AMENDMENT AND REVISION

Who may propose changes to the Constitution?

• Congress, upon a vote of three-fourth of its members (Sec. 1(1), Art. XVII).

• Congress, upon a vote of three-fourth of its members (Sec. 1(1), Art. XVII).

• People through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented by
at least three per centum of the registered voters therein (Sec. 2, Art. XVII).

What are the two ways by which the Constitution may be changed?
• Amendment
• Revision

REVISION VS. AMENDMENT

• Revision broadly implies a change that alters a basic principle in the constitution. There is also
revision if the change alters the substantial entirety of the constitution.

• Amendment broadly refers to a change that adds, reduces, or deletes without altering the
basic principle involved. Revision generally affects several provisions of the constitution, while
amendment generally affects only the specific provision being amended (Lambino vs.
COMELEC, October 25, 2006).

Tests to Determine the Kind of Change

Quantitative test -It inquires into the number of provision altered, deleted or changed.

Qualitative test - It inquires into the qualitative effect of the proposed changed.

May people’s initiative be used to revise the Constitution?

• No. People’s initiative cannot be sued to revise the Constitution. The rationale for the answer
lies in the constitutional text.
• Section 1, Article XVII provides that amendment or revision may be proposed by Congress and
Constitutional Convention.
• While Section 2 provides that amendment may likewise be proposed by the people.

NATIONAL TERRITORY

Query: Is the definition of national territory under our Constitution internationally binding?

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JUDGE GENER M. GITO,
No. The definition of the Philippine territory under the 1987 Constitution is not binding internationally.
It should be noted that a constitution is a municipal law. Being such, it only binds the nation
promulgating it. Thus, for it to be binding internationally, the extent of national territory under the 1987
Constitution must be supported by proofs which are acceptable under international law.

What is an archipelago?
• An archipelago is a body of water studded with islands.
• Under the United Nations Convention on the Law of the Sea (UNLCOS III), archipelago is
defined as “a group of islands, including parts of islands, interconnecting waters and other
natural features which are so closely interrelated that such islands, waters and other natural
features form an intrinsic geographical, economic and political entity, or which historically have
been regarded as such” (Art. 46[b]).

What is an archipelagic state?

• Archipelagic state means a State constituted wholly by one or more archipelagos and may
include other islands (Art. 46[a], UNCLOS III).

What is archipelagic doctrine?

• Archipelagic doctrine prescribes a principle that archipelago should be considered one
integrated unit instead of being divided into several islands. This can be effected by connecting
the outermost point of the outermost island of the archipelago with a straight baseline and all
the waters inside the baseline shall be considered internal waters.

Is archipelagic doctrine reflected in the definition of territory under Article I?

• Yes. Article I reflects the archipelagic doctrine. The last sentence of Article I provided that
“[T]he 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.”

Is archipelagic doctrine binding under international law?

• NO. archipelagic doctrine is not yet accepted under international law. The United Nations
Convention on the Law of the Sea (UNCLOS III) does not treat the waters inside the baseline
as internal waters. UNCLOS III treats them as “archipelagic waters.”

• NO. archipelagic doctrine is not yet accepted under international law. The United Nations
Convention on the Law of the Sea (UNCLOS III) does not treat the waters inside the baseline
as internal waters. UNCLOS III treats them as “archipelagic waters.”

• When a water is considered internal, it subject to the plenary jurisdiction of the state over
which it has sovereignty and jurisdiction. Such state can disallow the passage of foreign
vessels. Such vessels may only be allowed passage upon the consent of the controlling state.

• Archipelagic water are those waters inside the archipelagic baselines drawn joining the
outermost points of the outermost island of the archipelago. Under UNCLOS III, the
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JUDGE GENER M. GITO,
 archipelagic state has sovereignty over archipelagic water. The sovereignty extends to air
space, as well as to its sea bed and subsoil and resources contained therein. However, unlike
internal water, archipelagic water is subject to the right of innocent passage, which right is
provided by Article 52 of the UNCLOS III.

Magallona vs. Ermita,

August 16, 2011

• Petitioners questioned the constitutionality of RA 9522 on two grounds:

• (a) RA 9522 reduces Philippine maritime territory, and logically, the reach of the
Philippine state’s sovereign power, in violation of Article 1 of the 1987 Constitution,
embodying the terms of the Treaty of Paris and ancillary treaties, and

• (b) RA 9522’s adaptation of UNCLOS “regime of islands” to determine maritime zones

of Kalayaan Group of Island and Scarborough shoal is inconsistent with its claim of
sovereignty over these areas thus violating Article I of the Constitution.

