1
POLITICAL LAW
( 2024 EDITION )
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 the inhabitants of its territory. (People v.
Perfecto, G.R. No. L-18463, Oct. 4, 1922)
Constitutional Law- Designates the law embodied in the Constitution
and the legal principles growing out of the interpretation and application
of its provisions by the courts in specific cases
Constitution:
A written instrument enacted by direct action of the people by which the
fundamental powers of government are established, limited, and
defined, and by which these powers are distributed among several
departments, for their more safe and useful exercise, for the benefit of
the body politic
The Constitution both creates the structures of government and limits
their powers. 4. It is the document which serves as the fundamental law
of the state
Philippine Constitution and Effectivity Dates
1. 1935 Constitution: May 14, 1935
2. 1973 Constitution: Jan. 17, 1973
3. 1986 Freedom Constitution: Mar. 25, 1986
4. 1987 Constitution: Feb. 2, 1987
CLASSES OF CONSTITUTION:
Written and Unwritten
a. A written constitution’s precepts are embodied in one document or
set of documents.
b. An unwritten constitution consists of rules which have not been
integrated into a single, concrete form but are scattered in various
sources
Enacted (Conventional) and Evolved (Cumulative)
a. A conventional constitution is enacted formally at a definite time and
place following a conscious or deliberate effort
b.A cumulative body is the result of political evolution, not inaugurated
at any specific time but changing by accretion rather than by any
systematic method.
Rigid and Flexible
1.rigid when it may not be amended except through a special process
distinct from and more involved than the method of changing ordinary
laws
2. flexible when it may be changed in the same manner and through the
same body that enacts ordinary legislation. The Constitution of the UK is
flexible
4BLUE95: The Philippine Constitution is written, conventional and rigid.
Doctrine of Constitutional Supremacy: If a law or a contract violates any
norm of the Constitution, that law or contract, whether promulgated by
the legislative or executive branch of the government or entered into by
private persons for private purposes, is null and void, and without any
force and effect.
SELF-EXECUTING AND NON-SELF EXECUTING PROVISIONS
1. Self-Executing - provisions which are complete in itself and become
operative without the aid of supplementary or enabling legislation
2. Non-Self-Executing - provisions which lay down a general principle
General Rule: The provisions of the Constitution are considered self-
executing, and do not require future legislation for their enforcement.
EXCEPTION:
A.ARTICLE 2. not intended to be self-executing principles ready for
enforcement through the courts. They are used by the judiciary as aids
or as guides in the exercise of its power of judicial review, and by the
legislature in its enactment of laws (Tondo Medical v. Court of Appeals,
G.R. No. 167324, July 17, 2007).
(EXCEPTION TO THE EXCEPTIONS)
Article II, Sec. 16 - The right to a balanced and healthful ecology is self-
executory and does not need an implementing legislation (Oposa v.
Factoran, G.R. No. 101083, July 30, 1993).
Article II, Sec. 28 – The duty of full public disclosure is self-executory
(Province of North Cotabato v. GRP, G.R. No. 183591, Oct. 14, 2008).
Article II, Sec. 15 - The right to health is also self-executing (Imbong v.
Ochoa, G.R. No. 204819, Apr. 8, 2014).
B. The social and economic rights guaranteed in Article XIII are also
non-self executing provisions
AMENDMENTS AND REVISIONS
Two-part test in determining whether a proposal involves an
amendment or revision.
1. Quantitative test
Whether the proposed change is so extensive in its provision as to
change directly the “substance entirety” of the Constitution by the
deletion or alteration of numerous provisions.
2. Qualitative test
change will “accomplish such far-reaching changes in the nature of our
basic governmental plan as to amount to a revision
Necessary Steps to Give Effect to Amendments or Revisions
1. Proposal of amendments or revisions by the proper constituent
assembly
2. Submission of the proposed amendments or revisions to the people
3. Ratification
Doctrine of Proper Submission
A plebiscite may be held on the same day as a regular election
No “piecemeal submission,” e.g. submission of age amendment ahead of
other proposed amendments. (Lambino v. COMELEC, G.R. No.174153,
Oct. 25, 2006)
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AMENDMENT:

3. PEOPLE’S INITIATIVE
alteration of one or a few specific separable provisions of the
Constitution. The changes brought about by amendments will not
For a valid People’s Initiative, there must be:
affect the other provisions of the Constitution
An addition or change within the lines of the original constitution as
1. Petition to propose such amendments must be signed by at least 12%
will effect an improvement, or better carry out the purpose for which it
of all registered voters.
was framed
Examples:
2. Every legislative district must be represented by at least 3% of the
• a change reducing the voting age from 18 years to 15 years;
registered voters therein.
• a change reducing Filipino ownership of mass media companies from
• While the substance of the proposals made by each type of ConAss is
100% to 60%; a change requiring a college degree as an additional
not subject to judicial review, the manner the proposals were made is
qualification for election to the Presidency (Lambino v. COMELEC, G.R.
subject to judicial review.
No. 174153, Oct. 25, 2006).
• Since a ConAss owes their existence to the Constitution, the courts
may determine whether the assembly has acted in accordance with the
Constitution, for example:
WAYS OF PROPOSING AMENDMENTS
o Whether a proposal was approved by the required number of votes in
Congress (acting as a constituent assembly).
o Whether the approved proposals were properly submitted to the
1. CONSTITUENT ASSEMBLY (CONASS) • Acting as a Constituent
people for ratification.
Assembly, the Congress by itself may propose amendments by 3/4 vote
of all its members.
4blue95: No amendment through a People’s Initiative shall be
authorized within 5 years following the ratification of the 1987
4BLUE95 Notes:
Constitution (Feb. 2, 1987) nor more often than once every 5 years
• The power of Congress to propose amendments is NOT part of its
REFERENDUM: NOT A MODE OF PROPOSING AMENDMENT
ordinary legislative power. Congress possesses constituent power only
because it has been specifically given that power by and under the
4blue95: Judicial Review of Amendments: The validity of the process of
conditions of Article XVII
amendment is not a political question because the Court must review if
• Each House may separately formulate amendments by a vote of 3/4 of
constitutional processes were followed.
all its members, and then pass it on to the other house for similar
process. Nothing is said about joint sessions
• Even in a joint session, they must still vote separately because
Congress is bicameral.
Ratification of Proposal if made through People’s Initiative

• Valid when ratified by a majority of votes cast in a plebiscite.

• Plebiscite is held not earlier than 60 days nor later than 90 days after
the certification by COMELEC of the petition's sufficiency.

2. CONSTITUTIONAL CONVENTION (CONCON)

Requisites for Valid Ratification: (PCR)

• Congress may call a ConCon by a 2/3 vote of all its members, or • By a

1. Held in a Plebiscite conducted under the election law.
majority vote of all its members, Congress may submit to the electorate
2. Supervised by the COMELEC.
the question of calling a ConCon.
3. Where only franchised (Registered) voters take part. The Constitution
does not require that amendments and revisions be submitted to the
4blue95 notes:
people in a special election. Thus, they may be submitted for ratification
The choice of either a ConAss or ConCon for the purpose of initiating
simultaneously with a general election.
amendments or revisions is left to the discretion of Congress. In other
words, it is a political question.

• The manner of calling a ConCon is subject to judicial review, because

the Constitution has provided for voting requirements. • If Congress,
4blue95: All the amendments to be proposed by the same Convention
acting as a ConAss, calls for a ConCon but does not provide the details
must be submitted to the people in a single "election" or plebiscite
for the calling of such ConCon, Congress — exercising its ordinary
(Tolentino v. COMELEC, G.R. No. L-34150, Oct. 16, 1971).
legislative power — may supply such details. But in so doing, Congress
(as legislature) should not transgress the resolution of Congress acting as
a constituent assembly

Congress, as a ConAss and the ConCon, has no power to appropriate

money for their expenses. Money may be spent from the treasury only
pursuant to an appropriation made by law. However, the constitutional
convention is free to dispose the funds appropriated by Congress for the
Convention’s operation

Ratification of Proposal if made through ConAss or ConCon

• Amendments and revisions are valid when ratified by a majority of
votes cast in a plebiscite.
• Plebiscite is held not earlier than 60 days nor later than 90 days from
the approval of such amendments or revisions.
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INITIATIVE AND REFERENDUM

REVISION:
A re-examination of the entire Constitution
A change that alters a basic principle in the constitution, like altering the
principle of separation of powers or the system of checks-and-balances
Example: switch from presidential to parliamentary system or from bicameral to
unicameral
Ways of Proposing Revisions
1. By Congress, upon a vote of 3/4 of its members
2. By a Constitutional Convention
4blue95:Revision of the Constitution cannot be effected through initiative and
referendum. Formulation of provisions revising the Constitution requires both
cooperation and debate which can only be done through a collegial body.
4blue95: The process of revision is the same in all respects WITH THAT OF
AMENDMENT except that it cannot be proposed via a People‘s Initiative
4blue95: All the proposed amendments or revisions made by the constituent
assemblies must be submitted for ratification in one single plebiscite. There cannot be
a piece-meal ratification of amendments/revisions.
4blue95: Presidential proclamation is NOT required for effectivity of
amendments/revisions.
• Exception: When the proposed amendments or revisions so provide
Date of Effectivity of an Amendment or Revision
Section 4 of Article XVII, says that any amendment or revision ‗shall be valid when
ratified‘, the date of effectivity of any amendment or revision should be the same as
that of the date of ratification, that is, the day on which the votes are cast. However,
the amendments themselves might specify otherwise.
METHODS OF INTERPRETING THE CONSTITUTION
1. Verba legis – whenever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed;
2. Ratio legis est anima – where there is ambiguity, the words of the Constitution
should be interpreted in accordance with the intent of the framers;
3. Ut magis valeat quam pereat – the Constitution should be interpreted as a whole
4BLUE95: The preeminent consideration in reading the Constitution, therefore, is the
People's consciousness: that is, popular, rather than technical-legal, understanding.
(LEONEN - David v. SET, G.R. No. 221538, Sept. 20, 2016)
1.INITIATIVE
The power of the people to propose amendments to the Constitution or to propose and
enact legislation called for the purpose (R.A. No. 6735, § 3(a))
4blue 95:Example of initiative is change of national anthem and US Bases in the
Philippines.
Three Types of Initiative (CSL)
1. Initiative on the Constitution - A petition proposing amendments to the
Constitution.
2. Initiative on Statutes - A petition proposing to enact a national legislation.
3. Initiative on Local Legislation - A petition proposing to enact a regional, provincial,
city, municipal, or barangay law, resolution or ordinance (R.A. No. 6735, § 3(a))
Local Initiative
Registered voters within a local government unit may file a petition with the Regional
Assembly or local legislative body, respectively, proposing the adoption, enactment,
repeal or amendment of any law, ordinance or resolution.
Through the system of initiative and referendum, the people can directly propose and
enact laws or approve or reject any act or law or part thereof passed by the Congress
or local legislative body
( THE SUBJECT OF initiative is any law ,except emergency powers, AND that such
subject of initiative could not be vetoed nor repealed because the people is more
superior than the Executive and Legislative)
Limitations on the Power of Local Initiative
1. Should not be exercised more than once a year;
2. Extended only to subjects or matters which are within the legal powers of local
legislative bodies to enact;
3. If the local legislative body adopts the proposition in toto before the initiative is
held, the initiative shall be cancelled. Those against such action may apply for
initiative. (R.A. No. 6735, § 15)
Limitation on Local Legislative Body vis-a-vis Local Initiative
Any proposition, ordinance, or resolution approved through an initiative and
referendum
● Shall not be repealed, modified or amended by the local legislative body concerned
within 6 months from its date of approval
● May be amended, modified, repealed within 3 years thereafter by a vote of 3/4 of all
its members.
○ In case of barangays, the period shall be 18 months after approval.
(R.A. No. 6735, § 16; Local Government Code, § 125.)

