the Special Prosecutor
be removed from office by the President?
21/09/20
The Role of the Judiciary
The first and safest criterion to determine whether
the given power has been validly exercised by a
particular department is whether the power has been
constitutionally conferred upon the department
claiming its exercise.
In the absence of express conferment, the exercise of
the power may be justified under the Doctrine of
Necessary Implication – the grant of express power
carried with it all other powers that may be
reasonably inferred from it.
Political Question
Where the matter falls under the
discretion of another department or
specially the people themselves, the
decision reached is in the category of a
political question and consequently
may not be the subject of judicial
review.
Gonzales v. Office of the President
GR No. 196231, September 4, 2012
§  Subjecting the Deputy Ombudsman to discipline and
removal by the President, whose own alter egos and
officials in the Executive Department are subject to the
Ombudsman’s disciplinary authority, cannot but
seriously place at risk the independence of the Office of
the Ombudsman itself.
§  The Office of the Ombudsman, by express constitutional
mandate, includes its key officials, all of them tasked to
support the Ombudsman in carrying out her mandate.
§  Section 8(2) of RA No. 6770 violates the independence
of the Office of the Ombudsman, and the principle of
checks and balances.
3

Gonzales v. Office of the President
GR No. 196231, September 4, 2012
§  What is true for the Ombudsman must be equally
and necessarily true for her Deputies who act as
agents of the Ombudsman in the performance of
their duties.
§  The Ombudsman can hardly be expected to place
her complete trust in her subordinate officials who
are not as independent as she is, if only because
they are subject to pressures and controls external
to her Office.
§  For these reasons, Section 8(2) of RA No. 6770
(providing that the President may remove a Deputy
Ombudsman) should be declared void.
New Definition of Judicial Review
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
21/09/20
Political Questions
Under the New Constitution
The scope of political question has been
considerably constricted under the new definition of
judicial power, which now “includes the duty to
determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government.
This duty and power is available against the
executive and legislative departments in the exercise
of their discretionary powers.
New Definition of Judicial Review
The term "grave abuse of discretion" has a specific
meaning. An act of a court or tribunal can only be
considered as with grave abuse of discretion when such
act is done in a "capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction." The
abuse of discretion must be so patent and gross as to
amount to an "evasion of a positive duty or to a virtual
refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in
an arbitrary and despotic manner by reason of passion
and hostility." Furthermore, the use of a petition for
certiorari is restricted only to "truly extraordinary cases
wherein the act of the lower court or quasi-judicial body is
wholly void."
4

DELEGATION OF POWERS
Permissible Delegations
1.  Delegation to the People through initiative
and referendum (Sec.1, Art. VI)
2.  Emergency powers delegated by Congress
to the President [Sec. 23(2), Art. VI]
3.  Congress may delegate Tariff powers to the
President [Sec. 28(2), Art. VI]
4.  Delegation to Administrative bodies
5.  Delegation to Local Governments
Delegation to the People through
Initiative and Referendum - [Sec. 1, Art. VI]
21/09/20
Principle of Non-Delegation of Power
-  Potestas delegata non delegari potest –
what has been delegated cannot be
delegated.
-  Delegated power constitutes not only a
right but a duty to be performed by the
delegate through the instrumentality of
his own judgment and not through
intervening mind of another.
Delegation of Powers
The reason is the increasing complexity of the
task of government and the growing inability
of the legislature to cope directly with the
many problems demanding its attention.
The growth of society has ramified its activities
and created peculiar and sophisticated
problems that the legislature cannot be
expected reasonably to comprehend.
INITIATIVE has been described as an instrument of direct democracy
whereby the citizens directly propose and legislate laws. As it is the citizens
themselves who legislate the laws, direct legislation through initiative
(along with referendum) is considered as an exercise of ORIGINAL
LEGISLATIVE POWER,  as opposed to that of DERIVATIVE LEGISLATIVE
POWER which has been delegated by the sovereign people to legislative
bodies such as the Congress.
§  Section 1 of Article VI of the Constitution recognizes the distinction
between original and derivative legislative power by declaring that
"legislative power shall be vested in the Congress x x x except to the
extent reserved to the people by the provision on initiative and
referendum."
§  The italicized clause pertains to the original power of legislation which
the sovereign people have reserved for their exercise in matters they
consider fit.
§  Considering that derivative legislative power is merely delegated by
the sovereign people to its elected representatives, it is deemed
subordinate to the original power of the people.
1
 21/09/20

