sreemnmemnemnnrsnr e PRINCIPLES, COMMENTS AND CASES IN CONSTITUTIONAL LAW VOLUME I Q- What is the doctrine of jus postlimini? A When a territory which has been occupied by the enemy comes again into the power of the State during the progress of a war through conquest or otherwise, the legal state of the things existing prior to the hostile occupation is re-established. (Aruego, International Law) CHAPTER VI PREAMBLE OF THE 1987 CONSTITUTION MEANING OF THE PREAMBLE. ‘of the ‘Filipino people) and of the of the government established under the Constitution. It serves two important ends: First, it ‘idicates) the’ Soures" trot WhIEH the! Constitution ‘comes, ly in the case of the Philippine Constitution, “We, the Secondly, it sets forth the ends that y it are i PREAMBLE WE, THE SOVEREIGN FILIPINO PEOPLE IMPLORING THE AID OF ALMIGHTY GOD, IN ORDER TO BUILD A JUST AND HUMANE SOCIETY AND ESTABLISH A GOVERNMENT THAT SHALL EMBODY OUR IDEALS AND ASPIRATIONS, PROMOTE THE COMMON GOOD, CONSERVE AND DEVE- LOP OUR PATRIMONY, AND SECURE TO OURSELVES AND OUR POSTERITY THE BLESSINGS OF INDEPEN- DENCE AND DEMOCRACY UNDER THE RULE OF LAW AND A REGIME OF TRUTH, JUSTICE, FREEDOM, LOVE, EQUALITY AND PEACE, DO ORDAIN AND PROMULGATE THIS CONSTITUTION.ARRESTED EET Cy PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW ‘VOLUME 1 ‘COMMENT: 1. THE DIFFERENCE AT A GLANCE OF THE 1935, 1973 AND 1987 CONSTITUTION 1985 1973 1987 ‘mug FIuPINO PeopLe | WE, Zeb sovEREicN | We THE SOVEREIGN IMPLORINGTHE AID | UiPING PEOPLE, | FILIPINO PEOPLE, OF DIVINE PROV IMPLORING THE Atp | IMPLORING THE DENGE,INORDER | OF DIVINE PROVI-_ | AIDOF ALMIGHTY ‘TOESTABLISH A DENCE, INORDER | GOD,IN ORDER TO GOVERNMENT THAT | TOESTABLISH.A | BUILD AJUST AND SHALL EMBODY THEIR | GOVERNMENT THAT | HUMANE SOCIETY IDEALS, CONSERVE | SHALL EMBODY OUR | AND BSTABLISH A ANDDEVELOPTHE | IDEALS PROMOTE | GOVERNMENT THAT PATRIMONY OFTHE | THEGENERAL WEt- | SHALL EMBODY NATION, PROMOTE | FARE, CONSERVE "| OURIDEALS AND THEGENERALWEL. | ANDDEVELOPTHE | ASPIRATIONS, FARE,ANDSECURE | PATRIMONY OF OUR | PROMOTE THE TOTHEMSELVES AND_ | NATION.ANDSE- | COMMON GOOD, 2 BRIEF BACKGROUND ‘The preamble of the 1935 Constitution starts with the phrase “The Filipino People, etc", a third person approach, Wich wil remind ua about this fecual Beckground: That on March 24, 1934, the U.S. Congress passed and the ‘Tydings-MeDuffie Law, and that under this law, of the Philippine Islands were authorized to draft-a Constitution, CHARTER VI 6 PREAMBLE OF THE'987 CONSTITUTION shall_be drafted and_approved by a ion shall be ratified by the people, an election oF plebiscite called, ting the Constitution, the 1973 and the 1987 Constitutions themselve “aithaUt aay participation whatsoever wernment. 3. ITIS NOT PART OF THE CONSTITUTION not part of the Constitution, it possesses to a Constitution what the enacting clause is nay not justify the exercise of bbe relied upon for a claim of governmental pow an individual right, 4. ITISNOT A SOURCE OF RIGHTS OR OBLIGATIONS It is merely an_aid_in_ascertaining the meaning of ambiguous provisions in the body of the Constitution. 5. PHRASES OR WORDS FOUND IN THE 1987 CONS- TITUTION WHICH ARE NOT FOUND IN THE 1935 CONSTITUTION. WHAT IS THE REASON FOR THE ‘CHANGE? 1, The preamble of the 1973 and 1987 Constitutions starts with the phrase “We, the sovereign Filipino people’, a first person approach. Reason: The authors of the 1973 and the 1987 Constitutions are the “sovereign Filipino people”. 2, The words “general welfare” now read “common good”. Reason: It promotes a just and dynamic social order,6 PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW. ‘VOLUME 1 just and humane society that will help not only the greater number of people but also all the people to enjoy the blessings of democracy. 3, The words “the pat ny of the nation” now read “our {importance of true independence even in the presence of democratic beliefs and practices. 5. The words “imploring the aid of Divine Providence” now “imploring the aid of Almighty God” to make ce to God more personal and direc. wvoid deception, distortion, and misrepresentation. ” was used instead of “liberty” because face et aioe and discards on account of varying political and social beliefs, practices, and persuasions. CHAPTER VIL NATIONAL TERRITORY The national territory comprises the Philippine Ar- chipelago, with all the islands and waters embraced ite terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insu- lar shelves, and other submarine areas. The waters. around, between, and connecting the islands of the ar- chipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. What is the scope of our national territory as defined in Article I? Itincludes: (a) The Philippine archipelago, with all the islands and waters embraced therein; (b) All other territories over which the Philippines has sovereignty or jurisdiction consisting of — (b.1) Its territorial, fluvial, and aerial domains. (©) The territorial sea, the seaved, the subsoil, the insular shelves, and other submarine areas. (@) The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions. WHAT ARE THE FOUR POINTS OF REFERENCE TO DETERMINE ‘THE PHILIPPINE TERRITORY AS USED IN ARTICLE I OF THE 1935 CONSTITUTION? ‘The four points of reference to determine the Philippine territory are as follows: or« PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW ‘VOLUME 1, The territorial areas set forth in the Treaty of Paris of December 10, 1898. 2, Those set forth in the Treaty of Washington on November 7, 1900. 3, ‘Those set forth in the Treaty between Great Britain and United States on January 2, 1930. 4, “All other territories over which the present Government of the Philippine Islands exercises jurisdiction.” AS USED IN ARTICLE I OF THE 1987 CONSTITUTION, WHAT ARE COVERED? ‘The following are covered: 1, The territorial areas and waters recognized in the Convention of the Law of the Sea of December 10, 1898. 2. The included. F points of roference mentioned earlier are WHATIS INCLUDED BY THE PHRASE “ALL OTHER TERRITORIES BELONGING TO THE PHILIPPINES BY HISTORIC RIGHT OR -EGAL TITLE"? belong > the Philippines “by historic right title.” THE MEANING OF THE PHRASE “AND ALL OTHER TERRITORIES QVER WHICH THE PHILIPPINES HAS SOVEREIGNTY AND JURISDICTION” ‘This means that Sabah is part of the Philippines because lovereignty rights over Sabah wore officially transferred to the Xepublic of the Philippines by the Sultanate of Sulu on September 12, 1962, during the term of President Diosdado Macapagal long tefore the promulgation of the 1987 Constitution, For this reason, Jabah has not been excluded at all from the scope of our national ‘ervitory under the 1987 Constitution. CHAPTER vit 6 NATIONAL TERRITORY ‘THE HISTORICAL AND LEGAL BASIS OF THE SABAH CLAIM ‘The following facts and circumstances. will guide us in determining the validity and legitimacy of the Sabah claim> ‘The Sultanate of Sulu claims ownership over the territories of Sabah and Palawan as it was given to them by the Sultan of Brunei as a gift for assisting to avert a war in Borneo. This was given in 1658. Due to restraint brought about by geographical distance and difficulty in the management of such a large area, the Sultanate of Sul ba Pao Aapeemeal oows in, moder tines 00 lease or rent), with Baron in 1878. Later, Baron De Overbeck sold his rights under the said contract to Alfred Dent, an English Merchant. He subsequently organized British North Borneo Company, which assumed all the rights and obligations he acquired from Baron De Overbeck. The said company was awarded ‘a Royal Charter in 1881, The Government of Spain and the Dutch Government protested against the grant of the Royal Charter, bbut the British Government took the position that British North Borneo Company was merely an administering authority and that sovereignty over the said territory remains with the Sultan of Sulu. ‘The British North Borneo Company transferred all its rights and obligations to the British Crown in 1946, and the latter asserted full sovereign rights over North Borneo on July 10, 1946, six (6) days after the Philippines was granted independence by the U.S. ‘on July 4, 1946. This was then questioned by Former American Governor General Harrison who was then Special Adviser of the Philippine Government on Foreign Affairs, saying that the grant was a unilateral act and it violated legal rights. 6, Asati Lacon en Arturo Tlentna Synnsorata scat by the Govern- ten President, ugh then President Diosc ‘basis, this is apparently more strong and sustainable than the tim af Baron De Overbeck oad Aire! Dent wh, oo mee pevae individuals could not and were not able to acquire dominion and0 PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW ‘VOLUME I sovereignty over North Borneo, known as Sabah. By the same force of logic and common sense, the British North Borneo Company, be- ing also a private company, and could not acquire dominion and sovereignty over North Borneo. In short, the said claimants ac- quired no better rights than the rights of the previous lessee, which arises from the “Padjak” Agreement. In 1963, Malaysia, Singapore, Sarawak, and Sabah, formed a id Great Britain ceded its rights over Sabah to the 1968, a law was passed by our Congress stating ‘out prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Philippines has acquired dominion and ines our territorial without prejudice to the delineation of the baselines of the te 1 sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion or sovereignty. This law (R.A. No. 5446) was an amendment of Republic Act No. 3046, which ‘was the basis of the statement of Professor Jose N. Nolledo that the definition of our territory, territorial, and internal waters, including the 200-mile economic zone as well as the islands over which we have historic or legal Incidentally, North Borneo which was referred to in connection | with eaid Republic Act No. 5446, is what is known now as Sabah. It even before the creation of the Federation of Malaysia. It may be true that Great Britain ceded its rights over Sabah to the said Federation, but this cannot defeat the truth that: (1) Sabah as a gift by the Sultan of Brunei to the Sultanate of Sulu for helping Brunei to suppress a rebellion then against the CHAPTER VIL n NATIONAL TERRITORY parties in cases before the Court”; (6) It is on this aspect where then Sultan Mohammed Kirar the Governmentof the Republic f the Philippines, through then President Diosdado Macapagal, for help and assistance and the government accepted by filing then a wurt. It turns out that this was not i reason and justific take which has the support of the peo ‘comm is un surrent Courts, broke the camel's back. They lost their hope for smelly, understanding, and assistance of the Philippine Government, and ir manifestations and formal and neither is this reported, or publish our country, or satisfactorily explained Sulu but also to the ‘which indicates that there is indeed a claim but which was not seriously pursued or attended to by the Government of the Republic of the Philippines. Whatever may be the reason for such inaction has yet to be clarified. But whether this is clarified or not now, the explanation is overtaken by recent events which have already caused damage and loss of lives. ‘The validity of the Sabah claim, based on historical records and documents, particularly the truth about the lease and the ownership of the Sultanate of Sulu, and the rentals which, up to this day, are still being paid by Malaysia, is strong, and it can stand scrutiny in any judicial or diplomatic forum. Should there be any reluctance ‘on the part of the government to take this cause of action, or to make this depend on the earlier condition of surrender of Sultan ‘Jamalul Kiram’s followers, more serious violence may likely erupt at anytime, and if that happens, it will be more costly in terms of lives and resources. ‘Viewed from another angle, the sympathy of Muslims any- where in the world particularly in Mindanao, will be unn Put toa test. Shall they choose to stay and watch from the si ‘without lifting a finger, or shall they sympathize with the S of Sulu, and ultimately rally for the cause the Sultanate is fighting2 PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW VOLUME for? Why put them to such a test when the government can simply ‘put the issue to the wisdom and competence of the International Bort of Justice? 