In case of doubt, the provisions should be considered: Indirect Initiative

Exercise of initiative by the people through a proposition sent to the Congress or the
1. self-executing (Manila Prince Hotel v GSIS, G.R. No. 122156, Feb. 3, 1997); local legislative body for action (R.A. No. 6735, § 3(b))
2. mandatory rather than directory (Tanada v Cuenco, G.R. No. L-10250, Feb. 28,
1957) and
3. prospective rather than retroactive (Peralta v Director of Prisons, G.R. No. L-49,
Nov. 12, 1945)

Q: Are the following bills filed in Congress constitutional? 1. A bill originating from
2.REFERENDUM
the Senate, which provides for the creation of the Public Utility Commission to
regulate public service companies and appropriating the initial funds needed to
The power of the electorate to approve or reject legislation through an election called
establish the same. Explain. 2. A bill creating a joint legislative- executive
for the purpose
commission to give, on behalf of the Senate, its advice, consent and concurrence to
treaties entered into by the President. The bill contains the guidelines to be followed
Two Classes of Referendum (R.A. No. 6735, § 3(c); Local Government Code, §
by the commission in the discharge of its functions. Explain. (1996 BAR)
126.)
A:
1. A bill providing for the creation of the Public Utility Commission to regulate public
1. Referendum on statutes - petition to approve or reject an act or law, or part thereof,
service companies and appropriating funds needed to establish it may originate from
passed by Congress
the Senate. It is not an appropriation bill, because the appropriation of public funds is
2. Referendum on local laws - legal processes whereby the registered voters of the
not the principal purpose of the bill. In Association of Small Landowners of the
local government units may approve, amend or reject any ordinance enacted by the
Philippines, Inc. v. Secretary of Agrarian Reform 175 SCRA 343, it was held that a
Sanggunian
law is not an appropriate measure if the appropriation of public funds is not its
principal purpose and the appropriation is only incidental to some other objective.
2. A bill creating a joint legislative-executive commission to give, on behalf of the
Senate, its advice, consent and concurrence to treaties entered into by the President.
Required Petition
The Senate cannot delegate this function to such a commission, because under Section
21, Article VII of the Constitution, the concurrence of at least two-thirds of the Senate
1. Petition should be registered with the Commission on Elections
itself is required for the ratification of treaties. Initiative and referendum
2. Should be signed by at least 10% of the total number of registered voters
3. Every legislative district must be represented by at least 3% of the registered voters
Q: The present Constitution introduced the concepts and processes of Initiative and
thereof
Referendum. Compare and differentiate one from the other. (2005 BAR)
A: Initiative is the power of the people to propose amendments to the Constitution or
The petition to be signed by the people should contain a definite proposal of the
to propose andenact legislations through an election called for the purpose [Section
amendment of the Constitution; not merely a general question whether they approve
3(a), R.A. No. 6735]. Referendum is the power of the electorate to approve or reject a
of the amendment or not (Lambino v. COMELEC, G.R. No. 174153, October 25,
legislation through an election called for the purpose [Section 3(c), R.A. No. 6735].
2006).
Q: What are the essential elements of a valid petition for a people‘s initiative to
amend the 1987 Constitution? Discuss. (2010 BAR) A: The elements of a valid
petition for a people‘s initiative are the following: 1. At least twelve per cent (12%) of
MATTERS WHICH MAY NOT BE THE SUBJECT OF INITIATIVE OR
the registered voters, of which every legislative district must be represented by at least
REFERENDUM (R.A. NO. 6735, § 10.)
three per cent (3%) of the registered voters in it, should directly sign the entire
proposal; and 2. The draft of the proposed amendment must be embodied in the
1. A petition embracing more than one subject.
petition. (Lambino v. COMELEC, 505 SCRA 160, 2006) However, as of the present,
2. Statutes involving emergency measures
there is no enabling law for an initiative to propose amendments on the Constitution.

GENERAL PROVISIONS
The Philippine Flag
• Red, white, and blue with a sun and 3 stars • The design may be
changed only by constitutional amendment. ( BUT Constitution did not
specify the color of the sun and stars so it can be change thru a law)
Congress may, by law, adopt a new: (§ 2.)
• Name for the country
• National anthem
• National seal The law takes effect upon ratification by the people in a
national referendum.
The Armed Forces of the Philippines (§ 4 & 5.)
• Military men cannot engage, directly or indirectly, in any partisan
political activity, except to vote.
• Members of the AFP in active service cannot be appointed to a civilian
position in the government, including GOCCs or their subsidiaries.
Civilian Authority - The head of the armed forces is a civilian president
and the primary purpose of AFP is to serve and protect the people.
Mark of Sovereignty - Positively, the military is the guardian of the
people and of the integrity of the national territory and therefore
ultimately of the majesty of the law. Negatively, it is an expression
against military abuses.
The Police Force (§ 6.)
The State shall establish and maintain one police force, national in scope
and civilian in character. The national police is now governed by R.A. No.
6975 which took effect on January 1, 1991.
Consumer Protection (s9)
The protection is intended, not only against traders, but also to
manufacturers who dump defective products in the market.
Mass Media
Wholly Owned and managed by CITIZENS
Advertising
Only Filipino citizens or corporations or associations at least 70% of the
capital of which is owned by Filipino citizens shall be allowed to engage
in the advertising industry.
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STATE POLICIES AND PRINCIPLES
Generally Accepted Principles of International Law
Principles based on natural justice common to most national systems of
law
Examples:
1. The right of an alien to be released on bail while awaiting deportation
when his failure to leave the country is due to the fact that no country
will accept him (Mejoff v. Director of Prisons, G.R. No. L-4254, Sept. 26,
1951).
2. The right of a country to establish military commissions to try war
criminals (Kuroda v. Jalandoni, G.R. No. L-2662, Mar. 26, 1949).
3. The Vienna Convention on Road Signs and Signals (Agustin v. Edu, G.R.
No. L49112, Feb. 2, 1979).
4. Duty to protect the premises of embassies and legations (Reyes v.
Bagatsing, G.R. No. L-65366, Nov. 9, 1983).
5. Pacta sunt servanda – international agreements must be performed in
good faith (Tañada v. Angara, G.R. No. 118295, May 2, 1997).
4BLUE95: The Philippines renounces aggressive war as an instrument of
national policy, but allows for a defensive war.
Social Justice
The State shall promote social justice in all phases of national
development.
Social Justice has been defined as the humanization of laws and the
equalization of social and economic forces by the State so that justice in
its rational and objectively secular conception may at least be
approximated (Calalang v. Williams, G.R. No. 47800, Dec. 2, 1940).
Protection of the Life of the Unborn
when it is necessary to save the life of the mother, the lie of the unborn
may be sacrificed.
The Roe v. Wade doctrine allowing abortion up to the 6th month of
pregnancy cannot be adopted in the Philippines human lives are sacred
from the moment of conception, and that destroying those new lives is
never licit, no matter what the purported good outcome would be.
(Imbong vs. Ochoa, G.R. No. 204819, April 8, 2014)
The right to a balanced and healthful ecology
carries with it an intergenerational responsibility to care for and protect
the environment
precautionary principle
used when there is a lack of full scientific certainty in establishing a
causal link between human activity and environmental effect. The
precautionary principle, as a principle of last resort, shifts the burden of
evidence of harm away from those likely to suffer harm and onto those
desiring to change the status quo.
Elements for the Application of Precautionary Principle: (UPP) •
Uncertainty • Possibility of irreversible harm • Possibility of serious harm
Writ of Kalikasan:
1. There is an actual or threatened violation of the Constitutional right to
a balance and healthful ecology;
2. The actual or threatened violation arises from an unlawful act or
omission of a Public official or employee, or private individual or entity;
3. The actual or threatened violation involves or will lead to an
Environmental damage of such magnitude as to prejudice the life, health
or property of inhabitants in two or more cities