"PLEBISCITE" is the electoral process by which
an initiative on the Constitution is approved
or rejected by the people. [Sec. 3(a), RA 6735 –
The Initiative and Referendum Act]
 
"REFERENDUM" is the power of the electorate
to approve or reject a legislation through an
election called for the purpose; e.g.
re f e re n d u m o n s t a t u t e s ; t w o c l a s s e s :
referendum on statutes, and referendum on
local laws. [Sec. 3(c), RA 6735 – The Initiative
and Referendum Act]
Emergency Powers - [Sec. 23(2), Art. VI]
In times of war or other national emergency,
the Congress may, by law, authorize the
President, for a limited period and subject to
such restrictions as it may prescribe, to
exercise powers necessary and proper to
carry out a declared national policy. Unless
sooner withdrawn by resolution of the
Congress, such powers shall cease upon the
next adjournment thereof.

Emergency Powers Emergency Powers

a.  There must be war or other national There cannot be any delegation of
emergency. emergency powers in the absence of a
b.  The delegation is for a limited period only. national emergency.

c.  Delegation is subject to restrictions as The power is self-liquidating unless sooner

Congress may prescribe. withdrawn.
d.  Emergency powers must be exercised to Conferment of emergency powers to the
carry a national policy declared by President is not mandatory on the Congress.
Congress.

President’s Power to President’s Exercise

Declare a State of of Emergency
National Emergency Powers
Granted by the Requires a delegation
Constitution, no from Congress (David
legitimate objection vs. Arroyo, GR No.
can be raised. 171396, May 3, 2006)
NOTE: Conferment of
emergency powers on
the President is not
mandatory on
Congress.
David v. Arroyo
G.R. No. 171396, May 3, 2006
While the President alone can declare a state of
national emergency, he may NOT invoke this
provision to authorize him during the
emergency to temporarily take over or direct
the operation of any privately owned public
utility or business affected with public interest
without authority from Congress. 
Without legislation, he has no power to take over
privately-owned public utility or business
affected with public interest.

2

Tariff Powers - [Sec. 28(2), Art. VI]
The Congress may, by law, authorize the
President to fix within specified limits, and
subject to such limitations and restrictions
as it may impose, tariff rates, import and
export quotas, tonnage and wharfage
dues, and other duties or imposts within
the framework of the national
development program of the
Government.
Delegation to Administrative Bodies
Power of subordinate legislation –
What is delegated is in fact not ‘law
making’ power but ‘law-executing
power.’ Hence, administrative agencies
have the power to ‘fill in the details’ of a
statute passed by Congress in the
course of its implementation.
Tests of Delegation
1. Completeness Test
If there are gaps in the law that will prevent its
enforcement unless they are first filled, the
delegate will then have been given the
opportunity to step into the shoes of the
legislature and to exercise a discretion
essentially legislative in order to repair
ommissions. Such is an invalid legislation.
21/09/20
Tariff Powers - [Sec. 28(2), Art. VI]
Flexible Tariff Clause – granted to the
President under Tariff and Customs Code.
Based on necessity of giving the chief
executive authority to act immediately on
certain matters affecting the national
economy lest delay result in hardship to
the people.
Tests of Delegation
1. Completeness Test
The law must be complete in all essential
terms and conditions when it leaves the
legislature so that there will be nothing left
for the delegate to do when it reaches him
except to enforce it.
Tests of Delegation
2. Sufficient Standard Test
If the law does not spell out in detail the limits
of the delegate’s authority, it may be
sustained if delegation is made subject to a
sufficient standard.
The sufficient standard defines legislative
policy, marks its limits, maps out the
boundaries of the delegate’s authority and
indicates the circumstances under which it
is to be pursued and effected. Its purpose is
to prevent total transference of legislative
power.
3