1 think that the best minds in the legal and level A COMPETENT JUDICIAL BODY, NOT BY THEMSELVES AND THEIR ARMIES OR THE MIGHT OF FORCE. cuaprer vit 3 NATIONAL TERRITORY » “by historic right or legal ion, was deleted in the 1987 yy the phrase “over which the Phifpines han sovereignty and jridlcton™ ‘The question then arises: Have we abandoned our claim over id deleted phrase? ‘There were three legal luminaries who have separate opinions, thus: “Former-Senator Arturo M, Tolentino claims that on account and our territorial waters covering 90 million hectares of water gate to the 1986 Constitutional ‘observation and said that the ‘and internal waters including ‘as the islands over which we have historic right o rrovided for and duly protected under Republic Act No. 3046 as amended by Republic Act No. 5446, Presidential Decree No. 1596 and Presidential Decree No. 1559, all of which, pursuant to Section 3, Article XVII of this Constitution, shall continue to be valid and effective until amended or repealed.” tildd that fat ome fture ne Une Phlprine government exerts Jurisdiction over Sabah, it will be part of our territory.” (Volume 1, pp. 1229-321, Records of the 1986 Constitutional Commission) AUTHOR'S NOT! respectfully submitted that the deletion of the words “ territories belonging to the Philip- pines by historic right or legal title” does not mean that we have ‘abandoned or dropped our claim erased reference to the old treati will not nullify the said treaties nor the Convention on the Law of‘ ‘PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW ‘VOLUME hhe Sea and related rules.” (Suarez, Political Law Reviewer, 2011 dition, p. 46) Government of the Republic and dominion was ceded by ‘Malaysia). It is on this be looked into and analyzed, thus helping the tar suppress then tu rbalion aguinst his rule 3) the “Pada Je Overbeck, and the subsequent assignment of the lease rights to Alfred Dent and subsequent arrangements. ‘urther delay, and procrastination, aggravated by bittr accusations other, statements delivered in haste, although Boee fet intneied Hopurgw apeacefal life salfenens rig, Peace efforts of the government in Mindanao are laudable 1nd I feel that the present administration, under the leadership sf President Aquino, is in the right direction undoubtedly. As to ‘whether or not there is or there are moves from disgruntled Muslim 2aders and even by some politicians to discredit the administration ‘not what is more important at this stage. ‘CHAPTER Vit 16 NATIONAL TERRITORY ‘The government cannot simply ask the Sultan of Sulu and his followers “to surrender’. To them who have legitimate grievances and whose request for assistance from our goverament has long language that should have been ion, to my mind and with all due respect, is to call an immediate cease fire arrangement from both protagonists, request a status quo after the cease fire, and in the meantime, while serious diplomatic efforts are pursued to afford both governments to 3 Je and agree on peaceful solutions which, after all, ich as intercession by the United Nations, as may'be agreed upon by the parties with the te of Sulu, in representation of his followers. durable and enduring peace which ean only cause more vi Sim clam, — The Sultanate of Sulu claims ownership over ‘the territories of Sabah and Palawan as it was thom by the Sultan of Brunei as a gift ting to avert a war in Borneo. Year given _ Padjaki(Leasel = — 1878. Rent) with Baron ___ Background why this was leased: Due De Drexbock: to geographical distance and difficulty in the management of such a large area, the ‘Sultanate of Sulu had a “Padjak Agreement” with Baron De Overbeck in 1878. Overbeck sold his — Rights sold by Overbeck to Alfred Dent. rights to Alfred Dent, an English Merchant Alfred Dent — British North Borneo Company assumed all subsequently the rights and obligations he acquired from organized British Baron De Overbeck. North Borneo Company6 PRINCIPLES, COMMENTS AND CASES IN CONSTITUTIONAL LAW ‘VOLUME — British North Borneo Company was awarded a Royal Charter in 1881. ‘Tho British North PI was USS. on July 4, 1946, — Ground raised: The said grant was a unilateral act and it violated legal rights — Congressman Diosdado Macapagal, Arsenio Lacson and Arturo Tolentino sponsored f resolution urging the President of the Philippines to recover North Borneo. Thesame was — Prior to this, Sulu Sultan Mohammed Kiram fled by Republic ceded sovereignty and dominion over Sabah to ofthe Philippines _the Philippine Government, through President through President Macapagal. mocperal ASLEGAL BASIS: 1. This _is more strong and_sustainable than the claim of Baron De Overbeck and_Alfred Dent who, as meré private individuals. could not and were not able toncquire dominion and sovereignty over ‘North Borneo, known as Sabah. 2. ‘The British North Borneo Company. being also. private company, was not and could —4 ‘Republic Act No. 5446 existed even before the creation of the Federation of Malaysia CHAPTER VI n NATIONAL TERRITORY — Malaysia, Singapore, Sarawak and Sabah formed a Federation, and Great Britain ceded its rights over Sabah to the Federation. — Our Congress passed a law stating that it was without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah situated in North Borneo, over which the Philippines has acquired dominion and sovereignty. Republic Act No. 5446 was an amendment of Republic Act No. 3046, which was the basis of the statement of Prof. Jose N. Nolledo that the definition of our territory, territorial and inter~ nal waters, including the 200-mile economic zone as well as the islands over which we have historic right and legal title, is duly protected. It may be true that Great Britain ceded its rights over Sabah to the said Federation, BUT ‘THIS CANNOT DEFEAT THE TRUTH: 1. That Sabah was given aso gift by thea PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW VOLUME T A— No. The Constitution is a municipal law and its effectivity the same is sought to be resolved by the United Nations, or by an international court of justice, recognized principles of {international law will ultimately be the binding force that will resolve the dispute. 2— Onthestrength of the said ass ‘ion, what areconsidered by the Philippines as part of its internal waters? \= On the strength of this assertion, the large bodies of water connecting the islands of the archipelago such as the Mindanao Sea, the Sulu Sea and the Sibuyan Sea, are considered by the Philippines as part of its internal waters, just like the rivers and lakes found within the islands themselves. !~ Under the Archipelagic Doctrine, what is our claim with respect to the waters around, between and connecting the islands of the archipelago? CHAPTER Vit . NATIONAL TERRITORY ‘A — Our country claims them as part of the internal waters of the Philippines regardless of their breadth and dimensions, and they form part of the internal waters of the Philippines. IS THE DEFINITION OF OUR NATIONAL TERRITORY BINDING AGAINST ALL OTHER NATIONS? No. The Constitution is a municipal law and its effectivity and enforcement is therefore limited only to its territorial jurisdiction as determined by the sovereignty upon which the authority to write and approve is a need to draw thereof, including know the scope and extent of the territory over exercises jurisdiction, the framers of our Cons! a definition. tion saw it fit and proper to make such In case of international conflicts, or when a territorial claim becomes an issue between two or more States, and the same is sought to be resolved by the United Nations, or by srnational court of justice, recognized principles of international law will ultimately be the binding force that will resolve the dispute. WHAT IS THE ARCHIPELAGO DOCTRINE? Under this doctrine, the Philippine Archipelago is considered Taos integrated unt inatend of being divided into more than Archipelagic Doctrine. By using this method, the outermost points of our archipelago are connected with straight baselines and all waters inside the baselines are considered as internal waters. ON THE STRENGTH OF THE SAID ASSERTION, WHAT ARE CONSIDERED BY THE PHILIPPINES AS PART OF ITS INTERNAL WATERS? On the strength of this assertion, the large bodies of water ‘connecting the islands of the archipelago such as the Mindanao Sea, the Sulu Sea and the Sibuyan Sea, are considered by the Philippines as part of its internal waters, just like the rivers and lakes found within the islands themselves.0 PRINCIPLES, COMMENTS AND CASES IN (CONSTITUTIONAL LAW ‘VOLUME JNDER THE ARCHIPELAGIC DOCTRINE, WHAT IS OUR CLAIM NITH RESPECT TO THE WATERS AROUND, BETWEEN AND ZONNECTING THE ISLANDS OF THE ARCHIPELAGO? Our country claims them as part of the internal waters of the Philippines regardless of their breadth and dimensions, and they ‘orm part of the internal waters of the Philippines. AUTHORS OF THE SAME SUBJECT SAY THAT THIS IS AN AFFIRMATION AND ASSERTION OF WHAT WE CLAIM TO BE OUR IATIONAL TERRITORY. WHAT SPECIFICALLY IS THE PROVISION NARTICLE | WHICH SUPPORTS THIS ASSERTION? 1. That part of the definition which provides that “The I territory comprises the Philippine Archipelago, islands and waters embraced therein 2. “The waters around, between and connecting the islands of the archipelago, regardless of their dimensions, form part of the internal waters of the Philippines.” XAR QUESTION (1998) 2-A law was passed three regions (Luzon, | ~ Itis submitted that the said law is not valid for being crntrary to the following provisions of the 1987 Constitution, thus: a. The said law seeks to divide our country by dividing it into three independent states when itis precisely our territory.” b. There should only be one democratic and republican State in the Philippines, as declared in Article II, Section 1, not three independent states. When this happens, there shall no longer be one government authority, as provided in Section 1, but different and separate ‘government authorities which are not unified and cohesive but divided in many respects. CHAPTER VIE at NATIONAL TERRITORY c. There is already an autonomous region in Muslim Mindanao and the Cordilleras and they already exist in line with, and within the framework of our national sovereignty and territorial integrity. The said law is therefore a violation of Section 15, Article X of the 1987 Constitution which already mandated the creation of an autonomous region in the said areas. CREATION OF THE BJE (BANGSAMORO JURIDICAL ENTITY) ‘The ARMM (Autonomous Region of Muslim Mindanao) was expanded into an entity known as the Bangsamoro Juridical Entity (BJE). In a Memorandum of Agreement by and between the GRP ent of the Republic of the Philippines) and MILF (Moro ‘were stipulated: . ‘The BJE is given the capacity to enter into economic and trade relations with foreign countries. 2, The BJE has the right to participate in Philippine Official missions involving negotiations of border agreements, environmental protection, sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of the ancestral domain. 3. The GRP commits to ensure the participation of BJE in meetings and events in the ASEAN and the specialized UN agencies. 4. The GRP also continues to be responsible over external defense. ‘The issue arises: Is the said memorandum of agreement valid and legal? Is the creation of the BJE conducive to national unity? ‘The said memorandum of agreement is contrary to law and ‘to our existing Constitution. Putting a portion of our national territory to a status which, in effect, is considered as a preparation for independence is not conducive to national unity. In this connection, it may be asked: Is the international law ‘concept of “Association” recognized under the 1987 Constitution? Under such concept, two States of unequal voluntarily. establish durable links. One State, called as delegates certain re: ile another state, called as the ional status as a State.2 PRINCIPLES, COMMENTS AND CASES IN CONSTITUTIONAL LAW VOLUNET Our present Constitution does not recognize this concept which implies powers that go beyond anything ever granted by the Constitution to any local or regional government, and which also implies the recognition ofthe associated entity as a State. Our 1987 Constitution does not contemplate any State in {this jurisdiction other than the Philippine State, much less does it provide for transitory status that aims to prepare any part of Philippine terri independence. (Province of North Cotabato, etal. v. GRP, G.R. No. 183591, En Banc, October 14, 2008) CONSIDERING THE IMPORTANT ISSUES IN- VOLVED IN THIS CASE, THE AUTHOR HAS DEEMED IT NECESSARY TO EXPLAIN THE BACKGROUND, THE ISSUES AND THE RULINGS OF THE SUPREME COURT IN THE SAID CASE. THE PROVINCE OF NORTH COTABATO, DULY REPRESENTED BY GOVERNOR JESUS SACDA- LAN AND/OR VICE-GOVERNOR PINOL, FOR AND IN HIS BEHALF V. THE GOVER- NMENT OF THE REPUBLIC OF THE PHILIP. PINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), ETC. G.R.NO. 183591, October 14, 2008, (In relation to other cases on the same subj No. 183752, G.R. No. 183893, G.R. No. 18395: 183962) FACTS: BACKGROUND. 1. Before the scheduled signing of the MOA-AD (Memorandum of ‘Agreement on the Ancestral Domain), there was a long process, ‘of negotiation and several prior agreements between the two parties since 1996; 2 On July 18, 1997, the GRP and MILF Peaco Panel signed the Agreement on General Cessation of Hostilties. The parties aro committed to pursue peace negotiations, protect and respect ‘human rights, negotiate with sincerity and refrain from the use of threat or force; CHAPTER VIL « [NATIONAL TERRITORY. 3. Towards the end of 1999 up to early 2000, the MILF attacked 2 ‘number of municipalities in Central Mindanao, and in March, 2000, it took control of the town hall of Kauswagan, Lanao Del Norte, This resulted to the di ive of President Joseph 4, ‘The military offensive against the MILF was suspended when President Gloria Macapagal Arroyo assumed office. Eventually, the parties decided to return to the negotiating table, upon the intercession of the Government of Malaysia; 5. On March 24, 2001, the parties signed the Agreement on the General Framework for the Resumption of Peace talks between GRP and MILF. Thereafter, MILF suspended all its military actions; lence as were el in Teel Libya om Ja 20.2 Alscused further bythe partis in thelr next eating 7. In 2005, there were several exploratory talks between the parties in Kuala Lumpur, eventually leading to the crafting of the draft MOA-AD in its final form, which was set to be signed on August 5, 2008, THE MAIN BODY AND THE MOA-AD IS DIVIDED INTO FOUR STRANDS: (1) CONCEPTS AND PRINCIPLES; (2) TERRITORY; (3) RESOURCES; AND (4) GOVERNANCE 1, CONCEPTS AND PRINCIPLES (a) ‘This strand begins with the statement that it is the “birthright of all Moros and all indigenous Mindanao to identify themselves and be accepted as “Bangsamoros.” It defines “Bangsamoro people” as the natives or original inhabitants of Mindanao and islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendants, whether mixed or of full blood, ree ‘The concept of “Bangsamoro,” as defined in this strand of the MOA-AD, includes not only “Moros” as traditionally understood even by Muslims, but all indigenous peoples of Mindanao and its adjacent islands. ©)PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW. VOLUME (©The MOA-AD proceeds to homeland,” the ownership. in the Bangsamoro people Stonupatian, Both partic 9 tho MOAAD seknowge that ancestral domain docs not form part of the public domain. (@ The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to be rooted fon ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranate. (©) The MOA-AD thus grounds the right the Bangsamoro people on the past st the sultanates. (©The MOA-AD goes on