Q: The Philippines has become a member of the World Trade Organization (WTO)
and resultantly agreed that it "shall ensure the conformity of its laws, regulations and
administrative procedures with its obligations as provided in the annexed
Agreements." This is assailed as unconstitutional because this undertaking unduly
limits, restricts and impairs Philippine sovereignty and means among others that
Congress could not pass legislation that will be good for our national interest and
general welfare if such legislation will not conform with the WTO Agreements.
Refute this argument. (2000 BAR)
A: According to Tanada v. Angara, the sovereignty of the Philippines is subject to
restriction by its membership in the family of nations and the limitations imposed of
treaty limitations. Section 2, Article II of the Constitution adopts the generally
accepted principles of international law as part of the law of the land. One of such
principles is pacta sunt servanda. The Constitution did not envision a hermit-like
isolation of the country from the rest of the world.
Q: Under the executive agreement entered into between the Philippines and the other
members of the ASEAN, the other members will each send a battalion-size unit of
their respective armed forces to conduct a combined military exercise in the Subic
Bay area. A group of concerned citizens sought to enjoin the entry of foreign troops as
violative of the 1987 Constitution that prohibited the stationing of foreign troops and
the use by them, of local facilities. As the Judge, decide the case. Explain. (1996
BAR)
A: I will rule in favor of the concerned citizens. Section 25, Article XVII of the
Constitution prohibits in the absence of a treaty the stationing of troops and facilities
of foreign countries in the Philippines. The Supreme Court has already ruled that the
provision in Article XVIII, Section 25 of the Constitution requires a treaty even for
the mere temporary presence of foreign troops in the Philippines. (Bayan v. Zamora,
G.R. No. 138570, October 10, 2000, 342 SCRA 499)
Q: The Philippines and the Republic of Kroi Sha established diplomatic relations and
immediately their respective Presidents signed the following: (1) Executive
Agreement allowing the Republic of Kroi Sha to establish its embassy and consular
offices within Metro Manila; and (2) Executive Agreement allowing the Republic of
Kroi Sha to bring to the Philippines its military complement, warships, and
armaments from time to time for a period not exceeding one month for the purpose of
training exercises with the Philippine military forces and exempting from Philippine
criminal jurisdiction acts committed in the line of duty by foreign military personnel,
and from paying custom duties on all the goods brought by said foreign forces into
Philippine territory in connection with the holding of the activities authorized under
the said Executive Agreement. Senator Maagap questioned the constitutionality of the
said Executive Agreements and demanded that the Executive Agreements be
submitted to the Senate for ratification pursuant to the Philippine Constitution. Is
Senator Maagap correct? Explain. (2015 BAR)
A: Senator Maagap is partly correct. The Executive Agreement allowing the Republic
of Kroi Sha to establish its embassy and consular offices within Metro Manila is valid
without the need of submitting it to the Senate for ratification as differed from a
treaty. However, the second Executive Agreement which allows the Republic of Kroi
Sha to bring to the Philippines its military complement, warships, and armaments for
a certain period is subject to the provisions of Section 25 of Article XVIII of the
Constitution, which provides that ―foreign bases, troops or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the Senate and,
when the Congress so requires, ratified by a majority of the votes cast by the people in
a national referendum held for that purpose, and recognized as a treaty by the of the
contracting state.‖ Under the same provision, a treaty duly concurred in by the Senate
is required even for the temporary presence of foreign troops. Right of Parents to Rear
their Children
Q: The unabated rise of criminality and the reported identification of delinquent
children loitering in the wee hours of the night prompted City Z to implement a
curfew ordinance. Minors unaccompanied or unsupervised on the streets by their
parents or guardians between 10:00 P.M. to 5:00 A.M. may be apprehended by law
enforcers subject to certain exclusive exceptions. These exceptions are: 1. minors
running lawful errands, such as buying of medicines, using of telecommunications
facilities for emergency purposes and the like; 2. night school students; and 3. Minors
working at night. Minors apprehended for violation of the curfew ordinance shall be
required to undergo counseling, accompanied by their parents/guardians. (2019 BAR)
(a) Does the curfew ordinance violative the primary right and duty of parents to
rear their children? Explain.
A: NO, the curfew ordinance does not violate the primary right and duty of
parents to rear their children. The principle of parens patriae states that the State
has the duty of protecting the rights of persons or individual who because of age
or incapacity are in an unfavorable position. Thus, while parents have the
primary role in childrearing, it should be stressed that when actions concerning
the child have a relation to the public welfare or the well-being of the child, the
State may act to promote these legitimate interests in the exercise of its police
power. (SPARK v. Quezon City, G.R. No. 225442, August 08, 2017)
(b) Does the curfew ordinance infringe any of the minors‘ fundamental rights?
Explain.
A: YES, the curfew infringes on the minors‘ fundamental rights. The court in
SPARK v Quezon City observed that the two ordinances are not narrowly
drawn because the exceptions mentioned in the ordinances are inadequate
insofar as it does not provide an exception for the right to association, free
exercise of religion, rights to peaceably assemble, and of free expression among
others. Thus, it can run the risk of overly restricting minors‘ fundamental
freedoms. (SPARK v. Quezon City, G.R. No. 225442, August 08, 2017)
5
Q: State the various modes of and steps in revising or amending the Philippine
Constitution. (1997, 2017 BAR)
A: There are three modes of amending the Constitution and two modes for revising
the Constitution. 1. Under Section 1. Article XVIII of the Constitution. Congress may
by three- fourths vote of all its Members propose any amendment to or revision of the
Constitution. This method is also known as an amendment or revision by the
Congress acting as a Constituent Assembly. 2. Under the same provision, a
constitutional convention may propose any amendment to or revision of the
Constitution. According to Section 3 Article XVII of the Constitution, Congress may,
by a two- thirds vote of all its Members, call a constitutional convention or by a
majority vote of all its members submit the question of calling such a convention to
the electorate. 3. Under Section 2, Article XVII of the Constitution, the people may
directly propose amendments to the Constitution through initiative upon a petition of
at least twelve per cent of the total number of registered voters, of which every
legislative district must be represented by at least three per cent of the registered
voters therein. It should be noted that under the 3rd aforementioned method of
initiative, the people may propose only amendments, not a revision. According to
Section 4 Article XVII of the Constitution, to be valid any amendment to or revision
of the Constitution, must be ratified by a majority of the votes cast in a plebiscite.
There are two steps involved in the amendment or revision of the Constitution. The
first is the proposal and the second is the ratification. (Cruz, 2014)
Q: An amendment to or a revision of the present Constitution maybe proposed by a
Constitutional Convention or by the Congress upon a vote of three-fourths of all its
members. Is there a third way of proposing revisions of or amendments to the
Constitution? If so, how? (2004 BAR)
A: There is no third way of proposing revisions to the Constitution; however, the
people through initiative upon petition of at least twelve per cent of the total number
of registered voters, of which every legislative district must be represented by at least
three per cent of the registered voters in it may directly propose amendments to the
Constitution. This right is not operative without an implementing law. (Section 2,
Article XVI of the 1987 Constitution)
Q: A priority thrust of the Administration is the change of the form of government
from unitary to federal. The change can be effected only through constitutional
amendment or revision. Cite at least three provisions of the Constitution that need to
be amended or revised to effect the change from unitary to federal, and briefly explain
why? (2017 BAR)
A:
1. Article X, Sec. 3 must be omitted because the legislature will no longer define the
scope of the powers of the government.
2. Article X Sec, 4 will have to be omitted. The President will no longer have the
power of supervision over local governments. 3. Article X, Sec.5 must be omitted.
Congress will no longer be allowed to impose limitations on the power of taxation of
local governments. NOTE: The panel wishes to recommend liberality in favor of the
examinee for this question, as answers can be gleaned from many articles and
provisions of the Constitution, among them Articles VI, VII, and X.
Q: A proposal to change a provision of the 1987 Constitution has been put forth as
follows: Original Text: "The Philippines is a democratic and republican State.
Sovereignty resides in the people and all government authority emanates from them"
Proposed text: "The Philippines is a democratic and socialist State. Sovereignty
resides in the party and all government authority emanates from it." (2019 BAR)
(a) Is this an amendment or revision? Explain. A: The proposal is a revision. Using
the qualitative test provided in the case of Lambino v. COMELEC, 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." In this case, the proposal to
change where the sovereignty resides—from the people to the party—definitely alters
the nature of the Philippine government, thus satisfying the test. (Lambino v.
COMELEC, G.R. No. 174153, October 25, 2006)
(b) Briefly explain the process to revise the 1987 Constitution. A: Any revision of the
Constitution may be proposed by: Political Law 2 1. The Congress, upon a vote of
three-fourths of all its Members; or 2. A constitutional convention. The Congress
may, by a vote of two-thirds of all its Members, call a constitutional convention, or by
a majority vote of all its Members, submit to the electorate the question of calling
such a convention. The revision shall be valid when ratified by a majority of the votes
cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety
days after the approval of such amendment or revision. [Art XVII, Sec 1, 3 & 4,
Const.]
Q: TRUE or FALSE. Explain your answer in not more than two (2) sentences: Under
the archipelago doctrine, the waters around, between, and connecting the islands of
the archipelago form part of the territorial sea of the archipelagic state. (2009 BAR)
A: False. Under Article I of the Constitution, the water around, between and
connecting the islands ofthe Philippines form part of its internal waters. Under Article
49 (1) of the U.N. Convention on the Law of the Sea, these waters do not form part of
the territorial sea but are described as archipelagic waters.