U.S. v. Ang Tang Ho
43 Phil. 1
A law authorized the Governor-General to issue
or promulgate temporary rules and
emergency measures when conditions arise
resulting in extraordinary rise the price of palay,
rice or corn. A regulation fixing ceiling prices of
the foregoing cereals was made by the
Governor-General.
The law was challenged for being an invalid
delegation of legislative power for failure to
conform to the completeness test.
Abakada Guro Party List v.
Exec. Secretary
GR No. 168056, September 1, 2005
RULING: There was no undue
delegation of legislative power.
It is simply a delegation of
ascertainment of facts upon which
enforcement and administration of the
i n c re a s e ra t e u n d e r t h e l a w i s
contingent.
21/09/20
U.S. v. Ang Tang Ho
43 Phil. 1
The law was declared unconstitutional. The
promulgation of temporary rules and
emergency measures is left to the
discretion of the Governor-General. The
legislature does not undertake to specify or
define under what conditions or for what
reasons the Governor-General shall issue
the proclamation but says it may be issued
for any cause and leaves the question of
what is any cause to the discretion of the
Governor-General.
Abakada Guro Party List v.
Exec. Secretary
GR No. 168056, September 1, 2005
The legislature has made the operation of the 12%
rate effective January 1, 2006, contingent upon a
specified fact or condition. It leaves the entire
operation or non-operation of the 12% rate upon
factual matters outside of the control of the
executive.
Congress did not delegate the power to tax to the
President.
The intent and will to increase the VAT rate to 12%
came from Congress and the task of the President is
simply to execute the legislative policy.
4

FUNDAMENTAL PRINCIPLES
AND STATE POLICIES
(Continuation)
Sec. 8, Art. II, 1987 Constitution
The Philippines, consistent with the national
interest, adopts and pursues a policy of
freedom from nuclear weapons in its territory.  people from poverty through policies that
Sec. 10-11, Art. II, 1987 Constitution
Section 10. The State shall promote social
justice in all phases of national development. 
Section 11. The State values the dignity of
every human person and guarantees full
respect for human rights.  natural and primary right and duty of parents
21/09/20
Sec. 7, Art. II, 1987 Constitution
The State shall pursue an independent
foreign policy. In its relations with other
states, the paramount consideration shall be
national sovereignty, territorial integrity,
national interest, and the right to self-
determination.
Sec. 9, Art. II, 1987 Constitution
The State shall promote a just and dynamic
social order that will ensure the prosperity
and independence of the nation and free the
provide adequate social services, promote
full employment, a rising standard of living,
and an improved quality of life for all.   
Sec. 12, Art. II, 1987 Constitution
The State recognizes the sanctity of family life
and shall protect and strengthen the family as
a basic autonomous social institution. It shall
equally protect the life of the mother and the
life of the unborn from conception. The
in the rearing of the youth for civic efficiency
and the development of moral character shall
receive the support of the Government.
1

Sec. 13, Art. II, 1987 Constitution
The State recognizes the vital role of the
youth in nation-building and shall promote
and protect their physical, moral, spiritual,
intellectual, and social well-being. It shall
inculcate in the youth patriotism and
nationalism, and encourage their
involvement in public and civic affairs.  promote the right to health of the people and
Sec. 16-18, Art. II, 1987 Constitution
Section 16. The State shall protect and advance the
right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of
nature.  by Filipinos.
Section 17. The State shall give priority to education,
science and technology, arts, culture, and sports to
foster patriotism and nationalism, accelerate social
progress, and promote total human liberation and
development. 
Section 18.  The State affirms labor as a primary
social economic force. It shall protect the rights of
workers and promote their welfare.
Sec. 22-24, Art. II, 1987 Constitution
Section 22. The State recognizes and promotes the
rights of indigenous cultural communities within the
framework of national unity and development.  Section 26.  The State shall guarantee equal access to
Section 23.  The State shall encourage non-
governmental, community-based, or sectoral
organizations that promote the welfare of the nation. 
Section 24.  The State recognizes the vital role of
communication and information in nation-building.  Section 28.  Subject to reasonable conditions prescribed
21/09/20
Sec. 14-15, Art. II, 1987 Constitution
Section 14. The State recognizes the role of
women in nation-building, and shall ensure
the fundamental equality before the law of
women and men. 
Section 15.  The State shall protect and
instill health consciousness among them. 
Sec. 19-21, Art. II, 1987 Constitution
Section 19. The State shall develop a self-reliant and
independent national economy effectively controlled
 