to describe the Bangsamoro people as “the First Nation” with defined territory and with ? = : (@) The term ‘First Nation” is of Canadian origin referring to the indigenous pooples of that territory, particularly those known as Indians. In Canada, each of these indig- enous peoples is equally entitled to be called “First Na- tion,” hence, all of them are usually described collectively by the plural “First Nation.” To that extent, the MOA-AD, by identifying the Bangsamoro people as “the First Na- tion” — suggesting its exclusive entitlement to that des- ignstion — departs from the Canadian usage ofthe term. (b) ‘The MOA-AD then mentions for the first time the “Bangsamoro Juridical Entity” (BJE) to which it grants Domain_and_Ancestral Lands of the Bangsamoro. (Ondertining Supplied) TERRITORY (a) The territory of the Bangsamoro homeland is described as the land mass as well as the maritime, terrestrial, fluvial, ‘and alluvial domain, including the aerial domain and the ‘atmospheric space above it, embracing the Mindanao- ‘Sulu-Palawan geographic region. © nao del Sur, Maguindanao, Sulu, 1, and Marawi City. Significantly, this certain municipalities of Lanao del that voted for inclusion in the ARMM in the 2001 defined as the extending 16 kilometers from the coastline of the BJE area, that the BJE shall also have “territorial waters,” which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and that k watt o Government” (used interchangeably with RP) shall exercise joint jurisdiction, authority, and management over all natural resources. Notably, the jurisdiction over the internal waters is not similarly deseribed as “joint.” ‘The MOA-AD further provides for the sharing of _ rol 7 Government and the BJE. in favor of the latter. RESOURCES @ ) ‘The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and shall have the option to establish. trade missions in those countries. Such relationships and understandings, however, are not to include aggression against the GRP. The BJE may also enter into environmental cooperation agreements. ‘The external defense of the BJE is to remain the duty and obligation of the Central Government. The Central Government is also bound to “take necessary steps to ensure the BJE's participation in international meetings and events” like those ofthe ASEAN and the specialized agencies of the UN.GFUAAL Gad ctor land tomers nstremeate Sc et the Philippine Government, including those issued by the pesent ARMM. (Underlining Supplied) 4 GOVERNANCE (2) The MOA-AD binds the Parties to invite a multinational ‘third-party to observe and monitor the implementation of the Comprehensive Compact. THE "ASSOCIATIVE" RELATIONSHIP BETWEEN THE CENTRAL GOVERNMENT AND THE BJE ‘The MOA-AD describes the relationship of the Central Goveromest and the BJE as “associative,” characterized by And it states that the structure cf the governance is to be based on executive, legislative, judicial, ‘254 administrative institutions with defined powers and functions in the Comprehensive Compact. The MOA-AD provides that its provisions requiring 5 A 5 ft pan signing of the Comprehensive Compact and upon affecting the wforesaid amendments, with due regard to the non-derogation r SaTioMas, PeRRTTOAE sf prion agrowmonta sad within the tivated tnctrame t be the Comprehensive Compact. (Underlining Supplied) THE SIGNING OF THE MOA-AD DIO NOT MATERIALIZE On motion of petitioners, expecifically thone who filed their cases before the scheduled signing of the MOA-AD, this Court ieaued 1a Temporary Restraining Order enjoining the GRP from signing the ISSUES: PROCEDURAL ISSUES: (1) RIPENESS: (2) LOCUS STANDI; (3) MOOTNESS: SUBSTANTIVE ISSUES: 1. Did respondents violate constitutional and statutory provisions on public consultation and the right to information when they negotiated and later initiated the MOA-AD? 2. DO THE CONTENTS OF THE MOA-AD violate our Constitution and our laws? HELD: 1. The contents of the MOA-AD are a matter of paramount implies that the same is on its way to independence.a PRINCIPLES, COMMENTS AND CASES IN (CONSTITUTIONAL LAW ‘VOLUME 1 In international practice, the “associated state” arrangement states. 3. THE CONCEPT OF ASSOCIATION IS NOT RECOGNIZED UNDER THE PRESENT CONSTITUTION recognized under with the national government. Indeed, lies powers that go beyond anything ever granted associated entity as a state. The contemplate any state inthis juris State, much less does it provide for: prepare any part of Philippine territory for independence. 4, ‘THE BJE IS A FAR MORE POWERFUL ENTITY ‘THAN THE AUTONOMOUS REGION RECOGNIZED IN THE CONSTITUTION Itis not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent population, 1a defined territory, a government, and a capacity to enter into relations with other states. Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it—which has betrayed itself by its use of the concept ‘of association — runs counter to the national sovereignty and territorial integrity of the Republic. Given the limited nature of the President's authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested. bs cuaPren VIL co [NATIONAL TERRITORY Q- How about the clause in the MOA-AD that the provisions me does not cure its defect. The inclusion of provisions ‘MOA-AD establishing an associative relationship fhe BJE and the Central Government is, itself, ‘of the Memorandum of Instructions From the lated March 1, 2001, addressed to the government the Supreme Court regarding ness; (2) Locus Standi; and (3) A- ()_ RIPENESS—The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected constitutes a departure by respondents from their mandate under Executive Order No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter for judicial review. (2) LOCUS STANDI - As the petitions involve cons- tional issues which are of paramount public interest or of sndental importance, the Court grants the petitioners, ‘grave violation of the Constitution involved; character of the situation and paramount pi the need to formulate controlling principles to guide the bench, the bar, and the public; and (4) the fact that the case is capable of repetition yet evading review. ‘The MOA-AD isa significant part ofa series of agreements, necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the Government and the MILF back in June» PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW VOLUME 2001. Hence, the present MOA-AD can dissimilar provisions compared to the ‘The Court, however, finds that the prayers for mandamus ‘the final draft of the MOA-AD and its annexes. (Ibid.) EXPLAIN THE MEANING OF THE FOLLOWING TERMS: (1) TERRITORIAL SEA; (2) INTERNAL WATERS; (3) ARCHIPELAGIC WATERS; (®) TERRITORIUM NULLIUS (1) Territorial sea or maritime belt is that portion of the sea adjacent to the coast of a State which is under its jurisdictional control. Breadth or width of the territorial sea (During the 18th century —3 nautical miles) Reason: B of artillery was about 3 miles. Now, miles from the low water mark, or in from the baselines. (2) Internal waters are the waters on landmark side of the baselines from which the breath of the territorial sea is calculated. (These are completely within the territory.) case of archipelagic States, (@) Rivers (b) Bays and gulfs (©) Straits @ Canals rehipelagic Waters (2nd sentence of Section 1, 1987 Constitution) ~ “The waters around, between and the islands of the archipelago, regardless of their limensions form part of the internal waters of the ferritorium null territory which is a lind of no pe jeans territory of no one, a CHAPTER vit a [NATIONAL TERRITORY CANA SHIP OR SHIPS OF OTHER STATES ENJOY THE RIGHT OF INNOCENT PASSAGE THROUGH THE TERRITORIAL SEA? HOW ‘ABOUT IN THE INTERNAL WATERS? A ship or ships of other States enjoy the right of innocent passage through the internal waters. BACKGROUND OF THE ADOPTION OF UNCLOS ‘Adoption: Thé Convention, referred to as UNCLOS, was adopted by uding the Philippines ‘agreement starting No the Convention’ entry into force. ‘THE PHILIPPINE DECLARATION ON THE SIGNING OF ‘THE CONVENTION ON THE LAW OF THE SEA Convention by the Government of the 3 shall notin any manner impair or2 PRINCIPLES, COMMENTS AND CASES IN ' CHAPTER VIL 93 [NATIONAL TERRITORY ‘prejudice the sovereign rights of the Repu COMMENTS: egg exons toma the Copetbatin of the Pillrsines: Be it noted that based on the aforementioned Philippine Declaration, the Government of the Republic of the Philippines, through Former Senator and Vice-President Arturo Tolentino, signed and ratified the UNCLOS based on the understanding that: | “1. The signing shall_not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of | the Philippines"; | 2. The signing shall not in any manner affect the sovereign rights of the Republic of the Philippines as j successor of the United States of America”; 3. The signing shall_not diminish or in any manner affect the rights and obligations of the contracting. parties under the Mutual Defense Treaty Between the Philippines and the United States of America”; 4, The signing shall_not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines over any territory over which sovereign authority, such as the Kalayaan Islands, and the waters through sea lanes do not nullify oF impair the appurtenant thereto"; ipelagic state over the sea 5. The signing shall_not be construed as deprive it of authority to enact legislation to protect its sovereignty, ar ree pers ee er i amending in any manner the pertinent laws and Presidential Decrees or Proclamations of the Republic of ‘he Philippines”, 6. “The provisions of the Convention on archipelagic passage through sea lanes do not nullify R archipolagie state over the sea lands and do. jecbesielin fir peatetlrosalutlan, ‘under sny of the procedures | of authority to enact legislation to protect its sovereignty, provided in the Convention, of disputes under Article 288 shall not be considered as a derogation of Philippine sovereignty. Forandon behalf of independence, and security”; 7. “The concept of archipelagic waters is similar REPL tothe concept of internal waters under the Constitution aor EB PEILIPEINES of the Philippines, and removes straits connecting these (Spd) ARTURO M, TOLENTINO | ‘waters with the economic zone or high sea from the rights, | Minister of State for Foreign Affairs of foreign vessels to transit passage for international ‘Chairman of Delegation navigation”;“ ‘PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW ‘VOLUME 8 “The Agreement of the Republic of the Philip- pines to the submission for peaceful resolution, under any ‘of the procedures provided in the Convention, of disputes ‘under Article 298 shall nat be considered as a derogation of Philippine sovereignty.” (Underlining Supplied) What are the implications of the foregoing reservations? 1. This means that sovereignty and jurisdiction shall be exercised over the territorial sea, as provided in Article I ofthe 1987 Constitution, thus: “The national territory comprises the Philippine Archipelago, with all the islands and waters emi connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters ofthe Philippines.” 2, The final stand of the Philippine Government when it signed the UNCLOS was based on and controlled by the national territory clause, as clearly provided in the 1987 Constitution and ‘even in our previous Constitutions. 3. Despite the signing of the UNCLOS, Republic Act No. 3046 is sustained. Hence, the Philippines stil adheres to the concept and connecting the islands of the archipelago, regardless of their breath and dimensions, form part of the internal waters of the Philippines.” ie (CHAPTER VIE Fo NATIONAL TERRITORY ‘sovereignty that was observed when the 1973 and jon was drafted and ratified. UNCLOS, the following have become evident: 1. ‘The internal waters of the Philippines are strictly limited to waters in lakes, bays, gulfs, mouth of rivers, and in permanent harbor works, which results to a drastic contraction of our territorial sovereignty. 2. ‘The application of the UNCLOS rules on the maritime boundary line of the Treaty of Paris of any legal function. Assuming the boundaries ofthe Philippines, effect of the the entire territorial regime of the Philippines, resulting in the debasement of ts territorial sovereignty. 3. ‘The rights and duties of the Philippines in regard to the international community are those which pertain to the maritime zones, leaving the Treaty of Paris boundary lines without any legal Under the UNGLOS the internal waters of the Phipines are strictly limited to water in lakes, bays, gulfs, mouth of rivers and in permanent harbor works. This means a drastic contraction of its territorial sovereignty. standpoint of the Philippin (a) Under the archipelago theory, “the waters around, form part of the internal waters of the Philippines and this is provided in Article I, Section 1 of the 1973 Constitution, now Article I of the 1987 Constitution. In this connection, our position is that the more than 7,000 islands comprising our terrestrial domain should be considered as one% PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW VOLUME integrated unit instead of being fragmented or separate components to be provided with its own territorial sea, as this would make the intervening waters open seas and will be available to uses of other States to the prejudice of our country. In effect, the conversion of our internal waters under the Constitution into archipelagic waters under the UNCLOS gravely derogates the sovereignty ofthe Philippine State. ‘THE THREE NAVIGABLE RIVERS ‘There are three divisions of the water of the earth, thus: 1. INLAND OR INTERNAL WATERS, They are within the land torrtory (ée, rivers, bays and gulf, strats, lakes, canals) 2, (TERRITORIAL SEA (This is also known as the maritime belt) Ibis that portion ofthe sea ‘adjacent tothe coast ofa State ‘which is under its jurisdictional control. NOTE: Breadth or width of the territorial sea, as already discussed. 