Q: A bill was introduced in the House of Representatives in order to implement
faithfully the provisions of the United Nations Convention on the Law of the Sea
(UNCLOS) to which the Philippines is a signatory. Congressman Pat Rio Tek
questioned the constitutionality of the bill on the ground that the provisions of
UNCLOS are violative of the provisions of the Constitution defining the Philippine
internal waters and territorial sea. Do you agree or not with the said objection?
Explain. (2015 BAR)
A: The objection of Congressman Pat Rio Tek does not hold water. UNCLOS does
not define the internal and territorial waters of states but merely "prescribes the water-
land ratio, length, and contour of baselies of archipelagic States like the Philippines.
Whether referred to as Philippine internal waters or as archipelagic waters under
UNCLOS, the Philippines exercises sovereignty over the body of water lying
landward of the baselines, including the air space over it and the submarine areas
underneath.
Q: William, a private American citizen, a university graduate and frequent visitor to
the Philippines, was inside the U.S. embassy when he got into a heated argument with
a private Filipino citizen. Then, in front of many shocked witnesses, he killed the
person he was arguing with. The police came, and brought him to the nearest police
station. Upon reaching the station, the police investigator, in halting English, informed
William of his Miranda rights, and assigned him an independent local counsel.
William refused the services of the lawyer, and insisted that he be assisted by a
Filipino lawyer currently based in the U.S. The request was denied, and the counsel
assigned by the police stayed for the duration of the investigation. William protested
his arrest. He argued that since the incident took place inside the U.S. embassy,
Philippine courts have no jurisdiction because the U.S. embassy grounds are not part
of Philippine territory; thus, technically, no crime under Philippine law was
committed. Is William correct? Explain your answer. (2009 BAR)
A: William is not correct. The premises occupied by the United States Embassy do
not constitute territory of the United States but of the Philippines. Crimes committed
within them are subject to the territorial jurisdiction of the Philippines. Since William
has no diplomatic immunity, the Philippines can prosecute him if it acquires custody
over him. (Reagan v. Commissioner of Internal Revenue, 30 SCRA 968)
Q: What do you understand by the archipelagic doctrine? Is this reflected in the 1987
Constitution? (1989 BAR) A: The archipelagic doctrine emphasizes the unity of land
and waters by defining an archipelago either as a group of islands surrounded by
waters or a body of waters studded with islands. For this purpose, it requires that
baselines be drawn by connecting the appropriate points of the outermost islands to
encircle the islands within the archipelago. The waters on the landward side of the
baselines regardless of breadth or dimensions are merely internal waters. The entire
archipelago is regarded as one integrated unit instead of being fragmented into so
many thousand islands Yes, the archipelagic doctrine is reflected in the 1987
Constitution. Article I, Section 1 provides that the national territory of the Philippines
includes the Philippine archipelago, with all the islands and waters embraced therein;
and 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.
Q: What is the basis of the Philippines‘ claim to a part of the Spratly Islands? (2000
BAR
A: The basis of the Philippine claim is effective occupation of a territory not subject
to the sovereignty of another state. The Japanese forces occupied the Spratly Island
group during the Second World War. However, under the San Francisco Peace Treaty
of 1951 Japan formally renounced all right and claim to the Spratlys. The San
Francisco Treaty or any other international agreement, however, did not designate any
beneficiary state following the Japanese renunciation of right. Subsequently, the
Spratlys became terra nullius and was occupied by the Philippines in the title of
sovereignty. Philippine sovereignty was displayed by open and public occupation of a
number of islands by stationing of military forces. By organizing a local government
unit, and by awarding petroleum drilling rights, among other political and
administrative acts. In 1978, it confirmed its sovereign title by the promulgation of
Presidential Decree No. 1596, which declared the Kalayaan Island Group part of
Philippine territory.
Q. Congress passed Republic Act No. 7711 to comply with the United Nations
Convention on the Law of the Sea. In a petition filed with the Supreme Court, Anak
Ti Ilocos, an association of Ilocano professionals, argued that Republic Act No. 7711
discarded the definition of the Philippine territory under the Treaty of Paris and in
related treaties; excluded the Kalayaan Islands and the Scarborough Shoals from the
Philippine Archipelagic baselines; and converted internal waters into archipelagic
waters. Is the petition meritorious? (2013 BAR)
A: NO, the petition is not meritorious. The United Nations Convention on the
law of the Sea plays no role in the acquisition, enlargement or, as petitioners
claim, diminution of territory. Under traditional international law typology,
States acquire (or conversely, lose) territory through occupation, accretion,
cession and prescription, not by executing multilateral treaties on the regulations
of sea-use rights or enacting statutes to comply with the treatys terms to delimit
maritime zones and continental shelves. Territorial claims to land features are
outside UNCLOS III, and are instead governed by the rules on general
international law. The Kalayaan Islands and the Scarborough Shoals are located
at an appreciable distance from the nearest shoreline of the Philippine
Archipelago. A straight baseline loped around them from the nearest baseline
will violate Article 47(3) and Article 47(2) of the United Nations Convention on
the law of the Sea III. Whether the bodies of water lying landward of the
baselines of the Philippines are internal waters or archipelagic waters, the
Philippines retains jurisdiction over them (Magallona v. Ermita, 655 SCRA
476).
6
Q: Define the archipelagic doctrine of national territory, state its rationale and explain
how it is implemented through the straight baseline method (2016 BAR)
A: By the term ―archipelagic doctrine of national territory‖ is meant that the islands
and waters of the Philippine Archipelago are unified in sovereignty, together with ―all
the territories over which the Philippines has sovereignty or jurisdiction.‖ This
archipelagic doctrine, so described under Article 1 of the Constitution, draws its
rationale from the status of the whole archipelago in sovereignty by which under Part
IV of the UNCLOS the Philippines is defined as an Archipelagic State in Article 46,
thus:
a. ―archipelagic state‖ means a State constituted wholly by one or more
archipelagos and may include other islands;
b. ―archipelago‖ means 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
geographic, economic and political entity, or which historically have been
regarded as such.
As an archipelagic state, the national territory is implemented by drawing its
―straight archipelagic baselines‖ pursuant to Art. 47 of the UNCLOS which
prescribes among its main elements, as follows: 1. By ―joining the outermost
points of the outermost islands and drying reefs of the archipelago‖, including
the main islands and an area in which the ration of the area of the water to the
land, including atolls, is between 1 to 1 and 9 to 1. 2. Mainly, the length of such
baselines ―shall not exceed 100 nautical miles…‖ 3. ―The drawing of such
baselines shall not depart to any appreciable extent from the general
configuration of the archipelago.‖
Q: Section 2 of RA 9522 declared the Kalayaan Island Group (KIG) and Scarborough
Shoal as ―Regime of Islands.‖ Professor Agaton contends that since the law did not
enclose said islands, the Philippines lost its sovereignty and jurisdiction over them. Is
his contention correct? Explain. (2016 BAR)
A: This line of argument is negated by RA 9522 itself. Section 2 of the law commits
to text the Philippines continued claim of sovereignty and jurisdiction over the KIG
and the Scarborough Shoal: SEC. 2. The baselines in the following areas over which
the Philippines likewise exercises sovereignty and jurisdiction shall be determined as
Regime of Islands under the Republic of the Philippines consistent with Article 121 of
the United Nations Convention on the Law of the Sea (UNCLOS):
a. The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b. Bajo de Masinloc, also known as Scarborough Shoal. Although the Philippines has
consistently claimed sovereignty over the KIG and the Scarborough Shoal for several
decades, these outlying areas are located at an appreciable distance from the nearest
shoreline of the Philippine archipelago, such that any straight baseline loped around
them from the nearest basepoint will inevitably depart to an appreciable extent from
the general configuration of the archipelago. Hence, far from surrendering the
Philippines claim over the KIG and the Scarborough Shoal, Congress‘ decision to
classify the KIG and the Scarborough Shoal as Regime[s] of Islands under the
Republic of the Philippines consistent with Article 121 of UNCLOS III manifests the
Philippine States responsible observance of its pacta sunt servanda obligation under
UNCLOS III. Under Article 121 of UNCLOS III, any naturally formed area of land,
surrounded by water, which is above water at high tide, such as portions of the KIG,
qualifies under the category of regime of islands, whose islands generate their own
applicable maritime zone (Magallona v. Ermita, 655 SCRA 476).
INITIATIVE & REFERENDUM
Q: Several citizens, unhappy with the proliferation of families dominating the political
landscape, decided to take matters into their own hands. They proposed to come up
with a people‘s initiative defining political dynasties. They started a signature
campaign for the purpose of coming up with a petition for that purpose. Some others
expressed misgivings about a people‘s initiative for the purpose of proposing
amendments to the Constitution, however. They cited the Court‘s decision in Santiago
v. Commission on Elections, 270 SCRA 106 (1997), as authority for their position
that there is yet no enabling law for such purpose. On the other hand, there are also
those who claim that the individual votes of the justices in Lambino v. Commission
on Elections, 505 SCRA 160 (2006), mean that Santiago‘s pronouncement has
effectively been abandoned. If you were consulted by those behind the new attempt at
a people‘s initiative, how would you advise them? (2014 BAR)
A: I shall advise those starting a people‘s initiative that initiative to pass a law
defining political dynasties may proceed as their proposal is to enact a law only and
not to amend the constitution. The decision in Santiago v. COMELEC, which has not
been reversed, upheld the adequacy of the provisions in Republic Act 6735 on
initiative to enact a law. (270 SCRA 106, 1997)

STATE IMMUNITY
I. IMMUNITY FROM JURISDICTION OF OTHER STATES (SOVEREIGN
IMMUNITY)
BASIS: Art. XVI, Sec. 3: “The state may not be sued without its consent.”
This is based on the principle of equality of states — par in parem non
habet imperium.
Doctrine of State Immunity It refers to a principle by which a state, its
agents, and property are immune from the jurisdiction of another state
(MAGALLONA).
Principle of Equality of States
This principle is premised on the juridical equality of states, according to
which a state may not impose its authority or extend its jurisdiction to
another state without the consent of the latter through a waiver of
immunity.
General rule: The jurisdiction of a state within its territory is complete
and absolute
Exceptions (SDH):
1. Sovereign immunity
2. Diplomatic immunity
3. Hostis Humanis Generis - enemy of all mankind or crimes justiciable by
any state anywhere e.g. piracy
Acts of State Immunity
Every state is bound to respect the independence of every other
sovereign state, and the courts of one country will not sit in judgment on
the acts of the government of another, done within its own territory.
4BLUE95: This immunity is for the benefit of the State. Thus, only the
state may waive it.
Immunity from jurisdiction is enjoyed by both the head of State and by
the State itself. The State's diplomatic agents, including consuls to a
certain extent, are also exempt from the jurisdiction of local courts and
administrative tribunals.
The commission of a crime by a state official, which is an international
crime against humanity and jus cogens, is NOT an act done in an official
capacity on behalf of the state. As a matter of general customary
international law, a head of state will PERSONALLY be liable to account if
there is sufficient evidence that he authorized or perpetrated serious
international crimes
General Rule: Any person who in performing an act of the state,
commits a criminal offense is immune from prosecution. This applies
not only to ex-heads of state and ex-ambassadors but to all state
officials who have been involved in carrying out the functions of the
state (Immunity Ratione Materiae/Functional Immunity - “Immunity of
the official”)
EXCEPT: in cases of INTERNATIONAL Crimes (Pinochet case)
EXCEPTION TO THE EXCEPTION:When the case is brought against the
State itself for liability to damages (e.g. civil proceedings against a state),
the rationale for the judgment in the Pinochet case has no bearing.
Two Conflicting Concepts of Sovereign Immunity:
1. Classical or absolute theory – sovereign cannot, without its consent,
be made a respondent in the courts of another sovereign.
2. Newer or restrictive theory – the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii of a state
but not with regard to private acts or acts jure gestionis.
7
II. IMMUNITY FROM SUIT
General rule – The State cannot be sued.
Exception – The State consents to be sued.
When Suit is Considered against the State: • The Republic is sued by
Name • Suits against an Unincorporated government agency • Suit is
against a government Official, but is such that ultimate liability shall
devolve on the governmen
Kinds of Immunity
Absolute sovereign immunity - where a state cannot be sued in a
foreign court no matter what the act it is sued for;
Restrictive sovereign immunity - where a state is immune from suits
involving governmental actions (jure imperii), but not from those arising
from commercial or non-governmental activity (jure gestionis).
Jure Imperii - governmental acts
Jure Gestionis - commercial acts
4BLUE95: A certification executed by the Economic Commercial Office of
the Embassy of the People’s Republic of China stating that a project is in
pursuit of a sovereign activity is not the kind of certification that can
establish entitlement to immunity from suit. It unequivocally refers to
the determination of the Foreign Office of the state where it is used
(China National Machinery Equipment v. Santa Maria, G.R. No. 185572,
Feb. 7, 2012)
State's Business Contracts
A State’s commercial activity is a descent to the level of individuals and
there is a form of tacit consent to be sued when it enters into business
contracts with others.
However, not every contract entered into is a form of tacit consent to be
sued. It depends upon whether the foreign state is engaged in the
activity in the regular course of business
HOW A STATE GIVES ITS CONSENT
1. Express consent
a. General Law : Authorizes any person who meets the conditions stated
in the law to sue the government in accordance with the procedure in
the law (e.g. money claims arising from contract express or implied,
liability of local government units for torts)
b. Special Law : may come in the form of a private bill authorizing a
named individual to bring a suit on a special claim.
2. Implied consent
a. When the State commences litigation, it becomes vulnerable to a
counterclaim;
Exception: When the State intervenes not for the purpose of asking for
any affirmative relief, but only for the purpose of resisting the claim
precisely because of immunity from suit
b. State enters into a business contract (thus exercising proprietary
functions); (Id.)
General Rule: The State may be sued if a private contract is entered into
by the proper office and within the scope of his authority. ● Exception:
When the private contract is incidental to the performance of a
government function
c. When it would be inequitable for the State to invoke immunity;
d. In eminent domain cases.