Section 20.  The State recognizes the indispensable
role of the private sector, encourages private
enterprise, and provides incentives to needed
investments. 
Section 21. The State shall promote comprehensive
rural development and agrarian reform. 
Sec. 25-28, Art. II, 1987 Constitution
Section 25. The State shall ensure the autonomy of local
governments.
opportunities for public service and prohibit political
dynasties as may be defined by law. 
Section 27. The State shall maintain honesty and integrity
in the public service and take positive and effective
measures against graft and corruption. 
by law, the State adopts and implements a policy of full
public disclosure of all its transactions involving public
interest.
2

THE CONCEPT
OF THE STATE
Elements of a State
1.  People – inhabitants of the State
2.  Territory – a fixed portion of the surface of the earth
inhabited by the people of the State
3.  Government – the agency or instrumentality
through which the will of the State is formulated,
expressed and realized
4.  Sovereignty – the supreme and uncontrollable
power inherent in a State by which that State is
governed.
The Province of North Cotabato v.
The GRP Peace Panel on Ancestral Domain
The proposed Memorandum of Agreement on the
Ancestral Domain between GRP and the MILF
which would pave the way for the conversion of
Bangsamoro Juridical Entity (BJE), sought to be
established under said proposed Agreement
purportedly as an “expanded version” of the
ARMM, into a state was declared
UNCONSTITUTIONAL by the Supreme Court.
21/09/20
State vs. Nation
STATE – a community of persons, more or less
numerous, permanently occupying a fixed
territory, and possessed of an independent
government organized for political ends to which
the great body of inhabitants render habitual
obedience; a legal concept.
NATION – indicates a relation of birth or origin
and implies a common race, usually
characterized by community of language and
customs; a racial or ethnic concept.
Montevideo Convention:
Criteria for the Establishment of a State
1.  Permanent population
2.  Defined Territory
3.  Government
4.  Capacity to enter into relations with
other states
The Province of North Cotabato v. The
GRP Peace Panel on Ancestral Domain
Under the proposed MOA:
-  The Bangsamoro people are acknowledged as having
the right to self governance, rooted on ancestral
territoriality exercised originally under the suzerain
authority of their sultanates and the Pat a Pangampong
ku Ranaw.
-  The BJE is free to enter into any economic
cooperation and trade relations with foreign
countries and shall have the option to establish trade
missions in those countries.
1

The Province of North Cotabato v. The
GRP Peace Panel on Ancestral Domain
The said provisions led the Supreme Court to
describe the relationship of the Central Government
and the BJE under the proposed agreement as
“associative, characterized by shared authority and
responsibility.”
In international practice, the associated state
arrangement has been used as a transitional device
of former colonies on their way to full independence.
T e r r i t o r i a l S e a
(12 nautical miles)
21/09/20
The Province of North Cotabato v. The
GRP Peace Panel on Ancestral Domain
The BJE is not merely an expanded version of the
ARMM, the status of its relationship with the national
government being fundamentally different from that
of the ARMM.
BJE is a state in all but name as it meets the criteria of
a state laid down in the Montevideo Convention –
p e r m a n e n t p o p u l a t i o n , d e f i n e d t e r r i t o r y,
government, and capacity to enter into relations with
other states.
Article I – National Territory
“The national territory comprises the Philippine
archipelago, with all the islands and waters
embraced therein, and all other territories over which
the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial and aerial domains,
including its territorial sea, the seabed, the subsoil,
the insular shelves, and other submarine areas. The
waters around, between, and connecting the islands
of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the
Philippines.”
“All other territories over which the
Philippines has sovereignty or jurisdiction”
This includes any territory which presently belongs
or might in the future belong to the Philippines
through any of the internationally accepted modes
of acquiring territory.
It also includes territories belonging to the
Philippines by “historic or legal title,” that is, other
territories which, depending on available
evidence, might belong to the Philippines (e.g.
Sabah, the Marianas, Freedomland).
2