3, HIGH SEAS OR OPENSEAS. They are part ofthe sea which is not included in the territorial sea or in the internal waters of any State, ARE THE OPEN SEAS INCLUDED IN THE MARITIME ZONE OF ANY STATE? No, By its very nature, the sea eannot be the property of any State WHAT IS THE PRINCIPLE OF “THE FREEDOM OF THE SEAS"? It means that no part ofthe sea as such can be subjected to the sovereignty of any State. It cannot therefore be incorporated into the territory of any State through occupation. MEANING OF THIS STATEMENT: “THE OPEN SEAS IS NOT PROPERTY OF ANY STATE” ‘This means that “itis the common highway of all, appropriated to the use of all; and no one can arrogate to himself a superior or exclusive prerogative unquestionable right of pursuing her own lawful business without interruption. And whatever may be that business, she is bound to pursue it in such a manner as not to Ej CHAPTER VIL a NATIONAL TERRITORY violate others under the Latin maxim, SIC UTERE JURE TUO UT ALIENUM NON LAEDAS. (Paras, quoting Justice Story) In other words, they are open and available to the use of all States for a variety of purposes (i.e, navigation, flight over them, laying submarine cables and papers, fishing, research, mining, or in pursuing any lawful business). Under Article 88 of the UN Conference on the Law ofthe Sea, the high seas shall be reserved for ‘peaceful purposes. IS THIS RULE ABSOLUTE? No. This may be regulated by a treaty. FREEDOM OF NAVIGATION Itrefers to the right to sail ships on the high seas, subject only to international law and the laws of the flag state. CONTIGUOUS ZONE It is the zone extending up to 12 nautical miles from the territorial sea. Although it is not technically a part of the territory coastal State may exercise limited jurisdiction over zone as a preventive measure to insure that customs ion, and sanitary laws are properly and effectively enforced. EXCLUSIVE ECONOMIC ZONE Itis the zone which extends up to 200 miles from the low water mark or the baselines as the case may be. ‘THE AREA BEYOND THE TERRITORIAL SEAS NOT PART OF THE ‘TERRITORY OF A STATE. DOES THIS MEAN THAT THE COASTAL ‘STATE HAS ABSOLUTELY NO RIGHTS OVER THE SAID AREA? ‘While itis true that the said area is not owned by any State, it does not mean that other States have absolutely no rights whatsoever to the use of the same. They may enjoy the following rights: 1. The other States may enjoy the right of innocent passage through the said area on two conditions: (1) That the passage is “innocent” which means that there is no alterior motive for the passage, and all4 PRINCIPLES, COMMENTS AND CASES IN Ww is merely a passing through; with no loading or unloading of any person or goods. 2 The coastal State may exercise sovereign rights over economic resources of the sea, seabed, subsoil. 3, Other States shall have freedom of na ‘ight, to lay submarine cables and prope lave uses. ‘An example of the Philippine exclusive economic zone is the SCARBOROUGH SHOAL, which is situated about 135 kilometers ‘from Iba, Zambales. ‘CONTINENTAL SHELF It is the sea-bed and the subsoil of the submarine areas that sea is measured where the outer edge of the continental margin does not extend up to that distance. CAN THE COASTAL STATE ENJOY THE RIGHT OF EXPLOITATION OF OIL DEPOSIT’S AND OTHER RESOURCES IN THE CONTINEN- TAL SHELF? Yes. TO HAVE A CLEARER UNDERSTANDING OF JURISDICTION OF ‘THE NAVIGABLE WATERS, TAKE NOTE OF THE FOLLOWING: 1. Internal waters ~_ Together, they comprise what is gene- Territorial sea ly known as the territorial waters ry right of innocent passage. (Article II of the Convention of the Law of the Sea) f cuarren vit *” NATIONAL TERRITORY Can ship or ships enjoy the right of innocent passage on the internal waters? Foreign vessels have no right of innocent passage through the internal waters. 2. High Seas ‘They are international waters. crOpen Seas > THE WORD “ARCHIPELAGO" IN ARTICLE! It suppotts and strengthens the concept that the Philippines is chipelago which, as said earlier, is considered as one integrated archipelago, regardless of their breath and dimensions, form part of the internal waters ofthe Philippines.” WHAT IS THE POSITION OF THE PHILIPPINE GOVERNMENT IN RELATION TO THE ARCHIPELAGO DOCTRINE? ‘The three-mile limit, and even the 12-mile limit, does not protect the interest of the Philippines. REASONS: 1, It will result to the dismemberment of our archipelago, the Sibuyan Sea separating from the Visayas, and the Mindanao strait and Sulu isolating Palawan from the rest of the archipelago. 2. The said waters would cease to be Philippine waters. ‘They would become international waters or high seas, and fishing from all nations can enter to get the fish and other living of the sea which nature and Divine Providence intended for the Filipinos. 3. Warships of even unfriendly nations could enter these waters and stay there with perfect legal right to do so. 4, Likewise, we would lose a large part of our territory or both sides of the archipelago, towards the China Sea and the Pacific Ocean. ‘This is the position ofthe Phili e Government during the In- ‘Sea held in Geneva in 1958. statement in Geneviin PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW VOLUME ‘x x x To suggest that each inland has ita own breadth ofthe very heart of the country may be such small, areas of no more than 5 to 10 or 15 square miles. And yet, on account of this, on the pretext of going to those pockets ofhigh seas, any vessel may intrude into the middle of our country, between, for example, the islands of Bohol and Camiguin which from shore to shore are separated by no ‘more than 29 miles.” THE ARCHIPELAGO DOCTRINE AND THE EXCLUSIVE ZONE RIGHTS WAS FURTHER STRENGTHENED AND ARTICULATED IN ‘THE UNCLOS. ‘This is shown by the express reservation of Former Senator and Vice President Arturo M. Tolentino, as stated earlier, thus: 1, The final stand of the Philippine Government when it signed the UNCLOS was based on and controlled by the national territory clause, as clearly provided in the 1987 Constitution and even in our previous Constitutions. 1 to attain harmony, or 9t be fully realized unless in our present Constitution is ‘The wording of the present Constitution (Article I, 1987 Constitution, first sentence) is the same as Article I of the 1973 and connecting the islands of the archipelago, regardless of their breath and dimensions, form part of the internal waters of the Philippines.” Ee | CHAPTER VIL 101 NATIONAL TERRITORY is basis, it means that sovereignty and jurisdiction ised over the territorial sea, the same principle and application of sovereignty that was observed when the 1973 and 1987 Constitutions was drafted and ratified. AT AGLANCE BASELINES LAW (R.A. No. 9522) 1. NEWCASE. IMPORTANT. (a) KIG (Kalayaan Island | Are not included in the Group) islands enclosed by the (&) Bajo de Masinloe, also | Philippine Archipelagic known as Scarborough, - Shoal INSTEAD, they are treated as “Regime of Islands” under the Republic of the Praie 2. If they are treated as \ Our basis is Art. [ of the 1987 Constitution which states that our national territory includes “all other territories over which the Philippines has sovereignty Spratley Islands and the | and jurisdiction.” Scarborough Shoal)? 3. Is the use of the framework of Regime of Islands in RA. No. 9522 to determine the maritime zones of the KIG and the Scarborough Shoal inconsistent with the Philippine claim of sovereignty over these areas? No. REASONS: (1) The decision of Congress to classify KIG and the Scarborough Shoal as “Regime of Islands” under the RP is consistent with Art, 121 of the UNCLOS III. (2) Itmanifests the Philippine State's responsible observance of ts Pacta Sunt Servanda obligation under UNCLOS III. (8) Under Art. 121, “any naturally formed area of land, surrounded by water, which is above water at high tide,”4 PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW ‘VOLUME like the KIG, qualifies under the category of “ of islands” whose lands general oes the Baselines Law abandon the Philippine claim over eeper ‘No. 6446? SHEL the Pilippnos han enyulrod dominion and wverlgny. (See. 2, R.A. No, 556) CHAPTER VIII DECLARATION OF PRINCIPLES AND STATE POLICIES PART I-Six Principles SIX PRINCIPLES MENTIONED IN SECTIONS 1 TO 6, ARTICLE II, 41987 CONSTITUTION 1, §~overeignty resides in the people and all government authority emanates from them. 2, R— enunciation of war as an instrument of national policy 3, C~ivilian authority is, at all times, supreme over the ry. 4, Prime duty of the Government is to serve and protect the people. 5. P—romotidn of general welfare and maintenance of peace and order. 6. S~eparation of church and State. SECTION 1- PRINCIPLE OF REPUBLICANISM (Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.) MEANING OF A REPUBLICAN GOVERNMENT ‘A republican government is a government which is run by the people through their chosen representatives who, in turn, are accountable to the sovereign will of the people. They derive their mandate from the people who elect them for a period or a term that is fixed by law. They cannot, strictly speaking, go against the specific authority and sovereign will of the people for they are precisely the 10310 PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW VOLUME souree of ll government authority and are merely the truste CHARACTERISTICS OF A REPUBLICAN GOVERNMENT (a) The people choose their representatives and public officials for a period fixed by law. (b) Said public officials are entrusted with the duty to serve the people who choose them, (©) The purpose ofa republican government is to promote the ‘common welfare of the people according to the will of the people. (@) This will is determined by the rule of the majority. (©) Under a republican system, no person is above the law, which means that it applies to everyone regardless of status in life, creed, and color of his skin. 7 government is a government and religious persuasion (The principle of separation of powers and the system of checks and balances is observed. (g) The legislature cannot pass irrepealable laws, (ONE OF THE CHARACTERISTICS OF A REPUBLICAN GOVERN- MENT IS THE OBSERVANCE OF THE DOCTRINE OF SEPARATION (OF POWERS EXPLANATION OF THE DOCTRINE OF SEPARATION OF POWERS Ik operates to maintain the legislative powers to the department, executive powers to the executive department, and those which are judicial in character to the judiciary. Through this allocation of powers, the person entrusted with power in any of the departments of government shall not be permitted to encroach upon the power confided to the others, but that cach shall, by the law ofits creation, be limited to the exercise of the powers appropriate to its own department and no other. There must be independence and equality of the several departments. The completeness of their ive CHAPTER Vit 105 DECLARATION OF PRINCIPLES ‘AND STATE POLICIES in every other department. 0, 25 L. ed. 377, 386; Abueve v. Wood, 45 Phil. 612) In effect, therefore, there is no absolute separation of the three branches of government. EACH DEPARTMENT IS GIVEN CERTAIN POWERS BY WHICH EACH MAY RESTRAIN THE OTHERS FROM EXCEEDING THEIR CONSTITUTIONAL AUTHORITY. BASIS OF THE DOCTRINE OF SEPARATION OF POWERS: ‘The basis of the doctrine is the Constitution itself which allocates powers to each of the said departments of government precisely on account of the principle that “the Philippines is a democratic and republican State.” ‘THE MAJOR POWERS OF OUR GOVERNMENT ‘The major powers of the government are distributed by our Constitution to the three major departments ~ (1) The Executive Department; and (3) The Judicial 1987 Constitution, PRINCIPLES THAT ARE RELATED TO THE DOCTRINE OF SEPARATION OF POWERS ‘They are: (1) The principle of checks and balances; and (2) The principle of blending of powers. 1. CHECKS AND BALANCES Under the system of checks and balances, one department is iven certain powers by which it may definitely restrain the others i It may object or resist anytos. PRINCIPLES, COMMENTS AND CASES IN CONSTITUTIONAL LAW. VOLUME encroachment upon its authority, or it may question, if necessa Fe > itch sbeninhy init SEs Me Seen of Example No. 1: The legislature enact have to be presented to the executive depa ‘The latter may veto or disapprove the acts ofthe judgment they are not in conformity with the Constitution, orifthey will cause hardship to the people. Example No. 2: The courts, on the other hand, are authorized to determine, in actions brought to it for decision, the validity ofthe said legislative measures or exceutive acts. Example No. 3: The executive department, through the pardoning power, may also modify or set aside the judgment of the Jegislature may amend or revoke decisions judgment the interpretation given to a law jarmony with the general policy of the State. It may do this by enacting a new law or by amending the old law, ‘THEREBY ATTAINING AN INTERPRETATION ‘THAT WILL WIPE OUT THE DECISIONS OF THE JUDICIAL DEPARTMENT. Example No. 5: The legislature also checks executive action when it confirms or refuses to confirm presidential appointments. the judicial arm of the government has no ‘only called upon to interfere and to exercise its ction is brought to it for decision, and only upon reaching this stage when the courts should apply, among others, these basic rales, to wit: 1. When the law is clear, the court's duty is to apply it, not to interpret it iat aad puree fin ngatre fat ent a intent and purpose of purpose can be discovered within the law, itis the duty of the court to carry out that intention. If that intent and purpose cannot be found within the law, the court should resort to extrinsic aids. 8, When all other rules of statutory construction fail, itis, sumed that the law-making body intended right and | justice to prevail. CHAPTER VII. 107 DECLARATION OF PRINCIPLES ‘AND STATE POLICIES In Example No. 3, the exocutive department is not in any way interpreting or constructing the law in its favor. It isa plain exercise of pardoning power which is expressly granted by the Constitution to the President, In Example No. 4, the legislature is not interpreting or constructing the law but attains the interpretation it desires by ‘enacting a new law or by amending the old law. Example No. 5 merely shows the counter-check measure that the legislature can take when it disagrees with the President on matters of appointment. 