SUITS AGAINST PUBLIC OFFICERS
General Rule: The doctrine of state immunity also applies to complaints filed against
officials of the State for acts performed by them in the discharge of their duties within
the scope of their authority
4blue95: dapat in good faith in order to make him not liable and the suit is one against
the state
Exception:
1. Private and personal capacity
2. Acts without authority or in excess of powers vested in him (ultra vires
act)
Exceptions when State/Public Officer May Be Sued without Prior Consent
1. To compel him to do an act Required by law;
2. To restrain him from enforcing an act claimed to be Unconstitutional
3. To compel the Payment of damages from an already appropriated assurance fund or
to refund tax overpayments from a fund already available for the purpose;
4. To secure a Judgement that the officer impleaded may satisfy by himself without
the State having to do a positive act to assist him;
5. Where the Government itself has violated its own laws.
General Rule: Government cannot be made to pay interests
Exceptions (EEG):
1. Eminent domain
2. Erroneous collection of tax
3. Government agrees to pay interest pursuant to law
SUITS AGAINST GOVERNMENT AGENCIES
1. Incorporated: If the charter provides that the agency can sue and be sued, then suit
will lie, including one for tort.
2. Unincorporated:
a. Performs governmental functions: Cannot be without State consent even if
performing proprietary function incidentally.
b. Performs proprietary functions: Can be sued except when the proprietary functions
are indispensable in the discharge of its governmental functions
Q: The doctrine of immunity from suit in favor of the State extends to public officials
in the performance of their official duties. May such officials be sued nonetheless to
prevent or to undo their oppressive or illegal acts, or to compel them to act? Explain
your answer. (2017 BAR)
A: Public officials may be sued if they acted oppressively or illegally in the
performance of their duties. A suit against a public officer who acted illegally is not a
suit against the state. (Aberca v. Ver, G.R. No. 69866, April 15, 1988, 160 SCRA
590) A public official may be compelled to act through a writ of mandamus. The main
objective of mandamus is to compel the performance of a ministerial duty on the part
of the respondent official; however, the writ does not issue to control or review the
exercise of discretion or to compel a course of conduct. The writ of prohibition can
also be availed of, as it is an extraordinary writ which can be directed against apublic
officer ordering said officer to desist from further proceedings when said proceedings
are without or in excess of said officer‘s jurisdiction, or are accompanied with grave
abuse of discretion. (Rule 65, Revised Rules of Court) Lastly, a public officer is by
law not immune from damages in his/her personal capacity for acts done in bad faith
which, being outside the scope of his authority, are no longer protected by the mantle
of immunity for official actions. (Vinzons-Chuto v. Fortune Tobacco Corp., G.R. No.
141309, June 19, 2007, 525 SCRA 11)
Q: Do government-owned or -controlled corporations also enjoy the immunity of the
State from suit? Explain your answer. (3%) (2017 BAR)
A: A government-owned or controlled corporation may be sued. suit against it is not a
suit against the State, because it has a separate juridical personality. (Social Security
Systems v. Court of Appeals, GiR. No. L41299, February 21, 1983, 120 SORA 707)
Q: Annika sued the Republic of the Philippines, represented by the Director of the
Bureau of Plant Industry, and asked for the revocation of a deed of donation executed
by her in favor of said Bureau. She alleged that, contrary to the terms of the donation,
the donee failed to install lighting facilities and a water system on the property
donated, and to build an office building and parking lot thereon, which should have
been constructed and made ready for occupancy on or before the date fixed in the
deed of donation. The Republic invoked state immunity and moved for the dismissal
of the case on the ground that it had not consented to be sued. Should the Republic's
motion be granted? (2018 BAR)
A: The motion of the Republic should be granted. There appears to be no consent on
the part of the State to be sued. In Section 3, Article XVI of the Constitution it is
provided that: ―The State shall not be sued without its consent.‖ That no consent was
given by the Republic is shown by the fact that the Bureau or the Government did
seem to have complied with the demands of the deed Political Law 8 of donation.
Compliance with the state immunity is essential for two reasons: 1. It is required as a
provision of the Constitution; and 2. Immunity is an essential element of state
sovereignty.
8
GARNISHMENT OF GOVERNMENT FUNDS IS NOT ALLOWED
Exceptions:
1. Where a law or ordinance has been enacted appropriating a specific amount to pay
a valid government obligation, then the money can be garnished
2. If the funds belong to a public corporation or a GOCC which is clothed with a
personality of its own, then the funds are not exempt from garnishment
To enforce monetary decisions against the Government, a person may file a claim
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 thereby
Consent to be Sued is Not Equivalent to Consent to LIABILITY .Even if the case
is decided against the State, an award cannot be satisfied by writs of execution or
garnishment against public funds. No money shall be paid out of the public treasury
unless pursuant to an appropriation made by law
SOVEREIGNTY
The supreme and uncontrollable power inherent in a State by which that State is
governed.
Two types of Sovereignty
1. Political Sovereignty - the supreme power to make laws
2. Legal Sovereignty - the sum total of all the influences in a state, legal and nonlegal,
which determine the course of law
Auto-Limitation:
It is to be admitted that any state may, by its consent, express or implied, submit to a
restriction of its sovereign (INCORPORATION) rights
Even though the country allows a foreign power to participate in the exercise of
jurisdictional right over certain portions of its territory, such areas do not become
impressed with alien character but rather, it retains its status as native soil.
Limited by International Law and Treaties ―By their inherent nature, treaties really
limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may
surrender some aspects of their state power in exchange for greater benefits granted
by or derived from a convention or pact
SEPARATION OF POWERS
An allocation of the 3 great powers. It is also an implicit limitation on their powers,
preventing one from invading the domain of the others,but the separation is not total.
CHECKS AND BALANCES
A system operating between and among the three branches of government the net
effect of which is that no one department is able to act without the cooperation of at
least one of the other departments.
Examples:
- Legislation in the form of an enrolled bill needs final approval from the President to
become a law;
- President must obtain the concurrence of Congress to complete certain acts (e.g.
granting of amnesty);
- Money can be released from the Treasury only by authority of Congress;
- Appropriation, revenue, tariff, increases in public debt and private bills originate in
House of Representatives;
- SC can declare acts of Congress or the Executive unconstitutional.
Q: It is said that "waiver of immunity by the State does not mean a concession of its
liability". What are the implications of this phrase? (1997 BAR)
A: The phrase that 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 it is
liable. As stated in Philippine Rock Industries, Inc. v. Board of Liquidators, 180
SCRA 171, 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.
Q: a. What do you understand by state immunity from suit? Explain. b. How may
consent of the state to be sued be given? Explain. (1999, 2017 BAR)
A:
a. STATE IMMUNITY FROM SUIT means that the State cannot be sued
without its consent. A corollary of such principle is that properties used by the
State in the performance of its governmental functions cannot be subject to
judicial execution.
b. Consent of the State to be sued may be made expressly as in the case of a
specific, express provision of law as waiver of State immunity from suit is not
inferred lightly (e.g. C.A. 327 as amended by PD 1445) or impliedly as when
the State engages in proprietary functions (U.S. v. Ruiz, U.S. v. Guinto) or when
it files a suit in which case the adverse party may file a counterclaim (Froilan v.
Pan Oriental Shipping) or when the doctrine would in effect be used to
perpetuate an injustice (Amigable v. Cuenca, 43 SCRA 360).