“…waters around, between and connecting
the islands of the archipelago”
The Philippines claims them as part of
its “internal waters” irrespective of its
breath and dimension. This is one of
the elements of the archipelagic
principle which is now recognized
under the 1982 Convention on the
Law of the Sea.
Archipelago as defined by
Article 46 of UNCLOS
A group of islands, including parts of the
islands, interconnecting waters and other
n a t u ra l f e a t u re s w h i c h a re c l o s e l y
interrelated that such islands, waters, and
other natural resources form an intensive
geographical, economic, political entity or
to have historically regarded as an
archipelago.
§  Under UNCLOS, a nation's  internal waters  include waters on
the side of the baseline of a nation's territorial waters that is
facing toward the land, except in  archipelagic states.  It includes
waterways such as rivers and canals, and sometimes the water
within small  bays. Lakes and rivers are considered  internal
waters.
§  All "archipelagic waters" within the outermost islands of
an archipelagic state (like Indonesia or the Philippines) are also
considered  internal waters, and are treated the same with the
exception that innocent passage must be allowed.
§  In inland waters, sovereignty of the state is equal to that which it
exercises on the mainland. The coastal state is free to make laws
relating to its internal waters, regulate any use, and use any
resource. In the absence of agreements to the contrary, foreign
vessels have no right of passage within internal waters, and
this lack of right to  innocent passage  is the key difference
between internal waters and territorial waters.  
21/09/20
Straight baseline method
This consists of drawing straight lines connecting appropriate
points on the coast without departing to any appreciable extent
from the general direction of the coast. These baselines divide
the internal waters from the territorial waters of an archipelago.
Baselines are lines drawn along the low water mark of an island
or group of islands which mark the end of the internal waters
and the beginning of the territorial sea. Each country must
draw its own baselines according to the provisions of the Law of
the Sea.
Republic Act No. 9522
It redrew the country’s baseline to comply with the UNCLOS III
requirements for archipelagic state. The law provides one
baseline around the archipelago and separate baselines for the
“regime of islands” outside the archipelago.
In the process, it EXCLUDED the disputed Kalayaan Island Group
and the Scarborough from the main archipelago (and
baselines) and classified them instead as “regimes of islands.”
The national territory constitutes a roughly triangular delineation
which excludes large areas of waters within 600 miles by 1,200
miles rectangular enclosing the Philippine archipelago as defined
in the Treaty of Paris.
Determines the country’s extended continental shelf which is
believed to contain substantial amounts of oil, natural gas, minerals
and polymetals.
Magallona vs. Ermita
G.R. No. 187167, 16 July 2011
Pe t i t i o n e r s c h a l l e n g e d t h e
Constitutionality of RA No. 9522 on two
grounds:
A.) It reduces Philippine maritime territory
B.) It opens the country’s waters landward
of the baselines to maritime passage by all
vessels and aircrafts, undermining
Philippine sovereignty and national
security.
3

Magallona vs. Ermita
§  The Supreme Court rejected the
Petitioners contentions.
§  UNCLOS III has nothing to do with the
acquisition or loss of territory. It is a
multilateral treaty regulating sea-use
rights over maritime zones (e.g.
territorial sea), contiguous zones,
exclusive economic zone and
continental shelves that UNCLOS III
delimits.
Magallona vs. Ermita
Baseline laws are statutory mechanisms for UNCLOS
III State parties to delimit with precision the extent
of their maritime zones and continental shelves.
This gives notice to the rest of the international
community of the scope of the maritime space and
submarine areas within which State parties exercise
treaty-based rights, e.g. the exercise of sovereignty
over territorial waters; the jurisdiction to enforce
customs, fiscal, immigration and sanitation laws in the
contiguous zone; and the right to exploit the living
and non-living resources in the exclusive economic
zone and continental shelf.
21/09/20
Magallona vs. Ermita
KIG and Scarborough Shoal are located at an
appreciable distance from the nearest shoreline of
the Philippine archipelago. Any straight baseline
loped around them from the nearest basepoint will
inevitably depart to an appreciable extent from the
general configuration of the archipelago.
Congress’ decision to classify KIG and Scarborough
Shoal as “regimes of islands” consistent with Article
121 of UNCLOS III manifests the Philippines’
responsible observance of its pacta sunt servanda
obligation under UNCLOS III.
INNOCENT PASSAGE TRANSIT PASSAGE
Pertains to navigation of ships Includes the right of overflight
only
Requires submarines and other Submarines are allowed to
underwater vehicles to navigate navigate in normal mode – i.e.
on the surface and show their submerged
flag.
Can be suspended, but under Cannot be suspended
the condition that it does not
discriminate among foreign
ships, and such suspension is
essential for the protection of
its security, and suspension is
effective only after having been
duly published (Art. 25,
UNCLOS)
4