2. BLENDING OF POWERS In actual practice, blending of powers is actually a sharing of powers of the different departments of government. whereby one department helps and coordinates with the other in the exercise of a particular power, funetion or responsibility. It is in the process of sharing and collaborating with each other that one department not only helps but also checks the other if for any valid reason itis deemed necessary for the public good. ‘The following are actual examples: 1. The President and Congress help one another in the ‘making oflaws. Congress enacts the bill and the President approves the same. (Section 27, Article VI) "Section 27(1). Bvery bill passed by the reconsider it. If after such reconsideration, two- thirds ofall the Members of such House shall agree to pass the bil, it shall be sent, together of each House shall be determined by yeas or nays, and the names of the Members voting for ‘or against shall be entered in its Journal. The18 PRINCIPLES, CONMENTS AND CASES IN ‘CONSTITUTIONAL LAW. ‘VOLUME I local application, and exclusively in the 5, but the ‘propose or concur with amendmer 3, The President enters into a treaty with fo and the Senate ratifies the same. (See Section 21, Article vm) “Section 21, No treaty or international ‘Members of the Senate.” 4. The Supreme Court may declare a treaty, international or executive agreement, o law, as unconstitutional, and it has also the power to declare invalid any act done by the other departments of government. (See Section 4, Paragraph 2, Article VII) “Section 4(2). All cases required to be heard en bane, including those cuapren vit 100 DECLARATION OF PRINCIPLES ‘AND STATE POLICIES involving the constitutionality, application, other regulations, shall be decided with the concurrence of a majority of the Members who ‘actually took part in the deliberations on the issues in the case and voted thereon.” Q- IF IT IS TRUE THAT THE POWERS OF OUR GOV- ERNMENT ARE ESTABLISHED, LIMITED AND DE- FINED BY OUR CONSTITUTION AND DISTRIBUTED ACCORDINGLY TO THE VARIOUS ORGANS OF OUR GOVERNMENT THAT THEY MAY BE USED FOR THE BENEFIT OF THE BODY POLITIC, WHAT ACCOUNTS FOR THEIR CONFLICT IN THE EXERCISE OF CER- TAIN POWERS WHICH THEY CLAIM TO BE WITHIN ‘THEIR DOMAIN OR JURISDICTION? When the department concerned honestly believes that what it seeks to do or perform is lawful and justiciable considering the facts of each casein their entirety, there will most contzuernynot necessarily to prove that one departments superior involved is not, ole a review. within the realm of judicial DISTINGUISH POLITICAL QUESTION FROM JUSTICIABLE QUESTION POLITICAL QUESTION ~ is a question of policy. It refers to those questions which under the Constitution, are to be decided full discretionary authority has been delegated to the legislative or executive branch of the government. (Tafiada v. Cuenco, 100 Phil. 1101)no PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW ‘VOLUME | Elections, 73 SCRA 333) heels of the Court, President in propo constitutional aut power of the co assumed was valid or not.” JUSTICIABLE QUESTION - Where the vortex of the Examples: litical questions are neatly associated with to perform such act oF -mbly. Whether the amending process that power to propose amendments is, POLITICAL QUESTIONS JUSTICIABLE QUESTIONS L 1. The authority of the ‘The calling of “Snap” presi- GR. No. 72916, December 20, 1986) ‘The calling of referendum is within the exclusive discre- tion of President. Ferdinand E, Marcos and itis therefore De la tions, 82 SCRA 30) to punish and detain ness for contempt is ‘The determination of whether for not an appointee has the preseribed qualifications is a Justicinble question. 2 The determination ofthe Pres- ‘dent's authority to propose amendments and the regular- ity of the procedure adopted for submission of proposals to the people is a justciable question. The determination of whether or not a constitutional provi- sion has been followed or not i ajustiiable question. ‘or not a suspension for disor- ‘erly behavior is eupported ‘CHAPTER VII m DECLARATION OF PRINCIPLES AND STATE POLICIES by the roquired 2/8 votes is a Justiciable question. 5. ‘The determination of whether Balogias, 97 Pht. 358.) cable question. 6. ‘The determination of constitu- tionality or legality of an act. HOW ABOUT THE ISSUE OF WHETHER OR NOT THE COUNTRY ‘SHOULD HONOR ITS INTERNATIONAL DEBT, IS THIS APOLITICAL, QUESTION OR A JUSTICIABLE QUESTION? Itis a political question. The Supreme Court said: “xxx As to whether or not the country should honor its intemational debt, more specifically the enormous sthad been incurred by the past administration arstobe the ultimate objective ofthe petition, is Is this a political question or a A policy issue is thin the domain of the political breaches of government and the people themselves. It was ruled that jf Taw runs counter to the government polices, itis for the Executive law is and what the law shall be. Under our system ofgovernment, policy issues are within the domain of the politic ‘branches of government and the neople themselves as the repository of all state power. (Buno v. Philippine Amusement and Gaming Corporation [PAGCOR], G.R. No. 91649, May 14, 1991) ‘THE PRINCIPLE OF NON-DELEGATION OF POWERS. ‘The principle is based on the Latin Maxim Ss DELEGATA NON DELEGART POTEST: he Vera ‘meaninga2 PRINCIPLES, COMMENTS AND CASES IN CONSTITUTIONAL LAW VOLUME! of which is PO! CANNOT ER, DELEGATED, The classic statement of the rule is that of Locke, thus: “The legislative must not nor can it transfer the power of making laws to anybody else or place it anywhere except where the people have, (Cited in People v. Vera, 65 Phil. 56) inciple that the delegate to precisely because trust, is reposed on him and if he delegates further to another the power delegated to him, that third person does not have the trust originally given to him. Moreover, the power delegated constitutes not only a Tight but also a duty to be performed by the delegate through the use of his own judgment and not through the judgment of another, REASON FOR THE SAID PRINCIPLE. ‘The growing demands and complexities of public service arising from the many problems of the people in the four corners of the country, could no longer be efficiently and effectively handled by the three principal branches of government without the assistance wus and offices, local fovernments, and other investigation as an aid to legislation, and even projects, does not have the monopoly of time, attention, and resources to be able to attend to minute detail the rules of administrative bodies and local governments. ‘Thesamethingis true with respect to the executive department, ‘The President, with his hectic schedule from day to day, has to delegate some of his powers and functions to his cabinet secretaries and to other government bureaus and offices. This is both a matter of necessity and expediency depending on the circumstances of each case. Necessity, because the President thinks that the subordinate concerned has the expertise and has more time and attention that he can devote to accomplish the mission so assigned to him. Expediency, because the President thinks that through delegation, the problem on hand can be acted upon immediately and effectively. On the other hand, only the Supreme Court and no other has. the power to render final judgment on a case referred or elevated to ‘and conclusive after the expiration of the reglementary period. CHAPTER ViIt 43 DECLARATION OF PRINCIPLES ‘AND STATE POLICIES. CAN LEGISLATIVE POWERS BE DELEGATED? As a rule, legislative powers cannot be delegated. However, legislative po ay be delegated in the following cases: Coat) 1. When authorized by the Constitution such as in the following cases: a. The Congress may by law grant emergency powers to the President. (Section 23/2), Article VI) b. Congress may by law grant tariff powers to the President. (Section 28(2], Article VI) 2. Legislative powers may be delegated to local governments: ‘a. Police power has been expressly delegated by the legislature to the local law-making bodies; b, Eminent Domain. 3. Legislative powers may be delegated to the people at large: a. Beferendum — a method of submitting an important legislative measure to a direct vote of the whole people; b. Elehiscite - a devise to obtain a direct popular vote ‘on a matter of political importance. 4. Logislative powers may be delegated to administrative bodies (eg, POEA, LTFRB, CAB, OWWA, BOI, BMI, ete). ‘TEST TO DETERMINE WHETHER A GIVEN POWER HAS BEEN VALIDLY EXERCISED BY A PARTICULAR DEPARTMENT FIRST TEST - The first test is to determine whether or not the power in question, regardless of its nature, is granted by the Constitution to the department which seeks to exercise such power. If it is granted by the Constitution, the exercise of the power is sustained. SECOND TEST - If the power sought to be exercised is not expressly conferred by the Constitution, can the power sought to be exercised be reasonably inferred from, ors it necessary tothe proper exercise of the express power granted to the department seeking to exercise the said power? If itis, the oxercise of the said powerme PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW VOLUME may be justified under the doctrine of implication which means that even in the absence of an express conferment, the exercise of a i -asonably inferred from the express it may be necessary to the proper inted to the department seeking to from the express power of legisla is now subject to the following re 21 Thelegislative inquiry must be in aid of legislation; 2.2 The conduct of the investigation must be strietly in accordance with the rules of procedure that must have been published in advance for the information and protection of the witnesses; 23. The rights of persons appearing in or affected by respected. (Section 21, Article sought to be exercised is not expressly or impliedly, can exercise of said power may be sustain FOURTH TEST ~ Assuming that the power or the act sought tobe performed expressly or impliedly granted by the Constitution, or that it is justified as inherent, the fourth test is whether or not the act or power in question has been performed in accordance with the rules laid down by the Constitution. A good example is the compliance required by Section 21, Article VI of the 1987 Constitution, which provides that the power to conduct legislative CHAPTER VII 15 DECLARATION OF PRINCIPLES AND STATE POLICIES investigation, although implied from the power of legislation, is now subject to the restraints mentioned earlier. ‘The other example is when the President extends an appointment to a person who does not possess the prescribed qualifications, the courts may exercise its power to intervene. ‘A law was passed by Congress giving the President standby authority to increase the rate of VAT from 10% to 12%, Is this, an undue delegation of legislative power? sgislative power but merely a ‘upon which enforcement and inder the law is contingent. RULE OF THE MAJORITY Basically, the rule of the majority is number of whether referring to the el Philip- ‘Fi wie cinta thelr represnataties, or toa number of people in’ ‘community or organization, who choose their officers, In the choice, however, of the President, Vico-President, Senators, Congressmen, j happened in the case of former President Fi cone Ramos, who received the highest number of votes over other presi- is a mere plurality because the votes were divided among the many presidential contenders. DIFFERENT INTERPRETATIONS OF WHAT CONSTITUTES A MAJORITY ‘They are the following: 1. PROCLAMATION OF MARTIAL LAW OR may revoke such proclamation or suspension, which revocation shall not be set aside by the President x xx"|. CONSTITUTIONALITY OF A TREATY, INTER- A MAJORITY OF ONE. A dissenting vote of one PRINCIPLES, CONMENTS AND CASES IN CONSTITUTIONAL LAW VOLUMET its members, suspend or expel a ‘member x x x.” This refers to two-thirds ofall the mem- bers ofeach House. NATIONAL OR EXECUTIVE AGREEMENT OR | LAW. (Section 4{2], Article VIII, 1987 Constitution) beheard by the Supreme Courten bane, which under the Rules of Court are requ ‘en bane, including those involving the constitutionality, application, or operation of presidential decrees, procla- mations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a rajority of the Members who actually took part in the deliberations on the issues in the ease and voted thereon.” I ta decision of the as a unanimous Sandiganbayan Justice will ‘two other members of the di at vote is required for such decision. In that sense, the ‘SECTION 4 PROVIDES THAT “THE PHILIPPINES IS A DEMOCRATIC AND REPUBLICAN STATE. WHY IS THE WORD “DEMOCRATIC” ‘ADDED TO THE WORD “REPUBLICAN”? ‘The essence ofa republican state is indirect rule (where there is a government which is run by the people through their chosen in turn, are accountable to the sovereign will ‘our present Constitution (Section 32, Article VI, ile XVID) provides for some features of pure and direct democracy such as “initiative and referendum.” CONSTITUTIONAL AUTHORITARIANISM ‘This was asked in the bar examinations of 1974. Through constitutional authoritarianism, President Ferdinand Marcos assumed extraordinary powers including legislative, judicial, and ‘even constituent powers. hy the Presiden iasued presidential decrees ictions. When the Batasang Pambansa was ive power is principally vested in this body ident, under and by virtue of wi doctrine of separation of powers are restored, with each department being committed to do its utmost share in bringing about a more democratic and efficient system of government that is responsive to the needs of the people. ment me aleus PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW VOLUME IS CONSTITUTIONAL AUTHORITARIANISM COMPATIBLE WITH A. REPUBLICAN STATE? Strictly speaking, submitted that itis not compatible with It is public knowledge that the deposed president had no legit and direct mandate of the Filipino people during the marti regime and this is, in fact, the underlying reason why there was a People’s Revolt on February 22-25, 1986, which resulted to his exile in Hawaii RENUNCIATION OF WAR AS AN INSTRUMENT OF NATIONAL POLICY (Section 2. The Philippines renounces tear as an instrument of national policy, adopts the generally aecepted principles of intern the land and adheres to the freedom, cooperation, and ai PRINCIPLES DECLARED IN SECTION 2 . 