Q: The employees of the Philippine Tobacco Administration (PTA) sued to recover
overtime pay. In resisting such claim, the PTA theorized that it is performing
governmental functions. Decide and explain. (1999 BAR)
A: As held in Philippine Virginia Tobacco Administration v. Court of Industrial
Relations, 65 SCRA 416, the Philippine Tobacco Administration is not liable for
overtime pay, since it is performing governmental functions. Among its purposes are
to promote the effective merchandising of tobacco so that those engaged in the
tobacco industry will have economic security, to stabilize the price of tobacco, and to
improve the living and economic conditions of those engaged in the tobacco industry.
Q: The Republic of the Philippines, through the Department of Public Works and
Highways (DPWH), constructed a new highway linking Metro Manila and Quezon
province, and which major thoroughfare traversed the land owned by Mang Pandoy.
The government neither filed any expropriation proceedings nor paid any
compensation to Mang Pandoy for the land thus taken and used as a public road.
Mang Pandoy filed a suit against the government to compel payment for the value of
his land. The DPWH filed a motion to dismiss the case on the ground that the State is
immune from suit. Mang Pandoy filed an opposition. Resolve the motion. (2001
BAR)
A: The motion to dismiss should be denied. As held in Amigable v. Cuenca, 43 SCRA
300 (1972), when the Government expropriates private property without paying
compensation, it is deemed to have waived its immunity from suit. Otherwise, the
constitutional guarantee that private property shall not be taken for public use without
payment of just compensation will be rendered nugatory.
Q: MBC, an alien businessman dealing in carpets and caviar, filed a suit against
policemen and YZ, an attaché of XX Embassy, for damages because of malicious
prosecution. MBC alleged that YZ concocted false and malicious charges that he was
engaged in drug trafficking, whereupon narcotics policemen conducted a ―buy-bust"
operation and without warrant arrested him, searched his house, and seize his money
and jewelry, then detained and tortured him in violation of his civil and human rights
as well as causing him, his family and business serious damages amounting to two
million pesos. MBC added that the trial court acquitted him of the drug charges.
Assailing the court‘s jurisdiction, YZ now moves to dismiss the complaint, on the
ground that (1) he is an embassy officer entitled to diplomatic immunity; and that (2)
the suit is really a suit against his home state without its consent. He presents
diplomatic notes from XX Embassy certifying that he is an accredited embassy officer
recognized by the Philippine government. He performs official duties, he says, on a
mission to conduct surveillance of drug experts and then inform local police officers
who make the actual arrest of suspects. Are the two grounds cited by YZ to dismiss
the suit tenable? (2004 BAR)
A: The claim of diplomatic immunity of YZ is not tenable, because he does not
possess an acknowledged diplomatic title and is not performing duties of a diplomatic
nature. However, the suit against him is a suit against XX without its consent. YZ was
acting as an agent of XX and was performing his officialfunctions when he conducted
surveillance on drug exporters and informed the local police officerswho arrested
MBC. He was performing such duties with the consent of the Philippine
government,therefore, the suit against YZ is a suit against XX without its consent.
Q: The Ambassador of the Republic of Kafirista referred to you for handling, the case
of the Embassy‘s Maintenance Agreement with CBM, a private domestic company
engaged in maintenance work. The Agreement binds CBM, for a defined fee, to
maintain the Embassy‘s elevators, air- conditioning units and electrical facilities.
Section 10 of the Agreement provides that the Agreement shall be governed by
Philippine laws and that any legal action shall be brought before the proper court of
Makati. Kafiristan terminated the Agreement because CBM allegedly did not comply
with their agreed maintenance standards. CBM contested the termination and filed a
complaint against Kafiristan before the Regional Trial Court of Makati. The
Ambassador wants you to file a motion to dismiss on the ground of state immunity
from suit and to oppose the position that under Section 10 of the Agreement,
Kafiristan expressly waives its immunity from suit. Under these facts, can the
Embassy successfully invoke immunity from suit? (2013 BAR)
A: YES, the Embassy can invoke immunity from suit. Section 10 of the Maintenance
Agreement is not necessarily a waiver of sovereign immunity from suit. It was meant
to apply in case the Republic of Kafiristan elects to sue in the local courts or waives
its immunity by a subsequent act. The establishment of a diplomatic mission is a
sovereign function. This encompasses its maintenance and upkeep. The Maintenance
Agreement was in pursuit of a sovereign activity. (Republic of the Indonesia v.
Vinzon, G.R. No. 154705, June 26, 2003, 405 SCRA 126)
9
Q: Adams and Baker are American citizens residing in the Philippines. Adams
befriended Baker and became a frequent visitor at his house. One day, Adams arrived
with 30 members of the Philippine National Police, armed with a Search Warrant
authorizing the search of Baker‘s house and its premises for dangerous drugs being
trafficked to the United States of America. The search purportedly yielded positive
results, and Baker was charged with violation of the Dangerous Drugs Act. Adams
was the prosecution‘s principal witness. However, for failure to prove his guilt beyond
reasonable doubt, Baker was acquitted. Baker then sued Adams for damages for filing
trumped-up charges against him. Among the defenses raised by Adams is that he has
diplomatic immunity, conformably with the Vienna Convention on Diplomatic
Relations. He presented Diplomatic Notes from the American Embassy stating that he
is an agent of the United States Drug Enforcement Agency tasked with ―conducting
surveillance operations‘‘ on suspected drug dealers in the Philippines believed to be
the source of prohibited drugs being shipped to the U.S. It was also stated that after
having ascertained the target, Adams would then inform the Philippine narcotic agents
to make the actual arrest. a. As counsel of plaintiff Baker, argue why his complaint
should not be dismissed on the ground of defendant Adams‘ diplomatic immunity
from suit. b. As counsel of defendant Adams, argue for the dismissal of the complaint.
(2005 BAR)
A:
a. As counsel of Baker, I shall argue that Baker has no diplomatic immunity, because
he is not performing diplomatic functions.
b. As counsel of Adams, I shall argue that since he was acting within his assigned
functions with the consent of the Philippines, the suit against him is a suit against the
United States without its consent and is barred by state immunity from suit.
(Minucher v. CA, 397 SCRA244, 2003)
Q: Italy, through its Ambassador, entered into a contract with Abad for the
maintenance and repair of specified equipment at its Embassy and Ambassador‘s
Residence, such as air conditioning units, generator sets, electrical facilities, water
heaters, and water motor pumps. It was stipulated that the agreement shall be effective
for a period of four years and automatically renewed unless cancelled. Further, it
provided that any suit arising from the contract shall be filed with the proper courts in
the City of Manila. Claiming that the Maintenance Contract was unilaterally,
baselessly and arbitrarily terminated, Abad sued the State of Italy and its Ambassador
before a court in the City of Manila. Among the defenses they raised were ―sovereign
immunity‖ and ―diplomatic immunity". As counsel of Abad, refute the defenses of
―sovereign immunity‖ and ―diplomatic immunity‖ raised by the State of Italy and its
Ambassador. At any rate, what should be the court's ruling on the said defenses?
(2005 BAR)
A: As counsel of Abad, I shall argue that the contract is not a sovereign function and
that the stipulation that any suit arising under the contract shall be filed with the
proper courts of the City of Manila is a waiver of the sovereign immunity from suit of
Italy. I shall also argue that the ambassador does not enjoy diplomatic immunity,
because the suit relates to a commercial activity. The court should reject the defenses.
Since the establishment of a diplomatic mission requires the maintenance and upkeep
of the embassy and the residence of the ambassador, Italy was acting in pursuit of a
sovereign activity when it entered into the contract. The provision in the contract
regarding the venue of lawsuits is not necessarily a waiver of sovereign immunity
from suit. It should be interpreted to apply only where Italy elects to sue in the
Philippine courts or waives its immunity by a subsequent act. The contract does not
involve a commercial activity of the ambassador, because it is connected with his
official functions. (Republic of Indonesia v. Vinzon, 405 SCRA 126, 2003)
Q: Ambassador Robert of State Alpha committed a very serious crime while he
headed his foreign mission in the Philippines. Is he subject to arrest by Philippine
authorities? Explain your answer (2017 BAR)
A: NO, he is not subject to arrest by Philippines authorities. Under the Vienna
Convention on Diplomatic Relations (VCDR), a diplomatic agent shall enjoy
immunity from the criminal jurisdiction of the receiving State. As a consequence,
Article 29 of the Vienna Convention on Diplomatic Relations provides: ―The person
of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or
detention
Q: In the last quarter of 2012, about 5,000 container vans of imported goods intended
for the Christmas Season were seized by agents of the Bureau of Customs. The
imported goods were released only on January 10, 2013. A group of importers got
together and filed an action for damages before the Regional Trial Court of Manila
against the Department of Finance and Bureau of Customs. The Bureau of Customs
raised the defense of immunity from suit and, alternatively, that liability should lie
with XYZ Corp. which the Bureau had contracted for the lease of 10 high powered
van cranes but delivered only 5 of these cranes, thus causing the delay in its cargo-
handling operations. It appears that the Bureau, despite demand, did not pay XYZ
Corp the P 1 Million deposit and advance rental required under their contract. (2013
BAR)
a. Will the action by the group of importers prosper? A: NO. The action by the
group of importers will not prosper. The primary function of the Bureau of
Customs is governmental, that of assessing and collecting lawful revenues from
imported articles and all other tariff and customs duties, fees, charges, fines and
penalties. (Mobil Philippines Exploration, Inc. v. Customs Arrastre Service, 18
SCRA 120)
b. Can XYZ Corp. sue the Bureau of Customs to collect rentals for the delivered
cranes? A: NO. XYZ Corporation cannot sue the Bureau of Customs to collect
rentals for the delivered cranes. The contract was a necessary incident to the
performance of its governmental function. To properly collect the revenues and
customs duties, the Bureau of Customs must check to determine if the
declaration of the importers tallies with the landed merchandise. The cranes are
needed to haul the landed merchandise to a suitable place for inspection. (Mobil
Philippines Exploration v. Customs Arrastre Service, supra)