Government
§  The agency or instrumentality through which the
will of the State is formulated, expressed and
realized.
§  Our government is democratic and republican.
§  The mandate of the government from the State is to
promote the welfare of the people.
Doctrine of Parens Patriae
§  The government is the guardian of the rights of the people.
§  See GPI v. Monte de Piedad – re: right of the government to
file an action for recovery of claims in representation of the
legitimate claimants.
§  See Cabanas v. Pilapil – the government chose the mother
of an illegitimate child as against his uncle to be the trustee
of the insurance proceeds left him by his father, who had
expressly designated the uncle.
§  See Soriano v. Laguardia – re: suspension of Soriano’s
religious TV program by MTRCB due to uttered expletives in
the course of said program.
§  See Dela Cruz v. Garcia – re: registration of an illegitimate
child using the surname of his deceased father.
Define: Government of the Philippines
(Actual Bar Question)
The Government of the Philippines is defined as
the corporate governmental entity through which
the functions of government are exercised
throughout the Philippines, including, save as the
contrary appears from the context, the various
arms through which political authority is made
effective in the Philippines, whether pertaining to
the autonomous regions, the provincial, city,
municipal or barangay subdivisions or other form
of local government.
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Functions of the Government
§  Constituent functions: constitute the very bonds
of society and are therefore compulsory.
§  Ministrant functions: those undertaken to
advance the general interests of society, such as
public works, public charity, and regulation of
trade and industry. These functions are merely
optional.
§  NOTE: In PVTA v. CIR, such distinction has been
blurred because of the repudiation of the laissez
faire policy in the Constitution.
De Jure and De Facto Governments
§  A de jure government has rightful title but no
power or control, either because this has been
withdrawn from it or because it has not yet
actually entered into the exercise thereof.
§  A de facto government is a government of fact,
i.e., it actually exercises power or control but
without legal title.
§  See three (3) kinds of de facto government.
Sovereignty
It is the supreme and uncontrollable power
inherent in a State by which that State is governed.
Two kinds of sovereignty:
1. Legal – the authority which has the power to
issue final commands.
2. Political – power behind the legal sovereign, or
the sum of the influences that operate upon it.
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Sovereignty: characteristics
1.  Permanent
2.  Exclusive
3.  Comprehensive
4.  Absolute
5.  Indivisible
6.  Inalienable
7.  Imprescriptible
Sovereignty
§  In a BELLIGERENT OCCUPATION, the
POLITICAL LAWS are merely suspended, subject
to revival under the concept of jus postliminium
upon the end of the occupation.
§  Non-political laws are deemed continued unless
changed by the belligerent occupant since they
are intended to govern the relations of
individuals as among themselves and are not
generally affected by changes in regimes or
rulers.
Dominium v. Imperium
Dominium refers to the capacity to own or
acquire property, including lands held by
the State in its proprietary capacity.
Imperium is the authority possessed by
the State embraced in the concept of
sovereignty.
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Sovereignty
§  It is not deemed suspended although acts of
sovereignty cannot be exercised by the
legitimate authority.
§  Thus, sovereignty over the Philippines remained
with the United States during the Japanese
occupation although the Americans could not
exercise any control over the occupied territory
at the time. What the belligerent occupant took
over was only the exercise of acts of
sovereignty.
Macariola v. Asuncion
114 SCRA 77
Article 14 of the Code of Commerce
prohibiting judges from engaging in
commerce was political in nature
and so was automatically abrogated
with the end of Spanish rule in the
country.
Act of State
It is an act done by the sovereign power of a
country, or by its delegate, within the limits of the
power vested in him. It cannot be questioned or
made the subject of legal proceedings in a court of
law.
As regards Political Law, an act of state is an act
done by the political departments of the
government and not subject to judicial review. For
example, the recognition to a newly-established
foreign State or government made by the
President in the exercise of his diplomatic power.
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THE DOCTRINE OF
STATE IMMUNITY
Doctrine of State Immunity –
when applied to foreign states
§  General rule: The doctrine is also available to
foreign states on the basis of the maxim par in
parem non habet imperium – sovereign
equality of states.
§  Exception: Foreign states may be sued if (1)
engaged regularly in a business or trade, or (2)
enters into a contracts in the host state which
are purely commercial, private and proprietary
acts (juri gestionis).
§  Exception to the exception: Contracts