1. The Philippines renounces war as an instrument of national policy. 2. ‘The Philippines adopts the generally accepted principles of international law as part of the law of the land. es adheres to the policy of peat freedom, cooperation and amity Q- One day, the bomber planes of Red China attacked ilin- dango and destroyed the war vessels deployed by the Philippine Navy in the area, particularly in the areas adjacent or near the Spratly Islands. Congress declared the existence of a state of war, and thereafter, our sol- diers fought the Red Chinese sol whole of Mindanao. Is this not a ffect that we renounce war as an instrument of policy? A— No, We are merely defending our territory, hen defensive war. What we renounce is an aggressive defensive war. CHAPTER vinL ns DECLARATION OF PRINCIPLES ‘AND STATE POLICIES ines is the protector of the people cure the sovereignty of the State of the national territory.) TWO (2) PRINCIPLES EXPRESSED IN SECTION 3 EXPLAIN SAID PRINCIPLES: First Principle ~ This doctrine teaches the supremacy. othe soversign Filipino people in line with the principle that emanates from them,” and this supremacy is ‘at all times,” Second Principle ~ the Presifont-of te Republic-of the Philipines, or high sovramnt fil of he and ones rmanesf their duties.) UG Senter ie Pipes a funder Section ist their abuses. In ‘This duty under Section 3 is specially addressed to the Armed Forces of the Philippines. The duty under Section 4 refers to the prime duty of the government to serve and protect the people. THE PRIME DUTY OF THE GOVERNMENT IS TO SERVE AND PROTECT THE PEOPLE (Section 4. The prime, duty ofthe Government is to serve and protect the peoplg. The Government may call upon the people to defend the State and, inder service.)‘THE PRIME DUTY OF THE GOVE ime duty of the government is: (1) to serve the people; ‘and (2) to protect the people. How can the government comply with this duty? ‘There are three ways by which the government may be able to ‘comply with its prime duty, thus: 1 Fay ara Pople ta dene * Breas eentence, Sion 4 government may requi Il citizens, under conditions” by law, to render personal military or civil” ‘service. (Second sentence, Section 4) 3. government “may d niga opel ey Gato ‘s 4, Article XVI, apparently to support the provisions of Section 4, as aforementioned) Q- CAN A PERSON REFUSE TO REGISTER FOR MILI- 3. The Gay imaginal to require military service ' isa consequence ofits duty to defend the State and to? CHAPTER vit 121 DECLARATION OF PRINCIPLES {AND STATE POLICIES. protect life, liberty and property of the citizens,/In the pated States, a more radical view has been expressed Q- IS COMPULSORY MILITARY SERVICE CONSIDERED A DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW? ‘A ~ The Supreme Court of the United States ruled i Q- CAN A PERSON HIRE THE SERVICES OF ANOTHER TO TAKE HIS PLACE IN THE DEFENSE OF THE STATE? ‘a person to non-combat religion or conviction to engage sn enemy in the course of war. PROMOTION OF GENERAL WELFARE AND MAINTENANCE, OF PEACE AND ORDER (Section 5. The maintenance ofwe PRINCIPLES, COMMENTS AND CASES IN WHAT ARE ESSENTIAL FOR THE ENJOYMENT PEOPLE OF THE BLESSINGS OF DEMOCRAC’ ‘CONSTITUTIONAL LAW ‘VOLUME T ‘They are the following: 1. ‘The maintenance of peace and order 2. "The protection of life, liberty and property; aid 3, ‘The promotion of the general welfare!) DOCTRINE OF SEPARATION OF CHURCH AND STATE, His Holiness Pope Paul VI, in His Pastoral Constitution on the Church in the Modern World, said, thus: ‘boundaries between the two institutions thereby avoiding, as much > personal and social voeations of the same men. The more that both foster sounder cooperation between themselves ns are not limited only ing history, he preserves Church, for her part, the reign of justice and charity without nation and between nations. By preaching the truths of the gospel; and bringing to bear in all fields of human endeavor the light of her doctrine and of @ Christian spects and fosters the political freedom and ‘The separation) therefore, merely serves to delineate the’ as possible, any encroachment by one against the other. Each is, | ind | god prorogaives, bat sill govern Finciple of cooperation to atta | the common good After all, hth insitutions have common | denominators, that of promoting peace and order, the and the promotion of blessing ‘AND STATE, Justice Isagani A. Cruz had this f the rule is summed up in the familiar saying, “Strong fences make ‘good neighbors.”"The idea is to delineate the boundaries between the of a misunderstanding of the limits oftheir respective iadictions. The demarcation line calls on the entities to ‘unto Caesar the things that are Caesar's and unto \e State that is wise barred ftom meddling in purely secular matters, And the reason is plain. A union of Church and State, as aptly to degrade religion." Tt is also likely to result in a conspirac of its composite strength, against t ANEW EXPLANATION ABOUT THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE ‘While the author is about to finish the revision of this reviewer, the ate of ames Imbong, ee», Hon. Paquito N Oshoo, Jr as decided by the Supreme Court. The principal issue in Law), but there were several issues that were involved and subject of detailed discussion by the Supreme Court. One of the said iss inciple of separation of Church Section 6 of the 1987 Constitution. ‘The Court had thi “At the out a heterogeneous ethnic, cultural and in practice, has allowed these various religious, cultural, social and racial groups to thrive in a single society together. It has embraced minority groups and is tolerant towards all - the religious people of different sects and the non-believers. xx x" “xxx The Framers, however, felt the need to put up a strong barrier so that the state would not encroach into the affairs of the Church, and vice-versa. The principle ofPRINCIPLES, COMMENTS AND CASES IN CHAPTER Vit 125 ‘CONSTITUTIONAL LAW DECLARATION OF PRINCIPLES. VOLUME ‘AND STATE POLICIES, Begaraton of Church and Sata as, then enabrined in At any rate, population contro! may not be beneficial : for the country in the long run. The European and Asian countries, which embarked on such a program generation -young workers is dwindling with adverse ‘economy. These young workers represent jcant human capital which could have helped them invigorate, innovate and fuel their economy. These countries are now trying to reverse their programs, but they are still struggling. For one, Singapore, even with incentives, is failing. Ani untry, the economy is being propped up by remittances from our Overseas Filipino Workers; this is because ‘an ample supply of young able~ bbe weighed down by an ageing population and the fewer ‘younger generation would not be able to support them? ‘This would be the situation when our total fertility rate would go down below the replacement level of two (2) children per woman. Indeed, at the present, the country has population problem, but the State should not use coercive measures (like.the penal ‘Thus the “Chireh” moane tho religious congregation? meena RH Law against eonscientious objectors) to solve In his concluding statement, Justice Jose Catral Mendoza, ss, the policy of the Court is non-interferekee in the RA, etyal oe PARTI Pees! 22 STATE POLICIES IN SECTIONS 7 TO 28, 10) ‘human rights and dignity of every person(See. 11) shana country’s wealth remains in the hands of the very few. 8.18 ‘PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW VOLUME + Homotion of right to health of the peopla(Sec. 15) 10, Prtetion ofthe right toa balanced and healthful esl tSee. ® 11, Prlity to education, science and technology, arts, culture and} (See. 17) 12 Labor a primary social economic fore (See! 18) 12. Galfelinc and independent national econo (Sc 19) « 15, Promotion of comprehensive! riral development and agrarian}| ‘Sec. 21) 16 Booman te eho nies era Site m. = or sectoral?) i 3) 18, ‘of communication and information in nation-building] See20) 19. Sam governments (Sec. 25) uy for public servic (See. 26) isaptyin pene oo 2) 22 Fall publi dseorure ofall state transactions involving publé interest (See. 28) INDEPENDENT FOREIGN POLICY (Section 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.) POLICY OF FREEDOM FROM NUCLEAR WEAPONS (Section 8. The Philippines, consistent with the national interest, adopts and pursues policy of freedom from nuclear weapons in its territory) ‘TWO IMPORTANT POLICIES MENTIONED IN SECTIONS 7 AND 8 1. Independent foreign policy 2. Policy of freedom from nuclear weapons in its territory CHAPTER VIII ar DECLARATION OF PRINCIPLES ‘AND STATE POLICIES IN PURSUING THE SAID POLICIES, WHAT ARE THE PARAMOUNT CONSIDERATIONS THAT SHALL GUIDE US? 1, National sovereignty” 2, Territorial integrity”? 3. National interest | 4. Right to selfdetermination) PROMOTION OF A JUST AND DYNAMIC SOCIAL ORDER. (Section 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all) SOCIAL JUSTICE (Section 10. The State shall promote social Justice in all phases of national development.) WHY SHOULD WE PROMOTE A JUST AND DYNAMIC SOCIAL ORDER Itis the foundation of a strong and prosperous nation: Poverty ‘and injustice are the root causes of public discontent which gives ‘rise to chaos and disorder, and later, to a revolution: SOCIAL JusTICE nor anaichy” but the juprema lex.” (Calalang v. Williams, 701 PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW VOLUME! EXPANDED MEANING OF SOCIAL JUSTICE UNDER THE 1987 ‘CONSTITUTION Social justice under the 1987 Co concept of social justice unde in fact, broader than the defi justice under the 1987 Cons is broader than the HOW CAN SOCIAL JUSTICE BE PROMOTED? 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right: human dignity, reduce social, economic, and political inequalities, ‘and remove cultural inequalities by equitably diffusing wealth and political power for the common good. 2 ‘The State shall regulate the acquisition, ownership, use | and disposition of property and its increments. 3. The promotion of social justice shall include the com. ritment to create economic opportunities based on freedom of initiative and self-reliance. Q- IN NATIONAL SERVICE CORPORATION V. NLRC, ET AL, G.R. NO, 69870, NOVEMBER 29, 1988, CITING CULT OFLEGALISMBYDR. JORGE BOCOBO, THESUPREME COURT SAID THAT THE PRINCIPLE OF SOCIAL JUSTICE WASNOT INCLUDED INTHE FUNDAMENTAL LAW AS A MERE POPULAR GESTURE. IT WAS MEANT) TO BE A VITAL, ARTICULATE AND COMPELLING PRINCIPLE OF PUBLIC POLICY. DOES THIS MEAN THAT SOCIAL JUSTICE CHAMPION DIVISION OF PROPERTY OR EQUALITY OF ECONOMIC STATUS? ‘A ~ Social justice does not champion division of property or equality of economic status; what it and the Constitution do guarantee are equality of opportunity, equality of political rights, equality before the law, equality between values given and received, equitable sharing of the social and material goods on the basis, of efforts exerted production. It is a command to devise social measures; but it cannot be used to trample upon the rights of others. v, Rural Progress Administration, G.R. No, L-2089, October 31, 1949) ‘CHAPTER vit. 129 DECLARATION OF PRINCIPLES ‘AND STATE POLICIES. @- IN ONDOY V. IGNACIO, G.R. NO. L-436969, FEBRUARY 28, 1978, IT WAS RULED THAT AS BETWEEN A LABORER, USUALLY POOR AND UNLETTERED, AND THE EMPLOYER, WHO HAS RESOURCES TO SECURE ABLE LEGAL ADVICE, THE LAW HAS REASON TO DEMAND FROM THE LATTER STRICTER COMPLIANCE. IS THIS NOT A VIOLATION OF THE PRINCIPLE ENUNCIATED IN THE AFOREMEN- ‘TIONED CASE? A ~ Social justice in this cas Itis compassionate that those who have Investigation Burea June 29, 1979) Ople, et al., GR No. 1-449678, |S IT ONLY EQUITABLE DIFFUSION OF WEALTH THAT SHOULD BE PROMOTED BY THE PRINCIPLE OF SOCIAL JUSTICE? Under the 1987 Constitution, social justice contemplates’ equitable diffusion not only of wealth but also of political power. » (Section 1, Article XI, 1987 Constitution) IS COMPASSION FOR THE POOR AN IMPERATIVE OF EVERY HUMAN SOCIETY ‘Compassion for the poor is an imperative of every human society but only when the recipient is not a rascal claiming an Social justice cannot be permitted to be the mny more than can equity be an impediment? 22, 1990; Flores v. NLRC, et al, G.R. No. 96969, March 2, 1993) Q- Since five years ago, a growing number of squatters have constructed houses made of light materials in a creek in Barangay Matigas without authority from the government. Last year, the Office of the Mayorn PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW ‘VOLUME I requested them to vacate the area and gave them 60 days within which to remove their houses and to vacate on Human Rights wl and desist order. Th with the said Bayani Fernando, can the CHR declare Chairman Fernando in contempt? A — (The claim of the residents is not valid and meritorious. creek, and said structures pose danger to the heal and lives of the residents. (2) Thecease and desist order is null and void. The CHR has no adjudicative pow , safety FULL RESPECT FOR HUMAN RIGHTS AND DIGNITY OF EVERY PERSON (Section 11. The State values the dignity of ‘very human person and guarantees full respect for human » ‘ights) - What is guaranteed under Section 11? ‘A ~ Full respect for human rights. Q- IF THIS IS GUARANTEED UNDER SECTION 11, WHY IS IT THAT PRISONERS IN MUNTINLUPA AND OTHER PRISON CELLS IN METRO MANILA WHO ARE LESS PRIVILEGED ARE NOT AFFORDED DECENT QUARTERS AND FOOD WHICH IS CONSIDERED AT LEAST ACCEPTABLE TO ORDINARY TASTE IF NOT NECESSARILY CONSIDERED AS PALATABLE DISHES? (CHAPTER VILL 1s DECLARATION OF PRINCIPLES. ‘AND STATE POLICIES ‘A ~ The government is trying its best to improve the quality of life the rearing of the youth for development of moral character shall receive the support of the Government.) THREE RESPONSIBILITIES OF THE STATE IN CONNECTION WITH THE CONSTITUTIONAL GUARANTEE RECOGNIZING THE SANCTITY OF FAMILY LIFE ‘They are the following: 1. It shall protect and strengthen the family as a basic autonomous social institution. 