DELEGATION OF POWERS
Congress cannot delegate its legislative power under the maxim delegata
potestas non potest delegari (delegated power may not be delegated).
Powers of Congress which are not to be delegated are those that are strictly
or inherently legislative. Purely legislative power is the authority to make a
complete law - complete as to the time it shall take effect or to whom it shall
be applicable and to determine the expediency of the enactment
EXCEPTIONS:
1. Delegation to the People – initiative and referendum.
2. Delegation to Local Government Units – Local legislative bodies are
allowed by our Constitution to legislate on purely public matters. Since what
was given to local legislative bodies are not power to make rules and
regulations but LEGISLATIVE POWER, the rules on valid delegation do not
apply.
However, when what is given to local legislative body is EXECUTIVE POWER,
the rules applicable to the empowerment of administrative agencies also
become applicable
The BPO issued by the Punong Barangay is not an undue delegation of
legislative power for it merely orders the perpetrator to desist. Such function
of the Punong Barangay is purely executive in nature, in pursuance of his duty
under the LGC to “enforce all laws and ordinances,” and to “maintain public
order in the barangay.” (Garcia v. Drilon, G.R. No. 179267, June 25, 2013)
3.Delegation of Rule-Making Power to Administrative Bodies – power to
issue supplementing rules and regulations provided that the delegation must
be complete and must prescribe sufficient standards.
Congress can only delegate, usually to administrative agencies, rule-making
power or law execution.
This involves either of two tasks for the administrative agencies:
- Subordinate Legislation: Filling up the details of an otherwise complete
statute; or
- Contingent Legislation: Ascertaining the fact necessary to bring a
“contingent” law or provision into actual operation.
4BLUE95: Administrative rules and regulations may be penal in nature
provided that: - such a violation is made a crime by the delegating law; -
penalty of such is provided in the statutes - the regulation is published.
4. Tariff Powers - Art. VI, § 28(2) authorizes Congress to delegate to the
President the power to fix tariff rates, import and export quotas, tonnage,
wharfage dues, and other duties and impost.
5. Emergency Powers - Art. VI, § 23(2) authorizes Congress to give the
President the power necessary and proper to carry out a declared national
policy in times of war or other national emergency pursuant to law.
WHAT DELEGATE CANNOT DO:
1.add new standard
2.change legislative policy (from regulate to deregulate)
3.expand powers (so if law state prosecute only then delegate cannot
imposed fine)
4. amend law
Legislative bodies can pass to delegate rules with penal sanctions so long as
(which means the Administrative Bodies can imposed Penal sanctions)
(1)it is provided in the statute (like Gun ban imposed by COMELEC since it is
provided in Omnibus Election Code)
(2) statute must authorize promulgation of penal statutes
(3) publish in official gazette or newspaper of general circulation.
10
TEST OF VALID DELEGATION
1. Completeness Test — The law must state the policy that must be carried
out or implemented and leave no room for the delegate to legislate; nor allow
discretion on their part to say what the law is; there must be nothing left for
the delegate to do but to enforce the law.
2. Sufficiency of Standard — The limits are sufficiently determinate and
determinable to which the delegate must conform in the performance of his
actions.
 The standard may be express or implied (Edu v. Ericta)
 The standard does not have to be found in the law being challenged. It
may be embodied in other statutes on the same subject matter as that of the
challenged legislation. [Chongbian v. Orbos (1995). Here, the challenged law
was the ARMM Organic Act. The standard was found in the Reorganization
Act.]
 2022 notes: no delegation if no standard
EXAMPLES OF SUFFICIENT STANDARDS INCLUDE:
 Assumption by Labor Minister over strikes affecting national interest
(Free Telephone Workers Union v. Minister of Labor and Employment, 1981)
 Reorganization of administrative regions in ARMM (Chiongbian v.
Orbos, 1995) Standard may be implied from other laws, e.g. RA 5435
(simplicity, economy, efficiency)
 Fixing of rates by National Telecommunications Commission
(Philcomsat v. Alcuaz, 1989) The standards used were public safety, public
interest, reasonable feasibility and reasonable rates (case to case basis)
 The power to hear a case can be delegated, but not the power to decide.
(American Tobacco Co. v. Director of Patents, 1975)
 The power to decide can be delegated provided that the power to
delegate such function was not withheld expressly or impliedly. (Realty
Exchange v. Sendino, 1994, where the issue was whether the HLURB could
split itself into divisions when hearing cases instead of meeting en banc.)
EXAMPLES:
A law allowing a judge to inflict punishment of imprisonment in its discretion
without any designated limits is invalid. (People v. Dacuycoy, G.R. No. L-45127,
May 5, 1989).
Section 8 of PD 910 regarding the Malampaya funds provides: “all fees,
revenues and receipt…under the Petroleum Act of 1949; as well as the
government share…shall form part of a special fund to be used to finance
energy resource development and exploitation programs and projects of the
government and for such other purposes as may be hereafter provided by the
President.” This is not a valid delegation of legislative power. The provision
constitutes an undue delegation of legislative power insofar as it does not lay
down a sufficient standard to adequately determine the limits of the
President‘s authority (Belgica v. Ochoa, G.R. No. 208566, Nov. 19, 2013).
Reorganization “involves the reduction of personnel, consolidation of offices,
or abolition thereof by reason of economy or redundancy of functions.” The
general rule has always been that the power to abolish a public office is
lodged with the legislature. The exception, however, is that as far as
bureaus, agencies or offices in the executive department are concerned, the
President’s power of control may justify him to inactivate the functions of a
particular office, or certain laws may grant him the broad authority to carry
out reorganization measures (Malaria Employees v. Romulo, G.R. 160093, Jul
31, 2007).
Any post-enactment congressional measure should be limited to scrutiny and
investigation. In particular, congressional oversight must be confined to the
following:
· Scrutiny based primarily on Congress’ power of appropriation and the budget
hearings conducted in connection with it
· Its power to ask heads of departments to Appear before and be Heard by
either of its Houses on any matter pertaining to their departments and its
power of confirmation and investigation
· Monitoring of the implementation of laws pursuant to the power of Congress
to conduct inquiries in aid of legislation
Any action or step beyond that will undermine the separation of powers
guaranteed by the Constitution. Legislative vetoes fall in this class (Abakada v.
Purisima, G.R. No. 166715, Aug. 14, 2008).

Q: The ―Poverty Alleviation and Assistance Act "was passed to enhance the capacity
of the most marginalized families nationwide. A financial assistance scheme called
―conditional cash transfers" was initially funded 500 million pesos by Congress. One
of the provisions of the law gave the Join t- Congressional Oversight Committee
authority to screen the list of beneficiary families initially determined by the Secretary
of Department of Social Welfare and Development pursuant to the Department
implementing rules. Mang Pandoy, a resident of Smokey Mountain in Tondo,
questioned the authority of the Committee. Is the grant of authority to the Oversight
Committee to screen beneficiaries constitutional? (2009 BAR)
A: The grant of authority to the Oversight Committee to screen beneficiaries is
unconstitutional. Itviolates the principle of separation of powers. By being involved in
the implementation of the law,the Oversight Committee will be exercising executive
power. (Abakada Guro Party List v. Purisima,562 SCRA 251, 2008)
Q: Senator Fleur De Lis is charged with plunder before the Sandiganbayan. After
finding the existence of probable cause, the court issues a warrant for the Senator's
arrest. The prosecution files a motion to suspend the Senator relying on Section 5 of
the Plunder Law. According to the prosecution, the suspension should last until the
termination of the case. Senator Lis vigorously opposes the motion contending that
only the Senate can discipline its members; and that to allow his suspension by the
Court would violate the principle of separation of powers. Is Senator Lis's contention
tenable? Explain. (2015 BAR)
A: The contention of the Senator is not tenable. The power of each House of Congress
to ―punish its Members for disorderly behavior,‖ and ―suspend or expel a Member‖ by
a vote of two- thirds of all its Members subject to the qualification that the penalty of
suspension, when imposed, should not exceed sixty days‖ under Section 6 (3), Article
VI of the Constitution is ―distinct‖ from the suspension under the Plunder Law― which
is not a penalty but a preliminary, preventive measure prescinding from the fact that
the latter is not being imposed on petitioner for misbehavior as a Member of the
House of Representatives.‖ The doctrine of separation of powers cannot be deemed to
have excluded Members of Congress from the application of the Plunder Law. The
law itself does not exclude Members of Congress from its coverage. The
Sandiganbayan did not err in issuing the preventive suspension order. (Ceferino
Paredes, Jr. v. Sandiganbayan, G.R. No. 118364, 08 August 1995, cited in Santiago v.
Sandiganbayan, G.R. No. 128055, April 18, 2001)
Q: Several concerned residents of the areas fronting Manila Bay, among them a group
of students who are minors, filed a suit against the Metro Manila Development ·
Authority (MMDA), the Department of Environment and Natural Resources (DENR),
the Department of Health (DOH), the Department of Agriculture (DA), the
Department of Education (DepEd), the Department of Interior and Local Government
(DILG), and a number of other executive agencies, asking the court to order them to
perform their duties relating to the cleanup, rehabilitation and protection of Manila
Bay. The complaint alleges that the continued neglect by defendants and their failure
to prevent and abate pollution in Manila Bay constitute a violation of the petitioners'
constitutional right to life, health and a balanced ecology. (a) If the defendants assert
that the students/petitioners who are minors do not Political Law 10 have locus standi
to file the action, is the assertion correct? Explain your answer. (b) In its decision
which attained finality, the Court ordered the defendants to clean up, rehabilitate and
sanitize Manila Bay within eighteen (18) months, and to submit to the Court periodic
reports of their accomplishment, so that the Court can monitor and oversee the
activities undertaken by the agencies in compliance with the Court's directives.
Subsequently, a resolution was issued extending the time periods within which the
agencies should comply with the directives covered by the final decision. A view was
raised that the Court's continued intervention after the case has been decided violates
the doctrine of separation of powers considering that the government agencies all
belong to the Executive Department and are under the control of the President. Is this
contention correct? Why or why not? (2016 BAR)
A:
(a) The contention that the minors have no locus standi is unmeritorious. In the
landmark case of Oposa v. Factoran, the Court held that basis for the minors to have
locus standi is intergenerational responsibility. It is pursuant to the obligation of the
State under Section 16, Article II of the Constitution to protect and advance the right
of the people to a balanced and healthful ecology in accord with the rhythm and
harmony of nature.
(b) The order of the Supreme Court to the defendant to clean up, rehabilitate and
sanitize the Manila Bay is an exercise of judicial power, because the execution of its
decision is an integral part of its adjudicative function. Since the submission of
periodic reports is needed to fully implement the decision, the Supreme Court can
issue a continuing writ of mandamus to the MMDA until full compliance with its
order is shown. (Metropolitan Manila Development Authority v. Concerned Residents
of Manila Bay, G.R. Nos. 171947-48)
Q: Suppose that Congress passed a law creating a Department of Human Habitat and
authorizing the Department Secretary to promulgate implementing rules and
regulations. Suppose further that the law declared that violation of the implementing
rules and regulations so issued would be punishable as a crime and authorized the
Department Secretary to prescribe the penalty for such violation. If the law defines
certain acts as violations of the law and makes them punishable, for example, with
imprisonment of three (3) years or a fine in the amount of P10,000.00 or both such
imprisonment and fine, in the discretion of the court, can it be provided in the
implementing rules and regulations promulgated by the Department Secretary that
their violation will also be subject to the same penalties as those provided in the law
itself? Explain your answer fully. (2002 BAR)
A: The rules and regulations promulgated by the Secretary of Human Habitat cannot
provide that the penalties for their violation will be the same as the penalties for the
violation of the law. As held in United States v. Barrias (11 Phil. 327), the fixing of
the penalty for criminal offenses involves the exercise of legislative power and cannot
be delegated. The law itself must prescribe the penalty.
11
Q: In 2014, Congress enacted an appropriation law containing a provision that gives
individual legislators the discretion to determine, postenactment, how much funds
would go to a specific project or beneficiary which they themselves also determine.
Consequently, disbursements were made in the interim pursuant thereto. Eventually,
Mr. Z filed a petition questioning the constitutionality of the statutory provision on the
grounds that it violates the separation of powers principle. On the other hand, certain
Congressman argued that there was nothing wrong with the provision because, after
all, the power to appropriate belongs to Congress. (2019 BAR)
(a) Rule on the arguments of the parties. A: I will rule in favor of Mr. Z. The
provision is unconstitutional for being violative of the separation of powers. The
enforcement of the national budget, as primarily contained in the GAA, is
indisputably a function both constitutionally assigned and properly entrusted to
the Executive branch of government. Any post-enactment congressional
measure x x x should be limited to scrutiny and investigation. In particular,
congressional oversight must be confined to the following: (1) scrutiny based
primarily on Congress‗ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear
before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation; and (2) investigation and monitoring
of the implementation of laws pursuant to the power of Congress to conduct
inquiries in aid of legislation. (c) Any action or step beyond that will undermine
the separation of powers guaranteed by the Constitution (Belgica v. Ochoa, G.R.
208566, Nov. 19, 2013)
(b) Assuming that the provision is declared unconstitutional, should the
disbursements made pursuant thereto be returned in light of the doctrine of
operative fact? Explain. A: NO, the disbursements need not be returned, as the
doctrine of operative fact applies. The doctrine of operative fact recognizes the
existence of the law or executive act prior to the determination of its
unconstitutionality as an operative fact that produced consequences that cannot
always be erased, ignored or disregarded. In short, it nullifies the void law or
executive act but sustains its effects. It provides an exception to the general rule
that a void or unconstitutional law produces no effect. In the case of Araullo v
Aquino (G.R. No. 29287, July 1 2014), the Court found the doctrine of
operative fact applicable to the adoption and implementation of the DAP. ―Its
application to the DAP proceeds from equity and fair play. The consequences
resulting from the DAP and its related issuances could not be ignored or could
no longer be undone.
Q: Section 32 of Republic Act No. 4670 (The Magna Carta for Public School
Teachers) reads: Sec. 32. Penal Provision — A person who shall willfully interfere
with, restrain or coerce any teacher in the exercise of his rights guaranteed by this Act
or who shall in any other manner commit any act to defeat any of the provisions of
this Act shall, upon conviction, be punished by a fine of not less than one hundred
pesos nor more than one thousand pesos, or by imprisonment, in the discretion of the
court. Is the proviso granting the court the authority to impose a penalty or
imprisonment in its discretion constitutional? Explain briefly. (2005 BAR)
A: The proviso is unconstitutional. Section 32 of R.A. No. 4670 provides for an
indeterminable period of imprisonment, with neither a minimum nor a maximum
duration having been set by the legislative authority. The courts are thus given wide
latitude of discretion to fix the term of imprisonment, without even the benefit of any
sufficient standard, such that the duration thereof may range, in the words of
respondent judge, from one minute to the life span of the accused. This cannot be
allowed. It vests in the courts a power and a duty essentially legislative in nature and
which, as applied to this case, does violence to the rules on separation of powers as
well as the nondelegability of legislative powers. (People v. Judge Dacuycuy, G.R.
No. L-45127, May 5, 1989)
Q: Section 8 of P.D. No. 910, entitled "Creating an Energy Development Board,
defining its powers and functions, providing funds therefor and for other purposes,"
provides that: "All fees, revenues and receipts of the Board from any and all sources x
x x shall form part of a Special Fund to be used to finance energy resource
development and exploitation programs and projects of the government and for such
other purposes as may be hereafter directed by the President." The Malampaya NGO
contends that the provision constitutes an undue delegation of legislative power since
the phrase "and for such other purposes as may be hereafter directed by the President"
gives the President unbridled discretion to determine the purpose for which the funds
will be used. On the other hand, the government urges the application of ejusdem
generis. Does the assailed portion of section 8 of PD 910 hurdle the two (2) tests
[Completeness test and Sufficient Standard Test]? (2016 BAR)
A: The assailed portion of the Presidential Decree No. 910 does not satisfy the two
tests. The phrase ―and for such other purposes as may be hereafter directed by the
President‖ gives the President unbridled discretion to determine the purpose for the
funds will be used. An infrastructure is any basic facility needed by society. The
power to determine what kind of infrastructure to prioritize and fund is the power to
determine the purpose of the appropriation and is an undue delegation of the power to
appropriate. The assailed provision does not fall under the principle of ejusdem
generis. First, the phrase ―energy resource development and exploitation programs
and projects of the government states‖ a singular and general class. Second, it
exhausts the class it Political Law 12 represents. (Belgica v. Ochoa, Jr., GR. No.
208566, November 19, 2013)
 12