First Issue
• Baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to
delimit with precision the extent of their maritime zones and continental shelves.
• In turn, this gives notice to the rest of the international community of the scope of the maritime
space and submarine areas within which States parties exercise treaty-based rights, namely,
the exercise of sovereignty over territorial waters (Article 2, UNCLOS III), the jurisdiction to
enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33,
UNLCOS III), and the right to exploit the living and non-living resources in the exclusive
economic zone (Article 56, UNCLOS III) and continental shelf (Article 77, UNCLOS III)
Second Issue
• The Baseline Law, by adopting UNCLOS “regime of islands” does not dismember Kalayaan
group of islands and Scarborough shoal from the national territory. The Philippine sovereignty
and jurisdiction were not diminished by the Baseline Law.
• Under UNCLOS, archipelagic state has the right to draw baselines but "[t]he drawing of such
baselines shall not depart to any appreciable extent from the general configuration of the
archipelago" (Article 47 (3) of UNCLOS III).
• Kalayaan Group of Islands are located at an appreciable distance from the nearest shoreline of
the Philippine archipelago.

What are the maritime zones?

• Territorial sea
• It is a sea, the breadth of which does not exceed 12 nautical miles from the baseline
(Art. 3, UNCLOS III).
• Contiguous zone
• It is a sea, the breadth of which does not exceed 24 nautical miles from the baseline
(Art. 33[2], UNCLOS III).

• Exclusive Economic Zone

• It is a sea, the breadth of which does not exceed 200 nautical miles from the baseline
(Art. 57, UNCLOS III).
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JUDGE GENER M. GITO,
 • Continental Shelf
• The continental shelf of a coastal State comprises the seabed and subsoil of the
submarine areas that extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental margin, or to a
distance of 200 nautical miles from the baselines from which the breadth of the territorial
sea is measured where the outer edge of the continental margin does not extend up to
that distance (Art. 76[1], UNCLOS III).
Rights of Coastal States to Maritime Zones
• Territorial sea
• The coastal state has sovereignty over the territorial sea subject to this Convention
and to other rules of international law (Art. 2, UNCLOS III).
• Contiguous zone
• The coastal state has the right to exercise control necessary to
• (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea; and,
• (b) punish infringement of the above laws and regulations committed within its territory
or territorial sea (Art. 33, UNCLOS III).
• Exclusive economic zone
• The coastal state has the sovereign rights for the purpose of exploring and exploiting,
conserving and managing the natural resources. It has also jurisdiction over the
establishment and use of artificial islands, installations and structures; marine scientific
research; and, the protection and preservation of the marine environment (Art. 56,
UNCLOS III)
• Continental shelf
• The coastal state has the exclusive right to explore and exploit its natural resources
(Art. 77, UNCLOS III).

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JUDGE GENER M. GITO,
Doctrine of State Immunity from Suit
Constitutional Basis
“The State may not be sued without its consent.” (Article XVI, Section 3)

Immunity covers other States

Immunity is enjoyed by other States in accordance with the international law principle “par in parem
non habet imperium.”

Immunity also covers the following:

State diplomatic agents
Foreign agent, as long as it can be established that he is acting within the directives of the sending
State
United Nations, as well as its organs and specialized agencies
International organizations or agencies

Suit Against the Officer of the Government

• It is important to determine if the State is the real party in interest, that the claim if proved will
be the direct liability of the State and not merely the officer impleaded.
• The test is whether, assuming the decision is rendered against the public officer impleaded,
the enforcement thereof will require an affirmative act of the State.
Exception when public officer may be sued even without prior consent:
• To compel him to do an act required by law
• To restrain him from performing an illegal act
• To compel payment of damages from an already appropriated assurance fund or to refund tax
over payments
• To secure judgment that the officer may satisfy himself without the state having to a positive
act.
• Where the government itself violated a law because the State cannot be an instrument of
injustice.
Waiver of Immunity
• The State may be sued with its consent.
• There are forms of consent:
o Express- May be manifested either by general or special law
o Implied -When it commences litigation or enters into a contract

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JUDGE GENER M. GITO,