2. It shall equally protect the life of the mother and the life of the unborn from conception. 3. ‘The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the aid and f the government. (Section 12, Article If 1987 ROLE OF PARENTS AND THE GOVERNMENT IN THE REARING OF ‘THE YOUTH FOR CIVIC EFFICIENCY AND THE DEVELOPMENT OF MORAL CHARACTER Parents ~The parents have the natural and primary right and duty in the rearing of the youth for civic efficiency and the development of moral character. (Section 12, Article I)Fa PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW ‘VOLUME T Government ~ The government shall give aid and support to the parents. (Section 12, Article ID What is the aid and support that the government gives? ‘The aid and support that the government gives isnot in terms, ‘ways complaints and criticisms but the benefits we derive are well inplace. FAMILY IC AUTONOMOUS SOC) ‘The principle of autonomy is learned and practiced at home before itis learned in school. It is a basic political unit of our society.” ‘The father, as the head of the family, is the President of the home, and the mother, is the Vice-President who takes over the function of governance in case of death or incapacity of her husband. The children and the household are members ofthe family, who are duty ‘bound to follow the ru , the community to carry out. The government in every community is the agency or instrumentality through which the wishes of the people are made known and implemented. All the governments, taken together, form part of the Republic of the Philippines. VITAL ROLE OF THE YOUTH IN NATION-BUILDING (Section 13. The State recognizes the vital role of the youth in nation-building and shal and encourage their involvement in public and civic affairs.) ARTICLE Il, SECTION 13 OF THE 1987 CONSTITUTION RECOG- NIZES THE VITAL ROLE OF THE YOUTH IN NATION-BUILDING. WHAT, IF ANY, IS THE RESPONSIBILITY OF THE STATE AS FAR AS THIS IS CONCERNED? _The State shall protect and promote their physical, moral, ing, because recognition ROLE OF WOMEN IN NATION-BUILDING (Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.) RATIONALE BEHIND SECTION 14 The role of women in society is a moving force in the improvement not only of our homes but also of our communities, our government and the four comers of our country. Working mayors, governors, congresswomen, senators, ju: prosecutors and cabinet members. We have produced two lady . They have proven their leadership not only in the home the affairs of the community and of our country. All of tributions deserve the recognition, as provided in Section 14, Discrimination against women no longer holds true and can no longer be sustained. PROVISIONS OF THE 1987 CONSTITUTION THAT PROTECT WOMEN (1) Section 12, Sapo ‘sentence, thus: “It shall equally protect the life of the mother and the life of the unborn from conception.” (2) Section 14, Article I> “The State recognizes the role ‘of women in nation building, and shall ensure the fundamental ‘equality before the law of women and men.” (8) ‘Section 14, Article XIII “The State shall protect working jons, taking into account their material functions, and and opportunities that will enhance their welfare” PRINCIPLES, COMMENTS AND CASES IN CONSTITUTIONAL LAW. ‘VOLUME 1 and enable them to realize their full potential in the service of the nation.” PROMOTION OF RIGHT TO HEALTH OF THE PEOPLE (Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them) PROTECTION OF THE RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY (Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.) RESPONSIBILITY OF THE STATE WITH RESPECT TO THE RIGHT OF THE PEOPLE TO A BALANCED AND HEALTHFUL ECOLOGY “Section 16. The State shal to health of the people and ins them.” vrotect and promote the right health consciousness among “Section 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” GROWING CHALLENGE TO THE STATE, PARTICULARLY TO THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES, INSOFAR AS ITS SINCERITY AND EFFECTIVENESS IN THIS FIELD IS CONCERNED ‘The sincerity and effectiveness of the State insofar as this responsibility is concerned is now placed to a serious test on account of recent happenings related to rampant and illegal cutting of trees, compounded by destruction of our watersheds, that have necessarily caused worst floods in years; uncontrolled dumping of garbage and mineral and toxic wastes that have polluted our lakes and rivers; inefficient handling and maintenance of our dams that accounts for unsafe water supply; inefficient management and supervision of traffic and vehicles that aggravates pollution and causes burden and inconvenience to the commuting public; acute lack of government, hospitals and medicines; uncontrolled influx of squatters, beggars, ldren, drug addicts and prohibited drugs; and many others which pose imminent danger to health and ecology. CHAPTER vit 138 DECLARATION OF PRINCIPLES. AND STATE POLICIES, ‘The erecks and rivers in Metro Manila and other urban centers: are now invaded and inhabited not only by squatters and garbage but also by criminal elements and syndicates who are oftentimes tagged or involved in the perpetration of heinous crimes. ‘Their number is getting more numerous as each day passes. Will the government allow this to worsen before it acts decisively? If this continues, the right of the people “to a balanced and healthful ecology” will just be good on paper. It is a right which is violated by the very government that is supposed to protect them. PRIORITY TO EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE AND SPORTS (Section 17. The State shall. give priority toeducation, science and technology,arts, culture ‘and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development) GUARANTEED PRIORITY UNDER SECTION 17 ‘The State shall give priority to education, science and ts, culture, and sports to foster patriotism and accelerate social progress, and promote total human liberation and development. LABOR AS A PRIMARY SOCIALECONOMIC FORCE (Section, 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.) LABOR CONSIDERED AS A PRIMARY SOCIAL ECONOMIC FORCE Labor, consisting of workers, employees, farmers, and all thos involved in any kind of work or production, contribute greatly t social and economic upliftment. tis true that capital provides ther with all the money and materials they need but itis their hand. their skil, time, effort and talent that makes that capital mo productive and helpful to society. SELF-RELIANCE AND INDEPENDENT NATIONAL ECO OMY (Section 19. The State shall develop a self-reliant ai independent national economy effectively controlled by Fi pinos)” PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW VOLUME NCOURAGEMENT OF PRIVATE ENTERPRISE AND ‘he State recognizes the terprise, and provides ‘OMPREHENSIVE RURAL DEVELOPMENT AND AGRAR- AN REFORM (Section 21. The State shall promote compre- ensive rural development and agrarian reform.) ECTION 21, ARTICLE Il OF THE 1987 CONSTITUTION PROVIDES HAT THE ‘STATE RECOGNIZES AND PROMOTES COMPRE- IENSIVE RURAL DEVELOPMENT AND AGRARIAN REFORM. (XPLAIN THE BASIS OF THIS CONSTITUTIONAL PROVISION. nd unrest, and more than 3 more serious consequenc All these can destroy the entire nation. Bursts of anger and atred are not expressed with the might of the words and the pen. thousands and millions starve not because they do not have money ‘buy the food they want but because there is no food, and there is ‘This is the root cause of growing squatter fa .nd urban centers. They left their farms in the hope of finding better ives and opportunities in the cities, only to realize that they are ‘ore exposed to hazards and dangers of city life. They end up often jmos as beggar, streot children, oquatters, ote aggravate social cancer and discontent which result to has, serious grievances and bitter fighting in the streets. When battle and chaos divide our people, lands in the ‘untryside will no longer be used to plant the seeds that will give 1s food. They will serve as burial grounds of those who die for what hey believe, or for not knowing what the battle is all about. i WHAT IS NECESSARY IN ORDER THAT AGRARIAN REFORM WILL SUCCEED Agrarian reform should be coupled with support services, education and information technology, including reformation of our political and social cultures. HOW CAN THIS BE MADE POSSIBLE? ‘The people should be vigilant and active members of the community who will make things happen instead of merely watching from the confines of their homes, classrooms and offices. They should ibandwagons which are propelled by mney and power. They should be able to help in mpetent and honest people who do not mind to bein the minority in exchange for their honest convietions One such conviction is the age-old cry for more rural development, genuine land reform and social justice, the need for cooperatives and the upholding of the principle of stewardship of talent and property. ‘This can be made possible by succeeding to elect legislators ‘who are not beholden to vested interest but only to the dictates of their conscience and to the principle of Salus Populi Est Suprema Lex. ‘All these can only be made possible through an educated and enlightened citizenry. Q- REPUBLIC ACT NO. 6657 PROVIDES THAT PRIVATE AGRICULTURAL LANDS CAN BE TAKEN FROM ‘THEIR OWNERS, SUBJECT TO THE PRESCRIBED RETENTION LIMITS. THE CONSTITUTIONALITY OF THE LAW WAS ASSAILED. IS THE SAID LAW CONSTITUTIONAL? ‘A~ The constitutionality of Republic Act No. 6657 was upheld in Association of Small Landowners v. Secretary of Agrarian dis the surrender of the land fthe land in excess ofthe retention ing to the owner in favor of the farmer beneficiary. This is within the power of the Statess ‘PRINCIPLES, CONMENTS AND CASES IN ‘CONSTITUTIONAL LAW VOLUME 1 totake and regulate private property for which payment of just compensation is provided, Although the deseribed as summat parties are neverthel evidence on the real v DAR's determin any means final and interested party. D/ vedings in Section 16 of CARL are indowners and other interested sedan penal te thea ordinary expropriation where only a specific property is sought to be taken by the State from its owner for a specific and perhaps local purpose. WHAT WE DEAL WITH HERE IS A is contemplated.” Q- THE CONSTITUTIONALITY OF SECTIONS 3(B), 10 AND 11 OF REPUBLIC ACT NO. 6857 WAS ASSAILED IN SO FAR AS THEY INCLUDE LANDS DEVOTED TO ‘CHAPTER Vilt 139 DECLARATION OF PRINCIPLES. ‘AND STATE POLICIES ‘THE RAISING OF LIVESTOCK, SWINE AND POULTRY WITHIN ITS COVERAGE. WHAT WAS THE RULING OF ‘THE SUPREME COURT? ‘A-— While Republic Act No, 6657 itself has been held cons- titutional, the Supreme Court in a subsequent case declared ‘un-constitutional Sections 3(b), 10 and 11 of the s (Cuz Farms v, Secretary of Agrarian Reform, 192 SCRA 0) Q- WHAT HAPPENED AFTER THE UNCONSTITUTION. ALITY OF SECTIONS 3(B), 10 AND 11 WAS DECLARED IN THE SAID CASE? ‘A ~ The Congress enacted Republic Act No. 7881 (1995) amending the said provisions. The amendments adopted the doctrine in Luz Farms case by removing livestock, swine and poultry farms from CARP coverage. Q- SECTION 18 OF THE CARP LAW PROVIDING FOR THE CONTENT AND MANNER OF JUST COMPENSATION WAS ALSO ASSAILED AS VIOLATIVE OF THE CONSTITUTION. WHAT WAS THE RULING OF THE SUPREME COURT ON THIS POINT? ‘A ~ The Supreme Court declared that the content and manner of the just compensation provided for in Section 18 of the CARP. RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES (Section 22. The State recognizes and promotes the rights of. indigenous cultural communities within the framework of national unity and development) WHAT IS THE REASON FOR SECTION 227 There should be national unity and development not only in the cities and urban centers but also in all communities in the rural areas. The indigenous cultural communities are, in fact, thewo PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW ‘VOLUME places that deserve attention of the government, the same being the place where the trivial Filipinos lived since time immemorial. Their sulture isa rich heritage. Their ancestral land should be preserved. ANCESTRAL LANDS OF EACH INDIGENOUS CULTURAL COM- MUNTY For purposes of this Act, an cultural community shall inelude, the actual, continuous and open possession and occupation of the community and its members; provided, that the Torrens System shall be respected. (Section 9, paragraph 2, Republic Act No. 6657) dof each indigenous limited to, lands in RIGHT OF INDIGENOUS CULTURAL COMMUNITIES WITH RESPECT TO THEIR ANCESTRAL LANDS and disputes of al these communities must be recognized and respected. PROVISIONS OF THE 1987 CONSTITUTION THAT PROTECT INDIGENOUS CULTURAL COMMUNITIES (1). Section 5, Article Il, 1987 Constitution “The maintenance of peace and order, the protection of life, iberty and property, and the promotion of the general ‘welfare are essential for the enjoyment by all the people of the blessings of democracy.” (2) Section 5, Article XII, 1987 Constitution “The State subject to the provisions of this Constitution ‘and national development policies and programs, shall protect the rights ofindigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being.” (@) Section 6, Article XIII, 1987 Constitution “The State shall recognize the right of farmers, planning, organization, and management of the program, ‘cuaprer vin mi DECLARATION OF PRINCIPLES ‘AND STATE POLICIES ‘and shall provide support to agriculture through appropriate technology and research, and adequate financial, production, marketing, and support services.” (4) Section 17, Article XIV, 1987 Constitution I recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop tions, and institutions. It shall consider these rights in the formulation of national plans and policies.” ENCOURAGEMENT OF NON-GOVERNMENTAL, COMMU- NITY BASED, OR SECTORAL ORGANIZATIONS (Section 23, The State shall encourage non-governmental, community. based, or sectoral organizations that promote the welfare of the nation.) WHAT IS THE REASON FOR SECTION 237 It serves to create or induce more participation from the said organizations, which, in turn, will help the government in finding out ways and means to improve them and their communities. VITAL ROLE OF COMMUNICATION AND INFORMATION IN NATION-BUILDING (Section 24. The State recognizes the vital role of communication and information in nation-| building) 7 AUTONOMY OF LOCAL GOVERNMENTS (Section 25. The State shall ensure the autonomy of local governments.) EQUAL ACCESS TO OPPORTUNITY FOR PUBLIC SERVICE (Section 26. The State shalt guarantee equal access 10 opportunities for public use, and prohibit political dynasties) 3 may be defined by late.) DOES OUR CONSTITUTION GUARANTEE EQUALITY OF ALL THE CITIZENS OF THE REPUBLIC OF THE PHILIPPINES? inall phases of national development” Beit remembered, however,2quitable sharing of the social and mat che efforts exerted in their production. ‘The State in protecting the laborers should do so with a view to realizing social justice without impairing the rights of others and to giving to each and everyone what under the natural law, the statutes, or contract, is his. the necessity of the interdependence among diverse units of a society ‘and of the protection that should be equally and evenly extended and of has about the greatest good to the greatest number. (Calalang v. Williams, 70 Phil. 726) \WHATIS INTENDED BY THE FRAMERS OF THE CONSTITUTION IN PROVIDING FORA POLICY OF SOCIAL JUSTICE? Social justice contemplates equitable diffusion not only of also of political power. (Section 1, Article XIII, 1987 But the policy of social justice is not intended to countenance ‘wrongdoing simply because it is committed by the underprivileged. Atbest, it may mitigate the penalty but the offense. Compassion for the poor not simply beeause they happen to be poor. This great policy of our Constitution is not meant for the protection of those who have proved they are not worthy for it, ike the workers which have tainted the cause of labor with the blemishes of their own character. (Philippine CHAPTER VIII 3 DECLARATION OF PRINCIPLES ‘AND STATE POLICIES Long Distance Telephone Co. v.NLRC, et al., G.R. No. 80609, August 23, 1988; De Vera, et al., G.R. No. 93212, November 22, 1990; Flores v. NI R. No. 96969, March 2, 1993) HONESTY AND INTEGRITY IN PUBLIC SERVICE (Section 27. The State shall maintain honesty and integrity in the’ Public service and take positive and effective measures ‘against graft and corruption) FULL PUBLIC DISCLOSURE OF ALL STATE TRANSAC- TIONS INVOLVING PUBLIC INTEREST (Section 28, Subject. to reasonable conditions prescribed by lav, the State adopts ‘and implements a policy of fall public disclosure of all its transactions) WHAT ARE THE THREE BASIC PRINCIPLES EMPHASIZED BY ‘SECTIONS 27 AND 28, ARTICLE Il OF THE 1987 CONSTITUTION? 1. Public office is a jer this principle, pet Ee es aoe remember that they were merely entrusted by the people to perform the duties and responsibilities of their offices for a fixed period of time. They were chosen to serve the people, not to cheat them. ‘Their offices are not their own, nor can they be treated as private properties which they ean manage or dispose of at their whim and law should be applied equally without fear or favor. No Republic, not even the President of the Philippines, is 3. Transparency in public service: Because public officials are mere trustees of the people, they should observe ‘as many people say, have looted our government and our countryMw PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW VOLUME pervasively. It can even be said that, if proven tobe true, the public 3 dee} discussed in connection with the topic of pardon, Article VII of the Constitution.} PROVISIONS OF THE 1987 CONSTITUTION THAT PROVIDE ‘A POLICY OF TRANSPARENCY IN MATTERS OF PUBLIC INTEREST? 1, Section 28, Article If, 1987 Constitution “Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of ull public, disclosure of all its transactions involving public interest.” 2, Section 7, Article II, 1987 Constitution “Section 7. The right of the people to information on ‘matters of public concen shall be recognized. Access to financial records, and to documents, and pay oficial acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded tho citizen, subject to such limitations as may be provided by law.” 3. Section 20, Article VI, 1987 Constitution list of amounts paid to and expenses for each Member. 4, Section 17, Article X1, 1987 Constitution “Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required cuaPTen vitt us DECLARATION OF PRINCIPLES ‘AND STATE POLICIES. offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the ‘manner provided by law.” Section 21, Article XII, 1987 Constitution “Section 21. Foreign loans may only be incurred in see keee (OTHER PRINCIPLES AND DOCTRINES: (jot mentioned in Article I, Sections 1 to 6 and Sections 7 to 28) Doctrine of Incorporation in Political Law Doctrine of State Immunity Actof State Doctrine Doctrine of Judicial Supremacy Doctrine of Parens Patriae ‘The principle ofthe Right of Revolution Doctrine of Stare Decisis L EXPLANATION OF EACH PRINCIPLE/DOCTRINE [DOCTRINE OF INCORPORATION IN POLITICALLAW part of its own laws. In consonance with this doctrine, the Philippines is ‘bound by any resolution which is duly approved by the United when the ‘Plpines is a party or a signatory to the saidi PRINCIPLES, COMMENTS AND CASES IN CONSTITUTIONAL LAW. ‘VOLUME agreement or treaty, But ev Philippines is bound by the Fetoded the generally scnptotrincplen of inleratonal law binding upon all States. Q- Can international law become part of the sphere of domestic law? ‘A They can become a part of the sphere of domestic law either by transformation or incorporation. Q— In what way can international law become part of domestic law by incorporation? ‘A~ By express provision of Section 2, Article II of the 1987 Constitution, “generally accepted principles of international law” are part of the law of the land. REASON: They are norms of general or customary .w which are binding on all States. rust be respected. Q- In what way can internat domestic law by transformation’ Jaw become part of A ~ International law may be transformed into a domestic law by and through a local legislation (i.c., Treaties become part of the law of the land through transformation). Q- Are the resolutions of the International Code of Marketing of Breast milk Substitutes (ICMBS) and the World Health Assembly (WHA), considered as treaties? A ~ No. REASON: Because they have not been concurred in by at least two-thirds of all members of the Senate as required by Section 21, Article VII of the 1987 Constitution. ut Q- With respect to the subsequent resolutions of the World Health Assembly (WHA), specifically providing for up to 24 months, and absolutely ‘dvertisements and promotions of breast without the need of a law enacted by the le A-In Pharmaceutical and Health Care Association of the Philippines v. Duque III (535 SCRA 265 (2007), the Supreme Court said: subsequent WHA Resol to implement the ICMBS are merely recommendatory ‘and legally non-binding: Thus, unlike what has been done with the ICMBS whereby the legislature enacted most of the provisions into law which is the Milk Code, the subsequent WHA Resolutions, specifically providing for exclusive breastfeeding from 0 to 6 months, continued breastfeeding up to 24 months, and ld be implemented only pursuant to a law amending by the constitutionally authorized/ PRINCIPLES, COMMENTS AND CASES IN CONSTITUTIONAL LAW VOLUME DOCTRINE OF STATE IMMUNITY ‘The specific provision upon which this doctrine is based is snd in Section 3, Article XVI of the 1987 Constitution, which ovides as follows: “Section 3. The State may not be sued without its the inherent right to exist and to protect 8 from any actor acts which will defeat the the people which it is obligated to serve. ight to protect itself against indiscriminate its attention, time and in with he prvisions (2) At a time when our country and the citizenry are confronted with serious problems’ arising economic depression but also from ramp: Kidnapping, drug-related crimes, massacres, agrarian unrest, ‘many others, the interest of public welfare ime and resources of the State should better be used for more pressing matters instead of indiscriminate suits. ‘Toa greater number of people, this basis is perhaps more understandable than what Justice Holmes said that “there can ‘eno other legal rights against the authority which makes the law on which the right depends.” 5 THE DOCTRINE OF STATE IMMUNITY AVAILABLE TO MEMBER, MIATES IF THEY ARE SOUGHT TO BE SUED IN THE COURT OF ‘HE LOCAL STATE? tis not conducive to harmony and peace in the community of rations if one State can assert jurisdiction over another State. The 2etter view is to uphold the principle of sovereign equality of States under the time-honored principle of “PAR IN PAREM 'MPERIUM NON HABET.” CSTR RE ST ES RS CHAPTER VIL wo DECLARATION OF PRINCIPLES ‘AND STATE POLICIES. CAN THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES. BE SUED? EXPLAIN. ‘This was asked in the 1966 Bar Examinations. ‘As a rule, the government of the Republic of the Philippines cannot be sued without its consent. ‘The consent of the State to be sued may be given expressly or impliedly. Express consent may be manifested either through a general law or special law. When is theré an express consent? ‘There is express consent when a law expressly grants authority to sue the State or any ofits agencies. Another example of express consent is the special law enacted by the Philippine Legislature authorizing an individual to sue the Philippine Government for injuries he had sustained when his motorcycle collided with a government ambulance. (Merit v. Government of the Philippine Islands, 34 Phi. 311) yhere an implied consent? When the State enters into a private contract, unless the contract is only incidental to the performance of a ‘government function. (Santos v. Santos, 92 Phil. 281) srs into an operation that is essentially , unless the business operation is only Ge, arrastre service). (Mobil Philippines v. Customs Arrastre Service, 18 SCRA 1120 (1966) (3) When the State sues a private party, the defendant can file a counter-claim against he Stato, unless the suit is entered into only to resist a claim. (Lim v. Brownell, 107 Phil. 244 [1969)) PROCEDURE TO PROSECUTE THE CLAIM AGAINST GOVERN- MENT Under C.A. No. 327, as amended by Presidential Decree No. 1445, a claim against the government must first be filed with the Commission on Audit, which must act upon it within 60 days. If thea PRINCIPLES, COMMENTS AND CASES IN ‘CONSTITUTIONAL LAW VOLUME! ‘aim is rejected, the claimant is authorized to clovate the matter to the Supreme Court on certiorari and in effect suc the State with its cansent. (P.D. No. 1445, Sections 49-50) CAN THE EXPRESS CONSENT OF THE STATE BE GIVEN BY A MERE COUNSEL OF THE GOVERNMENT? In Republic v. Purisima (78 SCRA 470), the Supreme Court waiver made by the lawyer of the Rice and Corn is not binding upon the State. The express consent trina State tobe sued shoul therefore, be provide y law. CAN THE AGENCIES OF THE GOVERNMENT OF THE REPUBLIC (OF THE PHILIPPINES BE SUED? It depends on whether the government agency to be sued is ‘unincorporated, Ifitis incorporated, the rule performing. performing proprietary functions, and not sus governmental functions. NOTE: The old cases are Meritt v. Government of the Philippine Islands, 94 Phil. 311; Rosette v. Auditor General, 41 Phil, 453 and Palafox v. llocos Norte, 102 Phil. 1186. BRIEFLY, WHAT IS THE DECISION OF THE SUPREME COURT IN ‘THE SAID CASES? the said hospital is not there ambulance driver. responsible for the damages caused through such a negligence. In Palafox v. Province of locos Norte, the latter was not liable for the acts of the driver of the truck because he was not a special agent of the government as the term was used in Article 1903 of the Spanish Civil Code. The judgment of the lower court dismissing the CHAPTER vil 181 ‘AND STATE POLICIES complaint of plaintiff's father on the ground that the province was not engaged in industry and therefore not liable under Article 103, ‘of the Penal Code (where the employer's liability is subsidiary), was, affirmed by the Supreme Court. FONTANILLA V. MALIAMAN, ET AL. G.R. NO. 55963; NATIONAL IRRIGATION ADMINISTRATION V. FONTANILLA, ET AL, G.R. NOS. 1L-55963 and 61045, DECEMBER 1, 1989 a government agency, owns and operates a pick-up, and it ‘driven by Hugo, the one employed by NIA as its regular Said pick-up bumped a bicycle ridden by Francisco, son of francisco was thrown 50 meters Restituto, another passenger, was thrown a little bit further. Francisco died. Hugo was a licensed professional driver and he passed the written and oral examinations on traffic rules and maintenance given by NIA. The parents of Francisco sued NIA for damages. NIA’s contention: NIA alleged that it does not perform solely or primarily proprietary functions, and that it is an agency of the government tasked with governmental functions. It cannot therefore be held liable for damages for injuries caused by its employees to a third person. ISSUE: Is NIA liable for damages? HELD: ‘The NIA is an agency of the government exercising proprietary functions, by express provision of Republic Act No. 3601. Indubitably, it is a government corporation with juridical personality and not fa mere agency of the government. Since it is a corporate body performing non-governmental functions, it now becomes liable for the damage caused by the accident resulting from the tortuous act of its driver-employee. In this ease, the NIA assumes the responsibility