FUNDAMENTAL POWERS

The totality of governmental power is contained in three great powers:
police power, power of eminent domain and power of taxation.
A constitution does not grant such powers to government; a
constitution can only define and delimit them and allocate their
exercise among various government agencies.
1. TAXATION
essentially a legislative function. Taxation is an attribute of sovereignty.
It is the strongest of all powers of the government.
The legislature is free to select the subjects of taxation and it may
determine within reasonable bounds what is necessary for its protection
and expedients for its promotion
General Rule: The power to tax is purely legislative and it cannot be
delegated
Exceptions:
3. POLICE POWER
power of the State to enacts regulations to promote the health, morals,
peace and order, and welfare of the society
IT IS LEGISLATIVE IN NATURE but may be delegated to the following:
- President
- Administrative Bodies
- Legislative Bodies of Local Government Units
Requisites
1. Reasonable Subject - The subject of the measure is within the scope of
police, i.e. that the activity or property sought to be regulated affects the
public welfare.
2. Reasonable Means - The means employed are reasonably necessary
for the accomplishment of the purpose, and not unduly oppressive on
individuals. Both the end and the means must be legitimate

I. As to the President
Congress may, by law, authorize the President to fix within
specific limits, and subject to such limitations and
restrictions as it may impose, tariff rates, import and export LIMITATIONS:
quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the NATIONAL A. TERRITORIALITY
DEVELOPMENT PROGRAM of the Government. ONLY WITHIN THE TERRITORY IS POLICE POWER
APPLICABLE
II. As to Local Government
Under the present Constitution, each local government unit B. EQUAL PROTECTION CLAUSE
is now expressly given the power to create its own sources INTEREST OF THE PUBLIC AS AGAINST THE PRIVATE
of revenue and to levy taxes, subject to such guidelines and INTEREST IS REQUIRED
limitations as the Congress may provide, consistent with the
basic policy of local autonomy C. DUE PROCESS CLAUSE
REASONABLE MEANS TO ATTAIN PURPOSE AND IT MUST
III. As to Administrative Agencies NOT BE UNDULY OPPRESSIVE
When the delegation relates merely to administrative
implementation which may call for some degree of D. EXERCISE NOT CONTRATY TO LAW
discretionary powers under a set of sufficient standards REGULATION CANNOT JUSTIFY PROHIBITED ACTS
expressed by law

2. EMINENT DOMAIN (PUBLIC USE)

The matter is LEGISLATIVE, however, “once authority is given to exercise

the power, the matter ceases to be wholly legislative. The executive
authorities may then decide whether the power will be invoked and to
what extent

It may be delegated to LGUs, other public entities and public utilities.

The scope is narrower and may be exercised only when authorized by
Congress, subject to its control and restraints imposed through the law
conferring the power or in other legislations. Thus, the power of eminent
domain delegated to an LGU is in reality not eminent but “inferior.” The
national legislature is still the principal of the LGUs, the latter cannot go
beyond the principal’s will or modify the same

State has a paramount interest in exercising its power of eminent

domain for the general welfare and that the superior right of the State
to expropriate private property always takes precedence over the
interest of private owners, provided that:
• the expropriation is for public use
• the exercise of the right to eminent domain complies with the
guarantees of due process
 13

Taxation Police Power

Authority (who exercises the power)
Eminent Domain
GOVERNMENT:
May be exercised only May be exercised only May be exercised only
by: by: by:
1. The 1. The 1. The Common Forms of Democratic Government
governme governm governm
nt; or ent; or ent; Presidential
2. Its 2. Its 2. Its
• Government is characterized by a separation of powers among the
political political political
subdivisio subdivisi subdivisi Legislative, Executive, and Judiciary.
ns. ons. ons; or • This system embodies “interdependence by separation and
3. May be coordination.”
granted • The head of State is the President, who likewise presides over the
to public
service Executive Department.
companie
s or Parliamentary
public • Government characterized by “interdependence by integration.” Here,
utilities.
the ministers of the executive branch get their democratic legitimacy
Purpose
The property (generally The use of the property To facilitate the taking from the legislature and are accountable to that body, such that the
in the form of money) is is ―regulated‖ for the of private property for executive and legislative branches are intertwined.
taken for the support of purpose of promoting public use.
the government. the general welfare; it Essential Features of a Parliamentary System of Government (SCRePS)
is not compensable.

Persons Affected • Members of government, or the cabinet, or the executive are as a rule,
Operates upon: Operates upon: Operates upon: simultaneously members of the legislature.
1. A 1. A 1. An • The government or cabinet is in effect a committee of the legislature.
communit communi individua • Both government and legislature possess control devices with which
y; or ty; or l as the
2. Class of Class of owner of each can demand of the other immediate political responsibility. • The
individual individua a government or cabinet has a pyramidal structure at the apex of which is
s ls particular the Prime Minister or his equivalent.
property. • Government or cabinet stays in power only so long as it enjoys the
Effect
support of the majority of the legislature.
The money contributed There is no transfer of There is transfer of
becomes part of the title. At most, there is right to property.
public funds. restraint on the Legislature: Power to exercise a vote of no confidence (censure)
injurious use of whereby government may be ousted
property. Executive : power to dissolve the legislature and call for new leaders
Benefits Received
Protection and Indirect Benefits. Market value of the
benefits he receives, The person affected property.
The enjoyment of the receives indirect He receives the market
privileges of living in benefits as may arise value of the property As to Administration
an organized society, from the maintenance taken from him.
established and of a healthy economic
safeguarded by the standard of society.
devotion of taxes to Federal
public purpose.
The central authority and constituent political units divide and share the
Amount of Imposition
Generally, there is NO Amount imposed No amount imposed power, where the central government is focused on more specific
limit on the amount of should just be but rather the owner is functions such as national defense and foreign policy. The constituent
tax that may be imposed commensurate to cover paid the market value units are given more powers to develop their territories without much
the cost of regulation, of property taken. intervention by the central government
issuance of a license
or surveillance
. Unitary
Relationship to Constitution
Subject to constitutional Relatively free from Inferior to the Powers are concentrated in one central authority and some of which are
limitations, including constitutional impairment merely delegated to other units (e.g. delegated legislative power to
the prohibition against limitations and is prohibition;
impairment of the superior to the government cannot LGUs)
obligation of contracts. impairment of contract expropriate private
provisions. property, which under
a contract has
previously bound itself
to purchase from the
other contracting party.