entered into by it as governmental or
sovereign acts (juri imperii).
U.S. v. Ruiz
136 SCRA 487
§  It does not apply where the contract relates
to the exercise of its sovereign functions.
§  The contract for the repair of wharves was a
contract in jure imperii, because the
wharves were to be used in national
defense (for both US and the Philippines),
indisputably a governmental function of
the highest order, not utilized for nor
dedicated to commercial or business
purposes.
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Doctrine of State Immunity
§  The royal prerogative of dishonesty.
§  The State may not be sued without its consent.
§  Indiscriminate suits against the State will result in
the impairment of its dignity, being a challenge to
its supposed infallibility.
§  Based on the logical and practical ground that
there can be no legal right against the authority
which makes the law on which the right depends.
U.S. v. Ruiz
136 SCRA 487
q  The restrictive application of State immunity is
proper only when the proceedings arise out of
commercial transactions of the foreign
sovereign, its commercial activities or economic
affairs.
q  A State may be said to have descended to the
level of an individual and can thus be deemed to
have tacitly given its consent to be sued only
when it enters into business contracts.
U.S. v. Guinto
182 SCRA 644
§  The operation by the United States
Government of restaurants in Camp
John Hay in Baguio City and of
barbershops in Clark Air Base, these
establishments being open to the
public for a fee, were proprietary in
nature and so not covered by the
doctrine of state immunity.
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The Holy See v. Rosario
238 SCRA 524
§  The Supreme Court dismissed a civil complaint
against the petitioner after the DFA had officially
certified that the Embassy of the Holy See is a duly
accredited diplomatic mission to the Republic of the
Philippines exempt from local jurisdiction and
entitled to all the rights, privileges and immunities of
a diplomatic mission or embassy in this country.
§  The determination of the executive arm of the
government that a state or instrumentality is entitled
to sovereign or diplomatic immunity is a political
question that is conclusive upon the courts.
Waiver of Immunity
Philippines as a State vs. Citizens (natural/juridical)
1. Express consent – manifested through
a. General law
b. Special law
2. Implied consent – given when the State itself
a. Commences litigation
b. When it enters into a contract
Express Consent - General Law
§  Art. 2180 of Civil Code- The State is responsible in
like manner when it acts through a special agent.
§  Art. 2189 of the Civil Code - Provinces, cities and
municipalities shall be liable for damages for the
death of, or injuries suffered by, any person by
reason of the defective condition of roads, streets,
bridges, public buildings, and other public works
under their control or supervision.
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German Agency for Technical Cooperation v.
Court of Appeals
(G.R. No. 152318, April 16, 2009)
An endorsement by the Office of the Solicitor
General on the petitioner’s claim of state immunity
does not inspire the same degree of confidence as a
certification from the DFA would have elicited.
Note: It is only the Department of Foreign Affairs
which has the authority to make a determination of
immunity from suit, although the Court would not be
precluded from making an inquiry into the intrinsic
correctness of such certification.
Express Consent - General Law
Act No. 3083 – the Government of the Philippine
Islands consents and submits to be sued upon any
moneyed claim involving liability arising from contract,
express or implied, which could serve as a basis of civil
action between private parties.
C.A. No. 327, as amended by P.D. No. 1445 – a claim
against the government must first be filed with the
Commission on Audit, which must act upon it within 60
days. Rejection of the claim will authorize the claimant
to elevate the matter to the Supreme Court on
certiorari and in effect sue the State with its consent.
Merritt v. Government of Philippine Islands
§  The State is not responsible for damages suffered by private
individuals in consequence of acts performed by its
employees in the discharge of the functions pertaining to
their office, because neither fault nor even negligence can
be presumed on the part of the State in the organization of
branches of public service and in the appointment of its
agents.
§  The State can only be liable if it acts through a special
agent so that in representation of the state and being bound
to act as an agent thereof, he executes the trust confided to
him.
§  A special agent is one who receives a definite and fixed
order or commission, foreign to the exercise of the duties of
his office if he is a special official.
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Merritt v. Government of Philippine Islands
§  In the case at bar, the ambulance driver was not a
special agent nor was a government officer acting
as a special agent hence, there can be no liability
from the government.
§  The Government does not undertake to guarantee
to any person the fidelity of the officers or agents
whom it employs, since that would involve it in all
its operations in endless embarrassments,
difficulties and losses, which would be subversive
of the public interest.
Republic v. Villasor - 54 SCRA 84
§  When the State gives its consent to be sued, it does not
thereby also give its consent to the execution of the
judgment against it.
§  Execution will require another waiver, lacking which the
decision cannot be enforced against the State.
§  Thus, a writ of execution against the funds of the AFP to
satisfy a judgment rendered against the Philippine
Government is unlawful. Public funds cannot be the
object of garnishment proceedings even if the consent to
be sued had been previously granted and the State
liability adjudged.
Implied Consent
1.  When the government engages in commercial
business – SUABLE; EXCEPTION - if it is merely
incidental to the exercise to its principal governmental
function – NOT SUABLE.
2.  When the government enters into proprietary contract
– SUABLE.
3.  When the government initiates the filing of a
complaint for affirmative relief then that is a waiver of
immunity – SUABLE; EXCEPTION – when the purpose
of filing of the suit to intervene is for the purpose of
resisting a claim against it, hence, the state can still
invoke its immunity from suit.
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Express Consent - Special Law
The express consent of the State to be
sued must be embodied in a duly
enacted statute and may not be given by
mere counsel of the government.
[Hence, the waiver made by the lawyer of Rice and
Corn Administration, a government agency, was not
binding upon the State. (Republic v. Purisima)]
University of the Philippines v. Dizon,
G.R. No. 171182
1.  Properties held for public use – are not subject to
levy and sale under execution against such
corporation.
2.  Properties owned by a municipal corporation
(LGU) in its proprietary capacity – may be seized
and sold under execution against such
corporation.
3.  Property held for public purposes – is not subject
to execution merely because it is temporarily
used for private purpose. Once wholly
abandoned, it becomes subject to execution.
When is a suit considered as suit against
the State?
1.  When the Republic is sued by name
2.  W h e n the suit is against an
U N I N C O R P O R AT E D g o v e r n m e n t
agency
3.  When the suit is on its face against a
government officer but the case is such
that ultimate liability will belong not to
the officer but to the government
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Suit Against Government Agencies
Incorporated agency – has a charter of its
own that invests it with a separate juridical
personality, e.g. SSS, UP, City of Cebu and
City of Manila.
Unincorporated agency – has no
separate juridical personality but is
MERGED in the general machinery of the
government, e.g. Department of Justice,
DILG, and DOE.
Suit Against An Unincorporated Agency
TEST OF SUABILITY is the nature of the primary
functions being discharged. Thus:
1.  If performing GOVERNMENTAL FUNCTIONS –
immunity has been upheld in its favor because its
function is governmental.
2.  If performing PROPRIETARY FUNCTIONS – immunity
has not been upheld in its favor whose function was
not in pursuit of a necessary function of government
but was essentially a business.
(Air Transportation Office v. Spouses David, G.R. No. 159402)
Bar Exam Question - 1989
A property owner filed an action directly in
court against the Republic of the Philippines
seeking payment for a parcel of land which
the national government utilized for a road
widening project?
Can the government invoke the doctrine of
state immunity?
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Suit Against An Incorporated agency
TEST OF SUABILITY is found in its charter.
•  It is suable if the charter says so, and this is
true regardless of its functions.
•  Thus, whether performing GOVERNMENTAL
a n d / o r P R O P R I E TA R Y f u n c t i o n s , a n
INCORPORATED local government unit is
SUABLE if their charter provides that it CAN
SUE AND BE SUED.
Suability v. Liability
Suability depends on the consent of the State to be sued;
liability is based on the applicable law and the established facts.
When the State gives its consent to be sued, all it does is to give
the other party an opportunity to show that the State is liable.
Accordingly, the phrase “waiver of immunity by the State
does not mean a concession of liability” means that by
consenting to be sued, the State does not necessarily admit that
it is liable. Liability is not conceded by the mere fact that the
State has allowed itself to be sued.
In such a case, the State is merely giving the plaintiff a chance to
prove that the State is liable but the State retains the right to
raise all lawful defenses.
Bar Exam Question - 1989
No, the government cannot invoke the
doctrine of state immunity. Jurisprudence
states that when the government
expropriates property for public use without
paying just compensation, it cannot invoke
state immunity from the suit. Otherwise, the
right guaranteed under the Constitution will
be rendered nugatory.